Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

MIGRATION AND INTERNATIONAL HUMAN RIGHTS LAW | 219
ICJ, the individual nature of the right to consular access under the
VCCA. 844 It found that, under this right, it is “imperative that the State
advises the detainee of his rights if he is an alien, just as it advises
him of the other rights accorded to every person deprived of his freedom”.
845 Unlike for the ICJ, “notification must be made at the time the
[non-national] is deprived of his freedom, or at least before he makes
his first statement before the authorities”. 846 Furthermore, the Court
has held that the right to consular access “must be recognised and
counted among the minimum guarantees essential to providing foreign
nationals the opportunity to adequately prepare their defence and receive
a fair trial”. 847 A violation of this right has been interpreted to entail
a violation of Article 7.4 (habeas corpus) and Article 8 ACHR (right
to a fair trial) 848 and Articles XVIII and XXVI ADRDM. 849
At a European level, there is no legally binding right to consular access,
but the right is enshrined in Article 44 of the European Prison Rules 850
and in the standards of the European Committee for the Prevention of
Torture. 851
3. Judicial review of detention
The right to challenge the lawfulness of detention judicially, protected
by Article 9.4 ICCPR, Article 5.4 ECHR, Article 7.6 ACHR and Article 14.6
ArCHR, 852 is a fundamental protection against arbitrary detention, as
844 The Right to Information on Consular Assistance in the Framework of the Guarantees of the
Due Process of Law, IACtHR, Advisory Opinion OC-16/99, 1 October 1999, para. 84.
845 Ibid., para. 96.
846 Ibid., para. 106.
847 Ibid., para. 122.
848 Vélez Loor v. Panama, IACtHR, op. cit., fn. 536, paras. 151–160.
849 Moreno Ramos v. United States, IACHR, Case 12.430, Report No. 1/05, Merits, 28 January
2005, para. 59; Martinez Villareal v. United States, IACHR, Case 11.753, Report No. 52/02,
Merits, 10 October 2002, paras. 63–77.
850 Recommendation R(87)3 of the Committee of Ministers to member states on the European
Prison Rules, adopted by the Committee of Ministers on 12 February 1987 at the 404 th meeting
of the Ministers’ Deputies.
851 CPT Standards, op. cit., fn. 629, Extract from the 19 th General Report [CPT/Inf (2009) 27],
p. 61, para. 83.
852 See also Article 37(d) CRC: “Every child deprived of his or her liberty shall have the right
to prompt access to legal and other appropriate assistance, as well as the right to challenge
the legality of the deprivation of his or her liberty before a court or other competent,
independent and impartial authority, and to a prompt decision on any such action”;
and Article 17.2(f) CPED. See, WGAD, Annual Report 1998, op. cit., fn. 643, Guarantees 3
and 4; WGAD, Annual Report 1999, op. cit., fn. 643, Principle 3; WGAD, Annual Report
2003, UN Doc. E/CN.4/2004/3, 15 December 2003, para. 86; WGAD, Annual Report 2008,
op. cit., fn. 624, paras. 67 and 82. The African Commission on Human and Peoples’ Rights
has derived the right to judicial review of detention under the right to access to a court and
fair trial (Article 7 ACHPR): IHRDA and Others v. Republic of Angola, ACommHPR, op. cit.,
fn. 395, paras. 58–60; RADDH v. Zambia, ACommHPR, op. cit., fn. 536, para. 30.