29
c)
in the case of Suarez Rosero,67 the Court concluded that Ecuador had
violated Articles 7 and 8 of the Convention and ordered that the necessary
measures be adopted in order to guarantee that these violations never occur
again in their jurisdiction. However, the present case refers specifically to the
reiteration of these same violations; and
d)
the State is responsible for the violation of Mr. Acosta Calderón’s right to
judicial protection, stated in Article 25 of the Convention, and for the noncompliance of the obligations imposed by Article 2 of the same instrument,
since they did not adopt the measures necessary to avoid the reiteration of
these violations, all in connection with Article 1(1) of the Convention.
ARGUMENTS OF THE REPRESENTATIVES
87.
Regarding Article 25 of the Convention the representatives adopted the
arguments presented by the Commission as their own and also stated that:
a)
Mr. Acosta Calderón on different opportunities presented requests in
which he asked that the order of preventive detention issued against him by the
Judge of Criminal Matters of Lake Agrio be revoked, however, this authority did
not issue a ruling regarding these requests or he simply denied the appeal for
reversal. Second, […] the denials lacked an explanation. Therefore, they
affirmed that the State did not grant judicial protection to the rights [of Mr]
Acosta Calderón, in the terms established by [Article] 25 and 25(2)(b);”
b)
“the remedies must be adequate and effective, in such a manner that
they are capable of producing the effect for which they were created and […]
they protect the rights that are allegedly being violated.” In the present case,
“the reversal as a horizontal appeal was adequate, but obviously not effective;”
c)
“even when the Code of Criminal Procedures of 1983, in force at the time
in which Mr. Acosta Calderón was prosecuted, included the rule of Art[icle] 458
that acknowledged the judicial habeas corpus remedy (or legal protection of
freedom as it was called), it is also true that the judicial authorities
systematically denied the granting of remedies, or there mere processing, […]
which along with the existing systematic delay lead to the loss of all efficiency
of the recourse;”
d)
in Ecuador at the time when the facts occurred, “there was not an appeal
for legal protection, different to the habeas corpus remedy, since the appeal for
legal protection was introduced in Ecuador through the constitutional
amendments of January of 1996.” “Under these circumstances Mr. […] Acosta
Calderón could not present appeals for his legal protection to protect himself
from the different violations due to actions and omissions that occurred during
the processing of the preliminary procedures of the trial followed against him,
as well as in the intermediate stage of the process;”
e)
according to the Code of Criminal Procedures of 1983, “no act was
appealable even when it violated human rights, unless the law established that
possibility,” which violates Article 25(2)(b) of the Convention; and
67
The case of Suarez Rosero was decided by the Tribunal on November 12, 1997, that is, more than a
year after the release of Mr. Acosta Calderón.