arbitrary and, therefore, violated the principle of equality and non-discrimination and the right to
personal liberty established in Articles 7 and 24 of the American Convention in relation to the
obligations contained in Articles 1(1) and 2 of this instrument.
66. The representatives agreed with the Commission’s arguments. They added that the
prohibition of release contemplated in article 10 of Law No. 24,390 was not reasonable because it
did not protect essential legal rights, and because even those offenses where the protected legal
right was life, such as murder, allowed conditional release. They also underlined that, during the
public hearing held before this Court, the State had indicated that, in 2010, the Supreme Court had
declared that article 10 of Law No. 24,390 was unconstitutional and this had updated domestic law
to harmonize it with the international norms that had been ratified and were in force.
67. Regarding the duration of the preventive detention, the State indicated that Mr. Jenkins could
have obtained a review of the precautionary measure. It added that the decisions denying his release
were not exclusively founded on article 10 of Law No. 24,390, but were also based on the relevant
provisions of the Procedural Code, to the extent that the complaints filed by the petitioner allowed
this. In addition, taking into consideration the elements of the criminal proceedings and their
complexity, the duration – it lasted six months more than the legal term established in article 1 of
Law No. 4,390 – did not appear unreasonable.
a.3 Effectiveness of the remedies to challenge the deprivation of liberty
68. The Commission noted that the decisions rejecting the actions of unconstitutionality filed by
Mr. Jenkins to request his release were based exclusively on the nature or the severity of the
punishment attributed to the offenses for which the presumed victim was being prosecuted, without
analyzing or justifying whether the procedural objectives that the relevant instances were supposed
to verify, pursuant to their obligations under the American Convention, were being complied with.
The Commission concluded that the judicial remedies filed did not allow a prompt and effective review
of both the justification for, and the duration of, the preventive detention in light of the said
standards, and this resulted in a violation of Articles 7(6) and 25(1) of the American Convention.
69. The representatives indicated that, Mr. Jenkins had filed numerous remedies and
jurisdictional actions to defend his freedom and none of them had been successful as regards either
a reasonable time or the merits of the complaint.
70. The State argued that Mr. Jenkins had had access to remedies to challenge his incarceration.
It also noted that the remedies filed by Mr. Jenkins were not effective to challenge the duration of
his preventive detention. It stressed that the request for release filed by Mr. Jenkins dealt at length
with the constitutionality of the norm, but never substantiated his request for release by arguing that
Mr. Jenkins did not represent a procedural risk for the investigation.
B.
Considerations of the Court
71. The Court has indicated that the essential content of Article 7 of the American Convention is
the protection of the liberty of the individual against any arbitrary or unlawful interference by the
State.58 It has asserted that this article contains two very different types of regulations, one general
and the other specific. The general aspect is to be found in the first paragraph: “[e]very person has
the right to personal liberty and security.” While the specific aspect is composed of a series of guarantees
Cf. Case of the "Juvenile Re-education Institute” v. Paraguay. Preliminary objections, merits, reparations and costs.
Judgment of September 2, 2004. Series C No. 112, para. 223, and Case of Yarce et al. v. Colombia. Preliminary objection,
merits, reparations and costs. Judgment of November 22, 2016. Series C No. 325, para. 138.
58
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