PROCEEDINGS SUBSEQUENT TO REPORT 114/01
On October 15, 2001, the Commission adopted Report 114/01
pursuant to Article 43 of its Rules of Procedure, setting forth its
analysis of the record, findings and recommendations in this matter.
Report 114/01 was transmitted to the State by note dated
October 19, 2001, with a request that the State provide information as
to the measures it had taken to comply with the recommendations set
forth in the report within a period of two months, in accordance with
Article 43(2) of the Commission’s Rules.
By communication dated December 26, 2001 and received by the
Commission on December 27, 2001, the State delivered a response to the
Commission’s request for information, in which it requested that the
Commission “reconsider the legal basis of its conclusions and
recommendations, withdraw Report No. 114/01, and order the petition
Prior to discussing these objections in further detail, the
Commission emphasizes that the purpose of transmitting a preliminary
merits report to the state concerned in accordance with Article 43(2)
of the Commission’s Rules of Procedure is to receive information
concerning what measures have been adopted to comply with the
At this stage of the process, the parties have had
opportunities to argue their positions, the admissibility and merits
phases of the process are completed, and the Commission has rendered
its decision. Therefore, while a state may provide its views on the
factual and legal conclusions reached by the Commission in its
preliminary report, it is not for a state at this point to reiterate
its previous arguments, or to raise new arguments, concerning the
admissibility or merits of the complaint before the Commission, nor is
the Commission obliged to consider any such submissions prior to
adopting its final report on the matter.
In light of the significance of the legal issues raised in this
matter and their potential implications beyond of the circumstances of
the present case, however, and without detracting from the procedural
considerations noted above, the Commission has decided to summarize
and provide observations on certain aspects of the State’s response.
In this respect, the State based its rejection of the Commission’s
report on three grounds: that the American Declaration on the Rights
and Duties of Man is no more than a recommendation to the American
states that does not create legally binding obligations; that even if
it were possible for a state to violate the Declaration, the petition
does not state facts that would constitute a violation of any of the
provisions of the Declaration; and that the meaning and extent of the
United States’ obligations pursuant to the Vienna Convention on
Consular Relations does not fall within the competence of the
The United States contended in particular that Mr. Martinez
Villareal’s arguments concerning his rights to a fair trial and to
due process, as well as those pertaining to his mental competency,
have been carefully reviewed by the courts of the United States and
that he continues to seek relief through domestic procedure available
to him. The State argued further that, notwithstanding these
protections, the Commission found Mr. Martinez Villareal’s
conviction and sentence to be fundamentally flawed because he was not
advised at the time of his arrest that he could request consular
assistance from Mexico as required under Article 36 of the Vienna
Convention on Consular Relations. The State challenged the Commission’s
reasoning in this respect, and disputed in particular the Commission’s
reliance upon the views of the Inter-American Court of Human Rights in
its Advisory Opinion OC-16/99, as “the United States fundamentally
disagrees with the Court’s reasoning and conclusions in that
The State also reiterated its submission before the
Inter-American Court and before this Commission that the “consular
notification obligation of the Vienna Convention establishes neither a
prerequisite for the observance of human rights in criminal cases, nor
an independent source of individual human rights.” In addition, the
State asserted that the Commission’s findings are beyond the
appropriate scope of its competence, to the extent that the Commission
suggests that a violation of the obligations of Article 36 of the
Vienna Convention requires that a criminal defendant be accorded a new
trial or set free, notwithstanding the Commission’s finding that it
did not consider itself competent to adjudicate upon the State’s
responsibility for violations of the Vienna Convention on Consular
Relations per se.
Finally, the State provided the following concluding
With regard to the State’s assertion that the American
Declaration constitutes no more than a recommendation to OAS member
states, the Commission reiterates the well-established precept,
articulated in the admissibility report in this matter, that the
American Declaration is a source of international obligations for the
United States and other OAS member states that are not parties to the
American Convention on Human Rights.
As to the Commission’s competence in relation to the Vienna
Convention on Consular Relations, it was clearly determined in the
merits decision in this matter that the Commission may properly
consider the extent to which a state party to the Vienna Convention on
Consular Relations has given effect to the requirements of Article 36
of that treaty, insofar as these requirements constitute part of the corpus juris gentium of international legal rules applicable in
evaluating that state’s respect for the rights under the American
Declaration. As the Commission concluded in the circumstances of Mr.
Martinez Villareal’s complaint, non-compliance with the obligation
under Article 36 can have a direct and deleterious effect on the
quality of due process afforded to a defendant and thereby call into
question compliance with the requirements of Articles XVIII and XXVI
of the American Declaration as well as similar provisions of other
international human rights instruments.
