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The Constitutional Court publishes statistics for 2008.
The Constitutional Court publishes statistics for 2008.
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annulling a decision that imposed a more severe penalty had been applied by the prosecution
In Case June 25, 2009, the Constitutional Court has overturned a ruling that imposed a more severe penalty from that requested by the prosecution, although legally provided. demand submitted under the times alleged in clear breach of the principle accusatory, as the public prosecutor filed charges of theft by a lack of art. 623.1 CP and requested a sentence of forty-five-day fine with a daily fee of 6 €, while those that the appellant was initially sentenced to a term of twelve days of permanent location, the Provincial Court later reduced to eight days that is, imposed a sentence of a different nature to only charge requested by the acting, and that violates the upper limits concerned by it.
otrosí devoted demand to justify the special constitutional significance appeal, stating that is that the Constitutional Court is set doctrine on the following: a) If the imposition conviction of a different nature to the only charge interest on acting, even though the literal result of the offense involves injury to the right to an effective remedy for violation of the adversarial principle and b) If the imposition of a sentence above the legal minimum in case of lack of motivation of the reasons for the punitive individualization involves the violation of the right to effective judicial protection due to lack of motivation.
The prosecution claims processing evacuated given by registered letter dated June 10, 2009, which in essence is summarized below:
Regarding the first ground of defense, that is, if constitutionally permissible the court's imposition of a penalty judgmental different and more serious nature that the person concerned by the prosecution, only the prosecution, the Prosecutor before the Constitutional Court reproduces the doctrine of SSTC 230/1997, of 16 December, 33/2003 of 13 February, and 183/2005, of 4 July on the adversarial principle and its application to view faults and concerns then the agreement which the Criminal Division of the Supreme Court adopted in plenary court not to unify criteria on December 20, 2006, under which "The Tribunal sentencing no penalty be imposed than the most serious of the specifically requested by the accusations, regardless of the type of procedure is conducted on the cause. " Reminiscent Agreement has been further developed in numerous judgments (SSTS 609/2007 of 10 July, 1319/2007, 12 January; 423/2008 of 27 June, 928/2008, 3 December).
In this case the court will replace a penalty sought by the prosecution which is a fine-arrest of forty-five days and daily rate of 6 € (art. 50.1 CP) -, by a custodial sentence, as the permanent location (arts. 35 and 37 CP) and, therefore, more serious and distressing power of immediate and far away from any personal liability under alternative non-payment of a fine (art. 53 CP), which could lead to imprisonment.
are three circumstances that highlights the prosecution: a) firstly, that the court move beyond their duty of neutrality with respect to the charge, takes a different and more severe punitive had not been discussed, without raising, However, such a possibility in a similar manner to that provided in Art. 733 LEC, which violates the principle of fairness, also framed in the right to a trial with all guarantees, to the extent that the court can not be a prosecution, assuming the role of a party. Replaced and the prosecution, incorporating a substantial variation in the legal, gathering not only the title of a plea but the specific punitive b) secondly, that even on appeal is filed charges under the terms of the Judgement of the Court of Investigation, a circumstance that has occurred could not heal, however, the offense in the first instance, and c) thirdly, that although in this case the appellant was not present at the trial of misdemeanors, the modus operandi of the judiciary in fact been eliminated, not only that the defendant had full knowledge of all aspects of the claim-accusation, the prosecution, which includes both the title of the specific complaint as punitive, but also the possibility of the parties to provide information in support of their claims (Article 969.1 LEC), failure to appear imprisonment on the request of the prosecution, but only in the Judgement, resulting in the unexpected sentence and whose reasons and specific sentence would have had only a knowledge After the act of the trial.
The foregoing are subject to qualification by the prosecution, considering in any case must respect the principle of legality in those cases where the imposition of a sentence is necessarily linked to the type of crime on the indictment because the process has a substantive criminal groups (STC 174/2003 of 29 September).
The prosecution concluded its analysis under the first ground of understanding that has been violated accusatory principle in connection with the right to a fair trial and the right of defense, as part of the right to a trial with all guarantees (art. 24.2 CE).
In its legal basis, the TC said that the question of limits constitutional judicial power to impose penalties or, in other words, the scope of the requirement of correlation between the prosecution and the failure point concerning the penalty to be imposed has already been addressed by the Constitutional Court on previous occasions, having developed in this respect, as we shall find, a constitutional doctrine that set out uniformly most judgments concerning the matter, but that is not free, however, inflections in some other decisions, at least in statement and development, giving rise to exposure of the doctrine is not always clear enough that, as susceptible, therefore, to cause confusion, it requires some precision or clarification.
precisely the reason for the remedy of certiorari under the Full Court in accordance with the provisions of ss. 10.1 n) and 13 OLCC has lived in the desirability of clarifying and shaping constitutional doctrine on such a complex issue, clearing any doubts that might give rise to and reflecting back on it, the discussion also within the Court itself has past resulted in conflicting positions among its members (in this sense, SSTC 59/2000 of 2 March, 75/2000 of 27 March, 76/2000 of 27 March; 92/2000 10 April; 122/2000 of 16 May, 139/2000, 29 May; 228/2002 of 9 December; 174/2003 of 29 September; 163/2004 of 4 October).
