Remand Detention: Unconstitutionality of the Danger of Obstruction or Hindrance

Chaiña Durán R.J. · Cuestiones Constitucionales (2025) · DOI: 10.22201/iij.24484881e.2026.54.19420

Resumen

The paper analyzed the abstract validity of one of the conditions that enables preventive detention, the danger of obstruction or hindrance, understood as the risk of affecting the evidentiary phenomenon of the criminal proceeding. To this end, the state of the art on this procedural risk was developed, to then apply the test of proportionality in its basic structure and the respective judgments of suitability, necessity and weighting. It was concluded that preventive detention due to the danger of obstruction is partially suitable, since it is positive in quantitative terms, but negative in qualitative and probabilistic aspects; unnecessary, since the alternatives are more suitable and less restrictive; and disproportionate in the strict sense, given the unjustifiability of the disadvantages of the disadvantages that accompany it, so that this measure did not pass the test of proportionality and is unconstitutional.

Instituciones: Universidad Nacional Mayor de San Marcos