CHAPTER II

 

ACTIVITIES OF THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS

 

          Beginning September, 1985, the date on which the coverage of the previous annual report ended, the Inter-American Commission on Human Rights held two sessions: the sixty-sixth and the sixty-seventh. Both were regular sessions and were held at the Commission's headquarters, the General Secretariat of the Organization of American States, in Washington, D.C.

 

          The Chairman of the Permanent Council and the Secretary General of the Organization attended the inauguration of the two sessions in reference. At these inaugural events, these distinguished representatives underlined the importance of the Commission's work.

 

          As indicated in this chapter's summary of each of the aforementioned sessions, the Commission analyzed and took decisions on the various matters pending consideration, and adopted the corresponding programs.

 

          At each of these sessions, the Commission's President and Executive Secretary presented their respective reports in accordance with the regulations.

 

          In December 1985, between the two sessions of the Commission, the OAS General Assembly was held in Cartagena de Indias, Colombia. Important resolutions on human rights were adopted which are included in this chapter.

 

          A.          Sixty-Sixth Session

 

          This session was held from September 26 to October 4, 1985, at the Commission's headquarters in Washington, D.C. under the Chairmanship of Dr. Andrés Aguilar and with the participation of all but one member: Dr. Luis Adolfo Siles Salinas, First Vice Chairman; Dr. Gilda Maciel Russomano, Second Vice Chairman; Dr. Marco Gerardo Monroy Cabra; Dr. César Sepúlveda; and Dr. Bruce McColm. Dr. Luis Demetrio Tinoco Castro could not attend due to illness.

 

          At that time all the members present unanimously adopted the final reports on the general situation of human rights in Chile and in Suriname. These reports were forwarded to the OAS Secretary General for distribution to the Governments of the member states. It should be recalled that the Commission had provisionally adopted two reports at its previous (65th) session, and that they had been forwarded to the corresponding Governments for whatever observations they might deem pertinent. The Chilean Government decided not to accept the report for procedural reasons. The Government of Suriname, however, set forth its observations, which were carefully examined by the IACHR. Both reports were made public after that meeting of the Commission.

 

          At that time the Commission also adopted a preliminary report on the status of human rights in Guatemala. Pursuant to the current regulations, the report was forwarded to that country's Government for whatever observations it deemed pertinent.

 

          Another of this session's main activities was consideration and final approval of the annual report to be submitted to the OAS General Assembly in December 1985. This annual report also included a special section on Guatemala concerning the on-site visit held by the IACHR in May 1985 and updating its previous reports on the country. Information available on the observance of human rights in Cuba, El Salvador, Haiti, Nicaragua and Paraguay during the previous 12 months was also updated.

 

          Likewise, upon considering the official invitation extended by the Government of Haiti to hold an on-site observation visit in that country, the Commission decided to make the visit in January 1986.

 

          Finally, among the proceedings held during this session, special mention should be made of the visit of the Archbishop of San Salvador and Chairman of the Central American Episcopal Conference, Monsignor Arturo Rivera y Damas, whom the IACHR thanked for this kind words and support of the Commission's aims and activities.

 

          B.          Activities following the 66th session

 

          The Ninth Inter-American Indian Congress was held in Santa Fe, New Mexico, from October 28 to November 1, 1985. Important resolutions with specific reference to respect for the culture and other human rights of the aborigines were adopted. The IACHR was represented by one of its members, Mr. Bruce McColm.

 

          On November 11 and 12, 1985, a joint meeting of the European and Inter-American Commissions on Human Rights was held in Seville, Spain. It was followed by an international colloquium on the European Convention. Both events were attended by representatives of the IACHR, the President and the Executive Secretary, as well as its members, Ms, Russomano and Messrs. Monroy Cabra and Bruce McColm, who helped strengthen the ties of cooperation and coordination between the two regional commissions.

 

          On November 13, 1985, the Inter-American Court of Human Rights issued an advisory opinion on the interpretation of Article 13 of the Convention as regards compulsory membership of journalists in an association. The IACHR was represented by its members, Messrs. Monroy Cabra and McColm, who during their appearances expressed the majority and minority views, respectively, of the Commission, on this important issue.

 

          On December 2 and 3, 1985, an important trade union seminar organized by the ORIT and IADSL was held in Caracas, Venezuela. Subsequently, on December 4, 5 and 6, the Congress of the CLAT Workers' Confederation was held in Rio de Janeiro, Brazil. The IACHR was represented by its members, Mr. Bruce McColm and Ms. Gilda M. Russomano, respectively.

 

          In January 1986, the Executive Secretary of the IACHR, designated by the President, attended the hearings held at the headquarters of the Inter-American Court of Human Rights. These dealt with the inquiry made by the Government of Uruguay concerning the scope of the term “laws” in Article 30 of the American Convention on Human Rights, and the inquiry by the Government of Costa Rica concerning the so-called right of rectification or of “reply” in Article 14 of that Convention.

