Article 3, as the Court has observed on many occasions, enshrines one of the
fundamental values of democratic society. Even in the most difficult of
circumstances, such as the fight against organised terrorism and crime, the
Convention prohibits in absolute terms torture or inhuman or degrading
treatment or punishment. Unlike most of the substantive clauses of the
Convention…, Article 3 makes no provision for exceptions and no derogation
from it is permissible under Article 15 even in the event of a public emergency
threatening the life of the nation.
--Aksoy v. Turkey, ECHR, 18 December 1996 (para. 62).
Inter-American System
Non-derogable rights
It is clear that no right guaranteed in the [American Convention on Human
Rights] may be suspended unless very strict conditions -- those laid down in
Article 27(1) -- are met. Moreover, even when these conditions are satisfied,
Article 27(2) provides that certain categories of rights may not be suspended
under any circumstances. Hence, rather than adopting a philosophy that favors
the suspension of rights, the Convention establishes the contrary principle,
namely, that all rights are to be guaranteed and enforced unless very special
circumstances justify the suspension of some, and that some rights may never
be suspended, however serious the emergency.
--I/A Court H.R., Advisory Opinion OC-8/87, Habeas Corpus in Emergency
Situations, January 30, 1987 (para. 21).
*****
Specific requirements
The requirements for declaring a state of emergency are as follows:
•
•
Need: Pursuant to Article 27 of the Convention, in order to consider that
there is a real emergency, there must be an extremely grave situation,
such as war, public danger, or other emergency that threatens the
independence or security of the State party. The Commission has
established that measures related to a state of emergency "can only find
a justification in the face of real threats to public order or state security."
Time: This requirement refers to the duration of the suspension, which,
as established in Article 27(1) of the Convention, should be only for the
time strictly limited to the exigencies of the situation. The Commission
has warned that it is even more serious to decree states of emergency for
indefinite or prolonged periods, especially when they allow broad
powers to be concentrated in the head of state, including the judicial
24
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