2. Structure of the criminal investigation.
3. Important criminalistics.
The previous trial and due process, public participation, the presumption of innocence, the affirmation of freedom, respect for human dignity, orality and advertising are just some of the principles established in the Code of Criminal Procedure in force in our country since the first of July 1999, and specifically those principles were those who were being violated by that date, with the existence in our country of the inquisitorial system and its Code of Criminal Procedure in force until the above date.
Were being violated because he was enshrined in the Constitution and had been ratified by the Republic in international treaties and conventions such as the Universal Declaration of Human Rights (1948), the American Declaration of the Rights and Duties of Hombrer (1948); Covenant International Covenant on Civil and Political Rights (1966), the American Convention on Human Rights. Pact of San Jos, Costa Rica (1967).
With the entry into force of the new Criminal Procedure Code, a new stage in which it seeks to rescue the lost confidence in the institutions responsible for the administration of justice, by the public, with whom these institutions are more than a duty moral obligation to protect, and resulted in the reversal of the formalities or methods of research and training records, product of offenses to determine individual criminal responsibility and that are supposed to be brought to trial and public.
The current adversarial system, and specifically the related phase criminal investigation and changes in the structure of it, its formalities, its characters, its lapses and requirements, are to be dealt with later and explain as simply but specifically as possible.
2. Structure of the criminal investigation.
The new model of criminal justice in Venezuela, in full force from the first of July 1999, radically changed the system of inquisitorial to adversarial passing hence the methods and procedures used to conduct the criminal investigation also changed, being one of the main rules or principles affirmation of freedom, not like before when the arrest was the rule and liberty the exception.
Now, in this new model of administration of justice in our country, which seeks to recover the confidence of the community in the methods and procedures, we get new schemes, new beginnings, new rules, by which the Public Prosecutor becomes the head of the prosecution, as established the principle of ownership of the prosecution, in Article 11 of the Criminal Procedure Code, and with the police agencies of criminal investigations law enforcement and conduct investigations , must be governed, on pain of being punished, as provided for in that Organization Code and the Bolivarian Constitution of Venezuela.
In this new scheme, we are going to get with the criminal investigation itself will be done during the preparatory phase, aimed as the word implies, is prepared by the research and collection of all elements necessary for conviction that the Public Prosecutor could establish his accusation, or serve to exculpate the accused. Excel is important that research should be directed primarily to satisfy what commands the Criminal Procedure Code in its Article 13, which is the beginning of the end of the process, which is none other than the pursuit of truth through legal channels, and establish whether or not guilty.
The police investigation related to the information obtained by the officers, about the criminal acts, the identification of the authors and other participants, must be recorded in minutes signed by the acting official, according to the provisions of Article 11 of the Police Act 109 of the Criminal Investigation and Criminal Procedure Code, to be used by the Public Prosecutor in the basics of your report.
Officials are obliged to inform the Public Prosecutor, each and every one of the steps taken, which must appear in the record, and report them in a period no longer than twelve hours, exactly as stated in Article 110 of the Criminal Procedure Code, in accordance with Article 111 of the Code, which speaks of the subordination of these officials, however, this subordination is from the functional point of view, not administrative, making it clear that the administrative authority can not revoke, alter or delay an order given by the Prosecutor’s Office to a police officer.
To accomplish its goals, the Public Prosecutor should order state in a record, all the facts and circumstances relating to the offense, relying on the scientific, technical and legal, with which it seeks to demonstrate the commission of the offense, the surrounding circumstances, the responsibility of each one of those involved in the incident, and the securing of material assets and liabilities pertaining to the case. This provision is included in Article 292 of the Criminal Procedure Code, in accordance with Article 309, ejusdem. With this order begins the criminal investigation itself.
