53.
The Commission pointed out that Ms. Habbal had acquired Argentine nationality on
April 3, 1992, and Resolution 1088 subsequently ordered her expulsion while she still enjoyed
that status, since her nationality was only revoked some time later. The Commission noted
that, by virtue of Article 22(5) of the American Convention, the National Population and
Immigration Department had undoubtedly issued an order incompatible with a citizen’s right
to freedom of movement within their own country, which is contrary to the Convention. It also
maintained that Resolution 1088 was issued in violation of various guarantees of due process.
Those violations were in relation to the rights contained in Articles 22(5), 8(1) and 8(2)(b),
(c), (d) and (h) of the American Convention. With regard to the girls Monnawar, Hifaa and
Natasha Al Kassar, the Commission held that, since their Argentine nationality had not been
proven, they should be regarded as migrants in Argentine territory. It argued that the
guarantees enshrined in Article 22(6) of the Convention should be applied. Moreover, it
observed that Resolution 1088 had been issued without complying with the minimum
guarantees that should be provided in such proceedings under the terms of the Convention.
Consequently, it concluded that Articles 22(6), 8(1) and 8(2)(b), (c) and (d) of the Convention
had been violated, to the detriment of Ms. Habbal’s daughters.
54.
The Commission further maintained that, as a general rule, child migrants, whether
accompanied by their families or not, should not be detained. It argued that the National
Population and Immigration Department had not stated the grounds for the arrest warrant
issued against Ms. Habbal and her daughters. It concluded that the only reason for issuing
the arrest warrant was because of their status as irregular migrants. The Commission also
pointed out that, in the case of Ms. Habbal, the arrest warrant had no basis in law, since she
was an Argentine citizen. Regarding her son and daughters, it held that the order was issued
without respect for the principle of non-detention of children for immigration-related reasons,
with the State failing to explain the existence of exceptional, legally established circumstances
that would justify pre-trial detention. Therefore, it concluded that issuing an arrest warrant
constituted a violation of Article 7 of the Convention. The Commission likewise concluded that
the National Population and Immigration Department was indifferent to the status of Ms.
Habbal’s son and daughters as children, failing to apply the principle of the best interests of
the child, or state the grounds for the decision, which violated their rights under Articles 19
and 8(1) of the American Convention.
55.
The representatives agreed with the legal grounds set forth by the Commission in
the Merits Report. They also alleged that the issuing of Resolution 1088 was a punitive
administrative action, the only reason for which was an alleged offence committed by a person
other than those affected, whose effect was similar to that of a punishment, since it seriously
affected the fundamental rights of the alleged victims. Therefore, they argued that the
authorities should have taken the utmost care to ensure that the measures were adopted with
strict respect for the basic rights of individuals and after verifying the effective existence of
unlawful conduct, but failed to do so. They concluded that Resolution 1088 did not comply
with the duty under the Convention to explicitly state the grounds for such decisions,
according to the criteria of the inter-American system. The representatives expressly referred
to the “very serious failure to state the reasons,” which made Resolution 1088 a violation of
the American Convention.
56.
Moreover, the representatives claimed that the authorities had violated Article 8, read
in conjunction with Article 19 of the Convention, in issuing Resolution 1088/92 against Ms.
Habbal’s son and daughters, who were minors at the time of the events. In particular, they
alleged that the State had acted contrary to the American Convention with respect to Ms.
Habbal’s three daughters by revoking their residence and ordering their expulsion without
18