In the period between April 1984 and August 1989, the Commission
received a number of complaints alleging that provisions of the Costa
Rican Code of Criminal Procedure obstructed the full exercise of Article
8.2.h of the American Convention on Human Rights, which concerns the right
to a fair trial and which states the following:
Every person accused of a criminal offence
has a right to be presumed innocent so long as his guilt has not been
proven according to law. During
the proceedings, every person is entitled, with full equality, to the
following minimum guarantees:
the right to appeal the judgment to a higher court.
The impediment being alleged is said to be
established under Articles 474, 475 and 476 of the Costa Rican Code of
Criminal Procedure, articles which preclude the possibility of review by a
higher court in the case of lesser criminal sentences involving certain
periods of imprisonment, disqualification, confinement in the interest of
public safety or fines.
Because the complaints presented in the cases under examination
raised the same point of law and because the procedure involved in the
various cases is similar and the Costa Rican State's response the same,
the Commission felt it best to consider all these cases jointly in this
report, which are summarized below.
CASE 9328. NOE EMILIO VILLALOBOS CALVO
The first petition in this case was filed in a note dated April 17,
1984, which alleged that the violation is in the provisions of Article
474.2 of the Code of Criminal Procedure which stipulates that appeals
seeking to have criminal court convictions overturned may only be filed
when the sentence is for more than six months imprisonment; it further
alleges that in application of that rule, the Second Criminal Court of
Alajuela had declared the appeal filed by the petitioner to be
inadmissible on the grounds that his sentence was for less than six
The petitioner pointed out that the American Convention on Human
Rights had been in effect for Costa Rica since 1970 and, within the Costa
Rican legal system, had preeminence over domestic law.
Consequently, the petitioner stated, the right of review recognized
in Article 8.2.h of the Convention cannot be qualified, inasmuch as the
Convention did not qualify it.
When this communication was sent to the Government of Costa Rica on
June 1, 1984, the latter replied on August 20 of that year, acknowledging
the court actions alleged by the petitioner and explaining the history of
criminal procedure in the country. It
stated that an appeal in penal matters was based on the doctrine whereby
it is incompatible with the principles of oral testimony given in the
presence of judge and accused, where the evidence can be weighed.
In that regard it cited Binding, who said
that to allow a superior court or superior bench to review (on appeal) the
sentence based on the court record would be to allow the less informed
judge's opinion to take precedence over that of the more informed judge.
It said that it would be impossible to recreate all of the
evidence, unaltered. It
pointed out that based on Articles 474, 475 and 476 of the Code of
Criminal Procedure, the severity of the sentence handed down in the final
verdict was the only criterion used when such verdicts were appealed.
It also maintained that even though Article 7 of the Political Constitution of Costa Rica states that public treaties do have higher authority than the national laws, in other words, that they are self-executing, this is not true in the case of procedural rules which require enactment of domestic legislation to
be applied directly by the courts of the land. It invited the Inter-American Commission to make any recommendations in this regard.
6. In a note dated November 6, 1984, in response to the Government's observations, the petitioner reasserted the arguments made in the original presentation. After seeing the petitioner's response, on February 12, 1985, the Government stated that it had no further observations.
7. On April 18, 1985, at its 67th session, the Commission adopted Decision 26/86. There, it recounts the case and finds that the petition is admissible inasmuch as the remedies under domestic law have been exhausted and that a court ruling has in fact denied any possibility of a review of the conviction. As for the merits of the case, the Commission was of the view that this was even more delicate, since it was not just a matter of a minor offense but rather of a criminal conviction.
8. Under Article 50 of the Convention, and bearing in mind the Government's cooperative attitude, the Commission made recommendations apropos the general efficacy of Article 8.2.h. It noted that the States Parties to the Convention are obliged to adopt domestic measures to guarantee the right embodied therein, and pointed to the fact that the Costa Rican Constitution makes international treaties preeminent. It further noted that from the text of certain provisions of the Convention it is evident that they are self-executing within the domestic legal system of the States Parties. However, the Commission was of the view that the provision contained in Article 8.2.h was not self-executing prima facie and that a domestic law was required, which the Government of Costa Rica had not enacted.
