Sistema Regional de Información
en línea para Revistas Científicas de América Latina,
el Caribe, España y Portugal

In Chilean law, various measures have been introduced to discourage profit-driven crime. Among these, particular relevance is given to confiscation, especially non-conviction-based variant, which was incorporated into the legal system through Law 21.577, that strengthens the prosecution of organized crime while reinforcing the confiscation mechanism. In this article, a dogmatic study of this measure is conducted, with a focus on its legal nature. It is concluded that the measure constitutes a sui generis mechanism, accessory to the existence of a crime, where elements of criminal, procedural, and civil law must be considered. As a result, it is established as a pivotal tool in combating organized and economic crime.

This article analyzes the 2024 case law of the Superior Court of Justice (STJ) regarding home searches in cases of in flagrante delicto, with an emphasis on the constitutional protection of the home and the exceptional circumstances that justify its violation. The following central question is asked: what criteria were used by the STJ to validate or invalidate forced entry into homes without a court order, in cases of flagrant crime, in the year 2024? A total of 415 rulings from the 5th and 6th Panels of the STJ were examined, identifying criteria that justify or invalidate forced entry. The results reveal divergences between the panels, particularly regarding home searches as an extension of personal searches and in contexts involving suspect evasion. The study also highlights the predominant role of the Military Police in conducting searches, raising questions about the scope of its investigative powers. Finally, it critiques the relaxation of evidentiary standards and suggests criteria for more effective protection of home inviolability.

The criminal trial is a perfect logical deduction.  Preliminarily the criminal process clarifies the facts through corroboration and criminal redundancy of the PM that only after such logical operations will be able to opt or not for a request for referral to trial; Then in a contradictory way the PM has the burden of proof to pass the reasonable doubt test. On the other hand, the cardinal principle that guides the criminal process is the indication of innocence; there is no talk of presumption otherwise all men should be abstractly charged for any fact provided by law as a crime, But this would not be compatible with the concretisation in the indictment, in the incrimination of the principle of substantive and formal criminal legality. The mathematical translation of the B.a.r.d. is 99% (+1%,): that 1% is the possibility to appeal to the review institute for criminal sentences with final sentence. In the civil and administrative field, on the other hand, it is evaluated by a possibilistic criterion, the crucial probability whose mathematical translation is 50%+1. The following contribution aims to highlight the development of reasonable doubt in the light of the main judgments of the negotiation State-mafia to derive the new epistemological canons of the rule beyond any reasonable doubt.

Facing non-prosecutable offences, procedural systems have often developed theories that can allow a statement of guilt, even though the outcome of the trial must always be an acquittal. The acquittal for normative rather than factual reasons provokes specific reactions in legal systems: make sure that the charge can lead to negative consequences for the defendant, even though it did not follow through. In Italian theory and elsewhere, the “substantive” ascertainment of the crime (lacking the form of a conviction) contained in the acquittal is frequently important and responsible of several negative effects for the acquitted. In different cases, the crime is affirmed as a hypothesis and then declared extinct. These conceptual patterns are rethought here and tested to understand if they can be consistent with the presumption of innocence.

Identifying a judgment of content and object of merit in the pre-trial phase of 1930, derives (was) from the fact that the extinction provision was attributed (was) the nature of a substantial decision in hypothesis; this, also with respect to art. 469 c.p.p. 1988. There were different orientations on the subject. A part of the doctrine, for example, maintained that the declaration of extinction constituted a decision of merit since it presumed the finding of the absence of any causes for acquittal pursuant to art. 152, paragraph 2, c.p.p. 1930, both in fact and in law. The theory established an indisputable symmetry between knowledge and punitive duty. The provision examined, for this reason, not providing for the obligation to punish, presupposed - even if hypothetically - that the crime committed to which the extinction criminal relevance refers was identified. This orientation was believed to be supported by the comparison of this pronouncement with the resolutions of inadmissibility and non-prosecutability of the action. It was argued on the point that, while the latter sanctioned the inexistence of a valid process and, therefore, the lack of a punitive duty of the judge, the former, by eliminating this same obligation, presupposed (presupposed) its existence, and, that is, the logical reference to a crime committed. In other words, it was stated that the declaration of extinction was based on a hypothetical existence of the crime and therefore of the punishability by the judge. Conversely, in compliance with a shared doctrine, it will be demonstrated that the extinction decision is connected (was) - also in the 1988 code - to the exercise of a power of persuasion on the facts, not only to a merely hypothetical evaluation.

