ANNUAL REPORT OF THE IACHR 2007

CHAPTER III -
THE PETITION AND CASE SYSTEM

 

 Status of compliance with the recommendations of the IACHR

(Continuation)

 

CASE 12.078, Report N° 31/04, Ricardo Semoza Di Carlo (Peru)

 

547.          On March 11, 2004, the IACHR adopted a friendly settlement agreement in the Ricardo Semoza Di Carlo case in Report N° 31/04.

 

            In the terms of the agreement, the State:

 

1. Acknowledged its responsibility for violation of Articles 1(1) and 25 of the American Convention on Human Rights, to the detriment of Ricardo Semoza di Carlo.

 

2. Granted the following benefits to the petitioner as compensation: a)  recognition of the time that he was arbitrarily separated from the institution; b) immediate reinstatement in the Superior School of the National Police of Peru (ESUPOL); c) regularization of pension rights, as of the date of his reinstatement, taking into account the new calculation of his time in service; d) refund of the officers’ retirement insurance (FOSEROF, AMOF etc.); and e) a public ceremony will be held.

 

3. Pledged to undertake an exhaustive investigation of the facts and will prosecute any person found to have participated in the deeds of this case, for which an Ad Hoc Commission will be established by the Office of International Affairs and the Legal Advisory Services of the Ministry of the Interior.

 

548.          In a communication dated November 5, 2007, the IACHR asked both parties to submit up-to-date information on compliance with the friendly settlement agreement contained in Report N° 31/04. The State did not submit the requested information within the set deadline.[17]

 

549.          In turn, by means of a communication received at the IACHR’s Executive Secretariat on December 13, 2007, the petitioner reported that although the State had acknowledged the “real, effective, and uninterrupted” service time during which he was arbitrarily removed from active service, it had not yet implemented a series of related benefits arising from that acknowledgment. Specifically, Mr. Semoza Di Carlo states that he has not received the reimbursement due for outlays on fuel; the amounts owed to him have not been straightened out, nor have his contributions to the Official Retirement Insurance Fund; the apology ceremony has not been held; and, finally, the individuals responsible for failing to abide by the judicial orders protecting his abridged rights have not been investigated or punished. Finally, the petitioner claims that the noncompliance with these obligations has led to moral damages for both him and his family, along with consequential damages and loss of earnings.

 

550.          The IACHR concludes that the Peruvian State has partially complied with the aforesaid friendly settlement agreement.

 

PETITION 185-02, Report N° 107/05, Roger Herminio Salas Gamboa (Peru)

 

551.          On December 28, 2005, the IACHR adopted in Report N° 107/05, a friendly settlement agreement in the Roger Herminio Salas Gamboa petition.

 

            In the terms of the agreement, the State:

 

1. Considers that it is lawful, and an obligation of the State, for the National Council of the Judiciary to reinstate the title of full member of the Supreme Court of Justice of the Republic for Mr. Róger  Herminio Salas Gamboa, so that he may resume his duties.

 

2. Pledged to recognize the time not worked for the purposes of the calculating the labor benefits that he stopped receiving.

 

3. Recognized the petitioner’s right to the payment of comprehensive compensation.

 

4. Pledges to hold a Ceremony to Restore Reputation for Mr. Róger Herminio Salas Gamboa within three months of the signing of this Agreement.

 

552.          In a communication dated November 5, 2007, the IACHR asked both parties to submit up-to-date information on compliance with the friendly settlement agreement contained in Report N° 107/05. Neither party presented the information requested before the deadline.

 

553.          In consideration whereof, the IACHR concludes that there has been only partial compliance on the part of the Peruvian State with the recommendations set out in the Report.

 

Case 12.033, Report N° 49/06, Rómulo Torres Ventocilla (Peru)

 

554.          On March 15, 2006, the IACHR adopted a friendly settlement agreement in the Rómulo Torres Ventocilla case in Report N° 49/06.

 

            In accordance with the agreement, the State:

 

1. Recognized its responsibility under Articles 8(1), 11, 23(1)(c), 24, and 25(1) of the American Convention on Human Rights, for the harm caused to Rómulo Torres Ventocilla during the period from April 24, 1992, the date on which he was arbitrarily dismissed, and July 25, 2002, the date of his actual reinstatement in judicial service.

