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IACHR ANNUAL REPORT 2008 Contentious Cases (Continuation)
l. Guatemala
Case of Bámaca Velásquez
975. In 2008, the Commission presented its periodic comments concerning compliance with the Court’s February 22, 2002 judgment on merits, reparations and costs, underscoring the importance of an investigation into the whereabouts of the victim in a case of forced disappearance, not just for the sake of their loved ones but for society as a whole as well. This obligation has not yet been fulfilled.
976. On January 16, 2008 the Court issued an Order where it summoned the parties to a hearing to be held in private. The text is available at http://www.corteidh.or.cr/docs/supervisiones/Bamaca_16_01_08_ing.pdf. On November 11, 2008, the President of the Court issued an order in which she convened the Commission, the State of Guatemala, and the representatives of the victim’s next of kin to a private hearing to be held at the seat of the Court on January 20, 2009, so that the Court can receive information from the parties on the request that the provisional measures be lifted; it will also enable the Court to compile information from the State concerning its compliance with the judgment on the merits and the judgment on reparations and costs delivered in this case, and to hear the comments from the Commission and from the representatives of the victims and the beneficiaries of the provisional measures. The order convening the hearing is available (in Spanish) at http://www.corteidh.or.cr/docs/medidas/bamaca_se_09.doc.
Case of Blake
977. In 2008, the Commission continued to provide its comments on compliance with the Court’s January 22, 1999 judgment on reparations. As stated in the Court’s most recent order monitoring compliance, dated November 27, 2007, compliance with the obligations to investigate, prosecute, and punish those responsible for the violations of Nicholas Chapman Blake’s human rights is still pending. The full text of the order is available at: http://www.corteidh.or.cr/docs/supervisiones/blake_27_11_07_ing.doc.
Case of Carpio Nicolle et al.
978. In 2008, the Commission continued to submit its periodic comments concerning compliance with the reparations ordered by the Court in its judgment of November 22, 2004. In its comments to the Court, the Commission acknowledged the steps taken for payment of the compensatory damages and costs, but expressed concern over the lack of progress made toward compliance with the other reparations ordered in the judgment. On November 18, 2008, the Court summoned the parties for a hearing to monitor compliance with its judgment, slated for January 20, 2009. The Order is available at http://www.corteidh.or.cr/docs/medidas/carpio_se_13.pdf.
Case of Fermín Ramírez
979. This case concerns the death sentence ordered in the case of Mr. Fermín Ramírez, who was denied the opportunity to exercise his right of defense with respect to changes in the offenses with which he was charged and their legal classification. Those changes occurred at the time the Guatemalan judicial authorities handed down his conviction on March 6, 1998.
980. In 2008, the Commission continued to submit its periodic comments regarding compliance with the Court’s July 20, 2005 judgment on the merits, reparations and costs.
981. On March 28, 2008 the Court summoned the parties to a hearing to be held in private. The Order is available at http://www.corteidh.or.cr/docs/supervisiones/Fermin_%2028_03_08_ing.pdf. On May 9, 2008, the Inter-American Court issued an order monitoring compliance with the judgment in which it ordered the State of Guatemala to adopt all the measures necessary to effectively and promptly comply with the pending aspects of the judgments delivered in the cases of Fermín Ramírez and Raxcacó Reyes. The text of the order is available at http://www.corteidh.or.cr/docs/supervisiones/Fermin_%2009_05_08_ing.doc.
Case of Maritza Urrutia
982. In 2008, the Commission continued to submit its periodic comments concerning compliance with the reparations ordered in the Court’s November 27, 2003 judgment. The case concerns the illegal and arbitrary detention of Mrs. Maritza Urrutia on July 23, 1992, and her subsequent torture in a clandestine detention center, where she spent eight days and was forced to make a public statement prepared by her captors.
983. The Court’s most recent order regarding compliance is dated September 21, 2005. According to that order, the State has not yet complied with its obligations to effectively investigate the events that gave rise to the violations of the American Convention and of the Inter-American Convention to Prevent and Punish Torture; to identify, prosecute, and punish the perpetrators; and to publicize the results of the investigation, all measures ordered by the Court in its judgment of November 27, 2003. The full text of the order is available (in Spanish) at: http://www.corteidh.or.cr/docs/supervisiones/urrutia_21_09_05.pdf
Las Dos Erres Massacre
984. On July 30, 2008, the Inter-American Commission filed an application against the Republic of Guatemala in case number 11,681, Las Dos Erres Massacre, in which it asserted the State’s lack of due diligence in the investigation, prosecution and punishment of those responsible for the massacre of 251 inhabitants of the community (parcelamiento) of Las Dos Erres, municipality of La Libertad, department of Petén. The massacre was the work of members of the Guatemalan Army and occurred between December 6 and 8, 1982.
985. In its application, the Commission noted the positive attitude of the Guatemalan State in acknowledging the facts and its responsibility arising from them, as well as the efforts to make reparation for the human rights violations suffered by the victims in the case, all of which has full effect in relation to the judicial proceeding now proposed. However, the Commission was of the view that the impunity in relation to the facts of the Las Dos Erres massacre serves to prolong the suffering caused by the gross violations of fundamental rights that occurred; and that it is a duty of the Guatemalan State to fashion an adequate judicial response, establish the identity of the persons responsible, prosecute them, and impose the respective sanctions on them
986.
