I. ORIGIN, STRUCTURE AND JURISDICTION OF THE COURT

 

A.  Establishment of the Court

 

The Inter-American Court of Human Rights (hereinafter "the Court" or "the Inter-American Court" or "the Tribunal") was brought into being by the entry into force of the American Convention on Human Rights or the "Pact of San Jose, Costa Rica" (hereinafter "the Convention" or "the American Convention") on July 18, 1978, when the eleventh instrument of ratification by a Member State of the Organization of American States (hereinafter "the OAS" or "the Organization") was deposited.  The Convention was adopted at the Inter-American Specialized Conference on Human Rights, which took place from November 7 to 22, 1969, in San Jose, Costa Rica.

 

The two organs for the protection of human rights provided for under Article 33 of the Pact of San Jose, Costa Rica, are the Inter-American Commission on Human Rights (hereinafter "the Commission" or "the Inter-American Commission") and the Court. The function of these organs is to ensure the fulfillment of the commitments made by the States Parties to the Convention.

 

 

In accordance with the terms of the Statute of the Court (hereinafter "the Statute"), the Court is an autonomous judicial institution which has its seat in San Jose, Costa Rica, and has as its purpose the application and interpretation of the Convention.

 

The Court consists of seven judges, nationals of the Member States of the OAS, who act in an individual capacity and are elected "from among jurists of the highest moral authority and of recognized competence in the field of human rights, who possess the qualifications required for the exercise of the highest judicial functions in conformity with the law of the state of which they are nationals or of the state that proposes them as candidates" (Article 52 of the Convention). Article 8 of the Statute provides that the Secretary General of the OAS shall request the States Parties to the Convention to submit a list of their candidates for the position of judge of the Court.  In accordance with Article 53(2) of the Convention, each State Party may propose up to three candidates.

 

The judges are elected by the States Parties to the Convention for a term of six years. The election is by secret ballot. Judges are elected by an absolute majority vote in the OAS General Assembly shortly before the expiration of the terms of the outgoing judges. Vacancies on the Court caused by death, permanent disability, resignation or dismissal shall be filled, if possible, at the next session of the OAS General Assembly (Article 6(1) and 6(2) of the Statute).

 

Judges, whose terms have expired, shall continue to serve with regard to cases that they have begun to hear and that are still pending (Article 54(3) of the Convention).

 

If necessary, in order to maintain a quorum of the Court, one or more interim judges may be appointed by the States Parties to the Convention (Article 6(3) of the Statute). "If a judge is a national of any of the States Parties to a case submitted to the Court, [that judge] shall retain [the] right to hear that case. If one of the judges called upon to hear a case is a national of one of the States Parties to the case, any other State Party to the case may appoint a person to serve on the Court as an ad hoc judge. If among the judges called upon to hear a case, none is a national of the States Parties to the case, each of the latter may appoint an ad hoc judge" (Article 10(1), 10(2) and 10(3) of the Statute).

 

States Parties to a case are represented in the proceedings before the Court by the agents they designate (Article 21 of the Rules of Procedure).

 

The judges are at the disposal of the Court and hold as many regular sessions a year as may be necessary for the proper discharge of their functions. They may also meet in special sessions when convened by the President of the Court (hereinafter "the President") or at the request of a majority of the judges.  Although the judges are not required to reside at the seat of the Court, the President shall render his services on a permanent basis (Article 16 of the Statute).

 

The President and the Vice President are elected by the judges for a period of two years and may be reelected (Article 12 of the Statute).

 

There is a Permanent Commission of the Court (hereinafter "the Permanent Commission") composed of the President, the Vice President and any other judge whom the President considers convenient, according to the needs of the Court. The Court may also create other commissions for specific matters (Article 6 of the Rules of Procedure).

 

The Secretariat functions under the direction of a Secretary, who is elected by the Court (Article 14 of the Statute).

 

 

Throughout 1998, the composition of the Court was as follows in order of precedence:

 

Hernán Salgado-Pesantes (Ecuador), President

Antônio A. Cançado Trindade (Brazil), Vice President

Máximo Pacheco-Gómez (Chile)

Oliver Jackman (Barbados)

Alirio Abreu-Burelli (Venezuela)

Sergio García-Ramírez (Mexico) and

Carlos Vicente de Roux-Rengifo (Colombia).

 

In the same vein, States Parties that have been sued have exercised the right to appoint an ad hoc judge in nine cases already pending in the Court (Article 55(1) of the Convention). The list of ad hoc judges, and the cases for which they have been appointed, is the following:

 

Paniagua Morales et al. Case....................................................................... Edgar E. Larraondo-Salguero (Guatemala)

Blake Case........................................................................................................... Alfonso Novales-Aguirre (Guatemala)

Cantoral Benavides Case,

Durand and Ugarte Case, and

Castillo Petruzzi et al. Case........................................................................................... Fernando Vidal-Ramírez (Peru)

Cesti Hurtado Case........................................................................................................... David Pezúa-Vivanco [1] (Peru)

Baena Ricardo et al. Case.................................................................................. Rolando A. Reyna-Rodríguez (Panama)

Indigenous Comunity Mayagna Awas Tingni Case..................................... Alejandro Montiel-Argüello (Nicaragua)

Las Palmeras Case............................................................................................................................................... Pending [2]

 

The Secretary of the Court is Manuel E. Ventura-Robles and the Interim Deputy Secretary was Víctor M. Rodríguez-Rescia.

