particular those of an irregular nature. 77 It has also maintained that both administrative and
penal sanctions are an expression of the punitive powers of the State and, on occasions, may
be of a similar nature, 78 and given that, in a democratic society, punitive power is only
exercised as strictly necessary to protect fundamental rights from the most serious attacks
that harm or endanger them, 79 the detention of an individual for failing to comply with the
immigration laws should never be for punitive purposes. 80 Consequently, the Court has
established that immigration policies whose central focus is the obligatory detention of
irregular migrants will be arbitrary, if the competent authorities do not verify, in each
particular case and by an individualized evaluation, the possibility of using less restrictive
measures that are effective to achieve those ends. 81
62.
The Court holds that the essence of Article 7 of the American Convention is the
protection of the liberty of the individual against any arbitrary or illegal interference by the
State. 82 Furthermore, the Court has stated that this article has two types of regulations that
are well differentiated from each other, one general and the other specific. The general is
found in the first numeral: “[e]very person has the right to personal liberty and security.”
While the specific one is made up of a series of guarantees that protect the right not to be
unlawfully deprived of liberty (Article 7(2)) or arbitrarily (Article 7(3)), to know the reasons
for the detention and the charges filed against the detainee (Article 7(4)), to judicial control
of the deprivation of liberty and the reasonableness of the period of preventive detention
(Article 7(5)), and to challenge the legality of the detention (Article 7(6)). 83 Therefore, any
violation of numerals 2 to 7 of Article 7 of the Convention will necessarily entail the violation
of Article 7(1) thereof.
63.
The Court deems it pertinent to recall, for the purposes of this case, that it follows
from Article 7(3) of the Convention that no one may be subjected to arrest or imprisonment
for reasons and by methods which, although classified as lawful, may be incompatible with
the respect for the fundamental rights of the individual because, inter alia, they are
unreasonable, unpredictable or disproportionate. 84 The Court has held that domestic law, the
applicable procedure, and the corresponding general explicit or tacit principles must, in
themselves, be compatible with the Convention. Thus, the concept of “arbitrariness” is not be
77
Cf. Case of Vélez Loor v. Panama, supra, paras. 163 to 172, and Case of expelled Dominicans and Haitians
v. Dominican Republic. Preliminary objections, supra, para. 359.
Cf. Case of Vélez Loor v. Panama, supra, para. 172, and Case of the Pacheco Tineo Family v. Bolivia, supra,
para. 131.
78
Cf. Case of Kimel v. Argentina. Merits, reparations and costs. Judgment of May 2, 2008. Series C No. 177,
para. 76, and Case of the Pacheco Tineo Family v. Bolivia, supra, para. 131.
79
Cf. Case of Vélez Loor v. Panama, supra, para. 171, and Case of expelled Dominicans and Haitians v.
Dominican Republic. Preliminary objections, supra, para. 359.
80
Cf. Case of Vélez Loor v. Panama, supra, para. 171, and Case of expelled Dominicans and Haitians v.
Dominican Republic. Preliminary objections, supra, para. 359.
81
82
Cf. Case “Juvenile Reeducation Institute” v. Paraguay. Preliminary objections, merits, reparations and costs.
Judgment of September 2, 2004. Series C No. 112, para. 223, and Case of Palacio Urrutia et al. v. Ecuador. Merits,
reparations and costs. Judgment of November 24, 2021. Series C No. 446, para. 130.
Cf. Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador. Preliminary objections, merits, reparations and
costs. Judgment of November 21, 2007. Series C No. 170, para. 51, and Case of Palacio Urrutia et al. v. Ecuador,
supra, para. 130.
83
84
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 Villarroel Merino et al. v. Ecuador. Preliminary objections, merits, reparations
and costs. Judgment of August 24, 2021. Series C No. 430, para. 91.
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