197. Moreover, regarding the reasons for the definitive detention order issued in the military
criminal jurisdiction on August 9, 1995, the State claimed that, in conformity with Articles 524
and 525 of the Code of Military Justice, a definitive detention order must have grounds and must
refer to the evidence whereby the existence of a crime was proven and that the accused is
responsible for that crime, both of which were met. In the case of Mr. Rosadio Villavicencio he
was already detained as per an order issued in the ordinary jurisdiction; therefore, the order of
the military jurisdiction being questioned did not cause him further injury.
198. Lastly, regarding the length of time that the alleged victim was in preventive detention,
the State claimed that the legal bodies in the ordinary and in the criminal jurisdictions duly applied
both domestic and international regulations. Moreover, the alleged victim did not file any remedies
in the military jurisdiction and did not file a writ of habeas corpus before the constitutional court.
B. Considerations of the Court
199. In the instant case, the controversy consists of determining whether: (i) the preventive
detention of Mr. Rosadio Villavicencio was arbitrary; (ii) during the preventive detention periodic
reviews were performed by the judicial authorities on the reasons for its adoption; and (iii)
whether the legal remedies filed permitted a review without delay of the reasons for and duration
of the preventive detention.
B.1. Arbitrariness of preventive detention
200. The Court recalls the principle of liberty of the defendant while his criminal liability is being
determined. According to this Court’s jurisprudence, preventive detention is the most severe
measure that can be applied to the person accused of a crime; therefore, its application must
have an exceptional nature, since it is limited by the principles of lawfulness, presumption of
innocence, need, and proportionality, all of which are strictly necessary in a democratic society.170
Furthermore, the judicial decision that restricts an individual’s personal liberty by means of
preventive detention must provide the reasons for said detention and confirm, in the specific case,
the existence of sufficient indications to reasonably assume the individual’s criminal behavior and
that the detention is strictly necessary. 171 Thus, it cannot be based on the mere suspicion or
personal perception of the accused individual belonging to a specific illicit group.
201. Moreover, “the restriction of liberty of a detained person […]” can only be motivated by a
legitimate purpose, namely: “to ensure that he does not interfere with the proceedings or evade
the action of justice.”172
202. In this regard, the Court has indicated that, as a general rule, the accused should be free
while a decision is made on their criminal liability.173 because the latter enjoys the legal status of
innocence. This means that he or she should be treated by the State in a manner consistent with
the status of a person who has not been convicted.174
offense was not a pertinent criteria when evaluating a change in the status of restriction of liberty, even though Article
135 of the Code of Criminal Procedure establishes as grounds for the issue of a detention order that the potential penalty
to be imposed exceeds four years of imprisonment, which could be a possibility for the junior officers but would definitely
not be the case for Mr. Rosadio.
170
Cf. Case of Tibi v. Ecuador, Preliminary Objections, Merits, Reparations and Costs. Judgment of September 7,
2004. Series C No. 114, para. 106, and Case of Amrhein et al. v. Costa Rica, supra, para. 353.
171
Cf. Case of Pacheco Teruel et al. v. Honduras. Merits, Reparations and Costs. Judgment of April 27, 2012. Series
C No. 241, para. 106, and Case of Amrhein et al. v. Costa Rica, supra, para. 353.
172
Cf. Case of Acosta Calderón v. Ecuador, supra, para. 111, and Case of Amrhein et al. v. Costa Rica, supra, para.
357.
173
Cf. Case of López Álvarez v. Honduras, para. 67, and Case of Amrhein et al. v. Costa Rica, supra, para. 367.
174
Cf. Case of J. v. Peru. Preliminary Objection, Merits, Reparations and Costs. Judgment of November 27, 2013.
Series C No. 275, para. 157, and Case of Amrhein et al. v. Costa Rica, supra, para. 367.
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