CITIZEN SECURITY AND HUMAN RIGHTS

...Continuation

E.         Right to privacy and to have one’s honor respected and dignity recognized

169.          This right is recognized in Articles V, IX and X of the American Declaration and Article 11 of the American Convention:

American Declaration - Article V.  Every person has the right to the protection of the law against abusive attacks upon his honor, his reputation, and his private and family life.  Article IX.  Every person has the right to the inviolability of his home.  Article X.  Every person has the right to the inviolability and transmission of his correspondence.

American Convention - Article 11(1) Everyone has the right to have his honor respected and his dignity recognized. 2.  No one may be the object of arbitrary or abusive interference with his private life, his family, his home, or his correspondence, or of unlawful attacks on his honor or reputation. 3.  Everyone has the right to the protection of the law against such interference or attacks.

This right is also recognized in other instruments of international human rights law such as the Article 12 of the Universal Declaration,[227] Article 17 of the International Covenant on Civil and Political Rights,[228] and Article 16 of the Convention on the Rights of the Child.[229]

170.          These rights are involved in different types of situations, which in turn may involve varying degrees of responsibility on the part of the member states as to their negative and positive obligations in carrying out their public policies on citizen security.  One of the priority issues for the Commission concerns police procedures where bodily searches have to be conducted on detained persons; on persons who visit next of kin or loved ones being held in police cells, prisons, or other incarceration facilities; or as part of the general security protocols established to prevent certain acts of violence or criminal acts.  In many countries of the region, these procedures have been a constant occasion for abuse and violations of the dignity of those persons who have to subject themselves to searches of this kind, particularly in the case of women, children and adolescents.

171.          Bodily searches are part of the basic procedure that State law enforcement must perform to fulfill its institutional obligations.  The life and physical integrity of third persons, the security personnel, and even the person being searched often depend upon whether a bodily search is properly executed.  Nevertheless, the Commission notes that the procedures for bodily searches must be regulated by law, and spell out the administrative and criminal liability that those members of the security forces who violate the laws on bodily searches will incur.  Law enforcement personnel must be given specific and ongoing training in how these procedures are to be performed; the member states, for their part, must constantly update the equipment and technical resources available so that this type of search can be conducted in the least invasive manner possible.

172.          As a general rule, the domestic laws of the member states should reserve the practice of bodily searches for those situations in which they are strictly necessary to comply with the safety measures needed to guarantee the security and safety of any person involved in a police procedure.  The personnel charged with performing bodily searches are to take the necessary measures to avoid any situation that might violate the right to privacy or the dignity of the person being searched.  Whenever a police officer has well-founded reasons to suspect that, in the interests of safety, the individual undergoing the bodily search should be required to undress, he or she will have to get the corresponding court order first, and then perform the bodily search in the presence of a health professional.

173.          As for searches of packages, handbags, suitcases and similar articles that a person carries with him, and searches of various individual and collective modes of transportation, the Commission observes that the domestic laws of the States must establish clear and routine procedures that will avoid any type of abuse or discriminatory treatment by the agents of the institution in charge of conducting such searches.  Searches of articles that one carries on one’s persons should ideally be done in private, taking the utmost care not to violate the person’s dignity, honor or privacy.  No form of corruption by anyone involved in these procedures should undermine them, as the absence of corruption will ensure the transparency and lawfulness of the actions being taken by the competent authorities.  Persons who have been subjected to these procedures should have readily available to them rapid and simple means of filing a complaint against any irregularity or abuse of authority.

174.          As has been said repeatedly in this report, when executing those actions contemplated in their public policies on citizen security that are designed to prevent and, where necessary, lawfully suppress acts of violence or crime, member states may order measures that restrict or curtail the exercise of certain rights, provided those limitations or restrictions are exclusively in answer to the “just demands of a democratic society, which takes account of the need to balance the competing interests involved and the need to preserve the object and purpose of the Convention.”[230]  And as previously mentioned in this report, citing the standards established by the Court in this regard, any restriction or limit on the exercise of a right must be established by law, in the formal and material sense.[231] In the case of the inviolability of correspondence or of communications in the broader sense, the Court has held that the private sphere is immune to abusive or arbitrary encroachments or attacks by third parties or the public authorities.  Although telephone conversations are not expressly mentioned in Article 11 of the Convention, it is a mode of communication that, like correspondence, is within the realm of those things protected by the right to a private life.[232]  The Court has also ruled that Article 11 prohibits any arbitrary or abusive interference in the private life of persons, and specifies a number of realms of privacy, such as the private life of the family, domicile and correspondence.

175.          The foregoing notwithstanding, the Commission deems it reasonable for States to be able to enact domestic norms that, in certain exceptional circumstances and taking account of the standards enunciated above, may limit or restrict the exercise of this right.  Specifically, in the case of actions that the public authorities take to prevent and pursue criminal acts, especially those associated with organized or complex crime, the possibility of intercepting communications is often a vital tool enabling police or judicial investigations to produce results.  Today’s globalization of communications and the ways in which criminal organizations can avail themselves of those communications, requires that the States constantly modernize their technological resources so as to be able to properly discharge their duty of ensuring respect for the rights at stake in the area of citizen security.  Nevertheless, and in order to prevent restrictions or limitations that violate the obligations that the States have undertaken in international human rights law, certain criteria must be followed when establishing said limitations or restrictions.  First, any restriction or limitation must be justified by the need to protect the human rights of third parties and the general welfare in a democratic society; second, and as previously observed, they must be established by law, in both the formal and material sense; third, they must be constantly subject to the authority of the competent court, which will decide whether or not to order them, keep them in place, or lift them.

