not to be equated with “contrary to the law”, but must be interpreted more broadly to include
elements of inappropriateness, injustice, lack of predictability and due process of law. 495
356. The Inter-American Court has indicated that, without prejudice to the legality of a
detention, in each case an analysis must be made of the compatibility of the legislation with
the Convention, on the understanding that the law and its application must respect the
requirements listed below to ensure that the deprivation of liberty is not arbitrary: 496 i) that
the purpose of the measures that deprive or restrict liberty is compatible with the Convention;
ii) that the measures adopted are suitable to achieve the desired purpose; iii) that they are
necessary, in the sense that they are absolutely essential to achieve the desired purpose and
that, among all possible measures, there is no less burdensome measure in relation to the
right involved, that would be as suitable to achieve the proposed objective; for this reason,
the Court has indicated that the right to personal liberty means that any limitation of this
right must be exceptional, 497 and iv) that the measures are strictly proportionate, 498 so that
the sacrifice inherent to the restriction of the right to liberty is not exaggerated or excessive
in relation to the advantages obtained by such restriction and the fulfilment of the purpose
pursued. 499 Any restriction of liberty that is not based on a sufficient justification that meets
the above criteria will be arbitrary and will therefore violate Article 7(3) of the Convention. 500
357. In cases involving pretrial detention within a criminal proceeding, the Court has indicated
that the decision to deprive the defendant of his liberty cannot be based on ‘generalpreventive or special-preventive’ objectives attributable to the penalty, but can only be based
on a legitimate purpose, namely: to ensure that the accused does not interfere with the
development of the proceedings or evade the action of justice. 501 It has also emphasized that
procedural risk cannot be presumed, but must be verified in each case, based on the objective
and proven circumstances of the specific case.
358. The Court has likewise established that the unpredictability of deprivation of liberty
may make it arbitrary (supra para. 355). On this point, the Court has indicated that the law
on which the deprivation of personal liberty is based must establish as specifically as possible
and “beforehand” the “reasons” for and “conditions” of the deprivation of physical liberty. 502
Compliance with these requirements is designed to protect the individual from arbitrary
detention. 503 Among the conditions stated for deprivation of liberty, the applicable law should
Cf. Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador, supra, para. 92, and Case of Yarce et al. v.
Colombia, supra, para. 140.
496
Cf. Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador, supra, para. 93, and Case of Wong Ho Wing v.
Peru. Preliminary objections, merits, reparations and costs. Judgment of June 30, 2015 Series C No. 297, para. 248.
497
Cf. Case of Ricardo Canese v. Paraguay. Merits, reparations and costs. Judgment of August 31, 2004. Series
C No. 111, Para. 129, and Case of Wong Ho Wing v. Peru, supra, para. 248.
498
Cf. Case of Ricardo Canese v. Paraguay, supra, para. 129, and Case of Wong Ho Wing v. Peru, para. 248.
499
Cf. Case of Chaparro Álvarez and Lapo Íñiguez. v. Ecuador, supra, para. 93, and Case of Wong Ho Wing v.
Peru, supra, para. 248.
500
Cf. Case of García Asto and Ramírez Rojas v. Peru. Judgment of November 25, 2005. Series C No. 137, para.
128, and Case of Yarce et al. v. Colombia, para. 158.
501
Cf. Case of Suárez Rosero v. Ecuador. Merits. Judgment of November 12, 1997, para. 77, and Case of Wong
Ho Wing v. Peru, supra, para. 250.
502
Cf. Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador, supra, para. 57, and Case of Wong Ho Wing v.
Peru, supra, para. 254.
503
Cf. Case of Wong Ho Wing v. Peru, supra, para. 254. Similarly, the European Court has established that the
protection of the individual from arbitrariness implies that the application of the law must be sufficiently precise and
predictable. Cf. ECHR, Case Ryabikin v. Russia, No. 8320/04. Judgment of June 19, 2008, para. 127; Case Baranowski
v. Poland, No. 28358/95. Judgment of March 28, 2000, paras. 50 to 52; Case of Khudoyorov v. Russia, No. 6847/02.
Judgment of November 8, 2005, para. 125; Case of Calovskis v. Latvia, No. 22205/13. Judgment of July 24, 2014,
para. 182; Case of L.M. v. Slovenia, No. 32863/05. Judgment of June 12, 2014, paras. 121 and 122.
495
115