9. It declared that there was a violation and recommended to the Government that within six months, and in accordance with its constitutional procedures, it take the necessary measures to give full effect to the judicial guarantee recognized in Article 8.2.h., thereby complying with Article 2 of the Convention. The Commission resolved that if Costa Rica failed to adopt such measures within that time period, it would refer the case to the Inter-American Court, unless the State itself should submit the case first.
10. Once that time period had elapsed, at the Commission's request, on October 26, 1986, the Government reported that the adoption of these measures involved intricate coordination so that it had set up a special commission of magistrates and specialized public servants who were preparing a bill to be submitted to the Legislative Assembly. It requested a six-month extension, which the Commission agreed to.
On April 20, 1987, the Government presented to the Commission a bill on this subject that was being presented to the Legislative Assembly and to the Supreme Court for its opinion. On June 11 of that year it reported that the Commission's recommendations had been taken up by the Supreme Court of Justice.
11. Since that first communication received on April 17, 1984, in the case of Mr. Noe Villalobos, the Commission has received communications or complaints that allege the very same problem raised in Case 9328 (Noe Villalobos) and the fact that if the sentences handed down in criminal convictions are less than a certain amount, they cannot be appealed, which is incompatible with the guarantee recognized in Article 8.2.h of the American Convention. The following paragraphs describe those cases with the Commission that concern the same problem.
12. CASE 9329. Oliver Ugalde Miranda
The petition was filed on May 10, 1984, alleging violation of Article 8.2.h of the Convention in that the petitioner, under the provisions of Article 474 of the Code of Criminal Procedure of Costa Rica, was unable to file an appeal against a criminal conviction sentencing the petitioner to six months in prison for petty theft. The Government gave the same reply that it gave in the case of Noe Villalobos. For his part, the petitioner did not reply to the Commission's note whereby it conveyed to the petitioner the Government's communication.
13. CASE 9742. Mireya Castillo Espinoza
The petition was filed on April 28, 1986, alleging the same violation as in the previous cases, which in this case was a refusal to allow an appeal against a sentence of six months in prison for an alleged breaking and entering of a house . The Government's reply, dated June 4, 1986, was the same as it had been in the previous cases. As it had done in the other cases, the Commission advised the petitioner of the imminent legislative amendment. The petitioner's reply was that because she was Nicaraguan, she would be unable to obtain her accountant's license because her record was stained by this court conviction. This prevented her from entering and leaving the country freely. As for the bill, the petitioner stated that it did not specify clearly that the remedy could be invoked in the case of convictions that occurred prior to the law's enactment, such as her own. She also said that the bill was a very low priority on the legislative agenda.
14. CASE 9884. Niels Claus Zúñiga
On January 22, 1987, the petitioner complained that under Article 474, paragraph 2, of the Code of Criminal Procedure, the sentence he received, i.e. "fifty days fine-imprisonment and a criminal conviction on his file," could not be appealed, which was a violation of the Commission's decision. On June 24, 1987, the Government of Costa Rica replied as it had in the previous cases, which when sent to the petitioner, drew no reply.
15. CASE 10.131. Roberto Araya Falcón
The petitioner filed a complaint on October 19, 1987, alleging a violation of the Convention because his appeal to overturn the Superior Court's sentence of one year and six months in prison for petty theft had been denied. The Costa Rican Government's reply to this case was the same as it had been in the previous cases, and it requested an extension of the deadline to give it time to correct the problem through legislative means, by amending the appeals system under the Code of Criminal Procedure. The Commission agreed to its request.
16. CASE 10.193. Juan José Odio Páez
On May 15, 1988, a complaint was sent to the Commission alleging the same violation alleged in the previous cases, when no appeal was permitted to challenge the ruling that sentenced Mr. Odio Páez to five years' imprisonment for perjury. The processing of this case was similar to that of case 10,131, described above.
17. CASE 10.230. Ram Rajpal
On September 14, 1988, a complaint similar to the earlier complaints was received, this one involving a Mr. Ram Rajpal, who was unable to appeal a sentence to 18 months imprisonment in the trial wherein he was convicted of misrepresentation. Since Mr. Rajpal is an alien, under domestic law his conviction meant that he could be expelled from the country; hence, the fact that he was unable to appeal posed an even greater threat in his case. The processing of this case was similar to the other cases.