The Plenum of the Court reminded, once again, in STC 123/2005 of 12 May, reiterating previous constitutional doctrine, that even if the adversarial principle is not expressly mentioned among the constitutional rights that regulate the criminal , it is true nonetheless not as protected in the art. 24.2 CE certain fundamental rights which form the structural elements of that principle which transcends the right to be informed of the charge and includes a bundle of additional collateral. In this sense, highlighted both the principle of adversarial relationship with the constitutional rights of defense and the prosecution and to meet the constitutional guarantee of judicial impartiality (LC 3 and cited constitutional doctrine).
Descending from the general to the particular as regards, in particular, the foundation of the duty of consistency between the prosecution and failure, which is one of the manifestations of the adversarial principle contained in the right to a trial with all guarantees , in that Judgement we put it in direct relation, mainly with the rights to counsel and be informed of the charge, because if the judge had exceeded the verdict, enjoying a few facts or different legal classification to the alleged by the allegations, it would deprive the defense of the necessary contradiction. But we stressed that this duty of consistency is grounded in the right to a trial with all guarantees, to the effect that criminal prosecution is to be developed with respect to the delineation of roles between the prosecution and the trial court because, ultimately, a judicial ruling beyond the specific punitive charges that the court is to invade and take powers constitutionally reserved to the charges, since it would be condemned regardless of the request by the legitimate to define the punitive, leading to a loss of its position of impartiality and the injury of the right to a trial with all guarantees (STC 123/2005 of May 12, FJ 4; settled doctrine, among others, in the SSTC 247/2005, on October 10, FJ 2; 170/2006 of 5 June, FJ 2).
As we stated in that STC 123/2005 of 12 May, "the link between the punitive charging parties and the ruling of the court ruling, as the content itself of the adversarial principle implies that the trial court must issue a resolution consistent with that claim, which responds to the need not only ensure the possibility of contradiction and defense but also to observe the distribution of responsibilities among different participants in criminal proceedings, and, more specifically, from the trial court and the prosecution, under the terms stated in the arts. 117 and 124 CE. Thus, the analysis of respect for the duty to guarantee consistency between the prosecution and ruling by a court decision should come as not only the finding that the offender has had the opportunity to discuss elements of the charge contradictory, but also by the finding that the trial court has not compromised his impartiality by assuming functions that constitutionally accusatory do not belong "(FJ 4).
On the other hand, in the scope of the duty of consistency regarding punitive, it is well settled constitutional doctrine that the judge is under the Constitution in his speech to a double conditioning, factual and legal. Factual conditioning is constituted by the facts that have been subject to indictment, so that no fact or event has not been delimited by the prosecution as an object for the exercise of punitive may be used to be subsumed as a constituent element of the criminal responsibility. The court ultimately may not include in the narrative of events proven facts that substantially vary the charge, or conduct, consequently, the subsumption with them. Legal conditioning is constituted, in turn, by the characterization of those facts made the accusation. However, attending to their own powers of delivery of the Judicial office which has criminal law, public policy issues involved in the exercise of the right to punish , the judge may sentence for a crime other than that requested by the prosecution where consistent with it and does not involve a penalty of higher gravity, so that the subject of the sentence the prosecution can not go so far as to prevent the body modify judicial qualification of the facts of the case in the area of \u200b\u200bthe elements that have been or have been the subject of adversarial debate (SSTC 4 / 2002 of January 14, FJ 3; 228/2002 of 9 December, FJ 5 ; 75/2003 of 23 April, FJ 5; 123/2005 of May 12, LC 5; 247/2005, of October 10, FJ 2; 73/2007 of April 16, FJ 3).
as it pertains to the scope of the duty of consistency between the prosecution and adjudication in particular as regards the possible penalty to be imposed, that is the question raised in this petition for relief, as we had occasion to anticipate, it seen in the decisions of this Court have addressed the matter on which a doctrine should return.
This Court has held generally that the relationship of the judiciary to the adversarial principle, but prevents the imposition of a greater or more severe than for the crime actually charged in the process, does not, however, that the Judge impose a penalty greater than that applied by the accusations, if not alter the facts alleged in the process, and is carried out within the range of punishment for the offense resulting from classification of the facts contained in the indictment and discussed in the process because the judge is bound by law and must therefore apply the penalties, in its view, proceedings in respect of a particular crime (SSTC 17/1988, of February 16, LC 6; 21/1993 of January 18, FJ 2; 161/1994 of 23 May, FJ 2; 43/1997 of 10 March, LC 3 ; 228/2002 of 9 December, FJ 6; 174/2003 of 29 September, FJ 9; 163/2004 of 4 October, FJ 4; 71/2005 of April 4, FJ 7; 347 / 2006, dated December 11, FJ 3; AATC 377/1987 of 25 March; 321/1992 of 26 October; 327/1993 of 28 October; 202/1998 of 29 September, 310 / 2003, September 29; 353/2003 of 6 November, 369/2006, 23 October). Thus, under this constitutional doctrine, the linkage of the judge to the facts and legal classification does not preclude may impose penalties greater than those applied by the allegations within the limits prescribed by law the indicted offense, provided that the classification as such facts, and facts themselves have been subject for debate. However
other judgments concerning the matter, but not its ratio decidendi, the Court has held that "[I] n any case, as absolute limit at the time of sentencing, the judge is forbidden to qualify him the facts so as to integrate a more severely punishable if this deterioration was not sustained in court by the prosecution, or impose a penalty greater than that corresponding to the claim accusatory stated in the final conclusions, since it is a claim which could not defend the accused "(STC 75/2003 of 23 April, FJ 5; doctrine was reiterated in the STC 347/2006 of 11 December, FJ 3, and the ATC 426/2005, 12 December). It seems as open to these other resolutions, but in a purely doctrinal level, the acceptance of a more restrictive limit to the imposition of penalties in relation to those called for by the allegations.
