The appeals appear as a manifestation of will of the parties that intervene in the criminal process, with which they question a judicial resolution that they consider aggravating, whose object is that the organ that dictated it or another different one reviews it and resolves it according to their pretension. It can be seen then that the appeal is a power of the parties, which reveals the operation of the dispositive principle. This power is also expressed in the possibility of waiver or withdrawal and in the prerogative to limit the competence of the reviewing body to the points in question[1].
But this recursive power finds express limitations, both from the objective and subjective point of view. In the first case, the challengeability is limited to judicial decisions. In addition, the principle of taxativity applies, i.e., only those resolutions are subject to appeal when the law expressly admits it. From the point of view of the subject, the principle of taxativity also applies, since the power to appeal corresponds to those who have been expressly granted it by law.
This being the case, the question arises as to what are the limitations on recourse for the aggrieved party with regard to the application of the accusatory principle? Indeed, although the sixth paragraph of Article 139 of the Constitution and Article 104 of the Code of Criminal Procedure provide that the civil plaintiff has the right to file the appeals provided by law, such as appealing a judgment of acquittal.
This has also been recognized in Cassation No. 353-2011-Arequipa, dated June 4, 2013, which in its legal basis 4.5, states that:
“(…) the aggrieved party of the crime is in a position to be a protagonist of the criminal proceeding, being empowered by the CPP to actively participate in the development of the process, being necessary that the aggrieved party acts with all the rights and guarantees that ensure the satisfaction of his claim (…) “;
It now remains to be established whether the civil plaintiff has standing to activate a criminal prosecution when the Public Prosecutor’s Office does not challenge an acquittal[2]. In this regard, Cassation Ruling No. 413-2014-Lambayeque dated April 7, 2015 of the Permanent Criminal Chamber of the Supreme Court has been emphatic in stating that:
“(…) it must be established whether there is legitimacy of the civil actor to activate a criminal prosecution when the Public Prosecutor’s Office does not challenge an acquittal sentence. In view of the above, it must be taken into consideration that once a judgment of acquittal has been issued and read in a public or private hearing (as the case may be). When the only plaintiff is the civil plaintiff, and the Provincial Prosecutor expresses his conformity with the same, it must be verified if the Superior Prosecutor, at the time of the appeal hearing, reiterates his conformity with the acquittal sentence”.
This being so, this Supreme Court considers that the Court of Appeals has no other choice but to confirm the acquittal, since paragraph 5 of the article; since paragraph 5 of article 1509 of the Constitution establishes that it is incumbent upon the Public Prosecutor’s Office to bring the criminal action (…)”.
Also, the Constitutional Court in Ruling 2005-2006-PHC/TC has categorically defined that:
a) That there can be no trial without an accusation, which must be formulated by a person outside the sentencing jurisdictional body, so that if neither the prosecutor nor any of the other possible parties formulate an accusation against the accused, the proceeding must necessarily be dismissed; b) That the accused cannot be convicted for acts other than those charged or for persons other than the accused; c) That the judge cannot be attributed powers of material direction of the proceeding that question his impartiality.
Gómez Colomer, Juan-Luis. El Proceso Penal en el estado de Derecho. Ten doctrinal studies. Lima, Palestra, 1999].
In this regard, it is pertinent to cite the Constitutional Court in Exp N°2005-2006-PHC/TC, which states that: “(…) the accusatory principle is directly related to the powers of the Public Prosecutor’s Office, recognized in Article 159 of the Constitution, among others, to initiate criminal action. Being the exclusive power of the Public Prosecutor’s Office to initiate the criminal action and to accuse, in the absence of this, the process must come to an end. Similarly, although it is not a case of a decision that there is no merit to accuse but rather that there is no merit to denounce, we can cite the ruling in the unconstitutionality case 0023-2003-AI/TC, in which this Court declared unconstitutional the provision of the then current Code of Military Justice, which admitted the possibility that if the prosecutors do not exercise the criminal action, the investigating Judge could open the process.
According to the aforementioned characteristic of the accusatory principle, the lack of accusation prevents any conviction, especially if the prosecutor had the option, instead of accusing, of requesting the extension of the investigation. In any case, when the prosecutor decides not to indict, and such resolution is ratified by the supreme prosecutor (in the case of ordinary proceedings) or by the superior prosecutor (in the case of summary proceedings), since the defendant has desisted from filing charges, the criminal proceeding must come to an end”.
Therefore, two important issues can be deduced with regard to the accusatory principle. The first is related to the limitation of the Civil Plaintiff’s recourse power to request a criminal sanction and the second is related to the limitation of the Appeals Chamber to rule against the conformity of the Public Prosecutor’s Office with respect to an acquittal.
Regarding the first issue, although the civil plaintiff exercises the claim for compensation in the criminal proceeding, acting with all the rights, faculties or obligations of a procedural subject, the civil plaintiff does not exercise any criminal claim, so his interest and action is limited to the civil reparation in order to prove his claim, even when he can provide evidence related to the determination of the criminal liability of the defendant when it is relevant to prove the criminal liability and therefore the civil liability of the defendant[3].
Thus, Art. 388.2 NCPP, allows the civil plaintiff’s attorney to clarify the criminal facts, but as long as they are relevant for the imputation of civil liability, it is forbidden to qualify the crime. And Art. 105 NCPP, although he is allowed to clarify the fact and the intervention of its author or participant – he is not allowed to ask for a sanction.
Regarding the second issue, the Court of Appeals is limited to review the criminal claim because the subject of criminal prosecution represented by the Public Prosecutor’s Office has withdrawn (case in which the Superior Prosecutor reiterates his conformity with the acquittal). This situation can be described as the right of the parties to withdraw their claims.
In this sense, the Appeals Chamber may not be substituted for the exercise of the criminal action due to the strict separation of the requesting and deciding functions. Thus, in accordance with the accusatory principle, it is determined that the birth of two aspects: the first is the guarantee of an impartial court dedicated solely and exclusively to the decisional task; the second, the birth of a prosecutorial entity as part of the process and, therefore, with an “interested character”.
This affirmation also stems from the principle nemo iudex sine actore ne procedat ex officio (accusatory principle), a Latin locution that determines the impossibility of a trial without an actor, much less that the judge can initiate it ex officio. From this perspective, the judge does not interfere in the formation of the factual material, since the investigation, properly speaking, is not part of the jurisdictional power; the judge does not take part in the preparatory investigation nor does he define the object of the process. The parties are the ones who initiate and delimit the object of the process; they alone introduce the facts, bear the burden – in an objective and material sense – of proving them and may/must request the use of the relevant evidence[4].
Finally, in practice, the opposite may occur. For example, the Provincial Prosecutor’s Office is the one who files the appeal and the Superior Prosecutor’s Office withdraws this claim because it is satisfied with the acquittal. In these cases, the Appeals Chamber will also be limited from ruling on the criminal prosecution.
This is due to what has already been stated above and to what is established in Article 11 of Legislative Decree No. 052, of the Organic Law of the Public Prosecutor’s Office, the holder of the criminal action is the representative of the Public Prosecutor’s Office; and Article 5 of the aforementioned Organic Law establishes the autonomy of the Public Prosecutor’s Office and precepts that they are hierarchically organized and must be subject to the instructions that their superiors may give them (as in the case of the conformity with the acquittal sentence by the superior prosecutor).
1] PAULA GORAD, “El sistema de recursos en el procedimiento penal” pp. 19-51. In Julio B.J.MAIER, Alberto BOVINO, Fernando DIAZ CANTÓN (Comps). Los recursos en el procedimiento penal. 2nd updated edition. Editores del Puerto.2006. p. 23.
2] Indeed, we must refer to the general part of the challenge in the CPP – Book Four, which in Article 404.2, provides the following: “The right of challenge corresponds only to those to whom the law expressly confers it. If the Law does not distinguish between the different procedural subjects, the right corresponds to any of them”; while Article 407.1 provides that the accused and the Public Prosecutor’s Office may challenge indistinctly the criminal or civil object of the resolution. This means that the right to appeal (subjective right to challenge) is governed by the principle of legality and only the law will determine to whom this right corresponds; if the law does not provide for a specific prohibition, this right will correspond to any of the parties involved in the proceedings.
3] ASENCIO MELLADO, José María. Civil action in criminal proceedings. Dictamen jurídico – el salvataje financiero. Ara Editores, Lima, 2010, pp. 26, 54; he points out that: “it would be absurd, then, when it is a matter of favoring procedural economy, for the civil plaintiff to have to prove the facts through different acts than those used for the criminal claim, especially when the same means of investigation and evidence are useful”.
4] Thus in SAN MARTIN CASTRO, Cesar E. “Acerca de la Función del Juez de la Investigación Preparatoria” p. 5.