 

          The on-site observation to Haiti, which had been agreed upon with the Government for January 27 to 31, 1986, and for whose organization the attorney responsible for matters related to that country, Ms. Cerna, visited the capital as well as the cities of Gonaïves, Cap-Haïtien and Les-Cayes, December 3-15 1985, could not be made as scheduled. The demonstrations and the violence culminated in the resignation of President-for-life, Mr. Duvalier, and caused the indefinite suspension of the mission on January 14, 1986, by note of the Chargé d'affaires of the Haitian Mission to the OAS.

 

          Lastly, the Chairman, Mr. Siles, and the Executive Secretary visited Montevideo March 17-20, 1986 at the invitation of the Uruguayan President and Minister of Foreign Affairs.

 

          C.          Fourteenth special and fifteenth regular

                    sessions of the OAS General Assembly

 

          The OAS General Assembly held its fourteenth special session in Cartagena de Indias, Colombia, December 2-5, 1985. It was followed by the fifteenth regular session, December 5-9, 1985.

 

          The purpose of the fourteenth special session was to consider and approve the proposed amendments to the OAS Charter that had been submitted to it by the Permanent Council. Dr. Marco Gerardo Monroy Cabra attended the session on behalf of the Commission.

 

          The regular session, as is customary, considered the various matters related to the progress of the Organization. The Commission was represented by its Chairman, Dr. Andrés Aguilar, accompanied by the Executive Secretary, Dr. Edmundo Vargas Carreño.

 

          The President, Dr. Aguilar, was responsible for presentation of the annual report and the special reports prepared the previous year by the Commission, on Chile and Suriname, to the Committee on Political and Juridical Affairs of the General Assembly.

 

          At its fifteenth regular session, the General Assembly considered the following topics related to human rights and the Commission's activities:

 

          a) Juridical status of persons granted asylum, refugees and displaced persons in the American hemisphere.

 

          b) Condemnation of terrorist methods and practices.

 

          c) Annual report of the Inter-American Commission on Human Rights and special reports.

 

          d) Tribute to Dr. Andrés Aguilar, Chairman of the Inter-American Commission on Human Rights.

 

          e) Annual report of the Inter-American Court of Human Rights.

 

          f) Draft Additional Protocol to the American Convention on Human Rights.

 

          g) Inter-American Convention to Prevent and Punish Torture.

 

          With regard to the above-mentioned topics, the General Assembly adopted the corresponding resolutions, which are transcribed below.

 

AG/RES. 774 /XV-0/85)

 

LEGAL STATUS OF ASYLEES, REFUGEES, AND DISPLACED PERSONS

IN THE AMERICAN HEMISPHERE

 

(Resolution adopted at the third plenary session,

held on December 9, 1985)

 

         THE GENERAL ASSEMBLY,

 

         CONSIDERING:

 

         That several member states of the OAS have recognized the international protection extended to refugees under the 1951 Geneva Convention and its 1967 Protocol and have applied the fair and generous practices on asylum deriving from regional instruments on this matter;

 

         That although the number of refugees in the American region has stabilized, the extent and complexity of the problems affecting persons who in earlier years fled their countries because of armed conflict and internal unrest is still cause for concern;

 

         That in November 1983, the colloquy on the International Protection of Refugees in Central America, Mexico and Panama, sponsored by the Government of Colombia and cosponsored by the Universidad de Cartagena de Indias, the Regional Center for Third World Studies, and the United Nations High Commissioner for Refugees (UNHCR), was held in Cartagena;

 

         That the colloquy in reference adopted the Declaration of Cartagena on Refugees, the conclusions of which include recommendations that are consistent with the basic standards on refugees set forth in various international instruments and could contribute to the adoption of appropriate measures for the security and protection of this category of persons in the American region;

 

         That the positive effort the United Nations High Commissioner for Refugees has been undertaking together with the authorities in the countries offering asylum and governmental and nongovernmental organizations that are cooperating in this humanitarian task should also be pointed out; and

 

         That the effort of the General Secretariat of the OAS and the Office of the UNHCR under the cooperative program established by the two agencies in 1982 should also be commended,

 

         RESOLVES:

 

         1. To express its confidence that the countries of the region will continue to cooperate in an effective international endeavor on behalf of refugees.

 

         2. To call upon the member states to create conditions and mechanisms that will permit the voluntary repatriation of refugees in the hemisphere as a definitive solution to the distressing problem that affects them.

 

         3. To underscore the importance of the Declaration of Cartagena on Refugees and recommend to the member states that they apply that Declaration in dealing with the refugees in their territory.

 

         4. To note with satisfaction the progress of the work being carried out under the joint UNHCR/OAS program and to thank the General Secretariat for its cooperation in this effort.

