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Status of compliance with the recommendations of the IACHR (Continuation)
CASE 11.634, Report N° 33/04, Jailton Neri da Fonseca (Brazil)
152. In its March 11, 2004 Report N° 33/04, the Commission concluded that: a) the State of Brazil was responsible for violating the right to personal liberty and integrity, the right to life, the right to special measures for the protection of children, the right to judicial protection, and the right to a fair trial, as established in Articles 7, 5, 4 and 19, respectively, to the detriment of Jailton Neri da Fonseca, and for violating Articles 25 and 8 of the American Convention under Article 1(1) to the detriment to her family members; and b) the State was in breach of its duty to adopt measures of domestic legislation, pursuant to the terms of Article 2 of the American Convention, and that it also violated its obligation under Article 1(1) to respect and ensure the rights established in the Convention.
153. The Commission issued the following recommendations to the State:
1. That it make full reparations, in consideration of both moral and material damages, to the next-of-kin of Jailton Neri da Fonseca, for the human rights violations determined in this report, and, more specifically, that it do the following:
2. Ensure a full, impartial, and effective investigation into the crime conducted by nonmilitary organs, with a view to establishing responsibility for the acts related to the detention and murder of Jailton Neri da Fonseca and punishing the responsible parties.
3. Pay the next-of-kin of Jailton Neri da Fonseca compensation computed in accordance with international standards, in an amount sufficient to make up for both the material damages and the moral damages suffered on the occasion of his murder. Such compensation, to be paid by the Brazilian State, should be computed in accordance with international standards, and should be in an amount sufficient to make up for both the material damages and the moral damages suffered by the next-of-kin of Jailton Neri da Fonseca on the occasion of his murder and other violations of his human rights referred to in this report.
4. Amend Article 9 of the Military Criminal Code and Article 82 of the Code of Military Criminal Procedure, in addition to any other domestic legal provisions that need to be amended to abolish the competence of the military police to investigate human rights violations committed by members of the military police, and transfer that competence to the civilian police.
5. Adopt and implement measures to educate officers of the justice system and members of the police to prevent acts involving racial discrimination in police operations, and in criminal investigations, proceedings, or sentencing.
6. Adopt and implement immediate measures to ensure observance of the rights established in the American Convention, the Convention on the Rights of the Child, and the other national and international standards on the matter, in order to ensure that the right to special protection of children is enforced in Brazil.
154. The State failed to submit any information on compliance with the aforementioned recommendations of the IACHR.
155. The Commission concludes that compliance with the aforementioned recommendations is still pending.
CASE 12.426, Ranie Silva Cruz; CASE 12.427, Eduardo Rocha da Silva and Raimundo Nonato Conceicao Filho, Report N° 43/06 (Brazil)
156. On March 25, 2005 the Commission approved a friendly settlement agreement in the case “Eduardo Rocha da Silva and Raimundo Nonato Conceicao Filho”.
Under the terms of the agreement the Brazilian State undertook to:
1. Recognition of its international responsibility in the instant case. 2. Trial and punishment of those responsible. 3. Make symbolic reparations. 4. Pecuniary compensation. 5. Measures to avoid recurrence.
157. The State submitted information about the friendly settlement agreement entered into on December 15, 2005, in the city of São Luís, state of Maranhão, in cases Nos. 12.426 (Raniê Silva Cruz) and 12.427 (Eduardo Rocha da Silva and Raimundo Nonato). That agreement also covered other children who were mutilated and murdered in the Greater São Luís region in a specific period of time, in accordance with the list drawn up at a joint meeting of the State Council for the Defense of Human Rights (CEDDH) and the State Council for the Rights of Children and Adolescents (CEDNA) for the state of Maranhão. Consequently, the agreement includes comprehensive redress for the families of 28 (twenty-eight) children.
158. The State explained that CEDDH and CEDNA are the agencies responsible for monitoring compliance with the friendly settlement agreement, as a result of which they have held joint meetings, attended by the families’ representatives, the petitioning agencies, the federal government, and the Maranhão state government.
159. Under clause No. 4 of this agreement, the State of Brazil acknowledged its international responsibility in Cases 12.426 and 12.427 on December 15, 2005, at a ceremony held at the headquarters of the Maranhão state government, which was attended by Mr. Ignacio Álvarez in representation of the IACHR. That same occasion saw the inauguration of the Integrated Center for the Protection of Children and Adolescents, comprising the Special Children’s and Adolescents’ Police Detachment, the Attorney for Children and Adolescents, and the Court for Children and Adolescents. In addition, at the event a plaque was unveiled in homage to the victims covered by the friendly settlement agreement, and their relatives were also able to speak on behalf of peace and justice.
