citizen security and human rights

V.        Rights at stake in public policy on citizen security

A.        Right to life

106.          The right to life is protected under the American Declaration and the American Convention:

American Declaration - Article I.  Every human being has the right to life, liberty and the security of his person.

American Convention - Article 4. (1)  Every person has the right to have his life respected.  This right shall be protected by law and, in general, from the moment of conception.  No one shall be arbitrarily deprived of his life. (2)  In countries that have not abolished the death penalty, it may be imposed only for the most serious crimes and pursuant to a final judgment rendered by a competent court and in accordance with a law establishing such punishment, enacted prior to the commission of the crime.  The application of such punishment shall not be extended to crimes to which it does not presently apply. (3)    The death penalty shall not be reestablished in states that have abolished it. (4)  In no case shall capital punishment be inflicted for political offenses or related common crimes. (5) Capital punishment shall not be imposed upon persons who, at the time the crime was committed, were under 18 years of age or over 70 years of age; nor shall it be applied to pregnant women. (6)  Every person condemned to death shall have the right to apply for amnesty, pardon, or commutation of sentence, which may be granted in all cases.  Capital punishment shall not be imposed while such a petition is pending decision by the competent authority.

This right is also recognized in other international instruments such as:  the Universal Declaration of Human Rights, (Article 3);[131] the International Covenant on Civil and Political Rights (Article 6(1));[132]  the Convention on the Rights of the Child (Article 6(1));[133]  and the Convention of Belém do Pará, Articles 3 and 4.[134]

107.          In conducting public policy on citizen security, member states can fail to comply with their obligations vis-à-vis protection of the right to life basically in two types of situations: (1) when the State fails to adopt effective measures of protection against the actions of private parties who threaten or violate the right to life of persons subject to its jurisdiction; and (2) when its security forces use lethal force that is beyond internationally recognized boundaries.  The Commission defined the scope of these obligations when it reiterated that

(…) Article 27 of the American Convention provides that the right to life is a non-derogable right.  Accordingly, states may not, even in time of war, public danger, or other emergency that threatens its independence or security, take measures suspending the protection of the right to life.[135]

108.          It is the obligation of the States to reasonably prevent, investigate, and punish actions that implicate violations of the right to life, including those committed by State agents or individuals.  The Commission specifically mentioned the high level of impunity with regard to numerous extrajudicial executions committed by State agents in the context of the phenomenon known as hired killings for the supposed “protection of citizen security.

109.          The surge in crime in the region –especially in the number of violent crimes- is one of the principal threats to the right to life.  As mentioned earlier in this report, the highest rate of victimization is among adolescents and young people in the middle- to low-income sectors, and women.  Nevertheless, crime and the various forms of interpersonal and social violence imperil everyone’s right to life, irrespective of the age bracket or social sector.  Given its positive obligations to guarantee and protect human rights and as part of its public policy on citizen security, the State must design and put into practice effective prevention plans and programs whose objective is to stop the spread of violence and crime while making available all the resources needed to pursue the perpetrators of crime and hand them over to the judicial system, especially those suspected of violence against persons.

110.          The Commission is still troubled by the fact that in the specific case of girls and women victims of violence and crime, the member states are having difficulty in mustering the due diligence to act in time to prevent events of this kind or to pursue the perpetrators.  Because women and girls are more vulnerable to certain types of common and organized crime, it is incumbent upon States to take specific measures within their legal system and equip the institutions in the citizen security system in such a way that they conform to the general framework of international standards for the protection of human rights, especially the provisions of the Inter-American Convention for the Prevention, Punishment and Eradication of Violence against Women, the United Nations Convention on the Rights of the Child and the United Nations Convention on the Elimination of All Forms of Discrimination against Women.  In several countries of the region, femicide (that is, gender-based killings of women) has been growing in recent years in an alarming form, and it has not been accompanied by significant progress in the investigations of the cases and the prosecution of the persons responsible for this type of crime.  In the same sense, the United Nations Special Rapporteur on Violence against Women, Its Causes and Consequences, has emphasized that:

[u]nder the due diligence obligation, States have a duty to take positive action to prevent and protect women from violence, punish perpetuators of violent acts and compensate victims of violence.  However, the application of due diligence standard, to date, has tended to be State-centric and limited to responding to violence when it occurs, largely neglecting the obligation to prevent and compensate and the responsibility of non-State actors.[136]

111.          The Commission recently observed that indigenous women and Afro-descendent women are especially vulnerable to violence.  It has indicated that

certain groups of women have special needs when they are victims of violence seeking judicial protection (…) (...) Violence, discrimination and access to justice are particularly problematic for indigenous and Afro-descendant women.  In their case, racism figures prominently as one of the underlying causes of the contempt for their rights.  The obstacles these women encounter in trying to avail themselves of adequate and effective remedies that will redress the violations they have suffered may be particularly critical, as these women are victims of multiple forms of discrimination:  gender-based discrimination, discrimination based on ethnic origin or race, and discrimination based on socio-economic status.[137] 

Therefore, as part of their policies on citizen security, member states have an obligation to adopt special measures of protection to address these situations, so that the rights of indigenous and Afro-descendent women are properly protected and guaranteed.

112.          States have the obligation to identify, prosecute and punish those responsible for violating the right to life due to the close link between the obligation to prevent, investigate and punish and the obligation to make reparations for human rights violations.  Accordingly, the member states should earmark the necessary budgetary resources to equip themselves with the human, technical and infrastructural resources necessary to have police and prosecutors who specialize in investigating crime.  The shortages in this area have always been one of the causes of impunity and of the mistrust in the system of the administration of justice in the Hemisphere.

113.          The Commission has repeatedly stated its position on the use of force and at times lethal force by agents of the State and has expressly cited the jurisprudence of the Inter-American Court and internationally accepted standards.[138]  The Commission has categorically asserted that the State has the right and the obligation to provide protection when the security of persons subject to its jurisdiction is threatened by situations of violence.  In concrete situations, this may include the use of lethal force.  The Commission has stated that in situations where a state’s population is threatened by violence, the state has the right and obligation to protect the population against such threats and in so doing may use lethal force in certain situations.

This includes, for example, the use of lethal force by law enforcement officials where strictly unavoidable to protect themselves or other persons from imminent threat of death or serious injury, or to otherwise maintain law and order where strictly necessary and proportionate.  The Court has explained that, in such circumstances, states have the right to use force, ‘even if this implies depriving people of their lives.’[139] 

114.          The use of lethal force by agents of the State is always the last resort to protect the threatened rights against criminal or violent acts.  Interventions of this type must be strictly governed by the principles that ensure the lawfulness of the conduct of a police force.  The Commission has observed that “according to the international standards developed with respect to the use of force by law enforcement to perform their function, the force used must be necessary and proportionate to the needs of the situation and to the end being sought.”[140]  For the Commission, adjusting the procedures used by state agents to conform to international standards means, among other things, the use of force must be necessary and proportionate to the situation, i.e. it must be exercised with moderation and in proportion to the legitimate objective pursued.  At the same time, personal injuries and loss of human life must be kept to a minimum.  The means that can be used to suppress acts of violence or crime in order to protect the rights of the public vis-à-vis citizen security

are not unlimited, however.  To the contrary, as specified by the Court, regardless of the seriousness of certain actions and the culpability of the perpetrators of certain crimes, the power of the State is not unlimited, nor may the State resort to any means to attain its ends. (…) Indiscriminate uses of force may as such constitute violations of Article 4 of the Convention and Article I of the Declaration.[141]

115.          It is imperative that in their system of domestic laws, the member states regulate, by law, the procedures for the use of lethal force by police.  The Commission observes that member states have a specific obligation to provide permanent training and instruction to the members of their police forces so that when they use lethal force in their operations, they do so in strict accordance with internationally accepted standards.  States have an obligation to provide their police with the means, weaponry and equipment that will enable them to use nonlethal force in the procedures they follow to lawfully deter and suppress violence and crime.  Within the region, there have been multiple cases in which the right to life was violated by members of the state security forces.  These deaths could have been avoided had the members of the state security forces been equipped with nonlethal means of deterrence and adequate protective equipment, rather than relying strictly on firearms to perform their assigned function.

