EL MINISTERIO FISCAL, DIRECTOR DE LA INVESTIGACIÓN DE LOS DELITOS

Abstract

The so-called Public- or Fiscal Ministry (PM) in the Spanish-speaking world is a key institution of the modern State organization whose function is to represent the State and social legal interests before the criminal courts. Its organization is characterized by a vertical hierarchy headed by the national Attorney General. It is not an autonomous entity but the PM is functional independent from the government which means that despite it is mainly placed within the executive branch, and exceptionally in the judicial branch, the decision-making process concerning whom to investigate, or accuse, is made by the Attorney General. Nevertheless the Public Ministry operates independently it is acceptable that the President of the Executive, or the Judicial, branch provide the head of the Public Ministry with suggestions related to what criminal, or prosecutorial, policy to follow in a particular case, —said suggestions are not mandatory for the Attorney General. As a result of the French Revolution, the Public Ministry was granted with a very limited role in crime investigation and persecution. In those days the institution only role was to assist the so-called instructional judges in investigating the crime, but as time passed by experience proved that judges were not capable to appropriately conduct crime investigations so these responsibilities were progressively given to the Public Ministry. Most judges because of being part of the crime investigation  were vulnerable to develop biases which later were reflected in judicial opinions which affected the quality of the administration of justice. The way modern justice systems established controls (checks and balances) on the activity of the Public Ministry is through a new institution called the guarantee judiciary (or intermediate judge). The main mandate of the “intermediate judge” is to protect the basic rights and civil liberties of those individuals under judicial investigation as well as those of the crime victims