...continued

VI.      PROCEEDINGS SUBSEQUENT TO REPORT Nº 21/03

43.     On March 6, 2003, the Commission adopted Report Nº 21/03 pursuant to Article 43 of its Rules of Procedure, setting forth its analysis of the record, findings and recommendations in this matter.  In particular, the Commission admitted the Petitioners’ claims under Article II, XVIII and XXVI of the American Declaration and concluded that the State was responsible for violating Mr. Fierro’s rights under Articles XVIII and XXVI of the Declaration in respect of his trial, conviction and sentencing to death.  The Commission also provided two recommendations, that the State provide Mr. Fierro with an effective remedy including a re-trial or his release, and that the State review its laws, procedure and practices to ensure that foreign nationals who are detained in any manner by the United States are informed without delay of their right to consular assistance.

44.     Report Nº 21/03 was transmitted to the State by note dated March 24, 2003, 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.

45.     By communication dated June 6, 2003 and received by the Commission on June 6, 2003, the State delivered a response to the Petitioners’ petition and to the Commission’s Report Nº 21/03, in which it objected to the admissibility and merits of the petition as well as the conclusions in the Commission’s report.

46.     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 Commission’s recommendations.[14]  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.

47.     In light of the significance of the legal issues raised in this matter, 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 its observations, the State raises several objections to the admissibility and merits of the Petitioners’ petition and the Commission’s conclusions, and provides corresponding observations on the Commission’s recommendations.  Concerning the admissibility of the petition, the State maintains its previous position that Mr. Fierro failed to preserve his consular notification claim in United States courts and failed to file timely appeals in courts in the United States and therefore failed to exhaust his domestic remedies.  The State also argues that the petition violates Article 33(1) of the Commission’s Rules governing duplication because Mr. Fierro’s case on consular notification is pending before the International Court of Justice (“ICJ”). Further, the State contends that the Commission does not have competence to review Mr. Fierro’s consular notification claim because it arises under the Vienna Convention on Consular Relations and does not otherwise raise a human rights issue.

48.     Concerning the merits of the petition, the State argues that the petition fails to accurately state facts that constitute a violation of the principles under the American Declaration, that Mr. Fierro’s complaints attempting to raise a doubt on his guilt have no merit because he already acknowledged his guilt in relation to the murders at issue in filings with the U.S. courts in 1990 and 1992, and that his due process claims have been heard and fairly adjudicated and that he continues to have due process rights, even if he chooses not to pursue them for fear of an unfavorable result. Finally, the State indicates that based upon its observations, it has declined to implement the Commission’s first recommendation.  With respect to the Commission’s second recommendation, the State indicates that it has undertaken ongoing and intensive efforts to ensure that relevant domestic practice is consistent with the Vienna Convention and that public law enforcement officials fully implement Article 36 of the Vienna Convention on Consular Relations. It disagrees, however, with any assumption by the Commission that consular notification is a prerequisite for the observance of due process rights under the American Declaration.

49.     With respect to the State’s objections to the admissibility of the petition, the Commission considers that the only argument meriting comment at this stage of the process is the claim concerning duplication.  According to the State, the Commission should not have considered the Petitioners’ petition because on January 9, 2003, the Government of Mexico filed an application with the International Court of Justice instituting proceedings against the United States concerning the Vienna Convention on Consular Relations and requested the indication of provisional measures of protection for all of the individuals named in the application, including Mr. Fierro.[15]  The State also indicates that on February 5, 2003, the ICJ issued a provisional measures order with respect to Mr. Fierro and two other Mexican nationals who are subject to the death penalty and who allegedly were not advised on a timely basis of their right to request consular notification, and that the ICJ has not yet entertained Mr. Fierro’s case on the merits.  The State therefore argues that the Commission’s consideration of the petition would result in a duplication of effort and expense by international tribunals and should be deemed inadmissible as duplicative. 

50.     Article 33 of the Commission’s Rules of Procedure, which governs duplication of procedures, provide as follows:

1.       The Commission shall not consider a petition if its subject matter:

a.       is pending settlement pursuant to another procedure before an international governmental organization of which the State concerned is a member; or,

b.       essentially duplicates a petition pending or already examined and settled by the Commission or by another international governmental organization of which the State concerned is a member.

2.       However, the Commission shall not refrain from considering petitions referred to in paragraph 1 when:

a.       the procedure followed before the other organization is limited to a general examination of the human rights situation in the State in question and there has been no decision on the specific facts that are the subject of the petition before the Commission, or it will not lead to an effective settlement; or,

b.       the petitioner before the Commission or a family member is the alleged victim of the violation denounced and the petitioner before the other organization is a third party or a nongovernmental entity having no mandate from the former.  

