4
13. I would like to conclude this Concurring Vote in a positive
tone, if possible. In its substantiation of the determination of
the violation of Article 8(2) of the Convention (judicial
guarantees), in conjunction with Article 1(1) of the same, in the
instant case, the Court considered that Mr. R. Acosta Calderón,
“as a foreign detainee, was not notified of his right to
communicate with a consular official from his country with
the objective of offering the assistance recognized in
Article 36(1)(b) of the Vienna Convention on Consular
Relationships.
The foreign detainee, when arrested and
before offering his first statement before the authorities,
must be notified of his right to establish contact with a
third party, for example, a family member, a lawyer, or a
consular official, as corresponds, to inform them that he is
in the State’s custody. In the case of the consular notice,
the Court has stated that the consul may assist the detainee
in different acts of defense, such as the granting or hiring
of legal representation, the obtainment of evidence in the
country of origin, the verification of the conditions in
which the legal assistance is exercised, and the observation
of the defendant’s situation while he is imprisoned. In this
sense, the Court has also affirmed that the individual right
to
request
consular
assistance
from
his
country
of
nationality must be recognized and considered within the
framework of the minimum guarantees to offer foreigners the
opportunity to adequately prepare their defense and have a
fair trial.
The non-observance of this right affected Mr.
Acosta Calderón’s right to defense, which forms part of the
guarantees of the due legal process” (para. 125).
14. Accordingly, the right to information on consular assistance
is an individual right, the Court has based its correct
deliberation in this regard on its previous and truly pioneering
Advisory Opinion No. 16, on the Right to Information on Consular
Assistance in the Framework of the Guarantee of the Due Process of
Law (1999, paras. 106, 86, and 122). This Advisory Opinion,
adopted by the Court on October 01, 1999, has acted as a source of
inspiration for international jurisprudence in statu nascendi
regarding this matter, - as has been acknowledged in great length
by contemporary judicial doctrine.5
5
For example, the specialized bibliography, when referring to the
later decision of the International Court of Justice (ICJ), of
06.27.2001, in the case of LaGrand stated that it was issued “a la
lumière notamment de l’avis de la Cour Interaméricaine des Droits de
l’Homme du 1er octobre 1999;” G. Cohen-Jonathan, “Cour Européenne des
Droits de l’Homme et droit international général (2000),” 46 Annuaire
français de Droit international (2000) p. 642.
It has also been
observed, in relation to Advisory Opinion n. 16 of the Inter-American
Court, “le soin mis par la Cour a démontrer que son approche est conforme
au droit international”. Besides, “pour la juridiction régionale il n’est
donc pas question de reconnaître a la Cour de la Haye une prééminence