Summary
Addressing unpublished procedural law issues necessarily implies resuming the conceptual bases of the system of fundamental rights and guarantees that guide the criminal process, and in turn, deepening the structural roots and substantial principles that define the rule of law.
I intend in this article to address an issue that is scarcely known in the procedural forum, such as alternative prosecution, due to its rare implementation in Spanish-speaking countries.
I believe that this novel legal figure, which will be released in Argentina with the entry into force of the Criminal Procedure Code of the Nation (Law 27,063), will strengthen the guaranteeing nature of the new procedural system, giving it an exemplary connotation in Latin America.
Keywords
Accusatory process - Accusation - Alternative accusation - Code of Criminal Procedure of the Nation (CPPN) - Law 27.063.
Abstract
Approaching unpublished procedural law issues necessarily involves retaking the basis of the fundamental rights and guarantees system that guide the criminal process, and, dig deepen in its structural roots and its substantial principles that define the rule of law.
In this article, I pretend develop a subject barely known on procedural forums, as is the alternative accusation, due to its uncommon implementation in the Spanish-speaking countries.
I believe this new legal action that will be apply in Argentina with the new Criminal Procedure Code (law 27.063), will strengthen the guaranteeing character of the new procedural system, giving an exemplary connotation in Latin America.
Keywords
Accusatory process - Accusation - Alternative accusation - Criminal Procedural Code of Argentina (CPPN) - Law 27.063.
Introduction:
The criminal action has been conceived doctrinally as a faculty or power to prosecute the alleged perpetrators of punishable acts.
Two procedural systems in criminal matters have played a leading role in a contradictory way, in the exercise of criminal action. The inquisitorial system concentrates the criminal action from its beginning -investigation- to its conclusion -sentence- in a jurisdictional body, mixing the functions of investigator, accuser, and judge in a one-person judge, which is why the right to defense is restricted of the investigated. In addition, in the inquisitorial system, since there is no relationship between the debate on the facts and evidence, and the final decision that the judge will adopt, the defendant is forced to make a broad defense that encompasses the diversity of qualifications that the fact could absorb. criminal committed.
Another system that is debated for the improvement of the criminal process, is the accusatory, which, despite its ancient origins, has gained great global acceptance, being welcomed in countries such as Venezuela, Costa Rica, Chile, Peru, Ecuador, Paraguay and Colombia, and that will be accepted in Argentina as of March 1, 2017, with the entry into force of Law 27,063 that contains the new Code of Criminal Procedure of the Nation.
The characteristic that stands out the most - perhaps - of the accusatory system, is the radical separation of the functions necessary for the materialization of the process, deconcentrating from a single official the qualities of investigator, accuser, defender and judge. However, in our view, the most notable and important characteristic of the accusatory system is the delimitation of the object of the trial in a specific classification and criminal type, creating security for the accused on the facts that he must refute during the interlocking of the litigation.. This circumstance establishes an unforeseeable obligation for the accuser to precisely delimit the crime that he can prove in the oral trial, under penalty of obtaining an acquittal due to lack of correlation between the accusation's claim and the proven facts (principle of congruence).
The accusatory system that will be established in the new CPPN, provides the possibility for the prosecutor, to indicate alternatively, factual circumstances that may define the criminal conduct in a different criminal type, for those cases in which his main argument is proven of insufficient way. Establishes Article 242 of the new Criminal Procedure Code of the Nation:
"The representative of the Public Prosecutor's Office may alternatively indicate those circumstances of the fact that allow framing the behavior of the accused in a figure other than criminal law, in the event that the elements that make up his main legal qualification are not proven in the debate. The complainant party will have the same power ”.
In our opinion, the alternative accusation will mark a milestone in the Argentine criminal process, insofar as it will reinforce the guaranteeing nature of the Code, expressed vehemently in its first book, Title I, by compelling the judge to acquit the accused, when the accuser does not prove the thesis sustained in his accusation, thus preventing the judge from correcting the errors or deficiencies of the Public Ministry.
It has been tried in this article to explain the scope and importance of this figure, establishing a position of its own that gives category and specificity to the subject, discussing criteria used by some authors.
Now, to understand the alternative accusation, we must begin by understanding the criminal action and its mode of exercise, referring almost entirely to the system that will establish the new Criminal Procedure Code of the Nation, as well as defining elements of importance for the understanding of the alternative prosecution, with a brief review of the various systems for proposing the prosecution, and which will be accepted by Argentina.
II. Background
The action. Criminal Action. Definition. Accusation and Imputation.
Before delving into the subject, it is necessary to define and understand what the criminal action is, which is the accusation and the imputation, so that the reader can locate - legally and spatially - at the critical point to be dealt with.
