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ANNUAL REPORT 2009
CHAPTER III THE PETITION AND CASE SYSTEM
D. Status of compliance with the recommendations of the IACHR (continuation)
Case 11.804, Report No. 91/03, Juan Ángel Greco (Argentina)
55. On October 22, 2003, by Report No. 91/03, the Commission approved a friendly settlement agreement in the case of Juan Ángel Greco. In summary, the petitioners alleged that on June 25, 1990, Mr. Greco, 24 years of age, was illegally detained and mistreated when he sought to obtain police assistance when lodging a complaint regarding an assault. The petitioners indicated that while Mr. Greco was detained at the police station in Puerto Vilelas, province of Chaco, there was a fire in his cell in circumstances that were not clarified that led him to suffer serious burns. In addition, they argued that the police were responsible for provoking the fire and for delaying the transfer of the victim to the hospital for several hours. Mr. Greco was hospitalized until his death on July 4, 1990, and buried, according to the petitioners’ complaint, without an adequate autopsy. The petitioners also noted that the state did not perform an adequate investigation to clarify the facts adduced, with which it denied the family its right to have justice done, and to obtain compensation.
56. In this agreement the State agreed to the following:
1. Provide economic reparation to the family members of Juan Ángel Greco in the sum of three hundred thousand pesos ($300,000) that shall be paid to Mrs. Zulma Basitanini de Greco in the amount of thirty thousand ($30,000) per month in the time period specified in point 3 of the present item, that amount comprising material damages, moral damages, lost wages, costs, fees and any other classification that would arise from the responsibility assumed by the Province of Chaco.
2. Provide the petitioners and the Inter-American Commission on Human Rights, through the Office for Human Rights of the Foreign Ministry, a legalized and certified copy of two cases for which the Province of Chaco has requested reexamination.
3. Within the framework of its competences, encourage the reopening of the criminal case and the corresponding investigations.
4. Direct the reopening of the administrative case Nº 130/91-250690-1401 once the criminal case has been reopened.
5. Commit itself, in the framework of its competences, to ensuring that the victim’s family members have access to the judicial and administrative investigations.”
6. Publish the agreement in the principle written press sources of the nation and the Province of Chaco.”
7. Continue pursuing legislative and administrative measures for the improved protection of Human Rights. Specifically, it was placed on record that a draft law creating a Criminal Prosecutor’s Office for Human Rights has been developed and transmitted to the Provincial Chamber of Deputies for its study and approval.
8. Strengthen the work of the Permanent Commission for Control of Detention Centers, created by Resolution No. 119 of the Ministry of Government, Justice and Labor of the Province of Chaco, on February 24, 2003.
9. Further emphasize the work of the Organ of Institutional Control (O.C.I) created by Article 35 of the Organic Police Law of the Province of Chaco Nº 4.987, directing it toward the more effective protection of human rights on the part of the Provincial Police. At the initiative of the Executive, the Provincial Counsel for Education and Promotion of Human Rights created by Law Nº 4.912 was constituted in the sphere of the Chamber of Deputies. The representatives of the distinct intervening organs and powers have already been designated and convoked.
57. On November 13, 2009, the Commission asked the parties to submit up-to-date information on the status of compliance with the recommendations.
58. Regarding the monetary reparations, as indicated in previous submissions, the State reported in its reply that through Decree 19/2004, the provincial executive authorized the Administration Directorate of the Ministry of the Government, Justice, and Labor to pay Mrs. Zulma Bastianini de Greco the amount of three hundred thousand pesos ($300,000), to be delivered in ten equal, monthly, and consecutive payments of thirty thousand pesos ($30,000) within the first ten (10) business days of each month. In addition, on March 1, 2005, the Minister of Government, Justice, and Labor of the province of Chaco reported that the tenth of the payments ordered by Decree 19/04 had been made on October 29, 2004. In that decree, the provincial executive expressly stated that the compensation payments would be subject to no current or future tax, levy, or duty.
59. Regarding the nonmonetary reparations, the State reported that as stipulated by Decree 19/2004, the friendly settlement agreement was published in two national daily newspapers (Clarín and Ámbito Financiero) and four local papers (Norte, El Diario, Primera Línea, and La Voz del Chaco). Regarding the commitment to continuing to pursue legislative and administrative measures for the better protection of human rights, the State spoke of the creation, on May 16, 2006, of the Special Criminal Prosecutor’s Office for Human Rights (Law 5702), which is currently operational. Finally, the State again notes that in this case, it reopened the criminal trial and administrative summary proceedings pursued against Principal Police Commissioner Juan Carlos Escobar, Deputy Police Commissioner Adolfo Eduardo Valdez, and First Sergeant Julio Ramón Obregon, in order to identify the corresponding responsibilities, and it also states that the case files are at the evidentiary phase.
60. Regarding the judicial and administrative investigations, the petitioners indicated in their submission of December 10, 2009, that, as of that date, they had not received the certified and legalized copy of the criminal case or of the administrative summary proceedings from the State, nor had they received up-to-date information on the status of those processes, as required by the commitment set out in item 2 of the friendly settlement agreement. With regard to item 7 of the agreement, the petitioners reiterated their remarks about the serious shortcomings in the powers and authorities conferred on the office of the Special Prosecutor for Human Rights by Law No. 5702. They also reported that they had learned that in June 2009, the special prosecutor’s office had begun operations with very limited jurisdiction, in spite of their express request for the personnel selection process to be put on hold until the functions of the office were reviewed. In concluding, the petitioners noted that until the State provides full information on the measures adopted, they must again note the appalling precedent that the agreement represents in the Argentine government’s observance of its commitments acquired through friendly settlements.
61. With respect to the commitments acquired by the State, the Commission has already identified the aspects of the friendly settlement agreement dealing with the monetary compensation and with the publication of the agreement as having been met. However, based on the information received, the Commission believes that the aspects relating to the duty of investigating and punishing those responsible for violating the human rights violations of Juan Ángel Greco, together with those relating to the affording the victim’s next-of-kin access to the judicial and administrative investigations, still remain pending.
62.
