GACETAS
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Members and staff from all of CEJIL's offices attended the October 1996 hearings of the inter-American Commission in Washington. CEJIL participated in more than 20 hearings that involved almost a dozen different countries in the region including: Argentina, Brazil, Venezuela, the Dominican Republic, Panama, Honduras, Guatemala, Costa Rica, Mexico and Panama. CEJIL also worked in conjunction with FEDEFAM in a hearing and attempted to establish the need to formalize a follow up procedure for the recommendations established by the Commission in its final case reports.
During 1996 CEJIL also had the honor of being granted consultative status to the United Nations. Leandro Despouy, United Nations Special Rapporteur on Emergency Situations, and on Extreme Poverty, visited our offices and informed us that he had included concrete references to the work of CEJIL in his last report.
In the beginning of July, 1996, CEJIL held its first human rights seminar in conjunction with the Friedrich Naumann Foundation and with the cooperation of the European Commission of Human Rights entitled, "Freedom of expression in different systems of human rights protection." The seminar was held in Strasbourg, France and involved jurists, journalists, current and past members of the European and inter-American Courts and Commissions and representatives from Latin America, Europe, Asia and Africa.
During the second half of 1996, Colombian jurist Alejandro Valencia Villa joined the Washington office staff. Mr. Valencia Villa is a lawyer with extensive and successful experience in the field of human rights and international humanitarian law.
Viviana Krsticevic participated as a panelist in a seminar entitled The International Protection of the Human Rights of Women organized by the Instituto Interamericano de Derechos Humanos (IIDH) and CLADEM held in Costa Rica in July of 1996. Ariel Dulitzky was invited to coordinate a regional workshop for Central America and Mexico held in Guatemala. Mr. Dulitzky also participated as a presenter in a seminar on indigenous peoples and human rights held in Quito, Ecuador also organized by the IIDH in November of 1996.
In May of 1996, Liliana Obregón and Viviana Krsticevic participated in the "Amnesty International Conference on the Protection of Human Rights Defenders in Latin America" in Bogotá, Colombia. Under the auspices of the CCJ, they also conducted two workshops on the use of the inter-American system.
In October of 1996, Viviana Krsticevic participated in a hearing on the Project of the Convention to eliminate all forms of discrimination against people with disabilities before the OAS Working Group studying this convention at the Committee on Juridical and Political Affairs. Representatives of the Panamerican Health Organization and Mental Disability Rights International were also participants in this hearing.
Bárbara Zegers participated in a conference on "Child Soldiers," at American University and in August Meredith Caplan represented CEJIL before the American Bar Association speaking on "CEJIL's experience in the use of the inter-American system for the prosecution and redress of international human rights violations."
In December, the co-directors, with Alejandro Valencia Villa, participated in the Meeting of Experts convened by the OAS to evaluate the work of the inter-American system.
CEJIL/BRASIL
James Cavallaro and María Beatríz Galli organized two workshops for NGOs on "The access mechanisms of the inter-American system of human rights protection." The first was held in Recife with the collaboration of the Gabinete de Asesoría Jurídica de Organizaciones Populares -GAJOP-, and the second was held in El Salvador, with the collaboration of the Comisión de Justicia y Paz de la Arquidiócesis del Salvador.
In 1996, María Beatríz Galli worked for three months in the Washington office in order to examine the functioning of the inter-American Commission. The International Human Rights Internship Program provided generous funding to sponsor Galli's internship in Washington.
CEJIL/CARIBE
This office was newly re-opened in Suriname in August of 1996 in order to bring cases from this region before the inter-American system. Ineke de Miranda, a lawyer with extensive experience in the field of human rights, is currently in charge of the office. During the first months, Ms. Miranda spent several weeks in Washington learning about the functioning of the inter-American system. While in Washington she was able to establish important contacts with non-governmental organizations in the region, while she continued to litigate various individual cases.
CEJIL/MESOAMERICA
The occasion of the Commission's in loco visit to Mexico in July gave rise to several preparatory events. These preparations included two workshops, one of which included both the City of Mexico and the Mexican Commission for the defense and promotion of human rights, and the other with the Miguel Agustín pro Juárez Center for Human Rights. In Guatemala City, on the 23rd of July, CEJIL gave another seminar entitled "The inter-American System of Human Rights,"in conjunction with the Asociación Guatemalteca de Juristas.