The Action has been understood for a long time “as an integral part of the substantial subjective right, or as the same right in its active and aggressive phase”, that is, it becomes part of a subjective right that the law confers on the individual, to exercise the claim before a jurisdictional body, claiming an injured right.
We can understand the action as "the legal power granted to every citizen, to request from the judge, the composition of the litigation, through the performance of the claim that the plaintiff asserts against the defendant." Couture tells us that "The action is the legal power to enforce the claim." For its part, Cuenca defines the action as "a public power, placed at the service of a collective interest, which causes jurisdictional activity to obtain the legal protection of the state."
This subjective right, guarded by the action, is granted both to individuals and to the state itself when it comes to public interests. Thus comments Cuenca “is a power that the law places at the disposal of all citizens, without any distinction, expressly and implicitly guaranteed by contemporary legal systems, and sometimes this power is entrusted to the initiative of the jurisdictional body in certain legal disputes. public". In the latter case we will be in the presence of the public action, since the State assumes the ownership - sometimes exclusive - of the exercise of that action.
This public action can be exercised to claim the civil rights of the State, when it acts as a private individual, for example exercising an action to fulfill an obligation contracted with individuals. Likewise, the State can assume control of the exercise of the action –attributed by law- in matters of protection of public order, especially in criminal matters, where it absorbs and assumes a victim condition.
We observe that the concept of action has been developed over the concept of civil action, for this reason criminal processors, in order to conceptualize criminal action, have analyzed the conditions made to civil action in the procedural theories that define it.
Defining the criminal action presents the problem of covering precisely the owner of the same, since it can be seen in this matter laws where the criminal action is not exclusively granted to the State, but is shared, being provided, in specific cases, to the necessary exercise by the aggrieved individual or victim.
The concept of criminal action has its antecedent in the Justinian Digest, in the formulation made by Celso "nibil aliud est actio quam ius quod sibi debeatur indicio persequendi" which was understood as the right to pursue through the process what is due.
For Binder, in criminal matters the action must also be taken into account from the public and private point of view. Private action is the "faculty of the victim to start the criminal prosecution." Binder also refers that private criminal action not only focuses on the formal claim, but also materializes, even through the sole complaint.
Public criminal action "is one exercised exclusively, excluding and ex officio by the public prosecutor, or the judge, depending on the procedural regulations, for the prosecution of a crime." "The concept of public criminal action then becomes one of the fundamental elements to support the legitimation of the state's action in the criminal process."
As we stated supra, two procedural systems in criminal matters have contradictorily given prominence to the exercise of criminal action. The inquisitorial system concentrates the criminal action from its beginning to its conclusion in a plenipotentiary judicial body who moves to know crime news, mixing the functions of investigator, accuser, and judge, which is why the right to defense of the defendant, who many times does not know what he is accused of due to the lack of precision in the accusation, in addition, because there is no relationship between the debate on the facts and evidence, and anticipating the final decision that the judge could adopt, the investigated will be forced to carry out a broad defense that covers the diversity of qualifications that the criminal act committed may absorb.This system - for example - ruled in Venezuela under the criminal procedure code until 1999.
Another system that competes for the primacy of the criminal process is the accusatory, which has gained wide acceptance in the world, being welcomed in most of the countries of Central and South America.
In our view - as we mentioned earlier - the most notorious and important characteristic of the accusatory system is the delimitation of the object of the debate, in a specific classification and criminal type, creating security for the accused on the facts that he must refute during the trial. For this reason, the new code establishes the obligation for the accuser to precisely delimit the crime that he can prove in the trial, under penalty of obtaining an acquittal due to lack of correlation between the accusation's claim and the proven facts.. This obliges the State - through the Public Prosecutor's Office - to intervene in the criminal process only when there is a real reason to do so, and therefore it must exercise it in all cases ”.
Referring to the accusatory system, Magaly Vásquez expresses:
The accusatory system, which is the first to emerge in time and corresponds to a private conception of criminal law, presents as characteristic notes:
- The accusation is proposed and supported by a person other than the judge. The procedure is oral. As a consequence of orality, the procedure is public. Equal rights and powers between the accuser and the accused. Exclusion of all freedom of the judge in the search for evidence, is That is, the proposition of the evidence is in charge of the parties. Personal freedom of the accused until the sentence is final.
With the eminent validity of the Criminal Procedure Code of the Nation, a true revolution will take place, adopting an accusatory system and leaving aside the eclectic system - French system - in which the inquisitive or summary phase and the public phase or trial were combined, also called plenary.
