[T]he principle of the rule of law that establishes the need for criminal
prosecution of all crimes by the State, cannot justify an unlimited length of time
to resolve the criminal matter. Otherwise, there would be an implicit assumption
that the State always prosecutes guilty people and that thus the length of time
taken to convict the accused is irrelevant. By international standards, all persons
accused of a criminal offense must be considered innocent until proven guilty.
[…]
[T]he risk of inverting the presumption of innocence increases with an
unreasonably prolonged pre-trial incarceration. The guarantee of presumption of
innocence becomes increasingly empty and ultimately a mockery when pre-trial
imprisonment is prolonged unreasonably, since presumption notwithstanding, the
severe penalty of deprivation of liberty which is legally reserved for those who
have been convicted, is being visited upon someone who is, until and if
convicted by the courts, innocent.
The right to defense also guaranteed in the Convention under article 8(2)(f) is
threatened by lengthy incarceration without conviction because, in some cases, it
increases the defendant's difficulty in mounting a defense. With the passing of
time, the limits of acceptable risks that are calculated into the defendant's ability
to present evidence and counterarguments are enhanced. The possibility to
convene witnesses diminishes as well as the strength of any counterarguments.
--Case 11.245, Report Nº 12/96, Giménez case, Annual Report of the IACHR
1995 (paras. 78-81).
D.4 Incommunicado Detention
United Nations
The Human Rights Committee has expressed concern over the risks inherent in the
practice of incommunicado pre-trial detention, including the possibility of infliction of
torture or ill-treatment:
The Committee expresses concern at the maintenance on a continuous basis of
special legislation under which persons suspected of belonging to or
collaborating with armed groups may be detained incommunicado for up to five
days … [and] emphasizes that those provisions are not in conformity with
articles 9 and 14 of the Covenant. It urges the State party to abandon the use of
incommunicado detention.
--CCPR/C/79/Add.61, paras. 12, 18 (1996).
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