monday 18 August
2008, San José, Costa Rica
RIGHTS:
Tortuous Road to Justice
in Inter-American System
By Raúl Pierri
MONTEVIDEO (IPS) -
Financial costs and lack
of information are the
main hurdles that public
defenders must overcome
in order to bring cases
before the
Inter-American Court on
Human Rights, which
ended its XXXV
extraordinary period of
sessions Friday in the
Uruguayan capital.
"Cost is a big problem,"
Brazilian public
defender Clodoaldo
Queiroz told IPS. "In
general, public
defenders’ offices in
Latin America don't
receive much support
from their governments.
There is not enough
funding. In Brazil, for
example, only in the
last few years have we
begun to receive more
attention from the
government. At this
point, that’s the main
obstacle."
Filing human rights
cases before the Court,
after having exhausted
all legal avenues in
their countries, which
also involves
significant costs for
plaintiffs, can take
several years and
involve a large number
of trips abroad, since
the Court not only meets
at its headquarters in
San José, Costa Rica,
but also holds sessions
in different cities
around the Americas.
"I don't know how much
it could cost to bring a
case before the Court.
There are travel
expenses, hotel costs,
paperwork and
procedures…and there are
cases that drag on for a
long time," Alejandro
Bonanni, with the public
defenders’ office in the
southern Uruguayan city
of Pando, told IPS. "In
addition, technical
experts have to be hired
for the evidence."
As a result, plaintiffs
and lawyers often seek
financial support from
foundations or
non-governmental
organisations (NGOs).
"In our particular case,
so far we have not had
any experience in this
respect, because turning
to the Court implies a
major outlay of funds,
which our clients
generally lack, and we
depend on organisations
that can help," Paulina
Pérez Núñez, the
national director of the
Public Defenders’ Office
of Honduras, remarked to
IPS.
But lawyers who work as
public defenders -- the
provision of which is a
basic guarantee of due
process -- also face a
lack of knowledge about
Court procedures and
legal precedents. The
way the Court operates
differs from the
criminal justice systems
of the various countries
in the region. Some
nations, for example, do
not use public, oral
trials, and the entire
process is carried out
in writing.
"The main difficulty is
knowledge. We have
basically been trained
to handle cases at the
domestic level. And we
lack the training we
would need to turn to
the international
bodies," public defender
Jacinto Castillo from
the Dominican Republic
told IPS.
To respond to that need,
the first Inter-American
training programme for
public defenders in the
Americas was held this
week in Montevideo,
organised by the Court
and the Inter-American
Association of Public
Defenders Offices as
part of the Court’s
extraordinary session,
which opened Monday.
The Court is an
autonomous judicial
institution created to
apply and interpret the
American Convention on
Human Rights, which was
adopted in 1969.
Twenty-five countries
have ratified the
Convention, and thus are
subject to the
jurisdiction of the
Court: Argentina,
Barbados, Bolivia,
Brazil, Chile, Colombia,
Costa Rica, Dominica,
Dominican Republic,
Ecuador, El Salvador,
Grenada, Guatemala,
Haiti, Honduras,
Jamaica, Mexico,
Nicaragua, Panama,
Paraguay, Peru,
Suriname, Trinidad and
Tobago, Uruguay and
Venezuela.
The Court receives cases
in which a state is
accused of a violation
of the Convention on
Human Rights, after all
domestic legal avenues
have been exhausted.
However, individuals and
groups cannot take cases
directly to the Court,
but must first lodge a
complaint with the
Inter-American
Commission on Human
Rights (IACHR).
If the Washington-based
IACHR declares a case
admissible and the state
is found to be at fault,
the Commission generally
presents the state with
a list of
recommendations,
including precautionary
measures, to remedy and
make amends for the
human rights violation
in question.
Only if the state fails
to comply with the
recommendations, or if
the IACHR deems the case
to be of particular
importance, will the
case be referred to the
Court, which means
turning to the Court is
seen as a measure of
last resort.
Some of the cases that
reach the Court become
symbols of the struggle
for human rights, like
the forced disappearance
of Renato Ticona on Jul.
