89
the accused’s own home or that of another person, either without oversight or with
such oversight as the judge may order.
225.
The Commission considers that one fundamental standard is that so
long as the flight risk or the danger of hindrance to the investigation can reasonably be
avoided by subjecting the accused to a less onerous measure than the one requested by
the prosecutor, the court should invariably prefer the former, imposing it either
individually or in conjunction with others.
226.
According to the European Court, under Article 5.3 of the European
Convention on Human Rights (similar to Article 7.5 of the American Convention), “the
authorities, when deciding whether a person should be released or detained, are
321
obliged to consider alternative measures to ensure his appearance at trial.” Similarly,
in the case of Jablonski v. Poland, the ECHR found that Article 5.3 of the European
Convention had been violated because the competent domestic courts:
[D]id not take into account any other guarantees that [the victim]
would appear for trial. They did not mention why those alternative
measures would not have warranted his presence before the court or
why, had the applicant been released, his trial would not have
followed its proper course. Nor did they point to any factor indicating
that there was a risk of his absconding, going into hiding, or otherwise
322
evading justice.
227.
In addition, as already noted, once the reasonable period for the
duration of pretrial detention has expired, the State loses the opportunity to continue
323
ensuring the purpose of the proceedings by denying the accused his liberty. In other
words, the State can limit the accused’s freedom with other measures that are less
324
onerous than incarceration but that still ensure his appearance at trial. In this regard,
the Commission has established that:
[P]reventive detention may or may not be replaced by other less
restrictive precautionary measures, but, in any case, the accused
321
ECHR, Case of Piruzyan v. Armenia (Application 33376/07), Third Section of the Court, Judgment
of June 26, 2012, para. 103. See also, ECHR, Case of Kowrygo v. Poland (Application No. 6200/07, Fourth
Section of the Court, Judgment of February 26, 2013, para. 70; ECHR, Case of Richet v. France (Application No.
3947/97), Fourth Section of the Court, Judgment of November 18, 2010, para. 64; and, ECHR, Case of
Nevmerzhitsky v. Ukraine (Application No. 54825/00), Second Section of the Court, Judgment of April 5, 2005,
para. 137.
322
ECHR, Case of Jablonski v. Poland (Application 33492/96), Fourth Section of the Court, Judgment
of December 21, 2000, para. 84.
323
I/A Court H.R., Case of Barreto Leiva v. Venezuela. Merits, Reparations, and Costs. Judgment of
November 17, 2009. Series C No. 206, para. 120.
324
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. 70.
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