In the last century we witnessed horrors and violations of all genres, and therefore there seems to be consensus among jurists that the criminal process, as an instrument of justice, must meet minimum conditions as to who judges, who judges, how he judges, What should be the intervention of the procedural parties, what more effective channels of challenge should be established, that is, all the guarantees that make up the so-called fair process, which is none other than the one that causes security with protection, and protection to all those who link to the process.
It is contradictory that in the twenty-first century, after in the past, man went to the Moon and explored other planets and at the end of the same century technological advance, electronics and globalization in communications have changed society in its As a whole, the majority of nations continued to struggle to establish and prop up institutions in the criminal process whose origins date back to the Late Middle Ages of Feudal Economic Formation.
This is largely explained by the fact that the criminal process is intimately linked to the predominant political conception in society and as a state instrument the criminal process can fulfill purposes other than justice. Hence its slow evolution, in which there have been marked setbacks, such as those carried out throughout the last century by totalitarian regimes that obscured and stained that period.
For a modern penal system to have humanistic objectives, it must be permeated with the principles of Due Process.
The expression due process, in addition to being the most widely used, has a wide, clear and deep meaning. It is not just that the process is legal, but that it is adequate, appropriate, in accordance with the law, what it should be, the fees through which it must travel without deviations, that it be a fair process. But that the absence of violations of the Law distinguishes it above all.
That just process is only one as one is the dignity of man, and that process must be guaranteed by all societies according to their own particularities. It is not about standardizing the modus vivendi of nations or destroying the culture of each people, without which national identity is impossible, it is about citizens as passive subjects of criminal prosecution, being respected as such wherever they may be. be prosecuted.
Also in no way is to follow a route established by a hegemonic culture, since the dignity of the human being is not the heritage of any civilization, geographic area, or country in particular.
A danger is in the shadow of the criminal process and is none other than forgetting that it is an instrument of justice and not an instrument of impunity. Not taking into account that the process must not only provide guarantees to the accused, but must also be a means of social defense. In this sense, success depends on finding the point of balance, the just Aristotelian medium. Guarantees can be a vice, and authoritarian links are used to discredit it.
The real truth, tutelary condition of interests of due process, is of high rank for the community and there can be no free disposition of the parties, there can be no transactions, subjectivism, presumptions, unfinished and ill-treated investigations, in short it should not nothing dark should always be clear and transparent.
In this sense, the criminal process requires an adequate system of evidence, the only means of achieving the truth. A regime that defines that it can be tested or thema probandi, by natural persons who can be tested, by the means of evidence provided in the instituted procedure, and by the finished system of assessment of the evidence, conducting all this to the truth in the most direct, clear and accurate way.
Unlike what happens in civil proceedings, the rule in criminal proceedings must be that no fact is exempt from evidence, not even the confessions admitted by the accused. There can be no presumptions of fact, except those established and generated from the evidence.
Despite this, I consider that the evident and notorious facts not questioned by any of the parties should be exempt from evidence because it is unnecessary, and what is not necessary in the criminal process is an obstacle to prompt justice, for all that This implies for the psychological state of the accused and the clarification of the truth.
On the other hand, the number of witnesses that exist in many proceedings has no reason to exist in a system of evaluation of evidence based on criticism, which requires the court to repair all relevant circumstances by weighing the different evidentiary elements.
The old and present controversy on the freedom of the evidence must be settled with a view to the evidentiary truth of the criminal process. If, as Pedro Calamandrei tells us and I quote… Process is the series of activities that must be carried out in order to obtain a court order… End of quote. Therefore, then, there cannot be anything that prevents access to the real truth, which in the criminal process translates into access to justice, and then everything that is evidentiary must be admitted.
Despite this, whatever the means of proof, nominated or unnamed, expressly or not expressly provided by law, must respect human dignity in all aspects that it illuminates. The assessment of lawful evidence should not be reduced to that of evidence admitted by law, but should be identified with that of evidence that does not harm subjective rights, whether or not they are recognized in positive law.
The procedure of proving facts, and the way it is proved, is of paramount importance to due process. In this procedure in several countries the position of the procedural subjects differs substantially.
The fair process differs in the jurisdictional function by geographic area and countries, in one it has the investigative power, that is, the power-duty to investigate for itself all the facets of the imputed fact, including the reasons for the defendant's discharge, in others the procedures is a judge who practices them. But along with this power, it has duties vis-à-vis the parties, especially vis-à-vis the accused, and that is to offer and facilitate the provision of evidence, access to that provided by the counterpart and criticism of it. In others it does not have instructional power, only evaluative of the evidence provided.
