... continued

Article 41.  Friendly Settlement 

1.          On its own initiative or at the request of any of the parties, the Commission shall place itself at the disposal of the parties concerned, at any stage of the examination of a petition or case, with a view to reaching a friendly settlement of the matter on the basis of respect for the human rights recognized in the American Convention on Human Rights, the American Declaration, and other applicable instruments.   

          2.          The friendly settlement procedure shall be initiated and continue on the basis of the consent of the parties. 

          3.          When it deems it necessary, the Commission may entrust to one or more of its members the task of facilitating negotiations between the parties.  

          4.          The Commission may terminate its intervention in the friendly settlement procedure if it finds that the matter is not susceptible to such a resolution or any of the parties does not consent to its application, decides not to continue it, or does not display the willingness to reach a friendly settlement based on respect for human rights.  

          5.          If a friendly settlement is reached, the Commission shall adopt a report with a brief statement of the facts and of the solution reached, shall transmit it to the parties concerned and shall publish it.  Prior to adopting that report, the Commission shall verify whether the victim of the alleged violation or, as the case may be, his or her successors, have consented to the friendly settlement agreement.  In all cases, the friendly settlement must be based on respect for the human rights recognized in the American Convention on Human Rights, the American Declaration and other applicable instruments.  

          6.          If no friendly settlement is reached, the Commission shall continue to process the petition or case.   

Article 42.  Decision on the Merits

 

          1.          The Commission shall deliberate on the merits of the case, to which end it shall prepare a report in which it will examine the arguments, the evidence presented by the parties, and the information obtained during hearings and on-site observations.  In addition, the Commission may take into account other information that is a matter of public knowledge. 

          2.          The Commission shall deliberate in private, and all aspects of the discussions shall be confidential.  

          3.          Any question put to a vote shall be formulated in precise terms in one of the official languages of the OAS.  At the request of any member, the text shall be translated by the Secretariat into one of the other official languages and distributed prior to the vote.  

          4.          The minutes referring to the Commission's deliberations shall restrict themselves to the subject of the debate and the decision approved, as well as any separate opinions and any statements made for inclusion in the minutes.   

Article 43.  Report on the Merits  

          After the deliberation and vote on the merits of the case, the Commission shall proceed as follows:  

          1.          If it establishes that there was no violation in a given case, it shall so state in its report on the merits.  The report shall be transmitted to the parties, and shall be published and included in the Commissionís Annual Report to the OAS General Assembly.  

          2.          If it establishes one or more violations, it shall prepare a preliminary report with the proposals and recommendations it deems pertinent and shall transmit it to the State in question.  In so doing, it shall set a deadline by which the State in question must report on the measures adopted to comply with the recommendations.  The State shall not be authorized to publish the report until the Commission adopts a decision in this respect.  

          3.          It shall notify the petitioner of the adoption of the report and its transmittal to the State.  In the case of States parties to the American Convention that have accepted the contentious jurisdiction of the Inter-American Court, upon notifying the petitioner, the Commission shall give him or her one month to present his or her position as to whether the case should be submitted to the Court.  When the petitioner is interested in the submission of the case, he or she should present the following:  

a.       the position of the victim or the victimís family members, if different from that of the petitioner;  

b.       the personal data relative to the victim and the victimís family members;  

c.       the reasons he or she considers that the case should be referred to the Court;  

d.       the documentary, testimonial, and expert evidence available; and,  

e.       the claims concerning the reparations and costs.    

Article 44.  Referral of the Case to the Court  

          1.          If the State in question has accepted the jurisdiction of the Inter-American Court in accordance with Article 62 of the American Convention, and the Commission considers that it has not complied with the recommendations of the report approved in accordance with Article 50 of the American Convention, it shall refer the case to the Court, unless there is a reasoned decision by an absolute majority of the members of the Commission to the contrary.  

          2.          The Commission shall give fundamental consideration to obtaining justice in the particular case, based, among others, on the following factors:  

          a.       the position of the petitioner;  

b.       the nature and seriousness of the violation;  

c.       the need to develop or clarify the case-law of the system;  

d.       the future effect of the decision within the legal systems of the member States; and,  

          e.       the quality of the evidence available. 