This preparatory phase can be started in three ways, namely:
* From Occupation. (In which we criminis The Notitia, Flagrant offenses)
* Challenge to the Attorney General or organs of Criminal Investigation Police. Which may be made orally or in writing, by any person having knowledge of an offense, the requirements and formalities set out in Articles 294 and 295 of the Criminal Procedure Code, in accordance with Article 300, ejusdem, in cases of false allegations or in bad faith.
* By Complaint, 1a which must be made by the individual or company that has a victim and should do so in writing to the court of jurisdiction, in accordance with Articles 301 and 302 of the Criminal Procedure Code and with the formalities indicated Article 303, ejusdem.
To illustrate the way in which to carry out this investigation procedure, we assume an offense of many that occur every day in our country, a major and are more publicized by media is homicide.
We assume that the day of March 2, two thousand one, a call is received at the offices of the Homicide Division of the Technical Judicial Police, reporting a dead body with multiple gunshot wounds in his body inside an apartment in the city center. Thus the police have knowledge of the commission of an offense, so the investigation, ie the preparatory phase that was mentioned above, would begin automatically for News criminis, thus opening the investigation and notification is made to the Public Prosecutor.
Upon learning that he has committed an offense, the Public Prosecutor gives the order to start research and practice must order the necessary procedures. However, in practice and in most cases when the police is the one who knows the offense, the measures that are urgently needed have already been initiated, which is on par with the notice to the Public Prosecutor as provided by Article 293 of the Criminal Procedure Code. This is where the knowledge and experience of the criminal investigator, along with techniques and methods of Criminalistics, play a vital importance.
Once initiated the inquiry, the commission of the criminal police move to the site, in order to:
* Determine the nature of the event to see if this really is the commission of a homicide or not.
* Preserve the crime scene in order to avoid changes that could harm the investigation and assessment of the circumstances surrounding the same, which would result in errors in the interpretations of cause and effect, between the elements that make the tetrahedron of Criminology, ie, the victim, the perpetrator, the average commission and the site of the event.
* Perform with the help of technical experts and experts, the visual inspections as necessary.
* Perform with the help of technical experts and experts, the collection of evidence that may help identify the perpetrator and those that allow us to identify how the murder was committed, the modus operandi used, etc.
* Identify the alleged perpetrators of the act and its possible apprehension.
* Ensure the eyewitnesses or referential facts, and, to the victim, in order to fully identify and take their respective interviews.
Arriving commissions to place and execute the acts mentioned above, is aware that the murderer is an acquaintance of the victim, and there are witnesses to the events at which they obtain their address and Public Prosecutor, requesting the respective home visitation order Judge metropolitan control. Once the Order is practiced with the legal formalities, we found a firearm, in which the subject does not justify its legality suspect, the suspect is taken to the Police Office, which is subject to regulatory testing ATD, both his body and his clothes prior to this, and his rights were read to him, and called his trusted lawyer to assist him in his statement, if you want to render it at the time.
In this phase of research, known as the preparatory phase involved the Public Prosecutor as director of the process, the police agencies of criminal investigations and court control. It should be noted that once the research process, the steps to perform are the organs of police criminal investigation, always under the direction and supervision of the public prosecutor, as established in Articles 108, 309 and 318 of the Criminal Procedure Code, also parties to the process, ie, the accused, his counsel or trusted lawyer, the victim and his representative, may apply to the practice of some errands Public Prosecutor, that is, the public vengeance Attorney trying the case, who will perform to be necessary and useful to the investigation, otherwise, if considered unnecessary and irrelevant, the refuse left on record that situation.
It should be noted that the practice of proceedings by the Public Prosecutor and the police agencies of criminal investigations for the criminal investigation, and especially those related to the accused, must be performed in full compliance with the principles sets the Criminal Procedure Code, information can not be obtained, or proof or evidence of any kind, under torture, abuse, coercion, threat, deceit, invasion of the privacy of the home, correspondence, communication or any other means, to impair will or violates the fundamental rights of the people and not respect the dignity of human beings. This is based on the general provisions on the rules of evidence which speaks the Organic Code, supracitado, specifically in Articles 214 and 215, Legality free trial and test, respectively.
