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 created 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).

 

 

The following judges, listed in order of precedence, sat on the Court through 16 September 1999:

 

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)

Carlos Vicente de Roux-Rengifo (Colombia)

 

Following the election on 16 September of a new President and Vice President, the composition of the Court changed as follows (given in order of precedence):

 

Antônio A. Cançado Trindade (Brazil), President

Máximo Pacheco-Gómez (Chile), Vice-President

Hernán Salgado-Pesantes (Ecuador)

Oliver Jackman (Barbados)

Alirio Abreu-Burelli (Venezuela)

Sergio García-Ramírez (Mexico)

Carlos Vicente de Roux-Rengifo (Colombia).

 

The Secretary of the Court is Manuel E. Ventura-Robles (Costa Rica), and the Deputy Secretary is Renzo Pomi (Uruguay).

 

Respondent states have exercised their right to appoint an ad hoc judge in nine of the cases currently pending before the Court (article 55.1 of the Convention). These judges ad hoc, along with their nationalities and the cases for which they were appointed, are:

 

 

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 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[3], Venezuela, Honduras, Ecuador, Argentina, Uruguay, Colombia, Guatemala, Suriname, Panama, Chile, Nicaragua, Paraguay, Bolivia, El Salvador, Haiti, Brazil, Mexico and Dominican Republic[4].

 

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

 

 

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.

 

 

 

 

The Court held its Forty-third Regular Session from 18 to 29 January 1999 at its seat in San Jose, Costa Rica, with the following members: 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 Suárez Rosero case, the President of the Court, Judge Hernán Salgado-Pesantes, in view of his status as an Ecuadorian national, yielded the presidency to Vice President Antônio A. Cançado Trindade (Brasil) to preside over the Court in this case against the State of Ecuador. Also present were the Secretary of the Court, Manuel E. Ventura-Robles, and the Deputy Secretary, Renzo Pomi.

 

During this session, the Court considered the following matters:

1. Suárez Rosero Case (Ecuador): Reparations. The Court deliberated on this occasion under the gavel of Vice-President Judge Antônio A. Cançado Trindade, as the President of the Court, Judge Hernán Salgado-Pesantes, had relinquished the presidency for the purposes of this case against the state of Ecuador, in consideration of his own status as an Ecuadorian national. It issued a judgment on 20 January 1999 (Appendix I), specifying reparations and costs that the State of Ecuador must pay to Mr. Rafael Iván Suárez Rosero and his family, pursuant to the provisions of the judgment of 12 November 1997. According to the earlier judgment, the State of Ecuador must pay fair compensation to the victim and his family and reimburse them for expenses incurred in their representations before the authorities of Ecuador.

 

2. Blake Case (Guatemala): Reparations. The Court passed a judgment on 22 January 1999 (Appendix II), setting reparations and costs in this case, pursuant to the provisions of its judgment of 24 January 1998. At that time, it had decided that the State of Guatemala was obliged to make reparations to the family of Mr. Nicholas Chapman Blake due to the violation of his Right to a Fair Trial (Article 8.1 of the American Convention in relation to Article 1.1 of the same), and his Right to Humane Treatment (Article 5 of the American Convention in relation to Article 1.1 of the same). Judge Cançado Trindade offered the Court a separate opinion, and ad hoc judge Novales-Aguirre gave a separate concurring opinion. Both were appended to the judgment.

 

3. Cesti Hurtado Case (Peru): Preliminary objections. On 26 January 1999 (Appendix III), the Court rejected the preliminary objections filed by the State of Peru as without merit, and decided to continue hearing the case. In a Resolution of 19 January 1999 (Appendix IV), the Court also accepted a request by Mr. David Pezúa Vivanco to resign from his designation as ad hoc judge, which he felt was incompatible with his position as Executive Secretary of the Executive Commission of the Judicial Branch of the State of Peru. In his place, the State of Peru designated Mr. José Alberto Bustamante-Belaúnde, who subsequently resigned from the position on 12 August 1999.

