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

 

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

 

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

 

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

 

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

 

790.          In its 2006, 2007 and 2008 Annual Reports, the Commission indicated that compliance with its recommendations transcribed above was still pending. By letters dated March 6, 2007, and January 6, 2009, the State reiterated its arguments of December 15, 2005, in which it disagreed with and declined the Commission’s recommendations and denied any violations of the American Declaration of the Rights and Duties of Man in this case.  

 

791.          On November 12, 2009, the IACHR requested both parties to submit updated information within one month on compliance with the recommendations.  The State requested an extension on December 14, 2009 but it was not possible to grant it due to the timetable for the preparation of the Annual Report for this year.  The petitioners have not provided the Commission with updated information.

 

792.          The Commission concludes that compliance with the recommendations remains pending. Accordingly, the IACHR will continue to monitor compliance with its recommendations.

 

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

 

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

 

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

 

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

 

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

 

795.          In its 2006 and 2007 Annual Reports, the IACHR presumed that the recommendations were pending compliance. By note dated March 6, 2007, the State informed the Commission that Mr. Garza had been executed in June of 2001; with regard to recommendation No. 2, the State reiterated its previous position stated in its letter of December 15, 2005, insofar as it disagreed with this recommendation.  By letter dated January 6, 2009, the State reiterated its position. 

 

796.          On November 12, 2009, the IACHR requested both parties to submit within one month updated information on compliance with the recommendations.  The State requested an extension on December 14, 2009 but it was not possible to grant it due to the timetable for the preparation of the Annual Report for this year.  The petitioner responded on November 12, 2009 and reiterated that Mr. Garza had indeed already been executed and that the State had also failed to comply with recommendation No. 2.

 

797.          On the basis of the foregoing information, the Commission concludes that the recommendations are still pending compliance. Accordingly, it will continue to monitor compliance with recommendation No.2 of the Report.

 

Case 11.753, Report N° 52/02, Ramón Martinez Villarreal, (United States)

 

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

 

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

 

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

 

2.         Review its laws, procedures and practices to ensure that foreign nationals who are arrested or committed to prison or to custody pending trial or are detained in any other manner in the United States are informed without delay of their right to consular assistance and that, with his or her concurrence, the appropriate consulate is informed without delay of the foreign national’s circumstances, in accordance with the due process and fair trial protections enshrined in Articles XVIII and XXVI of the American Declaration.

 

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

 

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

 

802.          The petitioners sent a communication dated May 1^st, 2008 in which they submit that compliance by the United States in this case is still pending.  They hold that there has been no compliance with the first recommendation, because “despite Mr. Martinez Villareal’s release from death row, the United States government has neither freed him nor taken steps to remedy the due process and fair trial violations outlined by the Commission’s Report No. 52/02”.  They further hold that “the U.S. has made little progress in complying with the Commission’s second recommendation in Report No. 52/02, and has in fact weakened consular notification rights by withdrawing from the Vienna Convention’s optional protocol and failing to implement the ICJ’s Avena judgment”. 

 

803.          The petitioners’ letter was forwarded to the State with a request for information on August 20, 2008, and another letter requesting updated information was submitted to it on November 5, 2008.  The State responded on January 6, 2009 that it reiterated the position set forth in letter of March 5, 2007, summarized above.

 

804.          On November 12, 2009, the IACHR requested both parties to submit updated information within one month on compliance with the recommendations.  The State requested an extension on December 14, 2009 but it was not possible to grant it due to the timetable for the preparation of the Annual Report for this year.  The petitioners did not respond within the time period established.

 

805.          Based on the available information, the Commission concludes that the State has partially complied with the recommendations set forth in Report N° 52/02. Accordingly, the IACHR will continue to monitor the items still pending compliance.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

810.          The IACHR requested updated information to both parties on November 5, 2008.  The United States responded by letter dated January 6, 2009 reiterating its previous position on this matter.  For their part, the petitioners sent a letter on December 5, 2008 where they described the “disturbing developments concerning the United States’ lack of compliance” with the Commission’s recommendations.

 

811.          Among other matters, the petitioners mention that on November 12, 2008 the United States Bureau of Land Management officially approved the Cortez Hills Expansion Project, a plan by the company Barrick Gold to “construct and operate the open pit cyanid heap leach mine on the edge of Mount Tenabo” considered “of great cultural and spiritual significance to the Western Shoshone”.  Besides the lack of access to the site by the Shoshone, the petitioners hold that this would “result in a new 2,200 foot hole in the actual mountain itself, in addition to cyanide emissions, dewatering, mercury contamination and other harmful byproducts”.  They add that “the decision to expand mining operations on Mount Tenabo is directly significant to the Danns given that it is in their traditional use area” and that they have “filed a complaint in the Reno Federal District Court seeking declaratory and injunctive relief to stop the mine”.

