Legal Recourses and Victim Protection in Criminal Proceedings

Posted on Dec 16, 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 appropriateness of the process’s progress. 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. They are based on a fumus boni iuris, 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 penalty limit is possible for offenses with a penalty of less than two years, as agreed to counteract 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 civilians. Civil measures can only be 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 order may be requested from administrative authorities, social services, victim services, the Public Prosecutor, State Security Forces and Corps, 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 Recourses

Regular (without limitation of the grounds)
Extraordinary (proceed only against certain resolutions and only for specific reasons)
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, supplication, appeal, complaint, and cassation are types of legal recourses.

Reform and supplication are regular (simply a claim for injury and place the body in equal circumstances, producing a new trial) and not returnable.
Appeal and complaint (when non-instrumental) are returnable.
Ordinary and extraordinary appeal is therefore appropriate only for certain reasons, and the body that decides is not in the same position as the one that issued the decision.
The remedy of complaint is instrumental and returnable when another appeal is denied.

Functional Competence

Coroners hear the appeal against decisions of the magistrates belonging to their party given in misconduct procedures.
The Provincial Courts hear appeals against decisions of Coroners, Criminal, Juvenile, and Prison Security, integrated into the area of the province.
The Criminal Division of the National Court resolves appeals against the Central Investigating Judge, the Central Criminal Judge, and the Central Judge of 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 Court, and against certain orders of the Provincial Courts.
Finally, the 2nd Chamber of the Supreme Court decides the appeal against rulings given by the Provincial Court, the National Court, and the High Courts of Justice, and also an appeal for unification of doctrine against the sentence handed down on appeal by the Provincial Court in juvenile proceedings.

Classification of Recourses: Ordinary and Extraordinary, Returnable and Non-Returnable

Returnable and non-returnable resources: the first includes reform, and the second includes petition, complaint, appeal, and cassation.

Reform

It can be used against all judgments of the Coroners and Criminal in criminal proceedings. We can distinguish:

In the regular procedure, it is granted against all writs and orders of the examining magistrates, except where expressly excluded. It usually has an optional basis, although in some cases, it is required to appeal.
The procedure can be shortened against decisions of the Trial Judge and Criminal Judge (unless they are exempted). It is never prior to the appeal; that is, they can appeal directly, so it is always permissive.

The procedure provides for the rapid prosecution of interlocutory decisions issued by the judge on duty. It is also provided against the orders of Penitentiary Surveillance Judges. It is lodged within three days of notification. The letter must be signed by counsel, stating the reasons for it to proceed after the transfer to the counterpart for two days and the resolution by car.

The appeal is granted on the same terms as the reform (they differ only in the body).
Appeal and complaint: The appeal is the ordinary remedy par excellence. A superior body carries all the issues that were decided in the decision being appealed. Appeals against interlocutory decisions are expected from orders made by the examining magistrates, inhibition orders, refusal of admission of the complaint, order refusing the opening of the trial) and Criminal Judges (the abbreviated procedure) and Minors. The application should be submitted to the court a quo (i.e., the one that delivered the decision) that will admit, if any, in one or both effects. The appeal is resolved at a hearing where all parties have the opportunity to present their arguments. In the abbreviated procedure, both the appellant and the appellee must file a statement containing all the grounds of appeal. As a general rule, there is no oral hearing. The appeal automatically resolves and communicates to the court that issued the decision. The order against the applicant, the contested decision regains its full force. If considered, the pronouncements must be met. The period for bringing an appeal is 5 days of service (both in regular and short).

Appeal Against Final Decisions

Judgments in misconduct procedures in the case of crimes against the Criminal Judges and Central Criminal Courts in summary proceedings and against those issued by the Judges of the Guard in”fas” proceedings.
The Magistrates, Presidents of the Jury Court integrated into the Provincial Courts, against the judgments and final orders issued by judges of the Central Juvenile and Juvenile Courts.
Against the final orders of the Provincial Courts considering res judicata, statute of limitations, amnesty, or pardon raised as previous articles.

In any case, the second instance has a bad compromise with the demands of immediacy and orality, as it cannot operate under the same conditions as the first.

Appeal Against Sentences of Summary Proceedings

Depletion reform is never mandatory.
Filing within 5 days.
The appeal may be based on defects in the background (a more favorable ruling is sought) or on procedural grounds (invalidity of activities pursued if essential form of the procedure, replacement of the proceedings at the time of the offense, and then once corrected).
The letter must state the grounds of appeal, which will be discussed briefly after the hearing proceeding. If a breach of rules and due process generating helplessness is alleged, it must be justified. If remediable defects are alleged, the ability to prove that the correction was requested must be demonstrated.
In the same application, the practice of improperly declared inadmissible evidence that could not be practiced for reasons not attributable to the party should be requested.
The letter is forwarded to the counterparty for ten days to make submissions and tender evidence. If necessary, it is referred to the court that resolves the appeal. The sentence (if there is a hearing, within 5 days; if not, within 10 days of receipt of the written) is not subject to appeal or review except for annulment.

Differing, the deadline for filing is 5 days, and the issuance of the case is 3 to 5 days, depending on whether or not there is a hearing. As for the appeal of judgments in the misdemeanor procedure, the time for appeal is 5 days. The processing procedure is short, but if the Provincial Court hears the case, it is necessary to know that the body would be constituted with a single Judge, resulting in the ruling issued being unappealable.

Grievance Appeal

It is used against orders that are not appealable to the examining magistrates. It stands directly before the judge ad quem in writing and signed by a solicitor and barrister, substantiated ex parte without further intervention by the Prosecutor if the cause was for a crime that should intervene. The complaint may have an instrumental character when awarded against decisions of the court a quo that pose a veto for the resolution of a returnable resource (appellate and cassation), resolving the court on appeal. It is given against the order of the Hearings and High Courts of Justice.