30
recourse to become effective, it must be ideal not only to solve alleged
violation, but it must not also be illusory. In a concrete case, even when
habeas corpus was an ideal recourse for the judicial authority to investigate
and be aware of the situation of the missing people, Peruvian tribunals were
limited to establish legality of detention and disregarded their obligation to
inform victims' whereabouts, which was the fundamental objective of the
recourse promoted by Mrs. Ugarte Rivera;
c)
Article 7(6) the Convention guarantees the access to this kind of
recourses to protect the right to personal freedom and Article 27(2) of the
Convention, regarding suspension of guarantees in states of emergency, it
excludes the possibility for "the indispensable judicial guarantees" to be
ineffective for the protection of the non abolished rights among which there
are the habeas corpus and protection proceedings;
d)
regarding the limitation of access to a simple and rapid recourse, in
the case of Nolberto Durand Ugarte and Gabriel Pablo Ugarte Rivera, it offers
an identical situation to Neira Alegria Case. In the latter, the Court stated that
the State had violated "Articles 7(6) and 27(2) of the Convention; under the
implementation of the Supreme Order No. 012-86-IN and Supreme Order No.
006-86-JUS of June 2 and 6 [rectius 19], 1986, who declared the state of
emergency in Lima and Callao provinces and a Restricted Military Zone in
three penitentiaries, among them in San Juan Bautista". To this regard, the
Court has stated that
even though such orders did not suspend an habeas corpus proceeding or
recourse [...] in fact, the fulfillment of both orders produced the inefficiency of
the quoted protective instrument thus its suspension is to the detriment of
alleged victims. Habeas corpus was the ideal proceeding for the judicial
authority to investigate and find out about the whereabouts of three persons to
which this case refers, 44 and
e)
the Court must clarify, in this case, that the State is responsible for
the violation of Articles 7(6), 25(1), and 27(2) of the Convention.
94.
The Stated said that:
a)
habeas corpus, as conceived in various legislations, "regulates cases of
ARBITRARY DETENTION that Durand Ugarte and Ugarte Rivera could resort
to" because motives of their detention have been detailed in the
corresponding investigation and had a warrant to proceed to their reclusion,
so qualifications of jurisdictional order, in these cases, turned out to be proper
for a legal framework; and
b)
since the relatives of Durand Ugarte and Ugarte Rivera have not
exercised the proceedings of alleged death statement or since the beginning
of legal succession has not been provided for to exercise the compensation
which the legal Peruvian order acknowledges, the internal recourse has not
been exhausted, and this determines a lack of competence of the Court.
*
44
Neira Alegría et al Case, supra note 12, para. 77.