The
application is available at the following link:
http://www.cidh.org/demandas/11.681%20Masacre%20de%20las%20Dos%20Erres%20
Case of the “Plan de Sánchez” Massacre
987. The Inter-American Commission submitted an application to the Court in this case on July 31, 2002. The Commission asserted that the survivors and families of the victims of a massacre of 268 people –most of them indigenous Mayans- had been denied justice and suffered other acts of discrimination and intimidation. The July 18, 1982 massacre was in the village of Plan de Sánchez, Rabinal municipality, in the department of Baja Verapaz, and was the work of members of the Guatemalan Army and their civilian collaborators, who were acting under the protection and guidance of the Army. The Court delivered its judgment on the merits on April 29, 2004 and its judgment on reparations on November 19, 2004.
988. On August 8, 2008 the Court issued an Order of Compliance Supervision with its Judgment. There, the Court decided that on monitoring overall compliance with the Judgment, the Court finds it essential for the State to provide information on the following aspects which are still pending: a) Investigation, identification and possible punishment of the perpetrators and masterminds of the Massacre; b) Publicizing of the text of the American Convention in the Spanish and Maya-Achí languages and dissemination thereof in the Municipality of Rabinal; c) Publication in Spanish and Maya-Achí of the pertinent parts of the Judgment on Merits, and of the Judgment on Reparation and Costs in a newspaper with national coverage; d) Payment of the amount for infrastructure maintenance and improvements at the chapel in memoriam of the victims; e) Provision of free-of-charge medical and psychological treatment and medication to those victims who may so require; f) Provision of adequate housing to those survivors of the village of Plan de Sánchez who may so require; g) Implementation of programs on the following issues in the affected communities: (i) study and dissemination of the Maya-Achí culture in the affected communities through the Guatemalan Academy of Mayan Languages or a similar organization; (ii) maintenance and improvement of the road systems between the said communities and the municipal capital of Rabinal; (iii) sewage system and potable water supply; (iv) supply of teaching personnel trained in intercultural and bilingual teaching for primary, secondary and comprehensive schooling in these communities; h) Payment of the compensation amount awarded in the Judgment on Reparations on account of pecuniary and non-pecuniary damage to those victims or next of kin who are yet to be paid such amount in full.
989. In 2008, the Commission submitted its comments on the State’s compliance reports. The Commission noted that it appreciated the State’s efforts to comply with the judgment on reparations and went on to underscore how important it was for the State to comply with the obligation to investigate the causes of the massacre and the human rights violations that resulted from it, and to identify, prosecute and punish those responsible.
Case of Molina Theissen
990. In 2008, the Commission continued to submit its periodic comments concerning compliance with the Court’s judgment on the merits, dated May 4, 2004, and its judgment on reparations, dated July 3, 2004. The case concerns the forced disappearance of Marco Antonio Molina Theissen, a boy of 14 who was abducted from his parents’ home by members of the Guatemalan Army on October 6, 1981.
991.
According to the Court’s most recent order monitoring compliance, which
is dated July 10, 2007, the State has yet to fulfill the following
obligations: locating the mortal remains of Marco Antonio Molina
Theissen and delivering them to his next-of-kin; investigating the facts
of the case so as to identify, prosecute, and punish the masterminds and
perpetrators of the victim’s disappearance; establishing a prompt
procedure to obtain a declaration of absence and presumption of death by
forced disappearance, and adopting such legislative, administrative, and
other measures as may be necessary to create a genetic information
system. The full text of the order can be found at:
http://www.corteidh.or.cr/docs/supervisiones/molina_10_07_07%
Case of Myrna Mack
992. In 2008, the Commission continued to submit its periodic comments concerning compliance with the Court’s November 25, 2003 judgment on merits, reparations and costs.
993. According to the Court’s most recent order monitoring compliance, dated November 26, 2007, the last pending requirement is to investigate the facts of the case in order to identify, prosecute and punish all the material and intellectual authors and others responsible for the extrajudicial execution of Myrna Mack Chang, and for covering up the crime and other facts in the case.
Case of Paniagua Morales et al.
994. On November 27, 2007, the Court issued an order monitoring compliance in which it instructed the State to adopt all measures necessary for prompt compliance with the reparations still outstanding from the judgment of May 25, 2001, in accordance with the provisions of Article 68(1) of the American Convention on Human Rights; the Court also instructed the State to submit a detailed report indicating all the measures adopted to implement the Court-ordered reparations whose compliance was still pending.
995. In 2008, the Commission continued to submit its periodic comments concerning compliance with the Court’s May 25, 2001 judgment, the text of which is available at the following link: http://www.corteidh.or.cr/docs/casos/articulos/Seriec_76_ing.doc.
Case of Raxcacó Reyes
996. This case concerns the death sentence handed down against Mr. Raxcacó Reyes for committing a crime which, under Guatemalan law, was not a capital offense at the time the country ratified the American Convention.
