News From The Inter-American System
by Terri J. Harris *
Inter-American Commission Cases
Case Gary T. Graham, now known as Shaka Sankofa (United States)
Facts: In October 1981, Shaka Sankofa was convicted of capital murder and sentenced to death in the State of Texas. Sankofa was 17 years old at the time of the offense. The International Human Rights Law Clinic at the Washington College of Law filed a petition on behalf of Sankofa with the Inter-American Commission on Human Rights (Commission) on April 26, 1993. The petition asserted a violation of the right to life, liberty and personal security (Article 1), the right to equality before the law (Article 2), the right to a fair trial (Article 18), and the right to due process of law (Article 26) under the American Declaration of the Rights and Duties of Man. As a precaution, the Commission requested Texas to ensure a stay of execution and grant Sankofa a full and fair hearing before the Texas Board of Pardons and Paroles.
Decision: On June 15, 2000, the Commission declared the petition admissible. The findings on admissibility stated that Sankofa had exhausted all available domestic remedies or else had been prohibited from petitioning by domestic legislation. The Commission further held that the 19-year delay in the execution and his age at the time of the offense eliminated any reasonable prospect of success in a domestic court.
Caso Caloto Massacre (Colombia)
Facts: On December 16, 1992, a petition was filed on behalf of members of the Paez indigenous community of the northern Cauca region of Colombia against the Colombian State for the Caloto Massacre. The massacre resulted from a dispute over the El Nilo hacienda between the Paez community and the Sociedad Agropecuaria Piedra Blanca company, which purchased the land knowing it was inhabited by the Paez. The petitioners claimed Colombia violated the right to life (Article 4), the right to humane treatment (Article 5), the right to personal liberty (Article 7), the right to a fair trial (Article 8), and the right to judicial protection (Article 25) read in conjunction with Article 1(1) of the American Convention on Human Rights (Convention). Prior to the massacre, members of the indigenous community were harassed by company representatives and armed men for refusing to abandon the land in exchange for payment for their houses and improvements made to the land. The State conceded that on the night of December 16, 1991, members of the National Police, along with heavily armed civilians, went to the El Nilo hacienda, executed the leaders of the community, and shot others trying to flee. Before leaving, the armed men also burned the houses and property of the Paez.
Decision: While the parties originally agreed to a friendly settlement procedure according to Article 48(f) of the Convention, by October 1998 the petitioners asked the Commission to issue a ruling on the merits. The petition was considered admissible in light of the explicit acknowledgement by the State of its responsibility for the massacre. The Commission interpreted the rights in the Convention in the context of the specific rights of indigenous communities found in the International Labor Organization's 1989 Convention 169 on Indigenous and Tribal Peoples, the Inter-American Charter of Social Guarantees (1948), and the Commission's 1996 resolution on Special Protection for Indigenous Peoples. The Commission ruled the State violated the right to life (Article 4), the right to physical integrity (Article 5(1)), the right to personal liberty (Article 7), and the right to a fair trial and to judicial protection as provided for in Articles 8 and 25 of the Convention, respectively. The State also failed to respect and ensure all rights in the Convention under Article 1(1) by not taking measures to prevent the massacre, even after members of the Paez community reported threats made against them. The Commission recommended Colombia investigate and punish those responsible for the massacre, make both monetary and social reparations benefiting the entire Paez community, and adopt measures to prevent future massacres.
Caso Carmelo Soria Espinoza (Chile)
Facts: On February 15, 1997, the daughter of Carmelo Soria Espinoza filed a complaint with the Commission against the State of Chile alleging a violation of the right of access to justice. In July 1976, while working for a UN agency, Soria was kidnapped by agents of Chile's National Intelligence Agency (DINA), arbitrarily detained, tortured, and later executed. In 1995, the Chilean Supreme Court of Justice confirmed Soria was murdered and identified the state agents responsible. The Supreme Court, however, later terminated the criminal proceedings and declared the 1978 Amnesty Law (Decree Law Number 2.191) prevented the prosecution and punishment of those responsible. The petition requested the Commission declare the Amnesty Law incompatible with Chile's international obligations under the Convention.
