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ADMISSIBILITY PETITION
11.802 RAMON
HERNÁNDEZ BERRIOS ET AL. HONDURAS February
27, 2002 I.
SUMMARY 1. On August 26,
1997, the Inter-American Commission on Human Rights (hereinafter “the
Inter-American Commission” or “the IACHR”) received a petition
presented by the Center for Justice and International Law (CEJIL) and Asociación
Casa Alianza América Latina (Casa Alianza) (hereinafter
“the petitioners”) alleging the international responsibility of the
Republic of Honduras (hereinafter “the State” or “the Honduran
State”) for the illegal detention and torture of the minors Ramón
Antonio Hernández Berrios, Juan Benito Hernández Berrios, Ever Rolando
Boquín Donaire, and Osmán Antonio Cáceres Muñoz. The petitioners
allege that the facts denounced in the petition violate several
provisions contained in the American Convention on Human Rights
(hereinafter “the American Convention” or “the Convention”):
Article 5 (physical and moral integrity), Article 7 (personal liberty),
Article 19 (rights of the child), Article 8 (fair trial) and Article 25
(judicial protection). 2.
The petitioners alleged that on November 21, 1995, the minors Ramón
Antonio Hernández Berrios, Juan Benito Hernández Berrios, Ever Rolando
Boquín Donaire, and Osmán Antonio Cáceres Muñoz were tortured at
Comayagua Prison Farm for adults by the prisoner in charge of the
inmates, who allegedly acted on the orders of the Prison Warden, Mr.
Aquilino Sorto. The petitioners alleged that the unwarranted delay in
the investigation, prosecution, and punishment of all those responsible
releases the petitioners from compliance with the requirement of prior
exhaustion of remedies under domestic law based on the exception
provided in Article 46(2)(c) of the American
Convention. 3.
The State denied that the minors had been tortured and said that
the criminal accusation against Mr. Sorto had ended in the verdict of
acquittal of June 26, 1998, which acquired the authority of res
judicata after it was confirmed at all higher instances. With
respect to the other person implicated in the case, Pablo Argueta, the
prisoner in charge of the inmates, the State said that the
Attorney-General’s Office was collecting evidence to institute
criminal proceedings against him. As to admissibility, the State
expressly raised the objection of failure to exhaust remedies under
domestic law. 4. After
examination of the factual and legal arguments advanced by the parties,
and of the evidence adduced, and without prejudging the merits of the
case, the IACHR concludes in this report that the case is admissible in
accordance with the exception provided in Article 46(2)(a) and (c) of
the American Convention. II.
PROCESSING BY THE INTER-AMERICAN COMMISSION 5.
The petition was received on August 26, 1997 and transmitted to
the State on September 2, 1997. On March 9 and June 11, 1998, the
petitioners requested information on the status of the petition. On
August 29, 1997, the petitioners submitted additional information, which
was transmitted to the State on September 25, 1997. On June 16, 1998 the
Commission reiterated its request to the State to reply to the petition,
with due warning that if it failed to do so it would apply Article 42 of
the Regulations of the IACHR. On July 22 the petitioners presented
additional information, which was promptly forwarded to the State. 6.
On August 11, 1998, the State submitted its reply to the
petition, which was conveyed to the petitioners on August 24, 1998. On
October 9, 1998, the petitioners requested an extension of the deadline
to present its comments on the State’s reply. On October 15, 1998, it
was granted an extension of 30 days. On November 12, 1998, the
petitioners requested another extension of deadline, this one for three
months, due to the state of emergency in Honduras as a result of
Hurricane Mitch. This extension was granted. 7.
On August 24, 1999, the petitioners presented their observations
regarding the State’s reply, which the Commission transmitted on
September 27 to the State, granting it 30 days to submit its comments. 8.
On October 1, 1999, at its 104th session, the Commission held a
hearing attended by both parties at which the petitioners presented a
friendly settlement proposal. On March 27, 2000, after various rounds of
negotiations, the State presented its comments and a compensation
proposal to the Commission for consideration “in the framework of the
friendly settlement before the Inter-American Commission on Human
Rights”. This information was forwarded to the petitioners on April
12, 2000. In a
communication of May 26 the petitioners presented additional information
and mentioned the compensation criteria that they thought necessary to
apply in this case. They said, furthermore, that if the State did not
accept its responsibility for the acts of torture alleged in the
petition it would withdraw from the friendly settlement procedure. This
communication was transmitted to the State on June 15, 2000, and it was
granted a period of 30 days to reply.