 

812.          The petitioners also consider that the United States is harassing Carrie Dann by sending her a debt collection notice in the amount of U.S.$ 6,433,231.40 on behalf of the U.S. Department of the Interior for “non-payment of cattle grazing fees, an activity that is a traditional and customary use of her ancestral lands”.  They have refused to pay this debt for considering that they cannot be charged for “livestock trespass” on their own land.

 

813.          Further, the petitioners mention that “in addition to the Cortez Hills Expansion Project at Mt. Tenabo, the U.S. continues to move forward on additional gold mining expansions throughout Western Shoshone territory” without their consent.  In this regard they note that the State is “moving ahead with plans to store high-level nuclear waste at Yucca Mountains, Nevada” and that “plans are underway to conduct exploratory drilling for uranium on the foothills of Merritt Mountain in Western Shoshone territory” and that such exploration would “involve the drilling of 150 wells and creation of containment ponds near three Native American sites”.  The petitioners also mention other projects that would affect the Western Shoshone’s ancestral lands, such as geothermal leases, the building of a 234-mile transmission line across Nevada and a plan to tap aquifers to pipe down water to Las Vegas. 

 

814.          On November 12, 2009, the IACHR requested both parties to submit updated information within one month on compliance with the recommendations.  The State requested an extension on December 14, 2009 but it was not possible to grant it due to the timetable for the preparation of the Annual Report for this year. 

 

815.          For their part, on December 11 2009 the petitioners submitted a detailed communication, including several annexes, with “observations on non-compliance with the recommendations set forth in Report No. 75/02”.  As part of the observations, the petitioners reiterate and update the information they submitted in December 2008.  With regard to events that happended during the period convered by this Annual Report, the petitioners mention that over the past year the United States has continued to “move forward on additional massive open pit gold mining expansions throughout Western Shoshone territory without Western Shoshone consent”.  They also indicate that “on August 1, 2009 a public news source reported that radioactive water has been discovered leaking out beyond the Nevada Test Site boundary where 928 nuclear tests were conducted between 1951 and 1992” and that despite the fact that the areas where the radioactive water is leaking lie within Western Shoshone territory, there was no record of any representative of these indigenous people being consulted on the actions to be taken to address the situation.

 

816.          The petitioners also mention in their most recent communication that there is a “massive push for energy extraction” from Western Shoshone lands, without their consent.  Reference is made to several projects of oil and gas extraction, energy leases, and transmission corridors that were underway during 2009.  According to the petitioners, with the permission of the United States Government, during 2009 “Barrick Gold started explosive blasting and dewatering of Mt. Tenabo” and that full operations could begin as early as the first quarter of 2010 with serious consequences to this area, which is of great significance to the Western Shoshone as explained above.  The petitioners add that the United States has threatened legal action against a member of the Dann family for interfering with “federally permitted” removal of traditional objects from this area.  They also mention that a complaint was filed “seeking declaratory and injunctive relief to stop the mine pending a full hearing on the merits of the case”, and that on appeal the 9^th Circuit Court granted the injunction on December 3, 2009.  However, the petitioners point out that “the decision was limited to violations of federal environmental law – not out of concern for the protection of indigenous peoples’ rights” and that Barrick Gold has indicated that it would continue its operations until the lower court issues a formal order to implement the injunction.

 

817.          Another issue raised by the petitioners is that the United States continues to issue debt collection notices to Carrie Dann, her extended family and other Western Shoshone.  Specificallly, they mention that “on June 23, 2009 five representatives of the U.S. BLM came to Ms. Dann’s home, provided oral reaffirmation of her outstanding ‘debt’ of almost 6.5 million dollars and stated that the same policies currently remain in effect that in the past have resulted in the confiscation of her livestock”. 

 

818.          Based upon the information available, the Commission considers that compliance with its recommendations set forth in Report N° 75/02 remains pending. Therefore, it will continue to monitor compliance with its recommendations.

 

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

 

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

 

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

 

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

 

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

 

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

 

821.          In its 2006 and 2007 Annual Reports, the Commission stated that based upon the information available, it considered that there had been partial compliance with its recommendations set forth in Report N° 97/03. In a communication dated March 6, 2007, the State reiterated that it disagreed with the first two recommendations of the IACHR. With respect to the third recommendation, the State reminded the Commission of the Supreme Court’s ruling in Roper v. Simmons (125 S. Ct. 1183 [2005]), which held that imposing the death penalty on offenders who were under the age of 18 when the crime was committed was unconstitutional, since it violated the Eight and Fourteenth Amendments.

