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D. Status of compliance with the recommendations of the IACHR
70. Complete compliance with the decisions of the Inter-American Commission is essential for ensuring that human rights have full force in the OAS member states, and for helping strengthen the Inter-American system for the protection of human rights. With that in mind, the IACHR, in this section, analyzes the status of compliance with the recommendations in the reports adopted by the Commission in the last three years.
71.
In this
regard, the OAS General Assembly, in its resolution AG/RES. 1917
72. Both the Convention (Article 41) and the Statute of the Commission (Article 18) explicitly grant the IACHR the authority to request information from the member states and to produce such reports and recommendations as it considers advisable. Specifically, Article 46 of the IACHR Rules of Procedure, which took effect on May 1, 2001, provides the following:
1. Once the Commission has published a report on a friendly settlement or on the merits in which it has made recommendations, it may adopt the follow-up measures it deems appropriate, such as requesting information from the parties and holding hearings in order to verify compliance with friendly settlement agreements and its recommendations.
2. The Commission shall report on progress in complying with those agreements and recommendations as it deems appropriate.
73. Similarly, the General Assembly approved resolution AG/RES. 1894 (XXXII-O/02), Observations and Recommendations on the Annual Report of the Inter-American Commission on Human Rights, invited the IACHR to consider the possibility of continuing to include in its annual reports information on the follow-up of its recommendations by the states, and to review, with a view to their improvement, the criteria and indicators on that subject in the report for this year.
74. In compliance with its powers under the Convention and the Statute and with the above-cited resolutions, and pursuant to Article 46 of its Rules of Procedure, the IACHR requested information from the states on compliance with the recommendations made in the reports published on individual cases included in its annual reports for 2000 and 2001. The Commission also decided to include on its web page (www.cidh.org) a copy of the responses from the member states in cases where they expressly requested that this be done.
75. The table the Commission is presenting includes the status of compliance with the recommendations made by the IACHR in the cases that have been decided and published in the last three years. The IACHR notes that compliance with different recommendations is meant to be successive and not immediate and that some recommendations require a reasonable time to be fully implemented. The table, therefore, presents the current status of compliance, which the Commission acknowledges as being a dynamic process that may evolve continuously. From that perspective, the Commission evaluates whether or not compliance with its recommendations is complete and not whether it has been started. In this section, the IACHR has tried to assemble the comments made by the representatives of different member states upon presentation of the Annual Report for 2002.
76. The three categories included in the table are the following:
- total compliance (those cases in which the state has fully complied with all the recommendations made by the IACHR. Having regard to the principles of effectiveness and fully observed those recommendations where the state has begun and satisfactorily completed the procedures for compliance);
- partial compliance (those cases in which the state has partially observed the recommendations made by the IACHR either by having complied with only one or some of them or through incomplete compliance with all of them);
- compliance
pending (those cases in which the IACHR considers that there has been no
compliance with the recommendations because no steps have been taken in
that direction; because the state has explicitly indicated that it will
not comply with the recommendations made; or because the state has not
reported to the IACHR and the Commission has no information from other
sources that would suggest otherwise).
Case 11.307 – Report Nº 103/01, María Merciadri de Morini (Argentina)
77. Report Nº 103/01 was approved by the Commission on October 11, 2001 to report on the friendly settlement reached with respect to a petition challenging the application of Law 24.012 (the “Quota Act”) and its implementing decree, which concerned the placement of women candidates on the ballot. In its report, the Commission concluded that the information analyzed demonstrated that the matter had been settled in accordance with respect for the principles of the American Convention. That information included the text of Decree Nº 1246, issued to remedy the problem complained of and ensure the efficacy of Law 24.012, and the terms of the friendly settlement agreement signed by the parties in the presence of the Executive Secretary of the Commission, indicating that both parties considered the matter to have been fully resolved through the enactment of Decree Nº 1246. The Commission recognized the important efforts of both parties to work toward the free and full participation of women in public life, a priority for our hemisphere, and indicated its satisfaction with the settlement.
