Exception or a general rule: has the figure of preventive detention in Peru been distorted?

In an arbitrary way, the emblematic Peruvian cases have jumped on television to be consumed as media shows in which the most transcendental figure has been preventive or pre-trial detention. In the midst of what Peruvians ask for as justice, this exceptional burden measure is used as a general rule that can affect the presumption of innocence of the accused.

This has been suggested by the judge, César San Martín, the recognized legal professional who carried out the trial of former President Alberto Fujimori. The president of the Permanent Criminal Chamber of the Supreme Court revealed that its use should always be as an exceptional measure should be interpreted and applied in a restrictive manner, covered by a standard of strong suspicion or serious and founded suspicion.

«If the risk of these procedural dangers (leakage and obstruction) is not carefully worked, the presumption of innocence may be violated», said San Martín.

Request for pretrial detention

According to the procedures stipulated by the Public Ministry, the characteristics of pretrial detention correspond to:

A) It is an exceptional measure: the detention of a defendant is the exception. In the general rule, the accused must follow the following instructions:
– Do not leave home without the judge knowing.
– Attend all errands on the days on which you are scheduled.
– Do not go to places of doubtful reputation where there is alcohol or drugs.
– Being strictly prohibited from communicating with certain people, for example, the victim.
B) It is a provisional measure: this measure is issued for a stipulated period of time. It will not last more than nine months or more than 18 months in the case of complex processes. This then refers to the fact that if the necessary evidence has been found to execute the defendant’s sentence and indicate his guilt, the judge must issue his immediate release. It should be noted that this will be done without prejudice to the necessary measures to ensure its presence in judicial proceedings.
C) It’s a variable measure: that is, it is a measure that can vary significantly. It can even cease if the elements of conviction indicate that there is no reason for the accused to be in prison.


To dictate it, the following principles must concur:

1) The principle of reasonability. According to the New Criminal Civil Code, this principle requires elements of conviction that:
– They reasonably estimate the commission of a crime
– That the crimes allegedly committed are serious and well-founded and that they link him as the author or participant thereof.

2) The proportionality principle. This principle is related to the sanction to be imposed in case of being responsible for the commission of the crime. The aforementioned legal norm requires that the sanction be imposed exceeds four years of imprisonment.

3) The principle of need. Finally, if the accused has shown that he has sought to obstruct justice by preventing the truth from being known or trying to flee from it, he would be supporting what is called Procedural Hazard. Therefore, pretrial detention is applicable.

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