When someone is harmed by a criminal offence in the course of criminal proceedings, one of the first questions that arises is whether they can or should become actively involved in the judicial process, or whether it is sufficient to allow the State — through the Public Prosecutor's Office — to pursue the offence on their behalf. The answer to that question requires understanding the difference between two figures that are frequently confused: the private prosecution and the Public Prosecutor's Office.
Although both exercise the prosecution in criminal proceedings — and although their positions may coincide in many respects — they are legally distinct figures with different foundations, functions, and procedural positions. Understanding that difference can be decisive for anyone who has been the victim of an offence and wishes to ensure that their interests are effectively protected throughout the process.
In this article we explain what the Public Prosecutor's Office is, what the private prosecution is, where they are similar and where they differ, when it is relevant to join proceedings as a private prosecution, and what practical advantages doing so entails.
The Public Prosecutor's Office: The Public Prosecution
The Public Prosecutor's Office — also known as the Fiscalía or the public ministry — is a constitutional body regulated under Article 124 of the Spanish Constitution. It is charged with the mission of promoting the action of justice in defence of the rule of law, the rights of citizens, and the public interest protected by law. In criminal proceedings, it acts as public prosecutor representing the State and society as a whole.
The prosecutor is a State official, not a representative of the specific victim of the offence. Their function is to pursue offences in the name of the public interest — society's interest in ensuring that criminal conduct is punished — regardless of the wishes or particular interests of the person who suffered the offence. It may seem that the prosecutor and the victim always go hand in hand, but that is not always the case: there may be situations where the prosecutor requests a lesser sentence than the victim seeks, or cases where the prosecutor decides not to charge when the victim would wish them to do so.
The Public Prosecutor's Office is guided by the principle of legality: it may only bring charges when it considers there is a legal basis for doing so, must request acquittal if the evidence is insufficient, and must act with objectivity even when that does not always align with the interests of the victim. It is also bound by the principle of impartiality: although it prosecutes, it must also safeguard the rights of the suspect and the accused.
The Private Prosecution: The Victim as an Active Party
The private prosecution is the procedural position occupied by the natural or legal person who, having been directly harmed or injured by the offence, decides to actively exercise the right of criminal action in the proceedings. Unlike the prosecutor, who acts in the name of the State, the private prosecution acts in their own name and interest — or in that of their organisation, in the case of a legal person.
In Spanish criminal procedure law, the private prosecution is recognised as an expression of the principle of popular prosecution and of the victim's right to participate in proceedings that directly affect their interests. Exercising it requires formally joining the proceedings by means of a criminal complaint (querella) or a written application for joinder, with the mandatory assistance of a lawyer and a court representative (procurador).
Unlike the Public Prosecutor's Office, the private prosecution is not bound by criteria of objectivity or impartiality: it may press the prosecution with maximum intensity in defence of its own interests, may request heavier sentences than those sought by the prosecutor, may appeal decisions it considers favourable to the accused, and may maintain the charge even when the prosecutor requests acquittal.
The Essential Differences Between the Two Figures
The Nature and Basis of the Prosecution
The Public Prosecutor's Office represents the public interest: society as a whole has an interest in ensuring that offences are prosecuted and punished in order to protect the social order and peaceful coexistence. This interest is abstract and general: the prosecutor does not act to satisfy the victim's desire for retribution or to secure the compensation to which the victim is entitled, but rather to apply criminal law on behalf of all citizens.
The private prosecution represents the particular interest of the victim: the person who directly suffered the consequences of the offence and who has a specific, personal, and in many cases emotional interest in seeing the perpetrator punished and the harm they suffered remedied. The victim does not pursue the offence on behalf of society: they pursue it in their own name and to satisfy their own right to justice.
The Obligation of Objectivity
The Public Prosecutor's Office is bound by the principle of objectivity — Article 4 of the Organic Statute of the Public Prosecutor's Office — which requires it to act with objectivity and impartiality, safeguarding both the interests of the prosecution and the rights of the suspect. If during the proceedings the prosecutor reaches the conclusion that the accused is innocent or that the evidence is insufficient, they are obliged to request acquittal even if that contradicts the victim's expectations.
The private prosecution is not bound by this principle in the same way. It may maintain the charge even when the prosecutor requests acquittal, may seek harsher sentences than those requested by the prosecutor, and may continue to pursue appeals that the prosecutor has withdrawn. Its only limitations are compliance with the procedural rules and the limits the law places on the prosecution.
Differences in the Exercise of Appeals
One of the most important practical consequences of the distinction between the Public Prosecutor's Office and the private prosecution concerns appeals. When the prosecutor decides not to appeal a decision — for example, because they agree with the tribunal's assessment — the victim exercising the private prosecution may appeal autonomously and independently.
This means that the private prosecution may challenge an acquittal even when the prosecutor accepts it, may seek the continuation of proceedings that the prosecutor has considered concluded, or may appeal against a discontinuance that the prosecutor has proposed. The private prosecution's position with regard to appeals is therefore significantly broader than that of someone who relies exclusively on the Public Prosecutor's Office to protect their interests.
The Claim for Compensation
In offences involving economic harm to the victim — material damages, loss of earnings, moral damage — both the prosecutor and the private prosecution may seek the corresponding compensation. However, the private prosecution has a far more direct incentive to quantify and actively defend that compensation than the prosecutor, since it is the victim themselves who will receive it. In many proceedings, the active defence of civil liability is one of the main reasons a victim decides to join the proceedings as a private prosecution.
