indicated that, by referring to the Constitution and the laws established “pursuant thereto,” the analysis
of the observance of Article 7(2) of the Convention entails examining compliance with the
requirements established as specifically as possible and “beforehand” in those instruments in
relation to the “reasons” for and the “conditions” of the deprivation of physical liberty. If both the
formal and the substantive aspect of domestic law is not observed when depriving a person of his
liberty, this deprivation of liberty will be unlawful and contrary to the American Convention,103 in
light of Article 7(2).104
86.
Regarding the arbitrariness referred to in Article 7(3) of the Convention, the Court has
established that no one shall be subject to arrest or imprisonment for reasons and by methods that –
although classified as lawful – may be considered incompatible with respect for the fundamental rights
of the individual because, inter alia, they are unreasonable, unpredictable or disproportionate.105 The
Court has considered that domestic law, the applicable procedure, and the corresponding general
explicit or tacit principles must, in themselves, be compatible with the Convention. Thus, the concept
of “arbitrariness” should not be equated with “contrary to the law”; rather, it should be interpreted
more broadly in order to include elements of irregularity, injustice and unpredictability. 106
87.
The Court has considered that, to ensure that a precautionary measure that restricts liberty
is not arbitrary, it is necessary that: (i) substantive assumptions are presented concerning the
existence of an unlawful act and the connection of the person prosecuted to this act; (ii) the measure
restricting liberty complies with the four elements of the “proportionality test”; namely, that the
purpose of the measure must be legitimate (compatible with the American Convention),107
appropriate to comply with the objective sought, necessary and strictly proportionate, 108 and (iii)
the decision that imposes it contains sufficient reasons to allow an assessment of whether it meets
the said conditions.109
88.
Regarding the first element of the proportionality test – that is, the purpose of the measure
that restricts liberty – the Court has indicated that a measure of this nature should only be imposed
when it is necessary to achieve a legitimate purpose, namely: that the accused will not impede the
conduct of the proceedings or evade the action of justice. 110 It has also stressed that a risk to the
proceedings should not be presumed, but must be verified in each case based on the real and
objective circumstances of the specific case.111 The grounds for these requirements are to be found
in Articles 7(3), 7(5) and 8(2) of the Convention.
Cf. Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador, supra, para. 57, and Case of Carranza Alarcón v. Ecuador,
supra, para. 61.
103
Cf. Case of Argüelles et al. v. Argentina. Preliminary objections, merits, reparations and costs. Judgment of
November 20, 2014. Series C No.288, para. 116, and Case of the Women Victims of Sexual Torture in Atenco v. Mexico.
Preliminary objection, merits, reparations and costs. Judgment of November 28, 2018. Series C No. 371, para. 230.
104
Cf. Case of Gangaram Panday v. Suriname. Merits, reparations and costs. Judgment of January 21, 1994. Series C
No. 16, para. 47, and Case of Carranza Alarcón v. Ecuador, supra, para. 62.
105
Cf. Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador, supra, para. 92, and Case of Carranza Alarcón v. Ecuador,
supra, para. 62.
106
Cf. Case of Servellón García et al. v. Honduras. Preliminary objection, merits, reparations and costs. Judgment of
September 21, 2006. Series C No. 152, para. 89, and Case of Romero Feris v. Argentina. Merits, reparations and costs.
Judgment of October 15, 2019. Series C No. 391, para. 92.
107
Cf. Case of Palamara Iribarne v. Chile. Merits, reparations and costs. Judgment of November 22, 2005. Series C No.
135, para. 197, and Case of Romero Feris v. Argentina, supra, para. 92.
108
Cf. Case of García Asto and Ramírez Rojas v. Peru. Preliminary objection, merits, reparations and costs. Judgment
of November 25, 2005. Series C No. 137, para. 128, and Case of Romero Feris v. Argentina, supra, para. 92.
109
Cf. Case of Suárez Rosero v. Ecuador. Merits. Judgment of November 12, 1997. Series C No. 35, para. 77, and Case
of Romero Feris v. Argentina, supra, para. 99.
110
Cf. Case of Amrhein et al. v. Costa Rica, Preliminary objections, merits, reparations and costs. Judgment of April
25, 2018. Series C No. 354, para. 357, and Case of Romero Feris v. Argentina, supra, para. 99.
111
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