REPORT Nş 12/96 (*)
March 1, 1996
November 17, 1993, a claim against the Government of Argentina was lodged with
the Commission regarding the situation of Jorge Alberto Giménez.
The claim alleges that the holding of Mr. Giménez in preventive
custody since September 1989 in the absence of a sentence violates the rights
that are set forth in the American Convention on Human Rights--in particular
Article 7(5) (his right to be
tried within a reasonable time or to be released without prejudice to the
continuation of the proceedings) and Article 8(2) (the right to presumption of
2. Mr. Giménez
was taken into custody on September 29, 1989 and the order of pretrial
detention was issued shortly thereafter.
He has on various occasions asked
that he be conditionally released from prison, but those requests have
been denied, both by the judge of the lower court and the Court of Appeals.
conviction handed down in December of 1993 in proceeding No. 1757 of the
Letter "W" Sentencing Court found Jorge Alberto Giménez guilty of
aggravated robbery plus two counts of automobile theft, considered to be joint
offenses. He was then sentenced to serve nine years in prison--a term
which will expire on September 28, 1998.
On March 14, 1995, the Appeals Court of the Federal Capital confirmed
the sentence handed down by the first instance court and sentenced Mr. Giménez
to 9 years in prison.
petitioner has repeatedly asked to be released on bail.
October 6, 1989, the lower court denied his request, and that judgment was
upheld by the court of appeals on December 19 of that same year.
adverse decision of October 6, 1989 was based on the impossibility of imposing
a conditional penalty pursuant to Article 379, Section 1 of the Code of
Criminal Procedure, given the existence of a previous sentence, issued
30, 1980, to three years' imprisonment for automobile
theft, which he was held to have committed on more than one occasion (joint
offenses). The conditionality of
the sentences imposed on December 23, 1977 and December 31, 1978 was then
January 8, 1991, the judge denied his petition, and the Court of Appeals
ratified the decision on January 31, 1991.
8. On May
22, 1991, the judge of the lower court again rejected the petition.
9. A new
appeal was denied on September 30, 1991, and that decision was upheld
by the Court of Appeals on January 28, 1992.
This petition for release on bail was lodged when Mr. Giménez was
accused by the Public Prosecutor's Department.
At that time, the prosecutor recommended that a penalty of seven years
and six months of prison plus related penalties be imposed on him as the
perpetrator of repeated instances of automobile theft, combined with unlawful
deprivation of freedom (joint offenses).
His participation in the robbery in a populated area was considered to
be a single offense.
10. To substantiate
his denial of the appeal, the judge stated in his verdict that:
... the case might fall within the provisions of Article 379, Section 6
of the Code of Criminal Procedure, which guarantees that the accused will not
be subject to prolonged proceedings and assures him that--if court proceedings
have not been instituted within the period of two years set by Article 701,
either by means of an indictment or a verdict from the lower court, which
would afford some possibility of estimating what the outcome of the case may
be--the order to release him must be given.
11. In its decision of
November 28, 1991, the Court of Appeals confirmed the lower court's decision
based on the following: in the abstract, the situation of the appellant might
be viewed in light of the premise cited in Article 379, Section 6 of the Code
of Criminal Procedure; the nature of the offense he is accused of committing;
his personal circumstances; the previous sentence; and the prospect of a
severe penalty facing him, given the public prosecutor's accusation.
All of these factors combined were deemed to warrant application of
Article 380 of the Code--which empowers the courts to deny a request for
release on bail when an objective assessment of the nature of the deed and the
personal characteristics of the accused are grounds for presuming that he will
attempt to escape the law.
special remedy utilized by the defendant to counter that ruling was disallowed
by the Federal Supreme Court on January 28, 1992.
The Court concurred with the reasoning adduced by the National Court of
Appeals prosecutor, to the effect that in the case of Mr. Giménez no serious
impairment of constitutional rights was apparent.
In the view of the prosecutor, the fact that the suit had reached the
final stage of the plenary proceeding, in which the prosecution had asked for
a prison sentence of seven years and six months, combined with the defendant's
history of previous convictions, indicated that the finding was not arbitrary.
defendant then appealed to the Federal Supreme Court, alleging that there were
no objective grounds for believing that, pursuant to Article 380 of the Code
of Criminal Procedure, he might seek to escape judicial action if his request
for release from prison were granted.
14. On March 30, 1993,
fourteen months later, the Supreme Court rejected the appeal.
15. On April 7 and
June 15, 1992, respectively, the examining magistrate and the Court of Appeals
rejected another request for release from prison.
Further requests were similarly denied on September 30 and December 11,
1992, and again on January 6 and February 25, 1993.
16. On December 27,
1993, the defendant presented a writ of habeas corpus.
17. On December 28,
1993, an examining magistrate disallowed the writ, based on the claimant's
criminal record and the fact that "he is legally held in custody where he
would be available for sentencing by the court since the
prerequisite conditions set forth in Article 3 of Law 23.098 are not
a review, this finding was upheld by the Federal Supreme Court on December 29,
19. On September 6,
1994, a further remedy of habeas corpus was presented on behalf of Mr. Giménez. It was denied that same day on the grounds that this had not
been the proper remedy to challenge a judicial proceeding or to question a
penal system whose failings "are public and notorious." On
September 7, 1994, the Court of Appeals upheld the lower court judge's ruling,
on the grounds that the event in dispute did not fall within any of the
hypothetical cases set forth in Article 3 of the habeas corpus law.
20. On December 1,
1994, Mr. Giménez was released on bail, by virtue of Article 379.5 of the
Code of Criminal Procedure. The
decision concluded that Giménez had served in pre-trial detention two-thirds
of his sentence, "in accordance to the system
established by Law 24,390".