9. On October 11, 2000, at its 108th regular session, the Commission held another hearing in connection with this and other cases involving minors. At the hearing it was decided to hold a meeting on October 20, 2000, with the representatives of the State and of the petitioners at the headquarters of the Commission. With the consent of the parties, the aforementioned meeting was postponed until October 26, 2000. By a communication of October 20, the Executive Secretariat asked the parties to state their opinions, at the above-mentioned meeting, on certain specific points related to the draft friendly settlement agreement. On the aforesaid date the Executive Secretariat and the parties met and after a lengthy exchange of views, the State undertook to submit its counterproposal to the draft agreement presented by the petitioners. On November 16, 2000, the State presented its comments on the proposal of the petitioners. The Commission transmitted the pertinent portions of these comments to the petitioners on December 4, 2000, and gave them 30 days to submit their observations. 10.
On
December 21, 2000 the petitioners requested a 30-day extension of that
time period. On December 22, the Commission informed the parties that it
had granted that extension. By communication of January 20, 2001,
received at the Commission on April 27, 2001, the petitioners presented
their observations on the counterproposal of the State. On April 18,
2001, the petitioners requested information about the status of the
conciliation process. By communication of June 26, 2001, received on
July 16, the State submitted additional information which was
transmitted to the petitioners on July 18, 2001.
In a note of July 20, 2001, received on July 13 that year, the
State presented comments on the observations of the petitioners with
regard to the draft friendly settlement agreement. That information was
transmitted to the petitioners on July 27. In view of the fact that the
petitioners announced that they were withdrawing from the conciliation
process and that the parties had not reached an agreement to resolve the
matter, the Commission concluded the friendly settlement procedure. III.
POSITIONS OF THE PARTIES
A.
The petitioners 11.
The
petitioners alleged that on November 21, 1995, the minors Ramón Antonio
Hernández Berrios, Juan Benito Hernández Berrios, Ever Rolando Boquín
Donaire, and Osmán Antonio Cáceres Muñoz, while illegally detained at
Comayagua Prison Farm for adults, were the victims of abuse and
mistreatment. The petitioners say that according to the complaints filed
by the minors at the Attorney-General’s Office, they were playing with their companions in the
so-called "punishment cell" when the Warden, Aquilino Sorto
Gonzáles, annoyed at the noise, ordered them to be silent. When they
continued to make noise the Warden ordered the prisoner
in charge of the inmates, Pablo Argueta, to handcuff the minors with their hands behind them and to
hang them from the bars of the cell. The minors were kept handcuffed and
hanging from the bars for more than two hours without touching the
ground. While they were hanging they were suspended by a rope through
the handcuffs and dropped with a violent jerk. According to the
petitioners, such was the violence exercised against these minors that
the coroner said in his evaluation that he found "external evidence
of injuries that caused temporary incapacity for three days,”[1]
which proves the torture suffered by these youngsters. 12.
The
petitioners say that, while it is true that the minors retracted their
complaints against Mr. Aquilino Sorto, saying they had
"self-flagellated" themselves to harm him, these retractions
are invalid because they were not properly investigated. They add that
when they made their retractions and while the criminal proceeding
against Mr. Sorto was underway, the victims were confined in the prison
which the former continued to run. Further, the accused admitted in his
statements having "punished" the young boys and one of them,
Osman Antonio Cáceres Muñoz, said that the Warden of the prison farm
offered to pay him the sum of two hundred lempiras so that he would not
file a complaint against him.[2]
13. The
petitioners said that although the Honduran supreme court returned a
verdict of acquittal, the corpus delicti is fully recognized in that decision. According to
them, this means that the crime of torture is found proven by a judicial
decision that has the authority of res
judicata, but the person responsible for that crime has not been
identified, with the result that said crime still remains unpunished.
Based on the exception provided in Article 46(2)(a) of the Convention,
the petitioners hold that they do not have to exhaust domestic
proceedings because the judicial remedies available to the victims have
been neither effective nor suitable and, to the contrary, they have
prevented clarification of the facts and delayed the investigation.
