Judicial Decisions: Free and Provisional Dismissal in Criminal Law

The Intermediate Phase of Criminal Procedure

The Intermediate Phase begins upon the conclusion of the investigation phase. This stage is crucial for determining whether the case proceeds to trial or is dismissed.

Purpose and Judicial Roles

The judicial body—which is the judge in abbreviated and speedy trials, or the Provincial Court in the common process—must decide whether or not to proceed to trial. At this stage, based on the investigation findings, the charging parties decide whether or not to maintain the charge, and the deciding body determines whether or not the case has sufficient merit.

The charging parties maintain the indictment when applying for the opening of the oral trial, and they do not accuse when applying for free or provisional dismissal. For its part, the court orders the opening of the trial and rejects the accusation when issuing an order of Free Dismissal or Provisional Dismissal.

Grounds for Rejecting the Trial Opening

A trial cannot be opened, and the accused cannot be prosecuted, under the following circumstances:

• When there is no reasonable suspicion that the accused perpetrated the act that gave rise to the formation of the case.
• When the fact is not a criminal offense.
• When the defendant appears exempt from criminal liability as the perpetrator, accomplice, or accessory.

Free Dismissal (Sobreseimiento Libre)

The Free Dismissal is a resolution opposing the opening of the trial. It takes the form of a court order and definitively ends the criminal proceedings. It constitutes a denial of the state's right to prosecute, meaning the trial cannot be opened because it is already known that the defendant's conviction is impossible due to certain causes.

Grounds for Free Dismissal

Grounds for Free Dismissal include:

1. When there is no reasonable suspicion of having perpetrated the act that gave rise to the formation of the case, meaning there appears no reason to suspect the commission of the crime.
2. If the act is not criminal, i.e., when the taking of evidence has shown that it is indeed not a crime, and therefore there is no doubt about the nature of the facts or the offense.
3. Where the defendants are exempt from criminal liability.

Provisional Dismissal (Sobreseimiento Provisional)

A Provisional Dismissal may be possible to terminate proceedings preliminarily if the investigation lacks clear elements to sustain the charge, but the conditions for a Free Dismissal are not met. This dismissal is issued when the commission of the offense is not duly justified, or when the investigation confirms a crime was committed but there is no reason to accuse specific persons as perpetrators or accomplices.

This basis is temporary, as there is nothing preventing new data from being obtained later to complete the proceedings. Thus, the legislature allows the process to continue if new evidence emerges.

Effects of Dismissal Orders

The Free Dismissal produces the strong effects of res judicata (a matter already judged). Therefore, no new process can be opened based on the same facts and against the same people.

The Provisional Dismissal has no effect of res judicata and does not preclude the case from being reopened later if new facts are known. Upon adjudication, the prosecution and any precautionary measures adopted must be lifted.