Cumpa
Marco Antonio Torres *
I. - Introduction, II .- Brief summaries of the so-called adversarial and inquisitorial systems, III .- The Criminal Court in the NCPP, IV .- The impartiality of Judge doctrine and jurisprudence of our Constitutional Court, V. - Conclusions.
I. - Introduction
With much appreciation has been hosting the New Criminal Procedure Code (NCPP) by judicial officers (district court which is in force) that are reflected in the aforementioned code is not only a tool to reform the criminal justice system, but also a legal instrument that allows them to resolve conflicts of a criminal nature within a short time, generating Thus a lower economic cost and simplification of energy for the litigants and for those responsible for starting it.
The aforementioned is confirmed in reports issued by the Attorney General and Ministry of Justice [1] , the defendant in the new process is saving for their slumping "pockets" as opposed to those causes that are processed under the terms of the Code of Criminal Procedure (in force in most judicial districts of the country), lasting almost endless, with the consequent effect continue paying the sponsorship of an attorney, coupled with the on caseload who have shared so the Public Ministry and Judiciary having to implement the state machine to process the high demand of avid social justice litigation with the implementation of the NCPP can be solved in some cases-in one day, a situation that means a saving of effort for all parties involved.
as well as highlighting the benefits that entails the implementation of the speed NCPP with which we can solve the crime which case, this process is also raised as an expression applied system with features adversarial accusatory. Now, the system described should endorse the implementation of that bundle of securities that make up the due process where the separation of functions is respected unconditionally, ie the one hand, the Attorney General as head of the exercise of penal action (on which the burden of proof, investigated, charged) and on the other hand, the Judiciary judging and resolving the dispute (justice).
However, the NCPP contains provisions (paragraph 3) of Article 155 and Article 385) that enable the implementation of the testing office (Code of Criminal Procedure does not regulate it) by the judge. This institution own the inquisitorial system would undermine the separation of roles mentioned above, to replace the judge in the place of one party (Public Prosecutor, defense, indemnification, etc..) In the offer of proof, which would undermine its impartiality in this sense, try to give some scope to determine to what extent the implementation of the test ordered by the court office or affect his impartiality.
It is noted that the application of the test job despite not being regulated the Code of Criminal Procedure (effective parallel much of the country) was to free the powers and discretion of the judge's own inquisitorial system-which was considered an act of favoritism to a particular party involved in the conflict-whether the benefit of the plaintiff or defense, "while generating criticism regarding the impartiality of the judge if we consider that proof of that office is not offered by the parties. For the moment there the same problem, however, that the model adopted by the new code is the adversarial system, which would seem a contradiction.
II .- Brief summaries of the so-called adversarial and inquisitorial systems
in law school when studying the Criminal Procedural Law progress we mentioned the existence of three actuation systems of criminal law referring to the Peruvian criminal process, these systems come into being, the adversarial system, the inquisitorial system mixed system, also refer to them calling them: processes, principles, however, for practical-teaching will not discuss the differences between them and those and we will address only the first two.
As preliminary idea must say that if the process is conceived as a series of successive acts, ordered and for the resolution of a dispute to an impartial third party as an expression heterocompositiva composing the litigation, as well as peaceful means of discussion and dialogue, we are able to assert that the application is opposed to the inquisitorial system substantially to the essence of the process, here it is reported by Montero Aroca, called the inquisitorial process never was and obviously is not a real process ... Obviously there is no process if the prosecutor is both the judge, but there is not really proceedings if the judge assumes all material powers of the direction of the activity may, for example, and not rely on facts, but even agree trade test, regardless of who runs it benefit [2] .
Here we describe the most outstanding peculiarities of the adversarial and inquisitorial systems:
A) adversarial system, its main features are:
The prosecuting exercised by the victim or his family, the burden of proof who made his allegations.
Separation of roles of the parties to the proceedings, prosecutor, defender and judge.
The judge just practice the evidence submitted by the parties. The trial is public
exceptions.
The accused knows what and who is accused, there is no torture.
governs the system of free evaluation of evidence, being outlawed legal proof or legal.
There is a real dialogue between the prosecutor and defense law, the principle of contradiction.
