As Pandemic Affects The Criminal Procedure

As pandemic affects the criminal procedure

ABSTRACT:

In this essay it aims to know if there is a correct application of the procedural principle of immediacy in the oral trial; And so, if there is an efficient collection of information so that the litigating lawyer efficiently builds the theory of his case; both influenced by COVID-19. In addition, the interviews conducted to Trujillanos lawyers regarding the current pandemic situation in which the dispute are carrying out will be analyzed. Likewise, the national doctrine will be taken into account in order to give wide panorama of the subject in question. Finally, the subject will be concluded and some suggestions will be pointed out.

INTRODUCTION:

At present, we are in a state of world pandemic, which has led us as a society to take new challenges and new measures, given this the jurisdictional system that teaches justice in our country, it has been well to implement a series of technological tools for the realization of its function as an organ that teaches justice and social peace. However, as in any situation that implies change and innovation, it is subject to certain breakdowns or controversies that can turn positively or negatively, it is that the present work will inform them regarding certain important aspects at the time of the delivery of justice.

Then this essay aims to know if there is a correct application of the procedural principle of immediacy in the oral trial; And so, if there is an efficient collection of information so that the litigating lawyer efficiently builds his case theory; both influenced by COVID-19.

For this, it has been good to use as an instrument and data source the legal basis of jurists and doctrinals around conceptualization and other characteristics of what becomes; the principle of immediacy, the theory of the case, and the oral trial.

Likewise, as a research method for this work, the inductive-deductive method has been used, to obtain the conclusions of the research work, which become the generalizations of the data obtained; The hermeneutical method will be used in the interpretation of legal texts in order to clarify the procedural content of legal norms; From the analytical-synthetic, it will allow us to analyze the necessary bibliography to subsequently synthesize the subject subject of this essay.

Finally, this work has taken the city of Trujillo, in La Libertad. Therefore, the technique of the interview has been made, aimed at Trujillo litigating lawyers in criminal matters so that they are then analyzed in the content of the document that can be known that their legal point of view can be known regarding the investigation issue; And in addition, the documentary collection technique for obtaining doctrinal and legislative information is used.

DEVELOPING

The procedural principle of immediacy to "demand that people declare through the spoken word, so that they can be heard directly by the judges, unavoidably leading to the judge to a personal and direct contact with the parties and with the trial bodies".

While for “the principle of immediacy is one of the primary principles governing the criminal process, understood as the intimate personal link between the judge and the parties and with the evidence, this so that judge can know directly The probative material of the process from which it starts until it is completed, as well as having a direct perception of external or internal data since the immediacy develops a very important function in the development of an audience because “(…) the Immediate knowledge of the judge is acquired by psychological route (direct apprehension of external or internal data), gnoseological (non -existence of intermediate species between the object and the cognitive subject) and logical (propositions that, it means being evident for themselves) (…) "."

In addition to this, he points out that “for the traditional doctrine the principle of immediacy crystallizes only in the physical presence and the direct and frontal interrelation between the judge, accused, accuser, aggrieved, third civil, the technical defense of each party, so as the trial organs; In a way that allows the judge to know, not only the person, his statements, but his personality, attitude, reactions, both of the accused, aggrieved and other evidence and witnesses and experts."

From the aforementioned with respect to the principle of immediacy, it follows that it is that principle where there is a confrontation between the parties immediately, where the judge has the opportunity in real time to know the statements and assimilate personality features of all the present, such can be the aggrieved, third civil, witness and/or expert.

However, by relating this principle of immediacy to the virtual plane of today due to the health crisis that hosts the world and the country because of the COVID-19, it has been reflected this immediacy through a virtual reality, cybernetics, globalized and digitized; That is why, jurists and litigating lawyers have been interferenced in the new hearing model to safeguard the immediacy of the process itself, and specifying the oral trial, where most acts are carried out, which are for example for example : The opening allegation, the stage of testing, the exam, counter -examination, closing allegation.

It should be noted that the subject of analysis being the influence of the COVID-19, which is the digitalization and technology mentioned above, also puts us to think, regarding the position in which the litigating lawyer is presented with hisTheory of the case in the oral trial, and to be able to talk about this, we must first understand that it is the oral trial, and the theory of the case in the criminal process.

In this regard, he points out that “finished the investigation of the crime (attributed to the judicial authority or to the Fiscal Ministry, according to the various current models of criminal justice in the world), and after the so -called intermediate stage (in which it has been completed – at least , with provisional character – the accusation), the oral trial itself takes place."