116.          Accordingly, the member states must enact the regulations necessary to dictate the principle of necessity in the use of force, which holds that no matter what the situation, the defensive and offensive security measures used should be those strictly necessary to carry out the lawful orders of a competent authority in the event of acts of violence or crime that imperil the right to life or the right to personal security.  By the same token, the domestic laws should provide that the use of force, including lethal force, shall be informed by the principles of reasonableness, moderation and graduality, always taking into account: (1) the rights that are to be protected; (2) the legitimate end to be achieved, and (3) the risk that the police must face.[142]

117.          State agents must receive the training and instruction to enable them to resort, first and foremost, to nonviolent means to deal with situations that jeopardize the observance of the rights directly at stake in citizen security, before resorting to physical force, coercive tactics or firearms.  The use of force, including lethal force, will only be lawful when nonviolent means are manifestly incapable of protecting the threatened rights.  The ongoing training and instruction that new recruits and officers in active service receive are essential to accomplish this objective.  Members of the security forces must keep intact, throughout their period of service, the ability to discern the seriousness of the threat in order to weigh the alternative ways of responding to it, including the type or degree of force that can be used.  This is a professional right of the members of the state security forces; therefore, the member states have an obligation to provide their agents with ongoing training and instruction.

118.          Should the use of lethal force be strictly necessary, the rules of conduct should require that the agents of the State first identify themselves as such, and then give the persons involved a clear warning of their intention to use force, so as to give them time to cease and desist, except in those cases where the life or personal safety of third persons or the agents themselves is in imminent danger.  The use of firearms is an extreme measure; they can only be used in those instances where the police, using nonlethal means, are still unable to restrain or detain those who are threatening the life or personal safety of third persons or police officers.  The Commission has reiterated that

[t]he legitimate use of public force entails, among other factors, that it is both necessary and proportional to the situation; that is to say that it must be exercised with moderation and in proportion to the legitimate objective being pursued while simultaneously trying to reduce to a minimum personal injury and the loss of human life.  The degree of force exercised by state agents, to be considered within international parameters, must not exceed what is ‘absolutely necessary’.  The state must not use force disproportionately and immoderately against individuals who, because they are under its control, do not represent a threat; in such cases, the use of force is disproportional.[143]

119.          Likewise, it must be pointed out that in any case where recourse to firearms is necessary, State security agents, in application of the principles of proportionality and moderation, will follow a code of conduct dictating that the injury and harm caused to the aggressor shall be the minimum possible.  A police force shall ensure that immediate attention and medical treatment are given to persons who are wounded or otherwise affected, and see to it that their next of kin or loved ones are notified of what happened as soon as possible.  The standards of conduct must also stipulate that any member of the force that uses his firearm must inform his superiors immediately so that the necessary internal inquiry may be undertaken; the state agent responsible for the inquiry must immediately file a report with the public prosecutor’s office or the competent judge, as the case may be, concerning the events that prompted the use of lethal force.  The Court has also provided that once a State learns that its agents have used firearms with lethal consequences, the State must undertake, at its own initiative and without delay, a serious, impartial and effective investigation.[144]

120.          The officers in a police force must have a framework of laws and regulations that affords them the necessary assurances and guarantees should the dire situation of having to use lethal force in legitimate self-defense ever arise, since another person could lose his or her life in the event.  The worst experiences in the region in this regard are a function of inadequately trained police personnel and/or a failure on the part of government officials to take steps to outfit police officers with the proper equipment and weapons.  The other side of this coin is a pattern of impunity, i.e., that those members of the security forces who have used lethal force arbitrarily and disproportionately or in an obvious abuse of power, resulting in some cases in extrajudicial executions, were never made to answer for their behavior.[145] The Commission once again makes the point that the “obligation to investigate human rights violations in a complete, independent, and impartial manner is inherent in the duty to protect human rights, recognized in the American Convention.”[146]   The Commission has also previously said that member states need to investigate cases in which violations of the right to life may have occurred as a consequence of the use of force by State security agents.  It also observes that, as the Inter-American Court has held that force should only be used by the State security forces as an exception, and be planned and limited proportionately by the authorities.  The Commission has also asserted that in the police reforms underway in a number of countries of the region, “measures to prevent cases of abuse of authority that result in the deprivation of the right to life or attacks on the physical integrity of persons should be addressed as core issues.”[147] 

B.        Right to the security of one’s person

121.          The right to the security of one’s person is protected under Articles I, XXV and XXVI of the American Declaration, and Articles 5 and 7 of the American Convention.

American Declaration - Article I.  Every human being has the right to life, liberty and the security of his person.  Article XXV. (...)    Every individual who has been deprived of his liberty has the right (…) to humane treatment during the time he is in custody.  Article XXVI. (…) Every accused person has the right (…) not to receive cruel, infamous or unusual punishment.

American Convention - Article 5(1) Every person has the right to have his physical, mental, and moral integrity respected. (2) No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.  All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person. (3) Punishment shall not be extended to any person other than the criminal. (4) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons, and shall be subject to separate treatment appropriate to their status as unconvicted persons. (5) Minors while subject to criminal proceedings shall be separated from adults and brought before specialized tribunals, as speedily as possible, so that they may be treated in accordance with their status as minors. (6) Punishments consisting of deprivation of liberty shall have as an essential aim the reform and social reintegration of the prisoners.

Article 7(1) - 1.  Every person has the right to personal liberty and security.

This right is also recognized in Articles 3 and 5 of the Universal Declaration of Human Rights;[148] Articles 7 and 9 of the International Covenant on Civil and Political Rights;[149] Article 37 of the Convention on the Rights of the Child;[150] Articles 1 and 2 of the United Nations Convention on Torture;[151]  Article 7 of the Rome Statute;[152] Articles 14 and 15 of the Convention on the Rights of Persons with Disabilities;[153] Articles 1 and 2 of the Inter-American Convention to Prevent and Punish Torture;[154] and Articles 3 and 4 of the Convention of Belém do Pará.[155]

122.          As previously noted in the case of the right to life, the observance of the right to the security or integrity of one’s person can be analyzed from two perspectives in the context of the positive and negative obligations that the member states undertake to protect and ensure the human rights directly at stake in the concept of citizen security.  The first has to do with the effects of acts of violence or crime committed by private parties; the second examines the actions of State agents who violate this right, especially in those cases that qualify as torture, cruel, inhuman or degrading treatment, or the illegitimate use of non-lethal force.

