El control de convencionalidad respecto a los fines de las medidas privativas de la libertad como fundamentos legítimos en Colombia

Abstract

Regarding the Purposes of the Assurance Measure (hereinafter FMA) there is currently a difficult contradiction between the jurisprudence of the Inter-American Court of Human Rights (IACHR) and the constitutional, legal and jurisprudential regulations of the Colombian legal system, since, by On the one hand, the IACHR understands that the norm contained in Article 7.5 of the American Convention on Human Rights (ACHR) establishes as the only legitimate grounds for preventive detention: 1° the risk that the accused tries to avoid the action of justice (risk of non-appearance) and 2nd that the accused tried to hinder the judicial investigation (risk of Obstruction of justice), however, in Colombia, in addition to the risk of non-appearance and risk of obstruction of justice as legitimate fines of the custodial measure of freedom in a prison establishment, it is established and accepted that the judges of control of guarantees impose measures of privat assurance iv as of freedom in a prison establishment on the basis that the freedom of the accused derives in a danger, not only for the safety of the victim but also for society and thus follows from the rules of the Code of Criminal Procedure (law 906 of 2004 ) such as articles 308 number 2 (danger to the security of society or the victim), 310 (future danger to the security of the community) and 311 (danger to the victim due to the freedom of the accused). The inclusion of the danger to society as a legitimate purpose of the imposition of the deprivation of liberty measure in a prison established in Colombia openly goes against the reiterated jurisprudence of the IACHR and the reports of the Inter-American Commission on Human Rights that they outlaw the so-called danger to the community as one of the purposes that motivate preventive detention measures.