Fundamental Principles Governing Criminal Procedure Law
CONTINUATION OF ITEM 3
Principles of Criminal Proceedings
A criminal proceeding is a set of acts that seek to clarify specific facts. The principles of the process define the subject matter of the proceeding and, if applicable by the parties, govern the behavior of the subjects involved. There are fundamental principles governing parallel proceedings, such as the form of acts or the relationship between the parties and the court. These principles are based on technical or practical criteria.
Pretrial Principles
- Prohibition of Torture and Inhuman and Degrading Treatment (Article 15 EC)
- Custody Safeguards, as established in the Law of Habeas Corpus
- Prohibition of Entry and House Searches without consent or court authorization
- Prohibition of Communication Intervention
Specific Principles of Criminal Procedure
Principle of Necessity: The criminal process is mandatory; there are no private criminal prosecutions or enforcement of punishment among individuals. (Referenced in Article 24.2 EC and Article 1 LECrim.)
Principle of Legality: Upon becoming aware of a crime, criminal proceedings must be initiated.
Principle of Contradiction (Adversarial Principle): The process seeks evidence, and the best way to find it is through confrontation between the theories presented by the parties. This applies in all three phases of the process, even in the pretrial stage, but is emphasized upon the opening of the trial (Articles 311, 333, 343 LECrim). In theory, the prosecution and defense are treated equally by law; however, in practice, the state primarily funds the indictment.
Principle of the Ordinary Judge Predetermined by Law: Processes must be headed by legitimate judges established by law.
Principle of Judicial Neutrality: The judge must be impartial and not be associated with either the facts or the parties. The judge cannot judge a case in which they were previously involved.
Right to be Informed of the Charge: This right ensures that the defense can be properly exercised.
Principle of a Public Trial with Full Guarantees (Article 24 CE).
Right to the Presumption of Innocence: This is a rebuttable presumption that can only be destroyed by evidence presented against the accused. Notwithstanding this principle, precautionary measures may still be supported against a person.
Additional Procedural Rights and Principles
Right Not to Plead Guilty and Not to Testify Against Oneself: Only third parties can be prosecuted for false testimony. Defendants who testify falsely cannot be prosecuted for perjury (although they are morally obligated to tell the truth).
Principle of Public Criminal Action: Criminal proceedings are public. The Public Prosecutor’s Office can initiate action, but so can all citizens. The bond required for private prosecution should be proportional to the estate of the person engaged in the criminal action.
Right to Use Evidence for the Defense: The defendant is not obliged to prove anything, but they may support their position with evidence or proof.
Right to Reasons for Judgments: Incorporated by Article 120 CE, this states that the tribunal must provide reasons for its decision.
Right to Appeal: Every citizen has the right to appeal. However, appeals may sometimes only challenge the quantitative aspects, not the qualitative findings of fact. For example, if a man is accused of murder and maintains his innocence, but the court declares him the murderer yet acquits him because the offense has prescribed, the accused may not appeal the finding of guilt since the outcome (acquittal) is favorable.
Principle of Orality: The process must be oral. A process is considered oral when the decisive factor is what has been stated verbally, even if the proceedings are collected in a written report.
Principle of Immediacy and Concentration: (Often linked to the principle of Orality). All procedural acts must be performed directly before the Court. No set deadlines.
Principle of Opportunity (Discretionary Prosecution): With the slightest indication that a crime may have occurred, the Public Prosecutor (MF) is generally obliged to initiate criminal proceedings (Principle of Legality). Despite this, there are some processes that cause more harm than good. In these cases, the Principle of Opportunity may be applied, allowing the prosecutor not to initiate criminal proceedings (this usually applies only in cases of petty crime).
Principle of Publicity and Secrecy: Proceedings should generally be public, except for those which the court considers must be secret. The preliminary investigation (summary) can also be declared secret, though the prosecutor always retains the right to access the information. The secrecy of the preliminary investigation may not last more than a month. Conversely, the discussions during the trial must always be public.