63
112. On the other hand, when the detainee is deprived of his liberty and before
making his first statement before the authorities,133 the detainee must be informed
of his right to establish contact with another person, for example, a next of kin, an
attorney, or a consular official, as appropriate, to inform this person that he has
been taken into custody by the State. Notification to a next of kin or to a close
relation is especially significant, for this person to know the whereabouts and the
circumstances of the accused and to provide him with the appropriate assistance and
protection. In case of notification to an attorney, it is especially important for the
detainee to be able to meet privately with him,134 which is inherent to his right to
benefit from a true defense. In case of consular notification, the Court has pointed
out that the consul “may assist the detainee in various acts of defense, such as
granting or hiring legal counsel, obtaining evidence in the country of origin,
corroborating the conditions under which legal assistance is provided, and observing
the situation of the accused while he is in prison.”135 That did not occur in the
instant case.
113. Based on the above, this Court deems that the State breached Article 7(4) of
the Convention, to the detriment of Daniel Tibi.
114. Article 7(5) of the Convention sets forth that a person’s detention must
promptly undergo judicial review, as a suitable means of control to avoid arbitrary
and unlawful captures. Immediate judicial control is a measure that seeks to avoid
arbitrariness or unlawfulness of detentions, taking into account that under the rule of
law the judge must ensure the detainee’s rights, authorize precautionary or coercive
measures, when strictly necessary, and in general make sure that the accused is
treated in a manner consistent with the presumption of innocence.136
115. Both the Inter-American Court and the European Court of Human Rights have
highlighted the importance of prompt judicial control of detentions. He who is
deprived of his liberty without judicial control must be released or immediately
brought before a Judge.137 The European Court of Human Rights has asserted that
while the term “immediately” must be interpreted according to the special
characteristics of each case, no situation, no matter how serious, empowers the
133
See Case of the Gómez Paquiyauri Brothers, supra note 8, para. 93; Case of Bulacio, supra note
129, 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.
134
See Case of Bulacio, supra note 129, para. 130.
135
See Case of Bulacio, supra note 129, para. 130; The Right to Information on Consular Assistance
in the Framework of the Guarantees of the Due Process of Law, supra note 133, para. 86; and United
Nations, Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment,
supra note 126, Principles 13 and 16.
136
See Case of the Gómez Paquiyauri Brothers, supra note 8, para. 96; Case of Maritza Urrutia,
supra note 8, para. 66; and Case of Bulacio, supra note 129, para. 129.
137
See Case of the Gómez Paquiyauri Brothers, supra note 8, para. 95; Case of Maritza Urrutia,
supra note 8, para. 73; and Case of Bulacio, supra note 129, para. 129; and, likewise, Eur. Court H.R.,
Brogan and Others, Judgment of 29 November 1988, Series A no. 145-B, paras. 58-59, 61-62; and Kurt
vs. Turkey, No. 24276/94, paras. 122, 123 and 124, ECHR 1998-III.
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