997. In 2008, the Commission continued to submit its periodic comments regarding compliance with the Court’s September 15, 2005 judgment on merits, reparations and costs.
998. On March 28, 2008, the Court issued an Order where it summoned the parties to a private hearing to be held in the venue of the Court on May 8, 2008. The text of the Order is available at: http://www.corteidh.or.cr/docs/medidas/Raxcaco_se_06_ing.pdf. On May 9, 2008, the Court issued an order on compliance with the judgment in which it instructed the State of Guatemala to adopt all measures necessary to effectively and promptly comply with the issues pending compliance from the judgments delivered in the cases of Fermín Ramírez and Raxcacó Reyes. The text of the order is available at http://www.corteidh.or.cr/docs/supervisiones/Fermin_%2009_05_08_ing.doc.
Case of Tiu Tojín
999. This case concerns the unlawful arrest and forced disappearance of María Tiu Tojín and her one-month-old daughter, Josefa Tiu Tojín, on August 29, 1990, in Nebaj, Quiché department, the subsequent lack of due diligence in investigating the facts of the case, and the denial of justice to the family of the victims.
1000. On March 14, 2008, the President of the Court ordered a public hearing on the merits, reparations and costs in this case. The hearing was held on April 30, 2008, during the Court’s XXXIII special session, held in Tegucigalpa, Honduras. In attendance were the Commission, the representatives of the victims and their next of kin, and the Guatemalan State. On June 6, 2008, the parties filed their final briefs of pleadings, motions and evidence.
1001. Based on the evidence offered by the parties, their arguments, and the Guatemalan State’s acknowledgement of responsibility, on November 26, 2008 the Court delivered its judgment on merits, reparations and costs. It found that the State had violated articles 4(1); 5(1) and 5(2); 7(1), 7(2), 7(4), 7(5) and 7(6; 8(1), 19 and 25(1) of the American Convention, in relation to Article 1(1) thereof and Article I of the Inter-American Convention on Forced Disappearance of Persons. In that judgment, the Court set the reparations that it deemed appropriate. The text of the judgment is available (in Spanish) at the following link: http://www.corteidh.or.cr/docs/casos/articulos/seriec_190_esp.doc.
Case of the “Street Children” (Villagrán Morales et al.)
1002. In 2008 the Commission submitted its periodic comments regarding compliance with the reparations and costs the Court ordered in its judgment of May 26, 2001.
1003. On April 16, 2008, the Court issued an Order where it summoned the parties to a private hearing to be held in the venue of the Court. The text of the Order is available in the following link: http://www.corteidh.or.cr/docs/supervisiones/villagran_16_01_08.pdf. On November 11, 2008, the President of the Court issued an order in which she summoned the Inter-American Commission, the State and the representatives of the victims’ next of kin to a private hearing scheduled to be held at the seat of the Court on January 20, 2009. The hearing is being held to afford the Court an opportunity to receive information from the parties concerning that item of the judgment on merits and the judgment on reparations and costs whose compliance is still pending. It will also enable the Court to hear the comments of the Commission and the representatives of the victims’ next of kin regarding the question of compliance. The text of the order convoking the hearing is available (in Spanish) at http://www.corteidh.or.cr/docs/supervisiones/Villagran_11_11_08.doc.
l. Haiti
Case of Yvon Neptune
1004. This case concerns the failure to advise the victim of the charges against him in a timely and adequate fashion; to bring him without delay before a judge or other judicial official empowered by law to exercise judicial authority; to afford him an appeal to a competent court to examine the legality of his detention; to ensure his physical, mental, and moral integrity, and his right to be separated from inmates already convicted; to provide him with detention and treatment conditions consistent with international standards while he was in custody at the National Penitentiary; to give him adequate time and means to prepare his defense; and to refrain from accusing him of an act that was not a crime under Haitian law.
1005. The Inter-American Commission, the victim’s representatives and the State submitted their final briefs of pleadings, motions and evidence on September 30, 2007.
1006. On November 29, 2007, the Court convened a public hearing to receive Mr. Yvon Neptune’s statement and hear the parties make their case with regard to certain specific topics indicated in the order convoking the hearing. That hearing was held in San José, Costa Rica, on January 30, 2008, with the participation of the Commission, the victim’s representatives, and the Haitian State.
1007.
The
Inter-American Court delivered its judgment on merits, reparations and
costs on May 6, 2008, based on the evidence offered by the parties and
their arguments during the proceedings. In that judgment, the Court
held that the State had violated articles
5(1), 5(2), 5(4), 7(1), 7(2), 7(3),
7(4), 7(5), 8(1), 9 and 25 of the
American Convention, in relation to Article 1(1) thereof. The Court also
set the reparations that it deemed appropriate. The text of the
decision is available at the following link:
http://www.corteidh.or.cr/docs/casos/articulos/seriec_180_ing.doc.
m. Honduras
Case of Alfredo López Álvarez
1008. On July 7, 2003, the Commission filed an application with the Court against the Republic of Honduras for violations of the rights of Mr. Alfredo López Álvarez, a member of a Honduran Garifuna community. Mr. López Álvarez was arrested on April 27, 1997, and tried in criminal court, where he was acquitted on January 13, 2003. He was imprisoned for six and a half years before being released on August 26, 2003.
