The complaint can be defined as a particular character where a legal action is exercised and as a result of it this becomes a criminal order process. The difference between a complaint and a complaint is that the complaint is part of the sole knowledge of the authorities and therefore an investigation is not carried out ; Otherwise, what would happen with the complaint where a procedure with investigation and trial is opened .
The complaint is any criminal process where a person not only mentions the punishable acts, but also offers to be part of the criminal process itself. It differs from the complaint in that it does not ask the complainant to involve himself, while in the complaint, yes.
- Definition of complaint
- How to make a complaint
- Deadline to present it
- How it differs from the complaint
- Complaints by country
Definition of complaint
When a person or group of people commits a reprehensible action that is against the provisions of the laws , the latter proceed against them in various ways. One of the best known forms in many countries of the Western world is the complaint . But what are we talking about when we talk about a complaint ?
It is all legal proceedings in which a “ complainant” (in this case, complainant ) proposes to join , that is, to be part of the criminal process . It is different from the complaint process , which we will talk about a little later. Next we will expose the details of this process.
In essence, we could distill the following characteristics from the complaint :
- In every complaint document, the name of the judge or court that will proceed with the case will be presented. These documents cannot be delivered without naming or mentioning to whom it will be presented.
- The name and data of the complainant , that is, of the person or group of people who decide to be involved in the criminal process.
- The name and data of the defendant , that is, of the person against whom the criminal process is directed.
- In case of knowing, everything related to the circumstantial relationship of the fact . That is, everything related to the year, month, day, time and place of the event in question.
- The statement or expression of all orders aimed at verifying the veracity of the facts in question must be included in the complaint .
- A petition is also included in which the request is expressed that the complaint be admitted , that the aforementioned procedures be followed and with the arrest of the alleged culprit or culprits that motivate the complaint.
- It ends with the signature of the complainant.
Depending on who or who carries it out, the complaint can be subdivided into two types that will be explained below:
- Public complaint : it is normally applied in cases of a specific action or popular crime . This type of complaint is commonly carried out by the Public Ministry .
- Private complaint : it is any complaint made by one person in particular , which has been affected in some way by the offense in question.
In essence, four elements could be rescued within any complaint process: the accusation , the defense , the evidence and the declared sentence .
How to make a complaint
To file a complaint , it is important to follow the steps outlined above in the characteristics of this criminal process. Below we will explain in a more practical style how each of these steps are carried out:
- It is necessary to identify the crime and the place of the events in question, since from these last two elements it will be possible to know, in theory, the success or failure of this criminal process.
- Once the place of the events has been determined , the court that should take over the case can be located (always bearing in mind that it is a criminal process based on territoriality).
- Once the court that should take the case has been determined, the so-called criminal complaint proceeds . In this case, it begins with the mention of the petition (be it the main one, or the accessory ones), the indication of before which entity or subject is filed and the description of the data of the complainant and the defendant (with respect to the latter, the crimes that are challenged are also mentioned). It must be remembered to support all petitions according to the existing articles in the penal code , in order to give it a framework of legality.
- Immediately afterwards, we proceed with the facts that motivate the complaint, always remembering to give them a legal framework . That is, in the complaint, mention must be made of the articles of law that justify the proceeding of criminal actions, in order to give the judge a context of actions that guide him in his future actions.
- Now proceed with the nomination of the petitions that you specifically want to make to the court, as well as the indication of competences , the request for proceedings before the responsible ministry, the attached documents and the form of notification of the process (example: email) .
- Finally, we proceed with the signature of the complaint.
Like any criminal proceeding , the complaint has a series of requirements :
- The complaint must be legitimized by the corresponding instances .
- The competences of the judge who will have knowledge of the complaint must be taken into account .
- In order to be admitted , the plaintiff must grant a Procurator a power of attorney so that it can proceed against the defendant.
- The complaint document must present all the data referring to the complainant and the accused .
