Annual Report 2005 - Chapter III

2. Contentious cases

428. Article 51.1 of the American Convention provides that within three months from the date of the Commission’s approval of its report on the merits, it must either refer the case to the Court or publish the corresponding report. Articles 61 of the Convention, 44 of the Commission’s Rules of Procedure and 32 of the Court’s Rules of Procedure also make reference to this authority.

429. The following is a summary of the cases still before the Court, listed by country.

a. Argentina

Bulacio Case

430. In 2005, the Commission filed its periodic comments regarding compliance with the Court’s Judgment on Reparations.

431. The Court’s most recent compliance-related order in the Bulacio Case is from November 17, 2004. In the Order, the Court declares that State has not yet complied with its duty to

a. investigate the facts in the case and punish those responsible;

b. adopt the legislative and other measures necessary to adapt the domestic legal system to conform to international human rights norms and to fully implement and enforce those measures as a guarantee against recurrence of facts such as those in this case.

432. On 15 June 2005, the Commission presented its observations on compliance, in which it stated that, even if it has previously acknowledged the efforts deployed by the Argentinean State to comply with the Judgement of the Court, it observes with concern the lack of meaningful progress in the compliance with the measures of satisfaction and the guarantees of non repetition ordered therein. The Commission is of the opinion that the Argentinean State has not yet satisfied its obligations to investigate the facts of the case, identify and sanction those responsible, and to adopt measures of legislative and other nature necessary to avoid the repetition of similar acts in the future.

433. The resolution of the Court on this subject-matter is pending.

Cantos Case

434. In 2005, the Commission filed its periodic comments regarding compliance with the Court’s judgment in the matter of reparations in the Cantos Case.

435. On November 28, 2005, the Court issued an order on the matter of compliance. The Court held that the State had not yet complied with its obligations to

a.     “... refrain from charging Mr. José Maria Cantos the filing fee and the fine levied for failure to pay the filing fee on time” (operative paragraph one of the Judgment of November 28, 2002);

b.     “... set the regulated fees in Argentine Supreme Court case C-1099, as stipulated in paragraphs 70.b and 74” [of the Judgment] (operative paragraph two of the Judgment of November 28, 2002);

c.     “... pay the fees and expenses of all experts and attorneys engaged by the State and the Province of Santiago del Estero, under the conditions set forth in the preceding point” (operative paragraph three of the Judgment of November 28, 2002); and

d.     “... lift the attachments, general property encumbrances and other measures that were ordered against the properties and business assets of Mr. José Maria Cantos in order to guarantee payment of the court filing fee and the professional fees” (operative paragraph four of the Judgment of November 28, 2002).

436. On June 8, 2005, the Commission presented its observations on compliance in this case, mentioning its preoccupation with the lack of compliance on almost all the reparation measures ordered by the Tribunal. The Commission considers that the Argentine State has not fulfilled its obligation to abstain from charging judicial taxes to the victim; to establish a reasonable amount in fees for its own defenders and expert witnesses and to proceed to pay them. It has also not complied with lifting the restrictive measures that were dictated on the victim’s person and belongings to ensure that he paid the judicial tariffs and fines.

437. The resolution of the Court on this matter is pending.

Garrido and Baigorria Case

438. In 2005, the Commission submitted its periodic comments on compliance with the reparations ordered by the Court in its Judgment.

439. The Court’s most recent order on compliance is dated November 17, 2004 and lists the following as the obligations that the State has not yet complied with:

a.      to search for and identify Mr. Raúl Baigorria’s two natural children, by every means possible, and to pay them the compensation they are owed as reparations;

b.      to investigate the facts leading to the disappearance of Mr. Adolfo Garrido and Mr. Raúl Baigorria and to prosecute and punish their authors, accomplices and accessories after the fact and all those who may have had a part in the events, and

c.       to locate the victims’ mortal remains and hand them over to their next of kin.

440. On 27 September 2005, the Commission presented to the Court is observations on compliance, through which it registered its concern because of the lack of meaningful progress in the compliance of the pending aspects of the Court’s ruling of 27 November 2003. The Commission considers that the Argentinean State has not yet satisfied its obligations to investigate the facts of the instant Case, identify and sanction those responsible, and that the search for the children of Raul Baigorria has not been carried out diligently.

