2023-12-13 03:30:00
María Luisa Andrada*
On December 5, the Legislature of the Province of Neuquén sanctioned Law 3415, which modifies art. 222 of the Criminal Procedure Code of the Province of Neuquén that regulates Direct Trial.
He Direct trial is a method of conducting oral debate in a criminal proceeding that consists of eliminating the preparatory stage of the trial because all the evidence has been gathered. almost immediately following the alleged event occurred.
The regulation prior to this modification, It provided that the request for a direct trial had to be agreed upon by both parties to the process (accusation and defense). and that this mechanism would apply especially to cases of flagrancy.
What changed now? It is only enough for the prosecutor to request it, without the need for the defense to agree. But be careful, technical assistance is given the possibility of opposing to the request in a well-founded manner, which would give the impression that a small impact might be generated in relation to it, but not that much. Next, it is established that “the guarantee judge will decide on the relevance of the opposition, and the resolution will be irrevocable.” EITHER that is, as if equality of arms existed; as if the contradiction existed.
In short, the key to proposing this type of trials in flagrante delicto cases has been given to the prosecution, without the defense (public or private) having any chance of being able to reverse the decision adopted by the judge in this regard, since it is not appealable. Whether or not the defense generated evidence in relation to the fact does not seem to matter.
Perhaps we are not yet able to gauge the magnitude of the reform, but in an adversarial system, such as the one that governs Neuquén, the parties confront their positions and deploy evidentiary measures so that the judge can make the decision that has the most support in the evidence collected. . If the defense did not do this work from the position it occupies as a technical assistant (which is also a position conventionally protected), it would be doing a meager favor to the defendant who comes to it. precisely so that he can control the process that is being followed once morest him. This role, central in all adversarial systems, provides legitimacy to the processes and, therefore, to the sentence handed down therein, which is why it is not minor.
Of course, I do not agree with the modification and not only because of the place in which it places the technical assistance of the accused but because our Code of Procedure in art. 17 establishes: “Judges and prosecutors will seek to resolve the primary conflict that arose as a result of the event, in order to contribute to restoring harmony between its protagonists and social peace. The imposition of the sentence is the last resort.”
This means that If the imposition of the sentence is the last tool that the State has to resolve the conflict, and the sentence can only be imposed following a trial has been held, then the trial must also be the last option available for the resolution of the conflict.. It is a logical reasoning that refers us to the duty that judges and prosecutors have to resolve the primary conflict to restore harmony between its protagonists and social peace.
And here a series of tools provided for in the Code (alternative solutions) for conflict resolution become important: the opportunity criteria (art. 106), which in turn encompass, for example, conciliatory or mediation procedures, in those cases in which such a solution is possible.
In this context, I maintain that advancing in providing for trial modalities that only depend on the accusation is to erase with the elbow a basic principle such as that established in art. 17.
Provisions of this type, which curtail the powers of the defense, reveal that the exercise of the role of the defense is annoying, uncomfortable and, I add, congratulations, because it means that the role is being fulfilled.
The Neuquén Procedural Code empowered all defense attorneys that take place in criminal proceedings to carry out investigative tasks (art. 135).
What does that mean? That just as the Prosecutor’s Office can investigate the incident, The defense can also do so, and draw on independent evidence that can support its own theory of the case or question or confront the fact. accused.
And what does this have to do with the modification to the direct trial? A lot, because if the Prosecutor’s Office’s argument to be master and lord of the key to request direct trial in flagrante delicto cases has to do with the fact that it has already gathered all the evidence to bring the accused to trial: what happens if the defense still Has it not managed to carry out all the investigative measures that it can now – and should – carry out? You can object, the rule says.
And what happens if the opposition does not prosper? The direct trial is carried out in those terms, which is why I have serious doubts that we can be facing a fair trial, but that is another big topic that goes beyond these reflections.
So, we see that the mere willingness of the Prosecutor’s Office to carry out a direct trial might leave the defense out of complying with the powers of art. 135 which is not minor, being a guarantee that protects the right of defense in court.
But I go a little further: What if it were the defense that immediately managed to gather all the evidence in relation to its theory of the case and asked the judge to conduct the trial directly? and the Prosecutor’s Office would not agree? Because if there is an agreement, we are in the first part of the norm that did not deserve modification, But if that were not the case, would the Prosecutor’s Office have recourse to oppose the judge’s decision?
And in view of what was recently resolved by the TSJ in the Estarli case, unfortunately, I think I know the answer.
*Lawyer from Neuquén.
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