En el presente post trataremos de exponer argumentos a favor de la vigencia del principio iura novit curia, pero queremos hacer la salvedad de que ello no implica que compartamos los argumentos que a continuación se exponen.
REGULACIÓN LEGAL. ORIGEN
El artículo 401 del CPPN autoriza al tribunal a dar al hecho una calificación jurídica distinta a la contenida en la acusación, aunque deba aplicar penas más graves.
Esta potestad de definir jurídicamente, de otorgarle un marco o encasillamiento legal a los hechos, tiene basamento en el principio conocido como iura novit curia . El origen del aphorism can be found in the fourteenth century when a judge legal disquisitions fatigued by his lawyer, interrupted him, exclaiming "Venite ad Facttum, Curia novit ius" (bring the facts, the court knows the law).
LIMIT TO TOP
The application of this aphorism is a limit to the matching principle procedure providing for the necessary correlation that should exist between the prosecution and sentencing, ie, the sentence can not extend or restrict the factual presented by the accuser, that to be respected in particular the right of defense.
The main obstacle emerges able to distinguish when we are dealing with a mere change of legal qualification (applying the rule iura novit curia) or a change of factual circumstances (impairment of the principles of congruence). Trying to doctrine to make this difference and the focus is on the involvement of the right of defense of the accused concerned about quoting Mariconde Manzini Vélez "... we must take as a guideline for distinguishing the principle underlying the injunction of the charge , which is to secure the accused the opportunity to defend the fullness of their powers with respect to any matter relevant to the complaint, as to exclude any surprise. "
Consequently, we could provide that to the extent that the accused is not deprived of his defense, the rule iura novit curia is in full force.
ARGUMENTS ABOUT to sustain the validity of the principle jura novit curia
iura novit
The curia is an undeniable power of the magistrate , for among the powers that can exercise the judicial body is the principle iura novit the curia, a rule that establishes the authority and duty of the judge's reason and resolve contentious disputes under existing law, calling independently the factual reality and subsumed under the rules that govern it, with irrespective of the grounds or legal grounds states the parties. Is that in the application and interpretation of the rules, judges have the exclusive power of using the right regardless of the legal framework that gives the event the holder of the prosecution, so they can amend the law to consider and rule invoked evil about the applicable law, no other ties to the legislation itself.
Is that the right to the iura novit curia gives judges: select the set of regulatory repertoire found more in line with the reality that present the case and apply it freely, as it is empowered to legally bind the conduct under to view differently than it did the accuser.
THE OPINION OF APPROVED DOCTRINE
So Clariá Olmedo wrote that "the rule of consistency or relationship, with its strict meaning in the criminal proceeding refers only to the factual, proving to be a coincidence or indispensability of convenience between the course of the alleged act and the factual content of the decision, and legal aspects that govern fully the principle jura novit curia. Rubianes
explained it in similar terms, saying that "the judge is free to choose which law applies believed, according to his knowledge and belief. This is how the aphorism iura novit curia, which means that the right knows the judge. " Similarly
pronounce Mariconde Vélez, saying that the ability to give different ratings to the fact not a violation of the right of defense.
Also, Creus states that "the principle of conguencia refers to" facts "not its legal classification."
Magariños limits of the charges to the charges and places the constitutional basis the principle in the art. CN 116, which provides for the courts to hear and decide which deal with matters governed by the Constitution and laws of the Nation. That is, the duration of iura novit curia arises from the essence of judicial activity.
JURISPRUDENCE
Venturini, Omar c / ANSeS s / performance groups.
"The principle iuria novit curia empowers the judge to devise litigation and settle disputes under existing law, describing the factual reality and subsumed under the rules govern regardless of the legal arguments invoking the parties. "
Majority: Lorenzetti, Highton de Nolasco, Petracchi, Maqueda, Zaffaroni, Argibay.
