The bill that the PSOE has called “guarantee and protection of fundamental rights against harassment derived from abusive judicial actions” represents a reform of popular action of such significance that it will prevent not only political parties, associations or foundations from promoting procedures judicial when there is no private accusation and the Prosecutor’s Office also does not accuse, but groups that bring together judges or prosecutors cannot do so either. The law, which is activated in the midst of a crisis of credibility of the Public Ministry, with the attorney general charged in the Supreme Court, would affect “all ongoing procedures” since its entry into force, which would have a full impact on cases like Begoña’s. Gomez. Invoking the image of impartiality of the Judiciary, the text not only establishes as a cause for recusal the political position of a judge, something that today is already the subject of disciplinary proceedings and operates normally in the courts when the position of that judge affects the lawsuit in question, but rather directly muzzles the togados, preventing them from public demonstrations that censure or express their agreement or disagreement with laws, something that is usually done in events, conferences and publications of an academic nature. The bill takes the opportunity to directly suppress the crime of offending religious feelings by considering that freedom of expression “also covers ideas that offend, shock or disturb. “People who profess a religion cannot reasonably expect exemption from all criticism, but must tolerate and accept others publicly rejecting their beliefs.” These are the keys to this reform that now has to pass the parliamentary process: Its explanatory statement is based on the fact that there is an “abusive use” of the popular accusation, “which is used by certain groups not for the purpose of clarifying possible criminal acts.” , but to systematically attack non-affiliated social sectors and political adversaries, through criminal proceedings in which their rights to honor and effective judicial protection are constantly violated and leaks of the content of the instruction occur. In this sense, he advocates “neutralizing” what he calls “harassment mechanisms.” The Constitution as a limit The bill modifies articles 101 to 104 and introduces article 104 bis of Title IV of Book I of the Criminal Procedure Law to ” “modulate” the exercise of popular action in accordance with the constitutional mandate, “overcoming the insufficient nineteenth-century regulation contained in the current procedural law.” Aware that it is the Constitution that articulates the exercise of popular action and that, without the reform of the Magna Carta, it is impossible to suppress it, »therefore, a system must be arbitrated that adequately combines two approaches«: the citizen participation and the legitimate exercise of this action which, as the text recognizes, can serve as a counterweight »against a specific action by the Public Prosecutor’s Office that may be controversial«.Political parties and associations, outside of what is justified in «reasons of minimal institutional coherence”, the proposal excludes, in addition to minors and those convicted in a final sentence, legal persons or public entities, political parties and associations and foundations linked to them, “to prevent the risk of instrumentalization of the process that arises from their active intervention in the political debate. The reform restricts the exercise of criminal action to “those crimes that deserve special reproach or that, due to their social impact, are suitable for citizens to defend a vision of criminal legality that is alternative to the of the Ministry Prosecutor, as may be the case of infractions that protect diffuse interests or crimes of political corruption, as the most representative examples. A “relevant” link The text leaves it in the hands of the judge to determine whether the popular accusation “presents a specific link , relevant and sufficient with the public interest that is intended to be defended in the process.” Establishes that the judge competent to initiate the criminal process “must administer the rules of imputation in a responsible and reasonable manner, not subjecting any person to said process if there is no cause for it and not maintaining the imputation if the causes or reasons that led to it disappear. they justified«. Here it frames the need to »reject accusations that contain traces of intolerable genericity, that are based on normative judgments of inconsistent typicality or on implausible justiciable facts«.Without a prosecutor or private accusation, there is no case«When no accusation is made by the Public Prosecutor’s Office or by the private accusation, the criminal process will be archived, and it cannot continue only with the accusation formulated by the popular accusation, except for crimes in which an exclusively public interest occurs. press The proposition obliges the judge to reject the complaint in a reasoned resolution when the complaint is based “on mere hypotheses without a minimum foundation of credibility, or on journalistic information or information contained in any media or channel of communication or dissemination without other data or factual elements.” that serve to indirectly prove the reported facts. Exceptionally, they will be admitted, it continues, “when they reflect unverified facts, but of general knowledge or statements made freely and spontaneously by the suspected person in relation to the object of the investigation, or statements by personalities or political organizations that have not been denied. nor questioned in the process.”No access during the investigation phaseThe popular accuser will not have access to the judicial procedure nor will he be allowed to carry out any action during the investigation phase. This is stated in article 277 bis, which prohibits any movement related to the request for proceedings or participation in statements by the accused or testimonies in the case, to which he will not have access in order, among others, to avoid leaks. Thus, the popular prosecution “will only be able to fully intervene in the process once the investigation is concluded and only in the event that the judge considers that the facts are indicatively criminal.” This decision argues that this figure was conceived to operate as a counterweight to the Public Prosecutor’s Office, “so its full intervention in this phase is not justified, as the investigating judge enjoys broad powers to investigate.” Only the Public Prosecutor’s Office, the person offended and harmed by the crime (private accusation) and the person under investigation will be aware of the development of the investigation. Gag on judges A cause for abstention and, where appropriate, recusal is added that goes beyond the specific lawsuit that affects that magistrate: that of “having publicly stated, invoking his or her status as a judge or magistrate, or using this status , censorship, agreement or disagreement with actions carried out by authorities or public officials, political parties, unions, associations or other entities, public or private, that are part of the procedure or addressing them for the same purpose privately or “participate in acts or concentrations with the same purpose, compromising their independence or image of impartiality.”
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