PROCEEDINGS BEFORE THE COMMISSION
21. On November 17,
1993, the Commission received Mr. Giménez's complaint.
22. In a note dated
February 23, 1994, the Commission relayed the complaint in pertinent part to
the Government of Argentina, with the request that any relevant information by
the Government be sent to the Commission within 90 days.
23. On April 26,
1994, the Commission acknowledged receipt of the additional information
submitted by the petitioner.
24. In a note dated
May 12, 1994, the Government requested an extension in order to gather
information regarding the case. That
request was granted by the Commission in a note dated May 20, 1994.
25. In a note dated
May 26, 1994, the Government of Argentina requested another extension, and it
26. On June 9, 1994,
the Commission sent the Government of Argentina a note confirming the terms
stipulated in its May 20 note.
27. On June 2, 1994,
the Commission received the petitioner's additional information.
28. In notes dated
June 9 and June 27, 1994, the Government of Argentina submitted its
observations on the case, which were transmitted in pertinent part to the
29. In a note dated
August 15, 1994, the petitioner set forth his observations concerning the
Government's response. A note
dated September 28, 1994 transmitted
the pertinent parts to the Government.
30. In a note of
October 12, 1994, the Commission acknowledged receipt of the additional
information provided by the petitioner.
31. On October 26, the
Government presented its final observations regarding the case.
32. In a note dated
November 14, 1994, the Government's observations were transmitted in pertinent
part to the petitioner.
33. On November 21,
1994, the petitioner submitted additional
observations on the case, receipt of which was acknowledged in a note dated
November 29, 1994.
34. On February 23,
1995, the Commission sent both parties a letter putting itself at their
disposal in order to reach a friendly settlement of the case.
In a note dated March 21, 1995, the Government informed the Commission
that it was unable to negotiate a settlement.
POSITION OF THE PARTIES
35. In his original
petition, Mr. Giménez alleges that he has remained under arrest pending trial
for 49 months, and that there appears to be no possibility that the lower
court will arrive at a sentence in his case.
The extension of his preventive custody, according to Mr. Giménez,
constitutes an infringement of Article 7(5) of the American Convention and of
Article 379, paragraph 6 of the Code of Criminal Procedure.
This provision of Argentina's domestic law, he argues, presents a
maximum time frame or reasonable period of preventive custody which in his
case has been breached.
36. In his
presentation of July 14, 1994, Mr. Giménez broadened the scope of his
original petition, alleging that the prolongation of his incarceration in the
absence of a conviction violated Articles 7.3 and 8(2) of the Convention. Mr.
Giménez argues that his protracted custody had become arbitrary detention,
and that his right to the presumption of innocence has been infringed.
petitioner also argues that the State has violated his right to personal
integrity as set forth in Article 5 of the American Convention, given that the
conditions of his incarceration have resulted in psychological and moral
injury to him. Such injury, according to the plaintiff, also entails a
social dimension, in that his family has suffered from the worry produced by
his uncertain situation as well as from financial losses. The petitioner considers that the damage caused his family
constitutes a violation of Article 5.3 of the Convention, which states that
punishment shall not be extended to any person other than the criminal, as
read in conjunction with Article 17 of the Convention.
38. In addition, he
alleges a violation of Article 5.6 of the Convention, which stipulates that
punishments consisting of deprivation of liberty shall have as an essential
aim the reform and social readaptation of the prisoners; of Article 11,
paragraph 1, which speaks to the right to have one's personal honor respected
and dignity recognized; of Article 24 guaranteeing equality before the law;
and of Article 25.1 on the right to judicial protection.
39. In his written
response to the Government's observations, the petitioner contends that--given
the absence of a federal crime--the refusal of the Supreme Court of Justice to
admit the special remedy he had sought to oppose the Court of Appeals' finding
against his release from prison violates his right to be judged by a
competent, independent and impartial court, as well as his right to the
presumption of innocence.
40. He goes on to say
that the fact that a sentence was handed down by the lower court does not
change his status as an accused prisoner, since the sentence in question was
not a final judgment (not appealable) since an appeal had been presented but
had yet to be resolved. He adds
that, given the reservation expressed in the federal context pursuant to
Article 14 of Law 48, in the event that a sentence is determined at the appeal
level, the Supreme Court of Justice will still be required to rule on the
special remedy. Only then will his trial have reached its conclusion.
41. He maintains,
further, that the lower court's sentence convicted him for crimes that fell
outside the scope of the criminal accusation, thereby violating the principle
of "congruence which must exist between accusation and defense," as
well as Article 8 of the American Convention.
42. He goes on to say
that his trial has remained at a standstill for more than two years and six
months when the tally includes nonworking days, legal holidays and the
suspension of activities by civil servants in the judiciary.
The petitioner also adds the 14 months during which the original docket
remained at the Supreme Court of Justice, due to the appeals procedure he
himself had instituted. He
maintains that the original ought never have been sent.
Certified photocopies should have been submitted instead to avoid
interrupting the course of justice and to prevent the resulting delay, which
he termed "unwarranted and arbitrary."
43. As to the
application of Article 380 of the Code of Criminal Procedure in his case, the
petitioner's position is that the domestic law precept in question cannot be
invoked by the Argentine Government, pursuant to Article 27 of the Vienna
Convention on the Treaty Law, simply in order to justify a violation of
international law. The petitioner argues that the American Convention takes
precedence over Argentina's domestic law; and that, as of the date said
Convention entered into effect in the country's law, Article 380 automatically
ceased to apply. He goes on to
point out that application of the precept in question inflicts a twofold
stigma on the individual, since it deems him suspect and in addition spawns
the suspicion of future felonious conduct without any evidence that such
suspicion is justified.