Well, it is desirable to clarify and refine the constitutional doctrine which has recorded, related to the scope of the duty of consistency between the prosecution and adjudication in particular regarding the possible sentence to impose.
With a constitutional perspective it is proper that we should rethink the issue and go one step further in protecting the rights of defense of the accused and the preservation of the guarantee of judicial impartiality within the criminal process in the sense estimate that the charges requested by the imposition of a sentence within the legal framework provided for the offense formally charged, the court, as required by the said rights and constitutional guarantees, in which is the basis, inter alia, the duty of congruence between the prosecution and failure as a manifestation of the principle of accusation can not impose punishment in excess, because of their seriousness, nature or amount of the requested by the accusations, regardless of the type of procedure on the substance of the cause, but the punishment in question did not violate the margins provided for by law for the crime that results from the finding of made in the indictment and discussed in the process.
Thus, on the one hand, they reinforce and ensure its proper constitutional dimension defending the rights of the accused. Indeed, the specific penalty requested by the prosecution for the crime is formally charged, as well, at least, that the story factual and legal classification to which it is based, no doubt an element essential nuclear claim punitive factor, as such, the procedural approach and the possible line of defense of the accused. Obviously this has to INFORMED, ex art. 24.2 CE, not only the facts alleged by the prosecution and its legal qualification, but also the actual specific penological consequences that it intends for the commission of such acts, that is, the penalty, the imposition upon request. The defendant exercised a constitutional right to defense on the specific penalty requested by the prosecution for the charges and the legal status they deserve it, and not on another punitive different, without in any way predict will be required and defend against hypothetical and future penalties could decide the court, and in excess of its severity, nature or amount from those requested by the prosecution. In other words, the dialectical confrontation between the parties in the process and the consequent possibility of contradiction against the opponent's arguments revolve exclusively, in what is now interested about the accusation made against the accused specifically, both as to refers to the facts of the punitive and its legal qualification, as the specific penological consequences, against which it exercises its constitutional right to defense. Thus, it outlawed the constitutional status of helplessness, of breakdown of the adversarial principle, would suffer the prisoner to whom it was imposed a penalty that exceeded in severity, nature or amount of the requested by the prosecution.
Moreover, the scope of the duty of consistency between the prosecution and the decision regarding the penalty to be imposed by the court in the terms defined in this legal basis is better covered up, while also strengthening its proper constitutional dimension, with the guarantee of judicial impartiality within the criminal process, which, as already noted, is one of the foundations of that duty requirement of consistency as a manifestation the adversarial principle. Certainly that guarantee is better protected if the court does not take the initiative of ex officio impose a sentence that exceeds in severity, nature or amount of the requested by the prosecution, assuming a role not very typical of a system configured according with the adversarial principle, as reported by the plenary stage in criminal proceedings. In this sense it is idle in any way to add that, as pointed out in the STC 123/2005 of 12 May, "since the earliest recognition of the constitutional dimension of certain guarantees related to the adversarial principle in the jurisprudence of this Court has affected both their connection with the rights of defense and the prosecution know ... like the need to separate the role of judge to accuse, to achieve greater independence and balance of the court and avoid acting as a party to the adversary proceedings against the accused, when it should be an impartial body that has to be above party accusations and imputations "(FJ 4). The imposition ex officio by the court to sentence in excess of that requested by the accusation is perhaps less harmonized with the constitutional guarantee of judicial impartiality in criminal indictments to assume functions that the Constitution does not apply.
This constitutional doctrine, the terms in which it has been exposed, profiled on the duty of correlation, as a manifestation of the adversarial principle, between the prosecution and the failure point concerning the penalty to be imposed, coincides substantially, as the prosecution puts reflected in its allegations, with the approach currently maintains about the Division of Criminal Justice.
The application of that constitutional doctrine must lead to the estimation of the first of the complaints of the appellants.
In this case, the story has remained unchanged factual and legal analysis of the material to the applicant filing the alleged failure of the requirement correlation between the prosecution and conviction in the penalty ultimately imposed. In effect, the public prosecutor, the only allegation in the cause, called the facts alleged against the appellant as constituting a lack of theft, and punishable under the art. CP 623.1, asking that the sentence imposed on him forty-five-day fine with a daily fee of 6 €. The magistrate remained unchanged the factual narrative in which the prosecution rested, and complied with the legal status it had made of the facts, but imposed on the applicant, rather than the fines interested in the Prosecutor, the permanent location at home for a period of twelve days, that the Provincial Court eventually reduced to eight days.
