35
*
c)
*
*
Mr. Neptune’s right to recourse to contest the deprivation of liberty (Article
7(6) of the Convention)
112. The Commission alleged that the State was responsible for the violation of Article
7(6) in relation to Article 25(1) of the Convention, given that “Mr. Neptune was not
guaranteed his right to recourse and there is no evidence on record indicating that Mr.
Neptune was otherwise afforded access to a competent court or tribunal to exercise his right
to judicial protection.” 153 The Commission mentioned that the guarantees established in
Articles 7(6) and 25 of the Convention “together seek to avoid arbitrariness and
unlawfulness in the application of pre-trial detention”154 and that the State’s obligation to
grant a judicial recourse implies that it must “adopt affirmative measures to guarantee that
the recourses it provides through the justice system are truly effective in establishing
whether there has been a violation of human rights and in providing redress.”155
113. The representative alleged the violation of Article 7(6) of the Convention, because he
considered that the State had not complied with the time limits for bringing Mr. Neptune
before his natural judge, to decide a motion for disqualification filed against the judges of
the Court of Saint-Marc and to decide on the appeal against the closing order.156
114. The Court has understood that, according to the text of Article 7(6) of the
Convention, the holder of the “right to have recourse to a competent judge or court [so that
the latter] may decide without delay on the lawfulness of his arrest or detention”
corresponds to the person “deprived of his liberty,” although “the recourses may be filed for
himself or by another person.” 157 Unlike the right embodied in Article 7(5) of the
Convention, which imposes on the State the obligation to respect and guarantee it ex
officio, Article 7(6) protects the right of the person deprived of liberty to recourse to a
judge, irrespective of the observance of his other rights and of the judicial activity in his
specific case, which implies that the person detained effectively exercises this right, in the
assumption that he can do so, and that the State effectively provides this recourse and
rules on it.
115. In situations of deprivation of liberty, such as those of the instant case, among the
essential judicial guarantees, habeas corpus represents the appropriate means for
guaranteeing the liberty and controlling respect for the life and integrity of the person, and
also for protecting the personal integrity of the individual. 158 Obviously the name,
153
Cf. Application submitted by the Commission, supra note 3, para. 102 (folio 125).
154
Cf. Application submitted by the Commission, supra note 3, para. 97 (folio 124).
155
Cf. Application submitted by the Commission, supra note 3, para. 101 (folio 125).
156
Cf. Final written arguments presented by the representatives, supra note 65, para. 77 (folio 285).
157
Case of La Cantuta, supra note 40, para. 112.
158
Cf. Neira Alegría et al. v. Perú. Merits. Judgment of January 19, 1995. Series C No. 20, para. 82; Case of
La Cantuta, supra note 42, para. 111, and Serrano Cruz Sisters v. El Salvador. Merits, reparations and costs.
Judgment of March 1, 2005. Series C No. 120, para. 79. See also, 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. 35.
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