1009. On February 1, 2006, the Court issued its judgment in this case. It held that Honduras had violated Mr. Alfredo López Álvarez’s rights to personal liberty, humane treatment, a fair trial, judicial protection, freedom of thought and expression, and equality before the law and the next of kin’s right to humane treatment, all in conjunction with Article 1(1) of the Convention. The full text of the judgment can be found http://www.corteidh.or.cr/docs/casos/articulos/seriec_141_ing.doc
1010. On February 6, 2008 the Court issued an Order where it deemed it imperative that the State submit updated information on the following obligations pending compliance: a) the investigation of the case and the application of the measures resulting from such investigation to those responsible, and b) the specific actions taken concerning the improvement of conditions in penitentiary centers and the implementation of training programs on human rights to the agents working in such centers. The text is available http://www.corteidh.or.cr/docs/supervisiones/lopezal_06_0208_ing.pdf
1011. In 2008, the Commission submitted its comments on the information reported by the State and by the representatives of the victim and his next of kin. The Commission observed that in order for the inter-American system to be able to make a complete assessment of compliance with the judgment, it must have the necessary information regarding the measures taken by the State in the investigation into the facts of the case, the characteristics of those measures, and the measures taken to improve the conditions of incarceration of persons being held in Honduran prisons.
Case of Blanca Jeannette Kawas Fernandez
1012. On February 4, 2008, the Inter-American Commission filed an application against the Republic of Honduras in case 12,507, Blanca Jeannette Kawas Fernández, in which it asked the Court to find the State internationally responsible for violation of articles 4, 8 and 25 of the American Convention, in relation to the general obligations established in articles 1(1) and 2 thereof.
1013. This case concerns the extrajudicial execution of environmentalist Blanca Jeannette Kawas Fernández on the night of February 6, 1995, in the “El Centro” section of the city of Tela; the subsequent lack of due diligence in investigating, prosecuting and punishing those responsible for her death, obstruction of justice, and failure to make adequate reparations to her next of kin.
1014. On May 7, 2008, the representatives of the victim and her next of kin filed their brief of pleadings, motions and evidence. On July 3, the Honduran State submitted its brief answering the application, in which it acknowledged international responsibility for violation of the rights protected under articles 8 and 25 of the American Convention; it also acknowledged its obligation to offer reparations to the victim’s next of kin.
1015. By an order of October 7, 2008, the Court convoked a public hearing on the merits, reparations and costs in this case. The hearing was held on December 2, 2008, during the Court’s XXXVII special session, held in Mexico City. In attendance were the Commission, the representatives of the victim and her next of kin, and the Honduran State. The parties are to submit their final briefs of pleadings, motions and evidence by no later than January 20, 2009.
1016.
The
application is available at the following link:
http://www.cidh.org/demandas/12.507%20B%20J%20Kawas%20Honduras%204%
Case of Juan Humberto Sánchez
1017. On September 8, 2001, the Inter-American Commission filed an application with the Court in this case, which concerns the July 11, 1992 abduction of Juan Humberto Sánchez, his torture and execution, the ineffectiveness of the habeas corpus remedy filed to determine his whereabouts (until his body was found some days later), and the impunity enjoyed by the perpetrators of those crimes. The Court delivered its judgment on June 7, 2003.
1018. On November 21, 2007, the Court issued an order monitoring compliance with the judgment, in which it found that some of the reparation measures it had ordered had been complied with in full. However, it also decided to keep open the monitoring procedure vis-à-vis compliance with the pending items, namely: (a) paying Mr. Julio Sánchez the compensation ordered for non-pecuniary damages; (b) conducting an effective investigation into the facts of the case, identifying the direct perpetrators, the instigators, and any accessories after the fact, and punishing them through the appropriate administrative and criminal justice channels; and establishing a log of detainees with which to verify the legality of the detentions.
1019. In 2008, the Commission submitted its periodic comments regarding compliance with the Court’s judgment. The Commission observed that the State had complied with the majority of its obligations under the judgment and underscored the importance of monitoring for implementation and effective compliance with all aspects of the judgment, particularly those whose compliance is pending, such as the investigation, identification, prosecution and punishment of the material and intellectual authors of the crimes in this case, and creation of the detainee log to control the lawfulness of detentions in Honduras.
Case of Servellón García et al.
1020.
In
2008 the Commission continued to submit its periodic comments regarding
compliance with the Court’s September 21, 2006 judgment on the
violations committed against Marco Antonio Servellón García, Rony Alexis
Betancourt Vásquez, Orlando Álvarez Ríos and Diomedes Obed García
Sánchez, who were detained between September 15 and 16, 1995, during an
operation conducted by the Public Security Force of Honduras. The four
young men were extra judicially executed by agents of the State. Their
unburied bodies were found in various places in the city of Tegucigalpa,
Honduras, on September 17, 1995. The full text of the judgment is
available at the following link:
http://www.corteidh.or.cr/docs/casos/articulos/
1021.
