42
other words, to ensure that this measure is not arbitrary, it must respect the following requirements:
i) that the purpose of the measures that deprive or restrict liberty is legitimate (it is worth noting that
the Court has recognized that ensuring that the accused does not impede the development of the
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proceedings or evade the action of justice are legitimate purposes);
ii) that the measures
adopted are appropriate to achieve the intended objective; iii) that they are necessary, in the sense
that they are absolutely essential to attain the desired objective, and that there is no measure that
is less onerous in relation to the affected right, among all those that are similarly appropriate to
achieve the proposed objective (for this reason, the Court has indicated that the right to personal
259
liberty presupposes that any limitation must be exceptional) , and iv) that the measures are
260
strictly proportionate,
so that the sacrifice inherent in the restriction of the right to liberty is not
exaggerated or disproportionate compared with the advantages obtained by the use of this
restriction and the achievement of the intended objective. Any restriction of liberty that does not
include sufficient grounds that allow an assessment to be made of whether it is adapted to these
261
conditions will be arbitrary and, consequently, will violate Article 7(3) of the Convention.
219.
The Court has specified that in order to meet the requirements for restricting the
right to personal liberty “there must be sufficient evidence to lead to a reasonable supposition of
guilt of the person submitted to a proceeding and the arrest must be strictly necessary to ensure
that the accused party will not impede an effective development of the investigations nor will he
evade the action of justice. When ordering restrictive measures to freedom it is precise [sic] that
the State justify and prove the existence, in the specific case, of those requirements demanded
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by the Convention.”
220.
The Convention on the Rights of the Child, ratified by Venezuela and used by the InterAmerican Court to determine the scope of Article 19 of the Convention, establishes as follows in Article
37 b):
The States Parties shall ensure that:
b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or
imprisonment of a child shall be in conformity with the law and shall be used only as a measure of
last resort and for the shortest appropriate period of time.
221.
Reiterating this provision, the Committee on the Rights of the Child in General Comment
No. 10 stated that “the arrest, detention or imprisonment of a child shall be in conformity with the law and
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shall be used only as a measure of last resort and for the shortest appropriate period of time.”
222.
Children are different from adults both in terms of their physical and psychological
development and their emotional and educational needs, which justify the State’s special obligations to
provide protection. Thus, the Commission feels that only exceptional reasons – according to relevant
international standards – can justify depriving children under the age of 18 of liberty.
258
I/A Court HR., Servellón García et al. Case. Judgment of September 21, 2006. Series C, No. 152. para. 111.
[Translator’s note: English translation quoted via Yvon Neptune v. Haiti, Judgment of May 6, 2008, para. 98.
259
I/A Court HR., Palamara Iribarne Case. Judgment of November 22, 2005. Series C, No. 135. para. 197; I/A Court
HR., García Asto and Ramírez Rojas Case. Judgment of November 25, 2005. Series C, No. 137. para. 106.
260
I/A Court HR., Case of the “Juvenile Reeducation Institute.” Judgment of September 2, 2004. Series C, No. 112.
para. 228.
261
I/A Court HR. Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador. Preliminary Objections, Merits, Reparations
and Costs. Judgment of November 21, 2007. Series C, No. 170. para. 128.
262
I/A Court HR., López Álvarez Case. Judgment of February 1, 2006. Series C, No. 141. para. 69; I/A Court HR.,
Palamara Iribarne Case. Judgment of November 22, 2005. Series C, No. 135. para. 198; and I/A Court HR., Acosta Calderón Case.
Judgment of June 24, 2005. Series C, No. 129. para. 111.
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“Children’s rights in juveline justice. CRC/C/GC/10 April 25, 2007, para. 79