Amicus Curiae de "The International Human Rights Law Group".


 

 

IN THE
INTER AMERICAN COURT
OF HUMAN RIGHTS

IN RE: REQUEST FOR AN ADVISORY OPINION
PRESENTED BY THE GOVERNMENT OF URUGUAY
AND THE INTER AMERICAN COMMISSION ON HUMAN RIGHTS

BRIEF OF
THE INTERNATIONAL HUMAN RIGHTS LAW GROUP,
AS AMICUS CURIAE



W. BRONSON HOWELL, ESQ.
490 L'Enfant Plaza East
Suite 3206
Washington, DC 20024

Of Counsel:
Professor Claudio Grossman
American University
Washington College of Law

LARRY GARBER, ESQ.
Acting Executive Director
International Human Rights Law Group
733 15th Street, NW
Suite 1000
Washington, DC 20005
(202) 639-8016
Attorneys for Amicus Curiae


January 23, 1987

TABLE OF CONTENTS

 

TABLE OF AUTHORITIES

I. INTEREST OF AMICUS CURIAE

II. QUESTION PRESENTED

III. ARGUMENT: ARTICLE 27 OF THE AMERICAN CONVENTION ON HUMAN RIGHTS ASSURES THE NON-DEROGABILITY OF MINIMUM JUDICIAL GUARANTEES NECESSARY TO PROTECT NON-DEROGABLE RIGHTS

 

A. THE MEANING AND PURPOSE OF THE "ESSENTIAL JUDICIAL GUARANTEES" CLAUSE CLEARLY INDICATE THAT HABEAS CORPUS/AMPARO AND CERTAIN DUE PROCESS RIGHTS CANNOT BE SUSPENDED IN A STATE OF EMERGENCY

B. THE TRAVAUX PREPARATOIRES ARE CONSISTENT WITH THE APPLICABILITY OF HABEAS CORPUS/AMPARO AND CERTAIN DUE PROCESS RIGHTS IN A STATE OF EMERGENCY

IV. CONCLUSION

TABLE OF AUTHORITIES

Opinions of International Courts:

In the Matter of Viviana Gallardo. No. 6101/81, Slip. op. (Inter-Am.C. Hum. Rts.), Nov. 13, 1981

International Agreements:

American Convention on Human Rights, O.A.T.S. No.1, at 1, O.A.S.O.R., OEA/Ser. IL/XVI/1.1, doc. 65, rev.1 Corr. 2 (1970)

Other International Instruments:

Inter American Commission on Human Rights, Ten Years of Activities, 1971 - 1981 (1982)

Report on the Situation of Human Rights in Argentina (OEA Ser. L/V/11.49/doc. 19, Corr. 1, 9 April 1980)

Report on the Situation of Human Rights in the Republic of Bolivia (OEA Ser. L/V/11.53 doc. 6, 1 July 1981)

Report on the Situation of Human Rights in the Republic of Nicaragua (OEA Ser. L/V/11.53 doc. 25, 30 June 1981)

Report on the Situation of Human Rights in the Republic of Paraguay (OEA Ser. L/V/11.43 doc. 13, Corr. 1, 31 January 1978)

Second Report on the Situation of Human Rights in Chile (OEA Ser. L/V/11.37, doc. 19, Corr. 1, 28 June 1976)

Third Report on the Situation of Human Rights in Chile (OEA Ser. L/V/11.40, doc. 20, 11 February 1977)

Seventh Report on the Situation of Human Rights in Cuba (OEA Ser. L/V/11.61, doc. 29, rev. 1, 4 October 1983)

Books and Journals:

NUNCA MAS: The Report of the Argentine National Commission on the Disappeared (1984)

T. Buergenthal, Human Rights: The Inter American System

C. Grossman, A Framework for the Examination of States of Emergency Under the American Convention on human Rights, 1 American University Journal of International Law and Policy 35 (1986)

International Commission of Jurists, States of Emergency: Their Impact on Human Rights (1983)

 

I. INTEREST OF AMICUS CURIAE

The International Human Rights Law Group (Law Group) is a non profit legal organization which seeks to promote the observance of international human rights norms. Founded by the Procedural Aspects of International Law Institute, a non governmental organization of international lawyers and scholars which has consultative status with the United Nations (ECOSOC), the Law Group provides legal assistance and information in the field of international human rights law. With the assistance of attorneys who contribute their services to the Law Group, this expertise in international law and human rights is offered on a pro bono basis to individuals and groups concerned with respect for human rights.

