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Status of compliance with the recommendations of the IACHR (Continuation)
Case 9903,
Report N° 51/01, Rafael Ferrer Mazorra et al.
692. 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 petitioner’s deprivations of liberty.
693. 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.
694. In its 2006 and 2007 Annual Reports, the Commission indicated that compliance with its recommendations transcribed above was still pending. By letters dated March 6, 2007, and January 6, 2009, 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 petitioners have not provided the Commission with updated information.
695. The Commission concludes that compliance with the recommendations remains pending.
Case 12.243, Report N° 52/01, Juan Raul Garza (United States)
696. 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.
697. 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.
698. In its 2006 and 2007 Annual Reports, the IACHR presumed that the recommendations were pending compliance. By note dated March 6, 2007, the State informed the Commission that Mr. Garza had been executed in June of 2001; 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. By letter dated January 6, 2009, the State reiterated its position. The petitioner, on the other hand, has repeatedly stated that Mr. Garza had indeed already been executed and that the State had also failed to comply with recommendation No. 2.
699. 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 Villarreal, (United States)
700. 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 Villarreal; 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.
701. 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.
702. In its 2006 and 2007 Annual Reports, 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.
703. 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.
704. The petitioners sent a communication dated May 1st, 2008 in which they submit that compliance by the United States in this case is still pending. They hold that there has been no compliance with the first recommendation, because “despite Mr. Martinez Villareal’s release from death row, the United States government has neither freed him nor taken steps to remedy the due process and fair trial violations outlined by the Commission’s Report No. 52/02”. They further hold that “the U.S. has made little progress in complying with the Commission’s second recommendation in Report No. 52/02, and has in fact weakened consular notification rights by withdrawing from the Vienna Convention’s optional protocol and failing to implement the ICJ’s Avena judgment”.
705. The petitioners’ letter was forwarded to the State with a request for information on August 20, 2008, and another letter requesting updated information was submitted to it on November 5, 2008. The State responded on January 6, 2009 that it reiterated the position set forth in letter of March 5, 2007, summarized above.
706. 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)
707. 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.
708. 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. By letter dated November 13, 2008, the Deputy Public defender of Clark County, Nevada, reiterated this position.
709. 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.
710. 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)
711. 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.
712. 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.
713. 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.
714. 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.
715. The IACHR requested updated information to both parties on November 5, 2008. The United States responded by letter dated January 6, 2009 reiterating its previous position on this matter. For their part, the petitioners sent a letter on December 5, 2008 where they described the “disturbing developments concerning the United States’ lack of compliance” with the Commission’s recommendations.
716. Among other matters, the petitioners mention that on November 12, 2008 the United States Bureau of Land Management officially approved the Cortez Hills Expansion Project, a plan by the company Barrick Gold to “construct and operate the open pit cyanid heap leach mine on the edge of Mount Tenabo” considered “of great cultural and spiritual significance to the Western Shoshone”. Besides the lack of access to the site by the Shoshone, the petitioners hold that this would “result in a new 2,200 foot hole in the actual mountain itself, in addition to cyanide emissions, dewatering, mercury contamination and other harmful byproducts”. They add that “the decision to expand mining operations on Mount Tenabo is directly significant to the Danns given that it is in their traditional use area” and that they have “filed a complaint in the Reno Federal District Court seeking declaratory and injunctive relief to stop the mine”.
717. The petitioners also consider that the United States is harassing Carrie Dann by sending her a debt collection notice in the amount of U.S.$ 6,433,231.40 on behalf of the U.S. Department of the Interior for “non-payment of cattle grazing fees, an activity that is a traditional and customary use of her ancestral lands”. They have refused to pay this debt for considering that they cannot be charged for “livestock trespass” on their own land.