On
January 29, 2008 the Court issued an Order in which it determined that
it will monitor compliance with seven pending matters.
On August 5, 2008, the Court issued
another Order where it determined that it will monitor compliance with
the pending matters in the present case, specifically: a) to carry out
all actions necessary to identify, prosecute and, as the case may be,
punish all the perpetrators of the violations committed in detriment of
the victims and to remove all obstacles and mechanisms of fact and of
law that have maintained impunity in the instant case and b) to carry
out a campaign to sensitize the Honduran society regarding the
importance of the protection of children and youngsters, to inform about
the specific duties for their protection that correspond to the family,
society and the State, and to show the population that children and
youngsters in risky situations are not associated to delinquency.
The Orders are available at:
http://www.corteidh.or.cr/docs/supervisiones/servellon_
n. Mexico
Case of Castañeda Gutman
1022. This case concerns the lack of a simple and effective domestic remedy to challenge the constitutionality of decisions that affect political rights and that, in practice, had the effect of preventing Mr. Jorge Castañeda Gutman from registering as an independent candidate for the office of President of Mexico.
1023. On November 30, 2007, the Court convoked a public hearing on preliminary objections, merits, reparations, and costs, which was held in San José, Costa Rica, on February 8, 2008, with the participation of the Commission, the representatives of the victim and his family, and the Mexican State. On March 10, the parties submitted their final briefs of pleadings, motions and evidence.
1024. Based on the evidence offered by the parties during the proceedings and their arguments, the Court delivered a judgment in the case on August 6, 2008 in which it dismissed the State’s preliminary objections and declared that the State had violated Article 25(1) of the American Convention, in relation to articles 1(1) and 2 thereof. In that judgment the Court set the reparations it deemed appropriate. The text of the judgment is available (in Spanish) at the following link: http://www.corteidh.or.cr/docs/casos/articulos/seriec_184_esp.doc.
Case of Campo Algodonero (González et al.)
1025. This case concerns the denial of justice in the disappearance and murder of Claudia Ivette González, Esmeralda Herrera Monreal, and Laura Berenice Ramos Monárrez (two of whom were minors), in Ciudad Juárez, Chihuahua; the absence of policies to prevent cases of this kind, despite the fact that the authorities are aware of a pattern of violence against women and girls in the state of Chihuahua; the authorities’ failure to respond to the disappearances; the lack of due diligence in the murder investigations; and the failure to provide adequate compensation to the victims’ next of kin.
1026. On May 26, 2008, the State filed its brief answering the application, but did not file any express preliminary objection. Nevertheless, as the Court held, “the arguments […] regarding the alleged lack of competence of the Court to ‘examine direct violations of the Convention’ would constitute a preliminary objection.
1027. The Commission filed its arguments regarding the preliminary objection on August 20, 2008.
1028. The application is available at the following link: Case of Rosendo Radilla Pacheco
1029.
On
March 15, 2008, the Commission filed an application against the United
Mexican States in the case of Mr. Rosendo Radilla Pacheco, who was
unlawfully detained at an Army military post in the state of Guerrero,
Mexico, on August 25, 1974. The case concerns his forced disappearance
since that time, the State’s failure to establish his whereabouts, the
fact that the crimes committed have never been punished, and the fact
that his next of kin have never been compensated for the harm that the
loss of their loved one and the prolonged denial of justice caused. The
application is available at the following link: http://www.cidh.oas.org/demandas/12.511%20Rosendo%20Radilla%20Pacheco%
1030. The State presented preliminary observations and the parties have presented their comments thereon. Convocation of the public hearing to hear the evidence and the arguments in this case is pending.
o. Nicaragua
Case of the Mayagna (Sumo) Awas Tingni Community
1031. On June 4, 1998 the Commission filed an application in this case with the Inter-American Court. The case concerns the State’s failure to demarcate the communal lands of the Awas Tingni Community, its failure to take effective measures to ensure the Community’s property rights to its ancestral lands and the natural resources on and in those lands, the fact that the State granted a concession on community lands without the Community’s consent and without guaranteeing an effective remedy to answer the Community’s claims to its property rights. The Court delivered its judgment on merits and reparations on August 31, 2001.
1032. On March 14, 2008, the Court issued an Order where it summoned the parties to a private hearing to be held in the venue of the Court. On May 7, 2008 the Court issued another Order where it decided that it will keep open the procedure of monitoring compliance with the pending aspect of this case, concerning the State’s obligation to delimit, demarcate and title the lands that correspond to the members of the Awas Tingni Community and, until that delimitation, demarcation and titling has been done, it must abstain from any acts that might lead the agents of the State itself, or third parties acting with its acquiescence or its tolerance, to affect the existence, value, use or enjoyment of the property located in the geographic area where the members of the Community live and carry out their activities. The text of the Orders are available in the following links: http://www.corteidh.or.cr/docs/supervisiones/mayagna_07_05_08_ing.pdf http://www.corteidh.or.cr/docs/supervisiones/mayagna_14_03_08_ing.pdf
1033.
