*****
In Fals Borda v. Colombia, the Human Rights Committee considered a case where the
alleged victims had been detained under an emergency law:
On 21 January 1979, Mr. Fals Borda and his wife, Maria Cristina Salazar de
Fals Borda, were arrested by troops of the Brigade de Institutos Militates under
Decree No. 1923. Mr. Fals was detained incommunicado at the Cuartel de
Infanteria de Usaquin, from 21 January to 10 February 1979 when he was
released without charges. Mrs. Fals continued to be detained for over one year.
Mr. and Mrs. Fals Borda were released as a result of court decisions that there
was no justification for their continued detention. They had not, however, had a
possibility themselves to take proceedings before a court in order that that court
might decide without delay on the lawfulness of their detention.
[…]
The Committee … is therefore of the view that the facts … above disclose
violations of the International Covenant on Civil and Political Rights,
particularly … article 9(4)….
--Fals Borda v. Colombia, Case No. 46/1979, Views adopted on 27 July 1982
(para. 12.3).
European Court of Human Rights
The Court has already noted on a number of occasions that the investigation of
terrorist offences undoubtedly presents the authorities with special problems....
This does not mean, however, that the investigating authorities have carte
blanche under Article 5 to arrest suspects for questioning, free from effective
control by the domestic courts and, ultimately, by the Convention supervisory
institutions, whenever they choose to assert that terrorism is involved....
--Ocalan v. Turkey, ECHR, 12 March 2003 (para. 106).
*****
The Court considers that where a detained person has to wait for a period to
challenge the lawfulness of his custody, there may be a breach of Article 5 § 4.
Having regard to the conclusion it reached with regard to Article 5 § 3 … the
Court considers that the period in question [seven days] sits ill with the notion
of “speedily” under Article 5 § 4 of the Convention….
The Court notes that in the present case, the length of the applicant's detention
in police custody did not exceed the time limit prescribed by law. This is, in
fact, the reason why the applicant was unable to challenge his detention in
41
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