La medida de aseguramiento intramural en el derecho penal Colombiano. Implicaciones en el hacinamiento carcelario.

Abstract

Despite the recognition of the exceptionality of the application of the deprivation of liberty measure in prison centers, it has become more of a regular imposition, almost now understood as a rule that, due to its indiscriminate application, has been affecting the procedural guarantees delimited in the Political Constitution, whose purpose is the protection of the right to freedom (understood as a fundamental guarantee), without neglecting the guarantee of due process without unjustifiable delays. The consequence of the indiscriminate application of the deprivation of liberty security measures, with the sole pretext of guaranteeing the appearance of the accused subject at the different hearings of the criminal process, due to the permanence of the means of evidence or for the protection of the community, generates a visible violation of the legal and constitutional limitations regarding the application of the natural precautionary measures of the criminal process, thereby leading to a discretionary application by the respective Guarantee Control Judge, a situation that aggravates the suffering generated by overcrowding prison that the Republic of Colombia suffers. This situation not only abolishes fundamental guarantees for the accused (since there is talk of insurance measures), but also fundamentally contradicts the natural postulates of the preventive insurance measure, which is not without limits, as Castro Martínez maintains. (2015, p. 24), since it maintains that the application of precautionary measures in the criminal process must be executed in a way that respects both the precautionary nature of these figures and the constitutional principles and rights that surround it, a situation that will be thoroughly developed in the second title of this monograph. Establishing the previous situation as a starting point, the serious increase in the prison population in detention centers in Colombia is posed as a problem of analysis, as a phenomenon that generates significant violations of human rights, fundamental rights and minimum guarantees of the population deprived of the prison. freedom, considering that overcrowding constitutes the initial (most serious and complicated) problem of prisons, as has been maintained by Mendoza, who affirms that it is a broad and generalized consideration from the point of view of doctrine and jurisprudence (2018, pp. 37-40). The condition of the country in the matter has been constantly analyzed by the national doctrinal sector, as is the case of Mahecha Barajas and Gutiérrez Ramírez (2014, p. 3), who affirm that the overcrowding of prisons in Colombia is an alarming, serious problem. and of intangible consequences (in their terms, “dire”), which have led to violations of the fundamental human and constitutional rights of the population deprived of liberty, as a population group that has suffered how the normative order is not complied with and is not executed. , considering themselves victims of a collapsed judicial system that does not offer guarantees to the affected companies. Within the framework of this situation, as well as acknowledging the duty of the State (according to the Colombian political-State system), to point to a criminal policy of a liberal nature that does not stop at dealing with criminality but also safeguards and respects the fundamental guarantees and the human rights of the administered, which in the words of Botero Bernal (2005) is "elaborated" (p. 67), and which seeks a penal system of a liberal, critical and limiting nature, is that it is analyzed, discussed and criticizes the serious level of normalization that has been reached in the imposition of preventive security measures in prisons that is exposed with this investigation.