The legal status of the accused is to be released until sentencing. It
envision aforementioned line between the notion of process and the adversarial system, as the principles of duality (two partial sides: plaintiff and defense), contradiction and equal parts of which are fed, ensure the banishment of the justice into their own hands, opting for the process and civilized way of resolving disputes.
B) inquisitorial system, its main features are:
In this system the judge is a technical
During the course of proceedings, the defendant is segregated from society, through the institution called preventive detention remained in that state until sentencing.
The judge is an official designated by public authority who exercises an official criminal action.
no difference between the parties to the proceedings, the judge assumes the functions of prosecution, defense and prosecution.
Although the victim will pull out, the process should continue until terminated.
The judge has their own initiative and discretion to investigate. The test, in terms of location, reception and evaluation, is the exclusive power of the judge.
is granted a value to the defendant's confession, called the queen of the testing.
The judge did not reach a conviction if you have not obtained a full confession, which more than once accomplished using methods of torture. There
conflict between the parties, but due to a technical inquiry so this decision may appeal.
All acts were secret and written.
The defendant does not know the process until the investigation is not finished.
The judge is not subject to disqualification of the parties.
The decision was not taken on the basis of moral conviction except in accordance with the system legal test.
Of the reviews, or features mentioned can be seen clearly that the inquisitorial system can not respond to what is meant by process, revealing a rift between its institutions and people's fundamental rights. A glaring example of the inquisitorial system is found in the so-called "summary process" (Legislative Decree No. 124) in which the examining magistrate or also instructs judges, leading to an incompatibility of functions in the process according to the way regular same, so I consider the Decree referred to as a policy instrument unconstitutional.
III .- The criminal court in the NCPP
Processing in the NCPP is governed largely under the provisions of the Joint Process, which is composed of three stages: 1) preliminary investigation, 2) intermediate stage and 3) trial.
In the preliminary investigation, the role assumed by the magistrate is a judge's assurances at this stage should perform requests to the Prosecutor, order the constitution of the parties, decide on the measures restricting rights that require order judicial and security measures, if appropriate, resolve exceptions, previous questions and referred, do acts of anticipated evidence, monitoring compliance with the deadlines set by the code. En fin, se puede acudir a él en el caso de no respetarse en la tramitación de la causa las garantías mínimas del proceso.
En la etapa intermedia, el juez realiza el control del requerimiento fiscal (sobreseimiento o acusación fiscal) convocando a una audiencia para debatir los fundamentos del requerimiento efectuado. Si el requerimiento del fiscal es de sobreseimiento y el juez lo considera fundado, emitirá el auto de sobreseimiento el cual puede ser recurrido, si por el contrario, no lo considera procedente, expedirá un auto elevando lo actuado ante el Fiscal Superior para que ratifique o rectifique la solicitud del fiscal provincial, la etapa intermedia aludida es también conocida como etapa de saneamiento, ya que it is used as a filter, so that in the trial, the process is free of impurities that affect or invalidate the prosecution of the case. In short, this stage is intended to leave the way open for the conduct of the trial in case need arises.
The trial stage is taken over by a judge other than the previous phases, to avoid disturbing or contaminating biases the perception of the judge trying (it embodies the principle that the judge instructed not), this being the main part of the process, the judge has to verify that it is made on the basis of the charge, subject to the procedural guarantees in the Constitution treaties and International Law of Human Rights, adopted and ratified by Peru, especially governing orality, publicity, immediacy and contradiction in the performance evidence. Also, being the director of the trial, order the steps necessary for its development, should ensure the legal equality of the parties (prosecutor-defense), you must also prevent those claims irrelevant and unrelated to the subject of the proceeding, finding Armed with disciplinary powers and discretionary .
trial is the testing stage, where the judge is convinced about the proposed decidendi thema in the indictment and generally opposed by defense, as would occur to avoid the debate whether the defendants (perpetrators and participants) support the charges in the indictment and assume the payment of civil damages. It should be noted that at this stage there are three parts of a notorious, which are: a) installation of the trial period, b) probation, including probation and actual performance, c) the decision period.
is to add, that both plaintiff and defense should be prepared for oral litigation techniques, since the knowledge of that set of skills and abilities that make a difference substantially conform to tip the scales in your favor and stand as victor in the dispute regulating this new criminal proceedings.