The permanent location of four to twelve days and a fine of one to two months are provided as alternative sentences for non-theft criminalized in the art. 623.1 CP. Both the permanent location penalty fine of ten days to two months are classified as minor penalties in the art. 33 CP. However, the permanent location is configured as one of the imprisonment (art. 35 CP), whose implementation requires the convicted person to remain at home or in a specific place set by the judge in sentencing, resulting in its failure to that the sentencing judge or the Court makes it clear testimony to the sentencing proceeding for breach (art. 37 CP). For its part, the penalty is fine the offender in imposing a financial penalty only if not paid voluntarily or by means of constraint can lead to personal liability subsidiary of one day of imprisonment for each two quotas are not met in the case of faults can be met by the permanent location, without the limit of the twelve days provided for in art. CP 37.1 as maximum punishment of permanent location. The appellant in defense and the prosecution in both the courts and in the process after the defense, considered different in nature and higher or more serious and distressing to the penalty of permanent location of eight days at his home on the applicant in the judgments under appeal, because it is a custodial sentence, the penalty of forty-five days with daily quota € 6 requested by the prosecution in the event of trial. Beyond these subjective judgments, with the constitutional perspective is our own permanent location penalty so aside from assuming no doubt a sentence of a different nature, must be regarded primarily as a more serious owing to legal property affected: personal freedom (art. 17.1 CE), which undoubtedly is of greater constitutional entity affected by the fine.
From that same light of freedom as a value greater than the penalty of permanent location affects him immediately, while in the case of fine its possible impact on freedom would occur only mediately, if the breach is were to apply the penalty of permanent location former subsidiary personal liability art. CP 53.
In this case the courts, away from the request of the prosecution, imposed on the applicant under a sentence that exceeds their different nature and severity of the requested by the prosecution. That decision, damaging the adversarial principle in accordance with the constitutional doctrine presented above, has substantially altered the terms of debate concerning the penalty trial, as had been raised by the prosecution in the trial of misdemeanors, who joined the appeal by the applicant as to the adversarial principle injury for having imposed a sentence of greater severity and nature different from that requested by him, resulting limited powers to defend the accused, ignoring the facts against him could be punished with imprisonment which was eventually convicted and resulting also committed impartiality of the judiciary, as they have channeled the prosecution at the point concerning the sentence.
otrosí devoted demand to justify the special constitutional significance appeal, stating that is that the Constitutional Court is set doctrine on the following: a) If the imposition conviction of a different nature to the only charge interest on acting, even though the literal result of the offense involves injury to the right to an effective remedy for violation of the adversarial principle and b) If the imposition of a sentence above the legal minimum in case of lack of motivation of the reasons for the punitive individualization involves the violation of the right to effective judicial protection due to lack of motivation.
The prosecution claims processing evacuated given by registered letter dated June 10, 2009, which in essence is summarized below:
Regarding the first ground of defense, that is, if constitutionally permissible the court's imposition of a penalty judgmental different and more serious nature that the person concerned by the prosecution, only the prosecution, the Prosecutor before the Constitutional Court reproduces the doctrine of SSTC 230/1997, of 16 December, 33/2003 of 13 February, and 183/2005, of 4 July on the adversarial principle and its application to view faults and concerns then the agreement which the Criminal Division of the Supreme Court adopted in plenary court not to unify criteria on December 20, 2006, under which "The Tribunal sentencing no penalty be imposed than the most serious of the specifically requested by the accusations, regardless of the type of procedure is conducted on the cause. " Reminiscent Agreement has been further developed in numerous judgments (SSTS 609/2007 of 10 July, 1319/2007, 12 January; 423/2008 of 27 June, 928/2008, 3 December).
In this case the court will replace a penalty sought by the prosecution which is a fine-arrest of forty-five days and daily rate of 6 € (art. 50.1 CP) -, by a custodial sentence, as the permanent location (arts. 35 and 37 CP) and, therefore, more serious and distressing power of immediate and far away from any personal liability under alternative non-payment of a fine (art. 53 CP), which could lead to imprisonment.
are three circumstances that highlights the prosecution: a) firstly, that the court move beyond their duty of neutrality with respect to the charge, takes a different and more severe punitive had not been discussed, without raising, However, such a possibility in a similar manner to that provided in Art. 733 LEC, which violates the principle of fairness, also framed in the right to a trial with all guarantees, to the extent that the court can not be a prosecution, assuming the role of a party. Replaced and the prosecution, incorporating a substantial variation in the legal, gathering not only the title of a plea but the specific punitive b) secondly, that even on appeal is filed charges under the terms of the Judgement of the Court of Investigation, a circumstance that has occurred could not heal, however, the offense in the first instance, and c) thirdly, that although in this case the appellant was not present at the trial of misdemeanors, the modus operandi of the judiciary in fact been eliminated, not only that the defendant had full knowledge of all aspects of the claim-accusation, the prosecution, which includes both the title of the specific complaint as punitive, but also the possibility of the parties to provide information in support of their claims (Article 969.1 LEC), failure to appear imprisonment on the request of the prosecution, but only in the Judgement, resulting in the unexpected sentence and whose reasons and specific sentence would have had only a knowledge After the act of the trial.
