The misuse of personal roots in flagrant matters against the principle of equality

Abstract

This research analyzes the misuse of personal roots (“arraigo”) in flagrancy hearings in Ecuador and its impact on the application of pre-trial detention. Although Article 534 of the Comprehensive Organic Criminal Code establishes that such detention must be applied only as an exceptional measure, in practice it has become almost automatic when defendants fail to present documentary proof of their social or economic ties. This requirement, not explicitly mandated by law, has turned into a socioeconomic filter that benefits individuals with formal employment, assets, or support networks, while excluding those in vulnerable conditions. Using a qualitative and exploratory approach, the study combines legal-doctrinal analysis with the review of cases and national and inter-American jurisprudence. The findings show that the rigid documentary requirement of arraigo perpetuates structural inequalities and contradicts the principles of procedural equality, proportionality, and exceptionality, recognized both in the Constitution and in inter-American standards. The research concludes that judges must adopt flexible and objective criteria when assessing arraigo, ensuring that pre-trial detention remains a last-resort measure and does not become a form of anticipated punishment.