La privación injusta de la libertad y sus implicaciones penales: análisis a la luz de la sentencia SU-363/2021 de la Corte Constitucional

Abstract

This article examines the criminal implications of unjust deprivation of liberty based on a legal and jurisprudential analysis, based on the ruling SU-363/2021 of the Constitutional Court of Colombia. It addresses different perspectives and key foundations around this issue. The Constitutional Court emphasízes the need to protect fundamental rights such as freedom and the presumption of innocence, analyzes how the disproportionate use of restrictive measures violates procedural guarantees and constitutes a risk of abuse of power by the State. The Council of State addresses the unjust deprivation of liberty from the regime of State patrimonial responsibility, studying the cases in which unlawful damage is configured, this implies compensation when the State, through its agents, has detained a person unjustifiably, paying attention to concepts such as judicial error and improper public function.

From a criminal perspective, the presumption of innocence is highlighted as an inalienable right. This principle is intrinsically related to the in dubio pro reo, according to which any doubt in a criminal process must favor the accused, differentiating itself from the compensatory approach by the Council of State. The statistics that reflect the low rate of convictions in these processes are also analyzed, evidencing structural problems in the judicial system. This article examines how, under certain conditions, the State can exonerate itself from responsibility by demonstrating the exclusive fault of the victim in the commission of acts that initially justified the preventive measure. Finally, it reflects on the need to balance preventive measures aimed at protecting public safety with the protection of procedural guarantees.