Secrecy of Proceedings and Secret Proceedings. Two Distinct Concepts.

It is rare to have a week in which we do not learn through the media of some news containing the expression “secrecy of proceedings is declared” or “secrecy of proceedings is lifted,” but even rarer is the correct use of such expression.

On the occasion of our defense in the criminal proceedings regarding match-fixing in football and the press releases from the Public Prosecutor’s Office, we wanted to offer a reflection,

Let us examine this analysis by our colleague José Luis Granado Mateo:

1.- Secrecy of Proceedings.

The proceedings, which in brief terms constitute the judicial file containing all relevant data and information obtained during the investigation of a crime, as established in Article 301 of our Criminal Procedure Act, are confidential and shall not be public until the opening of the oral trial. Therefore, this declaration of confidentiality derives from a legal mandate and does not depend on the judge’s discretion, this detail being a very important point to consider in distinguishing the two concepts at hand.

This confidential nature is what we colloquially know as “secrecy of proceedings”. However, the term secrecy is not understood in the strict sense, since the limitation regarding knowledge of the proceedings only affects persons not party to them in order to prevent public disclosure, with the consequences this may entail for the investigation and the persons under investigation, who, as an indisputable principle, enjoy the presumption of innocence. Nevertheless, the parties to the proceedings, who do have knowledge of all actions taken, are also obligated not to disclose any content.

2.- Secret Proceedings.

A quite distinct concept is that of “secret proceedings”. As a general rule, we encounter this concept when, in the context of a public crime, the Investigating Judge by reasoned decision deprives the parties appearing in the case of total or partial knowledge of the proceedings for a period not exceeding one month.

With this declaration of secrecy of the proceedings contained in Article 302.2 of the Criminal Procedure Act, in addition to affecting the right to receive information freely and the right to a public trial, contained in Article 24 of our Constitution, the general rule of publicity contained in Article 120.1 of the same legal text is contradicted.

2.1.- Limits and Requirements of the Declaration of Secrecy.

After all that has been stated thus far, it is evident that we may have doubts about the compatibility of the declaration of secrecy of proceedings with certain fundamental rights, especially those contained in the aforementioned Article 24 of our Constitution.

Since fundamental rights may be affected, to resolve doubts about this compatibility, we must refer to what the Constitutional Court, as guarantor of such rights, states in this regard.

According to various decisions of the Constitutional Court, the right not to be left defenseless, recognized in Article 24.1 of the Constitution, means that the principle of adversarial proceedings must be respected, which guarantees access to proceedings in defense of legitimate rights and interests, and, within this, the exercise of the powers to allege, present evidence, and participate in the examination of opposing evidence to monitor its proper practice and challenge it. It is obvious that this latter guarantee of participation in evidence is limited by the declaration of secrecy of proceedings.

As the Constitutional Court declared in its judgment 176/88 of October 4, “secrecy is intended to prevent the accused’s knowledge and participation in the initial proceedings from giving rise to interference or manipulation aimed at obstructing the investigation and constitutes a limitation of the right of defense that does not result in defenselessness by not preventing the party from exercising it fully when secrecy is lifted upon having fulfilled its purpose“

Consequently, such limitation does not constitute a violation of the right of defense, as this right finds its limit in the “interest of justice.” Along these lines, it is of vital importance that the secrecy of judicial proceedings be objectively and reasonably justified by circumstances that demonstrate that the measure is essential to ensure the protection of the constitutional value of justice.

I emphasize the importance of the reasoned justification of this measure because it constitutes the delicate line that separates defenselessness from what is legally acceptable. Regardless of other relevant factors, such as the duration of secrecy, the decisive factor in determining defenselessness is the reasoned justification of secrecy. Therefore, the order decreeing secrecy or its extension must meet a series of basic requirements repeatedly stated by the jurisprudence of the Supreme Court and the Constitutional Court:

– Legality.

– Judicial authority.

– Proportionality, which in turn requires consideration of severity, specificity, suitability, and exceptionality.

If the required reasoning is met, the declaration of termination must be made as soon as possible once the objectives intended by the declaration of secrecy have been achieved and, in any case, 10 days before the investigation is concluded. Conversely, if such reasoning is not met, which is very common in practice, the right of defense is violated, resulting in the sanction of nullity pursuant to Article 238.3 of the Organic Law of the Judiciary, granting the parties access to the entirety of the proceedings.

2.2.- Consequences of Violation of Secrecy.

With so much discussion of secrecy, it is difficult not to ask, What happens if such secrecy is disclosed? In the case of secrecy of proceedings, the leaking of information may entail a significant cost for the public authority or official as established in Article 417 of the Criminal Code. Less severe are the fines established in Article 301 of the Criminal Procedure Act for attorneys or solicitors of the parties, as well as any other person who is not a public official and who improperly discloses the content of the proceedings. On the other hand, in cases of leaking of procedural actions that the investigating judge has expressly declared secret, the consequences are much more severe as established in Article 466 of the Criminal Code.

3.- Conclusion.

By way of conclusion, I must state that although these are two concepts that fall within the investigation phase, the procedural moment at which they come into play is different. Let me explain.

Secrecy of proceedings as we have analyzed it is a concept predetermined by legal mandate and of an automatic nature. This means that when the competent investigating judge initiates “proceedings,” the confidential and secret nature thereof is automatically activated. Conversely, the declaration of proceedings as secret is an exceptional measure, dependent on the judge’s discretion.

At the beginning of this article, I raised the idea of the erroneous use of the concept “secrecy of proceedings” and set myself the goal of carrying out a joint analysis of both concepts. Having reached this point, I hope that their distinction leaves no room for doubt.

Author: José Luis Granado Mateo.

Attorneys Specializing in Criminal Law | IN DIEM: Málaga, Seville, Madrid, Las Palmas de Gran Canaria, Almería, Huelva…

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