 

AG/RES. 775 (XV-0/85)

 

CONDEMNATION OF TERRORIST METHODS AND PRACTICES

 

(Resolution adopted at the third plenary session,

held on December 9, 1985)

 

         THE GENERAL ASSEMBLY,

 

         Taking into account the consideration given by the United Nations General Assembly at its fortieth session to the matter of international terrorism

        

         Deeply concerned by the escalation of terrorist acts of all kinds, which endanger the lives of innocent human beings and cause the loss of lives, threaten fundamental freedoms, and seriously affront human dignity;

 

         Aware of the need to uphold and safeguard the basic rights of individuals in conformity with the pertinent international instruments on human rights; and

 

         Concerned by the fact that in recent years terrorism has taken forms that have become increasingly injurious to the international community,

 

         RESOLVES:

 

         1. To express its unequivocal support for the consideration given to the matter of international terrorism by the United Nations General Assembly at its fortieth session.

 

         2. To deplore deeply the loss of innocent human lives which results from terrorist acts.

 

         3. To condemn unequivocally as criminal all acts, methods and practices of terrorism wherever and by whoever committed, including those which jeopardize friendly relations among states and their security.

 

         4. To urge all member states to cooperate more closely with each other, especially through the exchange of relevant information concerning the prevention and combating of terrorism, apprehension and prosecution or extradition of the perpetrators of such acts, the conclusion of special treaties and/or the incorporation of special clauses into appropriate bilateral treaties, especially clauses into appropriate bilateral treaties, especially clauses on the extradition or prosecution of terrorists.

 

         5. To transmit this resolution to the President of the United Nations General Assembly and the Secretary General of that organization so that the position of the American States may be duly noted.

 

AG/RES. 778 (XV-0/85)

 

ANNUAL REPORT OF THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS

AND SPECIAL REPORTS

 

(Resolution adopted at the third plenary session,

held on December 9, 1985)

 

         THE GENERAL ASSEMBLY,

 

         HAVING SEEN the annual report of the Inter-American Commission on Human Rights (AG/doc.1918/85), the special reports on the human rights situation in Chile (AG/doc.1919/85) and in Suriname (AG/doc.1920/85), and the observations and replies of governments; and

 

         CONSIDERING:

 

         That the member states of the Organization of American States have proclaimed in its Charter that respect for the fundamental rights of the individual, without distinction as to race, nationality, creed, or sex, is one of the principles of the Organization; and

 

         That the paramount function of the Inter-American Commission on Human Rights is to promote the observance and defense of human rights, a noble undertaking in which all the states in the region and the organs and agencies of the inter-American system should cooperate,

 

         RESOLVES:

 

         1. To note with interest the annual report and the recommendations of the Inter-American Commission on Human Rights and to thank and commend it for its thorough and important work in the field of protection and promotion of human rights.

 

         2. To urge the governments of the states mentioned in the annual report to follow the pertinent recommendations of the Commission, in accordance with their constitutional precepts and domestic laws, in order to ensure the faithful observance of the human rights enshrined in the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights.

 

         3. To take note of the report on the human rights situation in Suriname, the modest progress made, as stated in the report itself, and the conclusions of the Inter-American Commission on Human Rights, and to urge the government of that country to follow the pertinent recommendations of the Commission.

 

         4. To take note of the comments and observations of the governments of the member states and of the information on the measures they have taken and will continue to take for the purpose of guaranteeing human rights in their countries.

 

         5. To recommend to those member states that have yet to do so that they reestablish and perfect one system of representative democracy resulting from free elections and universal suffrage and the secret ballot. Without prejudice to the foregoing, the characteristics and circumstances peculiar to each country will be taken into account, the laws of each will be respected and, in any event, all citizens will be given access to the mass communication media and will enjoy all the other guarantees required to ensure that the results of the election represent the popular will.

 

         6. To note with satisfaction the recent elections held in Guatemala and the contents of Chapter II of the annual report of the Inter-American Commission on Human Rights concerning facilities extended by the government during the on-site visit and the commitment to refrain from reprisals against individuals and institutions presenting complaints or testimony; to thank the authorities and the people of Guatemala generally for their cooperation and hospitality; and to express the hope for prompt consolidation of democracy in that country that will guarantee full respect for human rights.

 

         7. To express its pleasure with the measures adopted by the governments of Argentina and Uruguay which highlight their strong inclination to strengthen the rule of law and the democratic rule of government so as to consolidate systems that will ensure full respect for human rights, as set forth in Chapter IV of the report of the Inter-American Commission on Human Rights.

 

         8. To express its satisfaction with the measures adopted by the Government of Peru on July 1985, to guarantee full respect for human rights and basic freedoms and to consolidate the rule of law and democracy within its territory.

 

         9. To express its satisfaction with the process under way in Honduras to strengthen the democratic rule of government that will ensure the full exercise of human rights.

 

         10. To express further its pleasure with the deposit by Uruguay of its instrument of ratification of the American Convention on Human Rights.