B.
THE STATE
14.
In
its reply to the petition, the Honduran State expressly invoked the
objection of failure to exhaust remedies under domestic law. With
respect to Mr. Aquilino Sorto, the Warden of Comayagua Prison Farm, the
Honduran State argued that on June 26, 1998, he had been acquitted of
the criminal charge brought against him because of the testimony
submitted by the injured minors, whereby they retracted their
accusations and said they had been pressured into harming the accused.
According to the State, Mrs. María Reyes Zavala Donaire, the mother of Ever Rolando Boquin Donaire, also
retracted. It was she who complained to the human rights agency and
testified as a witness in the trial. In a later brief, the State
informed that the decision to acquit was confirmed at the higher
judicial instances and had aquired the authority of res
judicata. 15.
With respect to the other person implicated in the case, Pablo
Argueta, the prisoner in charge of the inmates, the State said that the
Prosecutor’s Office was collecting evidence to institute criminal
proceedings against him. IV.
ANALYSIS
A.
Competence ratione
loci, ratione personae, ratione temporis and ratione materiae
of the Commission 16.
The Commission has ratione
loci competence to take up the petition because it claims violations
of rights protected in the American Convention that allegedly took place
in the territory of a state party to that treaty. 17.
The Commission has ratione
personae competence by virtue of standing to be sued,
since the petition is lodged against a state party, in accordance
with the generic provisions contained in Articles 44 and 45 of the
Convention. This competence
arises from the very nature of the inter-American system of protection
of human rights, under which states parties undertake to respect and
ensure the rights and freedoms recognized in the Convention (Article 1).
18.
The Commission has ratione
personae competence because of the standing to sue of the
petitioners in the instant case, in accordance with Article 44 of the
Convention, which provides that “any
nongovernmental entity legally recognized in one or more member states
of the Organization, may lodge petitions with the Commission containing
denunciations or complaints of violation of this Convention by a State
Party,” to the detriment of one or more individuals. 19.
The IACHR has ratione
temporis competence inasmuch as the events alleged in the petition
occurred when the duty to respect and ensure the rights recognized in
the Convention was in force for the Honduran State, which ratified it on
September 8, 1977. 20.
Finally, the Commission has ratione
materiae competence because the petition alleges facts that, if
proven, would tend to establish a violation of Articles 5 (right to
humane treatment); 7 (right to personal liberty); 19 (rights of the
child); 8(1) (right to a fair trial), and 25 (right to judicial
protection) of the American Convention. B.
Other admissibility requirements for the petition a.
Exhaustion of domestic remedies 21. Article 46(1)
of the American Convention on Human Rights provides that admission
by the Commission of a petition or communication lodged in accordance
with Articles 44 or 45 shall be subject to the requirement “that the
remedies under domestic law have been pursued and exhausted in
accordance with generally recognized principles of international law.”
22. The petitioners
have alleged that the investigation that the State should have opened ex
officio in order to shed light on the alleged acts of torture, to
initiate proceedings, and to punish those responsible has been
unreasonably protracted, not been effective, and resulted in impunity.
They request, therefore, that the case be found admissible in
accordance with Article 46(2) of the American Convention, which provides
that the rule on prior exhaustion of domestic remedies and on timeliness
of the petition are not applicable when: a. the domestic legislation of the state concerned does not afford due process of law for the protection of the right or rights that have allegedly been violated; b.
the party alleging violation of his rights has been denied access
to the remedies under domestic law or has been prevented from exhausting
them; or c.
there has been unwarranted delay in rendering a final judgment
under the aforementioned remedies. 23. The Honduran
State invoked the objection of non-exhaustion of domestic remedies at
the initial stages of the proceeding.[3]
However, the Commission finds that more than six years have passed since
the events and that they remain in complete impunity, despite the fact
that the Honduran authorities have themselves taken as proven the
existence of torture marks on the bodies of the boys.
Indeed, one of the alleged culprits, Mr. Aquilino Sorto, has been
prosecuted; however, a final judgment has been issued acquitting him.
