Amicus Curiae de "The Lawyers Committee for Human Rights".


 

 

AMICUS CURIAE

In the
INTER AMERICAN COURT OF HUMAN RIGHTS

IN RE:
REQUEST FOR AN ADVISORY OPINION
PRESENTED BY THE
GOVERNMENT OF URUGUAY

BRIEF OF THE
LAWYERS COMMITTEE FOR HUMAN RIGHTS
AS AMICUS CURIAE

Marvin E. Frankel
Michael H. Posner
Diane F. Orentlicher
LAWYERS COMMITTEE FOR HUMAN RIGHTS
330 Seventh Avenue
New York, New York 10001
(212) 629-6170

Daryl A. Libow
Francisco Briceno
125 Broad Street
New York, New York 10004

 

TABLE OF CONTENTS

 

QUESTIONS PRESENTED

INTEREST OF AMICUS CURIAE

PRELIMINARY STATEMENT

SUMMARY OF ARGUMENT

 

I. THE AMERICAN CONVENTION'S COMMITMENT TO THE PRESERVATION OF DEMOCRATIC INSTITUTIONS AND DEEP CONCERN FOR THE PROTECTION OF HUMAN RIGHTS REFLECTS THE EXCEPTIONAL CHARACTER OF PERMISSIBLE DEROGATION UNDER THE CONVENTION AND SUPPORTS A BROAD NOTION OF NON-DEROGABLE JUDICIAL GUARANTEES

II. DEROGATION OF THE DUE PROCESS PROTECTIONS ESTABLISHED IN ARTICLE 8 WOULD BE INCONSISTENT WITH OTHER OBLIGATIONS OF STATES PARTIES UNDER INTERNATIONAL LAW AND THUS PROHIBITED UNDER ARTICLE 27

III. THE DRAFTING HISTORY OF THE AMERICAN CONVENTION REFLECTS A DEEP CONCERN FOR HUMAN RIGHTS AND SUPPORTS A BROAD INTERPRETATION OF ARTICLE 27's ARTICULATION OF NON-DEROGABLE JUDICIAL GUARANTEES

IV. THE INTER AMERICAN COURT HAS ALREADY HELD THAT THE JUDICIAL GUARANTEES OF HABEAS CORPUS (ARTICLE 7.6) AND AMPARO (ARTICLE 25.1) ARE "INDISPENSABLE JUDICIAL GUARANTEES" WHICH MAY NOT BE SUSPENDED UNDER THE DEROGATION PROVISION OF ARTICLE 27

V. THE DUE PROCESS RIGHTS ESTABLISHED IN ARTICLE 8 OF THE AMERICAN CONVENTION SHOULD ALSO BE SEEN AS "INDISPENSABLE JUDICIAL GUARANTEES" NECESSARY TO THE PRESERVATION OF OTHER FUNDAMENTAL AND NON-DEROGABLE RIGHTS UNDER THE CONVENTION

CONCLUSION

APPENDIX A: FULL TEXT OF ARTICLES 7.6, 8 AND 25.1 OF THE AMERICAN CONVENTION

 

QUESTION PRESENTED

The Government of Uruguay has requested an advisory opinion, pursuant to Article 64(1) of the American Convention on Human Rights (the "American Convention"), interpreting the scope and limitations of the prohibition contained in Article 27(2) of the American Convention on the suspension of "the judicial guarantees essential to the protection" of the other non-derogable rights enumerated in Article 27. Specifically, the Government of Uruguay has asked the court to render an advisory opinion as to: (1) what constitutes the "essential judicial guarantees" contemplated by Article 27(2); and (2) what is the relationship between Article 27(2) and Articles 25 and 8 of the American Convention .

Article 8 of the Convention guaranteeing the "right to a fair trial", Article 7(6) preserving the right of habeas corpus and Article 25 insuring the "right to judicial protection" (Amparo) form the corpus of judicial guarantees provided under the American Convention . In light of the fact that Article 27 does not articulate what "judicial guarantees" are deemed "essential for the protection" of non-derogable rights --and thus themselves in susceptible to suspension-- it has become incumbent upon this Court to determine the extent of the Convention's recognition of non-derogable judicial rights.

