104
219. Both the Inter-American Court and the European Court of Human Rights have
stressed the material role played by the prompt judicial supervision of detentions. A
person deprived of his liberty without judicial supervision must be released or
immediately brought before a judge.217
220. The second Principle of the United Nations’ Body of Principles for the Protection
of All Persons under Any Form of Detention or Imprisonment provides that “[a]rrest,
detention or imprisonment shall only be carried out strictly in accordance with the
provisions of the law and by competent officials or persons authorized for that
purpose.”218
221. The Court believes that certain clarifications on this topic are in order. The
language of the guarantee laid down in Article 7(5) of the Convention is clear as to the
fact that any person arrested is to be brought promptly before a judge or other
competent judicial authority pursuant to the principles of judicial supervision and
procedural immediacy. This is essential for the protection of the right to personal
liberty, and also to protect other rights such as the rights to life and humane
treatment. The mere fact that a court is aware of a person’s detention does not satisfy
this guarantee, as the detainee must personally appear before and provide a
statement to the judge or competent authority.219
222. In previous cases, the Court established that a “judge or other officer
authorized by law to exercise judicial power” must satisfy the requirements laid down
in the first paragraph of Article 8 of the Convention,220 also holding that civilians
must be tried by the regular courts. It should be noted that, in this Judgment, the
Court has stated that the judges or tribunals that heard the two proceedings against
Mr. Palamara-Iribarne did not satisfy the competence, impartiality and independence
requirements that are necessary in order for the right to a fair trial to be safeguarded
in the context of a military proceeding (supra para. 161). Furthermore, the Court
stated that, in spite of being a civilian, Mr. Palamara-Iribarne was brought before
military authorities.
223. In this regard, it is the Court’s view that the fact that, upon his detention, Mr.
Palamara-Iribarne was set to appear before the Naval Prosecutor, who was vested
with the exercise of judicial functions under the domestic laws, did not guarantee the
right to have the legality of his detention reviewed by a judicial authority.
Considering that it was the Naval Prosecutor who ordered that Mr. Palamara-Iribarne
and Case of the Gómez-Paquiyauri brothers, supra note 211, para. 96.
217
Cf. Case of Acosta-Calderón, supra note 189, para. 76; Case of Tibi, supra note 206, para. 115;
and Case of the Gómez-Paquiyauri brothers, supra note 211, para. 95.
218
U.N., Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment, Adopted by General Assembly resolution 43/173 of December 9, 1988, Principle 2.
219
Cf. Case of Acosta-Calderón, supra note 189, para. 77; and Case of Tibi, supra note 206, para.
118.
220
Cf. Case of Tibi, supra note 206, para. 119; and Case of Cantoral-Benavides, supra nota 201,
paras. 74 and 75.
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