 

822.          On November 12, 2009, the IACHR requested both parties to submit updated information within one month on compliance with the recommendations.  The State requested an extension on December 14, 2009 but it was not possible to grant it due to the timetable for the preparation of the Annual Report for this year. 

 

823.          For their part, the International Human Rights Clinic at American University Washington College of Law (IHRLC) responded on December 7, 2009 indicating that they had ended their representation of the family because they were unable for many years to contact them.  Accordingly, the IHRLC representatives mentioned that they were not in a position to inform on compliance with the first recommendation involving an effective remedy for the family that includes compensation.  However, IHRLC representatives did express their view that compliance with the second and third recommendations is mixed: notwithstanding the Roper v. Simmons precedent, they were unaware of any efforts by the United States to ¨review its las, procedures and practices to nsure that violations similar to those in Mr. Shankofa´s case do not occur in future capital proceedings” as recommended by the IACHR in the report on this case.

 

824.          The Petitioners have not provided the Commission with updated information since the publication of its 2006 Annual Report.

 

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

 

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

 

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

 

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

 

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

 

828.          In its 2006, 2007 and 2008 Annual Reports, the IACHR stated that compliance with its recommendation in this case was pending. By notes dated March 6, 2007 and January 6, 2009, the State reiterated that it disagreed with and declined the Commission’s recommendation and denied any violations of the American Declaration of the Rights and Duties of Man based upon its previous responses in this case. In letters dated December 5, 2007 and December 28, 2008, the petitioners stated that the United States had failed to comply with the Commission’s recommendation, since to date the residents of the District of Columbia remain disenfranchised, without the right to equal representation in the United States Senate and House of Representatives.

 

829.          On November 12, 2009, the IACHR requested both parties to submit updated information within one month on compliance with the recommendations.  The State requested an extension on December 14, 2009 but it was not possible to grant it due to the timetable for the preparation of the Annual Report for this year.  The petitioners did not respond within the time period established.

 

830.          Based upon the information available, the Commission considers that compliance with its recommendation remains pending. Accordingly, it will continue to monitor compliance with its recommendations.

 

Case 11.331, Report N° 99/03, Cesar Fierro (United States)

 

831.          In Report N° 99/03 dated December 29, 2003, the Commission concluded that: a) the State was responsible for violations of Articles XVIII and XXVI of the American Declaration in the trial, conviction and sentencing to death of Cesar Fierro; and, b) should the State execute Mr. Fierro pursuant to the criminal proceedings at issue in this case, the State would perpetrate a grave and irreparable violation of the fundamental right to life under Article I of the American Declaration.

 

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

 

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

 

2.         Review its laws, procedures and practices to ensure that foreign nationals who are arrested or committed to prison or to custody pending trial or are detained in any other manner in the United States are informed without delay of their right to consular assistance and that, with his or her concurrence, the appropriate consulate is informed without delay of the foreign national’s circumstances, in accordance with the due process and fair trial protections enshrined in Articles XVIII and XXVI of the American Declaration.

 

833.          In its 2006 and 2007 Annual Reports, the Commission concluded that compliance with its recommendations in this case was still pending. In a note dated March 6, 2007, the State reiterated that it disagreed with and declined the first recommendation of the Commission based upon its previous responses in this case. With regard to the second recommendation, the State declared that it is fully committed to meeting its obligations under the Vienna Convention on Consular Relations. In this regard, it is conducting on-going efforts to improve compliance with the obligation to respect the right to consular assistance of detained foreign nationals. For instance, the Department of State’s Bureau of Consular Affairs has carried out an aggressive program of awareness. In addition to that, the State affirmed that since 1998, the State Department had distributed to federal, state and local law enforcement agents over one thousand training videos, booklets and pocket cards regarding arrests and detention of foreign nationals; as well as had conducted over 350 training seminars on the right to consular assistance throughout the United States and its territories, and had created an online training course on the topic.

 

834.          In a letter dated November 5, 2007, the petitioners informed the Commission that the State had not complied with the Commission’s recommendations. In breach of the first recommendation, the Petitioners claim that Mr. Fierro has not been re-tried or released, and he remains on death row without an execution date currently scheduled. That is notwithstanding the fact that the petitioners have further attempted to have the courts review Mr. Fierro’s conviction. In this regard, the Texas Court of Criminal Appeals rejected Mr. Fierro’s subsequent application for post-conviction writ of Habeas Corpus, on March 7, 2007. A petition for a writ of certiorari was also filed on Mr. Fierro’s behalf in the Supreme Court of the United States on June 4, 2007, but the tribunal has yet to rule on this petition. According to the Petitioners, the victim’s prior conviction and the possibility of its judicial review, along with that of the other Mexican nationals named in the ICJ Case of Avena and Other Mexican Nationals v. the United States is also a matter of discussion in the context of a pending case in which the Supreme Court has already granted certiorari (Medellin v. Texas).

