that it be effective, that is, capable of producing the result for which it was designed, that it have a useful
effect, and that it not be illusory.279
231. The Commission notes that at the time of the facts in the instant case, there were two types
of remedies that allowed a review of the legality of a deprivation of liberty: (1) the appeal of the pre-trial
detention order as established in Article 251 of the Code of Criminal Procedure280; and (2) the presentation of
the habeas corpus remedy as provided for in Article 18 of the Constitution.281
232. The petitioners allege that during the time Ms. Andrade was deprived of liberty her defense
filed three writs of habeas corpus before the Constitutional Court, which despite having been ruled on
favorably did not translate into the immediate release of Ms. Andrade Salmón. The State, for its part, alleged
that Article 7(6) of the Convention was not violated because the Constitutional Court ruled in her favor, and
in a timely, effective, and impartial manner, in response to the writs of habeas corpus filed by Ms. Andrade. It
noted that these judgments were not carried out immediately since the petitioners did not present the bail set
by the Constitutional Court instead of detention. It indicated that as a result of the complaint presented by the
Vice-Minister of Justice to the Attorney General of the Republic an investigation was initiated in the cases
reported by the alleged victim against the judges who issued the detention orders against Ms. Andrade
Salmón for the alleged wrongful deprivation of liberty, rulings contrary to the Constitution and the laws,
dereliction of duties, and disobedience of rulings in habeas corpus and constitutional amparo proceedings.
(a)
279
Criminal proceeding Gader case
IACHR, Report on the Human Rights of Persons Deprived of Liberty in the Americas, OEA/Ser.L/V/II. Doc 64, December 31, 2011, para.
246.
280
Article 251.- (Appeal).
The decision ordering, modifying or rejecting the precautionary measures may be appealed within the space of seventy-two hours, although the
appeal shall not suspend the order.
Once the appeal is filed, the pertinent case files shall be sent up to the Superior Court within twenty-four hours. Without staging additional
proceedings, the court shall hold a hearing within three days of receiving the case files.
No subsequent appeal shall be permitted.
281
Article 18 of the Constitution. Habeas corpus.
Every person w ho believes that he or she is improperly or illegally pursued, detained, prosecuted, or imprisoned may recur, b y
himself or herself or by anyone on his or her behalf, w ith notarized pow er of attorney or w ithout it, to the Superior Court of
the District or before any District Judge at his or her choice, in an action to ensure that legal formalities are respected. In
those places w here there is no District Judge, the action may be filed before an Examining Judge.
The judicial authority shall indicate immediately the day and time of the public hearing, ordering that the moving party be
taken there. With that order a personal summons or notice shall be served at the office of the authority against w hom the
action has been brought; that order shall be obeyed w ithout any observation or excuse, both by it and by those in charge of
the prisons or places of detention w ithout them, once summoned, being able to disobey by arguing a higher -ranking order.
In no case may the hearing be suspended. Once informed of the facts, the judicial authority shall issue a judgment in the
hearing itself, ordering his or her release, having the legal defects repaired, or placing the claimant at the disposal of th e
competent judge. The ruling should be carried out forthw ith. The decision that is issued shall be forw arded on review , sua
sponte, before the Supreme Court of Justice w ithin 24 hours, w ithout the execution of the judgment being suspended for
that reason.
If the respondent after attending the hearing leaves it before hearing the judgment, he or she w ill be given valid notice at the
Tribunal. If he or she does not appear, the hearing w ill be held in his or her absence, and the presentation of the moving party
or his or her representative shall be heard, and a judgment shall be handed dow n.
Public officials or private parties that defy court decisions shall, in the circumstances that this article stipulates and by order
of the authority that heard the habeas corpus petition, be brought before the Criminal Judge to be prosecuted for
compromising constitutional guarantees.
A judicial authority who does not proceed in keeping with the provisions of this article shall be subject to the sanction of Article 127(12) of this
Constitution.