Legal Framework – Accusatory Criminal System:
It operates under the principles of orality, concentration, strict equality of arms, immediacy, and adversarial proceedings, being primarily a system focused on guaranteeing respect for the rights of the person under investigation to counterbalance the disadvantage of facing accusations from an authority with power and authority.
Decisions that could affect a fundamental right are made by a judge of guarantees, who, without prior knowledge of the facts, listens to the arguments of the parties and decides on the requests presented, primarily in an oral hearing.
Process phases:
#1 Preliminary investigation: the period that elapses from the beginning of an investigation, whether ex officio, by complaint or lawsuit, until the date on which the charges are presented before a judge of guarantees.
In this phase, the Public Prosecutor’s Office supports its actions primarily through:
a. Purpose of the investigation and activities: the investigation aims to determine the grounds for a solid accusation, for which the Public Prosecutor’s Office is authorized to carry out investigative activities, including the collection and securing of evidence, inspections of places and objects, identification of individuals, and the performance of technical and scientific procedures.
b. Duty of cooperation: the Public Prosecutor’s Office has the duty to investigate crimes and may request information from any public servant, natural person, and/or legal entity.
c. Investigative acts that require judicial authorization:
- The search: as a general rule, the Prosecutor has the obligation to request it in writing from a judge of guarantee, expressing: (i) specific identification of the place or places that must be searched, (ii) purpose of the search, (iii) reasons and evidence that justify the need for the search and the time to carry it out, (iv) name of the Prosecutor responsible for the execution of the measure, (v) signature of the Prosecutor who requests the authorization.
The search must be limited to the act that motivates it; searches of residences must be carried out between six in the morning and ten at night, and searches of offices and furniture have no time limitations.
Authorization is not required in cases of flagrant offenses, to prevent a crime, to assist victims, or due to the risk of loss of evidence resulting from a prior search; however, it must be subject to subsequent judicial review within 48 hours. The judge may annul the authorization and declare the evidence inadmissible if it was not justified.
- Surrender and seizure of objects or documents: Individuals in possession of relevant objects or documents must surrender them if legally required to do so. Failure to do so may result in their seizure.
- Objects not subject to seizure: Communications with defense counsel and medical information are protected by attorney-client privilege (unless related to the investigation).
- Interception of communications: This requires judicial authorization and is exceptional in nature, with defined time limits (20 days) and an obligation to maintain secrecy.
d. Investigative acts subject to subsequent judicial review: This includes data seizure and covert operations, which must be subject to subsequent judicial review.
e. Investigative acts that do not require judicial authorization: These include on-site inspections, interviews, and the appearance of the accused before the Public Prosecutor. It is important to note that the inspection can be carried out under the direction of the Prosecutor and without the need for a court order.
#2 Formal research: Once the charges are formalized, a six-month period is established to complete the investigation, extendable under circumstances established by law for up to one additional year. During this period, evidence continues to be gathered that may constitute proof in the future criminal trial. After this period, the Prosecutor must decide whether there is sufficient evidence to indict the accused; otherwise, they must request dismissal of the case.
#3 Intermediate phase: If the Prosecutor decides to bring charges, they will submit the indictment to the judge of guarantees, along with a list of the evidence they intend to introduce and present at trial. The presentation of the list of evidences and the formal accusation will be conducted orally, and the defense will have the opportunity to present its evidence orally as well. If all legal requirements are met, the judge of guarantees will issue an order to proceed to trial, indicating the trial date, identifying the accused and their defense, the prosecution, and the victims of the crime, as well as the list of evidence that each party will present at trial.
#4 Oral trial phase: Having reached this phase, we find ourselves in the criminal trial itself, in which the evidence is presented before a Trial Court, made up of 3 judges, who during the process have had no prior knowledge of the case; and who will decide, according to the evidence and arguments presented, the criminal responsibility of the accused, as well as on the civil damages that have been proposed and substantiated.
Preventive considerations:
For companies, it is essential to consider the implementation and sustainability of a robust compliance program, develop regular training for employees on compliance, business ethics, and procedures in case of investigations, and demonstrate a commitment to legality, ethical conduct, and transparency; this will allow them to prevent and/or mitigate risks in the event of criminal proceedings.
Ultimately, the path to a favorable resolution of these types of processes demands rigorous preparation, specialized knowledge, and a robust legal strategy. At EVANS GROUP, we reaffirm our unwavering commitment to defending our clients’ rights with the experience and dedication of our team.