With regard to the State’s concluding submissions, the
Commission is encouraged that the United States has taken measures to
enhance compliance with its obligations under the Vienna Convention on
Consular Relations regarding consular notification and access,
fundamental as these obligations are to the proper and effective
guarantee of the rights of individuals who find themselves arrested,
committed to prison or to custody pending trial or otherwise detained
in a state of which they are not nationals. To this extent, the State
appears to have taken some measures to implement the Commission’s
second recommendation, as reproduced below. No information has been
provided, however, concerning implementation of the Commission’s
first and most immediate recommendation, namely to provide an
effective remedy to the individual victim in this case. The Commission
therefore concludes that the State has failed to take measures to
comply fully with the Commission’s recommendations. On this basis,
and having considered the State's observations, the Commission has
decided to ratify its conclusions and reiterate its recommendations,
as set forth below.
The Commission, based upon the foregoing considerations of fact
and law, and in light of the response of the State to Report 114/01,
hereby ratifies the following conclusions.
The Commission hereby concludes that the State is responsible
for violations of Articles XVIII and XXVI of the American Declaration
in the trial, conviction and sentencing to death of Ramón Martinez
Villareal. The Commission also concludes that, should the State
execute Mr. Martinez Villareal pursuant to the criminal proceedings at
issue in this case, the State will perpetrate a grave and irreparable
violation of the fundamental right to life under Article I of the
In accordance with the analysis and conclusions in the present
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS REITERATES THE FOLLOWING
RECOMMENDATIONS TO THE UNITED STATES:
Provide Mr. Martinez Villareal with an effective remedy, which
includes a re-trial in accordance with the due process and fair trial
protections prescribed under Articles XVIII and XXVI of the American
Declaration or, where a re-trial in compliance with these protections
is not possible, Mr. Martinez Villareal’s release.
Review its laws, procedures and practices to ensure that
foreign nationals who are arrested or committed to prison or to
custody pending trial or are detained in any other manner in the
United States are informed without delay of their right to consular
assistance and that, with his or her concurrence, the appropriate
consulate is informed without delay of the foreign national’s
circumstances, in accordance with the due process and fair trial
protections enshrined in Articles XVIII and XXVI of the American
NOTIFICATION AND PUBLICATION
In light of the above, and given the exceptional circumstances
of the present case, where the victim remains under imminent threat of
execution pursuant to a death sentence that the Commission has
determined to be invalid and where the State has clearly indicated its
intention not to comply with the Commission’s recommendations
concerning violations of the American Declaration of the Rights and
Duties of Man, the Commission has decided pursuant to Article 45(2)
and (3) of its Rules of Procedure to set no further time period prior
to publication for the parties to present information on compliance
with the recommendations, to transmit this Report to the State and to
the Petitioners, to make this Report public, and to include it in its
Annual Report to the General Assembly of the Organization of American
States. The Commission, according to the norms contained in the
instruments that govern its mandate, will continue evaluating the
measures adopted by the United States with respect to the above
recommendations until they have been complied with by the United
Done and signed at the headquarters of the Inter-American
Commission on Human Rights, in Washington, D.C., on this the 10th
day of October 2002. Signed: Juan Méndez, President; Marta Altolaguirre, First
Vice President; José Zalaquett, Second Vice President; Julio Prado
Vallejo, and Clare K. Roberts, Commission members.
OPINION OF COMMISSIONER HÉLIO BICUDO
Although I endorse the findings, reasoning and motives of my
fellow commissioners in this report, I would like to take the matter
further and express my understanding concerning the lawfulness of the
death penalty in the inter-American system.
The American Declaration of the Rights and Duties of Man
(hereinafter "American Declaration"), approved at the Ninth
International American Conference, which took place in Santa Fe de
Bogotá in May and June of 1948, affirms that “Every human being has
the right to life, liberty and the security of his person” (Article
1) and, moreover, that “All persons are equal before the law and
have the rights and duties established in this Declaration, without
distinction as to race, sex, language, creed or any other factor”
Article 4 of the American Convention on Human Rights
(hereinafter "American Convention"), approved on November
22, 1969 in San Jose, Costa Rica, states that “Every
person has the right to have his life respected.
The right shall be protected by law and, in general, from the
moment of conception. No
one shall be arbitrarily deprived of his life.”
At the same time, the American Convention, by including the
right to personal integrity in the civil and political rights
framework, affirms that “No one shall be subjected to torture or to
cruel, inhumane, or degrading punishment or treatment.”
However, death penalty is provided for in the American
Convention in its original version. Article 4, Section 2 allows the death penalty to be applied
by member states only for the most serious crimes.
There is a contradiction among the aforementioned articles
which repudiate torture, cruel, inhumane or degrading punishment or
The American Declaration considers life to be a fundamental
right, and the American Convention condemns torture or the imposition
of cruel, inhumane or degrading punishment or treatment.
The elimination of a life could be deemed torture or cruel,
inhumane or degrading punishment or treatment.
