The State is obliged to decide the request for annulment before the preliminary hearing, because that
decision will determine whether or not the proceedings are free of constitutional violations. Once the
decision on annulment has been taken, the preliminary hearing can then be convened if the request
for annulment is declared inadmissible. This is the situation of the proceedings at the present time;
paralyzed by the State because the judge has not decided the request for annulment which is the only
one that exists and there is no other remedy, and this is why the preliminary hearing cannot be
convened.
122.
In addition, expert witness Ollarves Irazábal indicated that: 144
The time frame for deciding it is clearly identified in our laws in the Organic Code of Criminal
Procedure; it is three days; this is for absolute nullities, nullities that violate the essential content of
human rights, the constitutional rights and guarantees that cannot be ratified or rectified.
[…]
Relative nullities, nullities that can be rectified, refer to the nullity that may be involved in the
requirements established in article 326 relating to the charges. And, in the case of absolute nullities,
these cannot be rectified and must be decided within a definite time frame of three days as the
Constitutional Chamber has repeatedly indicated.
123.
Meanwhile, witness Castellanos stated that: 145
Nullity as such is not a remedy, but rather a prerogative of all the parties who intervene in a criminal
proceeding in order to denounce the violation of constitutional prerogatives that apply in their favor.
The request for a declaration of nullity is filed in the intermediate stage […], but also in the context of
the brief with objections and offer of evidence, which are essentially a form of answering the charges,
this request for annulment, together with the other claims must be decided during the preliminary
hearing.
[…]
This nullity was requested in the context of the exercise of the burden that falls on the defense to
react to the charges, and the only way that the court has to rule on this request for annulment, which
was requested in the brief filed by the defense, is during the preliminary hearing, because the request
for annulment is analyzed in that brief and […] a similarity exists between the presentation made by
the defense, for example, when filing the objections, but it is also cited in the request for annulment.
A ruling on nullity would mean that the judge would be making an early ruling on the merits during
the preliminary hearing.
124. The parties also referred to case law of the Supreme Court that would support their
theses. Thus, for example, expert witness Ollarves Irazábal provided the Court with several
judgments of the Supreme Court that reveal the complexity of this matter. In one of these
judgments, on February 14, 2002, the Constitutional Chamber of the Supreme Court 146
indicated that:
During the preparatory and intermediate stages of criminal proceedings, the supervisory judge shall
ensure that the procedural guarantees are respected, but the Organic Code of Criminal Procedure does
not indicate the procedural occasion for filing and deciding violations of such guarantees […].
Since the law is silent on this point, how should the supervisory judge deal with a request for
annulment? In the opinion of this Chamber, it depends on the procedural stage at which the request is
filed, and if it is filed in the intermediate stage, the judge can decide it either before the preliminary
hearing or as a result of that hearing, varying according to the constitutional violation that has been
alleged, because there are violations that it is not urgent to decide, because they do not harm the legal
situation of the parties immediately or irreparably.
[…]
If a request for annulment is filed, the supervisory judge – based on the urgency in view of the type of
violation, and given the silence of the law – may, before ordering that the case go to trial, and at any
time before that act, rule on it, even though it is preferable that this is done during the preliminary
hearing.[…]
144
Statement made by expert witness Jesús Ollarves Irazábal during the public hearing held in this case.
145
Statement made by witness Néstor Castellanos during the public hearing held in this case.
146
Judgment of the Constitutional Chamber of the Supreme Court of February 14, 2002 (Merits Report, tome
VII, folio 3167). Similarly, in its Merits Report, the Commission cited another decision of the Constitutional
Chamber of the Supreme Court of Justice. File No. 07-0827. Decision of July 20, 2007.
40
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