 

4. Baena Ricardo et al. Case (Panama): Preliminary objections. On 27 January 1999, the Court held a public hearing on preliminary objections filed by the State of Panama. It heard arguments from the state, the Inter-American Commission, and a witness brought by the State of Panama.

 

 In its resolution of 22 January 1999 (Appendix V), the Court disqualified Mr. Rolando Adolfo Reyna-Rodríguez from serving as ad hoc judge in the case, pursuant to the provisions of Articles 10 and 19 of the Statute of the Inter-American Court and Articles 18.1 and 19 of the Rules of Procedure.

 

5. Villagrán Morales et al. Case (Guatemala): Merits. On 28 and 29 January, the Court held a public hearing on the merits of this case, receiving testimony from the witnesses called by the parties.

 

6. Provisional Measures: The Court studied reports by the states and comments by the Commission on provisional measures in several cases. On 29 January 1999 (Appendix VI), the Court passed a resolution on the Clemente Teherán et al. case, ordering the State of Colombia to retain the provisional measures enjoined in the Court’s 19 June 1998 decision; investigate the incidents alleged in the complaints that had culminated in the order for provisional measures, as well as possible involvement in illegal groups by some of the people covered by the measures; hear the views of the petitioners and inform them of the status of implementation of the measures; and continue filing bimonthly reports on measures adopted. It also ordered the Commission to file its observations to the state’s reports within six weeks of receipt of each report.

 

7. Other matters: The Court reviewed and approved its 1998 Annual Report, to be submitted to the Twenty-ninth Regular Session of the General Assembly of the OAS. The Court also considered a number of other items awaiting its attention.

 

B. Forty-fourth Regular Session of the Court

 

From 23 May through 3 June 1999, the Court held its Forty-fourth Regular Session at its seat in San Jose, Costa Rica, with the following members: 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). Also participating in the Cesti Hurtado case was ad hoc judge José Alberto Bustamante-Belaúnde, designated for this purpose by the State of Peru. Mr. Fernando Vidal-Ramírez served as ad hoc judge in the Durand y Ugarte and Castillo Petruzzi cases, by designation of the State of Peru. The ad hoc judge designated by the State of Colombia for the Las Palmeras case was Mr.  Julio A. Barberis.  Finally, in the Mayagna (Sumo) Awas Tingni Community case, Mr. Alejandro Montiel-Argüello served as ad hoc judge, appointed by the State of Nicaragua. Also present were the Secretary of the Court, Manuel E. Ventura-Robles, and the Deputy Secretary, Renzo Pomi.

 

During the session, the Court considered the following matters:

 

1. Cesti Hurtado Case (Peru): Merits. On 24 May, the Court held a public hearing on the merits of this case. A witness called by the Inter-American Commission made a statement concerning his knowledge of the incidents covered by the complaint. The Court also heard a statement from a witness and an expert witness called by the state and received closing oral arguments from the Commission and the State of Peru.

 

2. Durand and Ugarte Case (Peru): Preliminary objections. On 28 May, the Court passed judgment on the preliminary objections, raised by the State of Peru (Appendix VII). In its judgment, the Court decided to dismiss the first, second, third, fourth, fifth, sixth and seventh preliminary objections raised by the State of Peru and to proceed with the merits of the case.

 

Judge Vidal-Ramírez offered the Court his dissenting opinion which is attached to this judgment.

 

