introduction
The issue of the reasonable term of preventive detention, also known as preventive judicial detention, has been and continues to be a reason for arduous debate, not only in the Peruvian State. We believe that this is due to the fact that, basically, in many opportunities and States, it has not been duly observed.
The problem issue becomes doubly worrisome, if we take as our premise that the sole imposition of preventive detention turns out to be the most drastic to apply and that it must be of extraordinary or last-rate application. Then, it happens that if it is applied without such zeal and even more, violating the reasonable term, a dangerous as a burdensome attack by double entry is configured.
In this installment, we address the analysis of the binding precedent of Constitutional Court N ° 3771-2004-HC, Case of Miguel Cornelio Sánchez Calderón, which deals with the reasonable period of preventive detention.
II. Defining the reasonable time
In relation to it, we can point out that it has become a guarantee for the defendant and the process, not only in the case of the establishment of the term of preventive detention.
The reasonable term has deserved a number of definitions, thus CORIGLIANO, quoting ZAFARONI / ALIAGA / SLOKAR, affirms: “From a dogmatic point of view, a criminal process whose processing exceeds the reasonable term, this is of excessive duration, not only injures the right of the charged with being tried quickly but also affects each and every one of their fundamental rights and procedural guarantees recognized in the Constitution. As a consequence, if the process is unduly prolonged, all its operating rules will end up distorting their right to a speedy trial and the basic principles of the legitimate action of the State. ”
Furthermore, the reasonable period of time (originating from the European System for the Protection of Human Rights, later accepted by the Inter-American System for the Protection of Human Rights and thus also by the Peruvian Constitutional Court), is implicitly immersed in the right to due process or process. regular.
Likewise, it is convenient to refer to the criteria established to determine the development of a reasonable period, were given by the European Court of Human Rights (ECHR) and also shared by the system and court indicated in the previous paragraph, namely: i) the complexity of the case, ii) the defendant's behavior, and iii) the way in which he was handled by the authorities and the courts.
III. The strictly necessary period
However, Foundation 8. of the Peruvian TC Judgment, Exp. No. 06423-2007-PHC / TC, issues the strictly necessary term, to the detriment of the maximum period of application.
Thus, we have that Foundation 8. establishes: “(…) the established term acts only as a maximum and absolute term, but does not prevent those deprivations of liberty that, even without exceeding said term, can be classified as arbitrary., exceed the strictly necessary period or maximum limit to carry out certain actions or procedures. In such cases, a restriction on personal freedom operates that the constitutional norm does not allow. A clear example of this is the unjustified prolongation of the deprivation of personal liberty in those cases in which only actions of mere procedure are required, or that the proceedings have already been completed, or that in an unjustified manner have not been carried out in due course. opportunity, hoping to make them ad portas to expire or even already expired the pre-established term ”.
IV. Dominant interpretation of reasonable time
We have to put on record that, in relation to the reasonable period of pretrial detention or trial, it was the ECHR that laid the foundations for the term reasonable term, attributing to it a new nature of timelessness not abstractly provided for in the law (called by the doctrine for the “non-term”), if not rather, for the indication that the judge evaluates the duration of the case to estimate, through various criteria, whether or not the reasonable time was actually met.
In addition, it should be noted that in the event that the aforementioned has not been proven to be observed - that is, that the term has become unreasonable - it remains to request the corresponding compensation, in order to repair the violation of the fundamental right invoked.
V. Proposal interpretation of the reasonable period
In this regard, it should be seen that the universally accepted non-determination of the term in terms of time, as regards the term of a reasonable nature, does not imply the necessary absence of plausible proposals to the contrary. So we have:
5.1. Textual mandate of the international legal order. In this sense, in defense of the fundamental procedural rights, it is postulated that the reasonable period should well be specifically established in preclusion terms, in merit expressly provided by the international legal order.
Thus we have, that PASTOR affirms: “The international treaties that establish fundamental rights must be seen as models for the regulations of the internal law of the United States (…) Thus, the list of procedural rights of the different treaties must serve as a framework for the drafting of clear and precise procedural norms that give life and protection (effectiveness) to the rights enshrined abstractly in them (…) This task constitutes the content of the obligation of the States that are part of the conventions. At the international level,the function of the treaty control bodies will be to confront the national regulations of conventional rights to determine if they satisfy the claims of a fundamental right (control of reasonableness) or if they are insufficient to ensure its full validity (function of guarantee of rights). fundamental) ”.
5.2. Express mandate of the principle of the rule of law. Via the present proposal, the same author maintains that, in areas of effective temporary determination of the reasonable period, the interpretation of the judiciary should be postponed in favor of the legislator.