Cases 12.067, 12.068 and 12.086 – Report Nº 48/01, Michael Edwards, Omar Hall, Brian Schroeter and Jeronimo Bowleg (Bahamas)
78. In Report Nº 48/01 dated April 4, 2001, the Commission recommended that the State:
• Grant Messrs. Edwads, Hall, Schroeter and Bowleg, an effective remedy which includes commutation of sentence and compensation;
• Adopt such legislative or other measures as may be necessary to ensure that the death penalty is imposed in compliance with the rights and freedoms guaranteed under the American Declaration, including and in particular Articles I, XXV, and XXVI, and to ensure that no person is sentenced to death pursuant to a mandatory sentencing law.
• Adopt such legislative or other measures as may be necessary to ensure that the right under Article XXIV of the American Declaration to petition for amnesty, pardon or commutation of sentence is given effect in The Bahamas.
• Adopt such legislative or other measures as may be necessary to ensure that the right to an impartial hearing under Article XXVI of the American Declaration and the right to judicial protection under Article XVIII of American Declaration are given effect in The Bahamas in relation to recourse to Constitutional Motions.
• Adopt such legislative or other measures as may be necessary to ensure that the right under Article XXV of the American Declaration to be tried without undue delay is given effect in The Bahamas.
• Adopt such legislative or other measures as may be necessary to ensure that the rights under Articles XXV and XXVI of the American Declaration to humane treatment and the right not to receive cruel, infamous, or unusual punishment are given effect in The Bahamas.
79. On November 8, 2002, the Commission wrote to both the State and the Petitioners and requested up-dated information concerning compliance with the Commission’s Recommendations in Report Nº 48/01. The State has not informed the Commission as to its compliance with the Commission’s recommendations in Report Nº 48/01. On December 18, 2002, the Petitioners in Case 12.067, Michael Edwards, wrote to the Commission and informed it that they had written to the Attorney General of The Bahamas asking what steps the State would be taking in response to the Commission’s findings and recommendations. To date they are still awaiting a response from the Attorney General of The Bahamas concerning the same. On December 18, 2002, the Petitioner in Case 12.062, Omar Hall, wrote to the Commission and informed it that despite enquiries made to the Bahamian Government, she has not received any information concerning what steps the State has taken to commute Mr. Hall’s death sentence or otherwise put into effect the Commission’s recommendations made in Report Nº 48/01. With regard to Case 12.086, Brian Schroeter and Jeronimo Bowleg, the Petitioners wrote to the Commission and informed it that they were currently attempting to verify which, if any, of the recommendations contained in Report Nº 48/01, has been complied with by the State. Based on these considerations, the IACHR presumes that the Government of The Bahamas has not complied with the Commission's recommendations.
Case 12.051 - Report Nº 54/01, Maria da Penha Maia Fernandes (Brazil)
80. In Report Nº 54/01 of April 16, 2001, the IACHR made the following recommendations to the Brazilian State:
1. Complete, rapidly and effectively, criminal proceedings against the person responsible for the assault and attempted murder of Mrs. Maria da Penha Fernandes Maia.
2. In addition, conduct a serious, impartial, and exhaustive investigation to determine responsibility for the irregularities or unwarranted delays that prevented rapid and effective prosecution of the perpetrator, and implement the appropriate administrative, legislative, and judicial measures.
3. Adopt, without prejudice to possible civil proceedings against the perpetrator, the measures necessary for the State to grant the victim appropriate symbolic and actual compensation for the violence established herein, in particular for its failure to provide rapid and effective remedies, for the impunity that has surrounded the case for more than 15 years, and for making it impossible, as a result of that delay, to institute timely proceedings for redress and compensation in the civil sphere.
