My claim is none other than to study the criminal process in all its facets and systems and what is presented within it, as an object worthy of study and analysis, based on comparison, hypotheses, questioning and inevitably of the criticism that results after all intellectual analysis, when it has been apprehended in all its magnitude.
This is how I frame the development of criminal procedural law by studying it in a comprehensive and productive and interesting way, starting from the principles, systems, comparisons, juxtapositions and criticisms.
Procedural Law is a set of rules that regulate the pillars of due process, with the purpose of applying the substantive laws, or substantial law.
Procedural Law also deals with competition and jurisdiction and regulates it; as well as the activity of judges, lawyers and the Public Ministry. Finally, it executes the substantive norm in a reasoned and substantive pronouncement that is the Judicial sentence. In Criminal Procedural Lawregulates the process from the beginning to the end of the process, combining different pre-established functions such as the investigation of criminal events, collection of evidence, identification of objects and people and sanctioning the commissioner. Then then the Criminal Procedural Law is that set of legal norms in charge of providing the theoretical, practical and technical knowledge necessary to understand and apply the adjective acts intended to regulate the beginning, development and completion of a Criminal Process.
In short, it is the set of legal norms that regulate the development of the Criminal Procedure.
The object of the Criminal Procedure Law lies in the clarification of the legal fact denounced or not after accumulating evidence.
The object is to obtain, through the intervention of a subject of law or judicial body, the declaration of a positive or negative certainty of the punitive claim of the State, who exercises it through the action of the Public Ministry.
The process can be finished before the sentence, it can be because the author is not identified or the facts are not proven, so it ends not with a sentence, but with a judicial decision or a specific file without acquiring the character of material res judicata. This seeks to achieve legal certainty and security.
The purpose of Criminal Procedural Law is aimed at verifying the crime and determining the criminal responsibility of the accused, so that they can be convicted or acquitted and filed as long as the action has not been prescribed.
Known Prosecution Systems
Accusatory system. The jurisdictional body is always activated before the accusation of an organ or a person, that is, it is triggered by motivating the jurisdictional power to act before the jeopardizing of a legally protected legal asset.
Inquisitive System. The jurisdictional body itself takes the initiative to originate the Criminal Procedure when a legally protected legal asset is endangered, that is, it acts ex officio and the Criminal Procedure is excessively formal, rigorous, secret and not public.
Mixed or Formal Accusatory System. Both the Accusatory and the Inquisitive System are conjugated. The Criminal Process has two stages:
Instruction (research) / Inquisitive System.
The oral trial / Accusatory System.
Need for the Criminal Procedure
In all criminal proceedings there is a conflict of interest, between, on the one hand, the interest of the State in the criminal prosecution, that is, in the clarification and punishment of the criminal acts, and on the other, the interest of the accused in which their penal guarantees are respected and the presumption of innocence is taken into account. The basis of the difference between both systems - the inquisitorial and the accusatory - lies in the way in which they resolve the aforementioned conflict of interest. In the inquisitorial system, in which the accused is conceived as an object of criminal prosecution and not as a subject of rights holding guarantees against the criminal power of the State, the State interest is widely prevailed and the guarantees of the accused are overshadowed. This is explained because the inquisitorial procedureit corresponds historically and ideologically with the absolute monarchical state, which is characterized precisely by not recognizing limits to its power. The accusatory system, although it existed in other earlier times, is typical of the modern State, for which, consequently, it recognizes the accused as a subject of law to which a series of substantive and procedural guarantees, members of the Due process requirements, which constitute insurmountable limits for the State's ius puniendi.
The accusatory system seeks to balance the two interests, to make the effectiveness of the criminal prosecution compatible with the respect of the guarantees of the accused.
The main feature of the inquisitorial procedure lies in the concentration of the investigation and trial functions in the same body, which is obviously incompatible with the right of the accused to be tried by an impartial court. As the jurisprudence of international bodies has repeatedly highlighted, the impartiality of the court has a dimension referring to the trust that the court must arouse in the first place in relation to the accused, for which it is necessary that the court or judge that hears of the process and dictates the sentence is not indicted of partiality, and it is if it has intervened in any way during the investigation phase.
The mixed system also separates the investigation and trial functions, entrusting them to different judges or bodies, thereby ensuring the right of the accused to be tried by an impartial court. However, the adversarial system is superior to the mixed one from the point of view of the guarantees of the system.. It allows, through the institution of the judge of guarantees, to control the investigation carried out by the Public Ministry, and also to ensure the impartiality of the court with regard to the adoption of precautionary measures that, such as preventive detention, among others, affect intensely the rights of the accused. On the other hand, in the mixed system, and in this it does not differ from the pure inquisitorial system, the judge conducting the investigation cannot, obviously, control the legality of the investigation, and lacks the impartiality in the objective sense indicated, to pronounce on the investigation. origin of the precautionary measures that may be adopted with respect to the accused and other limitations on their rights.
