74. The Court has considered that the arbitrary nature of measures of deprivation of liberty should
be assessed based on three factors: (i) that evidence exists to bring charges against or to prosecute
an individual – in other words, that the “substantive presumptions” to order the precautionary
measures are presented; (ii) that these comply with the four elements of the “proportionality test”
– that is: legitimacy of the purpose (which must be compatible con the American Convention), 67
appropriateness, necessity and strict proportionality,68 and (iii) that the decision imposing such
measures includes sufficient reasoning to permit an assessment of whether they are in keeping with
the foregoing conditions.69
75. With regard to the first points, the Court has established that, before assessing the purpose of
the measure, in order to comply with the requirements necessary to restrict the right to personal
liberty by preventive detention, there must be sufficient evidence leading to a reasonable supposition
that the individual subjected to the process could have participated in the wrongful act investigated.70
76. Regarding the second point, the Court has indicated that, when imposing a measure of
deprivation of liberty, the judicial authority must take into consideration the proportionality of the
measure. Consequently, the judicial authority should only impose measures of this nature when it
has verified that they are: (i) appropriate for achieving the objective sought; (ii) necessary, in the
sense that they are absolutely essential to achieve the required objective and there is no available
measure less injurious to the right affected that is equally suitable to achieve the proposed purpose,
and (iii) that they are strictly proportionate, so that the sacrifice inherent in the restriction of the
right to liberty is not exaggerated or disproportionate compared to the advantages obtained by this
restriction and achievement of the intended purpose.71 This Court has indicated that the measure
should only be imposed when it is necessary to meet a legitimate objective, namely: that the
defendant will not impede the development of the proceedings or evade the action of justice. 72 The
Court considers that only those objectives that are specifically related to the efficient development
of the proceedings – in other words, to the danger of flight of the defendant (directly established in
Article 7(5) of the American Convention), or to avoid the defendant impeding the development of
the proceedings – should be considered legitimate.
77. On the third point, the Court has considered that any restriction of freedom that does not
include sufficient reasoning that permits an assessment of whether it is in keeping with the foregoing
conditions will be arbitrary and, therefore, will violate Article 7(3) of the Convention.73 In addition,
in order to respect the presumption of innocence (Article 8(2)), when precautionary measures are
ordered that restrict freedom, in each specific case, the State must justify, clearly and with reasons,
67
Cf. Case of the Women Victims of Sexual Torture v. Mexico, supra, para. 251.
Cf. Case of Palamara Iribarne v. Chile. Merits, reparations and costs. Judgment of November 22, 2005. Series C No.
135, para. 197, and Case of the Women Victims of Sexual Torture v. Mexico, supra, para. 251.
68
Cf. Case of García Asto and Ramírez Rojas v. Peru. Preliminary objection, merits, reparations and costs. Judgment
of November 25, 2005. Series C No. 137, para. 128, and Case of the Women Victims of Sexual Torture v. Mexico, supra, para.
251. See, for greater details, Case of Romero Feris v. Argentina, supra, paras. 93 to 111.
69
Cf. Case of Servellón García et al. v. Honduras, supra, para. 90, and Case of the Women Victims of Sexual Torture
v. Mexico, para. 240.
70
Cf. Case of Argüelles et al. v. Argentina. Preliminary objections, merits, reparations and costs. Judgment of November
20, 2014. Series C No. 288, para. 120, Case of Wong Ho Wing v. Peru. Preliminary objection, merits, reparations and costs.
Judgment of June 30, 2015. Series C No. 297, para. 248, and Case of Amrhein et al. v. Costa Rica. Preliminary objections,
merits, reparations and costs. Judgment of April 25, 2018. Series C No. 354, para. 356.
71
Cf. Case of Suárez Rosero v. Ecuador. Reparations and costs. Judgment of January 20, 1999. Series C No. 44, para.
77; Case of Wong Ho Wing v. Peru, supra, para. 250, and Case of the Women Victims of Sexual Torture v. Mexico, supra,
para. 251.
72
Cf. Case of García Asto and Ramírez Rojas v. Peru, supra, para. 128, and Case of the Women Victims of Sexual
Torture v. Mexico, supra, para. 251.
73
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