129. It is appropriate to analyze the relevant facts of the case according to the above
standards in order to assess the alleged violations of subparagraphs 4 and 5 of Article 7 of
the Convention. 113
130. With respect to Article 7(4) of the Convention, the Court notes that Mr. Cortez stated
that during his July 11, 1997, detention, he was not informed of a detention order nor of the
reasons for his deprivation of liberty (supra para. 53). The State asserted that it did show
Mr. Cortez a written detention order (supra para. 108), but it did not present any evidence to
support that assertion. This Court thus concludes that Ecuador did not ensure Mr. Cortez’s
right to be informed of the reasons for his detention.
131. Regarding the judicial review required by Article 7(5) of the Convention, Mr. Cortez
was detained on July 11, 1997, and on the 14th of that month, the chief of the intelligence
department presented a brief to the military criminal judge hearing the case to inform him of
the detention and put the detainee under his authority (supra paras. 49 and 50). Mr. Cortez
testified before the judge on July 30, 1997 (supra para. 53). It has been noted that observing
the right established in Article 7(5) of the Convention requires that the detained person
appear in person before a competent authority. In this case, the military criminal judge did
not have jurisdiction (supra paras. 59 and 91). Moreover, there is no record of Mr. Cortez
appearing before that judge prior to July 30, 1997 (19 days after his detention). It is clear
that this delay is inconsistent with the prompt action required by the Convention. Therefore,
Ecuador failed to respect Mr. Cortez’s right to the prompt judicial review of his detention.
132. In addition, there is no record that Mr. Cortez appeared in person before a competent
judicial authority after his first or third detention. Article 7(5) of the Convention was thus also
violated by these deprivations of liberty.
B.2 The pretrial detentions of Mr. Cortez
133. Mr. Cortez was subjected to pretrial detention for the first time from July 11, 1997, to
December 19, 1997, in the context of military criminal proceedings (supra paras. 49 and 57).
That pretrial detention was unlawful because it had been ordered by the military justice
system, which, as domestic authorities determined, did not have jurisdiction (supra para. 59).
Accordingly, the Court finds that the pretrial detention of Mr. Cortez in 1997 violated his right
to personal liberty and Article 7(2) of the American Convention. It is thus unnecessary to
further analyze that preventive deprivation of personal liberty.
134. Mr. Cortez was also subjected to pretrial detention from February 28, 2000, to May
11, 2000, in the context of criminal proceedings in the regular courts (supra paras. 63 and
69). The Court will analyze below this pretrial detention.
135. The Court has held that in order for a precautionary measure that restricts liberty to
not be arbitrary: (i) there must be material presumptions of the existence of an unlawful act
and of the involvement of the detainee in that act; (ii) the measure must be suitable for
achieving a legitimate purpose, namely, preventing the defendant from obstructing the
proceedings or evading justice; (iii) the measure must be necessary—in other words,
“absolutely essential”—for achieving that purpose; and (iv) the measure must be strictly
proportionate, which means that the sacrifice inherent to the restriction of liberty must not
be excessive compared to the benefits of that restriction and the achievement of the purpose
The representatives alleged a lack of judicial review of Mr. Cortez’s third detention, arguing that it violated
his right “to a hearing” established in Article 8(1) of the American Convention. In this case, the Court sees it as
appropriate to analyze the judicial review of the detention on the basis of Article 7(5) of the Convention rather than
Article 8(1).
113
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