The criminal action, in the new procedural legislation, will be exercised through several figures, but - for the purpose of the subject matter - we will emphasize two of them: the accusation and the - so-called - complaint. The accusation is the exercise that the State makes of that action. It would come to be what the proceduralists call the "claim", translated into the criminal field, because through this accusation the criminal acts are discriminated, they are framed within a criminal type, and the prosecution of the accused or alleged guilty is requested. As Pérez Sarmiento expresses:
The accusation as a form of exercise of criminal action, is the fundamental presupposition of the accusatory process, as it clearly derives from its name, because, as a general and almost inexorable rule, without action there is no jurisdiction in this type of procedure, which It owes its name to the fact that it is totally subject to the terms of the accusation, unlike the inquisitorial procedure, which depends largely on the unlimited activity of a judicial body that is an investigator, accuser and decision-maker at the same time.
We said previously that criminal action in the accusatory process is shown through the figures of the accusation and the complaint. The accusation materializes when the State, through the Public Ministry, carries out said criminal action as its holder, in cases in which a publicly protected legal asset has been injured. But, when the crime affects interests that the law considers depend on the exercise of the victim, this ownership of the action is transferred to the victim, and is exercised through the complaint. The complaint being understood then as the accusation made by individuals in their condition of victim. The complaint can also be exercised in a process of public interest, but subject to the fate of the prosecution, in terms of its qualification and destination.
Through the accusation or the complaint, the imputation of the crime attributed to the investigated is made, understanding the imputation as "the attribution of a punishable act". When the work of imputation is carried out, the criminal act subject to sanction must be framed in a criminal type (theft, homicide, robbery), also establishing the appropriate legal qualification
according to the circumstances that produced the criminal act (qualified, aggravated, simple). For Carnelutti the accusation is properly "the formulation of the criminal claim." Establishing a strict criminal sense, "the imputation consists precisely in attributing to the conduct of a person a specific criminal result."
III. Formulation of the Accusation. Systems.
Once the investigative work is completed, the Prosecutor must determine whether it provides a serious basis for requesting the public prosecution of the accused, that is, the accusation “will undoubtedly be based on the high probability that the evidence offered in the oral trial will produce a conviction ”, which will be done, after ruling out the assumptions of availability of the criminal action, and some conclusive acts such as the dismissal. If the Prosecutor considers that there are sufficient merits for the prosecution of the accused, he will formulate, through an accusatory libel, the imputation of the crimes attributed to the investigated, meeting the requirements required by article 241 of the Criminal Procedure Code. "Together with the imputation,in the accusation the prosecutor will have to promote the evidence that must be evacuated in the oral trial ”.
With the presentation of the accusation, the phase of control of the accusation begins, which will conclude with the order to open an oral trial. The accusation will define the object of the debate, "therefore, one of the essential virtues of the accusatory system of criminal prosecution is that the accusation sets the frameworks or limits of the debate."
Once this accusation is admitted, it will determine precisely:
1) The subject against whom the accusation is acting, who, as the accused, acquires the category of accused. This brings as a necessary consequence, for the sake of the right to defense, that the accused must be notified of the action against him, and must only defend himself based on the limits that this set.
2) The prosecution sets the limits of the debate. This being, from our point of view, the most important function of the prosecution, since it allows the right to defense to be exercised with greater security and certainty. In addition, because it forces the plaintiff to determine the facts with great precision, which, in accordance with the investigation carried out, will be able to prove, and based on the circumstances of the occurrence of the fact, specify the legal qualification attributed to the crime.
3) According to the structure of the accusatory system, the evidence offered in the accusation, which in the investigation provided the basis for the public prosecution of the accused, must be evacuated at the oral trial hearing, guaranteeing the principles of control and contradiction of evidence, placing the prosecutor in a similar situation to that of the parties in a civil proceeding, when debating on equal terms.
A. Systems for the exercise of criminal action:
There are different ways to exercise the accusation. These are given in the different legislations that contemplate the accusatory system, and are determined according to the holder or the way of proposing it.
1. Systems for the exercise of criminal action according to its holder:
It is diversified into three modalities which are: Absolute, cumulative and alternative.
In absolute systems, the state reserves exclusively the exercise of criminal action, excluding the victim from actively intervening in the process. Regarding this type of system, Pérez Sarmiento affirms, “they postulate that the judicial prosecution of crimes of public action corresponds exclusively to the State through the Public Prosecutor's Office or Public Ministry, therefore, if there is no interest of that body in the formulation of the charges in a process, there will be no criminal trial. "
According to this type of system "the criminal action for the judge of the case to initiate the process, is exercised only by the Public Ministry, and individuals only have the power to urge the promotion of the action, by that one", which they will do through the complaint, as it is "an exclusive public action of the Public Ministry."