4. Continue and expand the reform process that will put an end to the condoning by the State of domestic violence against women in Brazil and discrimination in the handling thereof. In particular, the Commission recommends:
a. Measures to train and raise the awareness of officials of the judiciary and specialized police so that they may understand the importance of not condoning domestic violence.
b. The simplification of criminal judicial proceedings so that the time taken for proceedings can be reduced, without affecting the rights and guarantees related to due process.
c. The establishment of mechanisms that serve as alternatives to judicial mechanisms, which resolve domestic conflict in a prompt and effective manner and create awareness regarding its serious nature and associated criminal consequences.
d. An increase in the number of special police stations to address the rights of women and to provide them with the special resources needed for the effective processing and investigation of all complaints related to domestic violence, as well as resources and assistance from the Office of the Public Prosecutor in preparing their judicial reports.
e. The inclusion in teaching curriculums of units aimed at providing an understanding of the importance of respecting women and their rights recognized in the Convention of Belém do Pará, as well as the handling of domestic conflict.
f. The provision of information to the Inter-American Commission on Human Rights within sixty days of transmission of this report to the State, and of a report on steps taken to implement these recommendations, for the purposes set forth in Article 51(1) of the American Convention.
81. The
State presented no information regarding compliance with the
Commission’s recommendations. The petitioner, for her part, pointed out
that she is in talks with the State about the possibility of signing a
document concerning compliance with the Commission’s recommendations.
With regard to recommendation No. 1 (supra), the petitioner added
that Marco Antonio Heredia Viveiros was detained in October 2002.
Concerning recommendations Nos. 2 and 3 (supra), the petitioner
asserted that the State had made no effort to comply with those
recommendations. In the case of recommendation No. 4 (supra),
the petitioner noted that the State had made little progress toward
instituting any reforms patterned after the inter-American system’s
standards of protection. The petitioner noted the passage of the
November 24, 2003 Law No. 10,778 (although she commented that the law is
still not in effect and its governing statute is still pending), which
makes it mandatory for health services within the national territory to
report cases of women they treat who have been the victims of violence.
The petitioner also mentioned that in November 2003 the Senate increased
the penalty for battery in domestic crimes. The Commission therefore
concludes that the State is in partial compliance with the
recommendations in question. Cases 11.286 (Aluísio Cavalcanti et. al.), 11.407 (Clarival Xavier Coutrim), 11.406 (Celso Bonfim de Lima), 11.416 (Marcos Almeida Ferreira), 11.413 (Delton Gomes da Mota), 11.417 (Marcos de Assis Ruben), 11.412 (Wanderlei Galati), and 11.415 (Carlos Eduardo Gomes Ribeiro) - Report Nº 55/01, (Brazil)
82. In Report Nº 55/01 of April 16, 2001, the IACHR made the following recommendations to the Brazilian State:
1. That it carry out a serious, impartial, and effective investigation into the facts and circumstances of the deaths of Aluísio Cavalcanti, Clarival Xavier Coutrim, Delton Gomes da Mota, Marcos de Assis Ruben, and Wanderlei Galati, and of the assaults on and attempted homicides of Cláudio Aparecido de Moraes, Celso Bonfim de Lima, Marcos Almeida Ferreira, and Carlos Eduardo Gomes Ribeiro, and that it duly prosecute and punish the persons responsible.
2. That such investigation include the possible omissions, negligence, and obstructions of justice that may have resulted from the failure to convict the persons responsible in a final judgment, including the possible negligence and mistakes of the Public Prosecutor’s Office and of the members of the judiciary who may have decided to waive or reduce the corresponding sentences.
3. That the necessary measures be taken to conclude, as soon as possible and in the most absolute legality, the judicial and administrative proceedings regarding the persons involved in the above-noted violations.
4. That the Brazilian State makes reparation for the consequences of the violations of the rights of the victims and their families or those who hold the right for the harm suffered, described in this report.
5. That the necessary measures be taken to abolish the jurisdiction of the military justice system over criminal offenses committed by police against civilians, as proposed by the original bill, introduced in due course, to repeal Article 9(f) of the Military Criminal Code, and to approve, to take its place, the single paragraph proposed in that bill 27.
