The right to defense in the summary phase of the criminal process

Brief history of the right to defense

Voltaire, a philosopher of the Enlightenment and one of the voices who most vigorously criticized the inquisition's system of prosecution, in his work Comments on the book "Of crimes and penalties", described the criminal proceedings of his time:

“If a man is accused of a crime, you start by locking him in a horrible dungeon; you do not allow the one that has communication with anybody; You load him with irons, as if you have already found him guilty. The witnesses who deposited against him are secretly heard. He only sees them for a moment in the confrontation; Before hearing your depositions, you must state your reasons for failing them; you have to circumvent them; you have to name at the same moment all the people who can support these reasons; his challenges are not admitted after reading the depositions. If you get to make the witnesses see, or that they have exaggerated the facts, or that they have omitted others, or that they have deceived in the details, the fear of torture will make them persevere to their detriment.If the circumstances that the accused has explained in the interrogation are different in different ways by the witnesses, this will be enough for ignorant or prejudiced judges to condemn an innocent. ”

In conclusion he pointed out: "Between us everything is done in secret…". Later he formulates a group of questions that by themselves say a lot about these criminal procedures, Voltaire asked himself: Who is the man whom this procedure does not scare?…. How is it possible that such an interesting thing as confrontation is arbitrary?… Why in some countries are sentences never motivated? Is there shame in giving the reason for a trial?

These were the times of the Middle Ages, historical moments in which, from a macro or general perspective, the State considered itself legitimized and derived from divine power and the individual assumed the position of unconditional subject to it. All this was projected in repressive law in an unlimited search for historical truth, in a search for judicial truth that was established as a fundamental goal of the process to come to impose a duty of truthfulness that implied all the subjects involved in it, including the accused himself. With this transpersonal philosophy, one did not pay attention to the costs or the means used to find out the truth, its cruelty did not matter but its effectiveness.

Because of the similarity with our work regarding the subject at hand, we brought this passage from the aforementioned Illustrated, from that reality lived at that time, tempered to our times and to our system of prosecuting, regarding “The Right to Defense of the Accused o Suspect in the Investigative or Summary Phase of the Criminal Process ”.

Chapter I

Regarding the subject of our work, it can be said that the position of international doctrine is of a majority consensus regarding the need for openness to other ways of understanding and attending to the issue at hand.

In recent years, there has been room in the jurisprudence of the Supreme Court and in the Constitutional Court of Spain, for the probative validity of acts carried out during the preliminary investigation, even if they do not meet the requirements of early or preconstituted evidence, provided that they have existed for the parties the possibility of submitting them for debate at the oral hearing (See Judgments 64/86 and 137/88 TC and dated 24-2-87, 9-5-88 and 5-12-88 of the 2nd Chamber of the TS of Spain.

The proceedings of the preparatory phase are always recorded in writing, a file is formed with them and they are reserved (secrecy) so that not everyone can have access to them and even the accused, only when he acquires the status of “party ”In the process, he can by himself or through his defense attorney have access to the file containing the summary records.

The issue lies precisely in the persistence of institutions that gave life to such external forms, based on the principles and conceptions on which the inquisitive system of judging was based, that is, the official nature of the process and the absence of contradiction between parties. in this stage. Indeed, since, as the Argentine prosecutor Julio BJ Maier points out, the State expropriated from society the power to promote action for crimes, after having previously monopolized the power to judge the facts (2) entrusting it to specialized bodies, a new stage in the procedure, non-existent in a predominantly adversarial criminal system and as yet unknown in the civil process, aimed at collecting the necessary material to decide whether or not to bring the matter before the Courts,practically without intervention of the offended, or with a subsidiary or subordinate participation.

"The transformation consists, basically, in expropriating from the citizens the power to react against the offender and order certain organs of the State to proceed ex officio (per inquisitionem), without waiting or attending to the will of individuals (per accusationem), on the one hand and in instituting punishment and Criminal Law in general, as a power of the State (without a doubt, the most vigorous and strong weapon) for the social control of the inhabitants ”. Maier, Julio BJ, Argentine Criminal Procedure Law, Volume I, Vol. B, Page 533.

When the activity of searching and collecting evidence and indications to demonstrate a past event became the exclusive faculty of State organs, such activity was made official and those organs were granted powers that the injured party did not possess and that it was not conceivable that they could be grant to citizens individually, who, at most, could request their exercise to the courts. In this way, the investigative body (judge, prosecutor, inquisitor, police, etc.) could require statements, even under the legal injunction to abide by the truth, carry out occupations and kidnap objects, order the practice of other actions,inspect the place where the events occurred or register a private address or any other place and adopt measures -or request them from the judicial authorities- to avoid the escape of the alleged perpetrator.

