La aplicación de la prisión preventiva en el Ecuador con relación a los delitos con penas inferiores a cinco años.

Abstract

As background, preventive detention is not applied last resort, the procedural risk is not weighed, but the material risk, the same that should only proceed when the other precautionary measures are insufficient, that is, only when its application implies being necessary. . Unfortunately, this precept is not currently fulfilled, most justice operators choose to apply preventive detention in crimes with less social impact, so that, by restricting the right to liberty, it becomes a penalty in the future and not of the present. In cases of minor crimes and expectations of insignificant penalties, preventive detention is inadmissible. The objective of this research was to analyze the application of preventive detention in Ecuador, in relation to crimes of less than five years of imprisonment, typified in the current criminal law, for which the doctrinal assumptions were based on the application of precautionary measures and preventive detention, an analysis of the Mexican, Spanish, Argentine, Colombian and Ecuadorian legislation was specified within comparative law, an analysis of precedents, jurisprudence, judicial was carried out in relation to first instance rulings related to preventive detention, in minor crimes to five years of imprisonment. The methodology used was based on the mixed approach in order to achieve greater depth on the investigated problem, the quantitative approach was applied at the time of carrying out the analysis of the surveys and interviews applied, on the other hand, the qualitative approach was used at the time of carrying out the analyzes on the current legal regulations. The results showed that it is necessary in the Ecuadorian legal system not to apply preventive detention in crimes with sentences of less than five years. In conclusion, it was proposed to make a modification of numeral 4 of Article 534 of the Organic Comprehensive Criminal Code, so that it can only be applied to offenses sanctioned with a custodial sentence of more than five years.