Article 45.  Publication of the Report  

          1.          If within three months from the transmittal of the preliminary report to the State in question the matter has not been solved or, for those States that have accepted the jurisdiction of the Inter-American Court, has not been referred by the Commission or by the State to the Court for a decision, the Commission, by absolute majority of votes, may issue a final report that contains its opinion and final conclusions and recommendations.  

          2.          The final report shall be transmitted to the parties, who, within the time period set by the Commission, shall present information on compliance with the recommendations.  

          3.          The Commission shall evaluate compliance with its recommendations based on the information available, and shall decide on the publication of the final report by the vote of an absolute majority of its members.  The Commission shall also make a determination as to whether to include it in the Annual Report to the OAS General Assembly, and/or to publish it in any other manner deemed appropriate.  

Article 46.  Follow-Up  

          1.          Once the Commission has published a report on a friendly settlement or on the merits in which it has made recommendations, it may adopt the follow-up measures it deems appropriate, such as requesting information from the parties and holding hearings in order to verify compliance with friendly settlement agreements and its recommendations.  

          2.          The Commission shall report on progress in complying with those agreements and recommendations as it deems appropriate.  

Article 47.  Certification of Reports  

          The originals of the reports signed by the Commissioners who participated in their adoption shall be deposited in the files of the Commission.  The reports transmitted to the parties shall be certified by the Executive Secretariat. 

Article 48.  Interstate Communications  

          1.          A communication presented by a State party to the American Convention on Human Rights that has accepted the competence of the Commission to receive and examine such communications against other States parties shall be transmitted to the State party in question, whether or not it has accept the Commissionís competence in this respect.  If that competence has not been accepted, the communication shall be transmitted in order that the State concerned may exercise its option under Article 45, paragraph 3 of the Convention, to recognize that competence in the specific case that is the subject of the communication. 

          2.          If the State in question has accepted the Commissionís competence to consider a communication from another State party, the respective procedure shall be governed by the provisions of the present Chapter II, insofar as they apply. 

 

CHAPTER III  

PETITIONS CONCERNING STATES THAT ARE NOT  
PARTIES TO THE AMERICAN CONVENTION ON HUMAN RIGHTS
 

Article 49.  Receipt of the Petition  

          The Commission shall receive and examine any petition that contains a denunciation of alleged violations of the human rights set forth in the American Declaration of the Rights and Duties of Man in relation to the member states of the Organization that are not parties to the American Convention on Human Rights.  

Article 50.  Applicable Procedure  

          The procedure applicable to petitions concerning member states of the OAS that are not parties to the American Convention shall be that provided for in the general provisions included in Chapter I of Title II; in Articles 28 to 43 and 45 to 47 of these Rules of Procedure. 

 

CHAPTER IV

ON-SITE OBSERVATIONS  

Article 51.  Designation of the Special Commission  

          On-site observations shall in each case be conducted by a Special Commission named for that purpose.  The number of members of the Special Commission and the designation of its President shall be determined by the Commission.  In cases of great urgency, such decisions may be made by the President subject to the approval of the Commission.   

Article 52.  Disqualification  

          A member of the Commission who is a national of or who resides in the territory of the State in which the on-site observation is to be conducted shall be disqualified from participating in it.   

Article 53.  Schedule of Activities  

The Special Commission shall organize its own activities.  To that end, it may assign any activity related to its mission to its own members and, in consultation with the Executive Secretary, to any staff members or necessary personnel of the Executive Secretariat. 

Article 54.  Necessary Facilities and Guarantees  

In extending an invitation for an on-site observation or in giving its consent thereto, the State shall furnish to the Special Commission all necessary facilities for carrying out its mission.  In particular, it shall commit itself not to take any reprisals of any kind against any persons or entities cooperating with or providing information or testimony to the Special Commission. 

