Cumpa
Marco Antonio Torres *
CONTENTS: I. - Background, II .- General Concepts; III .- The Audit Report and the jurisprudence of our Supreme Court, IV .- Conclusions.
I. - BACKGROUND
On December 16 in the supplement legal analysis of the newspaper "El Peruano" Law (No. 229) published the opinion piece: "Audit Report: form of evidence?". It is in that publication that the author [1] of the note questions and exposes two controversial views, and this has sparked my interest in events around the theme, driven in part to employment-related reasons for linking me every day with the Audit Report (Special Report specifically developed as a result of a Special Review.)
First, the above article states that "... the audit report itself does not constitute a test ..." and second, "... admitting the test rating [2] audit report, which is not shared by the writer .... " Noticeable explicitly using the names "test medium" and "test" as equivalent to "score" of some way to audit reports issued by the Comptroller General of the Republic.
II .- OUTLINE
In procedural law, and specifically in the context of proof theory, there have been distinctions between what is test, test medium, test source and test body.
Thus we have that body of evidence "is the subject that carries with it an element of trial and sends it to process" [3] , source of evidence is that fact or facts which the judge takes or receives, for example a statement by a judicial inspection and stated and inspected the place respectively come to be sources test, a means test is the procedure established by law (the confession, testimony, expertise, etc.) designed to achieve the income of the evidence in the process, ie through a form of evidence are provided facts sources of evidence, proof or evidence of the reasons that the judge uses to make the conviction or certainty about the disputed facts, the evidence, are the instruments used by the parties and the judge has (officially test ) of which are derived or generated such reasons, namely that it provides objective data to judge the belief of the existence or nonexistence of a fact.
III .- THE AUDIT REPORT AND JURISPRUDENCE OF OUR SUPREME COURT
The report issued by the Comptroller General of the Republic proceeds from the realization of a government audit, contains "findings of fact on which it rests, ie, technical expertise, rather than sensory perception of the informant " [4] , this notion is consistent with the provisions of the government auditing standards (NAGUA) No 4.10 approved by Resolution of Audit No. 162-95-CG replaced by Comptroller's Resolution No. 259-2000 -CG which provides that it is a written document by which the Audit Commission explains the result end of their work, through fundamental judgments on the evidence obtained during the implementation phase.
Auditor value judgments as a result of objective analysis of the facts under investigation, concomitant with the application of specialized technical procedures which are premunity for this work, and respecting the legal rules relevant to each case.
It should be noted that the government auditing standards contained in the plexus, rules that respect the due process the same as guaranteeing the right of defense (NAGUA No. 3.60-communication of findings) of the audited, being therefore acts come research content to set up sources of evidence that the process introduced through the medium of documentary proof of evidence should be evaluated by the judge without ignoring the general principles of the test.
It is noted that the jurisprudence of the Supreme Court of the Republic, bearing in value give evidence and test acts interchangeably to audit reports in accordance with case law citations following: Ø
While it is true that the review of the Comptroller General of the Republic, is an evidence, can not be considered full and final test, as the judge in his capacity as Director of the process can incorporate other media evidence to corroborate it as necessary, to achieve legal certainty to define the legal status of the accused (Supreme Executory 01.FEB.05 RN relapse in File No. 2554-2004 Arequipa).
or special report of the Comptroller General of the Republic has the character of pretrial institutional expertise, and as such should be valued, without prejudice to further proof accompanying instrumental to justify their conclusions, which in principle is apt to weaken constitutional presumption of innocence (Executory Supreme 07.DIC.05 RN relapse in File No. 3700-2005 - Ucayali.)
or the law of the National Control System notes that reports results of a test control action are pre-constituted, therefore, have effectively valuation (30.MAY.03 Supreme Executory issued by the Criminal Chamber RN relapse File No. 1285-2002, Lima).
not held or so file an accounting expert's report, it is clear that the nature documentary evidence of the Special Report of the Comptroller General of the Republic, contrasted with the other evidence, is likely to result in conviction and certainty with regard to illicit matters of process (Executory Supreme RN-Files relapse 18.ABR.07 No. 5667-2006, Lima).
