IV.
LEGAL ANALYSIS
A.
Right to personal liberty and the principle of equal protection (Articles 7 115, and 24116
of the American Convention in conjunction with Article 1.1 117 and 2118 thereof).
1.
General considerations
80.
Article 7 of the American Convention contains two distinct types of regulations: one general, the
other specific. The general one is contained in the first subparagraph: [e]very person has the right to personal
liberty and security." As regards the right not to be illegally deprived of liberty, established in Article 7.2 of the
Convention, the Inter-American Court gas pointed out that that right "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." 119 The legal exception required to impair the right to personal liberty pursuant to Article 7(2) of the
Convention 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. 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.120
81.
The IACHR stresses that improper behavior by police forces constitutes one of the main
threats to liberty and the security of individuals.121 For that reason, States need to adopt measures to ensure
that police officers perform their duties in a manner that guarantees human rights and, in particular, that
arrests are carried out in accordance with domestic legislation. The Commission reiterates that that does not
mean imposing limits on police activities legitimately geared to protecting citizen security as one facet of public
welfare in a democratic society.122
82.
The European Court of Human Rights (hereinafter "the European Court") has stated that when
it comes to deprivation of liberty it is especially important to comply with the general principle of legal
certainty, which means that the terms and conditions for depriving someone of liberty under domestic law
must be clearly defined and the enforcement of the law must in itself be predictable. According to the same
Court, the standard of legality of the European Convention requires legislation to be sufficiently precise to
enable a person to predict, with a reasonable degree of certainty under the circumstances, the consequences
that a specific action may trigger.123
On this, Article 7 of the American Convention states: 1. Every person has the right to personal liberty and security; 2. No 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; 3. No one shall be subject to arbitrary arrest or imprisonment; 4. Anyone who
is detained shall be informed of the reasons for his detention and shall be promptly notified of the charge or charges against him; (...).
116 Said Article also states: All persons are equal before the law. Consequently, they are entitled, without discrimination, to equal protection
of the law.
117 Said Article also states: The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to
ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for
reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social
condition.
118 That article establishes: Where the exercise of any of the rights or freedoms referred to in Article 1 is not already ensured by legislative
or other provisions, the States Parties undertake to adopt, in accordance with their constitutional processes and the provisions of this
Convention, such legislative or other measures as may be necessary to give effect to those rights or freedoms.
119 I/A Court HR. Case of Chaparro Álvarez and Lapo Íñiguez. v. Ecuador. Preliminary Objections, Merits, Reparations, and Costs. Judgment
of November 21, 2007. Series C No. 170, par. 56. See also: IACHR. Report on Citizen Security and Human Rights. December 31, 2009, paras.
144-146.
120 I/A Court HR. Case of Chaparro Álvarez and Lapo Íñiguez. v. Ecuador. Preliminary Objections, Merits, Reparations, and Costs. Judgment
of November 21, 2007. Series C No. 170, par. 55. See also: IACHR. Report on Citizen Security and Human Rights. Thursday, December 31,
2009, paras. 144-146.
121 IACHR, lawsuit before the I/A Court of H/R, Walter David Bulacio, Argentina, January 24, 2001, para. 61.
122 IACHR, lawsuit before the I/A Court of H/R, Walter David Bulacio, Argentina, January 24, 2001, para. 62.
123 ECHR. Case of el Río Prada v. Spain, Judgment of October 21, 2013, para. 125; case of Creangă v. Romania, Judgment of February 23,
2012, para. 120; and Case of Medvedyev et al. v. Romania, Judgment of March 29, 2010, para. 80.
115