ANNUAL REPORT OF THE IACHR 2006
CASE 12.053 – Report Nº 40/04, Maya indigenous communities of the Toledo District (Belize)
71. In Report Nº 40/04 dated October 12, 2004, the Commission recommended that the State:
1. Adopt in its domestic law, and through fully reported consultations with the Maya people, the legislative, administrative, and any other measures necessary to delimit, demarcate and title or otherwise clarify and protect the territory in which the Maya people have a communal property right, in accordance with their customary land use practices, and without detriment to other indigenous communities.
2. Carry out the measures to delimit, demarcate and title or otherwise clarify and protect the corresponding lands of the Maya people without detriment to other indigenous communities and, until those measures have been carried out, abstain from any acts that might lead the agents of the State itself, or third parties acting with its acquiescence or its tolerance, to affect the existence, value, use or enjoyment of the property located in the geographic area occupied and used by the Maya people.
3. Repair the environmental damage resulting from the logging concessions granted by the State in respect of the territory traditionally occupied and used by the Maya people.
72. On February 1, 2006, the Commission wrote to both the State and the Petitioners and requested up-dated information concerning compliance with the Commission’s Recommendations in Report Nº 40/04. The Commission is awaiting responses from both parties.
CASE 12.515, Report 97/05, Alfredo Díaz Bustos (Bolivia)
73. On October 27, 2005, the Commission approved an amicable settlement agreement in the case of Alfredo Díaz Bustos. Under this agreement, the State undertakes to:
74. On January 12, 2007, the Commission requested updated information from the parties on the status of the agreement’s execution. On January 15, 2007, the petitioner submitted a brief communication wherein he reported that “thus far, the Bolivian State has not complied with the commitments undertaken in paragraphs (d) and (e) of Section Three (I) of the Amicable Settlement” signed on July 4, 2005. The State, for its part, did not respond to this communication. Nevertheless, in a report presented by the State and received at the Commission on June 19, 2006, and in a report delivered to the IACHR during its visit to Bolivia on November 17, 2006, the State presented information concerning compliance with the agreement. In connection with the commitment undertaken in subsection d), namely “in accordance with international human rights law, to include the right to conscientious objection to military service in the preliminary draft of the amended regulations for military law currently under consideration by the Ministry of Defense and the armed forces”, the State reported the following:
By Ministerial Decision No. 0044, dated January 9, 2006, the Ministry of Defense formed a committee to adapt the National Defense Service Act to include “conscientious objection” as one of its chapters. It also instructed the Chief Command of the Armed Forces of the Nation to commission the General Command of each branch of the military service to study the inclusion of conscientious objection in the National Defense Service Act. That work is now in progress (the State’s communication of June 19, 2006).
However, because of the sensitive nature of the wording of such a rule, no deadline has been set for this project (the State’s communication of June 19, 2006).
75. As to the commitment undertaken in paragraph e), “together with the Deputy Ministry of Justice, to encourage congressional approval of military legislation that would include the right to conscientious objection to military service,” the State reported that:
[… ] once the preliminary draft of the new National Defense Service Act is ready, it will be coordinated with the Ministry of Justice. […] Section Three does not set a specific deadline for inclusion of “conscientious objection” in military law. However, the Ministry of Defense is moving that study forward through the Commission of Experts in Military Law so as to update and prepare the final proposed draft of the NATIONAL DEFENSE SERVICE ACT.
[…] The final proposal of the draft National Defense Service Act that sets out the principles, rules and procedures governing CONSCIENTIOUS OBJECTION has already been drafted by the Supreme Council of National Defense, based on a paper prepared by the Armed Forces Modernization Commission.
Conscientious Objection is addressed in two documents prepared by that Secretariat: the “Defense Sector Proposal for the Constitutional Assembly” and the “National Security and Defense Bill,” which will be officially published in the near future (communication from the State delivered to the Commission during its visit on November 17, 2006).
76. On July 31, 2006, the IACHR received a reply from the petitioner concerning the State’s report. There, the petitioner observed the following:
[…] thus far, no proposal has been forthcoming, either in the form of a preliminary draft or draft regulation concerning conscientious objection to compulsory military service […] 8. Unlike the other commitments undertaken by the State in paragraphs (a), (b) and (c) of Clause Three I of the Amicable Settlement, the commitments in paragraphs (d) and (e) do not set a deadline for compliance. However, this is not to say that the Bolivian State can postpone compliance indefinitely. Were it to do so, the human rights of other conscientious objectors would be violated, specifically their rights to freedom of conscience, thought, religion and equality before the law, as happened in the case of Alfredo Díaz Bustos.
