(+) Has now been released

          3.       As of the date of the present report, twelve of the claimants listed have been set free.  The principal cause of their release is application of the computation method established in Law 24,390, which has been in effect since November of 1994.  Articles 1, 2 and 7 of that law are transcribed below:

          1.       The term of preventive prison may not exceed two years.  When the number of offenses attributed to the accused or the evident complexity of the cases have made it impossible to conclude the proceedings within the term cited, however, an additional year's time may be granted for just cause, and the corresponding court of appeals must be apprised thereof immediately for purposes of the proper control.

          2.       The terms established in the preceding article shall be extended for an additional six months when they have been met pursuant to a sentence of guilt that has not been confirmed.

          7.       When the two year term established in Article 1 has elapsed, each day of preventive detention will be counted as two days' of imprisonment or one day of hard labor while in prison.

          4.       Under the terms of the last-cited article,  persons who have been tried and are being held in prolonged preventive detention are given the possibility of release by virtue of having served the term stipulated in the sentence condemning them to prison.

          5.       On July 29, 1996, the Government sent updated information regarding the procedural status of the claimants, including the following statement:

          ...In most of the cases involved, grievances resulting from prolonged preventive detention are no longer relevant, since the competent tribunals have ruled on substantive questions--in most cases, having satisfied the second petition--and the duration of preventive detention has been computed to tally with the length of time required by the sentence imposed.

          6.       In the same missive, the Government asked the Commission for closure of the cases at issue here, on the grounds that any possible grievances which may have been presented have been given suitable treatment and reparation.

            II.        GENERAL CONSIDERATIONS

          7.       The legal situation of the individual in preventive detention is highly imprecise:  there is an aura of suspicion against that person, although it has not yet been possible to establish his or her guilt.  Persons in custody under such circumstances usually suffer greatly as a result of the loss of income and forced separation from their families and communities.  Emphasis should also be placed on the psychological and emotional impact to which they are exposed so long as that situation persists.  In this context, the seriousness implicit in preventive detention can be appreciated, as can the importance of imbuing such action with the greatest possible legal guarantees in order to prevent any abuse of that instrument.

          8.       Preventive detention constitutes a serious problem in various member countries of the Organization of American States.  In the specific case of Argentina, excessive use of this procedural mechanism, coupled with the delays experienced in the country's judicial system, has meant that more than 50% of the prison population has been deprived of freedom without being sentenced.[2]

          9.       In the cases cited above, the petitioners claim that preventive detention and the excessive delays entailed in their criminal proceedings constitute a violation of the right to personal freedom as set forth in Article 7.5 of the American Convention, the text of which is quoted below:

          Any person detained shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to be released without prejudice to the continuation of the proceedings.  His release may be subject to guarantees to ensure his appearance for trial.

          10.     Moreover, the right to be released from preventive detention after a certain amount of time has elapsed is guaranteed by Article 8.2 of the American Convention, which provides that:

          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.

          11.     In order to ensure effective judicial oversight of the detention, the competent court must be quickly apprised of the persons who are held in confinement.  One of the purposes of such action is to protect the well-being of the persons detained and to avoid any violation of their rights.  The Inter-American Commission on Human Rights has determined that, unless such detention is reported to the court, or the court is so advised after an appreciable length of time has elapsed from the time the subject has been deprived of his freedom, the rights of the person in custody are not being protected and the detention infringes that person's right to due process. [3]

            A.   Duration of Preventive Detention

          12.     The right to the presumption of innocence requires that the duration of preventive detention not exceed the reasonable period of time cited in Article 7.5.  Otherwise, such imprisonment takes on the nature of premature punishment, and thus constitutes a violation of Article 8.2 of the American Convention.

          13.     The origin of the term established in Article 1 of Law 24.390 is regulated in the Argentine Code of Criminal Procedures, in effect up to September 1992.  Article 379 of that Law--which cites the cases in which the judge may order the release of the accused--contains the following text in Section 6:

          When the time of confinement or preventive detention has exceeded the period established in Article 701, which shall in no case be longer than two years...

          14.     Article 701 of the Code provides that all cases must be totally concluded within the two-year period, without counting "the delays caused by activities of the parties, the processing of warrants or letters rogatory, the conduct of services of experts or any other procedures which may be necessary, the duration of which is not regulated by the action of the court."

          15.     In its responses to the cases presented to the Commission--action on almost all of which began prior to the enactment of Law 24,390--the Government of Argentina stated that the concept of "a reasonable time" established in the American Convention could not result in automatic release of all accused parties at the end of the two year period set forth in the Code of Procedures.  The argument utilized by the Government was to the effect that the persons in custody might abuse the procedural mechanisms available until the period stipulated in the law had elapsed, without permitting the judiciary to evaluate the merits for granting such release.

          16.     Prior to the enactment of Law 24,390, the system in effect allowed the judge to grant a release from prison pursuant to the criteria of sound judgment.  That power was complemented by the provisions of Article 380 of the Code, which are the following:

          Irrespective of the contents of the preceding article, the release from prison may be denied when an objective assessment of the details of the presumed offense and the personal characteristics of the accused provide grounds for a properly founded presumption that he will attempt to escape from the action of justice.

