Due diligence in criminal proceedings

statute of limitations vs. nullity

Abstract

The indictment is an official accusation stating that a person is being charged with a crime so that the defendant can exercise their defense. Along with the indictment, the Prosecutor can request precautionary measures against the defendant. The indictment is the first step of the criminal court proceeding and marks the beginning of the term for prosecuting. However, the judge can declare the whole process null and void at any point in the court procedure. Suppose the judge declares that the nullity happened before the indictment. In that case, the Prosecutor can issue a new accusation which will restart the term to prosecute, thus creating a conflict with the statute of limitations of the criminal prosecution. From a formal point of view, the first indictment is invalid, so the term to prosecute begins at the second valid indictment. But does the nullity also voids the suffering of the defendant? After analyzing the Constitution, international instruments, and court precedents, we concluded that it is not legal to extend the term to prosecute and that it leads to a violation of the statute of limitations of the criminal action.