718. Further, the petitioners mention that “in addition to the Cortez Hills Expansion Project at Mt. Tenabo, the U.S. continues to move forward on additional gold mining expansions throughout Western Shoshone territory” without their consent. In this regard they note that the State is “moving ahead with plans to store high-level nuclear waste at Yucca Mountains, Nevada” and that “plans are underway to conduct exploratory drilling for uranium on the foothills of Merritt Mountain in Western Shoshone territory” and that such exploration would “involve the drilling of 150 wells and creation of containment ponds near three Native American sites”. The petitioners also mention other projects that would affect the Western Shoshone’s ancestral lands, such as geothermal leases, the building of a 234-mile transmission line across Nevada and a plan to tap aquifers to pipe down water to Las Vegas.
719. 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)
720. 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.
721. 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.
722. In its 2006 and 2007 Annual Reports, 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.
723. 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)
724. 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.
725. 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.
726. In its 2006 and 2007 Annual Reports, the IACHR stated that compliance with its recommendation in this case was pending. By notes dated March 6, 2007 and January 6, 2009, 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 letters dated December 5, 2007 and December 28, 2008, 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.
727. Based upon the information available, the Commission considers that compliance with its recommendation remains pending.
Case 11.331, Report N° 99/03, Cesar Fierro (United States)
728. In Report N° 99/03 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 Cesar Fierro; and, b) should the State execute Mr. Fierro 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.
729. The IACHR issued the following recommendations to the State:
1. Provide Mr. Fierro with an effective remedy, which includes a re-trial in accordance with the due process and fair trial protections prescribed under Articles XVIII and XXVI of the American Declaration or, where a re-trial in compliance with these protections is not possible, Mr. Fierro’s release.
2. Review its laws, procedures and practices to ensure that foreign nationals who are arrested or committed to prison or to custody pending trial or are detained in any other manner in the United States are informed without delay of their right to consular assistance and that, with his or her concurrence, the appropriate consulate is informed without delay of the foreign national’s circumstances, in accordance with the due process and fair trial protections enshrined in Articles XVIII and XXVI of the American Declaration.
730. In its 2006 and 2007 Annual Reports, the Commission concluded that compliance with its recommendations in this case was still pending. In a note dated March 6, 2007, the State reiterated that it disagreed with and declined the first recommendation of the Commission based upon its previous responses in this case. With regard to the second recommendation, 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 had 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 had conducted over 350 training seminars on the right to consular assistance throughout the United States and its territories, and had created an online training course on the topic.
731. In a letter dated November 5, 2007, the petitioners informed the Commission that the State had not complied with the Commission’s recommendations. In breach of the first recommendation, the Petitioners claim that Mr. Fierro has not been re-tried or released, and he remains on death row without an execution date currently scheduled. That is notwithstanding the fact that the petitioners have further attempted to have the courts review Mr. Fierro’s conviction. In this regard, the Texas Court of Criminal Appeals rejected Mr. Fierro’s subsequent application for post-conviction writ of Habeas Corpus, on March 7, 2007. A petition for a writ of certiorari was also filed on Mr. Fierro’s behalf in the Supreme Court of the United States on June 4, 2007, but the tribunal has yet to rule on this petition. According to the Petitioners, the victim’s prior conviction and the possibility of its judicial review, along with that of the other Mexican nationals named in the ICJ Case of Avena and Other Mexican Nationals v. the United States is also a matter of discussion in the context of a pending case in which the Supreme Court has already granted certiorari (Medellin v. Texas).
732. By letter dated December 1, 2008, the petitioners updated the information and mentioned that Mr. Fierro remains on death row in Texas; that he has not been re-tried or released; and that no date has been scheduled for his execution. The petitioners mention that in its decision of March 31, 2008 the Supreme Court of the United States denied relief to Mr. Fierro on the basis of the Medellin v. Texas case, where it was determined that U.S. courts are not bound by the Avena judgment of the ICJ; and that a petition for successive habeas corpus relief was denied by the U.S. Court of Appeals on June 2, 2008. The petitioners are concerned that despite the ICJ decision of July 16, 2008 not to execute Mr. Fierro and other Mexican nationals including Jose Medellin absent review and reconsideration, Mr. Medellin was executed on August 5, 2008. They hold that “in the wake of Mr. Medellin’s execution, federal authorities have apparently done nothing to prevent Mr. Fierro’s execution, even though legal remedies are available to them”.
733. As regards the second recommendation, the petitioners acknowledged that the United States made information available to local authorities about their obligation in regard to consular access. Nevertheless, the petitioners argued that the United States had not reviewed its laws, procedures and practices in this regard. On the contrary, according to the petitioners, the most recent formal advice issued by the Department of State on this matter remained that of 1999, in which it advised that the Vienna Convention on Consular Relations was not intended to create a right of private judicial enforcement. The petitioners claim that the State continues to argue that the Vienna Convention negates any right for a foreign national whose right to consular assistance is violated. The petitioners emphasized that courts of the United States continue to refer to the aforementioned communication as an authoritative interpretation of the Vienna Convention on Consular Relations.
734. In their December 2008 submission, the petitioners add that they do not know of any review of the laws, procedures or practices of the United States that would be in compliance with the IACHR report’s second recommendation. They add that “no noticeable improvement has occurred in compliance in the United States in notifying detained foreign nationals about consular access”.
735. For its part, the United States sent a letter on January 6, 2009 that reiterates the position held earlier on this case.
736. Based upon the foregoing information provided by the parties, the Commission considers that there has been partial compliance with its second recommendation.
Case 12.240, Report N° 100/03, Douglas Christopher Thomas (United States)
737. In Report N° 100/03 dated December 29, 2003, the Commission concluded that the State acted contrary to an international norm of jus cogens as reflected in Article I of the American Declaration by sentencing Douglas Christopher Thomas to the death penalty for crimes that he committed when he was 17 years of age, and executing him pursuant to that sentence.
738. The IACHR issued the following recommendations to the State:
1. Provide the next-of-kin of Douglas Christopher Thomas with an effective remedy, which includes compensation.
2. 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.
739. In its 2006 and 2007 Annual Reports, the Commission stated that there had been partial compliance with its recommendations. In a note dated March 6, 2007, the United States maintained its previously stressed position of disagreement with the Commission’s first recommendation. With regard to the IACHR’s second 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.
740. On November 19, 2007, the petitioner acknowledged the aforementioned decision of the Supreme Court in Roper v. Simmons. However, the petitioner reiterated that the victim in this case was executed prior to that decision. In addition to that, the petitioner stressed that the State has not complied with the Commission’s first recommendation. For its part, the State sent a letter on January 6, 2009, by which it reiterates its previous position on this matter.
741. In view of the above, the Commission declares that compliance with the recommendations in Report N° 100/03 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 second recommendation.
Case 12.412, Report N° 101/03, Napoleon Beazley (United States)
742.
In Report
N° 101/03 dated December 29, 2003, the Commission concluded that the
State acted contrary to an international norm of jus cogens as
reflected in Article I of the American Declaration by sentencing
Napoleon Beazley to the death penalty for crimes that he committed when
he was 17 years of age, and executing him pursuant to that sentence. 743. The IACHR issued the following recommendations to the State:
1. Provide the next-of-kin of Napoleon Beazley with an effective remedy, which includes compensation.
2. 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.
744. In its 2006 and 2007 Annual Reports, the Commission considered that the State had partially complied with the recommendations in this case. In a letter dated March 6, 2007, the United States reiterated its previously stressed position of disagreement with the Commission’s first recommendation. With regard to the IACHR’s second 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 Petitioner has not presented updated information regarding compliance. For its part, the State sent a letter on January 6, 2009, by which it reiterates its previous position on this matter.
745. On the basis of the available information, the Commission states that compliance with the recommendations in Report N° 101/03 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 second recommendation.
Case 12.430, Report N° 1/05 Roberto Moreno Ramos, (United States)
746. In Report N° 1/05 dated January 28, 2005, the IACHR concluded that: a) the State was responsible for violations of Articles II, XVIII and XXVI of the American Declaration in the criminal proceedings against Mr. Moreno Ramos; and, b) should the State execute Mr. Moreno Ramos pursuant to the criminal proceedings at issue in this case, the State would commit a grave and irreparable violation of the fundamental right to life under Article I of the American Declaration. 747. The IACHR issued the following recommendations to the State:
1. Provide Mr. Moreno Ramos with an effective remedy, which includes a new sentencing hearing in accordance with the equality, due process and fair trial protections prescribed under Articles II, XVIII and XXVI of the American Declaration, including the right to competent legal representation.