Article 55.  Other Applicable Standards  

          Without prejudice to the provisions in the preceding article, any on-site observation agreed upon by the Commission shall be carried out in accordance with the following standards:   

a.       the Special Commission or any of its members shall be able to interview any persons, groups, entities or institutions freely and in private;  

b.       the State shall grant the necessary guarantees to those who provide the Special Commission with information, testimony or evidence of any kind;   

c.       the members of the Special Commission shall be able to travel freely throughout the territory of the country, for which purpose the State shall extend all the corresponding facilities, including the necessary documentation;    

d.       the State shall ensure the availability of local means of  transportation;    

e.       the members of the Special Commission shall have access to the jails and all other detention and interrogation sites and shall be able to interview in private those persons imprisoned or detained;    

f.       the State shall provide the Special Commission with any document related to the observance of human rights that the latter may consider necessary for the presentation of its reports;    

g.       the Special Commission shall be able to use any method appropriate for filming, photographing, collecting, documenting, recording, or reproducing the information it considers useful;    

h.       the State shall adopt the security measures necessary to protect the Special Commission;    

i.        the State shall ensure the availability of appropriate lodging for the members of the Special Commission;    

j.        the same guarantees and facilities that are set forth in this article for the members of the Special Commission shall also be extended to the staff of the Executive Secretariat;    

k.       the expenses incurred by the Special Committee, each of its members and the staff of the Executive Secretariat shall be borne by the OAS, subject to the pertinent provisions.    

 

CHAPTER V

ANNUAL REPORT AND OTHER REPORTS OF THE COMMISSION  

Article 56. Preparation of Reports  

          The Commission shall submit an annual report to the General Assembly of the OAS.  In addition, the Commission shall prepare the studies and reports it deems advisable for the performance of its functions and shall publish them as it sees fit.  Once their publication is approved, the Commission shall transmit them, through the General Secretariat, to the member states of the OAS and its pertinent organs. 

Article 57.  Annual Report  

          1.          The Annual Report presented by the Commission to the General Assembly of the OAS shall include the following:  

a.       An analysis of the human rights situation in the hemisphere, along with recommendations to the states and organs of the OAS as to the measures necessary to strengthen respect for human rights;  

b.       a brief account of the origin, legal bases, structure and purposes of the Commission, as well as the status of ratifications of the American Convention and all other applicable instruments;    

c.       a summary of the mandates and recommendations conferred upon the Commission by the General Assembly and the other competent organs, and of the status of implementation of such mandates and recommendations;    

d.       a list of the periods of sessions held during the time period covered by the report and of other activities carried out by the Commission to achieve its purposes, objectives and mandates;    

e.       a summary of the activities of the Commission carried out in cooperation with other organs of the OAS and with regional or universal organs of the same type, and the results achieved;    

f.       the reports on individual petitions and cases whose publication has been approved by the Commission, as well as a list of the precautionary measures granted and extended, and of its activities before the Inter-American Court;  

g.       a statement on the progress made in attaining the objectives set forth in the American Declaration of the Rights and Duties of Man, the American Convention on Human Rights and all other applicable instruments;    

h.       any general or special report the Commission considers necessary with regard to the situation of human rights in the member states, and, as the case may be, follow-up reports noting the progress achieved and the difficulties that have existed with respect to the effective observance of human rights; and,  

i.        any other information, observation or recommendation that the Commission considers advisable to submit to the General Assembly, as well as any new activity or project that implies additional expenditures.      

          2.          For the preparation and adoption of the reports provided for in paragraph 1(h) of this article, the Commission shall gather information from all the sources it deems necessary for the protection of human rights. Prior to its publication in the Annual Report, the Commission shall provide a copy of said report to the respective State. That State may send the Commission the views it deems pertinent within a maximum time period of one month from the date of transmission.  The contents of the report and the decision to publish it shall be within the exclusive discretion of the Commission. 

Article 58.  Report on Human Rights in a State  

          The preparation of a general or special report on the status of human rights in a specific state shall meet the following standards:  

a.       after the draft report has been approved by the Commission, it shall be transmitted to the government of the member State in question so that it may make any observations it deems pertinent;  

b.       the Commission shall indicate to that State the deadline within which it must present its observations;    

c.       once the Commission has received the observations from the State, it shall study them and, in light thereof, may maintain or modify its report and decide how it is to be published;    

d.       if no observation has been submitted by the State as of the expiration of the deadline, the Commission shall publish the report in the manner it deems appropriate;  

e.       after its publication, the Commission shall transmit it through the General Secretariat to the member states and General Assembly of the OAS.  

