offense or those supposedly derived from the objective element of the definition (supra para.
178), does not preclude Chile, if it considers it necessary, from amending its legislation to take
into account the relevant aspects indicated by international experts and organs.
b)
Adaptation of domestic law in relation to the right to appeal the judgment
before a higher court
460. The Commission asked the Court to order that the State “[a]dapt its domestic procedural
laws to make them compatible with [the] right established in Article 8(2)(h)) […] of the
American Convention.” The FIDH requested “an amendment of the Criminal Procedural Code in
order to ensure the right of those convicted to appeal, either by amending the current remedy,
or by establishing a new remedy that guaranteed a full review of judgments convicting the
accused.” The State indicated that the appeals system of the Criminal Procedural Code
“complies with all the international standards,” and indicated that “an unjustified order to
amend the criminal procedural system, would only, paradoxically, weaken due process, allowing
a less appropriate court to examine the facts outside the context of the oral hearing – which is
the highest expression of the guarantees of the public, immediate and adversary nature of the
proceedings – and to take a decision, free of the scrutiny of the interested parties, on no less
than the possibility of the criminal conviction of an individual.”
461. In view of the fact that, in the instant case, the Court concluded that a violation of
Article 2 of the Convention had not been proved, but rather that the violation of the right to
appeal an adverse criminal judgment was a result of the actions of the courts in the specific
cases (supra paras. 275 to 297), the Court does not find it necessary to order Chile to adapt its
domestic laws in this regard. However, the Court recalls the importance that the judicial
authorities apply the criteria or standards established in the Court’s case law in relation to the
content of the right to appeal a criminal judgment in exercise of control of conventionality in
order to ensure this right (supra para. 298).
c)
Adaptation of domestic law in relation to the grounds for pre-trial
detention
462. CEJIL affirmed, with regard to the adaptation of the norms on pre-trial detention, that
“Chilean regulations […] retain the grounds of a danger to society in force that […] are
incompatible with the procedural criteria established in the Convention.” It indicated that both
the grounds and their interpretation by the courts “tend towards the automatic application of
this coercive measure,” “without the need to justify precisely how, in the specific case that is
the object of a decision on liberty, the accused would be a danger to the security of society.” In
this regard, it mentioned that this way of interpreting the grounds “is supported […] by the
administrators of justice and was reinforced by the National Congress by the promulgation of
Law No. 20,253,” which establishes “a system of presumptions of danger to the security of
society” “increasing the automatic nature of the establishment […] of pre-trial detention” on
these grounds. It considered that the following norms should be amended: (a) article 19.7.e of
the Constitution of the Republic of Chile; (b) article 363.1 and 3 of the Code of Criminal
Procedure (Law No 1853), and (c) article 140.c of the Criminal Procedural Code (Law No.
19,696). The FIDH requested “the modification of the law on pre-trial detention, in order to
eliminate the grounds of danger to the security of society, retaining only those relating to the
danger to the investigation and the risk of flight.”
463. The State indicated that it was “irresponsible to alleged that measures of protection
should not be taken in cases where proven past events indicate that a person could, if at
liberty, not only flee or affect the investigation, but also endanger the victim of the offense
investigated or other persons” and that it “did not see why the security of the investigation
would be a sufficiently important right to justify […] a precautionary measure involving the pretrial detention of an accused, but not the security of individuals.”
149
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