106 | Towards the Closure of Guantanamo
final determination. The IACHR notes that, in making the determination, the Board
assessed, among other factors, the detainee’s potential threat upon transfer, his
plans for the future, his family’s support, skills and employment prospects, behavior
in detention, the efficacy of rehabilitation programs in the country of destination,
and the commitment to refrain from supporting extremist groups.
260. According to inter-American standards, persons in pretrial detention have the right
to a periodic judicial review of the grounds for their detention in accordance with
due process guarantees. In this regard, the IACHR has stated that:
the right to the presumption of innocence and the exceptional nature of
pretrial detention give rise to the State’s duty to periodically review that the
circumstances on which its initial imposition was based still exist. This process
of subsequent appraisal is characterized by the fact that, in the absence of
evidence to the contrary, procedural risks tend to decrease with the passage of
time. As a result, the State’s explanations of the need to keep a person in
pretrial detention should be more convincing and better grounded as time
progresses. 313
261. The Inter-American Commission has also indicated that judicial authorities are
required to effectively guarantee the possibility of submitting arguments and that
the reasoning offered by the judge must clearly show that the body of evidence has
been rigorously examined. 314
262. The IACHR notes that the PRB review process is not a judicial proceeding but a
discretionary administrative process. Although it is preferable that internment
review in the context of armed conflicts be carried out by a judicial body, States can
choose to have an administrative board as the review body in that context.
According to the ICRC, “the important issue is that persons are not arbitrarily
interned and that their internment is reviewed by a body that can effectively do so
and order release as soon as interment is no longer necessary.” Therefore,
regardless of the nature of the body, the review must be performed by a body that is
independent and impartial. 315
263. Assuming that context of armed conflict, in order to be independent and impartial, a
review body should comply, among others, with the following requirements:
transparency of the procedures and their implementation; direct decision making
power (i.e. power to order release without that decision being subject to further
confirmation by operational command); access to all available information;
members of the review body should be appointed from outside the chain of
313
315
IACHR, Report on the Use of Pretrial Detention in the Americas, OEA/Ser.L/V/II. Doc. 46/13, December 30,
2013, para. 202.
314
IACHR, Report on the Use of Pretrial Detention in the Americas, OEA/Ser.L/V/II. Doc. 46/13, December 30,
2013, para. 205.
International Review of the Red Cross, Reports and Documents, Expert meeting on procedural safeguards for
security detention in non-international armed conflicts, Chatham House and International Committee of the
Red Cross, London, 22-23 September 2008, Volume 91 Number 876, December 2009, pp. 878-879.
Organization of American States | OAS
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