Carp.

Fiscal 2010-318
WRITTEN 01
Summary NAME DEFENSE ATTORNEY and another

MR. PROSECUTOR OF THE SECOND EARLY DECISION OFFICE

FROM AREQUIPA.

HENRY MAURICIO NUÑEZ CONDORI, identified with I.D. No. 43408643,

in the process that is being followed against me for the Crime Against the Family (in the modality of

Subtraction of Minor), to the detriment of A. G. L., I say to you:

For the sake of my interests, for DEFENSE purposes in the present process,
I APPOINT DEFENSE ATTORNEY, the lawyer who signs this document.Dr.

WILFREDO ERNESTO BARRIONUEVO MESTASPOINTING out address

procedural, the one located at theMoral Street No. 118, Second Floor, Module
13(PUBLIC DEFENDER), Cercado, province and Department of
Arequipa, the place where future legal notifications will be sent.

FIRST OTHER: I request simple copies of the entire file.

FOR THE ABOVE REASONS:

I request you to proceed as I ask, as it is the law.

Arequipa, March 1, 2010

 Carp. Fiscal 2010-318
WRITTEN 01
SUMMARY PROTECTION OF RIGHTS

Mr. (Mrs.) Judge of Preliminary Investigation of Arequipa.

WILFREDO ERNESTO BARRIONUEVO MESTAS, sponsoring lawyer of

HENRY MAURICIO NUÑEZ CONDORI, in the Fiscal folder No. 2010-318
(preliminary research), I say to you:

I.- PETITION:
I FILE A PROTECTION OF RIGHTS, in order for the Representative of the Ministry
Public delivered simple copies of the statement of the investigated, since
the requirement for PAYMENT or any type of taxes is unconstitutional,
Everything is for strictly professional defense purposes.

II.- ACTIVE AND PASSIVE LEGITIMACY:

HENRY MAURICIO NUÑEZ CONDORI, duly represented by the undersigned and I ADDRESS
against the Deputy Prosecutor of the SECOND EARLY DECISION OFFICE, Dr.
MARITA CUEVA ESCOBEDO, residing at La Merced Street No. 400, Cercado, Province
and the Department of Arequipa.

III.- FACTUAL BASIS:

FIRST: As can be seen from the file, the Representative of the Public Prosecutor's Office does not
has not carried out any specific PROCEDURE after the 14 elements of conviction
that served as the basis for the REQUEST FOR PREVENTIVE DETENTION. None.

SECOND: Of the two alleged crimes in which the defendant would have participated, therefore
until before the present request there would have been a REAL CONTEST OF CRIMES, as of the date of

the AUDIENCE DEMONSTRATED that there is no such contest anymore, as the Representative himself
The Public Prosecutor's Office has assumed that in relation to the first crime of AGGRAVATED THEFT OF

THE VEHICLE has requested the DISMISSAL OF THE CASE, in that sense we are only already
IN THE FACE OF A GRAVATED THEFT CRIME, but in the degree of ATTEMPT.
THIRD: Consequently, in accordance with the penalty imposed for the crime of THEFT

AGGRAVATED IN THE DEGREE OF ATTEMPT, objectively a penalty below is expected

legal minimum, this is below 3 years. Position that distorts the judgment of
SUBJECTIVE VALUATION OF THE JUDGE, who even knowing that no action has been taken
any diligence during the 6 months of PREPARATORY INVESTIGATION, TAKES ON THE
The stance that this term has been used in the investigation of the other crime OF WHICH
TODAY THE PUBLIC PROSECUTOR'S OFFICE HAS REQUESTED A DISMISSAL.

FOURTH: It is worth mentioning that the AQUO HAS NOT RESOLVED the request for
extension, since THE BUDGET of said order has not been objectively demonstrated,
but it has been adapted by the Judge to an EXPANSION NEVER REQUESTED by him
Representative of the Public Ministry, illegally endorsing A EXTENSION with the
name of EXTENSION, arguing that the 6 months of PREVENTIVE PRISON
they have been used for the dismissal of the other crime, AND THIS DOES NOT APPEAR IN THE
TAX FILE, as no actions have been taken during those 6 months.
apart from those requested in the PREVENTIVE PRISON.

III.- NORMATIVE BASES:

The present is based on Article 274 of the C.P.P., from which it follows that the SPECIAL DIFFICULTY does not
it has been demonstrated in the HEARING.

IV.- NATURE OF THE OFFENSE:

The present cause grievances to my client, as he continues to be maintained

DEPRIVED OF THEIR FREEDOM, even when the crime in the worst cases DOES NOT
SURPASS the 4 years of P.P.L.

FOR THE ABOVE STATED:

I ask you to proceed to REVOKE this Resolution, AMENDING it in

the decision to DECLARE UNFOUNDED THE REQUEST FOR EXTENSION OF
PREVENTIVE DETENTION, for not being in accordance with the law.

