Facultades oficiosas del juez de garantías en la imposición de medidas de aseguramiento frente al derecho de defensa del procesado

Abstract

In penal procedural matter, a topic that takes on great relevance is the role of the guarantee control judge in the imposition of insurance measures. Based applicable international and internal standards, that have been subject of review by the Constitutional Court and doctrine, this figure is designed for a Penal System with an accusatory tendency, that responds to a model of requested justice, in which, as a general rule, it is the Prosecutor's Office who should request them, which implies that the impartial and independent guarantee control judge is prohibited from imposing measures other than those request by the persecuting entity. If not, not only will the balance of procedural system adopted in Legislative Act 03 of 2002 broken, but also the right of defense of the accused is violated, due to his arguments were against the initial request and not against the surprise decision and officious of the judge.

It is different if, in attention to exceptionality criteria, necessity and gradualism, the guarantee control judge impose a less burdensome one than the one requested by the Prosecutor's Office, because it is precisely a faculty that is expressly consecrated in the law (Art. 307 CPP), and supported by the pro libertatis principle (Art. 295 Ibid.), that supposes in any case a weighting of the consequences of the imposed measure, taking into account the prosecution and the defense theses.