IV .- The impartiality of the judge in the doctrine and jurisprudence of our Constitutional Court
The Royal English Academy defines fairness as a lack of advance or prevention plan for or against someone or something that allows prosecute or proceed with righteousness [3] .
words, the fairness has to do with the neutrality that should keep the third party (judge) to decide on the parties' dispute.
is extremely important to be clear that this third party has authority to process and resolve the dispute should not be placed in "hand position (Impartial) because no one can be prosecutor and judge at the same time, must be free of any subjective interest in the outcome of the case (fairness) and is able to operate without hierarchical subordination with respect to both parties (independent) " [4] .
jurist Julio Maier contends that the note of impartiality or neutrality, which characterizes the concept of "justice" is not inherent in any legal organization, but a predicate that needs to be built, for which operate both the rules regarding that organization as the rules of procedure, summarized in three fundamental maxims: the independence of judges, all state power, the impartiality in the case, determined the relationship of the judge with the case itself, and the principle of natural or legal judge [5] . According
Ferrajoli, ensuring separation of duties is an essential condition for the impartiality of the judge regarding the parties to the case and is the first of the functional guarantees that define the figure of the judge [6] .
Our Constitutional Court (TC) in the constitutional claim filed by the Ombudsman against some regulatory devices the military has stated that: [7] While the guarantee of independence, in general, protects against judge influences outside, the principle of impartiality, closely linked to the principle of functional independence "is linked to certain requirements within the process, defined as independence of the judge against the parties and the subject of the process itself, can be understood in two senses:
to ) Impartiality subjective relation to some kind of commitment that the judge might have with the case.
b) Impartiality objective, referring to the negative influence it can have on the court system structure, less fairness, that is, if the system does not provide sufficient guarantees to dispel any reasonable doubt. Similarly
our TC is pronounced in the sentence passed in File No. 004-2006-PI/TC. FJ No. 20 and Order No. 04675-2007-PHC/TC- Lima, resolution to which is added an additional argument (FJ. No. 6) removed the case Pabla Ky vs. Finland (decided by the European Court of Human Rights) related to the objective dimension of judicial impartiality, noting that should be considered apart from the conduct of the judges, facts that may raise doubts about their impartiality.
The right to trial by an impartial judge is a judicial guarantees recognized by the numeral 1 of article 8 of the American Convention on Human Rights also an essential element of due process referred to in paragraph 3 of Article 139 of our Constitution.
As can be seen, the idea of \u200b\u200ba fair trial is linked to the principle of separation of elementary functions and neutrality with which the judge must proceed in the composition of the suit, which means that the judge to maintain impartiality is obliged to refrain from intervening in the process informally about issues of evidence.
The legal system provides for an institute that could be used to dilute any hint of bias: the challenge, but note that it operates in specific cases occur each governing legislation does not protect NCPP the disqualification of the judge's official actions of a form of evidence. In this regard it states: "the recognition of fairness as a fundamental right enshrined in the Constitution has been through two pathways, one abstention and one recusal, and recognizing the fairness as a constitutional requirement" [8] .
On the other hand there are those who believe that judges should enact trade tests to ascertain the truth of the facts and noted that "... it is hard to conceive the process as fair, if the sentence is not built on truth (...) Order office is testing a psychological need that arises when you have a knowledge gap " [9] .
However, bear in mind that the process is not necessarily a means to discover the truth because it "real truth (which is in the facts, objectivity, sought) - often do not coincide with the truth arrival by the court proceedings (provided by the evidence, given by the certainty, which is in the courts). Roxin states that "the clarification of offenses not subject to any limit would involve the danger of destroying many collective and individual values. Therefore, the ascertainment of truth is an absolute value in criminal proceedings, Rather, the criminal proceedings themselves are imbued with ethical and legal hierarchy of our State " [10] , these hierarchies are embodied in the principles and our constitution guarantees that collect, including due process.
V. - Conclusions
1) Some items total NCPP bear no principled consistency with the adversarial system.
2) For the sake of seeking the truth can not conceive the office to order the test because the purpose of the process is the solution of a conflict, which in some cases, may terminate or conclude early, diluted in these cases the ascertainment of truth, prioritizing the resolution of the litigation.
