71
that justify that priority treatment. Articles 7.5 and 8.1 of the Convention differ as to
their concepts of ‘reasonable time,’ in that Article 7 allows for an individual to be
released without prejudice to the continuation of proceedings. The time established for
245
detention is necessarily much shorter than the period allotted for the entire trial. For
that reason, any time that a custodial sentence is imposed that is shorter than the time
a person was held in pretrial detention, that detention must be considered
246
unreasonable. A subsequent release or conviction does not exclude the possibility of
247
a violation of the reasonable length of time contemplated in the Convention.
Maximum duration allowed by law
173.
The reasonableness of the duration of pretrial detention is directly
related to the establishment of maximum legal durations for this measure. On this
point, the bodies of the Inter-American system have established that: (a) when the law
sets a maximum duration for the detention of a suspect, it is clear that such limit may
248
not be exceeded; (b) when pretrial detention is prolonged beyond the maximum
allowed by domestic law, it must be considered prima facie illegal (under the terms of
Art. 7.2 of the Convention), regardless of the nature of the offense in question or the
complexity of the case; in these circumstances, the State has the burden of proof in
249
justifying the extended period; and (c) establishing maximum durations in law does
not guarantee that they are in line with the Convention, nor does it provide the State
with broad authority to deprive a suspect of his liberty for that entire period; in each
case, the continued existence of the grounds initially used to justify the detention must
250
be analyzed, without prejudice to what is provided by law.
174.
In addition, judicial trends towards denying suspects release as a
result of the expiration of the sentences underlying their charges that are based on
245
IACHR, Report No. 86/09, Case 12.553, Merits, Jorge, José, and Dante Peirano Basso, Uruguay,
August 6, 2009, para. 127; IACHR, Report No. 12/96, Case 11.245, Merits, Jorge A. Giménez, Argentina, March
1, 1996, para. 110.
246
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 11.663, Oscar Barreto Leiva,
October 31, 2008, para. 136. Similarly, ECHR, Case of Liuiza v. Lithuania (Application No. 13472/06), Judgment
of July 31, 2012 (Second Section of the Court), Dissenting Opinion of Judges Pinto de Albuquerque and Keller,
para. 24.
247
para. 55.
IACHR, Report No. 12/96, Case 11.245, Merits, Jorge A. Giménez, Argentina, March 1, 1996,
248
I/A Court H.R., Case of Bayarri v. Argentina. Preliminary Objection, Merits, Reparations, and
Costs. Judgment of October 30, 2008. Series C No. 187, para. 74.
249
IACHR, Report No. 135/11, Case 12.167, Merits, Hugo Oscar Argüelles and others, Argentina,
October 31, 2011, para. 124.
250
IACHR, Report No. 84/10, Case 12.703, Merits, Raúl José Díaz Peña, Venezuela, July 13, 2010,
para. 159; IACHR, Report No. 86/09, Case 12.553, Merits, Jorge, José, and Dante Peirano Basso, Uruguay,
August 6, 2009, para. 139; 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 11.663, Oscar
Barreto Leiva, October 31, 2008, para. 136.
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