Compensation by judicial error: the forgotten right of the accused within the constitutional reform of security and justice of 2008

Abstract

Presently, by being within a Constitutional State of Laws, it would seem to be implied that the judicial system acts for the common good and social peace, and that this will always be the case; however, at present the State action in a primitive manner makes its limits known, that is to say, it exceeds the use of ius puniendi, which in many occasions its proceedings are not the most precise and viable, as such all actions on behalf of the state must be directed to guarantee both the accused and the victim and/or the offended, with confidence that its actions will be correct so as to take the criminal proceedings to a just conclusion. However, at present there is a debilitated judicial State, given that it has not made itself responsible for its performance with regard to the accused, and therefore the person who, within the accusatory penal system is illegally detained or, as the case may be, convicted by final judgment and that has fulfilled a sentence or is in the process of fulfilling a sentence, and that due to new facts is shown that there has been a judicial error, must have the right to compensation and, furthermore, that their sentence in the case of it being ongoing be annulled. The latter acquires and covers not only the right of any person accused, but that nowadays is a fact that must be considered as a right of the accused, which must necessarily be embedded in article 20 paragraph B of the constitution.