51.     In light of the terms of this provision, the Commission must first determine whether Mr. Fierro’s petition may fall within the terms of Article 33(1), because the subject matter of his complaint is pending settlement before another international governmental organization of which the United States is a member, or because it essentially duplicates a petition pending before such an organization.  In this regard, the Commission first concludes that the International Court of Justice, as an organ of the United Nations whose competence the United States has accepted through the Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes,[16] constitutes an international governmental organization within the meaning of Article 33(1) in the circumstances of the present case.

52.     In order to determine whether the subject matter of Mr. Fierro’s complaint before the Commission duplicates the proceeding before the ICJ, the Commission must first set forth its understanding of the nature and subject matter of the proceeding before the ICJ.  According to the Application filed by Mexico against the United States in the Avena Case, the proceeding relates to 54 Mexican nationals who were arrested, detained, tried, convicted and sentenced to death in various states in the United State following proceedings in which Mexican authorities contend competent authorities failed to comply with their obligations under Article 36(1)(b) of the Vienna Convention on Consular Relations.[17]  It is apparent from Mexico’s Application that an individual having the name César Roberto Fierro Reyna has been included as one of the 54 Mexican nationals referred to in its proceeding.[18] The State contends that the individual named in the ICJ proceeding is the same person as the alleged victim in the present proceeding before the Commission and the circumstances of Mr. Fierro’s case, as described in Mexico’s Application, confirms this contention.

53.     In its Application, the Government of the United Mexican States has requested the ICJ to adjudge and declare:

(1)        that the United States, in arresting, detaining, trying, convicting, and sentencing the 54 Mexican nationals on death row described in this Application, violated its international legal obligation to Mexico, in its own right and in the exercise of its right of consular protection of its nationals, as provided by Articles 5 and 36, respectively on the Vienna Convention;

(2)        that Mexico is therefore entitled to restitution in integrum;

(3)        that the United States is under an international legal obligation not to apply the doctrine of procedural default, or any other doctrine of its municipal law, to preclude the exercise of the rights afforded by Article 36 of the Vienna Convention;

(4)        that the United States is under an international legal obligation to carry out in conformity with the forgoing international legal obligations any future detention of or criminal proceeding against the 54 Mexican nationals on death row or any other Mexican national in its territory, whether by a constituent, legislative, judicial, or other power, whether that power holds a superior or a subordinate position in the organization of the United States, and whether that power’s functions are international or internal in character;

(5)        that the right to consular notification under the Vienna Convention is a human right;

and that, pursuant to the foregoing international legal obligations,

(1)        the United States must restore the status quo ante, that is, re-establish the situation that existed before the detention or, proceeding against, and convictions and sentences of, Mexico’s nationals in violation on the United States international legal obligations;

(2)        the United States must take the steps necessary and sufficient to ensure that the provisions of its municipal law enable full effect to be given to the purposes for which the rights afforded by Article 36 are intended;

(3)        the United States must take the steps necessary and sufficient to establish a meaningful remedy at law for violations of the rights afforded to Mexico and its nationals by Article 36 of the Vienna Convention, including by barring the imposition, as a matter of municipal law, of any procedural penalty for the failure timely to raise a claim or defence based on the Vienna Convention where competent authorities of the United States have breached their obligation to advise the national of his or her right under the Convention; and

(4)        the United States, in light of the pattern and practice of violations set forth in this Application, must provide Mexico a full guarantee of the non-repetition of the illegal acts.[19]

54.     It is also pertinent to observe that according to the international instruments governing the proceeding before the ICJ, in particular the Statute of the ICJ and the Optional Protocol to the Vienna Convention on Consular Relations, states are the only permissible parties to the proceeding.[20] Mexico’s claim before the ICJ seeks determinations of the United States’ international legal responsibility for violations of rights attributable to Mexico under the Vienna Convention on Consular Relations.