It seems that the tolerance expressed in Article 4, Section 2
of the American Convention reveals the sole adoption of a political
position of conciliation between all member states in order to approve
a more general article, the one about the right to life.
Before analyzing what it means for some States to retain the
death penalty as a part of their legal systems, it is important to
note that the Inter-American Convention to Prevent and Punish Torture,
signed in Cartagena de Indias, Colombia, on December 9th,
1985, describes the meaning of torture as follows: “Torture shall be
understood to be any act intentionally performed whereby physical or
mental pain or suffering is inflicted on a person for purposes of
criminal investigation, as a means of intimidation, as
personal punishment, as a preventive measure, as a penalty, or
for any other purpose” (Article 2).
Notice that this article addresses torture as a personal
punishment or penalty in all circumstances.
The death penalty brings immeasurable suffering to the
individual. Is it
possible to imagine the anguish that the individual feels when he/she
is informed of the verdict? Or
the moments leading up to the actual execution?
Would it be possible to evaluate the suffering of those who
wait on death row for execution, in some cases for several years?
In the United States, fifteen, sixteen or seventeen year-old
minors, who committed homicide and subsequently received the death
penalty, wait for fifteen years or longer for their execution.
Is it possible to imagine a fate worse than remaining between
hope and despair until the day of execution?
The OAS member states, by adopting the Convention on Forced
Disappearance of Persons, reaffirms that “the true meaning of
American solidarity and good neighborliness can be none other than
that of consolidating in the Hemisphere, in the framework of
democratic institutions, a system of individual freedom and social
justice based on respect for essential human rights.”
It is important to mention that in 1998 and 1999, the United
States was the only country in the world known for executing minors
under 18 years of age. To
that extent, it is important to note that the United States has
accepted the International Covenant on Civil and Political Rights
since September 1992, Article 6(5) of which establishes that the death
penalty cannot be imposed on minors under 18 years old or on pregnant
women. The U.S. Senate
opted to express its reservation to this section at the moment of its
ratification but currently there is an international consensus opposed
to that reservation based on Article 19(c) of the Vienna Convention on
the Law of Treaties. This
Convention gives the State the possibility to formulate reservations,
but these reservations cannot be incompatible with the object and
purpose of the treaty.
In June 2000, Shaka Sankofa, formerly known as Gary Graham, was
convicted in the State of Texas for a crime he committed when he was
17 years old. He was
executed after waiting 19 years on death row, although the
Inter-American Commission on Human Rights (hereinafter “IACHR” or
“Commission”) had formally presented requests to the American
government to suspend the act until the case was decided by the
Commission. There were
serious doubts regarding whether Shaka Sankofa had really committed
the crime. The U.S.
Government did not respond to the Commission’s recommendation but
could not escape from the jurisdiction of the IACHR on the protection
of human rights, according to the American Declaration.
The Commission thus sent out a press release condemning the
U.S. decision, since it was not in accordance with the inter-American
system of protection of human rights.
The Inter-American Convention on the Prevention, Punishment and
Eradication of Violence against Women (hereinafter "Convention of
Belem do Pará"), approved in Belem do Para, Brazil, on June 9,
1994, does not allow the imposition of the death penalty on women.
Article 3 states “ Every woman has the right to be free from
violence in both the public and private spheres” and Article 4
states that “Every woman has the right to have her life respected”.
Regarding the duties of States, the Convention of Belem do
Pará establishes that States should “refrain from engaging in any
act or practice of violence against women and ensure that their
authorities, officials, personnel, agents, and institutions act in
conformity with this obligation”.
Therefore, if every woman has the right to life, and the right
to be free from violence, and the State is denied the practice of
violence against women, it seems that the Convention of Belem do Pará
prohibits the application of the death penalty to women.
There is no discrimination against men or children.
It cannot be argued that it is “positive discrimination” or
“affirmative action”, because it only serves to preserve the
inherent rights of the individual.
For instance, pregnant women or women with children are
entitled to rights based solely on the fact of their exclusive female
condition. Thus, the same
rights cannot be extended to men.
Positive discrimination is usually applied to bring about
equality, through temporary and proportional measures, to groups of
people that experience de facto inequality.
There is no inequality between men and women with regard to the
right to life. In any
case, the imposition of the death penalty is not a proportional
measure, as we will see later on.
When it comes to common rights–such as the right to life-we
cannot argue positive discrimination.
All persons are equal before the law.
The prohibition of the death penalty for women was based on
both the female condition and the human condition.
Article 24 of the American Convention affirms that all persons
are equal before the law, and consequently, they are entitled, without
discrimination, to equal protection of the law.
Although that Convention does not define discrimination, the
IACHR understands that discrimination includes distinction, exclusion,
restriction or preference which has the purpose or effect of
nullifying or impairing the recognition of human rights and
fundamental freedoms in the political, economic, social cultural or
any other field of public life (Manual on the Preparation of Reports
on Human Rights, International Covenant on Civil and Political Rights,
It is also important to note that Article 37(a) of the
Convention on the Rights of the Child prohibits the imposition of the
death penalty on minors under 18 years of age.
