41
187. The Court finds that the adoption of these measures does not constitute per se a
violation of the right to property, if it is considered that they do not signify a transfer of
the ownership of the right to legal title. In this regard, the property cannot be disposed
of definitively and such disposal is restricted exclusively to its administration and
conservation and to the respective acts of investigation and management of the
evidence.
188. Nevertheless, the Court finds that the adoption of material precautionary
measures must be justified previously by the inexistence of another type of measure that
is less restrictive of the right to property. In this regard, it is only admissible to seize and
deposit property when there is clear evidence of its connection to the offense, and
provided that it is necessary to guarantee the investigation and the payment of the
applicable pecuniary responsibilities, or to avoid the loss or deterioration of the evidence.
Also, these measures must be adopted and supervised by judicial officials, taking into
account that, if the reasons that justified the precautionary measure cease to exist, the
judge must assess the pertinence of maintaining the restriction, even before the
proceedings are concluded. This point is extremely important, given that if the property
ceases to fulfill a relevant role in continuing or promoting the investigation, the material
precautionary measure must be lifted, because they run the risk of becoming an
anticipated punishment. The latter would constitute a manifestly disproportionate
restriction of the right to property.
189. Based on the above, provided there is due justification to adopt these measures,
the corresponding effect on the power to dispose of property that is created does not in
itself constitute a violation of the right to property. Accordingly, the Court considers that
the purpose of these measures is in keeping with the American Convention and their
existence is not contrary to the provisions of Article 21 in relation to Article 2 thereof.
The dispute regarding the alleged arbitrariness in the application of these measures will
be examined below.
*
*
*
190. The representatives referred to another aspect related to the compatibility of
domestic law with the Convention. Thus, they indicated that the fact that CONSEP
charged Mr. Chaparro for the deposit, custody and administration of the property (supra
180) means that this system is “onerous for the patrimony of the accused,” bearing in
mind that “a person whose innocence has been declared in a judgment must pay the
State for the deposit and administration of property that was seized unlawfully and
unduly.”
191. The Court observes that, in the instant case, Resolution No. 059-CD of 2000
issued by the Administrative Council of CONSEP133 was applied. This Resolution issued
the “Regulations for the collection of fees for the deposit, custody and administration of
property and assets seized, confiscated or impounded that are entrusted to CONSEP.”
The pertinent part of these regulations establishes that:
Art. 1. The CONSEP Secretariat, through the National Directorate for the Administration of
Property in Deposit, is responsible for the custody, administration and deposit of property that is
seized, confiscated or impounded and entrusted to CONSEP; since such actions entail financial
outlays, these must be assumed by the owners when the deposit ends owing to the existence of
an order to return the property issued by a competent judge.
133
Cf. resolution No. 059-CD issued by the CONSEP Administrative Council and published in official
gazette No. 14 of February 10, 2000 (file on merits, volume III, folios 1068 to 1072).
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