Circular 2/2022, of December 20, on the extraprocedural activity of the Public Prosecutor’s Office in the field of criminal investigation.

On Tuesday of last week, December 20, the Attorney General of the State, published Circular 2/2022 on the extraprocedural activity of the Public Prosecutor’s Office in the field of criminal investigation, which replaces Circular4/2013, of December 30, on Investigation Diligences.

The main objective of the aforementioned Circular is to establish clear and concrete guidelines in relation to the performance of the Public Prosecutor’s Office in its investigative activity. As stated in the body of the Circular itself, the extraprocedural activity that the Public Prosecutor’s Office has been developing through its investigative proceedings constitutes the prelude to the procedural model that the pre-legislator has been trying to promote for years by replacing the judicial investigation with an extraprocedural investigation led by the Public Prosecutor’s Office and, as a consequence, adds that it is advisable, therefore, to offer a unitary and systematic treatment to the different forms of extraprocedural activity of the Public Prosecutor’s Office in order to mitigate the scattered doctrinal development that currently exists on this matter.

Therefore, it is clear that the will of the State Attorney General is to organize and develop the capabilities of the extraprocedural investigative activity of the Prosecutor General’s Office.

On this basis, two aspects of relevance in the area of Compliance should be highlighted: on the one hand, the treatment of anonymous complaints; and, on the other hand, the assessment of evidence obtained unlawfully by private individuals.

Firstly, and in relation to the treatment of anonymous whistleblowing, the Circular highlights the notable and growing use of new technologies and their direct relationship with the increase in anonymous whistleblowing. Thus, it refers to the use of new technologies as a vehicle for the transmission of criminal news. In addition to this increase, according to the doctrine, there is the consolidation of a social trend characterized by a singular commitment in the execution of tasks of assistance and collaboration with the Administration of Justice.

In addition, the Circular underlines that the lack of protection against possible reprisals is the main reason why people who become aware of irregularities in their organization do not report the fact. Therefore, anonymous whistle blowing is configured as a useful tool to enhance collaboration with Justice.

Consequently, the State Attorney General, in his intention to encourage the filing of reports that may facilitate the discovery of crimes committed within organizations, states that regardless of any irregularities of a formal nature that may be present in the complaint filed with the Public Prosecutor’s Office, nothing shall prevent its admission for processing and the consequent initiation of the appropriate investigative proceedings when the facts reported appear to be criminal in nature and present indications of plausibility.

Secondly, although the Circular mentions that, generally, the Courts have excluded evidence obtained by a private individual in violation of fundamental rights, the Attorney General of the State pronounces himself in relation to the necessary weighting of the value that can be given to a source of evidence, even if it has been obtained unlawfully.

Therefore, and following Constitutional Court Judgment 97/2019, of 16 July, he sets forth the parameters that the Prosecutors must take into consideration when assessing evidence obtained by a private individual unlawfully. By way of example, the result of the action and its impact on the core of the violated rightor the risk of promoting practices that in the future may compromise the effectiveness of the fundamental right at stake should be taken into account.

In this context, it places special emphasis on the parameters to be considered when assessing those recordings of conversations when they contain an acknowledgment of the facts by the suspect.

In summary, by means of Circular 2/2022, the Attorney General’s Office clarifies and establishes the criteria that should govern its extraprocedural investigative activity, which, as has been analyzed, in some aspects also has an impact on Compliance matters.

The text of the Circular is available here.


Compliance Department of Molins Defensa Penal.

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