31
law. Consequently, any requirement established by the national laws that is not complied
with when depriving a person of his liberty, will render this deprivation unlawful and
contrary to the American Convention. 132 Accordingly, the Court must verify whether Mr.
Neptune’s detention was carried out in accordance with the laws of Haiti.
97.
Article 7(3) of the Convention establishes that “no one shall be subject to arbitrary
arrest or imprisonment.” On other occasions, the Court has established that:
No one may be subjected to arrest or imprisonment for reasons and by methods which, although
classified as legal, could be deemed incompatible with respect for the fundamental rights of the
individual because, among other matters, they are unreasonable, unforeseeable or
disproportionate.133
98.
In brief, it is not sufficient that any reason for the deprivation or restriction of the
right to liberty is embodied in the law, but this law and its application must be compatible
with the Convention. In other words, to ensure that this measure is not arbitrary, it must
respect the following requirements:134 (i) that the purpose of the measures that deprive or
restrict liberty is legitimate (it is worth noting that the Court has recognized that ensuring
that the accused does not impede the development of the proceedings or evade the action
of justice are legitimate purposes); 135 (ii) that the measures adopted are appropriate to
achieve the intended objective; (iii) that they are necessary, in the sense that they are
absolutely essential to attain the desired objective, and that there is no measure that is less
onerous in relation to the affected right, among all those that are similarly appropriate to
achieve the proposed objective (for this reason, the Court has indicated that the right to
personal liberty presupposes that any limitation must be exceptional),136 and (iv) that the
measures are strictly proportionate,137 so that the sacrifice inherent in the restriction of the
right to liberty is not exaggerated or disproportionate compared with the advantages
obtained by the use of this restriction and the achievement of the intended objective. Any
restriction of liberty that does not include sufficient grounds that allow an assessment to be
made of whether it is adapted to these conditions will be arbitrary and, consequently, will
violate Article 7(3) of the Convention.138
99.
Over and above the allegations of the representative concerning the specific form of
the possible unlawfulness of the detention, in the preceding chapter, the Court determined
that the criminal proceedings opened against Mr. Neptune were inadequately instituted,
because the organs of the administration of ordinary justice were not competent to
132
Cf. Chaparro Álvarez and Lapo Íñiguez v. Ecuador, supra note 36, para. 57.
133
Cf. Gangaram Panday v. Suriname. Merits, reparations and costs. Judgment of January 21, 1994. Series C
No. 16, para. 47; Case of Chaparro Álvarez and Lapo Íñiguez, supra note 36, para. 90, and García Asto and
Ramírez Rojas v. Perú. Preliminary objection, merits, reparations and costs. Judgment of November 25, 2005.
Series C No. 137, para. 105. See also, Servellón García et al. v. Honduras, supra note 39, para. 90.
134
Cf. Chaparro Álvarez and Lapo Íñiguez v. Ecuador, supra note 36, para. 93.
135
Cf. Servellón García et al. v. Honduras, supra note 39, para. 90, and Acosta Calderón v. Ecuador. Merits,
reparations and costs. Judgment of June 24, 2005. Series C No. 129, para. 111.
136
Cf. Palamara Iribarne v. Chile, supra note 113, and García Asto and Ramírez Rojas v. Perú, supra note
133, para. 106.
137
Cf. The "Juvenile Reeducation Institute" v. Paraguay. Preliminary objections, merits, reparations and costs.
Judgment of September 2, 2004. Series C No. 112, para. 228.
138
Cf. García Asto and Ramírez Rojas v. Perú, supra note 133, para. 128.