18. CASE 10.429. Olga Sauma Uribe
On July 10, 1989, a complaint was filed alleging the same violation of the Convention that was alleged in the earlier cases, inasmuch as Mrs. Sauma Uribe was unable to appeal the sentence of ten months in prison and cancellation of her driver's license as a result of a traffic accident in which she was involved. The processing of this case was similar to that of the other cases.
19. CASE 10.469. Marco Tulio Naranjo Carvajal
On August 21, 1989, the same violation was denounced, where the individual in question was unable to file an appeal against a sentence of 30 days and a fine, for having threatened someone. The processing of this case was similar to the other cases.
20. On May 16, 1990, the Government of Costa Rica informed the Commission of new and relevant developments in connection with these cases. The Constitutional Chamber of the Supreme Court of Justice had been created by virtue of new Articles 10, 48, 105 and 138 of the Constitution and the 1989 Law on Constitutional Jurisdiction No. 7135. By virtue of its competence under that law, the Constitutional Chamber handed down Judgment 282-90 whereby it admits a petition of habeas corpus and orders the release of an individual who had been convicted but had not had an opportunity to file an appeal of his conviction, a right that is his, inasmuch as the corresponding provision of the Convention is clear and unqualified. Because of its origin, constitutionally this judgment is "erga omnes," in other words, it protects all those who are now or may one day be denied the right that it recognizes.
21. In that ruling, the Constitutional Chamber of the Supreme Court, after confirming the specifics of the case in question, found that the new law on Constitutional Jurisdiction empowers the interested parties to file legal actions claiming the unconstitutionality of domestic legal provisions that are contrary to an international treaty. The foregoing notwithstanding, it stated that:
In that ruling the Constitutional Chamber of the Supreme Court went on to say that where appropriate, the remedy of habeas corpus or the remedy of amparo can be used as a test for constitutionality, whether in judicial actions or judicial or legislative inquiries.
22. The ruling states that the right recognized in Article 8.2.h of the Convention is absolute, because the Convention does not qualify it in any way. In other words, the Convention does not make it subordinate to any domestic laws that may be created. The right is recognized in cases wherein domestic law establishes the institutional and procedural structure (organs and remedies) for the right to be exercised; if those organs and remedies do not exist, they should be created.
In the case in point, the Court found that Costa Rican law provides for that remedy, inasmuch as Article 474, paragraphs 1 and 2, in general permits an appeal against criminal convictions. Hence, to observe the guarantee recognized in the American Convention, it is sufficient
Since there was a standing order to incarcerate those who had filed the appeal and since some of them are actually serving their sentence, even though there was no constitutional basis for the sentence because they had been denied their right to appeal, the Court granted the petition of habeas corpus and ordered their release until
23. Based on the foregoing, on May 14, 1990, the Government requested that under Article 48.1.c of the Convention, the Commission declare these cases to be either inadmissible or without merit. It argued that an opportunity for appeal that had not previously existed had been created and that the Commission's recommendations had been favorably resolved by declaring the legal provisions that were contrary to the American Convention on Human Rights to be null and void. It added that this being a judgment erga omnes, subsequent cases would be favorably resolved. The Government also sent information on other rulings (among them 528-90) wherein this decision had been applied to the court decisions that, though not strictly penal in nature, had the same effect, thereby opening up an opportunity to appeal those rulings as well.
24. Later, as a result of the Government's note of May 14, 1990, reporting the availability of remedies by which to appeal those cases, in a note dated May 22, 1990, the Government's communication was forwarded to the petitioners, asking that they kindly report whether this corrected the violation denounced.
25. In a communication dated February 21, 1991, repeated again on July 1, 1991, Mr. Ram Rajpal, the petitioner in case 10,230, presented copies of the petitions of habeas corpus that he had filed with the Supreme Court on May 9, 1990, and the appeal that he had filed with the Third Superior Court on September 24, 1990. Those appeals were denied by those courts, the first because Mr. Rajpal was on probation and hence his right to freedom was not in jeopardy (Decision 528-90 of May 18, 1990).