 

 

The Convention confers contentious and advisory functions on the Court. The first function involves the power to adjudicate disputes relating to charges that a State Party has violated the Convention.  The second function involves the power of the Member States to request that the Court interpret the Convention or "other treaties concerning the protection of human rights in the American States."  Within their spheres of competence, the organs listed in the Charter of the OAS may in like manner consult the Court.

 

1. The Contentious Jurisdiction of the Court

 

The contentious jurisdiction of the Court is spelled out in Article 62 of the Convention, which reads as follows:

 

 1. A State Party may, upon depositing its instrument of ratification or adherence to this Convention, or at any subsequent time, declare that it recognizes as binding, ipso facto, and not requiring special agreement, the jurisdiction of the Court on all matters relating to the interpretation or application of this Convention.

 

 2. Such declaration may be made unconditionally, or under the condition of reciprocity, for a specified period, or for specific cases. It shall be presented to the Secretary General of the Organization, who shall transmit copies thereof to the other members states of the Organization and to the Secretary of the Court.

 

 3. The jurisdiction of the Court shall comprise all cases concerning the interpretation and application of the provisions of this Convention that are submitted to it, provided that the States Parties to the case recognize or have recognized such jurisdiction, whether by special declaration pursuant to the preceding paragraphs, or by a special agreement.

 

Since States Parties are free to accept the Court's jurisdiction at any time, a State may be invited to do so for a specific case.

 

Pursuant to Article 61(1) of the Convention, "[o]nly the States Parties and the Commission shall have the right to submit a case to the Court."

 

Article 63(1) of the Convention contains the following provision relating to the judgments that the Court may render:

 

[i]f 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.

 

Paragraph 2 of Article 68 of the Convention provides "[t]hat part of a judgment that stipulates compensatory damages may be executed in the country concerned in accordance with domestic procedure governing the execution of judgments against the state."

 

Article 63(2) of the Convention provides that:

 

[i]n cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons, the Court shall adopt such provisional measures as it deems pertinent in matters it has under consideration. With respect to a case not yet submitted to the Court, it may act at the request of the Commission.

 

The judgment rendered by the Court in any dispute is "final and not subject to appeal." Nevertheless, "[i]n case of disagreement as to the meaning or scope of the judgment, the Court shall interpret it at the request of any of the parties, provided the request is made within ninety days from the date of notification of the judgment" (Article 67 of the Convention). The States Parties "undertake to comply with the judgment of the Court in any case to which they are parties" (Article 68(1) of the Convention).

 

The Court submits a report on its work to the General Assembly at each regular session, and it "[s]hall specify, in particular, the cases in which a state has not complied with its judgments" (Article 65 of the Convention).

 

2. The Advisory Jurisdiction of the Court

 

Article 64 of the Convention reads as follows:

 

 1. The member states of the Organization may consult the Court regarding the interpretation of this Convention or of other treaties concerning the protection of human rights in the American states. Within their spheres of competence, the organs listed in Chapter X of the Charter of the Organization of American States, as amended by the Protocol of Buenos Aires, may in like manner consult the Court.

 

 2. The Court, at the request of a member state of the Organization, may provide that state with opinions regarding the compatibility of any of its domestic laws with the aforesaid international instruments.

 

The standing to request an advisory opinion from the Court is not limited to the States Parties to the Convention. Any OAS Member State may request such an opinion.

 

Likewise, the advisory jurisdiction of the Court enhances the Organization's capacity to deal with questions arising from the application of the Convention because it enables the organs of the OAS to consult the Court within their spheres of competence.

 

3. Recognition of the Contentious Jurisdiction of the Court

 

Twenty States Parties have recognized the contentious jurisdiction of the Court. They are Costa Rica, Peru, Venezuela, Honduras, Ecuador, Argentina, Uruguay, Colombia, Guatemala, Suriname, Panama, Chile, Nicaragua, Trinidad and Tobago [3] , Paraguay, Bolivia, El Salvador, Haiti [4] , Brazil [5] and Mexico [6] .

 

The status of ratification and accessions to the Convention can be found at the end of this report (Appendix XXXIII).

 

 

Article 72 of the Convention provides that "the Court shall draw up its own budget and submit it for approval to the General Assembly through the General Secretariat. The latter may not introduce any changes in it." Pursuant to Article 26 of its Statute, the Court administers its own budget.

