security, which implies that the conditions that uphold the deprivation of liberty under domestic law should be
clearly defined and that the application of the legislation itself should be foreseeable. According to the same
Court, the standard of legality of the European Convention requires that the legislation be sufficiently precise
so as to enable the person to foresee the consequences that a specific act may imply to a degree that is
reasonable in the circumstances.84
50.
As regards Article 7(3) of the American Convention, the Court has held that “no one may be
subjected to arrest or imprisonment for reasons and by methods which, although classified as legal, could be
deemed to be incompatible with the respect for the fundamental rights of the individual because, among other
things, they are unreasonable, unforeseeable or lacking in proportionality.” 85 On referring to the arbitrary
nature of the detention, the Court has established that “’arbitrariness’ is not to be equated with ‘against the
law,’ but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of
predictability and due process of law.”86 Therefore, any arrest must be carried out not only in keeping with the
provisions of domestic law, but moreover it is necessary that “domestic law, the applicable procedure, and the
corresponding general explicit or tacit principles are, in themselves, compatible with the Convention.”87
51.
Specifically on the phrase “reasonable suspicion,” which, in the case of the European
Convention is expressly provided for in Article 5 related to the right to personal liberty, the European Court
has stated that “reasonable suspicion” that a crime has been committed means “the existence of facts or
information which would satisfy an objective observer that the person concerned may have committed the
offence.” 88 In this context of arrest based on “reasonable suspicion,” the European Court added that “the
prosecutor's failure to make a genuine inquiry into the basic facts” in order to verify whether there was a
violation of the right to personal liberty triggers their responsibility.89 It added that the requirement that
… the suspicion must be based on reasonable grounds forms an essential part of the
safeguard against arbitrary arrest and detention. The fact that a suspicion is held in good
faith is insufficient….
When assessing the “reasonableness” of the suspicion, the Court must be enabled to
ascertain whether the essence of the safeguard afforded by Article 5 § 1 (c) has been
secured. Consequently, the respondent Government have to furnish at least some facts or
information capable of satisfying the Court that the arrested person was reasonably
suspected of having committed the alleged offence.90
52.
Specifically, in the case of Gillan and Quinton v. United Kingdom, the European Court ruled on the
legal authority of state security forces to “stop and search.” In that case, the Court indicated that these situations
may be understood within the concept of deprivation of liberty established at Article 5 of the European
Convention, even when in that case the procedure did not last more than 30 minutes. The determination was
based on the persons in question being entirely deprived of their freedom of movement, were forced to stay where
they were and undergo searches, which incorporates the element of coercion that is relevant for applying that
provision.91
84 ECtHR. Case Del Río Prada v. Spain, Judgment of October 21, 2013, para. 125; Case Creangă v. Romania, Judgment of February
23, 2012, para. 120; and Case Medvedyev and Others v. France, Judgment of March 29, 2010, para. 80.
85 I/A Court HR. Case of Gangaram Panday v. Suriname. Judgment of January 21, 1994. Series C No. 16, para. 47; and I/A Court
HR. Case of López Álvarez v. Honduras. Judgment of February 1, 2006. Series C No. 141, para. 66.
86 I/A Court HR. 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. 92.
87 I/A Court HR, Case of Nadege Dorzema et al. v. Dominican Republic. Merits, Reparations and Costs. Judgment of October 24,
2012. Series C, No. 251, para. 133.
88 ECtHR. Case Ilgar Mammadov v. Azerbaijan, Judgment of October 13, 2014, para. 88; Case Erdagö z v. Turkey, Judgment of
October 22, 1997, para. 51; and Case Fox, Campbell and Hartley v. the United Kingdom, Judgment of August 30, 1990, para. 32.
89 ECtHR. Case Stepuleac v. Moldova, Judgment of February 6, 2008, para. 73.
90 ECtHR. Case Ilgar Mammadov v. Azerbaijan, Judgment of October 13, 2014, paras. 88 y 89.
91 ECtHR, Gillan and Quinton v. United Kingdom, Judgment of June 28, 2010, paras. 79-81.
11