Nulidades procesales por violaciones al debido proceso provocadas por parte de fiscalía que afectan los derechos de las víctimas

Abstract

In this research, a study has been developed on a criminal case developed for an alleged crime of sexual abuse. The process begins with a complaint filed by the mother of a girl, who affirmed that her 40-year-old neighbor had committed acts of a sexual nature to her daughter. The process is developed in all its stages, and it takes approximately 3 years to reach a trial hearing, where prior to hearing the opening arguments, the judges had to decide on a possible nullity, for violation of the right to defense. In fact, the nullity was declared, returning the process to the previous investigation phase, that is, it went back 3 years, to the moment in which the insurmountable defect occurred. Due process is instituted in Ecuador as a fundamental human right, so in the event that there is a violation of one of its rules, in a judicial process of any kind, this vice will be cause for nullity. In the case of study, although on the one hand, the victim of the sexual affectation sought and deserved justice to be done, on the other, the defendant has the right to be tried with all its guarantees; and, although the nullity repairs their rights and establishes a scope of guarantees as expected by the state, on the other hand, the victim has been left totally defenseless and helpless. One of the determining rules in due process is the right to defense, which cannot be unknown or violated in any state or degree of the process, on the contrary, one of the first duties of public officials and therefore of administrators of justice, is to ensure due process, the right to defense, and in general the rights of the parties. The right to defense begins, with the notification to the defendant, or investigated of the proceedings on which there is no reserve in the criminal process, and of course the formulation of charges, each and every one of the actions carried out by the prosecution or the accusation within the fiscal instruction and of course, this one of the preparatory hearing of judgment. It is undeniable that there cannot be a preventive detention order issued in a criminal proceeding, without the possibility of challenging it on the part of the defendant. In the case study, the defendant was deprived of his liberty for almost a year, due to the execution of a detention ticket ordered by the criminal judge, but without ever notifying the defendant of the beginning of the process, much less of the previous investigation. The judges, when declaring the nullity, complied with the constitution and human rights treaties, so that beyond the procedural expectations, it was recognized that there was an individual affectation to the accused, on whom the category of innocence was always maintained, a human right that it is also essential. Through this investigation, we have to clearly expose the scope of due process, as a guarantee of persons in conflict of the criminal law, and the way in which the process should be carried out, so that the victim was reached justice through a trial of the defendant.