441. The resolution of the Court on this matter is pending.

b. Bolivia

Trujillo Oroza Case

442. In 2005, the Commission submitted its periodic comments on the State’s compliance with the Court’s judgment in the matter of reparations.

443. In this case, the Court’s most recent order on the subject of compliance is dated September 12, 2005. In that order, the Court finds that the State has not yet complied with its obligations to

a.      “... take all necessary measures to locate the mortal remains of the victim and deliver them to his next of kin, so that they can bury them appropriately”;

b.      “... define the forced disappearance of persons as an offence in its domestic legislation”; and

c.      “... investigate, identify and punish those responsible for the harmful facts that are the subject of the instant case...”

c. Brazil

Ximenes Lopes Case

444. On October 1, 2004, the Commission submitted an application with the Court in a case against the Federative Republic of Brazil, Case N° 12,237, Damião Ximenes Lopes. The case alleged the following: the inhumane and degrading conditions of the hospitalization of Mr. Damião Ximenes Lopes – a person with mental disabilities- at a health facility called the Casa de Repouso Guararapes, run under Brazil’s Single Health System; the beatings and attacks on his physical and mental integrity inflicted by staff of the facility; his death while undergoing psychiatric treatment there; and the failure to conduct an investigation and to ensure a fair trial in this case, as a result of which the violations continue to go unpunished.

445. After hearing the parties’ arguments concerning the preliminary objection filed to assert a failure to exhaust domestic remedies and the request that a judgment on this matter be delivered, the Court issued Judgement on Preliminary Objections on November 30, 2005, dismissing the preliminary objection entered.

446. In that Judgment, the Court decided to continue to hold the public hearings and other proceedings on the merits and any reparations and costs that might eventually be ordered in the case. The full text of the judgment is available at the following link: http://www.corteidh.or.cr/seriec/index_c.html.

447. Responding to the Court’s decision, the Commission introduced witnesses and experts and gave its final arguments on the merits and reparations in this case in public hearings held for that purpose. It later filed its final written arguments on the instant case.

448. The judgment on the merits in this case is pending.

Nogueira de Carvalho Case

449. On January 13, 2005, the Commission filed an application with the Court in case 12,058, Nogueira de Carvalho v. the Brazilian State, asserting that the State’s international responsibility was engaged by actions and omissions in the investigation into the murder of Francisco Gilson Nogueira de Carvalho, a human rights defender, and by the State’s failure to make adequate reparation to his mother and father, Mrs. Jaurídice Nogueira de Carvalho and Mr. Geraldo Cruz de Carvalho.

450. On November 30, 2005, the Court summoned the parties in the case to a public hearing that will be held at the seat of the Court on February 8, 2006.

d. Colombia

Case of the 19 Merchants (Álvaro Lobo Pacheco et al.)

451. On September 30, 2005, the Commission submitted its comments on the State’s report on the matter of compliance with the Court’s judgment on the subject of reparations (the full text of the judgment is available at the following link: http://www.corteidh.or.cr/seriec/index_c.html). There, the Commission expressed concern over the degree of compliance with the Court’s judgment in the instant case. Of the obligations ordered by the Court, concrete steps have been taken to ensure compliance with only two. The Commission therefore asked the Court to order the State to immediately comply with its obligations.

452. The Court’s order on the matter is pending.

Caballero Delgado and Santana Case

453. During the course of 2005, the Commission submitted its periodic comments on the State’s compliance with the Court’s judgment in the matter of reparations.

454. The Court’s most recent order on compliance is dated November 27, 2003, in which it finds that the State has not yet complied with the following obligations:

a.        pay to Mrs. Ana Vitelma Ortiz, mother of Maria del Carmen Santana, any and all interest accrued as a result of delinquency;

b.        transfer half the amount owed in reparations as shown on the U.S. dollar-denominated certificate of deposit and its accrued earnings as of its maturity date, to the account that will be opened in the name of Carolina Caballero Martínez, who is now a minor but who will by then be an adult;

c.        establish a new U.S. dollar-denominated certificate of deposit for a sum equal to half the reparations and proceeds from the certificate of deposit that matures on September 1, 2004, this one in the name of the representatives of the minor Iván Andrés Caballero Parra;

d.        investigate and punish those responsible for the victims’ disappearance and presumed deaths, and

e.         locate the victims’ remains and deliver them to their next of kin.

Las Palmeras Case

455. In 2005, the Commission submitted periodic comments on the State’s compliance with the reparations ordered by the Court.