3. Suárez Rosero Case (Ecuador): Preliminary objections. The Court deliberated on this case under the gavel of Vice-President Judge Antônio A. Cançado Trindade, as the President of the Court, Judge Hernán Salgado-Pesantes, had disqualified himself from the Presidency for the purposes of this case against the State of Ecuador, in consideration of his own status as an Ecuadorian national. On 29 May 1999, based on Article 67 of the American Convention, the Court gave judgment on the request for interpretation of the Court’s judgment on reparations. The Court stated in its interpretation (Appendix VIII): that the request for interpretation of its 20 January 1999 judgment on the Suárez Rosero case, lodged by the State of Ecuador, was admissible and that the payments ordered by the Court for Mr. Rafael Iván Suárez Rosero and Mrs. Margarita Ramadán de Suárez should be paid in full. It was incumbent on the State of Ecuador to apply all mechanisms necessary to ensure that this obligation was met expeditiously and efficiently, under the conditions and within the period set in the judgment, and above all to take appropriate measures to ensure that any deductions made on monetary transactions by entities of the Ecuadorian financial system, in accordance with the law, would not impair the right of the beneficiaries to receive the total amount of damages awarded to them; that the payment ordered by the Court for the child Micaela Suárez Ramadán would be placed in full in the trust fund mentioned in paragraph 107 of the judgment and would not be subject to any form of taxes at the time the trust fund was set up, or to any form of tax withholding; that the attorneys of Mr. Suárez Rosero must receive full payment for court fees and expenses ordered by the Court in its judgment, and that this payment would not be subject to any form of deduction or taxes at the time of payment.

 

4. Castillo Petruzzi et al. Case (Peru): Merits. On 30 May 1999, the Court passed judgment on the merits of this case (Appendix IX). It decided unanimously that the State of Peru had violated Articles 7.5, 8.1, 8.2.b,c,d and f, 25, 7.6, 1.1 and 2 of the American Convention, to the detriment of Jaime Francisco Sebastián Castillo Petruzzi, María Concepción Pincheira Sáez, Lautaro Enrique Mellado Saavedra and Alejandro Luis Astorga Valdez. It found, by a vote of seven to one, that Peru had violated Articles 9, 8.2.h, 8.5 and 5 of the Convention. It decided unanimously that the state had not violated Article 20 of the Convention and that the alleged violation of Article 8.3 had not been proven. It further declared unnecessary any consideration of the alleged violation of Article 51.2 of the Convention. Finally, the Court decided unanimously in its judgment: to declare invalid the interim proceedings lodged against the victims and to order that the victims be guaranteed a new trial in which due process of law were fully respected; to order the state to take appropriate measures to reform legal provisions declared in this judgment to be in violation of the Convention and to ensure that all persons under the state’s jurisdiction enjoyed the rights enshrined therein; and to order the state to pay a total of US$10,000 (ten thousand United States dollars), or its equivalent in Peruvian currency, to family members of the victims who could vouch for fees and expenses incurred in this case.

 

Judge de Roux-Rengifo provided the Court with his concurring opinion, and Judge Vidal-Ramírez delivered a partially concurring and partially dissenting opinion; both were appended to the judgment.

 

5. Las Palmeras Case (Colombia): Preliminary objections. On 31 May 1999, the Court held a public hearing on preliminary objections raised by the State of Colombia and considered the arguments of the state and the Inter-American Commission.

 

6. Mayagna (Sumo) Awas Tingni Community Case (Nicaragua): Preliminary objections. On 31 May 1999, the Court held a public hearing on the preliminary objection filed by the State of Nicaragua in this case. The Court heard the arguments by the State of Nicaragua and the Commission.

7. Loayza Tamayo Case (Peru): Interpretation of Judgment. On 3 June 1999, pursuant to Article 67 of the American Convention, the Court issued an opinion interpreting the judgment on reparations in this case. In its interpretation (Appendix X), the Court decided that the request for interpretation was admissible only with respect to the payment of fees and expenditures awarded to Ms. Carolina Maida Loayza Tamayo, who should receive full cash payment of fees and expenses ordered by the Court in the judgment; and that this amount should not be subject at the time of payment to tax deductions or liabilities.

 

8. Provisional Measures in the James et al. Case (Trinidad and Tobago): The Court studied briefs submitted by Trinidad and Tobago and the Inter-American Commission on the situation of some of the beneficiaries of the measures. On 25 May 1999, the Court resolved (Appendix XI) that the State of Trinidad and Tobago must take provisional measures on behalf of 20 persons sentenced to die, who were under the protection of the 11 May 1999 resolution of the President of the Court. The Court also ordered the state to preserve the measures taken on behalf of Mr. Anthony Briggs and the other beneficiaries. Judge Cançado Trindade and Judge de Roux-Rengifo offered concurring opinions, attached to the resolution.