 

INTEREST OF AMICUS CURIAE

The Lawyers Committee for Human Rights ("Lawyers Committee") is a non-governmental organization founded in 1978 and devoted to the advancement of human rights. The Lawyers Committee serves as a legal resource center for a variety of human rights organizations in the United States and elsewhere. During the last several years, the Lawyers Committee has prepared reports, several of which have been submitted to the Inter American Commission on Human Rights, on international human rights violations in a number of nations. The Lawyers Committee also has filed amicus curiae briefs in federal courts in the United States urging the use of international human rights law, and submitted amicus briefs before this Court in "Other Treaties" Subject to the Advisory Jurisdiction of the Court (Art. 64 American Convention on Human Rights), Advisory Opinion No. OC-1/82 of September 24, 1982; series A No. 1 ("Other Treaties"), Request of the Inter American Commission on Human Rights for an Advisory Opinion Interpreting Article 4(2) of the American Convention on Human Rights and Request of the Government of Costa Rica for an Advisory Opinion Interpreting Article 13 and 29 of the American Convention on Human Rights. The Chairman of the Lawyers Committee is Marvin E. Frankel. Michael H. Posner is its Executive Director, and Diane F. Orentlicher is its Deputy Director.

 

PRELIMINARY STATEMENT

The matter before the Court is of the gravest importance. A threat to the "security of a state", whether real or perceived, often serves as a justification for the temporary abrogation of fundamental human rights. It must be recognized that in may cases governments truly and legitimately have need to resort to exceptional measures to ensure the stability of the state and the security of its populace. In such instances, one can only hope that a short-lived derogation of constitutional constraints does not result in permanent damage to the democratic norms and values essential to constitutional government. On the other hand, however, temporary measures adopted to combat "threats to the security of the state" all too often create institutional machinery which enables the heavy boot of unfettered state power to trample the rights of its citizens.

In a letter to the Court dated April 24, 1987, Uruguay's Foreign Minister, Enrique V. Iglesias, asks that in its opinion the Court take "into account the history and the reality of the Americas, bases on situations that have occurred and those that it is reasonable to expect may occur in the future, and not an abstract interpretation of a norm of the American Convention in a merely theoretical or academic sense" . Unfortunately, the history of the Americas has at times been one of massive violations of human rights -- extra-judicial deaths, torture, forced disappearances, long-term detentions without trial. As one commentator has noted, "since 1950 every Latin American nation has utilized the State of Siege as an emergency means to govern because of threats to internal security" . The American Convention recognizes, however, as do all multilateral human rights instruments, that even in times of emergency which threaten the security of the state, certain fundamental human rights may never be abridged. A special vigilance must therefore be maintained to insure that the theoretical and limited right of derogation contemplated by the Convention does not result in a wholesale suspension of all rights, even those which are non-derogable. Judicial guarantees are the primary safeguard against impermissible derogations and their effective preservation fortify democratic institutions against long-term erosion.
Consequently, in light of the "reality of the Americas", the Court's preservation of broad non-derogable judicial guarantees is of critical importance to liberty in Latin America.

 

SUMMARY OF ARGUMENT

The American Convention both contemplates and requires that the judicial protections deemed non-derogable under Article 27 are largely coextensive with the judicial guarantees contained in Articles 7, 8 and 25 of the Convention. Such a result is mandated not only by the strong philosophical commitment to human rights pervasive throughout the convention, but also by other international law obligations of States Parties as reflected in multilateral humanitarian law instruments, the travaux preparatoire of the American Convention and the previous jurisprudence of this Court.

First, the American Convention's philosophical underpinnings, its commitment to the preservation of democratic institutions and deep concern for human rights as manifest in the Convention's preamble and in Articles 1 and 29, support an extremely broad reading of the Convention's language recognizing judicial guarantees as non-derogable. It is particularly important to note that the interpretative norm of the American Convention which provides that nothing in the Convention may contradict fundamental principles of democratic government strongly argues for an interpretation of Article 27 that preserves institutions -- habeas corpus, amparo and due process -- essential to a functioning democracy.

Second, the Geneva Convention and other instruments of humanitarian law also provide that some due process rights are non-derogable. This is of great importance and may be probative of the question before the Court because a State Party may, in accordance with Article 27, only derogate from its obligations under the convention in a manner consistent with its other obligations under international law.

Third, the drafting history of the American Convention, and particularly the preliminary work of the Inter American Commission on Human Rights, suggests that the inclusion of judicial guarantees as non-derogable under Article 27 should be seen as broad rather than restrictive in nature and thus should include the due process guarantees of Article 8. At a minimum, the earlier drafts and amendments offered by delegates at the 1969 Inter American Conference on Human Rights at San Jose, Costa Rica indicate an intent to include in the list of non-derogable rights at least the most basic and fundamental of due process guarantees.

Fourth, the Court's advisory opinion OC-8/87 of January 30, 1987, unequivocally held that the judicial protections articulated in Articles 7.6 and 25.1 of the American Convention -- establishing the institutions of habeas corpus and amparo ("right to judicial protection") -- cannot be suspended under Article 27.1 because these judicial procedures are indispensable guarantees for the protection of other non-derogable rights under the Convention.

Finally, the same rationale used by the Court in regard to habeas corpus and amparo in protecting other non-derogable rights. The right to judicial review and to a fair trial would be one of limited efficacy if it was not accompanied by a guarantee of procedural fairness. Furthermore, the Universal Declaration of Human Rights, the United Nations Covenant on Civil and Political Rights, and a multitude of other multilateral human rights instruments all embrace the principle that judicial guarantees -- including due process and the basic right to a fair trial -- are necessary to the protection of fundamental, non-derogable rights. Although these instruments stop short of declaring these guarantees non-derogable, their emphatic recognition of the importance of due process bears witness to its essential character as an insurer of the sanctity of democratic norms and the protection of non-derogable rights.

 

ARGUMENT

I. THE AMERICAN CONVENTION'S COMMITMENT TO THE PRESERVATION OF DEMOCRATIC INSTITUTIONS AND DEEP CONCERN FOR THE PROTECTION OF HUMAN RIGHTS REFLECTS THE EXCEPTIONAL CHARACTER OF PERMISSIBLE DEROGATION UNDER THE CONVENTION AND SUPPORTS A BROAD NOTION OF NON-DEROGABLE JUDICIAL GUARANTEES.

The concern for human rights which pervades the American Convention and is prominent in its philosophical underpinning supports a broad and progressive approach to the non-derogability of judicial guarantees. The deep commitment of the American Convention to the protection of human rights is readily apparent. Article 29 of the American Convention indicates a clear intent on the part of those gathered at San Jose to draft a document aggressive in its protection of human rights and committed to the preservation of democratic institutions. Article 29 provides:

 

No provision of this Convention shall be interpreted as:

(a) permitting any State Party, group, or person to suppress the enjoyment or exercise of the rights and freedoms recognized in this Convention or to restrict them to a greater extent than is provided for herein;

(b) restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws of any State Party or by virtue of another convention to which one of the said states is a party;

(c) precluding other rights or guarantees that are inherent in the human personality or derived from representative democracy as a form of government; or

(d) excluding or limiting the effect that the American Declaration of the Rights and Duties of Man and other international acts of the same nature may have.

Of particular importance is the interpretative norm in Article 29(c) that prohibits interpretation of any provision in the Convention in a manner which precludes "rights or guarantees that are ... derived from representative democracy as a form of government". This provision, along with the first paragraph of the Convention's Preamble which affirms that the States Parties to the Convention intend to create "within the framework of democratic institutions, a system of personal liberty and social justice based on respect for the essential rights of man", clearly demonstrates the close and indissoluble relationship under the Convention between the protection of human rights and the perpetuation of the democratic system of government. The Court has recognized this vital link on several occasions and it must be seen as a guiding principle in assessing the derogability of judicial guarantees . The judicial protections of habeas corpus, amparo and due process must all be seen as essential to the preservation of non-derogable rights and thus of critical importance to the maintenance and health of democratic institutions. Consequently, any derogation of these judicial protections must be seen as inconsistent with Article 29 and hence the Convention itself.

Furthermore, the derogation provision of the American Convention contained in Article 27 was intended to be exceptional and limited in nature. Article 27 enumerates a lengthily list of rights which may not at any time or under any circumstance be suspended. Moreover, States Parties to the Convention have an affirmative duty to preserve and protect rights, and suspension of even derogable rights is only permissible under extraordinary circumstances. Article 27 provides, in pertinent part:

 

1. In time of war, public danger, or other emergency that threatens the independence or security of a State Party, it may take measures derogating from its obligations under the present Convention to the extent and for the period of time strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law ...

