Fair Trial -- the Inter-American System for the Protection of Human Rights
By Professor Dr. Juliane Kokott*
I. Introduction: Legal Provisions in Effect with Respect to the Right to a Fair Trial
Norms concerning the right to a fair trial are covered in various articles of the American Convention on Human Rights (hereafter "the Convention"). The right to personal liberty contains extensive sections on fair trial,(1) referring for example to notice(2) and to habeas corpus.(3) Article 8 deals with the right to a fair trial in a detailed manner,(4) encompassing for example the right to a hearing,(5) the presumption of innocence, the rights to a free translator and to counsel, the right of the accused not to be compelled to be a witness against himself,(6) and the principles of ne bis in idem(7) and that criminal proceedings shall be public.(8) Article 9 guarantees freedom from ex post facto laws.(9) The Inter-American Commission on Human Rights also considers the right to compensation for miscarriage of justice as forming part of the right to fair trial.(10) Article 25 of the Convention guarantees the right to amparo.(11)
All member states of the Organization of American States, including the ten member states which did not yet ratify the American Convention on Human Rights,(12) are bound by the American Declaration of the Rights and Duties of Man. The American Declaration guarantees the rights to fair trial and to due process of law.(13) Even though adopted in the form of a Declaration, the American Declaration of the Rights and Duties of Man has binding force. Several articles of the OAS Charter refer to the Declaration. Through the Declaration, member states of the OAS have given specificity to the human rights mentioned in the Charter and to which the Declaration refers.(14) According to the Inter-American Court of Human Rights, member states of the Organization of American States have signaled their agreement that the Declaration contains and defines the fundamental rights referred to in the Charter by means of an authoritative interpretation.(15) Therefore, the American Declaration of the Rights and Duties of Man is another source of obligations for the member states of the OAS in the field of fair trial.(16) When applying the provisions of the American Declaration of the Rights and Duties of Man to states not parties to the American Convention, the Commission uses the more detailed provisions of that Convention to interpret aspects of the rights generically protected by the American Declaration.(17) Thus, the fair trial standards set forth in the American Convention also influence the Commission's approach to states not parties.
A. Treatment During Detention Prior to and During Trial
1. Protection of detained persons from torture and other cruel, inhuman, or degrading
treatment
Article 5 para. 2 prohibits torture or cruel, inhuman, or degrading punishment or treatment. This provision contains a special clause explicitly guaranteeing that "all persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person." In cases where the human rights situation of detainees is particularly worrysome, the Commission has found it necessary to establish a central registry of persons imprisoned and detained for any reason and irrespective of the agency responsible. This registry shall within 24 hours of the detention record the name, identification of the detainee and the authority in whose jurisdiction the detainee is being held. This registry must supply information immediately to the judicial authorities requesting it, including Public Defenders and human rights organizations. Access to that registry shall be provided through means of communication; designated officials shall be responsible for obtaining and supplying such information to the families of missing persons or be subjected to serious penalties for failure to do so.(18)
The admissibility of actio popularis, which means that anyone and not only the victim may lodge a complaint, is also provided for in the Inter-American system. This principle could be considered a necessary requirement for a fair trial in cases of disappearances and, in states not abiding by the rule of law, even in detention cases.
States often deny torture or ill-treatment of detained persons. In such detention cases, the standards of proof the Inter-American Court of Human Rights developed in the forced disappearance case of Velásquez Rodríguez should also apply.(19) In detention cases just as in cases of forced disappearances of persons, the victim, relatives, friends or non-governmental organizations(20) having the courage to challenge the detention encounter difficult problems of proof. Even more than with regard to other acts taking place in its territory, the state has a virtual monopoly of control over evidence of forced disappearances and torture or degrading treatment in detention cases. The Inter-American Court held that the state bears the burden of proof as to the whereabouts and end destination of prisoners, if the prisons and investigations are under the exclusive control of the government.(21) Similarly, circumstantial evidence, indirect evidence, and logical inference should be treated as valid forms of proof of torture or ill-treatment in detention centers or prisons. Moreover, as in the event of forced disappearances of persons, the standard of proof should be less strict than in cases where the individual or others on his behalf are in a better position to obtain evidence. Clear and convincing evidence of the government's involvement rather than evidence beyond a reasonable doubt should suffice in these cases. Otherwise, it would be nearly impossible to prove that an individual has been disappeared or tortured or ill-treated in detention.(22)
Finally, the Inter-American Court of Human Rights and the Inter-American Commission have emphasized the importance of habeas corpus. They have explained that "the right to life and to humane treatment are threatened whenever the right to habeas corpus is partially or wholly suspended;" that thousands of forced disappearances could have been avoided in the past "if the writ of habeas corpus had been effective and if the judges had investigated the detention by personally going to the places that had been denounced as those of the detention," that "tortures and constraints tend to occur during long periods of incommunication, during which the prisoner lacks the legal means and remedies to assert his rights."(23) Thus, the Inter-American Court and the Inter-American Commission consider a non-derogable right to habeas corpus as the most effective protection from torture and other cruel, inhuman, or degrading treatment of detained persons.
2. Protection for the accused who refuses to testify against himself or herself
Under art. 8 of the American Convention, the accused has "the right not to be compelled to be a witness against himself or to plead guilty."(24) Article 8 also provides: "A confession of guilt by the accused shall be valid only if it is made without coercion of any kind."(25) Statements taken by police officers in the absence of the lawyers of the accused or of any legal counsel who could ensure the proper conduct of the investigation violate art. 8 of the American Convention.(26) In one such case, the Inter-American Commission on Human Rights recommended to the government concerned that it take all necessary steps to overturn the domestic court's decision. Such a recommendation could be criticized as being in conflict with the separation of powers. However, in that particular case, the Commission supported its position explaining that the Special Military Court which had handed down the decision was not "a competent, independent, and impartial tribunal" in the sense of art. 8 para. 1 of the American Convention.(27)
The fact that art. 8 para. 3 of the Convention explicitly refers to the invalidity of statements made under "coercion of any kind" suggests that confessions obtained without the benefit of counsel or knowledge of the right to counsel are valid. The Convention and the case law of the Court and the Commission are silent on the question as to whether such confession can be used against the defendant. It is doubtful whether the "effet util" of art. 8 para. 2 (d) -- the right of the accused to defend himself personally or to be assisted by legal counsel of his own choosing -- is sufficient to support a prohibition on using a confession made absent knowledge of the right to counsel so long as the accused is given the chance to defend himself personally.
3. Separate treatment for accused and convicted persons
According to the American Convention, "[a]ccused 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."(28) However, the Inter-American Court of Human Rights and the Inter-American Commission are still too preoccupied with the fundamental problem of incommunicado detention and of forced disappearances of persons(29) to ensure that accused persons are subject to separate treatment. Therefore, case law on this matter is scarce.(30)
4. Rule or practice that persons awaiting trial shall not be detained in custody, so that
they can assist in the preparation of their defence
Detainees are "entitled to trial within a reasonable time or to be released without prejudice to the continuation of the proceedings." Such release may be subject "to guarantees to assure his appearance for trial."(31) Moreover, a general rule that persons awaiting trial shall not be detained in custody can be derived from the principles of "effet util," of the right "to be assisted by legal counsel of his choosing"(32), and of proportionality as applied to the right to personal liberty.(33) Accordingly, pre-trial detention of the accused is only permissible under particular conditions such as to ensure his participation in an upcoming trial or if necessary to prevent him from committing grave criminal offenses.
