Criticism of the mandatory nature of preventive detention for recidivists in Ecuador

Abstract

Despite the fact that Ecuador has a Constitution that enshrines the principles of freedom, equality and minimal criminal intervention, with an express rule that prohibits discrimination based on "judicial past" and that the Constitutional Court and the National Court of Justice have insistently pronounced for the exceptional application of preventive detention, the Comprehensive Organic Criminal Code maintains unchanged the third paragraph of the article 536, which prohibits judges from substituting this precautionary measure for another of lesser rigor when lawbreakers are recidivists; this situation that has caused high rates of people deprived of liberty without conviction, around which a serious prison crisis has unfolded with at least 385 deaths in seventeen months. The study that is presented, carried out under a qualitative approach and the critical and reflective method has allowed to show the internal contradictions between the criminal legal norms; the principles that the Code itself states and the constitutional text, in addition to revealing the social need to adopt Urgent legal reforms around preventive detention to help to reduce the negative effects of violence in detention centers and comply with constitutional mandates.