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due process.
In several occasions notorious transgressions that involve the
mistreatment of the defendant in order to obtain a confession, an irregular and
prejudged investigations, acts of courts that lack independence or impartiality,
complete deprivation of the right to a defense, obstruction of justice, elimination of
the access to evidence, absence of ideal means of appeal, and other violations of the
same nature have been brought to the consideration of the Court. This case is about
a violation of another type: inconsistency between the indictment and the
punishment, which implies –despite it does not offer a dramatic appearance or
immediately offends social consciousness—a restriction to the right to a defense,
which is the most valued right for the person who is subject to trial and it has an
effect on the final decision of the court that convicts. Any person who supposes the
possibility of being taken to a criminal trial --and who is absolutely free of this
possibility? --, knows that the law acknowledges the right to a defense and trusts
that he will have access to it.
23. It is probable that whoever observes this matter may consider that it is a mere
procedural technicality. The separation between the so-called “technicalities” and
serious violations is a matter frequently analyzed by the writers of the procedure and
it is not foreign to debate in different circles of opinion. Now, it is important to
mention that behind the so-called “technicalities”, which some observers minimize
and even attribute adverse results for security and justice, we find real human rights
that must be respected. Finally, the moral and political strength of the democratic
society is also measured through its capacity to attend to the specific rights of
individuals and at the same time serve the objectives of security and justice
demanded by society and that are the reason of existence of the legal system.
C) Principle of consistency between the indictment and the judgment
24. In the Case of Fermín Ramírez v. Guatemala, the Inter-American Court examined
some matters of the due process that it had not known of previously. Today it has
not focused, as in so many other cases, on the natural judge, the independence and
impartiality of the judge, the possibility to appoint defense counsel and receive its
assistance, the structure of the evidence, the appeal against convictions, the
reliability of the confession and others that have consistently been in its view. In
this case, information of the criminal process in a democratic society has been put
into game: the consistency between the indictment and the judgment, which not
only involves a logical connection between two procedural acts of extreme
importance, but it also involves the defendant’s right to a defense –because it affects
it deeply--, and therefore it is projected over the totality of the process and falls
upon the validity of the judgment itself.
25. Even more so, the consistency I am referring to –which avoids legal decisions on
the margin of the indictment made by a body different to and with independence
from the judge—constitutes a regular expression of the division of powers and
characterizes the accusatory criminal procedural system. In effect, it puts in
evidence the separation between the accusing body and the body that issues the
judgment, and acknowledges the persecutory function of the first and not the latter.
If this was not so, that is, if the judge could exceed the terms of the indictment,
ignore them, or substitute them at his discretion, we would be in the presence of an
inquisitive judicial performance: the judicial body would itself include facts and
charges in the sentence that have not been presented by the prosecution, and it
would become, in great measure, an accusing agent.
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