Criminal complaint: concept, types of complaints and regulation ▷ 2023 (2023)

ThecomplaintIt is a statement that is made before an authority about a fact that may constitutecrime. It is the communication, either oral or in writing, of an event that would be considered an infraction according to criminal typologies.

TheCriminal Procedure Lawis the regulation that regulates this act carried out by an identified person. That is, it is thestarting point of a criminal legal process.

What crimes are subject to reporting?

In order for a statement to be taken as a complaint, the existence of a crime must be presumed. These might be:

• public, justice is empowered to initiate proceedings ex officio.
• private, for there to be intervention of justice, the complaint is needed by the people that the law so provides.

Types of complaint

In addition to public and private,the complaint can be classified based on other characteristics. The most commons are:

1. Penal, is the complaint that refers to a crime typified in thePenal Code.
2. administrative, the concrete fact that supposes a legal infraction is presented in the orbit of the Administration.
3. fake: the facts denounced do not correspond to reality. It is important to clarify that the false complaint constitutes a crime in itself.

Who makes the complaint?

Every citizen who is a victim or witnesses a criminal act has the duty to file a complaint with the competent authorities.

But, in addition, the Criminal Procedure Law determines that they are also obliged to report:

• Those people who, due to their positions, professions or trades, have knowledge of public crimes.
• Any person who has knowledge of the commission of a crime that must be prosecuted ex officio, without the need to provide sufficient evidence.

Those who, by reason of their positions, professions or trades, have news of a public crime, will be obliged to report it immediately to the Public Prosecutor, the competent Court, the Investigating Judge and, failing that, the nearest municipal or police official. to the site if it were a flagrante delicto.

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Article 262 of the Criminal Procedure Law

Whoever, by any means other than those mentioned, becomes aware of the perpetration of any crime that must be prosecuted ex officio, must report it to the Public Prosecutor, the competent Court or the investigating or municipal judge, or police officer, without understands obliged by this to prove the denounced facts or to formalize a complaint.

The denouncer will not contract in any case other responsibility than that corresponding to the crimes that he had committed through the denunciation, or with its occasion.

Article 264 of the Criminal Procedure Law

Who is not required to file a complaint?

Although many of these groups have the opportunity to file a complaint, they are not required by law:

• Under 16 years.
• People whoThey don't have the mental faculties.
• Spouseof the delinquent
• prieststhat they had taken knowledge of the facts in their ecclesiastical functions.
• Losdescendants and ancestorswho have a direct link with the person who committed the crime.
• lawyers andattorneys, regarding the information provided by its customers.
• other people for theirpositions, trades or professionshad access to information about a public crime.

The obligation established in the previous article does not include prepubescents or those who do not enjoy full use of their reason.

Article 260 of the Criminal Procedure Law

Nor will they be obliged to report:

1st Whoever is the spouse of the offender who is not legally or de facto separated or the person who lives with him in a similar affective relationship.

2nd Those who are ascendants and descendants of the offender and their collateral relatives up to and including the second degree.

This provision will not be applicable in the case of a crime against life, a crime of homicide, a crime of injury of articles 149 and 150 of the Criminal Code, a crime of habitual mistreatment provided for in article 173.2 of the Criminal Code , of a crime against liberty or against sexual freedom and indemnity or of a crime of trafficking in human beings and the victim of the crime is a minor or a person with a disability in need of special protection.

Article 261 of the Criminal Procedure Law

The obligation imposed in the first paragraph of art. above will not include Lawyers or Solicitors regarding the instructions or explanations they receive from their clients. Nor will it include ecclesiastics and ministers of dissident cults regarding the news that may have been revealed to them in the exercise of the functions of their ministry.

Article 263 of the Criminal Procedure Law

Where are the complaints filed?

existauthorities that have the authority to receive complaints:

• Police or Civil Guard: Any police station is empowered to take a complaint. An investigation will then be initiated in order to verify the facts through the necessary procedures. In the case of public crimes, the Public Prosecutor will be notified immediately.
• fiscal Ministery, if the complaint is made in these offices, they will be sent to the competent judicial authority when they see clear indications of crime. Likewise, proceedings are taken to verify the crime after referral to the competent Court.
• Instruction Courts, once the complaint is received, the proceedings are initiated to obtain the necessary evidence of the criminal act. The judge analyzes the content and decides the steps to follow. It can be defined:
  • File if the facts do not constitute a crime.
  • Provisional dismissal, despite apparently constituting a crime, the person responsible is not identified or located.
  • Transfer to file, the case is referred to the competent Court that can be territorial, minors, military.
  • Criminal procedure, the procedure is continued when it is considered a criminal act and one or several persons are identified as responsible.

How is it reported?

When a person becomes aware of a criminal act, whether or not he is a victim, he is present before the competent authority toperform the communication.

The complainant can go alone, accompanied by a legal representative or do it through the latter with a special power of attorney that enables him to do so.

The complaint is acceptedorally or in writing.

Complaints may be made in writing or orally, personally or through a representative with special power.

Article 265 of the Criminal Procedure Law

• Oral, the statement is recorded in a record stating the identity of the complainant.
• Written, expressly states the alleged criminal act that occurred.

When the complaint is verbal, a record will be drawn up by the authority or official who receives it, in which, in the form of a statement, all the news the complainant has regarding the denounced fact and its circumstances will be expressed, both signing it below. If the complainant is unable to sign, another person will do so at his request.

Article 267 of the Criminal Procedure Law

is required thecomplainant's signature.In cases where you do not have theabilityto sign, someone will do so at your request. The official must initial and seal all the sheets for their elevation.

Also, delivery of acopywhich operates as certification of which the complaint was filed.

The complaint that is made in writing must be signed by the complainant; and if he cannot do it, by someone else at his request. The authority or official who receives it will sign and seal all the sheets in the presence of the one who presents it, who may also sign it himself or through another person at his request.

Article 266 of the Criminal Procedure Law

Prescription of reportable crimes

According to the maximum penalties established for each type of crime, theprescriptionis set to the followingdeadlines(Article 131 of the Penal Code):

• 20 years, for crimes whose maximum penalty is equal to or greater than 15 years in prison.
• 15 years, for those cases in which the maximum penalty is disqualification for more than 10 years or imprisonment equal to or greater than 10 years and less than 15 years.
• 10 years, when the criminal acts denounced foresee apenalty of disqualificationor imprisonment between 5 and 10 years.
• 5 years, for the rest of the crimes.
• 1 year,minor crimes.

In compound penalties it will be consideredthe one that provides for a longer prescription time. The same happens with the assumptions ofrelated offensesoinfringement contest.

The law establishes thatdo not prescribe:

1. crimes against humanity.
2. Those of genocide.
3. crimes of terrorismwhen they cause the death of the person.
4. Offenses against people and property protected in case of armed conflict.

Conclusion

The complaint is aduty of every citizen who has knowledge of an allegedly criminal act. There is only one group of excepted that is basically related to the age group or the link with the possible offender.

Whether administrative or criminal,it is an obligation to inform the relevant authorities. A police headquarters or Civil Guard, the Public Prosecutor's Office or the Investigating Court, are the entities and organizations empowered to receive the complaint from all.

At the time of filing a complaint, verbal or written,a legal proceeding is started.The signature of the complainant is essential, although not the name of the possible perpetrator of the crime or the provision of evidence.

It is recommended to be accompanied by a professional to ensure compliance with the required formalities.

References

• Criminal Procedure Law
• How to start a criminal procedure (I) - The complaint, Dexia Lawyers