ANNUAL REPORT OF THE IACHR 2006
CASE 11.804 - Report Nº 91/03 Juan Ángel Greco (Argentina)
54. On October 22, 2003, the Commission approved a friendly settlement agreement in the case of Juan Ángel Greco. In summary, the petitioners contended that, on June 25, 1990, Mr. Greco, then 24 years of age, was illegally detained and mistreated while trying to seek police assistance to denounce an assault. They indicated that while Mr. Greco was detained in the Comisaría [police station] of Puerto de Vilelas, Chaco Province, a fire broke out in his cell under unexplained circumstances, causing the victim to sustain severe burns. The petitioners alleged police responsibility in the setting of the fire, and in delaying the transfer of the victim to the hospital for a period of several hours. Mr. Greco remained hospitalized until his death on July 4, 1990. The petitioners further alleged that the State failed to carry out an adequate investigation to clarify the facts alleged, thereby denying the family their right to justice and to seek compensation.
In this agreement the State agreed to the following:
“In attention to the measures adopted by the Provincial Attorney General’s Office and the Admissibility Report Nº 72/01 adopted by the Inter-American Commission on Human Rights, the Government of Chaco commits itself -- once the criminal case has been reopened – to direct the reopening of the administrative case Nº 130/91-250690-1401.
“The Government of the Province of Chaco, in the framework of its competences, commits itself to ensuring that the family members have access to the judicial and administrative investigations.”
III.- Economic reparation:
2. Indemnity: The Government of the Province of Chaco undertakes to provide economic reparation to the family members of Juan Ángel Greco in the sum of three hundred thousand pesos ($300,000) that shall be paid to Mrs. Zulma Bastianini de Greco in the amount of thirty thousand per month in the time period specified in point 3 of the present item, that amount comprising material damages, moral damages, lost wages, costs, fees and any other classification that would arise from the responsibility assumed by the Province of Chaco.
IV.- Other reparation:
“The Government of the Province of Chaco commits itself to the publication of this agreement in the principle written press sources of the nation and the Province of Chaco.”
“The Government of the Province of Chaco commits itself to continue pursuing legislative and administrative measures for the improved protection of Human Rights. Specifically, it is placed on record that a draft law creating a Criminal Prosecutor’s Office for Human Rights has been developed and transmitted to the Provincial Chamber of Deputies for its study and approval. Further, the work of the Permanent Commission for Control of Detention Centers, created by Resolution No. 119, of February 24, 2003, of the Ministry of Government, Justice and Labor of the Province of Chaco, will be strengthened. In this same regard, further emphasis will be placed on the work of the Organ of Institutional Control (O.C.I) created by Article 35 of the Organic Police Law of the Province of Chaco Nº 4.987, directing it toward the more effective protection of human rights on the part of the Provincial Police. At the initiative of the Executive, the Provincial Council for Education and Promotion of Human Rights created by Law Nº 4.912 was constituted in the sphere of the Chamber of Deputies. The representatives of the distinct intervening organs and powers have already been designated and convoked.”
55. In a working meeting held on March 5, 2004, the Commission received information from the parties on measures taken in compliance with the points agreed upon. On November 8, 2004, the Commission asked the parties to submit updated information on progress in complying with the accord. The petitioners submitted a brief note on the matter on November 19, 2004. Additional working meetings were held, the most recent on October 20, 2006, and further requests for additional information were sent to both parties, the latest in December 2006. The petitioners presented updated information in a note dated December 16, 2006.
The current situation
56. Based on the information the Commission has for this case, it considers that the State has fully complied with the monetary settlement provisions of the agreement. It has also complied with the aspects concerning publication of the agreement, and the establishment of a Criminal Prosecutor’s Office for Human Rights. The petitioners and the Commission both view these measures as important contributions to the process of compliance in this case.
57. However, according to available information, the aspects concerning the duty to investigate and punish those responsible for the violation of Juan Ángel Greco’s human rights, in other words, effective progress in the criminal case and administrative proceeding, remains pending. As for the criminal case, the parties report that in October 2003 the prosecutor opened a formal case against the police agents of the Comisaría who were on duty at the time of the actions that caused the victim’s death, requesting several evidentiary investigations. The petitioners have said that these steps were not ordered until June 2004, and to the best of their knowledge have not been taken.
58. On December 31, 2005, the State notified the petitioners of the opening of the administrative proceeding at the police headquarters, and supplied information on the case pending in the Tribunal de Cuentas [Accounts Tribunal] of the Province of Chaco. However, the petitioners report they have received no information about substantive progress in the administrative proceeding.