In this order of ideas, he delimits: “Regarding the problem of the excessive duration of the criminal process, the aforementioned scheme determines that neither the maximum limit of prolongation of a process (reasonable time) nor the legal consequences of exceeding it can be defined by the law in an open way or left to the determination of the judges (theory of the undetermined legal concept), but must be established by the Parliament so that the political principle according to which all the activity of the State, but especially that which involves the exercise of punitive violence, has its legitimacy in the law and also finds its limits, even temporary. In the criminal procedural regime of a State governed by law, the law is the only source of its rules. So that,the reasonable time should be set by law and not by the courts, since for the legal-political order of a constitutional State of law, judicial law is unacceptable and even criminally disapproved in the case of decisions against legem (crime of prevarication) "
SAW. Reasonableness of pretrial detention
This seems to obey the timid as the progressive appearance of a just prison culture (in this case, preventive and not of the process), as well as the overcoming of the majority of the inquisitive system. The same flies flags of non-violation of the procedural rights of the accused, that is, to mainly be tried without undue delay.
We consider that the aforementioned just or reasonable preventive detention (which is different from the term of preventive detention), flows as a consequence of the increasingly consolidated penal guarantee system, influenced by the postulates of neoconstitutionalism, global law and the constitutional state of law.. Postponing modernity and at the same time, advocating and promoting contemporaneity.
In this sense, we have that the debate on preventive detention in Latin America is constituted by the process of normative counter-reform. That is, in many of the countries that introduced new codes with more liberal regulations, regardless of whether or not they have had a real impact in reducing the use of pretrial detention, there have been legal reforms aimed at expanding the possibilities of the use of preventive detention. This latest development has been linked to the strong pressure that has been generated against the criminal justice system from the public perception regarding a generalized sense of citizen insecurity and an "excessive guarantee" of the judicial system that would result in impunity and the demand more "heavy-handed".
On the other hand, it is necessary to: “for the luck of the process, the expiration of its maximum period of reasonable duration must be seen as a procedural impediment that avoids the prolongation of the prosecution, given that, if it continued, it would become illegitimate as of that point in time. In criminal procedural law, this impediment is channeled through exceptions or articles of prior pronouncement, with an imputation, by analogy in bonam partem, to the procedural obstacle to the prescription of the crime. In summary, the periods of maximum reasonable duration of the process must be established by law in general and with the legal consequence that, when fulfilled, the process must cease early and definitively ”.
In addition, it must be borne in mind that the excessive duration of the criminal process is not a minor problem, which I consider must be dealt with by legal dogmatics, although some authors proclaim that it must be addressed in its theoretical aspects by criminal policy. In addition, criminal procedural law must provide an adequate response within the framework of its operating principles and especially, to ensure full compliance with the principle of the Constitutional State of Law in interpreting the scope, meaning and consequences of the fundamental right of the accused to be tried. quickly.
However, it is also pertinent to take into account that although it is true that the violation of the reasonable period of preventive detention, mainly violates the right to personal liberty, it in turn undermines those rights that, prevented from being able to exercise as a consequence of the limitation of the mentioned freedom.
In this sense, Foundation 2. of the ruling of the Peruvian Constitutional Court, Exp. No. 7624-2005-PHC / TC, legalizes: “Item 24 of Article 2 of the Constitution recognizes the fundamental right to personal liberty, the which has a double character. As a subjective attribute, no person may suffer a limitation or restriction on their physical or outpatient freedom, either through arrests, internments or arbitrary convictions. As an objective attribute it fulfills an institutional function insofar as it is a vital element for the functioning of the social and democratic State of law, since it is not only a concrete manifestation of the value of freedom implicitly recognized in the Constitution, but it is a necessary presupposition for the exercise of other fundamental rights (Cfr. Exp. No. 1091-2002-HC / TC),by virtue of which the limits to its exercise are derived, which cannot threaten other constitutional assets or values. It is for this reason that the determination of the reasonable period of detention cannot take into consideration only the presumption of innocence and the right to liberty of the accused, but that the constitutionality of provisional detention contains the state duty to effectively prosecute the crime, as a negative manifestation of the right to personal liberty ”.rather, the constitutionality of the provisional prison contains the state duty to effectively prosecute the crime, as a negative manifestation of the right to personal liberty ”.rather, the constitutionality of the provisional prison contains the state duty to effectively prosecute the crime, as a negative manifestation of the right to personal liberty ”.
