La falta de comparecencia a las audiencias y la imposibilidad de poder justificar la inasistencia, ocasiona una posible vulneración al Derecho de la Legítima Defensa

Abstract

This paper addresses the issue of the violation of the right to defense, owing to the failure of the defendant to appear at the hearing. The General Organic Code of Proceedings (COGEP, in Spanish) that came into force as of May 2016; provided for the oral procedure in all proceedings, and provided that the defendant appears and presents the answer to the claim orally, as well as the entry of evidence and pleadings. In addition to being able to make effective the right to cross-examination, all these legal acts are performed in harmony with the constitutional principles and the presence of the judge; with the particularity that in case of absence of the defendant at the hearing, he loses his legal opportunity to assert his rights, without considering that the absence of the defendant may be due to force majeure or fortuitous event. In this respect, the present investigation has allowed us to establish the violation of the right to defense when the defendant does not appear at the hearing due to force majeure or fortuitous event and is not allowed to justify his absence. Thus, it is recommended to reform or add a paragraph to paragraph 2 of Article 87 of the COGEP, in the sense that in the absence of the defendant, he is granted 72 hours to justify his absence as long as it is due to force majeure or fortuitous event.