5. Availability and Non-Derogability of Habeas Corpus/Amparo
The American Convention deals extensively with habeas corpus and amparo.(34) Habeas corpus only applies to deprivations of liberty, whereas amparo refers to violations of any fundamental right recognized by the constitution or laws of the state concerned or by the Convention.(35)
The remedy of habeas corpus is not only available to the interested party but also another person in his behalf.(36) Thus, the actio popularis principle common to the Inter-American system for the protection of human rights is explicitly guaranteed for the case of habeas corpus. Without the possibility of actio popularis, habeas corpus would be largely ineffective in the Americas, as the protection organs are mostly confronted with cases of incommunication or forced disappearances.
Moreover, the Convention prohibits the abolition of existing domestic law that guarantees the writ of habeas corpus in cases of mere threats of deprivations of liberty.(37)
The broad guarantee of habeas corpus and the fact that amparo applies to violations of any fundamental right suggest that these remedies are also available for challenging a denial of release from detention, conditions of pre-trial detention, or the failure to provide fair procedures prior to trial.
The Inter-American Court of Human Rights dealt extensively with the non-derogability of habeas corpus and amparo in two advisory opinions.(38) The Convention explicitly enumerates those articles which are not subject to derogation even in time of war, public danger, or other emergency that threatens the independence or security of a state.(39) However, the Convention includes neither habeas corpus (art. 7 para. 6) nor amparo (art. 25 para. 1) in that enumeration. The provision on non-derogable rights only generally refers to "the judicial guarantees essential for the protection of such rights."(40) Relying on that clause, the Court set forth "[t]hat the "essential" judicial guarantees which are not subject to derogation, according to art. 27 (2) of the Convention, include habeas corpus (art. 7 (6)), amparo, and any other effective remedy before judges or competent tribunals (art. 25 (1)), which is designed to guarantee the respect of the rights and freedoms whose suspension is not authorized by the Convention."(41) This has to be seen against the background of the practice in many American states of holding detainees incommunicado at the disposal of the executive for prolonged periods of time.(42) Under these circumstances, the writ of habeas corpus is of the greatest importance and is the best instrument available to promptly correct abuses of authority involving arbitrary deprivation of freedom as well as preventing torture and other physical and psychological abuses.(43) The Court explicitly explained that the constitutions and legal systems of the States Parties that authorize, expressly or by implication, the suspension of the legal remedies of habeas corpus or of amparo in emergency situations are not compatible with the international obligations imposed on these States by the Convention.(44)
Similarly, implicit or factual suspensions of habeas corpus by rendering this remedy ineffective are contrary to arts. 7 para. 6 and 27 para. 2 of the American Convention on Human Rights.(45)
B. Notice
1.-2. The personal liberty guarantee in art. 7 of the Convention provides, "[a]nyone who is detained shall be informed of the reasons for his detention and shall be promptly notified of the charge or charges against him."(46) Article 8 -- right to a fair trial -- provides that "[d]uring the proceedings every person is entitled . . . to the following minimum guarantees . . . (b) prior notification in detail to the accused of the charges against him."(47) This means that the accused has the right to notice of charges even before his first appearance in court. Detailed notification of the charges implies notification of the main evidence against the accused. This includes the names of the primary adverse witnesses. Such an interpretation supports the "effet util" of art. 8 para. 2 (b) of the Convention. Moreover, the Inter-American Court of Human Rights and the Inter-American Commission are often influenced by the European system.(48) The European Convention for the Protection of Human Rights and Fundamental Freedoms explicitly grants everyone charged with a criminal offence the minimum right "to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him."(49) Knowing the names of the adverse witnesses in advance is a prerequisite to obtaining their attendance.
In its 1993 report on Colombia, the Inter-American Commission on Human Rights emphasized that "[t]he existence of judges 'with no face' and of secret proceedings to introduce and take testimony from witnesses, to offer and introduce evidence and expert reports, etc., is contrary to the principles of the American Convention."(50) The Colombian secret court system was created for drug and terrorism cases. The hope is that judges who are granted anonymity by having their identities concealed will be protected from threats or assassination, enabling the judges to bring criminals to justice.(51) According to the Commission, any form of secret justice in Colombia should be eliminated in favor of an "across-the-board strengthening of the justice system."(52) This statement is noteworthy in view of the fact that the Inter-American Court of Human Rights and the Inter-American Commission themselves, in exceptional cases, do not reveal the identity of witnesses to the representatives for the respondent government.(53) The Inter-American system for the protection of human rights thus recognizes the need to reconcile the quest for judicial truth, the parties' right to equal justice, and the right to life of the witnesses or the judges in the Colombian case. However, it makes a decisive difference whether this procedure applies to governments as in the Inter-American system or to individuals accused of criminal offenses as in Colombia's secret court system. Only in proceedings against governments may a judgment exceptionally be based on testimony of a concealed witness. The government of Colombia responded to the criticism of the Commission by announcing that the 1993 Decree, which had established the possibility of handing down a conviction based on testimony given by witnesses whose identity is kept confidential, had been ruled unconstitutional by the Constitutional Court, so that secret testimony could only be used to order precautionary measures.(54)
"[T]he 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"(55) also belongs to the minimum guarantees during the proceedings under the American Convention on Human Rights.