The above-mentioned Convention is considered a universal legal
instrument in the area of human rights.
(Only the United States and Somalia have failed to ratify it.)
Article 37 of the Convention on the Rights of Child states:
“No child shall be subjected to torture or other cruel,
inhuman or degrading treatment or punishment.
Neither capital punishment nor life imprisonment without
possibility of release shall be imposed for offences committed by
persons below eighteen years of age.”
Although the U.S. has not ratified the Convention on the Rights
of the Child, it became a signatory to the Convention in February
1995, and has thus accepted its legal obligations.
Article 18 of the Vienna Convention on the Law of Treaties
establishes that the States that have signed a treaty, but not
ratified it, shall refrain from engaging in any act that is contrary
to its purpose until it has decided to announce its intention of not
becoming part of that treaty. Despite
the fact that the U.S. has not ratified the Convention, the U.S. State
Department has already recognized that the Vienna Convention on the
Law of Treaties serves as a precedent for international treaty
proceedings. The U.S. State Department considers the Convention a
declaration of customary law based on the Vienna Convention on the Law
of Treaties, which establishes the importance of treaties as sources
of international law as well as a method of peaceful development and
cooperation between nations, no matter what their Constitutions and
social systems entail.
As mentioned above, the imposition of the death penalty against
women is not a case in which positive discrimination could be applied
because Article 37(a) of the Convention on the Rights of the Child
aims to preserve rights that are created not only for children
but for all human beings.
If that is the case, then Article 4 of the American Convention
has lost its previous meaning. Therefore
States that have signed and ratified it as well as other international
instruments cannot impose the death penalty upon any person,
regardless of gender or any other personal condition.
The issue will be examined under legal hermeneutics of positive
law. International law presupposes [normative] dispositions that are
above [the] State [law]. As
set forth by the illustrious Italian jurist, Norberto Bobbio, universalism–which
international law attempts to embody–reappears today, specially
after the end of WWII and the creation of the UN, no longer as a
belief in an eternal natural law [order], but as the will to
constitute, in the end, a single body of positive law of the social
and historical development (as natural law and the state of nature).
He also ponders that the idea of the single global State is the
final limit of the idea of the contemporary juridical universalism,
that is the establishment of a universal positive law (Cf. Teoria
do Ordenamento Jurídico, Universidade de Brasília, 1991, p.
In the present case, we cannot allow a previous law with the
same content of a new law to supersede the new law.
That would be considered as antinomy, and therefore it has to
be solved. What are the
rules that should prevail? There is no doubt that they are
incompatible. But how could we solve the problem?
According to Mr. Bobbio, the criteria to solve an antinomy are
the following: a) chronological criteria, b) hierarchical criteria, c)
According to the chronological criteria the new law prevails
over the previous law–lex posteriori derogat priori. According to the hierarchy criteria,
international law prevails over national law.
Lastly, the specialty criteria could also apply in this case,
since it is a specific law with a specific purpose.
It is impossible to argue that death penalty as described in
the Section 2 of Article 4 of the American Convention is a specific
law as opposed to general law of the right to life.
It is also not possible to accept the idea that death penalty
is considered a particular penalty that does not entail a violation of
right to life or torture or any other cruel or inhumane treatment.
The Inter-American Court of Human Rights affirms that the
imposition of restrictions on the death penalty should be effected by
setting up a limit through an irreversible and gradual process, which
would be applied both in countries that have not abolished the death
penalty and in those that have done so.
(Advisory Opinion – OC-3/83)
The Court also understands that the American Convention is
progressive to the extent that, without deciding to abolish the death
penalty, it adopts certain measures to limit it and diminish its
application until it is no longer applicable.
It is worth reviewing the preparatory work of the American
Convention that illustrates the interpretation of Article 4.
The proposal to outlaw the death penalty made by several
delegations did not receive any opposing vote, despite the fact that
the majority of votes had not been reached.
The development of negotiations in the Conference can be
reviewed in the following declaration presented before the Plenary
Session of Completion and signed by 14 of 19 participants (Argentina,
Costa Rica, Colombia, Dominican Republic, Ecuador, El Salvador,
Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Uruguay and
In agreement with these assertions, the Commission’s
Rapporteur made clear, on this article, his firm tendency towards the
abolition of this penalty. (Acts
and documents, supra, n.296)
Moreover, the rule of law (Estado de derecho) implies, when punishment
is imposed, the knowledge of what the penalty actually means.
When the purpose of the punishment applied is not only
retribution, but the recuperation or rehabilitation of the convict, he
or she knows what will happen in his or her future.
