Summary
In recent decades, a reform movement has been taking place at the international level and especially in Ibero-America that seeks to adapt judicial systems to modern trends in law. In criminal procedural matters, the fundamental purpose pursued by the countries that have opted for change is to approximate, as far as possible, their adjectives to the accusatory model of prosecuting. In this sense, the Cuban criminal law is not one of the most backward in Latin America, especially if we start from the trial-oral experience that assists us; However, if we compare it with other Latin American procedural texts that have undergone reform, we must recognize that, without a doubt, we are lagging behind. These reasons motivated the conduct of this research;analyzing in depth one of the procedures contemplated in the Cuban Criminal Procedure Law this amending current, specifically the abbreviated procedure. The most worthy way of fully complying with our company is to carefully analyze to what extent the characteristics of the abbreviated procedure make it difficult to fully comply with the principles of the Accusatory System, and evaluate the way in which it can be transformed without coming into conflict with our legal traditions and especially with our Criminal Procedure Law, for which we express that in the abbreviated procedure, despite the defects analyzed in this work, the features of the accusatory system and the accusatory principle are more accentuated, which provides greater guarantees the accused and the process in general.
Introduction
The Accusatory System has now been revealed to us as the most viable alternative with a view to respecting the principles raised by Due Process. For this reason, it is satisfactory that several countries in our area have embraced this trend and left the inquisitive philosophy of conceiving the criminal process in the past. It is remarkable how the procedural regulations have been accepting almost uniformly a series of procedures as an alternative to prosecute certain crimes, seeking to decongest the justice system and speed up the processing of criminal proceedings.
In this regard, it is urgent to make a general rethinking in the way in which the procedure in question is regulated; for even if the objective pursued is to gain speed, no guarantee can be sacrificed or fail to recognize principles. Nor should a reform project be undertaken without evaluating its scope, since practice has shown that transferring institutions or solutions from one system to another can cause insurmountable disruptions and a procedural hodgepodge that would hinder the functioning of justice.
For the aforementioned reasons, the problem that is the object of this study is based on the following question: What are the shortcomings of the Abbreviated Criminal Procedure that separates it from the accusatory model of investigation, prosecution and criminal prosecution?
From this the following general objective can be deduced: To deepen in the abbreviated procedure from the theoretical-doctrinal point of view and in its historical-legislative evolution and as specific: To analyze in a comparative way the prosecution systems, as well as to identify the deficiencies that regulate the Abbreviated Procedure in our Ritual Law.
Main characteristics of the accusatory model today
Chronologically, the Accusatory System is the first form of prosecution that appears in the legal world. With fairness, it is presented historically as a diametrically opposed system to the Inquisitive System; as a symbol of a fair process, defended by safeguard currents, defenders of legal equality and full respect for the rights of all citizens.
By its very nature, the accusatory is the procedural system of the first times of civilization, where the crime was founded on fundamentally private bases. In the Middle Ages, the Catholic Church gains political power, setting standards of moral behavior in its capacity as the most powerful feudal lord. This situation allows him, being the social regulator of the time, to give rise to the Inquisitorial System to prosecute, signifying a retrograde step for the criminal process.
With the advent of the French Revolution, the Inquisitive System ceased its dominance to be constrained to the investigation phase, without any trace of the physical abuse or cruelty of yesteryear, assuming the public prosecutor the monopoly of criminal action. For its part, the oral trial phase is invaded by the Accusatory System, whose knowledge will be entrusted to a court or collegiate body with no connection to the investigation, resuming the criminal debate between the parties. This gives rise to a new prosecution system, the Mixed, considered indistinctly in the doctrine as Reformed Inquisitive or Formal Accusatory.
