66
only relevant when deciding whether to order pretrial detention, but also when
assessing the usefulness of extending its duration.
Proportionality
160.
In ordering pretrial detention, particular attention must be paid to the
criterion of proportionality. This means that there is a need to examine whether the goal
sought with this measure, which affects the individual’s right to freedom, truly offsets
the sacrifices it represents for the person and for society.
161.
This proportionality criterion can be applied in two dimensions. The
first is related to the inherent difference that should exist between the nature of a
denial of freedom as a precautionary measure applied to an individual whose juridical
status is still that of an innocent person (these practical implications are explored in
Chapter V of this report) and a denial of liberty as a result of a conviction. The second
dimension relates to the interplay between pretrial detention as the severest
precautionary measure available in criminal law and the goals it is used to pursue in a
specific case. The Inter-American Court has addressed these two aspects of proportion
in the following very specific terms:
[A] person that is presumed innocent cannot be treated equal to or
worse than a convicted person. The State must avoid that the measure
of procedural coercion be equal to or more harmful for the defendant
than the punishment in case of conviction. This means that it should
not be appropriate to authorize the preventive detention in cases
where it is not possible to impose a prison term, and that such prison
term must cease when the detention period has exceeded a
reasonable time. The principle of proportionality implies, also, a
rational relationship between the precautionary measure and the
purpose sought, so that the sacrifice inherent in the restriction of the
right to liberty is not exaggerated or excessive compared to the
advantages obtained from this restriction and the achievement of the
223
purpose sought.
162.
In connection with the second of these aspects, the Court has also
determined that ordering pretrial detention “requires a judgment of proportionality
between said measure, the evidence to issue it, and the facts under investigation. If the
224
proportionality does not exist, the measure will be arbitrary.” When courts order
pretrial detention without considering the use of other less onerous precautionary
223
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. 122.
224
141, para. 67.
I/A Court H.R., Case of López Álvarez v. Honduras. Judgment of February 1, 2006. Series C No.
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