Lawyers from CEJIL/MESOAMERICA also participated in the following academic activities during 1996: Marcela Matamoros attended the XIV session of the interdisciplinary course on Human Rights held by the IIDH, in San José, in June. Bertha Arguello attended the International Interdisciplinary Course on Children's Rights, sponsored by the University of Ghent's Center for the Rights of the Child, Belgium, in June. In November, Francisco Cox was invited by the APT and COFAVIC of Venezuela to speak on "The inter-American system and the prevention of torture," at a seminar in Caracas entitled "Rights and Guarantees for the Protection of Personal Integrity." He was also invited to a seminar on state accountability organized by Universidad Diego Portales, Yale University, Universidad de Chile, Universidad de Buenos Aires and Universidad de Palermo, held in Buenos Aires in August.
CEJIL / SUR
ARGENTINA
Throughout 1996, Martín Abregú, CEJIL's representative in Argentina, participated as a presenter in a number of different events. He also traveled to Uruguay, where he spoke with members of the Comisión de la Cámara de Diputados and with various non-governmental organizations in order to publicize the activities of CEJIL/SUR.
CHILE
The representative of CEJIL/CHILE, Mauricio Duce, participated in the following events in 1996: On July 17, Duce participated in a round table entitled "The analysis of report 11/96 of the inter-American Commission of Human Rights, Martorell case," which was organized in conjunction with the Departamento de Investigaciones de la Universidad Diego Portales. In November of 1996, Viviana Krsticevic and Mauricio Duce presented at a workshop on Economic, Social and Cultural Rights sponsored by the South American Platform on Human Right on the use of the inter-American system for the protection of economic, social and political rights. During her stay in Chile, Ms. Krsticevic also interviewed members of various human rights organizations and several academics. On December 13 and 14, Mr. Duce attended an international seminar on "Impunity and Democracy," organized by CODEPU, FASIC and SERPAJ Chile.
PARAGUAY
The CEJIL/PARAGUAY office developed and participated in the following academic events: On August 16 José Miguel Vivanco, a member of CEJIL's board of Directors, was invited, together with the Human Rights Law Faculty of the Law School of the Universidad Nacional de Asunción, to present on "The use of the inter-American system of human rights." On the 3, 4 and 5 of September, CEJIL coordinated a seminar on "The use of force and collective security in international relations" together with the International Red Cross Committee, the cátedra de Derecho Internacional Público of Catholic University in Asunción and the United Nations High Commissioner on Refugees. On the September 14, in an act of the president of the Supreme Court of Justice, CEJIL presented forty copies of its book entitled "Human Rights in the Interamerican System: A Compilation of Instruments" to the president of the Court, Raúl Sapena Brugada, the president of the Association of Magistrates, the Director of the Department of Human Rights of the Fiscalía del Estado and the Superintendent of Judicial Power, to be distributed to the judges and second tier criminal judges both in the capital and interior of the country. From the 9 to the 22 of December, CEJIL coordinated a human rights trip to Paraguay with 16 other organizations; on December 10, Villagra de Biedermann presented a "Report on Human Rights in Paraguay, 1996" and on the December 18, CEJIL co-organized with SERPAJ a panel on "Conscientious Objection" at the Faculty of Law of the Universidad Nacional de Asunción.
EDITORIAL:
Fifty years after its creation, the inter-American system of human rights protection is under criticism. Several member states of the Organization of American States and some human rights defenders are concerned about the workings of the system. The criticisms that have been aimed at the Interamerican Commission on Human Rights ( the Commission) and the Interamerican Court of Human Rights (the Court) seem to have been written by the same pen: most parties agree that the system suffers from inefficiency, absence of procedural equality in the international process and over politicization. However, neither the identification of all of these problems together nor the solutions that the states and human rights defenders propose are the same. In 1997, as a result of the initiative of the States in the region, the inter-American system has come face to face with the process of reexamining the nature of its role.
During its years of operation, the inter-American system has been successful and effective in its mandate to protect life, remedy grave violations of human rights, influence the general climate of human rights in many countries, and establish guidelines for important human rights questions for the region. The system assumed a crucial role during the era of military dictatorships and authoritarian governments, when it identified and denounced their grave and systematic human rights violations. The inter-American system has contributed to opening of spaces in civil society and the creation of a climate that promotes a return to the proper functioning of public liberties. With the advent of democratically elected governments, the human rights situation in the region has improved; however impunity continues to be a pervasive problem in the nineties. While the majority of the states do not sponsor policies of grave and massive violations, governments are still responsible to international law when they fail to investigate and punish extrajudicial executions, torture and other violations. In some states the special penal legislation does not recognize due process guarantees, while other states maintain discriminatory legislation or practices, or violate basic human rights like the right to free expression. This new reality of the Americas has given rise to new challenges, demands and preoccupations for the inter-American system, that neither the Commission, nor the Court, have fully addressed.
