63
“only personal and effective sureties and the surety for the costs of a lawsuit
were established as alternative measures to the deprivation of freedom during
the proceeding.” Mr. Canese provided sufficient guarantees that he would
abide by the punitive measure imposed, by providing material surety and by
his preceding acts;
c)
The measure is also disproportionate, because it was imposed for
more than eight years, when the possible sanction applicable was less than
one year’s imprisonment; in this respect, it exceeded the time established as
reasonable;
d)
The State did not prove the essential nature, proportionality and
necessity of the measures restricting the freedom of movement imposed on
the alleged victim;
e)
Rather than a precautionary measure, the restriction of Mr. Canese’s
freedom of movement became an “anticipated sanction,” not established in
the Paraguayan Penal Code; and
f)
The disputed precautionary measure “bec[ame] an anticipated
sanction[,] and consequently violated Article 22 [of the Convention] in
relation to Article 8, paragraphs 1 and 2,” thereof, and the obligation to adopt
domestic legislative measures, all in violation of Article 1(1) of the American
Convention.
Arguments of the State
112.
Regarding Article 22 of the Convention, the State argued that:
a)
The measure adopted by the Paraguayan courts was ordered as a
precautionary measure and following the sentence handed down by the court
of first instance. The restriction sought “to ensure that the wrongdoer
remained subject to the proceedings.” However, Mr. Canese’s restriction to
leave the country was not absolute, as the alleged victim acknowledged
expressly in his statement before the Inter-American Court during the public
hearing. Also, “it was the only measure adopted by the Paraguayan courts
throughout the whole criminal proceeding.” “When denying [permission to
leave national territory], it was acting in accordance with [the ...] 1890 Code
of Criminal Procedure [...] and none of its provisions established alternate or
substitute measures to preventive detention that would have a less onerous
effect on the quality of life of those accused of punishable acts. This was only
rectified by the adoption and implementation of the new Code of Criminal
Procedure or Act No. 1286/98;”
b)
On one occasion when Mr. Canese requested permission to leave the
country, he offered “a material surety, with capital assets, as a precaution
against failing to return”; an offer that was rejected. “The rejection of [this]
offer shows that the courts considered the capital assets surety to be
insufficient;”
c)
“It would be unjust to sanction the State [...] for the alleged failure to
comply with [Article] 22 of the American Convention, because the State [...]
has adapted the precautionary measures regime to the minimum standards
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