Arequipa, February 17, 2010

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articles of criminal law and the new criminal procedural code, points of
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jurisprudence

17/04/10: THIRD PROTECTION OF RIGHTS

FOUNDATION: NULLITY OF ACT
INVESTIGATION
Category: General
Published by: mcontreras
Viewed: 301 times

It is the third opportunity in which a rights protection is granted.

supported by the undersigned, however this last one will promote, a
series of comments, based on what was resolved by the judge, it might seem that little
little is understood about the real function of the judge in the new model
procedural; however, I transcribe the petition presented and then I do the
own with the resolution issued by the judge, in the following
terms:

That, according to what is established in numbers 4) and 5) of article 71, letter d)

from number 1) of article 71 and number 4 of article 71 of the NCPP, I INTERPOSE
in favor of my sponsors, PROTECTION OF RIGHTS, against
HUMBERTO JUAN BAUTISTA HIDALGO MATOS, in his capacity as
Provincial Fiscal of the Adaptation Office of the Corporate Prosecutor's Office
from Ica and FELIX RUPERTO PEÑA MELENDEZ, in his capacity as Prosecutor
Provincial Assistant of the Adaptation Office of the Prosecutor's Office
Ica Corporation. In this order, according to number 4 of article 71 of
NCPP in accordance with the provisions of art. 87 of the CPC, in
supplementary application, to the referred procedure, we request SE
DECLARE THE PROTECTION OF THE RIGHT FOUNDED and as a consequence
Resolve the following claims: REGARDING THE 1ST FACT:
REGARDING THE MEASURES TO CURE THE OMISSIONS:
MAIN ACCESSORY PRETENSION: ORDERED AT THE FIRST OFFICE OF
EARLY DECISION OF THE SECOND PROVINCIAL CRIMINAL PROSECUTOR'S OFFICE
CORPORATE ICA NOTIFY THE PARTIES INVOLVED
(LAWYER OF THE DEFENDANTS) OF THE ACCUMULATIONS
MADE, TO ASSERT MY RIGHT TO DEFENSE.
ORDER TO THE FIRST EARLY DECISION DISPATCH OF THE
SECOND PROVINCIAL CORPORATE CRIMINAL PROSECUTOR'S OFFICE OF ICA,
RESOLVE THE THREE REQUESTS PRESENTED BY THE SIGNATORY,
RELATED TO THE DEADLINE CONTROL AND NOTIFY THE
PROCESS PARTIES, TO THEN ASSERT MY RIGHTS TO THE
DEFENSE. SUBORDINATE CLAIM: LET THE THREE BE RESOLVED
WRITINGS SUBMITTED BY THE SIGNATORY WHEREIN IT WAS REQUESTED
THE CONDUCT OF VARIOUS RESEARCH ACTIVITIES. REGARDING
SECOND FACT: REGARDING CORRECTIVE MEASURES:
MAIN PRAYER: ORDER THE FIRST DISPATCH OF DECISION
EARLY OF THE SECOND PROVINCIAL CRIMINAL PROSECUTOR'S OFFICE
CORPORATE AND ANOTHER OFFICE PROVIDE FOR THE EXECUTION OF
A NEW GABELLI CHAMBER PLEADING. The above stated,
merit to the factual and legal arguments that I present to
continuation; expressing in the first place, the three facts subject to
charges corresponding to three preliminary proceedings
different; then the legal norms that must be adopted in
consideration like those that have been subject to violation by the Prosecutor
at the moment of resolving and finally each of the violations of
rights what he they will expose a continuation:
FUNDAMENTALS:
FIRST: FACTS MATERIAL DE ALLOCATOIN
CASE NO. 516-2010
GARCIA y ROSE LUISA GARCIA HERNANDEZ.
On February 18, 2010, it is sent by the PNP Police Station.
GUADALUPE, various POLICE OCCURRENCES, RECOGNITION
FORENSIC DOCTORS and other DOCUMENTS, being issued the
Provision No. 1 of February 24, 2010, in which the 1st Decision Office
Early, through the Provincial Prosecutor, Dr. HUMBERTO JUAN
BAUTISTA HIDALGO MATOS orders the opening of the proceedings.
preliminary, for a period of THIRTY DAYS against those who
resulting responsible, for the alleged commission of the CRIME against the
LIFE, the BODY, and HEALTH in the form of ABORTION to the detriment of
NEONATE, preparing the proceedings.
Preliminaries, without having carried out major proceedings in the
present research preliminary.
ii. CASE No. 574-2010. EXPOSURE OR ABANDONMENT OF PERSON
DANGER - DEYVIS CHRISTIAN CHACALIAZA GARCIA and ROSA LUISA
GARCIA HERNANDEZ.-

On February 23, 2010, it is forwarded by the PNP Police Station.