 

835.          By letter dated December 1, 2008, the petitioners updated the information and mentioned that Mr. Fierro remains on death row in Texas; that he has not been re-tried or released; and that no date has been scheduled for his execution.  The petitioners mention that in its decision of March 31, 2008 the Supreme Court of the United States denied relief to Mr. Fierro on the basis of the Medellin v. Texas case, where it was determined that U.S. courts are not bound by the Avena judgment of the ICJ; and that a petition for successive habeas corpus relief was denied by the U.S. Court of Appeals on June 2, 2008.  The petitioners are concerned that despite the ICJ decision of July 16, 2008 not to execute Mr. Fierro and other Mexican nationals including Jose Medellin absent review and reconsideration, Mr. Medellin was executed on August 5, 2008.  They hold that “in the wake of Mr. Medellin’s execution, federal authorities have apparently done nothing to prevent Mr. Fierro’s execution, even though legal remedies are available to them”.

 

836.          As regards the second recommendation, the petitioners acknowledged that the United States made information available to local authorities about their obligation in regard to consular access. Nevertheless, the petitioners argued that the United States had not reviewed its laws, procedures and practices in this regard. On the contrary, according to the petitioners, the most recent formal advice issued by the Department of State on this matter remained that of 1999, in which it advised that the Vienna Convention on Consular Relations was not intended to create a right of private judicial enforcement. The petitioners claim that the State continues to argue that the Vienna Convention negates any right for a foreign national whose right to consular assistance is violated. The petitioners emphasized that courts of the United States continue to refer to the aforementioned communication as an authoritative interpretation of the Vienna Convention on Consular Relations.

 

837.          In their December 2008 submission, the petitioners add that they do not know of any review of the laws, procedures or practices of the United States that would be in compliance with the IACHR report’s second recommendation.  They add that “no noticeable improvement has occurred in compliance in the United States in notifying detained foreign nationals about consular access”.

 

838.          For its part, the United States sent a letter on January 6, 2009 that reiterates the position held earlier on this case.

 

839.          On November 12, 2009, the IACHR requested both parties to submit updated information within one month on compliance with the recommendations.  The State requested an extension on December 14, 2009 but it was not possible to grant it due to the timetable for the preparation of the Annual Report for this year.  The petitioners did not respond within the time period established.

 

840.          Based upon the foregoing information provided by the parties, the Commission considers that there has been partial compliance with its second recommendation. Accordingly, the Commission will continue to monitor the items still pending compliance.

 

Case 12.240, Report N° 100/03, Douglas Christopher Thomas (United States)

 

841.          In Report N° 100/03 dated December 29, 2003, the Commission concluded that the State acted contrary to an international norm of jus cogens as reflected in Article I of the American Declaration by sentencing Douglas Christopher Thomas to the death penalty for crimes that he committed when he was 17 years of age, and executing him pursuant to that sentence.

 

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

 

1.         Provide the next-of-kin of Douglas Christopher Thomas with an effective remedy, which includes compensation.

 

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

 

843.          In its 2006, 2007 and 2008 Annual Reports, the Commission stated that there had been partial compliance with its recommendations. In a note dated March 6, 2007, the United States maintained its previously stressed position of disagreement with the Commission’s first recommendation. With regard to the IACHR’s second recommendation, the State reminded the Commission of the Supreme Court’s ruling in Roper v. Simmons (125 S. Ct. 1183 [2005]), which held that imposing the death penalty on offenders who were under the age of 18 when the crime was committed was unconstitutional, since it violated the Eight and Fourteenth Amendments.

 

844.          On November 19, 2007, the petitioner acknowledged the aforementioned decision of the Supreme Court in Roper v. Simmons. However, the petitioner reiterated that the victim in this case was executed prior to that decision. In addition to that, the petitioner stressed that the State has not complied with the Commission’s first recommendation.  For its part, the State sent a letter on January 6, 2009, by which it reiterates its previous position on this matter.

 

845.          On November 12, 2009, the IACHR requested both parties to submit updated information within one month on compliance with the recommendations.  The State requested an extension on December 14, 2009 but it was not possible to grant it due to the timetable for the preparation of the Annual Report for this year.  The petitioners did not respond within the time period established.

 

846.          In view of the above, the Commission declares that compliance with the recommendations in Report N° 100/03 remains partial. The Commission takes special note of the aforementioned Supreme Court sentence in Roper v. Simmons which prohibited the imposition of the death penalty to minors under the age of 18 at the time their crime was committed, in line with the Commission’s second recommendation. Accordingly, the Commission will continue to monitor the items still pending compliance.

