Inter-American Court of Human Rights

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Considerations of the Court
222. Article 7 of the American Convention regulates the guarantees needed to safeguard personal liberty and reads as follows:

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.

223. The essence of Article 7 of the American Convention is the protection of the liberty of the individual from arbitrary or unlawful interference by the State and the guarantee of the detained individual’s right of defense.128 This Court has written that the protection of freedom safeguards both the physical liberty of the individual and his personal safety, in a context where the absence of guarantees may result in the subversion of the rule of law and deprive those detained of the minimum legal protection.129

224. Subparagraphs 2 and 3 of Article 7 establish the limits on public power and expressly prohibit unlawful and arbitrary detentions. The Court has held that:
[a]ccording to the first of these regulatory provisions, no one shall be deprived of his physical liberty, except for reasons, cases or circumstances specifically established by law (material aspect), but, also, under strict conditions established beforehand by law (formal aspect).130
225. In the instant case, the right to personal liberty cannot be examined without taking into account that most of its alleged victims are children. In other words, a child’s right to personal liberty must of necessity take the best interests of the child into account; it is the child’s vulnerability that necessitates special measures of protection.
226. In the case sub judice the Court observes that both the Commission and the representatives alleged the existence of patterns or systematic practices that violated Article 7 of the American Convention, to the detriment of all the inmates interned in the Center in the period from August 14, 1996, to July 25, 2001. The Commission’s contention was that the effect of the practice was, inter alia, that inmates remained in preventive detention for long periods of time. The representatives, for their part, argued that it was a systematic practice, contrary to international standards for the protection of children and involved, inter alia, “generalized, abusive and arbitrary” recourse to preventive detention and unwarranted delays in deciding cases. That being the case, the Commission and the representatives reasoned that in the case of these practices alleged to be in violation of international provisions, the burden of proof falls to the State; in other words, it was Paraguay that had to prove that the inmates’ right to personal liberty was not violated.
227. Taking account of these general comments concerning the right in question, and the special protection required when children are involved, the Court will now examine whether, given the circumstances of the particular case, the State violated the right to personal liberty of each alleged victim.
228. First and foremost, preventive detention is the most severe measure that can be applied regarding to someone accused of a crime. Therefore, it should be reserved for the most exceptional cases, given the limits imposed by the right to presumption of innocence and the principles of necessity and proportionality that are essential in a democratic society.131
229. Preventive detention must strictly conform to the provisions of Article 7(5) of the American Convention: it cannot be for longer than a reasonable time and cannot endure for longer than the grounds invoked to justify it. Failure to comply with these requirements is tantamount to a sentence without a conviction, which is contrary to universally recognized general principles of law.132
230. When preventive detention is ordered for children, the rule must be applied with even greater rigor, since the norm should be measures that are alternatives to preventive imprisonment. Those measures might include the following: strict supervision; permanent custody; foster care; removal to a home or educational institution; care, guidance and supervision orders; counseling; probation; education and vocational training programmes and other alternatives to institutional care.133 The purpose of these alternative measures is to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence.134 This principle is provided for in various international instruments and rules.135
231. When, however, preventive detention is deemed necessary in the case of a child, it must be for the shortest period possible, as provided in Article 37.b) of the Convention on the Rights of the Child, which provides that States parties shall ensure that:
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 […].
232. From the body of evidence in the present case, it is impossible to discern the manner in which Article 7 of the Convention may have been violated in the case of each individual alleged victim. In order to make a determination as to whether that article was violated, the Court must know the particulars of how preventive detention was used in the case of each individual inmate, in order to then be able to analyze whether each and every Article 7 requirement has been satisfied. As for the Center’s inmate population as a whole, whose rights under Article 7 of the Convention both the Commission and the representatives asked the Court to declare violated on the grounds that preventive detention had been applied disproportionately, the Court notes that in the case of some inmates, their conviction was final; others were in preventive detention for crimes like murder and rape. When it examined Article 7 in its Article 50 report, the Commission itself wrote that of the total inmate population at the Center, 93.2% may have had their right to personal liberty violated, but not all the inmates. This Court observes that neither the representatives nor the State provided the information needed to be able to make this determination. The Court is, however, deeply troubled by the State’s lack of vigilance or care with regard to children in preventive detention that the facts in this case have shown.
233. Although the Court has frequently used patterns of conduct or practices as a means of evidence to determine that human rights were violated, it has always done so when the finding is supported by other specific pieces of evidence (supra para. 217). In the case of Article 7 of the American Convention, the Court needs information on each of the alleged victims, which it does not have in the present case because the parties failed to provide it.
234. This Court therefore finds that it does not have the information it needs to be able to determine whether Article 7 (8.2) of the Convention was violated in the case of the alleged individual victims.

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