8
21.
For more than two decades, the bodies of the Inter-American system
have interpreted and applied the principles discussed above, establishing the following
standards:
(i) pretrial detention should be the exception, not the rule; (ii) the
legitimate and permissible purposes of pretrial detention should be of
a procedural nature, such as to avoid risk of flight or hampering of the
course of proceedings; (iii) consequently, the existence of probable
cause of criminal acts is insufficient grounds to order the pretrial
detention of a person; (iv) even when there are procedural purposes
for it, pretrial detention must be absolutely necessary and
proportional, meaning that there should not be any other less
restrictive means available to achieve the procedural purpose that is
being pursued and that personal liberty should not be
disproportionately affected; (v) all of the aforementioned aspects
must be grounded in particular facts and not be supported by
presumption; (vi) pretrial detention must be issued for the length of
time strictly necessary to fulfill the procedural purpose and, therefore,
requires periodic review of the elements that supported its
application; (vii) holding a defendant in pretrial detention for an
unreasonable length of time is tantamount to an anticipated prison
sentence; and, (viii) in the case of children and adolescents, the
criteria for ordering pretrial detention should be applied with greater
rigor, with preference given to the use of other precautionary
measures or prosecuting while the accused is at liberty, and, when it is
applicable, it must be ordered for the shortest time possible.
22.
In the Principles and Best Practices on the Protection of Persons
Deprived of Liberty, the Commission reaffirms these fundamental standards concretely
as follows:
Preventive deprivation of liberty is a precautionary measure, not a
punitive one, which shall additionally comply with the principles of
legality, the presumption of innocence, need, and proportionality, to
the extent strictly necessary in a democratic society. It shall only be
applied within the strictly necessary limits to ensure that the person
will not impede the efficient development of the investigations nor
will evade justice, provided that the competent authority examines
the facts and demonstrates that the aforesaid requirements have
been met in the concrete case.
(Principle III.2).
23.
As for the contents of this report, Chapter II offers an analysis of
pretrial detention in the region, paying particular attention to the reasons why this
measure is not used solely on an exceptional basis. It presents a summary of the main
determinations issued by the Inter-American Commission and monitoring mechanisms
of the universal system, it cites official statistics provided by States on the use of pretrial
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