Ø (...) We have stated that such skills, typically complex and require considerable time for preparation, pretrial usually have a character-such as the Special Audit Report-o-trial, as is the case of accounting expertise, so police are not replicable in trial; have the character of preconstituted (...) The character appraisal reports for Preformed are fully accepted and valued by the court. By having done so does not infringe the right to presumption of innocence, one of whose rules of evidence is precisely the reasoning of the judge to issue ruling is based on actual test events (relapse 18.OCT.2007 Supreme Executory in Dossier N ° 1408-2007 RN - North Lima).
§ IV .- CONCLUSIONS Audit Report issued by the Comptroller General of the Republic contains sources of evidence obtained respecting the right of defense of the audited
§ The Report, is incorporated into the process by means of evidence of documentary evidence, it is performed at the appropriate procedural stage, in light of the principles of immediacy, oral, adversarial. §
Report, has the power to invalidate invidious the presumption of innocence, therefore, suitable to support a conviction.
§ The failure to ratify the Audit Report, not effective or blurring of the evidence excludes him [5] . §
Failure to consider the audit report as evidence or proof, does not harmonize with the teaching provided by the procedural and jurisprudential development of our highest judicial body.
* Advocate
[1] Mario Fernando Romero Espinoza
[2] Emphasis added
[3] Cafferata Nores, José. The proof in criminal proceedings, Depalma, Buenos Aires 2001, p. 25.
[4] Burgos Ladron de Guevara, Juan, cited by San Martín Castro, César et al. Traffic Crime Influences and Association Enrichment criminal intent. Legal, Lima 2002, pag.
372 [5] View Whole Agreement No. 2-2007/CJ-116 of 16.NOV.2007. Jurisdictional full of Permanent and Transitory Criminal Chambers.
CONTENTS: I. - Background, II .- General Concepts; III .- The Audit Report and the jurisprudence of our Supreme Court, IV .- Conclusions.
I. - BACKGROUND
On December 16 in the supplement legal analysis of the newspaper "El Peruano" Law (No. 229) published the opinion piece: "Audit Report: form of evidence?". It is in that publication that the author [1] of the note questions and exposes two controversial views, and this has sparked my interest in events around the theme, driven in part to employment-related reasons for linking me every day with the Audit Report (Special Report specifically developed as a result of a Special Review.)
First, the above article states that "... the audit report itself does not constitute a test ..." and second, "... admitting the test rating [2] audit report, which is not shared by the writer .... " Noticeable explicitly using the names "test medium" and "test" as equivalent to "score" of some way to audit reports issued by the Comptroller General of the Republic.
II .- OUTLINE
In procedural law, and specifically in the context of proof theory, there have been distinctions between what is test, test medium, test source and test body.
Thus we have that body of evidence "is the subject that carries with it an element of trial and sends it to process" [3] , source of evidence is that fact or facts which the judge takes or receives, for example a statement by a judicial inspection and stated and inspected the place respectively come to be sources test, a means test is the procedure established by law (the confession, testimony, expertise, etc.) designed to achieve the income of the evidence in the process, ie through a form of evidence are provided facts sources of evidence, proof or evidence of the reasons that the judge uses to make the conviction or certainty about the disputed facts, the evidence, are the instruments used by the parties and the judge has (officially test ) of which are derived or generated such reasons, namely that it provides objective data to judge the belief of the existence or nonexistence of a fact.
III .- THE AUDIT REPORT AND JURISPRUDENCE OF OUR SUPREME COURT
The report issued by the Comptroller General of the Republic proceeds from the realization of a government audit, contains "findings of fact on which it rests, ie, technical expertise, rather than sensory perception of the informant " [4] , this notion is consistent with the provisions of the government auditing standards (NAGUA) No 4.10 approved by Resolution of Audit No. 162-95-CG replaced by Comptroller's Resolution No. 259-2000 -CG which provides that it is a written document by which the Audit Commission explains the result end of their work, through fundamental judgments on the evidence obtained during the implementation phase.
