Igualdad de armas en el procedimiento directo: transformación de diligencias como reforma al COIP

Abstract

Article 640 of the Comprehensive Organic Penal Code (COIP, by its acronym in Spanish) establishes a twenty-day deadline between the determination of flagrancy and the trial hearing. However, the announcement of evidence must be done up to three days prior, leaving a seventeen-day timeframe for the submission of evidence, without allowing exceptions when the case depends on a complex expert appraisal. This study analyzes whether such rigidity impacts equality of arms employing a qualitative approach with an explanatory and policy-proposing scope. Data and source triangulation is used, complemented by comparative law and the sub-principle of necessity of the proportionality test. The findings reveal an evidentiary inequality between the prosecution and the defense. The state forensic service itself admits that its complex analysis units do not issue reports during flagrancy proceedings. In a case external to the corpus, not even the Prosecution, with the full state apparatus at its disposal, managed to obtain the expert appraisal within the allotted time. The conceptual contribution of this work is the category of institutionalized defenselessness, conceived as the infringement of the right to defense stemming from the rigidity of the statutory design. A proposal is made to add a clause to Article 640 allowing for a conversion to ordinary proceedings upon the request of either party when expert evidence cannot be completed within the deadline.