The Defendant’s Right to an Objective Investigation

A Debate Between Models and Reforms from the Uruguayan Case

Abstract

The purpose of this contribution is to position the right to an objective investigation as a subjective right of the accused and as a guarantee of impartiality in criminal investigations, specifically during the stage of the preliminary inquiry or unformalized investigation. The inclusion of this "right" as part of the normative framework corresponding to an ideal and regulatory standard of the adversarial process is the subject of ongoing debate. Some positions openly challenge the very existence of a right to objectivity, arguing instead that its enforceability depends on the adversarial dynamic that ontologically structures the accusatorial model. Any reference to a duty of “objectivity” that entails a corresponding subjective right of the accused, according to this line of reasoning, would distort the normative division of roles intrinsic to the regulatory model. While these critical positions may preserve a certain normative coherence and argumentative rigor, they fail to account for the complexities of procedural reform and the factual elements that must be incorporated into regulatory analysis. For instance, in the case of Uruguay, they overlook the nascent development of the Office of the Attorney General and the laborious enactment of an organic structure designed to grant it a degree of functional autonomy from both the Executive and Judicial branches. Once the theoretical debate has been outlined, the next objective is to elaborate the normative content of a right to an objective investigation, including in particular the procedural guarantee of recusal of prosecutors and/or investigative assistants. In this regard, a comparative overview of the regulation of recusals in Ibero-American jurisdictions will be presented, highlighting the strengths and weaknesses of the various models. Additionally, we will seek to identify practical and easily applicable remedies aimed at mitigating the shortcomings of the Uruguayan regulatory framework, particularly with respect to the functional duties of recordkeeping and adherence to methodological principles that ensure the traceability of evidence.