On
Sunday, December 14, 2008, the Government of Nicaragua gave the Awas
Tingni Community title to 73,000 hectares of its territory, located in
Nicaragua’s Atlantic Coast region. The Commission took this as a major
step toward resolution of the case that it brought to the Inter-American
Court in 1998. It was the first case that the Commission took to the
Court on the issue of the collective ownership of indigenous lands. By
this measure, the judgment the Inter-American Court delivered on August
31, 2001 becomes a historic milestone in the recognition and protection
of the rights of indigenous people at the global level, and a major
legal precedent in international human rights law. Case of Yatama
1034. On June 17, 2003, the Commission filed an application with the Court in which it asserted that candidates for mayors, deputy mayors and councilors nominated by the indigenous regional political party, Yapti Tasba Masraka Nanih Asla Takanka (hereinafter “YATAMA”), were excluded from participating in the municipal elections held on November 5, 2000, in the North Atlantic and the South Atlantic Autonomous Regions (hereinafter “RAAN” and “RAAS”), as a result of a decision issued on August 15, 2000, by the Supreme Electoral Council. The State did not provide a recourse that would have protected the right of these candidates to participate and to be elected in the municipal elections of November 5, 2000, and it had not adopted the legislative or other measures necessary to make these rights effective; above all, the State did not include provisions in the electoral law that would have facilitated indigenous organizations’ political participation in electoral processes of the Atlantic Coast Autonomous Region of Nicaragua, in accordance with the customary law, values, practices and customs of the indigenous people who reside there.
1035. On June 23, 2005, the Court issued its judgment in which it held that the right to a fair trial, the right to judicial protection, political rights and the right to equality before the law had been violated. On November 29, 2006, the Court issued an order instructing the State to take all the steps necessary for effective and prompt fulfillment of the Court’s orders that were still awaiting compliance. Later, on August 4, 2008, the Court issued an Order where it decided that it will keep open the proceeding for monitoring compliance with the following obligations pending fulfillment in the instant case: a) The adoption, within a reasonable time, of such legislative measures as may be necessary to provide for a simple, prompt, and effective judicial remedy to review the decisions adopted by the Supreme Electoral Council which may affect human rights, such as the right to participate in government, in compliance with the relevant legal and treaty guarantees, and to repeal any provisions preventing said remedy from being sought; b) The amendment to Electoral Act No. 331 of 2000; c) The reform of the regulation of those requirements established in Electoral Act No. 331 of 2000 that were found to be in violation of the American Convention and the adoption of such measures as may be required for the members of indigenous and ethnic communities to be able to effectively take part in election processes in accordance with their values, customs, and traditions; d) Payment of the compensation set for pecuniary and non-pecuniary damage; e) Payment of the amount due on account of costs and expenses; f) The duty to publicize via broadcast by a radio station with widespread coverage on the Atlantic Coast the pertinent parts of the Judgment. The text of the Order is available: http://www.corteidh.or.cr/docs/supervisiones/yatama_04_08_08_ing.pdf
1036. In 2008, the Commission submitted its periodic comments on the information reported by the representatives and by the State on the matter of compliance with the reparations the Court ordered in its judgment of June 23, 2005.
p. Panama
Case of Baena Ricardo et al.
1037. On January 16, 1998, the Inter-American Commission filed an application with the Court for the events occurring as of December 6, 1990, and especially as of December 14 of that year, the date on which Law No. 25 was enacted. Under that law, 270 public employees who had participated in a labor demonstration were arbitrarily dismissed from their positions and accused of complicity in an attempted military coup. Following the workers’ arbitrary dismissal, a series of violations of their rights to due process and to judicial protection were committed in the efforts to get their complaints and lawsuits filed. The Inter-American Court issued its judgment on merits and reparations on February 2, 2001.
1038. On February 11, 2008 the Court summoned the parties to a private hearing on compliance with the judgment, to be held on May 3, 2008. On October 30, 2008, it announced that it was standardizing the agreements concluded between some victims and the State. It also instructed Panama to take the measures necessary to make, promptly and effectively, the payments required under the agreements to those victims or heirs who signed agreements. In the case of victims or heirs who did not sign agreements or who signed but then retracted their signature, the Court ordered that the discrepancies over the total amount owed under the judgment and compensation and reimbursements owed pursuant to operative paragraphs six and seven of the Judgment must be settled at the domestic level, following the appropriate procedures. This includes the possibility of recourse to the competent authorities, including the domestic courts. The Court also announced that it would keep open the procedure to monitor compliance with the judgment in order to receive: a) the vouchers certifying payments to victims or heirs who signed agreements; and b) bank deposit vouchers in the case of those persons who have not signed agreements or who signed but then retracted their signature. The full text of that order is available (in Spanish) at: http://www.corteidh.or.cr/docs/supervisiones/baena_30_10_08.doc
Case of Heliodoro Portugal
1039. This case concerns the forced disappearance and extrajudicial execution of Mr. Heliodoro Portugal, the failure to investigate and punish those responsible for these events, and the failure to make adequate reparations to his next of kin.