2. 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 Human 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. (emphasis added).

The text of Article 27 clearly demonstrates the limited nature of permissible derogation under the Convention. Not only is derogation expressly limited to certain rights, but it is permissible only during war or some other public emergency which threatens the security of the state. Moreover, it must be proportionate, limited both in time and scope "strictly to the exigencies " of a given situation. Finally, the derogation must be consistent with other obligations of States Parties under international law.

The Preamble to the American Convention also reflects the Convention's commitment to the protection of human rights. The Convention's Preamble provides, in pertinent part:

 

The American States signatory to the present Convention,

Reaffirming their intention to consolidate in this hemisphere, within the framework of democratic institutions, a system of personal liberty and social justice based on respect for the essential rights of man;

Considering, that these principles have been set forth in the Charter of the Organization of American States, in the American Declaration of the Rights and Duties of Man, and in the Universal Declaration of Human Rights, and that they have been reaffirmed and refined in other international instruments, worldwide as well as regional in scope;

 

Reiterating that, in accordance with the Universal Declaration of Human Rights, the ideal of free men enjoying freedom from fear and want can be achieved only if conditions are created whereby everyone may enjoy his economic, social, and cultural rights, as well as his civil and political rights; ...

Moreover, Article 1 of the Convention imposes an additional obligation on States Parties to ensure respect for human rights in a non-discriminatory manner:

 

The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.

In short, the mandates of Articles 27 and 29 and the general respect for human rights evident in the Convention's preamble and in Article 1, are clearly both consistent with, and furthered by, an interpretation of Article 27 which includes in the enumeration of non-derogable rights the essential guarantees of due process.

 

II. DEROGATION OF THE DUE PROCESS PROTECTIONS ESTABLISHED IN ARTICLE 8 WOULD BE INCONSISTENT WITH OTHER OBLIGATIONS OF STATES PARTIES UNDER INTERNATIONAL LAW AND THUS PROHIBITED UNDER ARTICLE 27.

A strong argument against the derogability of due process guarantees lies in the Article 27 requirement that derogations by States Parties in emergency situations not be inconsistent with their other obligations under international law. Uruguay has been a member of the United Nations since its inception . Additionally, it is a signatory to the Geneva Conventions and their additional protocols.

The Geneva Conventions which embody the principle rules of humanitarian law clearly impose an obligation on states to provide due process guarantees. Most importantly, there is a strong duty on states to not derogate from this obligation. As one commentator has noted, the instruments of humanitarian law "have been accepted far more than the human rights instruments as positive law of the international community" . Not only have the Geneva Conventions been ratified by almost all states, but some of their essential provisions have become part of general customary international law . The relevant Geneva Convention provision which bears on the question of the derogability of due process rights during an emergency is Common Article 3. One commentator has stated: "Common Article 3 requires inter alia that even during a civil war all criminal prosecutions must be carried out by a 'regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples' ... It would be difficult to deny that any of the due process rights... are not among the 'indispensable judicial guarantees' referred to in generic terms by Common Article 3" .

Common Article 3 of Protocol II of the Geneva Convention defines non-derogable rights in non international or internal armed conflicts. Because Article 27 of the American Convention pertains to the derogability of rights in time of "war, public danger, or other emergency that threatens the independence or security of a State Party", an armed conflict such a is referred to in Common Article 3 of the Geneva Convention clearly is the type of situation under Article 27 which would provoke emergency sanctions and the suspension of rights. In such instances, States Parties to the American Convention may not derogate rights under Article 27 which would be inconsistent with their obligations under the Geneva Convention.

Even when Article 27 emergency sanctions do not result from a crisis which can be characterized as an internal armed conflict, the Geneva Conventions must be seen as imposing an obligation not to suspend fundamental due process rights. As one publicist persuasively argues, "guarantees that are considered non-derogable in time of war must a fortiori be considered non-derogable in times of lesser threats to the nation... That Protocol II makes these particular rights applicable to an armed conflict occurring within the national territory and to 'penal offenses committed in relation to the armed conflict' ... is compelling proof that infringements of these rights during states of emergency cannot be 'strictly required by the exigencies of the situation' " .

