139. In addition, bearing in mind that Article 27(1) establishes different situations and that the
measures adopted in any of these emergencies must be adapted to “the requirements of the
situation,” it is clear that what is permissible in one of them, may not be permissible in others.
Thus, the legality of the measures adopted to deal with each of the special situations referred to in
Article 27(1) will depend on the nature, intensity, complexity, and particular context of the
emergency, as well as on the proportionality and reasonableness of the measures adopted in
234
The Convention only authorizes the suspension of certain rights and freedoms, and
relation to it.
this “to the extent and for the period of time strictly required by the exigencies of the situation.” The
measures adopted should not violate other international obligations of the State Party, and must not
235
The
involve discrimination on the grounds of race, color, sex, language, religion, or social origin.
Court has indicated that the suspension of guarantees must not exceed what is strictly necessary,
and that any action of the public powers that oversteps limits that must be precisely indicated in the
236
In this regard, the limitations imposed
provisions authorized by the state of emergency is illegal.
on the State’s actions respond to the general requirement that, in any state of emergency,
appropriate measures exist to control the provisions enacted in order to ensure that they are
appropriate to the needs of the situation and do not exceed the strict limits imposed by the
237
Convention or derived from it.
140. The decree in force at the time of Ms. J.’s detention reveals that the state of emergency
suspended the rights to inviolability of the home, to movement, to association, to be detained only
following a court order or in flagrante delicto, and to be brought before a judge within no more than
15 days. The Court notes that the Convention does not prohibit suspending the said rights on a
temporary basis while complying with certain safeguards. In this section, the Court will refer only to
the suspension related to personal liberty and the protection of the home, which correspond to
certain aspects of Article 7(2) and 7(5), as well as Article 11 of the Convention relating to the
legality of the detention, the time frame for taking “any person detained” “promptly” “before a
judge or other officer authorized by law to exercise judicial power,” and the protection of the home,
respectively. In this regard, the Court notes that the detention of J. and the searches of her family’s
buildings were carried out due to the presumed perpetration of the crime of terrorism, during the
time and in the geographical sphere of the state of emergency that had been decreed, so that they
were carried out under its provisions.
141. Regarding personal liberty, the Human Rights Committee of the International Covenant on
Civil and Political Rights (hereinafter “the Human Rights Committee”) has recognized that the State
cannot cite the suspension of guarantees “as justification for acting in violation of humanitarian law
or peremptory norms of international law, for instance, […] through arbitrary deprivations of
238
Thus, the Court reiterates that the suspension of guarantees must not exceed the time
liberty.”
that is strictly necessary (supra paras. 124 and 139), and the suspension of certain rights does not
234
Cf. Habeas Corpus in Emergency Situations (Arts. 27(2), 25.1 and 7.6 American Convention on Human Rights),
supra, para. 22, and Case of Zambrano Vélez et al. v. Ecuador, supra, para. 45.
235
Cf. Habeas Corpus in Emergency Situations (Arts. 27(2), 25.1 and 7.6 American Convention on Human Rights),
supra, para. 19, and Case of Zambrano Vélez et al. v. Ecuador, supra, para. 43.
236
Cf. Habeas Corpus in Emergency Situations (Arts. 27(2), 25.1 and 7.6 American Convention on Human Rights), supra,
para. 38; Judicial Guarantees in States of Emergency (Arts. 27(2), 25 and 8 American Convention on Human Rights). Advisory
Opinion OC-9/87 of October 6, 1987. Series A No. 9, para. 36; Case of Cantoral Benavides v. Peru. Merits. Judgment of August
18, 2000. Series C No. 69, para. 72, and Case of the Gómez Paquiyauri Brothers v. Peru. Merits, reparations and costs.
Judgment of July 8, 2004. Series C No. 110, para. 85.
237
Cf. Judicial Guarantees in States of Emergency (Arts. 27(2), 25 and 8 American Convention on Human Rights). supra,
para. 21, and Case of the Gómez Paquiyauri Brothers v. Peru, supra, para. 85.
238
Human Rights Committee, General comment No. 29, States of emergency (Article 4), CCPR/C/21/Rev.1/Add.11,
31 August 2001, para. 11.
45
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