The foregoing are subject to qualification by the prosecution, considering in any case must respect the principle of legality in those cases where the imposition of a sentence is necessarily linked to the type of crime on the indictment because the process has a substantive criminal groups (STC 174/2003 of 29 September).
The prosecution concluded its analysis under the first ground of understanding that has been violated accusatory principle in connection with the right to a fair trial and the right of defense, as part of the right to a trial with all guarantees (art. 24.2 CE).
In its legal basis, the TC said that the question of limits constitutional judicial power to impose penalties or, in other words, the scope of the requirement of correlation between the prosecution and the failure point concerning the penalty to be imposed has already been addressed by the Constitutional Court on previous occasions, having developed in this respect, as we shall find, a constitutional doctrine that set out uniformly most judgments concerning the matter, but that is not free, however, inflections in some other decisions, at least in statement and development, giving rise to exposure of the doctrine is not always clear enough that, as susceptible, therefore, to cause confusion, it requires some precision or clarification.
precisely the reason for the remedy of certiorari under the Full Court in accordance with the provisions of ss. 10.1 n) and 13 OLCC has lived in the desirability of clarifying and shaping constitutional doctrine on such a complex issue, clearing any doubts that might give rise to and reflecting back on it, the discussion also within the Court itself has past resulted in conflicting positions among its members (in this sense, SSTC 59/2000 of 2 March, 75/2000 of 27 March, 76/2000 of 27 March; 92/2000 10 April; 122/2000 of 16 May, 139/2000, 29 May; 228/2002 of 9 December; 174/2003 of 29 September; 163/2004 of 4 October).
The Plenum of the Court reminded, once again, in STC 123/2005 of 12 May, reiterating previous constitutional doctrine, that even if the adversarial principle is not expressly mentioned among the constitutional rights that regulate the criminal , it is true nonetheless not as protected in the art. 24.2 CE certain fundamental rights which form the structural elements of that principle which transcends the right to be informed of the charge and includes a bundle of additional collateral. In this sense, highlighted both the principle of adversarial relationship with the constitutional rights of defense and the prosecution and to meet the constitutional guarantee of judicial impartiality (LC 3 and cited constitutional doctrine).
Descending from the general to the particular as regards, in particular, the foundation of the duty of consistency between the prosecution and failure, which is one of the manifestations of the adversarial principle contained in the right to a trial with all guarantees , in that Judgement we put it in direct relation, mainly with the rights to counsel and be informed of the charge, because if the judge had exceeded the verdict, enjoying a few facts or different legal classification to the alleged by the allegations, it would deprive the defense of the necessary contradiction. But we stressed that this duty of consistency is grounded in the right to a trial with all guarantees, to the effect that criminal prosecution is to be developed with respect to the delineation of roles between the prosecution and the trial court because, ultimately, a judicial ruling beyond the specific punitive charges that the court is to invade and take powers constitutionally reserved to the charges, since it would be condemned regardless of the request by the legitimate to define the punitive, leading to a loss of its position of impartiality and the injury of the right to a trial with all guarantees (STC 123/2005 of May 12, FJ 4; settled doctrine, among others, in the SSTC 247/2005, on October 10, FJ 2; 170/2006 of 5 June, FJ 2).
As we stated in that STC 123/2005 of 12 May, "the link between the punitive charging parties and the ruling of the court ruling, as the content itself of the adversarial principle implies that the trial court must issue a resolution consistent with that claim, which responds to the need not only ensure the possibility of contradiction and defense but also to observe the distribution of responsibilities among different participants in criminal proceedings, and, more specifically, from the trial court and the prosecution, under the terms stated in the arts. 117 and 124 CE. Thus, the analysis of respect for the duty to guarantee consistency between the prosecution and ruling by a court decision should come as not only the finding that the offender has had the opportunity to discuss elements of the charge contradictory, but also by the finding that the trial court has not compromised his impartiality by assuming functions that constitutionally accusatory do not belong "(FJ 4).
On the other hand, in the scope of the duty of consistency regarding punitive, it is well settled constitutional doctrine that the judge is under the Constitution in his speech to a double conditioning, factual and legal. Factual conditioning is constituted by the facts that have been subject to indictment, so that no fact or event has not been delimited by the prosecution as an object for the exercise of punitive may be used to be subsumed as a constituent element of the criminal responsibility. The court ultimately may not include in the narrative of events proven facts that substantially vary the charge, or conduct, consequently, the subsumption with them. Legal conditioning is constituted, in turn, by the characterization of those facts made the accusation. However, attending to their own powers of delivery of the Judicial office which has criminal law, public policy issues involved in the exercise of the right to punish , the judge may sentence for a crime other than that requested by the prosecution where consistent with it and does not involve a penalty of higher gravity, so that the subject of the sentence the prosecution can not go so far as to prevent the body modify judicial qualification of the facts of the case in the area of \u200b\u200bthe elements that have been or have been the subject of adversarial debate (SSTC 4 / 2002 of January 14, FJ 3; 228/2002 of 9 December, FJ 5 ; 75/2003 of 23 April, FJ 5; 123/2005 of May 12, LC 5; 247/2005, of October 10, FJ 2; 73/2007 of April 16, FJ 3).
as it pertains to the scope of the duty of consistency between the prosecution and adjudication in particular as regards the possible penalty to be imposed, that is the question raised in this petition for relief, as we had occasion to anticipate, it seen in the decisions of this Court have addressed the matter on which a doctrine should return.