 

III. THE DRAFTING HISTORY OF THE AMERICAN CONVENTION REFLECTS A STRONG CONCERN FOR HUMAN RIGHTS AND SUPPORT A BROAD INTERPRETATION OF ARTICLE 27's ARTICULATION OF NON-DEROGABLE JURIDICAL GUARANTEES

An interpretation of Article 27 which incorporates in the enumeration of non-derogable judicial protections the basic guarantees of due process, including the right to a fair trial, is supported by the Convention's drafting history. It is very significant to note that earlier drafts of Article 27 of the American Convention expressly include the right to due process among the list of non-derogable rights . of the express reference to "due process" by no means indicates that the essential guarantees of due process (i.e., right to a fair trial) may be subject to suspension. In fact, a contrary conclusion is warranted. As one commentator concluded, although the Convention's use of the general term "judicial guarantee" does not necessarily represent a reincorporation of those rights [Articles 7 and 8] in toto ... nonetheless it does represent the reincorporation of certain elements of those rights as well as any other judicial guarantees that might be considered essential for the protection of any or all of the non-derogable rights" .

The preparatory work of the Inter American Commission is particularly revealing and reflects initial adoption of a draft which prohibits "any suspension of the following rights: the right to life, integrity of the person, protection against arbitrary detention, due process of law, freedom of thought, conscience and religion, and recognition of juridical personality, and the right not to be deprived of liberty for debt" (emphasis added) .

Moreover, an earlier resolution on the "Protection of Human Rights in Connection with the Suspension of Constitutional Guarantees or 'State of Siege', "was adopted by the Commission in 1968 and similarly included among non-derogable rights "the right to due process of law" .

Although the Commission ultimately deleted the language making express reference to specific judicial guarantees and settled on the present language in Article 27 making non-derogable "the judicial guarantees essential for the protection of such rights", the use of the general language would seem to include the specific institutions of habeas corpus, amparo and due process . The conclusion that this was the intent of the drafters of the Convention is further supported by the fact that the general language ultimately adopted was put forth as an amendment by the United States delegation which had previously been the author of numerous amendments seeking adoption of a text which specifically included habeas corpus and due process among the list of non-derogable rights .

In short, the use of the general term "judicial guarantees" must be seen as an intention to include among the convention's non-derogable rights, at least, some of the basic elements of due process. The question arises then as to what due process rights are non-derogable under Article 27. The International Commission of Jurists has proposed that the following due process rights be non-derogable:

 

the right to be informed properly and in detail of the charges, the right to have adequate time and facilities for the preparation of one's defense, including the right to communicate with counsel, the right to a lawyer of one's choice, the right of an indigent defendant to have free legal counsel when charged with a serious offense, the right to be present at the trial, the presumption of innocence, the right not to be compelled to testify against oneself or to make a confession, the right to an independent and impartial tribunal, the right to appeal, the right to obtain the attendance and examination of defense witnesses, the right no to be tried or punished again for an offense for which one has been finally convicted or acquitted, the principle of non retroactivity of penal laws .

A comparison of the International Commission of Jurists proposal with the text of Article 8 (see Appendix A) reveals that most of these rights are contained in both documents.

In the end, the rights and procedures which will comprise the non-derogable judicial guarantee of "due process" will be dictated by what the Court deems to be essential to the protection of other non-derogable rights. If, as the Court has previously concluded in its advisory opinion of January 30, 1987, that the institutions of habeas corpus and amparo are non-derogable and essential to the preservation of other non-derogable rights [see IV infra], then these procedures must be conducted in a meaningful manner. The right to judicial protection should not be derogated during emergency situations, because "the availability of resort to the judiciary protects individuals against unauthorized, excessive, or erroneous imposition of emergency sanctions" . It is of little efficacy, however, to have access to a judicial forum if there exists no concomitant guarantee of procedural fairness. Without the protections afforded by due process, the judicial guarantees recognized in Article 27 would become a right without a remedy.

 

IV. THE INTER AMERICAN COURT HAS ALREADY HELD THAT THE JUDICIAL GUARANTEES OF HABEAS CORPUS (ARTICLE 7.6) AND AMPARO (ARTICLE 25.1) ARE "INDISPENSABLE JUDICIAL GUARANTEES" WHICH MAY NOT BE SUSPENDED UNDER THE DEROGATION PROVISION OF ARTICLE 27.