456. The Court’s most recent order on the matter of compliance is dated November 17, 2004. There the Court determines that the State has not yet complied with its obligations to

a.        report the proceedings carried out to investigate the facts in the case and identify and punish those responsible (operative paragraph one of the Judgment of November 26, 2002);

b.         take all necessary steps to identify N.N./Moisés, within a reasonable period of time, as well as locate, exhume and deliver his remains to his next of kin, and pay them compensation as reparations for the facts in this case (operative paragraphs two and five of the Judgment of November 26, 2002); and

c.         pay the amount owed in relation to operative paragraphs 5, 6, 7, 8 and 9 of the Judgment of November 26, 2002.

La Granja and El Aro Case

457. On July 30, 2004, the Commission submitted an application to the Court in cases 12,050 (La Granja) and 12,266 (El Aro) against Colombia, for its responsibility in the events that occurred in June 1996 and starting in October 1997, respectively, in the Municipality of Ituango, Department of Antioquia, with regard to the violation of the right to life of 16 persons, the right to life and personal liberty of one person, the rights to life, to humane treatment, and to personal liberty of two persons, and the right to property of six persons, in addition to violations of its duty to ensure due protection and the right to a fair trial for all these persons and their next of kin, and the rights of the child in the applicable case, all of which are to be considered in conjunction with the provisions of Article 1.1 of the American Convention.

458. Subsequently, the State responded to the petition and the brief containing the representatives’ requests, arguments and evidence, and filed preliminary objections challenging the Court’s jurisdiction to hear the case. The Inter-American Commission submitted its observations on the matter, in which it rebutted the State’s arguments.

459. At a public hearing held by the Court on September 22 and 23, 2005, the Commission introduced the statements of the witnesses and the opinions of the experts, and made its arguments regarding the preliminary objections, merits, and reparations and costs in the case.

Mapiripán Massacre Case

460. On September 5, 2003, the Commission filed an application with the Court in case 12,250, Mapiripan Massacre v. Colombia, which involved violations of Articles 4 (right to life), 5 (right to humane treatment) and 7 (right to personal liberty) of the American Convention, to the detriment of the victims of the massacre perpetrated in Mapiripán. The Commission also asked the Court to determine whether the State had violated Articles 8.1 (judicial guarantees) and 25 (judicial protection) of the Convention, in relation to Article 1.1 thereof (the obligation to respect and ensure rights), to the detriment of the alleged victims of the massacre and their next of kin.

461. The Court heard the parties’ arguments on the preliminary objections at a public hearing held on March 7, 2005. That same day, the State withdrew one of its preliminary objections and accepted some of the facts as reported by the Commission. The Court issued a judgment wherein it

a. accepted, for all effects, the State’s withdrawal of its first preliminary objection, which concerned “improper application of Articles 50 and 51 of the American Convention”;

b. accepted, for all effects, the State’s acknowledgment of its international responsibility, in the terms of paragraphs 29 and 30 of the Judgment;

c. dismissed the second preliminary objection concerning exhaustion of domestic remedies and decided to pursue its proceedings in the case, and

d. decided to continue the public hearing, as well as the other proceedings on the merits, costs and reparations in the case.

462. The Court delivered its judgment on the merits of the case on September 15, 2005. There, it declared that the State had violated the right to life (Article 4.1), the right to humane treatment (Article 5.1 and 5.2) and the right to personal liberty (Article 5.1 and 5.2), embodied in the American Convention, in relation to Article 1.1 thereof, to the detriment of the victims in this case; the Court also ruled that the State had violated the right to humane treatment recognized in Article 5.1 and 5.2 of the Convention in the case of the victims’ next of kin, also in relation to Article 1.1 thereof. In the case of the victims who were minors, the Court held that the State had violated the rights of the child accorded to them under Article 19 of the American Convention on Human Rights, in relation to Articles 4.1, 5.1 and 1.1 thereof.