 

         11. To invite the governments of the member states to present to the Inter-American Commission on Human Rights, by June 30, 1986, proposals on the contents of an Additional Protocol to the American Convention on Human Rights pertaining to economic, social, and cultural rights, especially with regard to definition of the rights protected and the institutional mechanisms that should be established in order to ensure their adequate protection, so that the Commission may submit the draft Additional Protocol on that subject to a forthcoming session of the General Assembly.

 

         12. To urge the member states to extend support and, insofar as possible, to implement the conclusions and recommendations of the Declaration of Cartagena on Refugees, adopted on November 22, 1984, by the Colloquy on the International Protection of Refugees in Central America, Mexico, and Panama.

 

         13. To recommend that the member states take effective measures to ensure the strengthening and independence of the judicial branch.

 

         14. To reiterate to the member states the recommendation that they incorporate in their official study programs, for both primary and secondary schools, the teaching of human rights as defined in the respective constitutions and in the corresponding international instruments.

 

AG/RES. 779 /XV-0/85)

 

TRIBUTE TO DR. ANDRÉS AGUILAR, CHAIRMAN OF

THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS

 

(Resolution adopted at the third plenary session,

held on December 9, 1985)

 

         THE GENERAL ASSEMBLY,

 

         CONSIDERING:

 

         That Dr. Andrés Aguilar, the distinguished Venezuelan jurist and current Chairman of the Inter-American Commission on Human Rights, will complete his term of office as a member of that Commission on December 31, 1985; and

 

         That in the nearly fourteen years during which he has been a member of the Commission and on the several occasions during that period on which he served as its Chairman, the performance of Dr. Andrés Aguilar in protecting and promoting human rights in the hemisphere has been outstanding,

 

         RESOLVES:

 

         To express its deep appreciation to Dr. Andrés Aguilar for the significant contribution he has made to the defense of human rights in the Americas.

 

AG/RES. 780 (XV-0/85)

 

ANNUAL REPORT OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS

 

(Resolution adopted at the third plenary session,

held on December 9, 1985)

 

         THE GENERAL ASSEMBLY,

 

         HAVING SEEN the annual report of the Inter-American Court of Human Rights (AG/doc.1921/85); and

 

         CONSIDERING:

 

         That the Charter of the Organization of American States proclaims the existence of the fundamental rights of the individual and the need to safeguard them and provides for holding a special convention on the matter;

 

         That the American Convention on Human Rights concluded pursuant to that provision of the Charter created the Inter-American Court of Human Rights as one of the organs of the regional system responsible for guaranteeing the protection of human rights in the American States;

 

         That the Protocol of Amendment adopted in Cartagena de Indias by the fourteenth special session of the General Assembly reconfirms the existence of human rights and the need to safeguard them as a cornerstone of the inter-American system;

 

         That nineteen member states of the Organization have ratified or acceded to the Convention;

 

         That in the course of this year, two countries—Uruguay and Colombia—have accepted the Court's compulsory jurisdiction (Article 62.1 of the Convention), thus raising to eight the number of states that have now done so;

 

         That the system established for the effective protection of human rights in the hemisphere is able to function fully only with the participation of the two organs created for that purpose: the Commission and the Court;

 

         That full development of the inter-American system to protect human rights requires more complete use of the overall authority of the bodies responsible for securing that use, and that the Court is called upon to fulfill specific functions in individual cases involving interpretation or application of the American Convention on Human Rights;

 

         That all member states and organs of the OAS have access to the consultative services of the Court and in the exercise of its advisory function the Court has built up a doctrine which develops and gives more concrete content to the Convention; and

 

         That the procedural rules of the Court allow all member states of the OAS to set forth their points of view with respect to the advisory opinions requested of the Court, which has opened an important new avenue for regional participation in the development of the body of legal doctrine of the inter-American system in the field of human rights,

 

         RESOLVES:

 

         1. To express the appreciation of the Organization for the work performed by the Inter-American Court of Human Rights, as reflected in its annual report.

 

         2. To urge the member states of the OAS which have not yet done so to ratify or accede to the American Convention on Human Rights.

 

         3. To express its hope that all of the states which are parties to the American Convention on Human Rights will acknowledge the Court's compulsory jurisdiction.

 

         4. To urge the member states of the Organization and the organs listed in Chapter X of the Charter, especially the Inter-American Commission on Human Rights, to make full use of the Court's competence to the extent they are empowered to do so by the Pact of San José, particularly with reference to hearing and deciding cases involving interpretation and application of the Convention.

 

         5. To urge the member states of the Organization to make use to the best of their ability of the authority accorded to them in the procedural rules of the Court, by presenting their views on the advisory opinions requested of the Court.

