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APPEAL WHEN CAR decreed the dismissal

Since the Criminal Division and the Constitutional Chamber of the Supreme Court established doctrines regarding the appeals procedure exerted appeal against decisions that are held at first instance and declaring the dismissal of the case , in the sense that the Criminal Cassation has established that the length and processing the appeal against the decision declaring the dismissal of the case must conform to that established for the final ruling, the Court of Appeals shall hold an oral hearing under Article 455 of the Criminal Procedure Code, pursuant to decision No. 398 of 08/08/2006, where available: ... However, the applicant proposes that the Court of Appeals ruled on the proposed appeal without a hearing convened oral and public, under Article 455 of the Code of Criminal Procedure for parties to discuss orally on the grounds of appeal. Indeed, reviewed the records that make this record, the Board notes that the Court of Appeals, after allowing the appeal proposal against the decision of the Court of Control (page 192, part # 4 of the dossier), did not call to the hearing so that the sides discussed the arguments on appeal. It should be noted that in this case, the objecting promoted four (4) means of evidence in the appeal brief to establish the foundation of it, which were duly admitted two (2) by the Court of Appeals. So that the Court of Appeals to decide the appeal proposal without having convened the hearing and, however, that the appeal was filed and processed on the basis of Article 447, paragraphs 1, 3, 5 et seq Criminal Procedure, referred to the appeal of cars, lack violated the provisions of Articles 455 and 456 eiusdem, due process and the right to defense under Article 49 of the Constitution of the Bolivarian Republic of Venezuela and 1 and 12 of the Code, since, as noted by this Court, by the nature of the contested decision, which ends the process and preventing its continuation of res judicata, it is treated as a definitive statement regarding their legal proceedings, and must therefore, the Court of Appeals, bound for the processing of this application by the procedure governing appeals of final judgments . In this regard, the Board has expressly stated that: "... According to Article 319 of the Criminal Procedure Code, the dismissal procedure is terminated and the authority of res judicata and therefore prevents any further prosecution against the accused or defendant to whom it has been declared, except as provided in Article 20 of the Code, regarding the rejection of the criminal prosecution for its promotion or defects in its exercise. The dismissal imposed for cease all coercive measures which have been issued. Although sections 324 and 325 of the Code of Criminal Procedure, referred to the decision that approves the dismissal as a "self", by the nature of this decision, as terminating the process and prevent its continuation, with authority of res judicata, be equated to a final decision, since account must be for the purpose of its challenge to the rules governing appeals of final judgments as provided in Chapter II, Title I of Book IV of the Code of Criminal Procedure. (Judgement of the Criminal Cassation No. 535, dated August 11, 2005). This doctrine has been reiterated the Board, as in sitting in Judgement No. 506 of 24/11/2006 and the N ° 378 of 10/07/2007, which stated: ... the said Court of Appeals, proceeded to pass sentence on May 9, 2006, dismissing the appeal proposed by the legal representative of the victim, without conducting any hearing. The Chamber of Criminal Appeal has decided, repeatedly, that the inherent powers of the Court of Appeals in connection with the performance of the judicial function governed by Articles 450 and 455 of the Code Criminal Procedure, is this criterion: "... reflects the spirit with securing the legislature and ratified the principle of hearings by requiring judges to hear the inescapable obligation to the parties, respecting their right to dispute the allegations and rebuttals ...." (Judgement No. 571 of December 18, 2006). The decision under appeal to the Court of Appeal deals with the declaration of a dismissal which terminates the process and prevent its continuation and that has also been recognized by the Constitutional Chamber of the Supreme Court as a final statement with force (Judgement No. 1 of January 11, 2006). This is why the Court of Appeals was required to comply with Articles 455 and 456 of the Criminal Procedure Code, must also rule on the admissibility or otherwise of the evidence tendered in the letter of appeal. Thus, the Board No. 3 of the Court of Appeals Judicial Circuit of the Metropolitan Area of \u200b\u200bCaracas, by conferring an undue processing the case submitted to it, violated due to lack of application of Articles 455 and 456 of the Code adjective , to decide the appeal without having convened the public hearing for the parties to discuss their claims, while violating the rights to due process and the defense, as enshrined in sections 1 and 3 of Article 49 of the Constitution. Such constitutional provisions, give the parties the right to counsel and be heard by the judge, and unsuited to the principles laid down by the legislature, in Articles 14 and 18 of the Code of Criminal Procedure, relating to orality and contradiction , respectively, taken from the adversarial process. Reason, the assistance and involvement of stakeholders at the public hearing is essential so that each expose their pretensions, in opposition to its opposite, exercising their fundamental rights, giving the courts the necessary elements to define the object of controversy, with performances features oral public system in force, immanent in the senior judges. In this context, fulfilling these mandates, involves the transgression of the right to effective judicial protection, stipulated in Article 26 of the Constitution of the Bolivarian Republic of Venezuela, broad content, which includes: "... the right to be heard by the judicial bodies established by the State, ie not only the right to access, but also the right that met the requirements of procedural laws, the courts know the merits of the claims of individuals ... " . (Judgement No. 1515 of August 9, 2004). The administration of justice, should not be in any way for the automatic application of rules and norms of an adjective and a noun, it should rather consist in an exegetical and evaluative study of each case, their characteristics, their claims and actions procedural. Must be a professional challenge in itself, always taking the northern judge their actions, the model social state of law and justice, which aims to everyday ordinary people, when you turn the judicial system. Accordingly, the Board of Criminal Appeal considered from this upheld the complaint under Article 467 of the Criminal Procedure Code and in compliance as stated in Articles 190 and 195 of said code, the principles and rights be violated constitutional and legal order, in relation to due process, protection and effective legal protection, is set aside the order of admission of the May 3 2006 and the decision of 9 May of that year, issued by the Board No. 3 (accidental) of the Court of Appeals Judicial Circuit of the Metropolitan Area of \u200b\u200bCaracas, telling him to another chamber of that appeals court decision on the appeal filed by the victim identified in this case, regardless of the vices committed. This states ... For its part Constitutional Chamber of the Supreme Court, in Case No. 1 01/11/2006, ordered the duty to convene the respective oral hearing for the resolution of the appeal against the decision to agree to the dismissal of the case, as provided in Article 455 and 456 Criminal Procedure Code, when he said: ... with respect to the declaration of invalidity of the ruling of the Board No. 2 of the Court of Appeals Judicial Circuit of Carabobo State, on 11 October 2004, for failure held the public hearing at which oral arguments should have the basics of appeal, in accordance with Article 456 of the Code of Criminal Procedure, we see that as expressly provided for the applicant, the Court of Appeals had referred to convene the public hearing in accordance with the specific obligation laid down in Article 455 eiusdem, as set out verbatim the same in his written Review: "(...) the article would be violated as to the arguments and reasons given by the Criminal Chamber (sic) in the decision under review, is Article 455 and Article 456 not both of the Code of Criminal Procedure, as mistakenly set the sentence under review. " (...) In addition to this, appreciate this court that the arguments put forward by Criminal Cassation Chamber leaves no doubt about it, about the violation of the rights to due process and protection of the parties involved in the process, since Article 456 of the Criminal Procedure Code provides for the way it should made such a hearing and this is guaranteed the right to be heard in the same ... Accordingly, the Court of Appeals, accepting the jurisprudence of both Chambers of the Supreme Court of the Republic establishes explicitly the change of position of the Appellate Court regarding the procedure to be given to those resources before the Court of Appeals, so that the process that will give the resolution of this appeal is set out in the Code of Criminal Procedure for final judgments. notifications. Dr. HENRY ANDREA Advocate UCAB