Preventive Detention in Criminal Proceedings
Preventive Judicial Deprivation of Liberty
Article 250 – Hometown. A Control Judge, at the Public Prosecutor’s request, may order the preventive deprivation of liberty of the accused, provided it is proven that:
- An offense exists that warrants imprisonment and whose criminal action is not clearly prescribed.
- Founded, cogent evidence concludes that the accused has been involved in or participated in the commission of an offense.
- A reasonable assumption exists for assessing the particular circumstances of danger of flight or obstruction in the search for truth regarding a specific act of investigation.
Within twenty-four hours after the prosecutor’s application, the procedural judge will decide on the motion. If the judge determines that the conditions provided in this article for the merits of preventive judicial deprivation of liberty are met, a warrant will be issued for the accused against whom the measure was requested.
Within forty-eight hours after their arrest, the accused will be brought before the judge, who, in the presence of the parties and victims (if any), will decide whether to uphold the imposed measure or substitute it with a less burdensome one.
If the judge agrees to maintain the preventive judicial deprivation of liberty during the preparatory phase, the Prosecutor must submit the indictment, request dismissal, or close the proceedings within thirty days after the court’s decision.
This period may be extended up to a maximum of fifteen additional days only if the prosecutor requests it at least five days before expiry.
In this case, the prosecutor must state their request, and the Judge will decide as appropriate after hearing the accused.
After this period, as extended or otherwise, if the prosecutor has not filed the charges, the detainee must be released by decision of the Control Judge, who may impose an alternative preventive measure.
In any case, the trial judge, at the request of prosecutors, will judicially decree the preventive deprivation of liberty of the accused when it is reasonably presumed that they will not give effect to the acts of the process, following the procedure set forth in this article.
In exceptional cases of extreme necessity and urgency, and provided that all cases referred to in this article are met, the Control Judge, at the request of the Attorney General, may authorize by any suitable means the apprehension for investigation. Such authorization must be confirmed by self-funded order within twelve hours of apprehension; otherwise, it will follow the procedure provided in this article.
Article 251 – Risk of Flight
To decide on the risk of flight, the following circumstances are considered:
- Roots in the country, determined by domicile, habitual residence, family seat, business or work, and the facilities to leave the country or remain hidden.
- The potential penalty that could be imposed.
- The magnitude of harm.
- The behavior of the accused during the trial or other previous processes, indicating their willingness to submit to criminal prosecution.
- Predelictual conduct of the accused.
Paragraph I – The risk of escape is assumed in cases of acts punishable by imprisonment with a maximum term of not less than ten years.
In this case, the Public Prosecutor, provided that the conditions of Article 250 are met, will apply for Judicial Preventive Measure of Deprivation of Liberty. In any event, the judge may, according to circumstances (which must be reasonably explained), deny the request and impose an alternative preventive measure on the accused. The decision rendered may be appealed by the prosecutor or the victim, whether or not they are the defendant, within five days following its publication.
Clause II – The falsity, lack of information, or failure to update the address of the accused constitutes a presumption of flight, motivating the recall, ex officio or ex parte, of the alternative preventive measure given to the accused.
Article 252 – Danger of Interference
To decide about the danger of interference in ascertaining the truth, the following will be considered, especially if there is a grave suspicion that the person will:
- Destroy, modify, hide, or falsify elements of proof.
- Influence co-defendants, witnesses, victims, or experts; provide false information; behave improperly or reluctantly; or induce others to perform these behaviors, jeopardizing the investigation, the true facts, and the realization of justice.
Article 253 – Permissible
If the offense warrants a process of imprisonment not exceeding three years at its upper limit, and the accused has had predelictual conduct (which can be credited in any suitable way), only substitute precautionary measures will proceed.
Article 254 – Auto Preventive Judicial Deprivation of Liberty
The preventive judicial deprivation of liberty may be ordered only by a duly grounded decision that must contain:
- Personal data of the accused or information serving to identify them.
- A brief account of the fact or facts attributed to them.
- The indication of the reasons why the court finds that the budgets referred to in Articles 251 or 252 apply in the case.
- The citation of applicable laws.
The appeal does not suspend the execution.
Article 255 – Information
When the accused is apprehended, they will be informed about the fact attributed to them and the authority that ordered the measure or whose order is being placed.