29
7(5)), to contest the lawfulness of the detention (Art. 7(6)), and not to be detained for debt
(Art. 7(7)).120
90.
Regarding personal liberty, Article 7 of the Convention protects exclusively the right
to physical liberty and encompasses physical conducts that presuppose the physical
presence of the holder of the right and that are normally expressed by physical
movement.121 However, attempting to regulate the exercise of this right would be a neverending task, owing to the many forms in which physical liberty can be expressed. What is
regulated, therefore, are the limits or restrictions that the State may legitimately impose.
This explains why Article 7(1) embodies in general terms the right to liberty and security
and the other subparagraphs regulate the different guarantees that must be provided when
depriving someone of their liberty. Accordingly, the way in which domestic laws affect the
right to liberty is characteristically negative, when they allow liberty to be deprived or
restricted. Thus, liberty is always the rule, and its limitation or restriction the exception.122
91.
In addition, the Court emphasizes that any violation of subparagraphs 2 to 7 of
Article 7 of the Convention necessarily entails the violation of Article 7(1) thereof, because
the failure to respect the guarantees of the person deprived of liberty involves, in brief, the
failure to protect this person’s right to liberty.123
92.
Having outlined the general considerations about Article 7 of the Convention, the
Court will examine the alleged violations of this provision in the following order: (a) the
alleged unlawfulness and arbitrariness of Mr. Neptune’s detention (Article 7(2) and 7(3));
(b) the right to be informed of the reasons for his detention and the charges against him
(Article 7(4)) and the right to judicial control of the detention and to be tried within a
reasonable time (Article 7(5)); and (c) the right to a recourse to contest Mr. Neptune’s
deprivation of liberty (Article 7(6)).
93.
Before examining these provisions, it is worth recalling that, regarding the period
from April to November 2004, during which Mr. Neptune was detained, the report of the
United Nations independent expert emphasized – within the general context of prolonged
pre-trial detentions – the possible political nature of the detention of persons who held office
under the Government of Jean-Bertrand Aristide,124 because, as of December 20, 2004, “of
the approximately 60 cases submitted to the independent expert by the pro-Aristide Office
of International Attorneys (BAI), the majority […] had not been brought before a judge
within the legal time period, and others had been the subject of a late detention order or
had not been heard by the judge within a reasonable period of time […].”125 The document
mentions the prolonged pre-trial detention of Yvon Neptune, Jocelerme Privert and Senator
120
Cf. Chaparro Álvarez and Lapo Iñiguez v. Ecuador, supra note 36, para. 51.
121
Cf. Eur. Court H.R., Engel and Others v. The Netherlands, judgment of 8 June 1976, Series A, no. 22,
para. 58. The text reads “[i]n proclaiming the "right to liberty", paragraph 1 of Article 5 (art. 5-1) is contemplating
individual liberty in its classic sense, that is to say the physical liberty of the person. […]”.
122
Cf. Chaparro Álvarez and Lapo Íñiguez v. Ecuador, supra note 36, para. 53.
123
Cf. Chaparro Álvarez and Lapo Íñiguez v. Ecuador, supra note 36, para. 54.
124
Cf. United Nations, Economic and Social Council. Situation of human rights in Haiti: report prepared by the
independent expert, Louis Joinet, supra note 66, paras. 56-57.
125
Cf. United Nations, Economic and Social Council. Situation of human rights in Haiti: report prepared by the
independent expert, Louis Joinet, supra note 66, para. 57.