81
201.
Furthermore, the Commission notes that in the context of Article
46.1.a of the Convention, claims related to possible human rights violations arising from
the imposition of pretrial detention have their own dynamics for the exhaustion of
domestic remedies that are independent from those that apply to the criminal
proceeding as a whole. Thus, in the case of Jorge Alberto Giménez v. Argentina, the
Commission considered that “in the context of pre-trial detention, the presentation of
the request for conditional release followed by the denial thereof suffices to
291
The request for release will depend,
substantiate the exhaustion of remedies.”
according to the specific case, on the relevant remedy available in the State in question.
7.
Periodic review, due diligence and priority of processing
Periodic review
202.
As has already been established, it first falls to the domestic judicial
authorities to ensure that the duration of the pretrial detention does not exceed a
292
reasonable time. Thus, 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.
203.
The Inter-American Court has established that “national authorities
are responsible for assessing the pertinence of maintaining the precautionary measures
they issue pursuant to their own body of laws,” including, in particular, pretrial
detention. For this reason, the judge does not have to wait for an acquittal or the
expiration of the maximum period allowed by law to order the termination of the
measure. Whenever it appears that the pretrial detention no longer meets the initial
conditions on which it was based, “the release of the person detained should be
293
ordered, without detriment to the continuation of the respective proceedings.”
204.
In its judgment in the case of Yvon Neptune v. Haiti, in which it was
established that the victim’s protracted and unjustified detention was not subject to
291
para. 57.
IACHR, Report No. 12/96, Case 11.245, Merits, Jorge A. Giménez, Argentina, March 1, 1996,
292
ECHR, Case of McKay v. the United Kingdom (Application No. 543/03), Judgment of October 3,
2006 (Plenary of the Court), para. 45; ECHR, Case of Sardinas Albo v. Italy (Application No. 56271/00),
Judgment of February 17, 2005 (First Section of the Court), para. 85; ECHR, Case of Labita v. Italy (Application
No. 26772/95), Judgment of April 6, 2000 (Grand Chamber), para. 152; ECHR, Case of Letellier v. France
(Application 12369/86), Judgment of June 26, 1991 (Plenary of the Court), para. 35.
293
I/A Court H.R., Case of Bayarri v. Argentina. Preliminary Objection, Merits, Reparations, and
Costs. Judgment of October 30, 2008. Series C No. 187, paras. 74 and 76; I/A Court H.R., Case of Yvon Neptune
v. Haiti, Merits. Reparations, and Costs. Judgment of May 6, 2008. Series C No. 180, para. 108.
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