34
has also been established that the DIVISE agents who took the victim in to custody make no record of her
detention. Given those circumstances, the IACHR concludes that Gladys Carol Espinoza was not
promptly notified of the reason for her arrest, and that consequently there was a breach of the guarantee
contained in Article 7.4 of the Convention.
159.
The Inter-American Court has ruled that under Article 7.5 of the Convention, any person
who is detained has the right to the prompt review of his detention by a judicial authority, in order to
146
prevent arbitrary and illegal arrests and to ensure the rights of detainees. Similarly, the Court has ruled
that simply making a judge aware that a person has been detained does not satisfy this guarantee, “as
147
the detainee must appear personally and give his statement before the competent judge or authority.”
160.
In the Cantoral Benavides and Castillo Petruzzi cases, the Court addressed the
possibility of keeping terrorism suspects in preventive custody at police facilities for a period of 15 days,
extendable for an additional 15 days in investigations for treason against the fatherland, allowed for by
148
Article 12.c of Decree Law No. 25475 and Article 2.a of Decree Law No. 25744. On this point, the Court
stated:
“such provisions contradict the Convention, which states ‘Any person detained shall be brought
149
promptly before a judge or other officer authorized by law to exercise judicial power’.”
161.
The United Nations Human Rights Committee has concluded that keeping a person
150
incommunicado for three days is a violation of Article 9.4 of the Covenant on Civil and Political Rights.
Similarly, the Inter-American Court has ruled that not taking a detainee before a judicial authority until five
151
days after his arrest is contrary to the terms of Article 7.5 of the Convention.
162.
In the case at hand, the IACHR has established that after being arrested on April 17,
1993, Gladys Carol Espinoza was kept incommunicado for several days and that she was not taken
before a judicial authority of the military justice system until June 24, 1993, eighty days after her arrest.
This implies a violation of the terms of Article 7.5 of the American Convention, and, in addition, Gladys
Carol Espinoza’s arrest was arbitrary, in breach of Article 7.3.
163.
The Inter-American Court has ruled that the guarantee enshrined in Article 7.6 of the
Convention may not be suspended, not even during states of emergency, 152 since it is intended to control
the legality of an arrest and to safeguard a range of basic rights.
In order for habeas corpus to achieve its purpose, which is to obtain a judicial determination of the
lawfulness of a detention, it is necessary that the detained person be brought before a competent
judge or tribunal with jurisdiction over him. Here habeas corpus performs a vital role in ensuring
that a person’s life and physical integrity are respected, in preventing his disappearance or the
146
I/A Court H. R., Case of García Asto and Ramírez Rojas, Judgment of November 25, 2005, Series C No. 137,
paragraph 109.
147
I/A Court H. R., Case of García Asto and Ramírez Rojas, Judgment of November 25, 2005, Series C No. 137,
paragraph 109, citing: Case of Acosta Calderón, Judgment of June 24, 2005, Series C No. 129, para. 78.
148
I/A Court H. R., Cantoral Benavides Case, Judgment of August 18, 2000, Series C No. 69, paras. 73 and 74; and
Castillo Petruzzi et al. Case, Judgment of May 30, 1999, Series C No. 52, paras. 110 and 111.
149
I/A Court H. R., Cantoral Benavides Case, Judgment of August 18, 2000, Series C No. 69, para. 73.
150
CCPR, Hammel v. Madagascar, Communication 155/83, decision of April 3, 1987.
151
I/A Court H. R., Case of Cabrera García and Montiel Flores v. Mexico, Judgment of November 26, 2010, Series C No.
220, para. 102.
152
I/A Court H. R., Habeas Corpus in Emergency Situations (Arts. 27.2, 25.1, and 7.6 of the American Convention on
Human Rights), Advisory Opinion OC-8/87 of January 30, 1987, Series A No. 8, paras. 42-43. See also: I/A Court H. R., Judicial
Guarantees in States of Emergency (Arts. 27.2, 25, and 8 of the American Convention on Human Rights), Advisory Opinion OC9/87 of October 6, 1987, Series A No. 9, paragraph 38; I/A Court H. R., Loayza Tamayo Case, Judgment of September 17, 1997,
Series C No. 33, para. 50.