Third -party intervention in the criminal process
A third party can be defined, such as the one that is not an immediate part of the process, and that cannot be affected by the effects of the same. However, it is considered as the subject that acquires that quality of the process without necessarily being an actor or demanding the process, but that has already initiated it, intends a sentence favorable to its interest. It is important to highlight, that in order for the intervention of a third.
Ortiz (1999) We understand by procedural third parties those who, in principle, do not appear in the trial as an actor or defendant but who, due to their special legal position, are united with the subjects or with the object of that judicial process, ofsuch a way that they have a legitimate interest in the results of the sentence that is issued there. (p.541)
That is to say, that this third is promoted by nature, which makes it a postulate to intervene in the process, assuming a position just like the parties (either defense or attack) in guardianship is its own legal interests as wellcoincides with the interest of any of the parties. As Henríquez (2013) expresses that the intervention of a third party is given because "they are invested with the quality of part when entering the process …" (P.184). Then the participation of third parties can occur in any type of judicial process and acts within it without the need to promote another new process or that is different from the one that is ongoing, and it is the sentence that will also decide the fate of the claims of theThird involved.
Likewise, the purpose of the participation of a thirdprocess for the defense of their interest and that will also allow favoring the procedural economy and a contradictory sentence could be obtained. The Civil Procedure Code (CPC) exposes in its article 370 in grossof embargoes on goods that are of your property, which pretends through your interest to help some of the parties to defeat in the process, when your intervention is requested by any of the parties because the cause is common, for the right ofsanitation or guarantee, or to appeal a final sentence according to article 297 of the CPC.
Then the intervention of third parties in the legal process is regulated in the CPC, articles 370 to 387 of this law, dedicated in a first section to the voluntary intervention, and a second to the forced intervention. For Corridor, one of the most common characteristics of the intervention of a third party in the case, is "that who is not originally demanding or defendant is voluntarily or mandatory, being called by any of the original parts", that is,, it can be called either by one of the parties or by the court to oppose or to contribute and hold reasons of any of them, of course knowing that the final result of the sentence can favor their own interests. It is worth mentioning what Gonzales (1998) exposes:
The intervention of third parties in the process is one of the most worrisome issues of doctrine;Well, in principle, the process includes the two parties between those who usually process (the actor and the demand) and only they take advantage or harm the subjective limits of the thing judged that the final sentence is likely to acquire. However, which, legal relations are usually of such complexity that the litigation affects third party rights;who, in this way, are linked in a process in which they have not intervened (at least initially) and whose sentence is susceptible, despite the expressed circumstance, of generating a damage. There, precisely, the need to regulate the Institute for the intervention of third parties in the civil process. (p.392)
According to the author, it can be considered that the participation of the third in the process, it will not be so, since some budget that links the interest of the third party so that it can enter the cause, among them there are theConnection, where the object of the process and the claim of the third must be linked, the third is not allowed to deduce a new claim, but must be correlated with the interests of some of the parts of the current process. In addition, its own and current interest in the process must be alleged, and that this interest is true, that is, not a simple probability, but the final decision can favor, not only to some of the parties but also to its claim in thecause. And that the interest invoked is legitimate, that is, based on the right, because the interest itself is not sufficient, it must constitute the same condition that allows an independent action legitimately.
There are several forms of intervention of third parties in the case, regulated in Venezuelan legislation, through the CPC it was considered convenient to systematize them and it is in chapter VI of the Second Book of the Code of Civil Procedure, title and referred to the introduction of the causes inThe ordinary procedure, it is distinguished, as previously mentioned, two kinds of intervention: the volunteer that covers the main one (third party and opposition to the embargo) and the adhesive (Adiuvandum and the appeal of the third);and forced, coercive or necessary intervention. Then once the intervention of the third party takes place in the process, people otheron behalf of the current process.
For Cuenca (1998) the voluntary intervention “occurs when the third spontaneously, for its own rights, intervenes to sue both the actor and the defendant, in a special relief figure called third party (art. 387. CPC)… ”(P.322) Also, the Civil Cassation Chamber, by means of Judgment dated June 11, 2013, in terms of voluntary intervention of third parties Express:
… There is no doubt that the voluntary intervention of third parties contemplated in ordinal 1 of article 370 of the Code of Civil Procedure is related to the main trial, whose pronouncement must embrace both processes, all in accordance with the requirements required in article 371 and followingof the Code of Civil Procedure, which unfailingly determines that it must be filed in the outstanding case and not before the natural judge called to know, in protection to due jurisdictional protection and the recognition of the rights of access to justice ..
In this order of ideas, the intervention of third parties can occur through the voluntary intervention that includes the adhesive, main intervention, appeal and opposition to the embargo, established in the ordinals 1st, 2nd, 3rd and 6th of the CPC. The adhesive intervention, also called accessory, takes place when this third has a current legal interest in sustaining the reasons for any of the parties so that it is victorious.Romberg (2001) states that the intervention of a third party "is that intervention with current legal interest in the decision of a pending controversy, which aims to help one of the parties to overcome in the process" (P.174) This intervention lies with its own interest, either because it fears the indirect effects or reflexes of the thing judged, or because the law extends the effects to the legal relationship between the third and the adversary. In this action the third must use the same arguments that the container used to base his right, because the reason for his speech is given by the result of the trial. When he intervenes he does it without claiming any right for him, but for the part that helps in the process.
