Lawyer finally out of jail targets unfair preventative detention

A lawyer who is facing a complex criminal charge has begun a campaign against Costa Rica’s practice of preventative detention. He says the way that type of imprisonment here is practiced violates the constitution and international norms.

The lawyer, Arcelio Hernández, said Sunday that he has filed a claim with the Interamerican Commission on Human Rights. He, himself, got out of jail Thursday night after nearly 11 months awaiting trial.

Hernández faces a charge of fraudulent administration relating to the handling of funds in a company he heads. The money was to be used by investors to purchase a Guanacaste hotel in 2010. Trial is set for Sept. 17, although the date may be changed, Hernández said.

In a telephone interview he stressed that the case relates to business practices and not to his work as a lawyer. He said he still is licensed and current with the Colegio de Abogados.

His complaint about pretrial detention is something of interest to foreign expats who frequently are jailed for fear they will flee the country despite the years they may have spent in Costa Rica.

Hernández maintains his innocence, but his case against pretrial detention does not hinge on the specifics of the criminal case.

The lawyer said that Costa Rica is not observing the presumption of innocence required by the Constitution when it puts suspects in prison indiscriminately. He also said that he was waiting since May 25 for his trial. That is a violation of the Constitution, too, which requires a speedy trial.  “justicia pronta y cumplida,” he said in an email. A judge in Puntarenas, Guillermo Hernández, agreed and issued the order that freed the lawyer.

In addition, the lawyer cites a 2009 Interamerican Court of Human Rights decision against the government of Uruguay that is similar to his situation. In that case, the commission requested the release of two men and said that the country should reform its pretrial system.

Hernandez, who is arguing his criminal case himself, carried his claim of excessive imprisonment to the Sala IV constitutional court earlier this year. But only one magistrate agreed with him. He notes that the time he has been in jail is close to the minimum sentence for the crime with which he is charged.

The lawyer also said that the pretrial terms interfere with the objectivity of trial courts when they find a suspect guilty and give a sentence. Hernández said the trial court is likely to try to justify the time the suspect was in pretrial detention in issuing the final sentence.

The judiciary might have jailed Hernández because he went to Europe as his accusers were making their complaint. He said he, his wife and 5-year-old son spent time in Spain because they were concerned about threats that had been made against him.

He emphasized that he returned voluntarily and that there were no warrants out for him when he left.

The lawyer also was the subject of an incorrect news story in El Diario Extra. The newspaper called him the Spanish equivalent of a fake lawyer when he returned from Spain and was arrested. An A.M. Costa Rica news story about the same time tried to set the record straight because Hernández has done legal work for the newspaper’s parent corporation and he was known to editors as a full member of the Colegio de Abogados.

He also has advertised in the newspaper and has written articles about legal issues, including some from his jail cell.

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