43
[…]
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. 144
119.
Under the rules established by the American Convention, effective
judicial oversight of the detention or arrest of a person imposes two fundamental –
independent and mutually complementary – obligations on the part of the State: the
obligation to bring any detained person promptly before a judge or other officer authorized
by law to exercise judicial power (Article 7.5), and the obligation to allow anyone who is
deprived of his liberty immediate recourse to a competent court, in order that the court
may decide without delay on the lawfulness of his arrest or detention; that is to say,
habeas corpus or personal appearance of the detainee (Article 7.6). Habeas corpus ensures
that the detainee is not exclusively at the mercy of the detaining authority, and this
145
protection must always be accessible. The Commission has established that the writ of
habeas corpus:
Is the traditional remedy which protects by way of recourse one's
physical or corporal liberty or freedom of movement by means of a
summary judicial proceeding that takes the form of a trial. As a rule, the
writ of habeas corpus protects persons who are already being deprived of
their freedom under unlawful or arbitrary circumstances, precisely in
order to put an end to the circumstances that extend the deprivation of
their freedom. Whether or not this remedy is effective in affording
protection depends in large part on whether the petition seeking this
remedy is acted on swiftly, thus making it a suitable and effective means
146
of reaching a decision on a matter in as little time as possible.
120.
Fulfillment of these obligations by the State is essential for effective
protection of such fundamental unrepeatable rights as the right to life and the right to
humane treatment. 147 That is why the Commission has argued that “[t]he single most
144
Similar provisions could be found in other human rights instruments, like the International Covenant
on Civil and Political Rights (Article 9), the European Convention on Human Rights (Article 5), and the Body of
Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Principles 4, 11, 15, 16,
32 y 37); and with regard to the juvenile justice, in the Convention on the Rights of the Child (Article 37), the
United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules) (Rule 10)
and the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (Rule 22).
145
IACHR, Fifth Report on the Situation of Human Rights in Guatemala, Ch. VII, para. 24.
146
IACHR, Report No. 41/99, Merits, Minors in Detention, Honduras, March 10 1999, para. 61.
147
This protection is particularly relevant in the case of children and adolescents, who by their own
condition of vulnerability require strengthened safeguards. This topic is extensively developed by the Commission
in: IACHR, Juvenile Justice and Human Rights in the Americas, OEA/Ser.L/V/II. Doc. 78, adopted on July 13, 2011,
(hereinafter “Juvenile Justice and Human Rights in the Americas”), paras. 225‐226.
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