The Court is of the opinion, unanimously, [t]hat the "essential" judicial
guarantees which are not subject to derogation, according to Article 27(2) of
the Convention, include habeas corpus (Art. 7(6)), amparo, and any other
effective remedy before judges or competent tribunals (Art. 25(1)), which is
designed to guarantee the respect of the rights and freedoms whose suspension
is not authorized by the Convention.
--I/A Court H.R., Advisory Opinion OC-9/87, Judicial Guarantees in States of
Emergency, October 6, 1987 (paras. 25, 41).
*****
In order for habeas corpus to achieve its purpose, which is to obtain a judicial
determination of the lawfulness of a detention, it is necessary that the detained
person be brought before a competent judge or tribunal with jurisdiction over
him. Here 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.
This conclusion is buttressed by the realities that have been the experience of
some of the peoples of this hemisphere in recent decades, particularly
disappearances, torture and murder committed or tolerated by some
governments. This experience has demonstrated over and over again that the
right to life and to humane treatment are threatened whenever the right to
habeas corpus is partially or wholly suspended.
[…]
[I]t follows that in a system governed by the rule of law it is entirely in order
for an autonomous and independent judicial order to exercise control over the
lawfulness of such measures by verifying, for example, whether a detention
based on the suspension of personal freedom complies with the legislation
authorized by the state of emergency. In this context, habeas corpus acquires a
new dimension of fundamental importance.
--I/A Court H.R., Advisory Opinion OC-8/87, Habeas Corpus in Emergency
Situations, January 30, 1987 (paras 35-36, 40).
*****
"[I]n serious emergency situations it is lawful to temporarily suspend certain
rights and freedoms whose free exercise must, under normal circumstances, be
respected and guaranteed by the State. However, since not all of these rights
and freedoms may be suspended even temporarily, it is imperative that 'the
judicial guarantees essential for (their) protection' remain in force”…. The
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