GUADALUPE, a Verbal Complaint, which was transcribed on the
Office that appears on pages 68 and following, where a transcription is made of a

Verbal complaint made by MARIE LESLYE ANCHANTE DE

HERNANDEZ; from there, Provision No. 1 is issued.
01mar10, where once again by the 1st Decision Office
Early, through the Provincial Prosecutor, Dr. HUMBERTO JUAN
BAUTISTA HIDALGO MATOS DISMISSES the complaint for the crime of
ABANDONMENT OF A PERSON IN DANGER attributed to ROSA
LUISA GARCIA HERNANDEZ and DEIVIS CRHISTIAN CHACALIAZA GARCIA
organizing the respective file. In turn, in the referred Provision
a preliminary investigation will be opened for the alleged commission
of the Crime against Life, the Body, and Health, in the modality of
Abortion to the detriment of a newborn, for the completion of the proceedings
preliminaries, for a period of THIRTY DAYS, proceedings that were going to
carry out in the Office Fiscal.
iii. CASE No. 766-2010. VIOLATION OF SEXUAL FREEDOM.- DEYVIS
CHRISTIAN CHACALIAZA GARCIA

On March 11, 2010, a complaint was filed by MARIA

LESLY ANCHANTE DE HERNANDEZ against DEYVIS CHRISTIAN
CHACALIAZA GARCIA for the alleged commission of the Crime against the
Sexual Freedom in the modality of Violation of Sexual Freedom in
harm of the minor identified by the initials SMCA, as
as a consequence, Disposition No. 1 was issued on March 18, 2010.
where the 3rd Investigation Office, through the Prosecutor
Provincial, Dr. JOSE LUIS HERRERA RAMOS opens the proceedings
preliminary proceedings for the offense subject to the complaint, for a period of 40

days, arranging for the carrying out of various proceedings, within

It was arranged that on April 6, 2010, at 3:00 PM, the
Gessel Chamber diligence; subsequently, the correction was made.
the stage leaves at 10:30am; however, through
Disposition No. 03-2010 of March 30, 2010, the 2nd Investigation Office
it is requested to send the proceedings to the Coordination Prosecutor's Office of the

Second Corporate Provincial Prosecutor's Office, since what was wanted

was to avoid the duplication of research, given the knowledge of the
preliminary proceedings established in points i and ii.-
SECOND: RELEVANT RULES TO RESOLVE THE ISSUE
PROPOSED.
i. Law a Request.
Die the num. 20) delete art. 2nd from CPP:
Article 2.- Everyone has the right: (...) 20. To formulate
requests, individually or collectively, in writing to the authority
competent, THE ONE WHO IS OBLIGATED TO PROVIDE TO THE INTERESTED PARTY A

RESPONSE ALSO IN WRITING WITHIN THE LEGAL DEADLINE, UNDER

RESPONSIBILITY.
ii. Law a participation of the procedures.

Die the number 4) y 5) of art. 71º from CPP:

Article 84 Rights of the Defense Attorney.- The Defense Attorney
enjoys all the rights that the Law grants him for the exercise of
his profession, especially of the following: 4. PARTICIPATE IN
ALL DILIGENCES, EXCEPT IN THE DECLARATION PROVIDED
DURING THE INVESTIGATION STAGE BY THE DEFENDANT WHO DOES NOT
DEFEND. 5. Provide the means of investigation and proof that
relevant estimates. 6. Submit oral or written requests to
matters of simple procedure.
iii. Law a Contradiction of the Test.

It says in lit. d) of num. 1) of art. 71 of the CPP:

Article 71 Rights of the accused.-(…) d) To refrain from testifying; and,
if you agree to do so, that your Defense Attorney be present in your
declaration and IN ALL THE PROCEEDINGS IN WHICH YOUR
PRESENCE.

Law a the Guardianship Judicial.

Die the num. 4 del art. 71º of CPP, 4:
When the defendant considers that during the proceedings
Preliminary or in the Preparatory Investigation has not been given
compliance with these provisions, or that their rights are not
respected, what is subject to restrictive measures on rights
unlawful or illegal requirements, one can resort to protection through a tutela.
to the Judge of the Preliminary Investigation to remedy the omission
THE MEASURES OF CORRECTION OR PROTECTION THAT
CORRESPONDENCE. The request delete defendant the will resolve
immediately, after verifying the facts and carrying out
a hearing with the intervention of the parties.
THIRD: EXPLANATION OF THE TWO CASES OF VULNERABILITY
FLAGRANT VIOLATIONS OF RIGHTS OCCURRED WITHIN THE FRAMEWORK OF THE

PRELIMINARY DILIGENCES BY THE PROSECUTORS HUMBERTO JUAN

BAUTISTA HIDALGO MATOS and FELIX RUPERTO PEÑA MELENDEZ.
FOR VIOLATION OF THE RIGHT TO JUDICIAL PROTECTION
EFFECTIVE.
Y
2. FOR VULNERABILITY AL LAW DE REQUEST.-

As stated in Points i and ii, before March 31

In 2010, there were two studies that were based on the
same facts, carried out against the same person and by the same one
crime, both having a peculiarity that was carried out in the
same Tax Office, that is, the 1st Decision Office
Early, through the Provincial Prosecutor, Dr. HUMBERTO JUAN
BAUTISTA HIDALGO MATOS (574-2010) and the other by the Deputy Prosecutor
Provincial, FELIX RUPERTO PEÑA MELENDEZ (516-2010); that is to say, they have
existing for more than 30 days, two investigations, in parallel,
processing before the same office without the Provincial Prosecutor being
had realized of such situation, WHEN THEY WERE THE SAME
FACTS; but the most serious thing is that only on March 29, 2010, it was issued.

