63
1.
Every person has the right to personal liberty and security.
2.
No one shall be deprived of his physical liberty except for the reasons and under the
conditions established beforehand by the constitution of the State Party concerned or by a
law established pursuant thereto.
3.
No one shall be subject to arbitrary arrest or imprisonment.
4.
Anyone who is detained shall be informed of the reasons for his detention and shall
be promptly notified of the charge or charges against him.
5.
Any person detained shall be brought promptly before a judge or other officer
authorized by law to exercise judicial power and shall be entitled to trial within a reasonable
time or to be released without prejudice to the continuation of the proceedings. His release
may be subject to guarantees to assure his appearance for trial.
6.
Anyone who is deprived of his liberty shall be entitled to recourse to a competent
court, in order that the court may decide without delay on the lawfulness of 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.
[...]
139. Article 7 of the Convention regulates the necessary guarantees to safeguard
personal liberty. With regard to its numerals 2 and 3, the Court has said that
[a]ccording to the first of these regulatory provisions, no one shall be deprived of his
physical 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 methods that - although
qualified as legal - may be considered incompatible with respect for the fundamental
rights of the individual because they are, among other matters, unreasonable,
unforeseeable or out of proportion90.
140. Both this Court91 and the European Court92 have considered that the prompt
judicial supervision of detentions is of particular importance in order to prevent
arbitrariness. An individual who has been deprived of his freedom without any type
of judicial supervision should be liberated or immediately brought before a judge,
because the essential purpose of Article 7 of the Convention is to protect the liberty
of the individual against interference by the State. The European Court has stated
that, although the word “immediately” should be interpreted according to the special
characteristics of each case, no situation, however, grave, grants the authorities the
power to unduly prolong the period of detention without affecting Article 5(3) of the
European Convention93. That Court emphasized that failure to acknowledge the
90
Cf. Durand and Ugarte Case, supra note 56, para. 85; Villagrán Morales et al. Case (the “Street
Children” Case), supra note 52, para. 131; Suárez Rosero Case, supra note 53, para. 43; and Caso
Gangaram Panday, supra note 86, para. 47.
91
Cf. Villagrán Morales et al. Case (the “Street Children” Case), supra note 52, para. 135.
92
Cf. Eur. Court HR, Aksoy v. Turkey judgment of 18 December 1996, Reports of Judgments and
Decisions 1996-VI, para. 76; Eur. Court H.R., Brogan and Others Judgment of 29 November 1988, Series
A no. 145-B, para. 58; and Eur. Court HR, Kurt v. Turkey judgment of 25 May 1998, Reports of
Judgments and Decisions 1998-III, para. 124.
93
Cf. Castillo Petruzzi et al. Case, supra note 50, para. 108; and Eur. Court H. R., Case of Brogan
and Others, supra note 92, paras. 58-59, 61-62.
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