25
embodied in Article 7(3) of the American Convention, owing to the lack of due
justification in the adoption and maintenance of the remand in custody of Messrs.
Chaparro and Lapo. Consequently, the State violated their right to personal liberty
embodied in Article 7(1) of the Convention, in relation to the obligation to respect rights
established in Article 1(1) thereof.
D)
REMEDIES AVAILABLE TO CONTEST THE DEPRIVATION OF LIBERTY OF MESSRS.
CHAPARRO AND LAPO
120. The Commission indicated that the State had violated Article 7(6) of the
Convention because the recourses filed by Messrs. Chaparro and Lapo were ineffective,
“since, at no time, were the grounds for the measure depriving them of their liberty
reviewed.” In addition, it considered that Article 2 of the Convention had been violated
because the authority responsible for hearing the constitutional habeas corpus recourse
was a Mayor, “in other words, an administrative authority.”
121. With regard to effectiveness, the State affirmed that the decision on the recourses
filed was “duly justified and in keeping with the law.” Regarding the authority who heard
the habeas corpus recourse, it acknowledged that “the best option would be to attribute
competence to a judge, a person with legal training.” Nevertheless, it indicated that this
“does not mean that, in the instant case, the constitutional norm invoked and the actions
of the Mayor disregarded any right that could be contested by this channel.” Also, as
stated previously (supra para. 25), the State acquiesced to the claims of the parties
regarding failure to comply with Article 2 of the Convention.
122. The Court observes that, in Ecuador at the time of the facts, there were two types
of recourses that allowed the lawfulness of deprivation of liberty to be reviewed. The first
was the constitutional habeas corpus embodied in Article 28 of the Constitution, which
stated:
Any person who believes that he has been unlawfully deprived of his liberty may have recourse to
habeas corpus. He may exercise this right on his own behalf or through a third party, without the
need for a written mandate, before the Mayor under whose jurisdiction he is, or before the person
carrying out the Mayor’s responsibilities. The municipal authority shall require immediately that
the appellant be brought before him and the order that deprived him of his liberty produced. This
mandate shall be obeyed without any comment or excuse by those in charge of the social
rehabilitation center or place of detention.
Once he has been informed of the relevant facts, the Mayor shall immediately order the release of
the appellant if the latter has not been brought into his presence, or if the order has not been
produced, or if the order does not comply with the legal requirements, or if there have been
procedural errors or, lastly, if the grounds for the recourse are justified. […]
123. Article 31 of the Constitutional Control Act established the remedy of appeal
against decisions that denied the constitutional habeas corpus, as follows:
The decision denying habeas corpus may be appealed before the Constitutional Court, which shall
immediately order the Mayor to forward the case file of the denied appeal within forty-eight hours
of receiving this order.
124.
Lastly, Article 74 of the Municipal Regime Act at the time indicated that:
Once the complaint has been submitted, or put in writing if it is verbal, the Mayor shall order that
the appellant be brought before him, within twenty-four hours, and that the authority or judge
who ordered the detention or delivered the judgment, provide information on the content of the
complaint, in order to establish the relevant facts.
For the same purpose, he shall request any other authority and the person in charge of the prison
or penitentiary establishment where the appellant is detained, to provide the reports and
documents he deems necessary. The authorities or employees to whom this request has been
made shall submit [such reports and documents] with the urgency with which they were
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