 

Case 12.412, Report N° 101/03, Napoleon Beazley (United States)

 

847.          In Report N° 101/03 dated December 29, 2003, the Commission concluded that the State acted contrary to an international norm of jus cogens as reflected in Article I of the American Declaration by sentencing Napoleon Beazley to the death penalty for crimes that he committed when he was 17 years of age, and executing him pursuant to that sentence.

 

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

 

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

 

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

 

849.          In its 2006, 2007 and 2008 Annual Reports, the Commission considered that the State had partially complied with the recommendations in this case. In a letter dated March 6, 2007, the United States reiterated its previously stressed position of disagreement with the Commission’s first recommendation. With regard to the IACHR’s second recommendation, the State reminded the Commission of the Supreme Court’s ruling in Roper v. Simmons (125 S. Ct. 1183 [2005]), which held that imposing the death penalty on offenders who were under the age of 18 when the crime was committed was unconstitutional, since it violated the Eight and Fourteenth Amendments. The Petitioner has not presented updated information regarding compliance.  For its part, the State sent a letter on January 6, 2009, by which it reiterates its previous position on this matter.

 

850.          On November 12, 2009, the IACHR requested both parties to submit updated information within one month on compliance with the recommendations.  The State requested an extension on December 14, 2009 but it was not possible to grant it due to the timetable for the preparation of the Annual Report for this year.  The petitioners did not respond within the time period established.

 

851.          On the basis of the available information, the Commission states that compliance with the recommendations in Report N° 101/03 remains partial. The Commission takes special note of the aforementioned Supreme Court sentence in Roper v. Simmons which prohibited the imposition of the death penalty to minors under the age of 18 at the time their crime was committed, in line with the Commission’s second recommendation. Accordingly, the IACHR will continue to monitor the item still pending compliance.

 

Case 12.430, Report N° 1/05 Roberto Moreno Ramos, (United States)

 

852.          In Report N° 1/05 dated January 28, 2005, the IACHR concluded that: a) the State was responsible for violations of Articles II, XVIII and XXVI of the American Declaration in the criminal proceedings against Mr. Moreno Ramos; and, b) should the State execute Mr. Moreno Ramos pursuant to the criminal proceedings at issue in this case, the State would commit a grave and irreparable violation of the fundamental right to life under Article I of the American Declaration.  

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

 

1.         Provide Mr. Moreno Ramos with an effective remedy, which includes a new sentencing hearing in accordance with the equality, due process and fair trial protections prescribed under Articles II, XVIII and XXVI of the American Declaration, including the right to competent legal representation.

 

2.         Review its laws, procedures and practices to ensure that foreign nationals who are arrested or committed to prison or to custody pending trial or are detained in any other manner in the United States are informed without delay of their right to consular assistance and that, with his or her concurrence, the appropriate consulate is informed without delay of the foreign national’s circumstances, in accordance with the due process and fair trial protections enshrined in Articles XVIII and XXVI of the American Declaration.

 

3.         Review its laws, procedures and practices to ensure that defendants in capital proceedings are not denied the right to effective recourse to a competent court or tribunal to challenge the competency of their legal representation on the basis that the issue was not raised at an earlier stage of the process against them.

 

854.          In its 2006, 2007 and 2008 Annual Reports, the Commission presumed that its recommendations in this case were pending compliance. In a letter dated March 6, 2007, the State reiterated that it disagreed with and declined the first and third recommendations of the Commission based upon its prior submissions in this case. As regards the second recommendation, the State declared that it is fully committed to meeting its obligations under the Vienna Convention on Consular Relations. In this regard, it is conducting on-going efforts to improve compliance with the obligation to respect the right to consular assistance of detained foreign nationals. For instance, the Department of State’s Bureau of Consular Affairs has carried out an aggressive program of awareness. In addition to that, the State affirmed that since 1998, the State Department had distributed to federal, state and local law enforcement agents over one thousand training videos, booklets and pocket cards regarding arrests and detention of foreign nationals; as well as had conducted over 350 training seminars on the right to consular assistance throughout the United States and its territories, and had created an online training course on the topic. The petitioners have not provided the Commission with updated information regarding implementation of its recommendations.  For its part, the State sent a letter on January 6, 2009, by which it reiterates its previous position on this matter.

 

855.          On November 12, 2009, the IACHR requested both parties to submit updated information within one month on compliance with the recommendations.  The State requested an extension on December 14, 2009 but it was not possible to grant it due to the timetable for the preparation of the Annual Report for this year.  The petitioners did not respond within the time period established.

 

856.          Based upon the abovementioned information, the Commission considers that there has been partial compliance with its second recommendation. Accordingly, the IACHR will continue to monitor the item still pending compliance.

