Bill 44.

Summary.

The bill proposes a new wording for Article 389 of the Criminal Code (Código Penal). The provision first addresses counsel who, through an agreement with the opposing party or another fraudulent means, harms a case entrusted to them. It also covers counsel who serves parties with opposing interests in the same case. For those acts, the article provides for imprisonment of four to six years. If the offender is counsel for the accused in criminal proceedings, it provides that the penalty be increased by up to one half.

The proposed amendment then extends commission of the offense to a judge or prosecutor under four groups of conduct. The first covers knowingly disregarding or failing to apply a rule that favors one of the parties. It also covers giving a clear rule a meaning or application different from what it prescribes, or departing from the court's consistent case law under the terms of the proposed provision. This group concerns the application of legal rules and case law in a case involving the parties affected by the decision.

The second group concerns the reasons given for a judge's or prosecutor's decisions. It includes decisions that give no reasons and decisions whose stated reasons are manifestly contrary to the available indications or evidence. It also covers citing false or nonexistent evidence or facts in the case. The third group covers denying or failing to take requested evidence when a law grants a party the right to that evidence. The proposal therefore brings both the stated grounds for decisions and the handling of evidence requested by a party within the conduct described in Article 389.

The fourth group covers action motivated by an order from a superior, by a desire to justify one's salary, or by the receipt of improper consideration. It also covers arbitrary action intended to harm one of the parties. Article 1 places these circumstances in the proposed wording of Article 389 alongside the acts attributed to counsel, the term of imprisonment, and the increase applicable when the offender is counsel for the accused in criminal proceedings. The listed circumstances concern how judges and prosecutors apply rules, decide matters, address evidence, and act toward the parties in a case.

Article 2 expressly states that the bill amends Article 389 of the Criminal Code. Article 3 provides that the proposed law would enter into force upon its promulgation. By subject matter, the proposal concerns judges and prosecutors involved in cases, the judicial and prosecutorial bodies in which they serve, counsel and defenders of accused persons, and parties to criminal proceedings and other cases in which decisions are made or evidence is requested.