 

AG/RES. 781 (XV-0/85)

 

DRAFT ADDITIONAL PROTOCOL TO THE AMERICAN CONVENTION ON HUMAN

RIGHTS (PACT OF SAN JOSÉ)

 

(Resolution adopted at the third plenary session,

held on December 9, 1985)

 

         THE GENERAL ASSEMBLY,

 

         HAVING SEEN the report of the Permanent Council on proposals concerning the draft Additional Protocol to the American Convention on Human Rights (AG/doc.1956/85); and

 

         CONSIDERING:

 

         That at its fourteenth regular session, the General Assembly, through resolution AG/RES. 742 (XIV-0/84), invited the member states and other interested organs and entities to present specific proposals on the content of the draft Additional Protocol to the American Convention on Human Rights as regards economic, social, and cultural rights, especially as regards definition of the rights subject to protection and the institutional mechanisms that should be created to ensure their adequate protection; and

 

         Thus far, only the Governments of Ecuador and Venezuela and the Inter-American Court of Human Rights have presented proposals on the content of that draft Protocol,

 

         RESOLVES:

 

         1. To renew the invitation to the member states and interested organs and agencies to present to the Permanent Council the proposals referred to in the first paragraph of the preamble within six months of the date on which this resolution is adopted.

 

         2. To request the Permanent Council to report to the General Assembly on the findings of its study, with any recommendations it might deem pertinent.

 

AG/RES. 783 (XV-0/85)

 

INTER-AMERICAN CONVENTION TO PREVENT AND PUNISH TORTURE

 

(Resolution adopted at the third plenary session,

held on December 9, 1985)

 

         THE GENERAL ASSEMBLY,

 

         CONSIDERING:

 

         That at its eighth regular session the General Assembly requested the Inter-American Juridical Committee to prepare, in cooperation with the Inter-American Commission on Human Rights, a draft convention defining torture as an international crime [AG/RES. 368 (VIII-0/78)];

 

         That in pursuance of that mandate, the Inter-American Juridical Committee, in coordination with the Inter-American Commission on Human Rights, prepared a draft convention on the matter in 1980 and transmitted it to the Permanent Council;

 

         That the Permanent Council forwarded the draft to the General Assembly, which, at its tenth regular session, adopted resolution AG/RES. 509 (X-0/80), by whose operative paragraph 2 provides as follows:

 

To forward that draft with its statement of reasons and the explanation of votes given by the members of the Committee to the governments of the member states for their consideration, so that they may formulate their observations and comments and send them to the Permanent Council before April 30, 1981, so that the Council may introduce the appropriate amendments in the draft Convention and submit it to the next regular session of the General Assembly.

 

         That after receiving the observations and comments of the governments of several member states, the Permanent Council, through its Committee on Juridical and Political Affairs, undertook the study of the draft convention prepared by the Inter-American Juridical Committee and reported periodically to the General Assembly on the progress of the work related to the matter;

 

         That the General Assembly repeatedly extended the mandate of the Permanent Council for the continued study of the draft convention [AG/RES. 547 /XI-0/81), AG/RES. 624 /XII-0/82) and AG/RES. 664 (XIII-0/83)];

 

         That at its fourteenth regular session the General Assembly expressed the need for considering the draft convention on the subject that had been prepared by the Inter-American Juridical Committee and revised by the Permanent Council and adopting an inter-American convention on the subject [AG/RES. 736 (XIV-0/84)];

 

         That the Permanent Council submitted a further report on the study of this important topic (AG/doc.1962/85) to the General Assembly at its fifteenth regular session; and

 

         That during this regular session the draft contained in the report of the report of the Permanent Council referred to in the preceding paragraph was considered and it was agreed to adopt a convention designed to prevent and punish torture,

 

         RESOLVES:

 

         1. To adopt the following Inter-American Convention to Prevent and Punish Torture:

 

                                       INTER-AMERICAN CONVENTION TO PREVENT

AND PUNISH TORTURE

 

The American States signatory to the present Convention,

 

Aware of the provisions of the American Convention on Human Rights that no one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment;

 

Reaffirming that all acts of torture or any other cruel, inhuman, or degrading treatment or punishment constitute an offense against human dignity and a denial of the principles set forth in the Charter of the Organization of American States and in the Charter of the United Nations and are violations of the fundamental human rights and freedoms proclaimed in the American Declaration of the Rights and Duties of Man and the Universal Declaration of Human Rights;

 

Noting that, in order for the pertinent rules contained in the aforementioned global and regional instruments to take effect, it is necessary to draft an Inter-American Convention that prevents and punishes torture;

 

Reaffirming their purpose of consolidating in this hemisphere the conditions that allow for recognition of and respect for the inherent dignity of man, and ensure the full exercise of his fundamental rights and freedoms,

 

Have agreed upon the following:

 

Article 1

 

The States Parties shall prevent and punish torture in accordance with the terms of this Convention.

 

Article 2

 

For the purposes of this Convention, torture shall be understood to be any act intentionally performed whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty, or for any other purpose. Torture shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical of mental capacities, even if they do not cause physical pain or mental anguish.

