51
163. The Court reiterates that the right of all persons to a simple and rapid remedy
or to any other effective remedy before competent judges or tribunals that will
protect them against acts that violate their fundamental rights
constitutes one of the basic pillars, not only of the American Convention, but also of the
Rule of Law in a democratic society as per the Convention […]. Article 25 is closely
linked to the general obligation set forth in Article 1(1) of the American Convention, by
attributing the function of protection to the internal laws of the States Parties.66
164.
Also, the Court has pointed out that
The absence of an effective remedy against the violation of rights recognized in the
Convention constitutes a breach of same by the State Party in which such a situation
takes place. In this regard, it is necessary to underscore the fact that, for such a remedy
to exist, it is not enough for it to be called for in the Constitution or law, or that it be
formally admissible; it must also be truly effective in determining whether there has
been a violation of human rights and providing the means to remedy it.67
165. The above is valid not only in normal situations, but also in exceptional
circumstances. Among the indispensable judicial guarantees that must be observed,
habeas corpus is the most effective means “to control respect for the life and
integrity of persons, to prevent their disappearance or the concealment of their place
of detention, as well as to protect them against torture or other cruel, inhuman or
degrading treatment or punishment.”68
166. According to the proven facts, Luis Alberto Cantoral-Benavides did not have,
in application of Article 6 of Decree Law no. 25.659 (referring to the crime of treason
against the fatherland), the right to interpose any action intended to safeguard his
personal liberty or question the legality of his detention (supra para. 63.h.),
regardless of whether guarantees had been suspended or not.
This article
establishes that
in no stage of the police investigation or criminal proceedings may action be brought by
persons detained for, implicated in or on trial for the crime of terrorism, covered in
Decree Law No. 25.475, or against the provisions of the present Decree Law.
167. This law was later modified by Decree Law No. 26.248, which was
promulgated on November 12, 1993, and entered into force on November 25, 1993.
Said modification made it possible, in principle, to bring action on behalf of those
implicated in the crime of terrorism or treason against the fatherland. However, this
change had no impact on the legal situation of Mr. Luis Alberto Cantoral-Benavides,
since Article 2 of said Decree Law stated that “writs of habeas corpus were not
66
cfr. Durand and Ugarte Case, supra note 45, para. 101; Castillo-Petruzzi et al. Case, supra note
9, para. 184; Paniagua-Morales et al. Case, supra note 9, para 164; Blake Case, supra note 11, para.
102; Castillo-Páez Case, supra note 12, paras. 82 and 83; and Suárez-Rosero Case, supra note 10, para.
65.
67
Durand and Ugarte Case, supra note 45, para. 102; and Judicial guarantees in states of
emergency (arts. 27(2), 25 and 8 of the American Convention on Human Rights, Advisory Opinion OC9/87 of October 6 1987. Series A No. 9 para. 24.
68
Castillo-Petruzzi et al. Case, supra note 9, para. 187; Neira-Alegría et al. Case, supra note 14,
para. 82; and Habeas corpus under suspension of guarantees (arts. 27.2, 25.1 and 7.6 of the American
Convention on Human Rights), supra note 40, para. 35.
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