This Court has held generally that the relationship of the judiciary to the adversarial principle, but prevents the imposition of a greater or more severe than for the crime actually charged in the process, does not, however, that the Judge impose a penalty greater than that applied by the accusations, if not alter the facts alleged in the process, and is carried out within the range of punishment for the offense resulting from classification of the facts contained in the indictment and discussed in the process because the judge is bound by law and must therefore apply the penalties, in its view, proceedings in respect of a particular crime (SSTC 17/1988, of February 16, LC 6; 21/1993 of January 18, FJ 2; 161/1994 of 23 May, FJ 2; 43/1997 of 10 March, LC 3 ; 228/2002 of 9 December, FJ 6; 174/2003 of 29 September, FJ 9; 163/2004 of 4 October, FJ 4; 71/2005 of April 4, FJ 7; 347 / 2006, dated December 11, FJ 3; AATC 377/1987 of 25 March; 321/1992 of 26 October; 327/1993 of 28 October; 202/1998 of 29 September, 310 / 2003, September 29; 353/2003 of 6 November, 369/2006, 23 October). Thus, under this constitutional doctrine, the linkage of the judge to the facts and legal classification does not preclude may impose penalties greater than those applied by the allegations within the limits prescribed by law the indicted offense, provided that the classification as such facts, and facts themselves have been subject for debate. However
other judgments concerning the matter, but not its ratio decidendi, the Court has held that "[I] n any case, as absolute limit at the time of sentencing, the judge is forbidden to qualify him the facts so as to integrate a more severely punishable if this deterioration was not sustained in court by the prosecution, or impose a penalty greater than that corresponding to the claim accusatory stated in the final conclusions, since it is a claim which could not defend the accused "(STC 75/2003 of 23 April, FJ 5; doctrine was reiterated in the STC 347/2006 of 11 December, FJ 3, and the ATC 426/2005, 12 December). It seems as open to these other resolutions, but in a purely doctrinal level, the acceptance of a more restrictive limit to the imposition of penalties in relation to those called for by the allegations.
Well, it is desirable to clarify and refine the constitutional doctrine which has recorded, related to the scope of the duty of consistency between the prosecution and adjudication in particular regarding the possible sentence to impose.
With a constitutional perspective it is proper that we should rethink the issue and go one step further in protecting the rights of defense of the accused and the preservation of the guarantee of judicial impartiality within the criminal process in the sense estimate that the charges requested by the imposition of a sentence within the legal framework provided for the offense formally charged, the court, as required by the said rights and constitutional guarantees, in which is the basis, inter alia, the duty of congruence between the prosecution and failure as a manifestation of the principle of accusation can not impose punishment in excess, because of their seriousness, nature or amount of the requested by the accusations, regardless of the type of procedure on the substance of the cause, but the punishment in question did not violate the margins provided for by law for the crime that results from the finding of made in the indictment and discussed in the process.
Thus, on the one hand, they reinforce and ensure its proper constitutional dimension defending the rights of the accused. Indeed, the specific penalty requested by the prosecution for the crime is formally charged, as well, at least, that the story factual and legal classification to which it is based, no doubt an element essential nuclear claim punitive factor, as such, the procedural approach and the possible line of defense of the accused. Obviously this has to INFORMED, ex art. 24.2 CE, not only the facts alleged by the prosecution and its legal qualification, but also the actual specific penological consequences that it intends for the commission of such acts, that is, the penalty, the imposition upon request. The defendant exercised a constitutional right to defense on the specific penalty requested by the prosecution for the charges and the legal status they deserve it, and not on another punitive different, without in any way predict will be required and defend against hypothetical and future penalties could decide the court, and in excess of its severity, nature or amount from those requested by the prosecution. In other words, the dialectical confrontation between the parties in the process and the consequent possibility of contradiction against the opponent's arguments revolve exclusively, in what is now interested about the accusation made against the accused specifically, both as to refers to the facts of the punitive and its legal qualification, as the specific penological consequences, against which it exercises its constitutional right to defense. Thus, it outlawed the constitutional status of helplessness, of breakdown of the adversarial principle, would suffer the prisoner to whom it was imposed a penalty that exceeded in severity, nature or amount of the requested by the prosecution.