 

CHAPTER VI

HEARINGS BEFORE THE COMMISSION  

Article 59.  Initiative  

          The Commission may decide to hold hearings on its own initiative or at the request of an interested party.  The decision to convoke the hearings shall be made by the President of the Commission, at the proposal of the Executive Secretary. 

Article 60.  Purpose  

          The hearings may have the purpose of receiving information from the parties with respect to a petition or case being processed before the Commission, follow-up to recommendations, precautionary measures, or general or particular information related to human rights in one or more members states of the OAS. 

Article 61.  Guarantees  

          The State in question shall grant the necessary guarantees to all the persons who attend a hearing or who in the course of a hearing provide information, testimony or evidence of any type to the Commission.  That State may not prosecute the witnesses or experts, or carry out reprisals against them or their family members because of their statements or expert opinions given before the Commission. 

Article 62.  Hearings on Petitions or Cases  

          1.          Hearings on petitions or cases shall have as their purpose the receipt of oral or written presentations by the parties relative to new facts and information additional to that which has been produced during the proceeding.  The information may refer to any of the following issues:  admissibility; the initiation or development of the friendly settlement procedure; the verification of the facts; the merits of the matter; follow-up on recommendations; or any other matter pertinent to the processing of the petition or case. 

          2.          Requests for hearings must be submitted in writing at least 40 days prior to the beginning of the respective session of the Commission.  Requests for hearings shall indicate their purpose and the identity of the participants.  

          3.          If the Commission accedes to the request or decides to hold a hearing on its own initiative, it shall convoke both parties.  If one party, having been duly notified, does not appear, the Commission shall proceed with the hearing. The Commission shall adopt the necessary measures to maintain in confidence the identity of the experts and witnesses if it believes that they require such protection.  

          4.          The Executive Secretariat shall inform the parties as to the date, place and time of the hearing at least one month in advance. However, that time period may be reduced if the participants grant the Executive Secretariat prior and express consent to that effect. 

Article 63.  Presentation and Production of Evidence  

          1.          During the hearing, the parties may present any document, testimony, expert report, or item of evidence.  At the request of a party or on its own initiative, the Commission may receive the testimony of witnesses or experts.  

          2.          With respect to the documentary evidence submitted during the hearing, the Commission shall grant the parties a prudential time period for submitting their observations.  

          3.          A party that proposes witnesses or experts for a hearing shall so state in its request.  For this purpose, it shall identify the witness or expert and the purpose of his or her witness or expert testimony.  

          4.          On deciding on the request for a hearing, the Commission shall also determine whether to receive the witness or expert testimony proposed. 

          5.          When one party offers witness and expert testimony, the Commission shall so notify the other party.  

          6.          In extraordinary circumstances and for the purpose of safeguarding the evidence, the Commission may, at its discretion, receive testimony in hearings without satisfying the terms of the previous paragraph.  In such circumstances, it shall take the measures necessary to guarantee the procedural balance between the parties in the matter submitted for its consideration.  

          7.          The Commission shall hear one witness at a time; the other witnesses shall remain outside the hearing room.  Witnesses may not read their presentations to the Commission.  

          8.          Prior to giving their testimony, witnesses and experts shall identify themselves and take an oath or make a solemn promise to tell the truth.  At the express request of the interested person, the Commission may maintain the identity of a witness or expert in confidence when necessary to protect him or her or other persons.

Article 64.  Hearings of a General Nature  

          1.          Persons who are interested in presenting testimony or information to the Commission on the human rights situation in one or more States, or on matters of general interest, shall direct a request for a hearing to the Executive Secretariat with proper notice prior to the respective session. 

2.          Persons making such a request shall indicate the purpose of their appearance, a summary of the information they will furnish, the approximate time required for that purpose, and the identity of the participants.    

Article 65.  Participation of the Commission Members  

          The President of the Commission may form working groups to participate in the program of hearings. 

Article 66.  Attendance  

          Attendance at the hearings shall be limited to the representatives of the parties, the Commission, the staff of the Executive Secretariat, and the Recording Secretaries.  The decision to allow the presence of other persons shall vest exclusively in the Commission, which shall so inform the parties prior to beginning the hearing, orally or in writing.  

Article 67.  Expenses  

          The party that proposes the production of evidence at a hearing shall cover all of the attendant expenses.  