Provision No. 02-2009 within the framework of investigations

carried out in the Fiscal Folder No. 574-2010, ordering that
accumulate the research in reference to the one being carried out in
the Folder Fiscal No. 516-2010.-
In this order, the violation of the rights of my clients, is
generate in the referred procedural act, since at the moment of
the referred Provision shall be issued, the term of the Proceedings
Preliminaries, arranged in Fiscal Folder No. 516-2010, had already been
PRESCRIBED; since as it has been stated above, only is
THIRTY DAYS had been established; given this, the first
the question that should be asked is:
HOW COULD THE RESEARCHES CONDUCTED BE ACCUMULATED IN
THE FISCAL FILE NO. 574-2010 TO ONE (516-2010) THAT HAD ALREADY
DEFEATED EN SU TERM DE RESEARCH?.-
Worse yet, when both investigations were combined, the
that was accumulating, this is the one that appears in Fiscal Folder No.
574-2010, its deadline expired the next day, since according to
It has been indicated in Point ii, the investigation period was only 30
days; despite this, when both investigations are accumulated, according to
appears in Provision No. 02-2010, of March 31, 2010, which runs in the
Fiscal Folder No. 516-2010, NO NEW DEADLINE IS STATED
PRELIMINARY PROCEEDINGS; a Provision is even issued
ACCUMULATION, when the deadline had already expired; but the worst part is
that nothing else is pronounced; understand that the Prosecutor does not
does not arrange for the performance of any procedural act, with the aim of
clarify the investigated facts; then why are they accumulated
investigations, if no investigation act is going to be carried out, no
no notification being made a the procedural parties.
BUT TO THIS OBVIOUS ERRORS, the following is added, as
It is warned in point iii), there was an investigation (Fiscal Case No.
766-2010) that was being processed before the 3rd Office
Preliminary Investigation in charge of Prosecutor JOSE LUIS HERRERA
RAMOS, where he opens the Preliminary Proceedings against
my sponsored, for the alleged commission of the Crime against freedom
Sexual in the modality of Violation of Sexual Freedom to the detriment
of the minor identified with the initials SMCA. Within the framework of said
procedures, dated March 30, 2010, the Provision is issued
No. 03-2010, where the aforementioned investigation is referred to the Prosecutor
Coordinator, that is, the actions are derived, in the state in which they
I found the often-mentioned 1st Decision Office
Early, through the Provincial Prosecutor, Dr. HUMBERTO JUAN
BAUTISTA HIDALGO MATOS, with the purpose of accumulating said
investigation that was being carried out in Fiscal Folder No.
516 y 574 del 2010.
Subsequently, Resolution No. 03-2010 is issued, dated
March 31, 2010, within the framework of Fiscal Folder No. 516-2010, where the
1st Early Decision Report, through the Prosecutor
Provincial, Dr. HUMBERTO JUAN BAUTISTA HIDALGO MATOS, NO
PROVIDES FOR THE ACCUMULATION OF THE ACTS; that is,
accumulation of investigations No. 516-2010 (accumulated No. 574-
2010) and 766-2010, but both are referred to the Prosecutor of the Second
Provincial Criminal Prosecutor Coordinator, making a generic reference
that both investigations are being carried out against the
same people and that the investigations should be carried out properly
joint effort to avoid duplication of research, so that the
the referred dispatch fulfills its attributions; that is, it accumulates them and
as it is evident, not that they are returned, without pronouncement
some.
At this procedural stage, the undersigned assumes the defense and presents
different writings, but after reading the acts I was able to
to realize that the investigation deadlines of the Fiscal Folder No.
516-2010 and 574-2010 had already expired, in light of this I presented two
Writings against the investigations that were being carried out in the
framework of the preliminary proceedings and also as it is already
they had referred to the 1st Early Decision Office, Dr.
HUMBERTO JUAN BAUTISTA HIDALGO MATOS, the investigation N| 766-
2010, present a Written Control of Reasonable Time to said
research, since yes, the three investigations were present
in the referred Office, this and only this should resolve my
claims, to which three documents had also been submitted
different ways of carrying out procedural acts; but no, the referred
Dispatch, I forward the actions along with all my writings.
presented to the Provincial Coordinator of the Prosecutors
Corporate Penal Provincial of Ica, being that due to a situation
this is quite anecdotal under the charge of the so often cited, Dr.
HUMBERTO JUAN BAUTISTA HIDALGO MATOS, through Provision No.
01-2010, in the context of the preliminary proceedings of the Folder
Fiscal No. 766-2010 orders that the proceedings be sent to the Provincial Prosecutor.
initially assigned to the most serious crime Dr. Peregrin Dominguez
Gomez, this is to the 3rd Preparatory Investigation Office, to
the position of Dr. JOSE LUIS HERRERA RAMOS, the same who through
Disposition No. 01 of April 7, 2010, warns of a series of errors in the
respective procedures, among them, precisely highlights:
1) NOT HAVING NOTIFIED THE PARTIES INVOLVED IN THE PROCEEDINGS OF THE

Accumulations CARRIED OUT.