 

2. Recognized the petitioner’s entitlement to a payment in the amount of $40,000.00 (forty thousand U.S. dollars) as full compensation.

 

555.          In a communication dated November 5, 2007, the IACHR asked both parties to submit up-to-date information on compliance with the friendly settlement agreement contained in Report N° 49/06. The State did not submit any information before the deadline set.

 

556.          In turn, the petitioner reported by means of a communication received on December 19, 2007, that he had been paid the amount of US$40,000.00 as compensation on March 31, 2006.

 

557.          The Commission concludes that the friendly settlement agreement agreed on by the parties and approved by the Inter-American Commission has been implemented in full.

 

PETITION 711-01 et al., Report N° 50/06, Miguel Grimaldo Castañeda Sánchez et al. (Peru)

 

558.          On March 15, 2006, the IACHR adopted Report N° 50/06, which analyzed the friendly settlement reached by the petitioners and the Peruvian State.

 

According to the terms of the agreement, the Peruvian State:

 

1. Pledged to restore the corresponding title and facilitate the reinstatement of the judicial officials.

 

2. Pledged to recognize the period of service not worked in calculating duration of service, retirement, and other applicable employment benefits under Peruvian law.

 

3. Agreed to make compensation.

 

4. Will conduct a new evaluation and reconfirmation process under the purview of the National Council of the Magistracy for the judicial officials included in the instant agreement.

 

5. Pledged to hold a Public Reparations Ceremony for the reinstated judicial officials.

 

559.          In a communication dated November 5, 2007, the IACHR asked both parties to submit up-to-date information on compliance with the friendly settlement agreement contained in Report N° 31/04. Neither party presented the information requested before the deadline.

 

560.          The IACHR concludes that there has been only partial compliance on the part of the Peruvian State with the recommendations set out in the Report.

 

PETITION 33-03 et al., Report N° 109/06, Héctor Núñez Julca et al. (Peru)

 

561.          On October 21, 2006, the IACHR adopted Report N° 109/06, which analyzed the friendly settlement reached by the petitioners and the Peruvian State.

 

According to the terms of the agreement, the Peruvian State:

 

1. Pledged to restore the corresponding title and facilitate the reinstatement of the judicial officials.

 

2. Pledged to recognize the period of service not worked in calculating duration of service, retirement, and other applicable employment benefits under Peruvian law.

 

3. Agreed to make compensation.

 

4. Will conduct a new evaluation and reconfirmation process under the purview of the National Council of the Magistracy for the judicial officials included in the instant agreement.

 

5. Pledged to hold a Public Reparations Ceremony for the reinstated judicial officials.

 

562.          In a communication dated November 5, 2007, the IACHR asked both parties to submit up-to-date information on compliance with the friendly settlement agreement contained in Report N° 31/04. The State did not submit any information before the deadline set.

 

563.          In turn, one of the petitioners who signed the friendly settlement agreement submitted information in response to the IACHR’s request, reporting that the National Council of the Magistracy (CNM) had reinstated his position, that he was currently working at a court under oath, that his years of service had been recognized, and that the CNM had invited him to undergo a new assessment and ratification procedure. Irrespective of the foregoing, the petitioner reported that the apology ceremony had not taken place and that he had still not received the compensation payment agreed upon and due to him.

 

564.          The IACHR concludes that there has been only partial compliance on the part of the Peruvian State with the recommendations set out in the Report. 

           

CASE 9903, Report N° 51/01, Rafael Ferrer Mazorra et al. (United States)

 

565.          In Report N° 51/01 dated April 4, 2001 Commission concluded that the State was responsible for violations of Articles I, II, XVII, XVIII and XXV of the Declaration with respect to the petitioners’ deprivations of liberty.