On the other hand, it becomes important to note that the reasonable period of preventive judicial detention is an implicit right to personal liberty and also a guarantee of the principle of the presumption of innocence. In this sense, as we previously indicated, the Constitutional Court of Peru influenced by international jurisprudence has established the criteria to determine the reasonable period of time for the process, and in that order of ideas, it has done the same in the case of preventive detention.. With regard to the reasonable duration of detention, the presumption of innocence and the right to liberty of the accused cannot be taken into consideration only, but the constitutionality of provisional detention contains the state duty to effectively prosecute the crime. (STC relapse in Exp. 7694-2005.PHC / TC, fj2).
VII. Excessive length of pretrial detention
It is essential to take into account that failure to comply with a reasonable period of time for a measure restricting liberty, such as preventive detention, definitely generates a range of violations of fundamental rights of the accused.
Thus, we place on record that it is imperative to monitor the correct actions of the parties in the process. In this sense, let us not forget that all the deadlines imposed in the procedural law for the defendant are fatal, and in this sense the only course of time determines the expiration of the right if it has not been used in the appropriate time. On the other hand, the judges, despite being also subject to statutory deadlines, may temporarily extend - discretionaryly - the issuance of their decisions. In accordance with what has been said, it is possible to add that so that the accused is not considered negligent, that he must not only preserve and fulfill his own terms, he must also demand that the judges comply with those that procedurally weigh on them, their non-compliance will collaborate with the procedural mismatch that is invoked.
The excessive prolongation of preventive judicial detention ends at least by denaturing it. In this sense, it is established by the Foundation 12., ab initio, of the Peruvian Constitutional Court No. 2915-2004-HC / TCL: “The presumption of innocence remains“ alive ”in the criminal process as long as there is no judicial sentence that As a corollary of the investigative channel carried out with the guarantees inherent in due process, I managed to distort it. As long as this principle does not occur, it must inform each and every one of the acts of the judiciary, especially if there is a detention measure in force. The disproportionate duration of said measure undermines the functionality of the principle within the process, generating the mutation of a precautionary measure in a sanction that, unlike the sentence imposed by a condemnatory judicial decision,it exhausts its purpose in the dejection of the individual, who stops being "subject" of the process, to become "object" of the same ".
Ergo, among the impaired rights, as a result of the application of excessive duration of preventive detention, we can refer to: i) individual liberty, ii) legality, iii) presumption of innocence, iv) defense, v) progressivity, vi) exclusion, among others.
However, in turn it violates the principles of: i) reasonableness, ii) proportibility, iii) provisionality, iv) exceptionality, v) necessity, vi) subsidiarity, vi) prohibition of excess; among others.
VIII. Challenges of the application of preventive detention
We are of the opinion of the urgent as unavoidable need for the use of preventive detention, soon experience a more mature, thoughtful and responsible control by the judiciary, in defense of the principles: in dubio pro reo, innocence, among others.
The situation described shows both sides of the problem of the excessive duration of the criminal process. On the one hand, the prolongation of the trial without definition on the material relationship that underlies the action harms the substantive ends of objective law, prevents legal peace, checked by suspicion, from being restored with the sentence, whether acquittal or condemnatory. On the other, also the fundamental right of the accused to be. Judged as quickly as possible is violated by the excessive length of the process, the fundamental right to be tried within a reasonable time.
On the other hand, it would be possible to include alternative measures to preventive detention in a way that is more in keeping with the nature of what is intended, that is, taking special care not to violate the rights of the accused. The same criteria is IRRIGATION when it teaches: "Fortunately, the Anglo-Saxon countries offer a varied number of alternative models and experiences duly evaluated for the performance of these tasks, which must be known and then formulate appropriate options for our reality."
In this sense, RIEGO, healthily goes further by affirming: “One of the advantages of the systematic approach of control systems of alternative measures to preventive detention is that it is possible to examine comparatively and specifically preventive detention in relation to alternative mechanisms, which can be very varied and diverse in content and intensity. This comparison allows, according to what has been observed in the comparative experience, to justify on the one hand the efficiency of the alternative methods, their lower cost for the State, but also the convenience of their use in some situations for which in our environment prison preventive seems as practically inescapable as they are crimes of a certain severity or in which the defendant has a previous criminal record. ”
This is because: "(…) one of the most important problems facing criminal procedure law today is that of the duration of the trial."