176.          Interventions by the state security forces in the Hemisphere have all too often resulted in violations of the right to the inviolability of the home, especially in the more socially or economically disadvantaged sectors of the population or those historically subjected to discriminatory treatment because of their ethnicity or race.  Concerning the effect that illegal raids or forcible entries have on the right to the inviolability of the home, the Commission has argued that

[t]his right, in addition to operating as a guarantee of the right to privacy, guarantees due process insofar as it establishes a legal limit on the collection of evidence that incriminates an individual accused of a crime.  If a home is to be searched in violation of the appropriate constitutional procedures, that guarantee keeps the evidence obtained from being considered in a subsequent judicial decision.  In this way, in practice it operates like a rule to exclude illegally obtained evidence.[233]

Therefore, the Commission deems that member states not only have an obligation to enact domestic laws to clearly regulate the limits of what the police forces can do in this area, but also to properly train the members of the police force to equip them with the knowledge and the practical tools they need to conduct investigative procedures and curb violence and crime without unlawfully infringing upon the personal and family privacy and integrity of the individuals who live in a household.

177.          However, the guarantee of the inviolability of the domicile and of private papers must give way when there is a well-substantiated search warrant issued by a competent judicial authority, spelling out the reasons for the measure being adopted and specifying the place to be searched and the objects that will be seized. The Court has singled out other elements that are essential in determining the lawfulness of a measure that restricts or limits the exercise of this right.  It provided that

[t]he right to a private life is not an absolute and hence can be restricted by States provided the intrusions are neither abusive nor arbitrary; they must be allowed by law, seek a lawful end and satisfy the requirements of appropriateness, necessity and proportionality; in other words, they must be necessary in a democratic society.[234]  

These criteria should be taken as the minimum standards that member states must observe when establishing their domestic laws and ordering the police operations necessary to develop the plans and programs contained in their policies on citizen security, so as to properly guarantee and respect the human rights directly threatened by violence and crime.

178.          In this sense, the Commission shares the position of the Office of the United Nations High Commissioner for Human Rights, which expressly underscored the fact that the practice of household raids and searches ordered by administrative authorities is utterly incompatible with international human rights law, since the rule in such cases is that the order must be issued by the competent judicial authority.  In exceptional cases, “and in keeping with the provisions of Article 17 of the International Covenant on Civil and Political Rights and Article 11 of the American Convention on Human Rights, where a crime is suspected, the authorities may intrude into a place protected by the principle of the inviolability of the home, without a court order, only when a punishable offense is in the process of being committed or about to be committed.  If neither of these circumstances obtains, the extrajudicial raid constitutes an arbitrary interference or intrusion prohibited in one of those instruments.”[235]

179.          It is necessary that the domestic laws of the member states draw a clear distinction between the concept of forcible entry and detainer, and forcible entry for purposes of a search or raid.  The Office of the United Nations High Commissioner for Human Rights defines forcible entry and detainer (for which a court order is not always required, as it may be a case of in flagrante delicto) as a measure that “seeks to take into custody persons for whom an arrest warrant has been issued, or persons who took refuge in home while being pursued by the authorities after being caught in the commission of a crime, or persons who are committing a punishable offense inside that home.”[236]  On the other hand, forcible entry for purposes of a search or raid (which will always require a court order issued in the course of a criminal investigation) is done to search the house or dwelling in order to find objects that might be evidence of a crime.[237]

180.          In conclusion, for the Commission, the measures that member states may employ under international law to prevent and, where necessary, lawfully suppress criminal acts, forcible entry without a court order is only possible under the following circumstances: “(1) To arrest an individual caught in flagrante (or caught and identified at the scene) who, while being pursued by law-enforcement authorities, took refuge in a home, either his own or someone else’s; (2) To stop the commission of a crime in progress in a place not open to the public.  International law is not being violated, of course, when in certain exceptional cases, clearly spelled out in police rules and regulations, forcible entries are done without a court order when dictated by extreme necessity having nothing to do with criminal law or crime (for example, to put out a fire or to rescue people from flooded homes).”[238]  These criteria must be clearly spelled out in the member states’ domestic laws, so that law enforcement agencies have a well-defined framework of action that averts irregular procedures that result in violations of the right to privacy, specifically the right to the inviolability of the home.[239]

181.          In the exceptional circumstances described above, law enforcement agents that conduct forcible entries or raids without a court order must immediately inform the competent judge of the action they have taken.  Furthermore, the rules and regulations governing police conduct in the member states should include disciplinary systems and administrative sanctions for those cases in which the police officers who took these actions abused their authority, notwithstanding any criminal consequences that such conduct may have for those responsible.

F.         Right to freedom of expression

182.          The right to freedom of expression is protected under Article IV of the American Declaration and Article 13 of the American Convention:

American Declaration - Article IV.  Every person has the right to freedom of investigation, of opinion, and of the expression and dissemination of ideas, by any medium whatsoever.

American Convention, Article 13 - 1.  Everyone has the right to freedom of thought and expression.  This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice. 2.  The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure: a. respect for the rights or reputations of others; or b. the protection of national security, public order, or public health or morals. 3.  The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions. 4.  Notwithstanding the provisions of paragraph 2 above, public entertainments may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence. 5.  Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be considered as offenses punishable by law.

