Publicación: Equilibrio de la igualdad de armas en la aplicación de la ley 906 de 2004
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Colombia, stands as a Social State of Law, which establishes by its very nature, a series of principles and guarantees to citizens in the development of private relations and with the State, one of those guarantees, considered as one of the most important, is due process, which as a guarantee and fundamental right, is structured on a series of postulates drawn from the principlism, which seek to guide the correct development of the process, whether judicial or administrative, achieving its purpose, without ignoring its progress and application, the rights that assist each procedural party, regardless of its nature. Thus the political constitution of 1991 in each of the sections of its article 29, includes a series of postulates and basic guarantees, which were being protected in the same sense by article 23 of the previous Political Constitution of the Republic of Colombia of 1886, in what refers to due process, strengthening this fundamental right with the emergence of the Constitutionality Block, which allows the implementation of international treaties and conventions, expanding respect for the guarantees that are inherent in this right, through a scenario international that covers in this sense and guides the entire internal legal system. Within the framework of criminal law, the superior principle that encompasses, coordinates and engages the fundamental rights of defense and due process, is the so-called equality of arms, which, by its own values superior to the legal system, in turn contains several subdivisions in the development of the Colombian criminal process, guaranteeing the contradiction and the permanence of equality between the accusing body and the defense in each stage or procedural moment, maintaining a constant balance; Its sub-elements include being treated with equality from the beginning to the end of the process, being able to provide evidence in the same conditions of the accusing body, as well as performing their respective control, equality in the possibilities and times of intervention in the process and being present during the respective hearings, among other aspects that allow to achieve true equality of arms in a broad sense, summarized in equal opportunities and procedural instruments, to guarantee both the material defense and the technical defense. Thus, international treaties and conventions of a binding nature, have been responsible for developing the guidelines and providing the States parties with a series of fundamental assumptions and tools in the development of ius puniendi, which cannot be limited even in the states of exception, in order to achieve in each process, that equality of arms between the procedural parties in the criminal scene and avoid that the balance in favor of any of them is broken and the purpose of the process itself is lost. Thus, theoretical approaches to the principles and guarantees that guide or should guide the development of the criminal process will be made, with special emphasis on the so-called equality of arms to reach its best conceptualization and understand its location in the legal system, its origin, the postulates that compose it and its influence in the design of the modern procedural statutes, continuing with the study of them - principles and guarantees- accepted at national level and mainly at international level incorporated through the Constitutionality Block to the internal legal system, addressing the first section of the work from a formalist perspective, then an analysis of the international and internal legal system will be carried out in a detailed study of each of the stages of the Colombian criminal process, as well as an examination of international and internal jurisprudence regarding the principle of equal arms and work In this regard, the contextual framework, the development and geographical location of the investigation in the Municipality of Apartadó will be established, carrying out an analysis in the balance of the application of the principle of equality of arms of each of its intervening, in the different procedural stages that take place in the development of five criminal proceedings already completed processed in the Criminal Courts of the Circuit and Municipal Promiscuos of said municipality, continuing with a study of comparative law of the legal systems in the accusatory criminal system of Mexico, Costa Rica and Peru, in relation to the Colombian Procedural Code - Law 906 of 2004 -, analyzing each of its stages, ending with interviews and surveys of litigating lawyers in the area, public defenders in the criminal area, Municipal Promiscuous Judges , Criminal Circuit Judges and prosecutors, in order to demonstrate their perception in the principle of equality of weapons both in the ordering