Government understands that application of Article 379 Section 6 of the Code
of Criminal Procedure is not automatic. That
provision vests a power in the judge, for use at his or her discretion. It therefore follows, according to the Government, that the
tenor of Article 380 in that same source enables the judge to deny release on
bail when an objective assessment of the facts and the personal history of the
accused in essence permit the presumption that he or she will seek to evade
Government cites the criterion adopted by this Commission in its report on
case 10.037 (Annual Report of the Inter-American Commission on Human Rights
for 1988-1989, page 59). In that
report, the Commission stated that the provisions in question grant the judge
broad authority to order the release of the prisoner, or not to do so.
46. It considers that
the reasonable nature of the imprisonment--i.e., the proportionality which
should exist between a means and the end which it is hoped to achieve--should
be examined in each instance, pursuant to an inherent and specific context, in
the absence of any generally valid criteria for that purpose.
47. It understands
that a general ruling regarding the length of preventive imprisonment cannot
be set without taking into account the specific circumstances of each concrete
48. The Government
notes that it has taken specific steps to avoid prolonging the preventive
custody of the accused. To that
end, it reproduces part of the text of decrees 56/92 and 406/92, issued by the
Ministry of Justice, which instruct the representatives of the Attorney
General's Office to conduct a case-by-case study of the feasibility of a
request for release of persons held for trial in circumstances where the
necessary procedures have been unreasonably protracted.
The Government of Argentina invokes these norms to show that, in some
cases, custody pending trial ceases to be reasonable when two years have
elapsed while in others, this is not the case.
49. As criteria to
evaluate the time frame in question, the Government of Argentina proposes:
a) the actual length of such detention; b) the nature of the offense(s)
that have given rise to the proceedings; and c) the legal problems or
difficulties entailed in preparation of the case.
Government acknowledges that Mr. Giménez has been held in custody since
September 29, 1989 and that no difficulties have arisen in processing of the
case other than those to be expected in this type of procedure, given the
number of persons held for trial (five in this instance).
51. The Government
concludes by maintaining that there is no evidence of unreasonably protracted
detention in the case of Mr. Giménez. He
has been given procedural opportunities to apply for release from custody and
he has exercised them. The
requests have been denied, based on an appraisal of the considerations
set forth in Article 380 of the Code of Criminal Procedure--and, in
particular, on the personal history of the accused and on the fact that his
claim has lost merit, since the time which he has already served has been
taken into account and will be subtracted from the length of the penalty
imposed by the lower court's sentence.
claim meets the requirements of formal admissibility established in Article
46(1) of the Convention and Article 32 of the Regulations.
The Commission is competent to hear the case because it presents facts
that characterize violations of rights protected in the Convention, namely,
article 7 (right to a trial within a reasonable period of time or to be
released without prejudice to the continuation of the proceedings) and article
8 (judicial guarantees including the right to be presumed innocent during such
time as guilt has not been legally established), in relation to article 1(1).
54. An examination of
the petition shows that it is neither manifestly unfounded nor obviously
totally without merit. The
Government has argued that Mr. Giménez' request is inadmissible because the
claim of injury sustained by being held in custody pending trial has lost
merit, inasmuch as the verdict sentencing him to nine years in prison for
having been found guilty of various counts of robbery took into account the
time spent in detention as part of the time he is sentenced to serve.
Commission does not share that opinion because the complaint relates to the
period of time spent in prison pending trial.
The fact that an individual is subsequently released or convicted does
not vitiate the possible transgression of the reasonable length of time
contemplated in the Convention.
The petition is not pending before any other international
organization, nor does it replicate any petition that has already been
reviewed by the Commission.
The Commission considers that in the case of Mr. Giménez, the
exhaustion of remedies refers to the internal procedural remedies utilized to
secure an end to his being held in prison pending conviction. In the context of pre-trial detention, the presentation of
the request for conditional release followed by the denial thereof suffices to
substantiate the exhaustion of remedies.
After having examined the background details adduced in the trial
documents, the Commission concludes that Mr. Giménez has exhausted the
procedures established by Argentina's law to challenge the legality of his
As to the possibility of a friendly settlement provided for in Article 48(1)(f)
of the Convention and Article 45 of the Commission's Rules and Regulations,
the Commission has set itself at the disposal of the parties but an agreement
could not be reached.
case before us raises the following problems in interpreting the various
provisions of the Convention. First
is the question of establishing what the entitlement "to be tried within
a reasonable time" means in the context of Article 7(5) of the
Convention; and, in particular, whether in this case the prolongation of
detention has ceased to be reasonable. Another
question is the determination of whether prolonged incarceration without trial
beyond a reasonable time constitutes a violation of the presumption of
innocence guaranteed in Article 8(2). The
Commission must also consider whether the prolonged imprisonment of Mr. Giménez
also violated his right to a trial with a reasonable time as contemplated by
Article 8(1) of the Convention.
Relevant domestic law
Argentine courts have based their decisions rejecting the request for release
on various provisions of internal positive law.
to Article 366 of the Code of Criminal Procedure, preventive custody may be
ordered when the following requirements are met:
there is prima facie evidence of a crime; the accused has made a
statement during the preliminary examination, or is apprised of the charges
against him or her; and there exists a reasonable suspicion as to his or her
379 of the Code of Criminal Procedure establishes the conditions under which
an accused person can be released on bail.
In particular, paragraph 6 states that such
release must be
the period of preventive custody has
exceeded the term specified in Article 701, which may in no case be more than
701 of the Code of Criminal Procedure in turn provides that "All cases
must be completely terminated within the period of two years, not counting any
delays caused by statements of the parties, letters rogatory or requisitions,
the testimony of experts or other necessary procedures the duration of which
is not governed by action of the court."
