The Oriental Republic of Uruguay is a country in the southeastern region of South America. It borders Argentina to its west and Brazil to its north and east, with the Río de la Plata (River of Silver) to the south and the Atlantic Ocean to the southeast. Uruguay is home to an estimated 3.44 million people of whom 1.8 million live in the metropolitan area of its capital and largest city, Montevideo. With an area of approximately 176,000 square kilometers (68,000 sq mi), it is an unitary state. The public powers are concentrated in the Central Government. However, there is a geographical displacement of the legislative and administrative powers from the Central Government to the departmental governments. These departmental governments are not submited to a harsh hierarchy, but still respect some control from the Central Government. Due to Constitution, nowadays Uruguay can be described as a constitutional State in which the law guarantee the social welfare of all its people. The current constitution is the Constitution of 1967 with the amendments of the plebiscites of 26th November 1989, 26th November 1994, 8 December 1996 and 31th October 2004. In 1973 there was a coup d’État that established a military dictatorship. The military government persecuted leftists, socialists, and political opponents, resulting in several deaths and numerous instances of torture by the military groups. Only in 1985, the military relinquished power to a civilian government. Nowadays, Uruguay is a democratic constitutional republic, with a president who serves as both head of state and head of government.
Type of system
Uruguay is part of Civil Law System inspired by the Romano-Germanic laws. The constitution is the supreme law of Uruguay. It stipulates that the country is ruled by three independent powers: the legislative, the executive, and the judicial. Nevertheless, the constitution has created some agencies or institutions very important for the democratic process, such as Electoral Court, administrative court and Court of Audit or Court of Accounts. The three branches and Electoral Court, administrative court and Court of Audit or Court of Accounts represent the Public Administration in strictu sensu. After the Amendment in 1996, the system of government is more complex, because it is not a strict parliamentary system neither presidential system. It has clauses from both of them. For example, the censure motion that is very famous institute in the parliamentary system. The president is head of state and head of government, which is tradicional characteristic in a presidential system.
Source of defendants’ rights
Uruguay is a constitutional State in which the law guarantee the social welfare of all its people. So, the liberty is the basis of the system, according to 10th article of the Constitution. The constitution recognizes that all citizens are equal before the law, without distinction of any kind, apart from their virtues (8th article of the Constitution). That is the principle of the equality under the law. The uruguayan law predicts a system of control and responsability for the public acts and authorities. It guarantees to citizens residing in the country the inviolable right to life, honor, liberty, equality, work, and property. It is a democratic state due to political pluralism with many political parties that disputes free and periodical elections. Majorities influences the decision with respect for the minorities.
The recognition of the social state guarantees the economic, social and cultural rights and duties for the population. So, it is possible to highlight these aspects:
- a) the recognition of the equality,
- b) the recognition of the liberties,
- c) democratic process of elections,
- d) the constitutional recognition of the person and your liberty as values and principles,
- e) the public organs have limited and written powers.
According to article 72 of the Constitution, the catalogue of rights, duties and guaranties written in the Constitution do not exclude others related to human personality and the republican regime of government.
Sources of Defendant's Rights
The defendant’s rights in criminal proceedings are found in the Constitution in the section II, chapter I and throughout the Criminal Code. The criminal justice system is viewed as a three-part system consisting of the judge and jury, the prosecutor, and the defense lawyer. Each part of this system has a specific role. The article 22 of the Constitution guarantees that the criminal judgement could only begin by acusation of the victim or the public prosecutor. The secret investigations are prohibited. The Constitution, the Code and international law recognizes several guaranties to assure the integrity of an individual, as process rights, including the presumption of innocence; right to counsel; protection against self-incrimination; protection against the use of evidence illegally obtained; and the protection against unreasonable and disproportionate sentences including prohibition of death sentence.
RIGHTS OF THE ACCUSED
Criminal Law System
The dignity of human beings and human rights recognised in international law are the main guiding principles of the criminal law in Uruguay. The Criminal Code of 1934 has not changed very much in its general part. But there was the constitutionalisation of criminal law. So, human rights limits the aplication of criminal law. The last article of the Constitution (article 332) guarantees that the individual rights recognized by the Constitution and also the duties of the public authorities can not be abandoned by lack of law. The lack of acts should be solved by analogy, general legal principles and legal doctrine.
These are the most important criminal constitutional principles, ideas and articles of the Constitution:
Legality Principle or the Legal Reserve The legality principle requires the law to be clear, assured and non-retroactive. The Constitution and the Criminal Code stipulate that there is no crime without a previous law to define crimes, nor punishment without prior legal sanction. It is a constitutional right expressed in the articles 10 and 72 of Constitution and CPU, article 1º.
- Principle of the personal responsability
People can only be responsible for their own actions and omissions. It is prohibited criminal responsability to people by general actions of a corporation.
- Principle of equality under the law
The criminal law can not predict prerogatives to people, but only to public authorities due to their position in government.