The Law Group has filed numerous submissions with international and regional intergovernmental bodies concerned with the protection of human rights. These submissions invoke international norms of human rights and fundamental freedoms, without regard to the particular political, economic or geographic context in which violations may take place.

The Law Group believes that Article 27 of the American Convention on Human Rights requires that habeas corpus and certain due process rights be available at all times, especially in a state of emergency. Among the due process rights which must be available in cases where an individual's liberty is at stake are the right to appear before an independent and impartial judicial body, the right to assistance of counsel and the right to continuing judicial review of administrative detentions. For this reason, the Law Group urges the Court in its advisory opinion to adopt the views set forth in this Brief.

 

II. QUESTION PRESENTED

The Government of Uruguay seeks an advisory opinion regarding an interpretation of Article 27(2) of the American Convention on Human Rights. Article 27(2) provides:

 

The foregoing provision does not authorize any suspension of the following articles: article 3 (Right to Juridical Personality), Article 4 (Right to Life), Article 5 (Right to Humane Treatment), Article 6 (Freedom from Slavery), Article 9 (Freedom from Ex Post Facto Laws), Article 12 (Freedom of conscience and Religion), Article 17 (Rights of the Family), Article 18 (Right to a Name), Article 19 (Rights of the Child), Article 20 (Right to Nationality), and Article 23 (Right to Participate in Government), or of the judicial guarantees essential for the protection of such rights.

The Government of Uruguay requests an interpretation of the prohibition, contained in the Convention, of the suspension of "the judicial guarantees essential for the protection of such rights".

The Inter-American Commission on Human Rights asks:

 

Is the writ of habeas corpus, the legal basis of which is found in Articles 7(6) and 25(1) of the American Convention on Human Rights, one of the judicial guarantees that, pursuant to the last clause of Article 27 (2) of the Convention, cannot be suspended by a State Party to the American Convention?

Because these two requests cover essentially the same issue, the Law Group is submitting a single brief concerning both the Uruguayan Government's and the Commission's requests. Further, the Law Group's brief is limited to a discussion of how the term "essential judicial guarantees" should be interpreted by this court.

 

III. ARGUMENT: ARTICLE 27 OF THE AMERICAN CONVENTION ON HUMAN RIGHTS ASSURES

THE NON DEROGABILITY OF MINIMUM JUDICIAL GUARANTEES NECESSARY TO PROTECT NON DEROGABLE RIGHTS

 

A. THE MEANING AND PURPOSE OF THE "ESSENTIAL JUDICIAL GUARANTEES" CLAUSE CLEARLY INDICATE THAT HABEAS CORPUS/AMPARO AND CERTAIN DUE PROCESS RIGHTS CANNOT BE SUSPENDED IN A STATE OF EMERGENCY

States of emergency, which, by definition, grant extraordinary powers to the Executive Branch, including the power to suspend fundamental liberties, have very grave implications with respect to the protection of human rights . Even in countries where such powers are not being utilized as pretext to subvert the democratic process, serious human rights abuses may occur ; where an anti-democratic motivation is present, the state of siege may in effect serve to allow gross human rights violations, without regard to the concept of "non-derogable rights", e.g., the rights to life, to be free from torture or ill-treatment, etc., enshrined in Article 27, and its counterparts in other human rights conventions .

Article 27 of the Convention renders non-derogable "the judicial guarantees essential for the protection of "the other non-derogable rights enumerated therein; thus, this provision precludes the absolute denial of access to the courts for the purpose of seeking redress for actual or anticipated violations of non-derogable rights.

