IV.
USE OF ALTERNATIVE MEASURES OTHER THAN PRETRIAL DETENTION
221.
The Inter-American Commission has said that respecting and
upholding the right to personal liberty requires States to resort to depriving people of
liberty only insofar as it is necessary to meet a pressing social need, and in a manner
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proportionate to that need. Indeed, as stated by the United Nations Rapporteur on
Torture, “[a]ny deprivation of personal liberty, even if justified for certain reasons, such
as the investigation of crime and the punishment of convicts, carries the risk of directly
interfering with human dignity, as it severely restricts individual autonomy and makes
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detainees powerless.”
222.
The Principles and Good Practices stipulate that States shall, in
consideration of the content and scope of the right to personal liberty, “establish by law
a series of alternative or substitute measures for deprivation of liberty, duly taking into
account the international human rights standards on the topic” (Principle III.4). These
alternative measures to incarceration are to apply to the three basic stages of criminal
proceedings: the pretrial phase, the trial itself, and the execution of the sentence.
223.
The exceptional nature of pretrial detention implies that States shall
use other precautionary measures that do not entail depriving the accused of liberty for
the duration of the criminal proceedings. In addition, both the Inter-American
Commission and other international human rights bodies have consistently
recommended that the region’s States make more frequent use of precautionary
measures other than incarceration as part of a strategy to reduce the number of people
in pretrial detention and, consequently, their levels of prison overcrowding.
224.
The Commission therefore proposes, inter alia, the following
catalogue of alternative measures: (a) the accused’s commitment to submit to the
proceedings and not to hinder the investigation; (b) the accused’s submission to the
care or oversight of a given person or institution, in accordance with whatever
conditions the court may set; (c) the obligation of periodically reporting to the judge or
such other authority designated by the judge; (d) prohibition on leaving a given
territorial jurisdiction without prior authorization; (e) surrendering of travel documents;
(f) prohibition on attending specific meetings or visiting certain places, or on
approaching or communicating with given persons, provided that the right of defense is
not affected; (g) immediate departure from the domicile in cases of domestic violence in
which the victim lives with the accused; (h) the provision, by the accused or a third
party, of a suitable amount of bail; (i) monitoring of the accused by means of an
electronic device that tracks or identifies his physical location; and (j) house arrest, in
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IACHR, Country Report on Colombia: Truth, Justice, and Reparation: Fourth Report on the
Situation of Human Rights in Colombia, 2013, Ch. VI(G); Working Group on Arbitrary Detention, Annual Report
to the Human Rights Council, E/CN.4/2006/7, adopted December 12, 2005, paras. 61-63.
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UN, Special Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment, A/64/215, adopted August 3, 2009, para. 47.
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