463. The Court also held that the State had violated the rights of the child recognized in Article 19 of the American Convention, in relation to Articles 4.1, 22.1 and 1.1 thereof, to the detriment of the displaced children of Mapiripán; it held further that the State had violated the right to freedom of movement and residence recognized in Article 22.1 of the Convention, to the detriment of Mariela Contreras Cruz, Rusbel Asdrúbal Martínez Contreras, Maryuri and Gustavo Caicedo Contreras, Zuli Herrera Contreras, Nory Giraldo de Jaramillo, Carmen Johanna Jaramillo Giraldo, Marina Sanmiguel Duarte, Nadia Mariana Valencia Sanmiguel, Yinda Adriana Valencia Sanmiguel, Johanna Marina Valencia Sanmiguel, Roland Andrés Valencia Sanmiguel and Ronald Mayiber Valencia Sanmiguel, Teresa López de Pinzón and Luz Mery Pinzón López.

464. Lastly, the Court held that the State had violated the rights to a hearing with due guarantees and to judicial protection, recognized in Articles 8.1 and 25 of the Convention, in relation to Article 1.1 thereof, to the detriment of the victims’ next of kin.

465. In that judgment, the Court set out the reparations that it deemed pertinent. The complete text of the judgment can be viewed at the following link: http://www.corteidh.or.cr/seriec/index_c.html.

"Pueblo Bello" (José Álvarez Blanco et al.) Case

466. On March 23, 2004, the Commission submitted an application to the Court in case 11,748, against the Republic of Colombia, for the torture and forced disappearance of 37 persons and for the torture and extrajudicial execution of six more persons. The events in this case occurred in January 1990 and were alleged to be the work of paramilitary groups, acting with the acquiescence of agents of the State in the Colombian departments of Antioquia and Córdoba. Subsequently, the State submitted its answer to the application and to the written brief containing the representatives’ pleadings, arguments and evidence; it also enclosed a document setting out its preliminary objections challenging the Court’s jurisdiction to hear the matter. The Inter-American Commission submitted additional written pleadings in which it dismissed Colombia’s arguments.

467. At a public hearing the Court held on September 19 and 20, 2005, testimony was taken from the witnesses offered by the Commission, the representatives of the alleged victims’ next of kin and the State. The Court also heard their arguments on the preliminary objections and eventual merits, reparations and costs in this case.

468. The Court has not yet delivered its judgment in this case.

Wilson Gutiérrez Soler Case

469. On March 26, 2004, the Commission filed an application with the Inter-American Court in case 12,291, against the Republic of Colombia, for the unlawful detention of Wilson Gutiérrez Soler in Bogotá on August 24, 1994, his torture and cruel, inhuman and degrading treatment while in the custody of agents of the State, and violation of his rights to a fair trial and the complete impunity that persists with respect to these acts. The State submitted its answer to the application and to the brief containing the representatives’ pleadings, arguments and evidence. It also filed preliminary objections. The Commission then presented additional written pleadings where it refuted the State’s arguments.

470. The Court held a public hearing on March 10, 2005, and there heard the parties’ oral arguments. Once the State had withdrawn its preliminary objections and conceded some of the facts asserted by the Commission, the Court issued an order wherein it accepted the State’s withdrawal of all its preliminary objections and the State’s acknowledgment of its international responsibility. It further decided to go ahead with the public hearing convened by an Order of the President dated February 1, 2005, and to confine the purpose of the hearing to reparations and costs in the case.

471. On September 12, 2005, the Court delivered its judgment on the merits of the case. There it declared that the State had violated the right recognized in Article 5.1 (right to humane treatment) of the Convention, in relation to Article 1.1 thereof (duty to respect and ensure rights), to the detriment of Wilson Gutiérrez Soler, Kevin Daniel Gutiérrez Niño, Maria Elena Soler de Gutiérrez, Álvaro Gutiérrez Hernández (deceased), Ricardo Gutiérrez Soler, Yaqueline Reyes, Luisa Fernanda Gutiérrez Reyes, Paula Camila Gutiérrez Reyes, Leonardo Gutiérrez Rubiano, Leydi Caterin Gutiérrez Peña, Sulma Tatiana Gutiérrez Rubiano, Ricardo Alberto Gutiérrez Rubiano and Carlos Andrés Gutiérrez Pubiano; the rights recognized in Article 5.2 and 5.4 (right to humane treatment) of the Convention, in relation to Article 1.1 thereof, to the detriment of Mr. Wilson Gutiérrez Soler; the rights recognized in Article 7.1, 7.2, 7.3, 7.4, 7.5 and 7.6 (right to personal liberty) of the American Convention, in relation to Article 1(1) thereof, to the detriment of Wilson Gutiérrez Soler; and the rights recognized in Articles 8.1, 8.2.d, 8.2.e, 8.2.g) and 8.3 (right to a fair trial) and 25 (right to judicial protection) of the American Convention, in relation to Article 1.1 thereof, to the detriment of Mr. Wilson Gutiérrez Soler.

