VII.
CONCLUSIONS
317.
The non-exceptional use of pretrial detention is one of the most
serious and widespread problems faced by OAS member States in respecting and
guaranteeing the rights of persons deprived of liberty. The excessive use or abuse of this
measure is one of the clearest signs of failure in the justice administration system, and it
constitutes an unacceptable situation in democratic societies that strive to uphold the
right of all citizens to be presumed innocent.
318.
In a democratic society, the criminal justice system is founded on the
primacy of human dignity and fundamental rights. These include the guarantee of
personal liberty, the right to due process and the presumption of innocence, which
translate into the right of every person to remain free throughout criminal proceedings.
319.
Pretrial detention is a strictly extraordinary measure, and its
application should comply with the principles of legality, presumption of innocence,
reasonableness, necessity, and proportionality. This measure can only be ordered in the
cases expressly provided by law and in accordance with the requirements thereby
established. It is permissible only when directed at accomplishing its legitimate aims,
which according to Article 7.5 of the American Convention are: (a) preventing the
accused from evading justice, for which the degree of attachment of the accused to the
community, its conduct during the proceedings and the severity of the charges and the
foreseen sentence may be taken into account; and (b) avoiding obstruction of the
investigation and the trial by the accused, which could be assessed by looking at the
capacity of the accused to alter the evidence, influence witnesses or induce other
persons to commit these acts.
320.
One of the fundamental guarantees flowing from due process and the
presumption of innocence is access to an effective recourse before an independent
judge to challenge the order of pretrial detention. This recourse should work to fully
guarantee the right to defense of the accused and to enable the competent judicial
authority to go beyond a mere formal revision and conduct a comprehensive analysis of
all the procedural and substantive issues that served as grounds for the challenged
decision.
321.
Similarly, given that the period of pretrial detention should not exceed
a reasonable period, the State has the duty to periodically review the existence of the
circumstances that led to the application of the measure in the first place. In this regard,
the judge has a duty to periodically review whether the pretrial detention remains
reasonable and necessary to fulfill its legitimate purposes.
322.
According to international human rights law, detaining a person prior
to the enactment of a final judgment should be the exception and not the rule, precisely
because of the right to the presumption of innocence. It is therefore a distortion of the
rule of law and of the criminal justice system for pretrial detention to be used as an
anticipated sentence or as a way to mete out swift justice prior to adopting a judgment
issued in compliance with the standards of due process. Making it seem like an
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