13
allow liberty to be deprived or restricted. Consequently, liberty is always the rule and the
limitation or restriction always the exception.
54.
Lastly, the Court emphasizes that any violation of subparagraphs 2 to 7 of Article
7 of the Convention necessarily entails the violation of Article 7(1) thereof, because the
failure to respect the guarantees of the person deprived of liberty leads to the lack of
protection of that person’s right to liberty.
B)
UNLAWFULNESS OF THE ARRESTS OF
MESSRS. CHAPARRO AND LAPO
55.
Article 7(2) of the Convention establishes that “[n]o one shall be deprived of his
physical liberty except for the reasons and under the conditions established beforehand by
the constitution of the State Party concerned or by a law established pursuant thereto.”
56.
This subparagraph of Article 7 recognizes the main guarantee of the right to
physical liberty: the legal exception, according to which the right to personal liberty can
only be affected by a law. It is worth repeating that this Court understands a “law” to be:
A general legal norm closely related to the general welfare, enacted by democratically elected
legislative bodies established by the Constitution, and formulated according to the procedures set
forth in the Constitutions of the States Parties for that purpose.29
57.
The legal exception must necessarily be accompanied by the principle of legal
definition of the offense (tipicidad), which obliges the States to establish, as specifically
as possible and “beforehand,” the “reasons” and “conditions” for the deprivation of
physical liberty. Hence, Article 7(2) of the Convention refers automatically to domestic
law. Accordingly, any requirement established in domestic law that is not complied with
when depriving a person of his liberty will cause this deprivation to be unlawful and
contrary to the American Convention. The analysis of the compatibility of domestic laws
with the Convention will be made when examining subparagraph 3 of Article 7.
58.
Thus the Court’s task is to verify that the arrests of Messrs. Chaparro and Lapo
were carried out in keeping with Ecuadorean legislation.
59.
Article 22(19) of the Constitution of Ecuador in force at the time of the facts
stipulated that:
(h) No one shall be deprived of his liberty, unless this is based on an order in writing from a
competent authority, in the cases, for the time, and with the formalities established by law,
except in flagrante delicto, in which case, a person may not be held for more than twenty-four
hours unless he has been formally charged. […].
(i) All persons shall be informed immediately of the reason for their arrest.
60.
The Code of Criminal Procedure applicable at the time of the victims’ arrest
established that:
Art. 170. In order to guarantee the presence of the accused during the proceedings, as well as
the payment of the compensation for damages to the aggrieved party and the procedural costs,
the judge may order precautionary measures of a personal or material nature.
Art. 171. The precautionary measures of a personal nature are arrest and remand in custody. […]
Art. 172. In order to investigate whether a crime has been committed, before initiating the
respective criminal proceedings, the competent judge may order the arrest of a person, based on
either personal knowledge, or verbal or written reports of the National Police or the Judicial Police
or any other person which establish that a crime has been committed together with the
corresponding presumptions of responsibility.
29
Cf. The Word “Laws” in Article 30 of the American Convention on Human Rights. Advisory Opinion OC6/86 of May 9, 1986. Series A No. 6, para. 38.
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