19
81.
This Court considers it useful to stress that the judgment of the Constitutional Guarantees
Court stood upon a voting where four justices were in favor of admitting the appeal filed, and two
were in favor of denying the annulment. In virtue of this, while it is true that the minimum
number of five votes in favor was not obtained, the singular vote of the four justices represents
the majority opinion of the Court. The pertinent section of the opinion was affirmed when it said:
"That, while it is true that such a situation does not constitute a legal definition for kidnapping, it
leads to the conclusion that the judge should have exhausted the investigation concerning the
lives and whereabouts of the persons in whose favor the [habeas corpus] action is being
brought." Thus, in the opinion of said justices, the appeal against the judgment of the Supreme
Court was justiciable. Had the appeal been admitted, the intervention of military justice would not
have impaired the habeas corpus proceeding.
82.
The Court has interpreted articles 7(6) and 27(2) of the Convention in advisory opinions
OC-8 and OC-9 of January 30 and October 6, 1987 respectively. In the former opinion, the Court
maintained that
writs of habeas corpus and of "amparo" are among those judicial remedies that are essential for the
protection of various rights whose derogation is prohibited by Article 27(2) and that they serve,
moreover, to preserve legality in a democratic society. This Court also deemed that [i]n order for
habeas corpus to achieve its purpose, which is to obtain a judicial determination of the lawfulness of a
detention, it is necessary that the detained person be brought before a competent judge or tribunal with
jurisdiction over him. Here habeas corpus performs a vital role in ensuring that a person's life and
physical integrity are respected, in preventing his disappearance or the keeping of his whereabouts
secret and in protecting him against torture or other cruel, inhumane, or degrading punishment or
treatment. (Habeas Corpus in Emergency Situations, (Arts. 27(2), 25(1) and 7(6) American Convention
on Human Rights), Advisory Opinion OC-8/87 of January 30, 1987. Series A No. 8, paras. 42 and 35.)
83.
In Advisory Opinion OC-9, this Court added
that the judicial guarantees essential for the protection of the human rights not subject to derogation,
according to Article 27(2) of the Convention, are those to which the Convention expressly refers in
Articles 7(6) and 25(1), considered within the framework and the principles of Article 8, and also those
necessary to the preservation of the Rule of Law, even during the state of exception that results from
the suspension of guarantees. (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. 38.)
84.
These interpretive criteria are applicable to this case in that the control and jurisdiction of
the armed forces over the San Juan Bautista Prison translated into an implicit suspension of the
habeas corpus action, by virtue of the application of the Supreme Decrees that imposed the state
of emergency and the Restricted Military Zone status.
85.
In accordance with Article 1(1) of the Convention, "[t]he States Parties to this Convention
undertake to respect the rights and freedoms recognized herein and to ensure to all persons
subject to their jurisdiction the free and full exercise of those rights and freedoms." Thus, as a
consequence, this provision is a general one, and its violation is always related to the violation of
a provision that establishes a specific human right. As the Court already expressed in a previous
case, Article 1
specifies the obligation assumed by the States Parties in relation to each of the rights protected. Each
claim alleging that one of those rights has been infringed necessarily implies that Article 1(1) of the
Convention has also been violated. (Velásquez Rodríguez Case, supra 63, para. 162; Godínez Cruz
Case, supra 63, para. 171.)
86.
This Court considers that in this case the Government has not violated Article 5 of the
Convention. While the deprivation of a person's life could also be understood as an injury to his or