that protect the right not to be deprived of liberty unlawfully (Article 7(2)) or arbitrarily (Article 7(3)),
to be informed of the reasons for the detention and the charges (Article 7(4)), to judicial control of
the deprivation of liberty and the reasonableness of the time of preventive detention (Article 7(5)),
to contest the lawfulness of the detention (Article 7(6)) and not to be detained for debt (Article
7(7)).59 Any violation of paragraphs 2 to 7 of Article 7 of the Convention necessarily result in the
violation of Article 7(1).60
b.1 Initial order of preventive detention
72. According to this Court’s case law, preventive detention is the most severe measure that can
be applied to anyone charged with an offense. Consequently, it should only be applied exceptionally
because it is limited by the principles of legality, presumption of innocence, necessity and
proportionality that are essential in a democratic society. 61 In its case law, the Court has reiterated
that the general rule should be the liberty of the defendant while a decision is taken on his criminal
responsibility.62 In exceptional cases, the State may resort to a measure of preventive detention in
order to avoid situations that jeopardize achieving the purposes of the proceedings; in other words,
to ensure that the defendant does not impede the efficient development of the investigations or
evade the action of justice.63 Therefore, the preventive detention of a defendant may only be ordered
exceptionally64 and when, for example, there are no other guarantees that ensure his appearance at
trial.
73. Regarding the arbitrariness mentioned in Article 7(3) of the Convention, the Court has
established that no one may be subjected to detention or imprisonment for reasons and by methods
that, although classified as lawful, may be regarded as incompatible with respect for the fundamental
rights of the individual because, among other reasons, they are unreasonable, unpredictable or
disproportionate.65 The Court has considered that domestic law, the applicable procedure, and the
corresponding explicit or tacit general principles must, per se, be compatible with the Convention.
Thus, “‘arbitrariness’ is not to be equated with ‘against the law,’ but must be interpreted more broadly
to include elements of inappropriateness, injustice and lack of predictability.” 66
Cf. 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. 51.
59
Cf. Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador, supra, para. 54, and J. v. Peru. Preliminary objection,
merits, reparations and costs. Judgment of November 27, 2013. Series C No. 275, para. 125.
60
Cf. Case of Tibi v. Ecuador, Preliminary objections, merits, reparations and costs. Judgment of September 7, 2004.
Series C No. 114, para. 106, and Case of Herrera Espinoza et al. v. Ecuador. Preliminary objections, merits, reparations and
costs. Judgment of September 1, 2016. Series C No. 316, para. 143.
61
Cf., inter alia, Case of López Álvarez v. Honduras. Merits, reparations and costs. Judgment of February 1, 2006.
Series C No.141, para. 67; Case of J. v. Peru, supra, para. 157; Case of Herrera Espinoza et al. v. Ecuador, supra, para. 143,
and Case of Romero Feris v. Argentina. Merits, reparations and costs. Judgment of October 15, 2019. Series C No. 391, para.
97.
62
Cf. Case of Servellón García et al. v. Honduras. Judgment of September 21, 2006. Series C No. 152, para. 90, and
Case of Herrera Espinoza et al. v. Ecuador. Preliminary objections, merits, reparations and costs. Judgment of September 1,
2016. Series C No. 316, para. 143.
63
64
Cf. Case of Tibi v. Ecuador, supra, para. 106, and Case of Herrera Espinoza et al. v. Ecuador, supra, para. 143.
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 the Women Victims of Sexual Torture in Atenco v. Mexico, supra, para. 231.
65
Cf. Case of Yarce et al. v. Colombia. Preliminary objection, merits, reparations and costs. Judgment of November 22,
2016. Series C No. 325, para. 140. See also: Human Rights Committee. Communication No. 458/1991, A. W. Mukong v.
Cameroon (July 21, 1994), para. 9.8. “The drafting history of article 9, paragraph 1, confirms 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. [...] this means that remand in custody pursuant to lawful arrest must not only be
lawful but reasonable in all the circumstances,” and Report of the Working Group on Arbitrary Detention. A/HRC/22/44,
December 24, 2002, para. 61.
66
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