A Criminal motion Is a procedure carried out by the judicial organs, judge or tribunal of criminal matters of different jurisdiction but of its same hierarchy, in order to collaborate procedurally to obtain, through the collaboration of the exhortado, the performance of certain acts related to the process that is held.
The requirement is that they must be carried out outside their constituency (or area / location of exercise) in which they perform their functions.
Basically, a judicial body in use of its functions, requests assistance to another so that through this"judicial aid"can be carried out some legal action necessary for the continuation of the litigation by the judge who sent the warrant.
It must include a brief to request that they perform certain acts or steps and may also be carried out in or outside the country where the procedure is being carried out.
They are very similar to"trades". The difference is that in the case of the exhorts, it is required that the judge who receives it make the request that the exhorting judge is delegating, while in the office the procedure is performed by the judge who sent it.
It is usually done to obtain testimonial or expert evidence.
Classification of Criminal Exhortations
- News : When it is addressed to a judicial authority belonging to the same country.
- All rights reserved. : When it is addressed to a judicial authority belonging to a different country.
- Of mere procedural process : This type of exhort is carried out when the exhortant only needs that the exhorted judiciary performs simple procedures like notifications, tests, expert reports.
- Implementation of provisional decisions of an equity nature : Only the execution of provisional decisions of patrimonial character with executive competence can be demanded.
Content of an Exhort
While it is true that any legal procedure varies a little depending on the country where it is carried out, the similar characteristics that must be contained in a criminal warrant and of any other type are:
- It specifies the designation of both courts, both the exhortant and the exhorted.
- Indicate the subject that causes the issuance of the warrant.
- Clarification of the different actions that the exhorted judge must carry out.
- If there is a term that must be complied with, it must be explicitly specified denoting the date on which it ends.
- If specific documents are required for the execution of the warrant, they will be expressly mentioned.
Requirements of international criminal letters
- The most important thing is to respect the supremacy of treaties, meeting the requirements previously stipulated by national legislation and international treaties.
- Comply with the requirements of form, necessary insertions, stamps, detailed information and other formalities.
- Legislated by the competent body and authorized to deal with such matters in the territory where they are.
- The deadlines must be met.
- They must be approved, transmitted diplomatically and legalized.
- Commit to diplomatic assistance if necessary.
- In case the exhorted judge determines that the documents sent do not meet the necessary requirements for processing, he is entitled to return it to its source specifying the grounds for rejection.
Referral of the Criminal Warrant
It depends on the special procedures of each country but will usually be sent in person by the exhorted body, unless there is some available computer means destined to this and always must be guaranteed the record of the reception.
Compliance of the parties
After the exhort has been sent and this act is recorded, the exhorted body will be responsible for carrying out all the necessary steps to carry out the requirements specified therein within the indicated period.
In the event that the exhorted judge (who received the warrant) does not comply with the duty to perform the proceedings under the terms and deadlines, the remitting judge has the right to make a request in the higher instance, placing the order Case and demand sanctions on the judge for the damage caused by the lack of action on the case.
Return of the warrant
Once all the required requirements are completed, the judicial body must send the exhorting judge the results of the same through the channels designated for this procedure. For example: the judicial computer system or any other that is able to guarantee the record of receipt.
Disadvantages that can be presented at the time of an Exhort
Taking into account that the procedure will be carried out by someone else and not the judge primarily in charge, several inconveniences may occur, rather than all related to testimonial evidence or expert opinion.
As the questions must be in writing and subsequently must be approved by the Judge, the following drawbacks arise:
- It is not possible to control the direction of the answers, especially in the case of obtaining the expected response, do not show anything or that it is very generic without foundation or base.
- The case can be presented that the question is not fully understood and as they are already established, it is not possible to reformulate them.
- There is no right to reply, there may be the need to ask new questions after obtaining the answers of the witness or expert, but it will not be possible to do so because they were already predetermined.
Other means of judicial communication in criminal matters and difference between them
There is the coexistence of several means of communication between judicial bodies, courts and jurisdictions. Some of them are: exhort, office or commandment (letter - order) and letter rogatory or request.
The difference is that the warrant is a communication by means of which the judge requests another judge of the same hierarchy but different jurisdiction that fulfills a certain diligence that can only be carried out in that jurisdiction; The dispatch is a communication between a court of hierarchy greater than one of lower hierarchy and the letter rogatoria (petition) is a means of communication between a court of hierarchy less than a higher hierarchy.
References
- Resendiz, José. "Exhortations in the criminal area". Taken from derechointerpriv607.blogspot.com.
- Sancho Durán, Javier. "Notification, siting, summons, request, mandate, office and letters". Taken from javiersancho.es.