La prueba en el proceso penal españolanálisis de su proceso valorativo y, en particular, de los elementos paraprobatorios

Abstract

In this thesis we will analyze the valutation of evidence in the Spanish criminal process from a procedural approach, since we will focus on the perspective of the free valutation of it, taking into account the guarantees and limits that are imposed on this task and the so-called paraprobative elements, term coined by this author. In order to get to the central theme of the thesis, it is deemed necessary to first define the basic and aseptic concept of evidence and to pay attention to its historical antecedents. We will also address the institute of free valutation of the evidence allowed in our legal system, paying attention to logic, guarantees and limits. It will be explained what the paraprobative elements consist of and what role the social formation of the mind and social cognition play. Attention will be paid to special evidentiary assessment regimes, in order to understand the cases that are subsequently analyzed, they are: Dolores Vázquez case, "La Manada" case and Alexandre (Sandro) Rosell case. Keywords: Evidence, criminal, logic, valutation, paraprobative. Tesauro/Unesco Code: 5605 05 Criminal Law. AIMS: 1. To carry out an original and different investigation on the evidence in the criminal process. This work focuses on the study of evidence, defining what it is, why it is necessary, how the Judge values it from his/her mind subject to the logic and psychology inherent in every human being and how this assessment is safeguarded by procedural guarantees. 2. To define and to understand what the evidential elements consist of and what their receptors are. 3. To know the institutes with a special valutation regime and what is their running and deliberation. 4. To analyze, through jurisprudence, real cases in which there has been some evidentiary feature and that are connected with all the concepts previously analyzed. METHODOLOGY: The research method is based on a detailed study of different authors through several sources and branches. Sources belonging to the branch of Psychology and Health Sciences and to the branch of Law have been consulted. Different databases and bibliographic resources have been consulted to which it has been possible to access both online through a virtual desktop and in person at the different libraries of the University of Murcia or other institutions, all reflected in the bibliography of the thesis. All the conclusions drawn from both branches, together with our own conclusions, have been linked and joined to form a homogeneous, clear and contributory discourse about the central theme of the thesis. CONCLUSIONS: 1. Evidence is a broad term with multiple meanings, among which we find the procedural activity of demonstration and verification. In order to understand our current evidence system in Criminal Law it is necessary to go back to previous times. Thus, we must stop to examine the characteristics of the criminal process in Ancient Greece, in Rome, in the Middle Ages, in the Modern Age and, finally, nowadays. 2. The characteristics of the criminal action are: publicity, officiality, mandatory, irrevocability and unavailability. The evidence in our legal system is located in a process where the presumption of innocence governs and requires exceeding a certain level (standard of evidence) in order to destroy the before mentioned presumption. Also, the free evaluation of the evidence and the use of logical reasoning for such evaluation is allowed, the judge being able to use his/her conscience, his/her rules of rational criterion and even make use of free will to classify the crime or imposition of grief. 3. The evaluation of the evidence is carried out under procedural guarantees such as the application of the principle of presumption of innocence, the application of the principle in dubio pro reo or the imposition on the Judge of the obligation to motivate his/her sentence. 4. Logic is a necessary element to assess the evidence. The mental set-up or previous experiences of the judge may predispose him when selecting valid premises. The subsequent process of argumentation and its demonstration will also depend on it. 5. The paraprobative elements are those that are not part of the evidence in the strict sense but that come with it, along with it. The basic building blocks of potential receivers of evidential elements are the social formation of the mind and social cognition. The existence of apparently the same cases with different sentences or resolutions may have its reason in these paraprobative elements and in their basic pillars. However, we believe that there is no resolution disparity, because each case is unique and presents elements and premises that, although similar to those of other cases, are not identical. To this can be added the mental predisposition of the judge. 6. We appreciate that the circumstantial evidence, the silence of the person under investigation, the jury's decision, and the victim's testimony constitute special valutation regimes. 7. We have focused our attention on three cases with evidentiary characteristics: Dolores Vázquez (2000-2001), characterized by a serious legal error in the evaluation of the evidence and lack of reasons for the jury's decision; "La Manada" (2017-2019), which is characterized by generating social discontent, conceptual dichotomy in the qualification of the facts and gradual change of legal qualification throughout all its instances; and Alexandre Rosell (2019), which is characterized by having one of the longest preventive prisons in modern Spanish procedural history and, despite this, finally culminating in an absolving sentence. 8. The different curiosities and nuances of all of the cases described above lie, of course, in the evidence and also in the paraprobative elements, because without them there would be many aspects difficult to explain.