7
26. In the democratic criminal process, the defendant, subject of the process,
invested with procedural rights that allow it to hold and ensure its material rights,
faces certain charges over which he awaits a judicial decision. Based on them, which
are the “matter of the trial”, it develops the acts of the defense. Thus the
importance that he know, from the beginning of the process –and even more so,
from the beginning of the process against him and since he is detained prior to his
presentation before the judge--, the acts he is charged with, in order to be able to
prepare his defense. This does not mean he must be informed of technical matters
regarding the charges against him, but instead certainty regarding –and of course
that his defense counsel also be informed—what acts are attributed to him, how they
are said to be committed, how they were carried out, etcetera, so that he may have
the necessary elements to contradict the indictment and, in the end, obtain a fair
judgment.
27. The above not only substantiates the demand for precise, complete, and
opportune information regarding the accusation –which is a fundamental right of the
defendant, a crucial part of the due process, without which the condition of the
defendant as subject of the trial to be reinstated as object of the investigation is
declined--, but also the essential relationship that must exist between the indictment
that presents the subject of the process and the judgment that decides this matter,
not another or others that could be related to it, but that in any case were not
subject of the evidence, the debate, the defense, and therefore could only be, in any
case, matters for a different process in which the corresponding guarantees of
information and defense are observed.
28. The conviction that the defendant must know, from the time of his arrest, the
charges against him –not just their technical names, that say little or nothing to the
common individual, but the acts that are being attributed--, has installed itself in the
modern procedure of democratic orientation. It is found, for example, in the demand
that those who arrest the alleged offender inform him of the charges, of the
possibility to refer to them, to remain silent, and to appoint a defense counsel. The
similar must occur when the defendant appears before the judge of his cause. The
same norm must be observed –as already mentioned—when the subject is a
foreigner and he is notified of the possibility to resort to the assistance of the consul
of his nationality.
29. In my opinion, nothing should oppose what the State law calls reclassification of
the facts, that is, their observation from another technical perspective, under a
classification or designation different to the one initially given, but keeping their
identity invariable, as the matter or subject of the process. In this case the defense
made and that continues to be made by the defendant and his defense counsel
continues to be valid, because it has referred and refers to facts that have not been
altered, changed, or increased, instead they have simply been designated with other
terms. Said in another way: the facts are not altered; the only thing that changes is
the nomen juris with which they are designated, and this variation does not have an
effect different to that of a technical depuration in the use of concepts, but it does
not affect the defense. Up to here, if we talk of a reclassification of the facts. And if
things remain here, there is no violation to the right to a defense.
30. This is
designated
prosecutor
channeling
not what happens if what the judgment of the Inter-American Court has
as “factual basis” of the criminal process is modified. If this occurs, the
that makes a new accusation must promote the acts that lead to a reof the process and, if it does not suggest it, the court itself must
Seleccionar párrafo de destino3
Conectar a un párrafo
Connect to an entity
Disable highlights
Añadir a la tabla de contenidos