PERMANENT COUNCIL OF THE ORGANIZATION OF AMERICAN STATES
REPORT OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS TO THE
THE PRESIDENT OF THE COURT
San José, March 10, 1998
I have the honor to address Your Excellency and to acknowledge receipt of your kind letter dated February 17, 1998, requesting me to present a report of the Inter-American Court of Human Rights in compliance with the Plan of Action of the Summit of the Americas.
As you requested, I am attaching to this letter the "Report of the Inter-American Court of Human Rights to the Special Committee on Inter-American Summits Management." This report contains current information on the activities of the Court and the progress made since the last report was presented.
Accept, Excellency, the renewed assurances of my highest consideration.
Hernán Salgado Pesantes
REPORT OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS TO THE
The Inter-American Court of Human Rights (hereinafter the Court, the Tribunal or the Inter-American Court) has a sphere of competence limited to the application and interpretation of the American Convention on Human Rights (hereinafter the Convention or the American Convention).
On the basis of this principal function, the Court has cooperated in strengthening the defense of human rights in the Americas by developing a significant body of jurisprudence by settling the various contentious cases submitted to it for consideration and issuing advisory opinions. Besides these, there is the mechanism for adopting provisional measures, increasingly used by the Inter-American Commission to enable the Court to prevent irreparable harm to individuals in grave and urgent situations whose cases are not necessarily being heard by the Court.
The development and implementation of these instruments and procedures has given the inter-American system sufficient resources to permit the states parties to the American Convention, and even those states that are still not parties, to take preventive measures to protect human rights in their territories. These consist of adopting legislative and other measures to adapt their internal law to the provisions of the American Convention and refraining from violations of human rights by following judgments already handed down against other states, which have come to be treated as "leading cases."
Rights protected in the Convention
In its substantive judgments, the Court has referred to the substantive rights protected in the Convention: Right to Life;/ Right to Humane Treatment;/ Right to Personal Liberty;/ Right to a Fair Trial;/ Right to Equal Protection;/ and the Right to Judicial Protection./ In addition, the Court has referred to the basic obligations of states to respect those rights: Obligation to Respect Rights,/ and the obligation to adopt domestic legal measures./ A list of all the matters resolved by the Court appears in the annex to this document.
This jurisprudence is a valuable contribution to the thinking on the American Convention and the system in general since, in addition to authorized interpretations of the provisions, it includes studies of several of its procedural institutions.
The Court, however, has not yet had the opportunity to issue judgments on a wide range of rights/ of which its judicial interpretation would be valuable. Refinement of the system depends greatly on expanding the variety of subjects on which the Court rules. Although in the strict legal sense the Court's judgments only bear upon the specific cases for which they are rendered, they also provide guidance to all the states by concretely interpreting the rights established in the Convention.
Among matters settled by the Courtin both judgments and advisory opinionsseveral subject areas stand out as possibly representing common violations by certain member states of the OAS. These include:
Widespread forced disappearance;/
Torture or cruel, inhumane, or degrading treatment;/
Violations of due process in criminal proceedings,/ with the emphasis on:
Strengthening of the Inter-American Court
At the 1994 Summit of the Americas in 1994, held in Miami, a Plan of Action was established in which the states agreed to undertake activities to promote and protect human rights. Among them was Further strengthen the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights.
With respect to the Court, the effort made by the OAS General Secretariat to give it administrative independence, in full compliance with Article 59 of the American Convention, should be noted. On January 1, 1998, OAS Secretary General Cesar Gaviria Trujillo and the President of the Court, Dr. Hernán Salgado Pesantes, signed the Agreement between the General Secretariat of the OAS and the Inter-American Court of Human Rights on the Administrative Functioning of the Secretariat of the Court. This instrument gave the Court independent authority to administer its own budget and to select and hire personnel. At this time, the staff of the Court is appointed by the Secretary General of the OAS, but as Court staff.
It would not have been possible to execute this agreement this year if the member states of the Organization had not given the Inter-American Court the funding it needed to hire enough professional staff to deal with the new challenge. When the General Assembly approved the Courts budget for 1998, the necessary step was taken for the staff of the Court Secretariat to become permanent and to have the same guarantees and benefits as all other OAS staff members. Nevertheless, some professional Court staff still do not receive salaries comparable to those of other General Secretariat staff at the same level.
Strengthening the Inter-American Human Rights System
In 1996 the General Assembly instructed the Permanent Council to evaluate the workings of the inter-American human rights system and undertake a process aimed at improving it, "possibly by modifying the respective legal instruments as well as the methods and working procedures of the Inter-American Commission on Human Rights, for which it shall request the cooperation of the Commission and the Inter-American Court of Human Rights ."
In December of 1996, the OAS Secretary General presented to the Permanent Council a working document entitled Toward a New Vision of the Inter-American Human Rights System, which has served as the basis for general discussion of possible reforms of the system and a number of conferences on the topic that have made it the most timely subject under consideration.