The Inter American Court in response to a request for an advisory opinion by the Inter American Commission on Human Rights, recently held that the judicial procedures of habeas corpus and amparo contained in Articles 7.6 and 25.1, respectively, of the American Convention could not be suspended under Article 27.2 because they constituted "indispensable judicial guarantees" essential to the protection of other non-derogable rights. The Commission had solicited of other non-derogable rights. The Commission had solicited an advisory opinion of the court on the issue of the derogability of habeas corpus under Article 27 of the Convention because it was disturbed by what it perceived to be a growing belief on the part of several States Parties to the American Convention that during a State of Siege or other emergency threatening the security of the state the right of habeas corpus could be suspended under Article 27.

The court's advisory opinion OC-8/87 of January 30, 1987, emphatically held that, although not expressly mentioned in Article 27, the judicial protections of habeas corpus and amparo contained in Articles 7.6 and 25.1 respectively of the Convention could not be suspended under Article 27 even during war, "estado de emergencia" (state of siege) or other emergency threatening the security of the state . The basis for the Court's January 30, 1987 opinion was that it construed the language of Article 27.2 as meaning that "indispensable judicial guarantees" -- those which play a critical role in the preservation of other non-derogable rights -- are non-derogable under Article 27 and that the institutions of habeas corpus and amparo must be seen as such. Consequently, at no time may these rights be suspended, and States Parties to the Convention may not derogate from their obligation to provide these judicial procedures . The necessity for including judicial procedures in the list of non-derogable rights was, in the Court's opinion, quite obvious. The Court reasoned that without the protections afforded by judicial scrutiny of emergency sanctions, the Convention's prohibition on the suspension of non-derogable rights would become little more than an empty platitude .

The Court found that the right to habeas corpus had its greatest import in times of siege or other state emergencies because it functioned as a safeguard of the legality of detentions made under emergency laws . The symbiotic relationship between judicial guarantees and the protection of non-derogable rights is fundamental. As one commentator has noted:

 

Systematic de facto violations of non-derogable rights which formally remain in force have become a distressing characteristic of some states of emergency... The state has an affirmative duty to take all due precautions to prevent de facto violations and punish all persons responsible for them... If the right to appeal to the courts for the enforcement of non-derogable rights is suspended during a state of emergency, the failure to derogate from the rights themselves becomes a mere formalism .

In addition to the protection of non-derogable rights, the judicial institutions of habeas corpus and amparo play a critical role in preserving democratic norms in accordance with Article 29 of the Convention. The important role played by these institutions during times of emergency is widely recognized. The Paris Minimum Standards of Human Rights Norms in a State of Emergency, adopted by the International Law Association in 1984, emphatically concluded that "during the period of the emergency the fundamental functions of the legislature and the judiciary should not be impaired despite the relative expansion of the powers of the executive; ... guarantees of the independence of the judiciary should remain unimpaired" . The report further recommended that the "writs of amparo [judicial protection] and habeas corpus shall remain available [to the detainee] to enable the supervisory jurisdiction of the courts to be invoked to determine whether the relevant law for preventive detention complies with constitutional requirements, to determine whether the order of detentions in compliance with the law, and to ensure that every detainee is treated with humanity" . Moreover, the Paris Minimum Standards further concluded that:

 

All ordinary remedies as well as special ones, such as habeas corpus or amparo, shall remain operative during the period of emergency with a view to affording protection to the individual with respect to his rights and freedoms which are not or could not be affected during the emergency, as well as other rights and freedoms which may have been attenuated by emergency measures .

The United Nations, in its study of the right to be free from arbitrary arrest quoted the agreement reached at the Baguino Seminar, whose members considered it a "fundamental principle that the individual should never be deprived of the means of testing the legality of his arrest or custody by recourse to judicial process even in times of emergency. If that principle is departed from the liberty of the individual is immediately put in great peril" .