123.          In this sense, the Inter-American Court held that Article 1(1) of the American Convention

(…) is essential in determining whether a violation of the human rights recognized by the Convention can be imputed to a State Party.  In effect, that article charges the States Parties with the fundamental duty to respect and guarantee, the rights recognized in the Convention.  Any impairment of those rights which can be attributed to the action or omission of any public authority constitutes an act imputable to the State, which assumes responsibility in the terms provided by the Convention.  According to Article 1(1), any exercise of public power that violates the rights recognized by the Convention, is illegal.  Whenever a State organ, official or public entity violates one of those rights, this constitutes a failure of the duty to respect the rights and freedoms set forth in the Convention.  This conclusion is independent of whether the organ or official has contravened provisions of domestic law or overstepped the limits of his authority.  Under international law, a State is responsible for the acts of its agents undertaken in their official capacity and for their omissions, even when those agents act outside the sphere of their authority or violate domestic law. [156]

124.          As for the effects of acts of violence or crime committed by private persons in violation of the right to the security or integrity of one’s person, States have an obligation to ensure this right to all persons subject to their jurisdiction, by implementing effective preventive measures and actions.  Although such measures are universal, particular attention should be devoted to those who are most vulnerable, especially women, children and adolescents.  Within the region, these groups are continually victimized by serious violations to the security and integrity of their person, both in cases of common and organized crime; the same is true on the domestic front, where violence seriously imperils the right to the security and integrity of their person.  The Declaration on the Elimination of Violence against Women establishes the responsibility of the States to exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the State or by private persons.  To this end, the States must develop penal, civil, labor and administrative sanctions in domestic legislation to punish and redress the wrongs caused to women who are subjected to violence; women who are subjected to violence should be provided with access to the mechanisms of justice and, as provided for by national legislation, to just and effective remedies for the harm that they have suffered; States should also inform women of their rights in seeking redress through such mechanisms.[157]  The Commission has indicated that

[t]he regional and international human rights protection systems have identified the right of women to live free from violence and discrimination as a priority challenge.  The international instruments adopted to protect women’s right to live free from violence reflect a consensus among States and their acknowledgement of the discriminatory treatment that women have traditionally received in their respective societies, which has exposed them to various forms of violence: sexual, psychological and physical violence, and abusive treatment of their bodies.[158]

125.          Similarly, the State has an obligation to create effective mechanisms for preventing and punishing acts of violence whose victims are children and adolescents, both at home, in the school and in other spheres of social life where threats of this kind can occur.  The Commission has mentioned this obligation of the member states in the past, and recommended the adoption of “strict monitoring of the situation of children and (…) any necessary measures to guarantee the rights of minors, especially those who are victims of domestic violence.”[159]  In Advisory Opinion OC-17/02 on the Juridical Condition and Human Rights of the Child, the Court elaborated upon the scope of the member states’ positive obligations in this area by pointing out that they are “under the obligation (…) to adopt all positive measures required to ensure protection of children against mistreatment, whether in their relations with public authorities, or in relations among individuals or with non-governmental entities.”[160]  The Expert for the United Nations Study on Violence against Children reported recently that

Community violence affects marginalized groups of children.  Violence by police against street children — from verbal harassment and beatings to rape and other sexual violence, torture and ‘disappearance’ — is a common theme in the study reviews and consultations.  Children from all regions report cruel and gratuitous violence by police for petty offences.[161]

126.          The measures to deal with common or organized crime or violent situations should always be informed by the obligations undertaken by the State, especially with respect to actions of its agents that may constitute torture or cruel, inhuman or degrading treatment.  Time and again the Commission has observed that under Article 6 of the Inter-American Convention to Prevent and Punish Torture,

(...) 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 8 provides that 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 (…).”

127.          When there is well-founded cause or reason to believe that an act of torture has been committed within their jurisdiction, the member states shall guarantee that the appropriate authorities proceed –ex officio and immediately- to conduct an investigation and to begin, where necessary, the respective criminal case.[162]  The case law of the Inter-American Court on the subject of torture has held that

[t]orture and cruel, inhuman and degrading treatment are strictly prohibited by international human rights law.  Nowadays, the absolute prohibition of torture, both physical and psychological, belongs to the domain of international jus cogens.  The Court has understood that an act that constitutes torture exists when the ill-treatment is: (a) intentional; (b) causes severe physical or mental suffering, and (c) is committed with a purpose or objective, including the investigation of crimes.[163]

128.          Under Article 10 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, one of the positive obligations that States must perform to prevent cases of torture or cruel, inhuman or degrading treatment by members of their police force is to ensure that they receive education and specialized training in criminal investigation techniques, especially evidence gathering and techniques of questioning detainees.  Likewise, internal oversight and monitoring systems are essential to prevent torture and cruel, inhuman or degrading treatment or punishment and, where necessary, punish police officers who engage in such conduct.  The Commission recalls that

[t]he ways in which evidence is gathered by police and presented to the prosecuting authorities and the courts are crucial to protection of the right to a fair trial.  This means that effective internal monitoring and supervisory systems must be in place to ensure that the conduct of police investigators in this respect is entirely proper.[164]

129.          While this is a general guideline as to the measures that States must take to comply with their duty to ensure and protect human rights in their policy on citizen security, given the possibility that State agents might resort to conduct that would qualify as torture or cruel, inhuman or degrading treatment, the domestic legal systems of the countries of the Hemisphere should include very clear regulations regarding the concept of due obedience.  The functions that the member states’ police forces perform must be properly delimited.  It is especially important that the rules regulating police procedure state clearly that no law enforcement officer can inflict, instigate or tolerate any act of torture or other cruel, inhuman or degrading treatment or punishment, and cannot invoke the defense of superior orders or exceptional circumstances such as a state of war, an attack on the country’s national security, political unrest or any other public emergency as justification for unlawful conduct.  The rules and philosophy of the police force and the training its members receive must emphasize the obligation that every member of the police force has to immediately report any case of torture or cruel, inhuman or degrading treatment of which he or she has knowledge and any order he or she may have received from superiors to subject a person to treatment of this kind.  All this is in accordance with that established in applicable international instruments, in particular the United Nations Convention against Torture, and the Inter-American Convention for the Prevention and Punishment of Torture.

130.          As for the special measures of protection that States must adopt, the Commission observes that the international instruments on children and adolescents contain specific provisions to prevent acts of torture or cruel, inhuman or degrading treatment.  Article VII of the American Declaration[165] and Article 19 of the American Convention[166] establish the right that minors under the age of eighteen have to protection.  Article 37 of the United Nations Convention on the Rights of the Child is even more specific with respect to this obligation.[167]  Because minors are more vulnerable, the Commission places particular emphasis on the member states’ obligation to investigate, ex officio, any situation in which there is evidence of acts of torture.  The Court has ruled the following in this regard:

Even when the application of torture or cruel, inhuman or degrading treatment has not been denounced before the competent authorities, whenever there are indications that it has occurred, the State must initiate, ex officio and immediately, an impartial, independent and meticulous investigation that allows the nature and origin of the injuries observed to be determined, those responsible to be identified, and their prosecution to commence.  It is essential that the State act diligently to avoid the practice of torture, taking into account that the victim usually abstains from denouncing the facts because he is afraid.  The judicial authorities have the duty to guarantee the rights of the person detained, which entails obtaining and ensuring the authenticity of any evidence that can prove acts of torture.  The State must guarantee the independence of the medical and health care personnel responsible for examining and providing assistance to those who are detained so that they can freely carry out the necessary medical evaluations, respecting the norms established for the practice of their profession.[168]

This general obligation is particularly important in those cases in which the children or adolescents who are the victims are Afro-descendents, indigenous, or migrants.

