Detención y Prisión Provisional

foto preso model

 

 El primer principio que debe tener en cuenta el Juez Instructor, a la hora de decidir si impone o no la Prisión provisional de un investigado en una causa penal, es el de su excepcionalidad. Sin embargo, demasiado a menudo se observa una excesiva tendencia de los Jueces a imponer la medida de prisión provisional no como último recurso, no como medida excepcional, sino como expediente habitual en la instrucción de determinados delitos, y al mismo tiempo se observa también una marcada tendencia a prolongar en exceso su duración. Ejemplo de todo ello es el que en el año 2010, en las prisiones Españolas los presos preventivos sumaban el 18,7% del total de la población reclusa. En Cataluña, comunidad con competencias en materia de gestión de prisiones y ejecución penitenciaria, las estadísticas no difieren de forma sensible de las Españolas, con un 18,6% de preventivos en la población reclusa (fuente: Idescat.cat).

 

Al hacerlo, los jueces instructores descartan todo un conjunto de medidas alternativas a la prisión provisional, específicamente previstas en la legislación procesal Española en vigor, tales como la constitución de fianza (art. 529 LECr),  la comparecencia ante la autoridad Judicial en los días que esta señalare con retirada del pasaporte si se estimara oportuno para garantizar el cumplimiento de la obligación (art. 530 LECr), la privación provisional de permiso de conducción de vehículos a motor (art. 529bis LECr), la reclusión en el propio domicilio por razón de enfermedad (art. 508 LECr); el ingreso en un establecimiento para continuar el tratamiento  de desintoxicación de sustancias estupefacientes que ya se hubiere iniciado (art. 508.2) y, cuando sea preciso para la protección de la víctima en determinados delitos, la prohibición de residir y/o de aproximarse a un determinado lugar, o de comunicarse con el ofendido (art. 544bis). Es cierto que, recientemente, algunos Órganos Jurisdiccionales están imponiendo, como alternativa a la prisión preventiva, la instalación de dispositivos electrónicos de localización del investigado. Pero son casos excepcionales.

 

Las medidas cautelares alternativas a la Prisión preventiva  en la fase previa al proceso, son efectivas en la medida en que pueden ser suficientes para asegurar los fines previstos para la prisión preventiva en un estado democrático de Derecho (el aseguramiento del proceso, ya sea para evitar la fuga del imputado, ya sea para evitar que entorpezca las investigaciones en curso; y la evitación de nuevos ataques a las víctimas, sólo si aquellos son razonablemente previsibles). En todo caso, tales medidas deberían aplicarse con preferencia a la de prisión provisional, porque son evidentemente mucho más compatibles con los Derechos fundamentales a la Libertad y a la presunción de inocencia, proclamados respectivamente en los art. 5 y 6.2 de la CEDH y  en los arts. 6 y 48 de la Carta de la UE, y porque constituyen un medio eficaz de soslayar los efectos negativos de un encarcelamiento, tales como la estigmatización y el contagio criminal. Considero particularmente interesantes las medidas relativas a la obligación de seguimiento de procesos terapéuticos en los casos de delincuencia funcional vinculada al fenómeno de las drogas, o a enfermedades mentales, pues su aplicación puede adelantar los beneficios de una terapia adecuada, desde el mismo inicio de la instrucción del procedimiento. También considero necesario potenciar la utilización de dispositivos electrónicos de localización del imputado, ya plenamente vigentes en nuestra legislación penitenciaria para los reclusos que cumplen penas privativas de libertad. Lamentablemente, la aplicación por los jueces de ambos tipos de medidas es casi inexistente en nuestro ordenamiento.

 

Merece una reseña el planteamiento que sobre la cuestión hizo en su día  el Libro Verde relativo a la aplicación de la legislación de justicia penal de la UE en el ámbito de la detención, publicado por la Comisión Europea en fecha 14 de Junio de 2011. En él se puede leer lo siguiente:

 

“La prisión preventiva es una medida de carácter excepcional en los sistemas judiciales de todos los Estados miembros. Se ha de aplicar cuando se considere que todas las demás medidas son insuficientes. En algunos sistemas europeos la prisión preventiva se rige incluso por un precepto constitucional que revela un sesgo a favor de la libertad, en consonancia con la presunción de inocencia. Ello limita las circunstancias en las que se autoriza la prisión preventiva y establece criterios y procedimientos específicos a tal efecto. Así, por ejemplo, solo debe aplicarse después de que el tribunal determine que los procesados presentan un riesgo sustancial de fuga, una amenaza para la seguridad de la comunidad, las víctimas o los testigos, o un riesgo de entorpecer las investigaciones. No obstante, se debe verificar en todos los casos la condición de procesados detenidos y se debe revisar la posibilidad de que sean liberados a lo largo de toda la causa. A la hora de programar los juicios se debe dar prioridad a los casos de los procesados que se encuentren detenidos. El principio de proporcionalidad en materia penal exige que las medidas coercitivas, como la prisión preventiva o medidas alternativas a la privación de libertad, solo se utilicen cuando sea absolutamente necesario y solo por el tiempo necesario”

 

Detención de Menores:

 

El ordenamiento Español contempla algunas medidas cautelares alternativas a la detención de los menores (entendida aquí como internamiento preventivo). Son la libertad vigilada, la prohibición de aproximarse o comunicarse con la víctima, o convivencia con otra persona, familia o grupo educativo (art. 28 L.O. 5/2000, reguladora de la responsabilidad Penal del Menor).  No parece necesario articular medidas distintas de las ya previstas en España, cuyas estadísticas en este apartado, por otra parte, son satisfactorias.

 

Por lo que respecta a la detención policial de los menores, es absolutamente imprescindible, en mi opinión, dotar de medios y formación a los funcionarios policiales para que la detención se verifique en dependencias adecuadas y separadas de los mayores de edad, dotándoles de asistencia médica, psicológica y social cuando sea preciso, dejándola sin efecto en el más breve plazo, sin que se prolongue más allá de las 24 horas. Previsiones, todas estas, presentes en nuestro vigente ordenamiento, pero cuyo cumplimiento efectivo deja en ocasiones mucho que desear.

 

Màrius Roch i Izard

Abogado.

 

Nota: Este documento es meramente informativo. Los datos y las opiniones que se incluyen en el mismo no constituyen asesoramiento jurídico alguno. El Letrado que suscribe declina cualquier responsabilidad por la utilización que pueda hacerse de sus contenidos.

El autor autoriza a todo aquel que quiera hacerlo a reproducir este artículo, con la condición de que se cite a www.rochadvocat.com como sitio original de publicación

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