55.     In considering the State’s objection, the Commission notes that it is for the State, as the party raising the objection, to substantiate the juridical requirements of duplication before the Commission.  In this respect, the Commission takes into consideration its previous jurisprudence according to which a prohibited instance of duplication under the Commission’s procedures involves, in principle, the same person, the same legal claims and guarantees, and the same facts adduced in support thereof.[21] Correspondingly, claims brought in respect of different victims, or brought regarding the same individual but concerning facts and guarantees not previously presented and which are not reformulations, will not in principle be barred by the prohibition of duplication of claims.[22]

56.     In the present case, the Commission considers on the information available that it cannot be said that the same parties are involved in the proceedings before the Commission and the ICJ, or that the proceedings raise the same legal claims and guarantees.  In particular, it is evident that Mr. Fierro cannot be considered a party to the ICJ proceedings, as participants in contentious proceedings before the Court are limited to states. While the circumstances surrounding his criminal proceedings may comprise part of the matters considered by the ICJ in determining Mexico’s application, it is not apparent that Mr. Fierro has independent standing to make submissions in the proceeding or to request relief, or that there is any requirement or certainty that Mexico will represent his interests before the ICJ. The State has not presented any evidence suggesting otherwise.

57.     Nor can it be said that the same legal claims have been raised before both tribunals.  The central issue before the ICJ is whether the United States violated its international obligations to Mexico under Articles 5 and 36 of the Vienna Convention on Consular Relations based upon its procedures in arresting, detaining, convicting, and sentencing 54 Mexican nationals on death row, including Mr. Fierro.  The issue before the Commission, on the other hand, is whether the United States violated Mr. Fierro’s rights to equal protection, to due process of law, and to a fair trial under Articles II, XVIII and XXVI of the American Declaration, based upon its alleged failure to notify Mr. Fierro of his right to consular assistance as provided for under Article 36 of the Vienna Convention on Consular Relations and the effects of this failure on Mr. Fierro’s criminal proceedings. In the Commission’s view, the Petitioners’ petition before the Commission raises substantive issues that are distinct from those presented by Mexico to the International Court of Justice.

58.     While the claims in both proceedings are similar to the extent that they require consideration of compliance by the United States with its obligations under Article 36 of the Vienna Convention, this matter is raised in two different contexts: the ICJ is asked to adjudicate upon the United States’ international responsibility to the state of Mexico for violations of the VCCR, while this Commission is asked to evaluate the implications of any failure to provide Mr. Fierro with consular information and notification for his individual right to due process and to a fair trial under the American Declaration of the Rights and Duties of Man.  This contextual discrepancy highlights the broader distinction between the mandate and purpose of the ICJ and the Commission.  The function of the ICJ, as defined through Article I of the Optional Protocol to the Vienna Convention on Consular Relations, is to settle, as between states, disputes arising out of the interpretation and application of the Vienna Convention on Consular Relations.  This Commission, on the other hand, is the principal human rights organ of the Organization of American States charged with promoting the observance and protection of human rights in the Americas, which includes determining the international responsibility of states for alleged violations of the fundamental rights of persons.

59.     Based upon the foregoing, the Commission considers that the Petitioners’ petition does not duplicate the Avena proceeding before the International Court of Justice within the meaning of Article 33(1) of the Commission’s Rules, and therefore finds no bar to the admissibility of the Petitioners’ claims on the ground of duplication.

60.     With respect to the merits of Mr. Fierro’s complaint, the State indicates that it did not control events concerning Mr. Fierro when he was under the authority of the Government of Mexico, and that in its submissions it has focused exclusively on actions by United States personnel in Mr. Fierro’s case.  In this framework, the State contends that Mr. Fierro received due process to the fullest extent based upon the numerous instances of review of his case before the state and federal courts in the United States.  The State also asserts that Mr. Fierro’s confession was not coerced, that Mr. Fierro was not hit or beaten by the El Paso police, and that Mr. Fierro admitted his guilt for the murder at issue on two occasions.  Concerning the latter allegation, the State claims that Mr. Fierro, in his June 11, 1990 habeas corpus petition with the U.S. District Court for the Western District of Texas, stated that “[n]one of this evidence excuses Mr. Fierro’s conduct; he murdered somebody”. The State similarly claims that in Mr. Fierro’s 1992 Motion to Alter and Amend the Judgment in the same proceeding, it was stated that “Fierro argues not that he is innocent of the crime but that he is innocent of the penalty.”

61.     Upon reviewing the State’s arguments in this regard, the Commission finds no grounds upon which to interfere with the determinations in its preliminary merits report. The Commission considers that the factual and legal submissions raised by the State could have been raised during the processing of the petition before the Commission and before a decision was taken.  In any event, for the reasons set out below concerning the Commission’s recommendations, the Commission does not consider that the State’s submissions affect the Commission’s finding that, owing to the effects of the State’s failure to inform Mr. Fierro of his right to consular assistance, he was not afforded his due process rights prior to or during his trial, or that he fully enjoyed his right to a fair trial notwithstanding this failure.

62.     In particular, the State has indicated that it disagrees with the Commission’s conclusions and declined to implement the Commission’s first recommendation, namely that a new trial be convened for Mr. Fierro. With respect to the Commission’s second recommendation, the State has disputed any suggestion that compliance with Article 36 of the Vienna Convention on Consular Relations is a prerequisite for the observance of due process and fair trial protections set forth in Articles XXVI and XVIII of the American Declaration or that consular notification or assistance is relevant to the fair trial and due process protections that are specifically enumerated under those provisions.  The State has argued further that to find that the failure to notify a detained foreign national of his or her right to consular notification is per se a denial of a person’s due process of fair trial rights would have profoundly illogical results by, for example, implying that a foreign national is denied due process or a fair trial regardless of his or her need for consular notification.

63.     At the same time, the State accepts that effective compliance with the consular notification requirements of Article 36 of the Vienna Convention requires constant effort and attention, and has provided the Commission with examples of efforts that the United States has made in this regard.  The State indicates, for example, that it has developed a publication, reference card and training video for federal, state, and local law enforcement officials containing instructions on the consular notification and access, which have been distributed to arresting officers, prosecutors, and judicial authorities in every state and other U.S. jurisdiction as well as to the public through libraries and the internet. According to the State, consular notification and access obligations have also been reviewed at numerous training seminars and meetings throughout the United States as well as at regional and national events involving, among others, police chiefs and sheriffs, federal and state prosecutors, and Attorneys General.

64.     In addition, the State emphasizes that the U.S. justice system gives full effect to the important fair trial and procedural guarantees invoked by the Commission, which it argues are not dependent upon consular notification, access or assistance.  Citing pertinent U.S. statutory provisions and jurisprudence, the State indicates that these protections include the guarantee for criminal defendants to be tried by a fair and impartial tribunal and that persons shall not be subject to discrimination by federal or state authorities based on their race, gender, ethnicity or national origin.  They are also said to include the entitlement of criminal defendants to the privilege against self-incrimination and not to be subjected to ex post facto laws, to be informed in detail of all charges made against them and to effective legal representation supplied at public expense if they cannot afford an attorney, to be assisted by an interpreter if a defendant does not understand English language proceedings, and to be assisted by investigators and experts where a particularized need for such assistance can be demonstrated.  In addition, the State argues that the death penalty may be carried out only under laws in effect at the time the crime was committed, subject to the extensive due process and equal protection requirements of the U.S. Constitution, and after exhaustive appeal, and provides examples of special protections provided for under U.S. law for those accused of capital offenses, such as mandatory automatic review of the conviction and sentence in nearly every state whose laws provide for capital punishment and the inability of states to prohibit acts of executive clemency, including amnesty, pardon and commutation of sentence.

65.     The State therefore reiterates that the fair trial rights and procedural protections recognized in the American Declaration and other international human rights instruments are specific and well-understood and that none can reasonably be read to encompass or depend upon a consular notification obligation.  Consequently, the State indicates that it “respectfully disagrees with the implication to the contrary contained in Recommendation Nº 2 of the Commission’s Report Nº 21/03”, and therefore asks the Commission to reconsider its decision and recommendations and find Mr. Fierro’s petition to be inadmissible and without merit.

66.     Upon considering the State’s observations concerning the Commission’s conclusions and recommendations, the Commission wishes to state that it is encouraged by the measures taken by the United States to enhance compliance with its obligations under the Vienna Convention on Consular Relations regarding consular notification and access.  To this extent, the State appears to have taken some measures to implement the Commission’s second recommendation, as reproduced below.  At the same time, the Commission cannot accept the State’s contention that compliance with a foreign national’s right to consular notification and assistance is irrelevant to the due process and fair trial protections under international human rights instruments, including the American Declaration.  As the Commission has previously held, fundamental due process protections, such as the right to prior notification in detail of the charges against a defendant and the right to effective counsel, are of such a nature that, in the absence of access to consular assistance, a foreign national could be placed at a considerable disadvantage in the context of a criminal proceeding taken against him or her by a state. Each case must be evaluated on its individual circumstances.  Once a failure to inform a foreign national of his right to consular notification and assistance has been proven, however, a formidable presumption of unfairness will arise unless it is established that the proceedings were fair notwithstanding the failure of notification. While the State contends in the present case that the protections provided for in its legal system are among the strongest and most expansive in the world, this does not foreclose situations in which access to consular assistance may have an impact on the fairness of a foreign national’s criminal proceedings in the United States.  This could arise, for example, in relation to a defendant’s ability to gather mitigating evidence or other relevant information from his or her home country.