Incidentally, PASTOR outlines: “The situation described shows both sides of the problem of the excessive duration of the criminal process. On the one hand, the prolongation of the trial without definition on the material relationship that underlies the action harms the substantive ends of objective law, prevents legal peace, checked by suspicion, from being restored with the sentence, whether acquittal or condemnatory. On the other hand, also the defendant's fundamental right to be tried as quickly as possible is violated by the excessive length of the process (…) although, in truth, what is problematic is not the deprivation of procedural freedom, but the length of the process that it allows the existence and persistence of preventive detention. If there were no process that lasted two or three months, provisional detention would be,except for those who suffer that period of detention unfairly, a minor problem compared to its current relevance. "
Then, he adds: "Beyond this, decisive is the damage that the process without definition causes to the innocent, but also to the proper realization of the right when the accused is guilty and, finally, to the full respect of fundamental rights regarding of whom, although it is not known whether he is guilty or innocent, he is subjected to an excessive "process sentence", if not endless ".
IX. Sub-Review Resolution Facts
On September 27, 2004, the Complainant filed a habeas corpus action against the First Criminal Chamber of the Superior Court of Justice of Piura, requesting his immediate release. He states that he was detained by the National Police on June 1, 1995, later processed for the commission of the crime of terrorism and sentenced to life in prison. It adds that said process was annulled, as well as the sentence, and that a new process was instituted with an arrest warrant, serving to date more than 111 months of imprisonment in the Río Seco de Piura Penal Establishment, having spent excessively the maximum period of detention established in article 137 of the Code of Criminal Procedure, without having issued a judgment in the first instance,reason why the judicial deprivation of his freedom has become arbitrary and unconstitutional.
After the summary investigation, the investigating judge takes the statement of the plaintiff, who is ratified in the terms of the lawsuit. For his part, Luis Alberto Cevallos Vega, member of the defendant Criminal Chamber, renders his explanatory statement stating that a previous trial of the plaintiff was declared null and void by virtue of a ruling by the Constitutional Court, but that a new criminal proceeding was opened with a mandate of detention dated May 16, 2003, in accordance with Legislative Decree No. 922, adding that as of that date, the 36-month detention term established for terrorist offenses runs, the same which has not yet expired.
The Eighth Criminal Court of the Penal Modules of Piura, dated October 1, 2004, declared the lawsuit unfounded, considering that, in accordance with article 4 of Legislative Decree No. 922, the maximum period to apply article 137 of the Criminal Procedure Code is counted from the opening investigation order, which, in the present case, is May 16, 2003, the maximum term of detention for the crime of terrorism being 36 months, the same as not it has passed in excess in the case of the plaintiff.
The respondent confirms the one appealed on the same grounds.
In this sense, Mr. Miguel Cornelio Sánchez Calderón files an extraordinary appeal, before the Peruvian Constitutional Court, against the sentence of the Second Criminal Chamber of the Superior Court of Justice of Piura, of pages 96, dated October 20, 2004, that declares the habeas corpus action inadmissible.
Finally, the aforementioned Constitutional College declared the habeas corpus action unfounded.
X. Analysis of the resolution in comment
We are of the opinion that in the resolution of the Constitutional Court under comment, that is, of the binding precedent N ° 3771-2004-HC, the primacy of legitimacy has not been considered and legality has prevailed; Because the time of preventive judicial detention applied pursuant to Legislative Decree No. 922 has been erroneously considered to be the one that has only elapsed, when in fact, it has also elapsed, the time that the accused was detained in force of the Decree Law No. 25659, since the repeal of the same cannot ignore the time of preventive detention endured by the accused.
And it is that, there is no principle of law that legitimately justifies that a defendant has to take responsibility and harm himself - and without the right to claim -, due to the legislative and procedural swings of criminal proceedings (furthermore, whether they are adjectives or substantives, generically) of a State.
In this sense, the Constitutional Court could well accept the request of the accused. On the other hand, we consider that the defendant has expedited his right to assert or compensate against the abusive measure of imposing preventive judicial detention for excessive time, through the process carried out in light of Law No. 25659.
The rationale lies in the fact that it is not supposed to be correct to repair a legislative error (Law No. 25659), with the occurrence of another error, that is, with the granting of Legislative Decree No. 922, by indolently attributing the dire consequences to the accused - it is that is, to establish the beginning of the computation of the term only from that stipulated by this last norm, ignoring the previous period in which he was also preventively detained by the court, which unjustly served a quasi-sentence by imposing preventive judicial detention, by a excessive term (which had two periods, one by Law and the other by Decree, indicated).
Finally, it is essential to make clear that we do not in any way bet on the conviction or acquittal of the accused, since this is not determined in application of preventive judicial detention. Only, we firmly defend the faithful respect and non-violation of the right to individual liberty recognized not only by our legal system, through the application of preventive judicial detention far from the reasonable period of time and legitimacy.
