Palma Mendoza. The guilty parties presented an appeal to the court of cassation, which was
denied by the Second Criminal Chamber of the Supreme Court of Justice on June 26,
2002.86
B.
Legal considerations
1.
Right to judicial protection with regards to habeas corpus (Article 25 in
relationship to Articles 1.1 and 2 of the American Convention)
90.
In this case, the petitioners maintain that, once the habeas corpus petition
was filed for Mr. Palma, all of the state agencies should have been activated in order to find
him in military, police, or penitentiary establishments. They also state that this recourse was
not effective because it did not lead to the location of Mr. Palma, and they argue that
Articles 7(6) and 25 of the Convention have been violated. The Ecuadorian State did not
make a statement about this argument.
91.
Article 7.6 of the American Convention establishes that:
Anyone who is deprived of his liberty shall be entitled to recourse to a competent
court, in order that the court may decide without delay on the lawfulness of his
arrest or detention and order his release if the arrest or detention is unlawful. In
States Parties whose laws provide that anyone who believes himself to be
threatened with deprivation of his liberty is entitled to recourse to a competent court
in order that it may decide on the lawfulness of such threat, this remedy may not be
restricted or abolished. The interested party or another person in his behalf is entitled
to seek these remedies.
92.
Article 25 of the Convention establishes that:
1. Everyone has the right to simple and prompt recourse, or any other
effective recourse, to a competent court or tribunal for protection against
acts that violate his fundamental rights recognized by the constitution or
laws of the state concerned or by this Convention, even though such
violation may have been committed by persons acting in the course of their
official duties.
93.
For its part, Article 2 establishes:
Article 2. Domestic Legal Effects
Where the exercise of any of the rights or freedoms referred to in Article 1 is not
already ensured by legislative or other provisions, the States Parties undertake to
adopt, in accordance with their constitutional processes and the provisions of this
Convention, such legislative or other measures as may be necessary to give effect to
those rights or freedoms.
94.
The IACHR observes that Article 7 of the American Convention refers to the
deprivation of liberty carried out by or with the acquiescence of the State. In this case, the
lack of investigation with respect to the allegations about the possible participation of agents
of the Armed Forces of Ecuador as well as the confession of the one of the direct perpetrators
of the kidnapping and murder of Mr. Palma—referring to the crime as being motivated by
personal conflicts—mean that sufficient elements do not exist to determine possible state
responsibility in Mr. Palma’s kidnapping. Because of this, the IACHR will not make a statement
86
Judgment of the Supreme Court of Justice, Second Criminal Chamber, Quito, June 26, 2002.
Appendix to the petitioners’ communication of November 17, 2005.