59. The petitioners state they have not had effective access to developments in the criminal and administrative proceedings. They say that although the Province had promised to send them copies of various files, they have not received copies of the pertinent files nor information on the progress of the investigations.
60. Finally, as regards the undertaking to adopt other legislative and administrative measures to expand the protection of human rights, the petitioners have reported that the State has not yet fulfilled its commitment to strengthen the work of the Permanent Commission for Control of Detention Centers and to establish the Council for Education and Promotion of Human Rights
view of the foregoing, the Commission considers that the State has
partially complied with the points of the agreement and the
102/05, Sergio Schiavini and María Teresa Schnack
62. On October 27, 2005, in Report 102/05, the Commission approved a friendly settlement agreement in the case of Sergio Schiavini and María Teresa Schnack. In summary, the petitioners claimed that the State was responsible for the death of Sergio Andrés Schiavini on May 29, 1991, during a clash between members of the Buenos Aires Provincial Police and a gang of thieves who had taken a number of people hostage, among them the young Schiavini. The petition also denounced as aggravating elements by the State the use of excessive force during the shootout, the denial of judicial protection and due process guarantees, and the persecution that María Teresa Schnack suffered since the death of her son, Sergio Schiavini, as a result of her actions to press for investigation.
63. In the friendly settlement the State recognized its responsibility for “the facts of what transpired…and the attendant violation of the rights and guarantees recognized by the American Convention on Human Rights as described in Admissibility Report N° 5/02, adopted by the IACHR during its 114th regular session.” Under the terms of the settlement, the State undertook the following:
II. Measures to be adopted
A. Economic reparation
1. The parties agree to set up an “ad-hoc” Arbitration Tribunal to determine the amount of economic reparation due Sergio Andrés Schiavini’s heirs, in keeping with the rights acknowledged to have been violated and the applicable international standards.
2. The Tribunal shall be made up of three independent experts, with recognized expertise in human rights and of the highest moral caliber. The petitioners will designate one expert, the national State shall propose a second, and the third shall be proposed by the two experts designated by the parties. The Tribunal shall be formed no later than 30 days following the approval of this agreement by Decree of the Executive Branch of the Nation.
3. The procedure to be followed shall be determined by common agreement among the parties, and set forth in writing, a copy of which shall be submitted to the Inter-American Commission on Human Rights. To this end, the parties shall designate a representative to participate in the discussions of the procedure. In representation of the national State, the Ministry of Foreign Affairs, International Trade, and Worship and the Ministry of Justice and Human Rights shall be charged with designating an official in the area with competence in human rights matters in both Ministries.
4. The arbitration tribunal’s award shall be final and not subject to appeal. It shall contain the amount and type of monetary reparation agreed upon, the beneficiaries thereof, and a calculation of any applicable costs and fees incurred in the international proceeding and by the arbitration entity. These shall be submitted to the Inter-American Commission on Human Rights for evaluation in the framework of the process to follow up on compliance with the agreement, in order to verify whether the latter is consistent with the applicable international parameters. The payments set forth in the award shall be immune from seizure and shall not be subject to currently applicable taxes, contributions, or fees, or any that may be imposed in the future.
5. The petitioners relinquish, definitively and irrevocably, the ability to initiate any other claim of a monetary nature against the national State associated with the instant case. In addition, they cede and transfer to the national State all litigation rights they may have in the framework of the civil suit brought against the government of the Province of Buenos Aires, currently in process before the courts of the Province of Buenos Aires. To this effect, they shall sign the respective instrument before a national Notary Public within ten working days following the effective delivery of the payment resulting from the arbitration award.
6. Without prejudice to the foregoing transfer in its favor, the national State declares that it reserves it right to recover the amounts actually paid out to the petitioners as determined by the Arbitration Tribunal from the Government of the Province of Buenos Aires by subtracting those amounts from the totals that might correspond to that province under the federal sharing law [ley de coparticipación], and/or any other lawful means.
