45
be based on respect for the right to the presumption of innocence, and it must take into
account the exceptional nature of this measure and its legitimate purposes, as
established in international human rights law and, in many cases, by States’ own
constitutions. The excessive use of this measure runs contrary to the very essence of
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democratic rule of law, and the design and implementation of criminal justice policies
aimed at legalizing the use of pretrial detention as a form of expedite justice, on the
margins of due criminal procedure, is also openly in contravention of the regime
established by the American Convention and Declaration and of the principles
underlying the Charter of the Organization of American States. In addition, it is
politically irresponsible for States to elude their duty of adopting comprehensive public
policies for citizen security, adopting instead populist short-term measures that, in
addition, are fiscally unsustainable.
2.
Threats to judicial independence
107.
Another relevant factor that prevents pretrial detention from being
used on an exceptional basis and in accordance with its precautionary nature is the
interference with the judicial authorities directly responsible for deciding its imposition.
This situation is aggravated by the significant structural shortcomings and weaknesses in
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the judicial systems of many of the region’s countries. In practice, this pressure and
interference come essentially from three sectors: (a) senior public officials of other
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branches or agencies of the State, who, facing social demands or for other reasons,
emphasize punishment in their pronouncements and, on occasions, accompany them by
bringing specific forms of pressure to bear on justice operators, (b) high-ranking
authorities within the judicial branch itself, who often echo the messages put out by the
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political leadership, and (c) the media and public opinion.
152
IACHR, Press Release 23/13 – IACHR Concludes its 147th Period of Sessions, Annex, available at:
http://www.oas.org/en/iachr/media_center/PReleases/2013/023A.asp.
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Among the obstacles faced by justice operators in the region, the IACHR has noted, regarding
institutional shortcomings in ensuring correct judicial functioning, that “the fragility of the judicial branch in
some States is manifest both in executive branch interferences in the judicial branch as well as the indefinite
provisional status of numerous judges and the legal possibility that their appointment will be subject to later
confirmation or reelection to the position.” IACHR, Second Report on the Situation of Human Rights Defenders
in the Americas, OEA/Ser.L/V/II Doc. 66, adopted December 31, 2011 (hereinafter “Second Report on the
Situation of Human Rights Defenders in the Americas”), para. 391.
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Thus, as a part of its monitoring of the situation of justice operators in the region, the IACHR has
identified “clear interferences by executive branch officials in the judicial branch through control of the
administration of justice.” IACHR, Second Report on the Situation of Human Rights Defenders in the Americas, ,
para. 392.
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Regarding this point, the Rapporteur on people deprived of liberty has stated “the causes (for
such pressure are numerous) … there are cultural, sociological and political causes. There is an undertone of
absolutism in media pressure and in the excessive use of pretrial detention. Even though the states of the
Americas are committed to the Democratic Charter and to the democratic regime, they still need to make
progress in strengthening democracy and the rule of law, and one of the main factors holding them back is the
excessive use of pretrial detention […]. Behind the pressure, whether it comes from authorities or from the
media, […] there are political interests from the highest level – which encourage the media to direct judicial
decisions in one direction or another – or interests of another kind. […] The judges are afraid of the media.
When a judge has to adopt a decision about a person’s liberty and the case has come to the media’s attention,
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