Convention, it must be based on the need to ensure that the detainee will not impede the efficient
development of the investigations or evade the action of justice. 87 Similarly, each time the detainee
requests his release, the judge must provide the reasons, however minimal, why he considers that the
preventive detention should be maintained.88
86. The Court will now examine, first, the refusal of the domestic courts to apply to Mr. Jenkins the
maximum limit of two (or, in his case, three) years of provisional detention established in article 1
of Law No. 24,390, in application of the exception contain in article 10 of that law, which excluded
those accused of the offense of drug-trafficking from the lower limit. Subsequently, it will examine
the reasons provided by the domestic authorities to justify prolonging the preventive detention
imposed on Mr. Jenkins.
(i) Impossibility of applying the maximum limit of preventive detention
87. The Court notes that the said Law No. 24,390 regulated the maximum duration of preventive
detention and the exceptions. Thus, the first article of this law stipulated:
Article 1. Preventive detention may not exceed two years. However, when the number of
offenses attributed to the defendant or the evident complexity of the case has prevented
concluding the proceedings within this time frame, it may be prolonged for one more year by a
reasoned decision that shall be notified immediately to the corresponding appellate court for its
review.89
88. Meanwhile, article 10 of that law established an exception to this maximum limit, indicating
that this was not applicable in those cases in which the individual was accused of a drug-trafficking
offense:
Those accused of the offense established in article 7 of Law 23,737 and those to whom the
aggravating factors established in article 11 of that same law are applicable are expressly
excluded from the terms of this current law.
89. The Court notes that, according to Oral Court No. 6, which dismissed the action of
unconstitutionality filed by Mr. Jenkins, in the instant case the exception included in article 10 of Law
No. 24,390 to the duration of preventive detention stipulated in article 1 of that instrument was
justified. Specifically, in its decision, that court indicated that this exception did not violate Article
7(5) of the American Convention because “what the [American] Convention requires is that everyone
must be tried or released within a reasonable time, but does not prevent each State from adapting
the time frame based on criminal policy criteria essentially related to reasons of public interest.”90 In
addition, it indicated that “there [was] no doubt” that the reasons of public interest that caused the
legislator to exclude conducts related to drug-trafficking were related to “the need to harmonize the
provisions of domestic law with the international commitments assumed by the country on acceding
to various international treaties, in particular the United Nations Convention against the Illicit Traffic
in Narcotic Drugs and Psychotropic Substances.” 91
Cf. Case of Bayarri v. Argentina, supra, para. 74, and Case of the Women Victims of Sexual Torture v. Mexico, supra,
para. 255.
87
Cf. Case of Chaparro Álvarez and Lapo Iñíguez v. Ecuador, supra, para. 117, and Case of Argüelles et al. v. Argentina,
supra, para. 122.
88
Cf. Law No. 24,390, Duration of preventive detention, enacted on November 2, 1994, and promulgated on November
21, 1994. Available at: http://servicios.infoleg.gob.ar/infolegInternet/anexos/0-4999/776/norma.htm
89
90
4551).
91
4551).
Cf. Decision of Oral Court No. 6 of October 2, 1996, dismissing the action of unconstitutionality (evidence file, folio
Cf. Decision of Oral Court No. 6 of October 2, 1996, dismissing the action of unconstitutionality (evidence file, folio
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