21 Regional human rights systems in the Americas II

Ms. Amit Jyoti Sandhu

Introduction

In this module we continue our discussion from the last module on the landmark decisions delivered by the IACtHR. Here we will briefly discuss – the in Vitro fertilization case, Caesar v. Trinidad and Tobago, Juan Humberto Sánchez v. Honduras, Atala Riffo and Daughters vs. Chile, Gomes Lund (“Guerrihla Do Araguaia”) v. Brazil, “Juvenile Reeducation Institute” v. Paraguay and Human Rights Defender et al v. Guatemala.

Case of Artavia Murillo et al. (In Vitro fertilization) v. Costa Rica (November 28, 2012)

ìIn Vitro fertilizationî, which is a technique used to help infertile individuals and couples achieve pregnancy by fertilizing the eggs with spermatozoids in a laboratory and then re-implanting them in the womanís uterus, was declared unconstitutional by the Constitutional Chamber in Costa Rica in the year 2000. Accordingly, infertile individuals who wished to make use of the advances in technology by use of IVF approached the Commission alleging a violation of various rights of the American Convention on Human Rights. The Commission has made recommendations to the State, which did not comply within the allocated three months, the Commission referred the matter to the Court.

The IACtHR held the State of Costa Rica responsible for the violation of Articles 5(1), 7, 11(2) and 17(2) and instructed it to adopt, as soon as possible, appropriate measures to annul the prohibition to practice IVF, so that those persons who wish to use this assisted reproduction technique can do so without any impediment to the exercise of the rights that were declared violated in this Judgment. The Court in fact also instructed Costa Rica to include the availability of IVF within the infertility treatment and programs offered by its health care services, in keeping with the obligation of guarantee in relation to the principle of non-discrimination.

Primarily, the Court noted that the right to private life encompasses a series of factors associated with the dignity of the individual, including, the ability to develop his or her own personality and aspirations, to determine his or her own identity and to define his or her own personal relationships. The Court further indicated that motherhood is an essential part of the free development of a womanís personality. Based on the foregoing the Court finally ruled that whether or not to become a parent is part of the right to private life and includes, in this case, the decision of whether or not to become a mother or father in the genetic or biological sense.

Case of Caesar v. Trinidad and Tobago (March 11, 2005)

This case deals with the authorization by the State of Trinidad and Tobago of a form of punishment that is incompatible with the right to humane treatment. The argument of the petitioners being that the State is responsible for violating its obligation under Article 2 of the Convention to give domestic legal effect to the rights guaranteed under Articles 5(1) and 5(2) of the American Convention on Human Rights.

The foregoing stemmed from the then standing legislation of Trinidad and Tobago which allowed for the imposition of corporal punishment. Under the said legislation, a court could order any male offender above the age of sixteen years to be struck, or flogged, with an object called a ìcat-o-nine tailsî. The said ìcat-o-nine tailsî consists of a plaited rope instrument of nine knotted thongs of cotton cord, each of which was approximately 30 inches long and less than one-quarter of an inch in diameter. For the administration of flogging, the prisoner’s physical condition was not a criterion. Also, the evidence on record does suggest that the petitioner in this case screamed out in pain and eventually fainted and spent about two months in the infirmary and also suffers from a post-traumatic stress disorder.

The Court unanimously held the State responsible for breach of its obligations under Articles 5(1) and 5(2) and ordered the court to provide free medical care to the complainant, along with taking such legislative measures to abrogate such intrusive corporal punishment. Specifically, the Court noted that ëcorporal punishmentí is inconsistent with the prohibition of torture, and cruel, inhuman or degrading treatment or punishment enshrined in the UDHR, ICCPR, UNCAT, among others.

Case of Juan Humberto S·nchez v. Honduras (June 07, 2003)

The Commission referred this case to the Court wherein the alleged victim Juan Humberto Sanchez, who was a collaborator with the guerrilla forces working in the region, was twice detained by the Honduran armed forces for alleged ties with FMLN of El Salvador. While the period of detention continued, the body of the victim was found by the next of kin in a deep pool, which was in a state of decay. There were signs of torture on the body, so that his nose and genitals were severed, eyes were taken out and other marks on his body that indicated inhumane treatment by the forces.