For these reasons, we consider it necessary to refer to the essential features that have traditionally identified the Accusatory System, violating the passing of the centuries:
- Private initiative: - Initiation of the procedure with the complaint of the injured party of the criminal action. Orality: - Gives the judges the possibility of directly assessing the evidence provided at the time of filing the lawsuit and thus examine them promptly. procedural guarantee for the accused, since the occurrence of possible arbitrariness and abuses by the court in the act of oral trial is limited. Free appreciation of the evidence by the court: - The court assesses the evidence without being subject to any measure. of the act: - The process occurs in a single act (understood to be the complaint, the contribution of evidence and the practice thereof), before the court, without other prior acts, which allows a direct assessment of what is raised by the parties. Popular participation:- The people are incorporated to the administration of justice, participating equally in the composition of the court, lay and professional judges, or using the jury system.
The type of process proposed by the system under analysis is completely separated from the Inquisitive, and seeks to arrive at the truth, to the solution of the criminal conflict, which is not purely repressive, but rather pursues a higher and humane goal such as the prevention. In addition, it broadens its field of conflict resolution by recognizing alternative routes of judgment and the application of the principle of opportunity.
Therefore, we consider it essential to emphasize the characteristics that currently identify the Accusatory System.
Separation of prosecution and prosecution functions
One of the main characteristics of the modern accusatory criminal process is the fact that the functions of accusation and prosecution are carried out by different bodies, to avoid concentrating both functions in a single institution. This position, characteristic of the accusatory model, makes it possible to control the investigation carried out by the Public Prosecutor's Office, and to ensure the impartiality of the court with regard to the adoption of precautionary measures such as preventive detention, which strongly affect the rights of the accused.
Guarantees of the right to defense during all stages of the process
The right to defense is an inalienable attribute of man in the protection of his property and rights, resisting or opposing any action that may affect him, including a state decision. It is specifically translated into the right granted to the accused to have the assistance and advice of a defender from the first moments of the investigation, in addition to the wide range of guarantees to exercise it by himself, thus enabling the contradiction.
The right to be defended assumes a capital importance in the adversarial system. If at some point this right was unknown, denied or limited, no one doubts today in considering it one of the pillars on which Due Process is built. To get an idea of this approach, just refer to the definition provided by Professor Ramón de la Cruz Ochoa on the right to defense in Due Process:
The right to defense synthesizes the security, dignity, and respect of man, which is why it is not surprising that it has been enshrined in several of the most important international texts that in one way or another have addressed the issue of human rights. human rights. The Universal Declaration of the Rights of Man, adopted and proclaimed by the General Assembly of the United Nations on December 10, 1948, declares in its article 11, first paragraph, that:
"Every person accused of a crime has the right to be presumed innocent until proven guilty, in accordance with the law and in a public trial in which all the guarantees necessary for his defense have been assured."
Active participation of the victim in the process
It is known that in some criminal procedural systems the victim has been one of the most neglected figures, being one of the main differences between the inquisitorial and the accusatory systems.
The Accusatory System recognizes a series of rights to the victim, among which we highlight the one to keep her informed of the proceedings of the process, encouraging her cooperation, requesting proceedings and appeal the decisions that affect her; In addition, in less serious criminal cases, reparations agreements between the accused and the victim are established as an alternative to trial.
Contradictory oral trial and with full equality of action of the parties before an absolutely impartial court
Oral proceedings are the most important and guarantor stage of the criminal process. One of the main characteristics of the accusatory oral trial is the absolute impartiality of the competent court. The court will not interfere in the criminal debate, its position will be to listen to the evidence presented by the parties, and according to its free appreciation reach a final resolution.
The first step to achieve judicial impartiality is to avoid that the court that hears the oral trial is the one that takes part in the actions of the previous phases of the criminal process, thus guaranteeing that its criterion when passing sentence is not flawed to the detriment of any of the parts.
Another principle on which the judicial function rests is independence, by virtue of which the officials in charge of the administration of justice only obey the legislative designs and their own conscience, guided by the analysis they carry out depending on the evidence they provide The interested parts.
Possibility of formulas of opportunity or of solution prior to the conflict through the new role of the Public Ministry.
