Provisional Prison And Civil Law

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Provisional prison and civil law

Introduction

Since you are going to talk about judicial competences both in the first and in the second issue to be resolved, the main and general issues about them will be exposed on them.

Spanish judicial competences are understood as a non -extendable procedural budget, that is, it cannot be expanded or moved, it can only be exercised by those persons that the law provides.

The competence when decree on duty to whom the case arrives, who will have the competition at the moment in which the previous proceedings are carried out, or where appropriate, the summary, and on the other hand, when the oral trial begins, the competition will have it the criminal judge or the court who competes to know about that specific case. In the event that an appeal was carried out, the jurisdiction would have that court or hearing that would have known that case.

Developing

Provisional prison has been subject to continuous debates, since a person who has not been guilty of having committed any crime is deprived of the right to freedom, so it can be understood that a punishment is being imposed on someone innocent.

Provisional prison is an instrument that is used to avoid the escape of the investigated, which in turn wants to ensure that the process can continue, that is, that the facts can be clarified and declared guilty or innocent to the investigated, thus being able to The criminal system fulfills its objective, so that this is understood as protected and justified the use of this measure.

It also wants to prevent more crimes from committing themselves, which, being based on facts that have not yet been proven, makes the adoption of this precautionary measure something that is carried out based on an alleged danger, as a purely measure Preventive. Finally, and related to the first objective and the proper functioning of the system and the normal development of the instruction, we want to prevent them from hiding or altering evidence.

As for its principles, since this measure acts on a fundamental right, there is jurisdictional exclusivity or principle of jurisdictionality, that is, it can only be imposed by a jurisdictional authority, the competence in each case. In turn, when restricting a fundamental right, this measure must be contained and protected by law, or that implies that there is a principle of legality, but it is not enough that it is contained in the law, but that the reasons why The measure is adopted must be justified, the implementation of the measure must be necessary, so there is a principle of necessity, and in turn there is a principle of exceptionality, which must be understood that the use of this measure It must be something exceptional, only on occasions in which there is no other option. 

There is also a principle of proportionality, that is, the adoption of this measure must be subject to its circumstances, the specificities and characteristics that adopt this measure must be marked by the concrete circumstances of each case. Finally and as indicated by the name of the measure, it must be provisional, it must have a fixed maximum, it will not be able to extend or maintain indefinitely, and it must be reviewed and modified in those moments when they change the circumstances that motivated her.

This measure also has a series of general and specific budgets. The generals also apply to other precautionary measures, and we are talking about the Fumus Boni iuris budget, which speaks of the appearance of the good right, which implies that to impose this measure it is necessary that there are sufficient indications to consider that the investigated is the author is the author of the facts to be able to impose the measure. The Periculum in Mora budget, which refers to the consequences that may be delayed the procedure, in relation to the already appointed need to carry out it, and prevent the investigated in danger the correct development of this.

Said this, it is necessary to name the specific budgets that this measure entails, which are fundamentally that there is criminal appearance in the facts, and a constitutionally persecuted purpose when adopting the measure. As for positive regulation, article 503.1.1 of the Lecrim talks about the seriousness of the supposedly occurred fact, and therefore the severity of the penalty that in proportion must be imposed, thus explaining that the alleged fact must carry a prison sentence of at least two years, except in those cases in which the investigated has a history for malicious crime that are active, in whose cases it will not be necessary that the penalty has the crime is two years, but can be lower. 

With what this article exposes, a base criterion is already established for starting from here to decide in an objective way whether it is imposed or the measure is not imposed, this being the two years of prison as a penalty of the crime. Article 503.1.2 Also of the LECrim talks about the one already named. This is an element that can be relative, depending on each judge to consider that there are not enough causes to find guilt.

The LECrim establishes three provisional prison modalities, which they develop in their articles 508 and 509, these being the communicated, incommunicado and mitigated.

The provisional prison communicated is the most decreed provision explained in article 520.2 of the Lecrim. The following provisional prison typology is the incommunicado, which is carried out under an extraordinary regime, which implies that more rights are restricted than in the previous modality. This modality will be imposed in exceptional cases as explained by the LECrim in article 509.1. This measure may not last more than five days, in which the necessary proceedings must be carried out.

Finally, there is a third modality of provisional prison, which is exposed in the LECrim, in its article 508, where it is stated that for reasons of illness if the internment in a penitentiary center is dangerous, this measure can be carried out in the domicile of the investigated, adding all those surveillance and security measures that are considered opportunities. He also adds that if the investigated were undergoing medical treatment and admission to a penitentiary center interfere with this, the income could be made effective in a center or an organization that is officially recognized to continue with that treatment.

The jurisprudence of the Constitutional Court has had enough relevance over time. One of his most important movements was the one that led to the reform of the LECrim, since articles 503 and 504 of this were considered unconstitutional, so that the 13/2003 was carried out, of October 24 , which will be discussed later.

The jurisprudence of the Constitutional Court has dealt with articles 503 and 504 of the LECrim already mentioned, so it is in relation to these two articles the following information will be exposed. The LECrim in its article 503.1.2nd It talks about the need for “quite reasons” when it comes to being able Reasonable reasons, expressing that the existence of these does not mean establishing a presumption of guilt of the accused, but only implies affirming the existence of reasonable reasons that allow to affirm the possible commission of a crime for the eventual recipient of the measure.

conclusion

The Constitutional Court also developed jurisprudence in relation to the purpose of provisional imprison In his case, for the execution of the ruling, which start from the accused, namely: their subtraction of the action of the administration of justice, the obstruction of the criminal instruction and, in a different level but intimately related, the criminal repetition, the which corresponds to what the Lecrim expresses. As can be seen, on many occasions the use of this measure is based on a need to avoid certain dangers, which, although it can be successful and evade negative circumstances and consequences, 

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