- Principle of due process of law
- Principle of culpability
- Principle of presumption of innocence.
- - It is prohibited the death sentence. The punishment of prison should be able to resocializate and reintegrate prisioners into society.
- - It is prohibited the confiscation of property due to political reasons.
- - It is prohibited the prison by debts.
Relationship between Defense Lawyer and Defendant
According to article 16, the person that was accused has the right to offer a defense by a lawyer. The lawyer has the right of being present in all proceedings and investigations.
Ethics and Professional Responsibility
There is a Code of ethic for lawyers. The lawyer must only act in the best interest of the client. The lawyer has the liberty of rejection cases and leave cases. The lawyer has responsability for everything that has signed. The lawyer must inform the client his opinion, the payment or the possibility of free assistence and his work during the process. The lawyer can not represent opposite parts in the process due to the conflict of interests. The lawyer has responsability of keeping professional secrecy.
The lawyer must work for the defense of human dignity with independence. The lawyer must not accept external pression. The lawyer has the right of being presente in all proceedings and investigations.
The judge can guarantee the liberty to the accused person with bail, in any moment of the process, if there is no chance of prison sentence.
The uruguayan law admitts the pre-trial detention. However, the Inter-American Court of Human Rights decided that it is a violation of the Convention limiting the liberty, during a disproportionate period, to people that was not condemned in a sentence due to presumption of innocence.
The article 22 of the Constitution guarantees that the criminal judgement could only begin by acusation of the victim or the public prosecutor The secret investigations are prohibited. The lawyer has the right of being present in all proceedings and investigations. The new criminal procedural Code has changed the procedural rules profoundly. The purpose is to strengthen the adversarial system by introducing oral and public proceedings. The inquisitorial system was abandoned. So, the public prosecution (Ministério Público) leads the investigations. Not the judge, anymore. From the moment of its opening, the investigation that the deadline of one year to be concluded. All these legislative changes in procedural rules had to rewrite in the Cort’s Organic law, Police Organic Law, Criminal Procedural Organic Law and Statute of the Public Prosecution.
The article 17 of the Constitution establish the habeas corpus in cases of violation ofliberty. The “acción de amparo” is the instrument for threats or violations of constitutional rights.
The defense lawyer's role is to argue on behalf of the defendant. The defendant has no burden of proof. That is, the defendant need not prove his innocence. It is enough simply to point out ways in which the state has not established guilt (e.g., an eyewitness has poor eyesight or an accuser has a motive to lie).
Legal Defender Best Practices
There is a Code of ethic for lawyers, that predicts some of the best practices of the legal defender. The lawyer must only act in the best interest of the client. The lawyer has the liberty of rejection cases and leave cases. The lawyer has responsability for everything that has signed. The lawyer must inform the cliente his opinion, the payment or the possibility of free assistence and his work during the process. The lawyer can not represent opposite parts in the process due to the conflict of interests. The lawyer has responsability of keeping professional secrecy.
The evidence obtained in an illegal manner is prohibited. Excepted prison for flagrant, nobody should be arrested without evidence.
It is admitted the plea bargaining in Uruguay, according the new criminal procedural code. Prosecutors have the right to settle proceedings, although the judge will still have full control of sentencing.
Nobody can the convicted or punished without trial, according the article 12 of the Constitution. The law could establish the trial with jury for criminal cases (article 13). In the criminal procedural law, there uruguayan system predicts one judge to work during the phase of audiences and the beginning of the process (including decisions of pre-trial detention) and another one for the oral phase and sentencing. This new system guarantees the individual rights established in the international law. The Constitution establish that only the Suprema Corte de Justicia does the control of constitutionality of law, according the articles 256-261 of Constitution.
The guilt and sentencing phase are often merged and the judge will pronounce both at the same time. Until the sentence and end of trial, there is the presumption of innocence.
After a defendant has been convicted of a crime, he may appeal the ruling to a higher court. Many instruments could be moved by lawyers. The most famous one is the habeas corpus.
The Constitution guarantees that the law predicts a Juvenile Justice, that is a specialization in the Justice and has a special regime.
According the article 47 of Constitution, Uruguay has the obligation of respecting the International Conventions to reduce the social problems by law.
It is prohibited the death sentence and cruel punishments. The punishment of prison should be able to resocializate and reintegrate prisioners into society.
Respecting the international conventions, Immigration law is governed at the national level with legislation which controls which immigrants may reside in a country legally. According the article 37 of Constitution, it is free the entrance of all people in the uruguayan land, their permanance and their exit with gods, according the law without harm for others. The imigration must be expressed by law.
- ROCCA, María Elena (coord). Teoría de la constitución y el estado para principiantes.
- URUGUAY. Constitution of 1967. Available in: https://www.presidencia.gub.uy/normativa/constitucion-de-la-republica>
- URUGUAY. Ethics Code for uruguayan lawyers. Available in: http://www.colegiodeabogados.org/2011/codigo_de_etica.php