 

566.          The IACHR issued the following recommendations to the State:

 

1. Convene reviews as soon as is practicable in respect of all of the Petitioners who remained in the State’s custody, to ascertain the legality of their detentions in accordance with the applicable norms of the American Declaration, in particular Articles I, II, XVII, XVIII and XXV of the Declaration as informed by the Commission’s analysis in the report; and

 

2. Review its laws, procedures and practices to ensure that all aliens who are detained under the authority and control of the State, including aliens who are considered “excludable” under the State’s immigration laws, are afforded full protection of all of the rights established in the American Declaration, including in particular Articles I, II, XVII, XVIII and XXV of the Declaration as informed by the Commission’s analysis in its report.

 

567.          In its 2006 Annual Report, the Commission indicated that compliance with its recommendations transcribed above was still pending. By letter dated March 6, 2007, the State reiterated its arguments of December 15, 2005, in which it disagreed with and declined the Commission’s recommendations and denied any violations of the American Declaration of the Rights and Duties of Man in this case. The Petitioner has not provided the Commission with updated information.

 

568.          The Commission concludes that compliance with the recommendations remains pending.

 

CASE 12.243, Report N° 52/01, Juan Raul Garza (United States)

 

569.          In Report N° 52/01 dated April 4, 2001, the Commission concluded that the State was responsible for violations of Articles I, XVIII and XXVI of the American Declaration in condemning Juan Raul Garza to the death penalty.  The Commission also hereby ratified its conclusion that the United States will perpetrate a grave and irreparable violation of the fundamental right to life under Article I of the American Declaration, should it proceed with Mr. Garza's execution based upon the criminal proceedings under consideration.

 

570.          The IACHR issued the following recommendations to the State:

 

1. Provide Mr. Garza with an effective remedy, which includes commutation of sentence; and

 

2. Review its laws, procedures and practices to ensure that persons who are accused of capital crimes are tried and, if convicted, sentenced in accordance with the rights established in the American Declaration, including Articles I, XVIII and XXVI of the Declaration, and in particular by prohibiting the introduction of evidence of unadjudicated crimes during the sentencing phase of capital trials.

 

571.          In its 2006 Annual Report, the IACHR presumed that the recommendations were pending compliance. By note dated March 6, 2007, the State informed the Commission that Mr. Gaza had been executed in June of 2001. Moreover, with regard to recommendation No. 2, the State reiterated its previous position stated in its letter of December 15, 2005, insofar as it disagreed with this recommendation. The Petitioner, on the other hand, stated that Mr. Garza had indeed already been executed and that the State had also failed to comply with recommendation No. 2.

 

572.          On the basis of the foregoing information, the Commission concludes that the recommendations are still pending compliance.
 

CASE 11.753, Report N° 52/02, Ramón Martinez Villareal, (United States)

 

573.          In Report N° 52/02 dated October 10, 2002, the IACHR concluded that: a) the State was responsible for violations of Articles XVIII and XXVI of the American Declaration in the trial, conviction and sentencing to death of Ramón Martinez Villareal; and, b) should the State execute Mr. Martinez Villareal pursuant to the criminal proceedings at issue in this case, the State would perpetrate a grave and irreparable violation of the fundamental right to life under Article I of the American Declaration.  

 

574.          The IACHR issued the following recommendations to the State:

 

1. Provide Mr. Martinez Villareal with an effective remedy, which includes a re-trial in accordance with the due process and fair trial protections prescribed under Articles XVIII and XXVI of the American Declaration or, where a re-trial in compliance with these protections is not possible, Mr. Martinez Villareal’s release.

 

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.

 

575.          In its 2006 Annual Report, the Commission declared that there had been partial compliance with its recommendations. In line with the foregoing, on March 6, 2007, the State informed the IACHR that Mr. Martínez Villareal was considered incompetent to stand trial, and subsequently, the death sentence was vacated. According to the State, as of February 5, 2007, Mr. Martínez Villareal was undergoing treatment at an Arizona State Hospital, and was still determined to be incompetent to be re-sentenced.