160. Regarding the investigation and punishment of the perpetrators of the crimes committed against the victims, the State indicated that on October 23 and 24, 2006, Francisco das Chagas Rodrigues de Brito, who had confessed and was under arrest, was brought before the Jury Court (Tribunal do Júri) for the murder of Jonnathan Silva Vieira, whose family was included in the friendly settlement agreement. He was sentenced to a prison term of 20 (twenty) years and 8 (eight) months. He is also facing proceedings before the First and Second Court of São José de Ribamar, the First Court of Paço do Lumiar, and the Eleventh Court in the capital, all of which are at the preliminary stage.
161. Regarding the forms of redress agreed upon, the State reported the symbolic redress made by means of the aforesaid plaque to the memory of the 28 (twenty-eight) victims. It also referred to the material compensation for the beneficiary families whereby they were included in social interest housing programs and, as a result, 21 (twenty-one) families received homes located in the Estrela Dalva residential complex on December 31, 2006. Changes were made to the physical structure of those buildings, at the beneficiaries’ request. The State indicated that 3 (three) beneficiary families sold their houses, and another 6 (six) families expressed a wish for their homes to be built on their own land and not in a housing complex, a request that was honored by the State. In addition, the eligible families were included in the government income transfer program Bolsa Familia and, under Law No. 8.326 of 2005, as of April 2006 the families of the victims covered by the friendly settlement agreement began to receive a monthly stipend of R$500 (five hundred reals) for a period of 15 (fifteen) years.
162. As regards the measures of nonrepetition, Brazil reported its implementation, in the state of Maranhão, of the Action Program to Tackle Sexual Violence against Children and Adolescents in Brazil (PAIR), which is coordinated by the Special Secretariat for Human Rights of the Office of the President of the Republic, along with the State System for Tackling Sexual Violence against Children and Adolescents and the Interinstitutional Antidrug Action System. It also reports that the municipalities of São José de Ribamar, Paço do Lumiar, and Raposa were included in the Sentinel Program, under its current title of the Service to Tackle Sexual Exploitation of Children and Adolescents.
163. The State also described other measures, such as the expansion of the classes on “status of children and adolescents” taught as part of the ethics, citizenship, and human rights course at the Integrated Public Security Academy; its plans to introduce a course on “Violence against Children and Adolescents” at that same academy; five training courses, held in 2007 and organized by the Secretariat for Public Security of the state of Maranhão in partnership with the Padre Marcos Passerine Defense Center, on “attention for juvenile offenders and at-risk children” and “public security and the rights of children and adolescents”; Administrative Ruling No. 1377, amended by Resolution No. 2.437/2006, and Decree No. 20.531/2004, on procedural guidelines for handling children and adolescents who have been victims of violence; the plan to build a new police station in the city of Raposa, involving the state and municipal governments; the creation of the Official Experts Center to expedite cases of sexual violence against children and adolescents, involving the Superintendency of the Technical-Scientific Police, in January 2007; the provision of psychological and social expert testing at the Integrated Center for the Attention of Children and Adolescent Victims of Violence, with the experts of that center having received training and specialization courses; the organization of a public competition for the possible hiring of 4 (four) medical experts (currently there is one female doctor on a temporary contract to cover the Integrated Center’s needs); and the reactivation of the Public Defense Office in Paço do Luminar.
164. As for the measures intended to improve the school system for children and adolescents in Greater São Luís and the use of school facilities for sporting and cultural activities, the State reports that in September 2006, the state of Maranhão launched the “School for Life” program, intended to organize weekend activities in the areas of professional training, language study, sports, and other cultural undertakings. The program covers 33 schools in the São Luís Metropolitan Region and involves, as of 2007, all the region’s schools. These activities were also carried out under an agreement entered into with the National Union of Municipal Education Leaders. Likewise, the Maiobinha school, in Paço do Lumiar, was adapted, expanded, and converted into a center for basic and high-school education, with laboratories for computer studies, science, and mathematics, an auditorium, library, and sports facilities. In addition, another school was built in Cidade Operária.
165. In turn, the petitioners confirmed the working meetings on compliance with the friendly settlement agreement. They also referred to the visits made to the Estrela Dalva Housing Complex, where most of the beneficiary families received the houses they were given as part of the material redress package; the state schools built and remodeled by the State; the police station in the city of Raposa; and the Official Experts Center.
166. The State acknowledged its international responsibility in the matter, as provided for in clauses 4 and 5 of the agreement, on the occasion of the attendance at the document signing ceremony by the federal government’s Special Secretary for Human Rights and the Governor of Maranhão, who had offered a public retraction.
