40
207.
Based on the facts that the Commission has recognized as proven and taking into
account the condition of the minor Eduardo José Landaeta at the time of his arrest, the right to personal
liberty will be analyzed in the following order: 1) The right not to be unlawfully deprived of liberty; 2) The
right not to be deprived of liberty arbitrarily; 3) The right of the detained and family members to know the
reasons for the arrest and the charges against the detainee; and 4) The right to prompt judicial control.
1.
The right not to be deprived of liberty illegally
208.
The Inter-American Court has stated that Article 7.2 of the Convention “recognizes the
main guarantee of the right to physical liberty: the legal exception, according to which the right to personal
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liberty can only be affected by a law.” In addition, it has held that “the legal exception must necessarily
be accompanied by the principle of legal definition of the offense (tipicidad), which obliges the States to
establish as specifically as possible and “beforehand,” the “reasons” and “conditions” for the deprivation
of physical liberty. Hence, Article 7.2 of the Convention refers automatically to domestic law. Accordingly,
any requirement established in domestic law that is not complied with when depriving a person of his
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liberty will cause this deprivation to be unlawful and contrary to the American Convention.”
209.
Article 60 of the Political Constitution of Venezuela of 1961, in effect at the time of the
events, indicated that:
No one may be arrested or detained, unless caught in flagrante, except by virtue of a written order
of an official authorized to decree the detention, in the cases and with the formalities prescribed by
law.
210.
Article 182 of the Code of Criminal Procedure in effect at the time regulated this
constitutional provision as follows:
So long as it has been indisputably proven that a crime has been committed that merits corporal
punishment and there is no obvious penalty prescribed for such offense, and there are wellfounded indications of an individual’s culpability, the Examining Magistrate Court will issue a
warrant for the arrest of the accused that will contain the following:
1. The full name of the accused and any other identifying information.
C. A brief summary of the factual and legal grounds for the arrest order and the provisional
classification of the crime.
The Examining Magistrate Court, if the accused is before him, will issue an order of imprisonment
and send it to the office responsible for the management of the corresponding prison facility. That
order will contain:
a)
b)
c)
d)
Indication of the Court issuing the order.
Identifying information on the accused.
The classification given to the crime in the order of arrest.
The issue date and signatures of the Judge and Clerk.
When the accused is not under arrest, the Court will issue an arrest warrant to the police
authorities, indicating the identity of the accused and his or her location, if known. If not known, a
summons will be issued.
The accused will be notified of the arrest order when it is executed or immediately thereafter.
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I/A Court HR. Chaparro Álvarez and Lapo Íñiguez v. Ecuador Case. Preliminary Objections, Merits, Reparations and
Costs. Judgment of November 21, 2007. Series C, No. 170. para. 56.
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I/A Court HR. Chaparro Álvarez and Lapo Íñiguez v. Ecuador Case. Preliminary Objections, Merits, Reparations and
Costs. Judgment of November 21, 2007. Series C, No. 170. para. 57.