 

On 27 May 1999, the Court handed down a second resolution extending the measures to include seven additional persons under the death sentence (Appendix XII).

 

9. Provisional Measures in the Caballero Delgado and Santana Case (Colombia): The Court studied reports submitted by the state and the Inter-American Commission and resolved on 3 June 1999 (Appendix XIII) to lift the provisional measures it had ordered for Mr. Guillermo Guerrero Zambrano and Mr. Javier Páez; to retain the provisional measures ordered on 16 April 1997 for Ms. María Nodelia Parra, Mr. Gonzalo Arias Alturo and Ms. Élida González Vergel; and that the State of Colombia, in its subsequent report, should present a detailed summary of measures it had adopted in response to recent changes in the situation of Mr. Gonzalo Arias Alturo and Ms. Élida González Vergel, and include specific information on participation by beneficiaries in decisions concerning compliance with Court orders.

 

Since the time it handed down this resolution, the Court has examined several subsequent reports by the state, along with the Commission’s comments.

 

10. Provisional Measures in the Colotenango Case (Guatemala): The Court studied reports submitted by the state and the Inter-American Commission on Human Rights and, on 3 June 1999, delivered a resolution (Appendix XIV) retaining measures necessary to protect the life and safety of the beneficiaries; ordering the state to investigate the incidents covered by the complaint so as to identify and punish the persons responsible; requiring Guatemala to report immediately on alternative mechanisms adopted for complying effectively with the provisional measures, as a consequence of the events of 30 April 1999 which had culminated in the escape of several persons charged with the actions that had given rise to the measures; ordering the state to involve the petitioners in planning and implementing the measures, and to keep them informed; and requiring Guatemala and the Inter-American Commission to continue submitting regular reports on the current status of the measures.

 

11. Provisional Measures in the Cesti Hurtado Case (Peru): The Court studied reports filed by the state and the Inter-American Commission and issued a decision on 3 June 1999 (Appendix XV), ordering the state to adopt measures necessary to protect the physical and psychological welfare of Ms. Carmen Judith Cardó Guarderas, Ms. Margarita del Carmen Cesti Cardó and and Mr. Gustavo Cesti Cardó.

 

12. Other matters: The Court considered several administrative items pending before it and welcomed the President of the European Court of Human Rights, Judge Luzius Wildhaber, and his advisor, Dr. Herbert Petzold, who attended the public hearings and other activities of the Court.

 

 

The Court held its Forty-fifth Regular Session from 16 September through 2 October 1999, at its seat in San Jose, Costa Rica. One of its tasks, pursuant to pertinent regulatory provisions, was to elect a new president and vice president, and the resulting composition of the Court was as follows: Antônio A. Cançado Trindade (Brazil), President; Máximo Pacheco-Gómez (Chile), Vice President; Hernán Salgado-Pesantes (Ecuador); Oliver Jackman (Barbados); Alirio Abreu-Burelli (Venezuela); Sergio García-Ramírez (México) and Carlos Vicente de Roux-Rengifo (Colombia).  In addition, ad hoc judge Alfonso Novales-Aguirre joined the Court for the Blake case against Guatemala. Also present were Court Secretary Manuel E. Ventura-Robles and Deputy Secretary Renzo Pomi.

 

During this session the Court considered the following items:

 

1. Durand and Ugarte Case (Perú): Merits. On 20 September, the Court held a public hearing on the merits of this case, for the purpose of hearing the witness and expert witness called by the Commission. Both made statements on their knowledge of the facts surrounding this application.

 

2. Cantoral Benavides Case (Peru): Merits. On 20 September, the Court held a public hearing on the merits of this case. The witnesses and the expert witness proposed by the Commission made statements concerning their knowledge of the facts surrounding the application.

