According to the Constitutional Court and the Supreme Court of Justice, the fundamental right to liberty is one of the guiding principles in a criminal procedure. However, this principle has limitations, and therefore, the liberty of a person facing criminal charges can be temporarily affected as long as there is a fully supported judicial decision enacted by a judge. This is as expressed in Article 28 of the 1991 Constitution: “No one can be harassed in their person or family, nor reduced to prison or arrest, detained, or have their domicile searched, except by written order of a competent judicial authority, with legal formalities and for a reason previously defined by law.”
In this context, in a criminal procedure, both the Prosecutor and the victim can request before the Judge – as of the day the charges were filed - the imposition of a pretrial detention measure against any individual who allegedly committed a criminal offense. This can be done, if the constitutional purposes of these measures outlined in Article 308 of the Criminal Procedure Code are met. These purposes include (i) the protection of the community and victims, (ii) ensuring the defendant's appearance in the criminal procedure, (iii) enforcement of a potential conviction sentence (iv) and/or preventing the individual from obstructing justice. Additionally, since fundamental rights are being affected, it's necessary to conduct a proportionality assessment to determine whether the measure is suitable, necessary, and proportional.
As it was previously mentioned, pretrial detention measures can be requested, by the Office of the Attorney General from the moment charges are filed. However, according to the Constitutional Court (Judgment C – 209 of 2007, C – 205 of 2002) and the fourth paragraph of Article 306 of the Criminal Procedure Code, victims are also empowered to directly request pretrial detention before the Judge. According to the Constitutional Court 1 , victims are active participants in the criminal process. They also have the right 'to know the truth, to access the administration of justice, to a comprehensive reparation, as well as to obtain judicial protection measures, without prejudice to seeking civil remedies for obtaining reparation for the damage caused by the crime.' (Ruling C – 209 of 2007). Therefore, the Constitutional Court recognized victims' right to oversee omissions, inactions, or decisions by the Prosecutor that could affect their rights, and thus, the possibility of requesting pretrial detention measures against the person being processed while the criminal process is underway (Ruling C – 805 of 2002 2 ).
Regarding the duration of the pretrial detention measure, according to the first paragraph of Article 307 of the Criminal Procedure Code, these measures cannot exceed 1 year. However, this duration can be extended in cases of certain crimes or specific situations, such as when there are three or more defendants, or when dealing with members of organized or armed criminal groups. Once the terms of the pretrial detention measure have been fulfilled, it can be replaced with a non-custodial measure (as outlined in subsection B of Article 307 of the Criminal Procedure Code). Additionally, the defendant could be released if time limits expire or an agreement is reached with the Attorney General of the Nation, in accordance with the provisions of Article 317 of the Criminal Procedure Code. However, this does not imply impunity, as the criminal procedure would continue; if the defendant is convicted, their arrest would be carried out, and the individual will be sent to a correctional facility.
However, a pretrial detention measure differs from a conviction sentence. This distinction arises because the former is applicable while determining a person's criminal responsibility and can be ordered during the formal investigation and trial stages of the criminal procedure. This is precisely because its nature is precautionary, purely instrumental, and not punitive (Articles 306 and following the Criminal Procedure Code). On the other hand, a conviction sentence is a legal sanction resulting from the commission of an offense 3 . In other words, a conviction sentence represents the State's ultimate exercise of its "ius puniendi", which "aims to suppress behaviors considered contrary to the law, that is, to rights, freedoms, or other protected legal interests. Within this framework, a distinction has been made between the punitive aspect of criminal law, which, precisely because it is aimed at safeguarding more precious legal interests of the order, admits more severe punishment." 4
In conclusion, there is a distinction between a conviction sentence and a pretrial detention. The latter is a preventive and temporary measure requested by either the Prosecutor or the victim of a crime and enacted by a Judge; whereas the conviction sentence is a penal sanction imposed by a Trial Judge (meaning when the Trial Judge determines that a person is indeed criminally responsible). This distinction is important given that if an individual is facing criminal charges, he/she will be subjected to pretrial detention and later released during the procedure, which means it does not imply impunity. This is because the criminal procedure against a person will continue, and in case they are found criminally responsible, through a convicting sentence, their arrest will be carried out in order to guarantee the enforcement of the criminal sanction.
