CHAPTER V

HABEAS CORPUS

American Declaration of the Rights and Duties of Man – Article XVIII. Every person may resort to the courts to ensure respect for his legal rights. There should likewise be available to him a simple, brief procedure whereby the courts will protect him from acts of authority that, to his prejudice, violate any fundamental constitutional rights.1

1. The Constitution of the Republic of Uruguay of 1967 provides that:

Article 17. In the event of unlawful detention, the interested party or any other person may apply to the competent judge for a writ of habeas corpus to the end that the detaining authority shall immediately explain and justify the legal grounds for such detention, the decision of the aforementioned judge being final.

Article 30. Every inhabitant has the right of petition to all or any of the authorities of the Republic.

2. The conclusion drawn from the material presented in Chapter I of this Report on “The system of legal norms related to the protection of human rights� is that the constitutional norms cited above have neither been repealed nor suspended, at least not expressly. However, in the interpretation of the Government, the remedy of habeas corpus is not appropriate in cases of arrest under the “Prompt Security Measures.�

3. According to some of the denunciations received by the Commission, this renders the remedy ineffectual, because arrests made without judicial intervention are labeled a posteriori as having been made “in application of the “Prompt Security Measures.� The Commission finds grounds to give credence to this assertion, by virtue of the fact that the reports received from the Government on the many individual cases of arrest do in fact invoke application of the “Prompt Security Measures,� in those cases where the Military Court did not intervene.

4. By way of example, transcribed below are the pertinent parts of Case 1945:

In fact, when an individual is detained no one knows whether his arrest will later be labeled as being “in application of the Prompt Security Measures� and he will be released after an unpredictable period of administrative imprisonment, or whether a Military Judge will be advised; what happens in most instances is that the apprehending authority itself does not know whether one or the other action will ultimately be taken.

The Constitution establishes the remedy of habeas corpus, but its interpretation by the authorities robs it of any possible effectiveness.

When cases submitted to the Military Courts are involved, the Examining Magistrates (Jueces Letrados de Instrucción)—who are competent to consider the petition—are of the view that the intervention of another authority with “jurisdiction� will ensure the guarantee provided in the Constitution, inasmuch as the guarantee only refers to administrative detentions. And when a Military Judge does not intervene—in other words, in cases attributed to application of the “Prompt Security Measures�—it is argued that the remedy of habeas corpus does not apply while that system is in effect. Judges who do not share this viewpoint have only managed to make an inquiry into the situation of the detainee through an official letter to the apprehending authority; but they have yielded in the face of replies, which merely confirm the detention and justify it by invoking application of the “Prompt Security Measures.�

5. It would appear advisable to reiterate the Commission's position regarding the scope of habeas corpus. In another report, the Commission stated the following in this regard:

... no form of arbitrary detention (irregular, abusive, contrary to law) is excluded from the control of legal regularity that is presupposed by the principle of habeas corpus. And it is unnecessary to demonstrate that this vice of arbitrariness can be presented in the case of deprivation carried out by a low-ranking policeman as much as it would be if this act were performed by the President of the Republic who has delegated to the policeman (regularly or not) this exceptional power. It is clear that the Judge cannot dispute the merit of the decision, that he is not able to discuss whether the exigencies of maintaining public order make it necessary or do not make it necessary that citizen “X� be preventively detained; but he should be able, on the other hand, to require that the body of the detained person be brought into his presence (“habeas corpus�, which would enable him to ascertain whether he is alive or not, whether he had his physical integrity or not, whether he shows signs of bad treatment or torture; it would permit him to know where he is and whether or not he has someone to give him legal advice; he would be able to decide whether the order for his detention had come from a competent authority or not and whether it fulfills the indispensable form requirement; he would be able to find out whether the detained person is in an adequate place, or whether he is mixed with common criminals in an ordinary jail, etc. etc. This is the enormous, the transcendental significance of the recourse to habeas corpus in these exceptional cases.2

6. Finally, it is fitting to point out that in view of the information and documents received by the Commission, one of the most persuasive arguments for an observation “in loco� in Uruguay was precisely in order to clarify the exact status of the Judicial Branch and the efficacy of domestic remedies presented in connection with the protection of human rights. In addition to being one of the rights expressly set forth in the aforementioned articles of the Constitution, the determination of whether domestic remedies have been exhausted is one of the Commission's areas of competence (Article 9 (bis) of its Statute and Article 54 of its Regulations).

Notes___________________

1 American Convention on Human Rights – Article 7.

1. Every person has the right to personal liberty and security.

2. No one shall be deprived of his physical liberty except for the reasons and under the conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto.

3. No one shall be subject to arbitrary arrest or imprisonment.

4. Anyone who is detained shall be informed of the reasons for his detention and shall be promptly notified of the charge or charges against him.

5. Any person detained shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to be released without prejudice to the continuation of the proceedings. His release may be subject to guarantees to assure his appearance for trial.

6. Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful. In States Parties whose laws provide that anyone who believes himself to be threatened with deprivation of his liberty is entitled to recourse to a competent court in order that it may decide on the lawfulness of such threat, this remedy may not be restricted or abolished. The interested party or another person in his behalf is entitled to seek these remedies.

7. No one shall be detained for debt. This principle shall not limit the orders of a competent judicial authority issued for nonfulfillment of duties of support.

Article 25.

1. 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.

2. The States Parties undertake:

a. to ensure that any person claiming such remedy shall have his rights determined by the competent authority provided for by the legal system of the state;

b. to develop the possibilities of judicial remedy; and

c. to ensure that the competent authorities shall enforce such remedies when granted.

2 OEA/Ser.L/V/II.37, doc. 19, corr. 1, June 28, 1976.