Radical criticism of the indiscriminate use of pretrial detention in Peru

Abstract

This article examines, from a critical-dogmatic perspective, the indiscriminate use of pretrial detention in Peruvian criminal proceedings. Based on the analysis of the binding jurisprudence of the Supreme Court of Justice of the Republic – in particular Plenary Agreements No. 789-806/CIJ-116, No. 789-806/CJ-116, Cassation No. 789-806-Moquegua, No. 789-806-Arequipa, No. 789-806-Piura, No. 789-806-National, and No. 789-806-Ica, among others – and the dogmatic of criminal procedure, the following structural problems are identified and analyzed:  (a) the defective construction of the imputation hypothesis; (b) the inflation of evidentiary standards; (c) the expansive use of the prognosis of penalty; (d) the fiction of the danger of flight; (e) the instrumentalization of the danger of obstruction; (f) the degradation of the principle of proportionality; and (g) the apparent reasons for the judicial decisions. It is concluded that pretrial detention has ceased to operate as an exceptional precautionary measure to become an anticipated penalty, delegitimizing the 2004 model of accusatory criminal procedure.