396. The Court recalls that it is not a criminal court and, consequently, these facts do not
have to be proved beyond any reasonable doubt in order to establish the international
responsibility of the State for violations of the American Convention (supra para. 81). The
indications and evidence that have emerged to date are consistent with the statements of
the victims and support their truth. The Court finds that, in the context of the events of this
case, this is sufficient to consider that they occurred, because reaching the contrary
conclusion would signify allowing the State to shield itself behind its own negligence in the
investigation of these events to evade its international responsibility (supra para. 305). The
legal definition of these facts is made in the following sections of this chapter.
B.2) Right to personal liberty
397. As previously mentioned the State has accepted and acknowledged that Yolanda
Santodomingo Albericci and Eduardo Matson Ospino were detained illegally and arbitrarily,
after surviving the events of the taking and retaking of the Palace of Justice. The Court has
found proved that Yolanda Santodomingo Albericci and Eduardo Matson Ospino were
deprived of liberty “under the suspicion” of belonging to or collaborating with the M-19
(supra para. 138). Furthermore, although the State has contested the illegal and arbitrary
nature of the detention of Orlando Quijano and José Vicente Rubiano Galvis, there is no
dispute that they were both detained without a court order on November 6 and 7, 1985,
respectively. The State has argued that Orlando Quijano was “retained” in keeping with the
legal provisions in force at the time of the events for identification purposes; while José
Vicente Rubiano was “detained” in flagrante delicto.
398. Regarding the distinction made by the State between “retention” and “detention,” the
Court notes that they both constitute deprivations of personal liberty and, as such, should
strictly respect the relevant provisions of the American Convention and domestic law,
provided that the latter is compatible with the Convention.
399. This Court recalls that Article 7 of the American Convention contains two distinct types
of rule; one general and the other specific. The general rule is found in the first paragraph:
“[e]very person has the right to personal liberty and security.” While the specific rule consists
of a series of guarantees that protect the right not to be deprived of liberty unlawfully (Article
7(2)) or arbitrarily (Article 7(3)), to know the reasons for the detention and the charges
against him (Article 7(4)), to judicial control of the deprivation of liberty (Article 7(5)) and
to contest the legality of the detention (Article 7(6)). 602 Any violation of paragraphs 2 to 7
of Article 7 of the Convention necessarily results in the violation of Article 7(1). 603
400. Article 7(2) of the American 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.”
This Court has indicated that by referring to the Constitution and laws established “pursuant
thereto,” the examination of the observance of Article 7(2) of the Convention entails the
examination of compliance with the requirements established as specifically as possible and
“beforehand” in these laws as regards the “reasons” for and the “conditions” of the
deprivation of physical liberty. If both the substantive and formal aspects of domestic law
are not observed when depriving a person of his liberty, this deprivation will be unlawful
and contrary to the American Convention, 604 in light of Article 7(2). Consequently, the Court
602
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, and Case of J. v. Peru. Preliminary objection, merits,
reparations and costs. Judgment of November 27, 2013. Series C No. 275, para. 125.
603
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. 54, and Case of J. v. Peru. Preliminary objection, merits,
reparations and costs. Judgment of November 27, 2013. Series C No. 275, para. 126.
604
Cf. Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador. Preliminary objections, merits, reparations and costs.
138
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