D.      Status of compliance with the recommendations of the IACHR

103.        Complete compliance with the decisions of the Inter-American Commission is essential for ensuring that human rights have full force in the OAS member states, and for helping strengthen the Inter-American system for the protection of human rights. With that in mind, the IACHR, in this section, analyzes the status of compliance with the recommendations in the reports adopted by the Commission in the last two years.

104.        To that end, the OAS General Assembly, through resolution AG/RES. 1890  (XXXII-O/02) on Evaluation of the Workings of the Inter-American System for the Protection and Promotion of Human Rights with a View to its Improvement and Strengthening, urged the member states to make their best efforts to follow up on the recommendations of the Inter-American Commission on Human Rights (operative paragraph 3.c), and to continue to take appropriate action in connection with the annual reports of the Court and the Commission, in the framework of the Permanent Council and the General Assembly of the Organization, and to study possible means to address the state of compliance with the judgments of the Court and the observance of the recommendations of the Commission  by the member states of the Organization (operative paragraph 3.d).

105.        Both the Convention (Article 41) and the Statute of the Commission (Article 18) explicitly grant the IACHR the authority to request information from the member states and to produce such reports and recommendations as it considers advisable. Specifically, Article 46 of the IACHR Rules of Procedure, which took effect on May 1, 2001, provides the following:

1.         Once the Commission has published a report on a friendly settlement or on the merits in which it has made recommendations, it may adopt the follow-up measures it deems appropriate, such as requesting information from the parties and holding hearings in order to verify compliance with friendly settlement agreements and its recommendations.

2.         The Commission shall report on progress in complying with those agreements and recommendations as it deems appropriate.

106.        Similarly, the General Assembly approved resolution AG/RES. 1894 (XXXII-O/02), Observations and Recommendations on the Annual Report of the Inter-American Commission on Human Rights, invited the Inter-American Commission on Human Rights to consider the possibility of continuing to include in its annual reports information on the follow-up of its recommendations by the states, and to review, with a view to their improvement, the criteria and indicators on that subject in the report for this year.

107.        In compliance with its powers under the Convention and the Statute and with the above-cited resolutions, and pursuant to Article 46 of its Rules of Procedure, the IACHR requested information from the states on compliance with the recommendations made in the reports published on individual cases included in its annual reports for 2000 and 2001. The Commission also decided to include on its web page (www.cidh.org) a copy of the responses from the member states in cases where they expressly requested that this be done.

108.        The table the Commission is presenting includes the status of compliance with the recommendations made by the IACHR in the cases that have been decided and published in the last two years. The IACHR notes that compliance with different recommendations is meant to be successive and not immediate and that some recommendations require a reasonable time to be fully implemented. The table, therefore, presents the current status of compliance, which the Commission acknowledges as being a dynamic process that may evolve continuously. From that perspective, the Commission evaluates whether or not compliance with its recommendations is complete and not whether it has been started. In this section, the IACHR has tried to assemble the comments made by the representatives of different member states upon presentation of the Annual Report for 2001.

109.        The three categories included in the table are the following:

-       total compliance (those cases in which the state has fully complied with all the recommendations made by the IACHR. Having regard to the principles of effectiveness and fully observed those recommendations where the state has begun and satisfactorily completed the procedures for compliance);

-        partial compliance (those cases in which the state has partially observed the recommendations made by the IACHR either by having complied with only one or some of them or through incomplete compliance with all of them);

-        compliance pending (those cases in which the IACHR considers that there has been no compliance with the recommendations because no steps have been taken in that direction; because the state has explicitly indicated that it will not comply with the recommendations made; or because the state has not reported to the IACHR and the Commission has no information from other sources that would suggest otherwise).

Case 11.307 – Report Nº 103/01, María Merciadri de Morini (Argentina)

110.        Report Nº 103/01 was approved by the Commission on October 11, 2001 to report on the friendly settlement reached with respect to a petition challenging the application of Law 24.012 (the “Quota Act”) and its implementing decree, which concerned the placement of women candidates on the ballot.  In its report, the Commission concluded that the information analyzed demonstrated that the matter had been settled in accordance with respect for the principles of the American Convention.  That information included the text of Decree Nº 1246, issued to remedy the problem complained of and ensure the efficacy of Law 24.012, and the terms of the friendly settlement agreement signed by the parties in the presence of the Executive Secretary of the Commission, indicating that both parties considered the matter to have been fully resolved through the enactment of Decree Nº 1246.  The Commission recognized the important efforts of both parties to work toward the free and full participation of women in public life, a priority for our hemisphere, and indicated its satisfaction with the settlement.

