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Modernization of Criminal Procedures in South America Essay

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Updated: Mar 11th, 2022

Introduction

With the global progression and expansion of criminal law and information technology, a need has been identified in almost all nations for the modernization of criminal procedures.

The traditional modes of criminal justice and criminal procedures are gradually becoming obsolete as modern and more practical criminal procedures are being introduced. The reasons for the modification of criminal laws and procedures are among others; the expanding definition of crime and the means through which information can be transferred accurately and confidentially. Governments understand the importance of adjusting criminal procedures to incorporate simplicity and rapidity to reinforce their obligation to ensure the wellbeing of all individuals living in that nation. Straightforward procedures ensure that the time and monetary resources expended during the criminal procedures are minimized. In addition, justice delayed is justice denied and in cases where an innocent individual is facing criminal charges, a conventional, time consuming procedure will actually be facilitating injustice.

The democratic republic of Ecuador in South America is one of the nations that have recognized the need for a more efficient criminal justice system. Improving the competence and efficiency of the criminal justice process has become a primary challenge for the Government of Ecuador.

The Commencement of Criminal Justice System Amendments

The primary measures to modernize the criminal procedures in Ecuador began when Congress passed a new Criminal Procedures Code. The modernization began when the then President of Ecuador Jamil Mahuad proposed changes to the criminal justice system in December 1999 and these changes were fully supported and accepted by Congress in January 2000 (Winslow 12). After the new criminal system became fully functional in July the same year, the new Code essentially altered the Ecuadorian criminal justice system from an inquisitorial system to an accusatorial system (Silvana 14).

Previously it was the responsibility of the judges and the judicial staff to investigate crimes while the police helped in providing statistical and manpower assistance (Cano 8). The role of the public prosecutors was to keep an eye on the judges’ investigation and take into account all the advancements. In accordance with the new criminal system procedures, prosecutors have an extensive mandate in determining which cases are prosecutable in court (Schodt 62). The office of the Chief Prosecutor is legally responsible for probing and taking legal action in crimes and criminal cases. The National Police unit still plays its investigative role in criminal cases but under the new Code, the Police are under the authority of the prosecutor’s office.

The judiciary now attends to criminal cases in oral sessions which are much more efficient when compared with the previous sluggish and mainly written inquisitorial system. The responsibility of judges has been condensed and they are now impartial arbiters in charge of the oral trials (Cano 9). In addition, there are no jury sittings in the new criminal justice system because the new system’s primary objective is to fortify the justice system through the simplification of due process (McLeod 33). The new criminal system’s structure does not only take into account the legal practitioners but also considers the accused individuals. The new Code is meant to preserve the rights of the accused in the course of criminal procedures for instance habeas corpus and through the limitation of precautionary detention (Silvana 15).

THE 1999 Amendments

The government of Ecuador first received the amendment proposals through Congress in December 1999 after the president sanctioned the improvement of the criminal justice system (Winslow 15). Some of the key amendments proposed included:

Use of Agents and non-lawyers

In cases where an accused is charged with a less serious offence that involves fewer procedural requirements also known as a summary offence, it is imperative that the accused has adequate and efficient representation (Navarro 35). The projected amendments would allocate to each region the authority to sanction criminal assessment programs (Cano 9). Each region will thus have an established set of principles that provide guidelines on when an agent or non-lawyer can represent an accused person charged with a summary offence (Winslow 17). The number of agents or non-lawyers to represent the accused would depend on the magnitude of the crime and the maximum term of imprisonment or punishment associated with the offence. The agents or non lawyers would also have the capacity to represent their client in asking for a postponement of summary procedures in spite of the maximum terms of punishment.

The classification of Criminals

These proposed amendments were aimed at modernizing and simplifying the arrest and detainment procedures. Previously, Police officers were not allowed to take photographs of individuals or the fingerprints of individuals in lawful custody until they were charged or convicted of a crime (Silvana 22). This was in accordance with The Identification of Criminals Act which in most cases led to avoidable delays and consequently prolonged an accused person’s stay in police custody (Chinchilla & Schodt 11). The amendments proposed to simplify and hasten this process by giving the police the power to photograph and fingerprint an accused individual who was in lawful custody following an arrest even though the accused person had not been formally charged(World Bank 2).

Physical aggression

It was an offence to have any participation in unlicensed fighting using fists or hands which was known as prize fighting under the previous laws (Chinchilla & Schodt 14). Proletarian combat matches under the regional supervision were legal although those without financial prizes were considered to be an offence. The proposed amendments were introduced so as to legalize proletarian combative sports such as Tae-kwon-do, Judo and Karate which were by then on the Olympic program. The amendments granted the region jurisdiction in deciding which combative sports are legal and also be in a position to organize matches.

