International State Responsibility
In this case the petitioner, Mr. Horacio Olivera, was abducted by several individuals, two of whom were members of the military. The key argument for Olivera was that the State of Marelle violated its duty "to respect and ensure the rights and freedoms" of all people, as mandated by Article 1.1 of the American Convention on Human Rights (Convention). Article 1.1 obligates a party to the Convention to respect and ensure its citizens all rights and freedoms recognized by the Convention. Acts which give rise to violations include those committed by or with the authorization of state agents.
The advocates for the petitioner argued state-sponsored abduction generates international state responsibility. The State argued that although the two men may have been agents for the State of Marelle, they were not acting in that capacity when they allegedly participated in the abduction of Mr. Olivera.
State of Emergency
Article 27 of the American Convention allows a state to suspend its obligation to protect certain individual rights and freedoms if: 1) there is a war, public danger, or other emergency situation that threatens the independence or security of the country; 2) the emergency measures adopted by the state are enacted only to the extent necessary, and for the time required, as dictated by the situation; and 3) the state availing itself of the right of suspension immediately gives other states parties notice of the suspension, the reasons for it, and the date on which the the suspension will end. The issue in controversy was whether the state of emergency declared by the government of Marelle complied with these requirements.
The petitioner argued that an ongoing internal conflict alone is an insufficient basis for such a broad declaration of a state of emergency. The State maintained that Article 27(1) leaves a margin of discretion to the national authorities to decide the parameters of a national emergency, and that the State's actions were within those parameters.
Disappearance of Horacio Olivera
There were several issues concerning the disappearance of Horacio Olivera. The first question was whether the facts of Mr. Olivera's disappearance constituted a violation of his rights under the Convention. A disappearance occurs under the Convention when a person acting under color of state authority detains an individual and impedes his or her ability to obtain applicable legal remedies.
Petitioner argued that the circumstances surrounding Olivera's disappearance meet this definition. Olivera was abducted against his will and restrained by ten armed men. No information about his whereabouts was provided to his family by the government. The State argued that upon notification of the abduction, government officials conducted an investigation into the matter and found that the abduction did not constitute extra-judicial arrest and detention, but was simply a criminal act committed by private individuals, because the government did not authorize the action.
A second issue raised by the disappearance of Olivera was whether he was targeted for disappearance as a consequence of his political views and activities, in violation of the rights of freedom of thought and expression, guaranteed by Article 13 of the American Convention. Petitioner argued that Olivera was targeted because he opposed the current regime. The government had a pattern of sponsoring persecution in order to intimidate those people who spoke out or acted against it. The State argued that Olivera was not a target of intimidation because he was able to actively participate in a legally recognized political party and stand for election. The State also contended that there was no pattern of state-sponsored persecution, and the incident was an isolated criminal act committed by private individuals.
Freedom of Expression
The final issue in controversy was whether Marelle's legislation denied Sybille Olivera (Horacio Olivera's wife) her right to freedom of expression, as guaranteed by Article 13 of the Convention. The Article 13 right to freedom of expression is a derrogable right if done in accordance with Article 27. Petitioner argued that the declared state of emergency did not comply with the requirements of Article 27, and therefore, the right to freedom of expression should not have been suspended. The State argued that Article 13 is inapplicable because even though Sybille Olivera was convicted after the state of emergency was lifted, the crime took place during the time of the state of emergency.
Other sub-issues that were considered were whether the liability imposed on Mrs. Olivera's speech complied with the requirements of Article 13(2); whether Marelle was justified in punishing Mrs. Olivera's speech for constituting an "incitement to lawless violence" according to Article 13(5), and whether the language used to describe the crime of "apology of terrorism" was so imprecise as to constitute a violation of Article 9 of the Convention.
Awards
After months of preparation and research, and five days of opening arguments, judge's questions, rebuttals and surrebuttals, two teams advanced to advocate their positions in front of the Honor Panel of Judges. The final round of the competition came down to the Universidad Diego Portales (Chile) and the University of Maryland. When the decision came in, Nicolas Espejo Yaksic and Alvaro Jana Linetsky from Diego Portales won first place. The Best Oralist award went to Ms. Eddy Manzo from the Universidad Central de Venezuela. Two U.S. schools, Hamline University (State) represented by Colleen Beebe and Claudia Saavedra, and DePaul University (Petitioner) represented by Christine Kleiser and Derek Strain, won the Best Memorial awards.
© Copyright 1996 The Human Rights Brief
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