The Public Prosecutor's Office has the power to help obtain the real truth, even if it favors the accused. And also the power to support the accusation. As it is a public body, it has the power to provide proof of charge. But this cannot mean that this power can be lawfully set aside by the court or judge, since the law as such has been designed so that the process is dialectical, where the contradiction between parties prevails, the way to reach the material truth.
For his part, the person persecuted in a legal or fair process, has only the right in relation to the evidence, and not with the rest of the parties and, of course, protected by the principle of the presumption of innocence that exempts him from the evidentiary weight.
This does not evade the accused, who once the accuser has supported and established the imputational evidence, he has the right to deny the charges.
Although in this case it should be clear that the accused does not have to fully refute or deny the incriminating evidence to avoid conviction, it is only enough to give rise to doubt so that acquittal is appropriate under the principle of in dubio pro reo, through which the administration of justice prevails before the unjust sentence of the innocent.
The rights of the defendant with regard to the evidence constitute guarantees among which this, the right to know the evidence of charge in order to refute it. This evidence in the properly accusatory prosecution systems is disclosed to the person at the time that he acquires knowledge of the complaint and in those of an inquisitive court, when he is part of the criminal process due to some precautionary measure imposed. Here we see three fundamental elements that occur in a procedural act, namely: complaint, supporting evidence and rights that the inmate assists in relation to the complaint. The absence of one of these three elements is enough for there to be helplessness. For such reasons, in proceedings that have inquisitive courts, there is no doubt that the accused, until he is a party, is defenseless.
Although the accused is not obliged to prove his innocence, as we have already stated, he does have the right to do so, and this right is violated when the court rejects the evidence offered by the accused. The courts must be ready to receive all the evidence offered by the defense, even the one considered irrelevant or useless. With this, it achieves that justice is effective and only the sharpness and prudence of the judge can take the administration of justice to a safe place.
The right to evidence of the accused is also the right to control the legality of the evidentiary procedure. The test should not be exercised without the parties knowing it, except that which its practice requires special conditions, such as the different types of expert opinions. But the result of these, with their arguments, must be put to the consideration of the parties without delay. Another exception results from the need to preserve the respect that people's modesty and privacy deserve, as is the case with certain crimes against honor and sexual offenses and also in certain investigative investigations.
Finally, the defendant has the right to analyze the evidence and refute or highlight it as he considers it.
The defender has the obligation to represent his client, taking into account that he has two purposes. The primary duty to defend its sponsored and the defense of the social interest. The judgment of partiality should not be distorted, the defense to the end, the justification, in no way should favor impunity for the crime, but rather loyalty to its client, which must be revealed by the interest placed in offering and having the proof of defense, in never delivering evidence that incriminates his defendant, in fully refuting the evidence of charge, so that showing the weak points of this forces the court to make a rational weighing of it.
The top echelon of an evidentiary regime that thinks about achieving the truth, that seeks due process is a rational system of evidence flow. Only by freeing the Court from the system of legal evidence and from the great temptation for arbitrariness offered by the system of conscience or intimate conviction, is it possible to guarantee the correct administration of justice.
In order for the evidence to be correctly assessed within other factors already stated, the principle of immediacy must be given between the court and the parties, which can only be achieved through the principles of orality, concentration of procedural acts, and debate criminal, combining with the physical presence of those who are in charge of criticizing the evidence or freely evaluating it.
The episode of the fair trial, even on a limited aspect such as that of the tests, will never be able to say the last word. Due process is an ideal that some men of great integrity try to reach. It is up to each generation to reinforce and broaden the concept, enrich it, refine it, refine it, while maintaining validity and faith in the administration of justice.
Bibliography
Sanguinio Sánchez, José María. Due Process Guarantee. Colombia.
Carrara Francisco. Program of the Corso di Diritto Criminale. 1859.
Jiménez de Asúa, Luís. Criminal Law Treaty. Editora Losada. 1959.
Mir Puig, Santiago. Fundamental Problems of Criminal Law. Editora Tecno. Madrid. 1982.
Tijerino Pacheco, José Maria. Due Process and Criminal Evidence. Conference. Peace. Bolivia. 1992.
Mendoza Díaz, Juan. Ob.Cit. 111.
Montero Aroca, Juan. Jurisdictional Law. General Part, Ed. Tirant lo Blanch. Valencia. 1997. Seventh Edition. P.142. Quoted by Juan Mendoza Díaz in ob. Cit. P. 65.
Arranz Castillero, Julio Vicente, quoting Manuel Entrampes. Evidence in criminal proceedings: General. In topics for the study of criminal procedural law. Collective of authors. Ed. Félix Varela. Havana 2004. p. 85.
Manuel Jaén Vallejo, Professor of Criminal Law
University of Las Palmas de Gran Canaria (SPAIN)
The principles of evidence in the Spanish criminal process.
