Principles of Criminal Procedure Code: A Guide
Preventive Detention
Under the old system, a judge could order the detention of any individual subject to or from the mere act of submission to process. This submission to process (indictment, the most important decision of the old process) was not limited. The judge would apply Article 264 if the subject had testified, the existence of the offense was shown, and the subject’s role as perpetrator, accomplice, or accessory was proven. The act of processing was dictated, and the person remained in custody.
Today, authorities cannot dictate custody; it must be applied for, and the defendant must be formally charged.
In the old system, pretrial detention was a general rule of prosecution; today, it is an exceptional measure.
Principles of the Criminal Procedure Code
- Single Trial and Persecution
- One Court, Exclusive of Research
- Presumption of Innocence
- Protection of the Victim
- Wary of Guarantees
Research Stage: Characteristics
A Preparatory Stage of Research: This stage involves gathering indicators of the crime. The information gathered does not constitute evidence.
Informal and Flexible Phase: This is an administrative, not judicial, phase. The public prosecutor has the freedom to choose the research strategy.
Orality, Publicity, and Secrecy:
Forms of Starting an Investigation
- Ex Officio: Initiated by the public prosecutor. For example, the prosecutor might initiate an investigation in the case of major earthquakes where public officials may bear some responsibility, even without a third-party complaint.
- Complaint: A third party informs the national criminal prosecutor of the alleged crime. This news sets the investigation mechanism in motion. The complainant is not a party to the investigation process, unlike the plaintiff (querellante).
- Denunciation: Similar to a complaint, but some parties are obligated to report certain crimes within a specific timeframe.
Starting the Inquiry Process
The inquiry process can be initiated ex officio, by denunciation, complaint, or request from the court prosecutor (prosecutor of the Supreme Court and all prosecutors in the court of appeals).
Temporary File
Article 167. Temporary File. While the judge’s intervention to guarantee the proceedings has not taken place, the prosecutor can provisionally file investigations lacking sufficient background information to clarify the facts.
- If the offense carries a severe penalty, the prosecutor must refer the decision on provisional filing for approval by the Regional Attorney.
- The victim may request the prosecutor to reopen the proceedings and conduct investigative actions. They may appeal the denial of this request to the prosecution authorities.
- There should be no guarantee the judge has intervened.
Case law has established that investigations initiated by complaint cannot end in a temporary file because the complaint is filed with the supervising judge, who has therefore already intervened.
If initiated by complaint in court, the matter is debatable. If submitted in writing to the court, the teacher also believes the limitation is raised.
No History of Research
Every crime should be investigated to determine the offense and identify the perpetrator.
It is possible to have a clear offense but not the perpetrator, in which case the investigation continues.
However, it is difficult to have the perpetrator without a defined offense.
Approval of the Regional Prosecutor for Severe Penalties
Crimes with severe penalties may be provisionally filed if the facts are identified. However, seeking approval from the regional prosecutor is necessary if the penalty is severe. Without this approval, the case cannot be archived.
A severe penalty is any punishment exceeding three years.
Congruence lies in the facts, not the legal classification.
Victim’s Request to Reopen Proceedings
The victim must be notified of a temporary file. The request to reopen should be made to the public ministry, not the court, as the judge intervenes for guarantees, and a different delivery mechanism would be required.
Power Not to Initiate an Investigation
Article 168. No Power to Initiate Investigation. While the judge’s intervention to guarantee the proceedings has not taken place, the prosecutor may refrain from any investigation if the facts in the complaint do not constitute a crime or if the background information and available evidence ascertain that the criminal liability of the accused is extinguished.
- This decision must always be justified and subject to the supervising judge’s approval.
- The judge should not have intervened to guarantee proceedings.
Circumstances for Not Initiating an Investigation:
- The facts do not constitute a crime (e.g., a breach of contract alleged to be a hoax).
- Evidence establishes that criminal liability is extinguished (e.g., the case of Diego Portales’ death).
The supervising judge must approve the reasoned decision, which should be included in the prosecutor’s request and constitute a judicial decision.
Principle of Opportunity
Article 170. Principle of Opportunity. Public prosecutors may refrain from initiating criminal prosecution or discontinue an ongoing one if the act does not seriously jeopardize public interest, unless the minimum penalty for the crime exceeds imprisonment or detention in the minimum degree, or if the crime was committed by a public official in the exercise of their functions.
The prosecutor must issue a reasoned decision and notify the supervising judge, who in turn notifies any involved parties.
Within ten days of the announcement of the prosecutor’s decision, the judge, ex officio or at the request of any involved party, can overturn the decision if they believe the prosecutor exceeded their authority regarding the minimum penalty, if the penalty exceeds imprisonment or detention in its minimum degree, or if the crime was committed by a public official in the exercise of their functions.