The Government contends that the two-year period stipulated in Articles
379(6) and 701 provides the foundation for a "reasonable length of
time" which corresponds to the guarantees established in Article 7(5) of
the Convention. However, the
Government rejects the notion that these laws indicate that any period of
preventive detention beyond two years has exceeded a reasonable period of time
and therefore the application of Article 379(6) must be automatic.
Rather, the Government asserts that by using the word "may"
in Article 379, the Code of Criminal Procedure bestows upon the judge the
authority, but not the obligation, to release an accused from preventive
the Government argues that this interpretation of Article 379 is reinforced by
the provisions in Article 380 of the Code of Criminal Procedure.
Article 380 states:
In spite of provisions in the preceding article, a request for release
of the prisoner may be rejected when the objective assessment of the
characteristics of the act and the personal conditions of the accused could,
in essence, make it possible to assume that the above said prisoner will
attempt to evade justice. The
provisions in this article shall not restrict the application of subsections
2, 3, 4, and 5 of the preceding article.
65. To support its
argument, the Government also cites the Commission's decision in its Report
No. 17/89, which holds that "When vesting this power,
the legislator is appealing to the sound judgment of the judge.
In other words, what is involved is a regulated power, not an
obligation, and hence the release of the prisoner is something that is within
the discretionary powers of the judge."
the Government contends that in each case the definition of a "reasonable
length of time" must come from the harmonious consideration of Articles
379(6) and 380. Preventive
detention beyond two years may be "reasonable" under Argentine law
if so decided by the national judicial authority in accordance with Article
Commission considers that a "reasonable length of time" for
incarceration before conviction cannot be established in the abstract and thus
belies the Government's contention that the 2-year period stipulated in
Article 379(6) provides a criteria of reasonableness which corresponds to the
guarantees found in Article 7(5) of the Convention.
A period of pre-trial detention cannot be considered per se
"reasonable" simply because it is prescribed by law.
Rather, as the Government itself argued in defending its analysis of
Article 380, whether a period of detention exceeds a reasonable length of time
must be based on the "sound judgement of the judge," using those
criteria established by law.
to determine whether the use of pre-trial detention in the present case is
compatible or incompatible with the Convention, the Commission must determine
what constitutes a "reasonable length of time" for incarceration
without conviction under Article 7(5) of the Convention.
69. In its response to
petitioner's allegations, the Argentine government recognized, as did the
Commission in its Report 17/89,
that the concept of "reasonable time" in the Convention cannot be
defined with precision.
In this regard, the Commission has recognized that member states to the
Convention are not obligated to set a fixed period of time for incarceration
before conviction independent of the individual circumstances.
Since it is not possible to establish an abstract criteria for a
"reasonable length of time," what is reasonable must be analyzed in
light of the specific facts of each case.
Commission has always held that the determination of whether or not a
detention is unreasonable inevitably must be analyzed on a case by case basis.
However, this does not preclude the possibility of a norm that establishes a
general term limit beyond which a detention is considered prima facie
illegal no matter the crime charged or the complexity of the case.
This would be consonant with the principle of presumption of innocence
as well as all other rights associated with due process.
the Commission agrees with the government that article 701 of the Argentinean
Criminal Procedure Code need not imply an automatic release from pre-trial
incarceration, any detention that is prolonged beyond that period should be
deemed prima facie unlawful. This
follows because any norm that authorizes the release of a prisoner from jail
cannot be interpreted so as to allow the preventive detention to be prolonged
for a greater length of time than the procedural code deems reasonable for the
entire judicial procedure.
State's interest in resolving alleged criminal cases cannot breach the
reasonable restriction of the individual's fundamental rights.
This concern is evident in the Argentinean legislation which regulates
time limits for the criminal prosecution.
To this end, it is crucial to note that preventive detention applies
only in exceptional cases and its extension must be strictly scrutinized
especially when the duration exceeds the time limit stipulated by law for the
entire criminal procedure. Preventive
detention may be unreasonable without exceeding two years.
At the same time, incarceration without conviction may be reasonable,
even after the two-year period stipulated in Articles 379(6) and 701 has
73. As a result, since
this is an area that in the domestic law of Argentina is largely subject to
interpretation by the courts, it is up to the Commission to decide whether the
criteria used by the domestic courts are
"relevant and sufficient" to justify the length of the
of the length of incarceration without conviction: article 7(5)
7(5) of the Convention stipulates that:
Any person detained....shall be entitled to trial within a reasonable
period of time or to be released without prejudice to the continuation of the
75. To understand the
precise scope of this provision it is helpful to set it in context.
Article 7, which begins with an affirmation of the right of everyone to
liberty and security of person, specifies the situations and conditions in
which derogations from this principle may be allowed. It is in light of this presumption of liberty that national
courts, and then the Convention organs, must determine whether the detention
of an accused person prior to a final judgment has, at some stage, exceeded a
rationale behind this guarantee is that no person should be punished without a
prior trial which includes a charge, the opportunity to defend oneself, and a
sentence. All these stages must
be completed within a reasonable time. The
time limit is intended to protect the accused with respect to his or her
fundamental right to personal liberty, as well as the accused's personal
security against being the object of an unjustified procedural risk.
State must prove guilt within a reasonable period of time in order to ensure
and institutionalize confidence in the system's procedural fairness.
The statement of guilt or innocence is equally fair as long as due
process guarantees are respected. The fairness and impartiality of the
procedure are the ultimate ends to be achieved in a state governed by the rule
the principle of the rule of law that establishes the need for criminal
prosecution of all crimes by the State, cannot justify an unlimited length of
time to resolve the criminal matter. Otherwise,
there would be an implicit assumption that the State always prosecutes guilty
people and that thus the length of time taken to convict the accused is
irrelevant. By international standards, all persons accused of a criminal
offense must be considered innocent until proven guilty.