3. "During the proceedings, every person is entitled . . . to . . . adequate time and means
for the preparation of his defense."(56)
C. Counsel
Article 8 provides: "During the proceeding, every person is entitled . . . to . . . the following minimum guarantees: . . . 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; 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."(57) Detainees have a right to be assisted by counsel from the time of their arrest.(58)
Not only witnesses and judges but also lawyers are often subject to threats in human rights proceedings in the Americas.(59) Whereas threats to judges may come from the terrorist or drug scene, threats to lawyers tend to originate with the government. Among the major problems with the right to counsel in the Inter-American system are attempts to intimidate and harass defense lawyers. The Commission asserted that "the defense of the accused . . . can in no way constitute grounds for the malicious and unfounded linking of a defense lawyer to unlawful activities of which his client is falsely accused."(60)
A law restricting attorneys from representing more than one defendant accused of terrorism at a time nationwide is a very serious violation of one's right to be assisted by an attorney of one's choosing, guaranteed in art. 8 para. 2 (d) of the American Convention.(61)
As to the indigent accused, the American Convention on Human Rights, as opposed to the European Convention(62) and the International Covenant for Civil and Political Rights,(63) states that counsel provided by the state will be paid only if the domestic law so provides.(64) Thus, it appears that the state is required to provide the "inalienable right to be assisted by counsel" but is not required to pay for it. However, in its advisory opinion on exceptions to the exhaustion of domestic remedies in cases of indigency or inability to obtain legal representation because of a generalized fear within the legal community, the Inter-American Court of Human Rights interpreted the right to counsel broadly.(65) The Inter-American Court emphasized that by labelling certain guarantees in criminal proceedings as "minimum guarantees," "the Convention assumes that other, additional guarantees may be necessary in specific circumstances to ensure a fair hearing."(66) The Court explained that since the Convention "does not stipulate that legal counsel be provided free of charge when required, an indigent would suffer discrimination for reason of his "economic status" if, when in need of legal counsel, the state were not to provide it to him free of charge. Article 8 must, then, be read to require legal counsel only when that is necessary for a fair hearing."(67) Consequently, the indigent accused has a right to counsel paid by the state if necessary for a fair hearing. Such necessity may arise when the accused does not defend himself personally or engage his own counsel within the time period established by law.(68)
In an advisory opinion on exhaustion of domestic remedies, the Court made it clear that "[e]ven in those cases in which the accused is forced to defend himself because he cannot afford legal counsel, a violation of Article 8 of the Convention could be said to exist if it can be proved that the lack of legal counsel affected the right to a fair hearing to which he is entitled under that article."(69)
Similarly, it may be necessary in some circumstances to inform the accused that he or she has the right to counsel to ensure a fair hearing. In such cases, the concept of a fair hearing under art. 8 of the Convention also embraces the right of the accused to be informed that he or she has the right to counsel.(70)
D. Hearing
1. Timing of appearance or hearing before a judge
The Convention has a number of provisions on the timing of appearances before a judge. "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."(71) Article 8 provides, "[e]very 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 . . . . "(72) Finally, the right to amparo in Art. 25 entitles everyone "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."(73)
2. Public hearings and exceptions under Article 8 of the Convention
"Criminal proceedings shall be public, except insofar as may be necessary to protect the interests of justice."(74) In dealing with Colombia's and Peru's secret court systems to fight terrorism and drug trafficking, the Inter-American Commission on Human Rights did not even consider using the exception to the public hearings clause of art. 8. This is particular noteworthy in the case of Colombia given its history of terrorism against judges.(75) In contrast to the Commission, the Colombian Constitutional Court previously upheld the faceless judges system as essential to protect the life and safety of judges and other participants in the court system.(76) This protection is the absolute duty of the State. Moreover, the Colombian Government stressed that these protective measures had been very instrumental in reducing the number of crimes left unpunished. Reducing impunity is another vitally important obligation of States Parties to the Inter-American system for the protection of human rights.(77) The Commission concluded that although secret trials are intended to serve a good purpose, i.e. to protect the safety and lives of the judges, they nonetheless seriously violate the guarantees of due process. They increase the margin for judicial error to the point that those people tried in secret are in danger of becoming victims of a miscarriage of justice. The Commission urged the Government of Colombia to continue to seek ways to reconcile "the twofold and not conflicting objectives" of guaranteeing the lives and safety of judges without diminishing the guarantees of due process.(78)
The American Convention on Human Rights places an extremely high value on freedom of expression, including the freedom to seek, receive, and impart information.(79) A comparison of art. 13 of the American Convention with the relevant provisions of the European Convention (art. 10) and the Covenant (art. 19) shows that the American Convention's guarantees regarding freedom of expression were designed to be more generous and reduce to a bare minimum restrictions impeding the free circulation of ideas.(80) In particular, the American Convention -- contrary to the European Convention -- does not explicitly provide for restrictions necessary in a democratic society "for maintaining the authority and impartiality of the judiciary."(81) Thus, the press must have free access to and freedom to report on public trials. The exercise of this right is subject to the subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure respect for the rights or reputation of the accused.(82)
3. Article 25 para. 1 of the Convention requires that amparo proceedings be simple, prompt and effective. This suggests, as a rule, that they take place in the same geographic locality where the conduct took place. Placing prisoners under military jurisdictions far from their places of residence violates the rights of the accused.(83)
The Inter-American Court of Human Rights emphasized, that the particular circumstances of a case must be considered in determining what additional guarantees besides the minimum guarantees listed in art. 8 para. 2 of the Convention may be required for a fair hearing (art. 8 para. 1).(84) Under particular circumstances, a fair hearing pursuant to art. 8 para. 1 of the Convention may require that a trial be transferred to another locality to avoid local bias against the accused. In any case, transfer of a trial to another locality is only feasible if such procedure is previously established by law.(85)
4. The minimum guarantee of the right of the accused to defend himself personally or to be assisted by legal cousel of his own choosing(86) excludes trials in absentia.
6. "[T]he 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" also forms part of the minimum guarantees for a fair trial under the American Convention on Human Rights.(87)
7. a. Article 8 para. 2 (f) stipulates as another minimum guarantee "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." This includes the right to obtain the names of the adverse witnesses.(88)
b.-c. In the Velásquez Rodríguez case,(89) the Inter-American Court of Human Rights held that direct evidence was not the only type of evidence that could be legitimately considered in reaching a decision. Rather, circumstantial or indirect evidence may also be considered, so long as they lead to conclusions consistent with the facts.(90) International jurisprudence has recognized the power of the courts to weigh evidence freely.(91) However, the applicable standard of proof must take into account the seriousness of the charge.(92) In the Velásquez Rodríguez case, the Court established the responsibility of the State of Honduras for the forced disappearance of an individual. It is unclear whether the Courts statements may be transferred to criminal proceedings against individuals. In the Velásquez Rodríguez case, the Court emphasized that "[t]he international protection of human rights should not be confused with criminal justice. States do not appear before the Court as defendants in a criminal action. The objective of international human rights law is not to punish those individuals who are guilty of violations, but rather to protect the victims and to provide for the reparation of damages resulting from the acts of the States responsible."(93) Nevertheless, the Court's statement on the admissibility of indirect evidence has to be seen in light of its recognition of the courts' power to freely weigh evidence and of its reference to "the practice of international and domestic courts" showing that "direct evidence . . . is not the only type of evidence that may legitimately be considered in reaching a decision."
The Inter-American Commission on Human Rights maintained that the use of circumstantial evidence "in and of itself, is not violative of the right to a presumption of innocence."(94) The general admissibility of circumstantial or indirect evidence under the Inter-American system for the protection of human rights suggests that witnesses can testify about statements made by persons not subject to questioning in court, and that documents containing statements by persons not subject to questioning in court can be admitted into evidence.
d. The safety of witnesses testifying in domestic proceedings or in proceedings before the Inter-American Commission or the Inter-American Court of Human Rights is a major problem in the Americas. After the assassination of two witnesses in the Velásquez Rodríguez case, the Inter-American Court of Human Rights handed down two orders to protect the witnesses in that case.(95) In the Colotenango case, the Court went beyond previous grants of protection that had simply called on the government concerned to adopt measures to protect the rights to life and integrity. The Court here requested the Government of Guatemala specifically "to use all means at its disposal to enforce the arrest warrants . . ." against the 13 patrol members charged with criminal acts in Colotenango.(96) The Commission also frequently requests that governments guarantee the safety of the witnesses in national and international proceedings related to violations of fundamental rights(97) or even to develop a "witness protection program."(98)
The Colombian Constitutional Court and the Inter-American Commission on Human Rights consider convictions based on the testimony of unidentified witnesses incompatible with procedural guarantees.(99) However, in exceptional cases, the Inter-American Court has not revealed the identity of witnesses to representatives for respondent governments.(100)
9. Under the Convention, "[e]very 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."(101) This means that before establishing a defendant's criminal responsibility, the state must prove that defendant's guilt beyond a reasonable doubt, in accordance with the principle of in dubio pro reo.(102) The officials prosecuting the defendants and the judges are required to approach the case without any prejudice and are in no circumstances supposed to make an a priori guilty judgment.(103) Even though admitting circumstancial evidence does not as such violate the Convention, the Special Tribunals in Nicaragua violated the presumption of innocence by considering as per se evidence warranting a presumption of guilt the fact that a defendant was a member of the former National Guard or of bodies linked to it. According to the Commission, the Special Tribunals began their investigation with the presumtion that all accused Somocists were guilty until they duly proved their innocence.(104)
10. A party to a civil suit has the right to a fair hearing under Art. 8 para. 1 of the Convention. Only the accused has the explicit right 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.(105) Nevertheless, the concept of a fair hearing may imply giving all parties the opportunity to obtain and examine relevant witnesses in a civil suit under particular circumstances. However, there is no caselaw on this issue.
