La prisión preventiva en los procesos penales por delitos contra la administración pública dentro del marco del garantísmo jurídico

Abstract

Freedom understood as a fundamental right has been the subject of discussion that leads to a conflict in two areas of legal science, the traditionally discussed criminal law and constitutional law, the discussion of which has gained significant momentum in recent years. Carnelutti at the time had highlighted the value of criminal law to protect freedom compared to other areas such as civil law that protect property for example. Constitutionally speaking, freedom is a fundamental right of historical appreciation, the pillar for the positive construction of the rest of fundamental rights; That is why both the Supreme Charter and the different international human rights treaties have considered various judicial guarantees for the defendants, to the point that on many occasions the critics have affirmed that these norms tend to excessively protect the defendant over the victim. What happens in reality is that there is a maximum appreciation of freedom, it is essential that the state make an effort to determine whether the defendant actually deserves a deprivation both during the process, and at the time of resolving his legal situation, which led to the Constitution of the Republic ratifies this assessment, establishing that the deprivation of liberty will be exceptional. The present investigation has discussed the idea that in practice the category of exceptional deprivation of liberty is really recognized during the flagrante delicto control hearings. To understand the current reality, it is essential to know our history. Objectively speaking, Law is the result of the evolution of man, sciences such as philosophy, anthropology and history are tools that unfold in our hands a range of possibilities to delve into its roots. The human being, complex by nature and with instincts for both life and death, was generating structures of socialization and organization, since living independently is practically impossible, so it requires others to survive; However, this socialization also brings with it differences and problems of all kinds, some of them, becoming serious problems such as homicide, robbery, rape, and even crimes that today scourge society at its deepest roots. as is kidnapping. By means of the Law, all those assets are protected and safeguarded, valuing the general interest above the particular interest, and this is how the norm is created and in particular, speaking of the commission of crimes, Criminal Law is born. In ancient times, derived from the lack of an administrative and judicial body, that is, of institutions such as those that are known today, and dedicated both to the administration and prosecution of justice, this was sought through self-supervision, that is, to solve their problems each one in the way and in the measure that he considers convenient. The penalties were increasing until they became revenge, with damage to both the physical and moral integrity of the human being to whom it was applied. Thus, this revenge was becoming excessive and disproportionate. To the extent that the States emerge as a result of the social and political organization of man, the penalties are changing, they are transformed, they adapt to reality, this is how historically the Law of the XII Tables of the Empire is spoken of. Romano, the Code of Hammurabi, and so many other ordinances that until the Middle Ages constituted the way to control the negative instincts of man, in order to try to maintain social peace.