 

The concept of torture shall not include physical or mental pain or suffering that is inherent in or solely the consequence of lawful measures, provided that they do not include the performance of the acts or use of the methods referred to in this article.

 

Article 3

 

The following shall be held guilty of the crime of torture:

 

a. A public servant or employee who acting in that capacity orders, instigates or induces the use of torture, or who directly commits it or who, being able to prevent it, fails to do so.

 

b. A person who at the instigation of a public servant or employee mentioned in subparagraph (a) orders, instigates or induces the use of torture, directly commits it or is an accomplice thereto.

 

Article 4

 

The fact of having acted under orders of a superior shall not provide exemption from the corresponding criminal liability.

 

Article 5

 

The existence of circumstances such as a state of war, threat of war, state of siege or of emergency, domestic disturbance or strife, suspension of constitutional guarantees, domestic political instability, or other public emergencies or disasters shall not be invoked or admitted as justification for the crime of torture.

 

Neither the dangerous character of the detainee or prisoner, nor the lack of security of the prison establishment or penitentiary shall justify torture.

 

Article 6

 

In accordance with the terms of Article 1, the States Parties shall take effective measures to prevent and punish torture within their jurisdiction.

 

The States Parties shall ensure that all acts of torture and attempts to commit torture are offenses under their criminal law and shall make such acts punishable by severe penalties that take into account their serious nature.

 

The States Parties likewise shall take effective measures to prevent and punish other cruel, inhuman, or degrading treatment or punishment within their jurisdiction.

 

Article 7

 

The States Parties shall take measures so that, in the training of police officers and other public officials responsible for the custody of persons temporarily or definitively deprived of their freedom, special emphasis shall be put on the prohibition of the use of torture in interrogation, detention, or arrest.

 

The States Parties likewise shall take similar measures to prevent other cruel, inhuman, or degrading treatment or punishment.

 

Article 8

 

The States Parties shall guarantee that any person making an accusation of having been subjected to torture within their jurisdiction shall have the right to an impartial examination of his case.

 

Likewise, if there is an accusation or well-grounded reason to believe that an act of torture has been committed within their jurisdiction, the States Parties shall guarantee that their respective authorities will proceed ex officio and immediately to conduct an investigation into the case and to initiate, whenever appropriate, the corresponding criminal process.

 

After all the domestic legal procedures of the respective State and the corresponding appeals have been exhausted, the case may be submitted to the international for a whose competence has been recognized by that State.

 

Article 9

 

The States Parties undertake to incorporate into their national laws regulations guaranteeing adequate compensation for victims of torture.

 

None of the provisions of this article shall affect the right to receive compensation that the victim or other persons may have by virtue of existing national legislation.

 

Article 10

No statement that is verified as having been obtained through torture shall be admissible as evidence in a legal proceeding, except in a legal action taken against a person or persons accused of having elicited it through acts of torture, and only as evidence that the accused obtained such statement by such means.

Article 11

The States Parties shall take the necessary steps to extradite anyone accused of having committed the crime of torture or sentenced for commission of that crime, in accordance with their respective national laws on extradition and their international commitments on this matter.

Article 12

Every State Party shall take the necessary measures to establish its jurisdiction over the crime described in this Convention in the following cases:

a. When torture has been committed within its jurisdiction;

b. When the alleged criminal is a national of that State; or

c. When the victim is a national of that State and it so deems appropriate.

Every State Party shall also take the necessary measures to establish its jurisdiction over the crime described in this Convention when the alleged criminal is within the area under its jurisdiction and it does not proceed to extradite him in accordance with Article 11.

 

This Convention does not exclude criminal jurisdiction exercised in accordance with domestic law.

 

Article 13

 

The crime referred to in Article 2 shall be deemed to be included among the extraditable crimes in every extradition treaty entered into between States Parties. The States Parties undertake to include the crime of torture as an extraditable offence in every extradition treaty to be concluded between them.

 

Every State Party that makes extradition conditional on the existence of a treaty may, if it receives a request for extradition from another State Party with which it has no extradition treaty, consider this Convention as the legal basis for extradition in respect of the crime of torture. Extradition shall be subject to the other conditions that may be required by the law of the requested State.

 

States Parties which do not make extradition conditional on the existence of a treaty shall recognize such crimes as extraditable offences between themselves, subject to the conditions required by the law of the requested State.

 

Extradition shall not be granted nor shall the person sought be returned when there are grounds to believe that his life is in danger, that he will be subjected to torture or to cruel, inhuman or degrading treatment, or that he will be tried by special or ad hoc courts in the requesting State.

 

Article 14

 

When a State Party does not grant the extradition, the case shall be submitted to its competent authorities as if the crime had been committed within its jurisdiction, for the purposes of investigation, and when appropriate, for criminal action, in accordance with its national law. Any decision adopted by these authorities shall be communicated to the State that has requested the extradition.