Finally, a study by the International Commission of Jurists (ICJ) also contains a recommendation about habeas corpus or amparo. It was the conclusion of the ICJ study that "the civilian judiciary should retain jurisdiction during a state of emergency to review individual cases of detention at least (i) to ensure that the stated grounds for detention are valid and sufficient, (ii) to ensure that proper procedures have been complied with and (iii) to ensure that the conditions of the detention are lawful" . The common theme running through all of these studies is that in times of crisis the judicial guarantees of habeas corpus or amparo play an important role in guarding against overreaction on the part of the State which results in the abrogation of non-derogable rights and the erosion of democratic institutions.

In its January 30, 1987 opinion, the Court also emphasized that derogations under Article 27 were subject to the limiting doctrine of "proportionality" -- that even in an emergency, a restriction of rights which may under the Convention be derogated from, was only permissible to the extent required by the impending crisis. It is hard to imagine a crisis situation in which suspension of habeas corpus or amparo would be a proportionate response. Nor is it likely to be an effective response. The suspension of judicial guarantees will rarely, if ever, ameliorate a crisis situation or remove a threat to the security of the State. In short, it would seem that suspension of these fundamental judicial protections will almost never satisfy the principle of proportionality. As one observer notes, "the practice of permitting no review of the legality of detention is ...never strictly required by the exigencies of the situation" .

 

V. THE DUE PROCESS RIGHTS ESTABLISHED IN ARTICLE 8 OF THE AMERICAN CONVENTION SHOULD ALSO BE SEEN AS "INDISPENSABLE JUDICIAL GUARANTEES" NECESSARY TO THE PRESERVATION OF OTHER FUNDAMENTAL AND NON-DEROGABLE RIGHTS UNDER THE CONVENTION..

As noted above, the Court's advisory opinion of January 30, 1987 affirmatively held that the judicial protections of habeas corpus or amparo were non-derogable under Article 27 of the Convention. The Court's decision reflects an emerging consensus among jurists and publicists that these rights should be non-derogable because they are indispensable to the preservation of other non-derogable rights. The rationale adopted by the Court in its January 30, 1987 opinion establishing the non-derogability of the Article 7.6 and Article 25.1 guarantees of habeas corpus or amparo can and should be extended to many of the due process rights articulated in Article 8 of the Convention .

At a threshold level, the Court's January 30, 1987 decision did not hold that habeas corpus (Article 7.6) and amparo (Article 25.1) constituted an exhaustive list of indispensable judicial guarantees under the Convention. More importantly, in the same manner that the institutions of habeas corpus or amparo serve to ensure in emergency situations respect for other fundamental non-derogable rights, the protections of due process similarly act as a safeguard against repressive action taken in the name of state security. The right to due process must be seen as lying at the heart of any fair judicial system, and is thus of critical importance to any society which places a premium on individual liberty and democratic government. As a study by the International Commission of Jurists noted: "that a person should be convicted without a fair chance to defend his innocence, or deprived of his freedom without being charged with crime, shocks the conscience and seems the epitome of injustice" . Perhaps more significantly, another commentator has noted that the suspension of due process has often created the "preconditions of torture" .

Not only do due process guarantees ensure respect for the non-derogable character of the substantive rights enumerated in Article 27 (i.e., the rights to life or to be free from torture), but they similarly ensure the effectiveness of other judicial guarantees such a habeas corpus or amparo. As noted previously, the right of review of arbitrary detention or the general right of access to the Courts becomes a sham if there is no concomitant guarantee of procedural fairness. If, as the Court's January 30, 1987 opinion establishes, the rights of habeas corpus or amparo are non-derogable, then under Article 27 all judicial guarantees essential to the protection of those rights must be non-derogable. Consequently, the due process guarantees of Article 8 of the Convention, or at least the more fundamental ones, must also be seen as non-derogable under the American Convention.

Moreover, because a state's ability under Article 27 to suspend even derogable obligations under the Convention is limited by the principle that the derogation be only to the extent "required by the exigencies of the situation", the principle of "proportionality" seems to support non-derogable status for many due process guarantees. Just as in the case of habeas corpus or amparo, it is hard to conceive of a situation in which wholesale derogation from judicial guarantees such as the right to a fair trial is a proportionate response to an emergency situation even one which threatens the security of the state.

