Dilemma of enhanced argumentation: analysis from the application of personal precautionary measures

Abstract

This academic paper posed the question: What is the argumentative standard required to determine the impossibility of applying a precautionary measure other than pretrial detention, in cases in which pretrial detention had previously imposed in another criminal proceeding against the same person? For this purpose, the study aimed to theoretically and conceptually delineate pretrial detention by identifying its evidentiary and motivational standard required for its imposition, subsequently illustrating these through a relevant case. In that regard, the methodology was qualitative, cross-sectional, non-experimental, and documentary, at a descriptive and exploratory level, employing the analytic-synthetic method, the deductive-inductive method, inductive-deductive, and the dogmatic-hypothetical method. Thus, the results show that pretrial detention demands a non-extendable constitutional temporal limitation; likewise, they hold that its application is a measure of ultima ratio, for which reason it requires a high level of evidentiary confirmation that excludes other circumstances applicable to the case, and a justification supported by an examination of proportionality in both a general and strict sense, that is, an analysis of the parameters of necessity, suitability and proportionally.