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Wednesday, October 17, 2007

IACHR banned suspension of rights in state of emergency

The implementation of a state of emergency -regardless of the scope or name it may have in domestic law- cannot involve the suppression or nullification of the judiciary protections (due process) the States (that are parties to the Inter American Convention on Human Rights) are obliged to enforce in order to ensure both the rights that are not susceptible to suspension and the rights that are not suspended under the state of emergency


Article by

JUAN FRANCISCO ALONSO
EL UNIVERSAL


The changes the National Assembly plans to introduce to Article 337, Venezuelan Constitution, infringe international human rights conventions and treaties

People's rights to an attorney in order to face any trial and/or investigation, to the presumption of innocence, and to a fair trial by the relevant court and based on preexistent laws cannot be suppressed and/or suspended by the authorities, not even during a natural disaster, a social revolt or a coup d'etat.

This is the ruling the Inter American Court of Human Rights issued in its advisory opinion number 9, dated October 6, 1987, in connection with a consultation the Paraguayan government made back then to determine what judiciary protections could be rendered null and void during a crisis.

"The implementation of a state of emergency -regardless of the scope or name it may have in domestic law- cannot involve the suppression or nullification of the judiciary protections (due process) the States (that are parties to the Inter American Convention on Human Rights) are obliged to enforce in order to ensure both the rights that are not susceptible to suspension and the rights that are not suspended under the state of emergency," the regional court asserted.

Everlasting

IACHR justices at the time, Rafael Nieto (Colombia), Héctor Gros (Uruguay), Rodolfo Piza (Costa Rica), Thomas Buergenthal (United States), Pedro Nikken (Venezuela), Héctor Fix-Zamudio (Mexico) and Jorge Hernández (Honduras), unanimously ruled that actions such as habeas corpus (whereby any person in custody can ask a court to determine whether his arrest is lawful) and actions seeking legal protection (a motion filed with the relevant court in case of impending violation of the fundamental rights and which requires a swift ruling by the judge) cannot be discontinued under any circumstance.

Further "the legal proceedings attached to the democratic representative form of government that are intended to ensure full exercise of the rights referred to in Article 27, item 2, of the Convention (right to life, personal integrity, name, conscience, nationality, family, prohibition of slavery, and the rights of children and politicians" cannot be abolished.

Therefore, during the states of emergency, the nations in the Western Hemisphere, including Venezuela, have to ensure the operation of independent, impartial courts, so that they can "rule on the lawfulness" of the actions performed by the authorities under extraordinary circumstances.

The reason is that "while legal protections are suspended, some legal boundaries to the actions performed by the public powers may be different, but such limits shall not be deemed inexistent and, therefore, it cannot be assumed that the government is invested with absolute powers."

There is a limit for everything

In a prior advisory opinion -number 8- the Court also rejected the possibility that the states of emergency can be in force for unlimited time or that all the fundamental rights can be suspended during the states of emergency.

"The suspension of legal protections should not trespass the strictly necessary time limits. Any action by the public powers that surpasses such limits -which must be specifically oulined in the provisions to decree the state of emergency- shall be deemed ilegal," said the Court.

In a resolution dated January 30, 1987, the Court of San Jose (Costa Rica) reminded that under the states of emergency and/or commotion there have been "abuses in the hemisphere." Therefore, it warned "the suspension of legal protections is unlawful when it is used as a mechanism to attack the democratic system."

Setting off the alarm

The Venezuelan National Assembly this week announced it changed Articles 337, 338 and 339 of the Constitution. Under such modifications -pending for approval in a referendum next December 2-, the Legislature empowered the government to suspend the right to due process and to information during states of emergency, as well as to abolish the time limits for states of emergency.

This move by the Venezuelan Congress was rebutted by the Organization of American States' former Rapporteur on Freedom of Expression Eduardo Bertoni.

"The rights susceptible to suspension during the states of emergency have to be chosen wisely and, above all, having in mind what the internacional law does or does not provide for. I doubt that the right to information can be suspended. The fact that the right to due process can be suspended amounts to both disregarding the internacional law and forgetting the tragedies featured in Latin American history under dictatorships," Bertoni wrote, replying to a question posed via e-mail.

Bertoni, who is currently the head of Fundación para el Debido Proceso Legal (Foundation for Due Legal Process), strongly stated that the changes proposed by the National Assembly do violate the Inter American Convention on Human Rights.

"The region is making strides in a clear direction. Constitutional reforms over the last few years have respected the Inter American Convention on Human Rights. Venezuela was precisely one example of this, with the reform of 1999. The changes presented today, however, are a setback."

Translated by Maryflor Suárez R.

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