The right to freedom of expression is also protected under Article 19 of the Universal Declaration of Human Rights,[240] Article 19 of the International Covenant on Civil and Political Rights,[241] and Article 13 of the Convention on the Rights of the Child.[242]

183.          When designing, implementing and –most especially- evaluating the public policy on citizen security described in this report, the authorities of the State must produce, organize and disseminate information.  Reliable information available to the public, social organizations, academia and the media is part of the foundation that must be laid down to build a new, intrinsically democratic model of citizen security whose fundamental objective is to protect and ensure the human rights of the entire population.  Without reliable indicators based on technical elements that are widely disseminated and easy for the various sectors of society to understand, public opinion will be easy to manipulate.  This is the modus operandi for some sectors of government, that hide or misrepresent vital information on relevant aspects of citizen security; it is also a technique used by certain political interest groups or sectors of public opinion who take advantage of the lack of objective information to heighten the sense of insecurity among the public and thus further promote repressive models that foster intolerance, stigmatization, greater exclusion, or the disintegration of societies within the region.  The production and dissemination of reliable information on the policy of citizen security is one of the State’s positive obligations in order to protect and ensure the human rights at stake in the matter of citizen security.

184.          Citizen participation cannot be fostered without access to good information; by extension, without that citizen participation, democracy cannot be further consolidated.  While this assertion applies with equal force to all issues having to do with the quality of life of those who live in the region and with building an increasingly more informed democratic citizenry, it is especially relevant to problems associated with violence and crime, given their growing impact on the public agenda of the countries of the Hemisphere.  As the Commission has reiterated, this requires that States parties “(...) [g]uarantee the effective right of access to information held by the State in order to promote transparency in the public administration and consolidate democracy.”[243] One of many issues that need to be addressed regarding production and dissemination of timely and reliable information are the procedures involved in putting together the national budgets that are relevant to public policy on citizen security.

185.          State authorities have the duty to be transparent and consistent when reporting the criteria used to earmark resources to the various public institutions that have jurisdiction over the policy on citizen security.  They must also disclose the performance indicators used, thereby enabling the public to determine whether the spending and investment in citizen security are done according to pre-determined objectives.  State authorities must also inform the public of the systems in place for introducing adjustments or corrections when those very same indicators reveal execution problems.  Exceptions occasionally have to be made when some information must be withheld for a time in order to guarantee the effectiveness of the State’s interventions.  When this happens, legislative oversight systems should be in place to handle the related budgetary issues.  Judicial procedures should also be in place so that a judge can ultimately decide whether or not the information is to remain confidential.[244]  The foregoing must be examined in light of the general principle that the Commission has articulated on previous occasions which is as follows: “(...) given the need to promote greater transparency in government action as the basis for strengthening democratic institutions, limitations on the files held by the State must be exceptional and must be interpreted restrictively.”[245]

186.          The information that the public authorities produce and circulate should highlight the plight of those sectors of the population that are most likely to have their human rights violated with implementation of policies on citizen security, especially when it comes to preventing interpersonal and/or social violence.  This information should devote as a priority attention to the situation of women, Afro-descendents, the indigenous population, migrants, children and adolescents.  The Commission shares the view that

(...)States  [need to] improve data collection and information systems in order to identify vulnerable subgroups, inform policy and programming at all levels, and track progress towards the goal of preventing violence against children. (...) States should use national indicators based on internationally agreed standards, and ensure that data are compiled, analyzed and disseminated to monitor progress over time (...) States should also create and maintain data on children without parental care and children in the criminal justice system. (...) States should also develop a national research agenda on violence against children across settings where violence occurs (...).[246]

187.          On the other hand, State authorities must also produce quality data that can be used to adequately plan the various police operations to favor preventive over suppressive measures, while also creating the conditions for more rational and balanced use of human and material resources.  The design and update of reliable indicators of the various factors that are conducive to acts of violence or crime is an indispensable tool for putting into practice proper strategic planning, which is a key piece of any public policy.  The Commission shares the view that

To do their job properly, the police must have adequate information so that they can better prioritize and target their interventions.  The same information can serve as objective points of reference for evaluating performance.  To that end, a police force should ensure that it has sufficient, reliable, verifiable, comparable and auditable information.  To that end, a police force must conduct activities to build confidence and trust with the public, simplify police routines and procedures, and conduct campaigns to increase citizen awareness of the importance of reporting crime.  A police force must be properly trained and equipped with the means to gather, process, systematize, use and disseminate statistics on crime and the results of its police work.  It must also collaborate with the institutions monitoring public and private violence, which compile and centralize data from various sources, and then use their findings to its advantage.  The training that members of a police force receive should include lessons that teach the benefits of organizing and evaluating police experience in the production and use of information.[247]

188.          The institutions monitoring violence and crime in the region have been an important experiment in furthering activities that support the member states’ efforts to protect and ensure the right to seek, receive and impart reliable information on citizen security issues.  Monitoring institutions compile reliable information, classify and analyze it, build objective indicators, do measurements and comparisons with the situation in other areas or regions of the country or different countries; and then gauge the impact of public policies to prevent and control violence and crime.  The monitoring institutions identify and track the programs and projects that various nongovernmental, community or social organizations are conducting to prevent violence and crime in various countries of the region; they compare results and replicate positive experiences.  Monitoring institutions can be public, private, mixed ventures or partnerships.  For the Commission, their main role is to help identify the real threat level to the human rights imperiled by violence and crime.  Reliable information makes it possible to accurately gauge the real levels of objective and subjective insecurity, and then to direct the measures necessary to properly tackle each of these situations, while avoiding irresponsible or intentional fear-mongering in society.  Publicly or privately-owned mass media have an enormous responsibility for imparting this type of information as responsibly, objectively and widely as possible, so that the information is more readily available to the public.