 

 

The Court has close institutional ties with the Commission. These ties have been strengthened through meetings between the members of the two bodies, held at the recommendation of the General Assembly. The Court also maintains cooperative relations with the Inter-American Institute of Human Rights, established by an agreement between the Government of Costa Rica and the Court, which entered into force on November 17, 1980. The Institute is an autonomous, international academic institution with a global, multidisciplinary approach to the teaching, research and promotion of human rights. The Court also maintains institutional ties with the European Court of Human Rights, which was established by the Council of Europe and has functions similar to those of the Inter-American Court.

 

 

From January 19 through January 21, 1998, the Court held its XXXIX Regular Session at its seat in San Jose, Costa Rica. The composition of the Court was as follows: Hernán Salgado-Pesantes (Ecuador), President; Antônio A. Cançado Trindade (Brazil), Vice President; Máximo Pacheco-Gómez (Chile); Oliver Jackman (Barbados); Alirio Abreu-Burelli (Venezuela); Sergio García-Ramírez (Mexico) and Carlos Vicente de Roux Rengifo (Colombia).  For the pertinent parts of the session, the ad hoc judge named by the Republic of Argentina for the Garrido and Baigorria Case, Mr. Julio A. Barberis, also participated. Also present were the Secretary of the Court, Manuel E. Ventura-Robles and the Interim Deputy Secretary, Víctor M. Rodríguez-Rescia.  The following matters were considered during this session:

 

 

1.        Swearing in of the New Judges of the Court

 

As a result of having been elected as Judges to the Inter-American Court during the XXVII Regular Session of the General Assembly of the OAS, held between June 1 and 5, 1997, in Lima, Peru, the Court swore in judges Sergio García-Ramírez (Mexico) and Carlos Vicente de Roux-Rengifo (Colombia).

 

 

2.       Reform of the Rules of Procedure of the Court

 

The Court approved a reform to Article 57(1) of its Rules of Procedure (Appendix II), which reads in the following manner: 

 

When a case is ready for a judgment, the Court shall meet in private. A preliminary vote shall be taken, the wording of the judgment approved, and the parties shall be so notified by the Secretariat.

 

After considering the notification procedure of judgments established in its previous Rules of Procedure, in virtue of the principles of economic and procedural efficiency, the Court adopted this with the purpose of eliminating the practice of holding a public for the reading and notification of judgments.

 

3.       Garrido and Baigorria Case

 

On January 20, 1998, the Court held a public hearing and heard the arguments of the representatives of the victims, the Inter-American Commission and the State of Argentina regarding the reparations in this case.

 

 

4.       Provisional Measures in the Alvarez et al. Case - Colombia

 

By Order of January 21, 1998 (Appendix III), the Court confirmed the December 22, 1997, Order of its President, which expanded the provisional measures adopted by the Court in the Alvarez et al. Case, currently being heard by the Inter-American Commission.  In its Order, the Court called upon the State of Colombia to maintain the measures necessary to protect the life and personal integrity of José Daniel Alvarez, Nidia Linores Ascanio, Gladys López, Yanette Bautista, María Helena Saldarriaga, Piedad Martín, María Eugenia López, Adriana Diosa, Astrid Manrique, Faride Ascanio, Carmen Barrera, Evidalia Chacón, José Publio Bautista, Nelly María Ascanio, Ayda Mile Ascanio, Miriam Rosas Ascanio, Javier Alvarez, and María Eugenia Cárdenas and her family.  The Court also called upon the State of Colombia to maintain the measures necessary to ensure that the offices of the Asociación de Familiares de Detenidos-Desaparecidos de Colombia (ASFADDES) can do their regular functions without danger to the life or personal integrity of those that work their, in particular the offices of the Association in the cities of Medellín and Ocaña.

 

5.       Provisional Measures in the Cesti Hurtado Case - Peru

 

The measures in this case were adopted by the President of the Court on July 29, 1997, and ratified by the Court on September 11, 1997, with the purpose of ensuring the physical, psychological and moral integrity of Mr. Gustavo Cesti-Hurtado, the alleged victim in a case in its initial proceedings before the Court. On January 21, 1998, the Court emitted an Order (Appendix IV) in which it ordered the State of Peru to maintain the provisional measures adopted in this case and also to permit Mr. Cesti-Hurtado to receive the medical treatment of his choice.

 

6.       Other Matters

 

The Court considered various other procedural matters pending before it, such as the reports presented by those States that had adopted provisional measures and the observations presented by the Inter-American Commission to those reports. The Court then emitted the orders it considered pertinent to the documentation presented. The Court also reviewed and approved its 1997 Annual Report, which was submitted to the consideration of the General Assembly of the OAS during its XXVIII Regular Session (infra III.D).