11. The Inter-American Commission on Human Rights considers the inviolability of domicile as one of the implicit guarantees of the right to due process under the American Convention. The Commission wrote, "In effect, inviolability of domicile is more than a guarantee of privacy; it is a guarantee of due process inasmuch as it establishes what can be seized" and what can be "incriminating evidence against an individual charged with a crime. When a search of a domicile is conducted without observing the proper constitutional procedures, that guarantee prevents any evidence thus obtained from being used to arrive at a subsequent court decision. Thus, in practice it functions as an exclusionary rule, one that eliminates illegally obtained evidence."(106)
12. Under the Inter-American system, victims of human rights violation have the due process right of having their case investigated and of having those responsible punished.(107) Even though a human rights violation presupposes state responsibility, the victims' right to a thorough investigation, punishment and the prohibition of amnesties for serious human rights violations show that the Inter-American system tries to strengthen the position of victims. This suggests that the victim of the offense has the right to participate at any stage of the proceedings.
E. Composition of the Court
The right to a fair hearing under the Convention implies recourse to an "independent, and impartial tribunal, previously established by law."(108) The existence of a strong, independent and impartial judiciary is the key factor for the protection of individual rights.(109) Non-fulfillment of this condition explains the poor human rights records in many American states.
According to the Inter-American Court of Human Rights:
States Parties have an obligation to provide effective judicial remedies to victims of
human rights violations (Art. 25), remedies that must be substantiated in accordance with
the rules of due process of law (Art. 8 (1)), all in keeping with the general obligation of
such States to guarantee the free and full exercise of the rights recognized by the
Convention to all persons subject to their jurisdictions (Art. 1). According to this
principle, the absence of an effective remedy to violations of the rights recognized by the
Convention is itself a violation of the Convention by the State Party in which the remedy
is lacking.(110)
Remedies must be truly effective. This is not the case "when the Judicial Power lacks the necessary independence to render impartial decisions or the means to carry out its judgments."(111) When Peru reorganized its judiciary by dismissing many judges, the Commission asked Peru to provide a list of the objective criteria that were the basis for the severe sanction of the dismissal of the magistrates, to explain the procedure followed, and to identify the authority responsible for such a measure. The Commission underlined that it would have been preferable to continue with the proceedings than going foward against the magistrates under investigation and, after they had been guaranteed their right to a defense, to have adopted the appropriate decision, and not to do the opposite, dismissing them first in order to entertain requests for reconsiderations afterwards.(112)
F. Decision, Sentencing, and Punishment
1.-2. The American Convention does not explicitly state that reasons shall be given for a criminal judgment.(113) However, the accused has the minimum right to appeal the judgment to a higher court.(114) Such appeal can only be effective if the defense knows about the reasons for the judgment of first instance. Therefore, in order to be effective, the right to appeal must be interpreted as implying that reasons shall be given for the judgment.
3. Under art. 8 para. 4 of the Convention, "[a]n accused person acquitted by a nonappealable judgment shall not be subjected to a new trial for the same cause."(115) Interestingly, the American Convention does not explicitly protect convicted persons from new trials for the same cause. However, an argument could be made that there is a general principle of law -- ne bis in idem --, which also applies to convicted persons and which would be binding as such on the member states of the inter-American system for the protection of human rights.(116)
"Every person has the right to be compensated in accordance with the law in the event he has been sentenced by a final judgment through a miscarriage of justice."(117)
4. Freedom from ex post facto laws
"No one shall be convicted of any act or omission that did not constitute a criminal offense, under the applicable law, at the time it was committed. A heavier penalty shall not be imposed than the one that was applicable at the time the criminal offense was committed. If subsequent to the commission of the offense the law provides for the imposition of a lighter punishment, the guilty person shall benefit therefrom."(118) Article 4 para. 2 on the death penalty once again states that it may be imposed only "in accordance with a law establishing such punishment, enacted prior to the commission of the crime."
5. "No one shall be detained for debt. This principle shall not limit the orders of a competent judicial authority issued for nonfulfillment of duties of support."(119)
6.-7. According to art. 8 para. 5, "[c]riminal proceedings shall be public except insofar as may be necessary to protect the interests of justice." Criminal proceedings in this sense include the pronouncement of the judgment. Secret court systems such as exist in Colombia and Peru are flagrant violations of various aspects of the right to a fair trial.(120) In looking at secret court systems, the Commission did not even consider the exceptional clause according to which criminal proceedings may not be public, if "necessary to protect the interests of justice" when dealing with secret court systems.
8. There is a special prohibition in the Convention that proscribes extending punishment to any other person than the criminal.(121) The Inter-American Commission stressed that the inability to apprehend a person alleged to be guilty of a crime does not justify applying punishments intended for him to his wife and children instead.(122) Likewise group trials, through which individuals accused of lesser crimes are incarcerated for long periods with individuals accused of much more serious crimes, are critical under the Convention.(123)
9. Death Penalty. The American Convention on Human Rights deals extensively with the death penalty.
a. The death penalty may be imposed only for "the most serious crimes."(124) Art. 4 also provides: "In no case shall capital punishment be inflicted for political offenses or related common crimes."(125)
c. "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."(126)
d./e. Under art. 4, "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." According to the Inter-American Commission on Human Rights, there is even a recognized norm of ius cogens which prohibits state execution of children in the member states of the Organization of American States.(127)
The general reluctance of the Inter-American system to accept the death penalty becomes clear from the fact that art. 4 of the Convention relies on the principle of gradual abolishment of the death penalty.(128) Thus, "[t]he death penalty shall not be reestablished in states that have abolished it."(129) Moreover, "such punishment shall not be extended to crimes to which it does not presently apply."(130) Finally, in countries "that have not abolished the death penalty," it may be imposed only for the most serious crimes.(131) The Inter-American Court of Human Rights explained in an advisory opinion that a reservation to art. 4 para. 4 -- no death penalty for political or related common crimes -- did not cover the introduction of the death penalty for political or related common crimes to which it did not previously apply. Rather, introduction of the death penalty for crimes to which it did not previously apply presupposes an explicit reservation to art. 4 para. 2 of the Convention.(132)
10. Article 5 of the Convention guarantees the right to humane treatment providing that "[n]o one shall be subjected to torture or to cruel, inhuman, or degrading punishment."(133) Article 5 further provides that "[p]unishments consisting of deprivation of liberty shall have as an essential aim the reform and social readaptation of the prisoners."(134)
11. The power of the courts to weigh the evidence freely(135) should include their right to base a more severe judgment on negative inferences from the lack of cooperation of the accused. However, the accused has a right not to be compelled to be a witness against himself or to plead guilty.(136) No negative inferences must be drawn from the fact that the accused merely exercizes this fundamental right.