This system is the one used in most Anglo-Saxon countries, especially in the United States of America. Due to the total absorption of criminal action by the State, it is considered that these systems curtail the right of the victim, and "perhaps this is the greatest weakness of these systems."
The cumulative systems, "are those in which the simultaneous exercise of criminal action by various subjects is possible", in them it is observed participation of the state in the exercise of the action, through the prosecutor, the private prosecutor, and even a popular accuser in acts causing public commotion. Pérez Sarmiento considers "that the systems inspired by this premise are the most democratic of all those humanity has known."
There is a last category of systems for the exercise of criminal action, and they are the so-called alternative systems, in which the ownership of the action belongs exclusively to the State, and residually to the victims, who would make use of them when the State considers convenient not to exercise criminal action. In these cases, it is usual that when the Prosecutor of the Public Ministry desists from making an accusation, the Court may well summon the injured or victims to accuse.
2. Systems for the exercise of criminal action according to the way it is proposed.
From this area we talk about pure and simple systems, limited alternatives and full alternatives:
In the first system (pure and simple), the accuser (public or private) "can only propose the accusation by presenting the facts in one and only way, with only one possible qualification and with a single punitive claim."
According to the system of limited alternatives, the accuser can present in his accusation, several criminal alternatives with different legal qualifications. But it bears that name because once the evidentiary debate is over, the accuser is obliged to "choose only one of said variants to keep them as the sole content of the accusation, explaining the reason for his choice in the oral report."
The systems of full alternatives, allow the accuser "to maintain the accusatory variants formulated throughout the process and sustain them until the end." In our opinion, this is the system that welcomes the new Criminal Procedure Code of the Nation, with certain variants that will be mentioned in the next chapter.
This last system is subdivided into a system of absolute full alternatives, in which the accuser may hold several alternatives as main, and that of subsidiary alternatives, in which the accuser will make a main charge and one or more subsidiaries in case of not the main one to be demonstrated.
IV. Alternative Indictment.
As a general rule, it is established that once the investigation is concluded, which provides a serious basis for the oral and public prosecution of the accused, the accusation is presented, the requirements of which are well defined in Article 241, establishing, among others, “The precise expression of the applicable legal provisions and their due correlation with the facts and with the intervention attributed to the accused in them ”.
Usually, the accusation is limited, among other things, to clearly expressing the type of crime charged to the plaintiff with the precise determination of the legal qualification, which for certain specific circumstances is attributed to the punishable act. When the accusatory libel is presented, the framework on which the debate will revolve in the oral trial is delimited, which is why it must be specified, on the basis of the facts that occurred and probative elements that it will use, the criminal type and its legal qualification.
Now, this accusation, simple in its concept but complex in its essence, exclusively determines the factual legal framework on which the litigation will be locked, since it subjects the judge to decide based on what is formulated or alleged in the accusation by the representative of the public vindict. In addition, for obvious reasons, it obliges the accuser to demonstrate during the evidentiary debate, the qualified fact, since if his claim is distorted, it would cut off all possibility of conviction, and it cannot be corrected by the judge as it would vitiate the sentence.
It is easy to think about or imagine a specific case in which the determination of the crime (theft, robbery, homicide) and its legal classification (aggravated, qualified, simple) can be established with precision and without major difficulties.
But, there are criminal acts that arise in circumstances such that they play their position between certain criminal types or legal qualifications, such as, for example, between theft and improper theft; between rape and carnal act; between culpable homicide (consensual fault) and murder with eventual intent; between simple homicide and pre-intentional murder; creating a difficulty to precisely differentiate to which criminal type it belongs, a situation that materializes a risk for the accuser of mistaking his claim, and thus forcing the Judge to decide the acquittal of the accused.
This situation occurs in most of the laws that embrace the absolute adversarial system, given the rigidity of its regulations. However, there is no unified trend in the countries that host the accusatory system, since the exercise of the action varies according to the way it is proposed (pure and simple, limited alternative, and full alternatives) or according to its holder (absolute, cumulative or alternative).
The new Argentine system welcomes as an essential postulate the achievement of true justice, granting broad protective controls of the guarantees that it contemplates and highlights its first book, title I, where the legislator highlights the guarantees that protect the process.
It should be noted that in other countries where the accusatory system has been implemented, it has been erroneously questioned that the rights it establishes are exclusively focused on the protection of the accused because they are the legal weak. However, in Argentina this position would be perfectly rebuttable, since it is observed that the Code provides as a principle the equality of the parties, being, in any case, its purpose that of strengthening the majesty of justice through the reconstruction of the truth.