Cases 12.067, 12.068 and 12.086 – Report Nº 48/01, Michael Edwards, Omar Hall, Brian Schroeter and Jeronimo Bowleg (Bahamas)

111.        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 issentenced 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.

112.        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 informed 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 informed 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 informed 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 informed 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.

Case 12.051 - Report Nº 54/01, Maria da Penha Maia Fernandes (Brazil)

113.        In Report Nº 54/01 of April 16, 2001, the IACHR made 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.

114.        The Brazilian State reported to the Commission, at a working meeting held during the 116th regular session, on the ongoing trial of the perpetrator of the assault and attempted homicide referred to in recommendation 1 above. The Commission was then informed that the judgment had been executed and the perpetrator had received a prison sentence. The other recommendations are still pending full compliance.

Cases 11.286 and others - Report Nº 55/01, Aluísio Cavalcanti et al. (Brazil)

115.        In Report Nº 55/01 of April 16, 2001, the IACHR made the following recommendations to the Brazilian State:

1.         That it carry out a serious, impartial, and effective investigation into the facts and circumstances of the deaths of Aluísio Cavalcanti, Clarival Xavier Coutrim, Delton Gomes da Mota, Marcos de Assis Ruben, and Wanderlei Galati, and of the assaults on and attempted homicides of Cláudio Aparecido de Moraes, Celso Bonfim de Lima, Marcos Almeida Ferreira, and Carlos Eduardo Gomes Ribeiro, and that it duly prosecute and punish the persons responsible.

2.         That such investigation include the possible omissions, negligence, and obstructions of justice that may have resulted from the failure to convict the persons responsible in a final judgment, including the possible negligence and mistakes of the Public Prosecutor’s Office and of the members of the judiciary who may have decided to waive or reduce the corresponding sentences.

3.         That the necessary measures be taken to conclude, as soon as possible and in the most absolute legality, the judicial and administrative proceedings regarding the persons involved in the above-noted violations.

4.         That the Brazilian State makes reparation for the consequences of the violations of the rights of the victims and their families or those who hold the right for the harm suffered, described in this report.

5.         That the necessary measures be taken to abolish the jurisdiction of the military justice system over criminal offenses committed by police against civilians, as proposed by the original bill, introduced in due course, to repeal Article 9(f) of the Military Criminal Code, and to approve, to take its place, the single paragraph proposed in that bill 27.

6.         That the Brazilian State take measures to establish a system of external and internal supervision of the military police of São Paulo that is independent, impartial, and effective.

7.         That the Brazilian State present the Commission, within 60 days of transmittal of this report, a report on compliance with the recommendations, for the purpose of applying the provision at Article 51(1) of the American Convention.

116.        The Brazilian State submitted no information on compliance with the recommendations of the IACHR transcribed above. Furthermore, the Commission has no information from other sources on compliance with the recommendations and therefore presumes that the State is noncompliant. The IACHR has also been informed that the military justice system continues to have jurisdiction in matters such as the one at hand, therefore compliance with its recommendation remains pending.

Case 11.771 - Report Nº 61/01, Samuel Alfonso Catalán Lincoleo (Chile)

117.        On April 16, 2001, the IACHR made the following recommendations to the Chilean State:

1.         Establish responsibility for the murder of Samuel Alfonso Catalán Lincoleo by due process of law, so that the guilty may be duly punished.

2.         Adapt its domestic legislation to the provisions of the American Convention, in such a way as to leave Decree-Law N° 2191 of 1978 without effect.

3.         To take the steps necessary for the members of the victim’s family to receive adequate and timely compensation, including full reparations for the human rights violations described herein as well as payment of fair compensation for physical and nonphysical damages, including moral damages.

118.        The State of Chile presented information regarding compliance with the recommendations of the IACHR transcribed above.  With respect to recommendation 1, the State claimed that an open investigation existed to clarify the death of Mr. Catalán Lincoleo and that it was at the prosecutorial stage.  With respect to recommendation 2, he State reiterated its arguments concerning the impossibility of derogating Decree Law 2.191 of 1978.  Finally, concerning recommendation 3, the State indicated that the famiy of Samuel Catalán in reality are receiving state pensions and scholarships and have received necessary health assistance as stipulated by law 19.123, compensation that the Commission pronounced in its merits report in the presente case.  The State also claimed that the family, unlike others, had not tried to receive additional compensation by way of a civil action.

