60
individual, because such reasons or methods are deemed to be, among other things, unreasonable,
unforeseeable, or disproportionate.169
179. The Court has established the following criteria for determining whether a deprivation
of liberty is or is not arbitrary:
it is not sufficient that every reason for deprivation or restriction of the right to liberty is
established by law; this law and its application must respect the requirements listed below, to
ensure that this measure is not arbitrary: (i) that the purpose of the measures that deprive or
restrict liberty is compatible with the Convention. It is worth indicating that the Court has
recognized that ensuring that the accused does not prevent the proceedings from being
170
conducted or evade the judicial system is a legitimate purpose; (ii) that the measures adopted
are appropriate to achieve the purpose sought; (iii) that they are necessary, in the sense that
they are absolutely essential to achieve the purpose sought and that, among all possible
measures, there is no less burdensome one in relation to the right involved, that would be as
suitable to achieve the proposed objective. Hence, the Court has indicated that the right to
171
personal liberty supposes that any limitation of this right must be exceptional, and (iv) that the
172
measures are strictly proportionate, so that the sacrifice inherent in the restriction of the right
to liberty is not exaggerated or excessive compared to the advantages obtained from this
restriction and the achievement of the purpose sought. Any restriction of liberty that is not based
on a justification that will allow an assessment of whether it is adapted to the conditions set out
173
above will be arbitrary and will thus violate Article 7(3) of the Convention.
180. For its part, Article 7(5) of the Convention refers to the period of time an unconvicted
person can be held in custody. Concerning this provision of Article 7, the Inter-American Court has held
that the Convention is violated when a person whose criminal culpability has not been established is
held for an excessive and therefore disproportionate period of time. According to the Court’s case law,
this is tantamount to anticipating the sentence.174
181. Concerning the question of whether the practice of preventive detention is compatible
with the guarantee of presumption of innocence, the Court has summed up a number of earlier
provisions by writing that:
169
I/A Court H.R., Case of García Asto and Ramírez Rojas. Judgment of November 25, 2005. Series C No. 137,
paragraph. 105; Case of Acosta Calderón. Judgment of June 24, 2005. Series C No. 129, paragraph 57; Case of Tibi.
Judgment of September 7, 2004. Series C No. 114, paragraph 98; and Case of the Gómez Paquiyauri Brothers. Judgment
of July 8, 2004. Series C No. 110, paragraph 83.
170
I/A Court H.R.,
Case of Servellón García et al. Judgment of Spetember 21, 2006. Series C No. 152, paragraph
111.
171
I/A Court H.R. Case of Palamara Iribarne v. Chile. Merits, Reparations, and Costs. Judgment of November 22,
2005. Series C No. 135, paragraph 197; I/A Court H.R., García Asto and Ramírez Rojas v. Peru. Preliminary objection,
Merits, Reparations, and Costs. Judgment of November 25, 2005. Series C No. 137, paragraph 106.
172
I/A Court H.R. Case of the “Juvenile Re-education Institute” v. Paraguay. Preliminary objections, Merits,
Reparations, and Costs. Judgment of September 2, 2004. Series C No. 112, para. 228.
173
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. Paragraph.93.
174
I/A Court H.R., Case of López Álvarez. Judgment of February 1, 2006. Series C No. 141, paragraph 69; Case of
Acosta Calderón. Judgment of June 24, 2005. Series C No. 129, paragraph 111; Case of Tibi, Judgment of September 7,
2004. Series C No. 114, paragraph. 180; and Case of Suárez Rosero. Judgment of November 12, 1997. Series C No. 35,
paragraph 77.