1040. On November 29, 2007, the Court convened a public hearing on preliminary objections, merits, reparations, and costs, which was held in San José, Costa Rica, January 29-30, 2008, and was attended by the Commission, the representatives of the victim and his family, and the Panamanian State.
1041. The Inter-American Court delivered its judgment in this case on August 12, 2008, based on the evidence offered by the parties during the proceedings and the arguments they made. There, it dismissed the State’s preliminary objections claiming a failure to exhaust local remedies and the Court’s lack of jurisdiction ratione materiae; it also declared that the State’s preliminary objection asserting the Court’s lack of jurisdiction ratione temporis was partially admissible and partially inadmissible. The Court also held that the State had violated Article 7 of the American Convention, in relation to articles I and II of the Inter-American Convention on Forced Disappearance of Persons, to the detriment of Heliodor Portugal; articles 5(1), 8(1) and 25(1) of the American Convention, in relation to Article 1(1) thereof, to the detriment of the victim’s next of kin; a failure to comply with the obligation to criminalize forced disappearance, as provided in articles II and III of the Inter-American Convention on Forced Disappearance of Persons; and a failure to comply with the obligation to criminalize the crime of torture, as required under articles 1, 6 and 8 of the Inter-American Convention to Prevent and Punish Torture. In the judgment, the Court set the reparations that it deemed appropriate. The text of the judgment is available (in Spanish) at the following link: http://www.corteidh.or.cr/docs/casos/articulos/seriec_186_esp.doc.
Case of Tristán Donoso
1042. On August 28, 2007, the Inter-American Commission filed an application with the Court in the case of Santander Tristán Donoso, alleging Panama’s responsibility for making public a telephone conversation made by the lawyer Santander Tristán Donoso; for putting Mr. Tristán Donoso on trials for crimes against honor, as a reprisal for the complaints he had filed regarding the airing of his phone conversation; the failure to investigate and punish the perpetrators; and the failure to provide adequate reparations. In its application, the Commission asked the Court to rule that the Panamanian State had failed to comply with its international obligations by violating articles 8 (right to a fair trial), 11 (right to privacy), 13 (freedom of thought and expression), and 25 (right to judicial protection) of the American Convention, in conjunction with the general obligation to respect and ensure human rights, undertaken in Article 1(1) of the Convention, and the obligation of domestic legal effects, undertaken in Article 2.
1043. On August 12, 2008, the Commission appeared before the Court at a public hearing on the merits and possible reparations in this case. The hearing was part of the special session that the Court held in Montevideo, Uruguay. There, it presented the victim’s statement and two expert reports. As of the date of preparation of this report, the Commission is awaiting the Court’s ruling on the merits.
q. Paraguay
Case of the “Panchito López” Juvenile Reeducation Center
1044. In 2008, the Commission presented its periodic comments concerning compliance with the Court’s September 2, 2004 judgment on merits, reparations and costs in this case, and highlighted the fact that almost nothing of what the Court ordered in its judgment has been carried out thus far.
1045. On December 14, 2007, the President of the Inter-American Court decided to convene a private hearing with the Inter-American Commission, the representatives of the victims, and the Paraguayan State, to receive up-to-date information on progress with implementing the reparations judgment. That hearing took place at the seat of the Court on February 4, 2008. There, the State and the representatives of the victims and their next of kin signed an agreement of understanding to facilitate fulfillment of the State’s pending obligations.
1046. On February 6, 2008, the Inter-American issued an order requiring the State to take the necessary measures to comply, promptly and effectively, with the pending obligations ordered in the Court’s September 2, 2004 judgment on merits, reparations and costs, pursuant to Article 68(1) of the American Convention on Human Rights. The order in question is available at: http://www.corteidh.or.cr/docs/supervisiones/instituto_06_02_08_ing.doc.
Case of Goiburú et al.
1047. In 2008, the Commission continued to file its periodic comments concerning compliance with the Court’s September 22, 2006 judgment in this case. The latter concerns the unlawful and arbitrary arrest, torture and forced disappearance of Messrs. Agustín Goiburú Giménez, Carlos José Mancuello Bareiro and the brothers Rodolfo Feliciano and Benjamín de Jesús Ramírez Villalba, perpetrated by agents of the State in Paraguay as of 1974 and 1977, and the fact that none of those responsible for these deeds has ever been punished. The full text of the judgment can be seen at the following link: http://www.corteidh.or.cr/docs/casos/articulos/seriec_153_ing.doc.
Case of Ricardo Canese
1048. In 2008, the Commission submitted its periodic comments on the State’s compliance with the Court’s August 31, 2004 judgment on merits, reparations and costs in this case.
1049. On December 14, 2007, the President of the Inter-American Court decided to summon the Commission, the victims’ representatives and the Paraguayan State to a private hearing, to get up-to-date information on the status of compliance with the judgment on reparations. That hearing was held at the seat of the Court on February 4, 2008.
1050. On February 6, 2008 the Inter-American Court issued an order requiring the victim’s representatives to inform the Court, by no later than March 28, 2008, of the victim’s position regarding the Paraguayan State’s request to be released from the obligation to pay interest in arrears.