 

B. XXII SPECIAL SESSION OF THE COURT

 

From January 22 - 30, 1998, the Court held the XXII Special Session at its seat in San José, Costa Rica. The composition of the Court was the following: Hernán Salgado-Pesantes (Ecuador), President; Antônio A. Cançado Trindade (Brazil), Vice President; Héctor Fix-Zamudio (México); Alejandro Montiel-Argüello (Nicaragua); Máximo Pacheco-Gómez (Chile); Oliver Jackman (Barbados) and Alirio Abreu-Burelli (Venezuela). The ad hoc Judges named by the State of Guatemala, Alfonso Novales-Aguirre (Blake Case) and Edgar E. Larraondo-Salguero (Paniagua Morales et al. Case), also participated. Also present were the Secretary of the Court, Manuel E. Ventura-Robles and the Interim Deputy Secretary, Víctor M. Rodríguez-Rescia. During this session, the Court heard the following matters:

 

1. Blake Case

 

On January 24, 1998, the Court deliberated and handed down a judgment in the Blake Case (Appendix V), in which, by seven votes against one, it found that the State of Guatemala violated the judicial guarantees established in Article 8(1) of the Convention to the detriment of the next of kin of Mr. Nicholas Chapman Blake.  Unanimously, the Court found that Guatemala violated Article 5 of the Convention, in conjunction with Article 1(1) of the same, to the detriment of the next of kin of Mr. Blake; that the State was obligated to use all of the means in its power to investigate the events denounced and to punish those responsible. The Court also ordered the State to pay fair compensation to the next of kin of Mr. Blake and to reimburse the expenses they have incurred for the pertinent actions before the Guatemalan authorities during the case, and it ordered that the reparations phase be opened. Judge Montiel-Argüello, presented the Court with his Dissenting Opinion, Judge Cançado Trindade presented his Reasoned Opinion, and Judge Novales-Aguirre his Reasoned Concurring Opinion, all of which accompany the Judgment.

 

2.       Paniagua Morales et al. Case

 

The Court deliberated on the Paniagua Morales et al. Case in hopes of adopting a decision on the merits during the XXIII Special Session (infra II. C.1).

 

C. XXIII SPECIAL SESSION OF THE COURT

 

From March 1 - 8, 1998, the Court held its XXIII Special Session at its seat in San José, Costa Rica. The composition of the Court was as follows: Hernán Salgado-Pesantes (Ecuador), President; Antônio A. Cançado Trindade (Brazil), Vice President; Héctor Fix-Zamudio (México); Alejandro Montiel-Argüello (Nicaragua); Máximo Pacheco-Gómez (Chile); Oliver Jackman (Barbados) and Alirio Abreu-Burelli (Venezuela). The ad hoc Judge named by the State of Guatemala, Edgar E. Larraondo-Salguero also participated in the Paniagua Morales et al. Case. Also present were the Secretary of the Court, Manuel E. Ventura-Robles and the Interim Deputy Secretary, Víctor M. Rodríguez-Rescia. During this session, the Court the following matters:

 

1. Paniagua Morales et al. Case

 

On March 8, 1998, the Court handed down a judgment on the merits in this case (Appendix VI), in which it unanimously declared that the State of Guatemala violated Articles 4(1) (Right to Life), 5(1) and 5(2) (Right to Humane Treatment), 7 (Right to Personal Liberty), 8(1) (Right to a Fair Trial) and 25 (Right to Judicial Protection) of the Convention, all in conjunction with Article 1(1) of the same, to the detriment of Ana Elizabeth Paniagua-Morales, Julián Salomón Gómez-Ayala, William Otilio González-Rivera, Pablo Corado-Barrientos and Manuel de Jesús González-López. The Court also found that Guatemala violated Articles 1, 6 and 8 of the Inter-American Convention to Prevent and Punish Torture to the detriment of Augusto Angárita-Ramírez and Oscar Vásquez. Additionally, the Court found that the State had violated Article 7 of the American Convention, in conjunction with Article 1(1) of the same, to the detriment of Augusto Angárita-Ramírez, Doris Torres-Gil and Marco Antonio Montes-Letona and Article 8, in relation to Article 1(1), to the detriment of Erik Leonardo Chinchilla.

 

The Court found that the State should conduct a true and effective investigation to determine those responsible for the human rights violations referred to in this judgment and to eventually punish those responsible; to repair the consequences of the set forth violations; and to pay fair compensation to the victims and, in its case, to the next of kin. Finally, the Court ordered the opening of the reparations phase of the case and commissioned its President to take the relevant decisions.

 

2.       Loayza Tamayo Case

 

On March 8, 1998, the Court emitted an Order (Appendix VII) in which it unanimously decided, to dismiss as inadmissible the request by the State of Peru for an interpretation of the Judgment on the merits in the Loayza Tamayo Case. Among other considerations, the Court based its decision on the fact that the request of Peru attempted to modify the judgment and not to interpret it.

