25.
The Court confirms that the State alleged a failure to exhaust domestic remedies
before the Admissibility Report was issued. In a communication to the Commission dated July
11, 2000, it referred to habeas corpus and the liberty amparo. 17 Later, in a communication
dated March 2, 2011, 18 it mentioned the possibility of filing an action for failures in the
administration of justice and an action for damages.
26.
The Court notes that the State mentioned in its July 11, 2000, communication that the
criminal trial was still in progress when the petition was presented, 19 an issue it also raised
before the Court. On this matter, the Court refers to its discussion above on the preliminary
objection concerning the violation of the State’s right to defense (supra paras. 16–19). This
Court also notes that in the above-mentioned document presented to the Commission,
Ecuador, in its discussion of the criminal trial, did not link its argument directly to the
requirement for the exhaustion of domestic remedies established in section (a) of Article 46(1)
of the Convention; rather, it asserted that the petition was not presented within six months
of the notification of the final decision, as established in section (b) of the same article. Thus,
with respect to the criminal trial not having been concluded by the date of the initial petition,
Ecuador did not present before the Commission the objection regarding the failure to exhaust
domestic remedies that it also presented before the Court.
27.
Moving now to an analysis of the remedy of habeas corpus, it is important to recall
that the Court has already established that it was not effective. This is because it would have
been processed in the first instance before an administrative authority, not a judicial
authority, in violation of Article 7(6) of the Convention. 20
28.
Ecuador also mentioned the “amparo of liberty,” which allowed a detainee to petition
for release before the judicial body above the one that had imposed the deprivation of liberty.
The State indicated that this remedy was appropriate for the deprivation of liberty of Mr.
Cortez that began in July of 1997 in the context of a military criminal trial. The Court notes
that the Commission, both before the Court and in its Admissibility Report, stated that there
were obstacles to using this remedy when it could have been effective. Specifically, it argued
that Mr. Cortez was in solitary confinement during the first days of his detention. This Court
therefore finds that the State’s argument cannot be analyzed without examining the merits
of the matter, and that the preliminary objection is therefore inadmissible.
29.
Lastly, it must be made clear that with respect to the arguments on failures in the
administration of justice, the State, in its answering brief before the Court, only mentioned
that it had presented before the Commission arguments for the remedies of an action for
failures in the administration of justice and an action for damages, which is what in fact
occurred. However, it did not put forward in its answering brief any arguments for the
supposed suitability and effectiveness of those remedies. Moreover, the case fundamentally
concerns alleged violations of personal liberty, personal integrity, and other rights in the
context of judicial proceedings. Suitable remedies, therefore, would have allowed for halting
17
Cf. State document dated July 6, 2000, received by the Commission on July 11, 2000 (evidence file,
proceeding before the Commission, folios 701–709).
18
Cf. March 2, 2011, document presented by the State to the Commission (evidence file, proceeding before
the Commission, folios 2839–2845).
19
Cf. July 6, 2000, document from the State, supra.
20
Cf. Case of Chaparro Álvarez and Lapo Iñiguez v. Ecuador, Preliminary objections, merits, reparations, and
costs. Judgment of November 21, 2007. Series C No. 170, para. 129, and Case of Carranza Alarcón v. Ecuador.
Preliminary objections, merits, reparations, and costs. Judgment of February 3, 2020. Series C No. 399, para. 21.
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