39
the alleged victim from having the opportunity to have access to an effective legal
remedy to challenge his detention. As a consequence, they considered that the State
is responsible for the violation of Articles 7(6) and 25 of the Convention.
121. The State held that the domestic legal system, that establishes the legality of
administrative actions, also provides a broad range of remedies in force, those of
which were available to Mr. Vélez, with the legal assistance provided by the State
through the Ombudsman’s Office or by means of assistance of the Consulate of
Ecuador, who was aware of the situation of his fellow citizen. However, Mr. Vélez Loor
did not request assistance to challenge the lawfulness of the proceeding conducted by
the National Office of Immigration, nor did he take any action oriented to expedite
some of the mechanisms of judicial control at his disposal. Furthermore, it referred to
the lack of formality and effectiveness of the writ of habeas corpus in the arrests
ordered by the National Office of Immigration of the Ministry of Interior and Justice.
122. As may be observed, the State has objected to any statement regarding a
violation of Articles 7(6), 8(2)(h), and 25 of the Convention (supra paras. 59 y 66),
based on that, at the time of the events, there were no adequate and effective
domestic remedies to review the lawfulness of the arrest of Mr. Vélez Loor. In this
respect, the Court notes that the State based its position on the review of the
lawfulness of the penalty of deprivation of liberty ordered by Order N° 7306 of
December 6, 2002, but it did not mention the arrest ordered by means of Order N°
1430, of November 12, 2002.
123. Accordingly, the Court recalls that Articles 7(6), 8(2)(h), and 25 of the
Convention relates to different aspects of protection. In this chapter, the Court will
analyze whether the State offered Mr. Vélez Loor the possibility of having recourse to
a competent judge or 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 pursuant to Article 7(6) of the Convention. Moreover, the Court notes that
even though the Commission independently alleged the violation of Article 7(6) of the
Convention, the representatives requested the Court to declare the violation of such
norm in conjunction with Article 25 of the Convention for the same facts. By virtue of
the fact that Article 7(6) of the Convention has its own legal content and the principle
of effectiveness (effet utile) is interrelated to the duly protection for all the rights
enshrined in the treaty, the Tribunal considers it is unnecessary to analyze such
provision in connection with Article 25 of the Convention.123 The possibility of
appealing the penalty imposed by means of Order 7306 shall be analyzed in section
g) infra (para. 173 to 181).
124. In fact, as it has been mentioned, Article 7(6) of the Convention has its own
legal content, which consists of the protection of personal or physical freedom, by
means of a judicial decree ordering the appropriate authorities to bring the detained
person before a judge so that the lawfulness of the detention may be determined and,
if appropriate, the release of the detainee be ordered.124
125. Firstly, the Court observes that, according to Article 88 of Decree Law 16 of
1960, all the resolutions of the Migration Office of the Ministry of Interior and Justice
were subjected to the following administrative remedies: 1) request for
reconsideration, before the Director of the Migration Office and 2) the appeal, before
the Ministry of Interior and Justice.125
123
Cf. Case of Anzualdo Castro, supra note 60, para. 77.
124
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. Series A No. 8, para. 33.
125
Cf. Decree Law N° 16 of June 30, supra note 80, folios 1155.
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