3. Withdrawal from the jurisdiction of the Court by the State of Peru: Ivcher Bronstein Case and Constitutional Court Case: The Court examined the instrument that the State of Peru had deposited with the General Secretariat of the OAS in Washington, D.C. on 9 July 1999 (Appendix XVI), communicating its decision to “withdraw its declaration recognizing the optional clause of submission to the contentious jurisdiction of the Inter-American Court of Human Rights,” and that this withdrawal would “go into effect immediately and ... apply to all cases in which Peru has not responded to applications lodged with the Court.”

 

The Court then examined the consequences of this declaration by the State of Peru for the Ivcher Bronstein case and the Tribunal Constitucional case to which the statement referred, because at the time these cases had been submitted to the Court, Peru had not yet responded to them. In judgments given on 24 September 1999 (Appendices XVII and XVIII), the Court declared that the attempt by the State of Peru to withdraw from the binding jurisdiction of the Court, effective immediately, was inadmissible. It resolved to continue hearing and processing the two cases and commissioned the President of the Court, at the appropriate time, to summon the State of Peru and the Inter-American Commission to a public hearing on the merits of both cases.

 

4. Provisional Measures in the James et al. Case (Trinidad and Tobago): In its resolution of 25 September 1999 (Appendix XIX), the Court ratified the 19 June decision by the President, broadening provisional measures ordered in the James et al. case to include Meryn Parris and Francis Mansing, both of whom had cases pending before the Commission.

 

5. Cesti Hurtado Case (Peru): The Court delivered its judgment on the merits of this case on 29 September 1999 (Appendix XX), resolving unanimously to declare that Peru had violated Articles 7.1, 7.2, 7.3, 7.6, 8.1, 25, 1.1 and 2 of the American Convention, to the injury of Mr. Gustavo Adolfo Cesti Hurtado. It also declared that the alleged violations by the state of Articles 5.2, 8.2, 11 and 21 of the Convention had not been proven in this case. The Court ordered Peru to abide by the resolution handed down by the Lima Specialized Court of Public Law on 12 February 1997, on the remedy of habeas corpus filed by Mr. Cesti Hurtado and declared that the trial conducted against him in the military court was incompatible with the American Convention. It therefore ordered the state to vacate the process and annul all effects derived therefrom. Finally, the Court declared that the state was obliged to pay fair compensation to Mr. Cesti Hurtado and reimburse him for expenses he had incurred in pursuing this process; it ordered that the reparations stage be opened and empowered its President to proceed expeditiously in taking necessary measures.

 

6. Provisional Measures in the Carpio Nicolle Case (Guatemala): By resolution of 30 September 1999 (Appendix XXI), the Court ordered that provisional measures in this case remain intact and required the state and the Commission to continue informing the Court about pertinent measures taken. In the same resolution, it ordered Guatemala to include detailed information, in its subsequent report, regarding the proceeding by which lawsuit No. 1011-97 had been set aside, and to attach all available documentation on this proceeding.

 

7. Provisional Measures in the Giraldo Cardona Case (Colombia): Reports from Colombia were studied, along with observations by the Inter-American Commission, on the situation of the beneficiaries of these measures. On 30 September 1999, the Court delivered a resolution (Appendix XXII) requiring the state to retain the measures; investigate the incidents cited in the complaint that gave rise to the measures so as to identify and punish the persons responsible; report on alternative mechanisms adopted for complying effectively with the provisional measures and on steps taken to reopen the Civic Committee for Human Rights of Meta; continue to involve the applicants in planning and implementing the measures; and continue to present reports every two months. The Court also ordered the Commission to present its comments on the reports within a period of six weeks of receiving them.

 

8.         Hilaire Case (Trinidad and Tobago): On 1 October 1999, the Court issued a resolution (Appendix XXIII) dismissing a request by the state to suspend the merits stage until the Court has ruled on the preliminary objection filed by the state, and granted an extension through 15 December 1999 for Trinidad and Tobago to submit its response to the application.