 

Case 12.439, Report N° 25/05, Toronto Markkey Patterson (United States)

 

857.          In Report N° 25/05 dated March 7, 2005, the Commission concluded that the State acted contrary to an international norm of jus cogens as reflected in Article I of the American Declaration by sentencing Toronto Markkey Patterson to the death penalty for crimes that he committed when he was 17 years of age, and executing him pursuant to that sentence.

 

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

 

1.         Provide the next-of-kin of Toronto Markkey Patterson with an effective remedy, which includes compensation.

 

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

 

859.          In its 2006, 2007 and 2008 Annual Reports, the Commission considered that there had been partial compliance with its recommendations in this case. In a letter dated March 6, 2007, the United States reiterated its previous position of disagreement with the Commission’s first recommendation. With regard to the Commission’s second recommendation, the State reminded the Commission of the Supreme Court’s ruling in Roper v. Simmons (125 S. Ct. 1183 [2005]), which held that imposing the death penalty on offenders who were under the age of 18 when the crime was committed was unconstitutional, since it violated the Eight and Fourteenth Amendments.. The State sent a letter on January 6, 2009, by which it reiterates its previous position on this matter.

 

860.          On November 12, 2009, the IACHR requested both parties to submit updated information within one month on compliance with the recommendations.  The State requested an extension on December 14, 2009 but it was not possible to grant it due to the timetable for the preparation of the Annual Report for this year. 

 

861.          Mr. J. Gary Hart, petitioner in this case, responded on November 30, 2009 and indicated that he had not been in contact with Mr. Patterson´s family since his execution, and that he did not did not know whether his next of kin had been compensated.  He also mentioned that he did not know whether any other remedy was afforded in the case by the United States, and made reference to the 2005 Roper v. Simmons precedent cited above.  Finally, Mr. Hart mentions that “Texas has not executed any such offender since that time, nor to my knowledge has any other state in the United States”.

 

862.          Consequently, the Commission asserts that compliance in this case remains partial. In particular, the Commission takes note of the aforementioned Supreme Court sentence in Roper v. Simmons which prohibited the imposition of the death penalty to minors under the age of 18 at the time their crime was committed, in line with the Commission’s second recommendation. Accordingly, the IACHR will continue to monitor the item still pending compliance.

 

Case 12.421, Report N° 91/05, Javier Suarez Medina (United States)

 

863.          In Report N° 91/05 issued on October 24, 2005, the Commission concluded that the State was responsible for: a) violations of Articles XVIII and XXVI of the American Declaration in the trial, conviction and sentencing to death of Javier Suarez Medina, by permitting the introduction of evidence of an unadjudicated crime during Mr. Suarez Medina’s capital sentencing hearing and by failing to inform Mr. Suarez Medina of his right to consular notification and assistance; and b) violations of Article I, XXIV and XXVI of the American Declaration, by scheduling Mr. Suarez Medina’s execution on fourteen occasions pursuant to a death sentence that was imposed in contravention of Mr. Suarez Medina’s rights to due process and to a fair trial under Articles XVIII and XXVI of the American Declaration, and by executing Mr. Suarez Medina pursuant to that sentence on August 14, 2002 notwithstanding the existence of precautionary measures granted in his favor by this Commission.

 

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

 

1.         Provide the next-of-kin of Mr. Suarez Medina with an effective remedy, which includes compensation.

 

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

 

3.         Review its laws, procedures and practices to ensure that foreign nationals who are arrested or committed to prison or to custody pending trial or are detained in any other manner in the United States are informed without delay of their right to consular assistance and that, with his or her concurrence, the appropriate consulate is informed without delay of the foreign national’s circumstances, in accordance with the due process and fair trial protections enshrined in Articles XVIII and XXVI of the American Declaration.

 

4.         Review its laws, procedures and practices to ensure that requests for precautionary measures granted by the Commission are implemented so as to preserve the Commission’s functions and mandate and to prevent irreparable harm to persons.

 

865.          In its 2006, 2007 and 2008 Annual Reports, the Commission presumed that the recommendations in Report N° 91/05 were pending compliance.

 

866.          In its letter of March 6, 2007, the State reiterated that it disagreed with the first and second recommendations of the Commission for the reasons articulated in its previous submissions in this case. With respect to the Commission’s third recommendation, the State declared that it is fully committed to meeting its obligations under the Vienna Convention on Consular Relations. In this regard, it is conducting on-going efforts to improve compliance with the obligation to respect the right to consular assistance of detained foreign nationals. For instance, the Department of State’s Bureau of Consular Affairs has carried out an aggressive program of awareness. In addition to that, the State affirmed that since 1998, the State Department had distributed to federal, state and local law enforcement agents over one thousand training videos, booklets and pocket cards regarding arrests and detention of foreign nationals; as well as had conducted over 350 training seminars on the right to consular assistance throughout the United States and its territories, and had created an online training course on the topic. The Petitioners have not provided the Commission with updated information regarding implementation of its recommendations. As regards the fourth recommendation, the State informed the Commission that it had mechanisms in place to allow for the expeditious transmittal of precautionary measures to the appropriate governmental authorities.  For its part, the State sent a letter on January 6, 2009, by which it reiterates its previous position on this matter.

