30
f)
even “with the constitutional amendments of 1996 and 1998, the
exercise of the guarantee of legal protection is not regulated in accordance with
the rule of [Article] 25 of the Convention, since it expressly prohibits that
appeals for legal protection be presented against judicial orders”.
CONSIDERATIONS OF THE COURT
88.
Article 7(6) of the American Conventions states 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 in his behalf is entitled to seek these remedies.
89.
Article 25 of the same Convention states 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.
2.
The States Parties undertake:
a) to ensure that any person claiming such remedy shall have his rights determined by the
competent authority provided for by the legal system of the state;
b) to develop the possibilities of judicial remedy; and
c) to ensure that the competent authorities shall enforce such remedies when granted.
90.
The Court has considered that “the proceedings of habeas corpus and legal
protection are judicial guarantees essential for the protection of several rights whose
suspension is reserved by Article 27(2) [of the Convention] and they also help to
preserve legality in a democratic society.”68
91.
These guarantees, which seek to avoid the arbitrariness and illegality of the
arrests carried out by the State, are also reinforced by its condition of guarantor,
regarding the rights of the detainees, in virtue of which, as has been indicated by the
Court, the State “has both the responsibility of guaranteeing the rights of the
individuals under their custody as well as providing the information and evidence
related to what happens to the detainee.”69
92.
This Tribunal has established that the protection of the person before the
arbitrary exercise of public power is the main objective of international human rights
68
Habeas Corpus in Emergency Situations. Series A. Advisory Opinion OC-8/87 of January 30, 1987,
para. 42; and cfr. Case of Tibi, supra, note 6, para. 128; Case of the Gómez Paquiyauri Brothers, supra note
57, para. 97; Case of Durand and Ugarte. Judgment of August 16, 2000. Series C No. 68, para. 106; and
Judicial Guarantees in States of Emergency (arts. 27.2, 25, and 8 American Convention on Human Rights).
Advisory Opinion OC-9/87 of October 6, 1987. Series A No. 9. para. 33.
69
Cfr. Case of Tibi, supra note 6, para. 129; Case of the Gómez Paquiyauri Brothers, supra note 57,
para. 98; and Case of Bulacio. Judgment of September 18, 2003. Series C No. 100, para. 138.