39
84.
Article 19 of the Convention establishes that
[e]very minor child has the right to the measures of protection required by his condition
as a minor on the part of his family, society, and the state.
85.
Article 1(1) of the American Convention states that
[t]he States Parties to this Convention undertake to respect the rights and freedoms
recognized herein and to ensure to all persons subject to their jurisdiction the free and
full exercise of those rights and freedoms, without any discrimination for reasons of
race, color, sex, language, religion, political or other opinion, national or social origin,
economic status, birth, or any other social condition.
86.
The Convention has enshrined the prohibition of an illegal or arbitrary
detention or imprisonment as the main guarantee of personal liberty and security.
The Court has stated, with regard to illegal arrests, “that even though […] the State
has the right and obligation to guarantee its security and maintain public order, its
power is not unlimited, since it has the duty, at all times, to apply procedures
pursuant to Law and respectful of the fundamental rights, of all individual under its
jurisdiction.”54
87.
Therefore with the purpose of maintaining public security and order, the State
legislates and adopts different measures of a diverse nature to prevent and regulate
the behavior of its citizens, one of which is to promote the presence of police forces
in public spaces. However, the Court points out that any incorrect action of those
state agents in their interaction with the persons it must protect, represents one of
the main threats to the right to personal liberty, which, when violated, generates a
risk of violation to other rights, such as humane treatment and, in some cases, life.
88.
Article 7 of the Convention enshrines guarantees that represent limits to the
exercise of authority by State agents. Those limits are applied to the instruments of
state controls, one of which is the detention. Said measure shall be pursuant to the
guarantees enshrined in the Convention as long as its application has an exceptional
nature, it respects the principle of presumption of innocence and the principles of
legality, need, and proportionality, all of which are strictly necessary in a democratic
society.55
89.
A restriction to the right to personal liberty, such as an arrest, must be
carried out only due to the causes and the conditions previously established by the
Political Constitutions or by the laws enacted pursuant to them (material aspect), as
well as strictly subject to the procedures objectively defined in the same (formal
aspect).56 At the same time, the legislation that establishes the grounds for a
restriction to personal liberty must be issued pursuant to the principles that govern
54
Cfr. Case of Bulacio. Judgment of September 18, 2003. Series C No. 100, para. 124; Case of Juan
Humberto Sánchez. Judgment of June 7, 2003. Series C No. 99, para. 86; and Case of Hilaire, Constantine
and Benjamín et al. Judgment of June 21, 2002. Series C No. 94, para. 101.
55
Cfr. Case of López Álvarez. Judgment of February 1, 2006. Series C No. 141, para. 67; Case of
García Asto and Ramírez Rojas. Judgment of November 25, 2005. Series C No. 137, para. 106; and Case
of Palamara Iribarne, supra note 10, para. 197.
56
Cfr. Case of the Ituango Massacres, supra note 3, para. 149; Case of López Álvarez, supra note
55, para. 58; and Case of the Pueblo Bello Massacre, supra note 7, para. 108.