Article 68.  Documents and Minutes of the Hearings  

          1.          A summary of the minutes of hearing shall be prepared and shall record the day and time it was held, the names of the participants, the decisions adopted, and the commitments assumed by the parties.  The documents submitted by the parties in the hearing shall be attached as annexes to the minutes.  

          2.          The minutes of the hearings are internal working documents of the Commission.  If a party so requests, the Commission shall provide a copy, unless, in the view of the Commission, its contents could entail some risk to persons. 

          3.          The Commission shall make a tape of the testimony and shall make it available to the parties that so request.


TITLE III  

RELATIONS WITH THE INTER-AMERICAN COURT OF HUMAN RIGHTS  

CHAPTER I 

DELEGATES, ADVISERS, WITNESSES, AND EXPERTS

 

Article 69.  Delegates and Assistants  

          1.          The Commission shall entrust one or more persons to represent it and participate as delegates in the consideration of any matter before the Inter-American Court of Human Rights.  If the petitioner so requests, the Commission shall include him or her as a delegate. 

          2.          In appointing such delegates, the Commission shall issue any instructions it considers necessary to guide their actions before the Court.    

          3.          When it designates more than one delegate, the Commission shall assign to one of them the responsibility of resolving situations that are not foreseen in the instructions, or of clarifying any doubts raised by a delegate.    

          4.           The delegates may be assisted by any person designated by the Commission.  In the discharge of their functions, the advisers shall act in accordance with the instructions of the delegates.    

Article 70.  Witnesses and Experts  

          1.          The Commission may also request the Court to summon other persons as witnesses or experts.   

          2.          The summoning of such witnesses or experts shall be in accordance with the Rules of Procedure of the Court.    

 

CHAPTER II 

PROCEDURE BEFORE THE COURT  

Article 71.  Notification of the Petitioner  

          If the Commission decides to refer a case to the Court, the Executive Secretary shall immediately give notice of that decision to the petitioner and to the victim. With that communication, the Commission shall transmit all the elements necessary for the preparation and presentation of the application.

Article 72.  Presentation of the Application  

          1.          When, in accordance with Article 61 of the American Convention on Human Rights, the Commission decides to bring a case before the Court, it shall submit an application specifying the:    

a.       claims on the merits, and reparations and costs sought;  

b.       parties in the case;  

c.       presentation of the facts;  

d.       information on the opening of the procedure and admissibility of the petition;  

e.       individualization of the witnesses and experts and the purpose of their statements;  

f.       legal grounds and the pertinent conclusions;  

g.       available information on the original complainant, the alleged victims, their family members or duly accredited representatives;  

h.       names of its delegates; and,  

i.        the report provided for in Article 50 of the American Convention.  

          2.           The Commission's application shall be accompanied by certified copies of the items in the file that the Commission or its delegate considers pertinent.     

Article 73.  Transmittal of other Elements  

          The Commission shall transmit to the Court, at its request, any other evidence, document or information concerning the case, with the exception of documents concerning futile attempts to reach a friendly settlement.  The transmittal of documents shall in each case be subject to the decision of the Commission, which shall withhold the name and identity of the petitioner, if the latter has not authorized that this be revealed.      

Article 74.  Provisional Measures  

          1.          The Commission may request that the Court adopt provisional measures in cases of extreme gravity and urgency, and when it becomes necessary to avoid irreparable damage to persons in a matter that has not yet been submitted to the Court for consideration.    

          2.           When the Commission is not in session, that request may be made by the President, or in his or her absence, by one of the Vice-Presidents in order of precedence.  

 

 

TITLE IV

FINAL PROVISIONS  

Article 75.  Calendar Computation  

          All time periods set forth in the present Rules of Procedure --in numbers of days--will be understood to be counted as calendar days. 

Article 76.  Interpretation  

          Any doubt that might arise with respect to the interpretation of these Rules of Procedure shall be resolved by an absolute majority of the members of the Commission.    

Article 77.  Amendment of the Rules of Procedure  

The Rules of Procedure may be amended by an absolute majority of the members of the Commission.    

Article 78.  Transitory Provision  

          These Rules of Procedure, whose texts in Spanish and English are equally authentic, shall enter into force on May 1, 2001.

 

[ Table of Contents | Previous | Next ]