52
[…]
[A] detained person must be guaranteed the right of habeas corpus at all
times, even when he is being held in exceptional circumstances of
incommunicado detention established by law. 183
143.
Incommunicado detention is indeed an exceptional measure, which must
meet the criteria of legality, necessity, and proportionality, and pursue a legitimate
purpose in a democratic society. When such a measure exceeds those parameters and
becomes a real obstacle to judicial oversight of detention, it violates the rights established
in Articles 7.5, 7.6, and 25 of the American Convention. 184
144.
Secret or clandestine detention of a person constitutes an even graver
violation of the aforementioned rights. 185 According to international law, by definition,
“secret detention” occurs when:
State authorities acting in their official capacity, or persons acting under
the orders thereof, with the authorization, consent, support or
acquiescence of the State, or in any other situation where the action or
omission of the detaining person is attributable to the State,1 deprive
persons of their liberty; where the person is not permitted any contact
with the outside world (“incommunicado detention”); and when the
detaining or otherwise competent authority denies, refuses to confirm or
deny or actively conceals the fact that the person is deprived of his/her
liberty hidden from the outside world, including, for example family,
independent lawyers or non‐governmental organizations, or refuses to
provide or actively conceals information about the fate or whereabouts
of the detainee.
[…]
Secret detention does not require deprivation of liberty in a secret place
of detention […] [It] may take place not only in a place that is not an
officially recognized place of detention, or in an officially recognized place
of detention, but in a hidden section or wing that is itself not officially
recognized, but also in an officially recognized site. Whether detention is
secret or not is determined by its incommunicado character and by the
183
I/A Court H.R., Case of Suárez Rosero V. Ecuador. Judgment of November 12, 1997. Series C No. 35,
para. 59.
184
IACHR, Report No. 66/01, Case 11.992, Merits, Dayra María Levoyer Jiménez, Ecuador, June 14,
2001; IACHR, Report No. 1/97, Case 10,258, Merits, Manuel García Franco, Ecuador, February 18, 1998.
185
United Nations, Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or
Punishment, Third Report to the [former] Commission on Human Rights, E/CN.4/2004/56, adopted on December
23, 2003, para. 38; United Nations, Working Group on Arbitrary Detention, Report to the [former] UN Commission
on Human Rights, E/CN.4/2006/7, adopted on December 12, 2005, Ch. III:(A) Secret Prisons, paras. 58‐59.
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