103
214. In the light of the above, the analysis of the preventive prevention orders
issued against Mr. Palamara-Iribarne in the two military criminal proceedings
instituted against him shows that the State violated Articles 7(1), 7(2) and 8(2) of
the American Convention to his detriment.
215. Moreover, Article 7(3) of the Convention requires as a condition that no one
be subject to arbitrary arrest or imprisonment, i.e. arrest or imprisonment
ordered for reasons and through methods which —even if legal— may be deemed
incompatible with a respect for the fundamental rights of a person because,
among other things, they are unreasonable, impossible to anticipate or out of
proportion.214
216. In previous decisions the Court found that those rulings of domestic bodies that
may impair human rights, such as the right to personal liberty, and which are not
duly substantiated, are arbitrary.215 In the instant case, the orders for preventive
detention issued in both military criminal proceedings, which were analyzed in the
preceding paragraphs, are without reasoned and objective legal substantiation
regarding the applicability of said precautionary measure and proving the need
therefor, pursuant to the legal and conventional requirements that allowed such
measure to be taken and in accordance with the facts of the case. Accordingly, the
State violated Articles 7(3) and 8(2) of the Convention, to the detriment of Mr.
Palamara-Iribarne, by depriving him of his liberty based on arbitrary orders, in
disregard of the principles of nullum crimen nulla poena sine lege praevia, need and
proportionality.
217. The Court finds it important to note that the State’s failure to meet the
necessary requirements to restrict the personal liberty of Mr. Palamara-Iribarne that
were listed above is the result of both the legal provisions applied in the instant case
and the manner in which such provisions were interpreted by the military authorities
involved in the case.
*
*
*
218. Under Article 7(5) of the Convention, any person detained is entitled to have
such detention promptly reviewed by a judicial authority as a means of adequate
control to prevent cases of arbitrary and illegal detention. Prompt judicial review is a
measure aimed at avoiding arbitrariness or illegality in detentions, taking due
consideration of the fact that, in a State in which the Rule of Law prevails, the judge
must guarantee the rights of the person held in custody, authorize precautionary or
coercive measures if strictly necessary and, in general, make sure that the accused
is treated in a manner that is consistent with the presumption of innocence.216
214
Cf. Case of Acosta-Calderón, supra note 189, para. 57; Case of Tibi, supra note 206, para. 98; and
Case of the Gómez-Paquiyauri brothers, supra note 211, para. 83.
215
Cf. Case of YATAMA, supra note 5, para. 152. Similarly, cf. García Ruiz v. Spain [GC], No.
30544/96, § 26, ECHR 1999-I; and Eur. Court H.R., Case of H. v. Belgium, Judgment of November 30,
1987, Series A No. 127-B, para. 53.
216
Cf. Case of Acosta-Calderón, supra note 189, para. 75; Case of Tibi, supra note 206, para. 114;
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents