IACHR ANNUAL REPORT 2008

CHAPTER III - THE PETITION AND CASE SYSTEM

  Status of compliance with the recommendations of the IACHR (Continuation)

Case 11.771, Report No. 61/01, Samuel Alfonso Catalán Lincoleo (Chile)

180.          In Report No. 61/01 of April 16, 2001, the Commission concluded that the Chilean State had violated, with respect to Samuel Alfonso Catalán Lincoleo, the rights to personal liberty, life, and personal security, enshrined at Article I of the American Declaration and Articles 4, 5, and 7 of the American Convention. In addition, the IACHR concluded that the Chilean State violated, to the detriment of Mr. Catalán Lincoleo’s next-of-kin, the rights enshrined in Articles 8 and 25 of the American Convention, in keeping with Articles 1(1) and 2 of that instrument. In addition, the IACHR reiterated that Decree-Law No. 2,191, on self-amnesty, issued in 1978 by the past military regime of Chile, is incompatible with Articles 1, 2, 8, and 25 of the American Convention. All the foregoing was in connection with the forced disappearance of Samuel Alfonso Catalán Lincoleo, 29 years of age, who was an agricultural technical expert with ties to the Communist Party when he was detained on August 27, 1974, in his domicile in the city of Lautaro, Chile, by members of the Carabineros, soldiers, and civilians. The family members turned to the Chilean courts in 1979 with a complaint stating the facts, but the matter was archived in October 1981 by application of Decree-Law 2,191 of 1978, which ordered amnesty for the violations committed since the September 1973 coup in Chile. In 1992 an effort was made to bring a new judicial action, which culminated in November 1995 with the dismissal with prejudice by application of the self-amnesty decree-law cited above. Finally, the Supreme Court of Justice of Chile decided on a motion for cassation on the merits of the case with its ruling of January 16, 1997, which found that the legal action had prescribed.

181.          The IACHR made 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.          The IACHR requested information from the parties by communication of November 12, 2008.  Nonetheless, no response has been received from either of the parties in the time frame established for doing so.

183.          As regards the first recommendation, the Commission was informed by the State in previous years that there was an ongoing investigation to clarify the death of Mr. Catalán Lincoleo and that it was in the preliminary investigative stage.[1]  In a communication received on February 1, 2005, the State indicated that it was adopting the pertinent measures so that, through the Human Rights Program of the Ministry of Interior, the judicial investigations under way into the disappearance of Samuel Catalán Lincoleo not be exhausted or interrupted until the circumstances of his detention and subsequent disappearance are established, and until those responsible are determined and sanctioned.[2]  The Commission has not been informed recently of the status of the judicial investigation begun into the forced disappearance of Mr. Catalán Lincoleo.  With respect to the second recommendation, the Commission has not been informed of specific measures adopted domestically to strike down Decree-Law No. 2,191 of 1978.

184.          As regards the third recommendation, although it has not been possible to verify the agreement of the victim’s next-of-kin, the IACHR considers that the State has made progress through general and particular measures that were described in the Annual Reports for 2005[3] and 2007.[4]

185.          Based on the information available, the Commission concludes that the Chilean State has partially carried out the recommendations noted.

Case 11.715, Report No. 32/02, Juan Manuel Contreras San Martín et al. (Chile)

186.          On March 12, 2002, by Report No. 32/02, the Commission approved a friendly settlement agreement in the case of Juan Manuel Contreras San Martín, Víctor Eduardo Osses Conejeros, and José Alfredo Soto Ruz.  In summary, the petitioners had made arguments alleging the responsibility of the State for having been deprived of liberty for more than five years due to a judicial error, and for then having denied the compensation they claimed. The three persons were detained for the homicide of a woman and alleged that the police subjected them to physical abuse and psychological pressures until obtaining their confession.

187.          According to the friendly settlement agreement, the State undertook to:

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 took note of the implementation of these commitments, and urged the State to promote relevant studies and legislative initiatives in relation to the rules governing compensation in the case of judicial error.

189.          The Commission asked the parties to provide information on the status of implementation of the recommendations. The Commission received information from the petitioners on January 20, 2005. The petitioners informed that Commission “that with respect to carrying out the conditions adopted in the context of those friendly settlement agreements, the Chilean State has faithfully executed them.” The State reported that it has fully carried out the commitments it assumed in the respective agreement.

190.          Accordingly, the IACHR concluded that the friendly settlement agreement was fully implemented.

Case 12.046, Report No. 33/02, Mónica Carabantes Galleguillos (Chile)

191.          On March 12, 2002, by Report No. 33/02, the Commission approved a friendly settlement agreement in the case of Mónica Carabantes Galleguillos. In summary, the petitioners had made allegations regarding the responsibility of the State by virtue of the refusal of that country’s courts to punish the abusive meddling in the private life of Mónica Carabantes Galleguillos, who brought a judicial claim against the decision of the private high school that expelled her for getting pregnant.

192.          By means of that 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. 

193.          The Commission received reports from the State on July 18 and November 21, 2002. In its last report the State indicated that on April 18, 2002, in the intendancy of the IV Region of Coquimbo, the seat of the regional government, the Chilean State fully implemented the friendly settlement agreement that was reached, by means of a public act to make reparation for the injury to the petitioner, which included the symbolic awarding of the President of the Republic Scholarship, as from March of this year, and so long as she continues her higher education, and that petitioner Mónica Carabantes Galleguillos is receiving the scholarship as of March of this year, for an average monthly amount of $ 35,000 (equivalent to approximately US$ 50).

194.          On November 8, 2004, the Commission asked the parties to provide information on the status of implementation of the recommendations. The Commission received information from the petitioners dated January 20, 2005. The petitioners reported to the Commission “that with respect to carrying out the conditions adopted in the context of those friendly settlement agreements, the Chilean State has faithfully executed them.” 

195.          Accordingly, the IACHR concluded that the friendly settlement agreement was fully implemented.

Case 11.725, Report No. 139/99, Carmelo Soria Espinoza (Chile)

196.          In Report No. 139/99 of November 19, 1999, the IAHCR concluded that the State violated the rights to personal liberty and humane treatment, and the right to life, of Carmelo Soria, enshrined in Article I of the American Declaration of the Rights and Duties of Man. The Commission also found that the dismissal with prejudice of the criminal charges that had been brought for the detention and disappearance of Carmelo Soria Espinoza negatively affects the right to justice of the petitioners, and as a result, the Chilean State has violated its international obligations enshrined at Articles 8 and 25, 1(1) and 2 of the American Convention; that Decree-Law 2,191 of 1978, the self-amnesty law, is incompatible with the American Convention, which was ratified by Chile on August 21, 1990; that the judgment of the Supreme Court of Chile that finds said Decree-Law 2,191 constitutional of binding application, when the American Convention had already come into force for Chile, violates Articles 1(1) and 2 of said Convention; that the Chilean State has not carried out Article 2 of the American Convention, for it has not brought its legislation into line with the provisions of the Convention; that it has ceased to be in compliance with the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons for having adopted Decree-Law 2,191 and because its administration of justice organs have not punished the perpetrators of the crimes committed against Carmelo Soria.  Mr. Carmelo Soria Espinoza, 54 years of age, and a dual Spanish and Chilean national, worked as the chief of the editorial and publications section at the Latin American Demography Center (CELADE) in Chile, an entity of the Economic Commission for Latin America and the Caribbean (ECLAC), which is part of the United Nations, accordingly Mr. Soria was an international civil servant.

197.          On November 19, 1999, the Inter-American Commission made the following recommendations to the Chilean State:

1.  To establish the responsibility of the persons identified as guilty of the murder of Carmelo Soria Espinoza by due process of law, in order for the parties responsible to be effectively punished and for the family of the victim to be effectively ensured the right to justice, enshrined in Articles 8 and 25 of the American Convention.

2.  To comply with the provisions of the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, in order for human rights violations, committed against international officials entitled to international protection, such as the execution of Mr. Carmelo Soria Espinoza in his capacity as an officer of ECLAC , to be appropriately investigated and effectively punish those responsible.  Should the Chilean State consider itself unable to fulfill its obligation to punish those responsible, it must, consequently, accept the authorization of universal jurisdiction for such purposes.

3.  To adapt its domestic legislation to reflect the provisions contained in the American Convention on Human Rights in such a way that Decree Law No. 2.191 enacted in 1978 be repealed, in order that human rights violations committed by the de facto military government against Carmelo Soria Espinoza may be investigated and punished.

4.  To adopt the necessary measures for the victim’s family members to receive adequate and timely compensation that includes full reparation for the human rights violations established herein, as well as payment of fair compensation for physical and non physical damages, including moral damages. 

198.          On March 6, 2003, the IACHR published Report No. 19/03, which contains the agreement on implementation the parties reached with respect to Case 11,725.

199.          In the terms of the agreement on implementation, the State committed 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.

200.          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.

201.          On July 31, 2007, the Chilean State sent a communication to the IACHR in which it reported that on July 18, 2007, the legislative processing of the bill aimed at approving the agreement on implementation of the recommendations mentioned, and that it was referred, for its promulgation, to the Presidency of the Republic of Chile.  On August 30, 2007, the State sent the IACHR a joint statement signed by the Director for Human Rights of the Ministry of Foreign Relations of Chile, and by attorney Alfonso Insunza Bascuñan, the petitioners’ representative, in which the petitioners indicate that they “consider concluded, definitively, the international complaint or claim filed against the Chilean State before the Inter-American Commission on Human Rights” and that “they consider that all of the recommendations contained in Report 139/99 have been carried out,” requesting they be “archived accordingly.”  On September 4, 2007, the Chilean State reported that item 3.III.c of the Report of the Agreement on Implementation No. 19/03 had been complied with by virtue of the petitioner abandoning her complaint for extra-contractual liability of the State as a result of the facts of the instant case, and her agreement to accept the reparations agreed upon before the IACHR as the only ones that may be enforced as against the State.

202.          On January 16, 2008, the State informed the IACHR that it had carried out the commitments to pay monetary compensation, by making payment for an ex gratia pension as compensation to the family of Mr. Carmelo Soria and, with the acts of symbolic reparation established in Agreement on Implementation No. 19/03, by recognition of the responsibility of the Chilean State in the death of Mr. Carmelo Soria and building a memorial in tribute to his life and work. Specifically, the State indicated that on November 8, 2007, the ceremony was held “Unveiling the Plaque in Tribute to Carmelo Soria” at the headquarters of the Economic Commission for Latin America and the Caribbean (ECLAC) in Santiago, at which Carmelo Soria’s widow and children were present, along with the President of the Republic of Chile, the President of the Government of Spain, and the UN Secretary General.  The Ministry of Foreign Relations gave the Secretary General of ECLAC four checks for US$ 375,000 issued by the General Treasury of the Republic of Chile, to Carmelo Soria’s widow and three children. 

203.          Subsequently, on October 21, 2008, the State reported that the Human Rights Program of the Ministry of Interior, created by Law 19,123, became a party to case No. 7.891-OP “C”, which is investigating the crimes of illicit association and obstruction of justice, under the responsibility of the Judge Alejandro Madrid, of the Court of Appeals of Santiago, carrying out what was indicated by the IACHR in its Report No. 133/99.  The State indicates that the previous case was begun on October 25, 2002, upon complaint submitted by Ms. Carmen Soria González-Vera against four members of the Dirección de Inteligencia Nacional (DINA) and any others who turn out to be responsible, as perpetrators, accomplices, or aiders and abettors in the crimes of obstruction of justice and illicit association to the detriment of Carmelo Soria, for the homicide of DINA chemist Eugenio Berríos Sagredo, who was taken out of the country to Uruguay to keep him from testifying in some judicial proceedings, including in the case of Mr. Carmelo Soria.

204.          At the Commission’s request, the petitioners sent a communication on November 13, 2008, in which they reported that, as expressed by the State, in Case No. 7.981-C there is a petition pending to issue an indictment for the crime of illicit association and others. In addition, the petitioners indicated that based on the new information in that case, they will ask that Case No. 1-93, in the homicide of Carmelo Soria Espinoza before the Supreme Court, be reopened so that the persons responsible may be punished and to set aside the dismissal with prejudice due to application of Decree-Law 2,191 of 1978 on Amnesty. 

205.          The Commission, based on the information it has in this case, observes that all the commitments assumed by the parties in Report No. 19/03 have been carried out.  As regards compliance with the recommendations made by the Commission in Report No. 139/99, the Commission considers that the State has carried these out in part.

206.          The Commission values the efforts made by the Chilean State to carry out its recommendations in this case, which not only benefits the victim’s next-of-kin, but also strengthens the effectiveness of the inter-American system for the protection of human rights.  The IACHR encourages the Chilean State to continue its efforts to fully implement all the recommendations made by the Commission in this case.

Petition 4617/02, Report No. 30/04, Mercedes Julia Huenteao Beroiza et al.
            (Chile)

207.          On March 11, 2004, by Report No. 30/04, the Commission approved a friendly settlement agreement in the petition of Mercedes Julia Huenteao Beroiza et al. In summary, the petitioners, who are members of the Mapuche Pehuenche people, from the sector known as Alto del Bío Bío, Region VIII in Chile, had made arguments regarding the State’s responsibility for the development of the Ralco Hydroelectric Project, carried out by the Empresa Nacional de Electricidad S.A. (ENDESA), in the areas in which they lived.

208.          According to that agreement, the State committed to the following:

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.

209.          The State reported that on September 15, 2008, it ratified ILO Convention 169 and that it was promulgated on October 2, 2008, and was published in the Diario Oficial on October 14, 2008.  The State indicated that Convention 169 will come into force in Chile on September 15, 2009, as established by Article 38(3) of said Convention, which would mean that commitment 2(a) of the previous agreement would be met.

210.          By communication of December 18, 2008, the State reported that commitment 3(a) had been carried out. As regards commitment 3(b), the State reported that lands had been bought for almost all the Pewenche communities that belonged to the Comuna del Alto Bío Bío, and that at that time work was under way to follow through on the purchases for the communities of Butalelbun, Malla Malla, and Trapa Trapa, all of them belonging to the Cajón del Queuco. With respect to commitment 3(c), the State indicated that the Office of the Provincial Governor and the Corporación Nacional de Desarrollo Indígena, CONADI, have continued making efforts to be able to constitute the Board of the Indigenous Development Area, pursuing all alternatives that may lead to that. As regards commitment 3(d), the State indicated that to date CONADI and the Corporación Nacional Forestal, CONAF, are studying, along with the indigenous communities, how to administer the Ralco reserve. 

211.          As regards commitment 4(a) of the friendly settlement agreement, the State indicated that the measures necessary for the audit results to be sent, among others, to the municipality of Santa Bárbara and Alto Bío Bío had been taken for public consultation, and published at the CONAMA website.  In addition, it notes that the office of Executive Director of CONAMA and the public services have monitored and overseen the project, as established in the resolution with the environmental assessment. As regards the impacts of the Ralco reservoir on the sector of the Alto Bío Bío, the State reports that it will perform an independent audit once three years have elapsed since the start-up of the hydroelectric plant; the objective will be to propose the measures necessary for correcting possible unforeseen effects, especially in tourism development along the banks of the reservoir.

212.          With respect to commitment 4(b), the State reported that a meeting had been held between CONADI and the Municipality of Alto Bío Bío in which it was agreed to initiate a process of coordination during January 2009.  As regards commitment 4(c) the State reported that tourism projects have been financed on the banks of Lake Ralco, that works have been promoted and financed to strengthen tourism with special purposes in the high cordillera, and that as a result of the commitment made by ENDESA regarding the return of the remnant lands not flooded by the Ralco reservoir, CONADI is processing the restitution of the remnants to their original owners, which presents the opportunity to develop tourism projects associated with the reservoir. With respect to commitment 4(d) the State indicated that it is studying the existence of culturally significant sites in the lands that the project will affect, though to date the existence of indigenous lands in the areas to be affected has not been shown.

213.          The petitioners submitted a communication dated April 10, 2007, that was received at the IACHR on May 8, 2007, in which detailed reference is made to each point of the agreement. They note compliance with the point regarding the creation of a comuna in the sector of the Alto Bío Bío, whose elected mayor is Mapuche Pehuenche.  They also consider that there has been compliance with the point of agreeing upon a mechanism to ensure the participation of the indigenous communities in administering the Ralco Forestry Reserve.  In terms of the point referring to the measures to satisfy the particular demands of the Mapuche Pehuenche families affected, they indicate that a memorandum of understanding has been signed with the Government and the Pehuenche families, which has been partially implemented.

214.          At the request of the IACHR, the petitioners sent a communication on December 15, 2008, in which they indicated that the State has failed to carry out commitment 4(d) of the friendly settlement agreement, on having accepted to undertake an environmental impact study of a hydroelectric megaproject in Mapuche Pehuenche territory known as the Angostura Project. According to the petitioners, this project would affect indigenous lands of the Alto Bío Bío in which there are at least four sacred sites for the Mapuche Pehuenche and on which some Mapuche Pehuenche families currently live. The petitioners indicated that the National Corporation of Indigenous Development (CONADI: Corporación Nacional de Desarrollo Indígena), an agency of the State entrusted with ensuring the protection of indigenous lands, issued a report on July 31, 2008 (Official Note 578) in which it confirms the importance of the sector for the heritage of the Mapuche Pehuenche communities.  The petitioners indicated, based on what was stated above, that the State breached its commitment to adopt land-use management measures so that the indigenous lands in the Alto Bío Bío may be “characterized as an area for protection of resources of natural or cultural heritage value, and, accordingly, that they be declared as zones not fit for building or with building restrictions.” They also indicated that pursuant to Indigenous Law 19,300 and Convention 169, the Chilean State has a special obligation to protect indigenous persons and their lands and territories. The petitioners reported that the Angostura Hydroelectric Project has plans to begin construction in the first half of 2009 and is to come on line in the second half of 2012.  This project includes the construction and operation of a hydroelectric plant, and will have a total volume of water in the reservoir of approximately 100 million cubic meters.

215.          Based on the foregoing, the Commission concludes that the friendly settlement agreement has been partially implemented.

Case 12.142, Report No. 90/05, Alejandra Marcela Matus Acuña et al. (Chile)

216.          In Report No. 90/05 of October 24, 2005, the Commission concluded that: (a) Marcela Alejandra Matus Acuña was a victim of censorship of the book “Libro Negro de la Justicia Chilena,” and that her books were confiscated by judicial order and out of circulation for more than two years; (b) Ms. Matus Acuña was subjected to a judicial proceeding that forced her to leave her country to protect against being deprived of liberty; and (c) Chilean society was deprived of the right of access to information. Accordingly, the Commission determined that the State had violated Articles 13 and 21 of the American Convention, all in violation of the obligation to respect and ensure the rights, enshrined in Article 1(1) of the American Convention and the obligation to bring domestic provisions of law into line with the commitments assumed by the State, in keeping with Article 2 of the same Convention.

217.          The Commission made the following recommendation to the 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.

218.          At the Commission’s request, the State reported on December 19, 2007, that “in July 2007, the State Defense Council issued its favorable opinion regarding the possibility of settlement in case No. 9,822-06, before the Fifteenth Civil Court of Santiago” for the damages suffered by journalist Alejandra Matus on occasion of the seizure of the publication by her called “El Libro Negro de la Justicia Chilena.”  The State indicated that to go forward in the dialogue with the complainant and her legal representative, it was necessary “to have a specific proposal, on both the economic aspects and the symbolic or moral reparation, that satisfied both parties and that would make it possible to consider the recommendation fulfilled.”  Finally, it indicated that “to facilitate such conversations the State Defense Council specially designated three of its members to coordinate the respective proposals, and to promote and facilitate conversations until the matter is resolved.”

219.          Subsequently, on October 8, 2008, the State reported to the Commission by sending a communication signed by the legal representative of Ms. Alejandra Matus and the Director of Human Rights at the Ministry of Foreign Relations of Chile dated September 30, 2008, that a settlement had been reached in domestic court between Ms. Matus’s representative and the State Defense Council. According to that settlement, the petitioner considered definitively terminated the international complaint presented in case 12,142 and considered the recommendations contained in Report 90/05 of the Inter-American Commission on Human Rights to have been carried out. According to press information attached by the State, the petitioner had received compensation of 30 million Chilean pesos. In addition, in this same communication it was indicated that the petitioner also recognized that the Chilean State has brought its domestic legislation into line with the American Convention on Human Rights in respect of freedom of expression, on having issued and promulgated Law No. 19,733, repealing the crime at Article 6(b) and the measures at Article 16 of Law on Internal State Security, No. 12,927, and Article 41 of Law No. 16,643 on Abusive Advertising, making it possible to dismiss with prejudice the criminal case against her, and to lift the confiscatory measures and prohibition that affected her book.

220.          In a communication of November 10, 2008, the Commission requested up-to-date information from both parties. The State reported, in a communication of November 21, 2008, that it referred to what was indicated in the communication received by the Commission on October 8, 2008, and indicated that the forwarding of joint “State and petitioner” communications was, in its view, the appropriate means for considering a friendly settlement finalized, accordingly that procedure would be adopted as a regular practice by the Chilean State. 

221.          The petitioners informed the Commission in a communiqué of May 5, 2008, that in January 2008 the State Defense Council, the organ that represented the government’s interests in the previous trial, resolved to reject the proposed settlement formulated by petitioner Alejandra Matus, thereby possibly cancelling the friendly settlement reached with the Human Rights Office of the Chilean Foreign Ministry.

222.          On January 7, 2009, at the request of the IACHR, the petitioners reported that the process of carrying out the recommendations issued by the Commission was in its final stage, since the Ministry of Justice had sent the respective payment decree, through Resolution 3849 of December 31, 2008, which could materialize “in the coming days,” once the General Treasury of the Republic issues the respective document. Accordingly, the petitioners indicated that “the recommendation of reparation issued by the IACHR with respect to this case has been fully carried out by the Chilean State.”

223.          Based on the foregoing, the Commission concludes that the Chilean State has fully carried out the recommendation made in Report No. 90/05, Alejandra Matus Acuña et al. 

224.          The Commission values the efforts made by both parties to carry out its recommendation, with which not only is reparation made for the damages caused to the victim, but in addition it goes beyond the private sphere to become a valuable precedent for the strengthening of the inter-American human rights system.

Case 11.654, Report No. 62/01, Ríofrío Massacre (Colombia)

225.          In Report No. 62/01 of April 6, 2001, the Commission concluded that the State was responsible for the violation of the right to life, enshrined in Article 4 of the American Convention, in the massacre perpetrated by State agents and members of paramilitary groups of the following persons: Miguel Enrique Ladino Largo, Miguel Antonio Ladino Ramírez, María Cenaida Ladino Ramírez, Carmen Emilia Ladino Ramírez, Julio Cesar Ladino Ramírez, Lucely Colorado, Dora Estela Gaviria Ladino, Celso Mario Molina, Rita Edelia de Molina, Ricardo Molina, Freddy Molina, Luz Edelsy Tusarma Salazar, and Hugo Cedeño Lozano. In addition, it concluded that the State was responsible for having breached its special duty of protection, under Article 19 of the American Convention, to the detriment of minors Dora Estella Gaviria Ladino and Luz Edelsy Tusarma Salazar. The Commission also concluded that the Colombian State was responsible for violating the right to humane treatment, enshrined in Article 5 of the Convention, to the detriment of Hugo Cerdeño Lozano, Miguel Ladino, Cenaida Ladino, Ricardo Molina Solarte, and Celso Mario Molina Sauza, and of breaching its duty to provide effective judicial protection to the victims in this case under Articles 8 and 25 of the American Convention, in conjunction with Article 1(1) of the same.
 

226.          The IACHR made the following recommendations to the Colombian State:

1. Conduct an impartial and effective investigation in ordinary jurisdiction with a view to prosecuting and punishing those materially and intellectually responsible.

2. Take steps to ensure that the families of the victims are duly compensated.

3. Take steps to prevent any future occurrence of similar events in accordance with its duty to prevent and guarantee the basic rights recognized in the American Convention, as well as adopting the measures necessary to give full force and effect to the doctrine developed by the Constitutional Court of Colombia and by the Inter-American Commission in investigating and prosecuting similar cases through the ordinary criminal justice system.

227.          On December 10, 2008, the State reiterated information indicating that the Chamber of Criminal Cassation of the Supreme Court of Justice, by judgment of March 6, 2003, had decreed the nullity of all the proceedings of the military criminal justice system, and had ordered that the matter be removed to the regular courts. In addition, it reiterated that the Human Rights and International Humanitarian Law Unit of the Office of the Attorney General ordered, by resolution of September 2, 2005, that the investigation would go forward together with the investigation carried out by the Human Rights Sub-unit of the city of Cali, in relation to the homicide of Miguel Enrique Ladino Largo et al., and that in July 2007 it was ordered that evidence be collected.

228.          The State reiterated that on April 13, 2004, the friendly settlement agreement was carried out and the reparations owed the victims’ next-of-kin were paid; therefore, the recommendation was carried out.

229.          Despite the request from the IACHR, the petitioners have not submitted up-to-date information on implementation of the recommendations.

230.          In view of the foregoing, the Commission concludes that the State has carried out the recommendations in part.

Case 11.710, Report No. 63/01, Carlos Manuel Prada González, and Evelio Antonio Bolaño Castro (Colombia)

231.          In Report No. 63/01 of April 6, 2001, the Commission established that the State was responsible for violating the American Convention at Articles 4, to the detriment of Evelio Antonio Bolaño Castro; 4 and 5, to the detriment of Carlos Manuel Prada González; and 8(1), 25, and 1(1) to the detriment of both victims and their families. This was as the result of the extrajudicial execution, at the hands of state agents, of Carlos Manuel Prada González and Evelio Antonio Bolaño Castro, and the failure to judicially clarify the incident. 

232.          The IACHR made the following recommendations to the State:

1. Carry out a full, impartial, and effective investigation within the ordinary jurisdiction with a view to judging and punishing those responsible for the extrajudicial execution of Carlos Manuel Prada and Evelio Antonio Bolaño Castro

2. Adopt the measures necessary to ensure that the victims’ next-of-kin receive adequate and timely reparations for the violations determined in the Report.

3. Take the steps necessary to prevent any future occurrence of similar events in accordance with its duty to prevent and guarantee the basic rights recognized in the American Convention, as well as adopt the measures necessary to give full force and effect to the doctrine developed by the Constitutional Court of Colombia and by the Inter-American Commission in investigating and prosecuting similar cases through the ordinary penal justice system.

233.          In a note received on December 22, 2008, the State reported that in consideration of Report 63/01 and the request forwarded by the Special Agent of the Office of the Inspector General of the Nation, the 11^th Prosecutor of the Military Criminal Jurisdiction before the Eighth Court of Brigade, through orders of October 1, 2007, resolved to remove the case to the Unit of Human Rights and International Humanitarian Law of the Office of the Attorney General, as a jurisdictional matter, where the investigation is currently continuing.

234.          The State reiterated the information presented indicating that the Committee of Ministers decided, by resolution No. 2 of May 3, 2002, to issue a favorable opinion so that one could proceed to make the respective compensation for damages to the victims’ next-of-kin, by application of Law 288/96, and that said resolution was attached to the contentious-administrative proceeding before the Administrative Court of Antioquia, a proceeding in which the National Army was found to be administratively liable by judgment of November 16, 2004, for the facts in this case. 

235.          As regards this decision, by communication received December 15, 2008, the petitioners reported that said judgment did not recognize the harm done to Evelio Bolaño’s constant companion, given that the statements supporting it were not ratified within the process.  They indicated that the material harm caused to the victims’ next-of-kin was not recognized either. The judgment was appealed on April 8, 2005, and forwarded to the Third Section of the Council of State.

236.          The State reported that the Fourth Procurator Delegate before the Council of State asked the Third Section of the Council of State to accord priority to the ruling in the proceeding mentioned considering Report 63/01.  On April 10, 2008, the office agreed to the request for priority, and at this time the draft judgment is said to be ready for discussion in the Third Section of the Council of State.

237.          The State also submitted general information on measures aimed at transferring cases linked to possible human rights violations from the military courts to the regular courts, and regarding proposed reforms to the military criminal justice system currently before the Congress of the Republic. It mentioned that those proposed reforms would be based on the parameters established by the Commission and the Court in their precedents.

238.          In view of the information available, the Commission concludes that the recommendations made are in the process of being carried out.

Case 11.712, Report No. 64/01, Leonel de Jesús Isaza Echeverry (Colombia)

239.          In Report No. 64/01 of April 6, 2001, the Commission concluded that the State was responsible for violating the right to life of Leonel de Jesús Isaza Echeverry, enshrined in Article 4 of the American Convention; the right to human treatment of Ms. María Fredesvinda Echeverry, enshrined in Article 5 of the American Convention; the right to humane treatment and the breach of the obligation to adopt special measures of protection with regard to the child Lady Andrea Isaza Pinzón, established in Articles 5 and 19 of the American Convention; as well as the breach of the duty to afford effective judicial protection to the victims of this case, in keeping with Articles 8 and 25, in conjunction with Article 1(1) of the Convention. This case has to do with the responsibility of state agents for the death of Mr. Leonel de Jesús Isaza Echeverry, the harm to the personal integrity of Ms. María Fredesvinda Echeverry and the child Lady Andrea Isaza Pinzón, and the failure to clarify these events judicially. 

240.          The IACHR made the following recommendations to the Colombian State:

1. Conduct an impartial and effective investigation before ordinary jurisdiction for the purpose of judging and sanctioning those responsible for the extrajudicial execution of Mr. Leonel de Jesús Isaza Echeverry.

2. Adopt the measures necessary to redress the consequences of the violations committed against María Fredesvinda Echeverry and Lady Andrea Isaza Pinzón, as well as providing due indemnity for the relatives of Leonel de Jesús Isaza Echeverry.

3. Take the steps necessary to prevent any future occurrence of similar events in accordance with its duty to prevent and guarantee the basic rights recognized in the American Convention, as well as adopting the measures necessary to give full force and effect to the doctrine developed by the Constitutional Court of Colombia and by the Inter-American Commission in investigating and prosecuting similar cases through the ordinary criminal justice system.

241.          On December 3, 2008, the State reiterated that on November 23, 2004, the Second Division Court of the National Army decided to acquit Major Hernán Bonilla Carrera Sanabria and the retired volunteer soldiers Manuel Bonilla Collazos and José Armando Cruz González on charges of homicide and attempted homicide. Subsequently, the Superior Military Tribunal resolved the appeal brought by the Judicial Procurator and the Military Prosecutor, affirming in its entirety the judgment of acquittal. The Office of Human Rights and International Humanitarian Law of the Ministry of Foreign Relations reported that it reiterated to the Coordinator of Specialized Procurator Offices the request to study the possibility of carrying out an action of review in relation to that ruling. The Commission observes that said proceeding, which ended in the acquittal of the members of the National Army in the military criminal court, has yet to be transferred to the regular criminal courts.

242.          The State reiterated that by judgment of October 29, 2004, the Chamber for Decongestion of the Administrative Courts of Norte de Santander and Cesar found the Colombian nation administratively responsible for the death of Leonel de Jesús Isaza Echeverry and for the lesions suffered by María Fredesvinda Echeverri de Isaza and Lady Andrea Isaza Pinzón, ordering the payment of moral and material damages to the victims and their next-of-kin. It indicated that said judgment had been supplemented on January 31, 2005, with the inclusion of other liabilities to be paid by the Nation, but that the complainant had filed an appeal, which was resolved by order of April 13, 2007, by which the Council of State approved the conciliation. The State reported that by Payment Resolution No. 2512 the conciliation agreement was carried out, as the payment of compensation was made to María Fredesvina Echeverri de Isaza and Lady Andrea Isaza Pinzón.

243.          Despite the request of the IACHR, the petitioners have not submitted up-to-date information on the implementation of the recommendations.

244.          In view of the foregoing, the Commission concludes that the State has carried out in part the recommendations noted.

Case 11.141, Report No. 105/05, Villatina Massacre (Colombia)

245.          On July 29, 2002, by Report No. 105/05, the Commission approved and recognized the partial implementation of a friendly settlement agreement signed on July 29, 1998, in the case known as the “Villatina Massacre.”  In summary, the petition alleged the responsibility of state agents in the massacre of children Johana Mazo Ramírez, Johny Alexander Cardona Ramírez, Ricardo Alexander Hernández, Giovanny Alberto Vallejo Restrepo, Oscar Andrés Ortiz Toro, Ángel Alberto Barón Miranda, Marlon Alberto Álvarez, Nelson Dubán Flórez Villa, and the youth Mauricio Antonio Higuita Ramírez, perpetrated on November 15, 1992 in the Villatina neighborhood of the city of Medellín.

246.          That friendly settlement agreement incorporates the terms of an agreement originally signed on May 27, 1998, in the course of an initial attempt to reach a friendly settlement in the matter. The agreement recognizes the responsibility of the State for the violation of the American Convention, the right to justice and individual reparation for the victims’ next-of-kin, as well as an element of social reparation with components related to health, education, and a productive project. In addition, it provides for erecting a monument in a park in the city of Medellín so as to recover the historical memory of the victims. The Commission observes that the operative part of the agreement reflects the recommendations of the Committee to Give Impetus to the Administration of Justice (Comité de Impulso para la Administración de Justicia) created in the context of the agreement originally signed on May 27, 1998.

247.          In Report No. 105/05, the Commission highlighted the implementation by the State of a large part of the commitments assumed in the agreement, and it called on it to continue carrying out the rest of the commitments assumed, in particular the commitment to provide effective guarantees and judicial protection to the victims and their next-of-kin, as prescribed in Articles 8(1) and 25 of the American Convention, by continuing the investigation into the facts so as to allow for the identification, prosecution, and sanction of the persons responsible.

248.          The State, on December 2, 2008, reported with respect to the commitments pending implementation. It indicated that at present a preliminary investigation is under way in the Human Rights Unit of the Office of the Attorney General, and that the office in charge ordered a series of measures be taken to make progress in determining the possible perpetrators and accomplices of the events that are the subject matter of the case. It also reported that the entities with jurisdiction are studying the possibility of presenting a complaint seeking a review of the proceedings that concluded favorably for the persons being investigated.

249.          In view of the foregoing, the Commission concludes that there has been partial implementation of the friendly settlement agreement.

Case 10.205, Report No. 53/06, Germán Enrique Guerra Achuri (Colombia)

250.          On March 16, 2006, by Report No. 53/06, the Commission approved a friendly settlement agreement in the case of Germán Guerra Achuri. In summary, the petition alleged state responsibility in the events of February 8, 1988, at the workers’ encampment on the “La Perla” farm situated in the municipality of Remedios, Antioquia, as a result of which Mr. Guerra Achurri lost a leg.

251.          In the friendly settlement agreement, the State undertook as follows:

1. To make reparations for the material and moral damages sustained by Mr. Germán Enrique Guerra Achurri as a result of the incidents of February 8, 1988, at the La Perla estate workers’ camp, located in the municipality of Remedios, Antioquia Department, as a consequence of which Mr. Guerra Achurri lost a leg.

2. Request the Office of the Attorney General of the Nation to file an action seeking review of the January 23, 1995 ruling of the Military Criminal Court.

252.          The State reported on December 10, 2008, that in a conciliation meeting held November 16, 2007, the parties agreed on the amount of reparations to be recognized for Mr. Guerra Achurri and his family members, by the State. It reported that the petitioners submitted the documentation required for the respective payment on May 8, 2008, at the Ministry of National Defense, and that the payment was made by Resolution No. 3003 of July 15, 2008.  In this respect, by communication received October 28, 2008, the petitioners reported that the Legal Affairs Bureau of the Ministry of Defense ordered the payment of the monetary compensation agreed upon. In addition, they reported that the agreements on holding a public ceremony of reparation and recognition of responsibility of the Ministry of Defense and the National Army had not been carried out; nor the establishment of a house for disabled rural workers; nor permanent medical care for Mr. Guerra Achurri.

253.          The State reiterated that on December 12, 2006, the Office of the Procurator General of the Nation filed a complaint seeking review before the Chamber of Criminal Cassation of the Supreme Court of Justice, which is pending a decision. In this respect, the petitioners reported that said action for review was still being examined for an admissibility determination.

254.          In view of the foregoing, the Commission concludes that the friendly settlement agreement has been partially implemented.

Case 12.009, Report No. 43/08 Leydi Dayán Sánchez (Colombia)

255.          On February 28, 2006, the Commission approved a report pursuant to Article 50 of the American Convention by which it concluded that the State was responsible for violating the rights to life, judicial guarantees, rights of the child, and right to judicial protection, corresponding to Articles 4, 8, 19, and 25 of the American Convention in relation to its Article 1(1), to the detriment of the child Leydi Dayán Sánchez Tamayo, and that the State had violated the rights to judicial guarantees and judicial protection corresponding to Articles 8 and 25 of the American Convention in relation to Article 1(1) of that international instrument, to the detriment of the next-of-kin of Leydi Dayán Sánchez Tamayo. This case has to do with the responsibility of state agents in the death of the child Leydi Dayán Sánchez Tamayo, which occurred on March 21, 1998, in Ciudad Kennedy, Bogotá, and the failure to clarify the facts of the case judicially.

256.          With the approval of the referenced report, the Commission established a series of deadlines for the State to carry out the recommendation made therein in relation to truth, justice, and reparation. After considering the information provided by both parties and the actions carried out by the State in furtherance of the recommendations on promoting an action for review before the regular courts, the ceremonies to recover the historical memory of Leydi Dayán Sánchez, the trainings for the National Police on the use of firearms in keeping with the principles of necessity, exceptionality, and proportionality; and the payment of compensation to the victim’s next-of-kin, it decided to issue Report 43/08 pursuant to Article 51 of the American Convention, and to publish it.

257.          In its Report, the Commission indicated that while the investigation that is currently under way before the regular courts had not yielded results, one should value the impetus given to the action for review, specifically, the decision of the Chamber of Criminal Cassation of the Supreme Court of Justice, which declared the grounds for review that set aside the judgments of acquittal handed down by the military criminal courts based on the conclusion adopted in the Article 50 report, and ordered that the case be removed to the Office of the Attorney General so that a new investigation could be initiated before the regular courts. Nonetheless, given that the information provided by the State did not indicate that the review process had produced any results in relation to implementation of the recommendation on administration of justice, on July 23, 2008, by Report No. 43/08, the IACHR made the following recommendation to the State:

1.         Carry out an impartial and effective investigation in the general jurisdiction with a view to prosecuting and punishing those responsible for the death of Leydi Dayán Sánchez Tamayo.

258.          By communication received December 15, 2008, the petitioners reported that despite the efforts made to carry out the recommendation, recent judicial resolutions contradicted the disposition and will to give impetus to the matter originally shown by the State.  Specifically, they indicated that on October 31, 2008, the Office of the Prosecutor Delegate ordered the investigation precluded as a result of the prescription of the regular criminal action, in favor of the police agent originally acquitted by the military criminal justice system. They alleged that for the time being no person had been sanctioned disciplinarily for the homicide of Leydi Dayán Sánchez. In response to the request for up-to-date information from the State, it submitted successive requests for extensions.

259.          In view of the foregoing, the Commission concludes that the recommendations originally made by the Commission have been carried out in part, and that the recommendation made in Report No. 43/08 has not been carried out.

Case 12.448, Report No. 44/08 Sergio Emilio Cadena Antolinez (Colombia)

260.          In Report No. 44/08 of July 23, 2008, the Commission concluded that the State was responsible for violating the right to judicial protection of Sergio Emilio Cadena Antolinez, enshrined in Article 25 of the American Convention on Human Rights, as well as the generic obligation to respect and ensure the rights protected, set out at Article 1(1) of that Convention. In addition, it concluded that as reparation had been made for the material harm caused Mr. Cadena Antolinez during the course of the processing of his case before the IACHR, there was no violation of Article 21, and that there were no violations of Articles 2 or 8 of the American Convention. This case has to do with the responsibility of the Colombian State for depriving access to an effective judicial remedy for determining the rights of Sergio Emilio Cadena Antolinez due to contempt of Judgment No. SU-1185/2001 of the Constitutional Court, issued November 13, 2001, by the Chamber for Labor Cassation of the Supreme Court of Justice (a situation known as “choque de trenes,” or conflicting jurisdictional claims). 

261.          The Commission made the following recommendations to the State:

1. Adopt the necessary measures to avoid future violations of the right to judicial protection enshrined in the American Convention, pursuant to the obligation of prevention and guarantee of the fundamental rights recognized by the American Convention.

2. With respect to the non-pecuniary damage caused to Mr. Cadena Antolínez as a result of the violation of his right to judicial protection, it is the opinion of the Commission that the instant report constitutes in itself reparation.

262.          On December 5, 2008, the State reported that it had requested the presidents of the high courts to provide information on the measures they have adopted to ensure the non-repetition of the so-called “choque de trenes.”  The State also reported that the Superior Judicial Council has debated the case of Mr. Cadena Antolinez in the Honorable Administrative Chamber, in particular the implications at the international level of the “choque de trenes,” so as to adopt the necessary measures that ensure the non-repetition of the violation of Article 25 of the Convention, a process that continues to recur.

263.          The petitioners reported on December 15, 2008, that they have learned of the discussions under way among the high courts to reach preliminary agreements for the purpose of guaranteeing the beneficiaries of the acción de tutela access to justice in those cases that originate in a “de facto manner” stemming from a judicial decision. 

264.          In view of the foregoing, the Commission concludes that the recommendations have been carried out in part.

Case 12.476, Report No. 67/06, Oscar Elias Biscet et al. (Cuba)

265.          In Report No. 67/06 of October 21, 2006, the IACHR concluded that the Cuban State was responsible for violations of Articles I (right to life, liberty, personal security), II (right to equality before the law), IV (right to freedom of investigation, opinion, expression, and dissemination), V (right to protection of honor, personal reputation, and private and family life), VI (right to a family and to protection thereof), IX (right to inviolability of the home), X (right to the inviolability and transmission of correspondence), XI (right to preservation of health and well-being), XVIII (right to justice), XX, (right to vote and to participate in government), XXI (right of assembly), XXII (right of association), XXV (right of protection from arbitrary arrest), and XXVI (right to due process of law) of the American Declaration, to the detriment of Messrs. Nelson Alberto Aguiar Ramírez, Osvaldo Alfonso Valdés, Pedro Pablo Álvarez Ramo, Pedro Argüelles Morán, Víctor Rolando Arroyo Carmona, Mijail Bárzaga Lugo, Oscar Elías Biscet González, Margarito Broche Espinosa, Marcelo Cano Rodríguez, Juan Roberto de Miranda Hernández, Carmelo Agustín Díaz Fernández, Eduardo Díaz Fleitas, Antonio Ramón Díaz Sánchez, Alfredo Rodolfo Domínguez Batista, Oscar Manuel Espinosa Chepe, Alfredo Felipe Fuentes, Efrén Fernández Fernández, Juan Adolfo Fernández Saínz, José Daniel Ferrer García, Luís Enrique Ferrer García, Orlando Fundora Álvarez, Próspero Gaínza Agüero, Miguel Galbán Gutiérrez, Julio César Gálvez Rodríguez, Edel José García Díaz, José Luís García Paneque, Ricardo Severino González Alfonso, Diosdado González Marrero, Léster González Pentón, Alejandro González Raga, Jorge Luís González Tanquero, Leonel Grave de Peralta, Iván Hernández Carrillo, Normando Hernández González, Juan Carlos Herrera Acosta, Regis Iglesias Ramírez, José Ubaldo Izquierdo Hernández, Reynaldo Miguel Labrada Peña, Librado Ricardo Linares García, Marcelo Manuel López Bañobre, José Miguel Martínez Hernández, Héctor Maseda Gutiérrez, Mario Enrique Mayo Hernández, Luís Milán Fernández, Rafael Millet Leyva, Nelson Moline Espino, Ángel Moya Acosta, Jesús Mustafá Felipe, Félix Navarro Rodríguez, Jorge Olivera Castillo, Pablo Pacheco Ávila, Héctor Palacios Ruiz, Arturo Pérez de Alejo Rodríguez, Omar Pernet Hernández, Horacio Julio Piña Borrego, Fabio Prieto Llorente, Alfredo Manuel Pulido López, José Gabriel Ramón Castillo, Arnaldo Ramos Lauzurique, Blas Giraldo Reyes Rodríguez, Raúl Ramón Rivero Castañeda, Alexis Rodríguez Fernández, Omar Rodríguez Saludes, Martha Beatriz Roque Cabello, Omar Moisés Ruiz Hernández, Claro Sánchez Altarriba, Ariel Sigler Amaya, Guido Sigler Amaya, Miguel Sigler Amaya, Ricardo Enrique Silva Gual, Fidel Suárez Cruz, Manuel Ubals González, Julio Antonio Valdés Guevara, Miguel Valdés Tamayo, Héctor Raúl Valle Hernández, Manuel Vázquez Portal, Antonio Augusto Villareal Acosta, and Orlando Zapata Tamayo.

266.          The international responsibility of the Cuban State derived from the events of March 2003, when there were massive detentions of human rights activists and independent journalists based on the argument that they had engaged in subversive, counterrevolutionary activities against the State and that they had disseminated illicit propaganda and information. Subsequently, all of them were tried in very summary proceedings, in which their rights to defense were violated, and they were convicted and subjected to prison terms ranging from six months to 28 years.

267.          The Commission made the following recommendations to the Cuban State:

1.         Order the immediate and unconditional release of the victims in this case, while overturning their convictions inasmuch as they were based on laws that impose unlawful restrictions on their human rights.

2.         Adopt the measures necessary to adapt its laws, procedures and practices to international human rights laws.  In particular, the Commission is recommending to the Cuban State that it repeal Law No. 88 and Article 91 of its Criminal Code, and that it initiate a process to amend its Constitution to ensure the independence of the judicial branch of government and the right to participate in government.

4.         Redress the victims and their next of kin for the pecuniary and non-pecuniary damages suffered as a result of the violations of the American Declaration herein established.

5.         Adopt the measures necessary to prevent a recurrence of similar acts, in keeping with the State’s duty to respect and ensure human rights.

268.          On November 3, 2008, the Commission asked the parties to submit up-to-date information on the status of implementation of the recommendations made in this case. The Cuban State did not submit information. On December 4, 2008, the petitioners reported that with respect to the first recommendation made by the Commission, of all the victims imprisoned and prosecuted unjustly, 55 continue to be deprived of liberty, 11 reside in the island under prison leave considering their delicate health, eight were exiled, and one died in strange circumstances after having been released from prison in Havana. In addition, on February 16, 2008, Alejandro Gonzáles Raga, Omar Pernet Hernández, José Gabriel Ramón Castillo, and Pedro Pablo Álvarez[5] obtained prison leave on condition that they leave Cuba and go to Spain, to receive medical care; they are the latest victims in this case to regain their liberty. As for those who continue in prison, the petitioners reported that they are subject to precarious conditions of deprivation of liberty. Moreover, they stated that in August 2008 some victims were transferred to establishments closer to their provinces of residence.

269.          Similarly, the petitioners reported that the Government of Cuba has not adopted the measures necessary for bringing Cuba’s laws, procedures, and practices into line with international human rights norms. They also indicated that neither the victims in this case or their family members have received any reparation for the material and moral injury they have suffered. Finally, they stated that the Cuban government has not adopted the measures necessary to avoid the recurrence of similar events, for laws contrary to respect for human rights, such as Law No. 88, Article 99 of the Criminal Code, and the Law on Social Pre-Criminal Dangerousness[6], remain in force.

270.          In view of the foregoing, the Commission concludes that the recommendations noted have yet to be implemented.

Case 12.477, Report No. 68/06, Lorenzo Enrique Copello Castillo et al. (Cuba)

271.          In Report No. 68/06 of October 21, 2006, the IACHR concluded that the Cuban State was responsible for: (1) violations of Articles XVIII and XXVI of the American Declaration to the detriment of Messrs. Lorenzo Enrique Copello Castillo, Bárbaro Leodán Sevilla García, and Jorge Luis Martínez Isaac; (2) violations of Article I of the American Declaration to the detriment of Messrs. Lorenzo Enrique Copello Castillo, Bárbaro Leodán Sevilla García, and Jorge Luis Martínez Isaac. The responsibility of the Cuban State derives from submitting the victims to very summary trials that did not guarantee respect for the procedural guarantees of a fair trial, and the subsequent execution of the victims on April 11, 2003, pursuant to a judgment handed down in a procedure that did not have the proper guarantees of protection.

272.          The Commission made the following recommendations to the Cuban State:

1. Adopt the measures necessary in order to adapt its laws, proceedings, and practices in line with international human rights law, especially those that relate to situations described in the present report.  In particular, the Commission recommends the Cuban State reform its Constitution to ensure the independence of its judiciary.

2. Make reparations to the families of the victims for the material and psychological damages they have suffered by virtue of the violations of the American Declaration established here.

3. Adopt all measures necessary to ensure that similar events may not occur again, in accordance with the duty of the State to protect and guarantee human rights.

273.          On November 3, 2008, the Commission asked the parties for up-to-date information on the status of implementation of the recommendation made in this case. The Cuban State did not submit information. For its part, on December 1, 2008, the petitioners reported that there is no evidence that the Cuban State has carried out the recommendations made by the IACHR.

274.          Accordingly, the Commission concludes that the recommendations outlined have yet to be implemented.