Libro Segundo Título I. Preparación de la acción pública

The exercise of the criminal action shall not be suspended, interrupted or caused to cease, except in the cases expressly provided for by law.

When the law makes criminal prosecution conditional upon a private request, a complaint or state authorization, the Public Prosecutor's Office shall exercise it once it has been produced, without prejudice to performing or requesting urgent acts that interrupt the commission of the punishable act or preserve elements of evidence that would be lost due to delay. The interest protected by the requirement of the request, the complaint or the authorization shall not be affected.

In cases where the law permits the application of the opportunity criterion to refrain from exercising the criminal action, the Public Prosecutor's Office may request the corresponding decision from the competent judge. The application of an opportunity criterion shall only be possible before the commencement of the trial.

If the application of the opportunity criterion does not entail the lapse of public criminal prosecution, the Public Prosecutor's Office may resume it when it deems it appropriate.

The competent judge may require the opinion of the Public Prosecutor's Office on the advisability of applying any opportunity criterion.

When the law permits conditional suspension of criminal prosecution, the abbreviated procedure shall apply, with the following modifications:

1)After the accused person has been heard, the judge shall decide immediately on the suspension of the procedure and, if granting it, shall specify concretely the instructions and impositions to be complied with.

2)Otherwise, the judge shall order the procedure to continue, by the corresponding route.

The decision pursuant to subsection 1) shall be notified immediately to the accused person, always in his presence and by the judge, with express warning regarding the instructions and impositions and the consequences of their non-observance.

The first-instance judge shall request the Execution judge to provide control over observance of the impositions and instructions and to communicate to him any non-compliance, in accordance with the regulations issued by the Supreme Court of Justice.

In the event of non-compliance with the impositions or instructions, the first-instance judge shall give a hearing to the Public Prosecutor's Office and to the accused person, and shall decide, by reasoned order, on the resumption of the criminal prosecution. The decision may be preceded by a summary investigation and is unappealable.

As soon as the Public Prosecutor's Office becomes aware of a punishable act, by complaint or by any other reliable means, it must prevent it from producing further consequences and promote its investigation in order to request the trial of the accused person. The exercise of the powers provided for in the three preceding articles shall not exempt it from the investigation to secure the indispensable elements of evidence concerning the punishable act and its participants.

It is the obligation of the Public Prosecutor's Office to extend the investigation not only to the incriminating circumstances, but also to those that serve for exculpation, taking care to urgently procure the elements of evidence whose loss is feared. If it deems necessary the performance of an act in accordance with the provisions for definitive and irreproducible acts, it shall request it immediately from the competent judge or, in case of urgency, from the nearest one. The Public Prosecutor's Office must also seek the prompt completion of the accused person's scheduled appearances to clarify the fact and their situation.

Non-compliance or unjustified delay in the investigation shall be considered a serious offense and shall render the public official liable for the sanctions provided by law.

If the criminal prosecution depends exclusively on the adjudication of a prejudicial question which, according to the law, must be resolved in independent proceedings, the latter shall be initiated and pursued by the Public Prosecutor's Office, with summons to all interested parties, provided that the law governing the question so permits.

When the Public Prosecutor's Office is not authorized to pursue the prejudicial question, it shall notify the authorized person of its existence and shall, in turn, require from such person information regarding the initiation of the proceedings and its progress.

The existence of a prejudicial question may be raised before the tribunal by any of the parties, by reasoned writing and orally in the debate. During the preparatory procedure in charge of the Public Prosecutor's Office it shall be brought before the judge who controls the investigation.

The tribunal shall process the prejudicial question in the form of an incident, and if it accepts its existence, it shall suspend the procedure until it is resolved by the competent judge, without prejudice to urgent investigative acts that admit no delay. Where the accused person is detained, his liberty shall be ordered. If the tribunal rejects the question, it shall order the procedure to continue.