3) should be avoided interference of the judge in terms of evidence, in order to avoid failure or aggravated benefit of the accused, and so discredit the actions of the judge as an impartial third party.
4) The search for truth at any price should be banned from any legal system as it could be used as a means of revenge against excessive and arbitrary use of the test automatically.
5) The test decree violates trade rules that ensure due process to determine that their actions would affect their impartiality and respect for the right to legal equality to hold the principles and duties as judge inherent in their function.
* Advocate
[1] News of the above can be seen at the following locations (view the 30.MAR.2009 ) http://www.minjus.gob.pe/cpp/noticias_libertad.html
http://www.mpfn.gob.pe/ncpp/files/52d9f0_Informe% 20Anual% 20Huaura2.pdf
[2] Montero Aroca, Juan. "Accusatory principle in criminal trial." In: Gómez Colomer, Juan Luis (coordinator). "Proof and Process Criminal. "Tirant lo blanch, Valencia, 2008, p.22.
[3] http://buscon.rae.es/draeI/SrvltConsulta?TIPO_BUS=3&LEMA=imparcialidad (seen 10/8/2009)
[4] VELLOSO ALVARADO, Adolfo. "Due process versus evidence ex officio." Editorial Themis, Bogota, 2004, p. 146.
[5] MAIER, July. Criminal Procedural Law. IT Editores del Puerto, Buenos Aires, 2004, p. 742.
[6] Ferrajoli, Luigi. "Law and Reason, Theory of penal guarantee", ED. Trotta, Madrid, 1989, pg.
567 [7] STC relapse File No. 0023-2003-AI/TC. FJ. 34
[8] CABIALE DÍAZ, José Antonio. Early input from and accusatory: The impartiality of the judge. Editorial Comares, Granada, 1996, p.429.
[9] Parra Quijano, Jairo. Rationality and ideology of the tests automatically. In: Reading Material National Criminal Jurisdictional plenary, held in Lima, 20 and June 21, 2008, p. 301.
[10] Roxin, Claux. "Criminal procedural law." Editores del Puerto, Buenos Aires, 200 p. 191.
I. - Introduction, II .- Brief summaries of the so-called adversarial and inquisitorial systems, III .- The Criminal Court in the NCPP, IV .- The impartiality of Judge doctrine and jurisprudence of our Constitutional Court, V. - Conclusions.
I. - Introduction
With much appreciation has been hosting the New Criminal Procedure Code (NCPP) by judicial officers (district court which is in force) that are reflected in the aforementioned code is not only a tool to reform the criminal justice system, but also a legal instrument that allows them to resolve conflicts of a criminal nature within a short time, generating Thus a lower economic cost and simplification of energy for the litigants and for those responsible for starting it.
The aforementioned is confirmed in reports issued by the Attorney General and Ministry of Justice [1] , the defendant in the new process is saving for their slumping "pockets" as opposed to those causes that are processed under the terms of the Code of Criminal Procedure (in force in most judicial districts of the country), lasting almost endless, with the consequent effect continue paying the sponsorship of an attorney, coupled with the on caseload who have shared so the Public Ministry and Judiciary having to implement the state machine to process the high demand of avid social justice litigation with the implementation of the NCPP can be solved in some cases-in one day, a situation that means a saving of effort for all parties involved.
as well as highlighting the benefits that entails the implementation of the speed NCPP with which we can solve the crime which case, this process is also raised as an expression applied system with features adversarial accusatory. Now, the system described should endorse the implementation of that bundle of securities that make up the due process where the separation of functions is respected unconditionally, ie the one hand, the Attorney General as head of the exercise of penal action (on which the burden of proof, investigated, charged) and on the other hand, the Judiciary judging and resolving the dispute (justice).
However, the NCPP contains provisions (paragraph 3) of Article 155 and Article 385) that enable the implementation of the testing office (Code of Criminal Procedure does not regulate it) by the judge. This institution own the inquisitorial system would undermine the separation of roles mentioned above, to replace the judge in the place of one party (Public Prosecutor, defense, indemnification, etc..) In the offer of proof, which would undermine its impartiality in this sense, try to give some scope to determine to what extent the implementation of the test ordered by the court office or affect his impartiality.
