Receive a subpoena generates a doubt very usual: if you do not show, what it suspended the trial automatically or “I will again quote”? This belief, though widespread, it does not reflect how the criminal process in Spain.

In many procedures, not appear when you've been quoted correctly can worsen your situation and, in certain cases, the trial can go ahead with the consequent risk to your defense.

The Criminal procedure law (LECrim) regulates the subpoenas, the obligations of the hearing and the consequences of default. The critical point is this: a subpoena is not an invitation, and the reaction of the court will depend on your role (defendant/investigated, complainant, witness, or expert witness), the type of procedure and if there is a cause and communicated to time.

The subpoena, and the “correct citation” are not a minor detail

The first question that analyzes the court when someone does not attend is if there is proof of summons in the form. In procedures where the law provides for the possibility of trial in absentia in certain cases, it is of particular importance to you that you have the LECrim on signaling address for notifications and warnings about the consequences. In particular, the framework of the summary procedure, part of the general rule that the trial requires the presence of the defendant, but contemplates modulations legal when there are specific requirements.

This has a practical implication: if the court considers it established that did you know the trial (or are legally you'd have to know the form of the notice), your absence may not stop the procedure, and you can trigger more severe measures.

Therefore, if you have any questions about a citation, it is essential to consult with a lawyer on La Línea de la Concepción before making decisions that can seriously harm the defense.

If you do not show as investigated or accused: the scenario more delicate

When the person who does not appear is investigated or accused, the problem is not just formal. It is substantive: disclaimers de facto to be present at a key moment, with a direct impact on your right to a defense and on the judicial assessment of the test.

In general terms, the procedure criminal Spanish requires the presence of the defendant at trial as a rule of the game (especially in the abbreviated procedure), but the own LECrim contemplates cases in which the unexcused absence is not obliged necessarily to suspend, provided that certain conditions are met (for example, valid subpoena, a request of the Prosecutor or prosecution, hearing of the defense and the existence of sufficient evidence to prosecute).

What can happen “truth” if you're not going

If you do not go to criminal trial, and the court understands that your absence is unexcused, and issuing legal requirements to continue, this can lead to these consequences (not always all, but often in practice):

Celebration of the trial without your version.
In procedures where legally it should be the following, we practice test available and resolved. This means that you can lose the opportunity to testify, clarify facts, challenge witnesses or to react to an accusation concrete.

Judgment without hearing the defendant.
The logical consequence of the previous point is that you can a judgment be without you involved in the act of judgment. In terms of defensive, is one of the worst possible positions.

Risk of rebellion and requisitorias.
In scenarios in which the judicial branch needs your location/appearance and not compareces, can be activated by the regime of requisitorias and, if you're not there, the declaration of rebellion procedural, with the effects that provides for the LECrim.

Order of detention or driving.
The LECrim contemplated that, in certain circumstances, the appeal can be transformed into a more intense (including detention) to ensure the presence.

The myth of “if they ask for less than 2 years, nothing happens”

Your text is right in an essential idea: that the penalty sought is less than two years does not guarantee that the trial be suspended by your absence. This “limit of two years,” is often confused with the suspension of the execution of the sentence (something back to the sentence, and subject to requirements), but it is not a free pass for not going to trial.

In fact, in the summary procedure, there are specific provisions on the possibility of holding the trial in absentia in assumptions priced and guarantees, which reinforces the importance of not making decisions based on shortcuts or “rules popular”.

Snap judgments: where more expensive is “because I fix it later”

In speedy trials, the design of the procedure promotes handling and agile decisions in short periods of time. This increases the risk that a bad decision (like not go without justification) has immediate consequences: marking fast, quick resolution and a defensive position weakened.

The key idea is simple: if you're playing your situation is criminal, there is no “then we see”. In criminal, what is not done in time (challenge, propose, test, allege incidents, ask for suspension for cause real and accredited) can be difficult to reconstruct after.

If it does not appear the complainant: it is not the same as if it does not appear the defendant

Your content also properly points to another practical distinction: complainant is not the same as indictment in legal sense, nor does its absence automatically produces the same effect in all cases.

In many matters, if the complainant does not attend, the procedure can be affected by a lack of evidence or lack of pulse charging (will depend on if there is a Prosecutor, private prosecutor himself, the documentary evidence/enough, etc). In others, the procedure can continue if there are independent tests.

Here it is important to adjust expectations: the absence of the complainant do not “guarantee” a filebut it can be a relevant factor when the cause rests essentially on their testimony.

If you do not appear a witness or expert: fines and driving forced

Where the LECrim is especially clear with the witnesses (and, in your case, experts). A witness quoted obligation to appear, and the law provides:

• Fines by default unjustified (with forks that, according to the assumption, is located in the hundreds and can reach thousands of euros).
• New citation with a warning and the possibility of driving by the force public if it persists the default.

In misdemeanors, the LECrim deals specifically with economic sanctions for the failure to appear without just cause (parties, witnesses, experts) in the framework of the prosecution of minor crimes.

Minor offences: the default can not stop the trial

In the procedure for minor offences, the LECrim provides for specific rules. In practice, the court may conduct the hearing even if any person summoned does not appear in courtespecially if you consider that it is not essential to or if there are enough elements to solve, always with the caution that every case has its configuration probation.

In addition, there are nuances relevant (for example, cases in which the defendant resides outside of the district and may make claims in writing), which should be evaluated with an attorney before making any decisions.

Justify the failure to appear: when to serve and when it is already too late

The law acknowledges that there are legitimate grounds to not go (disease, is a material impossibility, subpoena, summons, defective, etc). But experience shows that problems arise for two reasons:

• You try to justify with reasons generic or non-accredited.
• Communicates afternoonwhen the point has already been held or when the court has adopted measures.

The practical rule is clear: if there is a actual cause, there are to communicate to the court as soon as possible, give credit documents and to articulate it correctly (for example, requesting a suspension if applicable). A doctor's note without more, filed out of time or without lace procedural, not always avoids consequences.

Why advise you before it changes the result

In La Línea Defensa Penal, when a person consults with us by a subpoena, the first thing is to identify your position procedure and the type of procedure, and after making decisions “procedure” that are determinants: a review of the way of subpoena, to prepare a strategy of appearance, anticipate risks of judgment in the absence when legally possible, and, above all, to avoid that the court should interpret the absence as unexcused.

In cases criminal La Línea de la Concepción, Algeciras and the Campo de Gibraltarthe difference between going with a clear strategy and not go “see what happens” can be the difference between keeping control of the case or lose from the start.

Conclusion

Do not introduce to a criminal trial not automatically causes a postponement. Depending on the procedure and how you have practiced the summons, the trial can go ahead and can be the result of a resolution without your intervention, sanctions, and even measures of search/appear when the court deems it necessary. The decision not to go without the advice is almost always an unnecessary risk.

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