203. Regarding the arbitrariness referred to in Article 7(3) of the Convention, the Court has
established that no one shall be subject to arbitrary arrest or imprisonment for reasons and by
methods which, although classified as legal, may be considered incompatible with respect for the
fundamental human rights of the individual because, among other things, they are unreasonable,
unpredictable or lacking in proportionality. 175 In this regard, the arbitrariness mentioned in Article
7(3) of the Convention has its own legal content, which requires analysis only in cases of
detentions considered unlawful. However, this means that the domestic law, the applicable
procedures and the corresponding general principles, expressed or implied therein, must also be
compatible with the Convention.176 Thus, the principle of “arbitrariness” must not be equated with
“contrary to the law,” but must be interpreted more broadly to include elements of
inappropriateness, injustice and unpredictability.
204. The Inter-American Court has indicated that, without prejudice to the legality of a
detention, in each case an analysis must be made of the compatibility of the legislation with the
Convention, on the understanding that the law and its application must respect the requirements
listed below to ensure that the deprivation of liberty is not arbitrary:177 i) that the purpose of the
measures that deprive or restrict liberty is compatible with the Convention; ii) that the measures
adopted are appropriate to achieve the desired purpose sought; iii) that they are necessary, in
the sense that they are absolutely essential to achieve the purpose sought and that, among all
possible measures, there is no less burdensome measure in relation to the right involved, that
would be as suitable to achieve the proposed objective. Hence, the Court has indicated that the
right to personal liberty means that any limitation of this right must be exceptional, 178 and iv) that
the measures are strictly proportionate, 179 so that the sacrifice inherent to the restriction of the
right to liberty is not exaggerated or excessive compared to the advantages obtained from this
restriction and the achievement of the purpose sought. 180 Any restriction of liberty that is not
based on a justification that meets the above criteria will be arbitrary and will thus violate Article
7(3) of the Convention.181
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205. Based on the above, the Court will now examine: (i) the detention orders in the ordinary
criminal and military criminal jurisdictions; (ii) the responses to the requests for unconditional
release in the ordinary criminal jurisdiction, and (iii) the duration of the preventive detention.
B.1.1 Regarding the detention orders
i.
Regarding the detention order in the ordinary criminal jurisdiction
206. Firstly, in the instant case, on September 28, 1994, the Judge of Mixed First instance issued
a detention order against Mr. Rosadio Villavicencio and opened an investigation for the crime
against public health due to illicit drug trafficking, preparation, storage, transport for large-scale
sales of basic cocaine paste, possession of a small amount of cocaine hydrochloride, and holding
money in foreign currency derived from drug trafficking, causing injury to the State of Peru. In its
175
Cf. Case of Gangaram Panday v. Surinam. Merits, Reparations and Costs. Judgment of January 21, 1994. Series
C No. 16, para. 47, and Case of Amrhein et al. v. Costa Rica, supra, para. 355.
176
Cf. Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador, supra, paras. 92 and 96, and Case of Amrhein et al.
v. Costa Rica, supra, para. 355.
177
Cf. Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador, supra, para. 93, and Case of Amrhein et al. v. Costa
Rica, supra, para. 356.
178
Cf. Case of Ricardo Canese v. Paraguay. Merits, Reparations and Costs. Judgment of August 31, 2004. Series C No.
111, para. 129, and Case of Amrhein et al. v. Costa Rica, supra, para. 356.
179
Cf. Case of Ricardo Canese v. Paraguay, supra, para. 129, and Case of Amrhein et al. v. Costa Rica, supra, para.
356.
180
Cf. Case of Chaparro Álvarez and Lapo Íñiguez. v. Ecuador, supra, para. 93, and Case of Amrhein et al. v. Costa Rica,
supra, para. 356.
181
Cf. Case of García Asto and Ramírez Rojas v. Peru. Judgment of November 25, 2005. Series C No. 137, para. 128, and
Case of Amrhein et al. v. Costa Rica, supra, para. 356.
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