incompatible with the Convention, does not constitute an effective recourse to question the
deprivation of liberty under the terms of Article 7(6). For its part, the State claimed that the
alleged victim could have obtained a judicial review of the precautionary measure and that
the decision of the Examining Magistrate considered all the defense’s arguments as well as
the issues and the vicissitudes of the personal situation of the alleged victim.
122. Article 7(6) protects the right of anyone deprived of his or her liberty “to recourse to a
competent court, in order that the court may decide, without delay, on the lawfulness of the
detention or arrest and order [the] release if the arrest or detention is unlawful.” The Court has
held that an objective of this right is to allow judicial control over deprivations of liberty.147
123. The Court considers that the issues regarding the motives of the judge and the
justification of the extension of pre-trial detention, which were analyzed above and were found
arbitrary, had as a consequence that the remedies presented by the alleged victim were not
effective. The Court, therefore, holds that the State is also responsible for violating Article 7(6)
of the Convention.
VI.2.
RIGHT TO THE JUDICIAL PROTECTION OF MR. ROMERO FERIS
A. Arguments of the parties and of the Commission
124. The Commission observed that, in the four criminal cases described in the proven
facts, the alleged victim filed a series of recourses that questioned diverse aspects of the
competence, independence and impartiality of different judicial authorities who heard the
criminal proceedings against him. In his recourses, he ascribed those violations to a political
context due to the irregular appointment of the authorities who heard his cases and,
specifically, with the object of criminally persecuting him. The Commission claimed that there
were not sufficient elements to request that the Court declare a violation of Article 8(1).
However, with specific reference to the remedies presented by the alleged victim, it argued
that the decisions of the different judicial authorities who rejected or did not admit the
recourses were contrary to Article 25(1), as will be explained.
125. The representative asked that the Court declare and establish that the State is
responsible for violating the human rights of Mr. Romero Feris, in accordance with the
conclusions of the Commission’s Merits Report.
A.1. Regarding the remedies on the appointment of the First Examining Magistrate
126. The Commission noted that the alleged victim filed various recourses that disputed the
competence of the First Magistrate because he had been appointed despite having finished
ninth in a competition on the merits for the position. It claimed that the responses to these
recourses were not effective since they did not offer a substantive answer to the petitions;
did not indicate the reasons why that person was chosen despite the result of the merits
competition; there was no indication of the options by which the defense counsel could
challenge the situation nor did the responses clarify the alleged political context. The
representative referred to what was expressed by the Commission in its Merits Report.
Cf. 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, para. 33; Case of Vélez Loor v. Panama, para. 124 and Case of Amrhein
et al. v. Costa Rica, para. 370.
147
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