If the punishment is purely retributive, as in a sentence
imposing imprisonment for life, the convict still envisages his
future. But if the
convict is sentenced to death, the State does not point to what the
elimination of his being will bring him.
Science, with all its developments, has not managed, up to now,
to unveil the after-death: future life, with prize or punishment? Pure
and simple elimination?
In this sense, the rule of law forbids the imposition of a
penalty whose consequences cannot be unveiled.
In truth, all punishment enacted by the legislator constitutes species
of sanctions, distributed according to a rational scale that attempts
to take into consideration a series of factors specific to each
hypothesis of unlawfulness.
The right and obligation to punish which belongs to the State
expresses itself in a variety of figures and measures, according to
gradual solutions, measurable in money or in amounts of time.
This gradual order is essential to criminal justice, for it
would not be realized without a superior criterion of equality and
proportionality in the distribution of punishment, for transgressors
would then receive more than their just deserts.
With the imposition of the death penalty, however, the
aforementioned serial harmony is abruptly and violently shattered; one
jumps from the temporal sphere into the non-time of death.
With what objective criterion or with what rational measure
(for ratio means reason and
measure) does one shift from a penalty of 30 years imprisonment or a
life sentence to a death penalty? Where and how is proportion
maintained? What is the scale that ensures proportionality?
It could be argued that there is also a qualitative difference
between a fine and detention, but the calculus of the former can be
reduced to chronological criteria, being determined, for instance, in
terms of work days lost, so that it has a meaning of punishment and
suffering to the perpetrator, linked to his patrimonial situation.
In any circumstance, these are rational criteria of
convenience, susceptible to contrast with experience, that govern the
passage from one type of punishment to the other, whereas the notion
of “proportion” is submerged in face of death.
Summing up, the option for the death penalty is of such order
that, as Simmel affirmed, it emphasizes
all contents of the human life, and it could be said that it is
inseparable from a halo of enigma and mystery, of shadows that cannot
be dissipated by the light of reason: to attempt to fit it into the
scheme of penal solutions is equal to depriving it from its essential
meaning to reduce it to the violent physical degradation of a body
(quoted by Miguel Reale, in O
Direito como experiencia).
Hence, the conclusion of the eminent philosopher and jurist
Miguel Reale: Analyzed according to its semantic values, the concept
of punishment and the concept of death are logically and ontologically
impossible to reconcile and that, therefore the “death penalty” is
a “contradictio in terminis”
(cf. O Direito como Experiencia,
2nd edition, Saraiva, Sao Paulo, Brasil)
The jurist Hector Faundez Ledesma writes on this topic: “as
the rights consecrated in the Convention are minimum rights, it cannot
restrict their exercise in a larger measure than the one permitted by
other international instruments.
Therefore, any other international obligation assumed by the
State in other international instruments on human rights is of utmost
importance, and its coexistence with the obligations derived from the
Convention must be taken into consideration insofar as it might be
more favorable to the individual.”
“The same understanding”, continues the jurist, “is
extensive to any other conventional provision that protects the
individual in a more favorable way, be it contained in a bilateral or
multilateral treaty, and independently of its main purpose” (El
Sistema Interamericano de Protección de los Derechos Humanos,
1996, pp. 92-93).
Moreover, Article 29(b) of the American Convention establishes,
in the same line of thought, that no disposition of the Convention may
be interpreted in the sense of “restricting the enjoyment or
exercise of any right or freedom recognized by the virtue of the laws
of any State Party”. In
this sense, it is opportune to refer to the IACHR report on Suriname,
and the Advisory Opinions 8 and 9 (of the Inter-American Court on
Human Rights, 1987)
On this opportunity, the IACHR affirmed that the prohibition of
imposing the death penalty in cases where the offender was a minor at
the time of the crime was an emerging principle of international law.
Twelve years later there is no doubt that this principle is
totally consolidated. The
ratification of the Convention on the Rights of the Child by 192
States, where the death penalty of minor offenders is prohibited, is a
irrefutable proof of the consolidation of the principle (Cf. Report
presented by Amnesty international to the IACHR, in Washington, on
March 5th, 1999).
It is true that the Universal Declaration on Human Rights does
not refer specifically to the prohibition of the death penalty, but
consecrates in its Article 3 the right of every person to his life,
liberty and security (the same provision can be found on Article I of
the American Declaration of the Rights and Duties of Man).
Adopted by the General Assembly of the United Nations in 1948,
under the guise of a recommendatory resolution, the Universal
Declaration is held–by many important scholars–to be a part of the
body of international customary law and a binding norm (jus cogens)–as defined in Article 53 of the Vienna Convention on
the Law of Treaties. Mutatis
Mutandi, it would be lawful to affirm that the Convention on the
Rights of the Child, by reason of its breadth and binding character,
must also be observed by the only two States that have not ratified
it, as has already been said, and has been recognized by the
Department of State of the United States of America.