In response to the changing landscape of human rights in the region and at the suggestion of several member States, the last General Assembly of the Organization of American States (OAS), approved a resolution that charged the Permanent Council with the task of evaluation the workings of the inter-American system. This evaluation is intended to yield a strategy to improve the system, and may include the possibility of reforming the corresponding judicial instruments, in addition to the methods and work of the Commission. At the same time, it resolved to promote a dialogue between member states, the members and the Commission and the Court and experts in the field of human rights, in order to contribute diverse perspectives to this process of reform.
The Commission together with the General Secretariat of the OAS, in compliance with this mandate, organized a reunion of experts in Washington in December of 1996. The States, for their part, have convened another meeting in order to discuss the evaluation of the functioning of the system. While it may prove too early to evaluate the results of this first meeting and without having realized the second, it is already clear that two positions have developed in this process.
On one hand, a guarentist position represented by several states, human rights defenders, non-governmental organizations (NGOs), and the victims and their families, has been working towards effective regional system of human rights protection. Their suggestions for reform air aimed at the consolidation, judicialization and improvement of the effectiveness of the system. In a joint meeting between members of CEJIL's Board of Directors, and the members of the Commission (described in our last gazette), CEJIL identified some of the obstacles that petitioners encounter to ensure speed, transparency, equality of arms, juridical security and efficacy of proceedings before the Commission. In addition, CEJIL proposed concrete solutions to alleviate these problems with the intention of making the inter-American system more efficient in its work protecting and promoting human rights.
In opposition to this movement to strengthen the system through reform, some states have proposed initiatives that, if adopted, would weaken the work of the Commission. Under the pretense of improving the system, representatives of several States, have proposed changes to the American Convention on Human Rights that could limit the access of the Commission for victims and NGOs -- through restrictive and inadequate rules of admissibility and a system of restrictions to its standing rules-- and would increase in political control over organs of the system. Simultaneously, these parties promote a strict confidentiality of the proceedings and reports of the Commission, in open opposition to transparency, an essential element to ensure the effective promotion and protection of human rights in the region. Some states are proposing to limit the ability of the Commission to issue reports on the human rights situations in different countries, or special thematic reports on legal or factual issues. These countries cite restrictive examples from the European system of human rights protection for reforms on aspects that are inapplicable to the peculiar nature and reality of human rights in the Americas while omitting European examples that strengthen guaranties. A clear example of this is the attempt to apply restrictive rules of standing, without simultaneously accepting the independent representation of the victims before the Court.
The inter-American system confronts a crucial period of reform that will define its role in the future. The response to this reform will decide if our hemisphere takes into the next century a system that is agile, transparent, flexible, able to apply clear rules, precise and progressive with the best guarantee for the protection of human rights. Or in contrast, this process may create a confidential, ritualistic, inaccessible and mechanical system dominated by politics and without established criteria for protecting human rights in the region. While these deliberations on the regional system of human rights protection will have wide spread implications for everyone on the Americas, ultimately, their outcome depends on decisions that will only be made by the States in the region. The discussion remains open.
The Precautionary Measures Procedure
before the Interamerican Commission of Human Rights
Precautionary measures are urgent action proceedings outlined in the Commissions Regulations in Article 29, that can be used to safeguard those persons whose life and personal integrity are threatened. As stated in Article 29:
Article 29. Precautionary Measures
1. The Commission may, at its own initiative, or at the request of a party, take any action it considers necessary for the discharge of its functions.
2. In urgent cases, when it becomes necessary to avoid irreparable damage to persons, the Commission may request that provisional measures be taken to avoid irreparable damage in cases where the denounced facts are true.
3. If the Commission is not in session, the Chairman, or in his absence, one of the Vice-Chairmen, shall consult with the other members, through the Secretariat, on implementation of the provisions of paragraphs 1 and 2 above. If it is not possible to consult within a reasonable time, the Chairman shall take the decision on behalf of the Commission and shall so inform its members immediately.