8(2) of the Convention, which guarantees the right to presumption of innocence
Every person accused of a criminal offense has the right to be presumed
innocent so long as his guilt has not been proven according to law...
80. In addition, the
risk of inverting the presumption of innocence increases with an unreasonably
prolonged pre-trial incarceration. The
guarantee of presumption of innocence becomes increasingly empty and
ultimately a mockery when pre-trial imprisonment is prolonged unreasonably,
since presumption notwithstanding, the severe penalty of deprivation of
liberty which is legally reserved for those who have been convicted, is being
visited upon someone who is, until and if convicted by the courts, innocent.
right to defense also guaranteed in the Convention under article 8(2)(f) is
threatened by lengthy incarceration without conviction because, in some cases,
it increases the defendant's difficulty in mounting a defense. With the
passing of time, the limits of acceptable risks that are calculated into the
defendant's ability to present evidence and counterarguments are enhanced.
The possibility to convene witnesses diminishes as well as the strength
of any counterarguments.
The prolonged imprisonment of Mr. Giménez was unreasonable
82. In the present
case, the Commission must analyze the Argentinean judicial authorities'
reasons for repeatedly denying Mr. Giménez' request for release from prison
to properly conclude whether the justifications for pre-trial incarceration
are "relevant and sufficient" such that the accused's detention is
"reasonable" under Article 7(5) of the Convention.
83. To this effect,
the Commission has developed a two-part analysis to determine whether an
accused's pre-trial incarceration violates Article 7(5) of the Convention.
First, the national judicial authorities must justify an accused's
preventive detention using relevant and sufficient criteria.
Second, where the Commission concludes that the findings of the
national judicial authorities are adequately "relevant and
sufficient" to justify continued detention, it must then examine whether
these authorities used "special diligence" in the conduct of the
proceedings so that the length of detention would not be unreasonable.
The Convention organs must determine whether the time that has elapsed,
for whatever reason, before judgment is passed on the accused has at some
stage exceeded a reasonable limit whereby imprisonment without conviction
imposes a greater sacrifice than could, in the circumstances of the case,
reasonably be expected of a person presumed innocent.
Thus, where continued detention ceases to be reasonable, either because
the justifications for incarceration are not "relevant or
sufficient," or the length of the judicial proceedings is unreasonable,
provisional release must be granted.
purpose of preventive detention is to ensure that the accused will not abscond
or otherwise interfere with the judicial investigation.
The Commission stresses that preventive detention is an exceptional
measure and only applies in cases where there exists a reasonable suspicion
that the accused will either evade justice or impede the preliminary
investigation by intimidating witnesses or otherwise destroying evidence.
Such a measure is necessarily exceptional because of the preeminent
right to personal liberty and the risk that pre-trial incarceration poses for
the right to presumption of innocence and due process guarantees, including
the right to defense.
85. In the present
case, the courts of Argentina based their refusal to grant the release of Mr.
Giménez on bail on the nature of the offense he is said to have committed; on
his criminal record; and on the prospect of severe
to those who sit in judgment, those criteria have led them to believe that if
Mr. Giménez were to be released on bail, he would manage to evade the law.
Relevant and sufficient Criteria
a. Danger of Absconding,
Seriousness of the Crime and the Potential Severity of the Sentence
the argument based on the seriousness of the crime and that of the severity of
the punishment can in principle be taken into account when the risk of the
detainee's evasion is examined. The
Commission nevertheless believes that since both arguments are inspired by
criteria of penal retribution, the use thereof to justify prolonged preventive
imprisonment has the effect of impairing the purpose of the preventive
measure, converting it, for all intents and purposes, into a substitute for
the punishment depriving the prisoner of his freedom.
The balance that must be struck between the general interest of society
in suppressing crime and the interest of the individual in seeing that his or
her fundamental rights are respected breaks down to the detriment of the
individual, upon whom a greater sacrifice is imposed.
the anticipation of severe punishment, after a lengthy period of detention has
elapsed, is an insufficient criterion for assessing the risk of the detainee's
evasion. The threat that the
future sentence represents to the person in prison is vitiated if detention
continues, while his or her perception that he or she has already served part
of the sentence is heightened.
Commission also notes that in such a case the State can perfectly well resort
to some other type of cautionary measure to ensure that the accused appears
for trial--measures which do not entail further restriction of his or her
personal freedom. Furthermore,
the Commission finds that the notion that there exists a sense of proportion
between the sentence and the pre-trial incarceration is actually a
justification for the anticipated punishment, and thus in violation of the
presumption of innocence guaranteed in the Convention.
the fact that pre-trial incarceration is a deprivation of liberty of a person
who still benefits from the presumption of innocence, it should be based
solely on the probability of the accused's abusing conditional liberty and
fleeing, and on whether conditional freedom of an accused is likely to result
in some significant risk. Preventive
detention should not, however, be based solely on the fact that a suspected
crime is deemed particularly socially objectionable.
Risk of repetition of offenses
reason adduced by the domestic courts for denying conditional release is Mr.
Giménez' criminal record. This
type of consideration is based on an evaluation of the threat the individual
may present to society: on how likely it is that his conduct may jeopardize
the legal rights of the victim of his crime or those of society.