3 WRITINGS PRESENTED BY HIM HAD NOT BEEN RESOLVED
SUBSCRIBED, RELATED TO THE CONTROL OF DEADLINES.
3) THREE WRITTEN SUBMISSIONS BY HIM HAD NOT BEEN RESOLVED
SUBSCRIBED WHERE THE REQUEST WAS MADE FOR THE CARRYING OUT OF VARIOUS
ACTS DE RESEARCH.-

At the end of the aforementioned Provision, the mentioned Prosecutor establishes with

clarity that the right to protection would be violated

EFFECTIVE JURISDICTION, since as of the date of
presentation of this document, Mr. Attorney of the 1st Department of
Research has not yet resolved the annotations presented by its
referred colleague, which the undersigned makes his own, but to which is added,
which turns out to be one of the points for which it violates the rights of
My sponsors, there is no knowledge up to the date, which
it is the Tax Office that will continue with the knowledge of the
research.
3. FOR VIOLATION OF THE RIGHT TO CONTRADICTORY EVIDENCE
If as previously stated, the conducted research
In the context of Fiscal Folder No. 766-2010, there was since the
March 31, 2010 in the Office of the 1st Prosecutor's Office
Adaptation, as part of Preliminary Proceedings No. 516-2010,
in charge of FELIX RUPERTO PEÑA MELENDEZ, awaiting the Disposition
in which the actions taken are accumulated, in good account
was in a procedural vacation, since March 31, 2010 when it
to transfer the proceedings to the Coordinator Prosecutor of the 2nd Prosecutor's Office

Provincial Corporate Penal Court of Ica, which recently, via Disposition

N 01-2010 dated April 6, 2010, the mentioned Office in charge of Dr.
HUMBERTO JUAN BAUTISTA HIDALGO MATOS resolves to return the
acted to the 3rd investigative report, so that it could continue with
the research, if this is the case, we must ask ourselves:
HOW IS IT POSSIBLE THAT THE 1ST RESEARCH OFFICE HAS
CONDUCTED THE GESEL CAMERA, AT 11:30 H. ON APRIL 06, 2010,
WITH THE STATEMENT OF THE MINOR AFFECTED, WHEN SAID
THE HEARING HAD BEEN SCHEDULED FOR APRIL 6TH
2010, BUT FOR THE 3RD INVESTIGATION OFFICE AND NOT FOR THE
1ST DE ADJUSTMENT?
Since the procedure in question has been carried out by the Prosecutor
Provincial Attaché, FELIX RUPERTO PEÑAMELENDEZ, without having been
to the knowledge of the investigations, even worse when
According to Provision No. 03-2010 of March 31, 2010, it was decided
refer the actions to the Coordinator Prosecutor of the 2nd Prosecutor's Office
Corporate Provincial Prosecutor's Office of Ica, in good account said Prosecutor,

FELIX RUPERTO PEÑAMELENDEZ, no longer had the knowledge of the

investigation, against all has carried out the diligence in
reference, focusing on the knowledge of an investigation that has already been
he had arranged for its referral to another Tax Office, which in itself,
It must be known by the INTERNAL CONTROL BODY OF
PUBLIC PROSECUTOR'S OFFICE, since we would be facing the probable
existence of the offense of improper takeover; even more so, when it has not
resolution that empowers him for its realization and from that,
the referred prosecutor has set aside the right of contradiction of the
defense, since in the referred actions, and had appeared
a Public Defender, without having been notified for that act
procedural, having facilitated that Prosecutor Peña has carried out the
diligence with another lawyer; but the worst part is that according to the
Provisions that are noted on the same day of the procedure, the Prosecutor
Coordinator of the 2nd Provincial Criminal Corporate Prosecutor's Office of Ica,
send the actions to the 3rd IP Prosecutor's Office, thus generating
the performance of a procedural act that is fundamental, without this
present the attorney appointed by the defendant himself; but
evidencing a appeal improper.
THE Grievance PRODUCED
It is clear that the harm it causes affects my rights.
sponsored to the effective judicial protection, right to defense,
right to make petitions and right to participate in proceedings in
against of me sponsored.
FOR LO SO MUCH:
I REQUEST THE COURT to consider this Written Submission as presented,
admit and acknowledge it as filed in a timely manner.
Ica, 08 of April del 2010
First I say: Mr. Prosecutor, with PROCESSUAL ADDRESS in the
OFFICE OF THE PUBLIC DEFENDER, located in Urb. Divino Maestro F-
18. Ica.-
2nd OTHER I SAY: I request that a time and date be set at the earliest possible date,

date for the respective hearing, in order to expand the

arguments exposed.
3rd ADDITIONAL SAY: I request that the Prosecutors be required against the
that the TUTELA DE DERECHO intervenes, to present the FOLDER
FISCAL No. 574, 516 and 766 of 2010. Likewise, it is required that they present
in the HEARING printout of the information issued by the SIAF
corresponding to the aforementioned fiscal folders, with the aim of
verify the proper issuance on the dates indicated or appearing
in the provisions, the date of notification of the procedural acts and
date of submission of the actions to the respective offices.
Fourth, I also state: This appeal is made in the context of
established in articles 294 and 295 of the Organic Law of the Judiciary.

