73
the case. In turn, judges should clearly indicate the maximum duration of detention in
255
their resolutions ordering pretrial detention.
Decision process
178.
Regarding the juncture in the proceedings when the admissibility of
pretrial detention is assessed, it must be noted that in accordance with the right to the
presumption of innocence, the court must examine all the facts and arguments in favor
of or against the existence of procedural risks that could justify the imposition or
256
continuation of this measure, as applicable. Judges should issue decisions ordering
257
pretrial detention after a substantive, not merely formal, analysis of each case. It is
for this reason that it is important that the stakeholders involved in this decision-making
process have sufficient evidence about the procedural risks and legal assumptions that
are to be assessed. To this end, systems with information and for verifying that
information prior to the trial must be established. In this regard, the mechanisms known
as pretrial evaluation and supervision services and offices for alternative and
replacement measures have proven to be a good practice.
179.
The accused person shall have the possibility to appear at the
proceedings where the application of pretrial detention will be decided. Under certain
conditions, this requirement may be satisfied through the use of appropriate video
258
links, provided that the right of defense is guaranteed. All accused persons have the
right to be heard by the judge and to personally argue against their detention; pretrial
259
detention should not be decided exclusively on the reading of the case file. Moreover,
the decision adopting this measure “should be taken by the judge himself after hearing
260
the detainee in person, not by investigating judges or clerks of the court.”
180.
In addition to upholding the principle of immediacy, a prior hearing on
the admissibility of pretrial detention allows, inter alia, the accused and the defense
team to be apprised ahead of time of the arguments used to infer flight risk or the risk
of interference with the investigation. It also provides a better forum, for both the
defense and the prosecution, to present their arguments in favor of or against the
255
UN, Working Group on Arbitrary Detention, Annual Report presented to the Human Rights
Council, A/HRC/7/4, published January 10, 2008, para. 72.
256
IACHR, Report No. 86/09, Case 12.553, Merits, Jorge, José, and Dante Peirano Basso, Uruguay,
August 6, 2009, paras. 86 and 87.
257
UN, Working Group on Arbitrary Detention,
E/CN.4/2004/3/Add.3, published December 23, 2003, para. 65.
Report on Mission to Argentina,
258
Council of Europe / Committee of Ministers, Recommendation Rec(2006)13 on the use of
remand in custody, the conditions in which it takes place, and the provision of safeguards against abuse,
adopted September 27, 2006, para. 28.
259
UN, Working Group on Arbitrary Detention, Report on Mission to Ecuador, A/HRC/4/40/Add.2,
published October 26, 2006, paras. 70 and 71.
260
UN, Working Group on Arbitrary Detention,
E/CN.4/2004/3/Add.3, published December 23, 2003, para. 65.
Report on Mission to Argentina,
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