In
view of the foregoing, the IACHR concludes that the friendly settlement
agreement has been implemented in part. Accordingly, the Commission will
continue to
Case 12.080, Report No. 102/05, Sergio Schiavini y María Teresa Schnack
63. On October 27, 2005, by Report 102/05, the Commission approved a friendly settlement agreement in the case of Sergio Schiavini and María Teresa Schnack. In summary, the petitioners had made arguments referring to the responsibility of the State for the death of Sergio Andrés Schiavini, on May 29, 1991, during a confrontation between members of the Police of the Province of Buenos Aires and a group of assailants who held several persons hostage, including the young Schiavini. The petitioners stated as injuries inflicted by grievous conduct on the part of the State the excessive use of force during the exchange of fire; the denial of judicial protection and judicial guarantees; and the acts of persecution to which María Teresa Schnack has been subjected since the death of her son, Sergio Schiavini, for giving impetus to the investigation.
64. In the friendly settlement agreement, the State recognized its responsibility for “the the facts of what transpired in the aforementioned jurisdiction and the attendant violation of the rights and guarantees recognized by the American Convention on Human Rights as described in Admissibility Report No. 5/02, adopted by the IACHR during its 114th regular session.”
65. According to that agreement, the State undertook as follows:
1. The parties agree to set up an “ad-hoc” Arbitration Tribunal to determine the amount of economic reparation due Sergio Andrés Schiavini’s heirs, in keeping with the rights acknowledged to have been violated and the applicable international standards. The Tribunal shall be made up of three independent experts, with recognized expertise in human rights and of the highest moral caliber. The petitioners will designate one expert, the national State shall propose a second, and the third shall be proposed by the two experts designated by the parties. The Tribunal shall be formed no later than 30 days following the approval of this agreement by Decree of the Executive Branch of the Nation.
2. The procedure to be followed shall be determined by common agreement among the parties, and set forth in writing, a copy of which shall be submitted to the Inter-American Commission on Human Rights. To this end, the parties shall designate a representative to participate in the discussions of the procedure. In representation of the national State, the Ministry of Foreign Affairs, International Trade, and Worship and the Ministry of Justice and Human Rights shall be charged with designating an official in the area with competence in human rights matters in both Ministries.
3. The parties agree to form a technical working group, in which the Government of the Province of Buenos Aires shall be invited to participate, to carry out the studies and take such other steps as may be necessary to submit for the consideration of the Legislature and, where appropriate, the competent federal authorities, the following initiatives, aimed at implementing the necessary measures to bring existing law into harmony with international standards, in accordance with point 2 of the Act dated November 11, 2004:
a) Draft legislative reform bill making it mandatory, with no exceptions, to perform an autopsy in all cases of violent or criminally suspicious deaths. It will also prohibit members of the security forces from being involved in this process with respect to facts in which they have participated;
b) Draft reform of the Criminal Procedures Code of the Nation granting a victim’s relatives the right to choose to designate their own expert before the autopsy is performed;
c) Analysis of the legislation in force on the procedures followed by the forensic medical office to evaluate possible modifications that could contribute to ensuring transparency and effectiveness in its performance;
d) Draft reform of the Criminal Procedures Code of the Nation to incorporate the violation of human rights as grounds for review;
e) Draft reform of the Criminal Procedures Code of the Nation incorporating the violation of human rights as grounds for the immediate suspension or interruption of the statute of limitations;
f) Evaluation of domestic law concerning hostage-taking and the use of force to bring it into harmony with international standards in accordance with principle No. 3 of UN Resolution 1989/65;
g) Proposal that, in the event that the appeal for review in the Schiavini case filed by the Provincial Office of the General Prosecutor before Chamber 111 of the Criminal Court of Cassation of Buenos Aires Province is unsuccessful, a “Truth Commission” is established at the federal level to help effectively safeguard that right;
h) Development of draft reforms setting forth the procedures for processing and responding to petitions under study by the Commission and before the Inter-American Court of Human Rights, that include the establishment of a specific entity with jurisdiction in the decision-making process—including the institution of “friendly settlement”—and a mechanism to ensure compliance with the recommendations and/or judgments of the Commission and/or the Inter-American Court of Human Rights.
4. The Government of the Argentine Republic pledges to facilitate the activities of the working group and make available the technical support and facilities it requires in order to perform its task. It also pledges to periodically inform the Inter-American Commission on Human Rights regarding the outcomes of the task entrusted to the technical group and invites the Commission to participate actively in evaluating the draft reforms, as well as the follow-up and evolution of these initiatives.
5. The Government of the Argentine Republic pledges to publish this agreement in the Official Gazette of the Argentine Republic, in the newspapers “La Unión” of Lomas de Zamora, “Clarín”, “La Nación,” and “Página/12”, once it has been approved by the Inter-American Commission on Human Rights in accordance with the provisions of Article 49 of the American Convention on Human Rights.
66. On November 13, 2009, the Commission asked the parties to submit up-to-date information on the status of compliance with the recommendations.
67. Regarding the monetary reparations, as in previous submissions, in its reply the State spoke of the creation of the Arbitration Tribunal to determine the amount of economic reparations, which issued the corresponding arbitral award. The State reported that the arbitral award took place with the payment of monetary redress to the beneficiaries, on October 22, 2007, by means of a bank deposit.
68. Regarding the nonmonetary reparations, the State notes those involving the creation of the Truth Commission and the regulatory measures for implementing an internal procedure regulating the processing of international petitions and cases. Regarding the former, the State reported that since the petitioners submitted their candidate for membership of that Commission, of which the National Secretariat for Human Rights was informed, the competent authorities began the formalities needed for them to appoint their corresponding expert. Regarding the regulatory reforms for directing formalities with international human rights promotion and protection agencies, the State reported that a series of working meetings were held and, as a result, it was agreed to produce a Joint Resolution of the Ministry of Justice, Security, and Human Rights and the Ministry of Foreign Affairs and Worship, which will include in its appendixes a “Protocol for Actions by the National Executive in Implementing Decisions Handed Down in Communications, Petitions, and Cases from International Agencies.” The State reported that the draft joint resolution is currently undergoing the approval process.
