Una de las audiencias más importantes que enfrenta cualquier persona que está siendo indiciado por la presunta comisión de un hecho punible, es La Célebre Audiencia de Solicitud de imposición de Medida Cautelar ante el Juez de Garantías. En este acto procesal de importancia medular para la persona forma parte de lo que se conoce con el nombre de Audiencias Múltiples en el Sistema Penal Acusatorio, y generalmente se celebra antes que se cumpla el término de 72 horas de la aprehensión. En este orden de ideas el catedrático Juan Antonio Kuan Guerrero, en su obra el Rol de la Defensa Penal en el Sistema Penal Acusatorio entiende las medidas cautelares como:
"Entendemos que se puede definir a las medidas cautelares como aquellas restricciones que impone el juez al imputado, en torno al ejercicio de determinados derechos constitucionales, sobre la base de indicios que permiten hablar, por un lado, de un perculum libertatis, reflejado tanto en el riesgo de frustración procesal como de peligrosidad procesal del imputado, y por otro lado, de un fumus bonis iuris, esto es, la presencia de hechos aparentemente delictivos que se le atribuyen al imputado" (BENAVENTE CHORRES, HESBERT. La Investigación Judicial y el Control de Convencionalidad en el Proceso Pernal: Concepto y modalidades Editorial Bosch Procesal, 2012, p 393) (Sub rayado es nuestro).
Efectivamente, tal como de forma brillante nos explica el profesor Kuan Guerrero, en la Audiencia de Solicitud de Medida Cautelar la carpeta penal debe existir y debidamente acreditada el perculum libertatis, que no es mas de indicios verdaderos que apunten a la desatención al proceso por parte del imputado por un lado, de igual forma, debe estar acreditado el fumus bonis iuris que no es más que elementos de convicción que acrediten el hecho punible y la vinculación del imputado.
Frente a una audiencia de solicitud de imposición medidas cautelares personales los temas que se debatirán girarán en torno a los siguientes temas:
Para que el Juez de Garantías pueda imponer medidas cautelares en contra de una persona, primero se deben cumplir ciertos presupuestos, contenido en el artículo 222 de nuestro Ordenamiento Procesal Penal al disponer que: "Requisitos. Podrán aplicarse las medidas cautelares personales:
Estas reglas así contenidas en el artículo 222 Id. CPP supra citado, y su examen busca determinar en esta parte incipiente del proceso, si es viable o no la aplicación de medidas cautelares en el caso concreto, aun sin que necesariamente se identifique cual o cuales de ellas se solicitan.
En fin, La Audiencia de Solicitud de Imposición de Medidas cautelares es jurídicamente técnica y requiere que el Abogado defensor esté alerta durante la audiencia para capitalizar sobre las falencias en la teoría presentada por el Sr(a). Fiscal, por un lado, y por el otro debe tener un conocimiento claro de los elementos de convicción que han sido hasta este punto procesal en la carpeta penal de forma que pueda contra-argumentar efectivamente la del Fiscal. En el caso de que esté a punto de enfrentar una audiencia múltiple le recomendamos contacte al Licdo. Patricio Jordan, aquí, a fin de que pueda evaluar su causa penal; Chat al 6-486-6544 / e-mail: medstarbilling@gmail.com
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