Summary: The study of imputability and unimputability is carried out, from a theoretical and practical sense focused on the new National Code of Criminal Procedures, in order to understand the application of the rule to subjects who meet the legal characteristics for such procedural presuppositions.
Keywords: Guilt, Imputability, Unimpeachable, Actions, Regulations, Scheme.
Abstract : The study of the imputability and imputability is carried out, from a theoretical and practical sense focused on the new National Code of Criminal Procedures, in order to understand the application of the rule to the subjects that meet the legal characteristics for such procedural budgets.
Keywords: Guilt, Imputability, Inimputability, Actions, Regulations, Scheme.
imputability-e-unimputability-Mexican-law-pIn the study of crime, through the history of man in society, in terms of his behavior in society in front of other men, we find that currently there are new theories in criminal law for the study of crime, pointing out as one of them and current at the time in which we live is the theory of the Logical Model of Criminal Law, of which one of its maximum representative figures for the exposition of this theory is the researcher Olga Islas de González Mariscal, who starts from the study of a new conceptual system that allows the explanation of criminal law both in general and in the special.
In the same way, we find various theories such as the moderate functionalism of ROXIN or the normativist functionalism of JAKOBS, the main exponent of the theory in question, it is that situation in the same way the various existing theories in criminal law can be stated as what It is the finalist theory, causalist, neo-Kantian model, among others that warn the study of the science of criminal law from positive normative aspects and in force at its time of application.
Derived from the foregoing, we will address the study of imputability and unimputability, which are procedural assumptions of guilt, understanding this last conception as an object of study and legal perspective but not from a moral perspective, since guilt is determined by the norm, in accordance with the legal formulas and circumstances, as well as what is established by the judicial bodies that apply the norm to various behaviors established by the subjects, for José María Rodríguez Devisa, who acts guiltily who, according to the legal arrangement, could proceed otherwise than how he did it, that is, the one who could refrain from carrying out the typically unlawful action (Spanish Criminal Law, op. cit; p. 415), for Muñoz Conde “acts guilty, who commits an illegal act,being able to act in a different way, that is, in accordance with the law ”(General Theory of Crime, op. cit; p. 128), among various authors who have carried out the study of guilt, with the sole purpose of demonstrating the various ways of understanding guilt, the subject of this essay emerges in this regard.
Now, for the analysis of the procedural assumptions that concerns us, we will make a general remembrance starting from ancient times, from where we can observe that it was determined that there is no crime without guilt, nullum crime sine culpa, which tells us that there was no guilt without a typical result, however it was until Cicero (Arpino, born January 3, 106 BC to December 7, 43 BC, Roman jurist, politician, philosopher, writer, and orator, considered one of the greatest rhetoricians and stylists of the Latin prose of the Roman Republic).
In this sense, history shows that at the fall of the Roman Empire there was a regression to the concept of guilt, when it was pointed out that responsibility for the result, that is, when there is intent, guilt, intention to do something not allowed and there is a result derived from it.
In the Middle Ages there is also the study of the theory of guilt, from which we can point out that Francesco Carrara, in 1859, conceived of crime as a legal entity and created the theory of the forces of crime, who established the separation of the result, of the causes of the crime.
Later, we find the time of positivism, with its greatest exponent Enrico Ferri, who according to the issue of guilt expressed his pronouncement about free will as an illusion and that psychic events are also subject to the principles of causality.
Derived from the study of guilt through history, the emergence of the two legal precepts that we will subject to study in this dissertation is also credible, so we first proceed to the analysis of the concept of imputability, which has been defined in the Mexican Legal Dictionary, as
"The ability conditioned by maturity and mental health is to understand the unlawful nature of the action or omission itself and to determine itself according to that understanding" and, the concept of unimputability, which is defined by the Spanish jurist and politician Jiménez of Azua Luis, stating that, “the lack of development and health of the mind, as well as temporary disorders of the mental faculties that deprive or disturb in the subject the faculty of knowing duty, are causes of unimputability; that is, those causes in which, although the act is typical and unlawful, the agent is not in a position to attribute the act he perpetrated ”.