69. Based on the information available, the Commission concludes that the aspects of the agreement relating to monetary redress have been duly implemented. The Commission notes that compliance with the other reparation measures still remains pending.
70.
In
view of the foregoing, the Commission concludes that the friendly
settlement agreement has been carried out in part. Accordingly, the
Commission will continue to
Case 12.298, Report No. 81/08, Fernando Horacio Giovanelli (Argentina)
71. On October 30, 2008, by means of Report No. 81/08, the Commission approved the friendly settlement agreement signed by the parties in Case 12.298, Fernando Horacio Giovanelli. To summarize, the petitioners had lodged claims alleging the State’s responsibility for the death of Fernando Horacio Giovanelli, who at around 9:45 p.m. on October 17, 1991, in the close vicinity of his home, was approached by officers of the Buenos Aires Provincial Police who asked him for his ID, detained him, and took him in an unmarked vehicle to the Third Police Station in Quilmes. The petitioners claimed that at that police facility, the alleged victim was brutally beaten and then taken to the 14 de Agosto Bridge in Quilmes district, a few meters from the police station, where he was thrown onto the footpath and killed by one of the police officers who shot him in the head (with the bullet entering through his left earlobe). They also claimed that the victim’s body was later taken to Villa Los Eucaliptos, a shanty town that is under the jurisdiction of that police station, where it was dumped approximately two and a half hours after his death. The petitioners maintained that the version of events contained in the police report, which was used as the basis for the criminal proceedings, was plagued with inconsistencies; that the police investigation was deliberately geared toward covering up the truth of the killing; and that the different judges that heard the case merely produced evidence that was largely irrelevant for clarifying the facts of Mr. Giovanelli’s death and failed to address the confusing, suspicious, and contradictory evidence in the proceedings.
72. By means of a friendly settlement agreement signed on August 23, 2007, the government of the Argentine Republic expressed its willingness to assume objective international responsibility as a state party to the Convention and asked the Commission to accept its acknowledgment of the alleged violations as set out in the petition.
73. Under that agreement, the State agreed to:
a. Economic reparation
1. The parties agree to set up an ad-hoc Arbitration Tribunal to determine the amount of economic reparation due to the petitioners, in keeping with the rights acknowledged to have been violated and the applicable international standards.
2. The Tribunal shall be made up of three independent experts, with recognized expertise in human rights and of the highest moral caliber. The petitioners will designate one expert; the National State shall propose a second; and the third shall be proposed by the two experts designated by the parties. The Tribunal shall be formed no later than 30 days following the approval of this agreement by Decree of the Executive Branch of the Nation.
3. The procedure to be followed shall be determined by common agreement among the parties, and set forth in writing, a copy of which shall be submitted to the Inter-American Commission on Human Rights. To this end, the parties shall designate a representative to participate in the discussions of the procedure. In representation of the National State, the Ministry of Foreign Affairs, International Trade, and Worship and the Ministry of Justice and Human Rights shall be charged with designating an official in the area with competence in human rights matters in both Ministries.
4. The arbitration tribunal’s award shall be final and not subject to appeal. It shall contain the amount and type of monetary reparation agreed upon, the beneficiaries thereof, and a calculation of any applicable costs and fees incurred in the international proceeding and by the arbitration entity. These shall be submitted to the Inter-American Commission on Human Rights for evaluation in the framework of the process to follow up on compliance with the agreement, in order to verify whether the latter is consistent with the applicable international parameters. The payments set forth in the award shall be immune from seizure and shall not be subject to currently applicable taxes, contributions, or fees, or any that may be imposed in the future.
5. The petitioners relinquish, definitively and irrevocably, the ability to initiate any other claim of a monetary nature against the National State associated with the instant case. In addition, they cede and transfer to the National State all litigation rights they may have in the framework of the suit brought against the government of the Province of Buenos Aires and undertake to sign the respective instrument before a national Notary Public within ten working days following the effective delivery of the payment resulting from the arbitration award.
6. Without prejudice to the foregoing transfer in its favor, the National State declares that it reserves the right to recover the amounts actually paid out to the petitioners as determined by the Arbitration Tribunal from the Government of the Province of Buenos Aires by subtracting those amounts from the totals that might correspond to that province under the federal sharing law (ley de coparticipación), and/or any other lawful means.
b. Measures of non-monetary reparation
1. The Government of the Argentine Republic pledges to publish this agreement by means of a notice, whose text shall be agreed in advance with the victim’s next of kin, in the Official Gazette of the Argentine Republic and in a nationally distributed newspaper, once it has been approved by the Inter-American Commission on Human Rights in accordance with the provisions of Article 49 of the American Convention on Human Rights.
2. The Government of the Argentine Republic undertakes to invite the Government of the Province of Buenos Aires to report on the status of the following cases being heard by courts in the provincial jurisdictional until their final conclusion:
a) Case 1-2378, titled “N.N. re. Homicide – victim: Giovanelli, Fernando Horacio,” proceeding before the Third Transitory Criminal Court of First Instance in Quilmes Judicial District, Province of Buenos Aires.
b) Case 3001-1785/00, titled “Supreme Court of Justice – General Secretariat re. Irregular situation observed in the processing of case 1-2378 before the Third Transitory Criminal Court in Quilmes,” proceeding before the Supreme Court of Justice of the Province of Buenos Aires – Judicial Oversight and Inspection Office.
3. The Government of the Argentine Republic undertakes to invite the Government of the Province of Buenos Aires to evaluate the possibility of including the Giovanelli case in the current study programs at police training academies, as a measure to ensure non-repetition of practices that violate human rights.
4. The Government of the Argentine Republic commits to developing a law setting forth the procedures for processing and responding to petitions under study by the Commission and before the Inter-American Court of Human Rights, that includes the establishment of a specific entity with jurisdiction in the decision-making process – including the institution of “friendly settlement” – and a mechanism to ensure compliance with the recommendations and/or judgments of the Commission and/or the Inter-American Court of Human Rights, in accordance with the provisions of Article 28 (federal clause) of the American Convention on Human Rights, in connection with Articles 1.1 (general obligation to observe and ensure rights) and 2 (duty to adopt domestic legal provisions) of said international instrument.