The steps to be performed in the course of the investigation have a set order, since they vary according to the offense in question and is finding out, among these we mention the steps that can be practiced by police bodies criminal investigations per se, without authorization from the court of jurisdiction, that is, without a warrant, and those to be carried out either by police officers, expert or experts, have as a sine qua non, as authorized by Judge respective control or risk being bypassed for violating due process.
Once the tests have been performed preliminary DTA being positive in your body and clothing, as well as the expertise practiced the firearm found in his residence, which shows that with that gun killed the victim, we proceed to formally arrested the accused leave, permission or notification of the Attorney General, continuing with the remains of steps required, among which may be listed as follows:
* Visual inspections at the site of the event or release sites.
* Inspection of people when an immediate check is required in order to collect forensic evidence of interest that serve to show the corpus delicti in the house of the accused.
* Testing bodily persons related to the case, as would be the victim, among these include: autopsy, radiography, fluoroscopy, hematology, bacteriology, semen, etc..
* Citations and interviews with people that are related to the homicide that is ascertained, and that can provide relevant information that contributes to the understanding of it.
* Technical expertise such as ballistics, fingerprint, special activations, physical, chemical, biological, etc..
* Interview the accused if he wants to, with due assistance of his counsel or attorney of confidence, prior knowledge of the Public Prosecutor.
* Practice appraisals, recognition of objects, weapons and tools that were used as a means of committing the murder.
* Practice planimetric surveys Event Site.
* Provide by the Public Prosecutor, the reserve total or partial procedural actions that make the record, which speaks of the Code of Criminal Procedure, Article 313, third apart.
* Raids in residences, commercial establishments or offices closed, exclusively, in cases provided for in Article 225, the Code, which states:
“Article 225. – Residence. When the registry should practice in a dwelling place of business, in close quarters, inhabited premises or shall require the written court order.
Exceptions to the provisions of the following cases:
When a crime is alleged to have been seen strangers as they plunged into the place and it is suspected that gross commit a crime;
In the case of the accused who is sought for his arrest;
To prevent the commission of an offense.
The decision by which the court orders the entry and search of a private home is always founded.
The reasons that led to the raid without warrant shall contain detail in the minutes. ”
Among the actions that are required to be practiced a court order, we have:
* The practice of raids or home visits, under articles 217 and 225 of the Criminal Procedure Code.
* The record of people places or things, when it comes to cases that do not require an immediate check relating to Articles 220 and 22 of the Code of Criminal Procedure.
* When it is necessary for the practice of exhumation autopsies, either because they are not made in due course or because it is presumed that on the body, was simulated.
* When required practice interception or recording of telephone conversations and other means of communication radio.
* Seizure of correspondence and other documents, securities and amounts of cash, money in bank accounts or safe deposit boxes, which are presumed perpetrator emanating from or addressed to him, and that may be relevant to the matter under investigation.
* Recognition of the individuals charged in conference with the victim or witnesses as recognizers, to identify him as the perpetrator of the offense.
* The practice of other awards such as voices, sounds, and that can be the subject of extrasensory perception.
* The extension of procedural reserve all or part of the proceedings of the case, as established in the Code of Criminal Procedure, Article 313, in its third apart.
In the present case would require diligence practice mentioned in paragraph 6, because as mentioned, there are witnesses to the murder for which it is required to perform the recognition of the individuals mentioned, equivalent to a test advance, which is set in the Code of Criminal Procedure, Article 316, the so-called advance evidence must request the Public Prosecutor, the Judge of control, so it can be evacuated and subsequently used in the phase trial.
