12
their arrest, Messrs. Chaparro and Lapo were informed of the reasons, and notified of the
charges against them. It added that, although at one time there were serious reasons to
consider that the victims were responsible for drug-trafficking, during subsequent
proceedings, the evidence was a determining factor to absolve them from guilt, “which is
perfectly possible in criminal proceedings.”
50.
To examine the dispute, the Court will first provide a general overview of the right
to personal liberty and security. It will then refer to the alleged unlawful and arbitrary
nature of the deprivation of the victims’ liberty; the alleged lack of immediate information
on the reasons for the detention; the alleged ineffectiveness of the recourses filed to
contest their arrest and, lastly, the alleged violation of the right to be tried within a
reasonable time or to be released.
A)
THE RIGHT TO PERSONAL LIBERTY AND SECURITY
51.
Article 7 of the Convention contains two distinct types of regulations: one general,
the other specific. The general one is contained in the first subparagraph: “[e]very
person has the right to personal liberty and security”; while the specific one is composed
of a series of guarantees that protect the right not to be deprived of liberty unlawfully
(Art. 7(2)) or in an arbitrary manner (Art. 7(3)), to be informed of the reasons for the
detention and the charges brought against him (Art. 7(4)), to judicial control of the
deprivation of liberty and the reasonable length of time of the remand in custody (Art.
7(5)), to contest the lawfulness of the arrest (Art. 7(6)), and not to be detained for debt
(Art. 7(7)).
52.
In its broadest sense, liberty is the ability to do or not do all that is lawfully
allowed. In other words, it is the right of every person to organize his individual and
social life in keeping with his own choices and beliefs, and in accordance with the law.
Security, on the other hand, is the absence of interferences that restrict or limit liberty
beyond what is reasonable. Defined as such, liberty is thus a basic human right, inherent
in the attributes of the person, that crosscuts the entire American Convention. Indeed,
the Preamble underscores the intention of the States of the America to consolidate “a
system of personal liberty and social justice based on respect for the essential rights of
man,” and their recognition that “the ideal of free men enjoying freedom from fear and
want can be achieved only if conditions are created whereby everyone may enjoy his
economic, social, and cultural rights, as well as his civil and political rights.” Thus, each
human right protects an aspect of the liberty of the individual.
53.
In the case of Article 7 of the Convention, this protects exclusively the right to
physical liberty and covers physical conducts that presuppose the actual presence of the
holder of the right and that are normally expressed in physical movement. Security
should also be understood as protection against all unlawful or arbitrary interference with
physical liberty.28 However, this right may be exercised in many ways, and what the
American Convention regulates are the limits or restrictions that the State may impose.
This explains why Article 7(1) establishes in general terms the right to liberty and
security and the other subparagraphs refer to the different guarantees that must be
provided when depriving a person of their liberty. This also explains why the way in
which domestic laws affect the right to liberty is characteristically negative, when they
28
The European Court has also understood this to be so, when it considered that “[i]n proclaiming the
"right to liberty", paragraph 1 of Article 5 (art. 5-1) is contemplating individual liberty in its classic sense, that
is to say the physical liberty of the person,” Cf. ECHR, Case of Engel and others v. The Netherlands, Judgment
of 8 June 1976, Applications Nos. 5100/71; 5101/71; 5102/71; 5354/72; 5370/72, para. 57.
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