The present contribution introduces a dossier regarding the relationship between crime extinction, acquittal, and aims of the criminal trial. This paper points out the usefulness of comparative-law method to deal with such complex topic, which it analyses from the viewpoint of the implications of extinctive phenomena on the core values of adjudication procedures. Starting with examining the different ways in which the time factor conditions the qualification of extinctive phenomena according to the approach of each legal system, this study focuses on the evidentiary problems and the dynamics of decision-making, produced by the intervention of such phenomena, which highlight the tension field between procedural efficiency and the protection of freedom and the defendant’s innocence.

The aim of this study is to examine the relationship between criminal investigation and the presumption of innocence in the Italian legal system, with particular attention to the effects of the statute of limitations. Situated at the crossroads of substantive and procedural law, this one has been the subject of numerous reformative interventions, the most recent of which, in 2022, introduced article 344-bis of CCP. This provision provides for the dismissal of the case if certain time limits are exceeded in the appeal proceedings. This new mechanism, which adds a form of procedural feature to the substantive statute of limitations, calls for in-depth analysis on its implications for the defendant’s right to be presumed innocent until a final conviction is pronounced. In particular, it is necessary to understand whether and to what extent the replacement of the substantive statute of limitations by a purely procedural instrument, justified by the objective of ensuring a reasonable duration of the trial, may adversely affect the fundamental guarantees of the accused.

The aim of this paper is to examine the initial hearing on the criminal case, as an essential and determining act to establish the facts that will underpin the accusation and all the subsequent stages of the procedure. Likewise, it is introduced the concept of "reformalización" [requalify the case presented at the initial hearing on the criminal case], legal institution recently created by Code of Criminal Procedure amendment, whereby the Chilean District Attorney modifies, complements, or clarifies the initial charges presented at the Initial hearing on the criminal case. This practice, which did not have legal recognition, was validated by the Chilean District Attorney for many years, and national jurisprudence was ambivalent in its acceptance. Even though it raises questions regardless its conformity with the right to be informed, the congruence principle and the principle of legality, all of which translate into a direct affectation of the defendant's right to an effective defense, by compromising his fundamental procedural guarantees. Notwithstanding the above, the research demonstrates that the affectation of rights may also affect the plaintiff.

: Il tempo è un fattore che riflette un aspetto della realtà che, come ogni altro, deve trovare collocazione nella struttura articolata del gesamter Rechtszu­stand. L’istituto della «prescrizione del reato» è quell’elemento della fattispecie complessa che cattura una parte dell’immagine del tempo dell’offesa, poiché assegna rilevanza giuridica al semplice decorso temporale post factum con effetti estintivi del disvalore che si proietta oltre la soglia di lesività del tipo criminoso. Il tempo ha valore nella realtà, così non può essere giuridicamente ignorato e la scelta normativa è quella di attribuirgli la capacità di estinguere l’offesa al bene giuridico, secondo termini predeterminati e commisurati in astratto sull’intensità dell’allarme sociale che il fatto ipotizzato suscita nel tessuto democratico. La prescrizione, dunque, è strumentale alla regolazione della persistenza dell’offesa post factum patratum, agendo similmente alle dinamiche della discrezionalità politico-criminale che sostengono le scelte una tantum di abolizione (totale o parziale) del crimine.

This paper analyses the problems arising from the dismissal of cases on the grounds of statutes of limitations. Starting from the delicate relationship between the statute of limitations and the principle of the reasonable length of investigations, this study aims at identifying the effects of the gradual passage of time on certain fundamental rights that conflict with one another. We shall point out that while the expiration of the statute of limitations can facilitate the establishment of the accused’s right to be forgotten, it simultaneously undermines the rights of the injured party. This is due to the fact that the latter, thanks to supranational and international case-law, holds multiple rights that are frustrated by the improper and inadequate management of notitiae criminis and by the long duration of investigations. Given the frequency of this phenomenon, the present study aims to explore its causes, with a view to assessing the efficacy of recently introduced “anti-stasis” remedies in overcoming the obstacles that lead to the expiration of the statute of limitations.