The Criminal Procedure Law includes personal and real bonds between the real precautionary measures, and among the latter, the pledge and the mortgage.
These precautionary measures are intended to ensure the economic effects of the criminal process. It is pursued that the pecuniary responsibilities that the crime may have caused to be insured during the processing of the case, had realized that the obligations to repair, compensate or restore the thing, will arise as a result of the conviction.
The mortgage bond is a figure that in practice was rarely offered by the accused. Although in recent years it is not uncommon for the accused, in order to avoid the negative consequences of an embargo and provided that the only asset he owns is his own home, offer to mortgage on it to guarantee the civil liabilities set in the criminal procedure.
This possibility generates great difficulties in practice, given that the lack of specific regulation on the subject does not respond to many of the doubts that arise, both regarding formal or procedural and substantive issues.
The present work intends to make a detailed study of the mortgage bond and raise any doubts that may arise, both for the accused when he intends to offer it and for the Court itself at the time of processing it and, if applicable, admit it or inadmit it as a guarantee.
II. Moment of adoption of the real precautionary measures.
1. Ordinary process for serious crimes.
We must depart from the provisions of Article 589 of the Criminal Procedure Act where it is prescribed that “when there are indications of criminality against a person, will be ordered by the judge to provide enough bail to ensure pecuniary responsibilities that can be declared definitively coming, declaring in the same car the seizure of sufficient assets to cover these responsibilities if I do not lend bail. “
This precept shows that whatever the status of the proceedings in which the summary is found, the Judge may decide ex officio, the assurance of civil liabilities.
The question has been raised as to whether the investigating judge must agree to the assurance of civil responsibilities in the same indictment.
I understand that to answer this question we must take into account the provisions of article 384 of the LECRIM that regulates the indictment and establishes that it will be dictated “from the result of the summary any rational indication of criminality against a person”.
Attended, that both Article 384 and Article 589 of the LECRIM, start from the common budget of the existence of evidence of criminality against a person, when such a budget is concurred the Judge must prosecute, and at the same time, ensure civil liabilities. Therefore, the indictment must contain a statement on the civil liabilities derived from the criminal procedure.
2. Abbreviated procedure.
The above is fully applicable to the ordinary process for serious crimes where the figure of prosecution exists. On the other hand, in the abbreviated procedure, this can not be the case, since, as we know, there is no provision for the issuance of the indictment as such.
In this procedure when the Judge considers that there are signs of criminality, even though this does not involve an indictment, it must adopt measures to ensure the civil liabilities derived from the criminal process. Therefore, at any time during the investigation of the case, it may adopt such measures. And even, it has been defended the possibility of applying said measures of assurance in the first steps envisaged in article 13 of the Law of Criminal Procedure. one
Other authors understand that article 589 of the Criminal Procedure Law does not apply to the abbreviated procedure and must be subject to the specific rules contained in the abbreviated procedure regulation, articles 757 et seq. And so, they estimate that the measures for securing civil liabilities will be agreed upon in the indictment order provided for in article 764 or in the order for the opening of an oral proceeding provided for in article 783.2 of the LECRIM. In effect, the first of them provides that “the Judge may agree precautionary measures for the assurance of pecuniary responsibilities, including costs” and the second prescribes that “in deciding on the opening of the oral trial, the Judge shall decide of Instruction on the adoption, modification, suspension or revocation of the interested measures by the Public Prosecutor’s Office or the private prosecution, both in relation to the accused and in respect of those responsible for civil matters, to whom, as the case may be, he will demand bail, … “. two
I understand that the first position is the most accurate, given that article 764 of the LECRIM does not refer to the existence of signs of criminality, but only refers to the civil liabilities that may result. And, so at any time of the instruction as soon as the budgets of Article 589 concur, the Judge may agree on the civil assurance measures.
3. Quick judgments
The LECRIM provides in article 798 that in the hearing the accusing parties and the Public Prosecutor may request precautionary measures against the defendant, or as the case may be, against the civil defendant, without prejudice to those that may have been previously adopted. With this, a referral is made to article 764 regulating the civil precautionary measures seen.
Thus, for example, it could be agreed to ensure pecuniary responsibilities for the immediate intervention of the vehicle, as long as the defendant’s creditworthiness is not proven, and even such a measure could be agreed by the Police itself, as provided for in articles 764.4 and 770.6 of the LECRIM. 3
In the event of having proceeded to the conformity in the court of guard, the question arises of when the defendant must formalize his commitment to satisfy civil responsibilities.