119.        On the other hand, the Commission received information from the petitioner indicating that the State had not complied with any of the three recommendations made by the Commission. 

Case 11.654 - Report Nº 62/01, Río Frío Massacre (Colombia)

120.        On April 6, 2001 the IACHR issued Report Nº 62/01 on Case 11.654 concerning the Rio Frío massacre. At that time, the Commission made three recommendations. Its first recommendation was to “conduct an impartial and effective investigation in ordinary jurisdiction with a view to prosecuting and punishing those materially and intellectually responsible for the massacre.”  In that regard, the State (Note DDH 47170 from the Department of Human Rights and International Humanitarian Law of the Ministry of Foreign Affairs, dated December 16, 2002) reiterated that the military justice system had passed final judgment in the matter and that it was “standard domestic procedure” to submit the case to that jurisdiction. It also noted that there was a special appeal pending before the Supreme Court of final instance, which had been filed by the petitioners, in which they allege that the Superior Council of the Judiciary had disregarded the scope of the decision by the Constitutional Court of August 5, 1997 when it referred to case to military criminal jurisdiction. It must be concluded, therefore, that no progress has been made in compliance with this recommendation as no investigation has been carried out within ordinary jurisdiction.

121.        Secondly, the IACHR recommended that the State “take such steps as are necessary to ensure that the families of the victims are duly compensated.” The State reported that the Committee of Ministers had taken a decision on May 3, 2002 in favor of providing the corresponding compensation to the families of the victims under Law 288/96.  However, neither the amount nor the payment of the corresponding compensation has been determined, resulting in no actual compliance with this recommendation, since the families of the victims have received no compensation.

122.        The third recommendation was to “take the necessary steps to prevent any future occurrence of similar events in accordance with its duty to prevent and to guarantee the basic rights recognized in the American Convention as well as the necessary measures to give full force and effect to the doctrine developed by the Constitutional Court of Colombia and by the Inter-American Commission on Human Rights in investigating and prosecuting similar cases through the ordinary criminal justice system.”  In that connection, the State presented information on past legislative reforms, objectives, training programs, and strategies. The measures cited have been and will continue to be evaluated in the general reports of the IACHR and by the Commission as it exercises the various functions it must perform under the Convention and its statutes.

Case 11.710 - Report Nº 63/01, Carlos Manuel Prada González and Evelio Antonio Bolaño Castro (Colombia)

123.        On April 6, 2001, the IACHR issued Report Nº 63/01 on Case 11.710 concerning the extrajudicial execution of Carlos Manuel Prada González and Evelio Antonio Bolaño Castro, and made three recommendations. Its first recommendation was to “carry out a full, impartial, and effective investigation within the ordinary jurisdiction with a view to judging and punishing those responsible for the extrajudicial execution of Carlos Manuel Prada and Evelio Antonio Bolaño Castro.” The State (Note DDH 47160 from the Department of Human Rights and International Humanitarian Law of the Ministry of Foreign Affairs, dated December 16, 2002) indicated that, in light of the decision of the court of second instance of military criminal justice, which absolved the state officers involved in the facts of the case, the rules of domestic law would prevent the trial of a new case in the ordinary courts. It can therefore be concluded that there has been no progress toward compliance with this recommendation as no investigation in ordinary jurisdiction has taken place.

124.        The IACHR’s second recommendation was to “adopt the measures necessary to ensure that the victims’ next-of-kin receive adequate and timely reparations for the violations determined in the Report.” The State reported that the Committee of Ministers had decided on May 3, 2002 in favor of offering the corresponding compensation to the families of the victims under Law 288/96.  However, neither the amount nor the payment of the corresponding compensation has been determined; therefore there has been no effective compliance with this recommendation.

125.        The third recommendation was to “adopt measures necessary to fully apply the case law developed by the Colombian Constitutional Court and by this Commission with respect to the investigation and adjudication of similar cases in the ordinary criminal justice system.” In that connection, the State presented information on past legislative reforms, objectives, training programs, and strategies. The measures cited have been and will continue to be evaluated in the general reports of the IACHR and by the Commission as it exercises its various functions under the Convention and its statutes.  

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