CAR DE GUARDIANSHIP DE RIGHTS

Resolution No. 2
Ica, two thousand ten
April quince

SEEN; The writ of protection of rights submitted by the lawyer

public defender of the Ministry of Justice Marco Antonio Contreras
Vera on behalf of Deyvis Christian Chacaliaza García and Rosa
Luisa García Hernández and the tax folders of the investigations
numbers 516-2010, 574-2010, and 766-2010; and EARS: oralization
said means of defense by the appointed lawyer and the acquittal by
part of the Provincial Criminal Prosecutor's Office of the Second Prosecutor's Office
Provincial Corporate Criminal Court of the Tax District of Ica Humberto
Hidalgo Matos, it is in public debate; and,
CONSIDERING:
First: The investigated Deyvis Chrin Chacaliza García and the citizen
Rosa Luisa García Hernández, through her public defense attorney
joint petition for the protection of rights in the framework of the
preliminary investigations that are being carried out in the cases
numbers 516-2010, 574-2010 and 766-2010 invoking the violation
of various rights related to their right to petition, to the
defense contradiction and effective jurisdictional protection, requesting it to
as this preparatory investigation court orders as
measurements of remediation the next omissions
Order to the first early decision office of the second
Provincial Corporate Criminal Prosecutor's Office of Ica to notify the parties
procedural (defense attorney for the defendants) of the accumulations
made, to assert my right a the defense.

2. order to the first early decision office of the second

corporate criminal provincial prosecutor's office of Ica, resolve the three documents
submitted by the undersigned, related to deadline control and
notify the parties involved, in order to then assert my rights
a the defense.

3. the three documents submitted by the undersigned be resolved in which

requested the carrying out of various investigative acts.

Y as measure of correction
4. order to the first early decision office of the second
corporate criminal provincial prosecutor's office or another office disposes of the

realization of a new diligence of camera gessel

In the oral presentation of the defense of the applicants, it is argued that

next
A) Regarding the violation of the right to petition.
Investigations numbers 516-2010 and 574-2010 were being processed in
parallel form before the first early decision dispatch in charge
from the prosecutors Juan Bautista Hidalgo Matos and Feliz Ruperto Peña
Melendez, where despite having the same facts as support
against the same person and the same crime, the Provincial Prosecutor does not
he realized at the end of the research period, those that were just
accumulated as of March 29, 2010, violating the
this form your rights, since by that date the investigation period
the preliminary of case 516-2010 had already expired; it adds that to the
moment of accumulation the investigation period of the file
574-2010 was due the next day and that in the provision of
accumulation did not indicate a new deadline for preliminary proceedings.
In this aspect, the purpose of accumulation is questioned if the Prosecutor does not
he/she decided to carry out any investigative act and furthermore it was not carried out

notification a some of the parts procedural.

It also specifies that in the investigation 766-2010 processed before the
third preparatory investigation report by prosecutor Jose
Luis Herrera Ramos, where preliminary proceedings are initiated against him.
recurrent Deyvis Chiristian Caliza Garcia for the commission of the crime of
Sexual assault against a minor, the
Disposition 03-2010 where this investigation is referred to the Prosecutor.
Coordinator Humberto Juan Bautista Hidalgo Matos with the purpose
that accumulates said research to those that were being carried out in the
Folders 516 and 574-2010, referring to the first dispatch of
early decision by Prosecutor Hidalgo Mattos, who does not dispose
the accumulation of investigations but rather refers it to the prosecutor
Coordinator of said Prosecutor's Office making a generic reference that
a joint investigation should be conducted to avoid duplication
of investigations.
Add that, in this state is when different writings are presented and
two other writings questioning the expiration of the deadlines of
investigation 516 and 574 2010 as well as another control document
deadline against the investigation 766-2010 but the first dispatch of
early decision did not resolve its claims, but led to the
actions and their writings to the Provincial Coordinating Prosecutor that is located
under the charge of the same prosecutor Hidalgo Mattos, who through
Resolution 01-2010 states that the documents should be sent to the prosecutor.
assigned to the most serious crime such as the third dispatch of
preparatory investigation, which by provision of April 7
from 2010, warns of a series of errors in the procedures (not having
notified the procedural parties of the accumulations made, not
it is resolved from three writings submitted by the undersigned related
with the deadline control and three documents had not been resolved
presented where it requested the performance of various acts
research). Specify the recurring issues, which as a result violate
their rights of the appellants for not having knowledge of which
The Tax Office is who will continue with the knowledge of the
research.
B) Regarding the violation of the right to defense and contradiction
of the test.
It is necessary that within the framework of Fiscal Folder 766-2010 since the 3rd of

March 2010 was in the first decision office.

early as part of the preliminary proceedings of case 516-
2010 under the responsibility of Prosecutor Ruperto Peña Meléndez, waiting for

