The constitutional review of pretrial detention in Ecuador: tensions between public safety and fundamental rights

Abstract

The main objective of this article was to critically analyze the constitutional review of pretrial detention in Ecuador, examining the tension between public safety and fundamental rights. The qualitative and dogmatic research employed a dogmatic-legal and hermeneutical approach to analyze the national regulatory framework, including the 2008 Constitution and the Comprehensive Organic Criminal Code, as well as the standards of the Inter-American Human Rights System. The study was based on the analysis of key rulings from the Constitutional Court of Ecuador, such as Ruling No. 2-20-CN/22, and from the Inter-American Court of Human Rights, such as the Tibi v. Ecuador case. The findings revealed that, despite its exceptional nature, pretrial detention has become a widespread tool of social control with little effective constitutional oversight. The study found that judicial practice often prioritizes a punitive discourse of public safety, yielding to social and media pressure. A significant gap was found between the law and judicial practice, as judges do not rigorously apply the proportionality test and resort to generic justifications to impose the measure. The article concludes that strengthening constitutional oversight requires a structural reform that includes training for justice officials and strengthening the Constitutional Court. It emphasizes that genuine constitutional oversight must act as a defense mechanism for fundamental rights against the abuse of the State's punitive power.