B.1. Basic guarantees in immigration proceedings
deprivation of liberty and expulsion or deportation
that
may
involve
B.1.1. General considerations
346. It should be recalled that the Court has affirmed that Article 7 of the American
Convention contains a general rule, established in its first paragraph, according to which:
“[e]very person has the right to personal liberty and security,” and also another rule, of a
specific nature, that consists of guarantees that protect the right not to be deprived of liberty
illegally (Art. 7(2)) or arbitrarily (Art. 7(3)), to be informed of the reasons for the
detention and of the charges (Art. 7(4)), to judicial control of the deprivation of liberty
(Art. 7(5)), and to contest the lawfulness of the detention (Art. 7(6)). 378 Regarding the
general obligation, the Court has reiterated that “any violation of paragraphs 2 to 7 of
Article 7 of the Convention necessarily results in the violation of Article 7(1) thereof.” 379
347. The Court has also indicated that any restriction of the right to personal liberty must
only be for the reasons and in the conditions previously established by the Constitution or
the laws enacted in accordance with this (material aspect), and also strictly subject to
proceedings objectively defined in it (formal aspect). 380 In addition, the Court has
reiterated that any detention, regardless of the reasons or duration, must be duly
recorded in the pertinent document, indicating clearly, at least, the reasons for the
detention, who made the arrest, the time of the arrest and the time of the release, as well
as a record that the competent judge was advised, in order to protect against any illegal
or arbitrary interference with physical liberty. 381 If this is not done, the rights recognized
in Articles 7(1) and 7(2) of the American Convention, in relation to Article 1(1) of this
instrument, have been violated. 382
348. Furthermore, the Court has indicated that programmed collective detentions and
roundups, which are not based on the individualization of wrongful actions and that lack
judicial control are incompatible with respect for fundamental rights; among others, they
are contrary to the presumption of innocence, unduly curtail personal liberty, and
transform preventive detention into a discriminatory mechanism; consequently, the State
may not implement them under any circumstance. 383
349. In addition, the Court has indicated that the right to judicial guarantees, recognized
in Article 8 of the American Convention, refers to the series of requirements that must be
observed at the different procedural stages to ensure that the individual is able to defend
his rights adequately vis-à-vis any act of the State, adopted by any public authority,
378
Cf. 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. 51, and Case of J. v. Peru, para. 125.
379
Cf. Case of Chaparro Álvarez and Lapo Íñiguez. v. Ecuador, para. 54, and Case of J. v. Peru, para. 125.
380
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 García and family members v. Guatemala. Merits, reparations and costs.
Judgment of October 24, 2012. Series C No. 258, para. 100.
381
Cf. Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador, para. 53, and Case of García and family
members v. Guatemala, para. 100.
382
Cf. Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador, para. 54, and Case of García and family
members v. Guatemala, para. 100.
383
Cf. Case of Bulacio v. Argentina. Merits, reparations and costs. Judgment of September 21, 2006. Series C
No. 152, paras. 93 and 96.
112
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