of the State, and therefore it is in conformity with the express provisions of Article 7(2) of
the Convention, which precisely refers to the provisions of the “laws” of the State.
Nor does the judgment appear to consider that the reasonableness referred to in Article
7(5) of the Convention must be determined first by the competent national judge and
subsequently, if applicable, as in the present case, by the Court. In both instances, this
must be done in accordance with the provisions of the Convention and not only or principally
as prescribed in the aforementioned domestic laws. Thus, the Convention allows this Court
a certain margin of appreciation according to the circumstances of each case before it,
without demanding its strict adherence to the provisions of domestic law. It should not be
forgotten that the Court is responsible for applying and interpreting the Convention in the
cases submitted to it, 45 that is, it must rule in accordance with it and not in accordance
with the national laws of the State concerned, unless it refers to the latter, which is not the
case here. Indeed, the reasonableness of the time period mentioned in Article 7(5) is
subject to “the guarantees that assure his (the defendant’s) appearance at trial”, which
was the situation in the instant case.
Finally, it is essential to recall that, as stated in the judgment itself, 46 the appearance of
the detainee in this case occurred due to the extradition procedure carried out to secure
his return from Canada, since he tried to evade justice by remaining in that foreign country.
It is evident that his detention was the way to ensure his presence at trial, given the wellfounded fear that he would again attempt to evade the action of justice.
Consequently, it is for the abovementioned reasons that I cannot agree with the decision
reached in the judgment on this point. And it also explains why I do not consider it
necessary to declare, as it does, that the judgment constitutes “per se, a form of reparation.
45
Art. 62(3): “The jurisdiction of the Court shall comprise all cases concerning the interpretation and application
of the provisions of this Convention that are submitted to it, provided that the States Parties to the case recognize
or have recognized such jurisdiction, whether by special declaration pursuant to the preceding paragraphs, or by
a special agreement.”
46
Para. 364.
17
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