34
fundamental rights of the individual because they are, among other qualities, unreasonable,
unpredictable or disproportionate.124
120. A measure for deprivation of liberty will not be considered arbitrary if the following
parameters are met: (i) that the purpose be compatible with the Convention, 125 such as to
ensure that the accused will not prevent the proceedings from being conducted or elude the
system of justice;126 (ii) that they be appropriate for achieving the objective sought; 127 (iii)
that they be necessary; in other words, they must be absolutely essential to achieve the
established objective and there is no available measure less injurious to the right affected; 128
(iv) that they be strictly proportional,129 so that the sacrifice inherent in the restriction of the
right to liberty is not exaggerated or excessive compared to the advantages obtained by this
restriction and the achievement of the intended purpose;130 (v) any restriction of liberty that
does not include sufficient justification to gauge whether it is in keeping with the above
conditions will be arbitrary and, therefore, violate Article 7(3) of the Convention. 131
121. Here it should be stated that a pretrial arrest or detention should be subject to periodic
review and not be continued when the reasons for its adoption no longer exist. 132 In this
sense, the judge does not have to wait until an acquittal is delivered for a person who has
been detained to recover his freedom, but must periodically assess whether the grounds for
the measure remain, and whether the measure continues to be necessary and proportional,
and also if the duration of detention has exceeded legal and reasonable limits. Whenever it
appears that the pretrial detention does not meet these conditions, release should be ordered,
without prejudice to the continuation of the respective proceedings.133
122. It is the national authorities who are responsible for assessing the pertinence of
maintaining the precautionary measures they issue pursuant to their own laws. When carrying
out this task, national authorities should provide sufficient grounds to permit the interested
parties to know the reasons why the restriction of their liberty is being maintained134 and, to
124
Cfr. Case of Gangaram Panday v. Suriname. Merits, Reparations and Costs. Judgment of January 21, 1994.
Series C No. 16, par. 47; Case of expelled Dominicans and Haitians v. Dominican Republic. Preliminary objections,
Merits, Reparations and Costs. Judgment of August 28, 2014. Series C No. 282, par. 364.
125
Cfr. Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador, par. 103; Case of Norín Catrimán et al. (Leaders,
Members and Activist of the Mapuche Indigenous People) v. Chile, par. 312.
126
Cfr. Case of Suárez Rosero v. Ecuador. Merits. Judgment of November 12, 1997. Series C No. 35, par. 77;
Case of Norín Catrimán et al. (Leaders, Members and Activist of the Mapuche Indigenous People) v. Chile, par. 312.
127
Cfr. Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador, par. 93; Case of Norín Catrimán et al. (Leaders,
Members and Activist of the Mapuche Indigenous People) v. Chile, par. 312.
128
Cfr. Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador, par. 93; Case of Norín Catrimán et al. (Leaders,
Members and Activist of the Mapuche Indigenous People) v. Chile, par. 312.
129
Cfr. Case of Suárez Rosero v. Ecuador, par. 77; Case of Norín Catrimán et al. (Leaders, Members and Activist
of the Mapuche Indigenous People) v. Chile, par. 312.
130
Cfr. Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador, par. 93; Case of Norín Catrimán et al. (Leaders,
Members and Activist of the Mapuche Indigenous People) v. Chile, par. 312.
131
Cfr. Case of García Asto and Ramírez Rojas v. Peru. Judgment of November 25, 2005. Series C No. 137, par.
128; Case of Norín Catrimán et al. (Leaders, Members and Activist of the Mapuche Indigenous People) v. Chile, par.
312.
132
Cfr. Case of Bayarri v. Argentina. Preliminary Objection, Merits, Reparations and Costs. Judgment of May 6,
2008. Series C No. 180, par. 74; Case of Norín Catrimán et al. (Leaders, Members and Activist of the Mapuche
Indigenous People) v. Chile, par. 311.
133
Cfr. Case of Bayarri v. Argentina, par. 76; Case of Norín Catrimán et al. (Leaders, Members and Activist of
the Mapuche Indigenous People) v. Chile, par. 311.
134
Cfr. Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador, par. 107; Case of Norín Catrimán et al. (Leaders,
Members and Activist of the Mapuche Indigenous People) v. Chile, par. 311.