67.     Indeed, the Commission considered the availability of information in Mexico to be pertinent in the circumstances of Mr. Fierro’s case, where the consulate may have verified the status of Mr. Fierro’s mother and step-father while they were in the custody of the Mexican police and thereby mitigate any detrimental impact that their detention may have had on Mr. Fierro’s interrogation and the veracity of his resulting confession.  The State itself has recognized in its observations that it does not control what happens to individuals when they are outside the jurisdiction of the United States and in the custody of local authorities in their home country. Consular officials, on the other hand, may exercise authority in a defendant’s home country and therefore be in a position to gather information located outside of the State’s jurisdiction that is pertinent to the individual’s defense.

68.     To the extent that the State refuses to acknowledge the potential relevance of consular notification and assistance with the rights to due process and to a fair trial under the American Declaration, therefore, the Commission cannot find that the State has complied fully with the Commission’s second recommendation in the present matter.  The State has clearly indicated that it does not intend to implement the Commission’s first recommendation and thereby provide an effective remedy to the individual victim in this case.  Based upon the above considerations, therefore, the Commission has decided to ratify its conclusions and reiterate its recommendations, as set forth below.

VII.     CONCLUSIONS

69.     The Commission, based on the foregoing considerations of fact and law, and in light of the response of the State to Report Nº 21/03, hereby ratifies the following conclusions.

70.     The Commission hereby concludes that the Petitioners’ claims are admissible as to the alleged violations of Articles II, XVIII and XXVI of the American Declaration.

71.     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 Cesar Fierro. The Commission also concludes that, should the State execute Mr. Fierro 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 American Declaration.  

VIII.    RECOMMENDATIONS

72.     In accordance with the analysis and the conclusions in the present report,

THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS REITERATES ITS RECOMMENDATIONS TO THE UNITED STATES THAT IT:

1.       Provide Mr. Fierro 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. Fierro’s release.  

2.       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 Declaration.  

          73.     The Commission also hereby reiterates its request pursuant to Rule 25 of the Commission’s Rules of Procedure that the United States take the necessary measures to preserve Mr. Fierro’s life and physical integrity pending the completion of the proceedings before the Commission in this matter, including implementation of the Commission’s final recommendations.

IX.      PUBLICATION

74.     By communication dated October 29, 2003, the Commission transmitted this report, adopted as Report Nº 56/03 pursuant to Article 45(1) of the Commission’s Rules of Procedure, to the State and to the Petitioners in accordance with Rule 45(2) of the Commission’s Rules and requested information within 30 days as to measures adopted by the State to implement the Commission’s recommendations.

75.     In a note dated November 26, 2003 and received by the Commission on December 1, 2003, the State responded to the Commission’s October 29, 2003 request for information. In its communication, the State indicated that it disagreed with the conclusions contained in the Commission’s report, for the reasons stated in its previous submissions in the matter. In this respect, the United States informed the Commission that it had recently filed its Counter-memorial before the International Court of Justice in the Avena Case, in which the State reviewed its laws and regulations applicable to Mr. Fierro, and restated its position that Mr. Fierro was accorded all guarantees of due process and a fair trial under applicable international and domestic law. With regard to the first recommendation in the Commission’s report, the State informed the Commission that it declined to order a re-trial or release of Mr. Fierro. With regard to the second recommendation in the Commission’s report, the State indicated that its efforts to ensure that relevant domestic practice is consistent with the Vienna Convention on Consular Relations and to ensure that public law enforcement officials fully implement Article 36 of the Convention are ongoing and intensive. At the same time, the State disagreed with the recommendation’s assumption that consular notification is a prerequisite for the observance of due process protections as set forth in Articles XXVI and XVIII of the American Declaration.   

76.     The Commission did not receive a response from the Petitioners to its request for information within the time period specified in its October 29, 2003 note.

77.     In light of the information received from the State, the Commission in conformity with Article 45(3) of its Rules of Procedure decides to ratify the conclusions and reiterate the recommendations in this Report, 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 which 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 States.

Approved on the 29^th day of the month of December, 2003.  José Zalaquett, President; Clare K.  Roberts, First Vice-President; Susana Villarán, Second Vice-President; and Julio Prado Vallejo, Commissioner. 

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