4. The request for such measures and their adoption shall not prejudice the final decision.
The different steps required to request precautionary measures can each be derived from this Article: for a given case to qualify for provisional measures, the circumstances must be urgent; secondly, these circumstances could lead to irreparable harm to the life or physical integrity of a person; and thirdly, the allegations must appear to be true. Such cases need to be treated immediately because of the immediate or imminent nature of the threats or harassment that are directed against the life or integrity of a person.(1)
The urgency of their adoption, in order to prevent actions that would cause irreparable harm, distinguishes precautionary measures from other proceedings. This urgency justifies the absence of otherwise required procedures that could increase the risk to the individual. The Interamerican Court has considered that a domestic remedy can be considered ineffective if "it presents a danger to those who invoke it" (Velázquez Rodríguez, Sentence of 29 of July 1988, par. 66). It can't be required, therefore, that someone whose life or personal integrity are threatened exhaust domestic remedies, as has been established in Article 33 of the Regulations of the Commission.(2) Instead, the Commission must first guarantee life, liberty and physical integrity through the adoption of necessary security measures. Later, if the applicant intends to present a petition to begin an individual case, the Commission may require the exhaustion of remedies in accordance with Article 44 and following the American Convention on Human Rights.
In extremely grave cases in which precautionary measures have failed to be effective, and the state has accepted the jurisdiction of the Court, the Commission can request that the Interamerican Court adopt precautionary measures. (This topic will be addressed in more detail in the next Gazette.)
Human rights groups, defenders and users of the system have relied on precautionary measures in cases of hostility against defenders of human rights, judges, and witnesses in countries like Brazil, Colombia, Guatemala, Honduras, Mexico, and the Dominican Republic. Precautionary measures have the potential to constitute an effective instrument of human rights protection for people whose life or physical integrity are at risk.
VISIT OF THE AFRICAN COMMISSION
One of CEJIL's most important events this fall was the October visit to Washington of several members of the African Commission on Human and Peoples' Rights and its secretariat. In 1994, CEJIL received consultative status before the African Commission, and in the context of the ongoing cooperation between our organizations, CEJIL organized a series of events to facilitate the exchange of experiences between key actors in the inter-American system for protection of human rights and members of the African Commission. The African Commissioners also attended a legal seminar organized by CEJIL that brought together CEJIL's staff, prestigious jurists such as Dinah Shelton and Garth Meintges from the University of Notre Dame, and distinguished members of the Secretariat of the inter-American Commission including Drs. Acevedo, Abi Mersheed, Cerna, Gilman, and Padilla to discuss legal issues facing regional human rights mechanisms.
The African Commission also participated in the sessions of the inter-American Commission and met with students and faculty at American University and Harvard University. These events were made possible by a generous grant from the John D. and Catherine T. MacArthur Foundation. The African Commission's visit will be described in detail in forthcoming editions of our Gazette.
JURISPRUDENCE OF THE INTER-AMERICAN SYSTEM
In two of its most recent reports, the inter-American Commission of Human Rights has set certain criterion on the admissibility of cases. We would like to call attention to two of these criterion: the first, regarding the "formula of the fourth instance" and the second, a new interpretation of the active legitimation of the petitioner. Therefore we indicate precisely what the Commission has stated in two cases, both of which we think signal changes in its criterion of admissibility in individual petitions.
In case 11.673 of Mr. Santiago Marzioni (Argentina), the Commission in report number 39/96 dated October 15, 1996 determined the following by referring to the theme of the "formula of the fouth instance":
"The Commission is competent to declare a petition admissible and rule on its merits when it portrays a claim that a domestic legal decision constitutes a disregard of the right to a fair trial, or if it appears to violate any other right guaranteed by the Convention. However, if it contains nothing bu thte allegation that the decision was wrong or unjust in itself, the petition must be dismissed under this formula. The Commission's task is to ensure the observance of the obligations undertaken by the States parties to the Comvention, but it cannot serve as an appellate court to examine alleged erors of internal law or fact that may have been committed by the domestic courts acting within their jurisdiction. Such examination would be in order only insofar as the mistakes entailed a possilbe violation of any rights set frth in the Convention" (paragraph 51).
In case 11.553 of Ms. Emerita Montoya González (Costa Rica), the Commission's report number 48/96 from October 16,1996, stated in this pertinent passage:
"The applicant must claim to be a victim of a violation of the Convention, or must appear before the Commission as a representative of a putative victim of a violation of the Convention by a state party. It is not sufficient for an applicant to claim that the mere existence of a law violates her rights under the American Convention, it is necessary that the law have been applied to her detriment. If the applicant fails to establish active legitimation, the Commission must declare its incompetence ratione personae to consider the matter" (paragraph 28).
In the next edition of the Gazette we will review the decisions that the Commission adopted during its last period of sessions on the substantive, rather than the procedural questions which we have reviewed in this edition.
