301. CEJIL alleged that the violation of the right to liberty occurred owing to the arbitrary
nature of the arrest and pre-trial detention ordered against Víctor Ancalaf Llaupe, and affirmed
that this resulted in a violation of the principle of the presumption of innocence and the
violation of the right to be tried within a reasonable time or be released. It stated that “the
arrest and pre-trial detention ordered against Víctor Ancalaf Llaupe suffered from two
fundamental irregularities: (i) no reasons were given for the measure ordered, and (ii) the pretrial detention did not respond to procedural purposes.” It argued that his arrest was ordered
“without justifying a legitimate purpose, and without identifying the evidence that warranted
the adoption of such a restrictive measure as the deprivation of liberty of someone who has
been indicted.” It also argued that the indictment “was supported by evidence produced during
secret preliminary proceedings, in violation of the adversarial principle.” CEJIL argued that the
indictment of Mr. Ancalaf and the denials of the requests for pre-trial release were based solely
on the grounds of “danger to the security of society,” which implied “an absolute legal
presumption of dangerousness” that “violates the American Convention, making the measure
arbitrary” and that, since it is a “non-procedural criterion,” it “violated the principle of the
innocence of Mr. Ancalaf and turned the pre-trial detention ordered against him into an
arbitrary measure.” It indicated that the pre-trial detention was “an automatic consequence of
the indictment,” reflecting “the particularity of the inquisitorial system where the notions of
proceedings and punishment are not clearly separated.” In addition, it argued that “the
proceedings under the Counter-terrorism Act convert the ordering and implementing of pre-trial
detention into the general rule,” “a practice [that] violates the guarantee of presumption of
innocence.” CEJIL alleged that Article 2 of the Convention had been violated in relation to the
regulation of the grounds of “danger to the security of society.”
302. The State did not refer specifically to the pre-trial detention of the presumed victims, but
referred in general terms to the domestic law in force that regulates pre-trial detention and its
application in Chile. It indicated that this precautionary measure “does not infringe the principle
of the presumption of innocence, in view of its exceptional and preventive nature, constituting,
also, an essential measure to safeguard the security of the investigation, of the victim, and of
society, in certain cases.” It asserted that “the judge is not obliged to order pre-trial detention,
even in the case of serious offenses with severe punishments,” “including terrorist offenses,”
and that the “high standard of evidence that must be presented to the court in order to warrant
pre-trial detention is a sufficient argument to reject the allegations that have been made with
regard to this precautionary measure.” It affirmed that “the Counter-terrorism Act does not
contain any special norm that permits ordering pre-trial detention.” It referred to the grounds
for pre-trial detention relating to the “danger to the security of society or of the victim” (infra
para. 359).
B)
Domestic legal framework
303. Constitution. Article 19.7 subparagraphs (e) and (f), of the Constitution of the Republic
of Chile establishes:
e)
Pre-trial release shall be in order unless the judge considers that pre-trial detention or custody is
necessary for the preliminary investigations or for the safety of the victim or of society. The law shall
establish the requirements and methods to obtain it.
The decision granting pre-trial release to those accused of the offenses referred to in article 9
shall always be consulted with a higher authority. This and the appeal against the decision issued on the
release shall be heard by the competent higher court composed exclusively of full-time members. The
decision that approves or grants the release must be taken unanimously. While the pre-trial release
lasts, the accused shall always be subject to supervisory measures by the legally-established authority;
f)
In criminal cases the accused cannot be obliged to testify under oath with regard to an act that
he has committed; nor can his relatives in the ascending or descending lines, his spouse and other
persons who, according to the case and circumstances, are indicated by law, be obliged to testify
against him.
104
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