167. As for the prosecution and punishment of the guilty, a session of the People’s Jury Court was held on October 23 to 25, 2006, which heard the case against Francisco das Chagas Rodrigues de Brito, accused by the police investigation as being the perpetrator of all the homicides in the case, in the state of Maranhão. The judgment dealt with the murder of only one of the victims, Jonathan Silva Vieira, for which the defendant was found partially responsible and convicted to a prison term of 20 (twenty) years and 6 (six) months. Information indicates that the case involves other trials; during 2007, the only developments with them were the calls issued for preparatory hearings, at which witness statements were to be taken.
168. Regarding symbolic reparations included in clause 7 of the agreement, the State affixed a plaque in honor of all the identified victims in the Protection of the Child and the Adolescent Complex, in San Luís, on the day the agreement was signed.
169. As regards material reparation measures, the State partially complied with item III (2) of the agreement. Regarding clause 8, the inclusion of the families in housing programs has led to a series of problems. The petitioners report that initially, the beneficiaries were to receive houses in the areas where they currently lived. The State claimed, however, that because of technical restrictions, the houses could not be built in that area; it therefore offered to include the families in the Estrela Dalva Residential Complex, which had been occupied by squatters and housing protesters. The inhabitants already in the complex who had been involved in the protests since they started were reluctant to accept the admission of the victims’ families: they suffered retaliations and threats, and acts of discrimination continue. The families were also disappointed with the poor quality of the dwellings they received, which didn’t even have their walls plastered. In 2007, the state of Maranhão made some repairs; these, however, did not resolve all the structural problems, such as the lack of sanitation and the quality of the floors in the houses. In contrast, the 6 (six) families that received homes in the areas where they formerly lived expressed their satisfaction with their properties. However, two of these families had to purchase the land on which their homes were built, in breach of the terms of the agreement stipulating that the families would not have to incur in any expenditure.
170. With reference to the measures of nonrepetition, the petitioners report that most of the relevant clauses are still pending implementation. The State System for Tackling Sexual Violence against Children and Adolescents has not been fully implemented, and the Interinstitutional Antidrug Action System was not operating because its main agency, the State Antidrug Council, had been deactivated. According to the petitioners, the State spoke of the inclusion of a course on “violence against children and adolescents” in the military and civilian police training programs, together with other training courses, but presented no documents detailing those measures. They also note that Administrative Ruling No. 1377 (supra), on procedural guidelines for attending to children and adolescents who are victims of violence, needs to be implemented on a day-to-day basis by the local police; the Raposa police station has not been repaired and is operating precariously; the Expert Center continues to operate with an inadequate number of professionals and without infrastructure; and the Public Defense Office in Paço do Lumiar only has one public defender which, they claim, is an inadequate number for covering the region’s demands.
171. Regarding the measures for improving the school system used by children and adolescents in Greater São Luís and the use of school facilities for sporting and cultural activities, the petitioners report that no sporting and cultural activities have taken place at the weekends at the state’s network of schools; the agreement with the National Union of Municipal Education Leaders was not finalized; the Maiobinha school, in Paço do Lumiar, needs to be built and not repaired; and the basic education school in Cidade Operária was not built because, according to the State, there was no demand from students in the region, and so only the secondary school was built, where a plaque referring to the friendly settlement agreement was installed.
172. The IACHR concludes that the measures spelled out in the Friendly Settlement Agreement have been partially carried out.
CASE 12.001, Report N° 66/06, Simone André Diniz (Brazil)
173. In Report N° 66/06 of October 21, 2006, the IACHR concluded that the State was responsible for violating the right to equality before the law, the right to judicial protection and the right to a fair trial, as enshrined in Articles 24, 25 and 8, respectively, of the American Convention, to the detriment of Simone André Diniz. The Commission also determined that the State violated the duty to adopt domestic law provisions, pursuant to Article 2 of the American Convention, as well as its duty under Article 1.1 to respect and guarantee the rights enshrined in the Convention.