Leaving aside the extremes to which the so-called inquisitive procedure went as regards the limitation of the defendant's rights, which became a true “object” of the procedure, it turns out that even today the state bodies responsible for the function of prosecuting crimes or to investigate them to prepare the exercise of criminal action, they enjoy certain prerogatives that grant them a privileged position in the process, while the accused, although his right to defense is recognized, does not generally have a level playing field in his position.

Regardless of the possibility of providing evidence or requesting proceedings or making any other request, obviously the accused or the accused, even assisted by various attorneys and their assistants, will never be on equal terms with respect to the state machinery designed for investigation and promoting justice in the face of offenses constituting a crime.

In this regard, the Spanish prosecutor Leonardo Prieto Castro points out that in this particular there is a difference between the criminal and the civil trial because, “in this case, originally, only plaintiff and defendant exist and, furthermore, the distinction of positions, responds to its essence, while it is not very clear that in the prison, in the case of the right to punish the State, such positions exist ”Issues of Procedural Law, Pages. 289-290 and adds that “We deliberately use the concept of the criminal process, avoiding that because if this term is perfectly applicable in other orders of Procedural Law, it is not completely clear or peaceful that in the criminal process there are parties with the same meaning than in those others… In the so-called phase of (our current preparatory phase N / A) it will be difficult to talk about them,every time that the protagonist that is taken into consideration, other than the judge, is a person who is attributed with the commission of an act typified by law as a crime… ”Criminal Procedural Law, Pages. 109-110.

On the contrary, by virtue of this same principle, the accused is not obliged to defend himself or provide evidence of his innocence, so by assuming a passive position in this regard, he would exclude, at this stage, as long as the accusation is not formalized, the element contradictory.

But even more, practically in any criminal justice system, inside or outside the normatively regulated process, the phase of investigation of the facts and collection of evidence and indications can be carried out, for a time at least, behind the back of who could be responsible and without the latter even knowing that such an investigation exists. This generally occurs when an alleged perpetrator has not been identified; but likewise, once the possible perpetrator has been determined, generally there is no established in the procedural laws a term from which the Instructor, Prosecutor or other actor, is obliged to instruct the alleged culprit from the accusation and can do so, for example, when you have already obtained all the possible incriminating material,This would greatly limit the possibilities of entering into controversies regarding the object of the process.

The criterion of the non-existence of parties in the criminal process was followed for many years by the Soviet prosecutors, although extending it to all stages of the process, which does not correspond to the characteristics of our procedure. Today, Russian criminal prosecutors have largely abandoned this position and defend, rediscovering eighteenth-century liberalism, the thesis of the existence of "parties" throughout the criminal process.

The most important thing in the absence of contradiction and equality at this stage of the process, is the official nature of the criminal process: the official who has the mission to collect the evidence and evidence to prepare for the decisive phase of the process, acts by mandate of the Law, in accordance with the principles of Legality and Objectivity and either an Examining Judge or an Instructor belonging to a non-judicial body.

As Maier points out, Criminal Procedure Law is “… an authoritarian process, in that all its functions, in more or less, are attributed to State organs that exercise their criminal power, either criminally prosecuting, or acting criminal law in itself… The criminal process is, in reality, an official instrument for the State to apply its criminal power, a pure state realization of the criminal power, for which only certain limits are established in homage to individual human dignity… On the contrary, the civil process is a parts process,understanding for this reason a process dominated by the competing private interests (even when the State demands or is sued) whose representatives are on an equal footing with respect to their powers and duties and the Court only fulfills the State function of peacefully solving conflicts social brought before him… "

Commenting on the current reformist trends in Criminal Procedure Law, the Spanish professor Juan L. Gómez Colomer, explains that among the reforms that have already been carried out in some countries is the “attribution to the Prosecutor's Office of jurisdiction to instruct the criminal cases, replacing the investigating judge, without prejudice to the occasional intervention of the latter when necessary "Gómez Colomer, JL" The instruction of the criminal process by the Prosecutor's Office: structural aspects in the light of comparative law "Magazine of Criminal Sciences of Costa Rica, year 9, No. 13 August 1997, page 37. The same Spanish professor of Criminal Procedure Law Teresa Armenta Deu also addresses this issue in the article “The criminal process: new trends, new problems” pp. 19 and following.

This unequal situation of the accused arises from the eminently inquisitorial antecedent of the preparatory phase in the criminal process, when the accused subject to an imputation did not even have the right to know specifically what he was accused of.

When the inquisitive procedure was reformed to provide it with greater guarantees, it was determined to offer these to some extent to the accused subject to provisional detention and later it was extended to any accused who, due to the accumulation of enough evidence against him, came to be considered as a defendant, which was a special category of the accused to which, as in our current procedure with the insured with any precautionary measure, the status of procedural party was recognized. The criterion that part of the doctrine maintains for such procedural inequality,It is based on the fact that - as argued in the explanatory memorandum of the Spanish Criminal Procedure Law - the offender takes advantage of state institutions by having committed his offense surprisingly and having acted with the greatest possible interest in not leaving traces of his act Therefore, to level the situation, the persecution body must act without its possible interference, at least for a time.

