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95.
In its conclusions, the Government stated that some writs of habeas corpus were granted
from 1981 to 1984, which would prove that this remedy was not ineffective during that period. It
submitted various documents to support its argument.
96.
In response, the Commission argued that the practice of disappearances made exhaustion
of domestic remedies impossible because such remedies were ineffective in correcting abuses
imputed to the authorities or in causing kidnapped persons to reappear.
97.
The Commission maintained that, in cases of disappearances, the fact that a writ of habeas
corpus or amparo has been brought without success is sufficient to support a finding of exhaustion
of domestic remedies as long as the person does not appear, because that is the most appropriate
remedy in such a situation. It emphasized that neither writs of habeas corpus nor a criminal
complaint were effective in the case of Francisco Fairén Garbi and Yolanda Solís Corrales. The
Commission maintained that exhaustion should not be understood to require mechanical attempts
at formal procedures; but rather to require a case-by-case analysis of the reasonable possibility of
obtaining a remedy.
98.
The record contains testimony of members of the Legislative Assembly of Honduras,
Honduran lawyers, persons who were at one time disappeared, and relatives of disappeared
persons, which purports to show that in the period in which the events took place, the legal
remedies in Honduras were ineffective in obtaining the liberty of victims of a practice of enforced
or involuntary disappearances (hereinafter "disappearance" or "disappearances"), ordered or
tolerated by the Government. The record also contains dozens of newspaper clippings which
allude to the same practice. According to that evidence, from 1981 to 1984 more than one
hundred persons were illegally detained, may of whom never reappeared, and, in general, the
legal remedies which the Government claimed were available to the victims were ineffective.
99.
That evidence also shows that some individuals were captured and detained without due
process and subsequently reappeared. However, in some of those cases, the reappearances were
not the result of any of the legal remedies which, according to the Government, would have been
effective, but rather the result of other circumstances, such as the intervention of diplomatic
missions or actions of human rights organizations.
100. The evidence offered shows that certain lawyers who filed writs of habeas corpus were
intimidated, that those who were responsible for executing the writs were frequently prevented
from entering or inspecting the places of detention, and that occasional criminal complaints
against military or police officials were ineffective, either because certain procedural steps were
not taken or because the complaints were dismissed without further proceedings.
101. The Government had the opportunity to call its own witnesses to refute the evidence
presented by the Commission, but failed to do so. Although the Government's attorneys
contested some of the points urged by the Commission, they did not offer convincing evidence to
support their arguments. The Court summoned as witnesses some members of the armed forces
mentioned during the proceeding, but their testimony was insufficient to overcome the weight of
the evidence offered by the Commission to show that the judicial and governmental authorities
did not act with due diligence in cases of disappearances. The instant case is such an example.
102. The testimony and other evidence received and not refuted leads to the conclusion that,
during the period under consideration, although there may have been legal remedies in Honduras
that theoretically allowed a person detained by the authorities to be found, those remedies were
ineffective in cases of disappearances because the imprisonment was clandestine; formal
requirements made them inapplicable in practice; the authorities against whom they were brought
simply ignored them, or because attorneys and judges were threatened and intimidated by those
authorities.