Within the framework of the second Forum of analysis the oral accusatory criminal system that takes place in Paipa (Boyacá), the Prosecutor María Victoria Parra, exhibited in general 14 points that were analyzed in the diagnosis of the main shortcomings presenting the criminal system, to raise their reform.
After analyzing logistical operational development, the sociological part, the criminal policy and legislative and jurisprudential aspect, a committee formed and meets weekly for a year ago, found such shortcomings and undertook to make some adjustments, but not a reform the new structural system of criminal prosecution, in order to allow criminal proceedings to be developed efficiently and quickly.
The proposal was developed based on the statement that threw the main actors of the criminal justice system and the collection of documents sent by the various branches of the Attorney Office, as well as other courts across the country, some universities and other institutions.
Once certain inputs, was carried out the study that allowed present this proposal:
1. Remove the imputation formulation hearing, since it is understood quite simply as an act of communication that is repetitive, there is an unnecessary duplication of procedures because this hearing serves the same purpose of accusation formulation.
Therefore, the proposal is that the process formally begins with the indictment, increase the terms of inquiry and prosecution prescription of the criminal action is interrupted with the accusation formulation. Also, authorizing the pre-agreements negotiation and realization of prior to this diligence, but if that can be realized will be taken into account as an indictment. Finally establishes that the charges acceptance has a reduction of up to 50 percent of the dosed penalty.
2. Another point relates to the judicial authorization required by constitutional mandate to carry out investigative acts that involves an impairment of fundamental rights. The reform raises the need for a change in this regard, difficulties in practice, delay in the procedures of application and the excessive delay of terms at the inquiry stage. In accordance with international standards, are not required a formal hearing for these requests, therefore intends to leave intact the previous control, but is intended to suppress the realization of formal hearings with all parties intervention. I.e., that the prosecution could be this judicial request on an informal basis by any suitable means, complying with requirements and leaving a record that indicates that it has such authorization from the guarantees control judge. Subsequent monitoring , meanwhile stay tied to the preliminary hearing , because it is the right time to discuss the validity of the means of knowledge.
3. The third issue addressed by the Commission was the change in the proceedings file. At this point arises the need to guarantee the victims rigths according to the international and constitutional norms, allowing so the victim, not to mention new items of knowledge, can go to the Attorney office for contest the file of a process order, and in case of disagreement attend before the guarantees control judge.
Similarly, the number of cases was taken into account in investigation state available to the prosecution, no chance of passing this stage until the end of the criminal limitation period, because despite the investigative work cannot get evidence to evidence to prove that crimes are constituted For this purpose, is proposed to modify article 79, where the prosecution can proceed to the proceedings file if it is established that after deployment of the research has not been able to raise evidentiary material or means of knowledge.
4. The negotiations, pre-agreements and opportunity principles. On the subject noted that the modification is required to the excessive requirements for the application of these forms of early termination of the cases. She added that should restore the full implementation of these alternatives were unchanged with the enactment of subsequent legislation.
Regarding the submission of charges, we define concretely the penalty reduction that recognizes who acquiesces charges, according to the procedural stage. In terms of pre-agreements, must be define the concepts of negotiations, preliminary agreements and agreements, as well include the ratio of powers attending the prosecution to make them.
The opportunity principle arises to extend the time limit for granting even before starting the trial. They were unified causes that give rise to the applicability of the opportunity principle based on effective collaboration, among others.
5. A fifth item is the full restoration of the premial justice, that as mentioned previously underwent changes with subsequent laws. Thus, the criminal process must have a different look to opt more possible legitimate solution to the conflict that has generated a crime, always under the weighting principle.
6. Another issue refers to the benefits by effective collaboration subsequent to conviction, while Assistant justice is adopted as a mechanism that is essential for the efficiency of Justice. In this regard arises to restore such benefits, work that would be at the head of the Prosecutor’s Office once evaluation and investigation on the effectiveness of the collaboration, but always under the judicial control which corresponds to the judges of sentences execution and security measures. It is suitable, express the Attorney, to such effect to establish a wide range of benefits and create a national registry containing the identity of persons who have obtained benefits for collaboration.
7. The seventh issue that addressed itself inside the commission is the reference test, which requires a policy change by the practical problems presented with the regulations. There is a need to make more flexible the exclusion of the reference test in order to prevent unpunished criminal offences, of which establishes their occurrence and holders, but by the impossibility of having the witnesses in the trial, is to issue acquittals. Is projected to then preserve the general regulation on this subject, but include a residual clause which guarantee the exceptional admission of the test, with the condition that the part that proposes it, demonstrate that it is impossible to provide better proof at trial; so would be the judge who determined the relevance of it.
8. The theme of the rebuttal proof was also studied, since the procedural law states the rebuttal evidence in Article 362, however it omitted to indicate how it is postulated that proof or support. On which the Commission proposes to include regulatory of the test, and points out that the discovery evidence has modificate, in the sense of establishing that the Defense has to comply with the duty10 days before the hearing so that the prosecution has prepare the rebuttal proof.
9. In ninth place was the issue of documents presentation at trial, by the difficulty of incorporating proofs in the same, generating delays, loss of time and wear. The reform proposes a rule authorizing the inclusion of these tests through its display in diagrams or summaries, if it’s bulky documents, or if it is complex documents, should be introduced by an expert so explain.
10. Evidence discovery, in this regard is projected that this is required to defend ten days before the preparatory hearing and make it informally outside audience, ending with the wear and tear of such diligence. Also considers that the Prosecutor has an obligation to inform all the material evidence and not only those who go to take to trial, the Defense has full knowledge. To do so, the Prosecutor’s Office would indicate explicitly in the accusation letter that totality of means of knowledge which it found in the inquiry stage, are the ones who will take to trial.
11. The eleventh theme is that of Cassation resources. In dealing with this axis is intended to eliminate the double Foundation both written as oral, restore the principle of deconcentration of the processing of the appeal, i.e. that demand must be brought before the Court which issued the corresponding ruling and there itself must be sustaining, omitting the oral argument. It is also planned to eliminate the transfer making recourse to the Public Ministry, the qualification of the demand and the insistence resource.
12. The congruence. Theme of which was that they failed to set a time in which the Prosecutor’s Office had the opportunity to vary the interim legal adequacy which is reflected in the accusation letter. The proposal addresses the establishment of a process into the trial, in which the representative of the prosecuting body is offered the opportunity to vary the provisional legal classification contained in the indictment, giving the defense the opportunity to apply for test only to discuss this new rating.
13. On the subject of full compensation, when based exclusively on an economic claim, this would be addressed by the civil jurisdiction, ie, outside the criminal process.
14. Finally, on the issue of restorative justice is to promote an alternative model to resolve conflicts which tries to decongest the justice, provide greater protection for victims and articulate the criminal proceedings with the peace process; defining mechanisms and rules that constitute this restorative justice.
With These proposals are intended to have a final product that will serve the country.