Criminal Trial Procedure: Opening, Pleadings, and Plea Agreements
The Order for Opening of the Trial
The Order for Opening of the Trial signifies the formal acceptance of the indictment, recognizing the right to prosecute. This order is definitive and is not subject to appeal.
A trial is opened unless there is no reasonable suspicion that the accused perpetrated the alleged act, or when the act is not a criminal offense, or if the accused is not subject to criminal responsibility.
Dismissal of the Case
Dismissal is the resolution opposing the opening of the trial. The resolution regarding the opening of the trial is issued once the order concluding the summary investigation is confirmed. This resolution must be issued within three days. The court’s resolution will then make the proceedings available to the parties, detailing the status of the facts.
Provisional Marks and Pleadings
Once the trial is provisionally opened, all litigants have the opportunity to present their claims and objections. This is done through the Letters of Provisional Marks in the common procedure, or through indictments and defense statements in the shortcut procedure.
The notice of prosecution and defense determine the probandi thema (the facts to be proven), as the evidence activity during the trial will focus on the facts asserted by the parties in their Provisional Marks.
Submission Deadlines and Content
Provisional Marks must be presented:
- In the common procedure: Before the Court.
- In the shortcut procedure: Before the examining magistrate.
All parties must submit these writings within five days (ten days in the shortcut procedure).
The content of the Provisional Marks is complex and must cover several aspects:
- Facts: The factual foundation of the prosecution notice must include both offenses arising from the summary investigation and any mitigating or aggravating circumstances or defenses.
- Legal Classification and Punishment: Determining the facts constituting the predicate offense and related crimes.
- Identification of the Accused: Identifying the accused and their degree of involvement (e.g., author or accomplice).
- Civil Claim: Proposing any related civil claim.
- Evidence Proposal: Manifesting the tests intended to obtain evidence, including a list of experts and witnesses expected to testify.
Conformity (Plea Bargaining)
Conformity is a method of concluding the process that involves the defendant accepting the facts, the legal classification, and the required criminal and civil liability. Conformity is only permissible if the proposed sentence does not exceed six years of imprisonment.
Judicial Oversight of Conformity
The magistrate maintains control over the correctness of the accepted legal qualification and the appropriateness of the penalty under that classification. The judge must also monitor the voluntary nature of the consent provided by the accused, ensuring that the decision is not induced by threats or coercion.
This requires a mandatory hearing where the judge confirms that the accused understands they are waiving their right to defense at trial.
Preliminary Issues
In the first three days of the deadline to qualify, parties may propose Preliminary Issues. These typically include:
- Jurisdiction of the court
- Res judicata (a matter already judged)
- Statute of limitations
- Amnesty or pardon