 

On December 19, 1997, Peru presented the Court, in accordance with Article 67 of the American Convention, with the request for interpretation of said judgment.  Article 67 establishes that “[i]n case of disagreement as to the meaning or scope of the judgment, the Court shall interpret it at the request of any of the parties, provided the request is made within ninety days from the date of notification of the judgment.”

 

D. XL REGULAR SESSION OF THE COURT

 

From June 8 - 19, 1998, the Court held its XL Regular Session at its seat in San José, Costa Rica. The composition of the Court was as follows: Hernán Salgado-Pesantes (Ecuador), President; Antônio A. Cançado Trindade (Brazil), Vice President; Máximo Pacheco-Gómez (Chile); Oliver Jackman (Barbados); Alirio Abreu-Burelli (Venezuela); Sergio García-Ramírez (Mexico) and Carlos Vicente de Roux-Rengifo (Colombia).  The ad hoc Judge named by the State of Peru, Fernando Vidal-Ramírez, participated in the Cantoral Benavides, Castillo Petruzzi and Durand and Ugarte Cases.  In the Blake Case, the ad hoc Judge named by the State of Guatemala, Alfonso Novales-Aguirre, also participated.  Judge Antônio A. Cançado Trindade presided over the Benavides Cevallos and Suárez Rosero Cases since Judge Hernán Salgado-Pesantes ceded the Presidency in these Cases against the State of Ecuador due to his Ecuadorian nationality (Article 4(3) of the Rules of Procedure of the Court). Also present were the Secretary of the Court, Manuel E. Ventura-Robles and the Interim Deputy Secretary, Víctor M. Rodríguez-Rescia.  The following matters were considered during this session:

 

 

1. Cantoral Benavides, Castillo Petruzzi et al. and Durand and  Ugarte Cases

 

On June 8, 1998, the Court held three public hearings on the preliminary objections interposed by Peru in the Cantoral Benavides, Castillo Petruzzi and Durand and Ugarte Cases, during which it heard the points of view of the State and of the Inter-American Commission. In the Cantoral Benavides Case, the Court also emitted Orders on June 8 and June 18, 1998, (Appendix VIII and X), in which it rejected a request by the Peruvian State for the dismissal of the Case because of the pardon given to Mr. Cantoral Benavides. In the opinion of the Court, this pardon did not comply with the requirements of admission established by Article 52(2) of the Rules of Procedure of the Court.

 

2. Loayza Tamayo and Castillo Páez Cases

 

On June 9, 1998, the Court held two public hearings on the reparations in the Loayza Tamayo and Castillo Páez Cases in order to hear the arguments of Peru, the Inter-American Commission and of the injured parties. In the Loayza Tamayo Case, the Court heard the testimony of Ms. María Elena Loayza-Tamayo, the victim in this Case.

 

3. Suárez Rosero and Blake Cases

 

On June 10, 1998, the Court held two public hearings on the reparations in the Suárez Rosero and Blake Cases, against Ecuador and Guatemala, respectively, in order to hear the arguments of both States, the Commission and by the injured parties. In the Suárez Rosero Case, the Court also heard testimony from Mr. Rafael Iván Suárez-Rosero, the victim in this case. This hearing was presided over by the Vice President, Judge Antônio A. Cançado Trindade, since the President of the Court, Judge Hernán Salgado-Pesantes, in accordance with Article 4(3) of the Rules of Procedure, ceded the Presidency due to his Ecuadorian nationality.

 

4. Benavides Cevallos Case

 

On June 11, 1998, the Court held a public hearing on the merits of the Benavides Cevallos Case against Ecuador and heard arguments from the State and the Commission. This hearing was presided over by the Vice President, Judge Antônio A. Cançado Trindade, since the President of the Court, Judge Hernán Salgado-Pesantes, in accordance with Article 4(3) of the Rules of Procedure, ceded the Presidency due to his Ecuadorian nationality. During this hearing, the State presented a friendly settlement agreement with the parents of Professor Consuelo Benavides-Cevallos, the victim in this case. The settlement included recognition of the State’s international responsibility and a compensation of US$1,000,000.00 (one million dollars of the United States of America) and other reparation measures.  The Court handed down a Judgment on June 19, 1998 (Appendix XVII), in which it considered admissible the acquiescence by Ecuador to the allegations made by the Commission.  The Court took note of the State’s recognition of international responsibility and stated its conformity with the terms of this recognition and found that the State violated the rights protected in Articles 3, 4, 5, 7, 8 and 25 of the Convention, all in conjunction with Article 1(1) of the same, to the detriment of Professor Consuelo Benavides-Cevallos.  The Court also approved the agreement between the State and the next of kin of the victim in regards to the reparations and ordered the State to continue the investigations to punish all of those responsible for the human rights violations referred to in the Judgment.

 

5. Advisory Proceedings OC-16

 

On June 12 and 13, 1998, the Court held a public hearing in regards to the request for Advisory Opinion OC-16, presented by the United States of Mexico and heard observations from:

 

a) States: United States of Mexico, United States of America, Costa Rica, El Salvador, Guatemala, Paraguay, Honduras, and the Dominican Republic. Canada also attended this public hearing as an observer.

