Procedural aspects of the criminal acquittal due to the non-existence of the crime and the lack of participation of the accused: Critical review of the court´s prerogative and the jurisprudential standard to assess it

Abstract

The jurisprudence of the courts with criminal jurisdiction in Chile shows a tendency to exceed their powers when appreciating a request for criminal acquittal for the reasons of non-existence of the crime or lack of participation of the accused, and to apply an extremely demanding standard when granting it. In short, jurisprudence shows a reluctance to definitively dismiss the case even if there is an agreement between the prosecution and prosecutors, with the judge assuming an accusing role that is inconsistent with the design of the criminal prosecution system. Likewise, a conviction of innocence or non-existence of the crime is required beyond all reasonable doubt and that the investigation is absolutely terminated, which voids the guarantee of the presumption of innocence. In this work it is proposed, as a solution to the first problem, that the court should not refuse to dismiss any case if there is an agreement between the parties involved. Regarding the second, that the standard for dismissing a case under the hypotheses of letters a) and b) of article 250 should be the preponderance of the evidence.