It is noted that the application of the test job despite not being regulated the Code of Criminal Procedure (effective parallel much of the country) was to free the powers and discretion of the judge's own inquisitorial system-which was considered an act of favoritism to a particular party involved in the conflict-whether the benefit of the plaintiff or defense, "while generating criticism regarding the impartiality of the judge if we consider that proof of that office is not offered by the parties. For the moment there the same problem, however, that the model adopted by the new code is the adversarial system, which would seem a contradiction.
II .- Brief summaries of the so-called adversarial and inquisitorial systems
in law school when studying the Criminal Procedural Law progress we mentioned the existence of three actuation systems of criminal law referring to the Peruvian criminal process, these systems come into being, the adversarial system, the inquisitorial system mixed system, also refer to them calling them: processes, principles, however, for practical-teaching will not discuss the differences between them and those and we will address only the first two.
As preliminary idea must say that if the process is conceived as a series of successive acts, ordered and for the resolution of a dispute to an impartial third party as an expression heterocompositiva composing the litigation, as well as peaceful means of discussion and dialogue, we are able to assert that the application is opposed to the inquisitorial system substantially to the essence of the process, here it is reported by Montero Aroca, called the inquisitorial process never was and obviously is not a real process ... Obviously there is no process if the prosecutor is both the judge, but there is not really proceedings if the judge assumes all material powers of the direction of the activity may, for example, and not rely on facts, but even agree trade test, regardless of who runs it benefit [2] .
Here we describe the most outstanding peculiarities of the adversarial and inquisitorial systems:
A) adversarial system, its main features are:
The prosecuting exercised by the victim or his family, the burden of proof who made his allegations.
Separation of roles of the parties to the proceedings, prosecutor, defender and judge.
The judge just practice the evidence submitted by the parties. The trial is public
exceptions.
The accused knows what and who is accused, there is no torture.
governs the system of free evaluation of evidence, being outlawed legal proof or legal.
There is a real dialogue between the prosecutor and defense law, the principle of contradiction.
The legal status of the accused is to be released until sentencing. It
envision aforementioned line between the notion of process and the adversarial system, as the principles of duality (two partial sides: plaintiff and defense), contradiction and equal parts of which are fed, ensure the banishment of the justice into their own hands, opting for the process and civilized way of resolving disputes.
B) inquisitorial system, its main features are:
In this system the judge is a technical
During the course of proceedings, the defendant is segregated from society, through the institution called preventive detention remained in that state until sentencing.
The judge is an official designated by public authority who exercises an official criminal action.
no difference between the parties to the proceedings, the judge assumes the functions of prosecution, defense and prosecution.
Although the victim will pull out, the process should continue until terminated.
The judge has their own initiative and discretion to investigate. The test, in terms of location, reception and evaluation, is the exclusive power of the judge.
is granted a value to the defendant's confession, called the queen of the testing.
The judge did not reach a conviction if you have not obtained a full confession, which more than once accomplished using methods of torture. There
conflict between the parties, but due to a technical inquiry so this decision may appeal.
All acts were secret and written.
The defendant does not know the process until the investigation is not finished.
The judge is not subject to disqualification of the parties.
The decision was not taken on the basis of moral conviction except in accordance with the system legal test.
Of the reviews, or features mentioned can be seen clearly that the inquisitorial system can not respond to what is meant by process, revealing a rift between its institutions and people's fundamental rights. A glaring example of the inquisitorial system is found in the so-called "summary process" (Legislative Decree No. 124) in which the examining magistrate or also instructs judges, leading to an incompatibility of functions in the process according to the way regular same, so I consider the Decree referred to as a policy instrument unconstitutional.
III .- The criminal court in the NCPP
Processing in the NCPP is governed largely under the provisions of the Joint Process, which is composed of three stages: 1) preliminary investigation, 2) intermediate stage and 3) trial.
In the preliminary investigation, the role assumed by the magistrate is a judge's assurances at this stage should perform requests to the Prosecutor, order the constitution of the parties, decide on the measures restricting rights that require order judicial and security measures, if appropriate, resolve exceptions, previous questions and referred, do acts of anticipated evidence, monitoring compliance with the deadlines set by the code. En fin, se puede acudir a él en el caso de no respetarse en la tramitación de la causa las garantías mínimas del proceso.
