21
suspicion on which an arrest must be based forms an essential part of the safeguard
against arbitrary arrest and detention which is laid down in Article 5(1) [of the European
Convention,” adding that “having a ‘reasonable suspicion’ presupposes the existence of
facts or information which would satisfy an objective observer that the person concerned
may have committed the offence.” 54
103. This Court finds that the suspicion must be based on specific facts, expressed in
words; that is, not on mere conjectures or abstract intuitions. Consequently, the State
should not detain someone to investigate him; to the contrary, it is only authorized to
deprive a person of liberty when it has sufficient information to be able to commit him to
trial. Nevertheless, even in these circumstances, the deprivation of liberty of the accused
cannot be based on general preventive or special preventive purposes, which could be
attributed to the punishment, but, as stated above (supra para. 93), can only be based
on a legitimate purpose, which is: to ensure that the accused does not prevent the
proceedings from being conducted or elude the system of justice.55
104. Article 170 of the Ecuadorean Code of Criminal Procedure in force at the time of
the facts only allowed the judge to order precautionary measures “[i]n order to
guarantee the presence of the accused in the proceedings,” while Article 177 established
that, “when he considered it necessary,” the judge could issue an order for remand in
custody “provided the following procedural information existed: (a) evidence leading to
the presumption of the existence of an offense that merited the penalty of deprivation of
liberty, and (b) evidence leading to the presumption that the accused was the author of,
or an accomplice to, the offense that was the object of the proceedings.” In addition, this
Article required that “[t]he judicial order shall describe the evidence on which the order
of imprisonment is based.”
105. The court order that required the remand in custody of the victims (supra para.
100) did not include a description, however brief, of the circumstances as regards the
time, means and place in which Mr. Lapo supposedly committed the criminal offense, or
any indication of the act or omission attributed to him, specifying the elements on which
the accusation was based. In Mr. Chaparro’s case, the judicial authority did not provide
grounds for why she believed preventive detention was essential “to guarantee the
presence” of the accused or to allow the proceedings to be conducted. Furthermore, she
did not indicate the offense committed by the two victims. Consequently, the order for
remand in custody issued against Messrs. Chaparro and Lapo was arbitrary.
106. Even though the foregoing is sufficient to declare the violation of Article 7(3) of
the Convention, the Court considers it important to refer to the Commission’s allegation
that, during the criminal proceedings filed against the victims, the grounds for the
measure depriving them of their liberty were never reviewed. The State did not present
specific arguments on this point.
107. The Court emphasizes that it is the national authorities who are responsible for
assessing the pertinence of maintaining the precautionary measures they issue pursuant
to their own laws. When carrying out this task, the national authorities should provide
54
Cf. ECHR, Fox, Campbell and Hartley v. United Kingdom, Judgment of 30 August 1990, para. 32.
The "reasonableness" of the suspicion on which an arrest must be based forms an essential part of
the safeguard against arbitrary arrest and detention which is laid down in Article 5 (1) (c) (art. 51-c). The Court agrees with the Commission and the Government that having a "reasonable
suspicion" presupposes the existence of facts or information which would satisfy an objective
observer that the person concerned may have committed the offence. What may be regarded as
"reasonable" will however depend upon all the circumstances.
55
Cf. Case of Servellón García et al., supra note 17, para. 90, and Case of Acosta Calderón, supra note
47, para. 111.
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