125.
This also entails an obligation to give sufficient reasons regarding the achievement of a
legitimate purpose, in line with these standards, upon the issuance of the preventive detention order.
Otherwise, it must be considered arbitrary.109
126.
Likewise, the Principles and Best Practices on the Protection of Persons Deprived of Liberty
in the Americas, approved by the IACHR, lay out under Principle III, subparagraph 2, that:
[…]Preventive deprivation of liberty is a precautionary measure, not a punitive one, which
shall additionally comply with the principles of legality, the presumption of innocence, need,
and proportionality, to the extent strictly necessary in a democratic society. It shall only be
applied within the strictly necessary limits to ensure that the person will not impede the
efficient development of the investigations nor will evade justice, provided that the
competent authority examines the facts and demonstrates that the aforesaid requirements
have been met in the concrete case.110
127.
Regarding the use of pretrial detention while ensuring the right to the presumption of
innocence, in its Report on the Use of Pretrial Detention in the Americas, the IACHR noted that:
[…] observance of the right to the presumption of innocence entails, above all, that the
accused is able to stand trial in liberty. This means that pretrial detention must truly be used
as an exception; and in any instance when it is ordered to be used, the right to the
presumption of innocence must be respected by giving legitimate reasons to warrant its use.
As with all limitations on human rights, deprivation of liberty before sentencing must be
interpreted strictly in keeping with the pro homine principle, pursuant to which, when the
recognition of rights is involved, the most favorable interpretation to the person must be
followed, and when the restriction or suppression thereof is involved, the most restrictive
interpretation.111
128.
The Court has reiterated some of the foregoing standards in stating that:
[…] the principle of the presumption of innocence – inasmuch as it lays down that the person
is innocent until proven guilty – is founded upon the existence of judicial guarantees. Article
8.2 of the Convention establishes the obligation of the State not to restrict the liberty of a
detained person beyond the limits strictly necessary to ensure that he will not impede the
efficient development of an investigation and that he will not evade justice; preventive
detention, therefore, is a precautionary rather than a punitive measure. This concept laid
down in a goodly number of instruments of international human rights law, including the
International Covenant on Civil and Political Rights, which provides that preventive
detention should not be the normal practice, in relation to persons who are to stand trial
(Article 9.3). It would be a violation of the Convention to deprive of liberty for a
disproportionate period of time persons, whose criminal responsibility has not been
…continuación
Judgment of November 21, 2007. Series C No. 170, para. 103 and Case of Servellón García et al v. Honduras. Merits, Reparations and Costs.
Judgment of September 21, 2006. Series C No. 152, para. 90.
109 IA Court of HR, Case of Barreto Leiva v. Venezuela. Merits, Reparations and Costs. Judgment of November 17, 2009. Series
C No. 206. Para. 116.
110 Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas. Principle III, subparagraph
2. Document approved by the Commission at the 131st regular session thereof, March 3 to 14, 2008.
111 IACHR, Report on the Use of Pretrial Detention in the Americas, December 30, 2013, para. 134. Available at:
http://www.oas.org/es/cidh/ppl/informes/pdfs/informe-pp-2013-es.pdf
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