G. Appeal or Other Review in Higher Courts
The American Convention on Human Rights explicitly guarantees the right to appeal criminal judgments to a higher court.(137) The effectivenesss of the right to appeal would support a right to counsel even in this stage of the proceedings. Article 8 para. 4, which provides that an accused person acquitted by a non-appealable judgment shall not be subjected to a new trial for the same cause, implies that the prosecution may appeal or seek review of appealable sentences.
H. Pardon, Amnesty and Expungment
According to art. 4 para. 6 "[e]very 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."
The Inter-American system for the protection of human rights deals extensively with amnesties in another perspective. According to the case law of the Commission and the Court, member states are under a legal obligation to investigate serious human rights violations and to punish those responsible.(138) The Inter-American Commission on Human Rights derives such a duty to investigate and punish from the rights of due process (art. 8) and amparo (art. 25) read together with the duty of the states "to respect the rights and freedoms recognized" in the Convention "and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms," (Art. 1 para. 1 of the Convention).(139) To this extent, human rights have an affirmative dimension under the Inter-American system. In the Americas, the duty to investigate and punish human rights violations implies the prohibition of amnesty laws in the event of serious human rights violations. Thus amnesty laws and unreasonable statutes of limitation amounting to a de facto amnesty(140) violate the victim's right to a fair trial, as they weaken his or her right to bring a criminal action in a court of law against those responsible for these human rights violations.(141) This has to be seen against the background that, in a good number of the criminal law systems in Latin America, the victim or his or her attorney has the right to be a party making the charge in a criminal proceeding. In systems that allow it -- such as Argentina's and Uruguay's --, the victim of a crime has a fundamental right to go to the courts. That rights plays an important role in propelling the criminal process and moving it forward.(142) The obligation to punish including the prohibition of amnesties may have even become part of customary international law. In any case, it belongs to regional customary law in the Americas.(143)
Article 63 provides, "If the Court finds that there has been a violation of a right or freedom protected by this Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom, that was violated. It shall also rule, if appropriate, that the consequences of the measure or situation that constituted the breach of such right or freedom be remedied and that fair compensation be paid to the injured party."(144)
The Inter-American Court of Human Rights and the Inter-American Commission have accorded compensation to victims of human rights violations in many cases.(145) According to the Inter-American Court, the punishment of those responsible, a public statement condemning that practice, the vindication of the victim, and other similar measures "would constitute a part of the reparation of the consequences of the violation of the rights and freedoms and not a part of the indemnity, in accordance with art. 63 (1) of the Convention."(146) The Court held that "[t]he expression 'fair compensation', used in art. 63 (1) of the Convention to refer to a part of the reparation and to the 'injured party', is compensatory and not punitive. Although some domestic courts, particularly the Anglo-American, award damages in amounts meant to deter or to serve as an example, this principle is not applicable in international law at this time."(147) In the view of the Inter-American Court, fair compensation includes reparation to the family of the victim for the material and moral damages they suffered because of the involuntary disappearance of their relative.(148) The Court distinguishes whether the beneficiary of the indemnity is a victim of the human rights violation with a permanent or total disability or whether the beneficiaries of the indemnity are family members of the victim. If the victim is the beneficiary, "the compensation should include all he failed to receive, together with appropriate adjustments based upon his probable life expectancy."(149) If the beneficiaries are family members, the fact that they might be able to lessen the damage by receiving income on their own, especially educated and grown up children, has to be taken into account.(150) The government must compensate the injured parties for potential delays in the payment of damages by, for example, paying interest.(151) In the Aloeboetoe case, the Inter-American Court ordered payment of 453,102.00 US Dollars to the heirs, the creation of a foundation and the reopening of a school as reparations after the killing of seven civilians.(152)
J. Procedures for Juveniles
Under art. 5 of the Convention, "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."(153) In addition, the Commission applies the United Nations Convention on the Rights of the Child to States Parties to that Convention. Article 40 of the Convention on the Rights of the Child contains detailed rules on the treatment of children alleged as, accused of, or recognized as having infringed the penal law.(154)
The provision on capital punishment in the Convention, art. 4, provides, "Capital punishment shall not be imposed upon persons who, at the time the crime was committed, were under 18 years of age."(155) Moreover, art. 19 of the Convention grants every minor child "the right to the measure of protection required by his condition as a minor on the part of his family, society and the state." According to the Commission, this includes "an affirmative obligation of States to consider the best interests of the child in all their actions. The primacy of this concept has been regarded as the duty that States and society in general have to be particularly vigilant in protecting the rights of minors."(156) Given the special protection that the state is required to provide to children, the Commission finds measures depriving minor children of their freedom to be "particularly repugnant."(157)
K.-L. Military Courts/Emergency or Special Courts
Any military or special or emergency court which is not independent and impartial violates the individual right to a fair hearing under art. 8 para. 1 of the Convention.
For example, special military courts subordinated to the Ministry of Defense violate the right to a hearing by a "competent, independent, and impartial tribunal" guaranteed under art. 8.(158) The right to an effective remedy, meaning a remedy before a competent, independent and impartial court, cannot even be suspended in states of emergency.(159)
Placing civilians under the jurisdiction of the military courts is "patently contrary to the rights and guarantees protected under articles 8 and 25 of the American Convention, specifically the right to a hearing by a competent, independent and impartial tribunal."(160) According to the Commission, it is the job of the Armed Forces to combat the terrorists by engaging the irregular armed groups militarily, as is their primary role in the campaign against subversion. "The armed forces, however, overstep their natural role when they prosecute civilians accused of belonging to subversive groups, as this function is the proper purview of the judiciary."(161) The Commission's general prohibition on placing civilians under the jurisdiction of the military courts is noteworthy as it refers to a country in the state of emergency.(162) The Commission considers placing the police under military jurisdiction as a problem.(163) It recommends that crimes of treason and terrorism and "other cases of human rights violations" be tried by judges in the judicial branch of government - even in those cases where the alleged perpetrators are members of the armed forces.(164)
In the Neira Alegria case, the Inter-American Court held that military control and jurisdiction over a prison amounted to a factual or implicit suspension of habeas corpus contrary to arts. 7 para. 6 and 27 para. 2 of the American Convention.(165)
M. Administrative Courts
Referring to the situation of human rights in Nicaragua, the Inter-American Commission compared "judicial courts" and "administrative tribunals." It considered the former Nicaraguan "Anti-Somoza Courts" as administrative tribunals since they were subject to the Ministry of Justice and composed of members of the militia, reservists and militants or supporters of the Sandinista National Liberation Front, "in other words, the political enemies of the accused."(166) Such "administrative tribunals" lack impartiality, independence and autonomy. Therefore, they are incompatible with the right to fair trial under the Convention. The same reasoning, of course does not apply to independent adminstrative courts as they exist in many countries.