131.          Regarding the situation of women victims of torture, Article VII of the American Declaration[169] recognizes the particular vulnerability of women by upholding pregnant women’s right to special protection, assistance and care.  Article 1 of the Convention of Belém do Pará defines and prohibits violence against women.[170]  Article 4 of that same convention reaffirms every woman’s right to have her physical, mental and moral integrity respected, her right to personal liberty and security and her right not to be subjected to torture.[171]  In terms of the positive obligations of the member states to be fulfilled through their public policies on citizen security, the Convention of Belém do Pará includes the obligation to prevent, investigate and punish violence against women and the obligation to promote the education and training of all those involved in the administration of justice, police and other law enforcement officers as well as other personnel responsible for implementing policies for the prevention, punishment and eradication of violence against women.  As previously noted in this report, Article 9 of the Convention refers to women who are especially vulnerable “(...) by reason of, among others, their race or ethnic background or their status as migrants, refugees or displaced persons.  Similar consideration shall be given to women subjected to violence while pregnant or who are disabled, of minor age, elderly, socioeconomically disadvantaged, affected by armed conflict or deprived of their freedom.”[172]

132.          Member States must adopt the precautions necessary to ensure that the police force’s internal investigation systems are functioning properly to prevent and, where necessary, investigate and punish cases of torture.  The police internal affairs offices are basic monitoring mechanisms essential to transparent and democratic performance of State institutions, and should be matched by external monitoring by the legislature, the courts or quasi-courts.  It is vital that these internal mechanisms to monitor police procedures are run by special units that are not answerable to the police hierarchy.  The State must earmark the human and material resources to enable these units to be effective and efficient.  As the Commission has previously stated,

when an individual is in the custody of state agents, the State is responsible for the treatment accorded (…) Accordingly, it is up to the State, through its agents, to ensure that this type of situations be subjected to investigation and trial in order to find those responsible and thus keep these acts from going unpunished.[173]

These internal and external monitoring systems must follow the international standards for investigating cases of torture.  The Commission recently had occasion to reference the principles formulated by the United Nations Commission on Human Rights regarding the way in which complaints of torture should be investigated.  The following point was made: “Particularly relevant to this analysis is the principle stipulating that ‘States shall ensure that complaints and reports of torture or ill-treatment shall be promptly and effectively investigated…. the investigators, who shall be independent of the suspected perpetrators and the agency they serve, shall be competent and impartial’."[174] 

133.          As for the use of non-lethal force by State agents, States must regulate the procedures followed by their police so that –as observed earlier when discussing the use of lethal force- the interventions are those that are strictly necessary and the means used are lawful and informed by the principles of moderation, proportionality and graduality.  These principles must be observed in situations where the objective is to restrain and/or detain a person who is resisting the police authority’s lawful action, and in those police operations involving demonstrators or large groups of people that can result in violence or affect the rights of third parties.  The Commission has recently observed that

(...) the actions of the security forces should protect, rather than discourage, the right to assembly and therefore, the rationale for dispersing the demonstration must be the duty to protect people.  The law enforcement officer deployed in such contexts must contemplate the safest and quickest methods of dispersal that cause the least harm to the demonstrators.[175]

134.          As is true of other rights and as previously noted in this report, violations of the right to integrity or security of persons are often attributable to the fact that the police are not properly equipped for the lawful use of legitimate, non-lethal measures and are not properly trained.  Among the positive obligations that the member states have undertaken to protect and ensure the rights at stake in the policy on citizen security are the duties to adequately equip and train the members of their police force so that they can perform the functions expected and required of an effective and efficient professional service.  Member States must comply with the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, especially Principle VIII which stipulate that

all law enforcement officials are (to have) appropriate moral, psychological and physical qualities for the effective exercise of their functions and receive continuous and thorough professional training.  Their continued fitness to perform these functions should be subject to periodic review. ( …)  In the training of law enforcement officials, Governments and law enforcement agencies shall give special attention to issues of police ethics and human rights, especially in the investigative process, to alternatives to the use of force and firearms, including the peaceful settlement of conflicts, the understanding of crowd behavior, and the methods of persuasion, negotiation and mediation, as well as to technical means, with a view to limiting the use of force and firearms.  Law enforcement agencies should review their training programs and operational procedures in the light of particular incidents. (…) Governments and law enforcement agencies shall make stress counseling available to law enforcement officials who are involved in situations where force and firearms are used.[176]

C.        Right to personal liberty and security

135.          This right is recognized and protected under Article XXV of the American Declaration and Article 7 of the American Convention:

American Declaration - Article XXV No person may be deprived of his liberty except in the cases and according to the procedures established by pre-existing law.  No person may be deprived of liberty for non-fulfillment of obligations of a purely civil character.  Every individual who has been deprived of his liberty has the right to have the legality of his detention ascertained without delay by a court, and the right to be tried without undue delay or, otherwise, to be released.  He also has the right to humane treatment during the time he is in custody.

American Convention- Article 7(1) Every person has the right to personal liberty and security.  2.  No one shall be deprived of his physical liberty except for the reasons and under the conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto.  3.  No one shall be subject to arbitrary arrest or imprisonment.  4.  Anyone who is detained shall be informed of the reasons for his detention and shall be promptly notified of the charge or charges against him. 5.  Any person detained shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to be released without prejudice to the continuation of the proceedings.  His release may be subject to guarantees to assure his appearance for trial.  6.  Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful.  In States Parties whose laws provide that anyone who believes himself to be threatened with deprivation of his liberty is entitled to recourse to a competent court in order that it may decide on the lawfulness of such threat, this remedy may not be restricted or abolished.  The interested party or another person in his behalf is entitled to seek these remedies.  7.  No one shall be detained for debt.  This principle shall not limit the orders of a competent judicial authority issued for non-fulfillment of duties of support.

The right to liberty and security of person is also recognized in Article 9 of the Universal Declaration of Human Rights;[177] Article 9 of the International Covenant on Civil and Political Rights;[178] Article 37 of the Convention on the Rights of the Child;[179] and Article 4 of the Convention of Belém do Pará.[180]

136.          Kidnapping and human trafficking –among other activities of organized crime-- affect the right to liberty and security of persons in the Americas.  As explained above, States are not only responsible for the violation of rights recognized by the Convention carried out by an act of public authority or by persons who use their position of authority.  States can also be responsible for the conduct of private persons acting with the aid of, or due to, the acquiescence or omission of State agents; for the failures in the investigation of the violation; or the lack of due diligence to prevent it.  The member states have an obligation to enforce legislation and operational measures –by way of preventive actions and necessary and legitimate police work- so that their policy on citizen security is a dexterous and apt tool to ensure and protect the right to liberty and security of person against these kinds of criminal acts committed by private parties.

137.          The crime of kidnapping can mean deprivation of freedom for a protracted period, as in the case of kidnapping for ransom; or it may be for a very brief period, as happens in some forms of kidnapping common in the region, in which persons are abducted unlawfully for the purpose of getting money from them quickly (known in some countries of the Hemisphere as “express kidnapping”).  The Commission recognizes the enormous toll that this type of crime takes on its victims who –as mentioned previously in this report- are the immediate victims, along with their next of kin and loved ones.[181]  The member states should take the necessary measures to prevent criminal acts of this kind, which also put the victims’ rights to life and to the integrity of person in serious peril.  The member states should have the human and technical resources at hand for a proper police investigation and intelligence gathering; when necessary and as a last resort, they should also have special police units that can perform interventions with the minimum risk to the kidnapped victim’s life and integrity of person.  The Commission is troubled by the operations in the region that have failed because of bad planning or ill-trained or ill-equipped police, and that have resulted in loss of human life.  These situations could have been averted had the proper police procedures been followed

138.          Another problem that constitutes an egregious violation of the right to personal liberty and security is human trafficking.  The main victims of this type of crime are from particularly vulnerable sectors of the population:  women, children and adolescents, migrant workers and their families.  Article 3(a) and (c) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, which supplements the United Nations Convention against Transnational Organized Crime[182] provides that: “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.  Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs, and the recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered “trafficking in persons.“  Children are to enjoy special measures of protection from the State because of their vulnerability to possible violations of their human rights.  The Commission shares the United Nations principles and findings on this subject, especially the fact that