At the outset, it is necessary to state that the "essential judicial guarantees" clause, in requiring judicial review to protect non-derogable rights (a point which will be discussed infra), presupposes an independent and impartial judiciary. Although Article 8 1, which requires that tribunals hearing criminal cases or cases involving the determination of individual rights or obligations be "competent, independent[,] ... impartial ... [and] previously established by law", is not expressly included in the enumeration of non-derogable rights in Article 27, the "essential judicial guarantees" clause would be ineffectual in providing protection from violations of non-derogable rights if the courts hearing challenges to such violations lacked impartiality or independence. Indeed, the Inter American Commission on Human Rights (hereinafter referred to as the "Commission") has noted:

It is the doctrine of the Commission that the effective observance of the guarantees set forth in the above cited articles is based on the independence of the Judiciary, which derives from the classic separation of the three branches of government. This is the logical consequence of the very concept of human rights. In effect, to protect the rights of individuals against possible arbitrary actions of the State, it is essential that one of the branches have the independence that permits it to judge both the actions of the Executive Branch and the constitutionality of the laws enacted and even the judgments handed down by its own members. Therefore, the Commission considers that the independence of the Judiciary is an essential requisite for the practical observance of human rights

The question presented is thus to what extent the rights to seek habeas corpus/amparo, provided by article 7(b) (Right to Personal Liberty), and Article 25 (Right to Judicial Protection), and the due process rights of Article 8, remain in force subsequent to a valid declaration of a state of emergency and concomitant suspension of constitutional guarantees in accordance with Article 27.

The plain meaning of the "essential judicial guarantees" clause can support no interpretation other than that habeas corpus/amparo are substantially unimpaired by an Article 27 state of emergency. Given the grim realities of state practice under states of emergency, access to the courts is essential to protect non-derogable rights; thus, notwithstanding due regard for the exercise of discretion by the authorities of a state to protect a state's independence and security, Article 27 does not countenance that such discretionary power be unlimited or lodged exclusively within the Executive Branch.

In this context, it is useful to recall the literal meaning of habeas corpus - 1.e. "You have the body". In its most literal and basic sense, this "Great Writ" requires the authorities to produce the individual on whose behalf the writ is sought before a judge. The Commission has repeatedly acknowledged the significance of this literal aspect of habeas corpus, pointing out that:

 

he (the judge) should be able, on the other hand, to require that the body of the detainee be brought into his presence (habeas corpus), which would enable him to ascertain whether he is alive, whether he is physically whole, whether he shows signs of mistreatment or torture; it would permit him to know where he is and whether he has someone to give him legal advice;he would be able to decide whether the order for his detention had come from a competent authority and whether it fulfills the indispensable formal requirements; he would be able to find out whether the detainee is in an adequate place, or whether he is mixed with common criminals in an ordinary jail, etc. This is the enormous, the transcendental significance of the recourse to habeas corpus in these exceptional cases .

Producing the detainee in court is thus essential to protect several non-derogable rights, i.e. Article 4 (Right to Life), Article 5 (Right to Humane Treatment), as well as to ensure that administrative detention is in accordance with the requirements of municipal and international law.

It is important to note that, pursuant to Article 7 (6), a petition for a writ of habeas corpus/amparo can be filed on behalf of a detainee by another person. This may limit the duration of incommunicado detention, a practice condemned by the Commission and non governmental organizations because of its role as facilitator of torture and ill-treatment . As the Commission pointed out in the passage quoted supra, a necessary corollary to this right to seek habeas corpus is the right to access to legal counsel within a reasonable time period. This right can be protected only if the judge before whom the detainee is produced has jurisdiction to ascertain whether the detainee enjoys such access.