When the viability of the criminal prosecution depends on a prior procedure, the competent tribunal, on its own initiative or at the request of the Public Prosecutor's Office, shall request the antejuicio from the corresponding authority, with a report of the reasons justifying the request and the original proceedings. In all other respects it shall be governed by the Constitution of the Republic and special laws.

No acts implying a criminal prosecution may be carried out against the holder of the privilege and only those investigative acts whose loss is to be feared and those indispensable to support the petition shall be performed. Once the essential investigation is completed, the pieces of evidence shall be archived, unless the procedure continues with respect to other accused persons who do not hold the privilege.

This provision shall apply when the consent of a foreign government is required.

The parties may oppose the progress of the criminal prosecution or of the civil action, on the following grounds:

1)Lack of competence.

2)Lack of action; and

3)Extinction of the criminal prosecution or of the civil claim.

The defenses shall be raised before the first-instance judge, or before the competent tribunal, according to the opportunities provided for in the procedure.

The judge or the tribunal may assume on its own initiative the resolution of any of the foregoing matters, when necessary to decide, on the opportunities provided for by law and provided that the matter, by its nature, does not require the request of the person entitled to raise it.

The filing of defenses shall be processed in the form of an incident, without interrupting the investigation.

Defenses not filed during the preparatory procedure may be raised in the intermediate procedure.

The question of incompetence shall be resolved before any other. If the multiple simultaneous criminal prosecution is recognized, it shall be decided which is the sole competent tribunal.

If lack of action is declared, the records shall be archived, unless the prosecution may continue through another of those intervening, in which case the decision shall only remove from the procedure the one whom it affects. Lack of sufficient power and formal defects of an act of constitution may be remedied until the provided opportunity.

In cases of extinction of criminal liability or of the civil claim, dismissal of proceedings shall be ordered or the claim shall be rejected, as applicable.

Any person shall communicate, in writing or orally, to the police, the Public Prosecutor's Office or a tribunal any knowledge they may have regarding the commission of a crime of public action.

The complainant shall be identified.

Likewise, the request, complaint or authorization shall be received in the cases of crimes that so require.

They must report, without any delay, the knowledge they have concerning a crime subject to public prosecution, with the exception of those requiring a request, complaint or authorization for their prosecution:

1)Public officials and public employees who learn of the act in the exercise of their functions, except where the duty to keep secrecy weighs upon them.

2)Those who practice the healing arts and learn of the act in the exercise of their profession or occupation, when dealing with crimes against the life or bodily integrity of persons, with the exception specified in the preceding subsection; and

3)Those who, by provision of law, of the authority or by a juridical act, have in their charge the management, administration, care or control of property or interest of an institution, entity or person, with respect to crimes committed to its detriment, or to the detriment of the estate or patrimony placed under their charge or control, provided they learn of the act by reason of the exercise of their functions.

In all these cases the complaint shall not be mandatory if it would reasonably risk their own criminal prosecution, that of their spouse, or of ascendants, descendants or siblings, or of their de facto cohabitant.

The complaint shall contain, to the extent possible, a detailed account of the fact, indicating the participants, aggrieved persons and witnesses, elements of evidence and known antecedents or consequences.

The complainant shall not subsequently intervene in the procedure, nor incur any liability with respect thereto, without prejudice to any liability that may correspond for false complaint.

The complaint may contain, where applicable, the request for the State to assume on their behalf the exercise of the civil action arising from the punishable act, which shall be exercised by the Public Prosecutor's Office.

The private criminal complaint shall be filed in writing, before the judge who controls the investigation, and shall contain:

1)Names and surnames of the private complainant and, where applicable, those of the person represented.

2)Their residence.

3)The citation of the document with which they prove their identity.

4)In the case of collective entities, the document establishing standing to act.

5)The place indicated to receive summonses and notifications.

6)A detailed account of the fact, indicating the participants, victims and witnesses.

7)Elements of evidence and known background or consequences; and

8)The documentary evidence in their possession or indication of the place where it is located.

If any of these requirements is missing, the judge, without prejudice to giving it immediate processing, shall set a time limit for compliance. Once said time limit has expired, if the missing requirement is indispensable, the judge shall archive the case until there is compliance with what was ordered, unless it involves a public crime, in which case the judge shall proceed as with the complaint.

