Criminal Procedure Investigation & Precautionary Measures

Posted on Nov 10, 2024 in Law & Jurisprudence

Criminal Procedure: Investigations and Measures

I. Investigations

Distinction between Investigation and Evidence:

  • Investigations aim to discover unknown facts, while evidence aims to verify statements.
  • Investigations typically occur in the preliminary procedure, while evidence is presented at trial.
  • Investigations can be conducted without contradiction, while evidence is presented under contradiction.

Initiation and Conduct of Investigations:

  • Investigations are ordered by the Magistrate, either automatically or upon request.
  • Judicial police may carry out investigations on their own or by order of the Magistrate.
  • Investigations may involve limitations on fundamental rights.

Measures that Restrict Fundamental Rights

Admission and Registration of Closed Premises

A court order is required to enter and search a person’s premises if there are indications that the accused is present or that the place contains evidence relevant to the investigation. Consent from the person concerned or a flagrante delicto situation negates the need for a court order.

Procedure:

  • The court is responsible for enacting the measure, but certain actions may be assigned to the police.
  • The Secretary documents the procedure.
  • The record must include details of the participants, actions, results, and any incidents.
  • If physical force is necessary, it should be used minimally and with respect for privacy.
  • The Judge collects instruments and effects of the crime, and books and papers are sealed and numbered.

Timing:

  • Domicile searches should be conducted during the day.
  • Searches in public places can be conducted at any time.

Documentation:

  • The Secretary’s record, signed by all participants, serves as pre-constituted evidence.
  • Police records have the value of termination, subject to ratification at trial.
Registration of Books and Papers

Types of Records:

  1. General books and papers (collected, foliated, and sealed by the Judge).
  2. Accounting books and papers, consular archives, and inviolable documents (Vienna Convention 1961).
  3. Notarial books and documents, and records of Property, Civil, and Commercial Matters (subject to specific laws and regulations).

Procedure:

  • Requires a reasoned court order.
  • Removal of records from their headquarters must be documented.
Detention of Postal and Telegraphic Correspondence

Conditions for Detention:

  1. The correspondence must be sent or received by the accused.
  2. There must be evidence that the correspondence contains information relevant to the investigation.
  3. There must be a reasoned court order.

Procedure:

  • The Judge, judicial police, postal authorities, or the head of the office can detain the correspondence.
  • The correspondence is referred to the Coroner for opening.
  • The opening is documented and signed by all attendees.
Intervention of Telephone Calls

Constitutional Requirements:

  • Exclusive Jurisdiction: Only a judicial authority can authorize the intervention.
  • Judgment: The order must be reasoned and explain the evidence of criminal responsibility.
  • Prohibition of Excess: The measure must be necessary and proportionate.
  • Limited Duration: The intervention cannot be indefinite (maximum 3 months, extendable).

Ordinary Legality Requirements:

  • Judicial Review: The intervention is authorized and executed by the court.
  • Jurisdiction: The court has jurisdiction over the selection of materials obtained.

Consequences of Violation:

  • Violation of constitutional requirements renders the tapes inadmissible as evidence.
  • Violation of ordinary legality requirements renders the evidence obtained null, but the facts can be proven by other means.

Documentation:

  • The record has the character of a private document.
  • The authenticity of the document can be contested.

Email Interception:

  • The same rules apply to email as to telephone calls.
Filming Diligence of Public Places

Authorization:

  • Authorized by a committee chaired by a Judge and the governing authority.
  • Police may install cameras without authorization in urgent situations, but must notify the judicial authority within 72 hours.
  • Consent of the building owner is required if cameras are installed in a building.
  • Judicial authorization or consent is required for cameras installed in a home.

Procedure:

  • Tapes are not destroyed during the procedure.
  • Parties can request viewing and, in certain circumstances, cancellation of the tapes.
Statements of the Accused

Procedure:

  • The first statement must be taken within 24 hours of arrest (extendable to 48 hours for serious cause).
  • The statement is recorded and signed by all parties.
Statements of Witnesses

Obligation to Declare:

  • Any person with relevant information about a crime is obligated to declare.
  • Failure to appear or testify can result in fines and charges of disobedience.

Exceptions to the Obligation:

  1. Physical or mental disability.
  2. Family relationships.
  3. Religious privilege.
  4. Representation or official capacity.

Procedure:

  • The Coroner summons witnesses.
  • Witnesses can provide written statements in certain cases.
  • Witnesses over 14 years old must testify under oath or affirmation.
  • The statement is documented and signed by all attendees.
  • Witnesses who cannot appear at trial may be re-examined under contradictory conditions.

II. Precautionary Measures

Precautionary measures are personal or property measures that ensure the proper conduct of proceedings and the effectiveness of the final decision.

Characteristics:

  • Instrumentality: The measure is subject to ongoing or imminent criminal proceedings.
  • Provisional: The validity of the measure depends on the circumstances justifying its adoption.
  • Proportionality: The harm caused by the measure should not be greater than the benefit obtained by the injured party with a conviction.

Requirements for Approval:

  • Periculum in mora: Risk that the accused may take actions to hinder or frustrate the proceedings.
  • Prima facie case: Evidence suggesting a likely conviction.
  • Need for judicial resolution: The measure must be necessary to ensure the effectiveness of the proceedings.

Classes:

  1. Personal: Arrest (citizen’s arrest, judicial police arrest), custody, parole, other personal protective measures.
  2. Real: Bond, embargo.

III. Protective Measures for Victims

Requirements:

  • Fomus facie case: Circumstantial complaint.
  • Periculum in damnum: Risk of repeated criminal activity.

Classes:

  1. Bans on residence, movement, and communication.
  2. Deprotection order.