Chapter II

Regardless of the fact that both in the Spanish Criminal Procedure Act of 1882 that we received in 1888, as well as in subsequent reforms that were made in Cuba and in the procedural laws that replaced it until the current one, it was accommodating in the phase preparatory or summary of the process to some methods or "principles" of the accusatory system, there is no doubt that the institutions and forms that correspond to the inquisitorial procedure continue to be pre-eminent in this procedural stage.

Concept: According to article 104 of the Criminal Procedure Law, “The preparatory phase constitutes the proceedings prior to the opening of the oral trial aimed at finding out and verifying the existence of the crime and its circumstances, collecting and preserving its instruments and material evidence and to practice any other diligence that does not admit delay, so that they allow the legal classification of the fact and determine the participation or not of the alleged perpetrators and their degree and ensure, where appropriate, the person of these theoretical framework.

In accordance with the aforementioned concept, we can conclude that any action of the process carried out before the oral trial is part of the preparatory phase. Although in a broad sense we can consider that all this stage of the process, prior to the view of the Cause, effectively has the purpose of preparing the oral trial, which is the decisive phase of the process, in fact the previous investigations have as their own purpose to determine whether There is or is not a criminal act and those responsible and provide the necessary elements to decide whether to pursue the criminal action or not and, where appropriate, serve as a basis for the punitive claim that is raised before the court.

Given that at the beginning of this chapter we affirm that features and institutions of the so-called inquisitive system predominate in the preparatory phase, it is convenient to dwell on this in particular before analyzing the regulation of this stage of the process in our criminal procedure law.

Notwithstanding this affirmation, it cannot be totally excluded that the judge, in due course, takes into account the content of some diligence of the preparatory phase to help form his conviction or the foundation of it, as long as, of course, such diligence, record or other record has been made in compliance with the established legal formalities and there has been the possibility of submitting it to the trial for examination and debate by the parties, that is, the accusation and the defense.

The preparatory phase in our ordinary procedure is divided into three periods:

The first period of them is the one related to the first actions, of preliminary investigation or as it is also called, of primary investigation, which is the one that elapses since the presumably criminal act is known by the authority or any of the Police bodies, until such time as it is decided, where appropriate, to initiate the preparatory phase file.

The second period is related to the substantiation of the preparatory phase file, which begins when the existence of a crime that is prosecutable ex officio has been verified, which has a sanction of more than one year of deprivation of liberty or a fine of more than three hundred quotas. and its alleged author is known, who has also been located and who concludes when the Instructor declares the file terminated.

The third period is the one that elapses from the closing of the preparatory phase file until the Prosecutor, if applicable, presents it to the Court with the corresponding petitions. At this stage, the Prosecutor can evacuate the criminal action before the corresponding jurisdictional body, or order the archiving of the proceedings on a provisional basis or request the Court to archive the file if it is final, thus ending the process.

In accordance with the existence of these three periods, the police, the Instructor and the Prosecutor intervene as holders or agents of the public prosecution function in crimes that are prosecutable ex officio, which, in addition, can rely on the assistants to the judicial functions.

On the other hand, there is not and cannot be a true contradictory process at this stage, since the Instructor, the police, the Public Ministry itself, have a legal obligation to act in search of clarification of the objective truth and collect the necessary material not precisely to prosecute a certain person, but to establish the reality of the criminal act and its true perpetrators.

In this way, the accused faces not a partial contender, but an investigative objective of what happened - regardless of whether in practice the subjective elements play a more or less important role in the evaluation of the evidence and the emotional elements Regarding the need to find a person responsible for the facts - who formally has no other interest than material truth and who must record both the unfavorable and the favorable to the accused without the need - theoretically at least - for the latter to request it or indicate what must do, as established in article 2 of the Criminal Procedure Law:

"The officials who intervene in the criminal procedure are obliged, within their respective powers, to record in the proceedings and to appreciate in their resolutions, the circumstances, both adverse and favorable to the accused and to instruct him on the rights that assist him."

Of course, due to another phenomenon of the inquisitorial inheritance of our criminal proceedings, unfortunately the defendant's statement continues to be assigned a higher value than that conceived by Spanish legislators in the last century and which is granted in our Law of Criminal Procedure, which is largely due to the limited possibilities that objectively exist to use investigative resources in equal measure with respect to all punishable offenses and, on the other hand, because it is an elementary reality, which does not escape the foresight of the More modest and inexperienced investigator, that the author of the crime is the one who knows the most about what happened. From this it follows that such a situation is graphically described with the expression that “the suspect is arrested (or requires a declaration) to investigate,instead of investigating to arrest (or take a statement from) the alleged perpetrator.