arrange the accumulation, but only on April 6th the Prosecutor

Coordinator of the Second Corporate Prosecutor's Office resolves to return the
acted upon by the Third Investigative Office; however, despite this,
the first investigation report develops the camera diligence
statement of the minor aggrieved on the same April 6 of the
2010, when said diligence had been scheduled by the third
investigation office. This affects their right to the
contradiction since for that action, there had been no notification to the
public defender appointed by the investigated, lawyer Angela
Rocio Fuentes Caceres, promoting the right of everyone
accused of being assisted by a
lawyer who can participate in all proceedings.
Second: In the oral debate, the representative of the public ministry
addresses each of the points raised by the defense of the
recurrent, specifying that it has not affected any rights of the
applicants, highlighting the following substantial aspects:
The alleged infringement of the right to petition -for presumably not
Resolved requests or writings from the appellants - none exists given
that the writings of the appellants are being resolved through
providence and another has reserved its pronouncement to carry it out
the prosecutor responsible for the case given the decision to consolidate
the investigations.
Regarding the violation of defense rights and
contradiction, specifically highlights that although the diligence of
The Gessel camera was developed by a deputy prosecutor of the first
investigation office of the second prosecutor's office and not by the third
dispatch from the prosecutor's office that had ordered said act of
investigation, this is because the public ministry is developing a
corporatized action. And regarding the defense that intervened in
the said diligence holds that the investigated party was sponsored by
another lawyer from the Ministry of Justice who guaranteed the right of
defense of justiciable.
Regarding the alleged violation of the right to effective legal protection
it is argued that he is left defenseless by not knowing which Prosecutor
it is assigned to the investigations), asserts that the petitioners
they always knew the offices where the proceedings are being processed
three investigations, especially now that the case is assigned to the
third tax investigation report of the second criminal prosecution office
Ica corporate, where a provision was given to the writings of
defense of the now recurring.
Third: This court makes a verification of the facts with
view of the Fiscal Folder where the three fiscal folders are summarized
before specified, highlighting the following data:
It is correct the independent substantiation of three
preliminary investigations, the first 516-2010 where by
With disposition 01 of February 24, 2010, it is opened
preliminary investigation for a period of 30 days for the alleged
commission of the crime of abortion; the second 574-2010, where for
Disposition of March 1 opens preliminary investigation for
the 30-day deadline for the alleged crime of abortion and the third 766-
2010 where by Order of March 18 it opens
investigation for a period of 40 days, being linked in this last one
case as investigated against the now appellant Deyvis Christian Chacaliaza
Garcia, for the alleged crime of sexual assault of a minor.

Regarding the first two investigations (abortion) within the

the term for preliminary investigations was arranged to accumulate
its connection between the subjects and the investigated facts, not
having in them some portion with the quality of presumed
involved indicted o investigated.

A different situation occurs in the third preliminary investigation 766-

2010 where by provision 02-2010 dated March 23, 2010
in addition to correcting a numerical error in the issue date of the
The preliminary investigation order specifies that it is opened.
against Deyvis Chritian Chacaliaza Garcia for the alleged commission of
crime of Rape sexual in offense of the younger.

Who ordered the unique interview procedure for the complainant in

The Gessel camera was the third investigation office of the second.
provincial criminal prosecutor's office that at the request of the Medicine Division
The development was scheduled on April 6, 2010 at 10:30 AM;
also that the prosecutor's office in charge of its completion was the Prosecutor

Attached to the First Dispatch of Early Decision of the Second

Provincial Criminal Prosecutor's Office of Ica; where I would attend as
defense attorney of the accused Deyvis Chritia Chacaliza García
public defender Luis Alberto Rojas Elias, that is, defense lawyer
different from the one expressly designated by the investigated, as is
the public defender lawyer Ángel Rocio Fuentes Cáceres, no
appearing in the same record some tacit acceptance of the variation
of the public defender by the investigated party due to their absence in
saying act.

There are various writings presented by the defense of the

recurrent, which will be detailed: the first, dated April 5
both appellants for the investigation 516-2010, appointing as
new defense attorney; the second one from the same date for both
recurring, for research 574-2010 also designation of
lawyer; the third dated April 5 of lawyer Deyvis Chritian
Chacaliza García petitioned for the conduct of investigative acts.
in case 516-2010; fourth dated April 6, presented by the
lawyer for both appellants for the investigation 574-2010 regarding
control of deadlines for preliminary proceedings; one fifth of date 06
of April by the lawyer of the investigated Deyvis Chrtiatian Chacaliza
García for case 766-2010 regarding the control of the procedural timeline
preliminary; a sixth dated April 6 from the attorney of both
recurring case 516-2010 on the deadline control of proceedings
preliminaries; from which resolution N° 02-2010 was issued on date
April 9, admitting the appointment of the new defender, likewise
by providence 03-2010 dated April 9, 2010 upon accumulation
the three investigations responded to the three requests from
deadline control of proceedings submitted by the defense of the
recurrent, refraining from pronouncing until the date for the request of
offering of acts d e research.

Finally, it is correct that the three investigations (the cases

accumulated 516 and 574-200 already accumulated and the 766-2010) were
sent to the Coordinating Prosecutor of the Second Provincial Criminal Prosecutor's Office

corporate Ica to issue a statement regarding a

possible new accumulation, which through provision 01-2010 of
date April 6 of the current year arranged to reassign the folders to
provincial prosecutor initially assigned to the most serious crime, that is to say to the
deputy prosecutor of the third investigation office in charge of the prosecutor
Pelegrin Dominguez Gomez, however, who issues the last one.
resolution of accumulation as the responsible prosecutor of the case comes to
to be Prosecutor Félix Peña Meléndez as Deputy Prosecutor of the First
Early Decision Office of the Second Prosecutor's Office
Provincial penal, causing uncertainty as a result of it
tax office in charge of the accumulated investigations.

