Privación de la libertad de carácter excepcional en el sistema penal acusatorio y sus conflictos constitucionales y el principio de convencionalidad

Abstract

The current article examines the exceptional nature of pretrial detention in Colombia, in accordance with constitutional guarantees and rights, which allow two forms of deprivation of liberty: convictions and preventive detention measures, in this protection of fundamental rights aimed at guaranteeing human dignity, freedom and the presumption of innocence of persons. In this way and according to the constitutional purposes, the preventive deprivation of liberty, will be interpreted restrictively, fact by which, detention cannot be privileged over liberty, for this it is necessary to accept the criteria of necessity, adequacy, reasonableness, proportionality and that such need must be current and urgent, To safeguard the rights of people who are involved in criminal proceedings, however, to apply these criteria within our criminal system, they must be fair and in accordance with the principle of conventionality, seeking to safeguard and protect human rights, also guaranteeing the rights of victims, protect society, public order and peaceful coexistence, which sustain a tension between the fundamental rights of the accused and those of the victims and the community, which constitute a conflict between the interests of the criminal process and the rights of the accused, which are restricted in order to comply with constitutional purposes, These conflicts and this tension are more compromised with the principle of conventionality, since the Inter-American Commission on Human Rights on pretrial detention has insistently said that the legitimate and recognized purposes must have a procedural character, such as non-appearance and obstruction of justice and that it be absolutely necessary and proportional. so that personal liberty is not disproportionately affected, While the Colombian legislator added as purposes of the security measure, purposes that seek the protection of specific rights, such as the protection of the victim where legal rights and the community are protected, he is protected against punishable conduct that generates insecurity and fear, of general interest and peaceful coexistence, unlike obstruction of the process and non-appearance that protect procedural aspects of the criminal process.