Another feature of the inquisitorial procedure, which distinguishes it from the accusatory, is related to the characteristics and objectives of the investigation phase. While in the accusatory procedure the investigation constitutes only a preparatory stage of the trial, distorted and without probative value, in the inquisitorial procedure the investigation phase is the most important part of the criminal process.
With respect to the investigation phase of the inquisitorial procedure, two other characteristics that violate the guarantees of Due Process should be highlighted: first, the widespread phenomenon of the delegation of functions to subordinate officials. This corresponds to a dysfunction of the inquisitive system generated in its practical operation. Second, the investigation is secret, for a large part of its duration, not only with respect to third parties outside the procedure, but also for the accused, which infringes the right of defense. In the accusatory process, the right of the accused to access the evidence during the investigation is widely recognized as part of the right of defense. Partial secrecy is only admissible when it is essential for the effectiveness of a specific act of the investigation.
The criminal trial consists of a debate, a contradiction between the parties, with equal opportunities, which requires a broad and full recognition of the right to defense, which is, ultimately, what makes criminal prosecution and prosecution rational and legitimate. penalty that will eventually be imposed and what allows us to speak properly of a true trial. The accusatory procedure, as well as the mixed one, where the trial is also oral and public, introduced in Europe during the 19th century, is typical of Modern States. Hence, what should surprise us are not the characteristics of the inquisitorial procedure, concentration in the same body of investigation and prosecution; weakening of the right of defense, the summary prevailed over the plenary, among other attributes of that society,since they are coherent with the political system where the absolute State arises; What should really surprise us is the contradiction and the historical and political gap that means having maintained a premodern criminal prosecution system until today.
Another difference concerns the purpose of both systems. Inquisitive: the punishment of the guilty. There is no alternative but acquittal or conviction; Accusatory: the criminal procedure is an instrument for resolving the conflict, so there is room for other responses other than the merely coercive and higher social performance, such as alternative solutions to the trial, or even the waiver of criminal prosecution, in the face of facts less serious, in accordance with the Principle of Opportunity. In the inquisitorial procedure, on the other hand, the Principle of Legality governs in matters of criminal prosecution, according to which the bodies in charge of it, must investigate and, eventually, sanction all the facts that come to their knowledge.
Regarding the right to defense, the inquisitorial procedure accepts it limitedly. Depending on the nature of the political systems where the inquisitive procedure is born and developed: the absolute states. It is natural that the conflict between the state interest in the criminal prosecution and the guarantees of the accused, be resolved by making the former prevail.
This is due to mistrust of the defense; in the delay in recognizing the accused's right to intervene in the process and in all kinds of limitations on the right to defense.
The inquisitorial procedure, practiced for years, creates an inquisitive culture and mentality, contrary to the right of defense and criminal guarantees. This is how voices are still heard in the international arena of the following expression: “the formal process is the refuge of crime; Respect for guarantees supposes benevolence towards criminality, the principles of due process represent a legalism that prevents or disturbs the action of true justice.
Respect for the right of defense in the future involves a change in mentality and the abandonment of the inquisitive culture, deeply rooted in our environment, for a democratic conception of the criminal process.
In the accusatory procedure, the right of defense of the accused is widely recognized since the procedure is directed against him, as a result of any act of the agencies in charge of criminal prosecution, including the police. Full recognition of the right to defense, in all its aspects - the right to be heard, the right to provide evidence, to access and control it, and to technical defense, arises from the need of the accused to resist the criminal prosecution of the State and is indispensable for there to be a true judgment that respects the Principle of Contradiction. If the Public Ministry is granted effective powers for criminal prosecution, the defendant, in order to truly speak of equal opportunities, must be granted sufficient rights to resist the persecution.
As all state power is not absolute (in a State of Law); it must be exercised rationally; not arbitrarily; it is a power subject to limitations: one of them is the right of defense, which rationalizes and legitimizes oral and public trial.
Treatment of the crime victim
Another important difference between the two systems is related to the consideration of the victim. In the inquisitorial procedure, the victim as such is not considered as an actor in the procedure. It has been said that it is the great forgotten. Criminal prosecution is carried out on behalf of society, considered abstractly, without attending to the specific interests of the victim.
In the accusatory procedure, on the other hand, the victim becomes a relevant actor, respecting in the first place his personal dignity and thus avoiding the so-called secondary or tertiary victimization at the hands of the paperwork process itself. The obligation to protect it is established by the public prosecutor and the police; She is kept informed of the actions of the process, thereby encouraging her always useful collaboration; It is granted the right to request proceedings and to appeal decisions that affect it; As an alternative solution to the trial, in cases of less serious crime, reparations agreements between the accused and the victim are established as viable forms of compensation, provided the victim agrees.