77. Based on these considerations, the IACHR concludes that the measures spelled out in the Amicable Settlement Agreement have been partially carried out. As stated in Report 97/05, the Commission will continue to follow up and monitor each and every point of the amicable settlement.
98/05, Raúl Zavala Málaga and Jorge Pacheco Rondón
78. On October 27, 2005, the Commission approved a friendly settlement agreement in the case of Raúl Zavala Málaga and Jorge Pacheco Rondón. Under the terms of the agreement the State undertook to:
The present private document, which may be raised to the category of public document solely upon recognition of the signatures and markings, signed between the parties, contains the following clauses:
FIRST.– Regarding the parties: Parties of the first part, Fernando Antezana Aranibar, representing the Ministry of Health and Sports, Félix Sandoval, Deputy Minister of Sports, Federico Álvarez Plata, Administrative Representative of the Deputy Ministry of Sports, Javier Terán, National Coordinator of ODESUR 2006 Games; parties of the other part, Jorge Pacheco Rondón with CI. 188393 LP, domiciled at calle N° 16 #100, Obrajes Zone, an architect by profession, and Raúl Zavala Málaga with CI. 098169 LP., domiciled at Avenida 14 de Septiembre # 5256, Obrajes Zone, an engineer by profession.
Administrative Resolution SSC/IRJ/139/2003 of August 28, 2003, issued by the Civil Service Superintendent, which decided on the appeal to a higher authority, determining: First.- To revoke the administrative order by which the public officials were dismissed and to immediately reinstate them in the posts they held at the same rank and salary and to pay these public servants their salaries for the months of April and May of this year.
Second.- To instruct the Minister of Health and Sports to execute the Administrative Resolution, by ordering the Deputy Minister of Sports to reinstate Jorge Pacheco Rondón and Raúl Zavala Málaga to the posts they held with this public entity.
Third.- To report to the Superintendency of the Civil Service on compliance with the Resolution, so that it can determine whether or not to submit information to the Accounts Office [Contraloría]. Resolution N° 45/03-SSA-I of November 20, 2003 issued by the First Social and Administrative Chamber of the Superior Court of the Judicial District of La Paz, which declares the constitutional amparo petition to have merit and admonishes the appellee authorities to comply with Administrative Resolution No. 139103; in addition, each of the appellees is fined Bs. 500. Constitutional Judgment 0156/2004-R of February 4, 2004, in the operative section, APPROVES Resolution N° 45/03SSA-I of November 20, 2003 issued by the First Social and Administrative Chamber of the Superior Court of the Judicial District of La Paz.
According to the report of the prosecutor of the General Department of Legal Affairs dated September 7, 2004, there is a criminal proceeding against the Minister of Health in the Fifth Court for Preliminary Criminal Proceedings [Juzgado 5to de Instrucción en lo Penal Cautelar] under case number 2204/07654, for noncompliance with judicial decisions.
Complaint lodged with the Inter-American Commission on Human Rights. In a communication, Ref. D.P.4074/2004, dated September 6, the National Public Defender communicated to the Minister of Health that he had lodged a complaint with the Inter-American Commission on Human Rights against the Bolivian State for violation of political rights, judicial protection, and fair remuneration.
THIRD. - Agreements reached. - The parties have arrived at the following agreements:
3.1 The impossibility of reinstating Mr. Pacheco and Mr. Zavala in their previous places of work.
3.2 Because of budgetary restrictions and the issuance by the Executive Branch of new austerity measures, it is impossible to continue maintaining the salary levels they enjoyed in their previous posts.
3.3 The Ministry of Health and Sports, through the Deputy Ministry of Sports has entered into the following agreement with Jorge Pacheco Rondón:
a) That he will be contracted for the ODESUR Project to work as Professional Sports Infrastructure Controller [Profesional de Fiscalización de Infraestructura Deportiva] at a monthly salary of Bs. 8,000 (eight thousand bolivianos); this salary shall be charged against budget item 25200, using resources of the Deputy Ministry of Sports, Source 10 TGN;
b) That the amount of Bs. 125,964 (one hundred twenty-five thousand, nine hundred sixty-four bolivianos) shall be paid out of the budget of the Deputy Ministry of Sports for past wages accrued during the 2003 and 2004 fiscal years.
3.4 The Ministry of Health and Sports, through the Deputy Ministry of Sports, has entered into the following agreement with Raúl Zavala Málaga:
a) That he shall be instated as the head of sports infrastructure, with rank [Item] No. 13, as of January 3, 2005, for which the monthly salary is Bs. 6,000 (six thousand bolivianos), to be paid out of the budget of the FID Sports Investment Fund, and his government service shall be recognized as continuous as of his appointment.
b) That the amount of Bs. 54,036 (fifty-four thousand thirty-six bolivianos) shall be paid out of the budget of the Deputy Ministry of Sports, for past wages accrued during the 2003 and 2004 fiscal years.