[t]rafficking in human beings, including children, within countries and across international borders is a major international concern.  The phenomenon is complex, arising from the interaction of poverty, labour migration, conflict, or political unrest resulting in population displacement.  Trafficking can involve multiple forms of Violence (…) Most victims are trafficked into violent situations: prostitution, forced marriage, and domestic or agricultural work in conditions of slavery, servitude or debt bondage.[183]

139.          In the types of action that must be integrated to the public policy on citizen security, member states must include legislative and institutional measures and earmark adequate human and material resources to prevent cases of human trafficking and, where necessary, investigate and prosecute those responsible for the crime.  Measures of this kind must be effective if they are to guarantee the right to personal liberty and security of the victims of this criminal practice.  The Commission observes that any policy on citizen security should include the United Nations’ Recommended Principles and Guidelines on Human Rights and Human Trafficking,[184] and specifically (1) the primacy of human rights; (2) trafficking prevention, addressing the root causes of this practice and factors conducive to it, while taking measures to eradicate State agents’ involvement or complicity in any phase of trafficking; (3) protection of and assistance to victims, which means that trafficked persons are not to be detained, charged or prosecuted for illegal entry if the latter was a consequence of their plight as trafficked persons.  Their prosecution for illegal entry would merely re-victimize them.  As for the institutions responsible for citizen security system, member states must take the necessary measures to carry out Guideline No. 2 of these Principles and Guidelines, so that victims and traffickers can be quickly identified.[185]

140.          On the need for special measures of protection for migrant workers and their families to protect them in cases of trafficking, the Inter-American Court, referencing the United Nations General Assembly resolution on Protection of Migrants,[186] has observed that one must always bear in mind

(...) ‘the situation of vulnerability in which migrants frequently find themselves, owing, inter alia, to their absence from their State of origin and to the difficulties they encounter because of differences of language, custom and culture, as well as the economic and social difficulties and obstacles for the return to their States of origin of migrants who are non-documented or in an irregular situation. (...).’  The General Assembly also expressed its concern ‘at the manifestations of violence, racism, xenophobia and other forms of discrimination and inhuman and degrading treatment against migrants, especially women and children, in different parts of the world.’ Based on these considerations, the General Assembly reiterated:  the need for all States to protect fully the universally recognized human rights of migrants, especially women and children, regardless of their legal status, and to provide humane treatment, particularly with regard to assistance and protection […].[187] 

The Commission observes that the right to personal liberty and security of migrants and their families is under constant threat in the Americas, among other reasons because of the difficulties that various States in the region continue to have in conducting, as part of their public policy on citizen security, effective measures to prevent human trafficking; prosecute the perpetrators of the crime, and provide proper treatment and assistance to the victims of this type of crime.

141.          Another form of deprivation of liberty that, although unique in nature, involves clearly identifiable criminal conduct, are cases of slave or forced labor still found in some countries of the region.  The Commission recently had occasion to address this deplorable criminal behavior, which it described as

(...) situations of slave-like debt bondage and forced labor, a practice that is absolutely prohibited by the American Convention on Human Rights and other international instruments (...).The United Nations Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery defines as practices analogous to slavery ‘debt bondage’ as well as ‘serfdom’, that is to say, the condition or status of a tenant who is by law, custom or agreement bound to live and labour on land belonging to another person and to render some determinate service to such other person, whether for reward or not, and is not free to change his status.[188]

The Commission has also pointed out that one of the factors that enable these forms of deprivation of freedom is the fact that States have no specific comprehensive policies to address them.  Specifically, the Commission has said that the State has “(...) the international obligation to eradicate bondage and forced labor in all of its territory and should immediately take all necessary measures to comply with this obligation.  Similarly, the State should adopt the measures needed to confront and resolve the legal, institutional, political, and other obstacles (...)” that allow these practices to go on.  The Commission has also called for the competent institutions in the citizen security system to adopt effective measures to “(…) investigate and punish those responsible for these crimes (...),” simultaneously putting into practice “…) victim and witness protection systems.”[189]  Additionally, it should be highlighted that Principle No. 10 of the Updated Set of principles for the protection and promotion of human rights through action to combat impunity (E/CN.4/2005/102/Add.1), establishes that “Effective measures shall be taken to ensure the security, physical and psychological well-being, and, where requested, the privacy of victims and witnesses who provide information to the commission.”  Within this framework, the police, members of the public prosecutor’s office and the court system need the professional training required to identify situations of this type, prevent them and, where necessary, bring the perpetrators of this violation of the right to personal liberty before the competent authorities.

142.          Public policy on citizen security must include the norms and procedures adequate for the lawful operational needs of the police so that they can fulfill their mandate and enforce the State’s duty to ensure and protect the human rights at risk in the face of violence and crime.  In many cases, the measures adopted for this purpose may involve temporary restrictions or limitations on the right to personal liberty, in order to preserve the general interest constituted by the rights of third parties in a democratic society.  In such circumstances, the Commission reiterates to the member states that they should adopt all necessary safeguards pursuant to international standards for the protection of human rights in order to avoid restrictions or unlawful or abusive limitations on the exercise of the right to personal liberty.

143.          As for the conduct of the agents of the State and the observance of the right to personal liberty and security, the Commission recalls that it recently defined “deprivation of liberty” as follows,

[a]ny form of detention, imprisonment, institutionalization, or custody of a person in a public or private institution which that person is not permitted to leave at will, by order of or under de facto control of a judicial, administrative or any other authority, for reasons of humanitarian assistance, treatment, guardianship, protection, or because of crimes or legal offenses.  This category of persons includes not only those deprived of their liberty because of crimes or infringements or non compliance with the law, whether they are accused or convicted, but also those persons who are under the custody and supervision of certain institutions, such as: psychiatric hospitals and other establishments for persons with physical, mental, or sensory disabilities; institutions for children and the elderly; centers for migrants, refugees, asylum or refugee status seekers, stateless and undocumented persons; and any other similar institution the purpose of which is to deprive persons of their liberty.[190]

144.          Article 7 of the American Convention establishes that arrests arbitrarily made without reference to the domestic law of the State parties amounts to a violation of the international obligations assumed by the States.  The Commission has emphasized that to establish an arrest’s compatibility with paragraphs 2 and 3 of Article 7 of the American Convention there must in the first place be a determination of its legality in a formal and material sense, that is, whether it has a lawful base founded on the domestic law, and that the rule in question is not arbitrary.  Finally there must be appropriate scrutiny that the application of the law in the specific case was not made arbitrarily.[191]

145.          The guarantee of the lawfulness of an arrest established in Article 7 envisages substantive and other formal or procedural aspects.  The substantive aspect requires that persons may only be deprived of their liberty in cases and circumstances laid down by the law.  The formal or procedural aspect requires that in the arrest of persons fulfilling any of the circumstances established by the law, the rules during the process of detention are observed.  Consequently it must be determined whether the national law setting out the reasons and procedures for arrest has been enacted in conformity with the rules and principles of the Convention in the light of a test of formality, legal definition, objectivity and rationality.[192]