In the new CPPN, there is the alternative possibility for the prosecutor to choose between one classification and another, between one type of criminal offense, as provided in article 242, which establishes:
Article 242.- Alternative accusation. The representative of the Public Prosecutor's Office may alternatively indicate those circumstances of the fact that allow the behavior of the accused to be framed in a figure other than criminal law, in the event that the elements that make up his main legal qualification are not verified in the debate. The complainant party will have the same power.
This figure of alternative accusation will be of the latest application in Argentina, in addition to not being contemplated in many of the laws that adopt the accusatory system in the world, having references of its application only in Venezuela, Spain and Cuba.
Now, since the accusation determines the object of the debate, there are authors such as Pedro Berrizbeitia who believe that this figure seeks to avoid “that the defense may be caught in the oral trial and that it does not prove facts or produce arguments intended to refute these possible legal qualifications ”.
We understand that the alternative accusation provides a true guarantee in the search for the truth, inasmuch as it avoids that in the formulation of the accusation, due to the special circumstance of some criminal acts, the criminal type is imputed with imprecision, which, during the oral debate is inefficiently proven, proving on the contrary, on the basis of the same facts, the occurrence of a different type of crime.
Thus, when establishing the possibility of the prosecutor filing an alternative accusation, it is evident that the upcoming criminal procedural system is highly guaranteeing, highlighting that the legislator wants to protect the parties. On the one hand, it protects the accuser from making his claim illusory, and on the other, it protects the accused from surprises generated by changes in qualification, or the incorporation of new facts - already known - that undermine his right to defense, and from there derives the reason for this novel figure. Then, in order to respect the guarantees that govern the criminal process, emblazoned in its first title, the trial judge must be severe in not admitting an accusation due to evidentiary inconsistency, decreeing the dismissal or acquittal of the accused when none of the accusations invoked by the prosecutor. AND,the Prosecutor must be more careful and assertive when presenting his accusation to avoid destroying his claim.
Then, when the prosecutor finds barriers that establish a minimum difference between two criminal types, or between several qualifications, he must necessarily file, together with the main accusation, an alternative accusation, establishing in his accusatory libel a main accusation and another accessory accusation avoiding with This means that the criminal action goes unpunished.
Now, it is necessary to ask ourselves, how many alternatives can the prosecutor make use of in his accusatory libel? We believe, in accordance with the text of article 242 of the code that the Prosecutor may make use of a single alternative imputation, since the rule is expressed in a singular way by establishing that: "it may alternatively indicate those circumstances of the fact that allow framing the behavior of the accused in a different figure from the criminal law ”(our bold letters), this reason that leads us to think that the system adopted by the new Code is one of limited alternatives, unlike the one adopted at the time in Venezuela.
The aforementioned norm also provides that the prosecutor may use versions of the facts that could alternatively be framed in a different criminal type, for which we understand that the intention of the legislator was to avoid inaccuracies in the assessment of the facts when they could be played between different crimes or qualifications.
Once the prosecutor has made use of the alternative accusation, we ask ourselves until what stage of the trial can the prosecutor hold both positions? We believe that until the conclusion of the trial, because the legislator does not limit the opportunity. However, we believe that the Prosecutor should, at the time of the closing of the debate (final discussion article 268 CPPN), choose which of the charges he chooses, if between the main or the alternative, for the logical reason that at the time of the conclusions You must already be clear about what facts you were able to demonstrate. On the other hand, it would be inconsequential and not very didactic, to hold at the end of the debate, two different types of criminal offenses that sanction an act differently, since it cannot reach mutually exclusive conclusions.
Finally, it should be noted that article 242 of the Code grants the power to offer an alternative accusation to the complainant, being able to do so through their own private accusation, or also, adhering to those presented by the Prosecutor.
So far the situation seems simple and completely resolved, but behind the veil of simplicity hides a much more complex reality that deserves to be considered.
We will begin by saying that in some countries the judge is expressly allowed to modify the legal classification of the crime based on the proven facts "based on the principle of iura novit curia", and some consider that this action is perfectly valid, then, as Ormazabal Sánchez thinks, “the judge's examination is not projected on the accusation in a technical sense, but, in any case, on the accusation made in the investigation. In effect, the judge is linked to the facts that are the subject of the accusation, but not to the legal classification that the Public Ministry and the complainant have given to those facts. Thus, for example, in Venezuela, the judge in the preliminary hearing (equivalent to the control hearing of the accusation in the CPPN) is allowed to attribute a provisional qualification to the fact,and even attribute a different qualification to that considered in the accusation. In addition, the trial judge is allowed to attribute a different qualification to the event from that established in the order to open the trial, and even modify the previously approved qualification, a situation that –according to some- is reminiscent of the previously prevailing inquisitorial system.