The accusatory criminal procedure has made it possible to adopt various solutions, some typical of the civil procedure, impossible to apply in an inquisitive criminal procedure strictly adhered to the principle of procedural legality. Among these decisions, there are the so-called formulas of opportunity, particularly those regulated by their legal guarantee against various causes of greater application.
We can consider the principle of opportunity as the "remedy" generated by procedural law to neutralize or reduce to tolerable parameters the negative consequences of the principle of compulsory public criminal prosecution. It establishes that when punishable acts are learned, the criminal prosecution may not be initiated or suspended, for reasons of convenience, utility or resource allocation. Through its application, it is intended to rationalize the selection that will necessarily take place in practice.
Likewise, full power is conferred on the public prosecutor who is the one who determines against whom or who will exercise the criminal action without being subject to the judicial body and thus be able to bring the inevitable to trial.
Historical-legislative evolution of the abbreviated procedure in Cuban Criminal Procedure Law.
The Criminal Procedure Law, of September 14, 1882, in matters of procedure, is considered our oldest legislative antecedent. This Law remained in force until the enactment of the short-lived Law 1251 of 1973.
It is impossible to fail to mention the Mambi laws, which, although they did not delve into the abbreviated procedure, used their own judicial system during the independence wars of 1868 and 1895.
With the intervention of the United States of America in the Spanish-Cuban warlike conflict, some accusatory institutions were inserted into our legal reality, such as the Correctional Courts, created by virtue of Order 213 of 1900, which were competent to hear of petty crimes and misdemeanors.
At the beginning of the twentieth century, the legal system of the Republic was endowed with a Criminal Procedure Law incorporated by virtue of Decree 126, of January 18, 1909, with the purpose of having legislation that would subject the non-population to a Special Jurisdiction. civil.
As of January 1, 1959, a new way of legislating and applying the laws that emerged with the historical moment began to be sought in our legal system. In 1973, a new organization of the judicial system was created and a new Criminal Procedure Law was promulgated, Law 1251 of January 27, 1973, which introduces several procedural changes, while maintaining the essence of the old Criminal Procedure Law; although it must be recognized that, among other fundamental changes, it eliminates the figure of the investigating judge from the processes, now advised and directed by the prosecutor, a figure that also becomes independent from the judicial system and takes on its own stature.
As of 1976, the process of institutionalization of the country, the promulgation of the Constitution and the establishment of a new political, administrative and judicial division made it advisable to replace that Criminal Procedure Law with another that was more in line with the historical-legal-social moment.. This is how Law 5, of Criminal Procedure, of August 13, 1977, is put into effect, which introduces small modifications in some procedures (such as the application of security measures); it redefines figures of the process (such as the police instructor and the prosecutor); and it carries out institutional changes (the elimination of the People's Base Courts and the creation of the Municipal People's Courts).
Focusing on Law 5, of Criminal Procedure, 1977. Legislative modifications.
Law 5, of August 13, 1977, arises at the precise historical moment, when the development of the revolutionary legal system is a fact. This Criminal Procedure Law replaces Law 1251 of 1973, introducing some modifications such as:
- eliminates the Basic People's Courts, and its procedure is adapted to the new People's Municipal Courts. It specifies the figure of the police instructor; it redefines the functions of the prosecutor with respect to this instructor, only to control the preparatory phase. It introduces small modifications to the way of applying precautionary measures;
Law 5 is still in force, although changes have been made to its content later. The first was made by Decree-Law 87, of July 22, 1985, which inserts the Review Procedure into its articles; the second was incorporated by Decree-Law 128 of June 18, 1991, which changed the procedures to be followed in the processes of the jurisdiction of the Municipal People's Courts; finally, a third, very important since it is the basis of our investigation, carried out by Decree-Law 151, of June 10, 1994, which added a new form of substantiation, called “Abbreviated Procedure”.
This procedure streamlined the formalities of the preparatory phase, made the phases of the process independent with the procedural figures in charge of its development. This is, broadly speaking, what we can say to introduce our Law of Procedure. As analysis is an important part of our research, we will try to address it later.
