ordered the preventive detention of the alleged victims, offered no individualized justification
or assessment of the necessity and proportionality of the preventive detention measure, as
required under Article 7 of the Convention. Likewise, this Court recalls that, by virtue of the
best interests of the child, deprivation of liberty for exclusively immigration-related reasons
exceeds the requirement of necessity, since it is not absolutely essential to ensure the
purposes of the immigration proceedings.
79.
However, the Court recalls that the State argued, as a preliminary objection, that the
actions of the immigration authorities neither had, nor are presently having, effects on the
rights of the alleged victims, and, therefore, that no case or dispute exists that requires the
intervention of the Court. In particular, the State contended that, since it is not possible to
identify any specific harm done by the acts, events or rules as claimed by the Commission
and the representatives, the case is conjectural. The State also argued that, as the
Commission’s recommendations were implemented effectively, a ruling by the Court on the
case is not justified. After considering this argument, the Court found that determining
whether the rights of the alleged victims had been affected was a question related to the
merits of the dispute, as was the matter of establishing whether the possible violations had
ceased and reparation had been made by the State’s subsequent actions (supra, para. 25).
For this reason, the Court will now proceed to analyze both questions.
80.
Firstly, the Court notes that, for the reasons indicated above (supra, paras. 58 to 78),
the content of Resolution 1088, and the procedure followed for its adoption, constituted a
breach of the obligations of the State contained in Articles 22(5), 22(6), 22(7), 8(1), 8(2)(b),
(c), (d) and (h), and 19 of the American Convention, read in conjunction with Article 1(1)
thereof. This Court notes that the failure to discharge those obligations stems from the
issuance of Resolution 1088, and the procedure followed for its adoption, which constituted
unlawful international acts, because the Resolution’s content ran contrary to the State’s
obligations under the American Convention. Therefore, the State’s non-compliance with its
obligations stemmed from the very existence of its decision and the procedure followed for
its adoption. Viewed in that light, the case is neither conjectural nor hypothetical, since the
State failed to comply with its international obligations, which have been analyzed by this
Court.
81.
However, this Court finds that, in point of fact, there is no evidence to prove that
Resolution 1088, although it was in force from 1992 to 2020, interfered in any way with the
possibility of the alleged victims remaining in, or entering, Argentina, or otherwise impeded
the exercise of their personal freedom. The Court notes that Ms. Habbal entered Argentina on
at least four occasions after Resolution 1088 was issued, between 1994 and 1996 (supra para.
41), and there is no indication that her right to freedom of movement or personal freedom
was restricted by the immigration authorities or any other authority. On this point, the Court
deems it pertinent to recall that the alleged victims’ failure to take part in the proceedings
made it impossible to ascertain whether, beyond those aspects that emerge from the evidence
provided in the proceedings, Ms. Habbal and her son and daughters have suffered concrete
harm due to the authorities’ expulsion and preventive detention order.
82.
A second point raised by the State is that, as Resolution 1088 was revoked, the Court
is bound to conclude that the State is not internationally responsible for violating the American
Convention, because it complied with the Commission’s recommendations. The Court recalls
that in the inter-American system there is a joint dynamic and complementary control of the
State’s treaty-based obligations to respect and to ensure human rights between the domestic
authorities (who have the primary obligation) and the international instances
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