22, 1980, just a few
days after the coup
d’etat staged by
dictator Luis García
Meza in Bolivia.
The leftist activist was
detained by a military
patrol along with his
brother Hugo near a
checkpoint in the
western city of Oruro.
Both men were tortured.
Hugo was eventually
released, but Renato was
never heard from again.
The case, which was
filed in court in
Bolivia in 1982, never
got beyond the
preliminary
investigation stage, and
was brought before the
IACHR, which referred it
to the Court.
On Wednesday, the Court
held a public hearing in
the Uruguayan capital,
in which the Bolivian
state acknowledged its
responsibility for the
forced disappearance and
apologised.
The next step is for the
state to make
reparations to Ticona’s
family -- who continue
to insist, nevertheless,
that his killers be
brought to justice --
and to establish the
whereabouts of the
victim’s remains.
"The state is not our
enemy…This hearing,
above and beyond the
legal aspects, should be
educational, in the
sense that the ruling
contributes to
strengthening democracy
in Bolivia," Bolivian
ombudsman Waldo
Albarracín told IPS.
"Democracy is more than
just electing officials
through the ballot box,"
he said. "It also
implies living in a
context of respect for
human rights, and means
that impunity does not
continue to surround
pending cases, whether
or not they date back to
a dictatorship. We want
to set a precedent so
that no government in
Bolivia, whether
civilian or military,
will ever again
illegally detain,
torture and ‘disappear’
people. This is about
creating a culture of
human rights."
Most of the public
defenders taking part in
this week’s activities
in Montevideo expressed
a positive view of how
the Court functions, and
stressed that its
rulings carry
significant weight in
their countries.
"The Court exercises
great influence in the
area of human rights,
and people have
gradually come to
understand its
importance," Costa Rican
public defender Diana
Montero commented to IPS.
For Pérez Núñez, the
Inter-American human
rights system "plays a
very positive role,
because of the
recommendations it hands
down, and because the
states party accept the
recommendations and
fulfil them."
Queiroz said that "even
though it lacks the
infrastructure to deal
with more cases, the
Court has produced
important results." He
pointed out, for
instance, that the
Court’s conclusions on a
case of domestic
violence against Maria
da Penha prompted
legislative reform in
Brazil in 2006.
"A new law was created
that provides greater
protection for women who
are victims of domestic
violence. Now the crimes
committed against women
are considered much more
serious than in the
past," he said.
"This is very
significant, because it
arose from a case
handled by the Court.
Although the woman
suffered two attempts on
her life at the hands of
her abusive husband, it
took the Brazilian
courts 20 years to
convict him. The case
was brought before the
Court, and after it
issued its ruling,
Brazil reached an
agreement with the
Court, committing itself
to pay reparations to
the victim (who was left
paraplegic by the first
murder attempt) and
modify the legislation,"
said Queiroz.
At the opening of this
week’s session, the
acting president of the
Court, Peruvian Judge
Diego García Sayán, said
that half of the 180
rulings handed down in
the 25 years since the
Court was created have
been issued in the last
four years alone.
This performance was
praised by several of
the public defenders who
spoke to IPS.
The Court "only has
pending cases from 2007.
That means there is
essentially no backlog.
Today we can consider
one year to be a very
short delay. Most of the
sentences have been
handed down in the last
four years, which means
the current members have
made a point of
resolving cases as fast
as possible," said
Bonanni.
Albarracín stressed that
the Court handles cases
against states, not
individuals, unlike the
International Court of
Justice in The Hague.
This, in his view, means
justice can be achieved
even years after the
crime, and even if those
who physically committed
the crime are not alive
anymore or are outside
of the Court’s
jurisdiction.
But not everyone is
fully satisfied.
"Something that I have
always wondered about,
with respect to access
to the Court, is how
long it takes it to
reach a decision. It has
taken more than 15 or 20
years in some cases. I
know that depends on the
particular
characteristics of each
case. But I believe
delayed justice merely
compounds an injustice,"
said Castillo. |
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