On the other hand, a litisconsorcial intervention is considered when a third party that is considered a holder of a substantial legal relationship, to which the effects of a sentence must be extended presumably and that for this reason was legitimized to sue or have been sued in the process,With the same faculties. It is necessary that the intervener leads to the process a legally related and parallel claim with that of the native parties for sustaining itself in the same title in the same legal cause or in the same material relationship, so that the result of the process will affect both theOriginal part as the consortcial subject.
As for the forced intervention of third parties in the case, it is determined because the third does not incur voluntarily, but is called through the court, just as it is not an original part of the process once it intervenes is part of it;Although his intervention is not voluntary, that does not deprive him of the will and interest he has in terms of the final decision made by the judge. For Ortiz (1999), forced intervention is the “procedural activity of the third party given by a court order and, in which, the legal interest of the third is dragged by the request of the parties by pretending from the third party a right of sanitation orguarantee (p.548) Likewise, this type of intervention is regulated in article 370 of the CPC, 4th and 5th ordinals, where it establishes:
Third parties may intervene, or be called to the pending cause among other people, in the following cases:
- 4º When any of the parties ask for the intervention of the third because the pending cause is common to this.
- 5º When one of the parties intends a right of sanitation or guarantee with respect to the third party and asks for their intervention in the cause ..
Then, the participation in these cases of the third party is no longer given by its own will, but it is requested due to the call made by the judge (ex officio) or because some of the parties request it through the respective procedure, establishedin article 382 of the CPC, which provides:
The call to the cause of the third parties referred to in the 4th and 5th ordinals of article 370, will be made in the answer to the demand and its summons in the ordinary forms will be ordered, so that they appear in the term of the distance and threemore days. The call of third parties to the case will not be admitted by the Court if the documentary evidence is not accompanied as the basis of it.
In these articles it is clear that the participation of the third party, in this way forces it as part of the process, is requested in the act of the answer with their respective foundations, where the judge considers it necessary to incorporate it into the case. Balza (1995) points out that "the forced intervention is given, when the third parties are called to the cause, by any of the parties in the act of response of the claim, and based on this, the court orders its citation"(p.462) In this sense, some doctrinals define a form of forced intervention, which is the necessary litisconsorcio, for the Roche (2013) this intervention is given:
When the decision cannot be pronounced more than in front of several subjects, the call is necessary for the proper integration of the process (necessary consortium). The unit of the cause requires that the procedural relationship be composed of all the demanded litisconsortes, and all may also offer and fill out the evidence that suits them. (p.189)
That is, so that it is of this type of intervention of a third party, the cause must be common between it and the parties, and according to those established in the CPC, article 382, by some of the parties and that will not be admitted withoutThe foundation of the documentary evidence in the answer. This opportunity is, the plaintiff is in accordance with ordinal 4 of article 370 Eiusdem, it prevents once overcome twenty days of the period for the answer to the claim (article 359 eiusdem). Once the citation must attend to the call within the term of the distance and three more days, proposing in its answer all the possible defenses that favor it, without being able to formulate previous issues, all this regulated in article 383 of the CPC.
In addition, according to article 370 of the 5th Ordinal CPC, forced intervention, is considered the guarantee or appointment of sanitation and guarantee. According to Loreto "it is the institution through which … the right that affirms a part of it or both to be sanitized or guaranteed by a strange and different subject from those that make up the procedural relationship" can also be carried out (P.495) then when the third is called as a guarantee, it is given because a lawsuit was filed against any of the parties and it calls a third party who will guarantee the obligation required.
For its part Romberg (2001), defines the sanitation appointment “through which one of the parties enforces in the main process a claim against the third … This intervention is said forced, because it originates by will and at the request of the part…”(P.198) Also, La Roche (2013) refers to the guarantee appointment “When any of the parties intends a right of sanitation or guarantee with respect to the third party, the legal relationship of guarantee whose obligation is in charge is in charge in the current processof a third party ”(P.191) The third is used, in appointment as a guarantee or healthe established terms and with their respective defenses within their answer.
Finally, it is worth highlighting the contribution of Parilli (1993), who defines the appointment of sanitation and guarantee as:
A right that has any of the parties or both in the trial, as a means of defense that allows them to call the third to the cause in order to hear their allegations on the controversial matter in which he will intervene erect in part, so that the judge decidesa single cause that will have extensive effects to all participants in that trial. (P.228-229)
In addition, the third that appears before the call, can request that another person be cited, and so on how many times, provided that the summons in the same terms are practiced. When the first appointment is proposed, the course of the main cause is suspended for ninety days, time in which all appointments and their respective answers must make. If new appointments are not proposed, the cause takes its course the day following the last answer, these regardless of whether the term of time had not yet defeated, the main trial and appointments, article 386 of the CPC. Everything related to the relative issues of the intervention of the third. The final sentence will have extensible effects to the third, who can exercise the resources that by law are allowed to the parties in the trial.
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