The other suspect has not even been charged, and yet--like the alleged
victims--he was an inmate at Comayagua Prison Farm, in other words in
the custody of the State at the time of the events.
24. It is important
to mention that it is not enough for the State to assert non-exhaustion
of domestic remedies for that objection to succeed. As the
Inter-American Court has ruled, the
State invoking this objection must also identify the domestic remedies
that remain to be exhausted and show their effectiveness in such
circumstances, which Honduras
has not done. 25. In order to
provide an adequate remedy for the alleged violations, which constitute
crimes against public order, it was incumbent on the State, particularly
in light of its obligation to take punitive action, to institute, ex
officio, proceedings to identify, prosecute, and punish all those
responsible, diligently pursuing every stage of the proceedings to a
conclusion. In the opinion of the Commission, the time elapsed between
the events and the date of the instant report was more than enough for
the Honduran State to determine responsibilities, initiate proceedings,
and punish those responsible in the domestic sphere. 26.
The Inter-American Court of Human Rights and the IACHR have
repeatedly found that the general rule of prior exhaustion of domestic
remedies recognizes the right of the State “to
resolve the problem under its internal law before being confronted with
an international proceeding,”[4]
in this case, in
the international jurisdiction of human rights, which “reinforces or
complements” the domestic jurisdiction.[5]
This general rule not only recognizes the above-cited right of the
State, but imposes on it the duty to provide the persons under its
jurisdiction with remedies that are suitable to address the infringement
of a legal right and capable of producing the result for which they were
designed. 27. The exceptions
provided in Article 46(2) of the Convention have been established
precisely with the aim of guaranteeing international action when
remedies under domestic law and the domestic judicial system are not
expeditious and capable of ensuring respect for the human rights of
victims. 28. The first of
these exceptions, regarding non-existence of domestic remedies that
guarantee the principle of due process, provided in section (a) of that
provision, refers not only to the formal absence of remedies under
domestic law, but also to their unsuitableness to address an
infringement of a legal right. The
effectiveness of domestic remedies is also affected by denial and
unwarranted delay of justice, provided for in sections (b) and (c),
respectively of the same provision.
Accordingly, the rule of exhaustion of domestic remedies should
not be understood to require mechanical attempts at formal procedures
but, rather, to require a case-by-case analysis of their potential
effectiveness; in other words, the reasonable possibility of obtaining
in each case the remedy or result for which they were designed. 29. In this
context, it is clear that the right of the State to allege that a
petition is not admissible due to non-exhaustion of remedies under
domestic law cannot be grounds to halt or delay indefinitely an
international action in support of the defenseless victim. If
in a given case there is unwarranted delay in the proceedings under
domestic remedies, it may be deduced that those remedies no longer have
the possibility of producing the result for which they were designed
and, therefore, that it is necessary to apply the mechanisms of
international protection, among which are the aforementioned exceptions,
which remove the requirement for said remedies to have been exhausted.
30. The Commission
takes account of the fact that the retractions of the boys that led to
the acquittal of the only accused[6]
occurred after this petition was lodged with the Commission and at a
time when Mr. Sorto was presumably in a position to intimidate the
minors. The record before
the Commission shows that by official communication from the Prisons
Bureau dated June 30, 1997, Mr. Sorto was provisionally suspended from
his duties, effective as of July 1, 1997 and was transferred to the
Office of the Director General of Prisons. In other words, although he
was under temporary suspension from his duties on October 8, 1997, the
date the retractions were made[7],
Mr. Sorto remained in his position from November 21, 1995 (the date of
the events) until June 30, 1997, during which time he was formally
brought up on charges and the preliminary investigation was carried out.
On July 1 that year Sorto was “provisionally” suspended from his
duties as Warden of Comayagua Prison Farm but continued to work for the
Prisons Bureau, the state entity in charge of that prison. From these
circumstances it may be presumed that from November 21, 1995 to June 30,
1997, the boys remained in the custody of the accused and that he was
still the warden of the prison when the retractions were made, although
he had been temporarily transferred to the department responsible for
the supervision of that prison, which leads to the assumption that the
boys were still in a position of vulnerability when the retractions were
made. 31. It is important
to mention that from the complaint presented on May 14, 1996 by the
prosecutor from the Attorney General’s Office, Mrs. Karen Herrera, it
is presumed that this official, foreseeing this risk, had a notarial
record drawn up of the original statements of the boys. In the third
paragraph of the complaint filed with the First Sectional Court, the
prosecutor said: THIRD.