Commission believes that criteria which focus solely on societal interests
cannot be allowed to take precedence in evaluating the future conduct of the
accused. Given the fact that pre-trial incarceration is a deprivation of
liberty of a person who still benefits from the presumption of innocence, it
should be based solely on the probability of the accused's abusing conditional
liberty and fleeing and on whether conditional freedom of an accused is likely
to result in some significant risk.
interest of the individual who has committed a felony in becoming
rehabilitated and returning to his or her place in society must also be taken
into account. To that end, weight
should be given to such elements as the individual's subsequent conduct after
facing the consequences of his crime; the will or desire to make reparation
for the damage caused by the offense; the interest of the accused in adopting
socially acceptable rules of conduct; his or her social and family
environment; and his or her chances of rehabilitation.
the length of prison time served, the courts should reach a fair balance of
those criteria which address the particular interests of the individual rather
than those which serve the public order of society at large, when the time
comes to decide whether the accused should be released from prison. In the
case sub examine, the Commission considers that there is no proof that
the type of crime for which Mr. Giménez is charged has seriously affected
Commission thus concludes that, for the reasons stated, the arguments adduced
by the domestic courts to continue holding Mr. Giménez in pre-trial
incarceration are neither sufficient nor reasonable.
decision of October 6, 1989 denying Mr. Gimenez' initial request for release
from pre-trial incarceration was based entirely on the fact that he had a
history of criminal convictions. These
previous convictions of December 1977, December 1978, and September 1980
entailed conditional release which had subsequently been revoked.
In its 1989 decision denying Mr. Giménez conditional release, the
court relied on the fact that the conditionality of the two 1977 and 1978
convictions had been subsequently revoked as a justification for holding him
in pre-trial incarceration for
the wholly unrelated case in 1989. The
Commission notes that the conditionality of his two earlier convictions could
in no way have extended to 1989.
presumption of innocence guaranteed in the Convention is a principle that
constructs a presumption in favor of an individual accused of a crime
according to which he or she is considered innocent until criminal
responsibility is established in the case before the courts.
decision to retain Mr. Giménez in prison without sentence as a result of his
earlier convictions contravenes this principle, as well as the concept in
criminal law of rehabilitation. Any
reliance on these previous convictions to decide a person's guilt or retain
them in preventive detention is, in essence, a perpetuation of the punishment.
Once the person convicted has completed the sentence or the period of
conditionality has lapsed, then the person is returned to his or her full
the Commission deems that the grounds for keeping Mr. Giménez in preventive
detention was unlawful because it directly contravened the principle of
presumption of innocence guaranteed in the Convention.
Mr. Gimenez's criminal record is not relevant and sufficient criteria
which justifies the extension of pre-trial imprisonment for a period of five
99. As discussed
earlier, where the Commission finds that the reasons given by the national
judicial authorities are relevant and sufficient to justify continued
detention, it must turn to whether these authorities use "special
diligence" in the conduct of the proceedings so that the length of
detention would not be unreasonable.
In the present case, in addition to finding the reasons for prolonging
Mr. Giménez's pre-trial detention insufficient, the Commission considers that
the judicial authorities have not acted with the special diligence owed a
person in prison pending trial.
Commission believes that in keeping with Articles 7(5) and 8(2) of the
Convention, an accused person in detention is entitled to have his case given
priority and expedited by the proper authorities and that this can be
accomplished without hindering the judicial authorities, prosecution and
defense from carrying out their task with due care.
101. In cases of prima facie
unacceptable duration it rests upon the respondent government to adduce specific
reasons for the delay. Such reasons
will be subject to the Commission's closest scrutiny.
Commission moves on to consider whether the domestic authorities have conducted
the internal proceedings with the necessary due diligence to prevent the
pre-trial incarceration from becoming unreasonable.
For the Commission's purposes, such diligence is required of States
pursuant to Articles 7(5) and 8(1) of the Convention, a joint reading of which
provides grounds for concluding that the person accused or detained is entitled
to have his case decided expeditiously and with priority by the national
103. In determining whether special
diligence was used by the investigating authorities, the complexity and scope of
the case, in addition to the conduct of the accused, must be taken into account.
However, an accused who refuses to cooperate with an investigation or who
uses available remedies is merely exercising his or her legal right.
Therefore, delay in the proceedings should not be attributed to a
detainee unless the system is intentionally abused for the purpose of delaying
The Commission distinguishes between the petitioner's reliance on
procedural rights, failure to cooperate in the investigation or trial, and
The Government did not articulate any behavior of the petitioner that
indicates anything other than his reliance and use of his procedural rights.
104. As to the complexity of the
case, the Government has recognized in its response to the claim that
"there have been no difficulties in the handling of the case other than
those usually encountered in this type of procedure, given the number of persons
105. In regard to the conduct of the
accused, the Commission considers that sufficient elements have not been
provided that indicate bad faith or obstructive designs on his part.
It has been established that, in respect to one of his requests to be
released, the accused resorted to a special remedy before the Supreme Court.
The Commission finds no reason to object to such conduct, since the
remedy seems to have been lodged in good faith.
On the other hand, the fact that the original file was in the hands of
the Supreme Court for more than 14 months during which the court of original
jurisdiction was unable to advance in its handling of the case constitutes a
dilatory act which can be attributed to the authorities in the procedure,
inasmuch as certified copies or photocopies could have been sent to the high
court instead of the original file to avoid slowing the procedure to a halt.
106. In the overall evaluation of
the diligence displayed by the domestic courts, the Commission concurs with the
view expressed by Argentina's Penal Prosecutor in his recommendation 49/PP/93,
dated December 17, 1993.
