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2.
No one shall be deprived of his physical liberty except for the reasons and
under the conditions established beforehand by the constitution of the State Party
concerned or by a law established pursuant thereto.
3.
No one shall be subject to arbitrary arrest or imprisonment.
4.
Anyone who is detained shall be informed of the reasons for his detention and
shall be promptly notified of the charge or charges against him.
5.
Any person detained shall be brought promptly before a judge or other officer
authorized by law to exercise judicial power and shall be entitled to trial within a
reasonable time or to be released without prejudice to the continuation of the
proceedings. His release may be subject to guarantees to assure his appearance for
trial.
6.
Anyone who is deprived of his liberty shall be entitled to recourse to a
competent court, in order that the court may decide without delay on the lawfulness of
his arrest or detention and order his release if the arrest or detention is unlawful. In
States Parties whose laws provide that anyone who believes himself to be threatened
with deprivation of his liberty is entitled to recourse to a competent court in order that it
may decide on the lawfulness of such threat, this remedy may not be restricted or
abolished. The interested party or another person in his behalf is entitled to seek these
remedies.
63.
It has been proved that Maritza Urrutia was abducted by State agents,
introduced by force into a vehicle, her head was covered by a hood, and she was
taken to a clandestine detention center, where she was held for eight days, without
being informed of the motives for her detention and the charges attributed to her,
she remained incommunicado and was not brought before a competent authority
(supra paras. 58.4, 58.5 and 58.6). The Court will now determine whether these
facts are compatible with the provisions of Article 7 of the Convention.
64.
The Court has indicated that the protection of freedom safeguards “both the
physical liberty of the individual and his personal safety, in a context where the
absence of guarantees may result in the subversion of the rule of law and deprive
those detained of the minimum legal protection.”64
65.
Regarding detention, the Court has said, with regard to paragraphs 2 and 3 of
Article 7 of the Convention, on the prohibition of unlawful or arbitrary detention or
arrest, that:
[a]ccording to the first of these regulatory provisions, no one shall be
deprived of his personal liberty except for reasons, cases or
circumstances specifically established by law (material aspect) but,
also, under strict conditions established beforehand by law (formal
aspect). In the second provision, we have a condition according to
which no one shall be subject to arrest or imprisonment for causes or
methods that – although qualified as legal – may be considered
incompatible with respect for the fundamental rights of the individual,
because they are, among other matters, unreasonable, unforeseeable
or out of proportion.65
64
Cf. Juan Humberto Sánchez case, supra note 14; Bámaca Velásquez case. Judgment of
November 25, 2000. Series C No. 70, para. 141; and the “Street Children” case (Villagrán Morales et al.),
supra note 12, para. 135.
65
Juan Humberto Sánchez case, supra note 14, para. 78; Bámaca Velásquez case, supra note 64,
para. 139; and Durand and Ugarte case. Judgment of August 16, 2000. Series C No. 68, para. 85.