106. Even though the decision mentions the possibility that Manuela could obstruct the
proceedings, this possibility is not substantiated by true and objective circumstances in her
specific case. The Court recalls that procedural risk cannot be presumed, but must be verified
in each case, based on the true and objective circumstances of the specific case. 200 Thus, to
respect the presumption of innocence, when ordering measures that restrict liberty the
existence of the said requirements stipulated by the Convention must be justified and proved,
clearly and with reasons, in each specific case.201 In addition, the mention of the public alarm
that the occurrence of the presumed crime allegedly caused is contrary to the rationale behind
precautionary measures because it does not refer to the particular circumstances of the
person who has been accused, but to subjective and political assessments, which should not
form part of the substantiation of an order of pretrial detention. Since the decision to order
pretrial detention was not grounded on objective circumstances that proved the procedural
risk in this case, this detention was contrary to the American Convention.
107. This Court also notes that the pretrial detention of Manuela was reviewed on June 5,
2008.202 However, in cases of aggravated homicide, the laws prevented substituting the
measure. In addition, when examining the pertinence of the measure, the court merely
considered that the circumstances that gave rise to the adoption of the precautionary measure
subsisted and therefore referred back to the reasons included in the decision of March 3,
2008, in its statement of reasons.203 In this regard, the Court recalls that pretrial detention
should not be continued when the reasons for its adoption no longer subsist. When examining
the pertinence of continuing them, the domestic authorities must provide sufficient grounds
that make it clear why the restriction of liberty should be continued204 and, to ensure that it
does not become an arbitrary deprivation of liberty pursuant to Article 7(3) of the American
Convention, it must be founded on the need to ensure that the detainee will not impede the
efficient development of the investigations or evade the action of justice. 205 Consequently,
the failure to analyze the need for continuing the pretrial detention constituted a violation of
the American Convention.
108. Furthermore, Article 2 of the Convention indicates the duty of the States Parties to the
Convention to adapt their domestic laws to the obligations derived from the Convention. In
this regard, the Court has indicated that:
If the States, pursuant to Article 2 of the American Convention, have a positive obligation
to adopt the legislative measures required to guarantee the exercise of the rights
recognized in the Convention, it follows that they must also refrain from both promulgating
laws that disregard or impede the free exercise of those rights, and eliminating or modifying
existing laws that protect them. To the contrary, they violate Article 2 of the Convention.206
109. In the instant case, the regulation of pretrial detention that was applied did not require
the judge to examine whether or not the procedural purposes of detention were met, or its
Cf. Case of Amrhein et al. v. Costa Rica, supra, para. 357, and Case of Villarroel Merino et al. v. Ecuador,
supra, para. 88.
200
Cf. Case of Palamara Iribarne v. Chile, supra, para. 198, and Case of J. v. Peru. Preliminary objection, merits,
reparations and costs. Judgment of November 27, 2013. Series C No. 275, para. 159.
201
202
Cf. Record of hearing to review a precautionary measure of June 5, 2008 (evidence file, folio 110).
203
Cf. Record of hearing to review a precautionary measure of June 5, 2008 (evidence file, folio 110).
Cf. Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador, supra, para. 107, and Case of J. v. Peru, supra,
para. 163.
204
205
Cf. Case of Bayarri v. Argentina, supra, para. 74, and Case of J. v. Peru, supra, para. 163.
Case of Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago. Merits, reparations and costs.
Judgment of June 21, 2002. Series C No. 94, para. 113, and Case of Rodríguez Revolorio et al. v. Guatemala.
Preliminary objection, merits, reparations and costs. Judgment of October 14, 2019. Series C No. 387, para. 63.
206
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