by a judicial authority to restrict personal liberty, at a stage of an investigation leading to a possible and/or apparent criminal proceeding” and is implemented “without a formal accusation, without the proceedings having been initiated, with minimum details; in other words, the accused, in reality, is treated similarly to those who face proceedings without being subjected to arraigo.” In like manner, the expert Esteban Gilberto Arcos Cortés, who was proposed by the State, declared during the public hearing that arraigo is a “investigative technique” and that “it is implemented without there being formal charges, no determination of a connection to the proceedings.” He added that this is the consequence of giving the Public Prosecutor’s Office a technical-legal tool to go before a judge of control and request a term of 40 days, which may be extended to 80 days, a measure of that type “due to the complexity of the offenses that today apply to organized crime.” 105 127. With regard to these norms, the Court notes preliminarily that there is not one instance to hear the person investigated or his representatives, where it is possible to exercise the right of defense, before the possible application of the measure restrictive of liberty. 106 On this point, it should be recalled that Article 7(5) of the Convention establishes that “[a]ny person detained shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to be released without prejudice to the continuation of the proceedings. His release may be subject to guarantees to assure his appearance for trial.” Similarly, Article 8(1) states that “[e]very person has the right to a hearing, […] in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations…”. That right includes, in addition to its substantive dimension, a formal and procedural phase that ensures access to a competent body to determine the right that is claimed under the due procedural guarantees (such as presenting arguments, making proposals, providing evidence and, in sum, exercising individual rights). 107 128. During the public hearing, the expert Carlos María Pelayo Moller explained that the procedure to obtain an order of arraigo is heard before one of the specialized judges of the National Center of Justice of Control Techniques of Investigation and while the merely formal elements of an order of arraigo are known “the orders themselves are generally classified as confidential, therefore the level of evidence necessary to order an arraigo is unknown.” He added that the standard of proof for arraigo “is necessarily much less that that to order pre-trial detention, that standard is a well-founded suspicion that a person has committed an offense under the Federal Law against Organized Crime.” The expert added that, since arraigo is a detention in order to investigate “it is for this reason that the person subjected to arraigo is left in a procedural limbo since there is no criminal proceeding against him in which there has been a formal accusation nor is it certain that this criminal proceeding will be substantiated; therefore, breaking the logic of arraigo becomes impossible on its own terms: I detain you to investigate, I investigate to detain you.” 108 129. The Court also notes that the current Article 12 bis of the Law against Organized Crime (supra para. 41), which was not in force when the events in this case occurred and which was added in the 2016, reinforces the idea that the measure of arraigo is applied to the person presented before a judicial authority. In effect, the article establishes that the “petition of arraigo or its extension shall be resolved immediately by the judicial authority by any means that ensures its authenticity or in a private hearing with only the appearance of a PGR agent no more than six hours following its receipt.” 109 130. Thus, it is clear that it was not contemplated that the persons investigated be heard or that they be presented before a judge or other official authorized by law to exercise judicial functions 105 Cf. Expert opinion of Esteban Gilberto Arcos Cortés, offered at the public hearing. 106 Cf. Expert opinion of Luis Raúl González Pérez, offered at the public hearing. Cf. Case of Apitz Barbera et al. (“First Court of Administrative Disputes”) v. Venezuela. Preliminary Objection, Merits, Reparations and Costs. Judgment of August 5, 2008. Series C No. 182 para. 72 and Case of Roche Azaña et al. v. Nicaragua. Merits and Reparations. Judgment of June 3, 2020. Series C No. 403, para. 85. 107 108 Cf. Expert opinion of Carlos María Pelayo Moller, offered at the public hearing. 109 Cf. Expert opinion of Luis Raúl González Pérez, offered at the public hearing. 31