Auditor value judgments as a result of objective analysis of the facts under investigation, concomitant with the application of specialized technical procedures which are premunity for this work, and respecting the legal rules relevant to each case.
It should be noted that the government auditing standards contained in the plexus, rules that respect the due process the same as guaranteeing the right of defense (NAGUA No. 3.60-communication of findings) of the audited, being therefore acts come research content to set up sources of evidence that the process introduced through the medium of documentary proof of evidence should be evaluated by the judge without ignoring the general principles of the test.
It is noted that the jurisprudence of the Supreme Court of the Republic, bearing in value give evidence and test acts interchangeably to audit reports in accordance with case law citations following: Ø
While it is true that the review of the Comptroller General of the Republic, is an evidence, can not be considered full and final test, as the judge in his capacity as Director of the process can incorporate other media evidence to corroborate it as necessary, to achieve legal certainty to define the legal status of the accused (Supreme Executory 01.FEB.05 RN relapse in File No. 2554-2004 Arequipa).
or special report of the Comptroller General of the Republic has the character of pretrial institutional expertise, and as such should be valued, without prejudice to further proof accompanying instrumental to justify their conclusions, which in principle is apt to weaken constitutional presumption of innocence (Executory Supreme 07.DIC.05 RN relapse in File No. 3700-2005 - Ucayali.)
or the law of the National Control System notes that reports results of a test control action are pre-constituted, therefore, have effectively valuation (30.MAY.03 Supreme Executory issued by the Criminal Chamber RN relapse File No. 1285-2002, Lima).
not held or so file an accounting expert's report, it is clear that the nature documentary evidence of the Special Report of the Comptroller General of the Republic, contrasted with the other evidence, is likely to result in conviction and certainty with regard to illicit matters of process (Executory Supreme RN-Files relapse 18.ABR.07 No. 5667-2006, Lima).
Ø (...) We have stated that such skills, typically complex and require considerable time for preparation, pretrial usually have a character-such as the Special Audit Report-o-trial, as is the case of accounting expertise, so police are not replicable in trial; have the character of preconstituted (...) The character appraisal reports for Preformed are fully accepted and valued by the court. By having done so does not infringe the right to presumption of innocence, one of whose rules of evidence is precisely the reasoning of the judge to issue ruling is based on actual test events (relapse 18.OCT.2007 Supreme Executory in Dossier N ° 1408-2007 RN - North Lima).
§ IV .- CONCLUSIONS Audit Report issued by the Comptroller General of the Republic contains sources of evidence obtained respecting the right of defense of the audited
§ The Report, is incorporated into the process by means of evidence of documentary evidence, it is performed at the appropriate procedural stage, in light of the principles of immediacy, oral, adversarial. §
Report, has the power to invalidate invidious the presumption of innocence, therefore, suitable to support a conviction.
§ The failure to ratify the Audit Report, not effective or blurring of the evidence excludes him [5] . §
Failure to consider the audit report as evidence or proof, does not harmonize with the teaching provided by the procedural and jurisprudential development of our highest judicial body.
* Advocate
[1] Mario Fernando Romero Espinoza
[2] Emphasis added
[3] Cafferata Nores, José. The proof in criminal proceedings, Depalma, Buenos Aires 2001, p. 25.
[4] Burgos Ladron de Guevara, Juan, cited by San Martín Castro, César et al. Traffic Crime Influences and Association Enrichment criminal intent. Legal, Lima 2002, pag.
372 [5] View Whole Agreement No. 2-2007/CJ-116 of 16.NOV.2007. Jurisdictional full of Permanent and Transitory Criminal Chambers.
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