223
unreasonable, unpredictable, or disproportionate.
Thus, the arbitrariness mentioned in Article
7(3) of the Convention has its own legal content, which it is only necessary to analyze in the case of
224
Nevertheless, the domestic law, the applicable procedure,
detentions that are considered legal.
and the corresponding general principles, whether express or implicit, must also be compatible with
225
Thus, the concept of “arbitrariness” should not be equated to “contrary to the
the Convention.
law,” but should be interpreted more broadly in order to include elements of impropriety, injustice
226
and unpredictability.
128. Meanwhile, protection of the home is established in Article 11 of the Convention. The Court
has established that the protection of privacy, family life, and the home entails the recognition that
a personal sphere exists that must be exempt from and immune to abusive or arbitrary interference
or attacks from third parties or from public authorities. Thus, the home, and private and family life
are intrinsically connected, because the home becomes a space in which private and family life can
227
be developed freely.
129. Article 2 of the Peruvian Constitution in force at the time of the facts stipulates that
everyone has the right:
[…]
7. To the inviolability of the home. No one may enter it, or conduct investigations or searches without the
authorization of the person who lives there or by court order, except in the case of flagrante delicto or
imminent danger of its perpetration. The exceptions based on hygiene or grave risk are regulated by law.
[…]
9. To choose freely the place of residence; to move about national territory and leave and enter it, with the
exception of restrictions for reasons of hygiene.
Not to be repatriated or separated from his place of residence, unless this is by court order or application of
the immigration laws.
10. To assemble peacefully, without weapons. Meetings in private places or places open to the public do not
require prior notice. Those held in public spaces and streets require advising the authorities previously, who
may only prohibit them for proven reasons of public safety or hygiene.
[…]
20. To personal liberty and safety.
Consequently:
[…]
b) No form of restriction of personal liberty is permitted, except in the cases established by law. […]
g) No one may be detained unless it is by a written and reasoned order of the judge or by the police
authorities in flagrante delicto. In any case, the detainee must be brought before the corresponding court
within 24 hours or based on distance.
223
Cf. Case of Gangaram Panday v. Suriname. Merits, reparations and costs. Judgment of January 21, 1994. Series C No.
16, para. 47, and Case of Nadege Dorzema et al. v. Dominican Republic, supra, para. 133.
224
Cf. Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador, supra, paras. 93 and 96, and Case of Bayarri v. Argentina,
supra, para. 62.
225
Cf. Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador, supra, para. 91, and Case of Nadege Dorzema et al. v.
Dominican Republic, supra, para. 133.
226
Cf. Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador, supra, para. 92, and Case of Nadege Dorzema et al. v.
Dominican Republic, supra, para. 133.
227
Cf. Case of the Ituango Massacres v. Colombia, supra, paras. 193 and 197, and Case of the Barrios Family v.
Venezuela, supra, para. 140.
41
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