B. Measures of non-monetary reparation
1. The parties agree to form a technical working group, in which the Government of the Province of Buenos Aires shall be invited to participate, to carry out the studies and take such other steps as may be necessary to submit for the consideration of the Legislature and, where appropriate, the competent federal authorities, the following initiatives, aimed at implementing the necessary measures to bring existing law into harmony with international standards, in accordance with point 2 of the Act dated November 11, 2004:
a) Draft legislative reform bill making it mandatory, with no exceptions, to perform an autopsy in all cases of violent or criminally suspicious deaths. It will also prohibit members of the security forces from being involved in this process with respect to facts in which they have participated;
b) Draft reform of the Criminal Procedures Code of the Nation granting a victim’s relatives the right to choose to designate their own expert before the autopsy is performed;
c) Analysis of the legislation in force on the procedures followed by the forensic medical office to evaluate possible modifications that could contribute to ensuring transparency and effectiveness in its performance;
d) Draft reform of the Criminal Procedures Code of the Nation to incorporate the violation of human rights as grounds for review;
e) Draft reform of the Criminal Procedures Code of the Nation incorporating the violation of human rights as grounds for the immediate suspension or interruption of the statute of limitations;
f) Evaluation of domestic law concerning hostage-taking and the use of force to bring it into harmony with international standards in accordance with principle N° 3 of UN Resolution 1989/65;
g) Proposal that, in the event that the appeal for review in the Schiavini case filed by the Provincial Office of the General Prosecutor before Chamber 111 of the Criminal Court of Cassation of Buenos Aires Province is unsuccessful, a "Truth Commission” is established at the federal level to help effectively safeguard that right;
h) Development of draft reforms setting forth the procedures for processing and responding to petitions under study by the Commission and before the Inter-American Court of Human Rights, that include the establishment of a specific entity with jurisdiction in the decision-making process—including the institution of “friendly settlement”—and a mechanism to ensure compliance with the recommendations and/or judgments of the Commission and/or the Inter-American Court of Human Rights.
2. The Government of the Argentine Republic pledges to facilitate the activities of the working group and make available the technical support and facilities it requires in order to perform its task. It also pledges to periodically inform the Inter-American Commission on Human Rights regarding the outcomes of the task entrusted to the technical group and invites the Commission to participate actively in evaluating the draft reforms, as well as the follow-up and evolution of these initiatives.
3. The Government of the Argentine Republic pledges to publish this agreement in the Official Gazette of the Argentine Republic, in the newspapers “La Unión" of Lomas de Zamora, "Clarín", "La Nación," and "Página/12", once it has been approved by the Inter-American Commission on Human Rights in accordance with the provisions of Article 49 of the American Convention on Human Rights.
64. The Ad Hoc Arbitration Tribunal to Determine Monetary Reparations in the Case of Schiavini v. the State of the Argentine Republic, established in the framework of the friendly settlement reflected in Report No. 102/05, and composed of arbiters Víctor Manuel Rodríguez Rescia, Marcelo López Alfonsín, and Fabián Omar Salvioli, handed down its decision on December 4, 2006, and read its arbitral award in a public hearing held in the City of Buenos Aires on the same date. Under the terms of the settlement, the award was submitted to the Inter-American Commission on Human Rights for evaluation in the framework of the process to follow up on compliance with the agreement, in order to verify whether it is consistent with the applicable international parameters.
65. The Commission has evaluated the procedure used to reach the arbitral decision, as well as the award for monetary reparations in the case:
1. The State shall pay the total sum of US$ 130,000.00 U.S. dollars or the equivalent in Argentine currency as compensation for material damages, broken down as follows:
General damages: US$ 5,000.00
Lost earnings: US$ 100,000.00
Family damages: US$ 25,000.00;
Which shall be disbursed and paid to the beneficiaries in the manner set forth in paragraphs 83, 84, 85, 103, and 104 of this award.
2. The State shall pay the total sum of US$ 205,000.00 (two hundred five thousand U.S. dollars) or the equivalent in Argentine currency for moral damages to the beneficiaries as stipulated in paragraphs 120 to 123 of this award.
3. The State shall pay the total sum of US$ 33,000.00 (thirty-three thousand U.S. dollars) or the equivalent in Argentine currency for costs and fees, pursuant to paragraphs 132 in fine, and 133, 134, and 135 of this award.
4. El State shall pay the compensation for damages and reimbursement of costs and fees ordered in this award within three months of notification of the award.
5. The payments set forth in the award for material and moral damages, costs, and fees shall be immune from seizure and shall not be subject to currently applicable taxes, contributions, or fees, or any that may be imposed in the future.
6. If the State fails to make payment within the prescribed time, it shall pay interest on the amount due in accordance with the legal interest rate commonly used in proceedings for execution of judgments against the State in the Argentine Republic.