I understand that before issuing a judgment of conformity that commitment must be made, since at the time of lending its acceptance to the indictment is when he will have knowledge of the civil responsibilities that are required and must then make a commitment to meet them within the deadline prudentially fix the Judge.
In all the exposed cases, we must bear in mind that once the summary in the ordinary proceeding has ended, the preliminary proceedings in the abbreviated procedure or the urgent proceedings in the fast trial, it will not be possible to adopt real precautionary measures.
The literal wording of article 299 of the LECRIM determines it this way, when establishing that the assurance of the civil responsibilities is one of the objectives of the summary. 4
If in the investigation no real precautionary measures have been taken, only such a defect could be remedied in the so-called intermediate phase, but never in the oral trial phase.
Thus, in the summary, article 627 allows the Public Prosecutor and the private accusations to request the real precautionary measures omitted if they request the practice of new summary proceedings and the Court attending to such a request, and even ex officio, can agree on them. 5
In the abbreviated procedure during the preparation phase of the oral trial, and before the referral of the case to the competent body, the Public Prosecutor and the prosecuting parties may request the adoption of all types of precautionary measures, by evacuating the indictments and The Judge must pronounce on them in the opening of the oral trial.
In all the cases adopted the precautionary measure must be documented by reasoned order and proceed to the opening of the separate piece of civil liability, which will be formed with a testimony of the resolution in which the aforementioned real precautionary measures are agreed.
III. Previous procedures for the constitution of the mortgage bond.
1. Possibility of constituting the mortgage bond on the dwelling of the accused.
The law admits two kinds of bond: the personal and the real.
Regarding the personal bond, the doctrine understands that the guarantor must be a third person, not admitting that the defendant himself is guarantor.
However, in the case of a real bond is admitted, that both the pledge and the mortgage, is constituted on the property of the accused.
Indeed, the requirements that the law requires for both cases are different.
In both cases, what really matters is to ensure the solvency of the accused during the processing of the procedure and until the issuance of a sentence or resolution that ends it.
But, when the Law of Criminal Procedure admits the personal bond as an assurance measure, it requires certain personal conditions to be met in the person of the guarantor. Among these demands is “good behavior”. Logically the validity of the principle of presumption of innocence that extends to the accused, extends until the issuance of a conviction. But, it is clear that he is imputed in a criminal proceeding, and as the doctrine emphasizes “is under suspicion”, and therefore could hardly be admitted as a guarantor.
In the case of a real bond the guarantee falls directly on the property and only the valuation of the same will determine the admission or not of the bond that is intended to constitute on it.
2. Expert assessment and examination of property titles.
The law requires, as a preliminary procedure for the admission of the mortgage bond, that the real estate offered be valued by two experts and that the titles of property be examined by the Public Prosecutor. Once these operations have been verified and in view of them, the Judge will declare whether the bail offered is considered sufficient.
It is required by law the expert assessment of the property served that it lacks a manifest value, unlike what happens with money or securities securities.
The Criminal Procedure Law, in the ordinary process for serious crimes, establishes that said assessment must be carried out by two experts appointed by the Judge.
It does not admit, therefore, that the experts are appointed by the accused. And given the literal wording of the precept, it could not be admitted that an expert appraisal was already provided previously, for example, for a purpose other than that of the criminal process.
With this system what the law intends is to ensure that an assessment is made according to the market price and that the intervention of two experts supposes a greater success in it.
In the case of an abbreviated procedure or a quick trial, I understand that since we are facing an expert test properly, we can proceed with the application of the rule contained in article 778 of the Law of Criminal Procedure. In the mentioned precept it is established that the expert report may be provided by a single expert, when the judge deems it sufficient. I understand that the precept is a provision of general application to the regulation of the procedure
Abbreviated and, therefore, can also be extended to the piece of civil liability derived from the offense.
The experts to proceed with the valuation must examine the property titles of the property that must be provided by the guarantor.
I understand that given the purpose of the mortgage bond, to ensure the availability of the property to the possible civil liabilities derived from the criminal procedure, the property can not be taxed prior to the constitution of the bond and this end must be accredited by the guarantor.
Once the expert appraisal has been carried out, the property deeds contributed to the case must be examined by the Public Prosecutor’s Office for the purpose of due verification.
