Chilean Criminal Procedure: Detention and Trial Evolution
Preventive Detention
In the old system, a judge could order detention based on submission to process. With an indictment, Article 264 was applied if the subject testified, evidence of the offense existed, and the subject’s involvement was proven. Today, custody requires formalization of the defendant.
Pretrial detention was a general rule previously; now, it’s an exceptional measure.
Criminal Procedure Code Principles
Key principles include a single trial, exclusive research court, presumption of innocence, victim protection, and adherence to guarantees.
Research Stage
Characteristics
Preparatory research stage: Gathering evidence of the offense. This phase is deformalizing and flexible, administrative (not judicial), led by the public prosecutor with freedom to choose the research strategy. Principles include orality, publicity, and secrecy.
Initiating Investigation
By the public prosecutor: Ex officio when the prosecutor notes the news criminis without third-party prompting (e.g., investigating public officials’ responsibility after earthquakes).
Complaint: A third party informs the national criminal prosecutor, triggering the inquiry mechanism. The complainant doesn’t participate in the investigation unless they are the querellante. Some individuals are obligated to report within a specific period.
Temporary File
Article 167: The prosecutor can provisionally file investigations lacking background for clarifying facts before judicial intervention. If the offense is punishable with an afflictive penalty, the Regional Attorney’s approval is required. The victim can request reopening the proceedings.
Judicial Intervention: Cases initiated by complaint may not end in a temporary file if the supervising judge has intervened.
Investigation Requirement: Every crime should be investigated to determine the offense and responsibility.
Afflictive Punishment: Crimes with penalties over three years require Regional Attorney approval for provisional filing.
Victim’s Request: The victim must be notified of a temporary file and can request reopening through the public ministry.
Power Not to Initiate Investigation
Article 168: The prosecutor can refrain from investigation if the facts don’t constitute a crime or criminal liability is extinguished, with the supervising judge’s approval.
Principle of Opportunity
Article 170: Prosecutors can’t initiate or continue prosecution for facts jeopardizing public interest unless the minimum penalty exceeds imprisonment or detention, or if it’s a crime by a public official. A reasoned decision is required, notifying the supervising judge.
Formalization Effects
Suspends the statute of limitations, initiates research, and limits the Attorney General’s ability to close temporarily. Formalization is mandatory for certain research measures violating individual rights and guarantees, anticipatory testimony, and precautionary measures (Article 186).
Evidentiary Conventions
Participants can agree on certified facts not to be discussed at trial, potentially excluding evidence later.
Exclusion of Evidence
Clearly irrelevant, publicly known, or dilatory evidence can be excluded. Illegal evidence is also inadmissible.
Indictment (Article 259)
The prosecution’s complaint with a specific illegal act, seeking a penalty.
Contents of the Indictment
Article 259: Must include:
- a) Identification of the accused and counsel;
- b) Detailed account of the act and legal qualification;
- c) Altering circumstances of criminal liability;
- d) Defendant’s participation;
- e) Applicable legal requirements;
- f) Evidence the prosecution will rely on;
- g) Requested sentence;
- h) Summary procedure application, if applicable.
Witness and expert lists must be provided with names, occupations, and addresses, specifying points of their statements.
The prosecution must relate to events and persons involved in the research, even with a different legal classification.
Immediate Judgment (Article 235)
At the formalization hearing, the prosecutor can request immediate trial. The complainant can accede to the accusation and evidence. The accused can make allegations and offer evidence. The judge can adjourn the hearing for the defendant to submit testing applications. Decisions under this article are not appealable. Applies in flagrante delicto during the formalization stage.
Irrelevant Evidence
Evidence not connected to the facts or the speakers’ theory is irrelevant. Publicly known facts are common knowledge. Delaying testing reduces witnesses or documents unrelated to the subject. Illegal evidence (Article 276) includes evidence from invalidated procedural steps or obtained in violation of fundamental rights.
Special Exceptions of Prior Statement
Lack of judge of warranty, res judicata, lis pendens, lack of authorization for criminal proceedings, and extinction of criminal liability.