The judicial police do not act on an equal footing with the accused, who may or may not defend himself to a greater or lesser extent, and cannot conduct the process in its preparatory stage, nor do they have powers of availability over its object.

There are currently strong trends in criminal procedure doctrine and legislative amendments, inspired in particular by the American criminal justice system and by reforms introduced in German legislation since the 1980s, to attribute to the Public Ministry the role of directing and substantiate the pre-trial proceedings. In this case, too, a situation of opposing parties is not created in the preparatory phase - and rather the scarce possibilities of considering it this way in the proceedings that are directed by an Investigating Judge to which the Prosecutor requests actions, in his capacity as party. accuser- because the one who will be the accuser in due course before the court, acts here as inquisitor, that is,assumes the public function of objectively investigating the historical fact that could constitute a crime and justifying, based on these results, formulating the accusation against a certain person (6)

In Cuban doctrine there are also positions contrary to the negative on the existence of legal proceedings in the preparatory phase. For example, CD Eric Pérez Sarmiento stated that “… the possibility of considering“ parties ”with positions defined in the preparatory phase it is a question perfectly resolved in the procedural logic, but which must be materialized in a legislative and jurisdictional political will that puts things in their right place. ” Pérez Sarmiento, Eric: “Study of the preparatory phase in the Cuban criminal process”, Págs. 74 and 75 Legal Review No. 23 April-June 1989. For this author, it is not a question of substance, but of the way in which the procedural rules in force by the Instructors, Prosecutors and Judges are actually applied or not.

In our procedure, the Instructor is responsible for the investigations of the preparatory phase and the Prosecutor, at that stage does not act as a procedural part, but as a guarantor of legality and controller of the activity of the investigation and also has certain decision-making powers regarding to actions that the Instructor must carry out or whose execution requires the approval or decision of the Prosecutor.

The term “confession”, of evident inquisitorial lineage and ecclesiastical and beatific content, which is only used by the LPP in this article and in 481 referring to the abbreviated procedure (accused confessed), has been used by the legislator to give the idea of recognition of responsibility in the facts by the accused. In our criminal procedure, the terms “statement of the accused” are always used to refer to the exposition that the accused can make, at different points in the process, about what is imputed to him.

We add to this analysis crimes against State Security, which have special treatment in all or almost all legal systems, including the Cuban one.

The arrest and assurance of the accused, refers to these proceedings of the preparatory phase, Title IV of his Second Book, with a detailed regulation of the ways of proceeding for the deprivation of preventive liberty of people who appear to be suspected or accused of having committed or attempted to commit a crime, in correspondence with the special importance of the right to liberty and personal inviolability.

In accordance with article 58 of the Constitution of the Republic, the first precept of this Title, with number 241, declares that "No one may be detained except in the cases and with the formalities prescribed by law." In the writing of this norm, when repeating part of the constitutional precept, it would have been more appropriate to refer to the formalities “that this Law prescribes”.

In addition, at the request of the detainee or his relatives, the police or the authority that has him at their disposal, is obliged to report the arrest and the place where the detainee is, as well as facilitate communication between him and his relatives, within the terms and in the manner established in the corresponding regulatory provisions.

In terms of terms, we can generally say that:

The police arrest a person on suspicion of having executed him, the term available to him to carry out the most urgent or important steps and actions, to keep the alleged perpetrator in custody, it is reduced to just 24 hours, or to release him.

The Instructor, when he receives the police proceedings with a detained accused, has a term of seventy-two hours.

The Prosecutor to impose a precautionary measure or release the detainee has a period of seventy-two hours to adopt the decision.

As the law has not defined before this article what are the powers and obligations of the procedural part and taking into account how this situation was regulated in the article itself before the aforementioned modification, it must be inferred that only when the accused acquires this condition "part" in the process, is that it reaches the possibility of appointing a lawyer of its choice and it can also be assumed that if it does not do so, it could nevertheless, personally exercise some of the powers that the law attributes to the defender, which does not it is more than a representative of such a party. For example, it would be absurd to pretend that the accused himself cannot urge on his own that the provisional detention measure be modified and that he have to appoint a lawyer for this purpose.

In relation to the status of "procedural party", it should be clarified that one can appear as a defendant in a trial without obtaining such status in the preparatory phase, when the alleged perpetrator, whether or not he has been arrested, is not subsequently subject to any of the precautionary measures authorized by law. In this case, the rights as a "procedural party", to designate a defender, review the proceedings and propose evidence, are acquired in the procedure provided by the criminal procedure law in article 281, that is, when the Court issues the accusatory document of the Prosecutor.