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.
3. Review its laws, procedures and practices to ensure that defendants in capital proceedings are not denied the right to effective recourse to a competent court or tribunal to challenge the competency of their legal representation on the basis that the issue was not raised at an earlier stage of the process against them.
748. In its 2006 and 2007 Annual Reports, the Commission presumed that its recommendations in this case were pending compliance. In a letter dated March 6, 2007, the State reiterated that it disagreed with and declined the first and third recommendations of the Commission based upon its prior submissions in this case. As regards the second recommendation, 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 had 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 had conducted over 350 training seminars on the right to consular assistance throughout the United States and its territories, and had created an online training course on the topic. The petitioners have not provided the Commission with updated information regarding implementation of its recommendations. For its part, the State sent a letter on January 6, 2009, by which it reiterates its previous position on this matter.
749. Based upon the abovementioned information, the Commission considers that there has been partial compliance with its second recommendation.
Case 12.439, Report N° 25/05, Toronto Markkey Patterson (United States)
750. In Report N° 25/05 dated March 7, 2005, the Commission concluded that the State acted contrary to an international norm of jus cogens as reflected in Article I of the American Declaration by sentencing Toronto Markkey Patterson to the death penalty for crimes that he committed when he was 17 years of age, and executing him pursuant to that sentence.
751. The IACHR issued the following recommendations to the State:
1. Provide the next-of-kin of Toronto Markkey Patterson with an effective remedy, which includes compensation.
2. 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.
752. In its 2006 and 2007 Annual Reports, the Commission considered that there had been partial compliance with its recommendations in this case. In a letter dated March 6, 2007, the United States reiterated its previous position of disagreement with the Commission’s first recommendation. With regard to the Commission’s second 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 petitioner has not presented updated information regarding compliance. For its part, the State sent a letter on January 6, 2009, by which it reiterates its previous position on this matter.
753. Consequently, the Commission asserts that compliance in this case remains partial. In particular, the Commission takes 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 second recommendation.
Case 12.421, Report N° 91/05, Javier Suarez Medina (United States)
754. In Report N° 91/05 issued on October 24, 2005, the Commission concluded that the State was responsible for: a) violations of Articles XVIII and XXVI of the American Declaration in the trial, conviction and sentencing to death of Javier Suarez Medina, by permitting the introduction of evidence of an unadjudicated crime during Mr. Suarez Medina’s capital sentencing hearing and by failing to inform Mr. Suarez Medina of his right to consular notification and assistance; and b) violations of Article I, XXIV and XXVI of the American Declaration, by scheduling Mr. Suarez Medina’s execution on fourteen occasions pursuant to a death sentence that was imposed in contravention of Mr. Suarez Medina’s rights to due process and to a fair trial under Articles XVIII and XXVI of the American Declaration, and by executing Mr. Suarez Medina pursuant to that sentence on August 14, 2002 notwithstanding the existence of precautionary measures granted in his favor by this Commission.
755. The IACHR issued the following recommendations to the State:
1. Provide the next-of-kin of Mr. Suarez Medina with an effective remedy, which includes compensation.
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.
3. 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.
4. Review its laws, procedures and practices to ensure that requests for precautionary measures granted by the Commission are implemented so as to preserve the Commission’s functions and mandate and to prevent irreparable harm to persons.
756. In its 2006 and 2007 Annual Reports, the Commission presumed that the recommendations in Report N° 91/05 were pending compliance.
757. In its letter of March 6, 2007, the State reiterated that it disagreed with the first and second recommendations of the Commission for the reasons articulated in its previous submissions in this case. With respect to the Commission’s third recommendation, 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 had 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 had conducted over 350 training seminars on the right to consular assistance throughout the United States and its territories, and had created an online training course on the topic. The Petitioners have not provided the Commission with updated information regarding implementation of its recommendations. As regards the fourth recommendation, the State informed the Commission that it had mechanisms in place to allow for the expeditious transmittal of precautionary measures to the appropriate governmental authorities. For its part, the State sent a letter on January 6, 2009, by which it reiterates its previous position on this matter.
758.
The
Commission concludes that there is partial compliance with the
aforementioned recommendations. Case 12.555 (Petition 562/03), Report No. 110/06, Sebastián Echaniz Alcorta and Juan Víctor Galarza Mendiola (Venezuela)
759. On October 27, 2006, by means of Report No. 110/06, the Commission approved a friendly settlement agreement in the case of Sebastián Echaniz Alcorta and Juan Víctor Galarza Mendiola. The case deals with the deportation, from Venezuela to Spain, of Juan Víctor Galarza Mendiola on June 2, 2002, and of Sebastián Echaniz Alcorta on December 16, 2002, both of whom are Spanish nationals of Basque origin.
760. In the friendly settlement agreement, the Venezuelan State accepted its responsibility for violating the human rights of Juan Víctor Galarza Mendiola and Sebastián Echaniz Alcorta, by illegally deporting them and illegally handing them over to the Spanish State. The Venezuelan State also acknowledged its violation of the following articles of the American Convention: Right to Humane Treatment, Right to Personal Liberty, Right to a Fair Trial, Right to Privacy, Rights of the Family, Freedom of Movement and Residence, Right to Equal Protection, and Right to Judicial Protection, in accordance with the general obligation to respect and guarantee rights. It also admitted the violation of Article 13 of the Inter-American Convention to Prevent and Punish Torture (the person sought shall not be returned when there are grounds to believe that he will be subjected to torture or tried by special or ad hoc courts).
761. In summary, and in accordance with the agreement reached, the Venezuelan State entered into the following commitments:
1. It agreed to neither employ or have recourse to any method contrary to national or international law that bypasses legal mechanisms or procedures in an effort to secure the return of any foreigner. It also agreed that procedures for expulsion will not be used in cases of individuals with criminal cases pending in their countries of origin and that it will process extradition requests filed with it with due respect for legal guarantees and in accordance with national laws and international standards; and that it will refuse to return individuals to States where they might run the risk of torture, abusive treatment, due process violations, or where they might be persecuted on account of their ideology, race, religious beliefs, or sexual orientation.
2. It assumed the obligation of providing compensation for pain and suffering and for material damages. In the case of Juan Víctor Galarza Mendiola, the compensation for pain and suffering was set at fifty thousand (50,000) euros, which the State agreed to pay no later than 90 days after the signing of the friendly settlement agreement, with one extension of 30 days, to his wife María José Ugalde and minor daughter Haizea Galarza. The agreement stipulates that failure to make payment by the set deadline will mean that the State has to pay interest on arrears. The amount of compensation for material damage as a result of foregone earnings as well as the indirect damage to Juan Víctor Galarza Mendiola and his family was set at 40,000 (forty thousand) euros, payable within no more than 90 days from the date on which the friendly settlement agreement was signed, with one 30-day extension. The agreement stipulates that failure to make payment by the set deadline will mean that the State has to pay interest on arrears. In the case of Sebastián Echaniz Alcorta and common-law wife, the compensation for pain and suffering was set at seventy-five thousand (75,000) euros for him, which the State agreed to pay no later than 90 days after the signing of the friendly settlement agreement, with one extension of 30 days. The compensation for pain and suffering of his common-law wife María Aranzazu Plazaola Echaniz was set at twenty-five thousand (25,000) euros. The agreement stipulates that failure to make payment by the set deadline will mean that the State has to pay interest on arrears. In addition, the compensation for material damages to reflect the stoppage of business activity for the years spent in prison and for the years of his sentence that remain, as well as the indirect damage to Sebastián Echaniz Alcorta and his common-law wife, was set at the amount of 93,000 (ninety-three thousand) euros, to be paid by no more than 90 days after the signing of the friendly settlement agreement, with one 30-day extension. The agreement stipulates that failure to make payment by the set deadline will mean that the State has to pay interest on arrears. The agreement states that the reparations for pain and suffering and material damages caused to Sebastián Echaniz Alcorta are to be delivered to his common-law wife, María Aranzazu Plazaola Echaniz, who shall be the sole person authorized to administer and use the amount awarded on behalf of her companion.
3. The state agreed to ensure Mrs. María Aranzazu Plazaola Echaniz a monthly pension of seven hundred and fifty (750) euros, adjusted by the CPI (Consumer Price Index) of her place of origin, for as long as her companion is deprived of his freedom, with the amount to be transferred on a monthly basis to a bank account that will be opened by the beneficiary in Spain.
4. The friendly settlement agreement stipulated that the payment of compensation to all beneficiaries under its terms will be tax-exempt (from present or future taxes or other assessments).
5. The State agreed to ensure that the transfer of compensation payments to the rest of the world will be made at the official exchange rate in force on the date on which the friendly settlement was signed.
6. The State committed itself to taking the following steps, through the Venezuelan Consulate in Spain, to guarantee the physical and mental integrity of Sebastián Echaniz Alcorta:
- Comply, to the best of its ability, with the appropriate formalities required by relevant Spanish authorities in order to ensure that Sebastián Echaniz Alcorta can serve out the remainder of his prison term in a correctional facility near to his place of origin, as is established by international standards.
- Visit Sebastián Echaniz Alcorta at least twice a year in the prison where he is kept, in order to ascertain the conditions in which he is imprisoned, determine the state of his physical and psychological health and follow up on any complaint that he makes with regard to the behavior of prison officers. The appropriate State organization should give the petitioners and families a report about every visit, within thirty days of the visit.
- It shall defray all expenses for medical attention that the Spanish State does not cover for the entire period that he is deprived of his freedom.
7. It agreed to publish the friendly settlement agreement in the Official Gazette of the Bolivarian Republic of Venezuela and in one national newspaper.
762. On October 21, 2006, the Commission adopted Report No. 110/06, in which it applauded the efforts made by both parties in reaching the friendly settlement and, in addition, clarified that the agreement referred to a series of matters beyond the jurisdiction of the Commission and/or that were not addressed in the case before it. The Commission therefore deemed it was necessary to state that the adopted report in no way implied a ruling on the individuals not named as victims in the case before the Commission, on the citizenship of Messrs. Juan Víctor Galarza Mendiola and Sebastián Echaniz Alcorta, nor on the treatment they may have received in third countries not subject to the IACHR’s jurisdiction.
763. In November 2008, the Commission asked the parties for up-to-date information on the state of compliance with the agreement. The Commission received no replies. It therefore concludes that the friendly settlement agreement is pending compliance.
Case 11.500, Report No. 124/06, Tomás Eduardo Cirio (Uruguay)
764. In Report No. 124/06 of October 27, 2006, the Inter-American Commission concluded that: (a) The Uruguayan State has breached its obligation to respect and ensure the right to be heard by a competent, independent, and impartial court, previously established by law (Article XXVI American Declaration) and judicial protection (Article 25 American Convention), the freedom of expression (Article IV American Declaration), his right to dignity and honor (Article 5 of the Declaration and Article 11 of the Convention), the right to equality before the law (Article 24 of the Convention), and the right to compensation (Article 10 of the American Convention); and (b) that by virtue of the violations mentioned, the Uruguayan State has breached its obligations to respect and ensure human rights, imposed by Article 1(1) of the American Convention, and to adopt provisions of domestic law, imposed by Article 2.
765. The Commission made the following recommendations to the State:
1. Nullify forthwith and to rescind retroactively Executive Resolutions Nos. 46.202 and 46.204 of January 2, 1973, Ministry of Defense Resolution No. 6.540 of December 20, 1973, and the ruling of the Tribunal of Honor that harmed him. Restore all the rights, benefits, honors and other prerogatives pertaining to him as a retired member of the Armed Forces of Uruguay.
2. To adopt all necessary measures for reparation and compensation, so as to restore the honor and reputation of Mr. Tomás Eduardo Cirio.
3. To promote measures that lead to the adoption of domestic legislation in conformity with the norms of the American Convention with respect to freedom of expression and due process under military jurisdiction.
766. On November 8, 2007, the Commission asked the State and the petitioner to submit information on implementation of the recommendations.
767. By letter of December 4, 2007, the petitioner responded: “By resolution of the Executive branch of December 28, 2005 (internal number 83,329), resolutions Nos. 46,202 and 46,204 of January 2, 1973, were revoked, with retroactive effect, by which the unlawful ruling of the Court of Honor that disqualified me for “very serious breach” was approved, and I was passed into retirement, as well as the resolution No. 6542 of the Ministry of National Defense of December 20, 1973, by which my retirement pension was set. In addition, through said resolution No. 83,329, it was ordered that I have restored to me all the ‘rights, benefits, honors, and other prerogatives’ that would have corresponded to me in my capacity as an Officer in retirement, and ‘the legal effects of the disqualification due to very serious breach were annulled’.” The ruling cited, of the Tribunal of Honor, was not annulled.
768. By Note of December 6, 2007, the State reported that by Executive Branch Resolution No. 83,329 of December 28, 2005, the Resolution that approved the ruling issued by the Tribunal of Honor in 1973 was revoked, thereby carrying out the corresponding recommendation.
769. In his letter of December 4, 2007, the petitioner answered: “As moral reparation I was granted the highest rank in the Army as of February 1, 1986, by resolution of the Executive Branch No. 83,805 of September 4, 2006.”
770.
The State,
in its note of December 6, 2007, stated: “The reparation granted to
General Cirio has the following characteristics: (a) he is given the
rank of General as of the date on which he should have been promoted,
taking into consideration the calculation of the years in which he was
retired, as if he had been on active duty – from 1973 to 1997 –
accordingly that rank was given to him as from February 1, 1986; (b) it
increases his retirement pension in his current rank of General by 25
percent; (c) he is paid the compensation provided for, whose amount is
24 times the retirement pension corresponding to the month of July 2005;
(d) it orders that he should enjoy the
771. The State noted that “the compensation consisting of 24 times the retirement pension was paid to him in keeping with the regulations in force. Those payments were received with the conformity of General Cirio – along with the new retirement pension – and he did not make any claim with respect to the amounts paid. The figures enshrined in said Resolution No. 83,805 and through which – considering the promotion, the new calculation of services, the benefits of the rank including military health service, expunging the improper certifications from his file, and repairing his honor – culminated any litigation with General Cirio. To illustrate the amounts alluded to, we can note that the total received as compensation – equivalent to 24 times the retirement pension for July 2005 – comes to $498,819 (Uruguayan pesos) and, as the newly-calculated, updated retirement pension, $51,631 (Uruguayan pesos) monthly. [7][1] In order to compare the extent of the reparation and the dauntless efforts made by the Uruguayan State to achieve a friendly settlement with General Cirio, it should be noted that the retirement pension General Cirio received before was $ 27,748 (Uruguayan pesos).”
772. In his letter of December 4, 2007, the petitioner responded: “The Ministry of National Defense has understood that, as the Military Center is a civilian entity (which has not stopped it from acting as though it were a military entity, when convenient to do so), it cannot be legally obligated as if it were a subordinated entity. And so it has merely expressed its disagreement with the communiqué issued by that Center in 1972.”
773. As regards the measures aimed at bringing the legislation into line with the norms of the American Convention on Human Rights in the area of freedom of expression and due process in the military jurisdiction, in a communication of December 6, 2007, the State indicated that as was known a Commission had been formed within the Ministry of National Defense to analyze and issue suggestions in that area. In this connection, it announced the existence of a preliminary draft Law on Defense that includes changes, such as holding only members of the military liable for the crimes with those characteristics, excluding civil offenses, and it is foreseen that the Judicial branch will exercise the ordinary jurisdiction and the military one to which Article 253 of the National Constitution refers.
774. In this respect, the IACHR learned that on December 29, 2008, the Chamber of Senators of Uruguay unanimously approved the proposed Law on National Defense, and that in keeping with the legislative procedure, it would be referred to the Chamber of Deputies for study and approval.
775. Accordingly, the IACHR concludes that the State has partially carried out the recommendations noted.
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