of effectiveness (effet utile), this Court does not consider it necessary to analyze the pertinent
arguments and facts under Article 25 of the Convention. 117
141. Article 7(6) of the Convention protects the right of every detained person to recourse
to a competent court, with the aim that the court would promptly rule on the lawfulness of
the deprivation of liberty and, if appropriate, order the person's release. 118 The Court has
specified that the remedies available for ensuring this right “must not only exist formally in
the legislation, but they must also be effective, that is, they must fulfill the objective of
obtaining, without delay, a decision on the legality of the arrest or detention.” 119
142. The Court notes that during the first detention and for at least the first 17 days of the
second, Mr. Cortez, unlawfully deprived of his liberty and under an authority without
jurisdiction to hear the case, remained in solitary confinement. Such a situation hinders a
detained person’s ability to exercise their right to file judicial remedies in defense of their
freedom of movement. Moreover, with respect to all three of Mr. Cortez’s detentions, it is
important to recall that habeas corpus petitions were to be submitted to the mayor—an
administrative authority (supra para. 38). In this regard, the Court has already established
that such a regulation of habeas corpus is contrary to the Convention. This Court has stated
that “Article 7(6) of the Convention is clear when it establishes that the authority who must
decide on the lawfulness of the ‘arrest or detention’ must be a judge or court. The Convention
is thereby ensuring that control of deprivation of liberty must be of a judicial nature. Although
he may have been granted competence by law, a mayor is not a judicial authority.” 120
143. In addition, even though the State argued that Mr. Cortez could have made use of the
“liberty amparo,” it clarified in its final written arguments that if the victim had presented that
remedy, it would have been handled by the President of the Court of Military Justice. As has
been stated previously, and as was decided by the domestic authorities, the military courts
did not have jurisdiction in this case (supra paras. 59 and 92). Accordingly, as the remedy
would have been processed before an authority without jurisdiction, it cannot be deemed an
appropriate judicial remedy in this case.
B.4 Conclusion
144. The Court has noted that any violation of subparagraphs 2 through 7 of Article 7 of the
Convention will necessarily entail the violation of Article 7(1). 121
145. Accordingly, bearing in mind the violations already determined, the Court declares that
Ecuador violated Gonzalo Orlando Cortez Espinoza’s rights to personal liberty and to the
presumption of innocence by infringing Articles 7(1), 7(2), 7(4), and 7(5) of the American
Convention in conjunction with Article 1(1), as well as Articles 7(1), 7(3), 7(6), and 8(2) of
the Convention in conjunction with Articles 1(1) and 2.
Cf. Case of Anzualdo Castro v. Peru. Preliminary objection, merits, reparations, and costs. Judgment of
September 22, 2009. Series C No. 202, para. 77, and Case of González et al. v. Venezuela, supra, para. 124.
118
Cf. Habeas Corpus Under the Suspension of Guarantees (Arts. 27(2), 25(1), and 7(6) of the American
Convention on Human Rights). Advisory Opinion OC-8/87 of January 30, 1987, para. 33, and Case of González et al.
v. Venezuela. Merits and reparations, supra, para. 101.
119
Cf. Case of Acosta Calderón v. Ecuador. Merits, reparations, and costs. Judgment of June 24, 2005. Series
C No. 129, para. 97, and Case of González et al. v. Venezuela, supra, para. 101.
120
Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador. Preliminary objections, merits, reparations, and
costs, supra, para. 128, and Case of Herrera Espinoza et al. v. Ecuador, supra, para. 165. Due to the mayor’s lack
of competence, it is unnecessary to analyze the representatives’ arguments about the lack of substantiation in the
administrative authority’s decisions in response to the habeas corpus petitions filed by Mr. Cortez.
121
Cf. Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador. Preliminary objections, merits, reparations, and
costs, supra, para. 54, and Case of Habbal et al. v. Argentina, supra, para. 62.
117
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