6. That the Brazilian State take measures to establish a system of external and internal supervision of the military police of São Paulo that is independent, impartial, and effective.
7. That the Brazilian State present the Commission, within 60 days of transmittal of this report, a report on compliance with the recommendations, for the purpose of applying the provision at Article 51(1) of the American Convention.
83. The State did not submit information regarding compliance with the IACHR’s recommendations. For their part, the petitioners stated the following:
- Case 11.286 (Aluísio Cavalcante): The petitioners commented that only three military police stood trial on June 12, 2003, and all three were acquitted. The Public Prosecutor’s Office appealed the decision, but the appeal may not be decided for another three years.
- Case 11.406 (Celso Bonfim de Lima): The petitioners stated that the military police officer who shot the victim was convicted but not thrown off the force. Indeed, he never served any time either, because the sentence he was given was so light that the statute of limitations had already expired. The petitioners added that the ruling on the suit for damages was in the petitioners’ favor and called for payment of a monthly allowance. While the monthly allowance is being paid, the amount owed for the period from the time the events occurred to the date on which payment of the allowance began is still due and payable.
- Case 11.407 (Clarival Xavier Coutrim): The petitioners pointed out that the defendants were acquitted by the military tribunal that presided over their case. They added that the court disallowed compensation. While that decision has been appealed, no ruling has as yet been delivered.
- Case 11.412 (Wanderlei Galati): The petitioners reported that the military police officer who shot the victim was tried and convicted, but the sentence he was given was so light that it was barred by statute of limitations. The result was that the guilty person served no sentence at all. The petitioners also reported that the ruling on the suit seeking damages was in the petitioners’ favor and the victim’s mother was compensated.
- Case 11.413 (Delton Gomes da Mota): The petitioners reported that the trial of the accused military police officers is pending, but no trial date has been set. The petitioners also reported that they are awaiting the outcome before suing for damages.
- Case 11.415 (Carlos Eduardo Gomes Ribeiro): The petitioners observed that the military police officer who shot the victim did not serve any time, as the statute of limitations had expired. His only punishment was an administrative sanction from the Police. They added that the suit seeking compensation is moving forward.
- Case 11.416 (Marcos Almeida Ferreira): The petitioners noted that the military policeman who shot the victim was convicted, but served no time because the statute of limitations had expired. Nor was he expelled from the police force. They added that the suit seeking damages was declared admissible and a monthly allowance was ordered. While the monthly payment is being received, the amount owed for the period from the date of the events to the date on which payment of the monthly compensatory allowance began has not yet been paid.
- Case 11.417 (Marcos de Assis Ruben): The petitioners reported that the ruling was that the case against the accused was inadmissible. No decision on the appeal filed by the Public Prosecutor’s Office has as yet been delivered.
84. The Commission therefore concludes that the State has not fully complied with the Commission’s recommendations.
Case 11.517 - Report Nº 23/02 Diniz Bento Da Silva, (Brazil) 85. In Report Nº 23/02 dated February 28, 2002, the IACHR made the following recommendations to the Brazilian state:
1. Conduct a serious, effective, and impartial investigation through the ordinary justice system to determine and punish those responsible for the death of Diniz Bento da Silva, punish those responsible for the irregularities in the investigation by the military police, as well as those responsible for the unjustifiable delay in conducting the civil investigation, in accordance with Brazilian law.
2. Take the necessary steps to ensure that the victim’s family receives adequate compensation for the violations established herein.
3. Take steps to prevent a repetition of such events and, in particular, to prevent confrontations with rural workers over land disputes, and to negotiate the peaceful settlement of these disputes.
86. Neither the State nor the petitioners submitted any information regarding its compliance with the IACHR’s recommendations. Absent information to the contrary, the Commission assumes that the recommendations have not yet been fulfilled.
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