174. The IACHR issued the following recommendations to the Brazilian State:
1. Fully compensate the victim, Simone André Diniz, in both moral and material terms for human rights violations as determined in the report on the merits, and in particular,
2. Publicly acknowledge international responsibility for violating the human rights of Simone André Diniz;
3. Grant financial assistance to the victim so that she can begin or complete higher education;
4. Establish a monetary value to be paid to the victim as compensation for moral damages;
5. Make the legislative and administrative changes needed so that the anti-racism law is effective, in order to remedy the limitations indicated in paragraphs 78 and 94 of this report;
6. Conduct a complete, impartial and effective investigation of the facts, in order to establish and sanction responsibility with respect to the events associated with the racial discrimination experienced by Simone André Diniz;
7. Adopt and implement measures to educate court and police officials to avoid actions that involve discrimination in investigations, proceedings or in civil or criminal conviction for complaints of racial discrimination and racism;
8. Support a meeting with organizations representing the Brazilian press, with the participation of the petitioners, in order to draw up an agreement on avoiding the publicizing of complaints of racism, all in accordance with the Declaration of Principles on Freedom of Expression;
9. Organize government seminars with representatives of the judicial branch, the Public Ministry and local Public Safety Secretariats in order to strengthen protection against racial discrimination or racism;
10. Ask state governments to create offices specializing in the investigation of crimes of racism and racial discrimination;
11. Ask Public Ministries at the state level to create Public Prosecutor’s Offices at the state level specializing in combating racism and racial discrimination;
12. Promote awareness campaigns against racial discrimination and racism.
175. The State submitted no information regarding compliance with the aforesaid IACHR recommendations.
176. The petitioners report that, during 2007, a negotiation process with the Brazilian State began, through various public agencies, in connection with the implementation of the recommendations issued by the Commission in this case. On March 20, 2007, the governor of the state of São Paulo, by means of Decree No. 51.678, set up a working group to study the recommendations contained in IACHR Report N° 66/06 (Working Group), comprising representatives of various agencies of the state of São Paulo, including the Secretariat for Security and the Secretariat for Justice and the Defense of the Citizenry. However, neither the petitioners nor the victim were invited to participate in the working group, in spite of the importance and necessity of their involvement in discussions on compliance with the IACHR’s recommendations. Only toward the end of its work were the petitioners invited to hear about the measures studied by the group. Thus, the petitioners report that on July 30, 2007, they attended a meeting at the office of the state attorney general, where they were informed of the “Conclusions of the Working Group to Study the Recommendations of IACHR Report N° 66/06” and were invited to offer their comments. Those remarks were given to the working group at a meeting held on August 10, 2007.
177. Regarding recommendation No. 3, the petitioners established contact with the representative of the Special Secretariat for Racial Equality Policies and sent information on Simone André Diniz’s academic history and her plans to embark on a course of higher education. Finally, the petitioners stated that they learned, through press reports, that the São Paulo state government was to organize an event at which it was to announce its commitment of compensating the victim. The petitioners were not invited to attend that event. Consequently, the petitioners acknowledge the State’s efforts but maintain that it has still not met any of the recommendations issued by the Commission.
178. From the document supplied by the petitioners on the Working Group’s conclusions, it can be seen that: (a) the government of the state of São Paulo has set the compensation to be given to the victim, in compliance with recommendations Nos. 1 and 4, at R$36,000 (thirty-six thousand reals), equivalent to approximately US$16,000 (sixteen thousand U.S. dollars); (b) reopening the police investigation is impossible since there are no new facts to justify such a move; (c) refresher courses on human rights issues in the training programs of the military and civilian police in the state of São Paulo, together with the creation of human rights study groups or modules within state institutions, and training activities for members of the judiciary, the Public Prosecution Service, and the Secretariat for Public Security; and (d) the creation, during 2006, of the Specialized Police Detachment for Racial Affairs. The Commission does not, however, have any information on the effective implementation of those conclusions.
179. Based on the information furnished by the petitioners, the Commission concludes that the recommendations in question are pending compliance.
CASE 11.771, Report N° 61/01, Samuel Alfonso Catalán Lincoleo (Chile)
180. The Commission, in its Report N° 61/01 of April 16, 2001, concluded that the Chilean State had unquestionably violated, with respect to Samuel Alfonso Catalán Lincoleo, the right to personal liberty, life, and humane treatment set forth in Article I of the American Declaration and in Articles 4, 5, and 7 of the American Convention. The IACHR furthermore concludes that the Chilean State has violated, with respect to the members of Mr. Catalán Lincoleo’s family, the rights enshrined in Articles 8 and 25 of the American Convention, in conjunction with Articles 1(1) and 2 thereof. The Inter-American Commission also states, once again, that Decree-Law No. 2191—the amnesty law enacted in 1978 by Chile’s former military regime—is incompatible with Articles 1, 2, 8, and 25 of the American Convention.
181. The IACHR issued the following recommendations to the Chilean State:
1. Establish the parties responsible for the murder of Samuel Alfonso Catalán Lincoleo through due judicial process, so that the guilty parties may be effectively punished.
