76
and not to the accused or the defense team, to establish the elements to justify the
269
admissibility of pretrial detention.
187.
When it is shown that a detention was arbitrary – for example,
because it was ungrounded – it is pointless to examine any other circumstances, such as
270
the duration for which it was ordered, since “arbitrary deprivation of liberty can
271
never be a necessary or proportionate measure.”
188.
Regarding the quality of the evidence required to place a person in
pretrial detention, the Inter-American Court has ruled that “there must be sufficient
evidence to allow reasonable supposition that the person committed to trial has taken
part in the criminal offense under investigation.” And, based on the criterion set by the
European Court regarding the existence of “reasonable suspicion” grounded on facts or
information “which would satisfy an objective observer that the person concerned may
have committed the offence,” the Inter-American Court has ruled that such suspicions
“must be based on specific facts, expressed in words; that is, not on mere conjectures or
272
abstract intuitions.”
189.
Regarding the allowable margins in considering suspicions, the
Rapporteur on Torture has stressed that “the exigencies of dealing with terrorist
criminal activities cannot justify interpreting the notion of the ‘reasonableness’ of the
suspicion on which an arrest and then a detention may be based, to the point of
273
impairing its very meaning.”
190.
Similarly, in the case of López Álvarez v. Honduras, the Court ruled that
“[t]he judicial authority did not take into account new evidentiary elements that could
justify the detention, instead it only considered the same elements that supported the
269
IACHR, Application from the Inter-American Commission on Human Rights to the Inter-American
Court of Human Rights against the Bolivarian Republic of Venezuela in Case 12.554, Francisco Usón Ramírez,
July 25, 2008, para. 172. Similarly, ECHR, Case of Aleksanyan v. Russia (Application No. 46468/08), Judgment of
December 22, 2008 (First Section of the Court), para. 179; ECHR, Case of Ilijkov v. Bulgaria (Application No.
33977/96), Judgment of July 26, 2001 (Fourth Section of the Court), paras. 84 to 85.
270
I/A Court H.R., Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador. Preliminary Objections,
Merits, Reparations, and Costs. Judgment of November 21, 2007. Series C No. 170, para. 142; I/A Court H.R.,
Case of Acosta Calderón v. Ecuador. Judgment of June 24, 2005. Series C No. 129, para. 82; I/A Court H.R., Case
of Tibi v. Ecuador. Judgment of September 7, 2004. Series C No. 114, para. 120.
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UN, Working Group on Arbitrary Detention, Annual Report presented to the Human Rights
Council, A/HRC/22/44, published December 24, 2012, para. 48.
272
I/A Court H.R., Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador. Preliminary Objections,
Merits, Reparations, and Costs. Judgment of November 21, 2007. Series C No. 170, paras. 101-103. In addition
to the case of Fox, Campbell and Hartley, referred to by the Inter-American Court in this footnote’s citation,
this definition of reasonable suspicion was also followed by the European Court in, for example, ECHR, Case of
Grinenko v. Ukraine (Application No. 33627/06), Judgment of November 15, 2012 (Fifth Section of the Court),
para. 82, and ECHR, Case of K.-F. v. Germany (Application No. 25629/94), Judgment of November 27, 1997,
para. 57.
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UN, Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, Interim Report, A/57/173, published August 2, 2002, para. 21.
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