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Why are there judges issuing more and more substitute measures to detained people and even repeat offenders? Specialists talk about changes that should be made

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Is a structural change necessary? Are legal reforms required? There are at least two questions regarding the handling of justice by citizens, police officers and government agencies, every time someone arrested in flagrante delicto is not charged or receives alternative measures to preventive detention regardless of what is a repeat offender in the commission of illicit acts.

In the midst of these questions, with more and more echo, justice operators: prosecutors and judges, criticized for some cause of dominance or public interest, defend their actions, saying that it is in accordance with the law.

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Internal and periodic evaluation of servers, sanctions and coordination between prosecutors and the Police, the proposals before questioning for the release of apprehended with alternative measures

And it is that since the Constitution of 2008, Ecuador is a country that guarantees fundamental rights, among those, the presumption of innocence, enshrined in number 2 of article 76.

Within this framework, the country was located in a current of criminal guarantees, which promulgates a kind of overprotection of any person who is subjected to a criminal proceeding, even before the investigation. This leads to preventive detention being applied as an exceptional case, according to the Organic Comprehensive Criminal Code (COIP).

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That is the reading of Leonel Fuentes, dean of the Faculty of Jurisprudence of the University of Guayaquil, who refers to article 534 of said legal body, which establishes four requirements for preventive detention. These are:

1) Sufficient elements of conviction about the existence of a crime of public exercise of the action.

2) Clear and precise elements of conviction that the accused is the author or accomplice of the infraction.

3) Indications from which it can be deduced that precautionary measures that do not deprive of liberty are insufficient and that preventive detention is necessary to ensure their presence at the trial or the serving of the sentence.

4) That it is an offense punishable by imprisonment for more than one year.

“The legalistic judges in this constitutional state of rights try to be the strictest of this article. Why? It may be for fear of complaints, let’s say, from users, for fear that they will be dismissed for not having exhausted all the rules that lead to pre-trial detention,” says Fuentes.

The legalistic judges in this constitutional state of rights try to be as strict as possible in this article. Why? It may be for fear of complaints, let’s say, from users, for fear that they will be dismissed for not having exhausted all the rules that lead to pre-trial detention.

Leonel Fuentes, Dean of Jurisprudence University of Guayaquil

He considers that the system, as it is conceived from the legal framework, does not give “agility” and “looseness” to justice operators, on the contrary, it forces them to be “docile” before this approach that guarantees constitutional rights.

Last year, the National Assembly processed reforms to the Comprehensive Organic Criminal Code (COIP), in anti-corruption matters.

Photo: CHRISTIAN.Medina

Is it possible to reform the COIP?

It is not so easy, assures the academic, because for that the Constitution must be modified, since no law can oppose the Magna Carta.

“The system also needs to change its actors, that is, not all judges do so based on this principle. There are many judges who, definitely, have other motivations before which, let’s say, they are not at all interested in security and citizen peace, “says Fuentes.

And it proposes as a means to prevent mismanagement of the administration of justice the implementation of permanent monitoring of the decisions of criminal judges, mainly.

Byron Pérez Avilés, director of the Law School at the Salesian Polytechnic University (UPS), believes that a reform of the COIP is necessary. He perceives that there is no fundamental criterion in relation to alternative measures.

“Apparently the administrators of justice, which implies judges and prosecutors, do not have that capacity to be able to discern precisely who can be granted or not. What do we need? Specialized judges, specialized prosecutors, who receive constant training regarding this type of situation that is generated in Ecuador”, he refers.

Apparently the administrators of justice, which implies judges and prosecutors, do not have that capacity to be able to discern precisely to whom it can be granted or not.

Byron Pérez, director of the Salesian University Law program

One of the challenges to the judicial system is that alternative measures be granted to those who are apprehended in flagrante delicto and have a criminal record.

According to article 536 of the Organic Comprehensive Criminal Code, substitution does not fit in offenses sanctioned with a custodial sentence of more than five years.

Pérez mentions that many crimes of the typology established in the regulations have a sentence of less than five years in prison. “That opens up the range of possibilities, after committing a crime, to be able to have a substitute measure”, points out the academic.

For this reason, he is in favor of the substitution being applied to those who have not been previously prosecuted, that is, who do not have a prison record and for crimes that are not older than one year.

Juan Vizueta Ronquillo, who served as general director of the temporary Council of the Judiciary (CJ), in 2018, warns that a change in the judicial system could worsen prison overcrowding, a problem that the country has been dragging for a long time.

“That overcrowding leads us, instead, to the fact that on many occasions prosecutors and judges take the use of preventive detention in a totally indiscriminate way,” says the lawyer in the free exercise.

This overcrowding leads us, instead, to the fact that on many occasions prosecutors and judges take the use of preventive detention in a totally indiscriminate manner.

Juan Vizueta, former director of the transitory Council of the Judiciary

Nueva Prosperina, Portete and Pascuales, the districts with the highest growth in violent deaths in the first semester

Hence, he thinks that what is appropriate is to exercise greater control among justice operators. That an internal affairs unit such as the Police has is created, he says, that detects in advance any anomaly that could occur with an official.

Vizueta states that instances such as the Financial and Economic Analysis Unit (UAFE) and the Comptroller’s Office could investigate justice operators whose actions, it is suspected, have been permeated by corruption. (YO)

Source: Eluniverso

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