Early tests are those surveys, inspections, expertise or statements, which by their nature and characteristics, are considered definitive and unique acts, that is, for some reason or obstacle difficult to overcome that presumption can not be made during the trial, which not all expertise, surveys, inspections or statements made before the public trial may be considered early testing. This test has the distinction that must be practiced by the court of jurisdiction in the case that the considered eligible, and if so, it must do so in the presence of the parties, which will raise the respective record.
This judicial review in this preparatory phase, is based on Article 291, the Code, which reads as follows:
“Article 291. Judicial Control. Assistant judges of this phase is for them to monitor compliance with the principles and guarantees established in this Code, in the Constitution, treaties, conventions or agreements signed by the Republic, and practice tests early , resolve exceptions, requests of the parties and granting authorizations. ”
As currently the process is shorter, under the celerity with evidence obtained against the accused, and the Public Prosecutor may request a preliminary hearing to request the judge to control judicial preventive detention the accused and continue serving collect evidence to support his accusation later.
Importantly bodies who are police criminal investigation, to which we have been referring to the effect, transcribe Article 107 of the Code of Criminal Procedure.
“Article 107. Bodies. Bodies are police criminal investigation officers to whom the law agreed that capacity, and any other official required to fulfill the functions of investigation established by this Code.”
Law to agree that character referred to in the preceding article, is the Law of Criminal Investigation Police, and Article 9, said:
“Article 9. Bodies are considered criminal investigations:
The Technical Judicial Police;
The bodies of the Armed Forces of Cooperation in the field of its competence;
Authorities Traffic Laws they indicate on their competence;
The Directorate of Immigration and National Identity, under the laws governing its jurisdiction;
The Directors and Deputy Directors of Judicial Internship, national prisons, penal and correctional institutions, in relation to offenses committed within the same;
Heads and Fiscal Officers Ward, in relation to offenses committed within their respective jurisdictions;
Forest guards with respect to offenses committed within their respective jurisdictions in areas under his guard;
Members of the public bodies engaged in rescue and fire fighting, in relation to the investigation of the causes of the accident;
Captains or Commanders of ships, or registration Venezuelan flag, regarding offenses committed on the high seas or in Venezuelan territorial waters;
The Captains and Commanders Venezuelan-registered aircraft, regarding offenses committed when they are in flight;
Officials or public employees in the exercise of the functions of investigation, examination or control them signan the
laws, verify or discover the commission of offenses. The actions of these officers or employees shall be limited to those that are inherent to the service provided;
Members of the Directorate of Intelligence and Prevention Services of the State, in terms of their competence;
Authorities State and Municipal Police, when required by the Public Prosecutor.
Now, while it is true that all police currently are investigating bodies in criminal matters, the fact remains that the main of these bodies or bodies of police, is the Technical Judicial Police, as it was previously being in effective the Criminal Procedure Code. This practice is still the case, ie the Technical Judicial Police is in charge of criminal investigations excellence, applying all the technical, scientific and legal, which it is for their end Criminology.
This institution is responsible for this function par excellence, because it is forty-three years of exercising these functions, and of course over the years has accumulated a wealth of experience in the area, effectively being recognized as capacity and efficiency one of the best in the world, on many occasions, coupled with this, always has been updating in knowledge, equipment and scientific and technical training of its staff, so it is best placed to continue to fulfill this task.
The police force, to achieve their ends which initially are recognition, identification, individualization and evaluation of physical evidence, with equipment such as:
* Scanning Electron Microscope.
* Transmission electron microscope.
* Optical microscopes.
* Polygraph. (Popularly known as a lie detector)
* Gas chromatograph for analysis of inorganic substances.
* Trace Analysis shot (DTA), X-ray physical technique for locating and analyzing waste solids concentration of the elements that comprise the powder, nitrate, nitrite, lead etc..
* The infrared spectrophotometer for microsamples organic and some inorganic.
* The spectrophotometer for ultraviolet and visible light.
* The special activations for fingerprints and traces on special media.
* The spectrograph voices and sounds.
* Sputter metallizing equipment.