74. On November 13, 2009, the Commission asked the parties to submit up-to-date information on the status of compliance with the recommendations.
75. By means of a note dated December 22, 2009, the State responded to the IACHR’s request for information. In particular, the State referred to the establishment of the ad-hoc Arbitration Tribunal that will determine the amount of economic reparations to be paid to Fernando Horacio Giovanelli’s family. In addition, as a part of proceedings before that tribunal, on December 18, 2009, the Government responded to the reparations claim submitted by the petitioners in accordance with the deadlines established by the procedural rules jointly agreed on by the parties. Finally, the State reported that once the compensation payment has been made, a working meeting will be convened to set the agenda for the second phase of the commitments assumed under the friendly settlement agreement.
76.
The
Commission therefore concludes that the friendly settlement agreement is
pending compliance. Accordingly, the Commission will continue to
Cases 12.067, 12.068 and 12.086, Report N° 48/01, Michael Edwards, Omar Hall, Brian Schroeter and Jeronimo Bowleg (Bahamas)
77. In Report N° 48/01 of April 4, 2001, the Commission concluded that the State was responsible for: a) violating Articles I, XVIII, XXV and XXVI of the American Declaration by sentencing Messrs. Edwards, Hall, Schroeter and Bowleg to a mandatory death penalty; b) violating Messrs. Edwards’, Hall’s, Schroeter’s and Bowleg’s rights under Article XXIV, of the American Declaration, by failing to provide the condemned men with an effective right to petition for amnesty, pardon or commutation of sentence; c) violating Messrs. Hall’s, Schroeter’s and Bowleg’s rights under Articles XI, XXV, and XXVI of the American Declaration, because of the inhumane conditions of detention to which the condemned men were subjected; d) violating Messrs. Edwards’, Hall’s, Schroeter and Bowleg’s rights under Articles XVIII, and XXVI of the American Declaration, by failing to make legal aid available to the condemned men to pursue Constitutional Motions; and e) violating Messrs. Schroeter’s and Bowleg’s rights to be tried without undue delay under Article XXV of the Declaration.
78. The IACHR issued the following recommendations to the State:
· Grant Messrs. Edwards, Hall, Schroeter and Bowleg, an effective remedy which includes commutation of sentence and compensation;
· Adopt such legislative or other measures as may be necessary to ensure that the death penalty is imposed in compliance with the rights and freedoms guaranteed under the American Declaration.
· Adopt such legislative or other measures as may be necessary to ensure that the right to petition for amnesty, pardon or commutation of sentence is given effect in The Bahamas.
· Adopt such legislative or other measures as may be necessary to ensure that the right to an impartial hearing and the right to judicial protection are given effect in The Bahamas in relation to recourse to Constitutional Motions.
· Adopt such legislative or other measures as may be necessary to ensure that the right to be tried without undue delay is given effect in The Bahamas.
· Adopt such legislative or other measures as may be necessary to ensure that the right to humane treatment and the right not to receive cruel, infamous, or unusual punishment are given effect in The Bahamas.
79. On November 11, 2009 the Commission requested information from both parties about compliance with the recommendations set forth in Report N° 48/01, pursuant to Article 46.1 of the Commission’s Rules of Procedure. The Commission has not received any responses from either party to these communications.
80.
Based on these considerations,
the Commission concludes that compliance with the aforementioned
recommendations remains pending. Accordingly, the Commission will continue
to
Case 12.265, Report 78/07 Chad Roger Goodman (Bahamas)
81. In Report N° 78/07 of October 15, 2007 the Commission concluded that the State of the Bahamas was responsible for the violation of Articles I, XXV and XXVI of the American Declaration by sentencing Mr. Goodman to a mandatory death penalty. On the basis of its conclusions, the IACHR recommended to the State that it:
1. Grant Mr. Goodman an effective remedy, which includes commutation of sentence and compensation for the violations of Articles I, XVIII, XXIV, XXV, and XXVI of the American Declaration.
2. Adopt such legislative or other measures as may be necessary to ensure that the death penalty is imposed in compliance with the rights and freedoms guaranteed under the American Declaration, including and in particular Articles I, XXV, and XXVI, and to ensure that no person is sentenced to death pursuant to a mandatory sentencing law in The Bahamas.
3. Adopt such legislative or other measures as may be necessary to ensure that the right under Article XXV of the American Declaration to be tried without undue delay is given effect in The Bahamas.
4. Adopt such legislative or other measures as may be necessary to ensure that the right to humane treatment and the right not to receive cruel, infamous, or unusual punishment under Articles XI, XXV, and XXVI of the American Declaration are given effect in The Bahamas in relation to conditions of detention.
82.
On
November 11, 2009 the Inter-American Commission requested information from
both parties about compliance with the recommendations set forth in
aforementioned report, and established a one month deadline to that
effect. The IACHR did not receive any responses from either party to
these communications within the deadline.
Based on these considerations, the Commission concludes that
compliance with the aforementioned recommendations remains pending.
Accordingly, the Commission will continue to
Case 12.513, Report 79/07 Prince Pinder (Bahamas)
83. In Report N° 79/07 of October 15, 2007 the Commission concluded that by authorizing and imposing a sentence of judicial corporal punishment on Mr. Pinder, the State of the Bahamas is responsible for violating Mr. Pinder’s rights under Articles I, XXV, and XXVI of the American Declaration. On the basis of its conclusions, the IACHR recommended to the State that it:
1. Grant Prince Pinder an effective remedy, which includes commutation of the sentence of judicial corporal punishment and rehabilitation;
2. Adopt such legislative or other measures as may be necessary to abolish judicial corporal punishment as authorized by its Criminal Law (Measures) Act 1991.
84.
On
November 11, 2009 the Inter-American Commission requested information from
both parties about compliance with the recommendations set forth in
aforementioned report, and established a one month deadline to that
effect. The IACHR did not receive any responses from either party to
these communications within the deadline.