Moreover, the scope of the duty of consistency between the prosecution and the decision regarding the penalty to be imposed by the court in the terms defined in this legal basis is better covered up, while also strengthening its proper constitutional dimension, with the guarantee of judicial impartiality within the criminal process, which, as already noted, is one of the foundations of that duty requirement of consistency as a manifestation the adversarial principle. Certainly that guarantee is better protected if the court does not take the initiative of ex officio impose a sentence that exceeds in severity, nature or amount of the requested by the prosecution, assuming a role not very typical of a system configured according with the adversarial principle, as reported by the plenary stage in criminal proceedings. In this sense it is idle in any way to add that, as pointed out in the STC 123/2005 of 12 May, "since the earliest recognition of the constitutional dimension of certain guarantees related to the adversarial principle in the jurisprudence of this Court has affected both their connection with the rights of defense and the prosecution know ... like the need to separate the role of judge to accuse, to achieve greater independence and balance of the court and avoid acting as a party to the adversary proceedings against the accused, when it should be an impartial body that has to be above party accusations and imputations "(FJ 4). The imposition ex officio by the court to sentence in excess of that requested by the accusation is perhaps less harmonized with the constitutional guarantee of judicial impartiality in criminal indictments to assume functions that the Constitution does not apply.
This constitutional doctrine, the terms in which it has been exposed, profiled on the duty of correlation, as a manifestation of the adversarial principle, between the prosecution and the failure point concerning the penalty to be imposed, coincides substantially, as the prosecution puts reflected in its allegations, with the approach currently maintains about the Division of Criminal Justice.
The application of that constitutional doctrine must lead to the estimation of the first of the complaints of the appellants.
In this case, the story has remained unchanged factual and legal analysis of the material to the applicant filing the alleged failure of the requirement correlation between the prosecution and conviction in the penalty ultimately imposed. In effect, the public prosecutor, the only allegation in the cause, called the facts alleged against the appellant as constituting a lack of theft, and punishable under the art. CP 623.1, asking that the sentence imposed on him forty-five-day fine with a daily fee of 6 €. The magistrate remained unchanged the factual narrative in which the prosecution rested, and complied with the legal status it had made of the facts, but imposed on the applicant, rather than the fines interested in the Prosecutor, the permanent location at home for a period of twelve days, that the Provincial Court eventually reduced to eight days.
The permanent location of four to twelve days and a fine of one to two months are provided as alternative sentences for non-theft criminalized in the art. 623.1 CP. Both the permanent location penalty fine of ten days to two months are classified as minor penalties in the art. 33 CP. However, the permanent location is configured as one of the imprisonment (art. 35 CP), whose implementation requires the convicted person to remain at home or in a specific place set by the judge in sentencing, resulting in its failure to that the sentencing judge or the Court makes it clear testimony to the sentencing proceeding for breach (art. 37 CP). For its part, the penalty is fine the offender in imposing a financial penalty only if not paid voluntarily or by means of constraint can lead to personal liability subsidiary of one day of imprisonment for each two quotas are not met in the case of faults can be met by the permanent location, without the limit of the twelve days provided for in art. CP 37.1 as maximum punishment of permanent location. The appellant in defense and the prosecution in both the courts and in the process after the defense, considered different in nature and higher or more serious and distressing to the penalty of permanent location of eight days at his home on the applicant in the judgments under appeal, because it is a custodial sentence, the penalty of forty-five days with daily quota € 6 requested by the prosecution in the event of trial. Beyond these subjective judgments, with the constitutional perspective is our own permanent location penalty so aside from assuming no doubt a sentence of a different nature, must be regarded primarily as a more serious owing to legal property affected: personal freedom (art. 17.1 CE), which undoubtedly is of greater constitutional entity affected by the fine.
From that same light of freedom as a value greater than the penalty of permanent location affects him immediately, while in the case of fine its possible impact on freedom would occur only mediately, if the breach is were to apply the penalty of permanent location former subsidiary personal liability art. CP 53.
In this case the courts, away from the request of the prosecution, imposed on the applicant under a sentence that exceeds their different nature and severity of the requested by the prosecution. That decision, damaging the adversarial principle in accordance with the constitutional doctrine presented above, has substantially altered the terms of debate concerning the penalty trial, as had been raised by the prosecution in the trial of misdemeanors, who joined the appeal by the applicant as to the adversarial principle injury for having imposed a sentence of greater severity and nature different from that requested by him, resulting limited powers to defend the accused, ignoring the facts against him could be punished with imprisonment which was eventually convicted and resulting also committed impartiality of the judiciary, as they have channeled the prosecution at the point concerning the sentence.
Monday, August 3, 2009
Mount And Blade Not All Troops In Battle
Conference working group for the creation of a European Public Prosecutor
With an eye on the fourth English EU presidency during the first half of 2010, and in both the English Presidency's program is the beginning of the reflections on the possibility of creating a European Public Prosecutor, the Attorney General's Office in collaboration with the ECJ, has organized a specialized workshop in order to unify criteria to be fleshing out the Community Office from Eurojust, as stated in the Treaty Lisbon. In it, and for three dais, prosecutors have come from various European countries such as Portugal, France and Slovenia and Belgium, and as the highest representatives of the Office of Anti-Fraud Office (OLAF) and Eurojust, have pooled their experiences and knowledge.
The outline of the workshop has been organized into five main topics: the structure and status of the European Public Prosecutor, its powers, its procedures, judicial review of proceedings and the determination of jurisdiction and the presentation of evidence. Cruising In Charlotte
Bill Approved for automatic execution of confiscation orders in the EU
The Council of Ministers on the proposal of Minister of Justice, Francisco Caamaño, today approved a bill that will allow automatic mutual recognition of confiscation orders imposed by judges in any EU Member State.
