60
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.
[…]
95.
In consonance with the above, the second United Nations Principle for the
Protection of All Persons under Any Form of Detention or Imprisonment sets forth
that
[a]rrest, detention or imprisonment shall only be carried out strictly in accordance with
the provisions of the law and by competent officials or persons authorized for that
purpose.126
96.
The fourth Principle of that same international instrument, in turn, states that
[a]ny form of detention or imprisonment and all measures affecting the human rights of
a person under any form of detention or imprisonment shall be ordered by, or be subject
to the effective control of, a judicial or other authority.127
97.
This Court has stated that protection of liberty 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.”128
98.
This Court has also stated, in connection with subparagraphs 2 and 3 of
Article 7 of the Convention, regarding prohibition of unlawful or arbitrary detention or
arrest, that:
[a]ccording to the first of these regulatory provisions [Article 7(2) of the Convention], no
one shall be deprived of his personal liberty except for reasons, cases or circumstances
specifically established by law (material aspect) but, also, under strict conditions
established beforehand by law (formal aspect). In the second provision, we have a
condition according to which no one shall be subject to arrest or imprisonment for
causes or by methods that – although qualified as legal – may be considered
incompatible regarding for the fundamental rights of the individual, because they are,
among other matters, unreasonable, unforeseeable or out of proportion.129
99.
The 1984 Political Constitution of Ecuador, in force when Daniel Tibi was
detained, provided in Article 19(17)(h) that:
[n]o one shall be deprived of his liberty except with a written order by a competent
authority, in the cases, for the time, and with the formalities set forth in the law, except
126
United Nations, Body of Principles for the Protection of All Persons under Any Form of Detention
or Imprisonment, Adopted by the General Assembly in its Resolution 43/173, of December 9, 1988,
Principle 2.
127
United Nations, Body of Principles for the Protection of All Persons under Any Form of Detention
or Imprisonment, Adopted by the General Assembly in its Resolution 43/173, of December 9, 1988, supra
note 126, Principle 4.
128
See Case of the Gómez Paquiyauri Brothers, supra note 8, para. 82; Case of Maritza Urrutia,
supra note 8, para. 64; and Case of Juan Humberto Sánchez , supra note 3, para. 77.
129
See Case of the Gómez Paquiyauri Brothers, supra note 8, para. 83; Case of Maritza Urrutia,
supra note 8, para. 65; and Case of Bulacio. September 18, 2003 Judgment. Series C No. 100, para. 125.
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