It is convenient to observe, furthermore, that the European
Court of Human Rights, in its decision in the Soering Case–Jens
Soering, born in Germany, in detention in England and submitted to an
extradition procedure on behalf of the government of the United States
pending charges of murder committed in Virginia, a State that punishes
this crime with the death penalty–made opportune comments regarding
Article 3 of the European Convention, which establishes the
interdiction of torture, inhuman, cruel or degrading treatment or
punishment. The Court
considered that the request could not be granted unless the person
subject to extradition would be guaranteed his or her rights under
Article 3 of the Convention (cf. Jurisprudence
de la Cour europeenne des droits de l’homme, 6th ed.
1998, Sirey, Paris, pp. 18 and ff.).
The Court concluded that the extradition to a country that
applied the death penalty did not constitute a breach of the right to
life or to the right to personal integrity since the death penalty is
not, in itself, explicitly prohibited by the European Convention.
Nonetheless, the possibility that the condemned could spend years
waiting for the moment–totally unpredictable, by the way–of the
execution of the punishment, the so called “death row syndrome”,
was considered by the Court as constituting a cruel treatment and,
therefore, a breach of the right to personal integrity.
It is, doubtlessly, an ambiguity: if there is a delay in
imposing the penalty, there is violation of the right; if the sentence
is carried out immediately, the State’s action will not be
considered a breach of the fundamental right to life.
This decision gives rise to the conclusion that little by
little, the traditional vision, the positivistic application of the
law, is being abandoned. Instead
of a literal interpretation of the texts in discussion, a teleological
hermeneutics is searched, in this case, of the European Convention, to
achieve the major conclusion that the death penalty should not be
permitted in any hypothesis.
Therefore, the absolute prohibition, in the European
Convention, of the practice of torture or of inhuman or degrading
treatment or punishment shows that Article 3, referred to above,
proclaims one of the fundamental values of democratic societies.
The judgment underlines that provisions in the same sense can
be found in the International Covenant on Civil and Political Rights
of 1966, and in the American Convention on Human Rights of 1969,
protecting, in all its extension and depth, the right of the human
person. The Court concludes that it is an internationally approved
It is true that the concept of inhuman or degrading treatment
or punishment depends upon a whole set of circumstances.
It is not for any other reason that one should have utmost care
to ensure the fair balance between the requirements of the communities’
general interest and the higher imperatives of the protection of the
fundamental rights of the individual, that take form in the principles
inherent to the European Convention taken as a whole.
Amnesty International has affirmed that the evolution of the
norms in Western Europe concerning the death penalty leads to the
conclusion that it is an inhuman punishment, within the meaning of
Article 3 of the European Convention.
It is in this sense that the judgment of the court in the Soering
case should be understood.
For its part, the Inter-American Court on Human rights has
already affirmed that “The right
to life and the guarantee and respect thereof by States cannot be
conceived in a restrictive manner.
That right does not merely imply that no person may be
arbitrarily deprived of his or her life (negative obligation).
It also demands of the States that they take all appropriate
measures to protect and preserve it (positive obligation).”
(Cf. Repertorio de Jurisprudencia del Sistema Interamericano de
Derechos humanos, 1998, Washington College of Law, American
It was for the same reason that the European Court, in the
aforementioned Soering decision, considered that “Certainly,
the Convention is a living instrument which ... must be interpreted in
the light of present-day conditions"; and, in assessing whether a
given treatment or punishment is to be regarded as inhuman or
degrading for the purposes of Article 3 (art. 3), "the Court
cannot but be influenced by the developments and commonly accepted
standards in the penal policy of the Member States of the Council of
Europe in this field” (par. 102).
In fact, to determine whether the death penalty, because of
current modifications of both domestic and international law,
constitutes a treatment prohibited by Article 3, it is necessary to
take into consideration the principles that govern the interpretation
of that Convention. In
this case, both in the European Convention and in the American
Convention, “No one shall be subjected to torture or to inhuman or
degrading treatment or punishment” (Article 3 of the European
Convention); “No one shall be subjected to torture or to cruel,
inhuman, or degrading punishment or treatment.” (Article 5(2) of the
American Convention on Human Rights).
56. In the same line of thought, in the case between Ireland and the United Kingdom, the European Court had already decided that “The Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim's conduct (…) Article 3 (Art. 3) makes no provision for exceptions (…)the only relevant concepts are "torture" and "inhuman or degrading treatment", to the exclusion of "inhuman or degrading punishment".(par. 163-164)
More recently, in its Advisory Opinion OC-16, of October 1st,
1999, requested by Mexico, the Inter-American Court on Human Rights
considered it opportune to state that, as regards the right to
information about consular assistance, as part of the due process
guarantees, that “in a previous examination of Article 4 of the
American Convention, the Court observed that the application and
imposition of capital punishment are governed by the principle that
"no one shall be arbitrarily deprived of his life." Both
Article 6 of the International Covenant on Civil and Political Rights
and Article 4 of the Convention require strict observance of legal
procedure and limit application of this penalty to "the most
serious crimes." In both instruments, therefore, there is a
marked tendency toward restricting application of the death penalty
and ultimately abolishing it. (par. 134)
It is reasonable to ask what is still lacking for the universal
elimination of the death penalty? Simply the total recognition of the
rights emanated from the treaties.