 

b) Organs of the Organization of American States: Inter-American Commission on Human Rights.

 

c) Non-Governmental Organizations: Amnesty International, Comisión Mexicana de Defensa y Promoción de Defensa y Promoción de los Derechos Humanos (Mexican Commission for the Defense and Promotion of Human Rights), Human Rights Watch/Americas and CEJIL, and Death Penalty Focus of California.

 

d) Institutions, Jurists and individuals as amici curiae: International Human Rights Law Institute and the MacArthur Justice Center; Sandra Babcock and Margaret Pfeiffer, both from the Minnesota Advocates for Human Rights and as individuals; Laurence E. Komp, Gregory W. Meyers and Luz López-Ortiz, in representation of the defense of José Trinidad Loza; Ambassador Héctor Gros Espiell; John Quigley and Mark J. Kadish.

 

6. Provisional Measures in the James et al. Case – Trinidad and  Tobago

 

On May 22, 1998, the Inter-American Commission presented a request for provisional measures concerning five cases in proceedings before it in regards to the death penalty sentenced against five detained Trinidad and Tobago citizens (Wenceslaus James, Anthony Briggs, Anderson Noel, Anthony Garcia and Christopher Bethel). On May 27, 1998, the President of the Court, Judge Hernán Salgado-Pesantes, adopted urgent measures and on June 14, 1998, the Court emitted an Order (Appendix IX), in which it called upon Trinidad and Tobago to take all of the measures necessary to preserve the life and personal integrity of Wenceslaus James, Anthony Briggs, Anderson Noel, Anthony Garcia and Christopher Bethel, in order to not obstruct the proceedings of their cases before the inter-American system.

 

 

7. Bámaca Velásquez Case

 

On June 16, 17 and 18, 1998, the Court held a public hearing on the merits of the Bámaca Velásquez Case against Guatemala.  During the hearing it received testimony from seven witnesses and an expert and heard the closing arguments of the Commission and the State. On June 19, 1998, the Court issued an Order on the evidence (Appendix XIV). Judges Pacheco-Gómez and de Roux-Rengifo presented their Dissenting Opinion, and Judge García-Ramírez his Concurrent Opinion, all of which accompany the resolution.

 

8.                  Provisional Measures in the Álvarez et al. Case – Colombia

 

By Order of June 19, 1998, (Appendix XI) the Court extended the provisional measures adopted on behalf of Ms. María Elena Cárdenas as long as the situation of risk that resulted in the measures continues. At the same time, it decided to extend until September 6, 1998, the provisional measures taken on behalf of José Daniel Alvarez, Nidia Linores Ascanio, Gladys López, Yanette Bautista, María Helena Saldarriaga, Piedad Martín, María Eugenia López, Adriana Diosa, Astrid Manrique, Faride Ascanio, Carmen Barrera, Evidalia Chacón, José Publio Bautista, Nelly María Ascanio, Ayda Mile Ascanio, Miriam Rosas Ascanio and Javier Alvarez.  The Court also ordered that the State conduct investigations and, if possible, to punish those responsible for the denounced events.

 

9. Provisional Measures in the Clemente Teherán et al. Case -  Colombia

 

By Order of June 19, 1998 (Appendix XII), the Court ratified the Order of its President of March 23, 1998, and continued the provisional measures taken to ensure the life and personal integrity of 22 people from the Zenú indigenous community.  The Court also ordered Colombia to adopt as many measures as necessary to investigate the denounced acts and to discover and punish those responsible.

 

10. Provisional Measures in the Carpio Nicolle Case - Guatemala

 

By Order of June 19, 1998 (Appendix XIII), the Court lifted the provisional measures on behalf of Mario López-Arrivillaga, Angel Isidro Girón-Girón, Abraham Méndez-García, and Lorraine Marie Fischer-Pivaral and continued the measures on behalf of Marta Elena Arrivillaga de Carpio and Karen Fischer de Carpio.  The Court also reiterated to the State of Guatemala that its next report should include documentation on case No. 1011/97 and to provide information on the advances made in the investigation into the denounced events that motivated the provisional measures.

 

11.                Provisional Measures in the Giraldo Cardona Case – Colombia

 

By Order of June 19, 1998 (Appendix XV), the Court lifted the provisional measures adopted on behalf of Mr. Gonzalo Zárate; called upon the State to adopt as many measures as necessary to protect the life and personal integrity of Sister Noemy Palencia upon her return to Meta; continued the provisional measures on behalf of Islena Rey Rodríguez, Mariela de Giraldo and her two minor children, Sara and Natalia Giraldo; and stated that, as an essential element in the duty to protect, Colombia should take effective measures to investigate and, in its case, to punish those responsible for the denounced events.

