Even though the investigation of terrorist offences, as supposed in this case,
presents the authorities with special problems, the Court cannot accept that it
was necessary to detain the applicant for eight days without judicial
intervention.
--Filiz and Kalkan v. Turkey, ECHR, 20 June 2002 (paras. 25-26).
*****
The Court thus has to conclude that none of the applicants was either brought
"promptly" before a judicial authority or released "promptly" following his
arrest. The undoubted fact that the arrest and detention of the applicants were
inspired by the legitimate aim of protecting the community as a whole from
terrorism is not on its own sufficient to ensure compliance with the specific
requirements of Article 5 para. 3….
--Brogan and Others v. the United Kingdom, ECHR, 29 November 1988,
(para. 62).
Inter-American System
Article 7 of the Convention … contains specific guarantees against illegal or
arbitrary detentions or arrests, as described in clauses 2 and 3, respectively.
Pursuant to the first of these provisions, no person may be deprived of his or
her personal freedom except for reasons, cases or circumstances expressly
defined by law (material aspect) and, furthermore, subject to strict adherence
to the procedures objectively set forth in that law (formal aspect). The second
provision addresses the issue that no one may be subjected to arrest or
imprisonment for reasons and by methods which, although classified as legal,
could be deemed to be incompatible with the respect for the fundamental
rights of the individual because, among other things, they are unreasonable,
unforeseeable or lacking in proportionality.
--Gangaram Panday Case, I/A Court H.R., Judgment of January 21, 1994
(paras. 46-47).
The American Convention on Human Rights, at article 27(2), expressly includes
“judicial guarantees essential for the protection of [non-derogable] rights”, in its list of
non-derogable rights:
[I]t must … be understood that the declaration of a state of emergency -whatever its breadth or denomination in internal law -- cannot entail the
suppression or ineffectiveness of the judicial guarantees that the Convention
requires the States Parties to establish for the protection of the rights not
subject to derogation or suspension by the state of emergency.
[…]
44
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