The adversarial model in the abbreviated procedure of the current Cuban criminal procedure design.
Decree-Law 151 of June 10, 1994, introduced in Law 5, Criminal Procedure, of August 13, 1977 a special procedure called Abbreviated Procedure. Its inclusion is intended to provide the justice system with an agile procedure that hears and resolves cases whose evidence is in principle incontestable, without at any time in violation of the guarantees of criminal due process.
The drafting of the regulations referring to the abbreviated route is characterized by the reduction of some deadlines and modification of some institutions, and also by the scarcity of precepts, brevity based on the fact that the supplementary nature of the ordinary procedure is established; although if compared with other procedural bodies it is undoubtedly much more detailed.
In the Sixth Book, Title XI, from article 481 to 489, the circumstances that allow to opt for the application of the Abbreviated Procedure in a specific case are included; the limit of application of this procedure is established, for crimes whose penal sanctioning framework fluctuates between one and eight years of deprivation of liberty.
Regarding this matter, we consider the proposed limit too broad; We carry out this approach by assessing that we are dealing with a procedure designed to prosecute truly minor crimes, whose easy verification allows an acceleration in the terms to take place without violating the basic principles of socialist criminal procedure or the rights of the accused itself.
A criminal act that regulates a sentence of eight years of deprivation of liberty (and even a little less) does not precisely enter the category of minor crimes; on the contrary, it could be classified as complex, and as such, processed through ordinary channels, allowing a better appreciation of the facts by the court.
In accordance with the sanctioning limits set forth above, both the People's Municipal Courts are competent to hear the processes that are substantiated by the abbreviated procedure, with respect to crimes that include penalties between one and three years of deprivation of liberty; such as the Provincial People's Courts, which are competent to hear all crimes with penalties exceeding three years of deprivation of liberty. The Chambers and Sections of the Supreme People's Court may also opt for this special procedure, when they hear in the first instance those cases in which the law on procedures establishes their intervention, or when they have specific powers to claim knowledge of a specific fact.
Article 483 of the Criminal Procedure Law specifies the circumstances that may determine that a process conducted by the abbreviated procedure ends with a penalty of more than eight years of deprivation of liberty. Eventually, these increases may occur because the sanction is imposed, appreciating recidivism or aggravating circumstances; or because continued crimes are punished; or because a joint sanction is formed for several known crimes and resolved in the same cause. All these circumstances will not prevent the application of the abbreviated procedure, provided that the case meets the established requirements.
The other requirements for applying the procedure are related to the way in which the fact is known. Article 481 defines that cases within the referred sanctioning framework may be processed through the abbreviated procedure, in the case of flagrant crime and when, the fact and the participation in it of the accused being evident, he is confessed.
Regarding the first of the causes, flagrante delicto, we want to start from the definition that the law provides of flagrante delicto. To this end, we can say that there are two variants in the aforementioned legal body:
- When the perpetrator is arrested at the time of committing the crime, or as an immediate consequence of his persecution after it has been committed; When the identified perpetrator having eluded the persecution, he is arrested within the following seventy-two hours.
In the first case there is no doubt: the perpetrator is arrested in the act or in the immediate persecution that occurs when he has concluded or has been interrupted in the commission of the act; in the second variant, it is decisive that the perpetrator, already recognized initially, be arrested within a term not exceeding seventy-two hours after the event. It may or may not have been materially persecuted for several hours; he may have eluded persecution and lost all trace of him; but if for any reason he is captured, even if the assumption is that he surrendered voluntarily, the option of this procedure will be possible.
To analyze the second circumstance on which the adoption of the abbreviated procedure is based, it is necessary to start from what an “evident” fact means for the law. Said like this, with no other argument than the one used, it can cause confusion in legal operators, in the sense that what is obvious for some, for others might not be so.
The second part of this section (article 481.2) lends itself to an even greater controversy, since it supports the confession of the accused as an essential element to initiate the abbreviated procedure, understood in that phase of the process as the mere declaration in which he admits to being the responsible for the facts, as it will only be a judicial confession upon reaching the court. Keep in mind that the Law empowers the accused during the process to vary his statement as many times as he wishes, without being granted preferential value over other evidence.