In support of this idea, we find the concurring vote, in the
above-mentioned Advisory Opinion requested by Mexico, of Judge
Cançado Trindade, wherein relevant assertions are made concerning the
hermeneutics of law in face of the new protection demands.
In his concurring vote, the illustrious international legal
scholar and current President of the Court (1999/2001) underlines that
“The very emergence and consolidation of the corpus
juris of the International Law of Human Rights are due to the
reaction of the universal
juridical conscience to
the recurrent abuses committed against human beings, often warranted
by positive law: with that, the Law (el
Derecho) came to the encounter of the human being, the ultimate
addressee of its norms of protection.” (Concurring vote, par.4)
The author of the concurring vote also warns that “In the
same sense the case-law of the two international tribunals of human
rights in operation to date has oriented itself, as it could not have
been otherwise, since human rights treaties are, in fact, living
instruments, which accompany the evolution of times and of the social
milieu in which the protected rights are exercised” (ibid,
In this sense the European Court on Human Rights, in its Tyrer
vs. United Kingdom Case (1978), when determining the unlawfulness
of physical punishment applied to teenagers in the Isle of Man,
affirmed that the European Convention on Human Rights is “a living
instrument which ... must be interpreted in the light of present-day
Finally, with the demystification of the postulates of the
voluntarist legal positivism, it has become clear that the answer to
the problem of the basis and the validity of general international law
can only be found in the universal legal consciousness, from the
affirmation of an idea of objective justice.
Furthermore, in a meeting of representatives of the human
rights treaty bodies, it was emphasized that conventional procedures
are part of a broad international system of human rights protection,
which has–as a basic postulate–the indivisibility of human rights
(civil, political, economic, social and cultural).
To ensure in practice the universalization of human rights, the
meeting recommended the universal ratification, up to the year 2000,
of the six core human rights treaties of the United Nations (the two
International Covenants of 1966; the conventions on the elimination of
racial discrimination and discrimination against women; the UN
Convention against Torture; and the Convention on the Rights of the
Child), of the three regional conventions on human rights (European,
American and African), and the ILO Conventions that concern basic
human rights. The
representatives at the meeting warned that the non-compliance by the
states in respect of their obligation to ratify constituted a breach
of conventional international obligations and that the invocation of
state immunity, in this context, would result in a “double standard”
that would punish the States that duly complied with their
Trindade, Tratado de Direito Internacional dos Direitos Humanos, vol 1, Fabris
Ed. 1997, pp. 199-200)
Article 27 of the Vienna Convention on the Law of Treaties of
1969 forbids the invocation of domestic law to justify the
non-compliance of an international obligation. Moreover, according to
Article 31 of the Vienna Convention: “A treaty shall be interpreted
in good faith in accordance with the ordinary meaning to be given to
the terms of the treaty in their contest and in light of its object
and purpose”. It
follows also that, according to the doctrine of “effet utile”, the
interpreter must not deny any term of a normative provision its value
in the text: no provision can be interpreted as not having been
In effect, the Inter-American Court, in its Advisory opinion
OC-14/94, has held that: “Pursuant to international law, all
obligations imposed by it must be fulfilled in good faith; domestic
law may not be invoked to justify nonfulfillment. These rules may be deemed to be general principles of law and
have been applied by the Permanent Court of International Justice and
the International Court of Justice even in cases involving
constitutional provisions [Greco-Bulgarian “Communities”, Advisory
Opinion, 1930, P.C.I.J., Series B, Nº 17, p.32; Treatment of Polish
Nationals and Other Persons of Polish Origin or Speech in the Danzig
Territory, Advisory Opinion, 1932, P.C.I.J., Series A/B, Nº 44, p.
24; Free Zones of Upper Savoy and the District of Gex, Judgment, 1932,
P.C.I.J., Series A/B, Nº 46, p. 167; and, I.C.J. Pleadings,
Applicability of the Obligation to Arbitrate under Section 21 of the
United Nations Headquarters Agreement of 26 June 1947 (Case of the PLO
Mission) (1988) 12, at 31-2, para. 47].” (par. 35)
In view of the considerations presented here, it can be said
that the norm of article 4, section 2 of the American Convention has
been superseded by the aforementioned conventional provisions,
following the best hermeneutic of the International Law of Human
Rights, with the result that it is prohibitive, for domestic law–even
if older than the American Convention–to apply cruel punishment,
such as the death penalty.
