The MacCormick model as a motivation scheme for the application of the iachr standards in the setting of preventive prison

Abstract

The perspective of society, jurists and authorities, conceives that the application of preventive detention occurs arbitrarily, many feel that the laws are not adequate for the efficient administration of justice, but that it favors those who violate it, it has been developed a number of positions on the subject, but no one has taken into account the conventionality control that should be exercised by reason of the application of this measure. The Inter-American Court, from now on raises parameters so that an action does not fall into arbitrary, one of the most relevant is that, even when preventive detention is issued under the legal framework, it can be arbitrary as it is not compatible with the respect of rights fundamental, by not complying with elements of reasonableness, predictability and proportionality, in this sense, the configuration of domestic law in harmony with international instruments is essential so that an arbitrary act is not configured, that is why the Inter-American Court, establishes that arbitrariness should not be understood as a breach of the law but as an act incompatible with fundamental rights. By not taking into account the effective and uniform application of international instruments, referring to the standards issued by the Inter-American Court, the application of this measure has actually become arbitrary. The main objective is framed in: Establishing the MacCormick Model as a motivational scheme for the application of the IACHR standards in the setting of preventive detention, among the questions that guide this investigation are the following: What is the theoretical foundation of MacCormick's model as a motivation scheme? What are the standards of the IACHR sentences for the establishment of preventive detention? How does MacCormick's model contribute as a motivational scheme for the fixation of preventive detention?