41
85.
Article 84 of the Constitution of Honduras also stipulates said guarantee when it
establishes with regard to any form of deprivation of liberty, including the one that
occurs when the crime is detected in the act, that “the person arrested or detained
must be informed in the act and with all clarity of his rights and the charges against
him; and the authorities must also allow him to communicate his arrest to a family
member or a person of his choice.”
86.
In the case sub judice it was proven that the state authorities that detained Mr.
Alfredo López Álvarez did not notify him of the reasons of his arrest or of the charges
against him (supra para. 54(11)). Therefore, the State violated Article 7(4) of the
Convention in detriment of Mr. Alfredo López Álvarez.
*
*
*
87.
Pursuant to Article 7(5) of the Convention and according to the principles of
judicial control and procedural immediacy, the person arrested or retained must be
taken, without delay, before a competent judge or judicial authority. This is essential
for the protection of the right to personal liberty and of other rights, such as life and
personal integrity. The simple awareness of a judge that a person is detained does not
satisfy this guarantee; the detainee must appear personally and give his statement
before the competent judge or authority.89
88.
The immediate judicial revision of the arrest has particular relevance when it is
applied to captures infraganti (supra para. 64) and it is a State duty in order to
guarantee the detainee’s rights.
89.
In the present case the Commission and the representatives argued that Mr.
López Álvarez was not taken before a competent judge. The alleged victim stated,
during the public hearing celebrated in the Court, that he offered his preliminary
examination statement before the secretary of the Sectional Court of First Instance of
Tela, who he knew, and added that at no time, during the process, was he brought
before a judge (supra para. 40(1)(b)).
90.
On its part, the State held that during the validity of the previous legislation,
which was applied to the alleged victim, “it was very frequent, […] and it was [the]
common practice that the statements were […] in their majority, […] given before
clerks or secretaries of the Court, which occurred not only in Honduras […]”, but that
in the case sub judice, Mr. López Álvarez appeared before the judge to offer his
preliminary examination statement, and that the records drawn up to this effect is
signed by the judicial employee himself, the defendant, and the secretary of the court.
91.
In the present case it has been proven that on April 28, 1997 the Office of the
Public Prosecutor brought Mr. López Álvarez before the Sectional Court of First
Instance of Tela, and that on April 29, 1997 the alleged victim gave his preliminary
examination statement before the Judge of the mentioned Court, pursuant to what
appears in the corresponding record (supra para. 54(17)), in which the signatures of
the Judge Reina Isabel Najera, the secretary of the court, Mrs. Adela E. Mejía Murillo
and Mr. Alfredo López Álvarez appear, without there being enough evidence to
invalidate the existence or authenticity of the signature of the Judge or her absence in
89
Cf. Case of García-Asto and Ramírez-Rojas, supra note 7, para. 109; Case of Palamara-Iribarne,
supra note 15, para. 221, and Case of Acosta-Calderón, supra note 18, para. 78.
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