V. 49. XXXIX, ROR 05/06/2007
Peralta, Joaquin Alberto c / Federal Public Revenue Administration - Internal Revenue Service.
"is unique to the legally qualified judges the claims of the litigants, a power which derives from the rule iura novit curia, the exercise does not involve a constitutional tort. No matter
violation of the principle of congruence of the judicial activity which subsumes the proper legal rule deduction claim. "-From the opinion of the Attorney General, which referred the Supreme Court.
Majority: Petracchi, Highton de Nolasco, Fayt, Maqueda, Zaffaroni.Voto: Lorenzetti, Argibay. P.
1498. XXXIX. RHE;
23/05/2006T. 329, P.
1787 National Chamber of Criminal Appeals, Room III • 20/12/2001 • Bracco, Sergio and another LAW • 2002-D, 958 • AR/JUR/2865/2001
"The violation of the principle of congruence manifested in the absence of factual identity between the act for which the defendant is convicted and the sentence in the indictment intifada, but excludes such a requirement on the legal aspect, since the consistency is not enough for certification or qualification charged with the incident, as the court of merit has complete freedom to choose the rule that applies to this case and under the principle "jura novit curia."
National Criminal Cassation Chamber, Room III • 13/07/2000 • Peralta, M. Hilario LAW • 2000-F, 928 •
AR/JUR/2593/2000 "The principle of consistency does not reach the title or legal description of the alleged act, as the court of merit is free to choose the rule that applies to case under the principle "jura novit curia."
Court of Appeals in Criminal and Correctional Room I • 27/05/1993 • Merssilian, Juan C. LAW • 1993-C, 397 - DJ 1993-2, 740 •
"The judge may, in the sentence, to depart from the framework of criminal law made by the Prosecutor, basing it on facts that were the subject of the story because from this and discussion by the defense and trial, without affecting any rights of the accused, since, by applying the principle "jura novit curia, the parties concerned of the facts and the judges of the law, which exercise and their inalienable right to issue legal unfettered trial. "
National Chamber of Appeals Criminal and Correctional V room • 14/09/1982 • Barrios Vargas, Tiburcio LAW • 1983-A, 222 •
AR/JUR/728/1982 "If there was charge for robbery, the judge may sentence for theft, because the latter offense in its pure factual dimension is basically framed in what amounts to that other figure, but instead the reverse situation would be questionable whether making the robbery, theft by force, violence or intimidation, was not included in the description of the fact making the requisition. "
Supreme Court's Office • 22/12/2008 • Alsogaray, Mary Julia • DJ 11/02/2009, 288 - •
AR/JUR/16793/2008 "not applicable the grievance referred to the involvement of the principles of consistency and iudex Procedatos ne ex officio to the different interpretation of the criminal offense of illicit enrichment, art. 268 (2), Zip. Criminal-made in the argument of the prosecutor and the federal court ruling orally, if the discrepancy was unable to engage, because one hand was the result of a high iura novit curia, and on the other, a majority vote of the fault respect the facts that were the subject of the charge led by the Public Ministry, with the limitation on factual grounds to which around his waist in the final stage of debate, one of which was not included in the conviction considered justified (the opinion of the Attorney General that the Court endorses). "
CONCLUSION According to the position the authors we have cited, we conclude in the two following statements:
- The matching principle refers only to the factual platform and prevents the court takes into consideration facts on which there is no contradiction mediated. The correlation only relates to the alleged act, as it is on this historic event that the accused has a right to defend itself
- According to the principle jura novit curia, is the judge who has the power to apply the law in force, to the best of my knowledge, the platform can readjust legally condemning a different way as asked the owner of the prosecution to be based exclusively on the members of the judiciary's resolution of conflicts under the existing law. The eligibility derive affect the legal status of understanding that, while factual platform remains unchanged, the accused had opportunities to exercise properly his defense and could not have been surprised.
CARDOSO, Carolina
DIMAGGIO, Georgina
PARABONI, Romina
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