Based on these considerations, the Commission concludes that
compliance with the aforementioned recommendations remains pending.
Accordingly, the Commission will continue to
Case 12.053, Report N° 40/04, Maya indigenous communities of the Toledo District (Belize)
85. In its October 12, 2004 Report N° 40/04, the Commission concluded that the State was responsible for: a) violating the right to property enshrined in Article XXIII of the American Declaration to the detriment of the Maya people, by failing to take effective measures to recognize their communal property right to the lands that they have traditionally occupied and used, without detriment to other indigenous communities, and to delimit, demarcate and title or otherwise established the legal mechanisms necessary to clarify and protect the territory on which their right exists; b) violating the right to property enshrined in Article XXIII of the American Declaration to the detriment of the Maya people, by granting logging and oil concessions to third parties to utilize the property and resources that could fall within the lands which must be delimited, demarcated and titled or otherwise clarified and protected, in the absence of effective consultations with and the informed consent of the Maya people; c) violating the right to equality before the law, to equal protection of the law, and to nondiscrimination enshrined in Article II of the American Declaration to the detriment of the Maya people, by failing to provide them with the protections necessary to exercise their property rights fully and equally with other members of the Belizean population; and d) violating the right to judicial protection enshrined in Article XVIII of the American Declaration to the detriment of the Maya people, by rendering domestic judicial proceedings brought by them ineffective through unreasonable delay and thereby failing to provide them with effective access to the courts for protection of their fundamental rights.
86. The IACHR issued the following recommendations to the State:
1. Adopt in its domestic law, and through fully reported consultations with the Maya people, the legislative, administrative, and any other measures necessary to delimit, demarcate and title or otherwise clarify and protect the territory in which the Maya people have a communal property right, in accordance with their customary land use practices, and without detriment to other indigenous communities.
2. Carry out the measures to delimit, demarcate and title or otherwise clarify and protect the corresponding lands of the Maya people without detriment to other indigenous communities and, until those measures have been carried out, 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 occupied and used by the Maya people.
3. Repair the environmental damage resulting from the logging concessions granted by the State in respect of the territory traditionally occupied and used by the Maya people.
87. On February 1, 2006, the Commission wrote to both the State and the Petitioners and requested up-dated information concerning compliance with the Commission’s Recommendations in Report N° 40/04. The Petitioners responded to the Commission by letter of March 01, 2006, stating that the State of Belize had so far failed to comply with the Commission’s recommendations. The Petitioners also requested the Commission to grant precautionary measures aimed at enforcing compliance of the recommendations. In July 2006, the Commission considered the Petitioners’ request and declined to grant precautionary measures.
88. On November 2, 2007, the Commission wrote to both the State and the Petitioners and requested up-dated information concerning compliance with the Commission’s Recommendations in Report N° 40/04. The Petitioners responded to the Commission by letter of November 30, 2007, stating that the State of Belize had so far failed to comply with the Commission’s recommendations. However, the Petitioners informed the Commission of a judgment of the Supreme Court of Belize delivered on October 18, 2007, that “found that Belize is obligated not only by the Belize Constitution but also by international treaty and customary international law to recognize, respect, and protect Maya customary land rights.” The Petitioners added that the judgment was “significantly informed throughout by the 2004 final report of the Inter-American Commission on Human Rights”. The Petitioners stated that leasing, logging, and oil exploration activities have continued on Maya lands in the Toledo District, despite the Supreme Court judgment and the Commission’s recommendations contained in Report N° 40/04.
89. On September 2, 2008, the State presented a document called “Report on the measures taken by the Government of Belize to comply with the recommendations of the Inter-American Commission on Human Rights as set forth in Report No. 40/04”. Belize mentions in that report that it has carried out efforts guided by its obligation to comply with the IACHR’s recommendations in the case and also with the judgment of the Supreme Court in the case of Cal et al v The Attorney General et al. The State highlights the fact that in the Cal case the Chief Justice considered the Report of the Commission; that the recommendations of the Commission and the judgment of the Supreme Court contain similar provisions with respect to delimiting, demarcating, titling or otherwise protecting Mayan communal property based on customary use and practice. However, it also notes that the Case before the IACHR involved the entire Maya Indigenous communities in the Toledo District, while the Cal case was brought by only two Maya communities in the Toledo District: the Santa Cruz and Conejo villages. The State adds that for practical reasons, it focused only at the time only on the implementation of the Cal judgment, but it notes that the Maya Leaders alliance had widened its claim and filed a class action suit in June 2008, which seeks to have the Court recognize the Mayas´ customary land rights of thirty eight villages in the Toledo District.
90. The report goes on to mention attempts by the Government of Belize at “delimiting, demarcating, titling or otherwise protecting Mayan communal property rights based on customary use and practices”, including meetings held on December 2007 and January 2008, but clarifies that “the attempts failed”. According to the State, such failure could be attributed to a lack of information by the affected Community, the intervention by Maya organizations and the disagreement regarding common boundaries. Further, it mentions that after the general elections and the change of government, the parties in this case met on April 10th 2008 and agreed to develop a framework for the implementation of the Cal judgment. Among the interim measures adopted by the Government of Belize, a blanket cease-and-desist order was issued by the Attorney General on March 27, 2008 with respect to land in the Toledo District. Shortly after the measure was reconsidered because it had the effect of a shut-down on land-related activities in the Toledo District, the timber industry was completely halted with serious economic implications, and the laborers --most of whom belong to the Maya communities of the Toledo District-- suddenly found themselves out of their jobs. The order was modified to apply only to lands in the villages of Santa Cruz and Conejo, and according to the State of Belize the parties continued communication despite not reaching a consensus.