* Spectrometer Energy Dispersive X-ray
* Trichology, for structural and biological studies of Appendices follicles.
* Tests for clothing nitrite.
* Analysis instrumental for studies of properties of the evidence as energy, electricity, and volume-mass ratio.
* Analysis of DNA for genetic identification (coming soon).
In the course of the criminal investigation, incidents can occur within the process, such as: competition issues, withdrawals, incidental issues, challenges and inhibitions, claims or third party with, measures to protect the victim, compensation agreements, special cases (better known as betrayal), principle of opportunity, admission of facts, etc. However, all these actions or incidents have to be known by the supervisory judge for the judicial district.
As for the duration that the criminal investigation should be mentioned that the Criminal Procedure Code, Article 321, states that the Public Prosecutor must seek to terminate the investigation with the diligence required by the case, ie , speaks to accelerate the proceedings that must have research and process in motion that should give the Public Prosecutor, and also where they have been more than six months after the individual is identified and the accused, it has the power to request the judge to control that is set a reasonable time in order to complete the investigation, by the deadline agreed by the supervisory judge, the prosecutor has to impeach or request dismissal for any of the grounds set in Article 325, the above mentioned code.
3. Important criminalistics.
The study of the structure of criminal investigation for Criminology, is justified because the growth of crime is increasing in all countries of the world, even if some are more noticeable than others, as with the countries Third World.
The structure of the criminal investigation has to be constantly updated and modified to suit the times, and that crime is always ahead of the police, using new technology to cause harm to the society in which they operate, this technology that was initially created for legal purposes, but is used by unscrupulous people for personal benefit and harm to others, do not know the new modus operandi, as long as individuals do not act, this is where the Criminalistica with techniques, methods and instruments , play a fundamental role in the criminal investigation.
It is so important to the structure of the criminal investigation, which due to their study and constantly updated, and with the help of criminalistics, mistake and ended the empiricism of the police investigation, reaching criminalistics consider along with the Judicial Police Scientific , the group of sciences research.
The criminal investigation by applying inductive and deductive methods from the outset on the site of the event, and supported in the methods, techniques and instruments provided criminalistics, can conduct preliminary studies and analysis on how the events that is, the modus operandi used, instruments used to reach the collection and delivery of forensic evidence of interest, which may lead to the identification of the authors.
The criminal investigation conducted in a methodical, technical and scientific, with Criminalistics their scientific disciplines, provides an important technical and scientific assistance to the court by the expert reports, surveys, inspections judicial reconstructions of events, etc., that contribute to to achieve a successful, healthy and speedy administration of justice.
The criminal investigation is part of criminology that deals with the methods and practical ways to clarify the circumstances of the commission of crimes and identify the guilty, is the set of procedures applicable to research and study of crime to get to the test.
It is so important to the criminal investigation, that when you receive a complaint, indictment or complaint, depending on the nature of the offense, the procedure begins with the application of criminal procedural law and the end is to be applied to criminal law, is technical research, legal and police crime.
It involves all elements of the approach, contact, discovery of personality that match a particular meaning: The art of research linked to science, to apply knowledge, experience and existing scientific methods to discover and demonstrate reliably a certain reality, requires technical work for crime investigation and clarify the facts alleged criminal, with input from testing.
Therefore, this criminal investigation must be conducted by a Judicial Police Science and not by any body, a body that meets CSU scientific procedures applied to the examination of physical evidence of the crime in order to provide evidence to clarify the historical truth and to impute to a particular person.
The Judicial Police Science, has very subtle ways that allow us to provide objective evidence of unquestionable value for test administration, too, has principles and foundations that are technically applied for the following purposes:
* Investigation of crimes.
* Identify and identify the perpetrator or perpetrators of this criminal act.
* Determine and record the circumstances of manner, time and place of the offense.
* Provide the evidence used to establish the charge by the Public Prosecutor, without prejudice to the defense and the rights of the accused.