En la etapa intermedia, el juez realiza el control del requerimiento fiscal (sobreseimiento o acusación fiscal) convocando a una audiencia para debatir los fundamentos del requerimiento efectuado. Si el requerimiento del fiscal es de sobreseimiento y el juez lo considera fundado, emitirá el auto de sobreseimiento el cual puede ser recurrido, si por el contrario, no lo considera procedente, expedirá un auto elevando lo actuado ante el Fiscal Superior para que ratifique o rectifique la solicitud del fiscal provincial, la etapa intermedia aludida es también conocida como etapa de saneamiento, ya que it is used as a filter, so that in the trial, the process is free of impurities that affect or invalidate the prosecution of the case. In short, this stage is intended to leave the way open for the conduct of the trial in case need arises.
The trial stage is taken over by a judge other than the previous phases, to avoid disturbing or contaminating biases the perception of the judge trying (it embodies the principle that the judge instructed not), this being the main part of the process, the judge has to verify that it is made on the basis of the charge, subject to the procedural guarantees in the Constitution treaties and International Law of Human Rights, adopted and ratified by Peru, especially governing orality, publicity, immediacy and contradiction in the performance evidence. Also, being the director of the trial, order the steps necessary for its development, should ensure the legal equality of the parties (prosecutor-defense), you must also prevent those claims irrelevant and unrelated to the subject of the proceeding, finding Armed with disciplinary powers and discretionary .
trial is the testing stage, where the judge is convinced about the proposed decidendi thema in the indictment and generally opposed by defense, as would occur to avoid the debate whether the defendants (perpetrators and participants) support the charges in the indictment and assume the payment of civil damages. It should be noted that at this stage there are three parts of a notorious, which are: a) installation of the trial period, b) probation, including probation and actual performance, c) the decision period.
is to add, that both plaintiff and defense should be prepared for oral litigation techniques, since the knowledge of that set of skills and abilities that make a difference substantially conform to tip the scales in your favor and stand as victor in the dispute regulating this new criminal proceedings.
IV .- The impartiality of the judge in the doctrine and jurisprudence of our Constitutional Court
The Royal English Academy defines fairness as a lack of advance or prevention plan for or against someone or something that allows prosecute or proceed with righteousness [3] .
words, the fairness has to do with the neutrality that should keep the third party (judge) to decide on the parties' dispute.
is extremely important to be clear that this third party has authority to process and resolve the dispute should not be placed in "hand position (Impartial) because no one can be prosecutor and judge at the same time, must be free of any subjective interest in the outcome of the case (fairness) and is able to operate without hierarchical subordination with respect to both parties (independent) " [4] .
jurist Julio Maier contends that the note of impartiality or neutrality, which characterizes the concept of "justice" is not inherent in any legal organization, but a predicate that needs to be built, for which operate both the rules regarding that organization as the rules of procedure, summarized in three fundamental maxims: the independence of judges, all state power, the impartiality in the case, determined the relationship of the judge with the case itself, and the principle of natural or legal judge [5] . According
Ferrajoli, ensuring separation of duties is an essential condition for the impartiality of the judge regarding the parties to the case and is the first of the functional guarantees that define the figure of the judge [6] .
Our Constitutional Court (TC) in the constitutional claim filed by the Ombudsman against some regulatory devices the military has stated that: [7] While the guarantee of independence, in general, protects against judge influences outside, the principle of impartiality, closely linked to the principle of functional independence "is linked to certain requirements within the process, defined as independence of the judge against the parties and the subject of the process itself, can be understood in two senses:
to ) Impartiality subjective relation to some kind of commitment that the judge might have with the case.
b) Impartiality objective, referring to the negative influence it can have on the court system structure, less fairness, that is, if the system does not provide sufficient guarantees to dispel any reasonable doubt. Similarly
our TC is pronounced in the sentence passed in File No. 004-2006-PI/TC. FJ No. 20 and Order No. 04675-2007-PHC/TC- Lima, resolution to which is added an additional argument (FJ. No. 6) removed the case Pabla Ky vs. Finland (decided by the European Court of Human Rights) related to the objective dimension of judicial impartiality, noting that should be considered apart from the conduct of the judges, facts that may raise doubts about their impartiality.
