This article, brief and concise, begins a series of subsequent articles on the subject of evidence in the Guatemalan criminal process; The purpose of these articles will be to clear up doubts about fundamental concepts related to circumstantial evidence and its progress within the Guatemalan criminal process until the moment when the judicial authority, when passing sentence, carries out the intellectual process of inference between what is known (evidence) and what is unknown (criminal liability of a natural person) based on the rules of logic, accumulated experience and scientific evidence, which constitutes the process of rationalization and substantiation required by law for any criminal sentence, whether it is a conviction or acquittal. As progress is made in other articles prepared for this purpose, we will inform on the characteristics that an indication must meet in order to be accepted as an introductory act to an eventual criminal investigation process (criminal complaint or criminal complaint) without prejudice to start with the process of doubt about the commission or not of a criminal act, the belief for an eventual call for a first statement as well as the probability or not on the participation in the same (intermediate stage and debate) and the certainty or not that the subject under investigation and eventually accused has committed the action criminally reproachable (sentence).
When dealing with purely conceptual issues, it is important to consider that it is common for professionals in the field of criminal law to try to prove their arguments and support their positions through different means of conviction, which are indistinctly referred to as indicia, evidence or simply means of proof, but the following questions arise: is this denomination correct, is it appropriate to use these three terms as synonyms, if there is a distinction between them, what is the correct procedural moment to use each one of them, and if there is a distinction between them, what is the correct procedural moment to use each one of them?
In this article we will try to differentiate between these terms, as well as the correct use of them, according to the different stages of the Guatemalan criminal process.
To begin with, it is important to clarify that there is no legal definition of each of these terms in our criminal procedural law; What does exist in our procedural legislation is that there is “freedom of evidence” as well as that within the process of evaluation of the evidence that is provided, an analysis must be made based on the rules of logic, accumulated experience and rules of psychology (see articles 186 and 385 of the Code of Criminal Procedure), for this reason it becomes indispensable to resort to other means to obtain a clear and precise definition of what is an indication as a means of proof, evidence and sufficient proof to convict or acquit a natural person subjected to criminal proceedings.
Derived from the different meanings that for various authors have the mentioned terms and to start from a certain basis with legal effects, this article is based, for conceptual purposes, in what for the effect provides in Articles 10 and 11 of the Law of the Judiciary, which relate to the need to integrate the concepts with the Dictionary of the Royal Spanish Academy when its definition is not given by law, which is applicable to the concepts of indication, evidence and proof that are not expressly defined by the latter.
In this order of ideas and in order to keep a logical order, it is prudent to start with the concept of indication according to the definition provided in the Dictionary of the Royal Spanish Academy, in harmony with the definition provided by the jurist Hernando Devis Echendia.
Following this methodology “it is valid to state that an indication is an element, phenomenon or any circumstance that is known and that the same will be used or employed to infer through the rules of logic, accumulated experience and rules of psychology, the existence of a circumstance that is unknown and that will serve to evidence the responsibility or not of a natural person in the commission of a criminal act”.
Under this definition, it is understood that the circumstance is a source of evidence. This circumstance, by way of example, is evidenced in the Guatemalan Code of Criminal Procedure, which, in its article 308, states that prosecutors who require judicial authorization to carry out a proceeding must explain the evidence on which their request is based. For example, in the case of requesting authorization to conduct a search of a property, the proceeding must be requested by explaining the circumstances that in the opinion of the prosecutor’s office allow to deduce that, within the property, there are elements that could be useful for the investigation. This belief must be based on indications that are proven by themselves and that eventually point out a route to follow in the investigation process. The circumstances that the prosecutor exposes to support his request are the facts known to him, which constitute evidence.
Now, in relation to the term evidence, the Dictionary of the Royal Spanish Academy defines it as that clear and manifest certainty which cannot be doubted. For some authors in the field of criminalistics, this attribute of “certainty” is acquired when the element of conviction (evidence) has been subjected to scientific tests, rules of logic or accumulated experience by means of which it is possible to demonstrate its connection with the investigated fact.
The Guatemalan Code of Criminal Procedure uses the term “evidence” at the time of developing the special procedure of acceptance of charges, contained in Title VI of Book IV of the referred law, and is clear in establishing as evidence, those means of conviction that the Public Prosecutor’s Office has, prior to the beginning of the “Debate” stage. Under this circumstance, it is valid to affirm that, prior to the debate stage, the elements on which the Public Prosecutor’s Office sustains its position are called evidence.
In relation to evidence, there are several theories, the first of which is supported by Dr. Guillermo Cabanellas, who defines it as a means through which one seeks to demonstrate the truth of an assertion or the reality of a fact. Specifically within the criminal process, proof is distinguished from evidence, given its admission by a jurisdictional body, such is the case of the evidence for the incidents contained in Article 150 Bis and the evidence that is taken during the debate in the oral and public trial, contained in Article 347, both of the Code of Criminal Procedure. For others, the evidence is generated in the intellectual analysis of the judge expressed in the sentence, specifically in the integral analysis of the different evidences provided within the debate, making a process of intellectual inference that serves as a basis to convict or acquit the accused and always based on rules of logic, accumulated experience, rules of psychology and eventually on scientific analysis of the evidence provided.
By virtue of the above, it could be confirmed that the indication and the evidence are previous stages of the proof, which for some constitutes the means that will be used by the procedural subjects to accredit their affirmations before the corresponding jurisdictional organ, who through the reasoned sound criticism, will value the same and will issue the resolution that corresponds in law. For others, the evidence is generated in the intellectual process of inferences made by the judge at the time of sentencing and which are based on known facts to arrive at an unknown fact (criminal responsibility or not of the subject of the criminal proceeding).