La procedencia de la prisión preventiva en el Ecuador como medida cautelar que repercute en el hacinamiento carcelario.

Abstract

In the practice of the proceeding of preventive detention, there are defects such as the inversion of the burden of proof of the justification of the risk of absconding and the violation of the principles of necessity, proportionality and exceptionality. The first consists of the error in considering that it is up to the defendant's defense to argue that there is no flight risk, when the law establishes that it is up to the prosecutor's office to do so. On the other hand, the violation of the principle of necessity lies in the lack of verification of the existence of an imminent procedural risk in the order of preventive detention. On the other hand, the violation of the principle of proportionality consists in the lack of weighing between the dangerousness of the conduct and the restriction of the right to liberty. Finally, the violation of the principle of exceptionality refers to the fact that the pretrial detention order is requested and issued without analyzing whether in the specific case it is possible to apply other personal precautionary measures that can also guarantee the appearance of the defendant.