FOURTH.- Discontinuance.- Jorge Pacheco Rondón and Raúl Zavala Málaga shall formally and expressly discontinue all legal action taken, on a national level, with the Fifth Court for Preliminary Criminal Proceedings, and internationally, with the Inter-American Commission on Human Rights.
Jorge Pacheco Rondón and Raúl Zavala Málaga shall formally and expressly refrain from undertaking any future judicial or extrajudicial action pertaining to compliance with Administrative Resolution SSC/IRJ/139/2003 of August 28, 2003, by virtue of the fact that their petition has been fully resolved.
FIFTH.- Acceptance.- The parties, by mutual consent, without any pressure or fraud involved, indicate their full agreement with each and every one of the clauses of the Compromise Agreement, in witness whereof it is signed in two equally authentic copies on the second day of February, two thousand and five […].
79. On January 12, 2007, the Commission requested up-to-date information from the parties concerning compliance with the friendly settlement agreement. On January 15, 2007, the petitioner submitted a brief communication reporting that “both the Bolivian State and citizens Raúl Zavala and Jorge Pacheco fully complied with each and every one of the points agreed upon in the Settlement signed on February 2, 2005.” The Commission received no response from the State.
80. Based on the information provided, the Commission concludes that the State has fully complied with the points of the agreement that the parties signed.
CASE 12.051, Report No. 54/01, Maria da Penha Maia Fernandes (Brazil)
81. In Report 54/01 of April 16, 2001, the IACHR conveyed the following recommendations to the Brazilian state:
1. Complete, rapidly and effectively, criminal proceedings against the person responsible for the assault and attempted murder of Mrs. Maria da Penha Fernandes Maia.
2. In addition, conduct a serious, impartial, and exhaustive investigation to determine responsibility for the irregularities or unwarranted delays that prevented rapid and effective prosecution of the perpetrator, and implement the appropriate administrative, legislative, and judicial measures.
3. Adopt, without prejudice to possible civil proceedings against the perpetrator, the measures necessary for the State to grant the victim appropriate symbolic and actual compensation for the violence established herein, in particular for its failure to provide rapid and effective remedies, for the impunity that has surrounded the case for more than 15 years, and for making it impossible, as a result of that delay, to institute timely proceedings for redress and compensation in the civil sphere.
4. Continue and expand the reform process that will put an end to the condoning by the State of domestic violence against women in Brazil and discrimination in the handling thereof. In particular, the Commission recommends:
a. Measures to train and raise the awareness of officials of the judiciary and specialized police so that they may understand the importance of not condoning domestic violence.
b. The simplification of criminal judicial proceedings so that the time taken for proceedings can be reduced, without affecting the rights and guarantees related to due process.
c. The establishment of mechanisms that serve as alternatives to judicial mechanisms, which resolve domestic conflict in a prompt and effective manner and create awareness regarding its serious nature and associated criminal consequences.
d. An increase in the number of special police stations to address the rights of women and to provide them with the special resources needed for the effective processing and investigation of all complaints related to domestic violence, as well as resources and assistance from the Office of the Public Prosecutor in preparing their judicial reports.
e. The inclusion in teaching curriculums of units aimed at providing an understanding of the importance of respecting women and their rights recognized in the Convention of Belém do Pará, as well as the handling of domestic conflict.
f. The provision of information to the Inter-American Commission on Human Rights within sixty days of transmission of this report to the State, and of a report on steps taken to implement these recommendations, for the purposes set forth in Article 51(1) of the American Convention.
82. The State did not submit information regarding its compliance with the aforementioned IACHR recommendations.
83. The petitioners have affirmed, firstly, that a meeting was held on January 30, 2007 at the headquarters of the Office of the Special Secretary for Human Rights of the Office of the President of the Republic, in Brasilia. Participants included both representatives of the State and of the petitioners. The renewal of these negotiations was reinforced, they state, by the presence of a new actor, the representative of the government of the State of Ceara; the negotiations showed a common intention to find paths pointing towards compliance with the recommendations given, despite the differences that arose in the meeting.
84. With respect to recommendation No. 1 (supra), they state that the situation has not changed from the one reported the year before: the judiciary had finished its criminal prosecution, a verdict of guilty was handed down to the responsible party, who, however, is serving his sentence in régimen abierto [work release program].