472. The Court also found that the State had failed to abide by its obligations under Articles 1, 6 and 8 of the Inter-American Convention to Prevent and Punish Torture, to the detriment of Mr. Wilson Gutiérrez Soler.

473. In that judgment, the Court set forth the reparations that it deemed pertinent. The complete text of the judgment is available at the following link: http://www.corteidh.or.cr/seriec/index_c.html.

e. Chile

Almonacid Arellano Case

474. On July 11, 2005, the Commission filed an application with the Court in case 12,057, Luis Alfredo Almonacid Arellano. The case was brought against the Chilean State for its responsibility in failing to prosecute and punish those responsible for the extrajudicial execution of Mr. Alfredo Almonacid Arellano. The impunity was the result of the amnesty law that Chile adopted in 1978. The case was also brought because of Chile’s failure to make adequate reparations to the victim’s next of kin, Elvira Del Rosario Gómez Olivares, Alfredo Almonacid Gómez, José Luis Almonacid Gómez and Alexis Almonacid Gómez.

475. The summons to a public hearing in this case is still pending.

Claude Reyes et al. Case

476. On July 8, 2005, the Commission filed an application with the Court in case 12,108, Marcel Claude Reyes, Sebastián Cox Urrejola and Arturo Longton Guerrero. The case is against the Chilean State, alleging that its international responsibility has been engaged by its refusal to allow access to public information and its failure to provide a remedy through which to challenge the refusal.

477. The summons to the public hearing in this case is still pending.

Humberto Palamara Iribarne Case

478. On May 13, 2004, the Commission filed an application with the Court in case 11,571, Humberto Antonio Palamara Iribarne v. the Republic of Chile, for the State’s seizure of copies and the master of the book titled “Ética y Servicios de Inteligencia” [Ethics and Intelligence Services”], for having deleted the book from the hard drive of Mr. Palamara’s personal computer, for having banned the book’s publication and for having convicted Humberto Antonio Palamara of the crime of desacato [contempt, or insulting a public official]. On these grounds the Commission asked the Court to find that the State had violated Articles 13 (freedom of expression) and 21 (right to property) of the American Convention. The State submitted its answer to the application and to the brief containing the pleadings, arguments and evidence of the representatives. As of 2004 the case was in the intermediate phase of processing by the Court.

479. The public hearing on merits and possible reparations and costs was held in Asunción, Paraguay, on May 9, 2005. The Commission was present for the hearing.

480. On November 22, 2005, the Court delivered its judgment in the case. There, it found that by the events in this case, the Chilean State had violated the right to freedom of thought and expression, the right to private property, the right to a fair trial, the right to judicial protection, and the right to personal liberty, recognized in Articles 13, 21, 8, 25 and 7 of the American Convention, all in relation to Articles 1.1 and 2 thereof.

481. In that same judgment, the Court established the reparations it deemed appropriate. The full text of the judgment is available at the following link: http://www.corteidh.or.cr/seriec/index_c.html.

f. Costa Rica

Case of the "La Nación" Newspaper

482. In 2005, the Commission submitted its periodic comments regarding compliance with the reparations ordered by the Court in this case.

483. The Court’s most recent order on the matter of compliance is dated September 12, 2005. There, the Court found that the State had not yet complied with its obligations to:

a.        nullify the November 12, 1999 ruling of the First Circuit Criminal Court of San José, and all the measures it ordered, as established in paragraphs 195 and 204 of the Judgment delivered by the Inter-American Court of Human Rights (operative paragraph four of the July 2, 2004 Judgment);

b.        adjust its domestic legal system to conform to the provisions of Article 8.2.h of the American Convention on Human Rights, in relation to Article 2 thereof, as established in paragraph 198 of the Judgment (operative paragraph five of the July 2, 2004 Judgment);

c.         pay non-pecuniary damages to Mr. Mauricio Herrera Ulloa in the amount of US$ 20,000.00 (twenty thousand United States dollars) or the equivalent in Costa Rican currency, as established at paragraphs 200, 203, 204 and 205 of the Judgment (operative paragraph six of the July 2, 2004 Judgment); and

d.         pay Mr. Mauricio Herrera Ulloa the sum of US$ 10,000.00 (ten thousand United States dollars) or the equivalent in Costa Rican currency, to defray the expenses of his legal defence in litigating his case before the inter-American system for the protection of human rights, as established at paragraphs 202, 203, 204 and 205 of the Judgment (operative paragraph seven of the July 2, 2004 Judgment).

g. Ecuador

Benavides Cevallos Case

484. The Court’s most recent order on the matter of compliance is dated November 27, 2003. There, the Court decided to inform the OAS General Assembly of the State’s non-compliance with the duty to investigate.

