The Essential Role of the Accusatory Function in the Democratic Rule of Law

Abstract

Viewing criminal procedure from the perspective of the Democratic Rule of Law entails understanding it as a constitutionally established instrument that replaces authoritarian methods with consensual processes for the analysis and adjudication of criminal cases. Considering the consensual symmetry observed in the formulation and establishment of fundamental rights—shaped by diverse political forces—it follows that such symmetry should also be preserved in decisions that, based on the commission of a criminal offense, seek to restrict those rights. Drawing on Habermasian theoretical foundations, it is possible to conceive a high degree of legitimacy—even within criminal prosecution—where the restriction of a fundamental right requires a necessary convergence among the legislative, executive, accusatory, and judicial functions. In this context, the accusatory function proves essential, as, in coordination with other state functions, it contributes to legitimizing judicial decisions—whether precautionary or final—that impose restrictions on fundamental rights.