 

9.         Blake Case (Guatemala): Interpretation of judgment. On 30 September 1999, the Court resolved the 21 April 1999 request by the State of Guatemala for an interpretation of the judgment for reparations passed on 22 January 1999. The state claimed that the judgment on reparations was inconsistent with the 24 January 1998 judgment on the merits. On 1 October 1999, the Court cited Article 67 of the American Convention as a basis for its unanimous decision (Appendix XXIV) to declare the application for interpretation inadmissible and, upholding the terms of the original judgment, ordered Guatemala to pay reparations to Mr. Richard Blake, Ms. Mary Blake, Mr. Richard Blake Jr. and Mr. Samuel Blake, as injured parties, in compensation for extra-judicial expenses and reimbursement of expenditures incurred in processing the case before the system for the protection of human rights, in the amounts stipulated by the Court in operative point two, paragraphs a.iii and b) of the judgment on reparations of 22 January 1999.

 

10.       Advisory Opinion OC-16: On 1 October 1999, the Court handed down advisory opinion OC-16 (Appendix XXV) requested by the United Mexican States, regarding the right to information on consular assistance and its relationship to the guarantees of due process of law in the framework of judicial trials for capital crimes.

 

The Court concluded unanimously: that Article 36 of the Vienna Convention on Consular Relations (hereinafter “Vienna Convention”) recognizes the individual rights of foreign detainees, including the right to receive information on consular assistance, and the receiving state has corresponding obligations in this regard; that Article 36 of the Vienna Convention applies to the protection of rights for nationals of the sending state and is an integral part of the body of international human rights standards; that the expression “without delay” used in Article 36.1.b) of the Vienna Convention means that the state’s bounden duty is to inform detainees, at the very moment they are arrested, of the rights they hold under this provision, or in all cases, before they make their first statement to authorities; that the granting of individual rights given under this Article 36 is not contingent on protests by the sending state; that Articles 2, 6, 14 and 50 of the International Covenant of Civil and Political Rights pertain to the protection of human rights in the American States; that the individual right to information established in Article 36.1.b) of the Vienna Convention provides the means, in concrete cases, for effective practice of due process of law as guaranteed under Article 14 of the International Covenant on Civil and Political Rights, which in turn establishes minimum guarantees that can be widened under the terms of other international instruments; and that American States, whether federal or unitary in structure, that are parties to the different conventions are bound to respect the international provisions contained therein concerning the protection of human rights within their territory, including those granted in Article 36.1.b) above.

 

The Court also found, by a vote of six to one, that the failure to respect the right of foreign individuals under custody to receive information, as recognized in Article 36.1.b) of the Vienna Convention, impinges on the guarantees of due process of law. Under these circumstances, the application of the death penalty constitutes a violation of the right not to be deprived of life “arbitrarily,” as stated in the relevant provisions of human rights treaties, and therefore elicits the legal consequences inherent to a violation of this nature, specifically, those pertaining to the international responsibility of the state and the obligation to provide compensation.

 

Judge Jackman submitted a partially dissenting opinion, and Judges Cançado Trindade and García-Ramírez prepared concurring opinions, which are appended to the Advisory Opinion.

 

11.        Election of President and Vice-President: During this session, the Court elected its President and Vice President for the 1999-2001 term. From 1997 until 1999, the President of the Court had been Judge Hernán Salgado-Pesantes of Ecuador.

 

