The Criminal Process: Phases and Restrictive Measures on Rights

When the judicial authority is informed of a possible crime, either through a report to the police, at the guard court, or by a direct complaint to the court, a criminal process begins. This process is divided into two distinct phases: investigation and the trial itself.

The first phase, known as investigation, aims to determine if a crime has been committed and who the perpetrator is. During this stage, the investigating judge, in collaboration with the police and the prosecutor, conducts a series of investigative measures. These measures are designed to find evidence of the crime and identify the perpetrator. If sufficient evidence is found, the judge forwards it to the prosecutor. Only if the prosecutor files charges, or if a private or public accusation is made, does the process move to the second phase.

During the investigation, the investigating judge can order a series of measures that restrict rights. These measures can be classified into two types: investigative actions and measures to ensure the effectiveness of the future trial.

Investigative actions are measures aimed at gathering evidence of the crime. Among these are:

1. Interception of Communications: The judge can order the tapping of phones to obtain evidence that might otherwise be unobtainable.

2. Search and Seizure: The judge can order the entry and search of a private home to seize the body of the crime, as well as its effects and instruments.

Measures to ensure the effectiveness of the future trial are aimed at guaranteeing that the trial, if it occurs, is effective. Common measures include:

1. Asset Seizure: The investigating judge can order the seizure of the suspect's assets. This measure ensures that if the suspect is ultimately convicted, they cannot dispose of their property, thus guaranteeing that the damages caused by the crime can be compensated.

2. Pretrial Detention: In exceptional cases, the judge can order the pretrial detention of the suspect. This measure is taken while it is determined whether formal charges will be filed and, if so, whether the suspect will be convicted. It is crucial to highlight that pretrial detention occurs without the suspect having been tried and convicted, meaning their presumption of innocence remains intact. For this reason, pretrial detention is an extremely exceptional measure, applied only in specific cases. Usually, suspects remain free throughout the entire criminal process, including the trial and any appeals against the sentence.

If during the investigation phase sufficient evidence is found and the prosecutor or a private or public accuser files charges, the process enters the second phase: the trial itself. In this phase, the evidence is assessed, and the accused's guilt or innocence is determined.

The criminal process is designed to balance the investigation of crimes with the protection of the fundamental rights of suspects. While restrictive measures on rights during the investigation are necessary for the effective administration of justice, they are applied cautiously and only in specific circumstances to prevent the violation of the presumption of innocence and other fundamental rights of citizens.