This result also follows from the principle of the
International Law of Human Rights that all action must have as its
basic goal the protection of victims.
In light of these considerations, provisions such as Article
4(2) of the American Convention on Human Rights should be disregarded,
in favor of legal instruments that better protect the interests of the
victims of violations of human rights.
Done and signed by the Inter-American Commission on Human
Rights, in the city of Washington, D.C., the 15th day of
the month of October, 2001. (Signed): Hélio Bicudo.
of the Commission’s Rules of Procedure provides: “If [the
Commission] 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.” [emphasis added]
11.753, Report No. 108/00, Ramón Martinez Villareal v. United
States (Admissibility), Annual Report of the IACHR 2000, para. 57,
n. 7, citing, inter alia,
I/A Court H.R., Advisory Opinion OC-10/89, Interpretation of the
American Declaration of the Rights and Duties of Man Within the
Framework of Article 64 of the American Convention on Human Rights,
July 14, 1989, Ser. A No. 10 (1989), paras. 35-45.
preliminary merits report in this matter was approved pursuant to
Article 43 of the Commission’s Rules of Procedure, the Commission’s
composition included Prof. Hélio Bicudo, who at that time adopted a
separate opinion. Accordingly, Prof. Bicudo’s separate opinion has
been included with the final report in this case approved under
Article 45 of the Commission’s Rules, even though Prof. Bicudo’s
term as a Commission Member expired on December 31, 2001.
Nº 9/00, Washington, D.C. June 28, 2000:
“The Inter-American Commission on Human Rights deplores the execution of Shaka Sankofa, formerly known as Gary Graham, in the state of Texas on June 22, 2000. Mr. Sankofa was executed, despite formal requests by the Commission for the United States to ensure a suspension of Mr. Sankofa's execution pending the determination of a complaint lodged on his behalf before the Commission.
1993, the Commission received a complaint on behalf of Mr. Sankofa,
alleging that the United States, as a Member State of the
Organization of American States, had violated Mr. Sankofa's human
rights under the American Declaration of the Rights and Duties of
Man, including his right to life under Article I of that instrument.
In particular, it was contended that Mr. Sankofa was sentenced to
death for a crime that he was alleged to have committed when he was
17 years of age, that he was innocent of that crime, and that he had
been subjected to legal proceedings that did not comply with
international due process standards.
On August 11, 1993, the Commission opened Case Nº 11.193 in respect of Mr. Sankofa's complaint. Following a hearing on the matter on October 4, 1993, the Commission transmitted to the United States on October 27, 1993 a formal request for precautionary measures under Article 29(2) of the Commission's Regulations, asking that the United States ensure that Mr. Sankofa's death sentence was not carried out, in light of his pending case before the Commission. At that time, Mr. Sankofa's execution, which had previously been scheduled for August 17, 1993, was postponed pending the completion of domestic judicial procedures.
February 2000, the Commission was informed that Mr. Sankofa's
domestic proceedings were nearly completed, and that the issuance of
a new warrant of execution was imminent. Accordingly, in a February
4, 2000 letter to the United States, the Commission reiterated its
October 1993 request for precautionary measures. Subsequently, in
May 2000, the Commission received information that Mr. Sankofa's
petition before the U.S. Supreme Court had been dismissed and that
his execution was scheduled for June 22, 2000. Accordingly, on June
15, 2000, during its 107th Period of Sessions, the
Commission adopted Report Nº 51/00, in which it found Mr. Sankofa's
petition to be admissible and decided that it would proceed to
examine the merits of his case. Also in this report, the Commission
again reiterated its request that the United States suspend Mr.
Sankofa's death sentence pending the Commission's final
determination of his case.
communication dated June 21, 2000, the United States acknowledged
the receipt of the Commission's February 4, 2000 communication and
indicated that it had forwarded the same to the Governor and
Attorney General of Texas. On June 22, 2000, however, the Commission
received information that the Texas Board of Pardons and Paroles
declined to recommend that Mr. Sankofa be granted a reprieve,
commutation or pardon, and that his execution was to proceed on the
evening of June 22, 2000. Consequently, by communication of the same
date, the Commission requested that the United States provide an
urgent response to its previous request for precautionary measures.
Regrettably, the United States did not respond to the Commission's
June 22, 2000 request, and Mr. Sankofa's execution proceeded as
The Commission is gravely concerned that, despite the fact that Mr. Sankofa's case had been admitted for consideration by a competent international human rights body, the United States failed to respect the Commission's requests to preserve Mr. Sankofa's life so that his case could be properly and effectively reviewed in the context of the United States' international human rights obligations. In light of the irreparable damage caused by such circumstances, the Commission calls upon the United States and other OAS Member States to comply with the Commission's requests for precautionary measures, particularly in those cases involving the most fundamental right to life.”
Op.cit 2, p.92.