The misdemeanor procedure is a special criminal procedure through which misdemeanors are prosecuted.
Misdemeanors are considered minor offenses when the Penal Code punishes them with a fine of up to 3 months, permanent localization of up to 3 months, community service of up to 31 days, prohibition of communication or proximity to the victim of less than 6 months, or other minor penalties.
In case of committing a crime that is punishable by any of these penalties, its processing will be done by the misdemeanor procedure. Common misdemeanors are: theft of less than 400€, frauds of less than 400€, damages of less than 400€, minor injuries that do not require medical treatment, minor threats, etc.
What stands out most about the misdemeanor procedure is that there is no prior judicial investigation or investigation, but rather, upon receipt of the complaint by the complainant, the judge summons the parties directly to the trial. In addition, the judge in charge of the proceedings is the examining magistrate.
The most common is that the misdemeanor procedure is initiated by filing a complaint with the police after the facts have occurred, although it can also be initiated by complaint, judicial complaint or ex officio by the court. Frequently, the police immediately summons the complainant and the defendant and the court that will process the case, and they are informed of the date and time that they must attend the trial.
Once the court receives the complaint filed, the judge evaluates that the facts are indeed within the scope of misdemeanors and opens the misdemeanor proceeding, summoning the parties (defendant and complainant) to attend the trial.
In this regard, it is also important to note that it is not mandatory to attend the day of the trial with a lawyer or attorney, neither for the plaintiff nor for the defendant, but one can defend oneself.
On the day of the trial, if the complainant does not appear at the trial, the defendant may automatically be acquitted, since there is no one to ratify in court the complaint that one day he made to the police. On the other hand, if the defendant does not show up, the trial may continue in his absence and, if necessary, he may be sentenced.
If both parties are present on the day of the trial, the complainant will start by speaking and explaining the facts and reasons for the complaint, and then the defendant will take the floor and may give his version of the facts denounced. At that moment, the parties can propose the practice of evidence (testimonial, documentary, etc.) that must also be carried out at that moment of the trial and must be available for the court.
At the end of the trial, the judge will issue the sentence which, if applicable, can be appealed within 5 days. It is important to know that misdemeanors, even if they are minor, in case of conviction will always generate a criminal record for the convicted person. This record, normally, can be requested to be cancelled after 6 months have passed since the sentence has been served.
Sara Gabernet
Lawyer Expert in Criminal Law
M&CAbogados