Decision: On November 19, 1999, the Commission declared the Amnesty Law in Chile violated the State's obligations under Article 1(1) and 2 of the Convention. In applying the Amnesty Law to the disappearance and murder of Soria, the State violated the rights of judicial protection and access to justice under Articles 1(1), 2, 8, and 25 of the Convention. Pursuant to Article 29 of the Convention, the Commission also determined the State had violated Article 2(1) of the Prevention and Punishment of Crimes against Internationally Protected Persons. The Commission recommended the State prosecute and punish those responsible for the murder of Soria and repeal the self-Amnesty Law. The Commission placed special emphasis on the principles of individual criminal responsibility and universal jurisdiction for grave human rights violations. The Commission concluded that if Chile could not fulfill its international obligation to prosecute those responsible, the State would automatically be subject to universal jurisdiction.
Case Desmond McKenzie, et. al (Jamaica)
Facts: Six death row inmates at the St. Catherine District Prison in Jamaica individually petitioned the Commission between June 1998 and May 1999, claiming the mandatory imposition of the death sentence in each of their cases violated the state's obligation to respect rights (Article 1), the right to life (Article 4), the right to humane treatment (Article 5), the right to personal liberty (Article 7), the right to a fair trial (Article 8), the right to equal protection (Article 24), and the right to judicial protection (Article 25) under the Convention. The Commission later consolidated the cases into one report based on the similarity of facts and the issues presented. The petitioners asserted that the process of requesting a pardon or commutation from the Jamaican Privy Council violated their right to apply for amnesty, pardon, or commutation of their sentence under Article 4(6) of the American Convention. The Jamaican Privy Council may pardon or commute a death sentence under Articles 90 and 91 of the Constitution of Jamaica, but prisoners have no procedural guarantees.
Decision: On April 13, 2000, the Commission ruled Jamaica had violated Articles 4(1), 5(1), 5(2), 8(1), and 4(6) of the Convention by disallowing the petitioners to present mitigating evidence at an individualized sentencing hearing before imposing the death penalty. The Commission found the Jamaican Privy Council's power to grant a pardon or commute a death sentence does not serve as a form of judicial review because under Jamaican law the petitioners have no effective right to apply for this form of discretionary relief. The Commission recommended the State commute the death sentences and offer the petitioners compensation. Additionally, the Commission recommended Jamaica adopt domestic legislation requiring the death penalty be imposed only in accordance with the American Convention and pass legislation allowing criminal defendants to apply for amnesty, pardon, or commutation of the death penalty.
The "Second Report on the Situation of Human Rights in Peru"
On June 2, 2000, the Commission issued the "Second Report on the Situation of Human Rights in Peru" (Report), following an on-site visit in November 1998. The Report described measures implemented by the executive, legislative and judicial branches of government, restricting the right of political participation of its citizens, as guaranteed by Article 23 of the Convention. The Commission criticized the Peruvian Intelligence Service's (SIN) use of wiretapping, espionage and physical surveillance to harass and intimidate opposition presidential candidates. In documenting the State's interference in citizens' participation in the political process, the Commission referred to contentious cases from Peru currently under review, previously decided, or already submitted to the Inter-American Court of Human Rights. These included the Case of Mariela Barreto Riofano, the Case of Susana Higuchi Miyagawa, and the Case of Baruch Ivcher Bronstein.
The Commission also reviewed reports by the Organization of American States Electoral Observation Mission, the Commission's Rapporteur for Freedom of Expression, the Peruvian Human Rights Ombudsman, and non-governmental organizations within Peru that observed the April 9, 2000, presidential and legislative elections. These reports documented serious abnormalities and persistent inequities in the voting process, including the tallying of the votes. Consequently, the Electoral Observation Mission and other election monitoring organizations decided against observing the second round of elections on May 28, 2000, which ultimately declared Fujimori the winner of the presidency. The Commission concluded the 2000 elections were not free and fair in light of international standards enshrining the right of political participation. The Commission further held that Peru should hold another election, guaranteed to be free and fair, within a reasonable time period, to uphold the rule of law and guarantee the right of political participation. As of November 27, 2000, Fujimori has resigned the presidency and been replaced by former congressman Valentin Paniagua.
* Terri J. Harris is a J.D. candidate at the Washington College of Law.
The proper citation for this article in the Human Rights Brief Volume 8, Issue 1, beginning at page 17 is: 8 No. 1 Hum. Rts. Brief 17 (2000).
