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

Abstract

The general objective of this investigative study was to analyze the unconstitutionality of the prohibition of replacing preventive detention in cases of recidivism, based on the criterion that the Comprehensive Organic Penal Code establishes this limitation for defendants who are being investigated for the recidivism of an act. punishable. The research was developed from a doctrinal point of view, the concepts linked to preventive detention, recidivism, the right to equality, as well as the principle of Supremacy of the Constitution, which are directly linked to the problem of study. From the methodological point of view, the qualitative approach was applied, in order to carry out a documentary analysis of the bibliography, laws and national and international jurisprudence linked to the problem of study. The scientific method was applied when creating an observation guide based on the variables of the study problem, which allowed us to demonstrate how the conclusions were achieved in an organized and systematic way. The results of the investigation demonstrated that there is a direct violation of the principle of trial in freedom, the presumption of innocence, as well as the principle of supremacy of the constitution, taking into account that by prohibiting the replacement of preventive pressure in case of recidivism, it generates existence of two procedural conditions, which apply to two types of people, recidivists and non-recidivists, discriminating against the right to trial in freedom of the latter.