26
not informed of the reasons for it, nor was he notified of the charge or charges made
against him, “since the State summoned Mr. […] Acosta Calderón with the court order
for the investigation of the crime on October 18, 1991, that is, nearly two years after
the date of his arrest” (supra para. 52(f)). The Commission did not allege the violation
of subparagraph 4 of the mentioned Article.
73.
The Court did not consider that there was a violation of Article 7(4) of the
Convention since the arrest of the alleged victim was done based on the supposition
that it was a crime detected in the act. Under said circumstance it assumed that Mr.
Acosta Calderón knew the reason for his arrest was the alleged drug trafficking.
*
*
*
74.
The Court considers that it is essential to point out that preventive detention is
the most severe measure that can be applied to the persona accused of a crime,
reason for which its application must have an exceptional nature, since it is limited by
the principles of legality, the presumption of innocence, need, and proportionality, all
of which are strictly necessary in a democratic society.59
75.
The Tribunal also considers that preventive detention is a precautionary
measure, not a punitive one.60 The arbitrary extension of a preventive detention turns
it into a punishment when it is inflicted without having proven the criminal
responsibility of the person to whom this measure is applied.
76.
Article 7(5) of the Convention states that any person detained is entitled to
have a judicial authority revise said arrest, without delay, as a suitable means of
control in order to avoid arbitrary and illegal arrests. The prompt judicial control seeks
to avoid arbitrary or illegal arrests, taking into account that, in a Constitutional State,
a judge must guarantee the rights of the person detained, authorize the adoption of
precautionary or coercive measures, when these are strictly necessary and, in general,
ensure that the accused receive a treatment consequent with the presumption of
innocence.61
77.
Both the Inter-American Court and the European Court of Human Rights have
accorded special importance to the prompt judicial supervision of detentions. A person
deprived of his freedom without any type of judicial supervision must be released or
immediately brought before a judge.62 The European Court of Human Rights has
stated that although the word “immediately” should be interpreted according to the
special characteristics of each case, no situation, however serious, grants the
authorities the power to unduly prolong the period of detention, because this would
Cfr. Case of Tibi, supra note 6, para. 106; and Case of “Children’s Rehabilitation”. Judgment of
September 2, 2004. Series C No. 112, para. 228.
59
60
Cfr. Case of Tibi, supra note 6, para. 180; and Case of Suárez Rosero. Judgment of November 12,
1997. Series C No. 35, para. 77.
61
Cfr. Case of Tibi, supra note 6, para. 114; Case of the Gómez Paquiyauri Brothers, supra note 57,
para. 96; and Case of Maritza Urrutia, supra note 57, para. 66.
62
Cfr. Case of Tibi, supra note 6, para. 115; Case of the Gómez Paquiyauri Brothers, supra note 57,
para. 95; and Case of Maritza Urrutia, supra note 57, para. 73; and, in the same sense, Eur. Court H.R.,
Brogan and Others, judgment of 29 November 1988, Series A no. 145-B, pars. 58-59, 61-62; and Kurt v.
Turkey, No. 24276/94, pars. 122, 123 and124, ECHR 1998-III.