The Executive Branch noted 25 articles of Penal Process Code in order to avoid going backwards or omissions
SD. Yesterday, President Danilo Medina sent his observations on 25 articles that were modified in the Penal Process Code (CPP) to the Congress. He said that he felt that they were contrary to the Constitution and universal principles which would result in a step back from the progress that had been made, cause inefficiencies in the judicial system and generate omissions in the regulations, among other things.
Regarding the controversial article 85 of the Law that was observed, he points out that the fact of eliminating its third paragraph regarding the right of citizens to file complaints against public officials for crimes committed in the exercise of their functions or in cases where human rights were violated, has caused judicial debates in pro and in con, which he feels should be centered on the constitutional character of the permanence or not of this regulation, for which reason he suggests leaving this to the criteria of the Constitutional Tribunal in dealing with this issue and until the court decides with respect to this question, keep the text as it is.
He suggests, in addition, consideration that the entities of the public sector can participate as plaintiffs, due to the fact that he is worried that they do not have this possibility.
Medina expressed that the objective of returning the legislation which modifies several articles of Law 76-02 which establishes the Penal Process Code, without enactment, to the National Congress, is to “avoid a possible step backwards in the citizens’ rights and of our social and democratic state of law.”
The Executive Power submitted observations to 25 articles of the 116 which the CPP as modified by the National Congress contains. There were 28 pages of suggestions.
Regarding the modification carried out on article 49 of the CPP, President Medina said he feels that the formula used to expand the list of infractions considered to be without a statute of limitation is inconvenient from the criminal-policy point of view and which contradicts the “fragmentary, accessory and minimum character of the “punitive authority of the state and the Principle of the Last Resource.”
“The increase in the catalogue of infractions without statutes of limitations reduces the efficiency of the criminal prosecution and hurts the principle of judicial security, which requires that, once the time has transpired, the person is no longer liable to punishment. In reality this person has straightened out his life, in addition to the disappearance of the pain caused to society by the effect of the forgetfulness destroyed by the passing of the years,” he says.
Nonetheless, in the observations he stresses that the actual enumeration of the crimes without statutes of limitations is really insufficient for effective crime fighting.
Regarding the elimination of article 59 of the CPP, the Executive Power proposes that it remain as it is because he feels that eliminating the authority that has been conferred on the penal judge regarding the prejudicial exceptions, would imply reviving the possibility of delaying the processes in the courts, to the detriment of due process.
In addition he rejected the initiative to expand the area of the judges of the first instance (Article 72), which hear by themselves the charges that carry monetary penalties or a maximum prison sentence of 10 years or less, and he proposed that they can hear cases by themselves which carry maximum sentences of up to five years in prison.
In case the crime carries a sentence of more than five years, he suggests that the tribunal be composed of three judges of the first instance. If not, he feels that by keeping this legal modification would be to the detriment of the advances achieved regarding guarantees.
Referring to the changes done to Article 74 regarding judges of penal matters, President Medina noted that the fact that it is established that these judges do not have authority to control the compliance with the preventive custody measures for provisional inmates could produce a regulatory blind spot, because they have yet to hand down a sentence against the individual.
He proposes that a paragraph be modified so that it reads “in those cases, the judge or the tribunal in charge of the case will resolve this.”
In the document which was handed to the Senate yesterday, the Chief of State said that in Article 42 the public defenders and the representatives of the Justice Department in addition to the lawyers should be included in the prohibition to take part in cases in the tribunals until the fines for violations of the rules of procedural correctness are paid.
He points out that since the last two paragraphs of Article 226 are contrary to the Constitution they should be removed due to the fact that they have established the preferential or obligatory character of the preventive custody and this “is highly disturbing.”
He recommends that Article 281 should be kept intact due to the fact that the by converting into definitive the provisional filing of a case, ordered by the Justice Department, could result in an elevated index of impunity in cases of serious crimes.
He proposes that Article 303 be kept without changes because it would not make sense that if the parties involved in the process have agreed to the definitive withdrawal of the case and they decided not to have the judge look at it, the Justice Department is obliged to submit this as the conclusive act.
He suggested that Title VIII regarding Direct Penal Procedures and its Article 392 on direct sending to trial be removed since their inclusion is not necessary.
Medina indicates changes would re-establish the Napoleonic Code which has been overcome
The Executive Power also proposes to the National Congress the dismissal of the removal of Article 417, established in Article 103 of the Law under observation, because a model of open appeals would imply re-establishing the system of appeals of the Napoleonic Code of Criminal Procedures which was improved in the current CPP.
In addition, he foresees that this measure would suppose an unmanageable increase in the resources against the sentences that would imply the need to increase the number of appeals courts that exist. These same observations regarding set backs are indicated for the changes made in Articles 419, 421 and 422.
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