When the complaint or the private criminal complaint is filed before a judge, the judge shall immediately remit it, with the accompanying documentation, to the Public Prosecutor's Office to proceed to the immediate investigation.

Police officials and agents who learn of a punishable act prosecutable on its own initiative shall immediately report in detail to the Public Prosecutor's Office and shall carry out a preliminary investigation, in order to urgently gather or secure the evidentiary elements and to prevent the flight or concealment of the suspects. Peace judges shall have the same function in places where there are no public officials of the Public Prosecutor's Office or police agents.

Police prevention shall observe, in order to document its acts, insofar as possible, the rules provided for the preparatory procedure in charge of the Public Prosecutor's Office. It shall suffice to enter in a single record, with the greatest possible accuracy, the measures carried out, stating the day on which they were performed, and any circumstance useful for the investigation. The information received shall be noted in the record, which shall be signed by the officer directing the investigation and, insofar as possible, by the persons who have intervened in the acts or provided information.

When the performance of a jurisdictional act is urgent, the police officer in charge of the investigation shall inform the Public Prosecutor's Office, which shall request it from the judge of first instance or the peace judge; in cases of extreme urgency, the police may request the act directly from the judge, with immediate notice to the Public Prosecutor's Office.

Copies and photocopies of the proceedings shall be forwarded to the Public Prosecutor's Office within a time limit of three days, without prejudice to what is provided for the case of apprehension of persons.

The original of the proceedings and the seized items, unless the Public Prosecutor's Office requires them for specific and temporary procedural steps, shall always remain in the Trial Court.

The judges of first instance and, where there are none, those of the peace, shall support the investigation activities of the police and the prosecutors of the Public Prosecutor's Office when they so request, issuing, where there is cause therefor, the authorizations for the proceedings and coercive or precautionary measures that are appropriate in accordance with the law. The judges shall decide immediately and in a reasoned manner the requests submitted to them.

For the foregoing purpose, the judges may be present at the carrying out of these proceedings if so requested by the Public Prosecutor's Office and, at its request, issue the decisions that according to the circumstances are appropriate to guarantee the purposes of the criminal proceedings.

During the preparatory stage the prosecutors shall orally substantiate before the judge the request for authorization, explaining to the judge the indicia on which it is based. In the same act, at the request of the judge they shall show the register of the investigation proceedings.

When the proceeding has been requested by the police because there is no prosecutor's office in the place, it shall inform the Public Prosecutor's Office thereof within a maximum time limit of twenty-four hours. Once the person has been placed at the disposal of the judge, the judge shall likewise inform the Public Prosecutor's Office thereof within the same time limit.

In the investigation of the truth, the Public Prosecutor's Office shall carry out all pertinent and useful proceedings to determine the existence of the fact, with all circumstances of importance for criminal law. Likewise, it shall establish who the participants are, seeking their identification and knowledge of the personal circumstances that serve to assess their liability or influence their punishability. It shall also verify the harm caused by the crime, even when the civil action has not been exercised.

The Public Prosecutor's Office shall act at this stage through its district prosecutors, section prosecutors, prosecutorial agents and assistant prosecutors of any category provided for by law, who may attend without any limitation the jurisdictional acts related to the investigation under their charge as well as proceedings of any nature tending to the ascertainment of the truth, all authorities or public employees being obligated to facilitate the performance of their functions.

When the fact stated in the complaint, private criminal complaint or police report does not constitute a crime or proceedings cannot be initiated, the prosecutor shall dismiss it within the twenty days following its filing, communicating the decision to the complainant and to the victim or aggrieved party, who shall have the opportunity, within the following ten days, to object to it before the competent judge, which shall be done in an oral hearing in the presence of the prosecutor. If the judge considers that the criminal prosecution must continue, the judge shall order the Public Prosecutor's Office to conduct it, ordering the assignment of a prosecutor different from the one who denied the criminal prosecution.

