76
188.
This Court has recently indicated that
[i]n order to clarify whether the State has violated its international obligations owing to
the acts of its judicial organs, the Court may have to examine the respective domestic
proceedings116.
189. Likewise, the European Court has indicated that the procedures should be
considered as a whole, including the decisions of the appeals tribunals, and that the
function of the international tribunal is to determine if all the procedures, and the
way in which the evidence was produced, were fair117.
190. It is worth indicating that, although, in this case, numerous domestic
recourses have been attempted in order to determine the whereabouts of Bámaca
Velásquez, such as the petitions for habeas corpus, the special pre-trial investigation
procedure, and the criminal actions (supra 121 m), none of them were effective, and
the whereabouts of Bámaca Velásquez are still unknown.
191. This Court has repeated that it is not sufficient that such recourses exist
formally, but that they must be effective118; that is, they must give results or
responses to the violations of rights established in the Convention. In other words,
every person has the right to a simple and prompt recourse or to any effective
recourse before competent judges or tribunals that protects him against the violation
of his fundamental rights119. This guarantee “constitutes one of the basic pillars, not
only of the American Convention, but also of the rule of law in a democratic society
according to the Convention”120. Moreover, as the Court has also indicated,
[t]hose remedies which prove illusory, due to the general situation of the country or
even the particular circumstances of any given case, cannot be considered effective121.
192. Among essential judicial guarantees, habeas corpus represents the ideal
means of guaranteeing liberty, controlling respect for the life and integrity of a
person, and preventing his disappearance or the indetermination of his place of
116
Cf. Villagrán Morales et al. Case (the “Street Children” Case), supra note 52, para. 222.
117
Cf., inter alia, Eur. Court H. R., Edwards v. the United Kingdom judgment of 16 December 1992,
Series A no. 247-B, para. 34 and Eur. Court H. R., Vidal v. Belgium judgment of 22 April 1992, Series A
no. 235-B, para. 33.
118
Cf. Caso Cesti Hurtado. Judgment of September 29, 1999. Series C No. 56, para. 125; Caso
Paniagua et al., supra note 50, para. 164; Suárez Rosero Case, supra note 53, para. 63; Godínez Cruz
Case, supra note 53, paras. 66, 71 and 88; and Velásquez Rodríguez Case, supra note 53, paras. 63, 68
and 81.
119
Cf. Cantoral Benavides Case, supra note 56, para. 163; Durand and Ugarte Case, supra note 56,
para. 101; Caso Cesti Hurtado, supra note 118, para. 121; Castillo Petruzzi et al. Case, supra note 50,
para. 185; and Judicial Guarantees in States of Emergency (Articles 27(2), 25 and 8, American
Convention on Human Rights). Advisory Opinion OC-9/87 of October 6, 1987. Series A No. 9, para. 24.
120
Cf. Cantoral Benavides Case, supra note 56, para. 163; Durand and Ugarte Case, supra note 56,
para. 101; Villagrán Morales et al. Case (the “Street Children” Case), supra note 52, para. 234; Caso Cesti
Hurtado, supra note 118, para. 121; Castillo Petruzzi et al. Case, supra note 50, para. 184; Paniagua
Morales et al. Case, supra note 50, para. 164; Blake Case, supra note 52, para. 102; Suárez Rosero Case,
supra note 53, para. 65 and Castillo Páez Case, supra note 52, para. 82.
121
Cf. Judicial Guarantees in States of Emergency (Articles 27(2), 25 and 8, American Convention on
Human Rights), supra note 117, para. 24.
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