The witness with opportunity and reserved identity criteria and compensatory measures to safeguard the right of defense in criminal proceedings

Abstract

The criterion of opportunity constitutes an exception to the principle of the obligatory prosecution of public action crimes. In criminal procedural legislation, different scenarios are regulated in which this criterion applies, some based on the lack of necessity for a criminal sanction from a general and special preventive perspective (which occurs, for example, when the author or participant has received a natural penalty as a consequence of the crime); other scenarios, on the other hand, are based on strictly utilitarian reasons, such as the aim of effectively clarifying the criminal act and prosecuting those responsible for it. It is precisely with this purpose that the Salvadoran legislator has regulated the figure of the witness with the criterion of opportunity, also known as "informant co-defendant," "crown witness," "repentant," "effective collaborator," "criteria witness," among a variety of terminologies that are alternatively used to designate the co-defendant who decides to effectively collaborate in the investigation by denouncing the other authors and participants involved in the crime. In this article, we analyze to what extent the admission and evaluation of the informant's statement, whose identity will often be kept confidential, negatively impact the right to defense, identifying, moreover, the essential compensatory measures to safeguard the aforementioned right in the criminal process.