85. Regarding recommendation No. 2 (supra), they have asserted that up to date there is no visible progress in the investigation and establishment of responsibility of those who promoted the irregularities and unwarranted delays in the proceedings; this is what led them to bring the matter before the Commission. Although the State has provided information stating that administrative proceedings were underway regarding the issue being heard by the judiciary of the State of Ceara, to date no copy of it has been submitted, and hence there is no evidence of its existence. With respect to an alleged lack of impartiality in the investigation, they affirm that it is evident from the fact that it was carried out by the subjects of the investigation’s own peers. They argue that to date the State has not managed to clarify the origins of nor find those responsible for obstructions within domestic proceedings; the statute of limitations is about to expire for these crimes, which in turn will prevent the effective establishment of the facts. These points were emphatically defended in the meeting that took place.
86. Regarding recommendation No. 3 (supra), they have stated that in connection with the symbolic reparations given to the victim, the Federal Senate, following her nomination by the Office of the Secretary of Policy for Women (SPM for its acronym in Portuguese), bestowed upon her the Citizen Bertha-Lutz prize. The president of the Republic signed Law 11.340 on August 7, 2006, which established mechanisms to curb domestic and family violence against women. The law received the “unofficial” name of the victim, although this was not publicly acknowledged, which they do expect to occur. They also state that a dialog with authorities has begun towards a holding a public ceremony of recognition in which an official statement shall be delivered about the recommended reparation.
87. With respect to this legislative implementation, the Rapporteurship on the Rights of Women of the IACHR issued Press Release No. 30/06 on August 11, 2006, expressing its pleasure regarding the aforementioned measure, signifying the acknowledgement that this constituted a step of fundamental importance to achieve full compliance with the recommendations issued to the Brazilian state both in the decision that this organ took with respect to the case and with the principles established by the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women (Convention of Belém do Pará). The Rapporteurship recognized the participatory process that led to the development of this law, including the essential role of civil society organizations working to defend and protect women’s rights. The Rapporteurship urged the Brazilian state to continue to adopt measures to facilitate its effective application, including the design of multisectoral, preventive government policies, appropriate enacting legislation, allocation of the resources needed to translate their content into reality, and measures to train and create awareness among government employees.
88. Regarding pecuniary reparations, the petitioners state that, six months after the recommendations were issued, the victims have not yet received any pecuniary compensation.
89. With respect to recommendation No. 4(a) (supra), the petitioners affirmed that the training and awareness-raising measures gained validity with the entry into force of the aforementioned Law 11.340/06, which created mechanisms to prevent domestic and family violence against women. Now, they stated, mechanisms to evaluate the results of the efforts towards implementation of this recommendation should be adopted. Regarding measures oriented towards police officers and the Judiciary in this topic, they argued that the State has limited itself to provide certain projects in a general manner.
90. Concerning recommendations Nos. 4(b) and 4(c) (supra), the petitioners noted that with the entry into force of the above-mentioned law, although specialized courts in this area have not been created, article 14 has made their eventual creation possible, by opening a window towards the simplification of criminal procedures related to situations of violence against women. In addition, at the time of submitting their information, they highlighted that the draft bill of this law was written by an inter-ministerial work group, in turn based on a proposal submitted by feminist organizations, seeking to prevent, punish, and eradicate this type of violence; this, as said above, was also borne in mind by the Commission. They affirmed that this legislative measure is an important legal advance, because it modifies both the Criminal Code and the Code of Criminal Procedure, making it possible for attackers to be arrested in flagrante delicto or held in custody as a precautionary measure, something not possible before; prison sentences for this kind of crime were also increased. However, they continue, this law does not solve the problem of domestic and family violence against women, because it requires a change in the idiosyncrasy of both the state and civil society; this change must be achieved through active measures.
91. Although the law authorizes an autonomous budget for its implementation, the petitioners note that it has suffered from an important cut in the 2007 budget; moreover, an amendment introduced in the 2007 Budget Law (LDO in its Spanish acronym) that protected the funds destined to fight violence against women was vetoed by the president of the Republic. Available resources for this purpose are now insufficient. The Consejo Nacional de Derechos de la Mujer (CNDM) [National Council on the Rights of Women] approved the establishment of an Observatory to monitor the implementation of this law, as well as the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women (Convention of Belém do Pará) in the entire territory of the state. According to the petitioners, acting on this initiative would be essential to make the adopted legislative measures effective.
92. Regarding recommendations Nos. 4(d) and 4(e) (supra), the petitioners state that there have not been any significant changes in the number of specialized police stations, given that their resource allocation continues to be extremely small. With respect to aspects related to teaching, there have been no significant advances.
93. Based on the information received, the Commission concludes that there is partial compliance with the aforementioned recommendations.