classified as legal – can be considered incompatible with respect for the fundamental rights
of the individual because, among other matters, they are unreasonable, unpredictable or
disproportionate.40
58.
Regarding Article 7(3), the Court has established that, although any detention must
be carried out in accordance with the procedures established in domestic law, it is also
necessary that the domestic law, the applicable procedures, and the general express or
implicit principles must, in themselves, be compatible with the Convention.41 However, as
established by the Human Rights Committee, “’arbitrariness’ is not to be equated with
’against the law,’ but must be interpreted more broadly to include elements of
inappropriateness, injustice, lack of predictability and due process of law […].”42
59.
Any cause for the deprivation or restriction of the right to personal liberty should not
only be established by law, in the terms of Article 7(3) of the Convention, but also its
purpose must be legitimate and compatible with the Convention,43 and it must not result
from the exercise of rights. In this case, Mr. Fleury was not arrested in flagrante delicto and
the purpose of his detention by the HNP was never to press charges or to bring him before a
judge for his alleged or possible perpetration of an unlawful act, but had other reasons, such
as possible extortion44 or, in the context of the threats against and harassment of human
rights defenders, to intimidate him and dissuade him from carrying out his work.
Consequently, Mr. Fleury was detained arbitrarily, in violation of Article 7(3) of the
Convention.
B.2
The right to be informed of the reasons for the detention (Article 7(4))
60.
In cases in which the violation of Article 7(4) of the Convention is alleged, the Court
must analyze the facts in light of domestic law and the provisions of the Convention,
because the information about the “motives and reasons” for the detention must be given
“when it occurs,” and because the right contained in that norm involves two obligations: (i)
oral or written information on the reasons for the detention, and (ii) notification, in writing,
of the charges.45 In this case, the State did not inform Mr. Fleury of the “reasons” for his
arrest or notify him of the “charges” against him, so that, in addition to being illegal (supra
para. 56), his detention constituted a violation of the right recognized in Article 7(4) of the
Convention.
B.3
The right to be brought promptly before a judge (Article 7(5))
40
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 Torres Millacura et al. v. Argentina, supra note 17, paras. 77 and 78.
41
Cf. Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador, supra note 35, para. 91.
42
Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador, supra note 35, para. 92. Human Rights
Committee, Case of Albert Womah Mukong v. Cameroon, (458/1991), 21 July 1994, Doc. UN
CCPR/C/51/D/458/1991, para. 9.8
43
Cf. Mutatis mutandi, Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador, supra note 35, para. 93, and
Case of Torres Millacura et al., supra note 17, paras. 77 and 78.
44
Sworn statement of July 2002, by Mr. Fleury (file of attachments to the application, tome I, attachment 1,
folios 393 and 394).
45
Cf. Case of Cabrera García and Montiel Flores v. Mexico. Preliminary objection, merits, reparations and
costs. Judgment of November 26, 2010. Series C No. 220, para. 106.
17