2. Adapt its domestic legislation to the American Convention, for which purpose it must declare Decree-Law No. 2191 of 1978 null and void.
3. Adopt the necessary measures to ensure that the victim’s next-of-kin receive adequate, timely reparations, including full satisfaction for the violations of the human rights established herein, as well as payment of fair compensation for material and nonmaterial damages caused, including pain and suffering.
182. On November 6, 2007, the Commission asked the parties to submit information on the state of compliance with those recommendations. The petitioners did not reply before the deadline, while the State lodged a communication dated December 17, 2007.
183. Regarding the third recommendation cited above, the communication from the Chilean State contains a general summary on “the comprehensive redress policies designed and implemented by the State of Chile on behalf of the victims of human rights violations.” Among these it refers to the reparations measures adopted following the country’s return to democracy in March 1990, such as the creation of the Truth and Reconciliation Commission, the legislation that was enacted, efforts to provide historical redress, and the construction of memorials as places for remembrance and discovery.
184. The State then refers to the reparation measures specifically adopted on behalf of the family of Mr. Samuel Alfonso Catalán Lincoleo: his mother, Sofía Lincoleo Montero; Adrina del Carmen Albarrán Contres and Gabriela Oidora Bucarey Molinet, the mothers of the victim’s children; and his son Samuel Miguel Catalán Albarrán. Those measures include the lifetime pension as redress established by Law 19.123 and redress lump sum set by Law 19.980, in addition to the educational benefits received by the victim’s children. The State reports that the total amount of compensation received by Samuel Alfonso Catalán Lincoleo’s family as of December 2007 stands at US $113,804 (one hundred and thirteen thousand, eight hundred and four U.S. dollars). As regards the symbolic redress for the violations established in IACHR Report 60/01, the State indicates that Samuel Alfonso Catalán Lincoleo’s name was included on the list of the more than 3,000 victims of human rights violations between September 1973 and March 1990 that appears on the memorial in Santiago’s General Cemetery, which is described as “the main landmark in the memorial construction policy and the most important project erected in the country to preserve the historical memory and restore the good name and dignity of the victims.”
185. Regarding the recommendations about investigating the incident and repealing the amnesty afforded by Decree Law No. 2.191 of 1978, the Chilean State notes that “compliance measures must aim at ensuring that that law does not pose an obstacle for the initiation or continuation of legal actions intended to pursue the responsibility of perpetrators of serious human rights violations.” The State notes, in general terms, that it has carried out a process of consultation and negotiation with various public agencies, organizations, and entities so that “the solution finally adopted is the result of what Chilean society as a whole has accepted as valid, reasonable, and effective, in that it yields the expected effects.”
186. The Commission concludes that there is partial compliance with the aforementioned recommendations.
CASE 11.715, Report N° 32/02, Juan Manuel Contreras San Martín et al. (Chile)
187. On March 12, 2002 the Commission approved a friendly settlement agreement in the case Juan Manuel Contreras San Martín et al.
In the agreement the State agreed to do the following:
1. Award to Messrs. Juan Manuel Contreras San Martín, José Alfredo Soto Ruz and Víctor Eduardo Osses Conejeros, a discretional annuity of three minimum wages each;
2. Provide to them free of charge adequate training in skills and trades in accordance with their expectations, aptitudes and possibilities, through the office of the National Training and Employment Service (SENCE) in the region where they live, in order to enable them to increase their financial incomes and enhance their quality of life;
3. Publicly provide reparation to the victims before their community by means of an act of the Regional Government duly disseminated by the mass media, designed to restore their reputation and honor that had been certainly damaged by the judicial decisions that once harmed them.
188. In the same report the Commission noted the compliance of these commitments and urged the State to promote relevant legislative studies and initiatives with regard to the compensatory norms for miscarriage of justice.
189. The Commission asked the parties to provide information on the status of the compliance with the recommendations. The petitioners responded on January 20, 2005 that “regarding the compliance of the conditions adopted in the friendly settlements, the Chilean State has duly executed the same.” The State informed that it has given full and complete compliance to the commitments outlined in the respective agreement.
190. Based on the information received, the IACHR reiterates it conclusion that the State has fully complied with the points of the friendly settlement agreement.
CASE 12.046, Report N° 33/02, Mónica Carabantes Galleguillos (Chile)
191. On March 12, 2002 the Commission approved a friendly settlement agreement in the case of Mónica Carabantes Galleguillos.
In the agreement the State undertook to:
1. Award a special scholarship of 1.24 Monthly Tax Units (UTM) to Mrs. Mónica Carabantes Galleguillos while she is enrolled in higher education.