 

12. Provisional Measures in the Paniagua Morales et al. and Vásquez  et al. Cases - Guatemala

 

By Order of June 19, 1998 (Appendix XVI), the Court ratified the February 10, 1998, Order of its President, continued the provisional measures to effectively ensure the personal integrity of the Vásquez family and called upon the State of Guatemala to inform the Tribunal on the measures it had taken to investigate the events that motivated the adoption of urgent measures by its President.

 

E. XLI REGULAR SESSION OF THE COURT

 

From August 23 through September 6, 1998, the Court held its XLI Regular Session at its seat in San Jose, Costa Rica. The composition of the Court was as follows:  Hernán Salgado-Pesantes (Ecuador), President; Antônio A. Cançado Trindade (Brazil), Vice President; Máximo Pacheco-Gómez (Chile); Oliver Jackman (Barbados); Alirio Abreu-Burelli (Venezuela); Sergio García-Ramírez (Mexico) and Carlos Vicente de Roux-Rengifo (Colombia).  For the Garrido and Baigorria Case, the ad hoc judge named by the Republic of Argentina, Mr. Julio A. Barberis, also participated. For the Cantoral Benavides and Castillo Petruzzi et al. Cases, the ad hoc judge named by Peru, Fernando Vidal-Ramírez, also participated. Also present were the Secretary of the Court, Manuel E. Ventura-Robles, and the Interim Deputy Secretary, Víctor M. Rodríguez-Rescia. During this Session, the Court heard the following matters.

 

1. Garrido and Baigorria Case

 

From August 25 - 27, 1998, the Court, in accordance with its February 2, 1996, Judgment and the Order of January 31, 1997, deliberated and fixed the reparations and costs that should be paid to the next of kin of Adolfo Garrido and Raúl Baigorria. The Court handed down the Reparations Judgment on August 27, 1998, in which it fixed the amount of the reparations, the reimbursement for the costs of the proceedings, and determined the non-monetary reparation measures it considered pertinent in this case (Appendix XIX).

 

2. Provisional Measures in the James et al. Case – Trinidad and  Tobago

 

On August 28, 1998, the Court held a public hearing at its seat in order to hear the observations of the Commission and of the State of Trinidad and Tobago in the matter of the provisional measures adopted on June 14, 1998, and the matter of the urgent measures taken by the President through Orders of June 29 and July 13 and 22, 1998. Despite the fact that on August 19, 1998, the President of the Court, Judge Hernán Salgado-Pesantes, sent a note to the State reiterating the importance of their presence during the public hearing, Trinidad and Tobago did not attend. Through a previous note of August 11, 1998, the State had previously informed it would not attend the hearing and also stated it did not accept any responsibility derived from the lack of organization of the proceedings before the Inter-American Commission in relation to this matter.

 

On August 29, 1998, after hearing the observations of the Commission during the public hearing, the Court emitted an Order in which it ratified the Orders of the President of June 29, and  July 13 and 22, 1998, and requested that Trinidad and Tobago take all of the measures necessary to preserve the life and physical integrity of Wenceslaus James, Anthony Briggs, Anderson Noel, Anthony Garcia, Christopher Bethel, Darrin Roger Thomas, Haniff Hilaire and Denny Baptiste, as well as to not obstruct the proceedings in these cases before the inter-American system. Judge García-Ramírez presented a Concurring Opinion to the Order (Appendix XXII), which accompanies the Order.

 

3. Cantoral Benavides Case

 

By Judgment of September 3, 1998, the Court dismissed the preliminary objections put forth by the Peruvian State and decided to continue with the merits of the case (Appendix XXVI). Judges de Roux-Rengifo and Vidal-Ramírez presented the Court with their Dissenting Opinions, all of which accompany the Judgment.

 

4. Castillo Petruzzi et al. Case

 

By Judgment of September 4, 1998, the Court dismissed the first, second, fourth, fifth, sixth, seventh, eighth, ninth, and tenth preliminary objections put forth by the Peruvian State in this case; admitted the third objection presented by said State and decided to continue with the proceeding, except to that referring to this last objection. Judge Antônio A. Cançado Trindade presented the Court his Concurring Opinion, Judge de Roux-Rengifo presented his partially Dissenting Opinion and Judge García-Ramírez his Dissenting Opinion, all of which accompany the Judgment (Appendix XXVII).

 

5. Provisional Measures in the Bámaca Velásquez Case - Guatemala

 

The Court studied the request for provisional measures presented by the Inter-American Commission on June 24, 1998, to protect the life and personal integrity of Mr. Santiago Cabrera-López, a witness that testified before the Court in this case. The Court also studied the observations of the State of Guatemala and of the Commission on the urgent measures taken by the President in his June 30, 1998, Order. In this regard, by Order of August 29, 1998, the Court ratified the Order of its President and ordered the State to maintain the measures necessary to protect the life and personal integrity of Alfonso Cabrera-Viagres, María Victoria López, Blanca Cabrera, Carmenlinda Cabrera, Teresa Aguilar-Cabrera, Olga Maldonado and Carlos Alfonso Cabrera (Appendix XX).