As for the appeal to overturn the conviction, it was filed with the Third Criminal Superior Court on September 24, 1990, and denied because it was filed extemporaneously. Examining that decision, one finds that the tribunal considered that Mr. Rajpal's case was not one of those covered by the ruling that he invoked (Ruling 719-90), since his appeal concerned a lower court ruling and the ruling that he invoked as a precedent concerned another type of proceeding, covered by different articles of the Code of Criminal Procedure. Mr. Rajpal appealed that decision with a petition of habeas corpus filed on November 21, 1990, with the Supreme Court. The Constitutional Chamber upheld the ruling on the same grounds.
26. That as the Costa Rican Government's communication and the decision by the Constitutional Chamber of the Supreme Court of Justice of that country acknowledge, Article 474, inter alia, of the Code of Criminal Procedure did not allow observance of the right that everyone has to turn to a higher court to appeal a ruling handed down against said person (Article 8.2.h of the American Convention on Human Rights).
27. That even though, in an effort to comply with the Commission's resolution 26/86, the Executive Power sent to Congress a bill to amend the Code of Criminal Procedure and whose "primary purpose was to adapt the criminal appeals system to the provisions of the Convention," the bill was not passed by the Costa Rican Legislative Assembly.
28. That at no time has it been alleged that the situations described in the petitions were pending in a procedure before some other international organ.
29. That as is obvious from the content of the Supreme Court's decisions and by virtue thereof, the Costa Rican legal system created an opportunity to appeal cases such as the ones denounced, so that the friendly settlement procedure provided for in Article 48 of the Convention, is unnecessary. This was the effect when the ruling acknowledged the constitutional hierarchy of the respective provision of the American Convention and accorded it erga omnes legal effect when it decided "to declare the limitations in question (Article 474 of the Code of Criminal Procedure) to be null and void and that persons convicted to any sentence handed down in a criminal proceeding shall be entitled to appeal" (Judgment 282-90, point VI).
30. That the remedy of appeal is a legal institution and, inasmuch as it permits a higher court to review a lower court ruling and all important case files, including legality of the evidence, it is, in principle, an effective means to exercise the right recognized in Article 8.2.h of the Convention. Accordingly, the Commission cites the Constitutional Chamber's ruling in Judgment 528-90 where it states that: "the remedy of appeal satisfies Convention requirements in that it is not regulated, interpreted or applied with formalistic rigor, but allows the Court of Appeal to examine, fairly and simply, the overall validity of the challenged decision, as well as observance of the fundamental rights of the accused, especially the right to defend oneself and to due process of law."
31. That as is evident in other judgments supplied by the Costa Rican Government, such as Judgment 528-90 concerning penalties for a failure to pay child support, the Constitutional Chamber has expanded the scope of its decision to include other categories of court decisions that, though not penal in nature, have the same effect, and has allowed such decisions to be appealed as well.
32. That with respect to the earlier cases, the judgment allowed the possibility of reopening the case during the established legal period, which began with publication of the erga omnes ruling, a period during which the petitioners could exercise that right. That when each one of the petitioners was asked, not one provided any information to show that it had attempted to exercise that right or that its appeal had been denied for lack of merit.
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
1. That the petitions that gave rise to the cases under examination, concerning the alleged failure to observe Article 8.2.h of the Convention because of the impediments established in Articles 474, 475 and 476 of the Code of Criminal Procedure of Costa Rica, though they may have been admissible at the time they were filed, are now without merit because of decisions handed down by the Constitutional Chamber of the Supreme Court, concerning the subject of the suit in the instant cases.
2. That the decision in ruling 282-90 and similar rulings of the recently created Constitutional Chamber of the Supreme Court of Justice effectively established in that country the legal guarantees necessary for observance of the right recognized in Article 8.2.h of the Convention, by recognizing the constitutional preeminence of the American Convention on Human Rights over that code, and declaring, ergo omnes, the unconstitutionality of those limitations, thereby following the recommendations that the Inter-American Commission on Human Rights had made in its Report 26/86.
3. That the petitioners in the instant cases had an opportunity to avail themselves of that remedy, by virtue of the aforementioned rulings, and those appeals filed, which the Commission had an opportunity to consider, were heard and decided by the Supreme Court.
4. That this report, therefore, be published in the next Annual Report of the Inter-American Commission on Human Rights.