In addition, we are also contests with the safeguard of a solid legal system, in light of a constitutional state of law, which stands as such as long as it brings together the concurrent triad of legality, legitimacy and constitutionality.
XI. Conclusions
In this sense, we consider that it is extremely basilar and imperative to take into account the main premise that the constitutional state of law, in no case, can be infringing or perhaps threatening the state of innocence of the accused.
Thus, also take into account that the application of preventive judicial detention must be understood to be imposed on a defendant and never on a guilty party. In this sense, given that the determination of his guilt or not, inescapably must be elucidated in the corresponding sentence, it is, therefore, unjustifiable and worthy of legal reproach to order said detention exceeding not only the reasonable period, but also, of the period strictly necessary.
In the resolution of the Peruvian Constitutional Court under comment, that is, that of the binding precedent No. 3771-2004-HC, the primacy of legitimacy has not been merited and legality has prevailed, it is detrimental to the rights and principles of our legal system legal, and the same of the rights of the accused.
XII. Suggestions
We are of the opinion that the violations incurred against the defendant, via the application of preventive detention, passes through the mandatory sensitization, as well as the periodic training, mainly of the judiciary.
In addition, communicational interrelation strategies should be promoted between the entities of the justice administration system, with the aim of exchanging experiences that interweave a more opportune and fair action.
We urge the legal community to be in permanent vigilance of the defense of the general principles of law, which are understood to guide and adjust the implementation and action of the Peruvian legal system. In other words, we advocate the unrestricted defense of the preeminence of legitimacy, over mere legality or positivism.
And it is that every legal system owes its foundation in justice and not in the limited perspective, as many times, of the usual thoughtless application of the law, with the pretext and not argument to indicate that this or that law was justifiably applied, because the "law says so".
In this sense, it is pertinent to bring up SÁNCHEZ who, quoting the teacher FERRAJOLI, regarding a process without provisional detention, affirms: "" although he considers that it may appear, in the short term, as a chimera, due to the resistance Conservative cultures always put it, it is true that a deep observation of the current procedural experience and above all an analysis of the worrying data provided by research on the prisoner without a sentence, should lead us to a rethinking of the issue in our environment. We must not lose sight of the danger posed by the fact that "once it has been admitted that an alleged innocent citizen can be imprisoned for" procedural needs ", no pun can prevent him from being imprisoned for" criminal needs "as well."
Footnotes:
1. CORIGLIANO, Mario E. Reasonable term and preventive detention in the jurisprudence of the Inter-American Court of Human Rights. Online: Retrieved on 09/25/12 from criminal law on line http://www.derechopenalonline.com/derecho.php?id=14,535,0,0,1,0, Buenos Aires, p. 01.
2. PASTOR, Daniel R. About the fundamental right to a reasonable period of duration of the criminal process. Online: Retrieved on 09/25/12 from Journal of Justice Studies. http://www.derecho.uchile.cl/cej/recej/recej4/archivos/Articulo%20sobre%20plazo%20razonable%20Pastor_10_.pdf, Chile, 2004, p. 61.
3. It should be noted that the aforementioned author, Daniel Pastor, outlines and develops in a solvent manner, other proposals or arguments, verbi gratia: i) From the principle nulla coactio sine lege, ii) From the principle of material legality, iii) From the division of powers, and iv) of the intermediate conclusions.
4. PASTOR, Daniel R. Ob. cit., p. 64.
5. IRRIGATION, Cristián. A new agenda for preventive detention in Latin America. Online: Retrieved on 09/25/12 from Judicial Systems Magazine. Santiago, pp. 06-07.
6. PASTOR, Daniel R. Cit., P. 76.
7. CORIGLIANO, Mario E. Ob. cit., p. 04.
8. AMADO RIVADENEYRA, Alex. The right to a reasonable time as an implicit content of the right to due process: jurisprudential development at the international and national level. Online: Retrieved on 09/25/12 from the Internaut Journal of Legal Practice: http://www.ripj.com/art_jcos/art_jcos/num27/2Derecho%20al%20plazo%20razonable.pdf, Valencia, pp. 56.
9. CORIGLIANO, Mario E. Cit., P. fifteen.
10. IRRIGATION, Cristián. Ob. cit., p. 09.
11. IRRIGATION, Cristián. Cit., P. 10.
12. PASTOR, Daniel R. Cit., P. 51.
13. PASTOR, Daniel R. Cit., P. 52.
14. PASTOR, Daniel R. Cit., P. 53.
15. SÁNCHEZ ROMERO, Cecilia. Preventive detention in a state of law. Online: Recovered on 9/25/12 from Criminal Sciences:, Costa Rica.