Turning to the question of the extent to which the judge hearing a petition for a writ of habeas corpus in a case involving an individual administratively detained pursuant to a state of emergency can review the merits of the detention, Amicus submits that Article 27 requires, at a minimum, limited judicial review of the merits of the detention in question. Unlimited Executive discretion could result, for example, in detention on the ground of disfavored religious affiliation or of endeavors to participate in the political process, notwithstanding the non-derogability of Article 12 (Freedom of Conscience and Religion) and Article 23 (Right to Participate in Government). another example would be detention on discriminatory grounds, i.e. race, color, sex, language, religion, or social origin, a violation of Article 27 (1) .

The aforementioned internment of Japanese-Americans in World War II attests that this is not a hypothetical example. A derogable right (personal liberty) can not be derogated on a non-derogable ground (racial discrimination); judicial review is essential to provide redress for the victims of such unlawful derogations.

Denying access to courts under such circumstances is inconsistent with the language and purpose of the "essential judicial guarantees" clause. State practice with respect to non-derogable guarantees during states of emergency evidence the need for an interpretation of Article 27 which provides for, at all times, review by an independent judicial organ .

While recognizing the difference between non-derogable and derogable rights, Amicus also wishes to emphasize that a valid declaration of emergency does not under international human rights law entitle the state to suspend all derogable guarantees; measures involving derogation must be, in accordance with Article 27, "strictly required by the exigencies of the situation" both as to extent and duration . The latter is particularly critical, considering the problem of lengthy detentions without trial. such "sine die detention", a practice strongly condemned by the Commission , is, of course, punishment without due process of law and constitutes a violation of Article 5(3). Accordingly, mechanisms for reviewing on a continuing basis cases involving detentions without trial are required by the doctrine of the Commission. Thus, to effectuate Article 27, a court must have the power to rule on the merits of a detention with respect to compliance with municipal and international law in all cases; although the Executive enjoys substantial discretion in deciding whether an individual should be detained on grounds of national security, this discretion is not absolute, and if the detention is manifestly unreasonable, the appropriate court should order the release of the individual so held.

The Commission, which, in earlier reports, appeared to be of the opinion that the courts could not examine the merits of administrative detention orders , now agrees with the position argued above. In its request for an advisory opinion, the Commission indicated that:

Even with respect to personal liberty, which may be temporarily suspended in special circumstances, the writ of habeas corpus permits the judge to determine whether the order of arrest is based on a reasonable standard, a determination which is now required by the jurisprudence of the national courts of hundreds of countries which have found themselves under a state of siege. To allege the contrary would be to hold that the executive branch is not obligated to give reasons for a detention or may prolong a detention indefinitely during emergency situations, without submitting the detained person to the authority of a judge who can rule on the recourses recognized in Articles 7(6) and 25 (1) of the Convention. In the opinion of the Commission, this would be the equivalent of attributing to the executive branch the specific functions of the judicial branch and would be contrary to the principle of separation of powers: one of the basic characteristics of the rule of law in a democratic society

Of course, such judicial review of the legality of detention, as noted above, must be on a continuing basic to help ensure that such detention does not become indefinite.

The right of access to legal counsel is necessarily an "essential judicial guarantee"; denial thereof "stands in the way of the free exercise of the legal rights and guarantees of the persons detained" . Legal representation is essential to enable individuals suffering from violations of non-derogable rights to take advantage of the remedies provided by municipal and international law. With respect to detainees, such access must occur within a reasonable time subsequent to the commencement of detention.

A closely intertwined due process right which should also be deemed a non-derogable "essential judicial guarantee" is the right to provision of sufficient time to prepare a defense. The Commission has concluded that allowing defense counsel in a criminal case only 24 hours to study the case and to prepare the defense made exercise of the right to defense "virtually impossible" and violated the Convention . This right applies to both criminal cases and administrative detention proceedings.