In the last paragraph of article 247, a reservation of limitation of the powers of this procedural part is indicated, which may be ordered, for reasons of state security, when the precautionary measure of provisional imprisonment is imposed.- The provision in question expresses: “In the resolution decreeing the provisional arrest of the accused may exceptionally be provided, for reasons of state security, that he reserve the proposition of evidence for the procedure referred to in article 281 (qualification process by defense N / A). In these cases, the accused and his lawyer will not have access to the actions corresponding to the preparatory phase of the process while they are being practiced. ”

Regarding this precept, the following elements must be clear:

This is a faculty that can be used only exceptionally and only when imposing the precautionary measure of provisional detention; The subsequent change of this precautionary measure is understood not to change the status of the reserve provided, if not expressly provided; it is applied for reasons of state security, which is not equivalent to any crime against state security, much less in all of them. There may be processes initiated for other crimes in which the disclosure of its contents could affect state security; the only limitations that are imposed refer to the examination of the proceedings and the proposal of evidence, so that the defender and the accused can interview, present documents, request the revocation or modification of the precautionary measures and, where appropriate,resort to resolutions of the Instructor; as this precept is drawn up, the application of this reservation is a strictly individual measure, that is, it affects the accused with respect to which it is available, so that if there are other accused previously in the file, even subjects to the measure of provisional imprisonment, they would not be affected in their rights -which until now they were able to exercise- if the reservation is provided when insuring another accused.they would not be affected in their rights -which until now they were able to exercise- if the reservation is provided when insuring another accused.they would not be affected in their rights -which until now they were able to exercise- if the reservation is provided when insuring another accused.

Self defense

The Organic Law of the Spanish Judiciary of 1870, which was in force in Cuba until the promulgation of the one with the same name in Cuba, of 1909, established, in its article 875, that lawyers who were not registered in the Bar Associations, but that they met the legal conditions, they could defend, in writing or in words, their civil affairs or their criminal cases and those of their relatives within the fourth degree of consanguinity or second of affinity: «When the party meets in his person the quality of part accused and that of a lawyer -Fenech says- can defend herself »The Organic Law of the Judicial Power of Cuba, of 1909, did not include any precept of analogous content to that of the mentioned article 875 of the Spanish law and neither did the Law of Organization of the Judicial System of 1973 (Law No.1250/73) or that of the same denomination of 1977 (Law No. 4/77). However, despite having disappeared the legal basis for the defense of the lawyer by himself, such a form of defense continued to be practiced, to the point of having been admitted in the Moncada trial.

The defense of the lawyer by himself was established by Decree-Law No. 81, of June 8, 1984, which, in its article 4 (paragraph b) establishes that “they may exceptionally practice law, without fulfilling the requirement indicated in subsection b) of the previous article, the jurists who assume the direction or representation of matters related to their own rights, with those of their spouse or with those of their relatives up to the fourth degree of consanguinity or second degree of affinity ».

From all of the above it follows:

Only who is a lawyer can assume his own defense; who is not a lawyer has to be defended by a lawyer appointed by him or appointed ex officio. The request of the lawyer in the sense of assuming his own defense, is formulated by him from the moment a resolution is issued decreeing his provisional prison or imposing on him any other precautionary measure (article 249 of the Criminal Procedure Law) and, in the event that it has not been subject to a precautionary measure, at the time when, with the delivery of a copy of the charges, it is required for the purpose of appointing lawyer for your defense. This request is formulated by simple writing addressed to the instructor if the process is in the preparatory phase or to the Court if it has been opened for oral trial. For the oral trial when the lawyer assumes his own defense,This person occupies the stage corresponding to the defenders and from there acts in the same way as if he were defending another person. The only difference is when making a statement as an accused, for which you must take off your toga and face the Court, in the same way that the other accused do.

Of the Habeas Corpus Special Procedure

The essence of unlawfulness is injustice, for which reason for justice to reign it must be assisted by Law, but this is not everything to build the building of a just society, since although all legal branches inscribe mandatory norms compliance, on multiple occasions they do it in such a way that they deviate from the ideal that the revolutionary legislator welcomes in response to the claims of legality and not by the spirit of the Law, but by the erroneous action of some official in its application, on the basis of responding to simple practical conveniences, which ultimately lead to the need for the law itself to foresee these situations and propose the way to solve them.

Our Constitution, in its Article 58, provides for the possibility of an illegal arrest, hence the legislator in its formulation states: the freedom and inviolability of his person are guaranteed to all who reside in the national territory. No one can be detained except in the cases, in the manner and with the guarantees prescribed by law. ”

This procedural institution, inherited from the Anglo-Saxon tradition, is at the same time a citizen guarantee, endorsed by the most advanced constitutionalist practice, and whose fundamental objective, which at the same time is its very essence, lies in the recognition and protection of freedom and the lives of citizens.

Our Constitution is characterized, precisely, by the establishment of a legal and political system that guarantees the freedom of citizens, and that has been its objective configuration, that is, to achieve an order whose purpose is to guarantee the freedom of citizens as one of its superior values. And in short, the institution of Habeas Corpus is one of the fundamental principles to protect the liberty of citizens, and its natural objective is to bring to justice the people illegally detained.