485. In 2005, the State failed to file the reports required to document compliance with its duty to investigate, prosecute and punish those responsible for the violations of Consuelo Benavides Cevallos’ human rights, as the Court had ordered in operative paragraph four of its June 19, 1998 Judgment.

Daniel David Tibi Case

486. On September 7, 2004, the Inter-American Court delivered its Judgment on the preliminary objections, merits and reparations in this case. In its Judgment, the Court determined that the State’s obligations in the matter of reparations were as follows:

a.          investigation of the facts to determine the persons responsible for the human rights violations committed in this case, publication of the investigation’s findings, and punishment of those responsible;

b.         publication of the French translation of the Facts Proved and operative paragraphs one through sixteen of the Judgment on Merits and Reparations, in a newspaper having a wide circulation, specifically in the area where Mr. Daniel Tibi;

c.          a formal written statement issued by the State’s high-ranking authorities, publicly acknowledging the State’s international responsibility for the facts in the case and asking forgiveness from Mr. Tibi and the other victims;

d.         establishment of a training program on the principles and norms governing the protection of human rights in the treatment of prisoners, with civil society’s participation; creation of an inter-institutional committee to craft and carry out training programs, and reports to the Court on the committee’s establishment and operations; and

e.          payment of pecuniary damages, including the return of the seized property, payment of non-pecuniary damages, costs and expenses;

487. On August 24, 2005 the Commission informed the Court that while it appreciated the measures taken by the State to begin to comply with some of these reparations, it nonetheless emphasized how important it was that the reparations be paid in full, as promptly as possible

Rigoberto Acosta Calderón Case

488. On June 25, 2003, the Commission filed an application with the Court in the case of Rigoberto Acosta Calderón to get a judgment from the Court finding that the Republic of Ecuador’s international responsibility had been engaged for violation of Articles 7, 8, 24 and 25 of the American Convention, all in relation to its obligations under Articles 1(1) and 2 of the Convention.

489. The Court delivered its Judgment on the case on June 24, 2005. There it declared that the Ecuadorian State had, based on the facts in this case and to the detriment of the victim, violated the rights to personal liberty, judicial protection and a fair trial, recognized, respectively, in Articles 7, 25 and 8 of the Convention, in relation to Article 1.1 thereof. The Court also found that the State failed to comply with its duty under Article 2 of the Convention, in relation to Article 7(5) thereof.

490. In the Judgment, the Court set the reparations that it deemed appropriate. The full text of the Judgment is available at the following link: http://www.corteidh.or.cr/seriec/index_c.htmml.

Suárez Rosero Case

491. In 2005, the Commission filed its periodic comments regarding compliance with the Court’s Judgment on the matter of reparations.

492. The Court’s most recent order on the subject of compliance is dated November 27, 2003. There, the Court found that the State had not yet complied with its obligations to

a. establish a trust fund for the minor Micaela Suárez Ramadán, in the manner ordered by the Court in its Judgment on Reparations of January 20, 1999, in its Judgment on Interpretation of the Judgment on reparations, dated May 29, 1999, in its December 4, 2001 Order and in Consideranda six, letter d) of the November 27, 2003 Order, and

b. investigate and punish the persons responsible for the human rights violations established by the Court.

h. El Salvador

Case of Erlinda and Ernestina Serrano Cruz

493. On March 1, 2005, the Court delivered its judgment on the merits of this case, which concerns the denial of justice following the abduction and forced disappearance of Ernestina and Erlinda Serrano Cruz, who were children at the time. In that judgment the Court held that the State had violated the rights to judicial guarantees and to judicial protection, recognized in Articles 8.1 and 25 of the American Convention, and the right to humane treatment recognized in Article 5 of the Convention, all these in relation to Article 1.1 of the Convention and to the detriment of the next of kin of the children in question.

