84
243.
In order for the right to submit appeals, denunciations, and complaints
not to be illusory, it is essential that the State adopt the necessary measures to guarantee
effectively that both inmates and third parties acting on their behalf will not be subjected
to reprisals or acts of retaliation for exercising those rights. 287 This is especially important
in a detention or prison context in which the inmate is ultimately under the custody and
control of the very authorities against which his appeals, complaints, or petitions may be
lodged. Such inmates are therefore susceptible to reprisals and acts of retaliation. Persons
deprived of their liberty must not be punished for filing appeals, petitions, or complaints.
Judicial remedies
244.
International law establishes two basic remedies that must be available
for the protection of the fundamental rights of persons deprived of liberty: on the one
hand, the habeas corpus, established in Article 7.6 of the American Convention, 288 which
constitutes the fundamental guarantee safeguarding everyone’s right not to be subjected
to unlawful or arbitrary detention, and which must also provide an opportunity for the
judicial authority to ascertain the physical integrity of the detainee; and, on the other, a
prompt, suitable and effective legal remedy that guarantees those rights that may be
violated by the very conditions of detention or imprisonment. The existence of the later
remedy is grounded in Article 25.1 of the American Convention, which establishes: 289
Everyone has the right to simple and prompt recourse, or any other
effective recourse, to a competent court or tribunal for protection against
acts that violate his fundamental rights recognized by the constitution or
laws of the state concerned or by this Convention, even though such
violation may have been committed by persons acting in the course of
their official duties.
245.
In this connection, in its Principles and Best Practices, the IACHR set
standards regarding the nature and scope of such a recourse:
Principle V. […] All persons deprived of liberty shall have the right,
exercised by themselves or by others, to present a simple, prompt, and
effective recourse before the competent, independent, and impartial
authorities, against acts or omissions that violate or threaten to violate
their human rights. In particular, persons deprived of liberty shall have
287
On this matter see, the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment (Principle 33.4).
288
In the same vein, the International Covenant on Civil and Political Rights (Article 9.4); and the
European Convention on Human Rights (Article 5.4).
289
In the same sense, the Article 2.3 of the International Covenant on Civil and Political Rights lays
down that each State Party undertakes (a) to ensure that any person whose rights or freedoms as herein
recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by
persons acting in an official capacity. Likewise, Article 13 of the European Convention on Human Rights says that,
everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has been committed by persons acting in an official
capacity.
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