 

 

6. Provisional Measures in the Álvarez et al. Case - Colombia

 

On August 29, 1998 (Appendix XXI), the Court decided to ratify the August 6, 1998, Order of its President in regards to a request to expand the provisional measures requested by the Inter-American Commission on August 4 of the same year, on behalf of Mr. Daniel Prado and his family. At the same time, the Court decided to continue the provisional measures on behalf of José Daniel Alvarez, Nidia Linores-Ascanio, Gladys López, Yanette Bautista, María Helena Saldarriaga, Piedad Martín, María Eugenia López, Adriana Diosa, Astrid Manrique, Faride Ascanio, Carmen Barrera, Evidalia Chacón, José Publio Bautista, Nelly María Ascanio, Ayda Mile Ascanio, Miriam Rosas Ascanio, Javier Alvarez, Erik A. Arellano Bautista and María Eugenia Cárdenas and her family.

 

7. Loayza Tamayo Case

 

On its Order of August 29, 1998 (Appendix XXIII), about the evidence on the proceeding on reparations in the instant Case, the Court requested the Medical Association of Chile and Peru, to request in evidence to better resolve the matter, to issue up a medical report about the psycological and physical conditions of Ms. María Elena Loayza-Tamayo and about the psycological health of her daughter Gisselle Elena and her son Paul Abelardo Zambrano-Loayza.

 

8. Genie Lacayo Case

 

By Order of August 29, 1998 (Appendix XXIV), the Court closed the Genie Lacayo Case after considering that the documentation presented by the State of Nicaragua regarding compliance with the January 29, 1997, Judgment of the Court demonstrated that the State, in accordance with Article 68(1) of the American Convention on Human Rights, had complied with said Judgment. Article 68(1) imposes an obligation on the States Parties of the Convention to comply with the judgments handed down by the Court.  Judge Antônio A. Cançado Trindade presented the Court his Separate Opinion, which is attached to the mentioned Order.

 

9. Neira Alegría et al. Case

 

On its Order of August 29, 1998 (Appendix XXV), on the proceeding on reparations in the Neira Alegría et al. Case, the Court requested Peru, according to the Judgment of September 19, 1996, to take all the necessary measures so that the beneficiaries of the reparations receive the amount of the corresponding indemnization and also in regard the trust fund of which they are beneficiaries, constituted on the Nation’s Bank (Banco de la Nación).

 

F. SPECIAL HEARING IN THE BAMACA VELASQUEZ CASE, HELD IN WASHINGTON, D.C., UNITED STATES OF AMERICA

 

On October 15, 1998, a public hearing was held on the merits of the Bámaca Velásquez Case at the OAS headquarters in Washington, D.C., United States of America. During this hearing, the Commission designated by the Court, comprised of Judges Hernán Salgado-Pesantes, President; Antônio A. Cançado Trindade, Vice President; and Alirio Abreu-Burelli and the Secretaries of the Court, heard the testimony of the witness Otoniel de la Roca-Mendoza, who did not testify in the June 16, 1998, first public hearing at the Court on this case, due to immigration reasons.

 

G. XLII REGULAR SESSION OF THE COURT

 

From November 16 - 27, 1998, the Court held its XLII Regular Session at its seat in San José, Costa Rica. The composition of the Court was the following: Hernán Salgado-Pesantes (Ecuador), President; Antônio A. Cançado Trindade (Brazil), Vice President; Máximo Pacheco-Gómez (Chile); Oliver Jackman (Barbados); Alirio Abreu-Burelli (Venezuela); Sergio García-Ramírez (Mexico) and Carlos Vicente de Roux-Rengifo (Colombia). In the Cesti Hurtado Case, the ad hoc Judge named by Peru, David Pezúa-Vivanco, did not attend. In the Castillo Petruzzi Case, the ad hoc Judge named by Peru, Fernando Vidal-Ramírez, also participated. Also present were the Secretary of the Court, Manuel E. Ventura-Robles and the Interim Deputy Secretary, Víctor M. Rodríguez-Rescia.  During this Session, the Court heard the following matters:

 

1. Loayza Tamayo Case

 

The Court deliberated and fixed the reparations in this case in accordance with that ordered in its September 17, 1997, Judgment.

 

The Court, by Judgment of November 27, 1998 (Appendix XXVIII), also ordered measures of restitution, the compensatory damages, the other forms of reparation and the measures related to the duty to act domestically with what the Court considered pertinent in this case. At the same time, the Court established the corresponding amounts of the legal costs and expenses and the conditions for compliance with the Judgment. Judge de Roux-Rengifo presented his Partially Dissenting Opinion; Judges Antônio A. Cançado Trindade and Alirio Abreu-Burelli presented a Joint Reasoned Opi