146.          As far as the formality of the rule is concerned, Article 7(2) establishes that the grounds for an arrest must be laid down in the States’ constitution or laws established in accordance with a fundamental rule, in the sense that Article 30 of the American Convention attributes to the term ‘laws’.  Regarding specificity, the grounds and conditions of an arrest must be defined in law in a precise and predetermined manner.  Article 7(2) imposes the obligation to establish beforehand the grounds and conditions that may lead to an arrest being made.  On the other hand, the “unpredictability” of an arrest may raise the presumption of arbitrariness.  In addition, the procedures to which the arresting authority must be subject in order to justify the circumstances surrounding an arrest must be objectively defined by law.  The justification of the circumstances of an arrest must not depend on the good faith, the honesty, the opinion or discretionary view of the authorities charged with carrying it into effect.  At the same time the rule of restriction on personal liberty must be carried out with the requirements of reasonableness and proportionality seen in the light of Articles 30 and 32(2) of the American Convention.  Even when the rule permits the arrest of persons as a measure designed to achieve ends compatible with the American Convention, the principle of proportionality requires that the greater the restriction on liberty becomes, so the duty of the State to justify such a restriction is raised.[193]  Finally, it is possible to invoke a law compatible with the Convention in cases that are not really adequate to the circumstances for which an arrest may be considered legal.  Therefore, verification on the arbitrariness of the application of such law to the particular case is required also.  There may also be arbitrariness when the application of the law intentionally singles out for persecution a sector or group of the population defined by race, religion, national or social origin, or political views.  Arbitrariness also exits in the case of a subversion of power, when a law is interpreted in an irrational manner in order to be used as a tool of repression or social discipline.[194]

147.          The Court has indicated that the detainee has “the right to be informed of the causes and reasons for his or her detention at the time it occurs, which ‘constitutes a mechanism to avoid illegal or arbitrary detentions from the very moment of imprisonment and, at the same time, ensures the individual’s right to defense’.”[195]  The detainee’s next of kin and loved ones also have the right to be notified of his or her detention.  The Court has ruled that the “detainee also has the right to notify a third party that he or she is under State custody.  This notification can be, for example, to a relative, an attorney and/or a consul, as the case may be.”[196]  The Commission has remarked on how important notification of a consul is in the case of the persons who are most vulnerable in situations where citizen security is at stake, namely migrant workers and their families.  At the same time, all deprivation of liberty undertaken by State agents must immediately be brought to the attention of the competent judge:

The first part of Article 7(5) of the Convention stipulates that any person detained must be brought promptly before a judge.  The Court has determined that this is a measure designed to avoid arbitrary or unlawful detentions, taking into account that, under the rule of law, the judge is responsible for guaranteeing the rights of the detained person, authorizing the adoption of precautionary or coercive measures when strictly necessary, and generally endeavoring to ensure that the accused is treated in a way that is consequent with the presumption of innocence.  (…) The Court has reiterated that the judge must hear the detainee personally and assess all the explanations that the latter provides, so as to decide whether it is in order to release him or to maintain the deprivation of liberty.  Otherwise, it would be tantamount to stripping the judicial review established in Article 7(5) of the Convention of its effectiveness.[197]

148.          The frequency with which acts of violence occur and the increase in the rates of crime overall have meant that in a number of countries in the Americas, the institutions involved in public security have also seen an increase in the number of interventions involving children and adolescents.  There has been a steady increase in the number of persons under the age of eighteen who have been detained by police and/or deprived of their liberty by order of the court.  When examining specific situations, the Commission has consistently held “(...) the arrest of a person suspected of having committed a crime must be done in accordance with domestic and international law; i.e., by an order from the court and under court supervision, and for a specified period.  In practice, however, these requirements are often ignored, even in cases involving minors (...).”[198]  The Commission also reiterated that the majority of arbitrary and/or illegal arrests are made by the police.  It expressed its concern over the fact that some countries of the region do not have “(…) a centralized record of arrests and detentions and that would enable one to effectively track the detainees; there are cases of obstruction of justice by altering police reports,” especially in the case of minors under the age of eighteen.[199]

149.          The member states must operate from the premise that solitary confinement is a last resort and should be for as brief a period as possible.  The police can use measures of this kind when launching an investigation into a criminal act at the crime scene, and must immediately inform the competent judge of the situation.  Apart from these exceptional cases, solitary confinement can only be ordered by the presiding judge.  The Inter-American Court has held the following in this regard:

This Court has emphasized that solitary confinement of the detainee must be exceptional, as it causes him or her moral suffering and psychological disturbances, as it places the detainee in an especially vulnerable situation and increases the risk of aggression and arbitrary treatment in prisons, and because it endangers strict observance of due legal process.[200]

150.          When the sector of the population involved is one that requires special measures of protection, the Commission recalls the international standards that must inform the deprivation of liberty in the case of children and adolescents.  The Inter-American Court has held that “(...) [w]hen preventive detention is ordered for children, the rule must be applied with even greater rigor, since the norm should be measures that are alternatives to preventive imprisonment.”[201]  The Court has also ruled that detention of children “(…) must be exceptional and for the briefest time possible.”[202]  The Court has also examined the State’s duty to ensure in the case of children or adolescents in its custody and deprived of their liberty as a result of police actions or by decision of the competent court authorities.  The Court reiterates that the State must take “(…) all care required by the weakness, the lack of knowledge, and the defenselessness that minors naturally have under those circumstances.”[203]  The Court has held that in order to comply with its obligation to protect and ensure the life of a minor under the age of eighteen who is deprived of his or her liberty, the State must be attentive to certain specific aspects, especially the “(…) living conditions while deprived of his or her liberty, as the child’s detention or imprisonment does not deny the child his or her right to life or restrict that right.”[204]

151.          Detained persons have the right to live in conditions of detention that are compatible with their personal dignity and the State must guarantee their right to life and to humane treatment.  State authorities exercise total control over persons under their custody and therefore States are guarantors of the physical integrity of detainees.

152.          The member states must take the measures necessary to ensure that children or adolescents deprived of their liberty, be separated from the adult population in custody, that they are housed in proper establishments and in the custody of specially trained personnel, and other measures dictated by the need to protect the rights of inmates under the age of eighteen.  To give effect to this obligation, the Court has ruled that

(...) the State’s policy must include, inter alia, strategies, appropriate measures and the earmarking of the resources needed so that children awaiting or standing trial can be housed separately from those already convicted, and for the establishment of education programs and full medical and psychological services for all children deprived of their liberty.[205] 

These requirements have also been singled out in the Report of the Independent Expert for the United Nations Study on Violence against Children, who held that

[i]n keeping with the provisions of the Convention on the Rights of the Child, national legislation in most countries requires separate facilities for children in conflict with the law in order to prevent abuse and exploitation by adults.  Yet detention with adults is routine in many countries.  Children in detention are also at heightened risk of self-harm or suicidal behavior, particularly in cases of prolonged or indefinite detention, isolation, or when detained in adult facilities.[206]

153.          The Commission calls the States Parties attention to the fact that policies on citizen security should feature provisions that specifically address the situation of minors under the age of eighteen who are confined either because of a court-ordered precautionary measure or a conviction handed down by a competent court.  According to the study prepared by the Independent Expert for the United Nations Study on Violence against Children, the human rights of minors under the age of eighteen are particularly at risk when they are housed in establishments in the region that are reserved for criminal sentences.  They are even at risk of violence from the adult population.  The Commission shares the study’s finding that

[o]vercrowding and squalid conditions, societal stigmatization and discrimination, and poorly trained staff heighten the risk of violence.  Effective complaints, monitoring and inspection mechanisms, and adequate government regulation and oversight are frequently absent.  Not all perpetrators are held accountable, creating a culture of impunity and tolerance of violence against children.[207]

154.          The situation of persons deprived of their liberty lead the Commission to issue a document titled “Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas.”[208]  Among the instruments adopted in the context of the universal system for the protection of human rights are the Standard Minimum Rules for the Treatment of Prisoners and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

155.          In this context, it is pertinent to highlight in this report that there is a direct relationship between the proper functioning of the prison system and the States’ obligation to protect and ensure the human rights directly at stake in the policy on citizen security.  Most prison institutions in the region are today a breeding ground for the violence with which the societies in the Hemisphere are coping.  In the Commission’s view, the priorities of the public policies that the member states of the region put into practice for citizen security should be measures to prevent violence and crime in the three generally accepted categories:  (1) primary prevention, which are measures directed at the entire population, and have to do with programs in public health, education, employment and instruction in observance of human rights and building a democratic citizenry; (2) secondary prevention, which involves measures that focus on individuals or groups who are more vulnerable to violence and crime, using targeted programs to reduce the risk factors and open up social opportunities; and (3) tertiary prevention, which involves individualized measures directed at persons already engaged in criminal conduct, who are serving a sentence or have recently completed their sentence.  Particularly important here are the programs that target persons serving prison sentences.

