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The effectiveness of provisional prison
The present end of degree work aims to issue a legal opinion in relation to the precautionary measure of provisional prison. This opinion will be done on the occasion of answering the questions raised from the case that will be presented below. The case is about the possible commission of a crime, and in relation to this, the possibility or impossibility of imposing the precautionary measure of provisional prison on the investigated. They will try to explain as clearly as possible the reasons why this measure could be imposed, valuing the different possibilities and ways that could be taken, and therefore who or who would have the ability to impose the measure, as well as the possible possiblejustifications that could use the different organs to carry out their imposition, or, on the contrary, the possible causes and reasons to consider that it is not necessary to apply this measure.
To answer these questions, the different Spanish laws that legislate on the subject to be discussed are going to be used, as well as all that jurisprudence of the different organs that refer to this measure, and to all the concepts and elements that ariseIn the course of work.
Provisional prison is a precautionary measure, which is said to have a personal character, since it affects the freedom of the investigation to which it is applied . It is designed to ensure the presence and participation of this in the criminal process, and in the case of being imposed, it usually becomes effective in prisons, thus resembling a deprivative sentence of regular liberty. This measure is imposed by the investigating judge at the request or of the Fiscal Ministry, or from another of the accusations, since it is during the instruction that it is decided to adopt this type of measures in accordance with the particular circumstances of each case, being also able to beimposed by the judge or criminal court that he knows of the case.
In response to the data of the Ministry of Interior, the percentage of population submitted to preventive detention has varied over the years, having decreased in the latter, since statistics indicate that in relation to the total percentage of prison population, the percentage of the percentage ofPreventive regime has decreased almost 10%, being between 24% and 21% since statistics began in 1998, until 2009, and being between 18% and 15% from 2009 to 2018 . Apart from these statistics, there are no official statistics to show what percentage of preventive prisonIf it is used in excess or on the contrary, a rational use of it is made, being able to verify with this if the principles, budgets, purposes and procedures are established in the most correct way.
The interest on this topic is based on the most thorough investigation on the application of this measure, both on the reasons that lead to their adoption and in the regime of compliance, as well as the results that the application of the same has,Since today there is no statistics to near the percentage of people subject to this precautionThis measure and after being released, or not, so the effectiveness of the measure is not known. When talking about prison centers, it is very commonWe find that there is a wide margin for any person’s stay in a penitentiary center under this precautionary measure and therefore without a final sentence, have serious effects. A lot has been discussed about the effects that the stay in prison has, both for prolonged periods and for shorter periods. This is done from the perspective of being dealing with subjects who have been found guilty and those who are therefore understood that they "deserve" the condemnation imposed on them, are people who have been judged, whose stay in a penitentiary center has been imposedAfter an investigation and corroboration of the occurrence of some facts, but if you take into account the fact already appointed that the people suffering from the provisional prison measure are not guilty when this measure is imposed, who are people at that timeinnocent, the damage that this can cause are incalculable.
This also leads to another element that has also been the result of changes and controversy, which is the result and in turn the need that arises from those occasions to which the measure that is going to speak is imposed on someonewhich is finally innocent, so it has entered the criminal system and has suffered its consequences without there being a true need and which were not in proportion to their actions. This is the scope of compensation in case this measure is imposed and after the trial the person is declared innocent, since in June of two thousand nineteen the Constitutional Court issued a sentence that changed the conditions that gave rise to compensation .
The criminal precautionary measures are regulated by the Criminal Procedure Law, having its origin in Organic Law 13/2003 of October 24, which carried out a reform of the aforementioned law in relation to provisional prison. This took place after numerous sentences of the Constitutional Court, which allowed a volume of sufficient jurisprudence, which could lead to the creation and formation of this precautionary measure.
The imposition of precautionary measures has all existing guarantees in the Spanish criminal system, and must be based on elements that indicate beyond a suspicion about the possible commission of a criminal act, so it is necessary to have sufficient reasons that warndanger or risk of escape by the investigated, regardless of having the criminal record or other data if any. The rights conferred by article 15 of the Spanish Constitution must always be present throughout the process. The constitutional right that all citizens have to the presumption of innocence is only vitiated by the imposition of a conviction, so, the persons to whom this measure is applied still have this right, ensuring the imposition of said measure onlyin cases where there are indubected indications of the existence of crime, not being able to be used as an anticipated ‘punishment’. The resolution by which provisional prison is decreed affects the presumption of innocence and the right to freedom of that person against whom it is decreed, since both rights are affected without a final sentence.
This precautionary measure must be imposed within terms, these being the ones considered to be able to achieve the proposed objectives and carry out the necessary investigation. The deadlines will vary depending on the cause they are imposed, being able to be six months, or one or two years, extendable for six months and two years respectively.
Provisional prison is a measure that due to its repercussions and its importance must be adopted when its use is essential, but, although this is the theory, in practice it is sometimes used more regularly .