Bibliographic citations
Perez, J., (2021). La vulneración del debido proceso y la autonomía del Ministerio Publico con la desvinculación judicial de la acusación [Tesis, Universidad Privada Antenor Orrego - UPAO]. https://hdl.handle.net/20.500.12759/8447
Perez, J., La vulneración del debido proceso y la autonomía del Ministerio Publico con la desvinculación judicial de la acusación [Tesis]. PE: Universidad Privada Antenor Orrego - UPAO; 2021. https://hdl.handle.net/20.500.12759/8447
@mastersthesis{renati/373308,
title = "La vulneración del debido proceso y la autonomía del Ministerio Publico con la desvinculación judicial de la acusación",
author = "Perez Toro, Jorge Marcelino",
publisher = "Universidad Privada Antenor Orrego - UPAO",
year = "2021"
}
The purpose of this master's research is aimed at establishing how the judicial disengagement from the criminal claim affects the procedural guarantees, including the autonomy and power of the criminal claim, in the (NCPP). Numeral one of article 374, of the (NCPP), regulates, the separation, in the following terms, in the process of the trial, before the conclusion of the action, of evidence, the judge warns of the eventuality, of a legal qualification of the facts, the subject of action, which has not been taken into account by the criminal prosecutor, should inform the latter and the accused of this eventuality. The parties will present on the matter, observed by the unipersonal or collegiate criminal judge, and where appropriate they will propose the corresponding useful evidence. If any of the parties informs that it is not prepared, to make its pronouncement, the criminal judge will suspend the debate for up to five days, in order to expose what is convenient. Regarding the aforementioned procedural figure, it affects due process, not only because the judge is entitled to carry out, the activity that concerns the Public Ministry, such as formulating the accusatory claim, but the stage in which it is applied, without having taking into account the stages of the criminal process, promulgated by legislative decree nine hundred and fifty-seven, where in the preparatory investigation stage, the Public Ministry is the director in charge of conducting the preparatory investigation, arranges the necessary investigation procedures to collect elements of conviction, either in order to accuse or request the dismissal, and for their part, the defense of the other procedural subjects in an exercise of the right of defense and protected by the provisions of paragraph 4, article 337 of the NCPP, you can request the Ministry Public, proceedings, investigation acts to clarify the facts. Once the preparatory investigation stage has expired, the Prosecutor, covered by number one of article three hundred and forty-four, can file an accusation if he has sufficient basis, otherwise he will have to resort to formulate the dismissal, a power that is exercised under number two of the cited procedural rule. In the intermediate stage which is directed by the preparatory investigation judge, if an accusation is required, the latter will schedule a hearing to control its admissibility where it will be verified that the Public Ministry complies with the requirements of article 349, of the Criminal Adjective code, for On their part, the other procedural parties may observe the accusation, whether in the formulaic or substantial aspect, proposing means of defense, in order to seek to conclude the criminal process at that stage, they will also offer evidence for a possible oral trial, of If the accusatory requirement is approved, the preparatory investigation criminal judge will issue the corresponding indictment, based on article 353 of the NCPP, which will contain data of the accused, aggrieved, the criminal classification of the accused facts, it will be specified the evidence admitted, etc., with the resolution of the indictment concludes the second stage of the criminal process, remitting the s acted to the trial judge, for the continuation of the criminal process. The trial, considered the most important stage, which is carried out, having as a horizon or guide, the accusation, according to article three hundred and fifty-six, with the observance of the guarantees of due process, recognized in the Constitution and supranational norms, of the to which our country is a party, orality, publicity, immediacy, contradiction, in the evidentiary action will be mandatory in the trial process. That is to say, he is the means on which the trial will be carried out, the same that has been controlled, in an intermediate stage hearing by a Criminal Judge, he also knows the law, this stage that I consider is the suitable to observe any issue that the Public Ministry has omitted, however applying the judicial separation according to numeral 1 of article 374 of the NCPP, is effectively an affectation to the guarantees of the process, with an impact on the right of defense since the defense must be prepared in a timely manner, as required by Article 10 of the Preliminary Title of the NCPP, since the parties assume a position regarding the accusation against them, preparing a strategy to face the criminal process, however apply the aforementioned rule legal law after the conclusion of the process, which I believe is not related to the respect and protection of due process in its aspect, the right of defense and the right to evidence. I consider that the challenged norm should be excluded from the criminal adjective, otherwise establish that the dissociation of the prosecution is carried out by the Preparatory Investigation Judge, in order to give the new criminal process the guarantees of going to trial with a duly accusation healthy, where a trial can be assumed with the certainty that the control parameters approved in the hearing on procedural reorganization or intermediate stage, are the true bases for the oral trial debate, otherwise we would be facing a decision, which would be made by the court judge. trial, to the disadvantage of both the Public Ministry and with greater harshness for the accused, because he will receive a sanction for which he was not warned in the stages prior to the oral trial. Indeed, from the questioning of the aforementioned norm, it is not to try to seek impunity, but to respect due process, since the spirit of the criminal process, that each legitimated party exercises its function with delimited roles, so to continue applying This rule would be going back to the old procedural model, legislative decree 124 and the Code of Criminal Procedures, Law 9040. It is clearly known that the Judge knows the legislation and is obliged to apply the corresponding rule, but that such control must be carried out in a stage that allows the parties to assume an effective defense, to undertake an oral trial with the claim of the parties duly delimited, and even to submit to the principle of early conclusion.
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