The IACtHR, while declaring that the State of Honduras violated the right to personal liberty (Article 7), right to life (Article 4), right to humane treatment (Article 5), among others, of the victim, ordered the State to pay a total sum of over US250,000 to be distributed amongst the victims family members. The Court also in an unprecedented manner asked the State of Honduras to publicly acknowledge its responsibility regarding the matter, along with publishing the operative part of the judgment in a national daily once.

Case of Atala Riffo and Daughters vs. Chile (February 24, 2012)

The initial petition was lodged by Ms. Karen Atala Riffo, (hereinafter Ms. Atala) before the Inter-American Commission on November 24, 2004 for discriminatory treatment and arbitrary interference in the private and family life suffered by Ms. Atala due to her sexual orientation.

On March 29, 1993, Ms. Atala married Ricardo Jaime LÛpez Allendes . She had daughters, M., V., and R. with Mr. LÛpez. In March 2002, Ms. Atala and Mr. LÛpez decided to end their marriage through a de facto separation whereby they established by mutual consent that Ms. Atala would maintain the care and custody of the three girls in the city of Villarica, with weekly visits to the home of their father. In November 2002, Ms. Emma de RamÛn, the partner of Ms. Atala, began living in the same house with Ms. Atala, her three daughters and her eldest son. Father filed a custody suit in the Juvenile Court on the grounds that Ms. Atalas new sexual lifestyle would be prejudicial to the development of his daughters. The dispute in this Court concerned the way disciplinary proceedings were conducted against Ms. Atala in this custody suit because of her acknowledged status as a lesbian.

On September 17, 2010, the Commission requested the Court to declare the violation of Articles 11 (Right to Privacy), 17(1) and 17(4) (Rights of the Family), 19 (Rights of the Child), 24 (Right to Equal Protection) and 25 (Right to Judicial Protection) of the Convention, in relation to article 1(1) thereof on account of discrimination based on sexual orientation and loss of care and custody by Ms. Atala of her daughters in favor of their father, which was done without having any regard to their rights and on the basis of alleged discriminatory prejudices.

The Court held that according to Article 1(1) of the Convention any treatment that may be considered discriminatory regarding the exercise of any of the rights guaranteed in the Convention is per se incompatible with it. As per Article 24, the States should not carry any action that de jure or de facto discriminates. A right granted to all persons cannot be denied or restricted under any circumstances based on their sexual orientation. The Court finds that the determination of the childs best interest in cases involving the care and custody of minors cannot be used to justify discrimination against the parents based on their sexual orientation.

Thus, the Court concluded that the grounds stated by the judicial authorities of Chile in justifying custody of the daughters to the father were inappropriate and discriminatory and the American Convention in Article 24, co-jointly read with Article 1(1) prohibits any rule, action, or practice tantamount to discrimination based on sexual orientation.

Case of Gomes Lund et al. (Guerrihla Do Araguaiaî) v. Brazil (November 24, 2010)

The Inter-American Commission submitted an application to the Court on March 26, 2009 against the Federal Republic of Brazil for disappeared persons in the context of the Guerrilha do Araguaia and their next of kin. 70 persons allegedly were arbitrarily detained, tortured, and later disappeared during the operations of the Brazilian Army between 1972 and 1975, whose purpose it was to eradicate the Guerrilha do Araguaia, in the context of the military dictatorship in Brazil. It was alleged by the Commission that the State did not carry out a criminal investigation so as to prosecute and punish the persons responsible for the enforced disappearance of 70 victims. Also, the legislative and administrative measures adopted by the State have unduly restricted the next of kinís right to access information.

The Commission requested the Court to declare that the State is responsible for the violation of the rights established in Articles 3 (right to juridical personality), 4 (right to life), 5 (right to humane treatment [personal integrity]), 7 (right to personal liberty), 8 (right to a fair trial [judicial guarantees]), 13 (freedom of thought and expression) and 25 (right to judicial protection) of the American Convention on Human Rights, in relation to the obligations enshrined in Articles 1(1) (obligation to respect rights) and 2 (domestic legal effects) of the same.

