49
pertaining, for example, to the Executive Branch. 171 Nor is that requirement of the
Convention met, when the presentation of a detainee before a judicial authority is a mere
formality. 172
135.
At the same time, the Inter‐American Court has established that habeas
corpus, as a guarantee against arbitrary and unlawful detention, is reinforced by the State’s
role as guarantor of the rights of persons deprived of liberty. By virtue of that function, the
State has the responsibility to guarantee the rights of individuals under its custody as well
as that of supplying information and evidence pertaining to what has happened to the
detainee. 173 The Court has further established that “habeas corpus performs a vital role in
ensuring that a person's life and physical integrity are respected, in preventing his
disappearance or the keeping of his whereabouts secret and in protecting him against
torture or other cruel, inhumane, or degrading punishment or treatment.” 174 From what
has been said before, it follows that writs of habeas corpus and of amparo are among
those judicial remedies that are essential for the protection of various rights whose
derogation is prohibited by the American Convention and that serve, moreover, to
preserve legality in a democratic society. 175
136.
Regarding the scope of the judicial review, the IACHR has established
that:
The review of the legality of a detention implies confirming, not only
formally but also substantively, that the detention conforms to the
requirements of the judicial system and that it does not violate any of the
detained person’s rights. That such confirmation is carried out by a judge,
invests the proceeding with certain guarantees that are not duly
protected if the decision is in the hands of an administrative authority. 176
Accordingly, the Inter‐American Court has laid down the basic principle that “The analysis
by the competent authority of a judicial recourse that debates the legality of the
imprisonment can not be reduced to a mere formality, instead it must examine the reasons
171
As in the previously cited case of Mr. Tranquilino Vélez Loor, who after his arrest for violating the
immigration laws of the Republic of Panama was "transferred" or placed at the disposal of the Immigration and
Naturalization Office of the province of Darien by the National Police.
172
See also, European Court of Human Rights, Case of Baranowski v. Poland, (Application no.
28358/95), Judgment of March 28, 2000, First Section, para. 57.
173
I/A Court H. R., Case of Tibi V. Ecuador. Judgment of September 7, 2004. Series C No. 114, para. 129.
174
I/A Court H.R., 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.
175
I/A Court H.R., Judicial Guarantees in States of Emergency (Arts. 27(2), 25 and 8 American
Convention on Human Rights). Advisory Opinion OC‐9/87 of October 6, 1987. Series A No. 9, para. 33; I/A Court
H.R., 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. 42.
176
IACHR, Report No. 66/01, Case 11.992, Merits, Dayra María Levoyer Jiménez, Ecuador, June 14,
2001, para. 79.
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