Citas bibligráficas
Coronel, P., Tanco, O., Martínez, P. (2017). La inconstitucionalidad de la conducción compulsiva en el Código Procesal Penal del año 2004 [Trabajo de suficiencia profesional, Universidad Tecnológica del Perú]. https://hdl.handle.net/20.500.12867/737
Coronel, P., Tanco, O., Martínez, P. La inconstitucionalidad de la conducción compulsiva en el Código Procesal Penal del año 2004 [Trabajo de suficiencia profesional]. PE: Universidad Tecnológica del Perú; 2017. https://hdl.handle.net/20.500.12867/737
@misc{renati/1699217,
title = "La inconstitucionalidad de la conducción compulsiva en el Código Procesal Penal del año 2004",
author = "Martínez Pacheco, Paul Nelson",
publisher = "Universidad Tecnológica del Perú",
year = "2017"
}
This paper reveals the unconstitutionality of compulsory driving in the framework of the new criminal process, established with the Criminal Procedure Code of 2004, suggesting its normative modification or its repeal. The recent changes in criminal and criminal procedure are the result of increasing citizen insecurity, which has had a gradual reduction in guarantees that mainly affect fundamental rights, we are thus faced with a conjunctural change that brings us closer to the sphere of the Criminal law of the enemy. In the face of constant progress, we must interpret procedural norms and, in particular, those that affect fundamental rights, based on the Constitution, as a way of prevailing before the courts a teleological interpretation rather than a grammatical one; This reasoning is based on the fact that the provisions contained in the Political Constitution of Peru are prescriptive in that they create or concur to create true and authentic rules of interpretation of criminal procedural law. From this perspective, the legal system is delimited from a noble perspective: on the one hand, through an interpretation carried out by the Constitutional Court, as established in Article VI, the preliminary title of the Constitutional Procedural Code, Guarantees related to these fundamental rights; And on the other hand, through the legislative development of the rights in which they establish specific protections, we have, for example, the Constitutional Procedural Code and the New Criminal Procedure Code of clear guaranteeing trends, because fundamental rights measure the recognition And respect of the legal systems to democracy. In the case of an average such as Compulsive Driving, we are faced with a conflict between two fundamental rights: on one hand individual freedom and on the other the procedural purpose, so that before this collision of constitutionally protected rights, it is necessary that the A body weighing assets and rights in the light of the right case, always trying to harmonize it, but if this is not possible specifying the conditions and requirements in which the prevalence of one of them. Thus, it should be noted that fundamental rights have a triple demand on the Judiciary: first, the guarantee of motivating judicial decisions, in which the material assumptions of the precautionary measures are applied in conjunction with constitutional principles, since they are auxiliary to understand The real scope of the rule or to fill the gaps of this in all cases. Thus, principles such as proportionality, reasonableness, legality, among others, are of unavoidable observance, as provided by the second guarantee, which is the subjection Of the court to the law, not only procedural, but particularly constitutional, so that before a grammatical interpretation of the procedural rule, we must resort to a third guarantee, which is materialized by means of the double instance, in order that a Superior Collegiate check and corrobore, if the judgment of subsumption has been realized respecting the concret The legal guarantees of fundamental rights. Where the time to carry out a measure of coercion such as that of compulsive driving will affect a fundamental right as that of individual freedom. In this sense, it is pertinent to point out that these types of inconsistencies end up being appealed through a Habeas Corpus process, most of which concluded with a resolution that declares them unfounded or improper, mainly due to the lack of identification of the violation materialized in law Fundamental to freedom, since it is not enough to allege that this right has been violated, but it is necessary to identify in which guarantee, in what principle, sub-principle or in what value have been infringed the fundamental rights of the accused. The purpose of this work is to prove that it is unconstitutional to use a coercive measure such as compulsory driving by the Public Prosecutor (public ministry), when a fundamental right such as that of individual freedom is violated or affected of the person.
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