Also (Neyra) in his book "Manual of Judgment, Test and Oral Litigation in the new Criminal Procedure Model" regarding the oral trial tells us that "the oral trial as the main stage of the criminal process and as the only stage in which it isIt can give the production of the evidence that can found a judgment of the culphability compliance, it must be carried out in compliance with the principles of contradiction, advertising, impartiality of the judge, having as a communication vehicle the spoken word, an instrument called “orality”."

Then, connecting the definitions and following the theme of this essay, it can be said that the work carried out by the litigating lawyer in the oral trial stage is touched due to the virtuality by which the audiences are currently developed, being thatThe lawyers even showing a certain part and another disagreement with the method, somehow comply with that all the parameters and indications established in the Regulation for the Development of Virtual Hearings through the Google Meet so that all the principles interference in thisstage, mainly that of immediacy, which is reflected through orality also.

Now, to intertwine the theme of the essay, we would be determined that it is understood as the theory of the case, for (Neyra) “it is the most important instrument, to organize our performance in the criminal process. The theory of the case is defined as the strategy, plan or vision that each part has on the facts you are going to prove."While the (National Directorate of Relations with the Academic Community and Civil Society, 2017) in the booklet for teachers, entitled" Training and tools for civil and criminal oral litigation "states that" the theory of the case, turns out to be, turns out,So, a persuasive story that each of the parties does, based on information. That the information should be transformed into logical historical sequences, and therefore, for the formation of that story, the irrelevant facts must be ruled out, which are those relevant facts, and that is why it will be of sum transcendence that the lawyer who reconstructs those facts arewell informed."

Then the specified UT Supra, it follows that the litigating lawyer to be able to carry out his theory of the case needs an exact collection of the information and the facts generated between the accused and aggrieved, and thus be able to persuade the procedural parties.

RESULTS

Regarding the virtual interview conducted, it has been possible to rescue the following, the attachment of interview form is in the annexes. The interviewees were the following lawyers: André García León, Joampier Cerna Fernández, Malena Ayala Gonzales, José Manuel Gamboa Castro, José Manuel Gamboa Cabel, the aforementioned perform as litigating lawyers who work in the city of Trujillo.

To the first question: Do you consider you. that there is a correct application of the principle of immediacy in the development of the oral trial, in times of COVID-19? Why? Explain.

No, because, there is no same dynamicity and physical perception in the probative action, as in the contrainterrogatory, expert debate, the expert counter -examore, or in the material test (how do you show a weapon or garment to the collegiate?)

If there is a correct application of the principle of immediacy, of course there are certain concerns by the lawyers that we dedicate ourselves to defense in the sense of immediacy, since they question that the immediacy is the direct treatment in the judge andthe parties without any intermediary;Well, currently the audiences have been constantly reprogramming by Google Meet and that is why the opposite side, however I consider there is no violation at the beginning of immediacy, there is an active participation of the procedural parts in the audience, there areAn opinion of both and ideas can be transmitted, for that reason I consider that there is no violation of this principle.

Yes, because the judge may not interact in the probative action in the same way as in oral trial with physical presence of the parties

I think so, since in Criminal Procedure Code it indicates that the hearing can only be installed by the mandatory presence of a judge, or judges, the prosecutor, the accused and defender. The concurrence of the parties must be attended, experts.

I consider yes, since you must attend the assistance of all the procedural parties and that you have direct and exchanged opinion during the oral trial.

To the second question: What procedural principles do you think have been violated in the oral trial due to COVID-19;If there are no, which is the risk of being minimally violated? Explain briefly.

Advertising principle, audiences are no longer public and immediacy, exact contact or different with the parties

In my opinion, no procedural principle has been violated in the hearings, and I do not consider that there is a minimum violation of some principle, since all the audiences held have tried to respect all the principles giving the facilities of the connection to the connection to the minimumInternet of all procedural parts.

Principle of advertising and difficulty in probative matter.

I think there is difficulty and would be linked to the right to prove, and in the probative activity who offers the evidence, it has the right that the evidence is rationally acted and valued by the judge.

The lack of the principle of immediacy in the processes, and in the oral trial, an existence of inappropriate conditions can be determined for the action of certain evidence and obviously this in turn is decisive so as not to guarantee an adequate assessment of the evidence.

Regarding the third question: Do you consider you. That the litigating lawyer has obstacles to perform correctly in the stages of the oral trial, specifically in the probative action, in times of COVID-19? Why? Explain briefly.

Yes, it will be more difficult, for example, use oral litigation techniques for contrainterrogation, against examining, also the visual language, displacement in the audience room, etc.

