Habeas Corpus Contra Resolucion Judicial
Short Description
Se presenta y analiza la procedencia del proceso constitucional de habeas corpus contra resoluciones judiciales, teniend...
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Hábeas Corpus Corpus contra Resoluciones Judiciales Resoluciones Judiciales Judiciales Penales
Juan Carlos Díaz Colchado Especialista en Derecho Procesal Constitucional y en Derechos Fundamentales Fundamentales por la Pontificia Universidad Católica del Perú y el Centro de Estudios Constitucionales
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Sobre el hábeas corpus (Concepto) •
Dicha acción de garantía es básicamente un proceso de resguardo y tutela de la libertad personal en sentido lato. En puridad representa r epresenta la defensa de aquello que los antiguos romanos denominaban ius movendi et ambulandi o los anglosajones consignaban como power of locomotion. Lo que se tutela es la libertad física en toda su amplitud. Ello en razón a que ésta no se ve afectada afectada solamente cuando una persona es privada arbitrariamente de su libertad, sino que también se produce dicha anomalía cuando encontrándose legalmente justificada esta medida, medida, es ejecutada con una gravedad mayor que la establecida por la ley o por los jueces. En efecto, la facultad de locomoción o de desplazamiento espacial no se ve afectada únicamente cuando una persona es privada arbitrariamente
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Objeto y características del hábeas corpus •
El proceso de hábeas corpus se promueve con OBJETO de solicitar del órgano jurisdiccional la salvaguarda de la libertad corpórea, seguridad personal, integridad física, psíquica y moral, así como de los demás derechos conexos. Pero también protege a la persona contra cualquier autoridad que, ejerciendo funciones jurisdiccionales, emite resoluciones violando la tutela procesal efectiva y, consecuentemente, la libertad individual. Asimismo, el proceso de hábeas corpus responde a dos CARACTERÍSTICAS ESENCIALES: brevedad y eficacia. En ese sentido, lo que se pretende con este remedio procesal es que se restituya el derecho y cese la amenaza o
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¿Procede un proceso constitucional contra una resolución judicial? • En principio sí, aunque está sujeto a determinados requisitos de procedencia. • El supuesto empleado por excelencia es el proceso de amparo. El derecho más invocado, cuando se trata
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Marco constitucional •
La Constitución de 1993 establece lo siguiente, art. 200º inciso 2: •
•
“La Acción de Amparo (…) No procede contra (…) resoluciones judiciales emanadas de procedimiento regular”
Respecto del hábeas corpus contra resoluciones
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Antecedentes • •
•
La Ley 23506, Ley de Hábeas Corpus y Amparo, en el artículo 6º inciso 2 establecía: “Artículo 6º.- Casos de improcedencia de las acciones de garantía.- No proceden las acciones de garantía: (…) Contra resolución judicial emanada de un procedimiento regular ” Por interpretación a contrario sensu: “ procede la
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La labor de la jurisprudencia •
La jurisprudencia entendió que procedimiento irregular era aquel en donde no se respetaban los derechos
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El hábeas corpus contra resoluciones judiciales contra resoluciones judiciales durante la vigencia de la Ley Nº 23506
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La regulación del Código Procesal Constitucional Marco constitucional: artículo 2º.24.f; 200º.1
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Artículo 4º del CPConst . El hábeas corpus procede cuando una resolución judicial firme vulnera en forma manifiesta la libertad individual y la tutela
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¿Qué se entiende por tutela procesal efectiva? •
De acuerdo al artículo 4º del CPConst.: “Se entiende por tutela procesal efectiva aquella situación jurídica de una
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Hábeas corpus contra auto que ordena la detención judicial preventiva • Detención judicial preventiva: medida cautelar dictada dentro de un proceso penal con la finalidad de asegurar la presencia del procesado dentro del proceso. • “ La detención judicial preventiva constituye una medida cautelar que limita la libertad física, la misma que se dicta por asegurar la
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Hábeas corpus contra auto que ordena la detención judicial preventiva • Los justiciables impugnaban con mucha frecuencia la medida coercitiva (mandato de detención) dictada en el proceso penal. • Esto se originó porque el mandato de
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Exigencias de motivación del auto que dicta mandato de detención judicial preventiva • La norma procesal penal (artículo 135º del CPP 1991, D. Leg. 638) exige: vinculación entre el agente y los hechos materia de la denuncia; prognosis de la pena a imponer
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Exigencias de motivación del auto que dicta mandato de detención judicial preventiva según el Tribunal Constitucional: • El TC en diversas sentencias ha ido precisando las exigencias de la motivación del auto que resuelve dictar mandato de detención judicial preventiva.
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EXP Nº 2915-2004-HC •
Se sostiene que son dos los factores sustanciales que deben ser atendidos por la judicatura al momento de evaluar la razonabilidad y proporcionalidad de la limitación del derecho a la libertad personal materializada en una detención judicial preventiva: de un lado, las causales que la justifican; y, de otro, la duración de la medida. El Tribunal Constitucional, en el Caso Silva Checa (Exp. N.º 1091-2002-HC/TC), ha tenido oportunidad de pronunciarse in extenso respecto de las causas que justifican el dictado de una medida de detención; siendo éstas, básicamente, la
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EXP Nº 07448-2005-HC •
Tratándose de la detención judicial preventiva, la exigencia de la motivación en la adopción o el mantenimiento de la medida debe ser más estricta, pues sólo de esa manera es posible despejar la ausencia de arbitrariedad en la decisión
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EXP Nº 07038-2005-HC • En la detención judicial preventiva, la exigencia de la motivación en la adopción o el mantenimiento de la medida debe ser estricta, pues sólo de esa manera será
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Hábeas corpus que cuestiona la apertura del proceso penal
El cuestionamiento de la apertura del proceso penal es reciente.
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Hábeas corpus que cuestiona la apertura del proceso penal •
El artículo 77º del Código de procedimientos penales (modificado por la Ley N° 28117, publicado el 10-12-2003) 10- 12-2003)
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Hábeas corpus que cuestiona la apertura del proceso penal • •
En pocas palabras el TC ha establecido que el juez penal debe fundamentar adecuadamente la apertura del proceso de acuerdo a los lineamientos establecidos en el artículo 77º del Código de procedimientos penales “(…) la obligación de motivación del Juez penal al abrir instrucción, no se colma
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