PPT Derecho Procesal Penal PDF

# CAPÍTULO XXXV ## LOS PROCEDIMIENTOS ESPECIALES EN EL CÓDIGO ORGÁNICO INTEGRAL PENAL (COIP) ### Consideraciones previas Estos procedimientos especiales constituyen una novedad en el sistema procesal penal ecuatoriano. They have been copied or, at least, have as a precedent, the possibility of ac...

# CAPÍTULO XXXV ## LOS PROCEDIMIENTOS ESPECIALES EN EL CÓDIGO ORGÁNICO INTEGRAL PENAL (COIP) ### Consideraciones previas Estos procedimientos especiales constituyen una novedad en el sistema procesal penal ecuatoriano. They have been copied or, at least, have as a precedent, the possibility of accepting and applying the *Guilty Plea*, which is so widespread in the North American criminal justice system. Therefore, we are obligated to briefly analyze what it is and what the conviction by *Guilty Plea* consists of. Literally translated, the expression "*plea*" means plea, petition, or supplication, while *guilty* means guilty. Therefore, *guilty plea* could be understood as "pleading guilty" or admitting guilt in a criminal situation where a person is accused or charged with committing a crime. According to Joel SAMAHA in his book _CRIMINAL PROCEDURE_, third edition, (p. 577), "There are two types of *guilty plea*: direct and negotiated. The direct plea is generally applied to clear cases (we could call them flagrant cases) where the evidence of guilt is abundant. Negotiated pleas usually arise in judicatures of large urban centers. They arise when the State has problems with witnesses who are unreliable or the case is weak in some way." # Derecho Procesal Penal Ecuatoriano - Tomo II ## 648 The accused have a strong defense or can win the sympathy of the jury. Until the 1970s, plea bargains, although frequent, did not receive formal recognition from the courts. Since the case *Brady versus Estados Unidos*, decided in 1970, the Supreme Court has recognized and approved their legality. The defendants plead guilty in exchange for the government taking one of the following actions: 1) Dismiss the charges, 2) Recommend a sentence, or refrain from seeking it, or 3) Agree to a specific sentence. The conviction for pleading guilty, whether negotiated or direct, raises some concerns, although according to the Supreme Court of the United States, "the main virtues of the pleading-guilty system are speed, economy and certainty." ## 649 Ricardo Vaca Andrade precisely, those virtues the Ecuadorian lawmaker who drafted the CPP of January 2000 and the COIP of 2014 have been inspired by to include these special criminal procedures that allow for a swift resolution of criminal cases, provided that certain specific rules, which are clearly stated in the chapter that deals with the abbreviated, direct and expedited procedures, are met. According to Art. 634 of the COIP, the special procedural options are: 1. Abbreviated Procedure 2. Direct Procedure 3. Expedited Procedure 4. Procedure for the Exercise of the Action Penal 5. Unified, Special and Expedited Procedure for the Trial and Sentencing of Crimes of Violence ## 1. PROCEDIMIENTO ABREVIADO ### 1.1 Admisibilidad This procedure, like the direct and expedited procedures, is a new way to seek swift, yet effective, solutions to criminal conflicts arising from minor offenses. It introduces a different process than the traditional procedure of the Ecuadorian criminal justice system for offenses of action ## 650 public, with which there is an attempt to achieve certain goals, that if achieved, will produce positive results, particularly with regards: * Decongesting the judicial work in courts and trial courts. * Providing an effective response to citizens who demand progress in the administration of justice. * Adequately channeling the natural reactions of individuals and society against offenders, which has led, in many cases, to primitive reactions of vigilante justice that, while understandable, are not justifiable. * Making possible direct and personal mediation in the criminal realm, but limiting it to offenses of lesser gravity that are punishable by lesser penalties. This mediation, which was impossible in the past, should take place between the prosecutor and the defendant with his lawyer, but without disregarding or neglecting the rights of the injured party or the victim. Additionally, the goal of the procedural option is to achieve certain objectives, such as: 1. That the person who is accused of committing a minor offense assumes responsibility for the offense and all of its consequences. 2. That the trial of said person takes place quickly, without delay. 3. That the State, in all circumstances, through the judicial organ, with the participation of the Public Prosecutor in their role as representative of the injured society, enforces their right to punish the crime and sanction the responsible party as quickly as possible. ### 1.2 Reglas Art. 635 of the COIP states the following: "Article 635.- Rules.