32
the needs and do not exceed to strict limits imposed by the Convention or derived
from it”. 46
100. Said supreme orders did not suspend, in an expressed way, the habeas
corpus recourse stated by Article 7(6) of the American Convention, but the State
fulfillment of said decrees produced, in fact, the inefficiency of said recourse, by
virtue of ordinary judges, cannot be allowed to enter the penitentiaries for being
restricted military zones, and such dispositions prevent investigations and
determination of the whereabouts of persons in favor of which the recourse has been
filed. In this case, habeas corpus was the ideal proceedings that could be effective,
thus enabling judicial authority to investigate and find out about the whereabouts of
Durand Ugarte and Ugarte Rivera. State allegation is not valid in the sense that it
acknowledges the internal legal order, such as a statement of alleged death or the
opening of the corresponding legal succession. These resources served other
purposes, related to the successive regime, and
"not the clarification of a
disappearance violating human rights". 47
101. Likewise, the Court has reiterated every person has the right to a simple and
prompt recourse or any other effective recourse before a competent judge or tribunal
for protection against acts that violate his fundamental rights.
it constitutes one of the fundamental pillars, not only of the American Convention but
also of the Government of Laws itself in a democratic society in the sense of the
convention [...] Article 25 is closely related to the general obligation of Article 1(1) of
the American Convention by attributing protection functions to the internal law of States
Parties. 48
102.
Besides, the Court has stated that
the inexistence of an effective recourse against violations of the acknowledged rights by
the Convention constitutes a transgression thereof by the State Party in which such
situation took place. It must be pointed out that, in that sense, for the existence of said
recourse, it is not sufficient to be anticipated by the Constitution or the law or shall be
formally accepted, but it should be really ideal to determine whether a violation of
human rights had been committed and do whatever it takes to solve it. 49
103. The above is not only valid under normal circumstances, but also under
particular circumstances. Within the unrepealable judicial guarantees, habeas corpus
represents the best means "to control the respect of life and humane treatment, to
avoid his disappearance or indetermination of his detention place, as well as to
protect someone against cruel, inhumane, or degrading punishment or treatment". 50
46
Judicial Guarantees in states of emergency. Advisory Opinion OC-9/87 on October 6, 1987. Series
A No. 9, para. 21.
47
Durand and Ugarte Case, Preliminary Objections. Judgment of May 28, 1999. Series C No. 50.
para. 35.
48
cf. Castillo Petruzzi et al Case, supra note 8. para.184; Castillo Páez, supra note 11. para. 82 and
83; Paniagua Morales et al Case, supra note 8. para. 164; Blake Case, supra note 10.para. 102; and
Suárez Rosero Case, supra note 9, para. 65.
49
50
Judicial guarantees in state of emergency, supra note 46, para. 24.
cf. Habeas corpus under guarantees suspension, supra note 45, para. 35, Judicial guarantees on
state of emergency, supra note 46, para. 31; Castillo Petruzzi et al Case, supra note 8, para. 187; Suárez
Rosero, supra note 9, para. 63; and Neira Alegría et al Case, supra note 12, para. 82.