65
117. Freedom of movement and residence, including the right to leave the
country, may be restricted, in accordance with the provisions of Articles 22(3) and
30 of the Convention. However, these restrictions must be expressly established by
law, and be designed to prevent criminal offenses or to protect national security,
public order or safety, public health or morals, or the rights and freedoms of others,
to the extent necessary in a democratic society.
118. When referring to the nature of the restriction to leave the country imposed
on Mr. Canese, the State indicated in its brief answering the application, and with
comments on the brief with requests and arguments, and in its final written
arguments, that the measure adopted by the Paraguayan courts had been ordered
“as a precautionary measure” following the sentence delivered by the court of first
instance. It also stated that this restriction sought “to ensure that the wrongdoer
remained subject to the proceeding” (supra para. 112(a)).
119. Despite the State’s arguments, the Court has verified that, in this case, there
is considerable uncertainty about the nature of this restriction, given that, in the
copy of the case file of the criminal proceedings filed against the alleged victim,
which was provided by Paraguay, there is no decision, nor order issued by the judge
in the case establishing the prohibition for Mr. Canese to leave the country as a
precautionary measure – a restriction which, in practice, was applied during
approximately eight years and four months. Furthermore, when deciding on the
restriction imposed on Mr. Canese, the Criminal Chamber of the Supreme Court of
Justice of Paraguay stated on August 22, 2002, that, in view of the fact that the
“final executable judgment [did] not include any prohibition” to leave the country, it
concluded that this prohibition “was issued as a precautionary measure in the said
proceedings” (supra para. 69(67)).
120. As has been proved, on April 29, 1994, approximately one month after the
delivery of the judgment of first instance, the State restricted Mr. Canese’s right to
freedom of movement for the first time, by denying his request for authorization to
leave the country filed before the First Criminal Trial Court in order to attend the “IX
Encontro Nacional do Partido dos Trabalhadores” and the launching of the
presidential candidacy of Luíz Inácio Lula da Silva in Brazil (supra para. 69(52) and
69(53)). Mr. Canese offered personal and material surety and indicated the reasons
why he should be considered domiciled in Paraguay. The said court considered that
the reasons he alleged “[were] insufficient” and that, since Mr. Canese was pending
compliance with his sentence, he must remain subject to the jurisdiction of the judge
of the case.
121. Subsequent to the said decision denying him permission to leave the country,
Mr. Canese filed requests for authorization to leave the country each time he needed
to travel abroad before the judge in the case, and also petitions for habeas corpus
before the Supreme Court of Justice of Paraguay; these were sometimes granted and
sometimes rejected. The restriction to leave the country meant that Mr. Canese had
to request judicial permission each time he wished to leave the country and comply
with the corresponding decision of the judge of the case or of the Supreme Court of
Justice of Paraguay.
122. This situation continued until the Criminal Chamber of the Supreme Court of
Justice of Paraguay decided, on August 22, 2002, that “it was in order to rectify the
circumstances in favor of a general habeas corpus” and that Mr. Canese did not need
to request authorization to leave the country again, because “the final executable
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