- The Abbreviated Procedure shall be conducted in compliance with the following rules: 1. Offenses punishable with a maximum penalty of deprivation of liberty of up to ten years shall be subject to the Abbreviated Procedure, except in cases of kidnapping, against personal integrity, ## 651 sexual and reproductive and when it comes to the crime of sexual violence against women or members of the family nucleus. This procedure does not apply for trying all types of crime but only those sanctioned with a maximum penalty of up to ten years of deprivation of liberty; a limitation we disagree with as we are copying the North American penal system, we should be copying it entirely, without this type of limitation. Thus, in the justice system of that country, and relying on the *Guilty Plea* (accepting responsibility for the criminal act imputed to the person), it is possible to apply this procedure to all types of crime without any relation to the penalty that could be applied to the guilty party. We reiterate that we do not agree with this limitation because defendants charged with other offenses that have harsher maximum penalties, such as those related to drug trafficking, if they have been caught in the act and there is irrefutable evidence against them, could also voluntarily admit their criminal responsibility for the crime they are accused of and request that they be tried using this special procedure, especially if they offer to give fundamental information to the Police and the Prosecutor as part of the negotiating process and the penalty. Therefore, the limitation we are analyzing lacks a logical basis. ## 652 Precisely, an example of what we are saying is the procedure applied to the former Ecuadorian soccer referee who was caught with drugs and therefore accused and sentenced for drug trafficking. 2. The proposal of the Prosecutor may be submitted from the hearing of charges to the hearing of evaluation and preparation for trial. Who should notify the judge of the proposal is the Prosecutor, and only within a specific time period, which could vary, because it occurs during the Investigation stage and during the Intermediate stage until the hearing of preparation for trial. 3. The defendant shall expressly consent to both the application of this procedure and the admission of the facts attributed to him. The defendant is the person who is giving up his right to be tried by a judge in a trial court, with each stage of the judicial process carried out with strict adherence to the due process guarantee and, fundamentally, the right to a defense. The trial of the defendant assumes that in the trial the Public Prosecutor and the Defense are in opposing roles, the Prosecutor, who has the burden of proof, has to provide evidence to prove the existence of the crime and make the trial court have the certainty needed to declare the accused guilty. Meanwhile, the defense can contradict the allegations of the Prosecutor. However, if the defendant admits to having committed the act he is accused of - without this being a confession, it is assumed that the trial is no longer necessary, just the need to apply the penalty that has been agreed upon between the Prosecutor and the defendant. ## 653 4. The Public or private defense counsel shall certify that the defendant has freely given his consent, without violation of his constitutional rights. The procesual record must contain an irrefutable record that the defendant has voluntarily consented to go through this Abbreviated Procedure, after clearly and precisely admitting that he committed the act that will be used to try him. This task must be carried out by the public or private defense counsel, therefore, he has an ethical obligation to explain to his client, in a proper way, in simple and understandable language, what the legal consequences of this acceptance are, as a prior requirement to negotiate and agree on the penalty that will be imposed. 5. The existence of several individuals accused does not prevent the application of the rules of the Abbreviated Procedure. If there are several individuals accused, the Abbreviated Procedure may be applied to one, two or more, or all of them. Thus, some of them may give their free and voluntary consent while the others may not wish to do so, which is permissible because they are within their rights. ## 654 6. In no case may the penalty to be applied be greater or harsher than that proposed by the Prosecutor. Once the defendant admits to the act he is accused of, that is to say, accepts having committed the crime he is accused of, a possible agreement between the Prosecutor and the defendant, possibly with the defender acting on behalf of his client, is reached on a penalty that is sure to be lower than that provided by law, after which it would proceed to a second phase, which is to seek approval from the judge. Once submitted to the magistrate, he shall not impose a penalty that is more severe or greater than that suggested by the Prosecutor. ## 1.3 Trámite, audiencia y resolución These are stated in Arts. 636, 637 and 638 of the COIP: "Article 636.- Procedure.- The Prosecutor shall propose to the defendant and to public or private defense counsel to accept the Abbreviated Procedure; and if they accept, he shall agree on the legal classification of the punishable act and the penalty. According to the legal text, the initiative must come from the Public Prosecutor, as it is in the State's best interest to resolve as many criminal cases that reach the Public Prosecutor's Office as possible, thus complicating and delaying the course of justice. Conversations between the two parties should address the two fundamental facts: that he agrees to go through the special procedure, provided that he previously accepts the legal classification, in other words, the typology of the offense that he is accused of, as well as the penalty that would be imposed on him. ## 655 The defense of the accused shall inform his client of the possibility of going through this procedure, explaining clearly and simply in what it consists of and what the consequences it entails. It is up to the defense attorney to fulfill their responsibility, role as advisor, counselor, confidant, and to do so with responsibility, ethics and consideration, when explaining the implications of going through the Abbreviated Procedure; and, ## 656 more specifically, what the consequences of such acceptance are, by notifying him that the defendant must accept that he committed the offense and, of course, accept the penalty to be imposed, even if it is reduced in relation to that provided by law.