The suspension of due process guarantees undermine the principle of proportionality on a second, perhaps even more significant level. The right to procedural due process guarantees, as well as judicial protections such as habeas corpus or amparo, may ensure that the emergency restrictions imposed on rights which may be suspended in a crisis satisfy the requirement of proportionality. More importantly, not only are the judicial protections of habeas corpus, amparo and due process essential in monitoring the proportionality of emergency measures, but also the legality and constitutionality of such measures as well. It is here that the insoluble relationship between the protection of rights and the preservation of democratic institutions is most apparent. Without adequate and effective judicial scrutiny of the repressive measures taken by a state during an emergency, the democratic nature of societal institutions is severely jeopardized.

Finally, international custom and practice as reflected in the human rights regimes of both the United Nations and regional organizations, support a finding that due process guarantees are indispensable to the protection of non-derogable rights. The International Covenant on Civil and Political Rights, to which Uruguay is a signatory, was adopted by the United Nations General Assembly in 1966 contains in Article 9 an extensive list of due process guarantees. Similarly, the Universal Declaration of Human Rights adopted by the United Nations and regional organizations, support a finding that due process guarantees are indispensable to the protection of non-derogable rights. The International Covenant on Civil and Political Rights, to which Uruguay is a signatory, was adopted by the United Nations General Assembly in 1966 contains in Article 9 an extensive list of due process guarantees. Similarly, the Universal Declaration of Human Rights adopted by the United Nations General Assembly in 1945, not only provides for habeas corpus or amparo, but also expressly articulates a right to basic due process protections. Furthermore, the European Convention on Human Rights also contains, in Articles 5 and 6, a panoply of due process rights. Although these conventions stop short of explicitly recognizing due process guarantees as non-derogable, they serve as further proof of the universal recognition of the important role played by these guarantees in protecting other non-derogable rights and preserving democratic institutions.

 

CONCLUSION

In the end, it must be seen as clear that the prohibition contained in Article 27 of the American Convention on the suspension of "judicial guarantees essential to the protection" of other enumerated non-derogable rights, extends not only to the institutions of habeas corpus or amparo, but also to fundamental notions of due process. Such a conclusion is warranted by the fact that due process guarantees function similarly to habeas corpus or amparo as a safeguard to protect non-derogable rights from encroachment during a state of siege or other emergency situation. Moreover, due process guarantees also act as a check on the power of the State to ensure that emergency measures suspending derogable rights are not disproportionate and inconsistent with democratic ideals. Additionally, the inclusion of Article 8 due process guarantees in the list of non-derogable rights is mandated because derogation of these rights would be inconsistent with other obligations of States Parties under international law. Finally, such a result is consistent with the American Convention's travaux preparatoire and its strong philosophical commitment to the protection of human rights and the preservation of democratic institutions.

For all of the reasons stated above, we respectfully request the Inter American Court of Human Rights to hold that the institutions of habeas corpus (Article 7.6) and amparo (Article 25.1) as well as the essential due process guarantees articulated in Article 8 of the American Convention of Human Rights are "judicial guarantees essential to the protection" of other non-derogable rights under Article 27 of the Convention, and consequently not subject to derogation.

 

APPENDIX A

Article 8 of the American Convention provides:

 

1. Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.

2. Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law. During the proceedings, every person is entitled, with full equality, to the following minimum guarantees:

 

(a) the right of the accused to be assisted without charge by a translator or interpreter, if he does not understand or does not speak the language of the tribunal or court;

(b) prior notification in detail to the accused of the charges against him;

(c) adequate time and means for the preparation of his defense;

(d) the right of the accused to defend himself personally or to be assisted by legal counsel of his own choosing, and to communicate freely and privately with his counsel;

(e) the inalienable right to be assisted by counsel provided by the state, paid or not as the domestic law provides, if the accused does not defend himself personally or engage his own counsel within the time period established by law;

(f) the right of the defense to examine witnesses present in the court and to obtain the appearance, as witnesses, of experts or other persons who may throw light on the facts;

(g) the right not to be compelled to be a witness against himself or to plead guilty; and

(h) the right to appeal the judgment to a higher court.

 

3. A confession of guilt by the accused shall be valid only if it is made without coercion of any kind.

4. An accused person acquitted by a non appealable judgment shall not be subjected to a new trial for the same cause.

5. Criminal proceedings shall be public, except insofar as may be necessary to protect the interests of justice.

Article 7.6 provides, in pertinent part:

 

Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful...

Article 25.1 provides, in pertinent part:

 

Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of that state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties.



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