The judicial power is one of the three main powers emanating from the state , which is considered to be impartial and dedicated to imparting justice in accordance with the law. Of course, there are many existing judicial processes, but nevertheless, it is not always possible to pass a sentence. Sometimes it is necessary to terminate or paralyse the procedure followed.

In this regard, it is more than likely that you have heard of a case that has been dismissed or filed. These concepts can be confusing to us if we don’t know what they mean, and we may even think they are two words for the same thing. However, this is not the case.

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

No need for a basic concept

A situation in which it is determined that the judicial process has been provisionally or definitively terminated or stopped , generally due to the absence of sufficient evidence or indications for its continuation, is called a dismissal. This is an atypical way of ending criminal proceedings since no sentence is passed and no decision or ruling is reached.

This does not mean that the case is closed forever or that it is no longer being investigated , but rather that the criminal process is paralyzed since there are no elements that would allow it to act on the case.

It should be noted that there is not only one type of dismissal, but at least two main types can be found: the free and the provisional dismissal, the total dismissal and the partial dismissal.

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 facts that give rise to the judicial process have occurred. In other words, when there is no evidence and indications that allow the interest of persecution to be aroused by the fact that it has been judged. Also when what is judged does not constitute a crime, that is, when what happened in the case is not included and punished in the country’s Criminal Code.

A third possibility of a free dismissal of a case is given when the accused or investigated do not have responsibility for the event being judged and are innocent or cannot be punished .

With regard to the provisional stay of proceedings, this is a type of provisional stay of proceedings that is carried out when the offence or case refers to events where the commission of the offence has not been justified and proven but there are nevertheless reasonable and plausible indications of it, or when despite the certainty of the offence the evidence against the accused is not strong enough to identify the perpetrator despite the existence of suspicions and indications in this regard.

In addition, when an act is tried with more than one defendant , the dismissal may be total or partial regardless of which of the two types of dismissal it belongs to. Total would imply that the dismissal would affect all those involved, while partial would mean that some of the defendants have seen their case dismissed but others are continuing the judicial process.

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

Filing a court case: what is it?

With regard to the filing of a case, on this occasion this term refers to the act or physical and material activity through which the set of evidence, proofs or actions carried out during or relating to the completion of a judicial process are classified, documented and saved .

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

Main differences between dismissal and filing

Dismissal and archiving, as we have seen, are closely related and in fact refer to and are linked to the same situation: the completion of the processing of a criminal case, even if it is temporary.

However, this does not mean that they are exactly the same, but that it is possible to find some differences between the two concepts. Among them, the following stand out.

Decision and action

The first and most obvious difference 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 paralyzing the process, while the filing of the case literally implies a direct action in which all the actions and elements related to the judged fact are classified and put in safekeeping in order to comply with the cessation or stop of the process and carry out such termination .

2. Cause and consequence

Another possible difference lies in the fact that in reality one is a consequence of the other . Specifically, the case is filed as a result of the judge’s order of dismissal, which is the cause of the first one.

3. They do not have to go together

Dismissal and filing make it clear that they do not have to be the same if we consider that while dismissal does result in the case being filed, there are other possible resolutions that result in the closing of this file without the case being dismissed.

4. One modifies the other

When a case is dismissed, it means the case is filed. However, when new evidence comes to light, a case with a provisional dismissal can be reopened. In this case, the case is no longer filed.

However, this will always require that the dismissal be lifted and not the other way around.

Bibliographic references:

  • “Order of the Provincial Court of Barcelona of 15 January 2015, FJ 3º” (PDF). Judicial Power of Spain. January 15, 2015.