Once said compulsory procedure has been completed, it is up to the Judge to carry out the same verification and examine the expert assessment made, and in view of all this, it must determine whether the value of the asset is considered sufficient to cover the civil liabilities established in the case.
3. Possibility of creating a partial bond.
It may happen that civil liability is covered under civil liability, compulsory or voluntary insurance.
The assumption will occur in practice, essentially, in the case of crimes derived from the driving of motor vehicles or in the exercise of hunting sport. In these cases the bond must be offered by the insurance company, although only up to the amount covered by the insurance.
The problem arises if the civil liabilities set by the judge exceed that coverage. In this case, it must be the defendant himself who must satisfy the bond up to that amount.
Consequently, it is necessary to admit the possibility of the bail offered by the insurance company and the one offered by the defendant. And with respect to the one offered by the accused, it could be in any of the forms admitted in article 591 of the Criminal Procedure Law and, therefore, also mortgage. The aim is to cover the amount set by the judge in full for civil liability.
IV. Forms of constitution of the mortgage bond.
The mortgage bond has been defined as the affection of an immovable property, susceptible of being mortgaged, to the future and hypothetical execution, guaranteeing the affection with the annotation in the Property Registry. 6
The mortgage bond can be constituted before a Notary or by going to the Court that processes the criminal procedure and constituting it apud acta.
1. Constitution of mortgage bond before a Notary.
The mortgage bond can be constituted before a notary through a public deed.
In this case the Notary writes a public deed of mortgage constitution in guarantee of the civil liabilities derived from a criminal procedure. To do this, it must record in the deed the data of the criminal procedure, the amount of the one that responds the property and that the mortgage is constituted in favor of the Court.
Once the public deed is drawn up, the guarantor must take it to the Land Registry for the annotation of the mortgage. In addition, you must obtain from the Land Registry a certification that up to that time the farm was free of charges.
Regarding the form of processing such bond in the Court, the guarantor must go to the Court that instructs the criminal case and appear before the Judge and the Judicial Secretary providing the public deed granted before the Notary. The Court Clerk shall draw up a record in which the guarantor’s information and his willingness to establish a mortgage bond shall be recorded. It will also mention the data of the public deed granted before a Notary and it will be expressed that the mortgage is constituted in favor of the Court for the amount of civil liabilities derived from that criminal procedure.
The certification of the Property Registry must be provided in the same act, stating that the property is registered in favor of the guarantor and is not encumbered by any other charge or encumbrance and that a mortgage has been established thereon. guarantee civil liabilities in favor of the Court.
I understand that the public deed must be attached to the separate piece of civil liability for, where appropriate, proceed to foreclosure. And you must also join the registration certification described above.
2. Constitution of bail apud acta.
The law allows the mortgage bond to be established before the Court itself.
In this way, the defendant avoids the expenses that the mortgage would entail in the Notary.
The law admits such a possibility that the mortgage that is constituted to secure civil liabilities is not a current mortgage: it does not contain special clauses related to interest, amortization periods and others. Here only what is intended is to reserve the availability of the domain on the farm until the criminal procedure ends.
As to the form of such a mortgage, it must be made before the Judge and the Judicial Secretary, the latter having drawn up a record in which the guarantor’s information is recorded, the will to establish a mortgage bond on the property in question and to answer for the civil responsibilities derived from the criminal procedure.
The guarantor must submit to the Court the public deed of ownership of the property and in the minutes will be recorded the data of the aforementioned deed, the description of the property and the registration data of it. Likewise, the amount of the civil responsibilities that the farm will respond will be stated.
I understand that the statement made by the guarantor that the farm is free of charges prior to the one to be constituted must also be recorded immediately.
The court must agree, once this hearing is made, issue a writ in duplicate to the Land Registry for the registration of the mortgage guarantee and send the guarantor to the Office of Settlement of Transmission Taxes in order to settle the corresponding tax.
Once the warrant has been completed, the Property Registry will send a copy to the Court and the Court must attach it to the separate piece of civil liability for its due record.
Note that in this case, registration in the Registry is constitutive for the effectiveness of the lock.
V. Self sufficiency of the bond. Resources.
Once all the previous procedures have been verified, the Judge will issue the corresponding order declaring the sufficiency of the bond. Article 596 of the Criminal Procedure Act refers to this resolution, establishing that an appeal may be appealed against this decision.
