Control De Legalidad Y Oportunidad

Since its adoption in 1882, the LECrim has undergone countless reforms, but there is some consensus when it comes to reaffirming the need to provide our legal system with a new law of criminal procedure. The initiatives of 2011 and 2013 have failed, the current project for 2020, in addition to simplifying the number of criminal procedures currently in force, has as its most important innovation compared to the current law the disappearance of investigating judges and the granting of the investigation of offences to the Public Prosecutor`s Office. This, combined with the possibility of interrupting criminal proceedings for reasons of expediency, the extension of the regulatory compliance framework and regulation for the first time in the history of our criminal mediation proceedings, will lead to a significant expansion of the prosecutor`s power to adjudicate criminal cases. in line with recent procedural reforms[8]. Lamadrid Luengas, Michelangelo. The principle of expediency as an instrument of penal policy. Barcelona: Universitat Pompeu Fabra, 2015. This interview with Professor Vicente Gimeno, conducted by Sonia Calaza, Professor of Procedural Law, is part of the monograph “Principle of Criminal Expediency and Transformation of Criminal Procedures”, directed by Professor Calaza and Professor Josã© Carlos Muinelo and recently published by Wolters kluwer. 2. The first opportunity ± in Spain concerned the granting of the power to rule on the appeal and the subsequent maintenance of the criminal complaint with the Public Prosecutor`s Office.

Should this power be full and unconditional (free opportunity)? Or should it be limited by law (regulated possibilities)? On the other hand, it is not that the MF should have the power to dispose of the claim, but that it already has it at present. According to the case law of the TC and the TS on the prosecution, this principle has been assimilated to the operative part, so that it is the MF and not the court that is the ± or criminal proceedings that allows negotiated agreements with the defence and the application of the principle of possibility. Without being able to address this issue, which transcends the objectives and limitations of this work, we can conclude that the preliminary draft gives the Public Prosecutor`s Office too broad a power by excessively applying the above-mentioned basic principles of criminal procedure, so that we must understand the fact that the Prosecutor may, for reasons of expediency, prosecute crimes, which can be punished with up to five years. a maximum limit of six years in the case of acts of active cooperation against a criminal organisation, as well as the abolition of the compliance procedure in order to remove any limit depending on the severity of the penalty. Convictions exceeding a certain number of years would deserve to be pronounced after a hearing with all the guarantees and would be subject to the principles of orality, opposition, immediacy and evaluation of evidence by the public prosecutor`s court. Archiving for topical reasons (Article 175). The Public Prosecutor`s Office may order the total or partial cessation of investigations into offences punishable by imprisonment for up to two years, a fine, however extended, or the withdrawal of rights of up to ten years, provided that certain conditions are met and with the exception of certain cases where it will not be possible: apply this commandment. The principle of expediency refers to the possibility, in certain cases, of favouring the imposition of a sentence lower than that corresponding to the corresponding sentence or even its release, taking into account precisely the criteria of expediency (justice of the concrete case, pacification of the conflict, minimization of the “double victimization”, humanization of the process …). The conferral of discretion on the Public Prosecutor`s Office for prosecution according to criteria laid down by law, applicable according to the circumstances of the specific cases, offers many more advantages for the general interest than the maintenance of a systematic and automatic application of the principle of legality. The principle of equal opportunities should not be in direct contradiction with the principle of legality: the criteria used for the application of the principle of opportunity could not be conceived as powers that allowed arbitrariness on the part of the Prosecutor, but should be formulated by general rules of procedure drafted in an abstract manner but with a certain degree of precision so that they could be properly understood and examined.

It is true that the majority of the doctrine rejects the criterion of expediency as long as it presupposes arbitrariness, utilitarianism or opportunism in the application of criminal commandments, so it seems important to affirm the principle of legality as opposed to arbitrariness, which is an expression other than that of expediency in a stricter and limited sense, so that it is necessary: that it is provided for by law and that it is subject to certain rules or conduct. Then the regulated opportunity becomes legal and its application is correct and therefore does not violate the principle of regulated opportunity. He personally participated© in the early 80s day©as a representative of the Mº. Justice in a Committee© of Experts of the Council of Europe which elaborated Recommendation R (87) of the Committee of Ministers of the Council of Europe© on the simplification of criminal justice. I remember± giving a lecture on this recommendation at the School of Justice in 1985 entitled “The Principle of Expediency and Simplified Criminal Procedure” (later published in this year`s CGPJ Journal±o) to the newly©appointed judges who, without understanding anything, left the courtroom within 10 minutes of my intervention and©confessed to me: that I defend impunity. Opportunity is not synonymous with arbitrariness. The main prerequisite for this possibility is that the Penal Code approves it (as well as, for example, articles 579 to 3 allow a substantial reduction of the terrorist`s sentence – “unrepentant” or article 83.1.7 Authorizes the judge to suspend the application of the custodial sentence to the drug addict who decides to voluntarily undergo treatment, etc.); That is why it is a tautologist to speak today of “regulated” possibilities, since any solution of opportunity must be provided for in a standard of the Criminal Code. First, as regards the principle of possibility in the strict sense, FGE Proposal No 48 is based on the fact that `the current regime of the principle of the possibility of minor offences is not very feasible, since it is limited to very few hypotheses`, which is nothing more than an examination of reality. Although it should be added that the almost zero application of the offer is due not only to its scope, but also to the low response it has received among the investigating judges, and the prosecutors who have not adopted it have not internalized it.