The contemplation in our procedural body of this article is extremely striking, especially when Cuba in criminal matters does not follow the criteria that are intended to give the confession the value of full evidence.
Therefore, although the confession of the accused is a condition that is established as necessary for the application of the abbreviated procedure, this does not mean that the accusing party is relieved of the obligation to prove the crime regardless of such declaration, as provided in the Article 1 of the Criminal Procedure Law and therefore also in this special procedure, sufficient elements must be included in the proceedings to demonstrate the responsibility of the accused.
The abbreviated procedure can be considered initiated from the knowledge by the police, the investigator, the prosecutor or the court, of the revealing elements of the possible existence of a criminal act, either by complaint, by confession of the accused, by discovery direct evidence or news received by any means; where the circumstances that allow the application of the abbreviated procedure must have been manifested, at which time the instructor will be obliged to inform the prosecutor.
After the police communication, the prosecutor will have three days to determine if the procedure can be carried out through abbreviated procedures; This is of great importance for two essential reasons: first, the prosecutor is the only one authorized at this stage to order the adoption of the procedure; and second, it allows the source to be decided early and time saved. Regardless of what the prosecutor decides, the instructor must continue to carry out the procedures that in his opinion are essential, thus avoiding unnecessary loss of time.
In the event that it is applicable and pursuant to article 484, the accusing party will order the start of the file, indicating to the instructor the necessary procedures to complete the proceedings, for which our law grants a reasonable period of time that will never exceed twenty non-extendable calendar days; or it will declare that it is not necessary to practice new proceedings because the proceedings are complete. Later it will decide the procedural situation of the accused.
From what has been explained above, it is questionable in the first place that it does not specify to what extent a diligence is indispensable, which, like any ambiguous term, leaves a gap for a variety of interpretations, if it is taken into account that by elementary logic, each operator legal makes his own disquisitions; In addition, each case has its singularities, and therefore, its priorities.
According to article 485 of the Criminal Procedure Law, as soon as the prosecutor adopts the appropriate provisions for the substantiation of the abbreviated procedure, he will return the proceedings to the instructor and he will immediately notify the accused about everything resolved and will proceed to the imposition of the precautionary measure decided on the accused, or to release him. Regardless of whether the defendant has been insured, he or she becomes part of the process and can appoint his defender. Both he and the accused himself may begin to exercise their rights of communication, review of the proceedings, provide documents and other means of evidence and propose the practice of proceedings in the interest of the defense.
Regarding the right to defense, we think that the abbreviated procedure takes on a different connotation than the one it assumes in the ordinary way; It is known to all that the accused is a party to the latter only when he is subject to a precautionary measure, after which he may have legal assistance. As previously stated, in the abbreviated, it is not necessary to wait for the competent bodies to decide on the assurance of the accused for him to be a party, it is enough for the prosecutor to resolve the origin of this procedure for it to be considered as such and can appoint a lawyer.
With respect to the defense guarantee, the abbreviated procedure is superior to all the others contemplated in the law, since it gives the lawyer the possibility to participate in the process when it begins to develop; Ideally, it should be part of it from the very beginning; however, we recognize that this accusatory feature is manifested more strongly.
Of course, that the aforementioned application is decided in the initial moments is the capital condition to distinguish in that precept the mentioned advantages, because once this does not happen, they dissipate. Proof of this is when it is decided to go to the abbreviated procedure once the proceedings are advanced or the file is complete, a situation in which this accusatory virtue does not have the same effect.
It is necessary to point out the fact that the limitations established on the exercise of defense in article 247 of the Law of Criminal Procedure several times mentioned are not applicable to the abbreviated procedure, which informs that when provisional imprisonment is decreed against an accused, Exceptionally, and for reasons of state security, it may be ordered that the accused reserve his possible proposal on evidence for the process of evacuation of provisional conclusions and in this case, neither the accused nor his defender may have access to the proceedings during the substantiation of the preparatory phase.
