Prisión Preventiva Oficiosa (Articulo 19 Constitucional Segundo Párrafo) ¿Oficiosamente? ¿Debe Justificarse?

Abstract

The so-called unofficial preventive detention, in practice, is interpreted by both prosecutors and judges as an automatic pass to dictate it, in the case of the criminal cases that includes, without opening a debate to prove that this measure is the most effective to guarantee the purposes of the process, and has become into a daily practice by which many people are deprived of their liberty.

The present work seeks to make known on objective grounds that this constitutional postulate is not an automatic pass due to the simple updating or existence of the criminal types indicated in the precept itself, but a simple inquisitive power to open debate for its imposition when the Public Ministry does not request it.

 There it is established that the Control Judge will order preventive detention, informally, in cases of criminal types such as rape, kidnapping, homicide, among others.

 This constitutional assumption, in practice, is interpreted by both prosecutors and judges, as an automatic pass, to dictate, in the case of the criminal cases indicated, preventive detention without opening a debate to prove that this measure is the most effective, above others to guarantee the purposes of the process.

 Such an interpretation has become, since 2008, when the penal reform came into force, into a daily practice, in which hundreds or thousands of people are deprived of their liberty daily at the expense of an erroneous interpretation of the second paragraph of article 19 of the Constitution. .