Despite the positions that may exist in defense of the powers of the judge at the time of sentencing, there is a doubt as to whether in the new Code of Criminal Procedure of the Nation it is granted the possibility of change of qualification, because said power is not expressly defined in procedural law, so it could be concluded in advance that the judge must respect the qualification, and abide by it. In addition, if the Prosecutor has considered that the investigation yielded a serious basis for the prosecution of the accused, and has carefully selected the evidence that he will use in the trial, which he directs to prove the criminal type and its legal qualification, it would not be reasonable to pretend to attribute to the judge another possibility of control, when his fundamental task is to judge.
Then, if there is an erroneous determination of the criminal type in the accusation, the judge must therefore acquit the accused.
However, it must be understood that one thing is to prove the criminal act, and another is its legal qualification. It is evident that if the Public Prosecutor - or the private accuser - does not prove the fact that they attribute to the accused, the judge must acquit him because his innocence is presumed. However, when the mistake occurs in the legal determination, we believe that the same should not happen, because –as we mentioned above- the judge is not tied to the qualification.
In this sense, we consider that the judge can modify the legal qualification attributed to the crime, since in any case, it is the responsibility of applying the law. This is coupled with the fact that the problem of legal qualification is a problem of mere law, without impact on what is alleged and proven, that is, on the facts in dispute. The opposite would represent an excessive formalism that could lead to impunity.
In this regard, it is worth mentioning as an example a supposed case in which the prosecutor had charged with attempted homicide (article 79 in accordance with article 42 of the National Penal Code), when a robbery had been carried out and threatened the life of the victim with a firearm. However, at the conclusion of the trial, the judge considers that what was proven was aggravated robbery in accordance with the provisions of paragraph 2 of article 166 of the National Penal Code. Should the judge acquit the accused even though his guilt has been proven? We believe that the logical answer would be a resounding no, since the judge is not tied to the legal qualification, but to the proven facts. Then, the judge must give the event the qualification he considers fair, ignoring the one suggested by the Prosecutor.
In addition to the aforementioned, we also observe that the power to modify the legal classification, including the power to modify the accusation, is not expressly granted to the judge in the control hearing. Thus we see that the order to open the trial (Article 247 CPPN) will contain “only” the mention of the admitted accusation.
Now, if the hearing provided for in article 247 of the CPPN is intended to control the prosecution, that is, it constitutes a trial hearing for the prosecution, it seems absurd to think that the only function of the judge is to admit or not the accusation.
Then, in the control hearing of the accusation, among other things, the merits of the accusation will be debated, that is, it will be discussed whether the fact is typical or atypical; if there is a cause for justification; If the person under investigation is unimpeachable if the act is malicious or culpable. Exceptions will also be discussed; the classification of the crime will be debated; The evidence will be challenged as to its legality, necessity, relevance and usefulness; There will even be a debate on possible nullities. Then, it would be absurd to pretend that the judge can only admit or reject the accusation.
Despite the fact that article 247 CPPN, which defines what the court order must contain, does not refer to such decisions, it must be logically accepted that the judge must draw up a sentence that includes the incidents and decisions made at the hearing. In said interlocutory, among other decisions, the evidence that was not admitted, the change of qualification, the total or partial acceptance of the accusation will be expressed, when decreeing, for example, the dismissal of one of the alleged crimes. Furthermore, since they are interlocutory decisions, they may be appealed.
Notwithstanding this concussion, it is necessary to understand that the judge's comptroller function does not constitute a remedial function of the fiscal activity. Then, the judge will issue the order to open the trial that will contain the accusation admitted and refined, explaining its limits in terms of facts and legal qualification. This order will not be appealable.
At this point the question arises, what is the alternative accusation for then? Taking the foregoing into consideration, it might be thought that in the future this figure will perhaps fall into disuse, as happened in Venezuela, which is why it was eliminated from the Organic Code of Criminal Procedure two years after its validity.
Now, without trying to reach a conclusion that in the future will be wrong, it seems appropriate to consider that the reason for the existence of the alternative prosecution - as we have reiterated several times - focuses on the protection of the right to defense of the accused, by define the legal-factual framework on which it must exercise its defense, both for the purposes of the hearing to control the accusation, and for the trial, once the accusation has been purged by the judge who controlled it. In any case, it will be up to the jurisprudence to determine its value and scope.
