El desconocimiento de la calidad de interviniente, en el “contrato sin cumplimiento de requisitos legales” y su demanda de casación, por prescripción de la acción penal

Abstract

The objective of this work is to determine the legal tools employed to present a cassation demand against a condemnatory sentence in which a person is sentenced as an author of the crime “celebration of contracts without the legal requirements” when he really participated as an intervenient, quality which generates the reduction of the prescription term of the penal action as well as the reduction of the maximum penalty. The article 410 of the Penal Code sanctions the public server who in reason of the practice of his functions, celebrates, process, or liquids a contract without its legal requirements or without verifying them. Following this idea, the article 30 of the Penal Code defines the sanction corresponding to the participant in the penal action and in its last paragraph affirms “the intervenient who not having the especial qualities required by the penal type, concurs in its realization, will have a reduction of one quarter of the sanction”. This indent was declared constitutional by the Constitutional Court by sentence c-122/2008. The Honorable Criminal Cassation Room, in the last 15 years has pronounced about the cassation demands for the crime of “contracts without the legal requirements”, in sentences constituting precedents. However judges omit the precedent when they give to the prosecuted the quality of author when he really is a simple intervenient. This aspect has a vital importance at the moment of calculating the prescription term which in case of its production, extinguish the sancionatory power of the state. This can be argued in seat of cassation. Therefore, when the intervenient is condemned as an author of the crime previously mentioned, the due process is being violated as well as his right of defense, because his period of prescription of the penal action is less, which can originates the nullity of the sentence, and impose in seat of cassation a substitutive sentence of ceasing of the process according to the article 39 of the Procedure Penal Code (Law 600/2000).