63
above) did not significantly delay the proceedings.
185
186. In the Mathloom v. Greece decision, which the European Court recently delivered, it
evaluated whether the detention of a person facing deportation was in keeping with the right to
personal liberty protected under Article 5 of the European Convention.186 The Court pointed out that
under Article 5 § 1 (f) of European Convention, deprivation of liberty may be justified to ensure the
continuation of the deportation. However, the European Court observed that Greek legislation
governing the detention of persons whose deportation had been ordered by the courts did not lay down
a maximum period and therefore did not satisfy the foreseeability requirement under Article 5 § 1 of the
European Convention. It also concluded that Mr. Mathloom’s detention for two years and three months
was an unreasonable period of detention given the purposes that the detention with a view to
deportation was to serve, especially since the deportation proceeding had been declared unfounded. 187
Lastly, the European Court established that the five months and twelve days that passed between the
time the request for Mr. Mathloom’s release was filed and the date on which the Greek court
authorities lifted the order for his detention, was excessive given the circumstances of the case and
therefore declared that Article 5 § 4 of the European Convention had been violated.188
187. The European Convention contains an express provision on detention under these
circumstances (see Article 5 § 1 (f). In other words, unlike the American Convention, the European
Convention expressly allows for a person’s detention or arrest with a view to his or her deportation. The
difference between the two conventions notwithstanding, for the Inter-American Commission Article 7
of the American Convention does not draw distinctions based on the purpose of the detention and
applies to any situation in which the right to personal liberty is restricted. The specific standards that
the European Court’s case law has developed on the question of detention or arrest with a view to an
extradition, can be considered in an analysis to determine whether that deprivation of liberty does or
does not constitute a violation of the American Convention in the inter-American system.
188. Based on these observations, the IACHR concludes that a provisional arrest in the
context of an extradition process must be done in accordance with Article 7 of the American
Convention. Hence, it must be done according to pre-existing law, shall not be arbitrary, must be for
procedural reasons, may not be for an excessive period of time, and must be done under the supervision
of a court; the person deprived of his or her liberty shall be entitled to recourse to a competent court, in
order that the court may decide without delay on the lawfulness of the arrest or detention and order his
or her release if the reasons for the arrest or detention no longer exist. In determining whether a
detention or arrest with a view to extradition has been for an excessive period of time, consideration
must be given to whether the extradition proceedings that justified the arrest or detention have been
conducted with the necessary due diligence and whether the detained or arrested person can foresee or
185
European Court of Human Rights. Case of Quinn v. France. Application No. 18580/91. Judgement of March 22,
1995. Para. 48.
186
European Court of Human Rights. Case of Mathloom v. Greece. Application No. 48883/07. Judgement of April 24,
2012.
187
European Court of Human Rights. Case of Mathloom v. Greece. Application No. 48883/07. Judgment of April 24,
2012. Paras. 70 y 71.
188
European Court of Human Rights. Case of Mathloom v. Greece. Application No. 48883/07. Judgement of April 24,
2012. Para. 79.