70
the court authorities should be examined in light of the complexity of the case and of
the investigation. In this respect, pretrial detention cannot be justified because the
accused invokes legally established procedural resources. Those resources are provided
241
to ensure due process and have been designed for maximum use. However, the need
to keep the accused in pretrial detention can be based on his actions if he deliberately
hindered the course of justice or acted recklessly by, for example, introducing false
evidence, threatening witnesses, destroying documents, absconding from justice, or
failing to appear without good reason.
170.
The rationality of Article 7.5 of the Convention is that a person held in
pretrial detention should be released as soon as the deprivation of liberty goes beyond
the limits of the sacrifice that can reasonably be required from a person presumed
242
innocent. Once the period considered reasonable has ended, the State has lost its
opportunity to continue ensuring the goals of the proceedings through the deprivation
of liberty of the accused. In other words, pretrial detention may or may not be replaced
by other less restrictive precautionary measures, but, in any event, the accused should
be released. This is independent of whether there is still a procedural risk to the
proceedings. Even when the circumstances of the case indicate that once released, the
accused may attempt to evade justice or disrupt the investigation, the precautionary
243
measure should no longer be used to deprive him or her of liberty.
171.
The Commission also notes that, as the European Court has ruled,
although the existence of a reasonable or relevant suspicion that the accused has
committed a crime is a sine qua non requirement for the ordering of pretrial detention,
that factor cannot in and of itself justify either the imposition of the measure or its
244
extension over a protracted period. That would, in practice, equate to punishment
prior to sentencing and even a possible violation of the principle of legality.
172.
The specificity of Article 7.5 of the Convention, in contrast to Article
8.1, stems from the fact that accused individuals held in custody have the right to have
their cases resolved on a priority basis and diligently. The possibility that the State has
to use detention to ensure the goals of the proceedings is one of the decisive reasons
241
IACHR, Report No. 86/09, Case 12.553, Merits, Jorge, José, and Dante Peirano Basso, Uruguay,
August 6, 2009, paras. 129-131.
242
IACHR, Report 35/96, Case 10.832, Merits, Luis Lizardo Cabrera, Dominican Republic, April 7,
1998, para. 71.
243
IACHR, Report No. 86/09, Case 12.553, Merits, Jorge, José, and Dante Peirano Basso, Uruguay,
August 6, 2009, para. 127; IACHR, Report No. 12/96, Case 11.245, Merits, Jorge A. Giménez, Argentina, March
1, 1996, para. 134.
244
ECHR, Case of Labita v. Italy (Application No. 26772/95), Judgment of April 6, 2000 (Grand
Chamber), para. 15; ECHR, Case of Scott v. Spain (Application No. 21335/93), Judgment of December 18, 1996
(Grand Chamber), para. 78; ECHR, Case of Vander Tang v. Spain (Application No. 19382), Judgment of July 13,
1995 (Grand Chamber), para. 63; ECHR, Case of Kemmache v. France (Application No. 12325/86 14992/89),
Judgment of November 2, 1993, para. 50; ECHR, Case of Tomasi v. France (Application No. 12850/87),
Judgment of August 27, 1992, para. 89; ECHR, Case of Letellier v. France (Application 12369/86), Judgment of
June 26, 1991 (Plenary of the Court), para. 35.
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