189.          The Commission has repeatedly addressed the issue of the action of habeas data, a matter that is of particular relevance when examining the impact of the measures that the States can take as part of their policy on citizen security as it pertains to the right to freedom of information.  The Commission has drawn the following distinction between the concepts of “access to information” and “habeas data”:

The concept of “access to information” is often confused with the concept of "habeas data.”  The IACHR has understood that “access to information” refers to state-held information that should be available to the public.  An action of habeas data refers to the right of any individual to have access to information referring to him and to modify, remove, or correct such information when necessary (...) individuals have the right to know about the intelligence information which has been gathered about them, even when they are not faced with a criminal proceeding based on that information.[248]

In any case, the legitimate measures that the member states adopt to lawfully prevent and suppress acts of violence and crime ought not to violate a person’s right to ascertain, by means of a rapid and effective action, what information the competent authorities have on him

G.        Right of assembly and association

190.          The right of assembly is protected under Articles XXI of the American Declaration and 15 of the American Convention:

American Declaration - Article XXI Every person has the right to assemble peaceably with others in a formal public meeting or an informal gathering, in connection with matters of common interest of any nature.

American Convention - Article 15 The right of peaceful assembly, without arms, is recognized.  No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and necessary in a democratic society in the interest of national security, public safety or public order, or to protect public health or morals or the rights or freedom of others.

This right is also recognized in Article 20(1) of the Universal Declaration[249] and Article 21 of the International Covenant on Civil and Political Rights.[250]

191.          The right of association is protected in Article XXII of the American Declaration and Article 16 of the American Convention:

American Declaration - Article XXII Every person has the right to associate with others to promote, exercise and protect his legitimate interests of a political, economic, religious, social, cultural, professional, labor union or other nature.

American Convention - Article 16(1) Everyone has the right to associate freely for ideological, religious, political, economic, labor, social, cultural, sports, or other purposes. (2)  The exercise of this right shall be subject only to such restrictions established by law as may be necessary in a democratic society, in the interest of national security, public safety or public order, or to protect public health or morals or the rights and freedoms of others. 3.  The provisions of this article do not bar the imposition of legal restrictions, including even deprivation of the exercise of the right of association, on members of the armed forces and the police.

The right of association is also protected under Article 20 of the Universal Declaration,[251] Article 22 of the International Covenant on Civil and Political Rights,[252] Article 15 of the Convention on the Rights of the Child,[253] and Article 4 of the Convention of Belém do Pará.[254]

192.          The Commission is compelled to address the responsibilities of the member states with respect to ensuring and protecting the rights of association and assembly, in principle based on the lines of action embodied in legislative measures and the practices and procedures followed by their citizen security institutions, all intended to prevent and control social violence.  In the case of the rights of assembly and association, the State’s positive and negative obligations are clearly identifiable.  The Commission has taken a position on this matter when it provided that

(...) [i]mplicit in protection of the right of assembly is not just the State’s obligation to refrain from interfering in the exercise of that right, but also its obligation to adopt, in certain circumstances, positive measures to guarantee it:  for example, protecting demonstrators from physical violence by persons who may hold the opposite opinion.[255] 

Historically within the region, the failure to comply with both types of obligations has triggered episodes of mass violence, which have in turn caused serious violations of these rights and violations of the State’s obligations with respect to other human rights, especially the rights to life, physical integrity and personal liberty and security.

193.          The competent institutions of the State have a duty to design operating plans and procedures that will facilitate the exercise of the right of assembly.  This involves everything from rerouting pedestrian and vehicular traffic in a certain area, to escorting those who are participating in the mass gathering or demonstration in order to guarantee their safety and make it possible for the activities involved to take place.  The police must be aware of their rules of conduct and have the professional training needed to perform in situations involving mass concentrations of people, so as to create the conditions that will enable these events to unfold in accordance with the established regulations and without infringing upon other human rights.  The State has an obligation to supply its police officers with the equipment and communication devices, vehicles, means of personal defense and non-lethal deterrence suitable for intervening in the event of problems.  The police must also receive clear and unequivocal instructions that their job is to protect the participants in a public meeting or demonstration or mass gathering so long as they are exercising their right.  The Commission has observed that

the lawful function of the security forces is to protect peaceful demonstrators and to ensure public security, acting with complete impartiality towards all (…) citizens, regardless of their political affiliation or the content of their demonstrations.  (...) Under international law and the (…) Constitution, the actions of the security forces in democratic systems should exclusively serve the interests of society at large, not given political factions.  In other words, in exercising their public functions, the police should not side with political parties or movements, however large they may be, against other similar groups that confront or threaten them.[256]