 

867.          On November 12, 2009, the IACHR requested both parties to submit updated information within one month on compliance with the recommendations.  The State requested an extension on December 14, 2009 but it was not possible to grant it due to the timetable for the preparation of the Annual Report for this year.  The petitioners did not respond within the time period established.

 

868.          The Commission concludes that there is partial compliance with the aforementioned recommendations. Accordingly, the IACHR will continue to monitor the items still pending compliance.

 

Case 12.534, Report N° 63/08, Andrea Mortlock (United States)

 

869.          In Report Nº 63/08 issued on July 25, 2008, the Inter-American Commission concluded that the United States is responsible for the violation of Article XXVI of the American Declaration to the prejudice of Andrea. Mortlock, a Jamaican national who was under threat of deportation from the United States to her country, the result of which would deny her medication critical to her treatment for AIDS/HIV.

 

870.          As a consequence of that conclusion, the Inter-American Commission recommended to the United States that it “refrain from removing Ms. Andrea Mortlock from its jurisdiction pursuant to the deportation order at issue in this case”.

 

871.          By note dated March 3, 2008, the United States expressed that it “respectfully disagrees with and declines the recommendations of the Commission in the above-referenced case and denies any violation of the protections set forth in the American Declaration of the Rights and Duties of Man.”  That position was reiterated by the representative of the State during the working meeting that took place on March 11, 2008, during the Commission’s 131^st regular period of sessions.

 

872.          On November 12, 2009, the IACHR requested both parties to submit updated information within one month on compliance with the recommendations.  The State requested an extension on December 14, 2009 but it was not possible to grant it due to the timetable for the preparation of the Annual Report for this year.  For their part, the petitioners responded on December 7, 2009 that they were “unaware of any efforts by the United States to remove [Andrea] Mortlock from its jurisdiction pursuant to the deportation order at issue in the case”.

 

873.          The information available to the IACHR indicates that, apparently, there has been compliance with its recommendation.  However, in light of the position previously adopted by the State with respect to the recommendations in the report, the Inter-American Commission cannot reach a determination on compliance until it receives conclusive information. Accordingly, the IACHR will continue to monitor compliance with its recommendations.

 

            Case 11.500, Report No. 124/06, Tomás Eduardo Cirio (Uruguay)

 

874.          In Report No. 124/06  of October 27, 2006, the Inter-American Commission concluded that: (a) The Uruguayan State has breached its obligation to respect and ensure the right to be heard by a competent, independent, and impartial court, previously established by law (Article XXVI American Declaration) and judicial protection (Article 25 American Convention), the freedom of expression (Article IV American Declaration), his right to dignity and honor (Article 5 of the Declaration and Article 11 of the Convention), the right to equality before the law (Article 24 of the Convention), and the right to compensation (Article 10 of the American Convention); and (b) that by virtue of the violations mentioned, the Uruguayan State has breached its obligations to respect and ensure human rights, imposed by Article 1(1) of the American Convention, and to adopt provisions of domestic law, imposed by Article 2.

 

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

 

1.         Nullify forthwith and to rescind retroactively Executive Resolutions Nos. 46.202 and 46.204 of January 2, 1973, Ministry of Defense Resolution No. 6.540 of December 20, 1973, and the ruling of the Tribunal of Honor that harmed him. Restore all the rights, benefits, honors and other prerogatives pertaining to him as a retired member of the Armed Forces of Uruguay.

 

2.         To adopt all necessary measures for reparation and compensation, so as to restore the honor and reputation of Mr. Tomás Eduardo Cirio.

 

3.         To promote measures that lead to the adoption of domestic legislation in conformity with the norms of the American Convention with respect to freedom of expression and due process under military jurisdiction.

 

876.          On November 13, 2009, the Commission requested the parties to provide updated information on the status of compliance with the recommendations.

 

877.          By means of a note dated December 9, 2009, the State reported to the Commission that it had complied with the recommendations made in Report No. 126/06 of October 27, 2006. Regarding the first two recommendations, the State indicated that the reparations granted to Major Ciro involved promoting him to the rank of General as of February 1, 1996, increasing his retirement pay, and paying compensation equivalent to 24 times the corresponding retirement assets, paid at values for July 2005.  Likewise, in the framework of comprehensive reparation, the State pointed out that enjoyment of the benefits of his rank and honors pertaining to his position was reinstated, military health services restored, and all references based on incidents of the past were deleted from his personal files.  The details of the reparations that were granted were provided by the State in its note of December 6. 2007, as indicated in the IACHR Annual Report for 2007.

