48
133.
Likewise, the Inter‐American Court has established that:
[T]he judge is responsible for guaranteeing the rights of the detained
person, authorizing the adoption of precautionary or coercive measures
when strictly necessary and, in general, ensuring that the accused is
treated in a manner in keeping with the presumption of innocence, as a
guarantee that tends to avoid arbitrariness or illegality of the detentions,
as well as guaranteeing the right to life and humane treatment. 167
[…]
[I]n order to satisfy the requirement of Article 7(5) of “being brought”
without delay before a judge or other officer authorized by law to carry
out the judicial functions, the competent authority must hear the
detained person personally and evaluate all the explanations that the
latter provides, in order to decide whether to proceed to release him or
to maintain the deprivation of liberty. 168 Otherwise, it would be
tantamount to stripping the judicial review established in Article 7(5) of
the Convention of its effectiveness. 169
The immediate judicial revision of the arrest has particular relevance
when it is applied to captures infraganti and it is a State duty in order to
guarantee the detainee’s rights. 170
134.
Therefore it is essential that a detainee really be brought before a judge
or other official authorized by law to perform judicial functions. In other words, that official
must be competent, independent, and impartial, legally empowered to exercise effective
judicial protection of fundamental rights that may have been violated. That requirement is
not met when a detainee is brought before an official or court clerk who is not vested with
such legal powers or when he or she is brought before administrative authorities
167
I/A Court H.R., Case of Vélez Loor V. Panama. Preliminary Objections, Merits, Reparations, and
Costs. Judgment of November 23, 2010 Series C No. 218, para. 105; I/A Court H.R., Case of Yvon Neptune V. Haiti.
Merits, Reparations and Costs. Judgment of May 6, 2008. Series C No. 180, para.. 107; I/A Court H.R., Case of
Chaparro‐Álvarez and Lapo‐Íñiguez V. Ecuador. Preliminary Objections, Merits, Reparations and Costs. Judgment
of November 21, 2007. Series C No. 170, para. 81; I/A Court H. R., Case of García Asto and Ramírez Rojas V. Peru.
Judgment of November 25, 2005. Series C No. 137, para. 109.
168
I/A Court H.R., Case of Vélez Loor V. Panama. Preliminary Objections, Merits, Reparations, and
Costs. Judgment of November 23, 2010 Series C No. 218, para. 109; I/A Court H.R., Case of Bayarri V. Argentina.
Preliminary Objection, Merits, Reparations and Costs. Judgment of October 30, 2008. Series C No. 187, párr. 65;
I/A Court H.R., Case of Chaparro‐Álvarez and Lapo‐Íñiguez V. Ecuador. Preliminary Objections, Merits, Reparations
and Costs. Judgment of November 21, 2007. Series C No. 170, para. 85.
169
I/A Court H.R., Case of Bayarri V. Argentina. Preliminary Objection, Merits, Reparations and Costs.
Judgment of October 30, 2008. Series C No. 187, párr. 65.
170
I/A Court H. R., Case of López Álvarez V. Honduras. Judgment of February 1, 2006. Series C No. 141,
para. 88.
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