II. Conclusions
The very serious human rights violations of disappearing or holding persons incommunicado characterize the Inter-American system. A predominant concern in such cases is that prosecution of those responsible before an independent tribunal takes place at all.
In this respect, the Inter-American system initiated a new development in international law: the prohibition of impunity for serious human rights violation including the prohibition of amnesty laws. According to the long established practice of the Inter-American Commission on Human Rights, a state violates its duty to protect human rights if it lets those responsible, whether state officials or private parties, go unpunished.
Other important features of the Inter-American system are actio popularis and the special emphasis on the non-derogability of the right to habeas corpus and amparo in case of violations of non-derogable rights. These may be the only means of piercing the veil of incommunication.
Beyond these provisions, the American Convention is rich and detailed in provisions concerning the right to fair trial. But those provisions will only come to bear fully after the basic inter-American right to have one's torturers tried and punished is consistently implemented.
1. - Art. 7 paras. 4 to 6 read: "(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 nonfulfillment of duties of support."
2. Art. 7 para. 4; see also art. 8 para. 2 (b).
3. Art. 7 para. 6.
4. Art. 8 reads: "(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 trail for the same cause.
(5) Criminal proceedings shall be public, except insofar as may be necessary to protect the interests of justice."
5. Art. 8 para. 1.
6. Art. 8 para. 2.
7. Art. 8 para. 4.
8. Art. 8 para. 5.
9. Art. 9 reads: "No one shall be convicted of any act or omission that did not constitute a criminal offense, under the applicable law, at the time it was committed. A heavier penalty shall not be imposed than the one that was applicable at the time the criminal offense was committed. If subsequent to the commission of the offense the law provides for the imposition of a lighter punishment, the guilty person shall benefit therefrom."
10. Second Report on the Situation of Human Rights in Colombia, Inter-Am. C.H.R., OEA/Ser. L/VI.II. 84, Doc. 39 rev., 1993, p. 87. Art. 10 on the right to compensation reads: "Every person has the right to be compensated in accordance with the law in the event he has been sentenced by a final judgment through miscarriage of justice."
11. Art. 25 reads: "(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 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 a 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."
12. The member states of the OAS which -- as of January 1996 -- did not yet ratify the American Convention on Human Rights are: Antigua and Barbuda, Bahamas, Belize, Canada, Cuba, Guyana, St. Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines and the United States.
13. American Declaration of the Rights and Duties of Man
Art. XVIII (Right to a fair trial): "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."
Art. XXVI (Right to due process of law): "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 preexisting laws, and not to receive cruel, infamous or unusual punishment."
14. Advisory Opinion OC-10/89, I.-A. Court H.R., No. 10, 1989, reprinted in Human Rights Law Journal (HRLJ), vol. 11, 1990, p. 118, p. 125. See also Res. No. 23/81, Case 2141, Inter-Am. C.H.R., reprinted in Annual Report 1980-1981, OEA/Ser. L/V/II. 54, Doc. 9, rev. 1, 1981, p. 38; Inter-AM. C.H.R., Annual Report 1992-1993, OEA/Ser. L/V/II. 83, Doc. 14, corr. 1, 1993, p. 37.
15. Id., p. 126.
16. Id., p. 125.
17. Report on the Situation of Human Rights in Chile, Inter-Am. C.H.R., OEA/Ser. L/VI.II.66, Doc. 17, 1985, p. 150, reprinted in Buergenthal/Norris, Human Rights, The Inter-American System, Binder 5, Booklet 22.2., 1986, p. 72.
18. Report on the Situation of Human Rights in Peru, Inter-Am. C.H.R., OEA/Ser. L/V/II. 83. Doc. 31, 1993, p. 60; see above note 10, p. 250.
19. See Velásquez Rodríguez Case, I.-A. Court H.R., reprinted in HRLJ, vol. 9, 1988, p.212, p. 231.
20. As opposed to e. g. the European Commission (art. 25 of the European Convention on Human Rights) and the European Court of Human Rights (cf. art. 5 para. 1 (e) of Protocol No. 9 to the European Convention, see International Legal Materials (ILM), vol. 30, 1991, p. 694, read together with art. 25 of the Convention), the Inter-American Commission on Human Rights does not only admit petitions by victims of human rights violations, but by "any person or group of persons, or any nongovernmental entity legally recognized in one or more member states of the Organization" (art. 44 of the American Convention on Human Rights).
21. See Neira Alegria et al. Case, I.-A. Court H.R., Series C: Decisions and Judgments, No. 20, 1995, p. 29.
22. See above note 19, p. 232.
23. Advisory Opinion OC-8/87, I.-A. Court H.R. No. 8, 1987, reprinted in HRLJ, vol. 9, 1988, p.94, p. 101.
24. Art. 8 para. 2.
25. Art. 8 para. 3.
26. See Inter-Am. C.H.R., Annual Report 1994, OEA/Ser. L/V/II.88, Doc. 9 rev., 1995, p. 121.
27. Id., p. 124.
28. Art. 5 para. 4.
29. A special Inter-American Convention on the Forced Disappearance of Persons was signed under the auspices of the Organization of American States on June 9, 1994. The Convention is reproduced at ILM, vol. 33, 1994, p. 1529. As of Jan. 1, 1996, no state had ratified the Convention. "This Convention shall enter into force for the ratifying states on the thirtieth day from the date of deposit of the second instrument of ratification. For each state ratifying or acceding to the Convention after the second instrument of ratification has been deposited, the Convention shall enter into force on the thirtieth day from the date on which that state deposited its instrument of ratification or accession." (Art. XX of the Inter-American Convention on the Forced Disappearance of Persons).
30. But see above note 26, p. 178.
31. Art. 7 para. 5.
32. Art. 8 para. 2 (d).
33. Art. 7.
34. See art. 7 para. 6 and art. 25 para. 1; see also art. XVIII of the American Declaration of the Rights and Duties of Man.
35. Cf. above note 23 (on the relationship between habeas corpus and amparo).
36. Art. 7 para. 6 cl. 3.
37. Art. 7 para. 6 cl. 2.
38. See above note 23; Advisory Opinion OC-9/87, No. 9, 1988, reprinted in HRLJ, vol.9, 1988, p. 204, p. 211.
39. Art. 27 para. 2.
40. Art. 27 para. 2.
41. Id., p. 211; see also Inter-Am. C.H.R., Annual Report 1993, OEA/Ser. L/V/II. 85, Doc. 9, rev., 1994, p. 487.
42. See above note 23, p. 95.
43. Id., p. 101.
44. Id., p. 103.
45. See above note 21, p. 32, p. 35.
46. Art. 7 para. 4.
47. Art. 8 para. 1 (b).
48. See, e. g. Inter-Am. C.H.R., Annual Report 1992-93, above note 14, p. 212; see above note 26, pp. 93-95, 204; see also Neira Alegria et al. Case (Order of June 29, 1992), reprinted in I.-A. Court H.R., Annual Report 1992, OAS/Ser. L/V/III. 27, Doc. 10, 1993, p. 64.