194.          In a complementary manner, it is necessary to point out that police forces must adopt all the measures necessary to prevent the violence that ensues when the right of assembly is abused or exercised unlawfully.  In principle, recognition of the right of assembly is premised on the fact that the assembly will be peaceful, i.e., will not infringe the human rights of other persons or groups of persons who are part of the same society.  The Commission mentioned this point when analyzing a specific case: “The level of aggression and violence unleashed by the demonstrators at various points around the city, blatantly threatening public security, combined with the failure of the police force to intervene, provoked an understandable sense of insecurity in the society (…) The IACHR believes that the State’s failure to control public order constitutes a clear-cut failure to fulfill its duty to protect the persons subject to its jurisdiction.”[257]  In this specific case, the Commission applauded the removal of the Chief of Police “because of the failure of the police to step in to control the violent demonstrations.”[258]

195.          In the give-and-take of a democratic society, the State’s role is to constantly weigh these often competing or conflicting rights and interests.  As has been observed frequently in this regard, under certain circumstances the State may regulate or limit the exercise of certain rights provided the standards established within the Inter-American system are observed.  As indicated by the Commission

(...) in addition to regulations established by law, the State may impose reasonable restrictions on demonstrations to ensure that they are peaceful and to disperse those demonstrations that turn violent or obstructive, provided that those restrictions are informed by the principles of legality, necessity and proportionality.  (...) The Commission must underscore the fact that the rights to freedom of assembly and peaceful demonstration are protected under the American Convention.  Hence, any measure that a State adopts to restrict the exercise of those rights must be established by law beforehand, and must also be only what is strictly necessary when circumstances warrant it.  Any such measure must always be a proportional response to the end being sought.[259] 

Based on the literature on this subject in the region, it is now generally accepted that certain limits are allowed on the exercise of human rights, provided a number of conditions and circumstances coincide that are inherent in democratic rule of law.  It has been observed that the interpretation of these limitations must be an objective one which establishes a “correlation between personal liberty and equality, solidarity and the general welfare (...)”.  Such limitations “cannot stray beyond the boundaries of reason, i.e., they cannot disregard, destroy or alter the right being limited.”[260]

196.          The Commission has issued various statements on what can be regarded as lawful limitations on the exercise of the right of assembly, i.e., the limitations strictly necessary to guarantee the general welfare and the functioning of a democratic society.  It observed that

Article 15 of the American Convention protects the right to peaceful assembly without arms, and stipulates that no restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and necessary in a democratic society in the interest of national security, or to protect public health or morals or the rights or freedom of others. (...) In the Commission’s view, States may regulate the use of public space, for example by establishing requirements of prior notice, but such regulations may not impose excessive demands that invalidate the exercise of the right. (...) Moreover, the Commission has stated that the arrest of participants at peaceful demonstrations violates freedom of assembly.”[261]

In the Commission’s view, the member states must set clear criteria, which are to be properly disseminated so that as many people as possible may know that the systems are for coordination and communication between the police authorities and the persons participating in the demonstration or mass public gathering.  The goal is to do as much as possible to accommodate the right of assembly, while at the same time limiting the negative consequences that these events can have on the rights of other members of the same community whose rights the State must also protect and ensure.[262]

197.          The Commission has addressed the issue of effective protection and guarantee of the right of assembly in the Hemisphere and how it specifically ties in with the need to reconcile exercise of that right with the State’s obligations to prevent violence and to maintain the conditions that make coexistence in a democratic society possible.  The Commission has dwelled at length on the approach that regards social protest strictly as a matter of criminal law.  This phenomenon, which some have branded the criminalization of social protest, must be properly addressed by the member states because it has direct implications for the commitments they have undertaken to respect and observe international human rights law.  This topic has been addressed in previous Commission pronouncements, specifically where it asserted that

in principle, criminalization per se of demonstrations in public thoroughfares is inadmissible when they are carried out in exercise of the rights to freedom of expression and to freedom of assembly.  In other words, it must be examined whether the application of criminal sanctions is justified under the standard, established by the Inter-American Court, that said restriction (criminalization) satisfies a pressing public interest necessary for the operation of a democratic society.[263]

198.          State authorities have an obligation to prevent and, where necessary, control any form of violent behavior that violates the rights of any other person subject to that State’s jurisdiction.  One of the distinctive features of the right of assembly, as defined in international instruments and in the domestic laws that have the force of constitutional law in the countries of the region, is that it be exercised peaceably and without arms.  The Commission is mindful of the fact that the exercise of this right can sometimes be disruptive to the normal routine of daily life, especially in large urban centers; it may even cause problems or affect the exercise of other rights that the State has an obligation to protect and ensure, such as freedom of movement.  However, such disruptions are part of the mechanics of a pluralistic society in which diverse and sometimes conflicting interests coexist and find the forums and channels in which to express themselves.  The Commission has also noted the very close relationship between the right of assembly and freedom of expression, where it held that “(...) in balancing, for example, freedom of movement and the right to assembly, it should be borne in mind that the right to freedom of expression is not just another right, but one of the primary and most important foundations of any democratic structure: the undermining of freedom of expression directly affects the central nerve of the democratic system.”[264]

199.          The Commission has also pointed out that

[t]he most impoverished sectors of our Hemisphere face discriminatory policies and actions; their access to information on the planning and execution of measures that affect their daily lives is incipient and, in general, traditional channels to make their complaints known are frequently inaccessible.  Confronting these prospects, in many of the Hemisphere’s countries, social protest and mobilization have become tools to petition the public authorities, as well as channels for public complaints regarding abuses or human rights violations.[265]

In this unquestionably complex scenario, the member states are called upon to adopt the right decisions that strike the normal balance between the exercise of the various rights they must protect and guarantee.

