Judicial Initiative in Criminal Procedure: CPP Articles 728 and 729

Proof Agreed Ex Officio: Judicial Discretion in Criminal Procedure

The Adversarial Principle (Article 728 CPP)

According to Article 728 of the Code of Criminal Procedure (CPP), no evidence may be presented other than that proposed by the parties or witnesses examined as those covered in the lists submitted. This adherence is maintained under the principle of formality.

Exception to the Rule: Court-Ordered Evidence (Article 729 CPP)

Save as otherwise provided in Article 729 of the CPP, the Court is allowed to practice evidence not proposed by any party, provided that the Court considers it necessary for the testing of any facts that are the subject of the written qualifying.

Challenges to Impartiality

The entry into force of this article presents a challenging environment regarding the principle of impartiality. To the extent that the court substitutes the position of the parties and supplies omissions or deficiencies, it could potentially become a prosecutor or defender, depending on whether the evidence automatically agreed upon is for charge or discharge.

Constitutional Court Rulings

There are several decisions of the Constitutional Court claiming that the initiative attributed to the Court by Article 729 can be considered as proof of evidence. Its purpose is not to prove facts favorable or unfavorable, but rather to verify their existence in the process. Therefore, this practice can be considered friendly to the adversarial principle, which places the burden of proof on the accusation.

Conditions for Court-Agreed Evidence

The power conferred by Article 729 allows the court to practice tests provided two conditions are met:

1. That the Court considers the evidence necessary for the determination of facts.
2. That the evidence relates to facts that have been introduced in the process by the parties in their written qualifying.

Related Judicial Powers (Article 708.2 CPP)

The power conferred by Article 708.2 CPP allows the judge to order witnesses to clarify certain facts relevant to their declaration. This serves as a means to recruit and qualify the statements of witnesses proposed by the parties.

Procedural Timing and Guarantees

The procedural time to order the practice of evidence under Article 729 will be during the trial. In its practice, the parties will be granted an opportunity to intervene, ensuring compliance with the principle of contradiction in any case.