33
decision, there is no obligation to comply with it, because habeas corpus is not the
appropriate means of invalidating jurisdiction.
119. The State added that the procedure used and the decision issued by the
judges who heard the petition for protective measure were defective, as the only
organ competent to decide on a jurisdictional dispute between the ordinary
jurisdiction and the military justice system is the Supreme Court of Justice. Lastly,
the State declared that, apart from being illegal, the habeas corpus decision could
not be executed physically because Gustavo Cesti Hurtado was not detained, but at
liberty.
120. The Court observes, in the first place, that the decision of the Supervisory
Office for Judges of the Supreme Court sanctioning the judges of the Public Law
Chamber does not challenge their decision itself. In the second place, regarding the
State’s argument that when the aforementioned Public Law Chamber pronounced
judgment on the petition for habeas corpus, judgment had already been pronounced
under the military justice system, the Court considers that this statement is contrary
to the proven facts in the instant case. Indeed, it has been shown that the final
judgment in the petition for habeas corpus was pronounced on February 12, 1997,
and communicated to the military justice system on February 18, 1997, before
Gustavo Cesti Hurtado was arrested. Contrary to what the State has declared, the
judgment of first instance in the military proceedings was not pronounced until two
months later, on April 13, 1997.
Consequently, the State’s argument is not
admissible.
121. Article 25 of the American Convention establishes that everyone has the right
to a simple and prompt recourse or any other effective recourse to a competent
court or tribunal. The Court has declared that this provision
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 in Article 1.1 of the American
Convention, in that it assigns duties of protection to the States Parties through their
domestic legislation. The purpose of habeas corpus is not only to guarantee personal
liberty and humane treatment, but also to prevent disappearance or failure to determine
the place of detention and, ultimately, to ensure the right to life28.
122.
that
With regard to this protection, Article 7(6) of the American Convention states
[a]nyone who is deprived of his liberty shall be entitled to recourse to a competent
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. In States Parties
whose laws provide that anyone who believes himself to be threatened with deprivation
of his liberty is entitled to recourse to a competent court in order that it may decide on
the lawfulness of such threat, this remedy may not be restricted or abolished. The
interested party or another person in his behalf is entitled to seek these remedies.
123. The Court has already said that a detained person must be ensured the right
to petition for habeas corpus at all times, even when being held in exceptional
circumstances of solitary confinement established by law29. As has been confirmed,
28.
Castillo Páez case, Judgment of November 3, 1997. Series C No. 34, para. 82 and 83.
29.
Suárez Rosero case, Judgment of November 12, 1997. Series C No. 35, para. 59.
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