Inconstitucionalidad de la prohibición de sustitución de prisión preventiva en casos de reincidencia.

Abstract

In a constitutional State of rights and justice such as Ecuador, the provisions that are contemplated in the Constitution of the Republic, the highest source of validity, must prevail over the laws that operate in the legal system, in cases in which said laws contravene the realization of rights that are expressly recognized in the Constitution. In view of this conceptual approach that responds to one of the state maxims, it is worth conducting a qualitative study between the fundamental right to nondiscrimination and its application in the last paragraph of article 536 of the Organic Comprehensive Criminal Code, through which a restrictive condition to the substitution of preventive detention, particular that is directly related to constitutional and procedural principles, which will be developed in the consequent theoretical framework, such as: principle of equality, minimum criminal intervention and proportionality. Therefore, the present investigative work has as its purpose, a comprehensive review both doctrinally and jurisprudentially of the principle of equality and non-discrimination, when a defendant is prohibited from substituting preventive detention for recidivism in a criminal proceeding. Having made the aforementioned succinct, the academic conclusions that the undersigned will present will be reached, regarding the state of equality and non-discrimination that is contemplated for the defendants who will have a judicial past when they request a substitution of preventive detention.