35
150
therein.
This includes guaranteeing protection against arbitrary arrest and detention, and the
151
requirement that the grounds and procedures for detention and arrest shall be those prescribed by law.
It also includes the guarantee of prompt and effective judicial oversight of a detention to protect the
welfare of the person detained whenever that person is entirely under the State’s control and therefore
152
particularly vulnerable to abuses of authority.
They have also observed that in cases where no arrest
warrant has been issued, or the arrest does not get prompt judicial oversight by a competent judicial
authority, when the person detained does not or cannot fully understand the reason for his arrest or does
not have access to legal counsel, and when the family of the detainee is unable to locate him promptly,
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there is a clear risk not just to the detainee’s rights, but also to his personal integrity.
166.
The Commission has observed that
[t]he analysis of the compatibility of the deprivation of liberty with the provisions of Article 7(2 and 3)
of the American Convention should be done in three phases. The first consists of determining the
legality of the detention from a material and formal standpoint. To do so, it must be determined
whether this action is compatible with the domestic legislation of the State in question. The second
step involves the analysis of these domestic provisions within the context of the guarantees
established by the American Convention, in order to determine whether they are arbitrary. Finally,
if the detention meets the requirements of a domestic legal provision that is compatible with the
American Convention, it should be determined whether the application of this law in this specific
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case was arbitrary.
167.
The Inter-American Court, for its part, has on several occasions held that Article 7 of the
Convention regulates the guarantees necessary to safeguard personal liberty; with specific reference to
subparagraphs 2 and 3, it has written the following:
[a]ccording to the first of these regulatory provisions [Article 7(2) of the Convention], no one shall
be deprived of his personal liberty except for reasons, cases or circumstances specifically
established by law (material aspect) but, also, under strict conditions established beforehand by
law (formal aspect). In the second provision [Article 7(2) of the Convention], we have a condition
according to which no one shall be subject to arrest or imprisonment for causes or methods that –
although qualified as legal – may be considered incompatible with respect for the fundamental
rights of the individual, because they are, among other matters, unreasonable, unforeseeable or
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out of proportion.
168.
The Commission has also recognized that the State has the authority to deprive
individuals of their liberty for strictly necessary reasons having nothing to do with the prosecution and
punishment of crimes. It has written that the State has the authority to detain persons for purposes of
controlling the entry and residence of aliens in its territory, or to confine persons for reasons of physical or
150
IACHR, Fifth Report on the Situation of Human Rights in Guatemala, OEA/Ser.L./V/II.111 doc.21 rev., April 6, 2001,
Chapter VII, paragraph 37, citing IACHR, Case 11.245, Report No. 12/96, Jorge Alberto Giménez (Argentina), Annual Report of the
IACHR of 1995; I/A Court H.R., Case of Suárez Rosero v. Ecuador. Merits. Judgment of November 12, 1997, Series C. No. 35,
paragraph 43.
151
I/A Court H.R., Case of Suárez Rosero v. Ecuador. Merits. Judgment of November 12, 1997, Series C. No. 35,
paragraph 44.
152
IACHR, Case 11.205, Report No. 2/97, Jorge Luis Bronstein et al. (Argentina), Annual Report of the IACHR, 1997,
paragraph 11; Case 12.069, Report No. 50/01, Damion Thomas (Jamaica), Annual Report of the IACHR 2000, paragraphs 37, 38.
153
IACHR, Fifth Report on the Situation of Human Rights in Guatemala, OEA/Ser.L./V/II.111 doc.21 rev., April 6, 2001,
Chapter VII, paragraph 37.
154
IACHR, Report No. 53/01 (Merits), Case 11.565, Ana, Beatriz and Celia González Pérez (Mexico), April 4, 2001,
paragraph 23.
155
I/A Court H.R., Case of Acosta Calderón v. Ecuador. Merits, Reparations and Costs. Judgment of June 24, 2005.
Series C No. 129, paragraph 57; Case of Tibi v. Ecuador. Preliminary Objections, Merits, Reparations and Costs. Judgment of
September 7, 2004. Series C No. 114, paragraph 98.