What Does “Preliminary Proceedings” Mean in Criminal Proceedings?
Receiving a court notification that includes the term “preliminary proceedings” (diligencias previas) is something that confuses most people who are not familiar with legal terminology. What exactly are preliminary proceedings? What does it mean that they have been opened against you? Is it the same as being a suspect, charged, or accused? Do you need to take any action? These are the immediate questions that arise—and the answers matter greatly.
Preliminary proceedings are not a minor concept or a bureaucratic formality without consequences. They are, in fact, the technical designation for the investigation phase in abbreviated criminal proceedings, which is the procedural framework used in Spain to investigate and prosecute the vast majority of criminal offences. Understanding what they are, what they are for, how they operate, and what rights you have while they are ongoing is essential in order to act correctly and protect your interests from the outset.
In this article, we explain everything clearly and systematically: what preliminary proceedings are, when they are initiated, what happens during their processing, how they conclude, and what you should do if you are involved in such proceedings, whether as a suspect, a victim, or a witness.
What Exactly Are Preliminary Proceedings?
Preliminary proceedings are the investigation phase of the abbreviated criminal procedure, regulated in Title II of Book IV of the Spanish Criminal Procedure Act (Ley de Enjuiciamiento Criminal). This procedure applies to offences punishable by a maximum sentence of up to nine years’ imprisonment—which includes the vast majority of offences under the Criminal Code—making it by far the most commonly used criminal procedure in Spain.
In simple terms, the opening of preliminary proceedings means that an investigating court has decided to initiate a formal investigation to determine whether certain facts constitute a criminal offence, who may be responsible, and whether there is sufficient evidence to sustain a charge. It is the judicial response to a complaint, a criminal claim (querella), or a police report that has been assessed as warranting investigation.
It should be clarified from the outset that the opening of preliminary proceedings does not amount to a formal accusation nor does it mean that the court has concluded that a crime has been committed. It is simply the beginning of an investigation. The outcome may be dismissal if insufficient evidence emerges, or progression to trial if the investigation produces solid indications of liability. In neither case does the mere opening of preliminary proceedings imply any negative legal consequence for the suspect.
Preliminary Proceedings vs. Summary Proceedings: What Is the Difference?
One of the most common sources of confusion is the distinction between preliminary proceedings and summary proceedings (sumario). Both refer to the investigation phase of criminal proceedings, but they correspond to different procedural frameworks and apply to offences of different severity.
Summary proceedings are the investigation phase of the ordinary criminal procedure, used for the most serious offences—those punishable by more than nine years’ imprisonment. These cases are ultimately tried before the Provincial Court (Audiencia Provincial). Summary proceedings are more formal and rigid, and the role of the investigating judge is more intensive and subject to stricter procedural controls.
Preliminary proceedings, by contrast, belong to the abbreviated procedure, designed to be more agile and flexible. They apply to offences punishable by up to nine years’ imprisonment or other non-custodial penalties above that threshold. Once preliminary proceedings are concluded, the case may be tried before a Criminal Court (Juzgado de lo Penal) or, depending on the nature of the offence, the Provincial Court.
In everyday practice, when someone receives a notification referring to “preliminary proceedings,” it almost certainly relates to the abbreviated procedure, which is by far the most common. The terminology itself is already an important indicator of the type of proceedings involved.
How and When Are Preliminary Proceedings Opened?
Preliminary proceedings are opened by a judicial order issued by the investigating judge, formally initiating the investigation. This order may be issued in response to various situations:
- The receipt of a complaint filed by a victim, witness, or any person aware of the facts
- The filing of a querella (formal criminal claim), which allows the claimant to act as a private prosecutor
- The submission of a police report (atestado) by law enforcement authorities
- The initiative of the public prosecutor, who may request the opening of proceedings
The judge is not obliged to open preliminary proceedings in every case. Before doing so, the judge assesses whether the facts described have sufficient indications of criminality—that is, whether they minimally fall within a criminal offence under the Criminal Code. If the facts are clearly not criminal, the judge may reject the complaint outright. If there are indications of a possible offence, the judge issues the order opening preliminary proceedings and the investigation begins.
What Happens During Preliminary Proceedings?
Once preliminary proceedings are opened, the investigating judge directs the investigation with the aim of clarifying the facts and determining whether there is sufficient basis to bring charges. During this phase, the court may carry out a wide range of investigative actions:
Statements of Suspects and Witnesses
The judge may summon both suspects and witnesses to give statements. The suspect has the right to remain silent, to refuse to answer certain questions, and to be assisted by a lawyer at all times. Witnesses, by contrast, are obliged to testify truthfully, subject to certain legal exceptions.
Expert Reports and Technical Evidence
Where specialised knowledge is required, the judge may appoint experts (forensic doctors, accountants, engineers, IT specialists, etc.). These reports can have a decisive impact on the case, and the defence may challenge them or appoint its own experts.
Searches and Interventions
The judge may authorise searches of premises, interception of communications, analysis of bank accounts, or other measures affecting fundamental rights. These require a reasoned judicial order and must meet legal requirements; otherwise, the evidence may be declared invalid.
Precautionary Measures
The judge may impose measures such as pre-trial detention, passport withdrawal, travel restrictions, periodic court appearances, or bail. These must comply with principles of necessity, proportionality, and subsidiarity.
Rights of the Suspect During Preliminary Proceedings
Anyone subject to preliminary proceedings is entitled to a set of fundamental rights that must be respected at all times:
- The right to be informed of the alleged facts and their rights before giving a statement
- The right against self-incrimination and not to confess guilt
- The right to remain silent, wholly or partially
- The right to appoint a lawyer and consult with them beforehand
- The right to access the case file (unless secrecy has been declared)
- The right to propose investigative measures
These rights are essential safeguards, and exercising them properly can be decisive for the outcome of the case.
How Do Preliminary Proceedings End?
Preliminary proceedings may conclude in three ways:
Dismissal (Discontinuance)
If there is insufficient evidence, the facts are not criminal, or liability has been extinguished, the judge issues a dismissal order (either provisional or final). No criminal record is generated.
Opening of Trial Proceedings
If there are sufficient indications and the prosecution files charges, the judge orders the opening of trial proceedings. The case is transferred to the competent court, and the suspect becomes formally accused.
Transformation into Ordinary Proceedings
If the investigation reveals that the offence is more serious than initially thought, the case may be converted into summary proceedings under the ordinary procedure.
Why Is It Essential to Have a Lawyer From the Outset?
A common misconception is that legal representation is only necessary at later stages. This is a serious mistake.
Preliminary proceedings are where the foundations of the case are established. Evidence gathered, statements made, and decisions taken during this phase will determine the course of the proceedings.
A specialised criminal lawyer can:
- Ensure the investigation respects legal limits
- Propose favourable evidence
- Challenge unlawful decisions
- Prepare the suspect’s statement
- Build a coherent defence strategy
Early legal intervention is not a luxury—it is a strategic advantage.
Frequently Asked Questions
If I am notified of preliminary proceedings, am I being investigated?
Not necessarily. You may be involved as a witness, victim, or affected party. If your role is unclear, consult a lawyer.
How long can preliminary proceedings last?
The law sets indicative timeframes (six months, extendable), but in practice they may last longer, especially in complex cases.
Can preliminary proceedings be opened without my knowledge?
Yes. At early stages, investigations may be confidential. You will be notified when your participation becomes necessary.
Do preliminary proceedings appear on criminal records?
No. Only final convictions are recorded.
What is the difference between preliminary and urgent proceedings?
Urgent proceedings relate to fast-track trials for straightforward cases, while preliminary proceedings follow a more extended investigative process.
