E/CN.4/1996/35/Add.2
page 16
persons facing trial and to the victims of possible abuses. The system places
in the hands of the judge hearing a case responsibility for both the
examination proceedings and the judgement, as well as authority to indict, a
feature which is generally considered to exclude any possibility of an
adversarial process and which jeopardizes the principle of impartiality. The
judge conducts the trial through pre-trial proceedings which are held in
camera, during which all the items of evidence are incorporated into the case
and during the examination stage of which the suspect is subject to a system
of supervision which frequently entails deprivation of freedom. The gathering
of evidence is almost exclusively performed by the police; this could hardly
be otherwise in view of the concentration of responsibility. Although the
police are under the authority of the judge while they perform this task (and
also of the Government Procurator in the second instance), in practice the
supervision exercised is merely formal, and the police operate with a large
degree of autonomy. The absence of a prosecution service to direct the
investigation and supervise the activities of the police is one reason why the
latter enjoy excessive autonomy, which may be a contributing factor to the use
of violence during the initial phase of criminal proceedings. 13/ On
completion of pre-trial proceedings, the judge issues the committal order.
The actual trial phase then begins, during which the defence has an
opportunity to bring forward evidence and arguments in writing. On conclusion
of this procedure the same judge hands down his sentence.
57.
In view of the features described above, the absence of a defending
counsel during the first phase of the pre-trial proceedings is particularly
detrimental. As C. Riego notes, with regard to the statement to the police
and the answer to the charges before the judge "which are the first contacts
between the suspect and the criminal prosecution service, the lack of defence
is aggravated by the possibility that the suspect’s statements will be taken
as substantive evidence in the trial. This is perfectly clear where the
statement to the judge is concerned, and no restrictions apply. In the case
of the statement to the police, there are tighter restrictions, although in
the end article 484 of the Code of Penal Procedure authorizes the judge to use
the statement as the basis for his judgement. The problem posed by the
exclusion of professional counsel from these initial proceedings thus has far
greater consequences than one might assume, because on account of the nature
of our judicial system these steps might prove to have a decisive bearing on
the final outcome of the trial; consequently the exclusion of counsel at this
stage may actually prevent the possibility of effective defence during the
rest of the trial". 14/
58.
The shortcomings of the existing system have led the Government to
undertake a set of reforms, as part of which, on 9 June 1995, it submitted to
the National Congress a bill for a new Code of Penal Procedure introducing an
accusatorial and oral system. A cornerstone of this system would be the
establishment of a prosecution service, for which the relevant regulations are
being drawn up. This prosecution service would conduct criminal proceedings
under the authority of a supervisory magistrate, thereby preserving the
impartiality of the trial judge. According to a study by the National
Compensation and Reconciliation Agency, "the judge, who would be released from
the burden of directing the investigation (a task to which, moreover, he
frequently fails to devote sufficient time on account of his other duties)
could thus devote greater attention to ensuring that the investigation takes
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