The right to trial by an impartial judge is a judicial guarantees recognized by the numeral 1 of article 8 of the American Convention on Human Rights also an essential element of due process referred to in paragraph 3 of Article 139 of our Constitution.
As can be seen, the idea of \u200b\u200ba fair trial is linked to the principle of separation of elementary functions and neutrality with which the judge must proceed in the composition of the suit, which means that the judge to maintain impartiality is obliged to refrain from intervening in the process informally about issues of evidence.
The legal system provides for an institute that could be used to dilute any hint of bias: the challenge, but note that it operates in specific cases occur each governing legislation does not protect NCPP the disqualification of the judge's official actions of a form of evidence. In this regard it states: "the recognition of fairness as a fundamental right enshrined in the Constitution has been through two pathways, one abstention and one recusal, and recognizing the fairness as a constitutional requirement" [8] .
On the other hand there are those who believe that judges should enact trade tests to ascertain the truth of the facts and noted that "... it is hard to conceive the process as fair, if the sentence is not built on truth (...) Order office is testing a psychological need that arises when you have a knowledge gap " [9] .
However, bear in mind that the process is not necessarily a means to discover the truth because it "real truth (which is in the facts, objectivity, sought) - often do not coincide with the truth arrival by the court proceedings (provided by the evidence, given by the certainty, which is in the courts). Roxin states that "the clarification of offenses not subject to any limit would involve the danger of destroying many collective and individual values. Therefore, the ascertainment of truth is an absolute value in criminal proceedings, Rather, the criminal proceedings themselves are imbued with ethical and legal hierarchy of our State " [10] , these hierarchies are embodied in the principles and our constitution guarantees that collect, including due process.
V. - Conclusions
1) Some items total NCPP bear no principled consistency with the adversarial system.
2) For the sake of seeking the truth can not conceive the office to order the test because the purpose of the process is the solution of a conflict, which in some cases, may terminate or conclude early, diluted in these cases the ascertainment of truth, prioritizing the resolution of the litigation.
3) should be avoided interference of the judge in terms of evidence, in order to avoid failure or aggravated benefit of the accused, and so discredit the actions of the judge as an impartial third party.
4) The search for truth at any price should be banned from any legal system as it could be used as a means of revenge against excessive and arbitrary use of the test automatically.
5) The test decree violates trade rules that ensure due process to determine that their actions would affect their impartiality and respect for the right to legal equality to hold the principles and duties as judge inherent in their function.
* Advocate
[1] News of the above can be seen at the following locations (view the 30.MAR.2009 ) http://www.minjus.gob.pe/cpp/noticias_libertad.html
http://www.mpfn.gob.pe/ncpp/files/52d9f0_Informe% 20Anual% 20Huaura2.pdf
[2] Montero Aroca, Juan. "Accusatory principle in criminal trial." In: Gómez Colomer, Juan Luis (coordinator). "Proof and Process Criminal. "Tirant lo blanch, Valencia, 2008, p.22.
[3] http://buscon.rae.es/draeI/SrvltConsulta?TIPO_BUS=3&LEMA=imparcialidad (seen 10/8/2009)
[4] VELLOSO ALVARADO, Adolfo. "Due process versus evidence ex officio." Editorial Themis, Bogota, 2004, p. 146.
[5] MAIER, July. Criminal Procedural Law. IT Editores del Puerto, Buenos Aires, 2004, p. 742.
[6] Ferrajoli, Luigi. "Law and Reason, Theory of penal guarantee", ED. Trotta, Madrid, 1989, pg.
567 [7] STC relapse File No. 0023-2003-AI/TC. FJ. 34
[8] CABIALE DÍAZ, José Antonio. Early input from and accusatory: The impartiality of the judge. Editorial Comares, Granada, 1996, p.429.
[9] Parra Quijano, Jairo. Rationality and ideology of the tests automatically. In: Reading Material National Criminal Jurisdictional plenary, held in Lima, 20 and June 21, 2008, p. 301.
[10] Roxin, Claux. "Criminal procedural law." Editores del Puerto, Buenos Aires, 200 p. 191.
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