We cannot help but ponder that precept, especially if we consider the speed with which this procedure is applied; undoubtedly this means an extension of the right to defense, since there is very little time to review the proceedings.
Notwithstanding the foregoing, a highly disputable limitation of the right to defense is manifested in this procedure, since the defendant who does not wish to appoint a lawyer, does not have one ex officio. Regardless of the type of procedure, we consider that everyone has the right to be defended by a lawyer from the beginning of the process.
In any case, the defender appointed by the accused may appear at any time during the term assigned by the prosecutor for the processing of the file. In article 485 itself, a special term of forty-eight hours is established for the lawyer to study the proceedings and propose any diligence when the prosecutor has declared the proceedings complete or granted a very short period for the execution of the essential proceedings..
Although this period is very short, we understand that it adapts to the dynamics of the procedure, although in practice a free access of the defense to the proceedings should be guaranteed, since the term it has to soak up the circumstances of the process is ephemeral, mainly in cases of provisional detention, an environment in which it will be essential to allow open communication between defender and defendant.
If the accused party does not make any proposal for proceedings within the indicated term, the file is concluded and is submitted to the court. Otherwise, if the defender proposes the practice of evidence or diligence, it will be the prosecutor who decides whether it is accepted or not. Of this power granted to the accuser, we do not consider healthy for the process in general that the prosecutor, being a party, can make decisions regarding the proceedings proposed by the defense, since the principle of procedural equality is being violated.
Once the file has been received, as established in article 486, within the next seventy-two hours the prosecutor will examine it, if it is complete, he will formulate his accusation and send it to the competent court. In his brief of conclusions, the prosecutor will record the means of evidence that he intends to use, without prejudice to the fact that he may propose to the court to dispense with the taking of evidence in the oral trial or that only the indispensable ones be practiced. In this regard, we want to establish that we are against any approach that promotes evading the taking of evidence in oral proceedings, although we will emphasize this later when it is up to the court to decide whether to accept said petition.
Another detail that can motivate an exhaustive analysis of this precept is that in the process of evacuating its conclusions, the prosecutor could choose to go through to the abbreviated procedure a process that has gone through the ordinary procedure up to that moment. Despite the change that occurs, the process would have the benefits provided by the ordinary preparatory phase in the sense that it is much broader and more complete, which allows gathering the largest number of evidence possible, contrary to what happens in the abbreviated, where the practice of proceedings is much more hasty, preventing a trial with consummate probative material from being reached.
Based on article 487 of the Criminal Procedure Law, the procedures prior to the oral trial and its conduct are regulated, specifying that once the file with the prosecutor's conclusions is presented, the competent court will decide within three working days whether the process continues through the Abbreviated Procedure or not. If it is estimated by the circumstances of the fact that the proceeding is to continue it by the ordinary route from now on, all the regulations of such procedure will be applied, returning the actions to the prosecutor to reconsider his qualification and in this way the accusing party would know that in what The process will be governed later by the ordinary rules, without prejudice to whether or not it modifies the conclusions presented as provisional.
In these cases, we believe it is questionable whether the free transfer from one procedure to another is legally permitted. To suggest an example, we can say that the preparatory phase of the abbreviated procedure is less in-depth than that of the ordinary procedure, in the sense that in the first phase the practice of evidence is reduced to the “essential”, so that when the exchange occurs narrated at this stage, the oral trial would arrive with a minimum of instructional actions carried out, and therefore, incomplete probative material would be aired, affecting the rest of the process.
As another idea that supports our reasoning and linked to the content of the previous paragraph, we believe it appropriate to bring up a part of article 488 of our ritual law, which authorizes the prosecutor to order at any time during the processing of the preparatory phase, that a process started as abbreviated continue to be treated as ordinary and vice versa. In this sense, it can be inferred that the possibility that the ordinary procedure becomes abbreviated or vice versa countless times opens up, without imposing a limit.
