I/A Court H.R., Case of Acosta Calderón v. Ecuador. Merits, Reparations and Costs. Judgment of June 24, 2005. Series C No. 129.

Non official brief

This summary is also published in the website of the Council of Europe in the following link: https://www.venice.coe.int/files/Bulletin/B2006-1-e.pdf

 

Headnotes:

 

The protection of personal liberty safeguards both the physical liberty of the individual and his personal safety, in a context where the absence of guarantees may result in the subversion of the rule of law and deprive those detained of minimum legal protection.

 

No one shall be deprived of his personal liberty except for reasons, cases or circumstances specifically established by law (material aspect) but, also, under strict conditions established beforehand by law (formal aspect). No one shall be subject to arrest or imprisonment for reasons or methods that - although qualified as legal - may be considered incompatible with the fundamental rights of the individual, because they are, among other matters, unreasonable, unforeseeable or out of proportion.

 

Preventive detention is the most severe measure that can be applied to the person accused of a crime, reason for which its application must have an exceptional nature, since it is limited by the principles of legality, the presumption of innocence, necessity, and proportionality, all of which are strictly necessary in a democratic society.

 

Preventive detention is a precautionary measure, not a punitive one. The arbitrary extension of a preventive detention turns it into a punishment when it is inflicted without having proven the criminal responsibility of the person to whom this measure is applied.

 

In a Constitutional State, a judge must guarantee the rights of the person detained, authorise the adoption of precautionary or coercive measures when these are strictly necessary, and, in general, ensure that the accused receives a treatment consequent with the presumption of innocence.

 

A person deprived of his or her freedom without any type of judicial supervision must be released or be immediately brought before a judge.

 

A detained person must be taken before a competent judge or judicial authority, pursuant to the principles of judicial control and procedural immediacy. This is essential for the protection of the right to personal liberty and to ensure the protection of other rights, such as life and personal integrity. The simple awareness of a judge that a person is detained does not satisfy this guarantee, since the detainee must appear personally and give his or her statement before the competent judge or authority.

 

The procedures of habeas corpus and legal protection are judicial guarantees essential for the protection of several rights and also help to preserve legality in a democratic society.

 

A State has both the responsibility of guaranteeing the rights of the individuals under its custody as well as providing information and evidence related to what happens to the detainee.

 

The protection of the person against the arbitrary exercise of public power is the main objective of international human rights protection.

 

It is not enough for judicial recourses to exist formally, it is necessary that they be effective.

 

The reasonability of the time period of a judicial process must be analyzed with regard to the total duration of the process, from the first procedural act up to the issuing of a definitive judgment. In criminal matters, the term starts on the date of the arrest of the individual.

 

A State must not restrict a detainee's liberty beyond the limits strictly necessary to ensure that he will not impede the efficient development of the investigations and that he will not evade justice. In this sense, preventive detention is a cautionary measure and not a punitive one.

 

Article 8.2.b ACHR orders that the competent judicial authorities notify the accused of the charges presented against him, their reasons, and the crimes or offences he is charged with, prior to the execution of the process. In order for this right to fully operate and satisfy its inherent purposes, it is necessary that this notification be given before the accused offers his first statement. Without this guarantee, the latter's right to duly prepare his defence would be infringed.

 

A foreign detainee, when arrested and before offering his first statement before the authorities, must be notified of his right to establish contact with a third party, for example, a family member, a lawyer, or a consular official, in order to inform them that he is in the State's custody. The individual right to request consular assistance from his country of nationality must be recognised and considered within the framework of a set of minimum guarantees that offer foreigners the opportunity to adequately prepare their defence and have a fair trial.

 

States Parties to the American Convention may not order measures that violate the rights and freedoms recognised therein.

 

Summary:

 

I. On 25 June 2003, the Inter-American Commission on Human Rights filed an application with the Court against the State of Ecuador for the Court to decide whether the State had violated Article 2 ACHR (Domestic Legal Effects), Article 7 ACHR (Right to Personal Liberty), Article 8 ACHR (Right to a Fair Trial), Article 24 ACHR (Right to Equal Protection) and Article 25 ACHR (Right to Judicial Protection), all of them in connection with Article 1.1 ACHR (Obligation to Respect Rights), in detriment of Mr Rigoberto Acosta Calderón.

 

On 15 November 1989, the Customs Military Police in Ecuador arrested Mr Acosta Calderon, of Colombian nationality, under suspicion of drug trafficking. Mr Acosta Calderon's statement was not received by a judge until two years after his detention, he was not notified of his right to consular assistance, he was in custody pending trial for more than five years, and he was condemned on 8 December 1994 although the corpus delicti was never presented as evidence.

 

II. The Court held that the State had the obligation, according to its internal legislation, to prove, through chemical analysis, that the substance in question was cocaine paste. Ecuador never performed those chemical analyses and also lost all the alleged cocaine paste. Despite the fact that the State never presented this chemical report and, therefore, did not prove the existence of the substance whose possession was imputed to Mr Acosta Calderón, he remained imprisoned for more than five years. The above constituted an arbitrary arrest in his detriment.

 

Accordingly, the Court held that the State violated, to the detriment of Mr Acosta Calderón, the right to personal liberty enshrined in Articles 7.1, 7.3 and 7.5 ACHR, in conjunction with Article 1.1 ACHR; the right to personal liberty and judicial protection enshrined in Articles 7.6 and 25 ACHR, in conjunction with Article 1.1 ACHR; and the right to a fair trial enshrined in Article 8.1, 8.2, 8.2.b, 8.2.d and 8.2.e ACHR, in conjunction with Article 1.1 ACHR; and breached its obligation established in Article 2 ACHR in connection with Article 7.5 ACHR.

 

As part of the reparations ordered by the Court, the State was ordered to eliminate Mr Acosta Calderón's name from the public registries in which he appears with a criminal record in connection to the present case, and to pay compensation to Mr Acosta Calderón for material and moral damages, as well as reimbursement of the costs and expenses incurred during the proceedings.