Gonzalo Cortez Espinoza vs. Ecuador

A selection of key paragraphs can be found below the document.


57. Regarding Article 7.2 of the Convention, the Inter-American Court has pointed out that it “recognizes the main guarantee of the right to physical liberty: the legal exception, according to which the right to personal liberty can only be affected by a law.”54 The legal exception required to impair the right to personal liberty pursuant to Article 7(2) of the Convention 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. Accordingly, any requirement established in domestic law that is not complied with when depriving a person of his liberty will cause this deprivation to be unlawful and contrary to the American Convention.55

67. The Commission and the Court have pointed out that the use of pre-trial detention is limited by the principles of legality, presumption of innocence, necessity, and proportionality.60 Moreover, the Court has pointed out that it is a precautionary, not a punitive, measure61 and that it is the harshest measure that can be imposed on an accused, which should therefore be used exceptionally. Both organs of the inter-American system consider that the general rule should be liberty of the accused while a resolution is reached on his or her criminal responsibility.62

73. Observance of the right of presumption of innocence likewise requires that the State substantiate clearly and on good grounds in each concrete case the existence of valid prerequisites for allowing preventive custody.71 Thus, the principle of the presumption of innocence is violated when preventive custody is arbitrarily imposed; or else, when its application is essentially determined by the type of offense, the expected sentence, or the mere existence of circumstantial evidence implicating the accused.72

86. Article 8.1 of the Convention upholds the right to a hearing by a “competent… tribunal previously established by law.” Thus, persons “the right to be tried by ordinary courts of justice in accordance with legally established procedures.” The State should not establish tribunals that do not apply duly established procedural rules as a replacement for the jurisdiction that would normally be exercised by the ordinary courts. The idea is to prevent people from being tried by special or “ad hoc” tribunals.88

88. The Court has pointed out that the application of military justice must be strictly reserved for military in active service. For that reason, the Court has consistently declared that neither civilians nor “retired members of the military may be tried by military courts.”90

90. The Commission recalls that, under Article 8.2.b of the American Convention, during proceedings the accused is entitled, with full equality, to prior notification in detail of the charges against him. As the InterAmerican Court has pointed out, in order to comply with Article 8.2.b, “the State must notify the accused not only of the charges against him, that is, the crimes or offenses he is charged with, but also of the reasons for them, and the evidence for such charges and the legal definition of the facts. The defendant has the right to know, through a clear, detailed and precise description, all the information of the facts in order to fully exercise his right to defense and prove to the judge his version of the facts.91


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