42
C.
Judicial oversight of detention as a guarantee of the rights to life and
humane treatment
118.
In the context of the Inter‐American human rights system this
fundamental right is established in Article XXV of the American Declaration and in Articles
7.5 and 7.6 of the American Convention, as follows:
American Declaration
Article XXV: “Every individual who has been deprived of his liberty has the
right to have the legality of his detention ascertained without delay […]”.
American Convention
Article 7. (5) Any person detained shall be brought promptly before a
judge or other officer authorized by law to exercise judicial power […] (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.
Likewise, the Inter‐American Convention on Forced Disappearance of Persons 143
establishes that “[e]very person deprived of liberty shall be held in an officially recognized
place of detention and be brought before a competent judicial authority without delay, in
accordance with applicable domestic law” (Article XI).
In addition, the Principles and Best Practices establish:
Principle III. (1) Every person shall have the right to personal liberty and
to be protected against any illegal or arbitrary deprivation of liberty. The
law shall prohibit, in all circumstances, incommunicado detention of
persons and secret deprivation of liberty since they constitute cruel and
inhuman treatment. Persons shall only be deprived of liberty in officially
recognized places of deprivation of liberty.
Principle V. Every person deprived of liberty shall, at all times and in all
circumstances, have the right to the protection of and regular access to
competent, independent, and impartial judges and tribunals, previously
established by law.
143
Which to date has been ratified by the following fourteen countries: Argentina, Bolivia, Chile,
Colombia, Costa Rica, Ecuador, Guatemala, Honduras, Mexico, Panama, Paraguay, Peru, Uruguay and Venezuela.
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