Presumption of innocence in both systems.
A final important difference between the two systems refers to the presumption of innocence, which implies the right of the accused to be treated as innocent during the process. It, unlike what happens in the inquisitorial procedure, is widely recognized in the accusatory procedure. The most important consequences refer to the quality of the process and the regulation of precautionary measures, especially preventive detention, which must be an exceptional measure, based strictly on the need to ensure compliance with the purposes of the process and the removal of the process by the accused.
Identification of Criminal Procedural Law
Criminal Procedural Law is characterized by certain attributes that are characteristic of its internal content and that give rise to a state of fair and legal due process and at the same time transparent. Being able to describe the following among others.
Advertising. In relation to the public nature, due to the participation of the State, through the prosecuting bodies, the Public Ministry and the Jurisdictional bodies.
Instrumental. It is an instrument that the State uses to apply substantial law.
Unit. It regulates the actions and acts of the people involved in the process, the accused, the Public Ministry, the defense, and the same court. All must adhere strictly to Procedural Law, and specifically to the Procedural Criminal Law.
Autonomy: Viewed from a scientific and practical point of view, it is an autonomous branch of Law. The division is only for the purposes of better understanding and study. Its content in a broad sense is binding on Criminal Procedure Law and in a restrictive sense it is all that is regulated in the Criminal Procedure Law.
Sources of Criminal Procedural Law
Primordial: The LAW. It is immediate and supreme source. The Constitution, International Treaties, National Laws, Criminal Procedure Law, governing regulations.
Doctrine. Secondary source and not mandatory. It can give broaden the horizon.
Jurisprudence. Mediate source. The judge cannot refuse to fail due to the silence of the law. There is a teleological purpose in this, there is a spirit of the law.
Habit. It occurs in some countries, especially those under the common law system. Like precedence.
Principles that inform Criminal Procedure Law.
Publicity of the prosecution. Notification of the accusation made.
Principle of Orality of Criminal Debate
Effective equality of the parties.
Evidentiary opportunity.
Right to Defense. Right of the complainant or the accused to have a lawyer
Observance of procedural formality. Concentration and Unity.
Absence of undue delay.
Presumption of innocence.
Plurality of instances.
Prohibition of forcing the accused to testify against himself and his family members.
Due Process as an integrating principle of the Criminal Process.
It is the formal criminal process followed against a person under the protection of the guarantees established by both the constitution and the laws in force, within a pre-established period, with all the formalities and solemnities indicated by the procedural laws, recognizing the accused's human condition and your inherent rights.
It is the set of material provisions for the application of justice integrated into fundamental guarantees, systematized for the adequate provision or administration of justice required by the constitution and whose purpose is to allow the defendants effective judicial protection and access to a fair Criminal Process, equitable, truthful, impartial and definitive.
In rather general terms, we could say that Due Process frames and integrates the other principles, since they are the ones that together generate due process.
Criminal action related to Due Process. Characteristics.
Autonomous It is independent of material law.
Officiality, public character. The exercise of the action is of the Public Power, except when it comes to private action crimes.
Advertising. It can be exercised by public persons, when seeking to protect society as a whole; it is exercised in the interest of its members.
Irrevocability. The general rule is that once the criminal action has been brought there is no possibility of withdrawal. It can be interrupted, suspended or stopped, only and exclusively when it is expressly provided for by law.
Indiscretion. It must be exercised whenever the law requires it. The prosecutor has discretion when he believes that there are reasons to suspend, cease, the process or give an administrative treatment to the facts. So can the persecutory organs.
Indivisibility. The action is one and includes all those who have participated in the criminal act.
Uniqueness. No plurality or competition of shareholders is allowed.
Opportunity principle. By this principle, the prosecutor and initiator of the criminal action has the power to refrain from exercising the Criminal Action or file the criminal summary.
Bibliography
General Criminal Law. UH Textbook. Renen Quiroz.
The Constitutional Guarantees of the Criminal Process, in APECC Law Review. Year I, No. 1. Author: Víctor Cubas Villanueva. Lima Peru. 2004.
Argentine Criminal Procedure Law. Author: Julio Maier. Ed. Hammurabi. Buenos Aires, Argentina. 1989.
Criminal Justice and Democracy in the extra-procedural context. Author: Luigi Ferrajoli. Criminological Chapter No. 16. Institute of Criminology of the University of Zulia. Maracaibo Venezuela. 1990.
Introduction to Criminal Procedure Law. Author: Alberto Binder. Buenos Aires, Argentina. 1993.
Accusatory System and Evidence (Procedural Issues Magazine), Special Edition July 2004, Author: Ramiro Alonso Marín Vásquez.
The Principle of Opportunity (Procedural Issues Magazine), Special Edition July 2004, Author: Carlos Alberto Mojica Araque.
