purpose of the judiciary is to protect legality and the rule of law during a state
of emergency.
--OEA/Ser.L/V/II.106, Doc. 59 rev., June 2, 2000 (paras. 71-73), citing I/A
Court H.R., Advisory Opinion OC-8/87, Habeas Corpus in Emergency
Situations, January 30, 1987.
*****
The Inter-American Commission and Court have consistently indicated that,
not only may no one be deprived of liberty except in the cases or
circumstances expressly provided by law, but further, any deprivation of
liberty must strictly adhere to the procedures defined thereunder…. The
failure to comply with such procedures creates the possibility, and eventually
the probability of abuse of the rights of detainees. Where detention is not
ordered or properly supervised by a competent judicial authority, where the
detainee may not fully understand the reason for the detention or have access
to legal counsel, and where the detainee’s family may not be able to locate him
or her promptly, there is clear risk, not just to the legal rights of the detainee,
but also to his or her personal integrity.
--OEA/Ser.L/V/II.111 doc. 21 rev., 6 April 2001, Chapter VII (para. 37).
*****
In the instant case, the detention occurred amid a terrible disruption of public
law and order that escalated in 1992 and 1993 with acts of terrorism that left
many victims in their wake. In response to these events, the State adopted
emergency measures, one of which was to allow those suspected of treason to
be detained without a lawful court order. As for [the State party’s] allegation
that the state of emergency that was declared involved a suspension of Article
7 of the Convention, the Court has repeatedly held that the suspension of
guarantees must not exceed the limits strictly required and that “any action on
the part of the public authorities that goes beyond those limits, which must be
specified with precision in the decree promulgating the state of emergency,
would … be unlawful.” The limits imposed upon the actions of a State come
from “the general requirement that in any state of emergency there be
appropriate means to control the measures taken, so that they are proportionate
to the needs and do not exceed the strict limits imposed by the Convention or
derived from it.
[…]
Applying the laws in force to this specific case, the … Court finds that the
period of approximately 36 days that elapsed between the time of detention
and the date on which the alleged victims were brought before a judicial
authority is excessive and contrary to the provisions of the Convention.
46
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