With the election, the presidency of the Court passed into the hands of Judge Antônio A. Cançado Trindade, of Brazil. Judge Cançado Trindade holds a Ph.D. (Yorke Prize) in International Law from Cambridge University in Great Britain and is a full professor of international law at the University of Brasilia and the Rio Branco Academy of Diplomacy. He has served as guest lecturer at universities in numerous countries (including Universities of Paris II, Ferrara University and Salerno University in Italy, Columbia University in New York and the University in Warsaw). He has been featured as a speaker in many conferences and symposia on international law, including the Hague Academy of International Law (1987, volume 202 of the Recueil des Cours and External Sessions of the Academy in 1989, 1991, 1995 and 1998), the Institute of International Public Law and International Relations (Thessaloniki, Greece, 1988), the Euro-Mediterranean Courses on International Law (Castellón, Spain, 1999) and courses on international law organized by the Inter-American Juridical Committee (several years). He sits on the boards of directors of the Inter-American Institute of Human Rights, which he served as Executive Director from 1994 to 1996, and the International Institute of Human Rights in Strasbourg, in whose annual courses he has served as a featured speaker for the past 12 years. He has given guest lectures for the International Committee of the Red Cross in seminars on humanitarian law in Hong Kong and Macao (China) (1996). He is a member of the Institut de Droit International, the International Law Association, and other scientific associations. He currently sits on the board of directors of the Instituto Hispano-Luso-Americano de Derecho International (IHLADI). Judge Cançado Trindade has held a number of positions as a jurist, serving as legal advisor to the Brazilian Foreign Ministry (1985-1990), alternate head of the Brazilian delegation at the United Nations Conference on the Law of Treaties between States and International Organizations (Vienna, 1986), member of the Group of Legal Advisors to the United Nations Environment Programme (1990-1992), member of the OAS Commission of Jurists for Nicaragua (1993-1994), member of the Brazilian delegation to the Second World Conference on Human Rights (Vienna, 1993), and director of the Bulletin of the Brazilian Society of International Law (since 1985). From 1992 to 1995, he lent legal advisory assistance to such international organizations as UNHCR, the ICRC and UNESCO, and in 1995 served the Council of Europe in Strasbourg as legal advisor to on the Minsk Convention on Human Rights (of the Commonwealth of Independent States, CIS). Judge Cançado Trindade has published 23 books and over 260 articles in the world’s major international law publications. In 1995, he was elected as Judge on the Inter-American Court of Human Rights.

 

The Court’s new Vice-President is Judge Máximo Pacheco-Gómez, of Chile. Judge Pacheco holds a doctoral degree as a specialist in the philosophy of law from the University of Rome and Doctor Honoris Causa from the University of Bologne (Italy). He teaches introductory courses on law and formerly served as Dean of the School of Legal and Social Sciences of the University of Chile. He is a professor at the Law School of the Pontifical Catholic University of Chile, professor in the Academy of Police Sciences of the Carabineros of Chile, and vice-president of the board of directors of the Andrés Bello National University of Chile. He has given lectures on his field of specialization in numerous universities, including Harvard, Stanford, Yale, Moscow, Buenos Aires and the Autonomous University of Mexico. Judge Pacheco has held a wide variety of positions, serving as Ambassador of Chile to the Union of Soviet Socialist Republics (1965-1970), Minister of Education (1968-1970), President of the Inter-American Council for Education, Science and Culture (1970), President of the legal publishing group Editorial Jurídica de Chile (1972-1974), Senator (1990-1994), and Honorary Consul of Lithuania in Chile (1995). Judge Pacheco-Gómez has published 16 books and numerous scholarly papers. In 1992, he was elected to serve as a judge on the Inter-American Court of Human Rights.

 

12.       Other matters: The Court considered several procedural questions involving items pending before it and analyzed various reports submitted by the Inter-American Commission and the states involved in cases for which provisional measures had been adopted.

 

 

 

The Court held its Forty-sixth Regular Session from November 9 through 29, 1999 at its seat in San Jose, Costa Rica, with the following membership: Antônio A. Cançado Trindade (Brazil), President; Máximo Pacheco-Gómez (Chile), Vice President; Hernán Salgado-Pesantes (Ecuador); Oliver Jackman (Barbados); Alirio Abreu-Burelli (Venezuela); and Carlos Vicente de Roux-Rengifo (Colombia). Also present were the Secretary of the Court, Manuel E. Ventura-Robles, and the Deputy Secretary, Renzo Pomi.

 

During this session, the Court examined the following items:

 

1.         El Caracazo Case (Venezuela): Merits. On 10 November 1999, in a public hearing held at the Court, Venezuela admitted to the incidents described in the application by the Inter-American Commission and accepted the legal consequences deriving therefrom. It also accepted full international responsibility. In the same hearing, the Commission expressed its satisfaction with Venezuela’s position.