Issued in response to a query from the petitioner on November 30, 1993,
the Attorney General's review of the case:
a. Found that the length of
time for which Mr. Giménez had been held in custody pending trial to be
excessive and unreasonable in the light on Argentina's constitutional principles
and international commitments.
b. Observed that the Attorney
General's Office had neither represented this anomaly nor complied with the
instruction to request that Mr. Giménez be released from prison.
c. Considered that the
prolongation of pre-trial detention could deprive Mr. Giménez of the benefits
of progressive adjustment to the penitentiary system, in the event that he is
sentenced to prison.
d. Notified the Ministry of
Justice of the anomolously prolonged period of pre-trial detention to which
Mr. Giménez had been subjected, and recommended that the Minister of
that department instruct the respective agent to request that Mr. Giménez be
released from prison.
instructions to the Attorney General's Office cited in the above opinion are
those appearing in resolutions 56/92
and 406/92 of the Ministry of Justice. They
instruct the representatives of the Public Prosecutor's Department, through the
National Attorney General's Office, to examine on a case by case the basis for
releasing from prison persons who have been accused and are awaiting trial; and
to seek real and concrete enforcement of the American Convention on Human Rights
(Articles 7(5) and 8(1)), appearing before the respective courts and requesting
the release from prison and the issue of such orders for release as may be
necessary, due primarily to the unreasonably prolonged duration of the
Commission thus concludes that the national authorities have failed to act with
sufficient due diligence to avoid the prolongation of Mr. Giménez's remand in
custody. The fact that the accused has been uninterruptedly deprived
of his freedom throughout the course of the procedure constitutes a violation of
the right to be tried within a reasonable time as provided by Article 7(5) of
the American Convention.
The right to trial within a reasonable time: Article 8(1)
7(5) and 8(1) are specifically designed to ensure that the charges which the
penal procedure places on the individual are not unremittingly protracted and
produce permanent harm.
they are inspired by the same principle, the two provisions do not coincide in
their references to what constitutes a reasonable period.
A delay that constitutes a violation of the provision in Article 7(5) may
be justified pursuant to Article 8(1). The
specificity of Article 7(5) stems from the fact that an individual who is
accused and held in custody is entitled to have his or her case resolved on a
priority basis and conducted with diligence.
The State's ability to apply coercive measures such as pre-trial
detention is one of the decisive reasons which justify the priority treatment
that should be given to procedures involving the deprivation of liberty for the
accused. The concept of reasonable
time in Article 7 and in Article 8 differs in that Article 7 establishes the
possibility for an individual to be released without prejudice to continuation
of the proceedings. The time
established for detention is necessarily much shorter than the period allotted
for the entire trial.
reasonable length of time for the proceedings as allowed by Article 8 should be
measured according to a series of factors such as the complexity of the case,
the behavior of the accused, and the diligence of the competent authorities in
their conduct of the proceedings. Unlike
the right established in Article 7(5), the considerations involved in
determining the reasonable length of the procedure are more flexible. The reason is obvious: in the case of Article 7(5), holding
the accused in pre-trial incarceration affects his or her right to personal
the absence of complexity in the case sub judice and the judicial
authorities' lack of diligence in duly disposing of the case, the Commission
finds that the prolongation of the procedure for more than five years without
handing down a sentence constitutes a violation of the right to be heard with
due guarantees and within a reasonable time established in Article 8(1).
of the presumption of innocence as a result of a prolonged
prolonged imprisonment without conviction, with its natural consequence of
undefined and continuous suspicion of an individual, constitutes a violation of
the principle of presumed innocence set forth in Article 8(2) of the American
Convention. It should nevertheless
be noted that the existence of a growing
suspicion of a person in the course of the criminal proceeding is not per se
contrary to the principle of presumption of innocence.
Neither is the fact that such mounting suspicion justifies the adoption
of safeguards--such as pre-trial incarceration--in
regard to the suspect's person.
8(2) requires the States to compile material incriminating the person accused of
a crime in order to "establish that person's guilt."
The substantiation of guilt calls for the formulation of a judgment
establishing blame in a final sentence. If
the use of that procedure fails to assign blame within a reasonable length of
time and the State is able to justify further holding of the accused in
pre-trial incarceration, based on the suspicion of guilt, then it is essentially
substituting pre-trial detention for the punishment.
Preventive custody thus loses its purpose as an instrument to serve the
interests of sound administration of justice, and the means becomes the end. In
the instant case the prolonged imprisonment without conviction of Mr. Giménez
is in violation of his right, guaranteed under Article 8(2), to be presumed
GOVERNMENT'S OBSERVATIONS TO THE ARTICLE 50 REPORT
September 14, 1995, during its 90th period of sessions, the Commission approved
Report 18/95, pursuant to Article 50 of the Convention.
The report was transmitted with confidential status to the Government,
according to the second paragraph of the above mentioned Article.
Government of Argentina forwarded its observations to the report on December 7,
the report's resolutions, the Government reminded the Commission that Law
24,390, which is in effect in Argentina, provides that every day spent in
preventive detention without trial, after a period varying from two to three and
a half years, shall be counted double once the sentence is handed down, to
calculate the time served.
Government has also informed that the National Criminal Court of Appeals (Cámara
Nacional de Casación Penal) has established a jurisprudence by which the above
mentioned law may be applied to convicted criminals with final sentences, by
virtue of the principle of retroactivity of the law most favorable to the
precedent was confirmed by the Supreme Court of Justice of the Nation, which
ruled to reject an extraordinary appeal (recurso extraordinario) filed to quash
a decision of the National Criminal Court of Appeals applying the doctrine to a
the Argentine Government asserts that the jurisprudence is applicable to Case
11,245 in the sense that was indicated by the Commission's recommendations.
CONCLUSIONS AND RESOLUTIONS
Inter-American Commission on Human Rights, taking into account the
considerations set forth in the instant report, as well as the observations
presented by the Government of Argentina with regard to Preliminary Report
18/95, has reached the following conclusions:
legal situation of the petitioner improved significantly after his release from
prison, which occurred subsequent to the initiation of the Commission's
proceedings in his case. Mr. Giménez
remains free pending the final result of his trial.
