La prohibición de sustituir la prisión preventiva, por causas de vulnerabilidad del procesado, una inconstitucionalidad en Ecuador

Abstract

The Art. 77.1 of the Constitution of Montecristi guarantees the right to always be the judge who decides if not replaced or detention and alternatives whether to grant interim measures, so the legislator to add this paragraph to Art. 171 the Code of Criminal Procedure, falls into obvious unconstitutionality because they can not order in advance to judge cases where no substitute, besides attacking the policy guarantees of At. 84 of the Constitution of the Republic of Ecuador. The error is serious because the principle laid down in Montecristi and raped by the National Assembly has been ratified in the Pact of San José and in several decisions of the Inter-American Court of Human Rights. Similarly the judges are in the dilemma of implementing the new law or comply with the Constitution and all who are provisionally arrested in execution of this reformatory law may sue Ecuador to international justice for violation of their human rights. Due to this problem a socio-legal research to arrive at theoretical potential remedies to defend the legal rights affected, which are the freedom of movement and the presumption of innocence is required.