18
Violation of Articles 7(6) and (25)
57.
The Commission asked the Court to rule that Mr. Suárez-Rosero's incommunicado
detention violated Article 7(6) of the American Convention in that it denied him contact with
the outside world and did not permit him to exercise his right of habeas corpus.
58.
With regard to the aforementioned guarantee, Article 7(6) of the Convention
provides that
[a]nyone 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 on his behalf is entitled to
seek these remedies.
59.
The Court has already ruled that a detained person must be guaranteed the right of
habeas corpus at all times, even when he is being held in exceptional circumstances of
incommunicado detention established by law. That guarantee is doubly entrenched in the
law in Ecuador. Article 28 of the Political Constitution provides that
[a]ny person who believes that he is being unlawfully deprived of his liberty may seek the remedy
of habeas corpus. He may exercise this right himself or through another person without the need
for written mandate ...
The Code of Criminal Procedure of that State establishes in Article 458 that
[a]ny person who is charged with infringing the precepts contained in [that] Code and is kept in
detention may apply to be released to a higher Court than the one that has ordered the
deprivation of his liberty.
...
The application shall be made in writing.
...
Immediately upon receipt of the application, the Judge who is to hear it shall order the detained
person to be brought before him and shall hear his statements, which shall be included in a
record which shall be signed by the Judge, the Secretary and the applicant, or, should the
applicant be unable to sign, by a witness on his behalf. Thereupon, the Judge shall seek to obtain
all the information he deems necessary for the purpose of arriving to a conclusion and ensuring
the lawfulness of his decision and shall, within forty-eight hours, decide what he deems to be
lawful.
60.
The Court observes, first of all, that the aforesaid articles do not restrict access to
the remedy of habeas corpus to the persons who are held incommunicado; in addition, the
Constitution allows that remedy to be sought by any person "without the need for written
mandate." It also points out that no evidence has been submitted to it to show that Mr.
Suárez-Rosero attempted to file such an appeal with a competent authority during his
incommunicado detention, nor did any other person attempt to do so on his behalf.
Consequently, the Court deems the Commission's claim in that regard not to have been
proven.