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those precautionary measures other than pretrial detention, which can be seen in the
numbers and percentages of cases where defendants awaiting trial in liberty respected
the conditions imposed by the judge; (d) the duration of pretrial detention, including the
number of people who are held on pretrial detention for longer than allowed (maximum
period permissible under law, maximum duration for investigations, duration preset by
the judge); and, (e) the numbers and percentages of people held in custody during their
trials who are ultimately not sentenced to prison (e.g., dismissed cases, acquitted
412
This last indicator would be useful in
defendants, or suspended sentences).
identifying patterns of irresponsible requests for pretrial detention.
311.
To consider the foregoing aspects, it is important to conduct an
analysis of the legal provisions that establish the parameters under which pretrial
detention is ordered. In addition, these factors should be analyzed with respect to
different types of crimes and the profile of the persons held in pretrial detention.
Another essential element that should be assessed is the quality of the resolutions
whereby pretrial detention is requested (by prosecutors) and imposed (by judges), and
whether they are duly grounded. Similarly, it would be useful to examine the quality of
the interventions of public defenders at this stage in the proceedings.
312.
Generally, the most common indicator used by States (in some cases,
the only one) is the percentage of people in pretrial detention compared to the total
number of people deprived of their freedom (or sometimes, only those held by the
penitentiary system) at a given moment in time. However, while useful for certain
purposes, that indicator alone is not enough for adequately assessing whether pretrial
detention is used in accordance with the applicable legal, constitutional, and
international provisions. There are also other factors subsequent to the imposition of
this measure relating, for example, to procedural considerations in the processing of
criminal proceedings that have a direct impact on the handing down of first-instance
judgments and that clearly contribute to the total number of persons held in pretrial
custody remaining stable. As a result, the simple fact that the total percentage of people
in pretrial detention at a given moment is not perceived as high does not necessarily
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mean that the use of the measure is actually exceptional.
313.
It is also important to prepare statistical studies on the costs of pretrial
detention, which, along with all the information referred to in this chapter, should be
freely available to the public. Attention should be paid to the costs of keeping people in
custody while awaiting trial, to the payment of damages for the harm caused by the
illegal or arbitrary use of this measure, and the cost in human terms arising from
personal, family, and other harm, regardless of whether the detention was imposed in
accordance with the law.
412
For a more detailed explanation of these topics, see, for example: IACHR Regional Meeting of
Experts on Pretrial Detention, May 9 and 10, 2013, Presentation by Ina Zoon, audio of panel 2 of the meeting,
available in Spanish at: http://www.oas.org/es/cidh/ppl/actividades/prisionpreventiva.asp.
413
IACHR, Truth, Justice and Reparation: Fourth Report on the Situation of Human Rights in
Colombia, 2013, Ch. VI(G).
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