Fourth: Statement regarding the impacts on the right to

Request: It is clear that every accused person can assert their rights.
rights that the constitution and the laws grant to the
initial procedures of an investigation until its conclusion
process, among them the right of petition that enshrines the
numeral 20 of art. 2 of our fundamental charter by virtue of which
the competent authority is obliged to give a response within
a legal deadline (reasonable if not regulated). In this sense,
we appreciate the confirmation of the facts that motivate the claim
the omission of the fiscal pronouncement regarding an offer of
investigative acts of the defense attorney of the appellant Chacaliza
Garcia, which despite having been submitted through the parts table and
acting on the accumulated tax folders has not been issued
provision or arrangement as of today's date; omission that must be
immediately remedied, especially since the research ties
preliminary proceedings continue to unfold as regulated in the
Articles 142 and 143 of the Consolidated Criminal Procedure Code with the inciso
2) del article 334 del same body legal.
Fifth: Statement regarding the impact on the right to
defense (notifications). It is true that one of the facets of due
the process turns out to be a proper notification of the resolutions, in
In these cases, prosecutors enable the exercise of other means.
of defense or appeal (if applicable) however in the case
concrete, in the development of the first two investigations
preliminaries do not specify any investigated or involved party,
Therefore, it would not be possible to notify the resolutions there.
issued to the witnesses or summoned to the preliminary proceedings. In all
case, as the cases have accumulated, the notification of the
I integrate the resolutions to the appellants who had made an appearance.
marked address procedural.
Sixth: Pronouncement regarding the impact on the right of
contradiction of evidence (the presence of the defense attorney in the
(proceedings) We must clarify that, in this respect, the protection of
rights guide to questioning the unique interview record of the minor
complainant in the Gessel chamber dated April 5th. In this regard,
the course of the preliminary investigations of case 766-2010, the
investigated Chacaliaza Garcia appointed as public defender of
Ministry of Justice to lawyer Angela Rocio Fuentes Caceres with
date March 17, 2010, who was also appointed as
defender in the other investigations, to which it is added that already with
date April 5 of the current year the appellants designate as
new defense attorney to public attorney Marco Antonio Contreras
Vera, however, none of those named assumed defense of the.
investigated in the aforementioned unique interview with the victim, but if
another third party such as the public defender Luis Alberto Rojas
Elias, without any explicit designation by the
investigated. This implies a clear impact on the right of
a person subject to legal proceedings to be assisted by their lawyer in the proceedings

preliminary, since the original lawyer had been indicated and

then another (right to choose a lawyer of your trust) these were the
more suitable to exercise their right to defense, since this right does not
it is exhausted by providing the defendant with any lawyer, much more than the
a new public defender had already been appointed by the own
investigated as one of his trusted ones to defend him in the
preliminary investigations. Consequently, having been affected the
right of the investigated to be represented in the gessel chamber with
your defense lawyer indicated in the investigations or another of your
election, it must be organized as corrective measures the declaration
of nullity of the oft-cited single interview procedure of
gessel camera, also providing for the renewal of the procedural act
ensuring the exercise of the right of defense of the investigated to be
represented by their designated public choice lawyer or another one of their
election; this in application of numeral d) of section 2 of article 71
del Code Procedural Criminal.
Seventh: Pronouncement regarding the impact on the right to protection
effective jurisdiction (defenselessness due to not knowing the Tax Office's ruling)
assigned to know the accumulated research).- The fact that
there is a disposition from the Coordinator Prosecutor of the Second Prosecutor's Office

Provincial Corporate Penal of this city ordering that the case

(three investigations) should know the third office of
investigation (most serious crime) and that it is the first office of
early decision who has been devoted to the knowledge of the case,
original uncertainty of the tax dispatch that must continue
knowing the accumulated cases which should be subject to measures
of relevant corrections; since aside from the fact that the Public Ministry
deploy a corporate effort, every litigant must know the
fiscal in charge of the investigations or those who replace him; it
which should operate brevity when approaching the deadline of
the deadlines for preliminary investigation and pending
resolution of a document offering evidentiary means
made for the defense of the now recurrent
For such considerations and according to article 71 paragraph 1, 2, 4 of the
Criminal Procedural Code; IT IS RESOLVED to declare;
Founded partly on the protection of rights formulated by the lawyer.
public defender ministry of Justice Marco Antonio Contreras Vera
representation of their defendants Deyvis Chritisan Chacaliaza Garcia
Rosa Luisa Garcia Hernández; consequently: IT IS ORDERED as
measures of remedy y correction:
1.- That the accumulated cases be referred to the third tax office
of investigation of the second provincial prosecutor's office of Ica so that
continue knowing the case, in accordance with the provisions of the regulation
from the coordinating prosecutor N| 01-2010 dated April 6, 2010
(folios 149).-
2.- Respond to the written offer of evidence.
from the defense attorney of Deyvis Christian Chacaliaza Garcia dated 05
of April del 2010 (folio 141)
3.- Declare null the act of investigation single interview of the
aggrieved filing in the Gessel chamber dated April 6, 2010, ordering
a new procedure is developed with summons and attendance of the
defense attorney of investigated Deyvis Crhirian Chacaliaza García
another of yes election.
UNFOUNDED the protection of rights regarding the other aspects
questioned
RETURN IT the folders fiscals notify
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