period at the Center for Women’s Orientation (Centro de Orientación Femenina), and subsequently at the
prison known as the Penitenciaría Distrital at Obrajes. The Commission has also considered it established
that within the proceeding known as “Street Lamps,” the Ninth Criminal Examining Judge issued a pre-trial
detention order against Ms. Andrade Salmón on October 17, 2000 and issued a release order on January 22,
2001.
207. The petitioners allege that the State of Bolivia, on ignoring the prerequisites for pre-trial
detention established in the Code of Criminal Procedure and on ignoring the judgments of the Constitutional
Court that declared that the incarceration of Ms. Andrade Salmón was illegal violated Articles 7(2), 7(3), and
7(6) of the American Convention. In addition, the petitioners allege that given that on October 23, 2000, the
Constitutional Court declared the nullity of the Gader proceeding until such time as the case was randomly
assigned, i.e. prior to the issuance of the pre-trial detention order, the detention of Ms. Andrade lacked any
legal basis until November 14, 2000, the date on which the Seventh Criminal Examining Judge issued the pretrial detention order against Ms. Andrade, despite the existence of the Constitutional Court judgment of
August 31, 2000, which found that alternative measures to pre-trial detention may be decreed.
208. The State indicates that the right to personal liberty was enshrined in Article 9 of the 1994
Constitution, and that this right may only be restricted exceptionally: (1) in those cases and in keeping with
the procedures established by law; (2) with an order from the competent authority; and (3) that the order
was made in writing. The State alleges that the Constitutional Court, in due course, gave priority attention to
the rights claimed by Ms. Andrade Salmón through the writs of habeas corpus filed against decisions of
judicial authorities characterized as improper or illegal, which were ruled in her favor in a timely, effective,
and impartial manner.
A.1
Articles 7(2) and 7(3) of the American Convention in relation to Articles 8(2) and 1(1)
of the same instrument
209. As regards Article 7(2) of the Convention, the Inter-American Court has indicated that it
“recognizes the main guarantee of the right to physical liberty: the legal exception, according to which the
right to personal liberty can only be affected by a law.”260 In addition, it has said: “The legal exception must
necessarily be accompanied by the principle of legal definition of the offense (tipicidad), which obliges the
States to establish, as specifically as possible and “beforehand,” the “reasons” and “conditions” for the
deprivation of physical liberty. Hence, Article 7(2) of the Convention refers automatically to domestic law.
Accordingly, any requirement established in domestic law that is not complied with when depriving a person
of his liberty will cause this deprivation to be unlawful and contrary to the American Convention.”261
210. Article 7(3) of the Convention provides: “No one shall be subject to arbitrary arrest or
imprisonment.” Specifically, the Inter-American Court has stated that in relation to Article 7(2) and 7(3) of
the Convention:
[a]ccording to the first of these regulatory provisions [Article 7(2) of the Convention], no
one shall be deprived of his personal liberty except for reasons, cases or circumstances
specifically established by law (material aspect) but, also, under strict conditions established
beforehand by law (formal aspect). In the second provision [Article 7(2) of the Convention],
we have a condition according to which no one shall be subject to arrest or imprisonment for
causes or methods that – although qualified as legal – may be considered incompatible with
260
I/A Court H.R. 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. 56.
261
I/A Court H.R. 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. 57.