39
88.
Some legal systems have chosen to include provisions that, while not
completely disallowing every defendant facing trial from remaining at liberty, do make it
significantly more difficult to secure that possibility, through the establishment of
special procedures or requirements, or of assumptions under which, in given
circumstances, the judge can or must determine that procedural risk exists (which, in
principle, would be grounds for ordering custodial measures). In general, on this point,
different legal systems tend to preserve minimal margins for judicial discretion or
appraisal, in order to avoid becoming notably illegitimate (or contrary to the
constitutional and/or Conventional order).
(b)
Prohibition of other personal precautionary measures that are less
onerous to the accused than pretrial detention. In this situation, which is similar to that
of offenses in which release from prison is not allowed, pretrial detention is required for
as long as the proceedings go on, and the courts are prohibited from ordering other less
restrictive alternatives measures. This leads to the de facto standard that the only
admissible precautionary measure in such cases is detention, with no consideration
given to other less severe restrictions that might be appropriate.
(c)
Expansion of the grounds for pretrial detention beyond mere
precautionary considerations. By means of legal formulas: (1) that tend to expand the
grounds of flight risk to a hypothesis that goes beyond the precautionary purpose by, for
example, emphasizing such considerations as the seriousness of the offense and the
sentence expected in the event of a conviction; or (2) that establish grounds for the
admissibility of pretrial detention other than traditional or precautionary ones, which
respond to punitive criteria or to perceptions of risk, such as the danger of recidivism.
89.
To return to the examples of Colombia and Bolivia, whose criminal
justice reform processes have already been described above, the following specific
reforms were adopted in connection with the use of pretrial detention:
90.
Colombia’s Law 1142 of 2007 adds a fourth justification for the
ordering of pretrial detention, by establishing that it is allowed when the accused was
arrested for a crime or misdemeanor in the previous 12 months, provided that the
earlier case did not conclude with a finding of inadmissibility or with an acquittal (Art.
26). Law 1453 of 2011 stiffened this provision by extending the timescale from one to
three years (Art. 60).
91.
In addition, Law 1142 of 2007 states that to determine whether the
accused’s liberty would pose a danger to the safety of the community, it is enough to
consider the seriousness and nature of the punishable act (Art. 24). The Constitutional
Court ruled this article enforceable in the understanding that the judge, in reaching such
a determination, must invariably assess the other circumstances provided for in law
136
However, Law 1453 of 2011
(Art. 310 of the Code of Criminal Procedure).
reintroduced the provision that in determining whether the accused’s liberty would
136
Constitutional Court, Judgment C-1198/08, December 4, 2008, Justice Nilson Pinilla Pinilla.
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