 

On 11 November 1999, the Court delivered its judgment (Appendix XXVI), recognizing “Venezuela’s acquiescence in this case as a positive contribution to the development of the process and effective exercise of the principles inspired by the American Convention.” It decided unanimously to take cognizance of Venezuela’s admission of the events outlined in the application and declared that the dispute over the facts had ceased. It also took unanimous note of the state’s recognition of responsibility and declared that Venezuela had violated Articles 4.1, 5, 7, 8.1, 25.1, 25.2.a and 27.3 of the American Convention, in accordance with Articles 1.1 and 2, to the injury of the persons cited in paragraph 1 of the judgment. Finally, it took note of information provided by the state on investigations that had been undertaken for the purpose of identifying, prosecuting and punishing those responsible for the acts described in the application, urged the state to continue its investigations, and opened the stage on reparations and compensation.

 

2.         Loayza Tamayo Case (Peru): Enforcement of judgment. On 17 November 1999, the Court handed down a resolution on enforcement of the judgment on reparations in the Loayza Tamayo case (Appendix XXVII). This resolution originated in a communication from Peru, dated 25 June 1999, stating that on the 14^th of that month and year, the Second Transitory Criminal Chamber of the Supreme Court of Peru had declared:

 

BASELESS the Supreme Resolution dated the fifteenth of April of nineteen ninety-eight, and therefore ordered the court records of the judgment of the Inter-American Court of Human Rights on the case of the Peruvian María Elena Loayza Tamayo to be forwarded to the specialized Court for Crimes of Terrorism, which could thus proceed in accordance with the law; consequently they declared the judgment cited to be UNENFORCEABLE and ORDERED that the records be remanded to the Inter-American Court of Human Rights using the pertinent diplomatic channels, with the knowledge of the Public Prosecutor responsible for Judicial Affairs of the Ministry of Internal Affairs and the pertinent Court for Crimes of Terrorism; and they were remanded.

 

In its resolution of 17 November 1999, the Court decided unanimously to declare that, in accordance with the principle pacta sunt servanda and the provisions of Article 68.1 of the American Convention, Peru’s obligation was to comply promptly with the judgment on reparations handed down by the Court in this case on 27 November 1998.

 

3.         Castillo Petruzzi et al. Case (Peru): Enforcement of judgment. On 17 November 1999, the Court issued a resolution on enforcement of the Castillo Petruzzi et al. case (Appendix XXVIII), in response to a resolution given on 11 June 1999 by the Full Chamber of the Supreme Council of Military Justice of Peru, declaring that the 30 May 1999 judgment of the Inter-American Court was unenforceable. The Court resolved unanimously that, in accordance with the principle pacta sunt servanda and the provisions of Article 68.1 of the American Convention, the state’s obligation was to comply promptly with the terms of the judgment.

 

4.         Provisional Measures in the Digna Ochoa y Plácido et al. Case (Mexico): By resolution on 17 November 1999, the Court granted provisional measures on behalf of Ms. Digna Ochoa y Plácido et al. (Appendix XXIX), in conformance with Article 63.2 of the American Convention. The Court ordered the state to adopt without delay whatever measures may be necessary to protect the life and safety of Ms. Digna Ochoa y Plácido, Mr. Edgar Cortez Morales, Mr. Mario Patrón Sánchez and Mr. Jorge Fernández Mendiburu, members of the Miguel Agustín Pro Juárez Human Rights Center, and to ensure that all persons visiting or working in the offices of the Human Rights Center may conduct their business or perform their duties without risk to their lives or personal safety, and to investigate the alleged incidents that gave rise to these measures, so as to identify and punish those responsible.

5.         The Last Temptation of Christ Case (Chile): Merits. In a resolution dated 9 November 1999 (Appendix XXX), the Court ratified the decisions of the President of 26 October and 6 November, 1999. It rejected the response by the State of Chile to the petition, to the effect that it had been submitted in violation of statutory time limits, and called two expert witnesses to make statements concerning the merits of this case.