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completion of specific, defined steps of the investigation or where the
release of the detainee or prisoner represents a danger to society or to
the victim.
204. It is a proven fact in the instant case that the military prosecutors ordered the
precautionary measure of preventive detention against Mr. Palamara-Iribarne and
that he was repeatedly deprived of his liberty, both during the processing of Case
No. 471, instituted against him for the crime of contempt, and the processing of
Case No. 464, in which he was prosecuted for the crime of disobedience and breach
of military duties (supra para. 63(21), 63(22), 63(27)(d) and (e), 63(28), 63(29),
63(56)(c), 63(80) and 63(83).
205. As to Case No. 471, concerning the crime of contempt, it is a proven fact that,
on July 12, 1993, the Naval Prosecutor of Magallanes issued a writ of indictment
against Mr. Palamara-Iribarne, ordering his preventive detention at Garrison IM
“Orden y Seguridad” (“Order and Security”) without providing any further legal
grounds other than Article 274 of the Code of Criminal Procedure, which article
makes no reference to the conditions that need to be met in order for preventive
detention to apply, but instead defines the conditions to be met for a writ of
indictment (supra para. 63(80)).
206. Taking due account of the presumption of innocence, it is the Court’s view that
the requirements to be met in issuing a writ of indictment are different from those
that apply in ordering preventive detention as, in the latter case, in addition to the
reasonable attributability of the criminal conduct to the defendant, detention must
also be necessary to prevent the accused from hindering the development of the
proceeding (supra para. 198).
207. In the order of preventive detention of July 12, 1993, the Prosecutor made no
reference whatsoever to the requirements defined by Chile’s domestic laws for the
deprivation of Mr. Palamara-Iribarne’s liberty to apply, and provided no evidence
pointing to the hindering of the investigation by the accused. The Prosecutor based
the order of preventive detention only on the elements required to be met for the
issue of a writ of indictment and, therefore, Mr. Palamara-Iribarne remained in
detention for four days, from July 12 through July 15, 1993 (supra para. 63(83)). He
was released as a result of the ruling handed down by the Court-Martial (supra para.
63(82)).
208. As to Case No. 464, it has been proven that, on March 15, 1993, the Deputy
Naval Prosecutor of Magallanes issued a writ of indictment against Mr. PalamaraIribarne ordering his preventive detention and denying his release on bail, on the
grounds that there were “proceedings pending execution” that “require[d] that
defendant be held in custody” (supra para. 63(27)(d) and (e)). Even though Mr.
Palamara-Iribarne requested that the Deputy Naval Prosecutor of Magallanes granted
his release on bail, setting the amount of such bail, and claimed, inter alia, that
“[his] arrest [was] unnecessary for the ongoing investigation and […] [he] [would]
not flee or hide [from prosecution],” the Deputy Naval Prosecutor “denied” the
request “under the provisions of Art[icles] 361(1) and 363(1) of the Code of Criminal
Procedure,” as “the certificate of existence and criminal record was not attached to
the case file” (supra paras. 63(28) and 63(29)).
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