Principle of Proportionality in Preventive Detention

Dueñas Roque D.M.; Dueñas Roque C.N. · European Public and Social Innovation Review (2024) · DOI: 10.31637/epsir-2024-1608

Resumen

Introduction: In the last two decades in Latin America there have been various reforms in the Criminal Justice Systems, which consisted of the replacement of Inquisitorial Procedural Systems by Guaranteed Procedural Systems, adopting Guaranteed Criminal Procedural Codes of an Accusatory nature in a context of debate on theoretical positions of Minimum Criminal Law, Maximum Criminal Law, Criminal Populism, etc. However, the normative provisions on preventive detention have a counter-reformist tendency, which makes it impossible to experience changes in light of Contemporary Constitutionalism and Constitutional Democracy. Methodology: Quantitative approach with application of Levene's Test, Anova, Chi-square and Spearman Correlation. Results: The percentages of pretrial detention and the growth of the prison population trend in Latin America are very high during the years 2002 to 2024, being evident the violation of the right to due process, personal liberty and the principle of exceptionality of pretrial detention. The Preparatory Investigation Judges of Puno, Peru during the years 2023 to 2024 did not substantiate the Principle of Proportionality, an essential requirement to deprive a citizen of liberty. Discussion: The results of this research are fully consistent with the background. The mathematization, formal, material and pragmatic foundation of the principle of proportionality is necessary, since its inadequate, absent and incomplete description and legal argumentation in judicial resolutions, violate fundamental rights and the principle of legality. Conclusions: Hispanic States must implement effective public policies on prison work in public works, citizen security and education. In Peru, a National Audit Body should be created to evaluate the legal arguments of court decisions granting preventive detention.

Instituciones: Universidad Nacional del Altiplano