On the other hand, the aforementioned title does not regulate absolutely anything about the possibility that the accused is counted on to decide the application of the abbreviated procedure. Regardless of the fact that the procedural codes reformed in recent years include the agreement of the accused as a requirement for the provenance of the abbreviated procedure, we consider a violation of the principle of equality between the parties that the accused is kept ignored in this regard.
It is curious that the possibility of requesting the initiation of this procedure falls to a group of procedural figures within which the defense or the accused itself is not included; We consider it would be beneficial for the process if it contained this alternative, since it would be taking into account the opinion of the accused on a procedure that, in the end, could benefit him and, therefore, would represent one more way to bring our process closer to the principles of Due process.
In short, the subject who in the criminal process sees his freedom decide, is condemned to remain idle in this matter while the prosecutor and the court hearing the case, fully decide the course of the process.
Regarding the aforementioned, not only the accused is harmed, but also the victim, who is not consulted or informed about any of the countless decisions that are made, an absurd situation if one takes into account that it has been the figure affected in the crime. In short, the victim is forgotten and unprotected in the abbreviated as in the rest of the procedures of the Criminal Procedure Law. This situation places us behind what is happening at the international level, where it has begun to be given special treatment, dedicating chapters to it and considering it as a full part of the process. In this regard, much remains to be done to approach the accusatory model that we defend, in which an active participation in the process is reserved for the subject damaged by the crime.
Continuing the study of the first section of article 487 of the Cuban procedural law, if the court approves to continue the procedures for abbreviation, it will declare the case open to oral trial, and will order that copies of the accusation be delivered to the accused and that Defenders who are already in person are summoned for a date set within the following three business days, for the purpose of examining the case at the court clerk's office and subsequently formulating their conclusions, recording their opinion of what was raised by the prosecutor in as for the practice of tests. In the event that a defendant has not yet appointed his defender, he will be granted a term of forty-eight hours to do so, and if he does not do so within that period, one will be appointed ex officio,with which the aforementioned procedures will be understood.
From what has been established in the previous paragraph, it is incongruous that the limitation of reviewing the case at the seat of the court is imposed on the defense, since as has already been stated at some point, it is a procedure that must be characterized by its simplicity and haste. Therefore, you have to appear in that venue to access the proceedings, a task that must be completed in an ephemeral term (add to this that you must do the study within the court's normal working day). As a reference, it can be added that in the ordinary procedure and by virtue of article 283 of our criminal procedural body, the measure under discussion only applies in cases where the number of accused is four or more.
There is no well-founded reason for not facilitating the study of the proceedings to the defense outside the court, as is done in the ordinary process. It is known that this limitation when the defender acts accentuates his disadvantage with respect to the figure of the prosecutor, who controls the procedures for the conformation of the file, coming to dominate it exhaustively. This situation leaves the defendant in an even more worrying plane of inequality with respect to his counterpart, contravening the principles of Due Process and the Accusatory System.
If the aforementioned is controversial as a whole, the environment becomes even more complicated when the accused has not appointed a defender until now. This situation implies that the lawyer who is appointed, either by his client within a period of forty-eight hours or ex officio, has no knowledge of the cause, which further reinforces the idea that the term established by law to evacuate conclusions is extremely meager; would have to soak
of the proceedings and comply with all the procedures provided for in the predicted article 487 at that time, being unlikely to achieve this purpose with the required quality and therefore, the defense of the accused is mistreated.
Upon receipt of the qualifying briefs from the parties, in the immediate term of seventy-two hours, by means of a founded order, the court decides what is appropriate about the taking of evidence and indicates the date of the oral trial (within the following ten days), whose ritual is performed in a manner quite similar to that of the ordinary procedure.