2. Publicize the compensatory measures by means of an official communication on the matter, to be issued jointly with regional authorities, recognizing that rights of the petitioner enshrined in the American Convention on Human Rights–freedom from arbitrary or abusive interference with her private life and equal protection of the law–were violated when her enrollment was not renewed and she was obliged to leave the educational establishment where she was pursuing her studies, “Andrés Bello” school in Coquimbo, a private school subsidized with cofinancing, for the sole reason that she had become pregnant. In addition, steps would be taken to disseminate recent legislation (Law Nº 19,688), amending the Education Act, which contains provisions on the rights of pregnant students or nursing mothers to have access to educational establishments.
192. The Commission received reports from the State on July 18, and November 21, 2002. In the latter report, the State informed that on April 18, 2002, in the Intendance of Coquimbo’s IV Region, headquarters for the regional government, the Chilean State gave full compliance with the friendly settlement agreement, by way of a public act of amends to the petitioner, which included the symbolic presentation of the President of the Republic scholarship, effective March of the current year, and throughout her higher education. The State also informed that the petitioner Mónica Carabantes Galleguillos had been receiving the scholarship since March of the current year, for an average monthly sum of $35,000 (approximate equivalent of US $50).
193. On November 8, 2004 the Commission asked the parties to submit information on the status of compliance with the recommendations. On January 20, 2005 the petitioners informed the Commission that “regarding the compliance with the conditions adopted in the friendly settlement agreements, the Chilean State has duly executed the same.”
194. Based on the information received, the IACHR reiterates it conclusion that the State has fully complied with the points of the friendly settlement agreement.
CASE 11.725, Report N° 139/99, Carmelo Soria Espinoza (Chile)
195. On November 19, 1999, the Inter-American Commission made the following recommendations to the State of Chile:
1. Establish the liability of the persons identified as guilty of murdering Carmelo Soria Espinoza through a due judicial proceeding, so that the responsible parties are duly punished and the next-of-kin of the victim are effectively guaranteed the right to justice enshrined in Articles 8 and 25 of the American Convention.
2. Comply with the provisions of the Convention on Prevention and Punishment of Crimes Against Internationally Protected Persons, to ensure that violations of the human rights of international officials subject to international protection, such as the murder of Carmelo Soria Espinoza in his capacity as an official of ECLAC, are duly investigated and the guilty parties are effectively punished. In the event that the Chilean State considers that is unable to comply with its obligation to punish the responsible parties, it must then accept the authority of the universal jurisdiction for that purpose.
3. Adapt its domestic legislation to the American Convention on Human Rights, by abrogating Decree Law No. 2191 issued in 1978, so that the human rights violations of the de facto military government against Carmelo Soria Espinoza may be investigated and punished.
4. Adopt the necessary measures to ensure that the next-of-kin of the victim receive adequate and timely reparations, that include full satisfaction for the violations of the human rights established herein, as well as payment of a fair compensation for material and nonmaterial damages, including pain and suffering.
196. On March 6, 2003, the IACHR published Report N° 19/03 which contains the compliance agreement reached by the parties with respect to Case 11.725.
Under the terms of the agreement the State undertook to:
a) Issue a public declaration recognizing the responsibility of the State, through the action of its agents, for the death of Mr. Carmelo Soria Espinoza.
b) Erect a monument of remembrance to Mr. Carmelo Soria Espinoza in a location designated by his family in Santiago.
c) Pay a single lump sum of one million five hundred thousand United States dollars as compensation to the family of Mr. Carmelo Soria Espinoza.
d) Declare that Mr. Carmelo Soria Espinoza had the status of an international official of the United Nations, assigned to the Economic Commission for Latin America, ECLAC, as a senior staff member, and that he therefore had the status of a senior international staff official.
e) Present before the Courts of Justice of Chile an application to reopen criminal proceedings that were initiated to prosecute those who killed Mr. Carmelo Soria Espinoza.
For their part, the petitioners agreed to:
a) Terminate the action before the Inter-American Commission on Human Rights and expressly declares that all the recommendations contained in the Commission's report 133/99 have been complied with.
b) Desist from the suit for extracontractual liability of the State, in the case "Soria con Fisco” now before the Fourth Civil Court of Santiago under case Nº C-2219-2000, declaring that it agrees to terminate judicial proceedings initiated and that the reparations agreed before the Inter-American Commission on Human Rights are all that will be demanded of the State and that, consequently, the family will not pursue further judicial action for State liability, whether in connection with action of its agents or for physical or non physical damages, including moral damages. An authenticated copy of the judicial decision approving the withdrawal of action must be presented before the Commission by the petitioner, for purposes of demonstrating compliance with this agreement.
