94
makes it impossible to determine the seriousness of the facts in order to legally classify the
conduct into some of the criminal types; even more, in those cases where there is no other
evidence. The Court considers the State has the obligation to perform the examination and
verify the injuries the moment they complaint is filed and the injured party appears, unless
the time elapsed between such complaint and the moment the incident happened makes it
impossible to classify the injury.
341. In those cases where no legal-medical examination was conducted, the complaints
were lodged between 11 days and 6 months after the incidents occurred. In some of these
cases, the Tribunal considers that the lapsing of time made such examination impossible or
ineffective. Nevertheless, the Court notes that the investigations related to the facts of
February 27 and March 1, 2004 (supra para. 244 and 256) were conducted ex officio and in
spite of that, no legal examination was ordered. Hence, the State did not furnish sufficient
evidence to prove that the Attorney General’s Office undertook the appropriate steps in this
investigation. From this it follows that the authority in charge of the criminal prosecution
failed to carry out an effective and diligent investigation in those cases.
C.ii.4 Lack of a timely decision of the authority in charge of the
criminal prosecution when the reported facts constituted privately
actionable crimes
342. The State alleged that the filing of the complaint of the aggrieved party has never
been authorized by the alleged aggrieved persons, and for that reason, no proceeding has
been initiated under the judicial system. Specially, regarding seven incidents of which there
is a clear unwarranted procedural inactivity of the Attorney General’s Office (supra para.
183, 187, 196, 204, 209, 225 and 231), the State alleged that the fact would be framed
within the criminal type of slander, which falls within the category of privately actionable
crimes.
343. As has been mentioned (supra para. 311) regarding the facts the State alleged to
have constituted privately actionable crimes, in those cases, the Attorney General’s Office
had the obligation to request the Investigating Judge to dismiss the complaint. Hence, the
failure of state authorities to render a timely decision that could clarify that the procedure
initiated was not the adequate procedural solution, did not allow or contribute to the
effective determination of several of the illicit acts and, where applicable, the corresponding
criminal responsibilities. Therefore, this Tribunal finds that the State cannot justify its total
inactivity to conduct an investigation on the basis of facts that were not brought to the
attention of the competent authority by means of the procedure established by the domestic
legislation.
C.ii.5 Unwarranted delay in the rendering of decisions regarding
requests for dismissal
344. The Court notes that, as has been informed by the State, in the investigations into
the facts of November 22, 2001; April 3 and January 9, 2002 (supra para. 172, 178 and
180) the Investigating Judge has not render a decision regarding the requests for dismissal
filed by the Public Prosecutor after a year and a half and two years, respectively, as of their
submission. In such regard, the Basic Code of Criminal Procedure establishes that “upon the
filing of the request for dismissal, the Judge shall convene the parties and the victim to an
oral hearing in order to discuss the grounds of the petition, unless the Judge deems the
discussion is not necessary to prove the motive”322. Besides, the COPP provides that "the
322
Section 323, Basic Code of Criminal Procedure, supra note 300.
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