EQUALITY OF ARMS AND ASYMMETRY PROSECUTION-DEFENCE IN CRIMINAL PROCEEDINGS BASED ON THE PRESUMPTION OF INNOCENCE
(Reference to the Bill of Criminal Procedure of 2011 and the Draft Criminal Procedural Code 2013)
Keywords:
Reform of the criminal procedure, Equality of arms, Presumption of innocence, Principle audi alteram partem, Inquiry process and prosecution process, Equitative process, Prosecution and defence, Charging judgment, Defendant intervention in the oral proceeding, Second criminal hearingAbstract
The eternally postponed comprehensive reform of the Criminal Justice system in Spain should not be approached with the aim of improving the efficiency of the prosecution system, but also —and even primarily— as a chance to adjust the structure and organization of criminal procedures according to a primary purpose to be fulfilled in a democratic society: the protection of fundamental rights and guarantees of citizens facing the exercise of the ius puniendi by the state, and all the other participants in the procedure, and in particular, the victims. This requires the overcoming of the old inquiry design and the replacement of the current model for another, which should be truly inspired by the principles of the presumption of innocence and the equality of arms, considering that prosecution and defense entitle different rights. The Bill of Criminal Procedure passed in 2011 and the Draft Criminal Procedural Code published in 2013 have faced this challenge with a different approach and an unequal outcome
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