10
military intervention, nor any substantive limits to the suspension of guarantees, nor
were the other States Parties to the Convention notified through the Secretary
General of the Organization of American States (hereinafter “OAS”) about the
provisions in the Convention the application of which it had suspended.9
36.
That in the Judgment it was also pointed out that adapting domestic law to
the provisions in the Convention, pursuant to Article 2 thereof, implies inter alia to
repeal the rules and practices of any kind entailing violations of the guarantees
provided in the Convention or disregarding the rights enshrined therein or hindering
the exercise of such rights.10
37.
That in the second paragraph of Article 164 of the new Constitution of the
State of Ecuador the principles of need, proportionality, freedom from expost facto
laws, limitation in time and space, and reasonableness are incorporated to rule the
states of exception, providing, among the requirements the decree establishing them
must meet, that both their duration and the territory where they are to be enforced
be determined.
Such constitutional wording also includes a maximum effective period for such
decree set at 60 days, with the possibility to extend it only for 30 days and a system
whereby it lapses immediately whenever the President would not endorse the decree
or fail to notify it to the National Assembly, to the Constitutional Court and to the
international organizations.
This latter system is complemented with a mandate for the President of the
Republic, once the cause providing the grounds for the state of exception has
disappeared, to decree its termination.
38.
That the foregoing adaptations of the legal system in Ecuador, in the view of
the Court, set limits in time and (geographical) space for the action by government
bodies to what is strictly necessary to address the extraordinary circumstance that
would have provided the grounds to issue the declaration, affording the possibility of
effectively rendering it legitimate and preventing it from becoming permanent in
time, all of which embodies the spirit in paragraph 52 of the Judgment, that is to say
that its duration must be limited “to the extent and for the period of time strictly
required by the exigencies of the situation.”
39.
That the provisions in the abovementioned rule, as regards the condition that
once 90 days as from the declaration of the state of emergency have passed there is
no possibility whatsoever of extending the effective period thereof and it is to lapse
automatically, make up an efficient mechanism to avoid the suspension of
guarantees to be systematically and indefinitely extended, for it even cuts it short
regardless of whether the abnormal situation has been solved or not, as well as
setting a space limit spelled out in the power granted the Executive to declare it in all
or in part of the national territory, something tending to prevent an excessive use of
this remedy.
40.
That in the Judgment the Court held that the executive order whereby the
state of emergency was declared at the time of the events “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. Neither did the Ley de Seguridad Nacional [National Security Law]
establish such limits.”11
9
Cf. Case of Zambrano-Vélez et al. v. Ecuador; supra note 6, paras. 48 and 69.
10
Cf. Case of Zambrano-Vélez et al. v. Ecuador; supra note 6, paras. 57 and 58.
11
Case of Zambrano-Vélez et al. v. Ecuador, supra note 6, para. 48.