Appeal against preventive detention in the evaluation and preparatorys

Abstract

The legal issue of this investigation is to analyze whether the impossibility of filing an appeal against the resolution granting pretrial detention during the evaluation and preparatory stage of the trial violates the principle of procedural challenge guaranteed in the Constitution of Ecuador. Applying a qualitative approach through the hermeneutic method, involving the review of bibliographic materials from various scientific articles, inductive methods, exegesis, and doctrinal and jurisprudential review. Article 653, numeral 5 of the Ecuadorian Comprehensive Organic Penal Code violates the constitutional guarantee to appeal in the right to defense established in Article 76, numeral 7, letter m) of the Constitution of Ecuador and Article 5, numeral 6, of the COIP. After the applied analysis, it is evidenced that there is unconstitutionality regarding the appeal to pretrial detention since the exercise of the right to defense is not guaranteed, and the right to appeal is restricted, creating a contradiction between an ordinary norm and a constitutional norm. Additionally, there is no suitable recourse to challenge the order granting pretrial detention after the stage of fiscal instruction.