If the defendant considers that the security forces arrested him without flagrante delicto during the trial of his “police detention” because the detention was not carried out in accordance with article 259 of the CCP, the defence lawyer may, within twelve hours of the actual detention, request the judge of the preliminary investigation to hold a hearing so that he can©obtain a reasoned resolution on the lawfulness of the accused`s detention. Finally, if, at the hearing, the judge finds that the fundamental rights of the person under investigation have been violated or that he has been unlawfully detained, he shall, without prejudice to the decision, transmit copies to the Control Department of the Public Prosecutor`s Office and to the Inspector of the National Police of Peru (Article 266(4), of the amended CDPF). However, if, within twelve hours of arrest, the Prosecutor does not request the “judicial detention order” because he considers that before 24 hours he will carry out all the investigative procedures necessary to establish the legal situation of the accused; A first answer would be: the judge will no longer have the power to decide on “the legality of the detention of the accused”, and even less on “the fulfillment of the rights of the accused”. However, by strictly applying Article 71(4) of the CCP, the defendant may apply to the judge in a precautionary manner if he©considers that during the pre-trial period his rights are not respected or that he is subject to measures restricting unreasonable rights. The rule of procedure allows the judge to conduct the “hearing for the determination of judicial detention of a maximum of seven days” only if the Prosecutor so requests within twelve hours, in which case the same judge must also©rule on respect for the rights set out in article 71, paragraph 2, of the CCP and on the lawfulness of the detention of the accused in accordance with Article 259 of the same CCP. In order for the judge to rule on the lawfulness of the detention of the accused in flagrante delicto, paragraph 1 of the new article 266 of the CCP prescribed the following: “The Prosecutor may request the judge of the preliminary investigation to issue the order of judicial detention for a maximum period of seven (7) days within twelve (12) hours of the effective arrest by the National Police, if, due to the circumstances of the case, there is some possibility of escaping or impeding the investigation of the truth. 1. If the effective cooperation process concerns facts that are the subject of criminal proceedings during the investigation, or even if there is no investigation, the agreement on benefits and cooperation, as well as the measures taken to that end to verify the respective legality, will be sent to the judge of the preparatory inquiry. With the new pleading, the pre-trial judge is required to make three statements at this new hearing. However, in this article, we will only discuss the investigation into the “lawfulness of the detention of the accused”. Justification submitted: 2.12.
In particular, the review of the legality of the agreement is expressed in three different levels: (a) the extent of the criminal typicity or classification in relation to the facts which are the subject of the case and the circumstances surrounding the offence. (b) the extent of the legality of the sanction and, where applicable, its compliance with the minimum and maximum parameters resulting from the type of law applied and the circumstances that modify the liability, the so-called “basic sanction”. ©The judgment on legality also makes it possible to respect the legally defined areas of civil reparation, stressing that at this extreme, the disposition of the civil object and the ancillary consequences take full precedence. (c) The requirement of sufficient indicative activity. This implies that the acts or procedures of the investigation conclude that there is a sufficient basis, a criminal probability of committing the implied acts and their connection with the accused, and that all the conditions of criminality and responsibility are met. 4. It is the responsibility of the Public Prosecutor`s Office to monitor compliance with the rules. Paragraph 3 of the new article 266 of the CCP provides as follows: “Once the oral proceedings have been initiated and the subject matter of the proceedings has been heard, the judge must rule by reasoned decision on the lawfulness of the detention of the accused in accordance with article 259, on respect for the rights referred to in article 71, paragraph 2, and, finally, on the need to impose judicial detention. taking into account the measures envisaged by the Public Prosecutor`s Office. Therefore, when the defendant asks the judge to rule on the lawfulness of police detention and flagrante delicto, the safeguards judge must verify whether the detention by the police complies with the substantive and adjective remarks (requirements) that distinguish between flagrante delicto and criminal offence set out in legal basis 8 of the Extraordinary Plenary Agreement No. 2-2016 / ICJ-116.
1.1.- The fourth investigation unit of the third provincial prosecutor for the criminal law of the companies of Cusco ordered the formalization and continuation of the preparatory investigation against Wilson Mercado Sarmiento for the alleged commission of the crime against life, body and health in the modality of injuries, subtype Serious injuries, in tort by Oscar Pacheco Ãlvarez. in ideal competition for the alleged commission of the offence against public security, in the mode of common danger, subtype of use of firearms, in tort liability of the company represented by the Public Prosecutor`s Office, provided for and sanctioned in paragraph 3) of the second paragraph, in accordance with paragraph 3) of the first paragraph of article 121 and article 279-F of the Penal Code respectively.