Within this context, the Court, at the request of the Committee on Juridical and Political Affairs of the Permanent Council, presented a document entitled The Court and the Inter-American Human Rights System: Perspectives and Challenges. It also participated in a seminar organized by the Inter-American Commission, called The Inter-American System for the Promotion and Protection of Human Rights and held in Washington, D.C., from December 2 to 4, 1996. The seminar's conclusions stated that the system's problems are mainly procedural in nature, "and thus their solution does not require amendment or modification of the text of the Pact of San Jose."/
In anticipation of this process of examination and reform of the system, the Court revised its Rules of Procedure during its 23rd regular session and issued a new version that went into effect on January 1, 1997. These new Rules of Procedure have the virtue of providing a reorganized Court procedure that is more consistent with the nature of an international human rights mechanism, and have eliminated certain procedural steps that were geared toward international litigation among states. These changes have made the process more expeditious. The most radical change, however, was the amendment enabling victims of human rights violations or their relatives to participate directly, independently from the Commission, in the reparations phase of Court proceedings. This has brought the victim closer to having locus standi before the Court, even though he may not have such standing at other stages of the proceedings.
With this change, the Court complied in part with General Assembly resolution AG/RES.1488 (XXVII-O/97) (Evaluation and Improvement of the Workings of the Inter-American System for the Promotion and Protection of Human Rights), which instructed the Permanent Council to continue "its comprehensive consideration of the various aspects of that system, formulating recommendations, as appropriate and through the corresponding organs, concerning possible reforms of the applicable legal instruments" (underscoring not in original).
Another measure taken by the Court to improve the system was to increase the number of sessions to five per year in 1997. In 1998, the plan is to hold another five sessions and, in this way, to hand down a larger number of rulings and resolutions to keep the docket of subjects manageable under the current circumstances and with the limited resources available.
An important point is that, despite its budgetary constraints, in 1997 the Court rendered six judgments, one advisory opinion, and a considerable number of resolutions involving provisional measures. For 1998, the plan is to issue approximately seven judgments, apart from any resolutions necessary for provisional measures.
With the increase in cases referred by the Commission to the Court (two in 1997 and two more so far this year), the number of pending cases before the Court is 28. Although this clearly demonstrates that the system is operating steadily, it is also increasingly difficult for a nonpermanent court to handle this number of cases.
Furthermore, the growing caseload has necessitated increased Court-Commission dealings, and thus the joint meetings to coordinate logistical and administrative steps must be held at least once a year.
Specifically, General Assembly resolution AG/RES.1330 (XXXV-O/95) provided:
7. To recommend to the Inter-American Court of Human Rights that its Annual Report include specific details regarding not only the purposes of its periodic meetings with the Inter-American Commission on Human Rights but also the results of those meetings.
In that connection, on September 6 and 7, 1997, the full Court and its secretaries held a working meeting at the headquarters of the Court in San Jose, Costa Rica, with a number of members of the Inter-American Commission and its secretaries. Several important decisions were made in that meeting on procedural and institutional matters, especially:
Among the Court's institutional relations with other international human rights bodies, the following 1997 activities should be mentioned:
Meeting Between the Inter-American Court and the European Court of Human Rights
On November 4 and 5, 1997, the full Court and its secretaries held a working meeting with representatives of the European Court of Human Rights, headquartered in Strasbourg, France. The two Courts are now the only regional international human rights courts in operation. The meeting dealt with matters of common interest to the two Courts. Specifically, they examined in detail the evolution of rules and jurisprudence of the European and Inter-American Courts of Human Rights, 1992-1997 (under judges Franz Matscher of the European Court and Hector Fix-Zamudio of the Inter-American IDH Court); effects of the entry into force of Protocol XI and changes in the structure of the European Court of Human Rights (under judge Rolv Ryssdall, President of the European Court); and possible amendments to improve the inter-American human rights system (under judge Antonio A. Cançado Trindade, Vice President of the Inter-American Court). The other representatives of the European Court were Judge Alphonse Spielmann and Herbert Petzold, secretary.
Cooperation Agreement with the Supreme Court of Justice of the Republic of Costa Rica
At its 35th regular session, the Inter-American Court signed an agreement on cooperation in the areas of information and document processing with the Supreme Court of Justice of the Republic of Costa Rica. This agreement involves collaboration on technical and analytical aspects of data processing and organization. The two institutions also agreed to provide each other access to their databases and information on their jurisprudence and to work jointly on publications and academic activities. The agreement will remain in force for four years from the date of signature. It can be extended for periods of two years up to a maximum of ten years, and may be renewed at the request of one of the parties upon acceptance by the other.