Bibliography
- BERRIZBEITIA, Pedro, "The intermediate phase and the control of the accusation" in First Conference. Procedural Law Penalty. The new Criminal Procedure, Caracas, UCAB, 1998 BINDER, Alberto, Introduction to Criminal Procedure Law, Buenos Aires, Ad-Hoc, 1999.CARNELUTTI, Francesco, "Lessons on the Criminal Procedure", in PEREZ SARMIENTO, Ecic, Accusatory System and Oral Trial, "Teoría y Técnica", Valencia, Vadell Hermanos, 1997. COUTURE, Eduardo, Fundamentals of Civil Procedural Law, Buenos Aires, Depalma, 1981.CUENCA, Humberto, Civil Procedural Law, Volume I, Caracas, Editions of the UCV, 1994 DEVIS ECHANDÍA, Hernando, Compendium of Procedural Law, Volume I, Bogotá, ABC, 1985 Law 27.063 Criminal Procedure Code of the Argentine Nation LIEBMAN, Enrico, Manual of Civil Procedural Law, Buenos Aires, Ediciones Jurídicas Europa-América, 1980. PEREZ SARMIENTO, Eric,Comments to the Organic Code of Criminal Procedure, Caracas, Vadell Hermanos, 2000. PEREZ SARMENTO, Eric, Accusatory System and Oral Trial, “Theory and Technique”, Valencia, Vadell Hermanos, 1997. RENGEL ROMBERG, Arístides, Venezuelan Civil Procedural Law Treaty, Volume I, Caracas, Ed. Arte, 1992.ORMAZÁBAL SÁNCHEZ in VÁSQUEZ, Magaly, “The control of the accusation” in Second Conference on Criminal Procedure Law, Caracas, 1999, UCAB, p. 221VÁSQUEZ, Magaly, New Venezuelan Criminal Procedural Law, Caracas, UCAB, 1999.VÉLEZ MARICONDE, "Criminal Procedural Law" in DEVIS ECHANDÍA, Hernando, Compendium of Procedural Law, Volume I, Bogotá, ABC, 1985WIKIPEDIA, Public Criminal ActionRENGEL ROMBERG, Arístides, Venezuelan Civil Procedural Law Treaty, Volume I, Caracas, Ed. Arte, 1992.ORMAZÁBAL SÁNCHEZ in VÁSQUEZ, Magaly, "The control of the accusation" in Second Conference on Criminal Procedural Law, Caracas, 1999, UCAB, p. 221VÁSQUEZ, Magaly, New Venezuelan Criminal Procedural Law, Caracas, UCAB, 1999.VÉLEZ MARICONDE, "Criminal Procedural Law" in DEVIS ECHANDÍA, Hernando, Compendium of Procedural Law, Volume I, Bogotá, ABC, 1985WIKIPEDIA, Public Criminal ActionRENGEL ROMBERG, Arístides, Venezuelan Civil Procedural Law Treaty, Volume I, Caracas, Ed. Arte, 1992.ORMAZÁBAL SÁNCHEZ in VÁSQUEZ, Magaly, "The control of the accusation" in Second Conference on Criminal Procedural Law, Caracas, 1999, UCAB, p. 221VÁSQUEZ, Magaly, New Venezuelan Criminal Procedural Law, Caracas, UCAB, 1999.VÉLEZ MARICONDE, "Criminal Procedural Law" in DEVIS ECHANDÍA, Hernando, Compendium of Procedural Law, Volume I, Bogotá, ABC, 1985WIKIPEDIA, Public Criminal ActionHernando, Compendium of Procedural Law, Volume I, Bogotá, ABC, 1985 WIKIPEDIA, Public Criminal ActionHernando, Compendium of Procedural Law, Volume I, Bogotá, ABC, 1985 WIKIPEDIA, Public Criminal Action
See article published at:
Law 27.063 Code of Criminal Procedure of the Nation
LIEBMAN, Enrico, Manual of Civil Procedural Law, Buenos Aires, Europe-America Legal Editions, 1980, p. 111
RENGEL ROMBERG, Arístides, Venezuelan Civil Procedural Law Treaty, Volume I, Caracas, Ed. Arte, 1992, p. 162
COUTURE, Eduardo, Fundamentals of Civil Procedural Law, Buenos Aires, Depalma, 1981, p. 72
CUENCA, Humberto, Civil Procedural Law, Volume I, Caracas, Editions of the UCV, 1994, p. 135
ibid
System that welcomes the New Criminal Procedure Code of the Nation law 27.063
Classic definition enunciated by Celso that translates "Action is nothing other than the right to pursue what is owed to us in court."
