31
*
95.
*
Article 25(1) of the American Convention stipulates that:
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.
96.
Article 7(6) of the American Convention determines that:
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.
97.
On the other hand, Article 27 of the Convention stated that:
1.
In time of war, public danger, or other emergency that threatens the
independence or security of a State Party, it may take measures derogating from its
obligations under the present Convention to the extent and for the period of time strictly
required by the exigencies of the situation, provided that such measures are not
inconsistent with its other obligations under international law and do not involve
discrimination on the ground of race, color, sex, language, religion, or social origin.
2.
The foregoing provision does not authorize any suspension of the
following Articles: Article 3 (Right to Juridical Personality), Article 4 (Right to Life),
Article 5 (Right to Humane Treatment), Article 6 (Freedom from Slavery), Article 9
(Freedom from Ex Post Facto Laws), Article 12 (Freedom of Conscience and Religion),
Article 17 (Rights of the Family), Article 18 (Right to a Name), Article 19 (Rights of the
Child), Article 20 (Right to Nationality), and Article 23 (Right to Participate in
Government), or of the judicial guarantees essential for the protection of said rights.
98.
During El Frontón mutiny, Supreme Orders No. 012-86-IN and No. 006-86JUS on June 2 and 19, 1986, respectively, were implemented in Peru, declaring the
extension of the state of emergency in Lima and Callao provinces, and establishing
them a Restricted Military Zone under of the Joint Command of the Armed Forces
control, three penitentiaries, among them El Frontón, while the state of emergency
lasted.
99.
Regarding suspension of guarantees or state of emergency declarations in
time of war, public danger, or other emergency cases, it is important to refer to
Article 27 of the Inter-American Convention. The Court has stated that if suspension
of guarantees has been duly decreed, and that "all action of public powers
surpassing the limits that must be stated in the dispositions stating the state of
exemption is illegal". 45 The limitations imposed to the obligations of the State
respond to “the general requirement that in any state of emergency there be
appropriate means to control the measures taken, so that they are proportionate to
45
Habeas Corpus under Guarantees Suspension, Advisory Opinion OC-8/87 January 30, 1987.
Series A No. 8, para. 38.