Is it legal for Criminal Matters Prosecutors dismiss injunction Oral complaints?

We must leave this brief discussion, noting that the Public Ministry is responsible for excellence, the prosecuting and defense of the law, and that on the basis of the provisions in Article 159 º of our Charter National Policy, where the basic rule has been responsible to flesh out constitutional functions and powers of Members of Public Prosecutions, and where we see that is responsible for prosecution of its own motion or upon request. From this allocation, we note that the Public Ministry, by express command of the Constitution, should prosecutions ex officio or upon request, however, and obviously, not all cases will be cause for the initiation of the action criminal, but those who have passed the barrier of qualification and of course tax the transfer of the preliminary hearing, governed by Article 330 of the Code of Criminal Procedure.

A point related to the foregoing, is it pertains to what our status of criminal procedure points out regarding the right to complain, providing in Article 326 º that any person has the right to report criminal acts to the appropriate authority, provided the exercise of criminal action to prosecute is made public, and further that the complaint may be made by any means, whether written, the complainant sign and digital printing, and if verbal sit the respective record.

As we see any person has the power to report a criminal act, and that it be receptions Fiscal Agency, initiating an investigation. But if we look at Article 329 of the Code of Criminal Procedure, we find that the prosecutor initiates the investigative acts upon becoming aware of the suspicion of the commission of an act that lines the character of crime, promoting research in motion or petition the complainants. In that article we have, and making a contrario inference that if the Prosecutor considers that the facts known to the Fiscal Agent characters are not of a crime, typically have to understand, or even generate the suspicion of the commission of a crime, it should be rejected receipt of the complaint, and therefore the investigation of the facts not made known.

In this statement the question arises. Does the prosecutor can dismiss complaints verbal injunction without even minimal research acts to let you know for sure if it is facing a crime? or is that the mere verbal complaint is often full of subjectivism, tension, nervousness on the part of those affected, the prosecutor may properly qualify these facts, and decide whether to open an investigation, or dismissed in limine? Is it enough for the Attorney-very quickly listen to those who consider themselves aggrieved, and determine that the complaint is not relevant criminal, and therefore its not prosecutability, What about those who are not properly handle a talkative, we allows them to transmit their thoughts verbally fluent?, do not they get his complaint that he was not understood anything, or perhaps the prosecutor must guess what it means?, Who present their oral complaint and this is not received, not have the right to the plurality of instance?, is the verbal reasoning by which it dismissed the complaint, must be understood that is consistent with the duty of the Prosecutor in properly motivating your resolutions?.

As we can see some concerns arise regarding the issue of verbal complaints received by the Public Prosecutions, but then what would certainly be rejected in limine legal verbal complaints, saying that clothes are not of a crime?. on that point we must consider that section 334, subsection 01 of the Code of Criminal Procedure, regulate the qualification under Title III: Research School, from which Otea that if the prosecutor to describe the complaint or after making or willing to perform preliminary hearing, finds that the act in question is not a crime, not criminal justice, or causes of extinction are presented under the Act, declare that it is unnecessary to formalize and continue the preliminary investigation and ordered the closure of the proceeding. This standard refers to the decision to be taken by the prosecutor when, after conducting preliminary proceedings or the outcome of the rating process, note that the facts alleged do not constitute a crime (...) must have non-formalization of the preliminary investigation, and Therefore, the provision contained in the relevant tax. Well, the same Code of Criminal Procedure is saying that if the prosecutor to describe the complaint-understand criminal received the news: whether it is directly affected by the written or verbal {}, or through the National Police of Peru or popular action- , shall issue a provision, which must be duly justified and reasoned, raising the possibility that the Prosecutor acted degree review (via right-complaint section 334, subsection 05 of the Criminal Procedure Code).

Now, we see that the issue of the provision on non-formalization of the preliminary investigation allows the exercise to the plurality of body: but, being compared to a rejection of the complaint in limine by the Prosecutor verbal shift, prevents and nullifies the constitutional right to the plurality instance, by preventing recourse to higher level, as this decision is contained in a tax provision.

Now as to what the said article 334 of the Code of Criminal Procedure, refers to non-finalization of the preliminary investigation, after making or willing to perform preliminary proceedings, in which case after deploying all acts of investigation up to concluded by the prosecutor who is not eligible to proceed to formalize the preliminary investigation.

Then we need is a sine qua non, the issue of the provision of non-formalization of the preliminary investigation to the Prosecutor to decide on the complaint file. However, as we have seen, when formulating their verbal complaint to the Attorney Criminal Matters, the victims, receive only a verbal arrangement, ie, the prosecutor calls in the act of reception, and resolved on the spot, saying his decision to the aggrieved party, the same does not have the possibility to appeal the decision, ie the decision of the Attorney Criminal Matters, it would be able to be appealed by the aggrieved party so that whoever Criminal Prosecutor review the proceedings and delivered by the lower tax, and with this understanding that would run head-on the constitutional principle of plurality of instance, not the victim or complainant made possible in order to request a review of the actuated by the higher level.

And that's not all, the Organic Law of Public Prosecutions [1], which although it has stigmatized her anachronistic, provides in article 12 that: (...) If the Prosecutor before which has been filed, the complaint- not deemed appropriate, IT IS HAR? Know in writing the complainant, who may complain to the Attorney immediately above, within three days of notification of the refusal. Consensual resolution of the Provincial Prosecutor or the decision of the Superior, where it terminates the procedure. It reaffirms reviewed again that when the Prosecutor considers an investigation is not appropriate for a given fact that was brought to its attention by having the appearance of tort, it must be in writing, and from there, and being the period prescribed by law complaint may be appealed through right before the higher level. Plausible factual situation, as they observe, without the right to the plurality of request and proper motivation of decisions, given that if it were not so, it would run head-on against these rights and constitutional order.

In that vein, it is because it is not legal or constitutional to reject in limine made verbal complaints to the Attorney Criminal Matters, given that as outlined, is contrary to the rules set forth by the text of the Code of Criminal Procedure and also the Constitution of Peru as it pertains to the right to request the plurality and the right to a proper motivation of the resolutions, which assists all citizens.

Finally we should note that in order not to violate the rights of aggrieved parties or harm with potential criminal events is that complaints must be received to be formulated before the Criminal Prosecutor on duty, and thus dismiss in limine, as it is preferable to perform a cursory investigation, to injure or aggravate the situation of those who attend the public prosecutor to seek a light that can be alleviated in part his stay ails this world. Not to mention that many will try to justify the rejection of the claims-understand-in the fact that it would generate an overwhelming caseload by admitting "all" verbal complaints filed in fiscal shift, and also that it would affect the celerity with other research that keep rotating stock except to say that you get to claim that it "distracts" the prosecutor in research work would have no future, a fact which is rejected from our modest position, since all members of our nation have the right to make their claims, and that they are received, and post-investigation-even or slightly shallower in deciding reasoned, fulfilling the requirement of our mother and the standard light of the Constitutional Court's pronouncements in this regard, since as has been noted above, the fact reject in limine the verbal complaints, affect the right to request and obtain a plurality of fiscal body a reasoned decision.



By Jose Antonio Diaz Wall.

Questions and suggestions: jdiazmuro@hotmail.com



[1] Legislative Decree No. 052.