Project on Support to the Inter-American Court of Human Rights with the European Union
On June 13, 1997, Judge Hector Fix-Zamudio, then president of the Court, and Dieter König, Ambassador and Head of Delegation of the European Union in Costa Rica, signed in San José, Costa Rica, an agreement covering the third phase of the project on support for the Inter-American Court of Human Rights. This project, funded by the European Union, is mainly designed to strengthen and modernize the inter-American system for the protection of human rights by supporting the work of the Inter-American Court. The first two phases of the project, which was launched in 1994, have been carried out successfully. They dealt mainly with publications of jurisprudence and important documents of the Court, computerized operations, and improvement of the library.
Through the European Unions sponsorship, the editorial backlog has been corrected with the publication of ten advisory opinions (Series A), 12 judgments in contentious cases (Series C), extracts of 10 contentious proceedings (Series D), two advisory opinions (Series B), and a compendium of provisional measures (Series E - No.1). Continuous work in this area is an ongoing task and a statutory requirement. Furthermore, the systematic publication of jurisprudenceto which the project has also contributedshould be maintained and supplemented with publications of a promotional type (brochures, manuals, catalogues, compendiums, etc.). The latter efforts make a significant contribution to spreading knowledge to universities, study and research centers, libraries, attorneys, scholars, and the public at large about the inter-American system, international legal instruments, the operations of the Court, available publications, and any other matter of interest.
Thanks to the first and second stages of the project, the Court library is equipped to set up an electronic human rights data center, under the auspices of the European Union. This will allow it to offer the broadest range of information on human rights and related matters, an essential resource for the user. All the Courts judgments, advisory opinions, and other publications series will be in the holdings of this information center. It will use a universal electronic publication format (HTML) accessible by any computer over the Internet.
The plan for this third stage is to prepare and print 27 publications on contentious cases and advisory opinions of broad interest, not only to states of the inter-American system but also to university professors, students, researchers and the public at large. Also planned is a reissue of the first commemorative book on the Court; high demand outstripped the supply over five years ago. Plans include as well an account of the Court's formation; a reprint of the compendium of provisional measures, including updates; and the book on systematic arrangement of the contentious jurisprudence of the Court. These four additional publications make a total of 31 for the third phase of the project.
Agreement with the International Institute of Human Rights
On July 8, 1997, an academic cooperation agreement was signed with the International Institute of Human Rights, headquartered in Strasbourg, France.
The agreement covers cooperation on academic matters and research. The two institutions agreed to exchange publications and to collaborate in any academic endeavors they pursue. In addition, the International Institute of Human Rights agreed to provide a full annual fellowship, including fees and living expenses, for participation in its annual study meetings by one staff member of the Court Secretariat. The Court agreed to fund travel to Strasbourg for the persons designated to participate in that meeting. The agreement is in effect as of the date of signature and will remain in effect indefinitely.
Agreement with the Danish Human Rights Center
In 1997, a program under a cooperation arrangement between the Court and the Danish Human Rights Center (DANIDA) was launched. The purpose is to provide the legal department of the Court Secretariat with the professional services of a European attorney.
Other Promotion Activities
Although the Court does not have the authority to carry out human rights promotion activities, a function that more clearly assigned to the Inter-American Commission,/ it does have constant concerns in this area. Through an agreement with the Government of Costa Rica, the Inter-American Institute of Human Rights was established to fulfill that function through an international institute that would not have any of the inherent impediments of an international court. Even so, the Court is not entirely at a distance from the promotion of human rights in the Americas. This is evidenced by the various activities described in the project with the European Union, especially publicity about the Court's work in the form of publication and cost-free distribution of its jurisprudence, establishment of a new line of academic and promotional publications, and future electronic data services to be provided in CD format and over the Internet.
As part of these efforts, the Court presented in June 1997 the Spanish version of the compendium Basic Documents Pertaining to Human Rights in the Inter-American System, published with funding from the European Union under the second phase of the project on support to the Inter-American Court of Human Rights. The English version will be published this year.
This compilation includes an introduction to the Organization of American States and the inter-American system for the protection of human rights, as well as the official texts of the principal documents of that system. the American Declaration of the Rights and Duties of Man; the American Convention, the Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights (Protocol of San Salvador); the Protocol to the American Convention on Human Rights to Abolish the Death Penalty; the Inter-American Convention to Prevent and Punish Torture; the Inter-American Convention on Forced Disappearance of Persons; and the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women. The volume also includes the Statute and Regulations of the Inter-American Commission on Human Rights, the Statute and Rules of Procedure of the Inter-American Court of Human Rights, and a complaint form for presentation to the Inter-American Commission.
It is an absolute obligation of the Court to make its functions and competence known through the various forums and training courses in which it is invited to participate. Through its judges or Secretariat staff, the Court has been represented in these activities, which have offered training to public defenders, ombudsmen, judges, inspectors, scholars, and the public in general.