Due to the delicacy of the incident and to prevent its later
denial by the inmates out of fear, a notarial record was drawn up of
their statements, which I enclose herewith. 32.
For his part, the prosecutor from the Attorney-General's Office,
Mr. Aldo Francisco Santos Sosa, on presenting the indictment in the
proceeding instituted against Aquilino Sorto, said in the third
paragraph of his brief of April 7, 1997, that in the opinion of the
Attorney-General's Office, the crime termed "Offences Committed by
Public Officials against the Exercise of Rights Guaranteed by the
Constitution” (Articles 333 and 334 of the Criminal Code in force) was
duly attested by the documentary evidence submitted. Among this evidence
the Attorney-General's Office included, inter
alia, the opinion of the coroner which contains the statements of
the boys (pages 17, 18, and 19 of the court file) and the report duly
signed and stamped by Aquilino Sorto in his capacity as Warden of
Comayagua Prison Farm, where he expressly brings to the attention of the
Director General of Prisons , Mr. Gustavo Manzanares, the following: ...that
on November sixteen, nineteen hundred and five, Aquilino Sorto took the
decision to punish the minors in cell Nº 9, because they had been
insubordinate, saying by way of clarification that they were only
punished for a period of “one hour" and not "four
hours" as they say. (pages 24 and 38 of the court file). 33. In
the sixth paragraph of its indictment the Attorney-General's Office
asserts that Mr. Sorto, in his signed declaration:
34.
The Commission believes that the fear expressed by the prosecutor
that the children might be intimidated into retracting their complaint;
the written declaration of the prison warden admitting to having
punished the children for one hour and not for four, as they alleged;
the coroner's report,[8]
which confirms the injuries suffered by the boys and certifies that the
latter were incapacitated from going about their customary activities
for three days, should have led to a careful, independent, and thorough
investigation of the circumstances in which the alleged events and the
retractions occurred. 35. The Commission finds that, as a general rule, a criminal investigation should be carried out promptly to protect the interests of the victims and to preserve evidence, and that, in this case, the time elapsed without an effective investigation, prosecution, and punishment of all those responsible, constitutes unwarranted delay and is an indication of the scant probability of the effectiveness of this remedy, since: A
remedy which proves illusory because of the general conditions
prevailing in the country, or even in the particular circumstances of a
given case, cannot be considered effective……as when there is an
unjustified delay in the decision.[9]
36.
Finally, the Commission considers it important to
clarify that the exceptions to the rule of exhaustion of domestic
remedies are closely associated with examination of the existence of
possible violations of certain rights enshrined in the Convention, such
as the right to a fair trial (Article 8) and the right to judicial
protection (Article 25). It should be borne in mind, however, that
Article 46(2), by its nature and purpose, is a self-contained provision vis
á vis the substantive provisions contained in the Convention and
depends on a different standard of appreciation to that used to
establish whether or not there has been a violation of Articles 8 and 25
of that international instrument. Therefore, the applicability of the
exceptions to the rule of exhaustion of domestic remedies provided in
Article 46(2), sections (a), (b), and (c), is a matter to be resolved by
means of a special decision rendered in advance, as the Commission is
doing by issuing this report.
37.
Accordingly, the reasons why domestic remedies
were not exhausted and the legal effect of their non-exhaustion will be
examined when the Commission studies the merits of the case in order to
determine whether or not the above-cited Articles 8 and 25 have been
violated.[10]
38. In light of the
foregoing, the Commission concludes that the petition sub
judice is admissible by reason of the exceptions provided in Article
42(2)(a) and (c) of the American Convention. b.
Timeliness of the
petition 39. Article
46(1)(b) of the American Convention provides that admission by the
Commission of a petition requires that it be "lodged within a
period of six months from the date on which the party alleging violation
of his rights was notified of the final judgment." 40. The
Commission having concluded that there has been unwarranted delay in the
remedies under domestic law and that the exception provided in Article
46(2)(c) of the American Convention applies, it is clear that a final
judgment has not yet been adopted, from whose notification it might
possible to 1 calculate the six-month period set down in paragraph 1,
section (b) of same provision. Without prejudice to the above, the
Commission finds that the petition has been lodged within a reasonable
time after the date on which the rights of the victims were allegedly
violated and that, therefore, the requirement of timely presentation is
met in accordance with Article 32 of its Rules of Procedure. c.