The foregoing is reaffirmed in criminal legislation, as it is regulated in the Criminal Procedure Law, Law 5 of 1977, in its Book VI, Title IX, Articles 467 to 478, the Habeas Corpus Procedure.

In short, people who suffer an illegal, arbitrary detention, where the legal formalities to deprive him of liberty have not been fulfilled, when he is held for a period longer than that established by law, without respecting the rights established by the Constitution and ordinance procedural, by filing the Habeas Corpus procedure, they will be made available to the competent judicial authority, which in our case will be the corresponding Provincial People's Court, or the Supreme People's Court, which through the articulation of a procedure objectively simple and fast, accessible to all citizens, resolve eventualities resulting from arrests of people, not legally justified.

One of the core issues established in the Habeas Corpus procedure is that no authority can evade judicial control regarding the legality of the detention of citizens, and also the legitimization of a plurality of people to urge this procedure.

Applications for habeas corpus are frequently filed; Once this is admitted, the presentation of the detainee is ordered within the term established by the Law and, at the same time, a report is requested to the authority or official who carried out the prison or detention. However, in most cases, once the authority or official of the habeas corpus procedure has been informed, the detainee is released, thus informing the Court; the doubts are the following:

How does the procedure end once the report stating that the detainee is free is presented? Is it mandatory to hold an oral hearing, even if he is released? In addition to the release report, the Court has to take other steps to verify that You are really free before issuing the resolution that ended this procedure? If the oral hearing does not take place, how does the Court know if you were illegally detained or not? If the Tribunal is convinced that there was an illegal detention, how to proceed?

The Habeas Corpus process will take place if it is requested as stated in article 467 of the Criminal Procedure Law, if during the processing of a habeas corpus process, the Court becomes aware that the person whose illegal deprivation of liberty is alleged is Once released, the activity of the Court is interrupted ipso jure in the state in which it is, without the possibility of issuing a decision, due to the lack of procedural object, which with respect to the habeas corpus procedure, constitutes the existence of a person deprived of freedom illegally. If this knowledge were obtained before the process began, this circumstance would constitute a reason for inadmissibility of the request. Consequently with the exposed:

As it has been stated, the process ends and its file is arranged when the freedom of the person in favor of which it has been activated is known, in any state in which it is found, without issuing substantive resolutions. the hearing had been held, this is not held.If the Court has doubts about the veracity of the report on liberty, it can, with suspension of the processing, carry out any suitable diligence for this purpose, one of which could be to hear the The applicant himself is aware of the freedom by the official report that is sent to him, which, if he has doubts, can prove with the evidence he deems appropriate. believes that a crime may have been committed, you must report it immediately,forwarding testimony of the relevant individuals of the process to the provincial prosecutor.

Some of the principles of the summary or investigation phase

I. Right to defense

The content of this guarantee lies mainly in the following fundamental aspects:

1. The imposition on the accused of the specific object of the facts object of the accusation, in order to know reliably, or at least verifiable.

2. In relation to the above, a judicial system must be guaranteed in which the accused has access to justice effectively, II. Presumption of innocence

III. Attendance of the accused at investigative acts

IV. Right to know what you are accused of.

V. Right to be assisted by defense counsel and self-defense.

SAW. Contradiction and Equality

VII. Right to propose the practice of evidence

VIII. Right not to declare

IX. Respect for procedural terms

Chapter III

Of all the aforementioned topic, 12 interviews were conducted with experts and other subjects, 2 judges from the TSP, 3 judges from the TPP of Havana, 2 judges from the Cerro municipality court, To 5 professors of the UH of the criminal chair.

To 4 instructors from the DSE, and 3 from the National DTI, and 6 instructors from the PNR units visited, At 36 interviews and surveys of defendants and defendants, Of all the aforementioned, in the different Chapters, we ask ourselves several questions:

Is it necessary and required a materialistic, objective, political and legal review of the problems that our work proposes? Can the prosecutor have the plurality of functions and rights and be truly achievable and objective, such as, as commander of the actions of instruction and turn to look for the material truth in the accused or suspect, as stated in Article 2 of the Criminal Procedure Law, ensure that at all times the procedural guarantees of the same, for the protection of the rights of the victim or harmed by crime and by the interests of the State and society? Is the right to defense of the accused or criminal suspect necessary in the investigative or summary phase?

III. Conclusions

Currently, there is a great tendency to seek balance between the parts of the criminal process, from the beginning of the process and throughout its development, as is the case of the adversarial adversarial trial system, where a group of acts can be established that are regulated in law and that interpose the decision of the parties, as well as the guarantee from the beginning of the process of the defense lawyer both appointed and ex officio and this explains the package of guarantees and right that the law reserves for his condition in said process.

The New Criminal Procedure Codes

Below we attach a summary information on some principles and the role of the procedural subjects in the new sanctioned (or projected) Criminal Procedural Codes in the region.

