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105. They noted, however, that on the two occasions when the alleged victims were in pretrial
detention, Argentina had no laws in force setting a maximum term for the incarceration of
persons presumed innocent. From the beginning of the case, standards had always been in
effect in the inter-American human rights system that bound the State to recognize the right
to release after a reasonable period. Thus, they reaffirmed the view that, for States that have
not set a maximum lawful term for pretrial detention, the measure can never exceed twothirds of the minimum sentence applicable under criminal law as punishment for the alleged
crime. They therefore held that the amount of time the alleged victims were incarcerated
without having been convicted was “in any case unreasonable,” and added that the prison
term ordered on conviction was greatly exceeded by the time spent in pretrial detention.
106. In their final written pleadings, the Inter-American Defenders reaffirmed that the alleged
victims, very much aware of the unreasonable length of their pretrial detention, “petitioned
for release, but were denied.” They added that the State had neglected its duty to verify
whether the alleged acts had been committed, whether sufficient evidence existed to
reasonably assume guilt, the procedural purpose (risk of hindering the proceedings, risk of
escape), and whether the measure was appropriate or necessary. Despite the availability of
less onerous procedural measures, there was no effort to monitor whether the pretrial
detention was a matter of exception or was proportional, the duty to monitor pretrial detention
to prevent any violation of the principle of presumption of innocence was overlooked, and
there was apparently no judicial decision justifying and assuring that the procedural
requirements demanded by the American Convention were in place.
107. For all these reasons, they asked the Court to declare violation of articles 7(1), 7(2),
7(3), 7(5), and 8(2), read in conjunction with articles 1(1) and 2 of the Convention.
108. The State held that the process of each of the applicants should be examined separately
in regard to the precautionary measure of pretrial detention because the dates are different.
The State further asserted that the applicants had chosen to pursue a military profession,
thereby submitting to the laws and regulations governing this work, and that matters of
military and service personnel constitute a special legal framework.
109. The State added that the arrest and pretrial detention were consistent with the
provisions of articles 309 and 312 of the Code of Military Justice. The State therefore acted in
accordance with the international order set forth in article 7(2) of the Convention as pertains
to all the applicants. In fact, the warrants for arrest and the orders for pretrial detention were
consistent with the requirements for a warrant to be issued by the competent authority, based
on an already existing law, and setting out the grounds for the measure.
110. The State then pointed to the method applied to enforce the pretrial detention, noting
that the alleged victims were at no time “arrested and ordered into pretrial detention in prison
wards, but in environments proper to military activities, such as the officers’ and junior
officers’ clubs.” Moreover, the rules of military justice allowed for “taking leave, exiting the
facility where they were being held for precautionary measures, receiving visitors, continuing
to work, etc.”
111. The State also discussed the question of whether the detention was arbitrary, noting
that the Inter-American Commission had not found violation of article 7(3). It added that the
causes that triggered the arrest of the applicants “were based on the certainty of probable
guilt of the accused for committing a crime of military fraud and forgery in the military
setting,” and that the pretrial detention was justified by the conduct of the applicants,
specifically the flight of Mr. Galluzzi until April 5, 1982 and the requests of the applicants for
self-amnesty. The State therefore held that if it had not applied this precautionary measure,