In such a way, it is clear that for the study of this topic, it must be recognized that all individuals have cognitive and morphological characteristics, which make a person capable of committing criminal behavior recognize in the type, so to This must establish the elements called conduct, unlawfulness, guilt and criminality, which must always be established as essential requirements since they are the basic structure of the crime, which translates into the individual's biological, physical and mental capacity to carry out criminal conduct sanctioned by criminal law, capacities can be broadly distinguished as action, guilt, duty, penalty, criminal law,of crime and to know and value the duty to respect the norm and to determine spontaneously.
Attentive to the above, we can discern that imputability is the indeterminate possibility of the subject under the conditions necessary for a punishable act to be determined, so that under this approach it can be said that imputability is the provisional assertion, -and It is said provisional because the subject is linked to the result initially in a criminal process - that a subject was found in the conditions to attribute a crime to him, so it must be established that only the man is imputable, since that conception frames the personality, subjectivity and criminal capacity.
The foregoing is strengthened, as established in the National Code of Criminal Procedures in Force, in Arabic numbers 112 to 114 of Chapter III, Imputed; which literally expresses the following:
CHAPTER III
IMPUTED
“ Article 112. Denomination.
A person designated by the Public Ministry as a possible perpetrator or participant of an act that the law designates as a crime will be generically called the accused.
In addition, the person against whom an accusation has been formulated and sentenced to whom a sentence has fallen even though it has not been declared final, will be called accused.
Article 113. Rights of the Defendant.
The accused shall have the following rights:
- To be considered and treated as innocent until his responsibility is proven; To communicate with a family member and his Defender when he is arrested, and the Public Ministry must provide him with all the facilities to achieve it;
- To declare or remain silent, with the understanding that their silence may not be used to their detriment;
- To be assisted by his Defender at the time of giving his statement, as well as in any other action and to interview in private previously with him; To be informed, both at the time of his arrest and at his appearance before the Public Ministry or the Control judge, the facts that are imputed to him and the rights that assist him, as well as, where appropriate, the reason for the deprivation of his freedom and the public servant who ordered it, showing him, as appropriate, the order issued in his against; Not to be subjected at any time during the procedure to techniques or methods that violate their dignity, induce or alter their free will;
- To request before the judicial authority the modification of the precautionary measure that has been imposed, in the cases in which he is in preventive detention, in the cases indicated by this Code; To have access to him and his defense, except for the exceptions provided in the law, to the research records, as well as to obtain a free copy, photographic or electronic record of the same, in terms of articles 218 and 219 of this Code. To receive the pertinent means of proof that he offers, granting him the necessary time for that purpose and helping him to obtain the appearance of the people whose testimony he requests and who cannot present directly, in terms of what is established by this Code;
- To be tried at a hearing by a Trial Court, before four months if it involves crimes whose maximum penalty does not exceed two years in prison, and before one year if the penalty exceeds that time, unless a longer term is requested for his defense; To have an adequate defense on the part of a law graduate or qualified lawyer, with professional license, whom he will freely choose even from the moment of his arrest and, in the absence of this, by the corresponding public defender, as well how to meet or interview him in strict confidence;
- To be assisted free of charge by a translator or interpreter in the event that they do not understand or speak the Spanish language; When the accused belongs to an indigenous people or community, the Defender must have knowledge of their language and culture and, if this is not possible, must act assisted by an interpreter of the culture and language in question; To be presented before the Public Ministry or before the Control Judge, as the case may be, immediately after being arrested or apprehended; XIV. Not to be exposed to the media;
- Not to be presented to the community as guilty;
- To request from the moment of their arrest, social assistance for minors or people with disabilities whose personal care is in their charge; To obtain their freedom in the event that they have been arrested, when preventive detention is not ordered, or Another precautionary measure restricting his freedom; To inform the corresponding embassy or consulate when he is arrested, and to provide him with immigration assistance when he has a foreign nationality, and The others established by this Code and other applicable provisions. The terms referred to in section X of this article, will be counted from the initial hearing until the moment in which the sentence issued by the competent jurisdictional body is issued.