          17.     Article One of the Law on the Duration of Preventive Detention expressly limits the extension of the two-year period by requiring that this must be the result of a duly justified decision "of which the corresponding appeals court must be notified immediately to ensure that the appropriate control may be exercised."  In addition, the same law empowers the Attorney General's Office (Ministerio Público) to object to the release of the accused in the event that the defense has employed "manifestly dilatory tactics"; this question must be resolved by the court within five days (Article 3).

            B.        Definition of a Reasonable Period of Detention

          18.     The Commission considers that a reasonable length of time for preventive detention cannot be established in the abstract and, accordingly, the period of two years established by Article 379.6 of the Code of Procedures and in Law 24,390 does not correspond precisely to the guarantee set forth in Article 7.5 of the American Convention.  The duration of preventive detention in that document cannot be deemed reasonable solely because it is the term established by the law.  The Commission concurs with the position of the Argentine Government to the effect that reasonability must be founded on prudent legal judgment.

          19.     It is up to the court hearing the case to determine whether the term in question is reasonable.  In principle, it is incumbent upon the legal authority to make sure that the preventive detention period to which an accused person is subjected does not exceed a reasonable length of time.  To that end, all of the relevant factors must be examined to determine whether there is a genuine need to maintain such confinement, and to express that dictum clearly in its decisions regarding the release of the accused.  The effectiveness of legal guarantees should be heightened in direct proportion to the growing length of time spent in preventive detention.

          20.     In that context, it is fitting to note the decision adopted by the European Court of Human Rights relative to Article 5.3 of the European Convention:  namely, that determination of a reasonable period of preventive detention must be based on the reasons adduced by the national legal authorities for such detention and on the undisputed facts presented by the accused parties to overturn the decision of those authorities.

          21.     The European Court issued the following statement in regard to the Stogmuller case:[4]

          ... an examination of the observance of Article 5, paragraph 3 of the Convention would be meaningless if the Court were unable to decide freely, and on the basis of the factors presented in the petitions and appeals, whether the prolonged period of detention has been reasonable in accordance with the sense of that Article...

          22.     Following this line of thought, the information provided by the national legal authorities should be examined by the Commission in each case if it is to reach the right conclusion regarding the relevance and adequacy of the arguments justifying preventive detention.  This will make it possible to decide whether or not there has been a violation of Article 7.5 of the American Convention.

            III.      ANALYSIS

          23.     The Commission has examined two factors to determine whether preventive detention in a specific case constitutes a violation of the right to personal freedom and the judicial guarantees set forth in the American Convention.

          24.     In the first place, the national legal authorities must justify the measure cited pursuant to one of the criteria established by the Commission, which will be scrutinized in the present report.  In the second place, when the Commission decides that such justification exists, it must proceed to ascertain whether those authorities have exercised the requisite diligence in discharging the respective duties in order to ensure that the duration of such confinement is not unreasonable.

          25.     The Commission has reviewed its own jurisprudence and that of the international human rights organizations to establish the legitimate reasons that could justify preventive detention of an individual over a prolonged period.  The Commission nevertheless firmly believes that the universal principles of presumed innocence and respect for the right to physical liberty should be taken into consideration in each case.

            A.        Justifications

            i.          The presumption that the accused has committed an offense

          26.     The Commission considers that the presumption of an individual's guilt is not only an important element but a sine qua non condition for continuing the restraint of freedom measure.  Article 366 of the Code of Penal Procedures provides that there should exist a reasonable suspicion of the subject's guilt in order for the judge to order preventive detention of that person.

          27.     Such suspicion alone, however, does not suffice to justify the  continued deprivation of the individual's freedom.  The magistrates in each case must produce additional grounds to warrant such detention after a certain length of time has elapsed.

            ii.         Danger of flight

          28.     The seriousness of the offense and the possible severity of the punishment are two factors that must be taken into account in weighing the possibility that the accused might attempt to flee the action of justice.  But these factors also are not sufficient grounds to justify the continuation of preventive detention after the passage of a certain length of time.  In addition, the danger that the subject may escape or hide should be considered to diminish as the duration of detention lengthens, inasmuch as that term will be computed to ensure that the accused serves the time stipulated in the sentence.

          29.     The possibility that the accused may evade the imposition of justice should be examined in light of various elements. They include the moral values demonstrated by the subject; his occupation; the assets he owns; family ties; and any other considerations that would keep him from leaving the country, in addition to the possibility of a prolonged sentence.

          30.     As a result, unless the judges hearing the case can show that there is sufficient evidence of a possible attempt at flight or hiding, preventive detention is not justified.

          31.     Moreover, the Commission observes that if this is the only reason for continuing the measure restricting freedom, the judicial authorities may request the necessary measures to ensure that the accused will appear before the court, such as bond or in extreme cases, even the prohibition of leaving the country.  In such cases, bond may be set at a level that will suffice to dissuade the accused from fleeing the country or avoiding the action of justice.

            iii.        The risk that new offenses may be committed

          32.     When the legal authorities assess the danger of a recidivistic incident or the commission of a new offense by the accused, they must take into account the seriousness of that act.  In order to justify preventive detention, however, the danger of a second offense must be real and it must take into account the personal history as well as the professional evaluation of the personality and character of the accused.  To that end, it is particularly important to determine, among other elements, whether the subject has ever