89.
In addition, the Court has considered that pre-trial detention should be a precautionary rather
than a punitive measure.112 It should be applied exceptionally and cannot be based on general or
special preventive purposes, which could be attributed to the punishment. Consequently, the Court
reiterates that the rule should be the liberty of the accused while his criminal responsibility is being
decided (supra para. 83).
90.
Therefore, the judicial authority must only impose measures of this nature when it has been
verified that: (a) the purpose of the measures that restrict or deprive liberty is compatible with the
Convention; (b) the measures adopted are appropriate to achieve the purpose sought; (c) the
measures are necessary, in the sense that they are absolutely essential to achieve the desired
purpose and that, among all possible measures that are equally appropriate to achieve the proposed
objective, no other measure exists that is less harmful to the right involved, and (d) they are strictly
proportionate, so that the sacrifice inherent in the restriction of the right to liberty is not exaggerated
or excessive compared to the advantages obtained from the restriction and the achievement of the
purpose sought.113
91.
The Court has also considered that any order for restriction of liberty that does not contain
a sufficient statement of reasons that permits an evaluation of whether it is in keeping with the
aforementioned conditions will be arbitrary. 114 The judicial decision should substantiate and
demonstrate – clearly stating the reasons – the existence of sufficient indications to prove the
criminal conduct of the individual concerned. 115 This safeguards the presumption of innocence.116
Moreover, the personal characteristics of the suspect and the gravity of the offense he is accused
of are not, in themselves, sufficient justification for pre-trial detention.117
92.
According to case law, pre-trial or preventive detention should be subject to periodic review
so that it does not continue when the reasons for its adoption no longer exist. The judge should
assess whether the reasons for the measure remain, and the need for and proportionality of the
detention; also, whether the reasonable time has been respected. If not, the judge must
immediately order the release of the detainee. It is the responsibility of the domestic authorities to
provide sufficient reasons to maintain the restriction of liberty, and those reasons must be based on
the need to ensure that the detainee does not impede the efficient conduct of the investigations or
evade the action of justice.118
93.
One of the principles that limit pre-trial detention is the presumption of innocence contained
in Article 8(2), according to which a person is considered innocent until his guilt has been proved.
This guarantee reveals that the elements that prove the existence of the legitimate purposes for the
preventive deprivation of liberty cannot be presumed; rather the judge must substantiate his
decision on the real and objective circumstances of the specific case, which it is for the prosecutor
to prove and not the accused who also must be able to exercise his right of defense and to be duly
Cf. Case of Pollo Rivera et al. v. Peru. Merits, Reparations and costs. Judgment of October 21, 2016. Series C No.
319, para. 122, and Case of Carranza Alarcón v. Ecuador, supra, para. 67.
112
Cf. Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador, supra, para. 93, and Case of Romero Feris v. Argentina,
supra, para. 98.
113
Cf. Case of García Asto and Ramírez Rojas v. Peru, supra, para. 128, and Case of Carranza Alarcón v. Ecuador,
supra, para. 75.
114
Cf. Case of Herrera Espinoza et al. v. Ecuador. Preliminary objections, merits, reparations and costs. Judgment of
September 1, 2016. Series C No. 316, para. 143, and Case of Romero Feris v. Argentina, supra, para. 110.
115
Cf. Case of Usón Ramírez v. Venezuela. Preliminary objection, merits, reparations and costs. Judgment of November
20, 2009. Series C No. 207, para. 144, and Case of Romero Feris v. Argentina, supra, para. 110.
116
Cf. Case of Bayarri v. Argentina. Preliminary objection, merits, reparations and costs. Judgment of October 30,
2008. Series C No. 187, para. 74, and Case of Carranza Alarcón v. Ecuador, supra, para. 65.
117
Cf. Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador, supra, para. 117, and Case of Carranza Alarcón v.
Ecuador, supra, para. 83.
118
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