14
observes that the said decree did not set a defined territorial limit. On the contrary, it provided for
“the intervention of the Armed Forces throughout the national territory […] as a means to
safeguard the security of the persons and of the public and private property” (supra para. 44). In
such terms, the Decree-Law neither fixed a time limit for the military intervention, which would
allow knowing its duration; nor did it lay down the rights which would be suspended, that is, the
material scope of the suspension. The National Security Law neither established those limits. With
regard to the aforementioned, the United Nations Human Rights Committee has held that a state of
emergency must meet the requirements of “duration, geographical coverage and material scope”29.
49.
In this regard, the State alleged that the “decree-law [establishing the state of] emergency
has been issued in a context of national [and] continental violence”, “a context of alarming
insecurity, increasing violence and citizen panic”, and that such decree-law “is justified since at
that time in Ecuador, the subversive group “Puca Inti” or “Sol Rojo” was beginning to establish
itself in the national territory”. The State declared that “the concept of national security, defined in
Article 2 of the [National Security] Law, does not only imply the preservation of domestic order,
but also the preservation of collective values related to the survival of the Nation[; the] fact that
Ecuador is presently a country with a small number of subversive elements is due to the prompt
intervention of government forces in specific moments of the history with the ultimate objective of
defending social peace”.
50.
With regard to the decree-law establishing the state of emergency, the Commission alleged
that “the state of emergency or suspension of guarantees was declared […] in Ecuador at least
seven times from mid-1992 to mid-1996”. Quoting from its 1999 Annual Report, the Commission
considered, regarding Ecuador, that “fight[ing against] crime […] by [means of] the suspension of
guarantees [under the declaration of] the state of emergency does not comply with the American
Convention’s guidelines as to when such declarations are admissible [and that the] State has —
and is required to have — other mechanisms for channeling social unrest and fighting crime that do
not involve suspending the population’s fundamental guarantees”30. In turn, the State “reject[ed]
the representative’s opinion [to the effect that] issuing decree-laws establishing a state of
emergency and the suspension of constitutional guarantees in an indiscriminate manner and as
systematic mechanisms to fight against common crime constitutes a modus operandi of the
Ecuadorian government”.
51.
The Court points out that in certain states of emergency or in situations of disturbance of
law and order, States use the Armed Forces to control the situation. In that respect, the Court
deems absolutely necessary to emphasize the extreme care which States must observe when they
decide to use their Armed Forces as a mean for controlling social protests, domestic disturbances,
internal violence, public emergencies and common crime. As stated by the Court, “States must
restrict to the maximum extent the use of armed forces to control domestic disturbances, since
they are trained to fight against enemies and not to protect and control civilians, a task that is
typical of police forces”31. The strict fulfillment of the duty to prevent and protect the endangered
rights must be assumed by the domestic authorities in observance of a clear demarcation between
military and police duties. In this sense, some progress can be noted, such as the “Declaration of
Minimum Humanitarian Standards” applicable in situations of state of emergencies (“Turku
Cf. United Nations Human Rights Committee, General Comment No. 29, adopted at the 1950th meeting, on 24 July
2001, CCPR/C/21/Rev.1/Add.11, August 31, 2001, para. 4.
29
Cf. 1998 Annual Report of the Inter-American Commission on Human Rights, OEA/Ser.L/V/II.102, Doc. 6 rev. 1,
April 16, 1999, Chapter V, Ecuador, para. 44.
30
Cf. Case of Montero-Aranguren et al. (Detention Center of Catia). Judgment of July 5, 2006. Series C No. 150,
para. 78.
31