In cases in which the victim has not been individualized, or when serious crimes are involved, the prosecutor shall require judicial authorization to dismiss.

The dismissal shall not prevent reopening the procedure when new circumstances so require, nor shall it exempt the Public Prosecutor's Office from the duty to perform the acts of investigation that admit no delay.

The decision ordering the archiving may not be modified while the known circumstances on which it is based have not changed or the obstacle preventing prosecution remains, without prejudice to the opportunity powers granted to the Public Prosecutor's Office under this Code.

The judge, when ordering the archiving, shall remit the proceedings again to the Public Prosecutor's Office.

If the Public Prosecutor's Office deems that the trial of the act corresponds to another tribunal, it shall request the first instance judge to declare it so. The decision shall cause the referral of the proceedings to the tribunal deemed competent or their return to the Public Prosecutor's Office, as applicable.

The request for lack of competence shall not exempt the Public Prosecutor's Office from the duty to carry out the acts of investigation that admit no delay.

Proceedings carried out in continuous form shall be contained in a single record, with a statement of the day on which they are performed, and the identification of the persons who provide information.

The fundamental result of the acts performed shall be summarized and, with the greatest possible accuracy, the circumstances useful for the investigation shall be described.

The summary shall be signed by the public official of the Public Prosecutor's Office who carries out the procedure, the secretary and, where possible, by those who have participated in the acts.

All acts of the investigation shall be kept confidential from outsiders.

The proceedings may be examined only by the accused person, the other persons whose intervention in the procedure has been admitted, defense counsel and agents under a mandate. However, those who have knowledge of the procedural acts carried out during the investigation shall be bound to maintain confidentiality. Without prejudice to any corresponding criminal liability, breach of this obligation shall be considered a serious offense and may be sanctioned in accordance with the Law of the Judicial Branch and regulatory provisions.

The Public Prosecutor's Office may order the reasonably necessary measures to protect and isolate indications in the places where a crime is being investigated, in order to prevent contamination or destruction of traces, evidence and other material elements.

However, whenever publicity hinders the discovery of the truth and if no order of prosecution has been issued, the Public Prosecutor's Office may order, for a specific procedural step, total or partial confidentiality of the proceedings for a time limit not to exceed ten consecutive days. The time limit may be extended for up to an equal period, but, in such case, the interested persons may request the judge to terminate the confidentiality.

Notwithstanding the expiry of the established time limits, where the effectiveness of a particular act depends on partial confidentiality of the proceedings, the Public Prosecutor's Office may order it, specifying the acts to which it refers and with the limitation provided in the preceding paragraph, for the time absolutely indispensable to carry out the ordered act.

Attorneys who invoke a legitimate interest shall be informed by the Public Prosecutor's Office about the fact under investigation and about any accused persons or detainees there may be. They shall also be subject to the obligation to maintain confidentiality.

The accused person, the persons who have been granted intervention in the procedure, their defense lawyers and the agents under a mandate may propose means of investigation at any time during the preparatory procedure. The Public Prosecutor's Office shall carry them out if it considers them pertinent and useful, having to place on record its contrary opinion, for the purposes that may subsequently correspond. In case of refusal, the interested person may resort to the respective peace judge or first-instance judge, for assessment of the necessity of conducting the proposed means of investigation.

The Public Prosecutor's Office shall permit the attendance of the accused person, of the other interested persons, of their defenders or agents under a mandate at the acts carried out, without prior summons.

Those in attendance shall not take the floor without the express authorization of the person presiding over the act.

Those who attend or participate in an investigative diligence act shall maintain seriousness, composure and in no way disturb, obstruct or impede the diligence with signs of approval or disapproval, and may be excluded or compelled to withdraw if they do not behave as appropriate, without prejudice to the sanctions that may apply. They may request that the observations they deem pertinent regarding the conduct of those present, including regarding the irregularities and defects of the act, be entered in the record.

