CONCURRING OPINION OF JUDGE SERGIO GARCÍA RAMÍREZ
TO THE JUDGMENT OF THE INTER-AMERICAN COURT
IN THE CASE OF BAYARRI (ARGENTINA),
OF OCTOBER 30, 2008
1.
The examination of the Bayarri case and the Court’s judgment give rise to several
relevant issues in relation to the protection of human rights within the framework of criminal
proceedings, which constitutes a complex and dangerous scenario for the encounter
between the powers of the State and the rights of the individual. These issues include the
preventive detention of the accused, a topic that has frequently been emphasized in the
rulings of the Court – and also, evidently, the practice of criminal prosecution, plagued with
defects – which has already produced a “body of legal doctrine” on this matter, whose
influence could and should be extended to domestic law and decisions, via formal
interpretation of the American Convention.
2.
This provides appropriate material for the hoped-for harmonization with international
human rights law. Eminent scholars – such as Julio Maier, Martín Abregú and Juan Carlos
Hitters – have emitted their founded opinion that it is time to review and perhaps
reconstruct criminal proceedings in our countries (which have already undergone notable
developments) in light of international human rights law. Moreover, to this source of “new
law” should be added (with the same rank and identical spirit), the humanist and
democratic tradition that is rooted in the constitutional traditions – their application is
another story – of the countries of the Americas. Consequently, this is the dual source or
the broad basis of the contemporary law of criminal procedure, characteristic of a
democratic society committed to human rights, the reign of justice and the preservation of
public security, which also constitutes, evidently, a human right.
3.
On other occasions, subsequent to the rulings of the Inter-American Court, I have
referred to preventive detention which, strictly speaking, is usually repressive
imprisonment, an anticipation of the punishment, a means of social control which goes far
beyond the trial in which it is ordered and enforced. I have done so for example, in my
concurring opinions to the judgments in Tibi v. Ecuador and López Alvarez v. Honduras.
Recently, an important bibliography has emerged – or, rather, has been renewed – that
examines preventive detention under the optic of its rationality (always questioned) and of
its scope and limitations in keeping with inter-American case law. Among a growing number
of exponents, I can cite, only as examples, the valuable contributions of Paola Bigliani and
Alberto Bovino, in Argentina, and Guillermo Zepeda Lecuona, in México, authors of very
recent works.
4.
Preventive detention, which precedes punitive detention in the trajectory of the
deprivation of liberty linked to the actual or future sanction of offenses, comes up against
immense ethical and logical obstacles. It is sufficient to recall – evoking the classic Beccaria
– that it constitutes a punishment which anticipates the official declaration of the criminal
responsibility of the person subjected to it. This fact alerts us against the “justice” of a
measure that suppresses, restricts or limits liberty (strictly speaking, several liberties or
manifestations of human liberty: ambulatory, evidently, but also others, irremissibly drawn
in by the former) even before the State decides, through the pertinent channels, that there
are evident and firm grounds for suppressing, restricting or limiting that liberty. Hence,
there is an anticipated and, therefore, undue - but not for this less effective - decision
concerning the criminal responsibility of the accused.
5.
Consequently, it would be difficult to maintain that preventive detention is a “just”