IMPLICATIONS OF AN UNDUE APLICATION OF THE NEW IMmEDIATE PROCEDURE AS A CONSEQUENCE OF A WRONG APRECIATION OF FLAGRANT: REGARDING THE “CASACIÓN NUMBER 804-2016 SULLANA”

Abstract

The author analyzes a case in which a suspect of the crime of rape of a person under seven years of age (article 173, 1, of the Peruvian Penal Code) was arrested "in flagrante delicto" by the police, without being present the legal requirements of the state of flagrance. The suspect was prosecuted by the Public Prosecution Office for the said crime and, because of the alleged flagrante delicto, submitted to the so-called "immediate process", a special procedure in which the fundamental guarantees of criminal proceedings are restricted in favor of speed. The accused was sentenced to life imprisonment at first instance. The conviction was upheld at second instance. The accused then appealed to the Peruvian Supreme Court. The court ruled that, as there was no flagrante delicto, the accused should be subject to the common procedure rather than the "immediate process". However, the court based his immediate release on the excess of the prison term. The author understands that although the decision of the Supreme Court is in accordance with the Constitution and the Peruvian law, it is illegitimate, since the release of the accused should have been based on the very absence of flagrante delicto. The author proposes training and awareness raising on issues of administration of justice, that priority should be given to the legitimacy of judicial decisions to the detriment of speed, and that the legal basis of judicial decisions should also be addressed in the light of conventionality and multidisciplinarity.

Keywords

• immediate process
• flagrant
• legitimacy of judicial decisions
• conventionality
• multidisciplinarity.