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.

Non official brief


This summary is also published in the website of the Council of Europe in the following link: www.venice.coe.int/files/Bulletin/B2008-3-e.pdf


An effective mechanism of control against illegal and arbitrary detentions must include, without delay, a judicial review that analyses those factors that would allow a conclusion on the legality of a person's detention.

A person in preventive detention has the right to be judged within a reasonable time or be freed, without prejudice to the continuation of the process. The State may impose other, less intrusive, measures to ensure that person's appearance in later proceedings.

Indications of torture or other cruel, inhumane, or degrading treatment must be investigated ex officio by State authorities.



 I.  On 18 November 1991, Mr. Bayarri was detained by police agents without a judicial order and taken to a secret detention facility for questioning on alleged kidnappings; one week later he was brought before a judge. On 6 August 2001, Mr. Bayarri was sentenced to life in prison for the kidnappings, but this decision was appealed to the Federal Appellate Court, which absolved Mr. Bayarri in 2004 and found that his confession was invalid because it was obtained through the use of torture. He was thus released from custody thirteen years after his initial deprivation of liberty. However, while still in custody, Mr Bayarri had filed a complaint in the domestic courts regarding his unlawful detention and illegal treatment; this action was still being tried at the time the case was submitted to the Inter-American Court of Human Rights (hereinafter, "the Court").

On 16 July 2007, the Inter-American Commission of Human Rights (hereinafter, "the Commission") filed an application to the Court to determine the responsibility of the State of Argentina for the lack of compliance with of Article 5 ACHR (Right to Humane Treatment), Article 7 ACHR (Right to Personal Liberty), Article 8 ACHR (Right to a Fair Trial), and Article 25 ACHR (Right to Judicial Protection), in relation to Article 1.1 ACHR, to the detriment of Mr Bayarri.

II. In its Judgment of 30 October 2008, the Court first held that the State violated Articles 7.1, 7.2 and 7.5 ACHR because Mr Bayarri was detained without a judicial order although he was not in flagrante delicto, because he was not presented without delay before a competent judge, and because the judge that finally heard his case failed to exercise effective legal control over his detention. Furthermore, the Court considered that Mr Bayarri's preventive detention not only surpassed what would be a reasonable time limit in accordance with Article 7 ACHR, but was excessive in that he was deprived of liberty for thirteen years while waiting for a final judgment on his case.

Likewise, the Court held that the State violated Article 5 ACHR, in relation to Article 1.1 ACHR, based upon the evidence of Mr Bayarri's injuries, the conclusion by Argentine tribunals that he had been tortured by State agents, and the fact that the judge who first examined the case made no effort to investigate ex officio his visible wounds. In application of the principle of jura novit curia, the Court also found the State responsible for violations of Articles 1, 6 and 8 of the Inter-American Convention to Prevent and Punish Torture (IACPPT).

Additionally, the Court found that the State violated Article 8.1 ACHR because Mr Bayarri's case was not resolved within a reasonable time, as he was held in preventive detention for thirteen years, and Article 8.2 ACHR because he was not presumed innocent until proven guilty. Finally, the Court found violations of Articles 8.1 and 25.1 ACHR due to the fact that Mr Bayarri's criminal complaint regarding his torture and illegal detention had been in proceedings for approximately seventeen years as of the date of the Judgment.

Consequently, the Court ordered that the State conclude the criminal proceeding arising from the violations in the present case, guaranteeing Mr Bayarri's right to be heard by a competent tribunal, and that it expunge his criminal record. The Court also ordered the State to publish the pertinent parts of the Judgment in the Official Gazette and another national newspaper, to educate its security forces on torture and cruel, inhumane, and degrading treatment, and to provide Mr Bayarri free medical care. Finally, the State was ordered to pay pecuniary and non-pecuniary damages and legal costs and expenses.

Supplementary information:


Judge Garcia-Ramirez wrote a concurring opinion.