Inconstitucionalidad en la prohibición de sustituir la prisión preventiva en casos de reincidencia.

Abstract

This research work identifies that the last paragraph of Article 536 of the Organic Integral Code about the prohibition of the substitution of the precautionary measure of preventive detention in cases of recidivism is limiting and contradictory with respect to the highest source of validity, in this case we refer to the provisions contained in the Constitution of the Republic, making it clear that they must prevail over any rule that seeks to threaten the effective application of rights recognized in the Magna Carta. For this we have resorted to a qualitative methodology and an analytical research method where we established doctrinal conceptions about preventive detention as a precautionary measure, its exceptional nature, the option to replace it, defined recidivism and considered whether the principles of equality, necessity and proportionality have been violated, necessity and proportionality have been violated by proposing a prohibition that in spite of the fact that the defendant deviates from any of the requirements established by the criminal law to impose preventive detention and requests the substitution of the precautionary measure for a less rigorous one, this will not be possible if he turns out to be a recidivist, a situation that allows questioning about a discriminatory act due to the judicial past of the defendant.