197. The Inter-American Commission continued to exchange information with the parties regarding compliance with the recommendations contained in Report N° 133/99, within the framework of the agreement cited above. The IACHR’s Annual Report for 2006 sets out the information received as of February 2007, and so the following section addresses the comments received after that date. On July 31, 2007, the Chilean State sent the IACHR a communication reporting that on July 18, 2007, the bill approving the aforesaid recommendation compliance agreement was passed by Congress and was referred to the Office of the President of the Republic of Chile for assent.
198. On August 30, 2007, the IACHR received a joint statement signed by the Director for Human Rights of the Chilean Ministry of Foreign Affairs, and by Alfonso Insunza Bascuñan, the lawyer representing the petitioners. That document states that the petitioners “accept as finally concluded the international complaint lodged against the State of Chile before the Inter-American Commission on Human Rights,” that “they accept as implemented all the recommendations set out in Report 139/99,” and that “they also accept as finally concluded the measures taken by the Inter-American Commission to monitor the recommendations… and request that it be duly archived.” In turn, the State said in that document that it “formally accepts the Declaration made by the petitioners’ representative and expresses its agreement with all parts of it, and assumes the commitment of continuing to inform [the IACHR] about compliance with the commitments regarding the payment of monetary compensation and the forms of symbolic redress offered.”
199. On September 4, 2007, the Chilean State reported that it had implemented item 3.III.c of Compliance Agreement Report N° 19/03, with the petitioner’s withdrawal of her suit alleging the State’s extracontractual responsibility as a consequence of this case and her agreeing to accept the reparations agreed on before the IACHR as the only redress that the State could be required to provide.
200. The IACHR concludes that the measures spelled out in the settlement agreement have been partially carried out.
PETITION 4617/02, Report N° 30/04, Mercedes Julia Huenteao Beroiza et al. (Chile)
201. On March 11, 2004, the Commission approved a friendly settlement procedure for the instant petition.
In the terms of the agreement the State pledged to adopt the following measures:
1. Measures to improve the legal institutions protecting the rights of indigenous peoples and their communities, including: a) constitutional recognition for the indigenous peoples in Chile; b) ratification of ILO Convention No. 169 by Chile; c) strengthening of indigenous participation in the Indigenous Development Area of the Alto Bío Bío; and d) Establishment of mechanisms that ensure the participation of indigenous communities in management of the Ralco Forest Reserve.
2. Measures designed to strengthen the territorial and cultural identity of the Mapuche Pehuenche people, as well as mechanisms for participation in their own development, including: a) creation of a municipality in the Upper Bío Bío sector; b) agreement on mechanisms to solve the land problems that affect the indigenous communities in the Upper Bío Bío sector; c) strengthen indigenous participation in the Upper Bío Bío Indigenous Development Area (ADI); and d) agreement on mechanisms designed to ensure the participation of indigenous communities in the management of the Ralco Forest Reserve.
3. Measures to foster development and environmental conservation in the Upper Bío Bío sector, including: a) agreement on mechanisms to ensure that indigenous communities are informed, heard, and taken into consideration in follow-up and monitoring of the environmental obligations of the Ralco Hydroelectric Project; b) strengthen economic development in the Upper Bío Bío sector, in particular in its indigenous communities, through mechanisms that are acceptable to the petitioners; c) agree on mechanisms to facilitate and improve tourism development of the reservoirs in the Upper Bío Bío for the benefit of the indigenous communities; and d) agree on binding mechanisms for all state organs to prevent the construction of future megaprojects, in particular hydroelectric projects, on indigenous lands in the Upper Bío Bío.
4. Agree, as soon as possible, on urgent measures with respect to the lawsuits against indigenous leaders who have been prosecuted for acts connected with the construction of the Ralco Plant.
5. Measures to satisfy the private demands of the Mapuche Pehuenche families concerned.
202. The IACHR received information from both parties about the status of compliance with the aforesaid agreement. The petitioners submitted a communication dated April 10, 2007, and received by the IACHR on May 8, 2007, addressing in detail each item of the agreement. They noted the implementation of the point requiring the creation of a commune in the Alto Bío Bío sector, the elected mayor of which is a Pehuenche Mapuche. They also report that the point requiring mechanisms to ensure participation by the communities indigenous in the management of the Ralco Forest Reserve has been met. As regards covering measures to satisfy the specific demands of the affected Pehuenche Mapuche families, they report the signing of a memorandum of understanding between the government and the Pehuenche families, which has been partially implemented.