For this annex, the new Criminal Procedure Code for the Republic of El Salvador has been used, approved by the Honorable Legislative Assembly through Decree No. 904 dated December 4, 1996, which has been in force since the middle of the current year; the Organic Code of Criminal Procedure of the Republic of Venezuela that was approved in the first half of 1998; the Code of Criminal Procedure of the Republic of Paraguay approved in 1998; the Draft Law of the Code of Criminal Procedure of the Republic of Bolivia that was approved by the Honorable Chamber of Deputies on September 21, 1998 and is currently pending in the Senate; the Guatemalan Criminal Procedure Code that was implemented in July 1994; and the Criminal Procedure Code of the Province of Córdoba, which came into full force in March 1998.

The Defendant

The Savior. The accused has the right to be immediately and understandably informed of the reasons for his arrest and of the authority under whose command he will be detained; to designate the person or entity to which their capture must be communicated and that the communication be made immediately; to be assisted and defended by the attorney he designates or by a public defender; to be brought without delay within the legal period before a judge or other official authorized by law to exercise judicial functions; to abstain from declaring; not to be subjected to techniques or methods that induce or alter their free will.

Provisional detention must keep the due proportion of the sentence expected. In no case may the maximum penalty provided by law be exceeded, nor may the term of twelve months for less serious crimes be exceeded or twenty-four months for serious crimes, under penalty of incurring criminal liability.

Venezuela. In general, all possible forms of manifestation of the right of defense are agreed upon. Thus, among the most important are the right to communicate with her relatives, a trusted lawyer or a legal aid association, to report her arrest; the right to be assisted by an advocate, which is equivalent to the defendant being able to seek the advice of a lawyer at all times; the exclusion of torture and undue pressure and strenuous questions.

Thus, it is also understood that the accused has the right to remain silent about everything, including refraining from providing data that identifies him, since the burden of proof of the accusation extends even to the extent of having to prove the identity of the accused.

It is established that the preventive deprivation of liberty or its restriction is exceptional, and its application must be proportional to the penalty or security measure that may be imposed.

Paraguay. The defendant will be guaranteed the necessary guarantees for his defense, informing him immediately and understandably, by the national police, the Public Ministry and the judges, what are his rights.

The accused will have the right to declare and to abstain from declaring, as well as to declare as many times as he wants, provided that his declaration is pertinent and does not appear as a means of delay in the procedure. In all cases, the declaration will only be valid if it is made in the presence of a defense attorney. You will not be required to swear an oath or promise to tell the truth, nor will you be subjected to any kind of force or coercion.

The procedural rules that restrict personal freedom, limit the exercise of the powers conferred on the parties or establish procedural sanctions shall be interpreted restrictively.

Bolivia. It is a right of the accused to know the rights that the Constitution, the current international Conventions and Treaties and the Code recognize. The accused, from the beginning of his capture, will have the right to meet privately with the defender.

You may refrain from testifying, and that decision may not be used to your detriment. In no case will the police be able to question the accused, except to verify his identity. The defendant's statements may not be carried out without the presence of his defense attorney.

The application of precautionary measures will be exceptional. When there is doubt in the application of a precautionary measure or other provisions that restrict the rights or powers of the accused, the most favorable to the latter must be followed.

Guatemala. The rights granted to the accused can be asserted by himself or through his defender, from the first act of the procedure directed against him until its completion. If the accused is deprived of his liberty, any authority that intervenes in the procedure shall ensure that he immediately knows the rights that the laws grant him. You can refrain from testifying, without your decision being used to your detriment. You will not be subjected to any kind of coercion, threat or promise, nor will you be charged or retaliated against to obtain your confession.

The provisions of this law that restrict the liberty of the accused or that limit the exercise of his powers will be interpreted restrictively; In this matter, extensive interpretation and analogy are prohibited, as long as they do not favor freedom or the exercise of their powers. The only possible coercion measures are those authorized, they will be exceptional and will be proportional to the penalty or security and correction measure expected from the procedure, subject to strict provisions.

Cordova. The accused is widely recognized the right to material and technical defense and all the guarantees provided for in modern law and recognized by international covenants on human rights. His declaration without the presence of the defender will be void. As a general rule, a "state of freedom" is provided during the course of the process, unless it is essential to deprive it of it to avoid the danger of frustration of the investigation of the crime and the performance of the law. A maximum limit is also set for the duration of pre-trial detention.

Of the Habeas Corpus Special Procedure

This institution, as we have previously explained, as an outstanding contribution of Anglo-Saxon legislation is not unknown, in essence, by our historical legal precedents, since already in the Provincial Pronouncements of the Kingdom of Aragon, a resource called “of manifestation of people ”, Also recognized in the Cortes de León of 1188, in the Fuero de Vizcaya, in the distant year 1164; in the Bayonne Constitutions of 1884 and in the later ones of 1869 and 1876.

