Habeas Corpus in Emergency Situations 11 EHRR 33: Advisory opinion by Inter American Court of Human Rights on writ of habeas corpus. Suspension of guarantees.

Inter American Court of Human Rights 1987: Request by Inter-American Commission of Human Rights for an advisory opinion on whether the writ of habeas corpus, as guaranteed in Articles 7(6) and 25(1) of the American Convention is one of the judicial guarantees that cannot be suspended pursant to Article 27(2) in an emergency situation. The emergency clause must be interpreted in ‘good faith’ and keeping in mind the ‘object and purpose’ of the Convention. The suspension of guarantees may not exceed the limits of that strictly necessary to deal with the emergency. Under certain circumstances the suspension of guarantees may be the only way to deal with emergency situations and thereby preserve the highest values of a democratic society. The suspension of guarantees cannot be dissociated from the ‘effective exercise of representative democracy referred to in Art 3. The suspension of guarantees lacks all legitimacy whenever it is resorted to for the purpose of undermining the democratic system. The article envisages different situations and what might be permissable in one type of emergency would not be lawful in another. The lawfulness of the measures taken will depend upon the character, intensity, pervasiveness and particular context of the emergency and upon the corresponding proportionality and reasonableness of the measures. The suspension of guarantees does not imply a temporary suspension of the rule of law, nor does it authorise those in power to act in disregard of the principality of legality by which they are bound at all times. When guarantees are suspended, some legal restraints applicable to the acts of public authorities may differ from those in effect in normal conditions; but the government is not deemed to have acquired powers that go beyond the circumstances justifying the grant of such exceptional measures. Implicit in the judicial character of the guarantees is the active involvement of an independent and impartial judicial body having the power to pass on the lawfulness of measures adopted in a state of emergency. The remedy of amparo provided for in Article 25(1) applies to all rights including non-derogable rights in emergency situations. Amparo is a procedural remedy designed to give ‘simple and prompt recourse’ to a competent court or tribunal for protection against violations of fundamental rights. The writs of habeas corpus and of amparo are among those guarantees that are essential for the protection various rights, derogation wherefrom is prohibited by Art 27(2) and that serve, moreover to preserve legality in a democratic society. These legal remedies may not be suspended in emergency situations.

| Return to Topic Menu | Return to Main Menu |