200.          The Commission established its position on this matter when it asserted that

(...) the State may impose reasonable restrictions on demonstrations to ensure that they are peaceful and to disperse those demonstrations that turn violent or obstructive, provided that those restrictions are informed by the principles of legality, necessity and proportionality (...) the actions of State agents should protect rather than discourage the right of assembly. Therefore, the rationale for dispersing demonstrations must be informed by the duty to protect the people demonstrating.  A law enforcement officer charged with dispersing demonstrators must be prepared to use the methods that are safest and cause the least harm to the demonstrators.

(…) As a corollary to this reasoning, the Commission reiterates that when arranging the procedures to ensure the exercise of the human rights at stake in citizen security from the kind of social violence that could threaten or impair them, the authorities have to manage the various responses that the domestic legal system offers so that they are reasonable and proportional, taking into account the accepted international standards regarding the obligations to protect and ensure human rights. “It is also necessary to examine whether the imposition of criminal sanctions is, in fact, the least harmful means to restrict the freedom of expression, exercised through the right of assembly, in turn exercised through a demonstration on a thoroughfare or in a public square.[266]

201.          The Commission has indicated that states should establish administrative controls to ensure only exceptional use of force in public demonstrations, in cases where it is necessary, through measures for planning, prevention, and for the investigation of cases in which an abuse of force may have occurred.  The Commission has recommended the following: a) implementation of mechanisms to prohibit, in an effective manner, the use of lethal force as a recourse in public demonstrations; b) implementation of an ammunition registration and control system; c) implementation of a communications records system to monitor operational orders, those responsible for them, and those carrying them out; d) promotion of visible means of personal identification for police agents participating in public law enforcement operations; e) promotion of opportunities for communication and dialogue prior to demonstrations and of the activities of liaison officers to coordinate with demonstrators concerning demonstration and protest activities and law enforcement operations, in order to avoid conflict situations; f) the identification of political officials responsible for law enforcement operations during marches, particularly in the case of scheduled marches or prolonged social conflicts or circumstances in which potential risks to the rights of the demonstrators or others are anticipated, so that such officials are tasked with supervising the field operation and ensuring strict compliance with norms governing the use of force and police conduct; g) the establishment of an administrative sanctions regime for the law enforcement personnel involving independent investigators and the participation of victims of abuses or acts of violence; h) the adoption of measures to ensure that police or judicial officials (judges or prosecutors) directly involved in operations are not responsible for investigating irregularities or abuses committed during the course of those operations.[267]

202.          The OAS member states’ obligations with respect to the rights of association and assembly as they relate to citizen security must also consider one issue that has traditionally been set aside in the region: the right of members of the police force to organize.  Within the Hemisphere, the right of police personnel to organize was not duly guaranteed.  In fact, most of the rules and regulations governing law enforcement services do not allow members of the service to form unions; any form of association for work-related claims is considered a breach, or even a very serious breach, of the police code.  In recent years, this trend started to reverse itself in some countries of the region, although not without difficulty.  Today, the rules and regulations governing the police service are being amended to allow for unionized action.  The objective is to set up a reasonable labor relations system that comports with international standards on the subject. 

203.          In principle, the restrictions that the member states’ legal systems include on the exercise of police officers’ right to strike and, where applicable, their right to form labor unions are not a violation of Article 9 of International Labour Organisation Convention No. 87.[268]  Likewise, restrictions of this kind are compatible with Article 16 of the American Convention, Article 22 of the International Covenant on Civil and Political Rights,[269] and Article 8 of the International Covenant on Economic, Social and Cultural Rights.[270]  The Commission understands that when addressing this issue, the proper balance will have to be struck among the various rights involved, informed by the standards of interpretation provided by international human rights law in general, and particularly models prepared by specialized organizations.

204.          Given the nature of their duties, law enforcement personnel bear arms, a factor that should be taken into account in their exercise of the rights of association and assembly.  No matter what manner or mode is used to exercise the right of assembly, no one should be allowed to participate bearing arms.  Under international law, States have an obligation to ensure the right to assemble peaceably and without arms.  Another criterion that the Commission would suggest is that law enforcement personnel should not be wearing their regulation uniform when participating in meetings or demonstrations held to assert job demands.  The public attaches a certain symbolic value to the police uniform and insignia.  The Commission therefore believes the appropriate course of action is to use those symbols only in the performance of police functions, as this has implications for the authority and duties that accompany the wearing of the uniform.

H.        Right to participate in government

205.          This right is protected under Article XX of the American Declaration and Article 23 of the American Convention:

American Declaration - Article XX: Every person having legal capacity is entitled to participate in the government of his country, directly or through his representatives, and to take part in popular elections, which shall be by secret ballot, and shall be honest, periodic and free.

American Convention - Article 23: 1.  Every citizen shall enjoy the following rights and opportunities: a. to take part in the conduct of public affairs, directly or through freely chosen representatives; b. to vote and to be elected in genuine periodic elections, which shall be by universal and equal suffrage and by secret ballot that guarantees the free expression of the will of the voters; and c. to have access, under general conditions of equality, to the public service of his country.  2.  The law may regulate the exercise of the rights and opportunities referred to in the preceding paragraph only on the basis of age, nationality, residence, language, education, civil and mental capacity, or sentencing by a competent court in criminal proceedings.