156.          The Commission has established general criteria that, in its view, are the minimum standards that prison facilities in the Americas must meet under the international system of laws for the protection and guarantee of human rights.  The requirements that the Commission has mentioned include:  decent prison conditions for inmates and their families, and for the staff who work there; measures to prevent overcrowding; adequate amounts of food, proper levels of hygiene and internal security; measures to ensure that inmates are separated into appropriate categories; prevention of internal violence; prison services, which are to include medical and therapeutic treatment, among others.[209] The Commission also pointed out the principal problems with the prison systems in the region, which include:  excessive and unnecessary use of force and punishments; the systematic practice of physical abuse by prison staff; the use of isolation in subhuman conditions; the widespread practice of denigrating and humiliating bodily searches of visitors, especially women and children, and the housing of the mentally disabled and the elderly in prison establishments.  Other problems include social rehabilitation programs that are inadequate and poorly resourced; by extension, only a small percentage of the prison population has access to job training or educational programs.[210]

157.          The policies that promote deprivation of liberty as a tool for reduction of violence and crime rates, with debatable efficacy, have in fact increased the prison population.  However, the vast majority of the countries of the region did not have –and do not have- either the infrastructure or the technical and human resources that their prison systems need in order to ensure that persons deprived of their liberty will receive humane treatment and to make that system an effective tool for preventing violence and crime.  The obligations that the member states have undertaken vis-à-vis the human rights directly at stake in public policies on citizen security make it incumbent upon them to design and put into practice programs to bring their codes of criminal procedure, infrastructure, and the human and material resources assigned to the prison system to a level that guarantees that sentences delivered by courts of law are served under conditions that strictly conform to international standards in this area.  The Commission must underscore that no plan or program to prevent and control violence and crime can succeed if it fails to make the issue of the prison system part of a public policy on citizen security.

D.        Right to a fair trial and to judicial protection

158.          The rights to a fair trial and to judicial protection are recognized in Articles XVIII and XXVI of the American Declaration and 8(1) and 25 of the American Convention:

American Declaration - Article XVIII.  Every person may resort to the courts to ensure respect for his legal rights.  There should likewise be available to him a simple, brief procedure whereby the courts will protect him from acts of authority that, to his prejudice, violate any fundamental constitutional rights.  Article XXVI.  Every accused person is presumed to be innocent until proved guilty.  Every person accused of an offense has the right to be given an impartial and public hearing, and to be tried by courts previously established in accordance with pre-existing laws, and not to receive cruel, infamous or unusual punishment.

Every accused person is presumed to be innocent until proved guilty.  Every person accused of an offense has the right to be given an impartial and public hearing, and to be tried by courts previously established in accordance with pre-existing laws, and not to receive cruel, infamous or unusual punishment.

American Convention - Article 8(1) Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature. (2)    Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law.  During the proceedings, every person is entitled, with full equality, to the following minimum guarantees: a.  the right of the accused to be assisted without charge by a translator or interpreter, if he does not understand or does not speak the language of the tribunal or court; b.  prior notification in detail to the accused of the charges against him; c.  adequate time and means for the preparation of his defense; d.  the right of the accused to defend himself personally or to be assisted by legal counsel of his own choosing, and to communicate freely and privately with his counsel; e.  the inalienable right to be assisted by counsel provided by the state, paid or not as the domestic law provides, if the accused does not defend himself personally or engage his own counsel within the time period established by law; f.  the right of the defense to examine witnesses present in the court and to obtain the appearance, as witnesses, of experts or other persons who may throw light on the facts; g.  the right not to be compelled to be a witness against himself or to plead guilty; and h.  the right to appeal the judgment to a higher court. (3)    A confession of guilt by the accused shall be valid only if it is made without coercion of any kind. (4)    An accused person acquitted by a nonappealable judgment shall not be subjected to a new trial for the same cause. (5)    Criminal proceedings shall be public, except insofar as may be necessary to protect the interests of justice.

Article 25 ( 1) Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties. (2)  The States Parties undertake: a.  to ensure that any person claiming such remedy shall have his rights determined by the competent authority provided for by the legal system of the state; b.  to develop the possibilities of judicial remedy; and c.  to ensure that the competent authorities shall enforce such remedies when granted.

These rights are also recognized in Articles 10 and 11 of the Universal Declaration,[211] Articles 14 and 15 of the International Covenant on Civil and Political Rights,[212] Article 4 (g) of the Convention of Belém do Pará,[213] and others.

159.          The member states must be particularly careful to comply with their international obligations to protect and ensure the right to due process and a fair trial when putting into practice the measures that are part of their policies to prevent and control acts of violence and crime.  The Commission is disturbed by the fact that this right is constantly in jeopardy in the region; schools of thought frequently surface arguing that these guarantees are an impediment to proper police and judicial investigation of acts of violence or crime.  In certain specific situations, these schools of thought have materialized into legal reforms that constitute clear-cut violations of the international commitments the member states have undertaken to protect and ensure human rights.

160.          The Commission has recently had occasion to address the procedural and substantive protections inherent in the right to judicial guarantees, and reiterated its position when addressing the standards that the State must observe when implementing policies to deal with the problems caused by violent and criminal acts.  Similarly, the Commission reasserts that the internationally accepted basic principles of criminal law must be the barometer for measuring the degree of protection and guarantees.  Of these principles, the Commission has mentioned the following: the principle of presumption of innocence; and the principles of nullum crimen sine lege, nulla poena sine lege, and non bis in idem.  The Commission recalls that under the principles of legality and non-retroactivity that are part of Article 9 of the American Convention and Article 15 of the International Covenant on Civil and Political Rights, States must refrain from incorporating into their domestic legal systems open-ended definitions of crime; instead, their criminal law systems must give very precise and unequivocal definitions of crimes and the penalties they carry.[214]

161.          In the case of the principle of presumption of innocence, the Commission held that “this presumption can be considered violated where a person is held in connection with criminal charges for a prolonged period of time in preventative detention without proper justification, for the reason that such detention becomes a punitive rather than precautionary measure that is tantamount to anticipating a sentence.”[215]  The Court has elaborated upon the principle of presumption of innocence in a number of its rulings, establishing specific criteria to determine what can be considered a protracted and unjustified or unwarranted period of detention.  For the Court,

[p]reventive detention should not be prolonged when the reasons that gave rise to the adoption of the precautionary measure no longer exist.  The Court has observed that the national authorities are responsible for assessing the pertinence of maintaining the precautionary measures they issue pursuant to their own body of laws.  When exercising this task, the national authorities should provide sufficient grounds to permit the reasons for which they are maintaining the restriction of liberty to be known and, to ensure that this is compatible with Article 7(3) of the American Convention, it should be based on the need to ensure that the person detained will not impede the development of the investigation or evade the action of justice.  The personal characteristics of the supposed perpetrator and the gravity of the offense he is charged with are not, in themselves, sufficient justification for preventive detention.  Despite this, even when there are reasons for keeping a person in preventive detention, Article 7(5) guarantees that he will be released if the detention period has exceeded a reasonable time.[216] 