 

Article 15

 

No provision of this Convention may be interpreted as limiting the right of asylum, when appropriate, nor as altering the obligations of the States Parties in the matter of extradition.

 

Article 16

 

This Convention shall not affect the provisions of the American Convention on Human Rights, other conventions on the subject, or the Statutes of the Inter-American Commission on Human Rights, with respect to the crime of torture.

 

Article 17

 

The States Parties shall inform the Inter-American Commission on Human Rights of any legislative, judicial, administrative, or other measures they adopt in application of this Convention.

 

In keeping with its duties and responsibilities, the Inter-American Commission on Human Rights will endeavor in its annual report to analyze the existing situation in the member states of the Organization of American States in regard to the prevention and elimination of torture.

 

Article 18

This Convention is open to signature by the member states of the Organization of American States.

 

Article 19

 

This Convention is subject to ratification. The instruments of ratification shall be deposited with the General Secretariat of the Organization of American States.

 

          Article 20

 

This Convention is open to accession by any other American state. The instruments of accession shall be deposited with the General Secretariat of the Organization of American States.

 

Article 21

 

The States Parties may, at the time of approval, signature, ratification, or accession, make reservations to this Convention, provided that such reservations are not incompatible with the object and purpose of the Convention and concern one or more specific provisions.

 

Article 22

 

This Convention shall enter into force on the thirtieth day following the date on which the second instrument of ratification is deposited. For each State ratifying or acceding to the Convention after the second instrument of ratification has been deposited, the Convention shall enter into force on the thirtieth day following the date on which that State deposits its instrument of ratification or accession.

 

Article 23

 

This Convention shall remain in force indefinitely, but may be denounced by any State Party. The instrument of denunciation shall be deposited with the General Secretariat of the Organization of American States. After one year from the date of deposit of the instrument of denunciation, this Convention shall cease to be in effect for the denouncing State but shall remain in force for the remaining States Parties.

 

Article 24

 

The original instrument of this Convention, the English, French, Portuguese, and Spanish texts of which are equally authentic, shall be deposited with the General Secretariat of the Organization of American States, which shall send a certified copy to the Secretariat of the United Nations for registration and publication, in accordance with the provisions of Article 102 of the United Nations Charter. The General Secretariat of the Organization of American States shall notify the member states of the Organization and the States that have acceded to the Convention of signatures and of deposits of instruments of ratification, accession, and denunciation, as well as reservations, if any.

 

         2. To remind the member states that, under the terms of Article 18 of the above Convention, it is open to signature by the member states of the Organization of American States.

 

         3. To invite the governments of the member states to sign the Inter-American Convention to Prevent and Punish Torture during this fifteenth regular session of the General Assembly.

 

          D.          Sixty-Seventh session

 

          The sixty-seventh session of the IACHR was held April 8-18, 1986, and was attended by all the Commission's members.

 

          At that session, the three new members elected in December by the OAS General Assembly in Cartagena de Indias, Colombia, assumed their posts. They were Ms. Elsa Kelly (Argentina), and Messrs. Oliver Jackman (Barbados) and Marco Tulio Bruni Celli (Venezuela). They succeeded the three members that had left their posts: Messrs. Andrés Aguilar (Venezuela), César Sepúlveda (México) and Luis Demetrio Tinoco Castro (Costa Rica).

 

          At the beginning of the session, the following new officers were elected: Luis Adolfo Siles Salinas, Chairman; Gilda Russomano, First Vice Chairman; and Marco Tulio Bruni Celli, Second Vice Chairman.

 

          The Commission also paid posthumous tribute to Dr. Luis Demetrio Tinoco Castro, who had died after a long and difficult illness in his native country of Costa Rica on March 24, 1986. He had been a dedicated fighter for the cause of human rights and for the last seven years had been a member of the IACHR, where he served as Vice Chairman on several occasions and also as acting Chairman.

 

          One of the main activities during this period was consideration and approval of the format and guidelines that are to be followed in preparation of the annual report that will be subject to final approval at its next meeting for submission to the sixteenth regular session of the OAS General Assembly.

 

          At that time, the Commission also gave final approval to its report on the status of human rights in Guatemala for the period between August 8, when General Oscar Mejía Víctores assumed the presidency, until October 3, 1985, which is the date of the report in reference. The report was forwarded to the Government of Guatemala together with a copy of the resolution approving it, and it was made public on April 30, 1986.

 

          At that time the Commission also considered the status of human rights in other OAS member countries. At this session, special attention was paid to the following countries: Chile, El Salvador, Haiti, Honduras, Nicaragua, Paraguay and the United States.

 

          It also continued observing its close monitoring of the status of human rights in the Central American region, and manifested its support for the Contadora Group and the Support Group with regard to the efforts both are making towards a political solution, democratization and respect for human rights in this.

