La falta de regulación jurídica del arraigo en Ecuador y la aplicación arbitraria de prisión preventiva sobre personas en situación de informalidad

Abstract

The power of state intervention must have limits to protect the innocent against excessive restrictions on their freedom. Within the catalog of precautionary measures, pre-trial detention is configured as the most harmful, as it deprives the accused of liberty without an enforceable conviction. Penal populism has caused pre-trial detention to be applied excessively discretional, even invoking non-existent figures in the COIP such as "arraigo". Within legal practice, there is a custom of justifying pre-trial detention resolutions by alleging that the defense does not justify "arraigo", which incurs two errors: 1. "Arraigo" does not exist as a legal concept in the COIP, and 2. It is up to the prosecutor's office, not the defense, to justify that non-custodial precautionary measures are insufficient. The people who are most affected are those who live in informal situations, as when they are involved in a criminal process, it is almost inevitable that pre-trial detention will be applied to them, as the justice system presumes that their possibility of escaping is higher and they also lack proper documentation to prove their situation in the country.