or to the purpose sought by this in the specific case. The objective sought with the pre-trial
detention became clear when all the requests for pre-trial release made by Mr. Ancalaf Llaupe,
and the corresponding appeals, were denied. The only justification for the adverse decisions
was that the requests were denied “because he was considered a danger to the security of
society,” “[t]aking into account the number of offenses the accused is charged with and their
nature.” The appeals were rejected outright and without any justification.
322. The Court considers that this objective of denying the release of the accused because he
would be a danger “to the security of society” has an open-ended meaning that can permit
objectives that are not in keeping with the Convention. In this regard, expert witness Duce,
proposed by CEJIL, explained that these grounds are open to different interpretations that may
include not only legitimate procedural objectives, but also objectives that the Court, in its case
law, has considered illegitimate for ordering and maintaining pre-trial detention.342
323. This makes it essential to verify whether, in this specific case, the reference to the
liberty of the accused being a danger “to the security of society” was supported by any factor or
reason that could be considered to seek a preventive objective and that justified the need for
the measure in the specific case. Thus, in this case, when referring to the danger, reference
was made to only two of the criteria that article 363 of the Code of Criminal Procedure
established must be taken into account “in particular”: “the severity of the punishment assigned
to the offense” and “the number of offenses that the accused is charged with and their nature.”
The Court reiterates that the use of these criteria alone are insufficient to justify pre-trial
detention (supra para. 312.a).
324. In addition, the failure to provide the reasoning for the judicial decisions, aggravated by
the confidentiality of the preliminary proceedings, prevented the defense from knowing why the
pre-trial detention had been maintained and this precluded the defense from presenting
evidence and arguments to challenge decisive inculpatory evidence or to achieve his pre-trial
release.343 In this regard, expert witness Fierro Morales indicated that “[i]t is in this context, and
in absolute secret, that the investigating judge decided that, with regard to Mr. Ancalaf, there
were well-founded presumptions that implicated him as perpetrator in the acts investigated as
terrorist offenses.”344
325. Furthermore, in neither the indictment nor the denials of the requests for pre-trial
release was it assessed positively that Víctor Ancalaf Llaupe had come forward voluntarily when
he was summoned to testify and that, when his defense filed the second request, the
investigation against him had concluded.
326. Since his criminal responsibility had not been established legally, Mr. Ancalaf Llaupe had
the right to be presumed innocent under Article 8(2) of the American Convention. On this basis,
the State had the obligation not to restrict his liberty more than strictly necessary, because pretrial detention is a precautionary rather than a punitive measure. Consequently, the State
restricted the liberty of Mr. Ancalaf without respecting the right to presumption of innocence
and violated his right not to be subject to arbitrary arrest established in Article 7(3) of the
Convention.
327. Based on the above, it must be concluded that the State violated the right to personal
liberty, not to be subject to arbitrary arrest, and not to suffer pre-trial detention in conditions
that were not adapted to international standards, recognized in Article 7(1), 7(3) and 7(5) of
342
Cf. Affidavit prepared on May 15, 2013, by expert witness Mauricio Alfredo Duce Julio (file of statements of
presumed victims, witnesses and expert witnesses, folios 70 and 71).
343
Cf. Case of Chaparro Álvarez and Lapo Íñiguez. v. Ecuador, para. 118.
344
Affidavit prepared on May 17, 2013, by expert witness Claudio Alejandro Fierro (file of statements of presumed
victims, witnesses and expert witnesses, folio 8).
114
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