The Court found that acts which constitute enforced disappearance are of a continuous or permanent nature, and that its consequences involve multi-offensive violations to the human rights recognized in the American Convention while the whereabouts of the victim is not determined or the bodily remains not found, to which, States have the corresponding duty to investigate, and eventually, punish those responsible, pursuant to the obligations derived from the American Convention. The Court recalled that the subjection of detainees to repressive official bodies, State agents, or private persons whom act under said acquiescence or tolerance, that with impunity carry out acts of torture and murder, represent itself an infringement to the obligation to prevent violations to the right to personal integrity and right to life, established in Articles 5 and 4 of the American Convention. The Court insisted that the right to freedom of thought and expression consists of not only the right and freedom to express one’s own opinion, but also of the right and freedom to seek, receive, and impart information and ideas of all kinds. Therefore, all persons, including the next of kin of the victims of gross human rights violations, have the right to know the truth and the State authorities cannot resort to mechanisms such as official secret or confidentiality of the information, or reasons of public interest or national security, to refuse to supply the information required by the judicial or administrative authorities in charge of the ongoing investigation or pending procedures. The Court positively valued that Brazil has adopted measures to progress in the search for the victims of the Guerrilha do Araguaia. But, it is necessary that the State carry out all the possible efforts to determine, in the briefest period possible, the whereabouts of the disappeared persons as it has been more than 30 years.

Case of the Juvenile Reeducation Institute v. Paraguay (September 2, 2004)

This case concerns the ëPanchito LÛpezí Center, a facility for incarcerating children in conflict with the law. The inmate population in the Center was increasing, giving rise to inmate overcrowding and a lack of security and safety measures which resulted in several incidents of fires. A fire at the Center on February 11, 2000 left nine inmates dead and several sustained injuries. The Center had another fire on February 5, 2001 that left the following nine inmates injured or burned. The Center had another fire on July 25, 2001 after which the State shut down the Center and transferred inmates from the Center to the Itaugu· Comprehensive Education Center, the Emboscada Regional Penitentiary and there were also smaller-scale transfers to other regional adult penal institutions in the country. With these transfers now many children shared physical space with adult inmates since these institutions did not have separate infrastructure for juveniles. Subsequently, two children died at Emboscada Regional Penitentiary. The conditions under which inmates at the Center had to live not only demoralized them but also had both physical and psychological after-effects. The next of kin of the deceased and injured inmates have also suffered psychological and emotional effects as a result of the deaths of the inmates and/or the injuries they sustained.

The Commission filed the application pursuant to Article 61 of the American Convention, seeking a judgment from the Court as to whether the State had violated its obligation under Article 1(1) (Obligation to Respect Rights) of the Convention, Article 4 (Right to Life) of that instrument by virtue of the deaths of inmates. The Commission also asked the Court to decide whether the State had violated Article 5 (Right to Humane Treatment) of the American Convention, in relation to its obligation under Article 1(1) thereof, by virtue of the injuries and smoke inhalation that minors sustained in three fires at the Center. The Commission also petitioned the Court to find that the respondent State had violated Articles 5 (Right to Humane Treatment), 7 (Right to Personal Liberty), 19 (Rights of the Child), 8 (Right to a Fair Trial) and 25 (Judicial Protection) of the American Convention, all in relation to Article 1(1) thereof, to the detriment of all juveniles incarcerated at the Center and those juvenile inmates subsequently remanded to the countrys adult prisons.

The Court held that all persons detained have the right to live in prison conditions that are in keeping with their dignity as human beings and that the State must guarantee their right to life and their right to humane treatment. The State has a special role to play as guarantor of the rights of those deprived of their freedom, as the prison authorities exercise heavy control or command over the persons in their custody. The right to life, the right to humane treatment, freedom of religion and the right to due process- cannot be restricted under any circumstances during internment, and any such restriction is prohibited by international law. The conditions at the Center constituted violation of Article 5 as they were never of the kind that would have enabled those deprived of their liberty to live with dignity; instead, the inmates were forced to live permanently in inhuman and degrading conditions, exposed to an atmosphere of violence, danger, abuse, corruption, mistrust and promiscuity, where the rule that prevailed was survival of the fittest, with all its consequences. The Court found that the State violated Article 4(1) of the American Convention, in relation to Article 1(1) thereof and, where the victims were children, Article 19 thereof, to the detriment of the deceased. Also, the State violated Articles 4(1), 5(1), 5(2) and 5(6) of the American Convention, in relation to Article 1(1) thereof, and also Article 19 when the victims were children, to the detriment of all the inmates interned in the Center in the period between August 14, 1996 and July 25, 2001; and Articles 5(1) and 5(2) of the American Convention, in relation to Articles 1(1) and 19 thereof, to the detriment of the children injured as a result of the fires. The Court found violation of Article 25 as the State did not provide the inmates at the Center with a ìsimple and prompt recourse when the petition of generic habeas corpus was granted, nor did it provide an effective remedy to the 239 inmates interned at the Center when the court delivered the ruling that granted the petition of habeas corpus. However, the Court did not find violating of Article 7 as it did not have sufficient information to know the particulars of how preventive detention was used in the case of each individual inmate.