Commission considers that the new jurisprudence mentioned by the Government in
its observations constitutes a positive advance toward compliance with the
guarantees established in the Convention, and analyzed in the instant case with
respect to Mr. Jorge A. Giménez.
retroactive application of Law 24,390 opens the possibility to benefit a
considerable amount of people who have been convicted after a lengthy preventive
detention, who have therefore suffered a violation of their rights guaranteed by
Articles 7(5), 8(1) and 8(2) of the American Convention on Human Rights.
precedent conclusions notwithstanding, in the particular case of Mr. Giménez,
the benefit of sentence reduction did not materialize within the period of time
established by the Commission for compliance with the recommendations of Report
Argentine State violated Mr. Giménez' right to personal liberty, in particular
Article 7(5), the right of a detained person to a trial within a reasonable time
or to be released without prejudice to the continuation of the proceedings;
Article 8(1), the right to a hearing with due guarantees and within a reasonable
time, as well as 8(2), the right to be presumed innocent.
on these conclusions,
THE INTER-AMERICAN COMMISSION
ON HUMAN RIGHTS,
1. To denounce the
prolonged incarceration without trial of Mr. Giménez as a violation of the
American Convention on Human Rights.
2. To commend the Argentine
Government for the significant progress represented by the approval of a law
that establishes limits to the duration of pre-trial detention, consistent with
the standards of the American Convention which guarantee the right to personal
3. To recommend to the
Argentine Government that this report be taken into consideration in all cases
of prolonged pre-trial detention, so as to ensure that the standards of the
Convention are complied with, and where applicable, the necessary steps be taken
so that prisoners may be released pending sentence.
4. To publish this
report in the Annual report to the General Assembly.
(*) Commission member Dr. Oscar Luján Fappiano abstained from participating in the consideration and voting on this report, in accordance to Article 19 of the Regulations of the Commission.
1. The length of preventive detention shall not exceed two years.
However, when the number of crimes the defendant is charged with, or the
evident complexity of the cases have impeded the finalization of the
proceedings in the aforementioned deadline, this may be extended one more
year by judicial decision, which shall be immediately notified to the
corresponding court of appeals for appropriate control.
2. The above mentioned deadlines shall be extended six more months in
the case that they expire after a conviction which is not final.
7. Once the two-year deadline mentioned in Article 1 has expired,
every day in preventive detention shall be counted as two days of conviction
or one of reclusion.
1. The existence of a crime is
substantiated by inconclusive evidence at least;
2. The detainee has given--or
has refused to give--a statement during the preliminary examination, and has
been apprised of the reason for his imprisonment; and
3. There are sufficient grounds,
in the opinion of the judge, for believing that the defendant has committed
When the conditions cited in items 1 and 3 have been found without
merit, the judge shall officially rescind the order for preventive custody.
(This viewpoint is shared by the European Court of Human Rights.
In Stogmuller, The European Court held that the concept of
"reasonable time" in Article 5(3) of the European Convention
cannot be translated into a "fixed number of days, weeks, months or
years, or into various periods depending on the seriousness of the
¶4, p. 40.)
 In this
regard the modern tendency is towards establishing objective time limits.
See for example the German Procedural Code which establishes a maximum
period of 6 months for preventive detention.
The Spanish Constitution (1978) stipulates that the laws must
establish a limit for preventive detention.
Eur. Court H.R., Stogmuller Case, judgement of 10 November 1969,
Series A, No. 9, ¶1, p. 30; see also Eur. Court H.R., Neumeister
Case, judgement of 27 June 1968, Series A, No. 8, ¶1, p.23; Eur. Court
H.R., Wemhoff Case, judgement of 27 June 1968, Series A, No. 7, ¶1,
 To this
effect, See the European jurisprudence in Clooth, ¶36, p.14.
Also in this connection, the European Court has established, regarding
article 5(3) of the European Convention on Human Rights, that determination
of whether preventive detention went beyond a "reasonable time"
must be based on the reasons furnished by the national judicial authorities
for detention and those undisputed facts put forth by the accused
contradicting the judgement of the authorities See Stogmuller,
¶3, p.39. Defending this need to review domestic judicial rulings, the
European Court stated:
the examination of the observance of Article 5, paragraph (3), of the
Convention would be deprived of all meaning if the Court was (continue)
(Continuation) prevented from assessing freely, on the
basis of the factors determined by the domestic courts and of the true facts
mentioned by the Applicant in
his applications and appeals, whether the prolongation of the detention was
reasonable within the meaning of Article 5, paragraph 3.
In these circumstances, the Court could not conclude that there had
been any breach of the obligations imposed by Article 5(3) unless the length
of Wemhoff's provisional detention.....had been due either (a) to the
slowness of the investigation.....(b) to the lapse of time which occurred
either between the closing of the investigation and the preferment of the
indictment....or between then and the opening of the trial....or finally (c)
to the length of the trial. It
cannot be doubted that, even when an accused person is reasonably detained
during these various periods for reasons of public interest, there may be a
violation of Article 5(3) if, for whatever cause, the proceedings continue
for considerable length of time.
 In this
regard, the European Court, in Toth, held that although the case was
complex and the applicant filed many appeals, the length of the proceedings
was not directly attributable to these factors.
Rather, the proceedings were severely delayed by procedural rules of
the Austrian Courts which had the effect of suspending investigation on
various occasions. The European Court noted that procedures that created
such delays in an applicant's release "can hardly be reconciled with
the importance attached to the right of liberty" secured under the
 The office
of Penal Prosecutor was created pursuant to Decree 1598/93 of July 29, 1993,
which calls for the holder of that post to be a civil servant charged with
ensuring due protection of the human rights of persons placed within the
Federal Penitentiary System.