39
other hand, the alleged victims, when they were detained, tortured, and extra-legally
executed, were unarmed, defenseless, and they were minors, which adds to the
gravity of the arbitrary detention in the instant case.
90.
Based on the above, the arbitrary detention of Rafael Samuel and Emilio
Moisés Gómez Paquiyauri is a violation of Article 7(3) of the American Convention.
91.
Subparagraphs 4, 5 and 6 of Article 7 of the American Convention establish
positive obligations that make specific requirements both of State agents and of third
parties acting with their tolerance or authorization and who are responsible of the
detention.79
92.
This Court has established that Article 7(4) of the Convention sets forth a
mechanism to avoid illegal or arbitrary conduct starting with the very act of
deprivation of liberty and guarantees the detainee’s defense, for which reason the
detainee and those who represent him or are his legal guardians have the right to be
informed of the motives and reasons of the detention when it takes place, as well as
regarding the rights of the detainee.80
93.
On the other hand, the detainee also has the right to notify a third party –for
example, a relative or an attorney- of what happened. In this regard the Court has
pointed out that “[t]he right to contact a relative becomes especially important when
detainees are minors”.81 This notification must be carried out immediately by the
authorities conducting the detention82 and, in the case of minors, they must also take
the necessary steps for the notification to actually take place.83
94.
In this case, it was proven that neither Rafael Samuel nor Emilio Moisés
Gómez Paquiyauri, at the time of their detention, nor their next of kin, were informed
of the reasons for the detention, of the criminal conduct attributed to them, and of
their rights as detainees, all of which breaches Article 7(4) of the Convention, to the
detriment of Rafael Samuel and Emilio Moisés Gómez Paquiyauri.
95.
Article 7(5) of the Convention provides that detention of an individual must be
subject to court review without delay, as a means of control to impede arbitrary and
unlawful detentions.84 Whoever is deprived of his or her liberty without a court order
79
See Case of Maritza Urrutia, supra note 5, para. 71; and Case of Juan Humberto Sánchez, supra
note 15, para. 81.
80
See Case of Maritza Urrutia, supra note 5, para. 72; Case of Bulacio, supra note 6, para. 128;
and Case of Juan Humberto Sánchez, supra note 15, para. 82.
81
Case of Bulacio, supra note 6, para. 130.
See Case of Bulacio, supra note 6, para. 130; and The Right to Information on Consular
Assistance in the Framework of the Guarantees of the Due Process of Law. Advisory Opinion OC-16/99 of
October 1, 1999. Series A No. 16, para. 106.
82
83
See Case of Bulacio, supra note 6, para. 130; and Council of Europe. Committee on the
Prevention of Torture. 2nd General Report on the CPT´s activities covering the period I January to
December 1991, paras. 36-43.
84
See Case of Maritza Urrutia, supra note 5, para. 73; Case of Bulacio, supra note 6, para. 129;
Case of Juan Humberto Sánchez, supra note 15, para. 84; Case of Bámaca Velásquez, supra note 68,
para. 140; and Case of the “Street Children” (Villagrán Morales et al.), supra note 68, para. 135.
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