91. As regards the mitigation of damage to the environment caused by logging, the State informs that the Forestry Department of Belize had reported a change in the situation in 2004 that resulted in the IACHR’s recommendations. Among other things, it mentions that there are only three long-term license holders operating in the Toledo District, and that no new long-term licenses have been issued since the first directive of the Attorney General of March 2008. The State also expresses that the Forestry Department is working in a partnership with Toledo Maya-based NGOs and the private sector in the Toledo Healthy Forest Initiative, with the aim of moving away from conventional logging and engage in sustainable forest practices using international standards. Finally, Belize reaffirms its commitment to “continued discussions and dialogue with the Maya people of Belize in order to implement the ruling of the Supreme Court of Belize and to comply with the recommendation of the Inter-American commission of Human Rights”.
92. On October 27, 2008, the IACHR held a hearing with both parties in this matter in order to receive information on compliance with its recommendations. The petitioners stated that the Maya Leaders Alliance has been trying to engage the Government elected in February 2008 in conversations concerning compliance with the Supreme Court judgment. According to the petitioners, the actions of the Government were initially “quite encouraging” in that “it acknowledged that the judgment had implications for all Maya lands in Toledo District, not just the two that brought the lawsuit” and that it “took a concrete, effective step to protect Maya customary rights, and issued a directive suspending leasing, permitting, and other land dealings in Toledo, until further notice, pending the implementation process”. The petitioners state that there was “an abrupt about-face” just weeks after the directive was issued, whereby the directive was “effectively revoked” by “limiting its application to the claimant villages of Conejo and Santa Cruz, and leaving the lands of the 36 other Maya villages in Toledo District unprotected and vulnerable to exploitation by third parties”. According to the petitioners, the lack of protective measures has resulted in “numerous infringements, violations, and expropriations of Maya lands”. The Maya Leaders Alliance filed an action in the Supreme Court of Belize asking that it maintain the status quo in the Maya lands of the Toledo District until the Government “enacts a legal or administrative framework to recognize and protect Maya land rights”.
93. On November 3, 2008, the IACHR sent a letter to both parties in this case to request information on compliance with the recommendations of its report. The State responded on November 25, 2008 reiterating the content of its report dated September 2, 2008. The petitioners presented their observations on December 3, 2008, which include the assertion that “the State has not complied, even minimally, with the recommendations of the Inter-American Commission on Human Rights”. The petitioners consider that the statements by Belize during the hearing before the IACHR are encouraging, but that in practical terms the State “continues to behave as if those rights do not exist and do not merit effective protection”, and they quote authorities expressing that they would only apply the Cal decision to other Maya villages if they bring their respective cases before the Supreme Court of their country.
94. With respect to the delimitation of the lands of the Maya people, the petitioners hold that the State has made no efforts yet, even in the villages of Santa Cruz and Conejo, where they were ordered to do so by the courts of Belize. They further state that the members of the Maya villages throughout the District have started to demarcate their own boundaries in agreement with the neighboring villages, so once the Government develops a mechanism it will be relatively easy because the boundaries will already be clarified. The petitioners also add that despite its initial actions during 2008 mentioned above, the State “continues to treat Maya land as unburdened land for the purposes of issuing leases, grants and concessions for natural resource exploitation, including logging and oil concessions”, and they list several specific examples.
95. As to the IACHR recommendation on repairing environmental damage, the petitioners admit that “there has been some respite to the large-scale logging” but consider that this is not attributable to the State of Belize. However, they mention that logging continues on a smaller scale and that in some communities this is negatively affecting Maya hunting and fishing activities. According to the petitioners, in the absence of affirmative steps by the authorities of Belize, the Maya themselves have been taken action to minimize the environmental damage from logging, such as creating co-management organizations, supporting ecological and conservation efforts. The petitioners conclude by requesting that a IACHR delegation conduct an on-site visit to Belize in order to observe the situation.
96. On November 11, 2009 the Inter-American Commission requested both parties to submit information on compliance with the above-mentioned recommendations. The State did not submit its response during the time established. The petitioners responded on December 10, 2009 with a report where they submit several legal and factual considerations that lead them to conclude that there has been no compliance with the recommendations in this case.
97. As to the first recommendation, the petitioners mention that “the Government has not complied in any way”, and specifically they mention that during 2009 they met with the new Solicitor General to discuss implementation of the judgment in the above mentioned Supreme court case, but there have been no concrete advances. The petitioners then explain the impact of the National Policy on Local Governance, funded by the United Nations Development Programme; however, they stress their concern that the Maya people’s customary land rights may not be considered, since the demarcation process is set to begin in December 2009 but they have not been consulted. With respect to the new draft legislation that would regulate the functions of the “alcalde” (a customary Mayan public officer), the petitioners hold that the information session held to explain it was insufficient, given the complexity of the undertaking and the lack of background in the Mayan culture of the person who delivered it.
98. In the opinion of the petitioners, the second recommendation was not complied with either. Although they do admit that government dealings in Maya lands have been reduced, the petitioners point out that they were never communicated this circumstance and that they found out by reading the United Nations Universal Periodic Review (UPR) on Belize. Ultimately, they submit that during the current litigation regarding this matter in Belize, the government has issued property interests, including resource concessions, to third parties over lands belonging to Maya villages and families. The petitioners refer to permits for oil exploration issued in April 2009; the concession for constructing a hydroelectric project awarded in late 2008 and ongoing in 2009; as well as a January 2009 logging concession including areas used by several Maya villages, none of which were consulted with them. The petitioners conclude that “in the absence of affirmative government actions to comply with this recommendation of the inter-American Commission on Human Rights, interference and destruction of Maya lands and resources continue on an ad hoc basis throughout Toledo”.
99. Regarding the third recommendation, the petitioners mention that ”logging does continue on a smaller scale, which can still negatively impact Maya hunting and fishing practices” and that Belize “has taken no affirmative steps at all to repair the damage caused by the logging or other extraction activities on Maya lands”. In spite of this, they submit that the Maya themselves have taken steps to minimize environmental damage from logging, such as the creation of joint organizations to manage national parks and supported ecological and conservation efforts.
100.