We must differentiate this order from the resolution that the Judge has previously dictated establishing the need for bond and its amount.
In the car now studied, the judge examined the bail offered declares it or not enough to guarantee the previously determined civil liabilities.
Therefore, in the event that such resolution is appealed, the appeal should be limited to the aspects related to said sufficiency. And so the valuation or appraisal made by not considering it correct or adjusted to market price, for example, could be object of appeal.
The law does not contain provisions regarding the effects of the admission of the appeal. I understand that it must be admitted in both effects and the piece of civil liability be raised in its entirety, as the sufficiency order puts an end to the processing of the piece.
SAW. Modification of the bond and its conversion.
1. Modification of the deposit due to excessive or insufficient.
The judge in determining the amount of the bond must take into account the circumstances concurrent at the time of fixing. However, it may happen that during the investigation of the case, these circumstances vary, and the actual precautionary measures that were adopted must be modified. No obstacle should be put to such modification. 7
It may be motivated by two different circumstances:
That civil liabilities increase or decrease during the instruction of the cause.
That the value of the offered goods increases or decreases.
The Criminal Procedure Act allows in its articles 611 and 612 both the increase and decrease of the bond, in the event that “there are enough reasons” to believe that the bail offered is less than the civil liabilities that may result from the procedure or superior to them.
In the first case, the judge will issue an order providing for the extension of the bond and will determine the amount by which the new attachment is decreed or, where appropriate, the bond that is required to avoid it.
I understand that having given mortgage bond, if the appraised value of the property allows it, an extension of the constituted mortgage could be made. This extension must be made following the same requirements for its incorporation, except for the expert assessment and the verification of titles that would have already taken place.
In the contrary case, of diminution of civil liability, article 612 of the Criminal Procedure Act allows the issuance of an order that will order the reduction of the bail set up and that must agree on the necessary measures to release in that proportion the goods offered on bail. In our case, the mortgage must be reduced and said reduction must be recorded in the Property Registry.
In the event that the difference relates to the value of the secured assets, a variation that, depending on the case, will be revealed by the private accuser or the defendant himself, the provisions of articles 611 and 612 studied shall apply analogously. Consequently, the increase or reduction of the deposit must also be applied.
2. Conversion of the deposit.
The law allows that once the mortgage bond is constituted and admitted by the Judge, it can be substituted by another type of bond.
From the practical point of view, the mortgage bond can be very burdensome for the guarantor, since although it does not deprive him of the right of ownership over the property, it prevents him from being able to avail himself of it. It is also clear that it is a burden that will make it difficult, if needed, to obtain credit.
Therefore, it is possible that given the need of the accused to obtain admission of the bond in order to avoid the seizure of their property, the mortgage bond is constituted. But, it may be that after this first moment of need, the conversion of the mortgage bond into a less burdensome one will favor it more.
To make the substitution, the Law takes into account values that make money prevail, in the sense that mortgage value is considered twice as much as cash. And, on the other hand, if they are offered in substitution securities or other movable property its importance is reduced. This is foreseen in article 591 of the LECRIM that establishes for such substitution the following proportions “the value of the assets of the mortgage will be double that of the metallic one indicated for the deposit, and a fourth more than this the one of the effects or values at the price of quotation. If the substitution were made for any other personal property given as pledge, the value of these shall be double that of the bond constituted in cash. “
VII. Civil execution of the criminal sentence.
When a criminal sentence is handed down, if it is acquittal, the necessary trades must be issued for the cancellation of the bonds and attachments that were constituted during the case.
If the sentence is condemnatory the law establishes that if the responsibilities are not made effective, the bonds or seizures will be carried out (article 613 in relation to article 536), and everything not foreseen in the LECRIM is referred to the norms of the Law of Civil Procedure, including third parties. We must, therefore, go to the rules of LEC for realization of real estate, ie, articles 655 and following.
With regard to the amount of the principal amount claimed as claimed, it will be the one appearing in the cause as the amount of the bond, to which the procedural costs of the execution will be added. There are no interests, legal or judicial, because the procedure begins directly with the execution and, therefore, can not be referred to as the default of the accused.
The realization of the goods ends with the purpose of guaranteeing the precautionary measures that disappear and become the realization of the secured assets. In case of being real estate, as we have seen, will be auctioned for with the money obtained to satisfy the civil liabilities due.