The requirement of the sub principle of necessity in preventive detention and its formulation as counterfactual argument

Abstract

The norms that regulate the preventive detention expressly demand that its imposition is raised under a reasoning of weight and not of subsumption. Under this assertion, the necessity of preventive detention imports an additional requirement to those that are its own as a precautionary measure. This would establish, according to the presumption of innocence and the said regulation, a presumption in favor of the effectiveness of an injunction of lesser intensity if the assumptions that make it are fulfilled. Consequently, the granting of pre-trial detention is a special way of arguing, that is, by counterfactual arguments. The above, then, only with the correct formulation of the counterfactual correlative –that the other precautionary measures will not be effective to ensure the purposes of prosecution –could be distorted such presumption.