13
Security Law, as recognized by the State (supra para. 17-19), the President of the Republic issued
the Decree-Law No. 8626 on September 3, 1992, which stated:
Whereas
Throughout the national territory and especially in the cities of Quito and Guayaquil, acts of vandalism,
attacks against the physical integrity of the persons and considerable damages to public and private
property continue to occur, which have resulted in a serious state of internal commotion;
It is essential to maintain and protect the legal and democratic system of the Republic, as well as to
safeguard the order and security of ECUADOR’s inhabitants, by adopting the adequate measures; and
In the exercise of its legal powers,
FIRST ARTICLE - The intervention of the Armed Forces throughout the national territory is hereby ordered,
as a mean to safeguard the security of the persons and of the public and private property.
SECOND ARTICLE - The present Decree shall enter into force as of the present date, notwithstanding its
publication in the Official Registry and its implementation which is entrusted to the Minister of National
Defense.
45.
In this regard, the Court reminds that
[s]ince Article 27(1) envisages different situations and since, moreover, the measures that may be taken
in any of these emergencies must be tailored to "the exigencies of the situation," it is clear that what
might be permissible in one type of emergency would not be lawful in another. The lawfulness of the
measures taken to deal with each of the special situations referred to in Article 27(1) will depend,
moreover, upon the character, intensity, pervasiveness, and particular context of the emergency and upon
the corresponding proportionality and reasonableness of the measures27.
46.
Along the same line, the European Court of Human Rights has declared that for a state of
emergency to be justified, there must: a) exist an exceptional situation of crisis or emergency; b)
which affects the whole population, and c) which constitutes a threat to the organized life of the
community28.
47.
It is the obligation of the State to determine the reasons and motives that lead the domestic
authorities to declare a state of emergency and it is up to these authorities to exercise appropriate
and effective control over this situation and to ensure that the suspension decreed is limited “to the
extent and for the period of time strictly required by the exigencies of the situation”, in accordance
with the Convention. States do not enjoy an unlimited discretion; it is up to the Inter-American
system’s organs to exercise this control in a subsidiary and complementary manner, within the
framework of their respective competences. In this case, the Court analyses the conformity of the
State actions within the framework of the obligations enshrined in Article 27 of the Convention, in
conjunction with other provisions of the Convention under dispute.
48.
In the instant case, the state authorities considered that “a serious state of internal
commotion […throughout] the national territory and especially in the cities of Quito and Guayaquil”
existed, as a consequence of “acts of vandalism, attacks against the physical integrity of the
persons and considerable damages to public and private property”, which required the adoption of
exceptional measures. However, analyzing the aforementioned Decree-Law No. 86, the Court
Cf. Decree-Law N° 86 of September 3rd, 1992, published that same day in the “Official Register” and signed by the
President of the Republic, Sixto Durán Ballén, and by the Minister of National Defence, José Gallardo Román (annexes to the
brief on pleadings and motions, Annex 45, folio 916).
26
Cf. Habeas corpus in Emergency Situations (Arts. 27(2), 25(1) and 7(6) American Convention on Human Rights),
supra note 25, para. 22.
27
28
Cf. ECHR, Lawless v. Ireland (no. 3), judgment of 1 July 1961, Series A no. 3, p. 14, para. 28.