50
legislation applied to the instant case was compatible with the requirements of the
American Convention.
164. Article 7(2) of the Convention establishes that the deprivation of liberty shall
only proceed for the reasons and under the conditions established beforehand by the
Political Constitutions of the State Parties or by a law established pursuant thereto.
Under the principle of legal codification of the offense, States are obliged to establish,
as specifically as possible and “beforehand,” the “reasons” and “conditions” for the
deprivation of physical liberty.171
165. Moreover, Article 7(3) of the Convention provides that “no one shall be subject
to arbitrary arrest or imprisonment.” The Court has held in previous cases that:
No one may be subjected to arrest or imprisonment for reasons and using methods
that –although classified as legal– can be considered incompatible with regard for
the fundamental rights of the individual, because they are, among other matters,
unreasonable, unpredictable, or disproportionate.172
166. In consequence, without prejudice to the lawfulness of the detention, it is
necessary to assess, in each case, the compatibility of the legislation with the
Convention, understanding that such law and its application must respect the
requirements listed below, in order to ensure that this measure is not arbitrary:173 i)
that the purpose of the measures that deprive or restrict liberty is compatible with the
Convention; ii) that the measures adopted are appropriate to achieve the sought-after
purpose; iii) that they are necessary, in the sense that they are absolutely essential
to achieve the purpose sought and that, among all possible measures, there is no less
burdensome one in relation to the right involved, that would be as suitable to achieve
the proposed objective. Hence, the Court has indicated that the right to personal
liberty supposes that any limitation of this right must be exceptional;174 and, iv) that
the measures are strictly proportionate,175 so that the sacrifice inherent in the
restriction of the right to liberty is not exaggerated or excessive compared to the
advantages obtained from this restriction and the achievement of the purpose sought.
Any restriction of liberty that is not based on a justification that will allow an
assessment of whether it is adapted to the conditions set out above will be arbitrary
and will thus violate Article 7(3) of the Convention.176
167. That is why, in the instant case, said assessment is related to the compatibility
of punitive custodial measures with the American Convention for the control of
migratory flows, particularly those concerning irregular migrants, and in this way
determine the scope of the State's obligations, within the framework of the State’s
responsibility for the violations of the rights enshrined in said treaty. Therefore, the
Court shall proceed to evaluate whether the custodial measure applied to Mr. Vélez
Loor complied with the requirements mentioned according to which it must be lawful,
171
Cf. Case of Chaparro Álvarez and Lapo Íñiguez, supra note 99, para. 57; Case of Usón Ramírez,
supra note 10, para. 145, and Case of Yvon Neptune, supra note 97, para. 96.
172
Case of Gangaram Panday v. Surinam. Merits, Reparations, and Costs. Judgment of January 21,
1994. Series C No. 16, para. 47; Case of Usón Ramírez, supra note 10, para. 146, and Case of Yvon
Neptune, supra note 97, para. 97.
173
Cf. Case of Chaparro Álvarez and Lapo Íñiguez, supra note 99, para. 93, and Case of Yvon
Neptune, supra note 97, para. 98.
174
Cf. Case of Ricardo Canese v. Paraguay. Merits, Reparations, and Costs. Judgment of August 31,
2004. Series C No. 111, para. 129; Case of Chaparro Álvarez and Lapo Íñiguez, supra note 99, para. 93,
and Case of Yvon Neptune, supra note 97, para. 98.
175
Cf. Case of Ricardo Canese, supra note 174, para. 129; Case of Chaparro Álvarez and Lapo
Íñiguez, supra note 99, para. 93, and Case of Yvon Neptune, supra note 97, para. 98.
176
Cf. Case of García Asto and Ramírez Rojas, supra note 99, para. 128; Case of Barreto Leiva, supra
note 96, para. 116, and Case of Yvon Neptune, supra note 97, para. 98.
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