 

576.          In relation to recommendation No. 2, the State declared that it is fully committed to meeting its obligations under the Vienna Convention on Consular Relations. In this regard, it is conducting on-going efforts to improve compliance with the obligation to respect the right to consular assistance of detained foreign nationals. For instance, the Department of State’s Bureau of Consular Affairs has carried out an aggressive program of awareness. In addition to that, the State affirmed that since 1998, the State Department has distributed to federal, state and local law enforcement agents over one thousand training videos, booklets and pocket cards regarding arrests and detention of foreign nationals; as well as has conducted over 350 training seminars on the right to consular assistance throughout the United States and its territories, and has created an online training course on the topic.

 

577.          The Petitioners have not provided the Commission with updated information regarding compliance with the recommendations in this case.

 

578.          Based on the available information, the Commission concludes that the State has partially complied with the recommendations set forth in Report N° 52/02.

 

CASE 12.285, Report N° 62/02, Michael Domingues (United States)

 

579.          In Report N° 62/02, dated October 22, 2002, the IACHR issued the following recommendations to the State:

 

1. Provide Michael Domingues with an effective remedy, which includes commutation of sentence.

 

2. Review its laws, procedures and practices to ensure that capital punishment is not imposed upon persons who, at the time their crime was committed, were under 18 years of age. 

 

580.          In a communication dated December 20, 2005, Mr. Domingues’ representatives informed the Commission that the conclusions contained in Report 62/02 were presented to the Nevada authorities, who neglected to take any measures toward compliance. The petitioners indicated that previously, the U.S. Supreme Court decided in Roper v. Simmons, 543 U.S. 551 (2005) that applying the death penalty to people who were under 18 at the time they committed their crimes was prohibited by the Eighth Amendment as cruel and unusual punishment, and that the death penalty sentence previously handed down for Michael Domingues had been commutated to life imprisonment without parole.

 

581.          In a communication dated December 28, 2005, the State indicated analogically that in the recent U.S. Supreme Court decision Roper v. Simmons, (125 S Ct. 118 [2005]), the Court sustained that the application of the death penalty to minors who were under 18 when they committed their crimes as unconstitutional, according to the Eighth and Fourteenth Amendments of the U.S. Constitution.

 

582.          On the basis of the foregoing information, the IACHR reiterates its conclusion that the State has fully complied with the recommendations.

 

CASE 11.140, Report N° 75/02, Mary and Carrie Dann (United States)

 

583.          In Report N° 75/02 dated December 27, 2002, the IACHR concluded that the State failed to ensure the Danns’ right to property under conditions of equality contrary to Articles II, XVIII and XXIII of the American Declaration in connection with their claims to property rights in the Western Shoshone ancestral lands.

 

584.          The IACHR issued the following recommendations to the State:

 

1. Provide Mary and Carrie Dann with an effective remedy, which includes adopting the legislative or other measures necessary to ensure respect for the Danns’ right to property in accordance with Articles II, XVIII and XXIII of the American Declaration in connection with their claims to property rights in the Western Shoshone ancestral lands.

 

2. Review its laws, procedures and practices to ensure that the property rights of indigenous persons are determined in accordance with the rights established in the American Declaration, including Articles II, XVIII and XXIII of the Declaration.

 

585.          The State has not provided the Commission with updated information regarding compliance with the recommendations in this case. However, in a working meeting that took place during the Commission’s 127th ordinary period of sessions in March of 2007, the State reiterated its long-standing position that the Western Shoshonian land claims were appropriately resolved by the Indian Claims Commission in 1962, thus it considers the present matter closed. The State added that this case is related to a dispute within the community, and that there are several Executive Orders regarding protection for indigenous peoples’ rights. On the subject of recent mining projects on the land at issue, the State affirmed that it has taken mitigating measures.

 

586.          In communications dated November 21, 2007, and December 12, 2007, the Petitioners vehemently asserted that the United States has done nothing to comply with the Commission’s recommendations in this case. Besides, the Petitioners stated that the United States has further violated the rights of the victims in this case, by implementing the following measures: continuing with plans to store nuclear waste on Western Shoshone ancestral lands; moving forward with a water pipeline that would drain water from aquifers beneath Western Shoshone lands; continuing approval processes of gold mining expansions and allowing grazing in spiritually and culturally significant areas; moving forward with the sale of Western Shoshone ancestral lands from mining expansion plans and oil and gas leasing; approving the construction of a coal fired electric power plant on Western Shoshone lands; and threatening controlled burning of almost 60,000 acres of Western Shoshone ancestral lands. In view of the aforementioned, the Petitioners requested the Commission to conduct a fact-finding on-site visit to Western Shoshone territory and to recommend a training workshop for public officials on the international human rights of indigenous peoples.

