El cumplimiento normativo en la aplicación de la prisión preventiva como medida cautelar por parte de la fiscalía y los jueces en Ecuador

Abstract

Pre-trial detention in the Ecuadorian criminal procedural system is a precautionary measure aimed at guaranteeing the accused’s presence in the process, ensuring compliance with an eventual sentence, and facilitating reparation to the victim. It is conceived exclusively as a procedural tool. Among the precautionary measures, pre-trial detention is the most burdensome since it limits personal freedom. Consequently, it should be considered a measure of last resort, applicable only when strictly necessary, proportional, and suitable. However, its incorrect application has led to situations where it is applied disproportionately, including as an anticipatory means of sentencing, rather than as an appropriate procedural measure. Article 534 of the Comprehensive Organic Criminal Code (COIP by its Spanish acronym) regulates the requirements for the imposition of pre-trial detention. The main objective of this article is to analyze the said article and, through a historical-logical approach and an as analytical-synthetic one, the evolution of pre-trial detention in the Ecuadorian penal system is described. The duty of the Prosecutor's Office and judges in its implementation is analyzed in accordance with the principles of presumption of innocence and minimal criminal intervention. Furthermore, the necessary arguments for its application are outlined, and the reasoning that the judge must adopt to grant it is proposed since the lack of reasoning would violate the human rights of the accused, especially his natural state of innocence, which must be protected by the rule of law.