2.
Regarding the pre-trial detentions of Mr. Cortez.
67. The Commission and the Court have pointed out that the use of pre-trial detention is limited by the
principles of legality, presumption of innocence, necessity, and proportionality.60 Moreover, the Court has
pointed out that it is a precautionary, not a punitive, measure61 and that it is the harshest measure that can be
imposed on an accused, which should therefore be used exceptionally. Both organs of the inter-American
system consider that the general rule should be liberty of the accused while a resolution is reached on his or
her criminal responsibility.62
68. The Court and the Commission have underscored that the personal characteristics of the alleged
perpetrator and the seriousness of the crime of which he or she is charged are not in themselves sufficient
grounds to warrant pre-trial custody.63 Regarding the grounds that may warrant pre-trial detention, the organs
of the inter-American system have interpreted Article 7.3 of the Convention to mean that circumstantial
evidence of responsibility is a necessary but not sufficient condition for imposing that measure. In the words
of the Court:
" there must be sufficient evidence to allow reasonable supposition that the person committed to trial has
taken part in the criminal offense under investigation.64 Nevertheless, even in these circumstances, the
deprivation of liberty of the accused cannot be based on general preventive or special preventive purposes,
which could be attributed to the punishment, but […] on a legitimate purpose, which is: to ensure that the
accused does not prevent the proceedings from being conducted or elude the system of justice.65
69. Along these lines, any decision that restricts personal liberty by applying preventive custody must be
accompanied by sufficient, individualized substantiation to make it possible to appraise whether such custody
meets the requirements for its application.66
70. As regards the need for periodic review of the grounds for pre-trial detention/preventive custody and of
how long it should last, the Court has indicated that:
(...) preventive detention or imprisonment must be subject to periodic review, to ensure that it does not
continue when the reasons for it no longer subsist (...). As soon as it becomes apparent that preventive
custody no longer meets these requirements, the accused must be released, without prejudice to the
proceedings continuing.67.
71. Apart from its effects on the exercise of the right to personal liberty, both the Commission and the Court
have pointed out that improper use of preventive custody may impact the principle of the presumption of
IACHR. Report on the Use of Preventive Custody in the Americas. OEA/Ser.L/V/II. December 30, 2013, par. 20; I/A Court H.R. Case of López
Álvarez v. Honduras. Judgment of February 1, 2006. Series C No. 141, par. 67; Case of García Asto and Ramírez Rojas v. Rojas. Judgment of
November 25, 2005. Series C No. 137, par. 106; Case of Palamara Iribarne v. Chile. Judgment of November 22, 2005. Series C No. 135, par.
197; and Case of Acosta Calderón. Ecuador. Judgment of June 24, 2005. Series C No. 129, par. 74.
61 I/A Court HR. Case of Suárez Rosero v. Ecuador. Judgment of November 12, 1997. Series C No. 35, par. 77.
62 IACHR. Report on the Use of Preventive Custody in the Americas. OEA/Ser.L/V/II. December 30, 2013, par. 21; I/A Court H.R. Case of López
Álvarez v. Honduras. Judgment of February 1, 2006. Series C No. 141, par. 67; I/A Court H.R. Case of Palamara Iribarne v. Chile. Judgment of
November 22, 2005. Series C No. 135, par. 196; and I/A Court H.R., Case of Acosta Calderón v. Ecuador. Judgment of June 24, 2005. Series C
No. 129, par. 74.
63 IACHR. Report on the Use of Preventive Custody in the Americas. OEA/Ser.L/V/II. Monday, December 30, 2013, par. 21; I/A Court H.R. Case
of López Álvarez v. Honduras. Judgment of February 1, 2006. Series C No. 141, par. 69; Case of García Asto and Ramírez Rojas v. Peru.
Judgment of November 25, 2005. Series C No. 137, par. 106; and Case of Acosta Calderón v. Ecuador. Judgment of June 24, 2005. Series C
No. 129, par. 75; and Case of Tibi v Ecuador. Judgment of September 7, 2004. Series C No. 114, par. 180.
64 I/A Court HR. Case of Barreto Leiva v. Venezuela. Merits, Reparations and Costs. Judgment of November 17, 2009. Series C No. 206, Par.
111. Citing: Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador. Preliminary Objections, Merits, Reparations, and Costs. Judgment of
November 21, 2007. Series C No. 170, par. 101; and Case of Servellón García et al. v. Honduras. Merits, Reparations and Costs. Judgment of
September 21, 2006. Series C No. 152, par. 90.
65 I/A Court HR. Case of Barreto Leiva v. Venezuela. Merits, Reparations and Costs. Judgment of November 17, 2009. Series C No. 206, Par.
111. Citing: Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador. Preliminary Objections, Merits, Reparations, and Costs. Judgment of
November 21, 2007. Series C No. 170, par. 103; and Case of Servellón García et al. v. Honduras. Merits, Reparations and Costs. Judgment of
September 21, 2006. Series C No. 152, par. 90.
66 IACHR. Report on the Use of Preventive Custody in the Americas. OEA/Ser.L/V/II. Doc. 46/13. December 30, 2013, par. 21.
67 I/A Court HR. Case of Arguelles et al. v. Argentina. Preliminary Objections, Merits, Reparations, and Costs. Judgment of November 20,
2014. Series C No. 288, par.121; IACHR,
60
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