On the
basis of the information supplied by both parties, the Inter-American
Commission observes some important efforts and actions by the State, but
notes that compliance with the aforementioned recommendations remains
pending. Accordingly, the Commission again encourages both parties to
continue efforts to engage and reach agreements that may contribute to a
positive advance toward compliance. The Commission will continue to
Case 12.475, Report No. 97/05, Alfredo Díaz Bustos (Bolivia)
101. On October 27, 2005, by Report No. 97/05, the Commission approved a friendly settlement agreement in the case of Alfredo Díaz Bustos. In summary, the petitioner alleged that Mr. Alfredo Díaz Bustos was a Jehovah’s Witness in respect of whom the State violated the right to conscientious objection to military service, directly affecting the right to freedom of conscience and religion. In addition, the petition indicated that Mr. Díaz Bustos suffered discrimination based on his status as a Jehovah’s Witness given that the very Law on National Defense Service of Bolivia established inequality between Catholics and those who follow other religions, such that exemption from military service was possible for Catholics, but not for others. The petitioner also alleged that the Bolivian State had violated the right to judicial protection of the alleged victim since, by final judgment of the Constitutional Court, it was established that the matters concerning the right to conscientious objection to compulsory military service cannot be submitted to any judicial organ.
102. In the friendly settlement agreement, the State undertook to:
a. Give Alfredo Díaz Bustos his document of completed military service within thirty (30) working days after he submits all the required documentation to the Ministry of Defense;
b. Present the service document free of charge, without requiring for its delivery payment of the military tax stipulated in the National Defense Service Act, or the payment of any other amount for any reason or considerations of any other nature, whether monetary or not;
c. Issue, at the time of presentation of the service record, a Ministerial Resolution stipulating that in the event of an armed conflict Alfredo Díaz Bustos, as a conscientious objector, shall not be sent to the battlefront nor called as an aide;
d. Include, in accordance with international human rights law, the right to conscientious objection to military service in the preliminary draft of the amended regulations for military law currently under consideration by the Ministry of Defense and the armed forces;
e. Encourage, together with the Deputy Ministry of Justice, congressional approval of military legislation that would include the right to conscientious objection to military service;
103. After studying the information in the record, the Commission had concluded in its annual reports for 2006 and 2007 that items 1, 2, and 3 of the agreement were being carried out, but not items 4 and 5.
104. In this respect, on December 17, 2007, the petitioner presented a brief communication in which he reported that the new Bolivian Constitution did not include among the rights listed the right to “conscientious objection” and that accordingly the State continued to be in breach of items (d) and (e) of the friendly settlement agreement. Subsequently, on June 4, 2008, a communication was received from the petitioner by which he reported that the Proposed Law on Compulsory Military Service was being debated in the National Congress, and asked the Commission to call on the Bolivian State to incorporate the right to conscientious objection into the new constitutional text.
105. On November 3, 2008, the Commission asked the parties to provide updated information implementation of the agreement. The State did not present any response to this request. On January 13, 2009, the petitioner submitted a document reporting that the Draft Constitution that was the subject of the referendum of January 25, 2009, did not include any reference to conscientious objection.
106. On January 21, 2009, the Commission received a communication from the State, informing that even though the conscientious objection is not included in the Constitution, the proposed law on Compulsory Military Service is currently being debated by the Parliament, and that it is expected to be widely discussed with the participation of all the interested parties. The State also noted that on May 2, 2008, it ratified the Ibero-American Convention on Rights of Youth, which in its Article 12 establishes that: “1. Youth have the right to make conscientious objection towards obligatory military service. 2. The States Parties undertake to promote the pertinent legal measures to guarantee the exercise of this right and advance in the progressive elimination of the obligatory military service.” It added that this ratification implies an incorporation of the conscientious objection to internal law and announced the presentation of a future report on this matter. The Commission awaits such report in order to evaluate compliance with items d) and e) of the friendly settlement agreement.
107. On November 10, 2009, the Commission requested both parties to provide updated information on the progress being made in fulfilling the commitments made by the State by virtue of the friendly settlement agreement. At the time of the drafting of the present chapter, none of the parties had responded to this request for information.
108.
On the
basis of available information, the IACHR concludes that the Friendly
Settlement Agreement has been partially complied with. Accordingly, the
Commission will continue to
Case
12.516, Report No. 98/05, Raúl Zavala Málaga and Jorge Pacheco Rondón
109. On October 27, 2005, by Report No. 98/05, the Commission approved a friendly settlement agreement in the case of Raúl Zavala Málaga and Jorge Pacheco Rondón.
110. In the friendly settlement agreement, the State undertook as follows:
1. Contract Jorge Pacheco Rondón for the ODESUR Project;
2. Reinstate Raúl Zavala Málaga as head of sports infrastructure with rank [Item] No. 13, as of January 3, 2005.
111. For their part, Jorge Pacheco Rondón and Raúl Zavala Málaga agreed to:
1. Formally and expressly discontinue all legal action taken, on a national level, with the Fifth Court for Preliminary Criminal Proceedings, and internationally, with the Inter-American Commission on Human Rights.
2. Refrain from undertaking any future judicial or extrajudicial action pertaining to compliance with Administrative Resolution SSC/IRJ/139/2003 of August 28, 2003.
112. On November 1, 2007, the Commission asked the parties for updated information on implementation of the agreement. On November 13, 2007, the petitioner submitted a brief communication reporting that “as all the recommendations made by the IACHR have been carried out in their entirety, no additional observation whatsoever is in order.” The Commission did not receive any response from the State.
113. On November 10, 2009, the Commission requested both parties to provide updated information on the progress being made in fulfilling the commitments made by the State by virtue of the friendly settlement agreement. At the time of the drafting of the present chapter, none of the parties had responded to this request for information.
114. Based on the information provided, the Commission concludes that the friendly settlement was agreement carried out in its entirety by the parties
Petition 269-05, Report No. 82/07, Miguel Angel Moncada Osorio and James David Rocha Terraza (Bolivia)
115. On October 15, 2007, by Report No. 82/07, the Commission approved a friendly settlement agreement in the case of Miguel Angel Moncada Osorio and James David Rocha Terraza. In summary, the petitioner alleged that the State was responsible for the violation of the rights of the alleged victims to judicial guarantees, to have access, on equal conditions, to public office in their country, and to judicial protection, established at Articles 8, 23, and 25, of the American Convention on Human Rights, due to the non-enforcement of an amparo judgment issued on their behalf by the Superior Court of Justice of La Paz.
