33
paragraph: “[e]very person has the right to personal liberty and security.” The specific one is
composed of a series of guarantees that protect the right not to be deprived of liberty
unlawfully (article 7(2)) or in an arbitrary manner (article 7(3)), to be informed of the reasons
for the detention and the charges brought against him (article 7(4)), to judicial control of the
deprivation of liberty (article 7(5)) and to contest the lawfulness of the arrest (article 7(6)). 121
Any violation of subparagraphs 2 to 7 of Article 7 of the Convention necessarily entails the
violation of Article 7(1).122
115. Next, in accordance with its decision on the preliminary objection ratione temporis
(supra par. 28), the Court will now examine the alleged violations of article 7 of the American
Convention regarding the amount of time the alleged victims were held in pretrial detention
between the date Argentina recognized the jurisdiction of the Court (September 5, 1984) and
the date each one of the accused was released (March, July or August, 1987).
i)
Unlawful and arbitrary nature of the arrest and regular review of the pretrial
detention
116. Article 7(2) of the American Convention states, “[n]o one shall be deprived of his
physical liberty except for the reasons and under the conditions established beforehand by
the constitution of the State Party concerned or by a law established pursuant thereto.” This
Court has held that a State’s constitution, as well as the laws “established pursuant thereto,”
can be examined to determine whether they are compatible with article 7(2) of the
Convention, and this must entail a review of whether the law’s requirements were met as
specifically and as far “beforehand” as the laws allow in terms of the “reasons” and
“conditions” for depriving a person of liberty. If domestic provisions have not been upheld,
either materially or formally, when a person is taken into custody, the confinement is unlawful
and contrary to the American Convention,123 in light of article 7(2).
117. The Court, in addressing the legality of the detention, recalls the dates of its jurisdiction
over the instant case, wherefore it is unable to declare violation of article 7(2) of the
Convention with respect to lawfulness of the arrest warrants and the orders for pretrial
detention in September and October, 1980 (supra par. 28).
118. Representatives Vega and Sommer have argued that the Argentine system of justice
contained standards setting specific terms for pretrial detention (supra par. 101), but no
evidence in this regard was submitted to the Court, and therefore, in the instant case it has
not been shown that Argentina during the full time of the pretrial detention had any rules
setting a maximum term for such measures to be in force. The Court believes, however, that
this matter should be examined under the terms of article 7(5) of the Convention (infra par.
129ff).
119. The Court has held, regarding the provisions in the Convention’s article 7(3) on arbitrary
arrest, that no one may be subject to arrest or imprisonment for reasons and by methods
that – although classified as lawful – may be deemed incompatible with respect for the
121
Cfr. Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador. Preliminary Objections, Merits, Reparations and
Costs. Judgment of November 21, 2007. Series C No. 170, par. 51, and Case of J. v. Peru. Preliminary Objection,
Merits, Reparations and Costs. Judgment of November 27, 2013. Series C No. 275, par. 125.
122
123
Cfr. Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador, par. 54, and Case of J. v. Peru, par. 125.
Cfr. Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador, par. 57; Case of Yvon Neptune v. Haiti. Merits,
Reparations and Costs. Judgment of May 6, 2008. Series C No. 180, par. 96; Case of Torres Millacura et al. v.
Argentina, par. 74, and Case of Hermanos Landaeta Mejías et al. v. Venezuela. Preliminary Objections, Merits,
Reparations and Costs. Judgment of August 27, 2014. Series C No. 281, par. 158.