55
seeking judicial guarantees shall not be permitted, nor may such actions be filed against
the provisions of this Decree Law.
181. This article was amended by Decree-Law No. 26,248, promulgated on
November 12, 1993, and in effect since November 26 of that year, which in principle
permitted remedies seeking guarantees in behalf of those suspected of terrorism or
treason. This new decree law, however, did nothing to improve the juridical situation
of the accused, since its Article 6.4 stipulated that “writs of habeas corpus based on
the same facts or grounds [that are] the subject of a proceeding that is under way,
or a proceeding that is already resolved, are not admissible.”
182. As the Court already held in this case98 and in a previous case,99 because
Decree-Law No. 25,659 was in effect at the time the alleged victims were detained
and during a good part of the proceedings in the domestic courts, the law prohibited
any writ of habeas corpus on their behalf. The amendment introduced with DecreeLaw No. 26,248 did not help the detainees because theirs was “a proceeding […]
under way.”
183. The fact that Mrs. Gloria Cano, defense counsel for Mr. Astorga Valdez, filed
for two writs of habeas corpus (supra 86.11) does not alter the conclusion arrived at
in the preceding paragraph, since those writs were not filed in order to have “a
competent court […] decide without delay on the lawfulness of his arrest or detention
and order his release if the arrest or detention [was] unlawful.” In fact, Mr.
Astorga’s defense counsel was filing to obtain a court order to allow his relatives to
visit him.
184. The Court reiterates that the right to a simple and prompt recourse or any
other effective remedy filed with the competent court that protects that person from
acts that violate his basic rights
is one of the fundamental pillars not only of the American Convention, but of the very
rule of law in a democratic society in the terms of the Convention […] Article 25 is
closely linked to the general obligation contained in Article 1(1) of the American
Convention, in that it assigns duties of protection to the States Parties through their
domestic legislation.100
185.
The Court has further held that
the absence of an effective remedy to violations of the rights recognized by the
Convention is itself a violation of the Convention by the State Party in which the remedy
is lacking. In that sense, it should be emphasized that, for such a remedy to exist, it is
not sufficient that it be provided for by the Constitution or by law or that it be formally
recognized, but rather it must be truly effective in establishing whether there has been a
violation of human rights and in providing redress.101
98.
Castillo Petruzzi et al. Case, Preliminary Objections, supra note 2, para. 62.
99.
Loayza Tamayo Case, supra note 4, para. 52.
100.
Castillo Páez Case, supra note 4, paras. 82 and 83; Suárez Rosero Case, supra note 80, para.
65; Paniagua Morales et al. Case, supra note 3, para. 164; Blake Case, supra note 4, para. 102.
101.
Judicial guarantees in states of emergency (Arts. 27(2), 25 and
Human Rights), supra note 86, para. 24.
8 American Convention on