Abstract:
El proceso penal está fundamentado en tres pilares fundamentales, en
principio, como un mecanismo para dar respuesta a conflictos de intereses por
la comisión de un delito; al plantear el conflicto también se convierte en el
medio para su resolución, el cual está regido por principios y garantías d... Ver más
The criminal process is supported by three fundamental pillars, on the
one hand, it is the mechanism to respond to conflicts of interest as a result of
the commission of a crime; Once this conflict has been raised, this is precisely
the means for its resolution governed by principles and guarantees of a due
process in which it is intended that the parties in conflict are the ones who
promote its resolution with their allegations and evidence that support the facts.
That is the reason that gives relevance to the probative performance of
the parties in the process, because it is the allegations and evidence that
determine the grounds that will support the pronouncement of the judge. From
there arises the testimony as one of the mechanisms to justify the alleged facts.
However, in the judicial field it is presumed that any citizen is capable of giving
a statement in a process, although the norm establishes certain assumptions
that limit this action, expressly establishing the subjects exempt from giving their
testimony, so that it has not been established a subjective criterion.
However, the testimonial statements present certain particularities of a
procedural nature with respect to the subject in his capacity as a party, either as
a victim, witness or as an alleged active subject of the criminal offense. These
particularities, especially in minors, will be part of the focus of this investigation,
as well as the assessment of the testimony and the limits to render statements
of minors in accordance with current legislation and the various criteria provided
by doctrine and jurisprudence. Let us remember that the Spanish criminal process is governed by the
principle of the free evaluation of the evidence in accordance with art. 741
LECrim. That is, the court appreciates the evidence according to its conscience
in response to the motivations raised by the prosecution, the defense and what
was expressed by the defendant. Bearing in mind that the free assessment of
the evidence should not be understood as the discretion or arbitrariness of the
judge to interpret the facts, but rather assess the evidence under rational criteria
rules, with logic, and the maximum of experience provided by the experts.
In this context, the general objective of the investigation is the study of
the legislation regulating the figure of the witness, in his capacity as a minor in
criminal proceedings, in order to determine if with the current regulations, the
State in its sanctioning power can safeguard the defendant's right to defense
and at the same time safeguard the minor's mental health by acting as a
witness and victim in criminal trials with the application of the established
guarantee regime.
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