26
72.
In cases concerning deprivation of liberty, such as with the instant case, the
habeas corpus remedy constitutes, among the indispensable judicial guarantees, the
most suitable means to ensure freedom, oversee the respect for life and personal
integrity of the individual, to ensure that the detainee is brought before the court in
charge of verifying the legality of the detention, as well as to avoid disappearances or
uncertainty about detention centers, and to protect the individual from torture or
other forms of cruel, inhumane or degrading treatment.90 These criteria are expressly
embodied in Articles X and XI of the ICFDP, specifically when referring to forced
disappearance of people.
73.
During the time the writ of habeas corpus was filed to determine the
whereabouts of Mr. Anzualdo Castro, the set of rules governing this remedy
established that such remedy was inadmissible “when “the injured party opts to
institute proceedings in the general jurisdiction.”91 Consequently, for a situation
like the one of the instant case, this provision disregarded the fact that both
procedures have different purposes and contemplated the consequence that the writ
of habeas corpus was impracticable for protection purposes it was supposed to fulfill
and therefore, rendered the analysis on the lawfulness of the detention unrealistic.
74.
Under Article 7(6) of the Convention, this protection mechanism “may not be
restricted or abolished”; therefore, said ground for inadmissibility is in total breach of
the conventional provision. Likewise, the decision that denied the habeas corpus was
based on the absence of sufficient evidence to prove the wrongdoing of the state
agents considered to be responsible for the disappearance of Mr. Anzualdo, that is, it
made the remedy dependent on the criminal investigation, which, at the end, turned
out to be totally ineffective to determine his whereabouts (infra paras. 128-140). This
proves a clear confusion regarding the purpose of the habeas corpus.
75.
In addition, according to the Truth and Reconciliation Commission, since the
coup d’état of April 2002, the implementation of forced disappearance as
practice became heightened and created a climate in which the habeas corpus
as a legal remedy turned to be ineffective92. It was a widespread practice where
“the justice administrators failed to protect the citizens’ rights, by declaring the writs
of habeas corpus inadmissible” and where the Public Prosecutor’s Office “failed to
exercise its duty to monitor the strict respect for human rights that needed to be
shown while carrying out detentions and proved to be impassive to the requests
victims’ next-of-kin” and it did not comply with its duty to appropriately investigate
into the crimes, for its lack of independence from the Executive power93. This had a
88
Cf. motion to appeal filed by Félix Vicente Anzualdo Vicuña on February 22, 1994 (record of
evidence, volume V, appendix 7 to the application, pages 1714).
89
Cf. court order issued by the Sixth Criminal Court in and for Lima in the court file Nº 02-94, of
February 23, 1994 (record of evidence, volume V, appendix 7 to the application, page 1715).
90
Cf. Case of Neira Alegría et al. V. Perú. Supra note 43 para. 82; Case of La Cantuta V. Peru,
supra note 58, para. 111; Case of the Serrano Cruz Sisters V. El Salvador. Merits, Reparations and Costs.
Judgment of March 1, 2005. Series C No. 120, para. 79. See also Habeas corpus in Emergency Situations
(Art. 27(2), 25(1) and 7(6) American Convention on Human Rights). Advisory Opinion OC-8/87 of January
30, 1987, Series A Nº.8, para. 35.
91
Section 6.3) of Habeas Corpus and Amparo Act 23.506 of December 8, 1982.
92
Cf. Final Report of the CVR, 2003, volume VIII, General Conclusions, para. 128, available at
http://www.cverdad.org.pe/ifinal/index.php. See also, Case of Gómez Palomino V. Perú, supra note 63,
para. 54.1.
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