49
Local authorities make similar kinds of statements. For example, the Mayor of Guayaquil
has been reported as requesting the dismissal of several judges in that city for failing to
163
order pretrial detention.
112.
As a further example of this same phenomenon, Chile’s Diego Portales
University noted in its most recent Annual Report that:
In late 2011, the Minister of Justice […] stated that the work of judges
who were “excessively focused on guarantees” (referring to decisions
on precautionary measures made by guarantee judges in hearings held
in the aftermath of student demonstrations) would not be endorsed
and that the executive branch had the power to take such rulings into
account in deciding on promotions within the judiciary. Later, the
judicial branch published statistical data to refute the ministry’s
claims, indicating that 89% of the prosecution service’s requests for
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pretrial detention had been admitted by the guarantee judges.
113.
As for the pressure from the judiciary itself, on occasions, judicial
disciplinary oversight agencies are used to punish those judges deemed to have been
insufficiently strict in their decisions regarding the liberty of persons facing criminal
charges. Although few judges are sanctioned – through either disciplinary or criminal
proceedings or impeachments – the existence of pending charges against judges or
prosecutors for having failed to order pretrial detention has a chilling effect among
judicial officers. For those directly affected, it constitutes a major burden, since they
must prepare their own defense, generally from a state of solitude and isolation within
the institution. The counterbalance to this is that it is highly unusual for a judge to be
punished for having issued a pretrial detention order of questionable legal admissibility
or need. In addition to this, senior public officials within judicial agencies acting outside
their functions have occasionally been seen to issue systematic opinions in the media
regarding specific matters related to the administration of justice. This sets clear
guidelines and criteria for lower ranking judges to follow. These elements help create a
climate where prosecutors and judges may find that what best serves their own
163
DPLF, Insufficient Judicial Independence, Distorted Pretrial Detention: The Cases of Argentina,
Colombia, Ecuador and Peru, 2013, pp. 126, 128, and 131. These Saturday addresses are weekly presentations
to the public that President Correa makes to report on different activities.
164
Diego Portales University, Law School Human Rights Center, Annual Report on Human Rights in
Chile (Informe Anual sobre Derechos Humanos en Chile) 2012, p. 212. Declarations of this kind, which belong
to the trend known as “criminal populism,” are a direct response to authoritarian urges within the societies at
which they are directed. In Chile, according to the First Human Rights National Survey, conducted by the INDH
in 2001, “58.6% of respondents said they completely agreed with all criminals being incarcerated, irrespective
of whatever crime they may have committed,” and “47% of the population said they were in complete
disagreement with the notion that only the most serious crimes should be punished by custodial sentences.”
National Human Rights Institute (INDH), Human Rights Situation in Chile – Annual Report (Situación de los
Derechos Humanos en Chile – Informe Anual) 2011 , p. 21.
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