When it is necessary to conduct a recognition, reconstruction, expert examination or inspection that by its nature and characteristics must be considered as definitive acts that cannot be reproduced, or when a source of evidence must testify that, due to an obstacle difficult to overcome, is presumed to be unable to do so during the trial, the Public Prosecutor's Office or any of the parties shall request the judge controlling the investigation to conduct it.

The judge shall conduct the act, if he considers it formally admissible, summoning all the parties, the defense counsel or agents under a mandate, who shall have the right to attend with the powers provided with respect to their intervention in the trial. The accused person who is detained shall be represented by his defense counsel, unless he requests to intervene personally.

If, by the nature of the act, advance summons gives rise to fear of the loss of elements of evidence, the judge shall conduct the summoning of the parties in a manner to avoid this danger, seeking not to affect the powers attributed to them.

In no case shall the judge allow this means to be used for the formation of a summary investigation file that distorts the accusatory proceedings.

When there is fear for the life and/or physical integrity of the witness, his testimonial statement shall be taken as advance evidence by videoconference or other electronic means, with the presence of the defense counsel attorney designated by the accused person and, in his absence, by the one designated by the Criminal Public Defense; and in case there is no accused person, an ex officio public defense counsel shall likewise be made to appear, to guarantee the legality of the testimonial statement in this form; likewise, the case prosecutor and the adhesive complainant, if any, shall appear in such anticipated evidentiary act, and said act shall be personally presided over by the judge of the proceedings.

In this case, what is required by articles 218 BIS and 218 TER of this Code shall be observed.

When it is unknown who is to be the accused person or when any of the acts provided for in the preceding article is of extreme urgency, the Public Prosecutor's Office may verbally request the intervention of the judge and the latter shall perform the act dispensing with the summonses provided for in the preceding article, appointing a court-appointed defense counsel to oversee the act.

Where there is imminent danger of loss of evidentiary material, the judge may perform, even on its own initiative, the urgent investigative acts that admit of no delay. Once the act is concluded, the judge shall remit the proceedings to the Public Prosecutor's Office. The record shall contain a detailed account of the reasons that determined the decision.

In acts involving the advance taking of testimonial evidence that are of extreme urgency, when the case warrants and justifies it, the statement of the witness shall be received by videoconference or other electronic means with the presence of the court-appointed defense counsel.

In this case, what is provided in Articles 218 BIS and 218 TER of this Code shall be observed.

The Public Prosecutor's Office may require information from any public official or public employee, summoning them in accordance with the circumstances of the case, and carry out on its own or cause to be carried out by public officials and police agents any kind of proceedings. The public officials and police agents and the auxiliaries of the Public Prosecutor's Office shall be obligated to satisfy the requirement or commission.

To request information from individual or legal persons, the Public Prosecutor's Office shall request authorization from a competent judge.

The Public Prosecutor's Office may prevent a person from disturbing the performance of a specific act and, even, keep such person under custody until its completion. The respective record shall state the measure and the reasons that determined it, indicating the date and time of its commencement and cessation.

Immediately upon issuance of the order of imprisonment or a substitute measure, the judge who controls the investigation, *based on the request of the prosecutor, shall issue a prosecution order against the person to whom it refers.

A prosecution order may only be issued after the person against whom it is issued has been questioned. It may be amended on its own initiative or at the request of a party only in the preparatory phase, before the accusation, guaranteeing the right to a hearing.

The order of prosecution shall contain:

1)The full given names and surnames of the accused person, their usual name where applicable, or any other information that serves to identify them.

2)A succinct statement of the fact or facts regarding which the examination of the accused was received.

3)The legal classification of the crime, the citation of the applicable provisions; and

4)The grounds for the decision and the operative part.

The effects of the order of prosecution are:

1)To bind to the proceedings the person against whom it is issued.

2)To grant to such person all the rights and remedies that this Code establishes for the accused person.

3)To subject such person, likewise, to the obligations and warnings arising from the proceedings, including precautionary attachment of property; and

4)To subject the civilly liable person to the outcome of the procedure.