 

878.          Regarding the third recommendation, the State mentioned the draft Law for National Defense, which as reported in due time was submitted by the Executive Branch of Government to Parliament and was adopted by the Senate of Uruguay on December 29, 2008.  Regarding this, the State warned that, although the above-mentioned law was adopted by Parliament in August 2009, at the date of its report, it had not been enacted “because of a veto by the Executive Branch aimed at one of the articles that have nothing to do with the articles referring to military jurisdiction.”  The State provided the Commission with the text of the Law adopted by Parliament, except that it has not yet entered into force because of the reasons indicated above.

 

879.          As for the petitioner, in December 2007, he informed the Commission about compliance with the first two recommendations as set forth in Report No. 124/06. In his note of December 4, 2007, the petitioner indicated that, by means of Resolution No. 83.329 issued by the Executive Branch on December 28, 2005, resolutions Nos. 46.202 and 46.204 of January 2, 1973 were repealed retroactively, all the rights, benefits, honors and other privileges that would have pertained to his rank as a retired officer were reinstated, and the legal repercussions of his censure for severe offense were annulled.  In this same communication, the petitioner indicated that, as moral redress, he was awarded the highest rank in the Armed Forces as of February 1, 1986, by Executive Resolution No. 83.805 of September 4, 2006.

 

880.          On the basis of the information provided by the parties, the Commission observes that the State has complied with both the first and the second recommendations, as set forth in its Report No. 124/06. As for the third recommendation, the Commission appreciates the efforts made by the Uruguayan State to adjust domestic legislation to the standards of the American Convention with respect to freedom of expression and due process of law in military jurisdictions.  In this regard, it takes note of the adoption by Parliament of the National Defense Law, as well as the objection made by the State on the basis of which its entry into force is pending because of the veto imposed by the Executive Branch of Government.  The IACHR encourages the Uruguayan State to continue its efforts to ensure full compliance with the recommendations made by the Commission in the present case.

 

881.          Based on the above-mentioned, the IACHR concludes that the State has partially complied with the recommendations set forth in the report. As a result, the Commission shall continue to monitor the items that are pending. 

 

Case 12.555 (Petition 562/03), Report No. 110/06, Sebastián Echaniz Alcorta and Juan Víctor Galarza Mendiola (Venezuela)

 

882.          On October 27, 2006, by means of Report No. 110/06[50], the Commission approved a friendly settlement agreement in the case of Sebastián Echaniz Alcorta and Juan Víctor Galarza Mendiola. The case deals with the deportation, from Venezuela to Spain, of Juan Víctor Galarza Mendiola on June 2, 2002, and of Sebastián Echaniz Alcorta on December 16, 2002, both of whom are Spanish nationals of Basque origin.

 

883.          In the friendly settlement agreement, the Venezuelan State accepted its responsibility for violating the human rights of Juan Víctor Galarza Mendiola and Sebastián Echaniz Alcorta, by illegally deporting them and illegally handing them over to the Spanish State. The Venezuelan State also acknowledged its violation of the following articles of the American Convention: Right to Humane Treatment, Right to Personal Liberty, Right to a Fair Trial, Right to Privacy, Rights of the Family, Freedom of Movement and Residence, Right to Equal Protection, and Right to Judicial Protection, in accordance with the general obligation to respect and guarantee rights. It also admitted the violation of Article 13 of the Inter-American Convention to Prevent and Punish Torture, it undertook to provide, inter alia, pecuniary damages and guarantees of non-repetition.

 

884.          On November 21, 2006, the Commission adopted Report No. 110/06, in which it applauded the efforts made by both parties in reaching the friendly settlement and, in addition, clarified that the agreement referred to a series of matters beyond the jurisdiction of the Commission and/or that were not addressed in the case before it. The Commission therefore deemed it was necessary to state that the adopted report in no way implied a ruling on the individuals not named as victims in the case before the Commission, on the citizenship of Messrs. Juan Víctor Galarza Mendiola and Sebastián Echaniz Alcorta, nor on the treatment they may have received in third countries not subject to the IACHR’s jurisdiction.

 

885.          On November 13, 2009, the Commission asked the parties for up-to-date information on the state of compliance with the agreement, but did not receive a response.

 

886.          Based on the foregoing, the IACHR concludes that compliance with the friendly settlement agreement remains pending. Therefore, the Commission will continue to monitor the pending items.