7. The Inter-American Commission on Human Rights shall be notified of this award for the purposes set forth in the framework of the friendly settlement reached by the Argentine Republic and the petitioners in the Commission’s Case No. 12.080, reflected in its Report No. 102/05 of October 27, 2005 during its 123rd regular session.
8. Since this award is part of the friendly settlement approved by the Inter-American Commission on Human Rights, that organ shall supervise compliance with the instrument.
66. In addition, the Commission takes note of the Resolution of January 26, 2007 on Interpretation of the Award, concerning the State’s request for interpretation of the manner for computing the three-month deadline set by the Arbitral Tribunal for payment of compensation and reimbursement of costs and fees, which as ordered by the award should be calculated from the date of notification. The pertinent part of the Arbitral Tribunal’s decision said:
when this arbitration procedure is concluded with the issuance of this interpretation, the arbitral award of December 4, 2006 and this resolution will be transmitted to the Inter-American Commission on Human Rights so that it may take appropriate action thereon. The transmittal marks the start of the three-month period for the State of the Argentine Republic to comply fully with operative paragraph 4.
67. By means of this follow-up report, the Commission notes that it has reviewed the arbitral award and considers that it is consistent with applicable international parameters. The Commission wishes to express its appreciation to the Ad Hoc Arbitral Tribunal for its careful work in the arbitral process and the decision rendered, and wishes to recognize once again the good faith and willingness of the parties in this case, whose commitment has made it possible to achieve significant progress. The Commission receives the award as an important contribution to the settlement of the instant case, and trusts it will receive periodic reports from both parties on effective compliance with the terms of monetary reparation established in the award, as well as the non-monetary reparation measures established in the friendly settlement agreement.
CASES 12.067, 12.068 and 12.086 – Report Nº 48/01, Michael Edwards, Omar Hall, Brian Schroeter and Jeronimo Bowleg (Bahamas)
68. In Report Nº 48/01 dated April 4, 2001, the Commission recommended that the State:
· Grant Messrs. Edwads, Hall, Schroeter and Bowleg, an effective remedy which includes commutation of sentence and compensation;
· Adopt such legislative or other measures as may be necessary to ensure that the death penalty is imposed in compliance with the rights and freedoms guaranteed under the American Declaration, including and in particular Articles I, XXV, and XXVI, and to ensure that no person is sentenced to death pursuant to a mandatory sentencing law.
· Adopt such legislative or other measures as may be necessary to ensure that the right under Article XXIV of the American Declaration to petition for amnesty, pardon or commutation of sentence is given effect in The Bahamas.
· Adopt such legislative or other measures as may be necessary to ensure that the right to an impartial hearing under Article XXVI of the American Declaration and the right to judicial protection under Article XVIII of American Declaration are given effect in The Bahamas in relation to recourse to Constitutional Motions.
· Adopt such legislative or other measures as may be necessary to ensure that the right under Article XXV of the American Declaration to be tried without undue delay is given effect in The Bahamas.
· Adopt such legislative or other measures as may be necessary to ensure that the rights under Articles XXV and XXVI of the American Declaration to humane treatment and the right not to receive cruel, infamous, or unusual punishment are given effect in The Bahamas.
69. On November 8, 2002, 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 48/01. The State has not reported the Commission as to its compliance with the Commission’s recommendations in Report Nº 48/01. On December 18, 2002, the Petitioners in Case 12.067, Michael Edwards, wrote to the Commission and reported it that they had written to the Attorney General of The Bahamas asking what steps the State would be taking in response to the Commission’s findings and recommendations. To date they are still awaiting a response from the Attorney General of The Bahamas concerning the same. On December 18, 2002, the Petitioner in Case 12.062, Omar Hall, wrote to the Commission and reported it that despite enquiries made to the Bahamian Government, she has not received any information concerning what steps the State has taken to commute Mr. Hall’s death sentence or otherwise put into effect the Commission’s recommendations made in Report Nº 48/01. With regard to Case 12.086, Brian Schroeter and Jeronimo Bowleg, the Petitioners wrote to the Commission and reported it that they were currently attempting to verify which, if any, of the recommendations contained in Report Nº 48/01, has been complied with by the State. Based on these considerations, the IACHR presumes that the Government of The Bahamas has not complied with the Commission's recommendations.
70. By communications of July 2, 2004 and November 9, 2004, the Commission requested information from the State about compliance with the recommendations set forth in Report Nº 48/01, pursuant to Article 46(1) of the Commission's Rules of Procedure. To date, the Commission has not received any responses from the State to these communications.