This right is also recognized in other international human rights instruments, such as Article 21 of the Universal Declaration,[271] Article 25 of the International Covenant on Civil and Political Rights,[272] the Convention on the Rights of the Child,[273] and Article 4 of the Convention of Belém do Pará.[274]

206.          The planning, implementation and evaluation of public policy on citizen security involves the interaction of various rights, the enjoyment of which must be ensured by the State.  This is also the area where the State parties’ obligations with respect to freedom of association analyzed earlier in the body of this report converge; an expansive interpretation would also include in this area the obligations of the State with regard to the right to participate in government.  The jurisprudence of the Court has examined the evolution of the right to participate in government from the perspective of the requirements of modern democratic social structures.  The Court ruled that:

In recent years, this evolution has developed substantially the concept of the right to take part in the conduct of public affairs, which, nowadays, is a reference point that includes a very wide variety of components that can range from the right to support the removal of elected authorities, to supervise public administration, to have access to public information, to propose initiatives, to express opinions, etc.  Indeed, the broad and general concept of the right “to take part in the conduct of public affairs,” as it appears in the Convention, has been refined and expanded.[275]

207.          The Court singles out for approval the Inter-American Democratic Charter as a basic milestone in the evolution of the concept of the right to participate in government.[276]  There, the member states establish the criteria for a precise interpretation of the obligations that follow from application of Article 23 of the Convention.  The Court finds that: 

Indeed, Article 4 of the Inter-American Democratic Charter enumerates a series of “essential components” of the exercise of democracy that express the conceptual development of the right to take part in the conduct of public affairs, and that are condensed in this Inter-American instrument.  It underscores a series of State obligations which are merely the counterpart of the rights of citizens: ‘...Transparency in government activities, probity, responsible public administration on the part of governments, respect for social rights, and freedom of expression and of the press.’ In the absence of progress in clarifications such as these, which the American community has adopted consensually, it is evident that the said right to take part in the conduct of public affairs would be frozen in time, and not reflect the changing requirements of the democracies in our region.[277]

For the people living in the various countries of the region, the issues associated with crime and violence prevention are priorities.  Therefore, under Article 23 of the Convention, States have a legal obligation to organize the most all-inclusive systems for society’s participation in dealing with such issues, as a way to strengthen democracy and the rule of law in the Hemisphere. 

208.          As for the specific measures that must be taken within the framework of public policy on citizen security, organized society’s participation is essential in planning, implementing and evaluating the measures being taken in the area of prevention, from the standpoint of a society and a community and in the context of the measures aimed at preventing the occasions of violence and crime.[278]  The Commission has said that while “(…) preventing crime and solving disputes are the State’s responsibility (…) greater participation on the part of members of the community is needed to implement programs of this type, which should be ongoing and include a follow-up of the activities carried out.”[279]  These mechanisms or forms of participation are more effective if carried out at the local level.  This is directly attributable to the greater degree of autonomy that the domestic legal systems generally give to local government, which is conducive to and encourages citizen participation in all issues that are priority concerns for the community.  This allows for a precise definition of the obligations undertaken by the State to protect and guarantee human rights at the municipal level, through the practice of concrete forms of self-government and self-management, all to establish efficient systems through which to meet diverse social demands.  Citizen participation is essential for democratic governance.  Because local governments have a more direct relationship with their constituents –if for no other reason than proximity- those constituents should play a critical role in crafting the public policy on citizen security, especially in terms of improving the quality of daily life, the use of public space and preventing and controlling certain forms of violence.

209.          Neighborhood associations, community organizations, development commissions, unions, sports clubs, religious organizations, networks or interest groups are, by their nature, an important social resource.  These types of groups rely on bonds of trust and reciprocity, which better prepares them to intervene to prevent or stop some of the factors that enable violence and crime.  These types of social organization are also more conducive to enabling non-violent solutions to interpersonal or group conflicts at the local level.  Various forms or modes of community participation in actions related to citizen security, in exercise of the right of association and the right to participate in government must be via previously agreed and clearly established channels.  The main purpose is to strengthen the rule of law and the institutions of democracy.  Society’s involvement in matters related to citizen security must be confined exclusively to social, community or situational prevention of violent or criminal conduct, helping to create a climate of tolerance and respect and helping to correct the cultural, social or economic risk factors.  The Commission wants to emphasize the fact that in the rule of law, the use of force and other legitimate means of coercion are reserved exclusively for the public authorities, who must exercise them in accordance with the standards discussed earlier in this report.  As the Commission sees it, States are not fulfilling their duties to protect and ensure human rights when they allow, encourage or tolerate private groups that usurp the essential functions of the institutions within the system for the administration of justice or the police force.  The recent history of the Hemisphere has seen practices of this type, which have caused extensive and systematic violations of human rights.  Therefore, it is the duty of a democratic state to exercise strong control over such groups, to prevent them from operating and, where necessary, to apply the appropriate penalties under its criminal laws.