The Cuban legal system does not recognize the right to defense of the accused or criminal suspect in the investigation or summary phase, even though the international doctrine of the creators of the inquisitive system in that phase have adopted new positions, as is the case of the Adversarial Accusatory Prosecution System.

It is only in article 249 of the Criminal Procedure Law that the effects of the Right to Defense are defined, procedurally, the imposition of any precautionary measure paired with it. As long as the accused is not insured in relation to his process, whether or not he has declared himself as such, he does not have the right to appoint a defense attorney, or to claim to promote the process, to file appeals, he cannot even examine the proceedings by himself, but, when the resolution decreeing any of the precautionary measures, states this article of the Law, "… the accused will be a party to the process and may propose evidence in his favor…" and later it is specified that "the defender, from the procedural moment to the preceding paragraph refers, you can:

Establish communication with his client and interview him, with due privacy, if he is detained; examine the actions corresponding to the preparatory phase file, except in the case referred to in the last paragraph of article 247; propose evidence and present documents in favor of your client; request the revocation or modification of the precautionary measure imposed on your client.

In addition, it is clarified in the precept itself that the defender may appeal in complaint to the Prosecutor if the practice of any proposed evidence or the modification or revocation of the precautionary measure is denied.

The right to be assisted by a defense lawyer and self-defense

These are two rights, but closely linked to each other. And the first should necessarily entail:

Obligatory nature of the technical defense from the moment a person is considered as accused or imputed, prior to giving a statement in that condition. Presence of a defense attorney, appointed or ex officio, at the time of giving a statement by a prisoner. in all cases this assistance is real, effective and not merely formal Right to freely appoint an attorney Right to communicate privately with your defense attorney

In order to guarantee these rights, it is essential to have a system of organization of the judicial system in which public defenders are truly independent in the sense of possessing high technical solvency, lacking all kinds of pressure of any kind on their functions and sufficient motivations. to assume loyally and efficiently the defense assigned to them.

The accused's right to freely communicate with his defense attorney must also extend to the act of trial, for which he must be at his side with the possibility of consulting him on relevant occasions.

The issue of self-defense, although doctrinally it is generally accepted, it is not the same in the legislative order where the legislator has chosen to establish the obligation of technical defense, prevailing the criterion that although legal aid can be imposed but never excluded, self-defense can be allowed but never imposed.

In our opinion, self-defense is an inalienable right of the accused, but it does not exclude technical defense in cases where it is mandatory, a situation in which the simultaneity of both needs to be regulated.

It was found that the Ordinary process does not enjoy the procedural guarantees desired for the accused, from the beginning of the process. Unanimously, in the interviews carried out, there was agreement on the importance of dealing with the issue, that is, bringing it up for debate and interesting the population, for its political, police and legal culture, as well as for the professionalism and performance of the body with the executive power. In unanimity of interviewed cases it was recognized that even when it is understood and included in law all the protection that the same The actual and material execution of this action is not effective and practical for the daily proceedings of the prosecutors or suspects of a criminal suspect.It shows that the accused or suspects of one or another manifestation of violation of procedural guarantees are always affected at that stage. It is recognized that if the right to defense existed by a lawyer, the number of these violations would be innumerable and would be limited or would not happen. and if they happen, they would have a corresponding complaint, before the body for such effects and by a designated or ex officio defender who would act immediately. In another order, it was learned that the specific and numbered rights of the detainee do not exist in the main and mandatory laws, of the accused or suspect of criminality such as criminal and procedural law, if in the Constitution, in a generic way. It was known that they are the case of the process in crimes against State Security,those who follow with all the rigor that is required in each and every one of the acts processes. They have special significance and it is not always said that, regarding the statement of the accused, articles 161, 163, 165 and 166. The first of they expressly clarify that "No accused has an obligation to testify against him" and adds that the Instructor is under a duty to let him know "… what he is accused of, by whom and the charges against him and to instruct him in the right that assists to give a statement if he wants to, which he can do at any time and how many times he requests it. ” It is not always said and if it is said, then other methods of persuasion are used, such as: cooperate so that you can do better, or you are not cooperating In general, it was known that article 163 is applied and respected and the one that develops another special guarantee:"The accused will be allowed to express whatever is convenient in the interest of his defense and for the explanation of the facts…" and then the obligation to verify such manifestations is established. Finally, it could be seen that article 166, which closes this chapter, is almost unanimously respected and complied with, it is established that “Violence or coercion of any kind will not be exerted on people to force them to testify. Any statement obtained in violation of this provision will be void, without prejudice to the corresponding criminal liability. " But when it happens it is not communicated. It could be known that because this Right to Defense did not exist from the stage indicated in this work, the accused or suspected of criminality do not have to resort, they inform the repeat or multi-repeat offenders of what they should do for your defense.

IV. Bibliography

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