If the prosecutor and the defense have stated in their writings that they do not require any evidence, the court may order that it be totally dispensed with. We categorically oppose the non-ventilation of the evidentiary material in the Criminal Procedure Law. If we take into account that it is in the oral trial where the court arrives at a fair ruling knowing and evaluating the evidentiary material provided by the contenders, we are passing judgment based only on the information collected in the preparatory phase and, therefore, predetermining its value. In this way we are usurping the fundamental link from the oral trial, due to the fundamental role that it plays at the moment of motivating the sentence that the court will later dictate.
One of the guiding reasons that promoted the establishment of the procedure was to conceive a way of prosecuting that was characterized by its speed without compromising guarantees; Following this approach, speed in the assumptions discussed is detrimental to the quality of the process, which is why it is necessary to rethink this.
The third section of the precept in question contains what is related to the assumption that the taking of evidence is dispensed with in the oral hearing, noting that in these cases the statement of the accused will only be received if it is provided, after which the reports of the parties will be heard. In any case, whether or not the taking of evidence at the hearing had been dispensed with, the defendant's statement cannot be the only element for the formation of the court's convictions.
An important element in this special procedure appears in article 487.4 of the aforementioned procedural body. This gives the possibility of even dispensing with the technical debate, if at the beginning of the oral trial sessions the defendant or his defender states that he is satisfied with the accusation and that he accepts that a sentence is handed down in accordance with it, thus being included in our legislation the so-called judgment of conformity; although in a very specific way, different from other variants of consensus mechanisms that appear in comparative law. In such a situation, the court assumes the power to declare the judgment concluded for sentence without further processing, otherwise it will order to follow the provisions that govern this procedure.
Regarding the figure of the accused, it should be said that it only has one benefit, and that is that in the event that the taking of evidence is dispensed with, the court cannot impose a greater or more serious sanction than that requested by the representative of the public prosecutor. Indeed, if the process is not granted the opportunity to present the evidence collected in the preparatory phase in oral proceedings, it lacks elements to refute the prosecutor's proposal. In this sense, the correlation between accusation and sentence is direct, so we agree with José Candia Ferreyra that a more strict application of the accusatory principle is manifested here.
The procedure facilitates the possibility that the sentence becomes final on the spot, as provided in article 487.6, if when the ruling is pronounced the parties express their agreement with it, which would be recorded in the record of the trial. In this way, the sentence becomes immediately enforceable, avoiding the wait for the term to appeal it.
Paragraphs 8 and 9 of article 487 refer to the appeal as a means of challenge for cases heard through the abbreviated procedure; which conforms to the regulations for the processes known to the Municipal People's Courts, with some specifications within which it stands out that no greater or more serious sanction may be issued than that requested by the accusation in the trial of first instance if the court he dispensed with the practice of evidence, a full manifestation of the principle of Non Reformatio in Peius. The same happens when the higher instance does not hold the corresponding hearing.
Finally, we would like to emphasize article 488 of the Procedural Law. It is debatable, in our opinion, that in cases in which the court considers substantiating a process initiated as ordinary through the abbreviated process, it has to consult the prosecutor in this regard before ordering the delivery of copies of the accusation, and even, if this does not coincide with the court, the ordinary procedure must be applied. It means more than anything a restriction on the jurisdictional power of the court. We do not question the fact that the prosecutor is consulted to make the decision to change the procedure, the most objectionable in this case is that when this action is carried out, the Lawyer is not also counted on, this being part of the process just like the Prosecutor, breaking the necessary principle of equality between the contestants
Conclusions
- That the current limit of the sanction for the application of the abbreviated procedure is too broad That the confession of the accused is contemplated in a questionable manner in the law as a requirement to apply the abbreviated procedure That the Law allows a constant change to take place of procedures, from abbreviated to ordinary and vice versa. That the defendant is not appointed an ex officio lawyer since the application of the abbreviated procedure is notified. That the prosecutor, being part of the process, has in his hands the power to accept or Deny the proceedings proposed by the defense, which is open to criticism. The defendant is not given the opportunity to propose the initiation of this procedure, much less is his approval required when applied.That it is an unnecessary restriction that the lawyer has to study the case at the seat of the court.
Bibliography
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