116. In the friendly settlement agreement, the State undertook as follows:
a) To pay to James David Rocha Terraza the sum of B. 55,392.12 corresponding to pay accrued for fiscal year 2004 according to the Act of Reconciliation of Accrued Remuneration signed on January 12, 2006 by the interested party and the Ministry of Services and Public Works (today the Ministry of Public Works, Services and Housing). This payment shall be made in three installments, in the months of June, July and August 2007, by the 15th day of each month. From this amount, equivalent to B. 55,392.12, James David Rocha Terraza authorizes the Ministry of Public Works, Services and Housing to withhold the amount of B. 6,750, representing the salary he received between June 16 and July 31, 2005 for services provided to the National Fund for Regional Development. That sum of B. 6,750 will be withheld from the third installment, corresponding to the month of August 2007. Subsequently, the Ministry of Public Works, Services and Housing will transfer this amount of B. 6,750 to the National Fund for Regional Development, and will deliver a legalized receipt for that amount to Mr. James David Rocha Terraza and to the Ministry of Foreign Relations and Worship.
b) To pay to Miguel Angel Moncada Osorio the sum of B. 64,761.90 corresponding to pay accrued for fiscal year 2004 according to the Act of Reconciliation of Accrued Remuneration signed on January 12, 2006 by the interested party and the Ministry of Services and Public Works (today the Ministry of Public Works, Services and Housing). This payment shall be made in three installments, in the months of June, July and August 2007, by the 15th day of each month.
117. By means of a communication received on November 12, 2007, the State of Bolivia informed about the payment of the checks to Mr. Moncada and Mr. Rocha for the concept of the salaries earned in 2004, highlighting that it had complied with the friendly settlement agreement. On its part, on January 25 of 2008, the petitioners informed that they did not have any observation on the case and that they were “fully satisfied with the fulfillment of the agreement”. On November 3, 2008, the Commission requested the parties to provide information on compliance with the friendly settlement agreement.
118. On November 10, 2009, the Commission requested both parties to provide updated information on the progress being made in fulfilling the commitments made by the State by virtue of the friendly settlement agreement. At the time of the drafting of the present chapter, none of the parties had responded to this request for information.
119. As a result of the above, the Commission concludes that the friendly agreement has been totally complied with.
Petition 788-06, Report No. 70/07, Víctor Hugo Arce Chávez (Bolivia)
120. On July 27, 2007, by Report No. 70/07, the Commission approved a friendly settlement agreement in the case of Víctor Hugo Arce Chávez. In summary, the petitioner argued that the State was responsible for violating the rights of the alleged victim to judicial guarantees, to have access in general conditions of equality to public office in his country, and to judicial protection, established at Articles 8, 23, and 25 of the American Convention on Human Rights for failure to enforce an amparo judgment issued on his behalf by the Superior Court of La Paz.
121. Through the friendly settlement agreement the State undertook to carry out the following measures:
PECUNIARY MEASURES
a) To pay Víctor Hugo Arce Chávez the sum of Bs 988 (nine hundred eighty-eight bolivianos) to make up for the difference owed to him for his Christmas bonus of the year 2002. This payment must be made within five days of the signature of this document.
b) To pay Víctor Hugo Arce Chávez the sum of Bs 3,440 (three thousand four hundred and forty bolivianos) to complete the infant nursing subsidy owed to him on account of the birth of his son Hugo Alberto Arce Cano. This payment must be made within five days of the signature of this document.
c) To pay Víctor Hugo Arce Chávez the sum of Bs 11,228 (eleven thousand two hundred and twenty-eight bolivianos as the difference owed to him on account of his position in the career ladder and his years of service for the period between January 2002 and September 2006, and for payments to the Future of Bolivia Pension Fund Office for the period between January and September of 2002. This payment must be made within five days of the signature of this document. The payments into the fund shall be the responsibility of police officer Víctor Hugo Arce Chávez once he receives the sum from the Physical Security Battalion.
d) To pay Víctor Hugo Arce Chávez the sum of Bs 5,000 (five thousand bolivianos) in damages for pain and suffering caused to him and his next of kin. This payment must be made within five days of the signature of this document. NON-PECUNIARY MEASURES
e) The Battalion and the National Police shall abstain from taking any measure against police officer Víctor Hugo Arce Chávez in reprisal for the international complaint filed by him against the Bolivian State. Likewise, any present or future investigation and/or disciplinary procedure against police officer Víctor Hugo Arce Chávez shall be conducted under strict adherence to the guarantees of due process provided for by the internal rules of the National Police, the laws of the Nation, the Constitution, and the American Convention on Human Rights.
g) To add to the personal file of police officer Víctor Hugo Arce Chávez, a copy of Decision 359/2002, handed down by the Second Civil Chamber of the Superior Court of Justice of La Paz, a copy of Constitutional Judgment 1239/2002-R, a copy of this compromise agreement, and a copy of the Report on Friendly Settlement that the Inter-American Commission on Human Rights may approve. The first three documents shall be added to his personal file within five days of the signature of this agreement. The copy of the Report on Friendly Settlement of the IACHR shall be added to the file within ten days of its notification to the Bolivian State by the IACHR.
122. On November 3, 2008, the Commission requested the parties to provide information on compliance with the friendly settlement agreement. By means of a communication received on December 5, 2008, the petitioner indicated that he agreed with the compliance agreement that had been reached by his representatives and the Bolivian State. As for the State, it requested an extension to respond, which was granted by the IACHR. By means of a communication dated January 2, 2008, the State indicated that true fulfillment with each one of the commitments made in the light of Article 49 of the American Convention had been checked.
123. On November 10, 2009, the Commission requested both parties to provide updated information on the progress being made in fulfilling the commitments made by the State by virtue of the friendly settlement agreement. At the time of the drafting of the present chapter, none of the parties had responded to this request for information.
124. As a result of the above, the Commission concludes that the friendly agreement has been totally complied with.
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