which imply a lesser degree of interference with individual rights, are not sufficient to satisfy the
procedural objectives of the case. 197
161. Likewise, the Court has held that alternative measures should be available and that
measures that restrict liberty may only be imposed when it is not possible to use other measures
to guarantee a defendant’s appearance at trial. 198 In the Universal System for the Protection of
Human Rights, the United Nations Standard Minimum Rules for Non-Custodial Measures refer to
pretrial detention as a last resort and clarify that “pre-trial detention shall be used as a means of
last resort in criminal proceedings, with due regard for the investigation of the alleged offence and
for the protection of society and the victim.” The Rules add that “alternative measures to pre-trial
detention shall be employed at as early a stage as possible.” 199 In a recent case, the European
Court of Human Rights held that pretrial detention is a serious interference with fundamental rights
and is only justified when the courts have considered and deemed insufficient other less harmful
measures. 200
162. Similarly, the Inter-American Court has held that, in cases of deprivation of liberty, Article
7(5) imposes limits on its duration and, therefore, when the period of pretrial detention exceeds
a reasonable time, the liberty of the accused must be restricted by other less harmful measures
that would assure his appearance at trial. The standards that should be borne in mind to determine
the reasonableness of the time must be closely related to the specific circumstances of the case.
In view of the above, and in accordance with Articles 7(3), 7(5) and 8(2) (principle of the
presumption of innocence), the Court considers that the domestic authorities must tend toward
the imposition of alternative measures to pretrial detention, so as not to distort its exceptional
nature. 201 On this point, it should be recalled that the Principles and Best Practices on the
Protection of Persons Deprived of Liberty in the Americas (III) establish that: a) the deprivation of
liberty of persons shall be applied for the minimum time necessary; b) the rule is the freedom of
the accused and the exception is pretrial detention; c) in certain cases, when it is prolonged
excessively, the requirements that are considered normal or sufficient to justify it become
insufficient and a greater argumentative effort is required, and d) it must be substantiated and
justified in the specific case.
163. The Court has also considered that any restriction of liberty that lacks sufficient justification
(Article 8(1)) to allow an assessment of whether it meets the aforementioned conditions would be
arbitrary and, therefore, would violate Article 7(3) of the Convention. Thus, in order to respect the
presumption of innocence (Article 8(2)) when ordering precautionary measures that restrict
liberty, the State must provide a clear and reasoned justification and evidence, according to each
specific case, of the existence of the requirements established in the Convention. 202
197
Cf. Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador, Preliminary objections, merits, reparations and costs,
supra, para. 93; Case of Amrhein et al. v. Costa Rica, supra, para. 356, and Case of Tzompaxtle Tecpile et al. v. Mexico,
supra, para. 110.
198
Cf. Case of Romero Feris v. Argentina, supra, para. 107, and Case of Tzompaxtle Tecpile et al. v. Mexico, supra,
para. 111.
199
United Nations General Assembly, United Nations Standard Minimum Rules for Non-custodial Measures (Tokyo
Rules), Resolution 45/110, December 14, 1990, Rules 6(1) and 6(2), and Case of Romero Feris v. Argentina, supra, para.
108. See also, Case of Tzompaxtle Tecpile et al. v. Mexico, supra, para. 110.
200
Cf. ECHR. Case of Selahattin Demirtas v. Turkey. Judgment of December 22, 2020, Application No. 14305/17,
para. 347.
Cf. Case of Bayarri v. Argentina. Preliminary objection, merits, reparations and costs. Judgment of October 30,
2008. Series C No. 187 para. 70; Case of Romero Feris v. Argentina, supra, para. 109, and Case of Tzompaxtle Tecpile et
al. v. Mexico, supra, para. 112.
201
202
Cf. Case of Argüelles et al. v. Argentina. Preliminary objections, merits, reparations and costs. Judgment of
November 20, 2014. Series C No. 288 para. 120; Case of Women Victims of Sexual Torture in Atenco v. Mexico, supra,
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