Application of warrants

To speed up the function of the police department, the recommended use of telwarrants was introduced. Telewarrants are basically searching and apprehension warrants but they differ greatly from the conventional warrants in the application (World Bank 5). Police officers are required to provide information under oath to a board of Justice through a telephone, fax, internet or other means of telecommunication saving on the time and expenses that could have been exhausted during travel if the officer had to apply in person (McLeod 24). Previously, telewarrants were available exclusively when it was impossible for the officer to appear in person, and the availability was limited to a certain category of warrants (Silvana 19). The proposed amendments would do away with the conditions necessary to gratify the impossibility requirement in cases where the telewarrant application had to be presented by hand. Furthermore, the amendments would also spread out the accessibility of telewarrants to public officers, officials who implement the national non-Criminal Code legislation, but are essentially not police officers (Navarro 43).

Expert Witnesses

The previous Criminal Code accommodated the disclosure of expert reports but did not allow the other party to satisfactorily counter the reported evidence (Chinchilla & Schodt 40). Amendments in Expert Witness allowed for ten days of compulsory adjournment in cases where notice provisions had not been observed. Additionally, an indefinite adjournment could also be referred to during cases where notice provisions were followed but it was proved that a party still had inadequate time to organize an ample retort for the expert witness (Winslow 20). Another amendment gave the Court total jurisdiction on whether or not to allow for a deferment of a case and also the power to add to or reduce the timeframe of an adjournment. If the Court denied a deferment or reduced the period, the amendments stipulated that the Court should provide a concrete reason for its decision (World Bank 7). Expert witnesses through such amendments were taken seriously by the court and their argument weighed heavily on the court’s final decision.

Flight risk control

This amendment proposed the recognition of leaving a jurisdiction against the orders of the court as an offence. The amendment was introduced to prosecute persons who fled from a specific jurisdiction in contravention of their bail terms. The amendment generated a comprehensible limit to flight risk individuals that were leaving a jurisdiction and set up conclusive documentation of violators of that law (Silvana 26). The judicial access to such records would raise a red flag and stop the release of an accused individual who had previously violated the bail conditions that limit movement between jurisdictions. The responsibility would therefore be left on the accused to give good reason for the necessity of their consequent release on bail.

Betting System amendments

The proposed legislative alterations were to make sure that the legislative betting lingo was modernized and betting agencies were required to modify the method in which foreign pool payouts were calculated (World Bank 10). The commonly known pari-mutuel betting system allowed an organization to accumulate all the bets made on one event into one pool and the winners share the profits equitably from the collective pool, most common in horse racing (Navarro 23). The role of the organization was to host the occasion and control the betting system, and they only profited from keeping a certain percentage of all the bets, both the winning and losing bets (Chinchilla & Schodt 43). The amendments proposed a new betting system to ensure unbiased allocation of profits among participants.

The 2009 amendments

The 2009 legislative amendments also known as The ABA Rule of Law Initiative (ABA ROLI) were backed by the U.S government and the program aimed to further fortify the criminal justice system in Ecuador.

In a bid to reinforce the performance of an accusatorial system, ABA ROLI called together an inter-institutional functional group of international and national experts to inform the national assembly on reforms to the Criminal Procedure Code (Hendrix 38). The group of experts made proposals for the formation of a universal reform program through out Ecuador, and five of the proposals were among the amendments in March 2009 reforms.

Incarceration

In the current system, incarceration was based on accusation or suspicion which led to several false detentions. In the new amendments, it was proposed that pre-trial incarceration be allowed only in exceptional cases, where the accused was either a danger to self or society (Hendrix 43). The accused could also posses a flight risk warranting pre-trial detention. Furthermore, the accused could be of an unsound mind and these conditions are to be determined by a judge consequently protecting the accused against unnecessary detention. Furthermore, the previous criminal system gave the judge authority to issue a written order of arrest which would be used to arrest an individual (Schodt 78). The system therefore bestowed upon the judge excessive power to act subjectively and enact an arrest through the police. Proposed amendments allowed for the discussion and argument of an accused individual’s incarceration in court. The discussion ensured a fair hearing for both sides before the judge ruled on the court’s decision (Hendrix 46).

Synchronization of the prosecution and the judiciary

The former criminal procedure allowed the criminal investigations to be carried out by judges and their assistants with the help of the police (Navarro 45). The role of the prosecutor was basically to supervise the work of the judges. After the 1999 amendments, the roles of the judges and the prosecution were modified and separated. The police were also assigned a more active role as far as criminal investigations were concerned and were largely separated from the judges and later associated with the prosecution (McLeod 31). However, the 2009 amendments proposed a form of merger between the judges and the prosecution. The amendments granted the prosecutors discretion to select and dismiss the cases before them but in consultation with judges, in order to minimize the backlog of cases that was common in the previous system (USDS 24).

Alternative conflict resolution methods

The proposed amendments also tried to vet the cases that entered the criminal courts by providing alternative means of dispute resolution. Methods like community elders, churches and families were first to be considered as primary means of conflict resolution before presenting a case to court (Hendrix 35). Criminal cases are therefore required to be solved at lower local levels before they can be recorded as criminal cases and presented in front of a criminal judge. Such an initiative was aimed at reducing the number of cases in the criminal courts consequently decongesting the criminal justice system (USDS 41).

