82
proper judicial review, the Inter-American Court applied those standards in the
following terms:
Mr. Neptune was released two years and one month after his arrest
on “humanitarian grounds” and not based on a judicial decision that
assessed whether the reasons and purposes that justified depriving
him of his liberty subsisted, whether the preventive measure
continued to be absolutely necessary to achieve these purposes, and
whether it was proportionate. In other words, there is no evidence
that the decision to release him was a motivated and prompt response
of the authorities that sought to provide a real safeguard for the rights
of the accused; in particular, a substantive guarantee of his right to
294
defense.
205.
Regarding the specific grounds for judicial rulings reviewing the
continuation of pretrial detention, the Court has indicated that the judicial authorities
must guarantee “not only the formal possibility of submitting arguments, but the form
in which the right to defense was effectively manifested as a real safeguard of the rights
of the accused. This implies a prompt and justified response by the authorities to the
arguments in answer to the charges.” Hence, “the reasoning offered by the judge must
show clearly that the arguments of the parties have been duly taken into account and
295
the body of evidence examined rigorously.”
206.
The judge must specify the concrete circumstances in the proceedings
that lead to the reasonable conclusion that there is still a real risk of flight, or identify
the evidence that still needs to be gathered and explain why it would be impossible to
do so with the accused at large. This obligation is based on the need for current
296
circumstances to determine the State’s interest in maintaining the pretrial detention.
This requirement is not met when the judicial authorities systematically reject review
297
requests by, for example, merely invoking legal assumptions related to flight risk or
any other provisions that, in one way or another, require that the measure be
maintained. If the State fails to show that the pretrial detention is still reasonable and
necessary for achieving legitimate aims, that detention, even when ordered in
298
accordance with the law, becomes arbitrary.
294
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. 110.
295
I/A Court H.R., Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador. Preliminary Objections,
Merits, Reparations, and Costs. Judgment of November 21, 2007. Series C No. 170, paras. 107, 117, and 118.
296
IACHR, Report No. 86/09, Case 12.553, Merits, Jorge, José, and Dante Peirano Basso, Uruguay,
August 6, 2009, para. 104.
297
IACHR, Report No. 84/10, Case 12.703, Merits, Raúl José Díaz Peña, Venezuela, July 13, 2010,
paras. 167 and 172.
298
UN, HRC, Communication No. 305/1988, Hugo van Alphen v. The Netherlands, decision of July
23, 1990, para. 5.8.
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