 

857.          Based upon the information available, the Commission considers that compliance with its recommendations set forth in Report N° 75/02 remains pending.

 

CASE 11.193, Report N° 97/03, Shaka Sankofa (United States)

 

588.          In Report N° 97/03 dated December 29, 2003, the Commission concluded that: a) the State was responsible for violations of Articles XVIII and XXVI of the American Declaration in the trial, conviction and sentencing to death of Shaka Sankofa; b) by executing Mr. Sankofa based upon these criminal proceedings, the State was responsible for a violation of Mr. Sankofa’s fundamental right to life under Article I of the American Declaration; and c)  the State acted contrary to an international norm of jus cogens as encompassed in the right to life under Article I of the America Declaration by executing Mr. Sankofa for a crime that he was found to have committed when he was 17 years of age.

 

589.          The IACHR issued the following recommendations to the State:

 

1. Provide the next-of-kin of Shaka Sankofa with an effective remedy, which includes compensation.

 

2. Review its laws, procedures and practices to ensure that violations similar to those in Mr. Sankofa’s case do not occur in future capital proceedings.

 

3. Review its laws, procedures and practices to ensure that capital punishment is not imposed upon persons who, at the time his or her crime was committed, were under 18 years of age.

 

590.          In its 2006 Annual Report, the Commission stated that based upon the information available, it considered that there had been partial compliance with its recommendations set forth in Report N° 97/03. In a communication dated March 6, 2007, the State reiterated that it disagreed with the first two recommendations of the IACHR. With respect to the third recommendation, the State reminded the Commission of the Supreme Court’s ruling in Roper v. Simmons (125 S. Ct. 1183 [2005]), which held that imposing the death penalty on offenders who were under the age of 18 when the crime was committed was unconstitutional, since it violated the Eight and Fourteenth Amendments. The Petitioners have not provided the Commission with updated information since the publication of its 2006 Annual Report.

 

591.          Therefore, the Commission concludes that compliance with the recommendations in Report N° 97/03 remains partial. The Commission takes special note of the aforementioned Supreme Court sentence in Roper v. Simmons which prohibited the imposition of the death penalty to minors under the age of 18 at the time their crime was committed, in line with the Commission’s third recommendation.
 

CASE 11.204, Report N° 98/03, Statehood Solidarity Committee (United States)

 

592.          In Report N° 98/03 dated December 29, 2003, the Commission concluded that the State was responsible for violations of the petitioners’ rights under Articles II and XX of the American Declaration by denying them an effective opportunity to participate in their federal legislature.

 

593.          The IACHR issued the following recommendation to the State:

 

Provide the petitioners with an effective remedy, which includes adopting the legislative or other measures necessary to guarantee to the petitioners the effective right to participate, directly or through freely chosen representatives and in general conditions of equality, in their national legislature.

 

594.          In its 2006 Annual Report, the IACHR stated that compliance with its recommendation in this case was pending. By note dated March 6, 2007, the State reiterated that it disagreed with and declined the Commission’s recommendation and denied any violations of the American Declaration of the Rights and Duties of Man based upon its previous responses in this case. In a letter dated December 5, 2007, the Petitioners stated that the United States had failed to comply with the Commission’s recommendation, since to date the residents of the District of Columbia remain disenfranchised, without the right to equal representation in the United States Senate and House of Representatives.

 

595.          Based upon the information available, the Commission considers that compliance with its recommendation remains pending. 

 

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[17] The State requested an extension of the deadline; the request was granted by the Commission and the State was given until December 15, 2007, to submit its reply.

[18] The State clarified that “as of the date hereof, the exchange rate is $22.15 Uruguayan pesos to the U.S. dollar.”