49. Art. 6 para. 3 (d) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
50. See above note 10, p. 249.
51. See Pahl, Concealing Justices or Concealing Injustice?: Colombia's Secret Courts, Denver Journal of International Law and Policy, vol. 21, 1993, p. 431, p. 432; cf. above note 10, p. 105 (on the shocking situation of judges and lawyers in Colombia); cf. also above note 41, p. 485 (on "faceless" judges and superior prosecuters in Peru); cf. also Annual Report 1992-93, above note 14, p. 207. (During the "holocaust of the Palace of Justice" 14 Magistrates and Deputy Magistrates of the Colombian Supreme Court were killed. In 1993, the 18 Justices of the Costa Rican Supreme Court were kidnapped by several former policemen.)
52. See above note 10, p. 249.
53. Id., p. 109.
54. Id., p. 99.
55. Art. 8 para. 2(a)
56. Art. 8 para. 2 (c). Cf. above note 41, p. 493 (for violations of the rights of art. 8 para 2 (c)).
57. Art. 8 para. 2 (d) and (e).
58. See Report on the Situation of Human Rights in El Salvador, Inter-Am. C.H.R., OEA/Ser. L/V/II. 85, Doc. 28, rev., 1994, p. 5.
59. Cf., e. g. Advisory Opinion OC-11/90, I.-A. Court H.R., No. 11, 1990, reprinted in HRLJ, vol. 12, 1991, p. 20, (Exceptions to the Exhaustion of Domestic Remedies in Cases of Indigency or Inability to Obtain Legal Representation because of a Generalized Fear within the Legal Community); see above note 10, p. 105; see also above note 41, p. 494.
60. See above note 26, p. 123.
61. See above note 41, p. 493.
62. Art. 6 para. 3 (c) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
63. Art. 14 para. 3 (d) of the International Covenant on Civil and Political Rights.
64. Art. 8 para. 2 (e).
65. See above note 59, p. 22.
66. Id., p. 22.
67. Id., p. 22; cf. Farrell, The American Convention on Human Rights: Canadas Present Law and the Effect of Ratification, The Canadian Yearbook of International Law, vol. 30, 1992, p. 233, p. 249. (According to art. 1 para. 1 of the Convention, State Parties undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms without any discrimination for reasons of -- inter alia -- economic status.)
68. Art. 8 para. 2 (e) read together with the dictum of the I.-A. Court H.R.
69. See above note 59.
70. As to non-criminal proceedings, the Court went on to say: "For cases which concern the determination of a person's 'rights and obligations of a civil, labor, fiscal or any other nature,' Article 8 does not specify any 'minimum guarantees' similar to those provided in Art. 8 (2) for criminal proceedings. It does, however, provide for 'due guarantees;' consequently, the individual here also has the right to the fair hearing provided for in criminal cases. It is important to note here that the circumstances of a particular case or proceeding -- its significance, its legal character, and its context in a particular legal system -- are among the factors that bear on the determination of whether legal representation is or is not necessary for a fair hearing."
71. Art. 7 para. 5 cl. 1.
72. Art. 8 para. 1.
73. Art. 25 para. 1.
74. Art. 8 para. 5.
75. Cf. above note 10, p. 107 (For example, in November 1985, the Palace of Justice was seized by a M-19 commando. Among others, 11 magistrates of the Supreme Court and court personnel were killed); see also above note 41, p. 139.
76. See above note 10, p. 98; cf. above note 41, p. 491 (on "faceless" judges).
77. See below p. 29.
78. See above note 10, p. 109.
79. Art. 13.
80. Cf. Advisory Opinion OC-5/85, I.-A. Court H.R., No. 5, 1985, reprinted in HRLJ, vol. 7, 1986, p. 74, p. 84. (Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (arts. 13 and 29 American Convention on Human Rights).
81. Art. 13 of the American Convention reads: "(1) Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice.
(2) The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure:
(a) respect for the rights and reputation of others; or
(b) the protection of national security, public order, or public health or morals.
(3) The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.
(4) Notwithstanding the provisions of paragraph 2 above, public entertainments may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence.
(5) Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar illegal action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be considered as offenses punishable by law."
Art. 10 of the European Convention reads: "(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
82. Art. 13 para. 2 (a).
83. See above note 14, p. 200.
84. See above note 59, p. 22.
85. Art. 8 para. 1.
86. Art. 8 para. 2 (d).
87. Art. 8 para. 2 (a).
88. See above, pp. 10 f.
89. See above note 19, p. 212.
90. Id., p. 232; see also Gangaram Panday Case, I.-A. Court H.R., reprinted in HRLJ, vol. 15, 1994, p. 168, p. 173.
91. Id., p. 232.
92. Id., p. 232.
93. Id., p. 233.
94. Report on the Situation of Human Rights in the Republic of Nicaragua, Inter-Am. C.H.R., OEA/Ser. L/V/II.53, Doc. 25, 1981, reprinted in Buergenthal/Norris, Human Rights, The Inter-American System, Binder 5, Booklet 22, 1983, p. 121.
95. Three Cases v. Honduras: Velásquez Rodríguez/Fairén Garbi and Solís Corrales/Godínez Cruz (Provisional Measures), I.-A. Court H.R., reprinted in HRLJ, vol. 9, 1988, p. 104.
96. Colotenango Case, I.-A. Court H.R., reprinted in Annual Report 1994, OAS/Ser. L/V/III. 31, Doc. 9, 1995, p. 103, p. 106.
97. See above note 41, at 92; see Annual Report 1992-1993, above note 14, p. 60, p. 73, p. 103.
98. See Annual Report 1992-1993, above note 14, p. 103.
99. See above note 10, p. 96, p. 98.
100. For more details, see above, pp. 11 f.
101. Art. 8 para. 2 cl. 1. Art. XXVI para. 1 of the American Declaration of the Rights and Duties of Man reads: "Every accused person is presumed to be innocent until proved guilty."
102. The principle of in dubio pro reo means that guilt of the accused must be proved beyond a reasonable doubt.
103. See above note 26, p. 121.
104. See above note 94, p. 121.
105. Art. 8 para. 2 (f).
106. See above note 26, p. 103.
107. See below, p. 29.
108. Art. 8 para. 1.
109. See above note 26, p. 92.
110. See above note 38, p. 208; see above note 23, p. 100; see above note 26, p. 95.
111. See above note 38, p. 208; cf. above note 26, p. 65 (for violations of the guarantee of an independent and impartial judiciary); see above note 41, p. 506; see Annual Report 1992-1993, above note 14, p. 207; Inter.-Am. C.H.R., Annual Report 1982-1983, OEA/Ser. L/V/II. 61, Doc. 22, rev. 1, 1983, reprinted in Buergenthal/Norris, Human Rights, The Inter-American System, Binder 5, Booklet 24. 1, 1986, p. 14; Report on the Situation of Human Rights in Haiti, Inter-Am. C.H.R., OEA/Ser. L/V/II. 85, Doc. 9 rev.,1994, p. 74; see Report on the Situation of Human Rights in Peru, above note 18, p.17, p. 88.