- In some cases, always depending on the laws of the country where the events take place and the nature of the complainant, a bond must be provided . In relation to the latter, the economic capacities of the complainant will be taken into account .
- In the case of private injuries, one of the requirements is that the complainant submit a certificate of having held or attempted to hold an act of conciliation between the parties.
Deadline to present it
Depending on each country and its respective laws, it is estimated that the time or period designated for filing a complaint can start from one year , always taking into account the moment in which the events occurred.
How it differs from the complaint
Due to the similarity of the concepts and their objectives (both pursue the same purpose of carrying out a criminal proceeding for some fact that goes against the provisions of the law), there are important differences to take into account. Mainly, this is due to the fact that, while in the complaint the party responsible for making known about the punishable acts proposes to be part of the criminal process , in the complaints this is not a necessity . In the complaints , on the contrary, the person makes known to other entities orexisting public institutions of some fact that, by its own nature contrary to the laws , must be communicated.
Complaints by country
As it is a criminal process , it has been subject to the laws of the country of the day. Below we will present the characteristics of the complaint according to the following countries:
- Peru : in this country, after having met all the requirements set forth in the Penal Code, the following stages are followed: admissibility control (which is contemplated in Art. 460), Preliminary Investigation (Art. 462) and Hearing (Art. 462, Inc. 2, 3, 5).
- Colombia : in the criminal procedure code of this country, all the details contemplated by this country in relation to the complaint are contained in articles 70 to 76.
- Spain : in the Spanish case, the entire “criminal complaint” process is under the regulation of Title II of Book I of the Criminal Procedure Law, articles 270-281.
- Mexico : the Federal Penal Code establishes that the crimes that are grounds for complaint can be: robbery without violence (Art. 220), breach of trust (Art. 227), Freude (Art. 230), among others.
Below we will present, as an example, a model of complaint, always remembering that these may be subject to the laws of the country of origin:
“TO THE INSTRUCTION COURT
Mr. ………………., Attorney of the Courts, registered with the number …… .., and Mr. …………………., As I certify with the copy of the power of attorney that, sufficiently and by I accepted, I accompany, before the Court I appear and, as best appropriate in law , I SAY:
That following the instructions of my client, I file a complaint in exercise of the right recognized in arts. 270 and following of the Law of Criminal Procedure against Don… for the crime of…, to
In accordance with arts. 277 and concordant of the LECr, I state
FIRST.- The Investigating Court of this city is competent, which per turn of distribution corresponds by virtue of arts. 14 and 272 of the LECr, as the events occurred within its demarcation.
SECOND.- The plaintiff is Don —————-, of legal age, married to Mrs.…, by profession…, a neighbor of…, residing on the street… nº…
THIRD.- Is the defendant Mr. …, of legal age, married, by profession …, a neighbor of …, residing at …
FOURTH.- The detailed list of the facts is as follows:
The preceding facts are constitutive of the criminal type of … defined in art. … Of the Penal Code, of which the defendant is presumably guilty.
FIFTH.- This part is concerned with the practice of the following procedures to verify the facts:
- Defendant’s statement
- Documentary, assuming the documents that accompany the complaint have been reproduced.
For all this,
I REQUEST TO THE COURT: consider this writing as presented, admit it and, by formulating a complaint, order that the interested proceedings be carried out and take the precautionary measures that it deems appropriate on the personal situation and on the assets of the defendant … providing what it deems appropriate regarding its processing, detention and provisional imprisonment with the establishment of bail for his release in the amount of… pesetas, and another of ——- pesetas. to cover the corresponding civil responsibilities or, failing that, order the seizure of sufficient assets to cover said responsibilities.
OTHERS, I SAY: That in accordance with the provisions of art. 281.1 of the LECr, this part is exempt from providing a bond.
I REQUEST TO THE COURT: take for granted the statement that precedes the effects of law.
Place and date
Lawyer and Attorney “