39
141.
Subsequently, on June 15, 2004, the Martial Court pointed out, after taking into
account the pleadings for revision of the preventive detention order, that such order was
founded on a presumption of flight and not on the alleged danger of hindering the trial.138
142.
Lastly, as a result of this proceeding, Mr. Usón Ramírez was finally judgmentd to 5
years and a half of prison on the basis of the sanction established in Article 505 of the
Organic Code of Military Justice (supra para. 38).
143.
In regard to the facts alleged by the parties, this Tribunal notes that Article 7 of the
Convention involves two types of very different regulations: one general and one specific.
The general regulation is described in the first paragraph: “[e]very person has the right to
personal liberty and security.” The specific regulation is a series of guarantees protecting
the right not to be deprived of liberty (Art. 7(2)) or arbitrarily (Art. 7(3)), to be notified of
the reasons for his detention and the charges against him (Art. 7(4)), to judicial control of
the deprivation of liberty and reasonable nature of the term of preventive imprisonment
(Art. 7(5)), to challenge the lawfulness of his detention (Art. 7(6)). Any violation of
paragraphs 2 to 7 of Article 7 of the Convention shall necessarily entail the violation of
Article 7(1) of such Convention. 139
144.
This Tribunal has established that, since preventive imprisonment is a provisional
remedy and not a punitive one, there is a state obligation not to restrict the liberty of
detainees beyond the strictly necessary limits that ensure that they shall not hinder the
proceedings or obstruct justice.140 In this sense, preventive imprisonment shall not be
imposed unless there are sufficient pieces of circumstantial evidence allowing for a
reasonable inference that the individual in trial is guilty.141 Thus, for the presumption of
innocence to be respected when ordering restrictive measures to liberty, the State shall
support and provide evidence of the existence of the requirements established in the
Convention in a clear and motivated manner in each specific case.142 Otherwise it would be
equivalent to anticipating the punishment, which is against the general legal principles
which are broadly recognized, inter alia, the principle of the presumption of innocence.143
145.
Paragraph 2 of article 7 sets forth the primary guarantee of the right to physical
liberty: the law establishes that it is only under the law that the right to personal liberty
may be affected. To that end, this Court has established that the reserve of law shall
forcefully be accompanied by the principle of codification, obliging the States to established,
as specifically as possible and “beforehand”, the “causes” and “conditions” of the deprivation
of physical liberty. Thus, article 7(2) of the Convention automatically refers to the domestic
legislation. Hence, any requirement established under the domestic law that is not fulfilled
138
Cf. Order of June 15, 2004 of the Martial Court of the Military Criminal Circuit, supra note 120, f. 1388.
139
Cf. Case of Chaparro Álvarez and Lapo Íñiguez, supra note 56, paras. 51 y 54, and Case of Yvon Neptune,
supra note 46, para. 89.
140
Cf. Case of Suárez Rosero, supra note 118, para. 77; Case of Bayarri, supra note 43, para. 110, and Case
of Chaparro Álvarez y Lapo Íñiguez, supra note 56, para. 69.
141
Cf. Case of Acosta Calderón, supra note 114, para. 74; Case of Bayarri, supra note 43, para. 69, and Case
of Yvon Neptune, supra note 46, para. 107.
142
Cf. Case of Palamara Iribarne, supra note 47, para. 198; Case of Servellón García et al.v. Honduras.
Merits, Reparations, and Costs. Judgment of September 21, 2006. Series C No. 152, para. 90, and Case of López
Álvarez v. Honduras. Merits, Reparations, and Costs. Judgment of February 1, 2006. Series C No. 141, para. 69.
143
Cf. Case of Suárez Rosero, supra note 118, para. 77; Case of Bayarri, supra note 43, para. 110, and Case
of Chaparro Álvarez and Lapo Íñiguez, supra note 56, para. 146.
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