An internship program has also been designed for students to conduct research in this area and provide their services free-of-charge to the Secretariat. This benefits both the institution and the intern, who gains experience by witnessing and participating directly in litigation before the Court. By doing this, and in the introduction program designed by the Secretariat, the intern gains skills that would be difficult to obtain other than in actual practice, becoming a professional with expertise that can be used by public institutions in the member states or other international agencies or nongovernmental organizations that work in the human rights area. A proposal has been submitted to CIDI to expand this program, under which the OAS would conduct similar efforts through a system of fellowships or internships. The proposal is now being studied.
The Court maintains close ties with the Inter-American Institute of Human Rights and participates in different ways in that institute's academic activities, especially in designing and offering the workshop on the Inter-American Court that is part of the annual interdisciplinary course. It also participates in conferences and writes proposals and academic articles that are published in a variety of journals or publications of the IIDH. Of special interest is the material the Court provides to the Institute for publication in the journal of the IIDH.
Finally, the Court Secretariat is working with the Costa Rican International Law Association (ACODI) in conducting the Eduardo Jimenez de Arechaga Inter-American Competition on Human Rights. In this competition a hypothetical case is tried in the inter-American human rights system. The Court makes its headquarters available for the final arguments, provides resource materials, and assigns a number of its staff members to serve as competition judges.
A. Contentious Cases Resolved by and Pending before the Court
1. 1986 - Velasquez Rodriguez v. Honduras
2. 1986 - Fairen Garbi and Solis Corrales v. Honduras
3. 1986 - Godinez Cruz v. Honduras
4. 1990 - Aloeboetoe and others v. Suriname
5. 1990 - Gangaram Panday v. Suriname
6. 1990 - Neira Alegria and others v. Peru
7. 1992 - Cayara v. Peru
8. 1992 - Caballero Delgado y Santana v. Colombia
9. 1994 - Genie Lacayo v. Nicaragua
10. 1994 - El Amparo v. Venezuela
11. 1994 - Maqueda v. Argentina
12. 1995 - Paniagua Morales et al. v. Guatemala
13. 1995 - Loayza Tamayo v. Peru
14. 1995 - Castillo Paez v. Peru
15. 1995 - Blake v. Guatemala
16. 1995 - Suarez Rosero v. Ecuador
17. 1996 - Benavides Cevallos v. Ecuador
18. 1996 - Bamaca Velasquez v. Guatemala
19. 1996 - Cantoral Benavides v. Peru
20. 1996 - Durand y Ugarte v. Peru
21. 1997 - Villagran Morales et al. v. Guatemala
22. 1997 - Castillo Petruzzi et al. v. Peru
23. 1998 - Cesti Hurtado v. Peru
24. 1998 - Baena Ricardo et al. v. Panama
B. Advisory Opinions Issued by and Pending before the Court
Advisory Opinion OC-1/82 - Other treaties covered by the advisory function of the Court. Requested by Peru.
Advisory Opinion OC-2/82 - The effect of reservations on the entry into force of the American Convention on Human Rights. Requested by the Inter-American Commission.
Advisory Opinion OC-3/83 - Restrictions on the death penalty. Requested by the Inter-American Commission.
Advisory Opinion OC-4/84 - Proposed amendment to the Constitution of Costa Rica relating to naturalization. Requested by Costa Rica.
Advisory Opinion OC-5/85 - Obligatory association of journalists. Requested by Costa Rica.
Advisory Opinion OC-6/86 - The term "laws" in Article 30 of the American Convention on Human Rights. Requested by Uruguay.
Advisory Opinion OC-7/86 - Enforceability of the right of reply. Requested by Costa Rica.
Advisory Opinion OC-8/87 - Habeas corpus under suspension of guarantees. Requested by the Inter-American Convention.
Advisory Opinion OC-9/87 - Judicial guarantees in states of emergency. Requested by the Inter-American Commission.
Advisory Opinion OC-10/89 - Interpretation of the American Declaration of the Rights and Duties of Man in the context of Article 64 of the American Convention on Human Rights. Requested by Colombia.
Advisory Opinion OC-11/90 - Exceptions to the exhaustion of domestic remedies. Requested by the Inter-American Commission.
Advisory Opinion OC-12/91 - Compatibility of a draft law with Article 8.2.h of the American Convention on Human Rights. Requested by Costa Rica.
Advisory Opinion OC-13/93 - Certain powers of the Inter-American Commission on Human Rights. Requested by Argentina and Uruguay.
Advisory Opinion OC-14/94 - International liability for the enactment and application of laws that violate the Convention. Requested by the Inter-American Commission.
Advisory Opinion OC-15/97 - Reports of the Inter-American Commission on Human Rights. Requested by Chile.
Advisory Opinion OC-16 (before the Court since December 1996). Requested by Mexico.
B. Provisional Measures