Inter-American Commission on Human Rights
Name
Office*
Country
Tenure**
Prof. Claudio Grossman
President
Chile
1994/1997
Emb. John Donaldson
First Vice-President
Trinidad and Tobago
1994/1997
Dr. Carlos Ayala Corao
Second Vice-President
Venezuela
1996/1999
Dr. Jean Joseph Exumé
Member
Haití
1996/1999
Dr. Oscar Lujan Fappiano
Member
Argentina
1994/1997
Prof. Robert Goldman
Member
United States
1996/1999
Dr. Alvaro Tirado Mejia
Member
Colombia
1996/1999
* In the 94th period of sessions, the Commission needs to elect its new authorities.
** With the exception of Tirado and Fappiano, all of the members are eligible for re-election.
Inter-American Court of Human Rights
Name
Position
Country
Tenure*
Héctor Fix Zamudio
President
Mexico
Dec. 31,1997
Hernán Salgado Pesantes
Vice-President
Ecuador
Dec. 31,1997
Alejandro Montiel Arguello
Judge
Nicaragua
Dec. 31,1997
Máximo Pacheco Gómez
Judge
Chile
Dec. 31,1997
Oliver H. Jackman
Judge
Barbados
Dec. 31, 2000
Alirio Abreu Burelli
Judge
Venezuela
Dec. 31, 2000
Antonio A. Cançado Trindade
Judge
Brasil
Dec. 31, 2000
* With the exception of Fix Zamudio all the magistrates are eligible for re-election.
CEJIL's activities, including publication of The Gazette, are made possible by the generous support of the Commission of European Communities Program fro Democratization and Human Rights, the International Centre for Human Rights and Democratic Development of Canada, the Canadian Development Agency, the Swedish International Development Authority (SIDA), the Danish Program for Human Rights in Central America (PRODECA), MISEREOR from Germany, the Netherlands Ministry of Foreign Affairs, the Swedish NGO Fund for Human Rights, and John Merk Fund, the Norwegian Human Rights Fund, the John D. and Catherine T. MacArthur Foundation, the Embassy of the Netherlands in Mexico, OXFAM-UK/1, the Embassy of Holland in Brazil, and the European Human Rights Foundation.
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BOARD OF DIRECTORS
Mariclaire Acosta, Comisión Mexicana de Defensa y Promoción de los Derechos Humanos, Mexico; Ligia Bolivar (President), Programa Venezolano de Educación-Acción en Derechos Humanos (PROVEA), Venezuela; Benjamín Cuellar, Instituto de Derechos Humanos de la Universidad Centroamericana "José Simeón Cañas" (IDHUCA), El Salvador; Gustavo Gallón Comisión Colombiana de Juristas, Colombia; Michael McCormack (Secretary) Guyana Human Rights Association, Guyana; Emilio Mignone (Vice President) Centro de Estudios Legales y Sociales (CELS), Argentina; Paulo Sérgio Pinheiro, Núcleo de Estudos da Violencia, Universidade de Sao Paulo, Brazil; José Miguel Vivanco, Human Rights Watch/Americas, U.S.A.
STAFF
CEJIL: Viviana Krsticevic and Ariel Dulitzky (Co-Executive Directors), Alejandro Valencia Villa (Staff Attorney), Megan Dowd Lambert (Associate).
CEJIL/MESOAMERICA: Marcela Matamoros (Director), Francisco Cox and Ana María Méndez (Staff Attorneys).
CEJIL/BRASIL: James Cavallaro (Director), María Beatriz Galli (Staff Attorney), Anna Monteiro (Communications Director).
CEJIL/SUR: Martín Abregú (Representative in Argentina) Mauricio Duce (Representative in Chile), Soledad Villagra (Representative in Paraguay).
CEJIL/CARIBBEAN: Georgine de Miranda (Representative in Suriname).
INTERNS:
Attorneys: Luís Jesús Bello (Venezuela), Nadia Ezzelarab (Switzerland), Barbara Zegers (Chile), Beatríz León (Colombia), Martín Scotto (Argentina)
Students: María Eva Dorigo (Argentina), Florian Fabian Hoffman (United Kingdom) David Llorente (Spain), Dara McDaniel (Australia) Carol Pier (USA), Andrew Wilson (Canada), Jennifer Blaser (Panama), Bhavana Chawla (USA), Virginia Corpus (USA).
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1. 1 The first clause of Article 29 of the Regulations of the Commission allows for a more open interpretation that would include protection from imminent threat of other rights. However, in practice the Commission has been very restrictive in its interpretation. In a case pertaining to the potential violation of freedom of expression in Argentina, CEJIL requested provisional measures from the Commission which were rejected in limine.
2. 2 Article 33: Omission of Requirements. Without prejudice to the provisions of Article 26, if the Commission considers that the petition is inadmissable or incomplete, it shall notify the petitioner, whom it shall ask to complete the requirements omitted in the petition.
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