61
144.
In line with this, the Inter-American Commission understands that the
terms of Article 7.5 of the Convention establish, as the sole legitimate grounds for
pretrial detention, the risk of the accused attempting to escape justice or hindering the
judicial investigation. Thus, the specific purpose of using this precautionary measure is
to ensure that the proceedings are conducted successfully by neutralizing the
procedural risks that could thwart that goal. Consequently, the justification of pretrial
detention for preventive reasons – such as the dangerousness of the accused, the
possibility of his committing crimes in the future, or the social repercussions of such acts
– runs contrary to this provision and to the right to the presumption of innocence and is
inconsistent with the principle of pro homine interpretation. This is true not only for the
reasons given, but because such stances are based on criteria of substantive, not
205
procedural, criminal law, which are characteristic of the punitive response.
145.
It falls to the competent judicial authorities – in particular, to
prosecutors – and not to the accused or his defense counsel, to establish the existence
of the elements necessary to determine a flight risk or the risk of the investigation being
206
hindered. In addition, pursuant to the right to the presumption of innocence and the
exceptionality criterion, even when a possible legitimate justification exists, the use of
pretrial detention must be considered and carried out in accordance with the criteria of
necessity, proportionality, and reasonableness.
146.
Moreover, as this report makes clear, the legitimacy of the grounds for
admitting pretrial detention derives from their compatibility with the American
Convention and not from the mere fact that they are included in statutes: it is possible
for legal provisions to establish criteria or grounds for its use that run contrary to the
regime created by the Convention. Thus, the Inter-American Court has stated that “the
legislation that establishes the grounds for a restriction to personal liberty must be
issued pursuant to the principles that govern the Convention, and be conducive to the
207
effective observation of the guarantees established thereto.”
2.
Invalid or inadequate grounds
147.
In line with the foregoing, the bodies of the Inter-American system
have addressed several grounds for the imposition of pretrial detention that, even when
provided for by statute, are incompatible with the regime established by the American
Convention.
205
IACHR, Report No. 86/09, Case 12.553, Merits, Jorge, José, and Dante Peirano Basso, Uruguay,
August 6, 2009, paras. 81 and 84; IACHR, Report No. 77/02, Case 11.506, Merits, Waldermar Gerónimo
Pinheiro and José Victor Dos Santos, Paraguay, December 27, 2000, para. 66.
206
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 12.554, Francisco Usón Ramírez,
July 25, 2008, para. 172.
207
I/A Court H.R., Case of Servellón García et al. v. Honduras. Judgment of September 21, 2006.
Series C No. 152, para. 89.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents