46
international standards, adequate and sufficient [and] the obligation contemplated in
Article 36 of the Vienna Convention had been fully fulfilled.”
151. The Court has already ruled on the right to seek consular assistance in cases
related to deprivation of liberty of a person who is not a national of the country where
he is detained. In the year 1999, in the advisory opinion on The right to Information
on Consular Assistance in the Framework of the Guarantees of the Due Process of
Law, the Court declared that the right of a detained foreign national to consular
assistance, enshrined in Article 36 of the Vienna Convention on Consular Relations
(hereinafter “Vienna Convention”) is an individual right and a minimum guarantee
protected within the Inter-American system.152 This principle was upheld by the
International Court of Justice in the case of LaGrand in the year 2001.153 In addition,
there existed non-binding international treaties that establish this right.154 As a result,
what was reported by the State—that in the year 2002, at the time of the events, the
notification to the consulate was sufficient—is not true.
152. The Court notes that foreigners under detention, in a social and juridical milieu
different from their own, and often in a language unknown to them, often experience
a condition of particular vulnerability, which the right to information on consular
assistance, inserted into the conceptual universe of human rights, seeks to remedy in
such a way that the detained foreigner may enjoy a true opportunity for justice, and
the benefit of the due process of law equal to those who do not have those
disadvantages, carried out with respect for the dignity of the person. To accomplish
its objectives, the judicial process must recognize and correct any real disadvantages
that those brought before the bar might have, thus observing the principle of equality
before the law and the courts and the correlative prohibition of discrimination. The
presence of real disadvantages necessitates countervailing measures that help to
reduce or eliminate the obstacles and deficiencies that impair or diminish an effective
defense of one’s interests.155
153. From the point of view of the rights of a detained person, there are three
essential components of the right due to a person by the State Party:156 1) the right
to be informed of his rights under the Vienna Convention157; 2) the right to have
152
Cf. The Right to Information on Consular Assistance in the Framework of the Guarantees of the
due Process of Law, supra note 145, paras. 84 and 124.
153
Cf. ICJ, LaGrand Case (Germany v. United States of America), I.C.J. Reports 2001, Judgment of
27 June 2001, folio 494, para. 77.
154
Cf. Standard Minimum Rules for the Treatment of Prisoners. Adopted by the First United Nations
Congress on the Prevention of Crime and the Treatment of Offenders, held in Geneva in 1955, and
approved by the Economic and Social Council in its orders 663C (XXIV) of July 31, 1957 and 2076 (LXII), of
May 13, 1977, Rule 38.1 and Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment, adopted by the United Nations General Assembly in its resolution 43/173 of
December 9 1988, principle 16.2.
155
Cf. The Right to Information on Consular Assistance in the Framework of the Guarantees of the
due Process of Law, supra note 145, para. 119; and Juridical Condition and Rights of the Undocumented
Migrants, supra note 82, para. 121, and Case of Baldeón García, supra note 27, para. 202.
156
It must take into account that the following standards are not applicable to those detainees who
have requested international protection (supra para. 106). If they are arrested, such persons enjoy the
rights enshrined in the Vienna Convention. However, there are other considerations to protect the interests
of refugees, which the Court shall not examine in this Judgment.
157
Hence, the detained foreigner shall be entitled to be reported of his right: 1) that the authorities of
the receiving State inform, without delay, to the competent consular post of his situation and 2) to have
any communication addressed to the consular post by the person detained be forwarded by said authorities
without delay. Cf. Article 36.1.b) of the Vienna Convention on Consular Affairs. Document (A/CONF.25/12)
(1963) of April 24, 1963, in force as of March 19, 1967, and in effect since that date for Ecuador (which
ratified the Convention on 11 March 1965), and to Panama from the thirtieth day following the deposit of
its instrument of ratification, held on August 28, 1967. This notification must be served before the arrested
person “renders his first statement.” The Right to Information on Consular Assistance in the Framework of
the Guarantees of Due Process, supra note 145, para. 106; Case of Chaparro Álvarez and Lapo Íñiguez,
supra note 99, para. 164, and Case of Bueno Alves v. Argentina. Merits, Reparations, and Costs. Judgment
Seleccionar párrafo de destino3
Conectar a un párrafo
Connect to an entity
Disable highlights
Añadir a la tabla de contenidos