When Is It Advisable to Join as a Private Prosecution?
The decision to join proceedings as a private prosecution should not be taken automatically in every criminal case. It requires an assessment of the specific circumstances of the case and the victim's particular interests. The following are situations in which doing so is especially advisable:
When the Prosecutor May Not Fully Defend the Victim's Interests
The prosecutor handles many cases and faces significant institutional pressures. In less serious offences or in complex cases with a high workload, they may not be able to dedicate all the resources necessary to defending the interests of the particular victim. The private prosecution ensures that there is someone in the proceedings exclusively dedicated to that objective.
When the Victim Wants a Heavier Sentence Than the One the Prosecutor Is Seeking
If the victim considers that the sentence requested by the prosecutor is insufficient given the gravity of what they suffered, they may exercise the private prosecution and personally seek the sentence they consider appropriate. The tribunal may then choose between the different requests made by the prosecuting parties, which broadens the range of possible criminal consequences of the offence.
When the Victim Wants to Ensure the Recovery of Compensation
If the victim has suffered significant economic harm and wishes to ensure that civil liability is properly quantified and defended in the proceedings, the private prosecution is the most appropriate instrument for this purpose. The private prosecution's lawyer can prepare specific evidence on the economic harm — expert valuation reports, documentation of losses — with a level of dedication and focus that the prosecutor can rarely guarantee.
When There Is a Risk That the Prosecutor May Discontinue or Request a Stay of Proceedings
If the victim has reason to fear that the prosecutor may not continue with the prosecution — because the evidence is weak, because the case is legally complex, or because the prosecutor's strategy does not align with the victim's interests — joining as a private prosecution ensures that the proceedings cannot be closed by the prosecutor's decision alone. The private prosecution can keep the proceedings alive even if the prosecutor requests a stay.
The Popular Action: When Any Citizen May Prosecute
Alongside the Public Prosecutor's Office and the private prosecution, the Spanish legal system also recognises the popular action (acción popular): the possibility for any Spanish citizen, even one who has not been directly harmed by the offence, to join proceedings as a popular prosecutor and exercise the right of criminal action. This figure, recognised in Article 125 of the Constitution, is a distinctive feature of Spanish law that does not exist in most European legal systems.
The popular prosecutor — who exercises the popular action — has a procedural position similar to that of the private prosecution, but without the incentive of a direct personal interest. Its use has been controversial in some high-profile political or social cases, where it has served to maintain charges that the prosecutor had withdrawn or to extend the scope of the investigation beyond what the Public Prosecutor's Office considered appropriate.
Practical Consequences of the Distinction for the Defence
From the perspective of the accused, the presence of a private prosecution in addition to the Public Prosecutor's Office can significantly complicate the defence. Two independent prosecutors may seek different sentences, propose different evidence, and appeal decisions independently, considerably broadening the front that the defence must cover.
In particular, an accused person who has been acquitted at first instance may find that the private prosecution — even though the prosecutor has accepted the acquittal — independently appeals the judgment and succeeds in having a higher court review the acquittal. This scenario, which may result in a conviction on appeal without the prosecutor having sought it, illustrates the importance of treating the private prosecution as an independent procedural actor rather than a mere auxiliary of the prosecutor.
Frequently Asked Questions
Can the victim exercise the private prosecution even if the prosecutor does not wish to charge?
Yes. The private prosecution is entirely independent of the Public Prosecutor's Office. The victim may join the proceedings as a private prosecution and maintain the charge even if the prosecutor requests a stay of proceedings or acquittal. The judge cannot close the proceedings solely on the basis of the prosecutor's request if the private prosecution maintains the charges. In that case, the proceedings continue until the tribunal rules on the charge brought by the private party, even if the prosecutor no longer supports it.
How much does it cost to join as a private prosecution?
Exercising the private prosecution requires the mandatory assistance of a lawyer and a court representative, whose fees must be borne by the party exercising the action. If the victim lacks the economic resources to do so, they may apply for the benefit of free legal aid so that the State covers those costs. If the accused is convicted, they may be ordered to pay the costs of the proceedings, which include the fees of the private prosecution's lawyer, meaning that in the event of a conviction the costs may be recovered.
Is it possible to join as a private prosecution in any type of offence?
In public offences — the majority of offences under the Criminal Code, which are prosecutable by the authorities of their own motion — any person harmed may join the proceedings as a private prosecution. In semi-public offences — which require a complaint from the injured party in order to be prosecuted, such as certain offences against privacy — the private prosecution is incorporated into the exercise of the action itself. In private offences — defamation and libel between private individuals — the criminal action belongs exclusively to the victim and the Public Prosecutor's Office does not act as prosecutor.
Can the private prosecution withdraw the charges at any time?
Yes. The private prosecution may withdraw its charges at any point in the proceedings. However, if the Public Prosecutor's Office maintains the prosecution, the proceedings continue even if the private prosecution withdraws. Only in private offences — where only the victim may prosecute — does forgiveness or withdrawal of the charge bring the proceedings to an end. In public offences, the withdrawal of the private prosecution does not prevent the prosecutor from continuing the proceedings if they consider there is sufficient basis to do so.
Can a company or organisation exercise the private prosecution?
Yes. Legal persons — companies, foundations, associations — may also exercise the private prosecution when they have been directly harmed by an offence. In cases involving economic offences — fraud, misappropriation, corporate offences — it is common for the harmed company to join the proceedings as a private prosecution in order to ensure that its interests are adequately represented and to defend the quantification of the economic harm it has suffered.
