86
*
*
*
189. Based on the de iura novit curia principle, the Court will examine the possible
violation of Article 11(2) of the Convention, with regard to violation of the home, to
the detriment of those whose homes were destroyed in El Aro.
190.
Article 11(2) of the American Convention establishes that:
No one may be the object of arbitrary or abusive interference with his private life, his
family, his home, or his correspondence, or of unlawful attacks on his honor or
reputation.
191. The Court observes that neither the Commission nor the representatives
submitted arguments in relation to the alleged violation of Article 11(2) of the
Convention. However, the Court is empowered to examine the possible violation of
articles of the Convention that were not included in the briefs with the application
and the answer to the application, or in the requests and arguments brief of the
representatives, based on the iura novit curia principle. This is solidly supported by
international case law and signifies that the judge has the authority and even the
duty to apply the pertinent legal provisions in a case, even when the parties have not
expressly invoked them, in the understanding that the parties have had the
opportunity to express their respective positions in relation to the relevant facts.188
192. The Court has considered that, in this case, the violation of the right to
property was particularly serious, since the homes of the inhabitants of El Aro were
burnt down (supra para. 182). In view of the foregoing findings and the evolution of
international human rights law on this issue, the Court considers it necessary to
make some additional observations on the inviolability of the home and privacy, from
the perspective of Article 11(2) of the Convention.
193. Article 11(2) of the Convention protects an individual’s private life and home
from arbitrary or abusive interference. It recognizes that there is a personal sphere
that must be protected from interference by outsiders and that personal and family
honor and the home must be protected against such interference.
194. The Court considers that the sphere of privacy is characterized by being
exempt from and immune to abusive and arbitrary invasion or attack by third parties
or the public authorities. In this regard, an individual’s home and private life are
intrinsically connected, because the home is the space in which private life can
evolve freely.
195. In cases concerning similar facts to the instant case, the European Court of
Human Rights has dealt with the issue of private property together with the right to
respect for private and family life and the home, which is guaranteed by Article 8 of
the European Convention on Human Rights.189
188
Cf. Case of the Sawhoyamaxa Indigenous Community, supra note 9, para. 186; Case of the
Pueblo Bello Massacre, supra note 9, para. 54; and Case of García Asto and Ramírez Rojas, supra note 5,
para. 74.
189
Article 8 ECHR (Right to respect for privacy and the family) establishes that: “1. Everyone has
the right to respect for his private and family life, his home and his correspondence. 2. There shall be no
interference by a public authority with the exercise of this right except such as is in accordance with the
law and is necessary in a democratic society in the interests of national security, public safety or the
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