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right to personal liberty and security.” While the specific one is composed of a series of guarantees that
protect the right not to be deprived of liberty unlawfully (Art. 7(2)) or in an arbitrary manner (Art. 7(3)), to
be informed of the reasons for the detention and the charges brought against him (Art. 7(4)), to judicial
control of the deprivation of liberty (Art. 7(5)), and to contest the lawfulness of the arrest (Art. 7(6)). Any
violation of subparagraphs 2 to 7 of Article 7 of the Convention necessarily entails the violation of Article
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7(1) thereof.
153.
For its part, the Commission has written that Article 7 of the American Convention upholds the
guarantees of the right to personal liberty that the States Parties have undertaken to respect and ensure.
Principally, any deprivation of liberty must be done in accordance with pre-established law; hence, “no one shall
be subject to arbitrary arrest or imprisonment.” A person detained must be informed of the reason and promptly
notified of any charge against him. A detainee must be presented promptly before a judge, and must be tried
within a reasonable time or released pending the continuation of proceedings. Further, any person deprived of
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liberty is entitled to judicial recourse, to obtain, without delay, a determination of the legality of the detention. .
The United Nations Human Rights Committee has pointed out that “remand in custody pursuant to lawful arrest
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must not only be lawful but reasonable in all the circumstances.”
154.
The Commission is well aware of the climate prevailing in Peru when the anti-terrorist legislation
was enacted in 1992, a time when repeated incursions by ilegal armed groups provoked a constant state of alarm
in the population. A state of exception had been declared in several departments, which prima facie appeared
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justified in order to combat these illegal armed groups. The Commission observes, however, that despite
the prima facie legitimacy of this measure, the power to detain is not an unlimited power for the security forces,
which they can use to take persons into custody arbitrarily. Suspending the requirement that a court order be
obtained before taking a person into custody or arresting a person does not mean that public officials are no
longer subject to the legal requirements necessary for ordering such a measure or that judicial oversight of the
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way in which the detentions are conducted is suspended.
Article 7(2) and 7(3) of the American Convention
155.
The Inter-American Court has written that Article 7(2) of the Convention “recognizes the main
guarantee of the right to physical liberty: the legal exception, according to which the right to personal liberty can
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only be affected by a law.”
It has also held that “[t]he 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
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contrary to the American Convention.”
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I/A Court H.R., Case of Cabrera García and Montiel Flores v. Mexico. Preliminary Objection, Merits, Reparations and Costs.
Judgment of November 26, 2010. Series C No. 220. Paragraph 79. Citing 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 54; and Case of Barreto Leiva v.
Venezuela. Merits, Reparations and Costs. Judgment of November 17, 2009. Series C No. 206, paragraph 116.
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IACHR, Report on the Situation of Human Rights in Ecuador. 1997. OEA/Ser.L/V/II.96. Doc. 10 rev. 1. April 24, 1997. Chapter VII.
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Case of Van Alphen v. The Netherlands, communication No. 305/1998, July 23,1990.
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IACHR, Second Report on the Situation of Human Rights in Peru, OEA/Ser.L/V/II.106, Doc. 59 rev., June 2, 2000, Chapter II.
ADMINISTRATION OF JUSTICE AND RULE OF LAW, paragraph 83.
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IACHR, Second Report on the Situation of Human Rights in Peru, OEA/Ser.L/V/II.106, Doc. 59 rev., June 2, 2000, Chapter II.
ADMINISTRATION OF JUSTICE AND RULE OF LAW, paragraph 84.
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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 56.
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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 57.