Preventive Prison ¿precautionary measure or anticipated penalty?
Introduction
Preventive detention is known as an institution of criminal law, a theory itself that is inserted in the processes and in the pragmatic study of the criminal area. It is necessary to state that its appearance in Latin America was in the last two decades and since then what has been sought is to modify the judicial processes in terms of the criminal area. The intention of this essay is to analyze whether preventive detention must be considered as a precautionary measure or an anticipated penalty, based on this conception, it can be stated that a precaution same that can be granted by a judge at the time the trial begins especially when considering that there may be a danger that the process does not evolve in the proper way.
Developing
For the author (Ascencio, 2011), preventive detention being a precautionary measure, gives the involved a series of changes in his daily life, since he moves away from his daily activities, from his family, thus suffering directly the Effects of it, so it is required that they are expected to less intense measures that allow us to reach the determined end, thus reducing the impact it may have on the family, work and environment of the surroundings of the involved.
On the other hand, the anticipated penalty has been taken into consideration since sometimes it tends to interpret that preventive detention goes beyond a precaution For this is the interpretation that has been given to him, but it is necessary that it be known that preventive detention is not a penalty, according to the author (Balestra, 1995) is considered as a evil that is imposed by the commitment of a crime, that is, it is given for those who have committed some kind of act that has affected society or a person who forms it. From this point of view it can be analyzed that a penalty is the result of the action, in this case of a crime that an individual has committed and product of that action has generated some type of damage. For this reason it is necessary to clarify that preventive detention cannot be considered as a penalty even if there are several points of view that demonstrate otherwise, since the only thing that seeks the same is that the prosecuted is maintained in the trial, but it is not It imposes the fulfillment of a sentence, that is, that if it were a penalty, it would be made known to the time that would be purging for his crime, but not being, the only thing that is done is that the individual remains in prison the time that the time that the time that The investigation lasts and as a result it can be considered guilty and deserving of a penalty in sentence or being acquitted, therefore it would already achieve its freedom, which could not be done when it is already sentenced and in reality it is fulfilling a penalty for The commitment of a certain crime.
Another authors who argue that preventive detention is not a penalty is (Dei Vecchi, 2013), who states that it is a precautionary measure in such a way that it does not affect the principle of presumption of innocence, beyond that what it seeks is that the freedom of an individual is deprived but that this is according to the law with the intention of preventing an alteration from the process and thus guaranteeing an adequate investigation of the criminal offense to which it has been related to the prosecuted, through this investigation its judgment would be carried out and then ensure that the penalty is fulfilled.
Preventive detention in Ecuador can be known through the Integral Criminal Organic Code (COIP, 2019) since in its article 534, it mentions that it is considered a means that allows a guarantee that the person who is being prosecuted is processed, goes to the process And therefore, in case of being culpritable, it is worthy of a penalty, that is, it allows the assurance that this person will be responsible for the crime attributed to him in the event that he has committed it, thus being the Fiscal meets the power to ask the judge, as long as their request is foundation, that preventive detention is imposed, for this it is necessary that there are elements that allow to determine that there is a crime, have components that indicate or that allow us to understand that The prosecuted has been effectively who has committed a crime or has been complicit in it, indications that allow us to know that the precautionary measures that deprive liberty are the only way that the defendant remains in trial and does not divert the process, an example of this situation could be in the case of violation, at the time there is a clear and precise indication that this person committed such a crime, no There is another means that guarantees that the defendant goes to the trial since in many cases they have fled, for this reason, the preventive detention would be the ideal means to guarantee the rights of the victims. Finally and not least, pretrial detention is given when the crime that has been committed is on an infraction that its sanction exceeds the imprisonment of one year.
It is of great relevance to emphasize that several writers have agreed that preventive detention could not be considered in the legal system since it can be seen as a pre -penalty since keeping the prosecuted prison is condemned to get away from his life everyday, of his daily life, which is why this precautionary measure must be imposed only in the event that there is no other way for the accused to be present in the process. That is why the author (Ferralaji, 1995) states that the defendant must go for himself, with freedom before the judges, in this way the individual is taken care of since there could be the possibility that he is innocent and when he puts in pretrial detention He would be condemning an anticipated penalty, on the other hand, keeping the individual from this precaution to the interrogation and before the trial and thus the taxpayer of the infraction does not have the possibility of trucing justice accusing the accused and above all avoid misrepresenting the evidence against the accused.