The right to appeal to a higher court is essential to ensure that the lower courts of first resort act in accordance with law and in an independent and impartial manner, as their impartiality and independence may be more vulnerable than that of the highest courts. Threats to the independence and/or impartiality of the lower courts may render them useless with respect to their crucial role in protecting human rights, including the safeguarding of non-derogable rights in a national emergency. In the latter context, and individual judge may be disinclined to rule against the government when the independence or security of the state is threatened; the higher courts, with their greater prestige and authority, may be more willing to defy the government and public opinion in order to protect human rights. (A different situation may arise where a case is being heard by a higher court sitting as a court of first resort).

Although it is not the contention of this brief that Article 8, Right to a Fair Trial, is in its entirety non-derogable, the non-derogable right to life, Article 4, would be severely weakened if the due process rights of Article 8 were deemed inapplicable in capital cases arising under a state of emergency. The Commission has condemned the use of "state terrorism to combat subversive terrorism" and has noted that governments can never employ summary executions . Execution of a sentence of death imposed by a competent tribunal in a proceeding which violated the "minimum guarantees" of Article 8 is little better than the summary executions condemned by the Commission; such a tribunal is acting a an accomplice to "state terrorism". The uniqueness and awesomeness of capital punishment is recognized by the stringent limitations placed thereon by article 4, manifesting an antipathy to this anachronistic practice. Thus, capital punishment cases require the applicability of all rights guaranteed by article 8, even during a state of emergency.

This Court has held that the human rights provisions of the Convention "must be interpreted in favor of the individual" Government of Costa Rica (In the Matter of Viviana Gallardo et al), Decision of November 13, 1981, para. 16. The arguments made supra are fully consistent with this rule of liberal interpretation, a general principle of international human rights law .

B. THE TRAVAUX PREPARATOIRES ARE CONSISTENT WITH THE APPLICABILITY OF HABEAS CORPUS/AMPARO AND CERTAIN DUE PROCESS RIGHTS IN A STATE OF SIEGE

The interpretation presented by Amicus is fully consistent with the legislative history of Article 27. The Commission's original draft of the Convention included protection against arbitrary arrest and right to due process in the enumeration of non-derogable rights. However, in the First Committee, they were deleted from the list of non-derogable rights. A proposal by the United States to add Articles 7 and 8 to this list was rejected . At the Second Plenary Session, the U.S. successfully proposed the "essential judicial guarantees" clause as it now stands . This clause is thus a compromise between the Commission draft and the version adopted by the First Committee. While Article 27, as adopted, provides for greater Executive discretion than would have been permitted under the initial Commission draft, it certainly was intended by the drafters of the Convention that some judicial review be permitted, even during a state of emergency, for all non-derogable rights and in all cases where an individual's liberty is restricted.

 

IV. CONCLUSION

The "essential judicial guarantees" clause of Article 27 clearly forbids a state from suspending habeas corpus/amparo except to the extent that it may temporarily detain without charge individuals reasonably suspected of posing a real danger to the security of the state, in accordance with the standards of international and municipal law (in case of conflict, the more protective standard prevails). Although judicial review of such detention need not be a full-fledged examination of the merits, protection of non-derogable rights requires bringing the detainee before a judge to verify that he is alive, providing e information about his treatment and ensuring compliance with municipal and international law; the latter requires release of the detainee if no reasonable cause for his detention exists. Judicial review is also available to preclude violations of non-derogable rights not involving deprivation of liberty.

Moreover, certain due process rights, i.e. the right to counsel, the right to appeal, full due process rights in capital cases, and the right to sufficient time to prepare a defense constitute "essential judicial guarantees" and are thus non-derogable. The independence and impartiality of the judiciary is an essential prerequisite for the exercise of such non-derogable rights.

This interpretation is the only one faithful to the text and purpose of Article 27 and is also consistent with the rule of liberal construction of human rights provisions, which requires a restrictive construction of limitations and derogations. Article 27 goes farther in restricting derogation than any other comparable human rights convention, and, in the light of the monstrous abuses suffered by citizens in the Americas pursuant to states of emergency, should be given maximum force and effect.

Respectfully submitted,


By: W. Bronson Howell

By: Larry Garber

International Human Rights Law Group



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