162.          It must be reiterated that the member states have a duty to adopt measures to lawfully prevent, deter and suppress violent and criminal acts, and these measures must be conducted within the framework afforded by the international system of laws on the protection and guarantee of human rights.  The Commission has a number of specific standards that the States must take into account when crafting the normative tools that will become part of their public policy on citizen security.  While these standards must be observed regardless of the type or form of crime is involved, they are particularly relevant in the case of the State’s interventions against organized or complex crime.  Specifically, the Commission is compelled to point out that

criminal prosecutions must comply with the fundamental requirement that no one should be convicted of an offense except on the basis of individual penal responsibility, and the corollary to this principle that there can be no collective criminal responsibility (...) This restriction does not, however, preclude the prosecution of persons on such established grounds of individual criminal responsibility such as complicity, incitement, or participation in a common criminal enterprise, nor does it prevent individual accountability on the basis of the well-established doctrine of superior responsibility.[217]

Another requirement that Inter-American jurisprudence has repeatedly affirmed concerns the independence and impartiality of the courts.[218]   Time and again the Commission has denounced the creation of special courts or tribunals that displace the jurisdiction belonging to the ordinary courts or judicial tribunals and that do not use the duly established procedures of the legal process.  This has included in particular the use of ad hoc or special courts or military tribunals to prosecute civilians for security offenses in times of emergency, which practice has been condemned by this Commission, the Inter-American Court and other international authorities.  The basis of this criticism has related in large part to the lack of independence of such tribunals from the Executive and the absence of minimal due process and fair trial guarantees in their proceedings.[219]

163.          It is also necessary to emphasize the importance of administrative and disciplinary mechanisms of accountability in those cases that may involve a responsibility of police forces for abuse of authority, violence or the disproportionate use of force.  As far as these internal control mechanisms over the functioning of the police forces may result in a change or cessation of the function of the agents involved in the violation of a human right, the outcome involves the public interest.  Therefore, the proceedings must be handled by independent authorities; any state agents or state agencies directly or indirectly involved in the facts under investigation should abstain from intervening; and victims must have the opportunity to participate in the proceedings.  In some countries, these proceedings are exclusively employed to investigate disciplinary matters and are not considered a remedy for inadequate policing.  In such jurisdictions, victims are excluded from the proceedings on the grounds that their interests are irrelevant to the institutional interests of the police force.  The Commission considers that even in those cases States must ensure the participation of the victims whenever these proceedings involve accountability for abuse of force, arbitrary detentions or other conduct that may compromise the enjoyment of the rights protected in the American Convention.[220]

164.          Again in reference to these minimum standards or conditions, the lawful measures that States undertake to deal with the threats of violence and crime must not disregard the right of every person accused of a crime to be brought to trial within a reasonable period of time; his right to be duly notified of the charges against him, and his right to defend himself on his own or through the services of an attorney of his choosing or one provided by the State at no cost to the accused.  These protections also include “the right to adequate time and means for the preparation of his defense, to examine witnesses present in the court, and to obtain the appearance, as witnesses, of experts or other persons who may shed light on the facts.  Further, a defendant must not be compelled to be a witness against himself or to plead guilty, and must be afforded the right to a public trial and the right to appeal the judgment to a higher court.  In cases where the defendant does not understand or speak the language of the court or tribunal he must be assisted without charge by a translator or interpreter.”[221]

165.          With respect to the right to judicial protection, States violate their obligations to protect and ensure human rights when the system for the administration of justice is not an effective and efficient tool to provide satisfaction to victims of violence and crime.  The Commission has observed that the proper administration of justice is an essential element in ensuring that individuals responsible for violations of the right to life and other rights are identified, held responsible and punished.  Under Articles 8 and 25 of the American Convention, States parties have an obligation to provide effective judicial remedies to victims of human rights violations and to support them in accordance with the rules of due process within the framework of the general obligation to guarantee the free and full exercise of rights recognized under the Convention with respect to each person under their jurisdiction.

166.          The relationship of citizen security to the right of judicial protection relies on a system for the administration of justice that affords a rapid, effective and efficient response to victims of violence and crime.  The Commission has issued repeated pronouncements to this effect.  Thus, it observed that in many countries of the region, the administration of justice is another area in crisis as

judicial institutions in many states do not have adequate resources; not all segments of the population have effective access to the administration of justice.  The result is a sense of impunity that often causes people to take justice into own hands.  Many judges still do not have tenure and can be removed without benefit of the basic protections of due process.  Many have been the targets of threats, as have prosecutors, witnesses and others involved in the administration and pursuit of justice.  Member States must take the necessary steps to respond to threats of this nature and to ensure the independence and effectiveness of their judicial institutions.[222]  

Every State’s public policy on citizen security should feature the necessary normative and budgetary provisions to give everyone access to a reliable system for the administration of justice.  A number of factors are involved here, one of which is a system of tenure for judges.  The consolidation of a transparent judicial career and the resulting job stability that have obtained tenure in strict compliance with the procedures established constitutionally and legally, is fundamental to guarantee the independence and impartiality in their performance and has direct effects on the strengthening the access to justice.[223]

167.          The impunity common in many regions of the Hemisphere is also associated with high levels of corruption, which is an obstacle to the proper administration of justice and thereby serves to heighten fear and the sense of insecurity vis-à-vis violence and common and organized crime, especially among the more vulnerable sectors of the population.  The Commission has repeatedly spoken out about these problems.  It observed that

the phenomenon of corruption is not only related to the legitimacy of public institutions, society, the integral development of peoples, and all other more general aspects mentioned supra, but also has a specific impact on the effective enjoyment of human rights in society in general. (…) The corruption of the judge in a particular trial undermines his or her independence when deciding the case, and may consequently constitute a violation by the state of …the guarantee that all persons will be judged by an independent and impartial judge, enshrined in Article 8(1) of the American Convention. (…) The relationship between corruption and human rights has also been addressed from the perspective of discrimination (…) there is discrimination when a public official accepts money or other gifts or favors from a person, given that said person then acquires a privileged status in relation to other persons.[224]

168.          While any victim of crime or act of violence may have difficulty getting justice, those difficulties are compounded for those sectors of the population that have historically been the most vulnerable:  children, adolescents, women, the indigenous population, Afro-descendents, migrant workers and their families.  States must take all measures necessary to ensure that all persons within their territory have equal access to the administration of justice.  This is particularly important in those States of the Hemisphere whose population consists of multiple ethnic groups who represent diverse cultures and languages.  In a specific case involving someone who had to appear in court in a multilingual society, without being afforded the benefit of a translator or interpreter, the Commission provided that this “constitutes not only a violation of the judicial guarantees provided for in Article 8 of the American Convention, but it also represents a clear irregularity in the process, as they were unaware of the contents of the statement they signed before the prosecutor’s office.”[225]   As to the situation of women in the region, the Commission has repeatedly warned that

(…) one serious outcome of the cycle of violence against women is the impunity associated with those violations of the fundamental rights of women.  Both state authorities as well as representatives of civil society said repeatedly during our visit that the system for administering justice had not responded effectively to those crimes and this has given rise to impunity and an increased sense of insecurity among women.  During the week, the delegation followed the steps that must be taken by a victim in her search for justice.  Our experience (…) was finally that the justice to which women are entitled is nowhere to be found.[226]