Duplication
of proceedings and res judicata 41. Article
46(1)(c) of the Convention provides as a requirement of admissibility
"that the subject of the petition or communication is not pending
in another international proceeding for settlement.”
42. The
Commission finds that the subject matter of the instant petition is not
pending in another international proceeding for settlement, nor is the
petition substantially the same as one previously studied by the
Commission or by another international organization.
Accordingly, the requirement set forth in Article 46(1)(c) has
been met. d.
Nature
of the alleged violations 43. Article
47(b) of the Convention provides that the Commission shall consider
inadmissible any petition or communication submitted under Articles 44
or 45 if it "does not state facts that tend to establish a
violation of the rights guaranteed by this Convention." 44. The
facts in this case concern the detention of Ramón Antonio Hernández
Berrios, Juan Benito Hernández Berrios, Ever Rolando Boquin Donaire,
and Osmán Antonio Cáceres Muñoz at Comayagua Prison Farm for adults
and the alleged torture to which they were subjected there. It also
concerns the lack of effectiveness of the State in processing the
domestic legal remedies designed to investigate, identify, prosecute,
and punish all those allegedly responsible. 45.
The
Commission finds that the allegations of the petitioners, if proven,
could establish violations of the rights recognized in the American
Convention. Therefore, it finds that the requirement laid down in the
above-transcribed Article 47(b) of the Convention has been met. V.
CONCLUSIONS 46.
The Inter-American Commission concludes that the petition is
admissible in accordance with the exceptions provided in Article
46(2)(a) and (c) of the American Convention. Based on the factual and
legal arguments given above and without prejudging the merits of the
case, THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, DECIDES:
1.
To declare the instant case admissible as regards the alleged
violations of rights protected in Articles 5, 7, 8, 19, and 25 of the
American Convention. 2.
To notify the parties of this decision. 3.
To continue with its analysis of the merits of the case; and 4.
To publish this decision and to include it in its Annual Report
to the OAS General Assembly. Done
and signed at the headquarters of the Inter-American Commission on Human
Rights, in the city of Washington, D.C., the 27th day of February 2002.
(Signed): Juan Méndez,
President; Marta Altolaguirre; First Vice-President, José Zalaquett,
Second Vice-President; Robert K. Goldman, Julio Prado Vallejo, and Clare
K. Roberts, Commission members. [ Table of Contents | Previous | Next ] [1]
See copy of the opinions of the coroners attached to the complaint
presented by the Attorney-General’s Office on May 14, 1996. [2]
See copy of the opinions of the coroners attached to the complaint
presented by the Attorney-General’s Office on May 14, 1996. [3]
Inter-Am. Ct. H.R., Castillo Páez Case, Preliminary Objections,
Judgment of January 30, 1996, Series C. No. 24, para. 41. [4]
Inter-Am.
Ct. H.R., Velásquez Rodríguez Case, Judgment of July 29, 1988.
Series C., No. 4, para. 61. [5]
Inter-Am.
Ct. H.R., Velásquez Rodríguez Case, Judgment of July 29, 1988.
Series C., No. 4, para. 61. [6]
See
copy of "Examination of the victims’ testimony” of October
8, 1997. [7]
See
copy of "Examination of the victims’ testimony" of
October 8, 1997. [8]
See
copy of the complaint filed by the Attorney-General's Office of May
14, 1996 and the opinions of the coroner attached thereto of
November 21, 1995. [9]
Inter-Am.
Ct. H.R., Judicial Guarantees in States of Emergency, Advisory
Opinion OC-9-87 of October 6, 1987, (Ser. A) No. 9 (1987) para. 24. [10]
See
IACHR, Report 54/01, Case 12.250, Massacre of Mapiripán, Colombia,
para. 38; and IACHR, Juan Humberto Sánchez- Honduras, Report 65/01,
Case 11.073, March 6, 2001, para. 51.
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