5
16.
The determination on the nature of the substance whose possession was
attributed to the defendant is the center of the criminal persecution, pursuant to the
definition used for the incrimination and development of the process, which would
support, at its time, a conviction. Therefore, the greatest evidentiary weight must be
directed toward that matter as of the first moment. And, the State must justify, every
step of the way, the legitimacy of its criminal intervention, it must have elements of
judgment that are enough and constant for that purpose and always be alert to the
possible disappearance of that information, which would determine the cessation of the
procedure. It is notorious that this did not occur in this case, since there was a
situation of serious doubt –much greater than the uncertainty that could be natural in
the course of the trial, destined to be dispelled—and that the authority that should
have confronted it and solved it did not do so in an immediate and sufficient manner.
17.
Even when the arrest is based on a good apparent motive, as can be observed
from the facts in which it occurs, and even when the process is started, this is not so
when the deprivation of liberty continues even after the apparently good motive has
ceased and such circumstance is apparent to the authority called upon to issue a final
judgment. It is essential that there be a jurisdictional means that can operate so that a
situation that is not well founded, and therefore lacks legitimacy, may be ceased.
Nothing justifies the prolongation of a detention, as well as the process itself, when the
information that supports one and the other at the light of the criminal definition
ceases to exist. With this the presumption of innocence and even the legality of the
trial itself look bad. Of course, the International Court can not substitute the domestic
court in the assessment of the evidence, but it can not be indifferent before the
absolute and prolonged lack of enough evidence and the absence of a timely
assessment of the facts, whose circumstances were acknowledged by the domestic
jurisdiction itself.
IV.
PREVENTIVE DETENTION
18.
Once more we are faced with the problem of the preventive detention, that is,
of the most severe of the precautionary measures still used in criminal trials, since it
implies a profound restriction to freedom, with very important consequences. We
normally state that the preventive detention is not a real sanction; it is not a punitive
measure, but instead simply a precautionary and ephemeral one. Technically, this is
true. However, considering this phenomena in the light of reality –even when it comes
up against the technicality—preventive detention does not differ at all, except in its
name, of the punitive detention: both are a deprivation of freedom, they (normally)
occur in terrible conditions, they cause the subject and those that surround him a
serious material and mental damage, and they normally have long-term repercussions,
sometimes devastating. In fact, on not little occasions –the Case of López Álvarez is a
sample of it, certainly not the only one – the preventive detention prolongs for the
same period of time or even longer than a punitive detention. Therefore, among other
things, it is necessary to seriously weigh in the justification, the characteristics,
duration, and alternatives of the preventive detention.
19.
In my concept –deeply-rooted in a tradition of highly unfavorable opinions, or in
any case, strongly critical of the preventive detention – the cautionary deprivation of
freedom --“deprive of freedom in order to find out if liberty can be deprived”—must be
reduced as much as possible. The jurisprudence of the Inter-American Court has
acknowledged this repeatedly and uniformly, with explicit support to the idea that the
criminal intervention of the State must be reduced to that strictly necessary and be
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