Convenience or inconvenience of requiring the unanimous consent of the co-defendants for the negotiated criminal justice mechanisms (in a restricted sense) in the Chilean criminal procedural system

Guillermo Oliver

doi:10.22197/rbdpp.v7i2.532

Abstract

The main objective of this work is to analyze the convenience or inconvenience of requiring the unanimous consent of all the co-defendants for the adoption of agreements in the criminal process (in a restricted sense). Its secondary objective is to reflect on the possibility of making a legal modification on the subject for the Chilean criminal procedural system.

Highlights

The expressions “negotiated criminal justice” and “agreements in the criminal process” can be understood in a broad sense or in a restricted sense
Its secondary objective is to reflect on the possibility of making a legal modification on the subject for the Chilean criminal procedural system
Since the end of the last century, for different reasons, negotiated criminal justice mechanisms, whose origin is usually seen in the plea bargaining of the United States criminal system, have proliferated in the criminal procedure laws of different countries belonging to or adhering to the continental European legal system[4]

Summary

Introduction

The expressions “negotiated criminal justice” and “agreements in the criminal process” can be understood in a broad sense or in a restricted sense. It is evident that the risks that the use of negotiated criminal justice mechanisms produce for equality before the law are increased when it comes to co-defendants[23], since in these cases it is more likely that the two or more people who are persecuted for the same crime they are in the same situation and, deserve the same punitive treatment[24] The confrontation of these risks is different depending on whether the criminal procedural legislation in question is based on an individualist model or on a consensual model[25]. The Chilean Supreme Court does not see problems when codefendants already convicted testify in court as witnesses against other co-defendants for the same crime[40-41] This is so, despite the fact that, according to the Criminal Procedure Code of that country, the status of the accused is not lost until the execution of the sentence is finished The consensual model obliges not to take into account differences that could exist between the co-defendants, such as the fact that some are repeat offenders and others have never been convicted, differences that could justify a different punitive treatment

Possibilities of a proposal for the Chilean legal system

Procedure

Findings

Santiago