Protection, limitation and violation of the exercise of fundamental rights in criminal presecution

Abstract

The present investigation is of hermeneutic and doctrinal character, starting from the norm and crossing the principles and values that give sense to the fundamental rights as teleology’s purpose, and the distintive character of the norm and the doctrine as the must be of the norm. To this end, it is argued that the State retains the monopoly of administering criminal justice, and the criminal process becomes an appropriate scenario to achieve this task, regardless of the decision by which finiquite. The exercise of the state’s “ius puniendi” revolves around the exercise of fundamental rights, mainly of the indicted, accused, accused or convicted, from three alternatives. The first, the protection of the exercise of fundamental rights as an obligation of the State, against limitation or violation. The second, the limitation of the exercise of fundamental rights, provided that the conditions and constitutional and legal requirements are observed. The third, the violation of the exercise of fundamental rights when there is arbitrary and illegal interference, which neutralizes its exercise. Faced with the violation of the exercise of fundamental rights, in criminal proceedings, several mechanisms are activated, depending on each case and type of violation, whose consequence is the procedural sanction from different points of view and, consequently, the restoration and enjoyment of of the exercise of the fundamental right violated. Taking into account the above, the article shows that in the investigation, trial and criminal execution, and in the intervention of the Prosecutor, defense and victim have limits: respect for the exercise of fundamental rights.