The 4 differences between dismissal and file

The judiciary is one of the three main powers emanating from the state, who is considered impartial and who is dedicated to dispensing justice in accordance with the laws. Of course, there are many existing judicial processes, but nevertheless it is not always possible to pass a sentence. Sometimes it is necessary to end or paralyze the procedure followed.

In this sense, it is more than likely that on some occasion you have heard of a case that has been dismissed or archived. These concepts can be confusing if we don't know what they refer to, and it is even likely that we think that they are two words to express the same thing. However, this is not so.

What are they and what are the main differences between dismissal and filing? We are going to see it throughout this article, based mainly on the Criminal Procedure Law.

• Related article: "Legal Psychology: the point of union between Psychology and Law"

Dismissal: basic concept

The name of dismissal is that situation in which it is determined

the completion or cessation of the judicial process, be it provisional or definitive, generally due to the absence of sufficient evidence or indications for its continuation. It is an atypical way to end a criminal process since a sentence is not issued and a decision or judgment is not reached.

It does not imply that the case is closed forever or that it ceases to be investigated, but the criminal process is paralyzed since there are no elements that allow their action on the case.

It must be taken into account that there is not a single type of dismissal, but that at least two main ones: the free and provisional dismissal, the total dismissal and the dismissal partial.

The free dismissal of a case implies that the process is paralyzed indefinitely, and is carried out in all those cases in which there are no indications or rational suspicions that the events that give rise to the process have occurred judicial. In other words, when there is no evidence and indications that allow the interest of persecution to be aroused in fact judged. Also when what is being judged does not constitute a crime, that is, when what happened in the case is not included and punished in the Penal Code of the country.

A third possibility that a free dismissal of a case is decided occurs when the accused or investigated have no responsibility for the event judged and are innocent or cannot be punished.

Regarding the provisional dismissal, this is a type of provisional suspension of the process that is carried out when the crime or case refers to events in which the commission of the crime has not been justified and proven but nevertheless there are reasonable and plausible indications of it, or when despite the certainty of the crime, the evidence against the defendant is not strong enough to be able to identify the perpetrator, despite the existence of suspicions and indications at the regard.

In addition to that, when judging an act with more than one defendant, the dismissal that is carried out can be total or partial regardless of which of the two types of dismissal it belongs to. The total would imply that the dismissal would affect all those involved, while the partial I would refer to the fact that a part of the defendants have seen their case dismissed but others continue the process judicial.

The dismissal implies that the case and the evidence are classified and archived, but in the event that evidence appears and pertinent indications and not taken into account at the first moment of the process and the court (whether the same or another) considers it relevant, is it possible to reopen the case.

File a court case: what is it?

Regarding the filing of a case, on this occasion this term refers to the physical and material act or activity through which classify, document and save the set of indications, evidence or actions carried out during or related to the completion of a judicial process.

In other words, we are dealing with an effect or consequence of the completion of the procedure in which everything is put in writing and detailed. occurred both at the level of evidence and indications as well as the procedures carried out, so that an order of the case is formed and they are kept in a archive.

Main differences between dismissal and file

Dismissal and filing, as we have seen, are closely related and in fact they refer to and are linked to the same situation: the completion of the processing of a criminal proceeding, even if temporarily.

However, this does not imply that they are exactly the same, but rather that it is possible to find some differences between both concepts. Among them are the following.

1. decision and action

The first and most obvious of the differences between dismissal and filing of a case is that they do not refer to the same concept or reality.

The dismissal is the decision or the fact of stopping the process, while filing the case literally means a direct action in which the set of actions and elements linked to the fact judged are classified and put to good collection in order to comply to cease or stop the process and carry out said termination.

2. cause and consequence

Another possible difference is found in the fact that actually one is a consequence of the other. Specifically, the filing of the case is carried out as a consequence of the issuance of the order of dismissal issued by the judge, which is the cause of the first.

3. They don't have to go hand in hand

Dismissal and archiving make it clear that they do not have to be the same if we take into account that although the dismissal does have the consequence of the case being archived, there are other possible resolutions that will result in this file being closed without having to rule the dismissal of the case.

4. one modifies the other

For a case to be dismissed implies that the case is archived. However, given the appearance of new evidence, a case with provisional dismissal may be reopened. In this case, the case is no longer archived.

However, for this it will always be necessary for the dismissal to be lifted and not the other way around.

Bibliographic references:

• "Order of the Provincial Court of Barcelona of January 15, 2015, FJ 3º" (PDF). Judiciary of Spain. January 15, 2015.