The future law will play a leading role in the fight against organized crime, since it involves the creation of a mechanism to prevent organized crime derive economic benefit from their illegal activity. Its main objective is to confiscate within Europe from the effects of having committed a criminal offense, the instruments used to it and all those who, in accordance with current regulations, may be subject to forfeiture.
By this standard is incorporated into English Law Framework Decision 2006/783/JHA of EU Ministers, which is part of actions aimed at creating the area of \u200b\u200bfreedom, security and justice within the Community, considering the international judicial cooperation as one of its essential parts. Given below, in addition to other important community decisions, such as the European Arrest Warrant (known as OEDE), the reference to the execution of orders freezing assets and preserving evidence and the principle of mutual recognition financial penalties.
This Bill is accompanied by a supplemental draft Law amending the Organic Law of Judicial Power, the sole purpose of recognizing the competence of the judges of the Criminal Court for enforcement in Spain the final confiscation orders transmitted by the competent judicial authorities of other member states of the European Union.
confiscation orders
The seizure may reach the property that derives from criminal activity carried out by the convicted person for a period prior to sentencing, or those on which the national judicial authority is fully satisfied, based on facts ,
of criminal origin, or if it transpires that the value of the property is disproportionate to the lawful income of the convicted person.
Transmission and enforcement of judgments Both
Decision Frame and the draft law transposing
proceeds to sit on the principle of mutual recognition, based on mutual trust between judicial authorities of different Member States, in order to recognize and execute all those judgments that are dictated by
competent judicial authority of a Member State of the European Union. This ensures that any Member State recognized and enforced in their own territory that final judicial decision issued by the competent authority of another Member State, to be directed at the deprivation of certain goods as a result of the criminal process developed in this State. To this end, the regulation provides is based on reconocimiento del principio de no sujeción al control de la doble tipificación y por tanto del reconocimiento y ejecución automático de la resolución de decomiso, en relación con un conjunto de determinados de delitos.
Con este fin, la norma prevé un catálogo de delitos para los que no se exige la doble incriminación, siempre que la pena impuesta en el proceso penal sea de al menos tres años en el Estado de emisión. En estos casos, los jueces de lo Penal –como autoridades judiciales españolas competentes para su ejecución en nuestro país- procederán al reconocimiento automático de la decisión adoptada por la autoridad judicial competente de otro Estado miembro de la Unión Europea, except when one of the limited grounds for refusing recognition and enforcement. Out of that list of dual criminality crime itself may be required for the recognition and enforcement of the resolution.
The future law will play a leading role in the fight against organized crime, since it involves the creation of a mechanism to prevent organized crime derive economic benefit from their illegal activity. Its main objective is to confiscate within Europe from the effects of having committed a criminal offense, the instruments used to it and all those who, in accordance with current regulations, may be subject to forfeiture.
By this standard is incorporated into English Law Framework Decision 2006/783/JHA of EU Ministers, which is part of actions aimed at creating the area of \u200b\u200bfreedom, security and justice within the Community, considering the international judicial cooperation as one of its essential parts. Given below, in addition to other important community decisions, such as the European Arrest Warrant (known as OEDE), the reference to the execution of orders freezing assets and preserving evidence and the principle of mutual recognition financial penalties.
This Bill is accompanied by a supplemental draft Law amending the Organic Law of Judicial Power, the sole purpose of recognizing the competence of the judges of the Criminal Court for enforcement in Spain the final confiscation orders transmitted by the competent judicial authorities of other member states of the European Union.
confiscation orders
The seizure may reach the property that derives from criminal activity carried out by the convicted person for a period prior to sentencing, or those on which the national judicial authority is fully satisfied, based on facts ,
of criminal origin, or if it transpires that the value of the property is disproportionate to the lawful income of the convicted person.
Transmission and enforcement of judgments Both
Decision Frame and the draft law transposing
proceeds to sit on the principle of mutual recognition, based on mutual trust between judicial authorities of different Member States, in order to recognize and execute all those judgments that are dictated by
competent judicial authority of a Member State of the European Union. This ensures that any Member State recognized and enforced in their own territory that final judicial decision issued by the competent authority of another Member State, to be directed at the deprivation of certain goods as a result of the criminal process developed in this State. To this end, the regulation provides is based on reconocimiento del principio de no sujeción al control de la doble tipificación y por tanto del reconocimiento y ejecución automático de la resolución de decomiso, en relación con un conjunto de determinados de delitos.
Con este fin, la norma prevé un catálogo de delitos para los que no se exige la doble incriminación, siempre que la pena impuesta en el proceso penal sea de al menos tres años en el Estado de emisión. En estos casos, los jueces de lo Penal –como autoridades judiciales españolas competentes para su ejecución en nuestro país- procederán al reconocimiento automático de la decisión adoptada por la autoridad judicial competente de otro Estado miembro de la Unión Europea, except when one of the limited grounds for refusing recognition and enforcement. Out of that list of dual criminality crime itself may be required for the recognition and enforcement of the resolution.
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