On the subject of reformalization of the investigation: from lawlessness to normative recognition

Abstract

The aim of this paper is to examine the initial hearing on the criminal case, as an essential and determining act to establish the facts that will underpin the accusation and all the subsequent stages of the procedure. Likewise, it is introduced the concept of "reformalización" [requalify the case presented at the initial hearing on the criminal case], legal institution recently created by Code of Criminal Procedure amendment, whereby the Chilean District Attorney modifies, complements, or clarifies the initial charges presented at the Initial hearing on the criminal case. This practice, which did not have legal recognition, was validated by the Chilean District Attorney for many years, and national jurisprudence was ambivalent in its acceptance. Even though it raises questions regardless its conformity with the right to be informed, the congruence principle and the principle of legality, all of which translate into a direct affectation of the defendant's right to an effective defense, by compromising his fundamental procedural guarantees. Notwithstanding the above, the research demonstrates that the affectation of rights may also affect the plaintiff.