statement of reasons, and this constituted an arbitrary deprivation of liberty which was also contrary
to the principle of presumption of innocence in violation of Articles 7(1), 7(3), 7(5) and 8(2) of the
American Convention, in relation to Article 1(1) of this instrument, to the detriment of Jorge
Humberto Villarroel Merino, Jorge Coloma Gaibor, Fernando López Ortiz, Amílcar Ascázubi Albán and
Patricio Vinueza Pánchez.
E. Remedies filed against the detention (Articles 7(1), 7(6) and 1(1))
109. In this section, the Court will analyze whether the State enabled the presumed victims to
have recourse to a competent judge or court, for the court to decide without delay on the lawfulness
of their detention and order their release if the detention was unlawful, pursuant to Article 7(6) of
the Convention. Since Article 7(6) has its own legal content and the principle of effectiveness (effet
utile) crosscuts the protection due to all the rights recognized in this instrument, the Court finds it
unnecessary to analyze that provision in relation to Article 25 of the Convention, as alleged by the
Commission.124 For the same reason, it will not examine the remedies of nullity and appeal filed by
the presumed victims125 because their purpose was not to achieve a prompt decision on whether or
not the detention was lawful; therefore, they were neither appropriate nor effective remedies to
protect personal liberty.126
110. As mentioned, Article 7(6) of the Convention has its own legal content which consists in the
direct protection of personal or physical liberty by a judicial mandate addressed to the corresponding
authorities to ensure that the person detained is brought before a judge so that the latter may
examine the lawfulness of the deprivation of liberty and, if applicable, order his release. 127 This
Court’s case law has already indicated that such remedies should not only exist formally in law, but
must be effective; in other words, comply with the objective of obtaining a prompt decision on the
lawfulness of the arrest or detention. To the contrary, the judicial activity would not signify true
control but a mere formal or even symbolic procedure resulting in a violation of personal liberty.
Moreover, the analysis of the lawfulness of a deprivation of liberty “should examine the arguments
submitted by the plaintiff and expressly refer to them, in accordance with the standards established
by the American Convention.”128
111. In the instant case, two applications for amparo were filed 129 based on articles 422 and ff. of
the common Code of Criminal Procedure as a default rule which established the so-called protection
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 Vélez Loor v. Panamá. Preliminary objections, merits, reparations and
costs. Judgment of November 23, 2010. Series C No. 218, para. 123.
124
In this case, following the decision of May 26, 2003, the presumed victims filed several remedies against this judicial
decision. On June 13, 2003, the defense of Messrs. Villarroel Merino, Cevallos Moreno, Coloma Gaibor, Vinueza Pánchez,
López Ortiz and Ascázubi Albán and one other person filed remedies of nullity and appeal. On July 31, 2003, the National
Police Court of Justice rejected the appeal for declaration of nullity, declaring that it was unsubstantiated, and returned the
proceedings for a decision on the remedy of appeal (supra paras. 51 and 52). On November 11, 2003, the National Police
Court of Justice decided the appeal for declaration of nullity, confirming and upgrading the reasoned order (supra para. 53).
125
126
In this regard, it should be mentioned that Marcella da Ponte Carvalho provided an expert opinion in the Case of
Carranza Alarcón v. Ecuador, in which she stated that the 1983 Code of Criminal Procedure did not establish the remedy of
appeal against the order of pre-trial detention (article 348). Therefore, a person who was being prosecuted and against
whom an order of pre-trial detention had been issued could contest it by either: the application for protection of liberty or
the application for habeas corpus. Cf. Case of Carranza Alarcón v. Ecuador, supra, para. 34.
Cf. Habeas Corpus in Emergency Situations (Arts. 27(2), 25(1) and 7(6) American Convention on Human Rights).
Advisory Opinion OC-8/87 of January 30, 1987. Series A No. 8, para. 33, and Case of Vélez Loor v. Panamá, supra, para.
124.
127
Cf. Case of López Álvarez v. Honduras, supra, para. 96, and Case of Chaparro Álvarez and Lapo Iñiguez v. Ecuador,
supra, para. 133.
128
The Court notes that the body of evidence only includes the application for amparo filed by Mr. Cevallos Moreno.
However, it does include the decisions on two applications for protection of liberty, one filed jointly by Messrs. Villarroel
129
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