Legal Measures for Victim Protection and Sentence Execution
Measures to Protect Victims: Purpose and Classes
The court can take measures such as the prohibition of residence, movement, and communication in proceedings for crimes of homicide, abortion, injuries, torture, crimes against freedom, against moral integrity, sexual freedom, against the right to privacy, to honor, heritage, and socio-economic benefits. These measures are based on a prima facie case (circumstantial complaint), not on the existence of a periculum in mora (risk of delay), but rather on the need to ensure the proper progress of the process. If there is a periculum in damnum (risk from repeated criminal activity), security measures may be granted automatically (after hearing the parties) pending criminal proceedings. Their duration will never exceed the time of the sentence.
In case of failure of the measure, the judge or magistrate may, after hearing the parties, impose a more restrictive measure, which may include pretrial detention. The interim protection order goes beyond the margins of precautionary measures. It is based on a fumus boni iuris (plausibility of the claim), but not on the existence of a periculum in mora, but rather on a periculum in damnum.
The content of the measure includes criminal, civil, and charitable measures. Detention without a time limit is possible for offenses with a penalty of less than two years, as agreed to counter periculum in damnum. A limit of one year is indicated if the offense carries a penalty not exceeding 3 years, and two years if it carries a superior penalty.
Civil measures have a maximum duration of 30 days, subject to the filing of the corresponding civil action. Welfare measures require immediate notification of the situation to management. The latest content from the order indicated is the duty to inform the victim permanently of the procedural status of the accused, in particular, their criminal penitentiary situation.
Measures can be granted ex officio or upon request. Civil measures can only be granted at the request of the victim or their legal representative, unless there are minors or disabled individuals, in which case the order may be requested by the Public Prosecutor. The request can be made with administrative authorities, social services, victim services offices, the Public Prosecutor, State Security Forces and Corps, or with the judicial authority.
Once the application is received, it is resolved after a hearing for all parties and their representatives. The order will be entered in the Central Registry for the Protection of Victims of Domestic Violence.
Classes of Appeals
- Natural:
- Regular (without limitation of the grounds)
- Extraordinary (proceed only against certain resolutions and only for specific reasons)
- Based on the deciding body:
- Returnable (heard by the hierarchically superior body that issued the contested decision)
- Non-returnable (heard by the same body that issued the decision in question)
Classification of Appeals
- Regular and non-returnable: Reform and supplication
- Regular and returnable: Appeal and complaint
- Extraordinary and returnable: Appeal for cassation
Reform, Supplication, Appeal, Complaint, and Cassation
- Reform and supplication are ordinary (based on injury and placing the deciding body in equal circumstances, leading to a new trial) and non-returnable.
- Appeal and complaint (when non-instrumental) are returnable.
- Cassation is extraordinary and therefore appropriate only for certain reasons. The body that decides is not in the same position as the one that issued the decision.
- Complaint is instrumental and returnable when another appeal is denied.
Functional Competence
- Coroners hear appeals against decisions of the magistrates’ court belonging to their district in misconduct procedures.
- Provincial Courts hear appeals against decisions of Coroners, Criminal, Juvenile, and Prison Security Courts within the province.
- The Criminal Division of the National Court resolves appeals against decisions of the Central Investigating Judge, the Central Criminal Judge, and the Central Judge for Penitentiary Surveillance.
- The Board of Appeal of the National Court hears appeals of this kind brought against decisions of the Criminal Division of that Court.
- Chambers of Civil and Criminal Law of the Supreme Court respond to appeals from the Magistrates’ Court, Jury President, and against certain orders of the Provincial Courts.
- The 2nd Chamber of the Supreme Court decides on appeals against rulings given by the Provincial Court, the National Court, and the High Courts of Justice. It also handles appeals for the unification of doctrine against sentences handed down on appeal by the Provincial Court in juvenile proceedings.
Execution of Prison Sentences
The execution of penalties and security measures should include the goal of social rehabilitation of sentenced persons and their reintegration. This includes the right to paid work and consequent social security affiliation, as well as the right of access to culture and the integral development of their personality.
The competent court shall submit to the director of the prison the sentence with a copy of the settlement in relation to the sentence made by the Court Clerk. This includes:
- First degree or closed regime: Applicable to extremely dangerous or unsuitable prisoners, including preventive detention in these cases.
- Second degree or regular regime: For other prisoners.
- Third degree or semi-open regime: Applicable to prisoners who can continue serving their sentences in semi-liberty, provided they have fulfilled their civic responsibilities. In cases of terrorism offenses, credible repentance is required.
- Fourth degree or parole: Granted when the prisoner is in the third degree, has served 3/4 of their sentence, demonstrates good conduct, has a good prognosis for social reintegration, has satisfied civil liabilities, and, if convicted of terrorist crimes, has shown credible repentance. Parole can also be granted to individuals aged 70 or over or those suffering from a terminal illness.
Parole lasts throughout the remainder of the sentence and can be revoked if the individual re-offends or fails to honor the conditions under which it was granted.