Legal Measures: Protecting Victims and Criminal Procedures

Posted on Dec 19, 2024 in Law & Jurisprudence

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 on the need for an appropriate 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. If the measure is not followed, 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 (presumption of good law), but not on the existence of a periculum in mora, and another on the periculum in damnum. The content of the measure includes criminal, civil, and charitable measures. Detention without a limit is possible for offenses with a penalty of less than two years, as agreed to counter periculum damnum, indicating a limit of one year if the offense has a penalty not exceeding 3 years, and two years if it has 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 order must 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 by 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 order may also be requested from administrative authorities, social services, victim services, the Public Prosecutor, law enforcement, or 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 Legal Appeals

Natural Classes:

  • Regular (without limitation of the grounds)
  • Extraordinary (proceed only against certain resolutions and only for specific reasons)

Returnable vs. Non-Returnable:

  • Returnable (known to the hierarchically superior body which issued the contested decision)
  • Non-Returnable (known to the same body that issued the decision in question)

Rating:

  • Regular and Non-Returnable: Reform and Supplication
  • Regular and Returnable: Appeal and Complaint
  • Extraordinary Returnable: Appeal for Cassation

Reform, entreaty, appeal, complaint, and appeal for cassation are legal resources. Reform and appeal are ordinary (just a claim for injury and place the body in equal circumstances as are produced in a new trial) and non-returnable. Appeal and complaint (when non-instrumental) are regular and returnable. A special appeal is therefore appropriate only for certain reasons, and the body that decides it is not located in the same position as that which issued the decision. The remedy of complaint for denial of another resource is instrumental and returnable.

Functional Competence

  • Coroners hear appeals against decisions of the magistrates’ court belonging to their party given in fault proceedings.
  • Provincial Courts hear appeals against decisions made by Coroners, Criminal, Juvenile, and Prison Security, integrated into the area of the province.
  • The Criminal Division of the National Court (AN) resolves appeals against the Central Investigating Judge (JCI), the Central Criminal Judge (JCM), and the Central Penitentiary Surveillance Judge (JCVP).
  • The Appeals Chamber 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 the appeal against rulings given by the Provincial Court, the National Court, and the High Court of Justice, and also an appeal for unification of doctrine against the sentence handed down on appeal by the Provincial Court in juvenile proceedings.

Records and Obtaining Internal Body Fluids or Items Causing Injuries

Internal records of the body must be treated separately. “The body’s internal records require absolute necessity, consent, and a reasoned court order (not being able to require the individual to submit to it, as it would be human and degrading treatment). Refusal could, in conjunction with other evidence, be incriminating evidence and even lead to prosecution for disobeying authority. It must also be carried out by doctors to avoid compromising dignity, and it would mean that the right to privacy gives way to overriding public interests.” In the case of radiological examinations, the Supreme Court has ruled that the accused can be subjected to it even against their will, requiring information and assistance.

When it comes to obtaining components of the body that may have caused injuries, it must be understood that the basic right to physical integrity requires the necessary legal coverage. DNA testing is attributed to the competent court, with the power to direct the judicial police or the coroner for the purposes of collection, custody, and subsequent examination of such samples.

Detention: Budgets, Classes, Deadlines, and Procedures

Custody or detention is the deprivation of an individual’s freedom of movement pending criminal proceedings, there being no final conviction. It is the most serious state intrusion into the sphere of individual liberty and is justified only when essential and unavoidable in order to meet the state’s duty to prosecute crimes, ensure the effective conduct of criminal proceedings, and enforce the verdict.

Requirements for Detention

  • Fumus boni iuris: The need for precise allocation of a crime punishable by imprisonment (not applicable against a fault) of less than two years, as well as a subjective element, the criminally responsible subject.
  • Exceptions to Pretrial Detention: Pretrial detention is taken whenever the case involves a custodial sentence, although less than two years, in three assumptions:
    • Prior convictions of a crime not canceled or subject to cancellation, provided that it also concurs.
    • Danger in delay when it had rendered in the previous two years at least two requisitions.
    • In the case of an intentional crime where there are elements to understand that the subject has been integrated into a criminal organization or habitually engaged in criminal activity (designed to avoid the possible commission of new crimes).
  • Periculum in mora: Custody, subject to the principle of legality, requires it to be constitutionally legitimate to adopt. Pretrial detention must pursue the following purposes:
    • Avoid the risk of the subject evading justice.
    • Prevent the concealment, alteration, or destruction of evidence.
    • Prevent the recurrence of crime.

The adoption of custody requires a reasoned judicial resolution. The Criminal Procedure Code (CPP) provides three forms of detention:

  1. Ordinary Prison: The most common form of placement in prison, ensuring the separation of prisoners who are serving sentences.
  2. Solitary Confinement: An aggravation of the remand prisoner’s situation, involving complete isolation from the outside world. It requires judicial motivation and lacks the ability to communicate with the outside, except for the right to communicate confidentially with a lawyer. Duration should be brief and not exceed what is strictly necessary to implement urgent measures, not exceeding 5 days. It can be extended another 5 days if the individual is integrated into armed groups or terrorists, and exceptionally, to another 3 days.
  3. Attenuated Detention: Two assumptions:
    • For reasons of illness, in which case the deprivation of liberty at home is permitted, with required medical outputs and appropriate surveillance measures.
    • To not thwart drug treatment or detoxification, in which case detention is met in the establishment concerned, and the individual may not leave without court approval.