Adversarial trials

Court cases have been modified in order to accomplish improved uniformity with the application of the adversarial system.

This method of trial limits the involvement of judges and is more engaging to the concerned parties thus facilitating superior and vigorous arguments and exhibition of evidence (USDS 27). Adversarial trials basically let the prosecutor and the accused argue their case in front of a judge who is unbiased and the judge draws a tenable conclusion based on the antagonizing arguments consequently ruling on the case (McLeod 67).

Outline of the ecuadorian criminal justice system

Mandate over any criminal offence is investigated and prosecuted by the Chief Prosecutor’s office and these kinds of cases are tried by a head judge of the District Court, a Senior District Judge or a District Judge sitting alone or by a Court of Appeal (Hendrix 123). A single Judge has the authority to try and rule on all cases liable to be punished by incarceration for a term limited to five years or with a fine not exceeding fifty thousand dollars or both(Cano 14). A Judge also has the power to order a person who has been found responsible for a criminal offence to pay compensation not more than three thousand dollars to the party offended by the crime. A Judge can receive approval from the Attorney General in order to assume control, try and rule on any criminal case. The punishment granted to the judge is limited meaning that the judge cannot impose harsher punishment on an offender exceeding the stipulated limits (Silvana 28).

The court of Appeal is made up of three Judges and has the authority to try all the criminal cases which are liable to be punished by the Criminal Code or any other law of the land (USDS 16). The court of appeal has the clout to enforce the highest sentence granted by the pertinent law. The Rent Control Tribunal has the authority to try and settle all the cases which transpire from the use of the Rent Control Laws. Rent disputes include the payment of rent, the standardization of rent, tenant exploitation and recovery of possession (Silvana 36). A Rent Control Tribunal is composed of a senior judicial officer and two members of the public to stand for the renter and the owner of the property.

The Industrial Tribunal has the mandate to take into consideration the court cases filed by members of any company’s human resource for unwarranted removal from office and redundancy payments. The Industrial Tribunal is composed of a senior judicial officer and two members of the public who stand for the employers and employees (Cano 17). In addition, The Military Court has the authority to try and settle military offenses under the Criminal Code and any other law committed to by members of the armed forces (Hendrix 129).

It is made up of a head judicial officer and two assistants who are selected by the Supreme Council of Judicature from a list of military officers(USDS 23).

Conclusion

The Government of Ecuador has strongly collaborated with its regional and territorial partners to generate 26 legislative revisions that will echo the dynamic criminal justice system and seal recognized loopholes in the law. The proposed amendments to the Criminal Code came in two phases, the first being in 1999 and the other being in 2009. The amendments created more awareness for the Corruption of Foreign Officials Act, the Identification of Criminals Act and the Ecuador Evidence Act, which will facilitate the assurance that Ecuador’s laws will continue to protect the citizens.

By persistently modernizing the criminal procedures in the judiciary system, the Government of Ecuador is building a justice system that can positively react to modifications in criminal habits and adjust according to the constant progression of technology. ABA ROLI has provided pivotal improvements to the criminal justice system in Ecuador and continues to work closely with the Ecuadorian government to establish a long-term solution. The inter-institutional working group, which also includes representatives from the Public Prosecutor’s Office and the Public Defender’s Office, is on the forefront in ensuring the total overhaul of the criminal justice procedures. With strong support from the U.S government there has been a dynamic shift towards a more inclusive reform process that incorporates opinions from all departments involved in the criminal justice system.

Nonetheless, regardless of the change in the internal mechanism and advancement procedures in the criminal justice system, the Government of Ecuador is still slow in compiling an organized central managerial body. The body is essential for effective training, planning and overseeing of cohesive functioning of the components of the criminal justice system. Such a body will also be responsible for procurement of adequate resources in supplies and also ensure the restructuring of the various departments in order to conform and generate paramount results.

References

Cano, Claudia. Judicial Reform of Criminal Justice in Latin America. 2003. Web.

Chinchilla, Laura and Schodt, David. The administration of justice in Ecuador. 1991. Web.

Hendrix, Steven. Recommendations for Improving Ecuador’s Approach, 20 Inter-American Law Review. California: Prager Security Publishing, 2009. Print.

McLeod, Allegra. Exporting US Criminal Justice. January 2010. Web.

Navarro, Luz. The management of e-documents in Latin America. 2009. Web.

Schodt, David. Ecuador: An Andean Enigma. Boulder: Westview Press, 1989. Print.

Silvana, Pinto. . 2008. Web.

U.S Department of State-USDS. 2009 Investment Climate Statement – Ecuador. 2009. Web.

Winslow, Robert. A Comparative Criminology Tour of the World. 2006. Web.

World Bank. Legal and judicial reform. World Bank report. 2005. Web.

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