Case of Human Rights Defender et al v. Guatemala (August 28, 2014)

Between 1962 and 1996, an internal armed conflict took place in Guatemala, which had significant human, material, institutional and moral costs. During the 1980s, the emergence of new groups of defenders in several areas was met with an intense repressive action by the State, which led to the murder or disappearance of many of their members. The Guatemalan Government and the Unit Revolucionaria Nacional Guatemalteca (hereinafter URNGî) in an effort to reach a negotiated settlement to the conflict signed the Global Agreement on Human Rightsî, on March 29, 1994. In this agreement, the parties recognized ìthe importance of national institutions and entities for the protection and promotion of human rightsî and made a commitment to adopt ìspecial measures of protectionî in favour of individuals or organizations working in the field of human rights. Unfortunately, in subsequent years, many acts of harassment and aggression against human rights defenders continued. Now the Commission alleged before the Court that after the signing of the peace accords, which sought to end the internal armed conflict in Guatemala, human rights defenders in that country continued to face a context of threats and attacks on their lives and personal integrity, which constitute violation of Article 4 and 5 of the Convention.

The Court held that according to Article 1(1) of the American Convention, the States have an obligation to respect and guarantee the human rights recognized therein. Regarding the rights to life and personal integrity, these obligations not only imply that the State must respect them (negative obligation), but they also require the State to adopt all appropriate measures to guarantee them (positive obligation). However, in this case neither that the Commission and nor the representatives did not provide any other evidence to prove that the State should have known about the specific situation of danger in the context of vulnerability for human rights defenders. Therefore, there are no sufficient elements to declare that the State failed in its obligation to protect the life, under the terms of Article 4(1) of the American Convention, in relation to Article 1(1) thereof. But the State failed in its obligation to guarantee the right to personal integrity to of one of the human rights defenders and her family, through the adoption of adequate and effective special measures of protection, in violation of Article 5(1) of the American Convention, in relation to Article 1(1) thereof.

With respect to freedom of movement of the human rights defenders and their families, the Court held that as the State failed in its obligation to provide the necessary conditions to facilitate their voluntary, dignified and safe return to their usual places of residence, or their voluntary resettlement in another part of the country, there exists the violation of Article 22(1) of the American Convention, in relation to Article 1(1) thereof. Also, the State is responsible for the violation of Article 23(1) of the American Convention, in relation to Article 1(1) thereof as it did not guarantee the necessary conditions to enable Mrs. B.A. to continue to exercise her political rights from the political positions she held. The Court also found flaws in the manner in which the investigations for the offences were committed. The investigation conducted in the domestic jurisdiction has not been diligent, serious and effective and considers it proven that the State failed to comply with the provisions of Articles 8(1) and 25 of the Convention, in connection with Article 1(1) thereof. Consequently, the Court finds that the State failed to discharge its obligation to investigate the alleged threats with the required diligence, thoroughness and effectiveness, in violation of Articles 8(1) and 25 of the Convention, to the detriment of the relatives of the human rights defender.

Conclusion

In the above decisions of the IACtHR we saw how the court in various situations has upheld the right to private life, right to personal liberty, right to humane treatment, Right to Privacy, Rights of the Family, Rights of the Child, Right to Equal Protection, Right to Judicial Protection, right to juridical personality, right to fair trial, and freedom of thought and expression as enshrined in the American Convention on Human Rights.

Reference

1. The Rules and the reality of petition procedures in the Inter-American Human Rights System, Dinah Shelton, The Future of the Inter-American Human Rights System – Working Paper #2, May 2014.
2. References to the Inter-American Court of Human Rights and Inter-American instruments in the case-law of the European Court of Human Rights.
3. The Role of the Inter-American Commission and Court of Human Rights in the Protection of Human Rights: Achievements and Contemporary Challenges, Remarks by Monica Pinto.