20. IX of the Constitution. This occurred even though the alleged victims who filed the appeals
requested a control of conventionality of the legislation or the retroactive application of the rules
of the criminal procedure system in force as of 2008. This means that, in the instant case, the
provisions of Article 19 of the Constitution on mandatory pretrial detention were interpreted, by
the authorities that heard these appeals, as an exception to the provisions of Article 20.IX of said
Constitution on the maximum duration of this measure. As a result, according to this
interpretation, for the crimes listed in Article 19 of the Constitution there would be no possibility
of release after two years as established in Article 20.IX of the Constitution, nor would there be a
need for periodic review of the precautionary measure. This is because, in the case of mandatory
pretrial detention, it is sufficient to be charged with such a crime in order for it to be applicable, a
situation that continues until the sentence is handed down, without it being possible, in each case,
to determine whether the precautionary measure is appropriate, necessary or proportionate. In
these circumstances, the principle of presumption of innocence is devoid of content.
183. The Court also notes that the periodic reviews of the appropriateness of continuing the
pretrial detention of Daniel García Rodríguez and Reyes Alpízar Ortiz were always carried out at
the request of the interested party, and never as an ex officio review by the judicial authorities.
184. On this last point, the Court has held that pretrial detention must be subject to periodic
review and should not be continued when the reasons for its adoption no longer exist. 213
Specifically, it has stated that the judge does not have to wait until an acquittal is delivered for a
person who has been detained to recover his freedom, but should periodically assess whether the
grounds for the measure remain, whether the measure continues to be necessary and
proportionate, and whether the duration of detention has exceeded legal and reasonable limits.
Therefore, whenever it appears that pretrial detention does not meet these criteria, release should
be ordered, without prejudice to the continuation of the respective proceedings. 214
185. Finally, it is clear to this Court that the prolongation of pretrial detention for more than 17
years meant, in practice, that the defendants were subjected to a covert punishment without a
conviction, since it constituted a punitive measure without a prior trial, without proper guarantees,
and for an unreasonable period of time, since it corresponded to approximately half of the sentence
handed down in the conviction judgment (supra para. 10). On this point, it should be recalled that
the Human Rights Committee has stated that this regimen cannot be used as a way to circumvent
the limits and guarantees of the criminal justice process or to impose a sentence without a trial. 215
In this sense, it is clear that Article 8(2) of the American Convention, which establishes that every
person accused of a crime has the right to be presumed innocent until his guilt is legally
established, was flagrantly and factually violated.
B.4. Conclusion
186. Based on the foregoing, this Court finds that the State is responsible for the violation of
the right to personal liberty recognized in Articles 7(1), 7(2), 7(4), and 7(5) of the American
Convention on Human Rights, in relation to the obligation to respect the rights established in
Article 1(1) thereof, to the detriment of Daniel García Rodríguez and Reyes Alpízar Ortiz, due to
their unlawful detention, the lack of information on the reasons for said detention and for not
having been brought promptly before a judicial authority after their arrest (supra paras. 132, 135,
138 and 141).
213
114.
Cf. Case of Bayarri v. Argentina, supra, para. 74, and Case of Tzompaxtle Tecpile et al. v. Mexico, supra, para.
214
Cf. Case of Argüelles et al. v. Argentina. Preliminary objections, merits, reparations and costs, supra, paras. 121
and 122, and Case of Tzompaxtle Tecpile et al. v. Mexico, supra, para. 114.
215
Cf. Human Rights Committee, General Comment No. 35. Liberty and security of person, UN Doc. CCPR/C/GC/35
(2014) Para. 14.
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