58
139.
In connection with the right to the presumption of innocence, the
European Court has established, among its standards, that: (a) the right is impaired if,
prior to being found guilty in a court of law, any judicial resolution involving the accused
193
reflects an indication of his guilt; (b) the presumption of innocence may be infringed
not only by a judge or court but also by other public authorities – e.g., the police or
senior public officials of the government – when they present before the media people
194
(c) the
who are still under investigation or who have not yet been convicted;
reasonableness of the time an accused person is held in pretrial detention must be
assessed in conjunction with the fact that he is being detained. Until judgment is issued,
his innocence must be assumed. The purpose of Art. 5(3) of the European Convention
(the equivalent of Art. 7.5 of the American Convention) is essentially to require that the
195
accused be released once the length of his detention is no longer reasonable; and the
domestic courts must examine all the facts arguing for or against the existence of
grounds justifying pretrial detention, with due regard to the principle of the
presumption of innocence, and set them out in their decisions on applications for
release filed by the accused. Arguments for and against release must not be general and
196
abstract.
140.
The criterion of the exceptional use of pretrial detention is directly
related to the right to the presumption of innocence. The reason for the exceptional
nature of this precautionary measure is, precisely, the fact that it is the most severe
measure than can be imposed on a suspect, in that it necessarily entails incarceration,
with all the related implications for him and his family. The following opinion, expressed
by Judge Sergio García Ramírez, is relevant to this point:
Preventive detention [is] of the most severe of the precautionary
measures still used in criminal trials, since it implies a profound
restriction to freedom, with very important consequences. We
normally state that the preventive detention is not a real sanction; it is
not a punitive measure, but instead simply a precautionary and
ephemeral one. Technically, this is true. However, considering this
phenomena in the light of reality –even when it comes up against the
technicality – preventive detention does not differ at all, except in its
193
ECHR, Case of Allenet de Ribemont v. France (Application No. 15175/89), Judgment of February
10, 1995 (Second Section of the Court), para. 33; ECHR, Case of Barberá, Messegué, and Jabardo v. Spain
(Application No. 10590/83), Judgment of December 6, 1988 (Grand Chamber), para. 91.
194
ECHR, Case of Allenet de Ribemont v. France (Application No. 15175/89), Judgment of February
10, 1995 (Second Section of the Court), paras. 36 and 37. See also: HRC, Communication No. 770/1997,
Dimitry L. Gridin v. Russian Federation, decision July 18, 2000, CCPR/C/69/D/770/1997, para. 8.3.
195
ECHR, Case of X.Y. v. Hungary (Application No. 43888/08), Judgment of March 19, 2013 (Second
Section of the Court), para. 40; ECHR, Case of McKay v. the United Kingdom (Application No. 543/03),
Judgment of October 3, 2006 (Grand Chamber), para. 41; ECHR, Case of Neumeister v. Austria (Application No.
1936/63), Judgment of June 27, 1968 (Grand Chamber), para. 4.
196
ECHR, Case of Piruzyan v. Armenia (Application No. 33376/07), Judgment of June 26, 2012 (Third
Section of the Court), para. 92; ECHR, Case of Letellier v. France (Application 12369/86), Judgment of June 26,
1991 (Grand Chamber), para. 35.
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