On the other hand, the author (Maier, 1996) states that in terms of the application of the precautionary measure of preventive detention, there has begun to exist a citizen agreement especially in the way in which it has been incorporated by resulting in a result of aChange in criminal law since through this precautionIt is indeed who has been the author of the criminal offense or in turn that he has participated in the crime as an accomplice resulting.
The reason why it has been known that preventive detention is an early penal such as that of exceptionality which seeks to prevent the accused from stopping without a sentence is used as a conviction and above all, precave it to apply it in minor criminal infractions especially when they do not have necessary evidence to make known that the accused could avoid the process or not to go to it, to more than this the principle of minimal intervention allows us to know that you only the criminal intervention when its application is suitable, which means that the judge should not apply the preventive detention in the event that the way to make use of other mechanisms that are appropriate for the application of the other principles and norms recognized in the legal system , on the other hand, the principle of proportionality itself that is recognized in the Constitution of the Republic of Ecuador and the COIP in its article 522, has announced that measures will not apply non -private liberty measures, that is, it will be sought Anyway, a measure that guarantees the rights of the parties but above all that the application of preventive detention as already said above is last ratio, that is, when all possible forms has already been seen, and this precautionary measure is seen as the only or last guarantee form for the process to develop in the right way. In other words.
It should be noted that there are many international treaties that, as is well known, protect human rights and dignity, taking into consideration that these limit the power of the State, as an example of these treaties, we have the (Inter -American Court of Human Rights, 2017) same that states that cases of excessive use of preventive detention have been announced, remembering that the IACHR is looking for human rights to be guaranteed and respected, therefore in its report on the means that allow the application to reduce of the preventive detention, it makes it known that its application must ultimately be the last means of application to guarantee justice, and one already applied in case of necessity and suitability, periodic reviews must be carried out which guarantee that the people who who They are in this precaution against human rights or international standards. An example of its bad application is the case Carranza Alarcón vs. Ecuador that has violated human rights and has given abusive use to the application and duration of preventive detention against Rosendo Carranza.
conclusion
To conclude, preventive detention is a mechanism that guarantees that the process will be carried out without any deviation and above all it is responsible for ensuring that the processing remains in trial. It should be clarified that it is not a penalty but the abusive application of this precaution Author of this essay concludes that this situation must be subject to an exhaustive analysis of each case. By saying that it is an anticipated penalty, it is understood that it is imposed before the sentence with an executed character, so it could be conceived as if it were fulfilling a part of the penalty before knowing whether it is guilty or not, such would be the case that A person is unfairly in a certain period of time in pretrial detention and concluded the interrogation and investigation stage for a certain time and then the state of innocence was ratified? It is necessary that responsibility is considered the State or only released and there would end the whole process, this is an issue which has not been discussed but in my view there should be a sanction for that public official or judge who learned or for that person who unfairly denounced. When there is a conviction would not be an anticipated penalty because the penalty has been counted since they learned.
Reference
- Ascencio, j. M. (2011). The reform of the precautionary measures system. Madrid: the law.
- Balestra, c. F. (nineteen ninety five). Criminal Law Treaty. Buenos Aires: Adedo Perrot.
- COIP. (September 2019). Criminal Integral Organic Code. Quito, Ecuador: National Editor.
- Inter -American Court of Human Rights. (2017). Measures to reduce preventive detention.
- Dei Vecchi, D. (2013). About the justification of preventive detention and some frequent criticisms. Scielo, 26 (2).
- Ferraloji, l. (nineteen ninety five). Right and reason, theory of criminal guarantee. Spain: Trotta.
- Maier, j. (nineteen ninety six). Criminal Procedure Law, Volume I, Buenos Aires, Ed. Del Puerto, 1996, P.490. Good AIRES: Editorial del Puerto.
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