The preparatory procedure shall conclude as soon as possible, proceeding with the expeditiousness that the case warrants, and shall be conducted within a time limit of three months.

In special cases, the tribunal may extend the investigation for one month. If the Public Prosecutor's Office fails to present its request within the indicated time limits, the prosecutor in charge of the matter shall be admonished in writing by the judge who controls the investigation, who shall set a time limit of eight days for him to do so.

When the Public Prosecutor's Office deems that the investigation provides a serious basis for the public prosecution of the accused person, it shall request in writing to the judge the decision to open the trial. With the opening, the accusation shall be formulated.

Three months after the order of preventive detention has been issued, if the Public Prosecutor's Office has not filed a request for conclusion of the preparatory procedure, the judge, under his liability, shall issue a decision granting it a maximum time limit of three days to formulate the request that in its judgment is appropriate.

If the assigned prosecutor fails to file any petition, the judge shall notify the Prosecutor General of the Republic or the corresponding district or section prosecutor so that he takes the corresponding disciplinary measures and orders the formulation of the appropriate petition. The judge shall also mandatorily notify the Council of the Public Prosecutor's Office for such action as may be appropriate in accordance with the law.

If within the maximum time limit of eight days the prosecutor still has not filed any petition, the judge shall order the provisional closure of the procedure with the consequences provided by law until the Public Prosecutor's Office reactivates it through the procedures established in this Code.

In the event that a substitute measure has been ordered, the maximum time limit of the preparatory procedure shall last six months from the prosecution order.

As long as there is no procedural linkage through preventive detention or substitute measures, the investigation shall not be subject to these time limits.

If the Public Prosecutor's Office considers that there is no basis to pursue the public trial of the accused person, it shall request the dismissal of proceedings or the provisional closure.

Together with the request, it shall remit to the tribunal the case records and the material means of evidence in its possession.

Having examined the record, if the judge rejects the dismissal of proceedings or the closure of the procedure requested by the Public Prosecutor's Office, the judge shall order that the accusation be filed.

The decision shall oblige the Public Prosecutor's Office to file the accusation.

When the accused person has not been individualized or when their default has been declared, the Public Prosecutor's Office shall order, in writing, the archiving of the proceedings, without prejudice to the continuation of the procedure for the other accused persons.

In this case, it shall notify the disposition to the other parties, who may object to it before the judge who controls the investigation, indicating the practicable means of evidence or individualizing the accused person. The judge may revoke the decision, indicating the useful means of evidence to continue the investigation or to individualize the accused person.

The dismissal of proceedings shall contain:

1)The identification of the accused person.

2)The description of the act attributed.

3)The grounds; and

4)The operative part, with citation of the applicable criminal provisions.

A final dismissal of proceedings irrevocably closes the proceedings with respect to the accused person in whose favor it is issued, bars further criminal prosecution of such person for the same act and terminates all coercive measures ordered by reason thereof. While it is not final, the tribunal may provisionally order the liberty of the accused person or terminate the substitute measures that may have been imposed upon such person.

In cases in which crimes against the tax legal order are prosecuted, dismissal of proceedings shall not be granted, even if total payment of the tax obligation and interest occurs, where the proceedings refer to:

1.Appropriation of resources collected in the application of the Value Added Tax.

2.Appropriation of withholdings made in the application of the Income Tax.

3.In the crimes against the tax legal order referred to in Articles 358 “A”, 358 “B”, 358 “C” and 358 “D” and the crimes of Customs Fraud and Customs Smuggling.

If ordering a dismissal of proceedings is not appropriate and the elements of evidence are insufficient to request the opening of the trial, closure of the procedure shall be ordered, by reasoned order, which shall specifically mention the elements of evidence expected to be able to be incorporated. All coercive measures shall cease for the accused person in respect of whom closure is ordered.

When new elements of evidence make viable the resumption of the criminal prosecution to reach the opening of the trial or the dismissal of proceedings, the tribunal, at the request of the Public Prosecutor's Office or of another of the parties, shall permit the resumption of the investigation.