59
name, of the punitive detention: both are a deprivation of freedom,
they (normally) occur in terrible conditions, they cause the subject and
those that surround him a serious material and mental damage, and
they normally have long-term repercussions, sometimes devastating.
[…] Therefore, among other things, it is necessary to seriously weigh in
the justification, the characteristics, duration, and alternatives of the
197
preventive detention.
141.
In addition, the non-exceptional use of pretrial detention poses a risk
to the enjoyment of the right to the presumption of innocence and the guarantees of
198
legal due process, including the right of defense. Hence, given the nature of pretrial
detention as the most severe measure that can be imposed on a suspect, for more than
a decade the Inter-American Court has consistently ruled that “its use should be
exceptional, limited by the principle of lawfulness, the presumption of innocence, and
the need and proportionality, in keeping with what is strictly necessary in a democratic
199
society.” This principle has also been recognized in instruments that are universally
accepted by the international community, such as the Standard Minimum Rules for Noncustodial Measures, which stipulate that “[p]re-trial detention shall be used as a means
of last resort in criminal proceedings” (Rule 6.1).
142.
In practical terms, the principle of exceptionality means that pretrial
detention shall be admissible when it is the only way to ensure the goals of the
proceedings, because it can be shown that less restrictive measures would be fruitless in
securing those goals. For this reason, efforts should always be made to replace it with a
200
less severe measure when the circumstances allow.
197
I/A Court H.R., Case of López Álvarez v. Honduras. Judgment of February 1, 2006. Series C No.
141, Concurring Opinion of Judge Sergio García Ramírez, para. 18.
198
IACHR, Report No. 86/09, Case 12.553, Merits, Jorge, José, and Dante Peirano Basso, Uruguay,
August 6, 2009, para. 94; IACHR, Report No. 12/96, Case 11.245, Merits, Jorge A. Giménez, Argentina, March
1, 1996, para. 84.
199
I/A Court H.R., Case of Bayarri v. Argentina. Preliminary Objection, Merits, Reparations, and
Costs. Judgment of October 30, 2008. Series C No. 187, para. 69; I/A Court H.R., Case of Barreto Leiva v.
Venezuela. Merits, Reparations, and Costs. Judgment of November 17, 2009. Series C No. 206, para. 121; I/A
Court H.R., Case of Yvon Neptune v. Haiti. Merits, Reparations, and Costs. Judgment of May 6, 2008. Series C
No. 180, para. 107; I/A Court H.R., Case of Servellón García et al. v. Honduras. Judgment of September 21,
2006. Series C No. 152, para. 88; I/A Court H.R., Case of López Álvarez v. Honduras. Judgment of February 1,
2006. Series C No. 141, para. 67; I/A Court H.R., Case of García Asto and Ramírez Rojas v. Peru. Judgment of
November 25, 2005. Series C No. 137, para. 106; I/A Court H.R., Case of Acosta Calderón v. Ecuador. Judgment
of June 24, 2005. Series C No. 129, para. 74; I/A Court H.R., Case of Tibi v. Ecuador. Judgment of September 7,
2004. Series C No. 114, para. 106.
200
IACHR, Report No. 86/09, Case 12.553, Merits, Jorge, José, and Dante Peirano Basso, Uruguay,
August 6, 2009, para. 100.
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