 

          Lastly, at its final sessions, the Commission was pleased to welcome Professor Thomas Buergenthal, President of the Inter-American Court of Human Rights, with whom it engaged in an interesting exchange of opinions that doubtless will make it possible to achieve closer coordination and more effective cooperation between the two organs for protection of human rights established by the 1969 Pact of San Jose, Costa Rica. In this regard, it is worthy of special mention that among the resolutions that were adopted by the IACHR during this session, four were approved (one on Costa Rica and three on Honduras) which may involve the submission and decision of these cases by the Inter-American Court of Human Rights.

 

          As usual, at the two above mentioned sessions, the IACHR considered, in accordance with its statutes and regulations, several denunciations and numerous cases of alleged violations of human rights in the OAS member states. It adopted the pertinent resolutions with regard to these and various administrative matters related to the promotion of human rights; and meetings were held with the individuals and representatives of institutions that so requested at the appropriate time.

 

          E.          Activities carried out after the 67th session

 

          The Chairman and the Executive Secretary represented the Commission at a seminar on Human rights held in La Paz, Bolivia, May 19-30, to which they were invited by the United Nations. The main topic of the seminar, the first one that has been organized in accordance with resolution 1985/26 of the United Nations Commission on Human Rights, dealt with the protection of such rights and the most relevant experiences of the international organizations. The Executive Secretary, Mr. Vargas Carreño, spoke on the protection of those rights in the inter-American system.

 

          From June 1 through 7, 1986 and with the corresponding permission from the Government of Honduras, attorney Luis F. Jiménez went to the country to study the situation that had provoked the arrival of new Miskito refugees from Nicaragua. The proposed trip by Mr. Jiménez to Nicaragua could not take place because prior authorization to visit that country was not granted by the Nicaraguan authorities.

 

          F.          On site visit to El Salvador

 

          At its 67th session in April 1986, the Commission decided to ask the Government of El Salvador for its consent to a visit by a Special Commission that would hold discussions with the Salvadoran authorities and work out with them a procedure for resolving a set of cases on which the Government had neither responded nor provided information, and to conduct an investigation. The Commission also decided that it would at that time investigate Case 9621, in which political prisoners alleged certain violations, including mistreatment and torture prior to their being imprisoned in the La Esperanza prison, Cantón de Mariona (men) and the Ilopango prison (women).

 

          Following that decision, the Chairman met with the Ambassador of El Salvador to the OAS, His Excellency Pablo Mauricio Alvergue, on April 15, 1986 and delivered the note requesting the Government of El Salvador's consent. On June 30, the Government agreed to the visit, which took place August 10-16, 1986. The Special Commission of the IACHR consisted of the Chairman, Luis Adolfo Siles and the Vice Chairman, Marco Tulio Bruni Celli, who were accompanied by Manuel Velasco Clark and Luis Jiménez, attorneys of the Executive Secretariat, and Dafne Murgia and Olga Troncoso, of the Secretariat staff.

 

          During its stay in El Salvador, the Commission met with the President of El Salvador, the President of the Legislative Assembly, the President of the Supreme Court, the Ministers of Foreign Affairs, Justice and the Interior, the Head of the Joint Chiefs of Staff, the Deputy Ministers of Defense and Public Safety and the Heads of the National Police, the National Guard and the Treasury Police, the Salvadoran Law Review Commission, the representative of the International Red Cross, the Auxiliary Bishop of San Salvador, Monsignor Gregorio Rosa Cháves, the Rector of the Central American University (UCA), the Director of the Human Rights Institute of UCA, the Director of the Government Human Rights Commission of El Salvador, the Worker-Peasant National Union, the Committee of Mothers and Disappeared Political Prisoners, the representatives of Legal Aid and Legal Defense, and other civilian and military authorities. The Commission also met with and heard the testimony of hundreds of political prisoners held in the Ilopango women's prison and the Mariona men's prison in San Salvador.

 

          As a result of its visit, the Commission received the assurances from the Government of El Salvador that the cases in which information is lacking will be investigated and a response will be forthcoming; future requests for information by the IACHR will be given preferential treatment, and the investigation of Case 9621 on the condition of political prisoners in El Salvador that has just been opened will continue, with the cooperation of the Salvadoran authorities and with periodic visits of the professional staff of the IACHR Secretariat.

 

          G.          Joint Meeting with the Inter-American Court of Human Rights

 

          September 16 and 17, 1986 at the Carter Center in Atlanta, Georgia, the Members of the Commission held a meeting with the judges of the Inter-American Court of Human Rights, assisted by the Executive Secretary of the Commission, the Secretary of the Court and staff members of the Secretariat of both bodies.

 

          During the meeting, aspects relative to the contentious and the advisory jurisdiction of the Court were discussed, as well as the participation of the Inter-American Commission on Human Rights in both situations. Also, various aspects relative to the inter-American system for the protection and promotion of human rights were considered.

 

          The meeting provided an excellent opportunity to further strengthen the cooperation and coordination between the two organs provided for in the Pact of San Jose of Costa Rica for the defense of human rights in the Americas.

 

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