When the accused has minors, people with disabilities, or older adults who depend on him in his care, and there is no other person who can exercise that care, the Public Ministry must channel them to corresponding social assistance institutions, for the purpose of receive protection.
Article 114. Declaration of the accused.
The accused shall have the right to declare during any stage of the procedure. In this case, you may do so before the Public Ministry or before the jurisdictional body, with full respect for the rights that protect you and in the presence of your Defender. In the event that the defendant expresses to the Police his desire to testify about the facts under investigation, the latter must communicate said situation to the Public Ministry so that his statements can be received with the formalities provided in this Code.
Under such scheme, it is noted that the defendant whom the legal institution of the Public Ministry designates as the author or participates in a criminal act, because of how it has been specified, the individual meets the characteristics of personality, subjectivity and capacity penal.
Finally, contrary to what is established in previous paragraphs, unimputability is the suppression of the individual's ability to act, which does not always mean that an unimpeachable individual does not perform actions and that as a result of this, he cannot respond at all for his actions, Therefore, in this regard, the new criminal procedure provided for in the National Code that is positive and in force at our time, establishes in Title IX, Unimputable Persons, Sole Chapter, Procedure for Unimputable Persons, in Articles 414 to 419, verbatim the following:
UNIMPUTABLE PERSONS
SOLE CHAPTER
PROCEDURE FOR UNIMPUTABLE PERSONS
“Article 414. Procedure for the application of reasonable adjustments in the initial hearing.
If in the course of the initial hearing, there are indications that the accused is in any of the cases of unimputability provided for in the General Part of the applicable Criminal Code, any of the parties may request the Control Judge to order the practice of expert opinions that determine whether it is effectively unimpeachable and, if so, whether the unimputability is permanent or temporary and, where appropriate, whether it was caused by the accused. The hearing will continue with the same general rules but the reasonable adjustments determined by the control judge will be provided to guarantee the person's access to justice.
In cases where the person is detained, the Public Ministry must apply reasonable adjustments to avoid a greater degree of vulnerability and respect for their personal integrity. For such purposes, it will be possible to request the practice of those expert opinions that allow to determine the type of unimputability that it has, as well as if it is permanent or transitory and, if it is possible to define if it was caused by the detainee herself.
Article 415. Identification of cases of unimputability.
If the defendant has been linked to the process and it is considered that he is in a situation of non-imputability, the parties may request the Control Judge to carry out the necessary expert opinions to determine if such an end is accredited, as well as if the unimputability presented it may or may not have been caused by the person.
Article 416. Adjustments to the procedure.
If the subject's status of unimputability is determined, the ordinary procedure will be applied observing the general rules of due process with the adjustments of the procedure that in the specific case the Control Judge agrees, listening to the Public Ministry and the Defender, in order to certify the participation of the unimpeachable person in the attributed act and, where appropriate, determine the application of the security measures deemed pertinent.
In the event that the state of unimputability ceases, the ordinary procedure will continue without the respective adjustments.
Article 417. Precautionary measures applicable to defendants.
Precautionary measures may be imposed on unimputable persons, in accordance with the rules of the ordinary process, with the adjustments of the procedure provided by the Control Judge for the case in which it is appropriate.
The mere fact of being imputable will not be a sufficient reason to impose precautionary measures.
Article 418. Prohibition of abbreviated procedure.
The abbreviated procedure will not be applicable to unimpeachable persons.
Article 419. Resolution of the case.
