We invite you to read the column written by our senior associate of the Criminal Group, David Segall, on the incorporation of political plaintiffs in the criminal procedure system.
The incorporation of political plaintiffs in a case increases the risk of political and instrumental use of the background of the investigation, giving rise to possible leaks to the media. It is imperative to legislate on the matter to prevent the criminal procedure system from being instrumentalized.
Our criminal procedure is based on the concept of the monopoly of the Public Prosecutor’s Office in the investigation of the facts constituting a crime and, in principle, in the exercise of the public criminal action. The Public Prosecutor’s Office is the institution in charge of channeling the social interest in criminal prosecution, carrying out the processes until their completion under the forms established by law.
Likewise, the figure of the plaintiff coexists with the Public Prosecutor’s Office, being the plaintiff by antonomasia the victim of the crime. This legislative consecration obeys the need to give the victim a preponderant role in the process, so that his or her interests of prosecution or even economic reparation can be satisfied. The aim is to balance the interest of society in the punishment of the offense and the claims that the victim may have.
On the other hand, Article 111, paragraph 3 of the Code of Criminal Procedure establishes that the public agencies expressly granted such authority by their organic laws will also be plaintiffs.
The current wording of this rule comes from the reform introduced to the Code of Criminal Procedure by Law No. 20,074, which modified the original text of the Code that established a broad active legitimacy with respect to crimes that affect relevant social interests or the community as a whole. A sort of popular action was repealed to give way to the intervention of public agencies other than the Prosecutor’s Office.
The spirit of this modification is reflected in what Senator José Antonio Viera Gallo pointed out during the legislative discussion: it was necessary to “…eliminate from the root the possibility of these popular actions, which serve only for communication strategies of political groups and do not help at all in the development of the criminal trial” – Report of the Constitution Commission dated June 21, 2005, p. 8 (3rd constitutional procedure of the legislative discussion that gave rise to Law No. 20.074).
Was this objective achieved? In light of recent public cases, the answer is clearly negative. And not because of the current wording of subsection 3 of Article 111, but rather that of its subsection 2, which allows any person domiciled in the province to file a complaint for crimes committed by public officials that affect the rights of persons guaranteed by the Constitution or against public probity.
In fact, it has become customary to hear about complaints filed by mayors in office against their predecessors, or by parliamentarians who file complaints against former authorities of a different political party than the one they represent. In these cases, these plaintiffs often seek to make a political point rather than to make a real contribution to the clarification of the facts. Their intervention in the process and their appearance at hearings politicizes a debate that should be markedly technical. In addition, the incorporation of political plaintiffs in a case increases the risk of political and instrumental use of the investigation’s background, giving rise to possible leaks to the media.
After more than 20 years since the beginning of the Criminal Procedure Reform, there is no reason to continue to maintain a rule of this nature in our Code. If any person wishes to bring to the attention of the authorities the occurrence of a crime, it is sufficient to file a complaint and thus trigger the initiation of an investigation. It has been demonstrated that keeping subsection 2 of article 111 in force makes it easier for political groups to develop communication strategies that “do nothing to help the development of the criminal trial”. It is imperative to legislate on the matter to prevent the criminal procedure system from continuing to be instrumentalized.
Column written by:
David Segall | Senior Associate Criminal Group | dsegall@az.cl
