El bien jurídico más preciado de cualquiera persona es su libertad y la constitución panameña lo consagra en su artículo 21 al disponer que: “Nadie puede ser privado de su libertad, sino, en virtud de mandamiento escrito de autoridad competente, expedido de acuerdo con las formalidades legales, y por motivo previamente definido en la ley. Los ejecutores de dicho mandamiento están obligados a dar copia de él al interesado, si la pidiere. El delincuente sorprendido in fraganti puede ser aprehendido por cualquier persona y debe ser entregado inmediatamente a la autoridad. Nadie puede ser detenido más de veinticuatro horas sin ser puesto a órdenes de la autoridad competente. Los servidores públicos que violen este precepto tienen como sanción la pérdida del empleo, sin perjuicio de las penas que para el efecto establezca la Ley. No hay prisión, detención o arresto por deudas u obligaciones puramente civiles.” (subrayado es nuestro)
Efectivamente, la legislación panameña tutela debidamente la libertad de las personas bajo su jurisdicción en virtud del citado artículo constitucional Id. Más adelante analizaremos este artículo a luz de las normas procesales que la complementan.
Considerando lo anterior, es lógico inferir que para inculcar el derecho a la libertad debe existir salvaguardas que protegen ese derecho. Claro que si, en este orden los artículos 233, 234 y 235 del Código Procesal Penal regulan esta materia y en marcan el debate durante la célebre AUDIENCIA DE CONTROL DE LA APREHENSIÓN. Veamos pues, el artículo 233 del CPP, dispone que:
Tal como se observa en la citada norma que regula la forma de aprensión de una persona, donde se destaca que la policía puede proceder a la aprensión de la persona en tres circunstancias específicas: uno, cuando existe flagrancia en el hecho punible; dos, cuando se persigue a la persona inmediatamente después de cometer el delito; y tres, cuando existe una orden de aprehensión debidamente emitida por parte del Ministerio público como autoridad competente.
Considerando lo anterior, durante la audiencia de Legalización de la aprehensión se debatirán cuatro puntos medulares. Uno, el cumplimiento de los plazos; dos, Respeto a los Derechos Humanos; tres, Justificación legal de la aprehensión; y cuatro, Necesidad de afectación de la libertad personal.
En la audiencia al debatir el tema de cumplimiento de los plazos es de importancia medular contar con información clara y precisa, para poder definir si efectivamente se han cumplido o no con los plazos legales que contempla la normativa constitucional y legal vigente.
El otro tema a debatir durante la audiencia de legalización de la aprehensión es el Respeto a los Derechos Humanos. En este orden, uno de los aspectos que le da el carácter garantista al Sistema Penal Acusatorio es la debida tutela de los derechos fundamentales. De allí que el Abogado defensor debe establecer si durante los procedimientos de la aprehensión se observaron y respetaron los derechos fundamentales de su cliente. Continuando en la audiencia el otro tema a debatir es la Justificación Legal de la Aprehensión, la cual implica la determinación de ante qué tipo de aprehensión estamos, el tipo de aprehensión ejecutada por un ciudadano cualquiera, o frente a una aprehensión policial por flagrancia o persecución inmediata después de cometer el hecho punible, o estamos inmersos en una aprehensión por orden del Ministerio Público, lo cual implicaría la revisión detallada de la resolución de Aprehensión con el objeto de verificar si se ha cumplido con los elementos de Ley por parte del agente del Ministerio Público, y por último se debate si existió la Necesidad de Afectación de la Libertad Personal. Frente a esta parte de la audiencia el Abogado defensor debe enfocarse en determinar si en el caso concreto más allá de aspectos meramente formales, existía la necesidad de afectar la libertad personal de la persona. En este sentido y a manera de ejemplo ¿Es necesario aprehender a alguien que pese a ser querellado, denunciado, a comparecido o se ha mantenido cercano a la investigación preliminar incluso designando Abogado defensor? De igual forma, ¿Es necesario aprehender a una persona respecto de la cual no se ha hecho un solo intento de notificación? Considerando que los principios que rigen el proceso penal ponderan y tutelan la protección de la libertad, es de suma importancia que estos aspectos sean debatidos en esta audiencia y que su omisión no es más que el reflejo de una ausencia de necesidad de afectar la libertad, hecho que puede acarrear la declaración de la ilegalidad de la aprehensión.
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