186. As one of the inherent aspects of the protection of detainees from torture and
ill-treatment, judicial oversight of detention applies at all times, including
times of national emergency, as noted by the Inter-American Court:
“[…] even in emergency situations, the writ of habeas corpus
may not be suspended or rendered ineffective. […] the
immediate aim of this remedy is to bring the detainee before a
judge, thus enabling the latter to verify whether the detainee is
still alive and whether or not he or she has been subjected to
torture or physical or psychological abuse. The importance of
this remedy cannot be overstated, considering that the right to
humane treatment recognized in Article 5 of the American
Convention on Human Rights is one of the rights that may not
be suspended under any circumstances.”104
187.
In this case the Respondent States‟ obligation to bring the victims promptly to
an independent judicial authority was breached. While they did appear before a
prosecutor, the right guaranteed in law is to bring them before a judicial
authority that is independent of the authorities detaining, interrogating and
ultimately prosecuting them.
They also had no meaningful opportunity to
challenge the lawfulness of their detention, due to lack of access to a court and to
lawyers. Article 3 of the Emergency Law 50/1982 as amended, stipulates that
detainees or their representatives may appeal their arrest or detention orders
within 30 days after the orders are issued. However, in practice detainees often
have little access to the appeal provided for in law. The victims had no access to
lawyers neither were they arraigned before a competent court during to properly
remand them to custody
188. The Respondent State, while arguing that the victims were allowed access to
their families, failed to challenge in specific terms the allegations that they
were refused access to medical care. The allegation of torture and more
particularly the particulars of injuries sustained by the Victims as contained
104
Ibid., para. 12. See also ibid., para. 35.
56
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