Once the existence of the fact that the law indicates as a crime has been verified and that the unimpeachable intervened in its commission, either as an author or as a participant, without any cause of justification provided in the substantive codes operating in his favor, the Prosecution Court will resolve the case indicating that there is a sufficient basis for the imposition of the applicable security measure; Likewise, it will be up to the jurisdictional body to determine the individualization of the measure, in response to the needs of positive special prevention, respecting the criteria of proportionality and minimal intervention. If these requirements are not proven, the trial court will acquit the unimpeachable.
The security measure in no case may be longer than the penalty that may correspond to it if it is attributable. "
Attentive to the foregoing, it is noted from the above that unimputability is the inability of the subject to be guilty, the lack of knowledge of the legality and / or alteration of the will being decisive, as long as they occur in the subject at the time of executing the legally described fact, in that order of ideas, we say that the unimputability is inability to understand the effects produced by their biological state, age (childhood or old age), or mental disorders or cultural problems.
By previously established, we can make a conceptual map of the subject at hand, as follows:
Congruent with what is considered in previous paragraphs, we can state that both imputability and unimputability are two legal presuppositions of guilt, which manage to satisfy the set of guarantees and rights that we are constitutionally bound to respect based on international treaties, to through the requirements that both imputability and unimputability cover in the norm.
Next we can also mention that the legal precepts invoked, in the new National Code of Criminal Procedures, are governed by five fundamental principles, which are publicity, immediacy, continuity and concentration, all of them supporting due process, this is thus derived from that these precept consider the conduct of the individual as a part of the crime, however for its full determination it is necessary to observe certain circumstances such as cognitive, sociological, physical, and capacity, which leads to establish the behavior of according to the criminal type as in the present issue has been pre-established.
Emphasis has been placed on the history and evolution of the birth of the conception of guilt and derived from it the study of the will of the subject to carry out certain typical behavior, such as imputability and unimputability, subsequently the characteristics of the guilt have been outlined. conduct of the individual as well as the way of studying them in the new accusatory penal system.
Personally, I adopt the criminal culture of the classical school, derived from the way in which the study of behavior is determined, which transcends the result of the offense, since knowledge of the circumstances displayed by the accused is transcendental To determine whether or not the acts were knowingly or voluntarily carried out by the subject, in that sense, as established in the aforementioned National Code, certain legal parameters must be established that satisfy the provisions of the norm and with it once Once the capacity of the subject has been established, the rule can be applied to the specific case; Therefore, as has been said, the human right of access to justice is guaranteed, and in our view, with such determination, security, the protection of society, is monitored,of the conducts that damage or endanger the legal assets protected by the Laws, for this reason in our times, transcendental reforms have been carried out in criminal matters, from which we can conclude that they are aimed at protecting human rights.
The foregoing leads us to reflect on whether the treatment of subjects derived from their state of cognitive, physical or mental capacity has been clearly established, since if the considerable decrease in any of these three aspects is proven, the subject versus The jurisdictional bodies have a special treatment contemplated in the same norm, however our Mexican criminal system has chosen to protect said decreases even when the subjects included within the notion of unimpeachable have periods of lucidity, so we must again analyze, if said incapacity of the unimpeachable being sometimes partial, they do not damage the right and guarantees of another individual or of society in general by the result of their actions; at the same time,We must ask ourselves, if granting said conception of unimpeachable established by law, this in turn generates procedural inequity? For this reason, the criminal system is being modernized, just as new systems of study of the matter carried out by legislators are perfected, who are in charge of complementing the doctrine with laws that are really operative in your penal system.
Reference sources.
Mexican Legal Dictionary, V. Editorial Porrúa, SA Mexico 1985.
Jiménez de Azua Luis, “Principles of Criminal Law. The Law, the Crime, 3rd edition, Ed. Sudamericana, Buenos Aires 1990.
National Code of Criminal Procedures, CHAMBER OF DEPUTIES OF THE H. CONGRESS OF THE UNION, General Secretariat
Secretariat of Parliamentary Services, Last Reform DOF 06-17-2016.
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