8
of the body of provisions for the protection of all persons under any form of detention
or imprisonment, in 1988, sets forth: “A detained person suspected of or charged
with a criminal offence shall be presumed innocent and shall be treated as such until
proved guilty according to law in a public trial at which he has had all the guarantees
necessary for his defence.”
34.
Of course, I am aware of the obstacles to full application of this presumption
or principle. They are, undoubtedly, the often debated precautionary measures in the
criminal proceeding, first and foremost preventive incarceration, to which there have
always been objections.
Another obstacle is the very fact that the criminal
procedure is based on the opposite idea: reasonable evidence of criminality, probable
criminal liability, the existence of data that provide grounds to believe that a given
individual participated in a specific criminal act, and so forth.
35.
Nevertheless, this presumption or this principle is an extremely valuable
reference for the construction of the proceeding, to address doubts that may arise
during the proceeding, to recover guarantees and to reduce disproportionate
interference. The nature and outcome of the procedural acts and of the proceeding
as a whole are very different when the defendant is treated “as if he were guilty,”
which is a trait of the inquisitorial system, and when he is treated “as if he were
innocent,” which is a trait of the accusatory one. Ultimately, what the presumption or
principle of innocence seeks is to exclude prejudice –advanced, general and
condemnatory judgment against the defendant, without being based on the evidence
of the facts and of the liability- and to avoid advanced punishment based on vague
appearances.
VIII.
Arbitrary detention
36.
The case that this Opinion refers to shows, once again, the great flaw at the
outset of the proceeding, or at least the one that most often and overwhelmingly
victimizes the defendant –the one “presumed innocent”- and weighs on the rest of
the data of the prosecution by the State: arbitrary detention. It is not easy, now, to
find legal standards that do not address the lawfulness of this very significant,
delicate, and devastating measure. Efforts have been made to surround it with
conditions: that detention must be based on the law, that it must be conducted by a
competent authority, that it must be ordered by a judicial authority, that it must be
recorded in writing, that the detainee must be presented. This catalogue of good
intent, duly reflected in the fundamental laws, collides with frequent practice. One
bad day two agents detain a person driving his car down a city street. They say that
he is required for “migration control.” They take him, without informing him about
his rights or of the charges against him, to a prison six hundred miles away from
where he was detained. He remains there twenty-eight months. Ultimately, his trial
will be discontinued, if only provisionally.
37.
The Inter-American Court’s jurisprudence also addresses this problem. Most, if
not all cases of extra-legal execution, torture, forced disappearance, irregular
proceedings, etcetera, etcetera, were preceded by a detention in which there was not
even a remote respect for conditions that legitimize detention and that enable a
distinction between an action of the State based on the Constitution and the
kidnapping of a citizen, committed by “law enforcement” agents who impose their
personal will on the general will reflected in the legal principle.
38.
Rather than being unheard of, cases in which there was an arbitrary detention
seem to be the majority –or at least they are very numerous and evident. From then
on, the proceeding can become a labyrinth that is full of traps, and which certainly is
not in accordance with the idea of a legal proceeding –an “ethical,” in addition to
juridical, idea-, associated with the Rule of Law and which is, in fact, one of its most
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