Faced with this, a large sector of law among them a group of lawyers who have been in the dispute for years, because they comment on the difficulty of adapting to the new technology and the mode of use.

Yes I consider that there is difficulty in the fact of the adaptability of electronic media.

I think there is difficulty and would be linked to the right to prove, and in the probative activity who offers the evidence, it has the right that the evidence is rationally acted and valued by the judge.

I consider that yes, and as explained in the previous questions, the lack of immediacy in the processes, and in the oral trial, an existence of inappropriate conditions can be determined for the action of certain evidence and obviously this in turn is decisiveNot to guarantee an adequate test assessment.

Regarding the fourth question: If the case theory turns out, it turns out, a persuasive story that each of the parties does, based on information. Create you. That the litigating lawyer at the time of pandemic can effectively specify that collection of information to be able to develop their efficiently theory theory. Why? Explain briefly.

Yes, because there would be no displacement, audio problems, Internet signal would prevent it from.

Yes, I consider that information can be collected efficiently, including phone numbers, mails, and others to have access to the fiscal folder to be able to form your case theory as a litigating lawyer.

Yes, for the impossibility of collecting the ideal and reliable evidence to be analyzed.

Of course, although it is true, in the introduction of technological means for certain judicial proceedings, such as videos visualization, the declaration of witnesses or accused of teleconference, they have as a reference by having a type of incorporation of information into the criminal process,But in turn, in turn, the use of these means limits, for example, at the time that different types of evidence are going to be collected, for example, in the case of the search for a witness, in the case of looking for an expertise from part, or in some type of process, because sometimes the victims in quotes do not become victims and look for these for a type of conciliation, in the case of documentary evidence, public institutions currently do not have access to any documentary thanks to thedeficiency or incorrect computer functioning.

Of course, for example, at a preventive detention hearing is a detainee for criminal flagrance, since it is obvious that these documents must be collected is more weakened because the audiences are held in a maximum of a day or two, then you can find a type of defects unable to be able to find yourself within the period.

Conclusions

After having analyzed and collected the theoretical concepts with the interviews conducted, it is concluded that the group that says that there is a correct application of the principle of immediacy in the development of the oral trial, in times of COVID-19.

And it has also been highlighted that with respect to whether any other violated principle is definitively.

Likewise, with respect to the third and fourth question, certain justice operators in the city of Trujillo are in accordance with the norms issued by the Judiciary, regarding the realization of virtual hearings through the Google Meet platform, and so alsoAnother group of lawyers are reluctant to assimilate this proposal provided by said state of the State, which in the sake of making a soon discharge of judicial processes due to the stoppage of the Pandemics of the CIBLY-19, since it does not allow them to be able to perform their workof defender efficiently.

Finally, I consider that the issue to treaty should also be questioned by justice operators found in the direction of the process, since together an alternate solution could be achieved for conflict resolution, and protect the protection of rights,due process, and the correct application of principles, seen by all the interference parts in the process.

REFERENCES

• Castro, r. (2017). The probative activity and the impartial third in the contradictory accusatory model of the criminal procedural code (Dec. Leg. N957). Vox Juris, 113-124.
• Cerna, j. (August 1, 2020). The loss of publicity and immediacy procedural principles in the virtuality of judicial hearings?: Analysis of procedural principles in judicial cyberculture before the Covid-19 pandemic. Obtained from Calderon Editions: https: // www.Edicionescalderon.com/single4.HTML?FBCLID = iWar2_qiisuzrgcegwi5XUPDG7G1YQ8M_BCUPYAMQJBCUA-TZGFD2Y6PyC0P0
• Martín, J. (2016). The oral trial in the criminal process. In c. GOMEZ, & M. Briseño, new paradigms of procedural law (pages. 785-800). Mexico: Institute for Legal Research.
• Neyra, j. (s.F.). Judgment Manual. Oral test and litigation in the new criminal procedural model. Obtained from Judiciary: https: // www.PJ.Gob.PE/WPS/WCM/CONNECT/F82EA88040999ECF9EF0DE1007CA24DA/MANUAL-JUZGATIONOO_NEYRA+FLORES.PDF?Mod = Ajperes & Cacheid = F82EA88040999ECF9EF0DE1007CA24DA
• Tayro, e. (August 15, 2020). The videoconference. A new approach to the principle of procedural immediate. Obtained from Judiciary: https: // www.PJ.Gob.PE/WPS/WCM/CONNECT/B032180042EFFD8D65BFD49215945D/23.+The+videoconference.PDF?Mod = Ajperes & Cacheid = B032180042EFFEFD8D65BFD49215945D