203. Regarding the legislative measures, they say that the indigenous organizations have reservations about the draft constitutional amendment sent to Congress, which was prepared without their agreement; and that no progress has been made with Chile’s ratification of ILO Convention No. 169. They further maintain that the agreement on mechanisms to resolve the land problems facing the indigenous communities in the Alto Bío Bío and to strengthen their involvement in the Indigenous Development Area are also pending compliance. They also offered a series of thoughts regarding the other points that, in their opinion, have not been met or have only been met in part.
204. In turn, the Chilean State submitted a communication dated March 1, 2007, in which it reiterated “the most absolute willingness to comply with the signed agreement, to which end all the institutions have been working and will continue to do so, in order to expedite the acquired commitments to the extent that is possible.” It then explained the political and legislative context hindering congressional approval of ILO Convention 169, in that it requires a 3/5 majority of the members of Congress. After setting out the details of the legislative process, the State said that it was “defining a joint work program with the indigenous community organizations, in order to heighten the awareness of Chilean society in general and of its most important political and social actors, which will provide guidance regarding the possibility of giving the draft the necessary urgency in its passage through the Senate and thereby further expedite its approval at the earliest possible date.”
205. Among its most recent activities, the State reported that the President of Chile visited the Alto Bío Bío region in December 2006 and that it established a Territorial Development Plan that was to be drawn up by the end of March 2007. It added that it had “adopted all the measures intended to ensure the indigenous communities the availability of information and participation in the monitoring of the environmental obligations of the Ralco Hydroelectric Power Plant.” Regarding the legal proceedings against indigenous leaders facing prosecution for actions related to the construction of the Ralos Power Plant, the State said it was studying the most effective ways to improve the juridical status of Víctor Ancalaf Llaupe, who was enjoying Sunday releases and could, after six months, opt for a new form of provisional release from prison. As regards the measures for satisfying the specific demands of the affected Pehuenche Mapuche families, the State reports that it has worked to establish resolution mechanisms but they have not been accepted by the petitioners. It says that at a working meeting held in late 2006, parcels of land corresponding to the 1,200 hectares from the Fundo Porvenir were distributed by lots, and that the formalities for the issuing of the respective title deeds remain underway. Finally, the State reports that in September 2006 it held a special meeting with the beneficiaries of the academic scholarships, at which it explained the legal reasons why some of them had not received them.
206.
In view of the foregoing, the Commission considers that there is partial
compliance with the agreement. CASE 12.142, Report N° 90/05, Alejandra Marcela Matus Acuña et al. (Chile)
207. The Commission, in Report 90/05 of October 24, 2005, concluded that: a) Alejandra Matus Acuña was the victim of censorship on account of her “Black Book of Chilean Justice”, and that her books were seized by judicial order and were out of circulation for more than two years; b) Mrs. Matus Acuña was subjected to a judicial process that caused her to leave her country so as not to be imprisoned; and c) the Chilean society was deprived of its right to access to information, in particular, the persons named in paragraph 39 supra. Based on these facts the Commission determined that the State violated Articles 13 and 21 of the American Convention and was in violation of the duty to respect and ensure enshrined in Article 1(1) of the American Convention, and the duty to give effect in domestic law to the obligations assumed by the State, in accordance with Article 2 of the same Convention.
208. The IACHR issued the following recommendation to the Chilean State:
Provide for adequate reparations to Alejandra Marcela Matus Acuña for the consequences of the violations of the right to freedom of expression and the right to property, to the detriment of the journalist Alejandra Matus Acuña.
209. On November 6, 2007 the IACHR asked the two parties to submit up-to-date information regarding compliance with the recommendation. No reply was received from the petitioners before the deadline, whereas the State did reply by means of a letter dated December 19, 2007. In its communication the State said that “in July 2007 the State Defense Council issued a favorable ruling regarding the possibility of reaching a settlement in proceedings No. 9.822-06, conducted by the Fifteenth Civil Court of Santiago” for the injuries suffered by the journalist Alejandra Matus as a result of the injunction on the publication of her book titled El Libro Negro de la Justicia Chilena. The State added that in order for dialogue with the plaintiff and her legal representative to prosper, it was necessary for there to be “a specific proposal, covering both the economic aspects and the symbolic or moral redress, that would satisfy both parties and allow the recommendation to be deemed complied with.” Finally, it said that “to facilitate those talks, the State Defense Council gave a special appointment to three of its counselors to coordinate the relevant proposals and to promote and facilitate negotiations toward the resolution of the matter.”
210. The Commission concludes that there is partial compliance with the aforementioned recommendations.
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