BINDER, Alberto, Introduction to Criminal Procedure Law, Buenos Aires, Ad-Hoc, 1999, p. 214
WIKIPEDIA, Public Criminal Action
BINDER, Alberto, op.cit, p. 213
Criminal Procedure Code of the Argentine Nation, Law 27.063
BINDER, Alberto, op.cit, p. 220
VÁSQUEZ, Magaly, New Venezuelan Criminal Procedure Law, Caracas, UCAB, 1999, p. 27
Law 27.063
It is necessary to emphasize that not only the accusation constitutes the exercise of criminal action. Criminal action also implies the activation of the justice system to prosecute a crime and try a criminal. Then, the action will also be exercised when a crime is reported, or when the victim complains.
If the structure of the complaint is observed in the CPPN, this basically constitutes a mode of initiation of the investigation –See article 208 CPPN-. Through the complaint, whoever considers himself a victim becomes an active part in the process and this occurs in crimes of public action -see article 85 CPPN- because crimes of private action will depend exclusively on the impulse of the victim. However, when the Public Ministry Prosecutor presents his accusation, the complainant may - as established in article 243 CPPN - adhere to the prosecution accusation, or present his own accusation. In this case, he would no longer be a plaintiff, and would become a "private" accuser.
PEREZ SARMENTO, Ecic, Accusatory System and Oral Trial, Valencia, Vadell Hermanos, 1997, p. 39
PEREZ SARMIENTO, op.cit, p. 347
CARNELUTTI, Francesco, "Lessons on the Criminal Procedure", in PEREZ SARMIENTO, Eric, Comments on the Organic Code of Criminal Procedure, Caracas, Vadell Hermanos, 2000, p. 346 22
PÉREZ SARMIENTO, Eric, Comments on the Organic Code of Criminal Procedure, Caracas, Vadell Hermanos, 2000, p. 346
BERRIZBEITIA, Pedro, “The intermediate phase and the control of the prosecution” in First Conference. Procedural Law Penalty. The new Criminal Process,, Caracas, UCAB, 1998, p. 207
Law 27.063
Ibid.
Article 246 Code of Criminal Procedure of the Nation
Article 247 Code of Criminal Procedure of the Nation
PEREZ SARMIENTO, Eric, op.cit, p. 40
PÉREZ SARMIENTO, Eric, op.cit, p. 44
DEVIS ECHANDÍA, Hernando, Compendium of Procedural Law, Volume I, Bogotá, ABC, 1985, p. 194
VÉLEZ MARICONDE, Criminal Procedural Law at DEVIS ECHANDÍA, Hernando, op.cit, p.194
PÉREZ SARMIENTO, Eric, op.cit, p.44
PÉREZ SARMIENTO, Eric, op.cit, p.45
ibid
ibid
PÉREZ SARMIENTO, Eric, op.cit, p.46
ibid
ibid
Code of Criminal Procedure of the Nation, Law 27.063
It is worth noting that these figures do not exist in Argentine criminal law.
See article 119 Penal Code heading, and literal f0)
Literal b) article 81 Penal Code
Article 2 Code of Criminal Procedure of the Nation
Criminal Procedure Code of the Argentine Nation, Law 27.063
The alternative accusation was in force from the entry into force of the Organic Code of Criminal Procedure on 07/01/1999 until the partial reform of 11/14/2001. It was established in the final section of article 329: "The Public Ministry may indicate, alternatively or alternatively, those factual circumstances that would allow framing the behavior of the accused in a type other than criminal law, in the event that they are not demonstrated in the debate the elements that make up the main legal qualification, in order to enable the defense of the accused ”.
BERRIZBEITIA, Pedro, ob.cit, p. 210
We clarify that there is the possibility of extending the accusation due to new facts, not known prior to the trial, or arising on the occasion of it, as provided for in article 262 of the CPPN.
Here comes to life the legal maxim that expresses that when the legislator does not distinguish, the interpreter must not distinguish.
VÁSQUEZ, Magaly, op.cit, p. 171
ORMAZÁBAL SÁNCHEZ in VÁSQUEZ, Magaly, “The control of the accusation” in Second Conference on Criminal Procedure Law, Caracas, UCAB, 1999, p. 221
Article 314 of the Venezuelan Organic Code of Criminal Procedure establishes: “The order to open the trial must contain (…) 2. A clear, precise and detailed list of the facts, their provisional legal classification and a succinct statement of the reasons on which founds and, if applicable, the reasons why it departs from the legal classification of the accusation "
Article 345 of the Venezuelan Organic Code of Criminal Procedure, in its first section, establishes: "In the conviction, the court may give the fact a different legal qualification from that of the accusation or the order to open the trial (…)"
Hearing to control the accusation article 246 Code of Criminal Procedure of the Nation
Leaving aside the analysis of guilt, as this is a matter to be discussed at trial.
The second section of article 246 of the CPPN refers to these decisions, which must be reflected in a document, that is, in a sentence.
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