Bibliographic citations
Cabel, C., (2020). La interpretación de la Corte Suprema sobre el artículo 71.4 del Código Procesal Penal y el derecho a la tutela jurisdiccional efectiva [Tesis, Universidad Privada del Norte]. https://hdl.handle.net/11537/26101
Cabel, C., La interpretación de la Corte Suprema sobre el artículo 71.4 del Código Procesal Penal y el derecho a la tutela jurisdiccional efectiva [Tesis]. PE: Universidad Privada del Norte; 2020. https://hdl.handle.net/11537/26101
@misc{renati/517997,
title = "La interpretación de la Corte Suprema sobre el artículo 71.4 del Código Procesal Penal y el derecho a la tutela jurisdiccional efectiva",
author = "Cabel Villarroel, Carlos Eduardo",
publisher = "Universidad Privada del Norte",
year = "2020"
}
This thesis investigated about the interpretation on article 71.4 of the Criminal Procedure Code adopted by the Supreme Court of Justice of the Republic of Peru and its impact on the essential content of the fundamental right to effective judicial protection. In the first chapter of the theoretical framework, the main postulates of the theory of legal interpretation of the current analytical school of law were developed. It was determined that the interpretation is in fact an act of stipulation that lacks truth value, nevertheless a certain interpretative postulate may be subject to critical judgment depending on the positive or negative effect it generates on a principle of law or fundamental right. At the beginning of the second chapter, the concept of fundamental rights was addressed according to Robet Alexy’s theory, followed by the various theories on the essential content of fundamental rights. Then the fundamental right to effective judicial protection was developed, i.e. its definition and above all its essential content. The third chapter began with a historical account of the idea of “protection of rights”. The definition, rule and legal nature of the protection of rights were then developed. The different interpretations of this procedural guarantee were then presented and our own interpretation was formulated. The two most relevant theoretical conclusions were: i) the protection of rights stands as a secondary guarantee derived from the right to effective judicial protection, ii) a right that is optimized with an interpretation that recognizes an open list of rights under protection and the active legitimacy of other procedural parties other than the investigated party (injured party or civil actor, third party civilly liable and legal person in general). Through the use of techniques, instruments and methods, the theoretical premises were contrasted with the results of the samples. Among other conclusions, it was established that the Supreme Court of Justice restricted the scope of protection of rights to a closed list of rights and limited the active legitimacy in favour of the investigated party only. And given that the adoption of one or another interpretation developed on the regulation of the protection of rights affects the fundamental right to effective judicial protection, it was finally established that the interpretation developed by the Supreme Court negatively affects the essential content of that right.
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