Preliminary Hearing !

After the investigation is over, and the judge has enough evidence to consider if there is a possibility to present the case to trial, he calls upon a preliminary hearing to hear the arguments of all the parties before deciding whether to send it to trial or not.

The Fiscal, the Offended (if he decided to act as Querellante or Actor Civil), and the offender, will present themselves before the judge and present their case to him. Also, as part of the normal procedure, if the crime allows, a deal or negotiation can be made between the offender and the offended. Before starting the hearing the Judge will ask the parties if there is any possibility of settlement between them, or if there is any proposition by any of the parties for the other to analyze.

If a settlement is reached between the parties involved, and the Fiscal also considers he is satisfied with the agreement, then they present it to the Judge for his consideration. After analyzing all the issues, the Judge will approve or disapprove the settlement, propose different conditions he thinks necessary for the agreement, and make his decision.

If the settlement is approved then the criminal case is closed; if the agreement has time limits to be met as part of the settlement, then the case will be closed when the conditions are reached.

If there is no agreement, each party will present its case before the Judge, and he will decide if the case goes to trial or not, normally within a lapse of two days after the hearing.

There are other ways to stop a criminal case in crimes that have less than three years in prison as their maximum sentence, or that are classified as “De Acción Privada” (in English- private prosecution). They are:

A) Process Suspended on Trial Basis: This procedure will allow the offender to stop the process against him by doing community services for a trial period, during which he must demonstrate that he is going to continue his life without further criminal offenses. During the trial period the case against him will be suspended and will only be reactivated if he fails to complete his tasks for the community. This person will require also the following;

To reside in an specific place

Abstain from consuming drugs or liquor

Have a stable work place

To not carry guns

B) Total retribution of the damage made: If the crime allows it the offender can avoid criminal prosecution if he pays all damages made to the victim. This can also be solicited in the preliminary hearing before the Judge, and he will ask the victim if he agrees to drop all the charges upon an economic retribution of the damage made. If the offended agrees then a settlement is produced.

This is the first of a series of articles we will provide in following editions. This explanation is intended to provide a general idea, but it does not touch on the technicalities and issues that are involved in criminal law. In any criminal case you should always get proper counseling and never attempt to resolve criminal issues on your own. Always find a professional to represent you, and remember to ask them how long they have been practicing and what their area of expertise is. Get the best advice available for your money.

If you have any questions about the article or any other questions of legal matters, please don’t hesitate to call and get your questions answered.