1051. Having seen the information supplied by the victim’s representation, on August 6, 2008 the Court decided that the State has fully complied with the Judgment on merits, reparations and costs that the Court delivered on August 31, 2004, and therefore considered the case of Ricardo Canese v. Paraguay closed and the proceedings in the case filed. The corresponding order is available at http://www.corteidh.or.cr/docs/supervisiones/canese_06_08_08.doc.
Case of Sawhoyamaxa
1052. In 2008, the Commission submitted its periodic comments concerning compliance with the Court’s March 29, 2006 judgment on merits, reparations and costs.
1053. On December 14, 2007, the President of the Inter-American Court decided to convene a private hearing with the Inter-American Commission, the representatives of the victims, and the Paraguayan State, to receive up-to-date information on the status of compliance with the reparations judgment. That hearing took place at the Court’s seat on February 4, 2008.
1054. On February 8, 2008, the Inter-American Court issued an order instructing the State of Paraguay to adopt all measures necessary to promptly and effectively comply with the pending items, in keeping with Article 68(1) of the American Convention. The order in question is available at: http://www.corteidh.or.cr/docs/supervisiones/sawhoyamaxa_08_02_08_ing.doc.
Case of Vargas Areco
1055. In 2008, the Commission continued to submit its periodic comments concerning compliance with the Court’s September 26, 2006 judgment in this case. The latter concerns the failure to investigate, prosecute and punish those responsible for the violations committed against Gerardo Vargas Areco, a child who was recruited into service with the Paraguayan armed forces when he was 15 years old. He died on December 30, 1989, when he was shot in the back attempting to escape the military post. The full text of the judgment is available at the following link: http://www.corteidh.or.cr/docs/casos/articulos/seriec_155_ing.doc.
1056. On October 30, 2008, the Court issued an Order where it decided that it will keep open the proceeding for monitoring compliance with the following obligations pending fulfillment in the instant case, to wit: a) to take, in full accordance with the right to a fair trial and within a reasonable period of time, all such actions as may be necessary to identify, prosecute, and punish all those responsible for the violations committed in the instant case; b) to hold a public act to acknowledge its international responsibility in relation to the violations declared in [the] Judgment, in the community where Gerardo Vargas-Areco’s next of kin reside, and in the presence of the State’s civilian and military authorities make a public apology and place a plaque in memory of the child Vargas-Areco; c) to provide medical, psychological, and psychiatric treatment, as appropriate, to De Belén Areco, Pedro Vargas, and Juan, María Elisa, Patricio, Daniel, Doralicia, Mario, María Magdalena, Sebastián, and Jorge Ramón, all of them Vargas-Areco, if they so require, and for as long as necessary; d) to implement training programs and regular courses on human rights for all the members of the Paraguayan Armed Forces; e) to publish once in a nationwide daily newspaper the chapter on Proven Facts of the Judgment, without the corresponding footnotes, and the operative paragraphs thereof; f) to adapt its domestic legislation on recruitment for voluntary military service of minors under the age of 18 into the Paraguayan Armed Forces, in conformity with the applicable international standards, and g) to pay default interests on the amounts set as compensation for pecuniary and non-pecuniary damages and reimbursement of costs and expenses. The Order is available in the following link: http://www.corteidh.or.cr/docs/supervisiones/vargas_30_10_08_ing.pdf
Case of the Yakye Axa indigenous community
1057. On March 17, 2003, the Commission filed an application with the Court in this case because of the State’s failure to guarantee the ancestral property rights of the Yakye Axa indigenous community and its members, whose land claim had been pending processing since 1993 without a satisfactory resolution. This has kept the community and its members from securing ownership and possession of their lands and has kept them in state of vulnerability in terms of their nutritional, medical, and sanitation needs, which poses a continuous threat to the survival of its members and the integrity of the community itself.
1058. On June 17, 2005, the Court handed down its judgment in the case, ruling that the community’s right to a fair trial and to judicial protection, to private property, and to life had been violated, and establishing the applicable reparations. The full text of the judgment can be found at: http://www.corteidh.or.cr/docs/casos/articulos/seriec_125_ing.pdf.
1059. On February 4, 2008, the Court held a private hearing at its seat in San José, Costa Rica. After the hearing, the Commission was present to witness the parties sign an agreement. On February 8, 2008, the Court issued an Order where it decided that it will keep open the procedure to monitor compliance with the following pending points: (a) The granting of the traditional territory to the members of the Yakye Axa Indigenous Community; (b) The provision of the basic goods and services required for the subsistence of the members of the Community; (c) The establishment of a fund exclusively for the purchase of the lands to be granted to the members of the Community; (d) The implementation of a community development fund and program; (e) The adoption of such domestic legislative, administrative and other measures as may be necessary to guarantee the effective exercise of the right to property of the members of the indigenous peoples; f) Publication and radio broadcast of the Judgment. The Order is available in the following link: http://www.corteidh.or.cr/docs/supervisiones/yakyeaxa_08_02_08-ing.pdf. In 2008 the Commission submitted its periodic comments regarding compliance with the reparations the Court ordered in its judgment of June 17, 2005.
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