32
the judicial process would have been frustrated both by the flight and by the failure of the
applicants to appear. It also stated that the pretrial detention had come under regular review
when the applicants were ordered to be released in August, 1987 “as a consequence of the
September, 1984 entry into force of the [American Convention].”
112. The State then discussed the question of whether the amount of time they were held
was reasonable and emphasized that the conduct of the applicants was sufficient justification
to prolong the pretrial detention. It also claimed that the analysis should not include those
applicants whose precautionary measure had been applied before the Convention went into
effect, but consider only the pretrial detention that occurred after the date of ratification of
the American Convention. In view of all this, the State assured that the amount of time was
reasonable, considering the complexity of the case and the conduct of the applicants. The
State then spoke on the alleged conversion of pretrial detention into a prison sentence, noting
that “all the applicants were convicted of the crime of military fraud in the first trial, under
military justice, and in the second and third trials through the federal courts and the Supreme
Court.” They therefore asked the Court to declare that article 7 of the Convention had not
been breached.
B.
Considerations of the Court
113. Before beginning its analysis of this particular case, the Court would emphasize that Mr.
Allendes and Mr. López Mattheus were released on September 8, 1981 (supra par. 74), and
consequently, the Court is not competent to examine their arrest warrants or pretrial
detention. Moreover, in keeping with the decision made under the preliminary objection
ratione temporis, the Court is not competent to hold that the American Convention has been
violated for the events that took place prior to the State’s recognition of its jurisdiction (supra
par. 28). The Court therefore has no jurisdiction to examine the alleged illegal or arbitrary
nature of the arrest warrants or the orders for pretrial detention of the alleged victims that
took place in September and October 1980, but only during the period of pretrial detention
as of September 5, 1984.
114. The Court has noted that the essence of article 7 of the American Convention 119 is the
protection of the liberty of the individual from arbitrary or unlawful interference by the
State.120 This Court recalls that article 7 of the American Convention contains two distinct
types of regulations: one general, the other specific. The general one is found in the first
119
Article 7. Right to Personal Liberty
1. Every person has the right to personal liberty and security.
2. No one shall be deprived of his physical liberty except for the reasons and under the conditions established
beforehand by the constitution of the State Party concerned or by a law established pursuant thereto.
3. No one shall be subject to arbitrary arrest or imprisonment.
4. Anyone who is detained shall be informed of the reasons for his detention and shall be promptly notified of the
charge or charges against him.
5. Any person detained shall be brought promptly before a judge or other officer authorized by law to exercise judicial
power and shall be entitled to trial within a reasonable time or to be released without prejudice to the continuation
of the proceedings. His release may be subject to guarantees to assure his appearance for trial.
6. Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court
may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention
is unlawful. In States Parties whose laws provide that anyone who believes himself to be threatened with deprivation
of his liberty is entitled to recourse to a competent court in order that it may decide on the lawfulness of such threat,
this remedy may not be restricted or abolished. The interested party or another person in his behalf is entitled to
seek these remedies.[…]
120
Cfr. Case of "Juvenile Reeducation Institute" v. Paraguay. Preliminary Objections, Merits, Reparations and
Costs. Judgment of September 2, 2004. Series C No. 112, par. 223; and Case of Torres Millacura et al. v. Argentina.
Merits, Reparations and Costs. Judgment of August 26, 2011. Series C No. 229, par. 76.