210.          In a democratic State, exercising the right to participate in government affairs that concern citizen security becomes an important tool for monitoring the actions of public authorities.  The Court made express reference to this point where it ruled that

(...) the State’s actions should be governed by the principles of disclosure and transparency in public administration that enable all persons subject to its jurisdiction to exercise the democratic control of those actions, and so that they can question, investigate and consider whether public functions are being performed adequately. (...) Democratic control by society, through public opinion, fosters transparency in State activities and promotes the accountability of State officials in relation to their public activities.[280] 

This position was echoed by the highest authorities responsible for citizen security in the Hemisphere when they recently declared their determination to:

(…) [e]ncourage and strengthen citizen and community participation in the implementation of public security plans and programs;(...) Encourage and strengthen social responsibility as well as a culture of comprehensive prevention of crime, violence, and insecurity, with the participation of citizens, the community, the media, and the private sector; (…) Promote, in that context, public policies that strengthen citizen trust in public security institutions.[281]

211.          Some of the most widely recognized studies in the region have examined the situations that the countries of the Hemisphere are experiencing with the increase in objective crime, the sense of insecurity, and the limited means that the State actors have to solve problems.  These studies have found that “the strategy of citizen participation has been elevated to one of the principal alternative responses to this crisis.”[282]  Against this backdrop, the various forms of citizen participation should complement but never supplant the State’s primary responsibility in preventing, deterring and suppressing violent or criminal behavior.  This was the Commission’s finding in earlier decisions, where it reiterated that

The state may receive cooperation from civil society on certain security matters, but that is not say that possession and responsibility for such a duty may reside also with institutions alien to the state. (...) The Commission takes the view that the security of a democratic state is founded, inter alia, on values such as peace, liberty, justice, equality, protection of human rights and democratic coexistence; however, the foregoing does not mean that civil society can be placed on the same tier of responsibility as the state, which has the lawful monopoly over the use of public force, and is bound by a system of domestic and international responsibility distinct from that applicable to private persons.[283]

212.          The importance that the Commission attaches to the need for member states to establish objectives, precise limits and ways of integrating citizen, social or community organizations for their activities in the field of citizen security is apparent from the statements it has made in recent years on this very point.  The Commission has observed that “(…) it is crucial that the use of force be vested exclusively in the public security forces.  It is essential to investigate the existence of these alleged armed groups and to disarm them fully as soon as possible.”[284]  The Commission has made statements and concrete recommendations in this regard, pointing out that “The international responsibility of a State is triggered if groups of civilians violate human rights and do so with the support or acquiescence of the Government.  The Commission has called upon the Government to investigate seriously the acts of violence attributed to some “popular organizations,” and to adopt, as a matter of the utmost urgency, all necessary measures to prevent the recurrence of such acts.”[285]

I.         Right to the peaceful use and enjoyment of one’s property

213.          The right to use and enjoy one’s property is recognized in Article XXIII of the American Declaration and Article 21 of the American Convention:

American Declaration - Article XXIII “Every person has a right to own such private property as meets the essential needs of decent living and helps to maintain the dignity of the individual and of the home.”

American Convention - Article 21.1 Everyone has the right to the use and enjoyment of his property.  The law may subordinate such use and enjoyment to the interest of society.  2.  No one shall be deprived of his property except upon payment of just compensation, for reasons of public utility or social interest, and in the cases and according to the forms established by law. 3.  Usury and any other form of exploitation of man by man shall be prohibited by law.

This right is also recognized in Article 17 of the Universal Declaration.[286]

214.          In many cases, crime and violence in the Hemisphere also takes its toll on everyone’s right to the use and enjoy their property.  The vast majority of the people of the Hemisphere, who fall into the middle- and low-income sectors, have been particularly affected.  While the State has an obligation to guarantee, to all persons subject to its jurisdiction, the human rights most at stake in the policy on citizen security, it must take special measures to prevent and lawfully suppress crime and violence in those cases where the economic or social conditions of certain sectors of the population make them more vulnerable.

215.          The Court has developed a definition of property, as follows: “Property can be defined as those material things which can be possessed, as well as any right which may be part of a person’s patrimony; that concept includes all movables and immovables, corporeal and incorporeal elements and any other intangible object capable of having value.”[287]  In keeping with this definition, the Commission has held that “From the standpoint of human rights, a small corn field deserves the same respect as the private property of a person that a bank account or a modern factory receives; a peasant farmer's identification papers are as important as the private papers of a legal office and may only be reviewed or confiscated on orders from the competent.”[288]  The right to the peaceful use of property is also recognized in the UN Principles on Housing and Property Restitution for Refugees.  Principle No. 7 (the right to peaceful enjoyment of possessions) provides that: “7(1) Everyone has the right to the peaceful enjoyment of his or her possessions. 7(2) States shall only subordinate the use and enjoyment of possessions in the public interest and subject to the conditions provided for by law and by the general principles of international law.  Whenever possible, the “interest of society” should be read restrictively, so as to mean only a temporary or limited interference with the right to peaceful enjoyment of possessions.”[289]

216.          The strategies that the member states have mapped out for their public policy on citizen security should include measures in social, community and situational prevention, as well as deterrence plans to be implemented by the police force, all to help reduce the risk that individuals will fall victim to violence and crime that affect their right to the peaceful enjoyment of their possessions.  Often, the absence of efficient and effective intervention on the part of the State when this type of risk presents itself increases the sense of frustration and vulnerability in many sectors of the population.  These people ask themselves whether the competent authorities will react.  It also induces vigilante justice, which has a very deleterious effect on peaceful coexistence in a democratic society and the rule of law.