112. See id., above note 18, p. 90.
113. But see art. 66 para. 1 for the judgments of the I.-A. Court H.R.
114. Art. 8 para. 2 (h).
115. See above note 26, p. 103; see also above note 41, p. 486.
116. Cf. above note 26, p. 107. (For a more general formulation of the principles of ne bis in idem and res judicata as enshrined in art. 8 para. 4: "Initiation of a new criminal prosecution based on the same charges brought previously violates the principle prohibiting multiple criminal prosecutions, and accordingly, subparagraph 4, art. 8 of the American Convention." The pertinent case, however, dealt with a person acquitted.)
117. Art. 10.
118. Art. 9. See above note 41, p. 495.
119. Art. 7 para. 7.
120. See above, pp. 11 f.
121. Art. 5 para. 3 reads, "Punishment shall not be extended to any person other than the criminal."
122. See above note 26, p. 102.
123. See above note 41, p. 495.
124. Art. 4 para. 2.
125. Art. 4 para. 4. Cf. Frowein, The European and the American Conventions on Human Rights - A Comparison, HRLJ, vol 1, 1980, p. 44, p. 48, (critical on the privilege for political offenders).
126. Art. 4 para. 6.
127. Res. No. 3/87, Case 9647, Inter-Am. C.H.R., reprinted in Annual Report 1986-87, OEA/Ser. L/V/II. 71, Doc. 9 rev. 1, 1987, p. 148.
128. See Advisory Opinion OC-3/83, I.-A. Court H.R., No. 3, 1983, reprinted in HRLJ, vol. 4, 1983, p. 339, p. 353.
129. Art. 4 para. 3.
130. Art. 4 para. 2 cl. 2.
131. Art. 4 para. 2 cl. 1.
132. See above note 128, p. 358.
133. Art. 5 para. 2 cl. 1.
134. Art. 5 para. 6. See also above, A. 1.
135. See above note 19, p. 232.
136. Art. 8 para. 2 (g).
137. Art. 8 para. 2 (h).
138. See above note 26, p. 181; see above note 41, pp. 169, pp. 431, pp. 451, pp. 452; see Annual Report 1992-1993, above note 14, p. 161; see above note 58, p. 67; see Report on the Situation of Human Rights in Haiti, above note 111, p. 130; Velásquez Rodríguez Case (Compensatory Damages), I.-A. Court H.R., reprinted in HRLJ, vol. 11, 1990, p. 127, p. 130.
139. See Annual Report 1992-93, id., p. 161.
140. Cf. id., p. 42. (This refers to the Argentinian Law 23, 492 setting a 60-day deadline for terminating all criminal proceedings involving crimes committed as part of the so-called "dirty war".)
141. Id., p. 42, p. 162.
142. Id., p. 48.
143. Cf. Report No.26/92 - Case 10. 287, Inter-Am. C.H.R., reprinted in HRLJ, vol 14, 1993, p. 167, p. 168 (Case 10.287 - El Salvador - September 24, 1992, El Salvador Report -- State's Responsibility for 1983 Las Hojas Massacre); cf. Report No. 28/92, Inter.-Am. C.H.R., reprinted in HRLJ, vol. 13, 1992, p. 336 (Cases No. 10, 147, 10, 181, 10, 240, 10, 262, 10, 369 and 10, 311 - Argentina - Oct. 2, 1992, Report No. 29, 92 - Cases No. 10, 029, 10, 036, 10, 145, 10, 305, 10, 372, 10, 373, 10, 374 and 10, 375 - Uruguay - Oct. 2, 1992); see also Kokott, No Impunity for Human Rights Violations in the Americas, HRLJ, vol. 14, 1993, p. 153; Kokott, Völkerrechtliche Beurteilung des Argentinischen Gesetzes Nr. 23521 über die Gehormsamspflicht (obedencia debida), ZaöRV, vol. 47, 1987, p. 506; Roth-Arriaza, Impunity and Human Rights in International Law and Practice, 1995.
144. Art. 63 para. 1.
145. See above note 58, p. 73; see also Fourth Report on the Situation of Human Rights in Guatemala, OEA/Ser. L/V/II. 83, Doc. 16, rev., 1993, p. 22; see above note 21, p. 37.
146. See Velásquez Rodríguez Case (Compensatory Damages), above note 138, p. 129.
147. Id., p. 130.
148. Id.
149. Id., p. 131.
150. Cf. id., p. 131, p. 133. (In the Velásquez case the Inter-American Court accorded 750,000 lempiras (Honduras) to the family of Velásquez, 187,050 lempiras to his wife and 562,000 lempiras to Velásquez children. On January 1, 1990, 2.01 lempira equaled one US Dollar.)
151. Velásquez Rodríguez Case (Assessing Compensatory Damages Against the State of Honduras), I.-A. Court H.R., reprinted in HRLJ, vol. 12, 1991, p. 14, p. 18.
152. Aloeboetoe et al. Case (Reparations According to art. 63 (1) of the American Convention), I.-A. Court H.R., reprinted in HRLJ, vol. 14, 1993, p. 413; see also Davidson, Remedies for Violations of the American Convention on Human Rights, International and Comparative Law Quarterly, vol. 44, 1995, p. 405.
153. Art. 5 para. 5.
154. Art. 40 of the United Nations Convention on the Rights of the Child reads: "(1) States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's re-integration and the child's assuming a constructive role in society.
(2) To this end, and having regard to the relevant provisions of international instruments, States Parties shall, in particular, ensure that:
(a) No child shall be alleged as, be accused as, or recognized as having infringed the penal law by reasons of acts or omissions which were not prohibited by national or international law at the time they were committed;
(b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees:
(i) to be presumed innocent until proven guilty according to law;
(ii) to be informed promptly and directly of the charges against him or her, and if appropriate through his or her parents or legal guardian, and to have legal or other appropriate assistance in the preparation and presentation of his or her defense;
(iii) to have the matter determined without delay by the competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is considered not to be in the best interest of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians;
(iv) not to be compelled to give testimony or to confess guilt; to examine or have examined adverse witnesses and to obtain the participation and examination of witnesses on his or her behalf under conditions of equality;
(v) if considered to have infringed the penal law, to have this decision and any measures imposed in consequence thereof reviewed by a higher competent, independent and impartial authority or judicial body according to law;
(vi) to have the free assistance of an interpreter if the child cannot understand or speak the language used;
(vii) to have his or her privacy fully respected at all stages of the proceedings."
155. Art. 4 para. 5.
156. See above note 26, p. 101.
157. Id.
158. Id., p. 125; see above note 94, p. 120; Inter-Am. C.H.R., Annual Report 1986-87, OEA/Ser. L/V/II. 71, Doc. 9, rev. 1, 1987, reprinted in Buergenthal/Norris, Human Rights, The Inter-American System, Binder 4, Booklet 21.3., 1988, p. 129, p. 151; see above note 17, p. 72.
159. See above, pp. 9 f. with references.
160. See above note 41, p. 507.
161. Id.
162. Cf. id., p. 507, p. 483 (referring to Peru under Decree Law 25418, called the Emergency and National Reconstruction Law).
163. See Annual Report 1992-1993, above note 14, p. 192.
164. Id., p. 515.
165. See above note 21, p. 32, p. 35.
166. See Annual Report 1982-83, above note 111, p. 15.