494. In its Judgment, the Court also decided not to rule on the violation of Article 4 of the Convention, or on the violation of the rights of the family, the right to a name and the rights of the child, recognized, respectively, in Articles 17, 18 and 19 of the Convention.

495. In that same Judgment, the Court set the reparations that it deemed appropriate. The full text of the Judgment is available at the following link: http://www.corteidh.or.cr/seriec/index_c.html.

496. The State filed a request for interpretation of the Judgment on the merits, reparations and costs on June 26, 2005. When consulted on the matter, the Commission expressed the view that the request filed by the Salvadoran State did not meet the requirements that a request for interpretation must satisfy. On September 9, 2005, the Court dismissed the request for interpretation on the grounds that it was inadmissible. However, having established that the request was inadmissible, the Court wrote that “to dispel any doubts the State might have in this regard, [it was] best to make clear the sense of paragraph 211 and operative paragraph twenty of the Judgment, where the Court held that the compensation owed to Mrs. Maria Victoria Cruz Franco should be divided equally among and paid to her children.

497. The full text of the Judgment on the request for interpretation is available at the following link: http://www.corteidh.or.cr/seriec/index_c.html.

i. Guatemala

Bámaca Velásquez Case

498. In 2005, the Commission submitted its periodic comments regarding compliance with the reparations ordered by the Court in its Judgment on this case.

499. On March 3 of that year, the Court issued an order on compliance wherein it found that the following obligations of the State were still pending:

a.          locating the mortal remains of Mr. Efraín Bámaca Velásquez, exhuming them in the presence of his widow and family members, and handing over those mortal remains to same;

b.         investigating the facts that led to the violations of the American Convention on Human Rights and the Inter-American Convention to Prevent and Punish Torture, identifying and punishing those responsible, and publicly disseminating the findings of the that investigation;

c.          one-time publication, in the Official Gazette and another newspaper with nationwide circulation, of the chapter pertaining to the facts proven and the operative part of the Judgment on the merits, delivered on November 25, 2000, and the staging of a public ceremony where the State acknowledges its responsibility for the facts of the case and apologizes to the victims; and

d.         adoption of the legislative and other measures necessary to adapt the Guatemalan legal system to international human rights norms and humanitarian law, and to fully and effectively enforce such norms in the domestic realm.

Blake Case

500. In 2005, the Commission submitted its periodic comments regarding compliance with the Court’s ruling on the subject of reparations.

501. The Court’s most recent order on the matter of compliance is dated November 27, 2003. There, the Court finds that the State has yet to fully comply with its obligations to investigate, prosecute and punish all those responsible for the human rights violations committed in the case.

Carpio Nicolle Case

502. The Court delivered its Judgment on reparations in this case on November 22, 2004. In December 2005, a number of State reports were received on the subject of compliance. The Court requested that the Commission submit comments on the matter by January 2006.

Fermín Ramírez Case

503. On September 12, 2004, the Commission filed an application with the Court in Case 12,403, against Guatemala, asserting that the State had incurred international responsibility for violation of Articles 4 (right to life), 8 (right to a fair trial), 25 (right to judicial protection), and 1.1 (obligation to respect rights) of the American Convention, by sentencing Mr. Fermín Ramírez to death without affording him the opportunity to exercise his right to defend himself when the crime with which he was charged and its legal classification were changed. Both changes were not made until the day the Guatemalan court authorities delivered the guilty verdict that condemned him, which was March 6, 1998.

504. On March 1, 2005, the Court delivered its judgment on the merits of this case. There, it declared that the State had violated the right to a fair trial, the principle of legality and freedom from ex post facto laws, the right to request pardon or commutation of sentence and the right to humane treatment, recognized, respectively, in Articles 8, 9, 4 and 5 of the American Convention.

505. Yet contrary to what the Commission had argued, the Court found that the facts in the case did not tend to establish a violation of Article 25 of the Convention, the right to judicial protection.

506. In its judgment, the Court established the reparations that it deemed appropriate. The full text of the judgment is available at the following link: http://www.corteidh.or.cr/seriec/index_c.html.

Maritza Urrutia Case

507. In 2005, the Commission filed its periodic comments regarding compliance with the reparations ordered by the Court. On September 21 of that year, the Court issued an order on the matter of compliance.

508. In that order, the Court finds that the State has yet to comply with its obligations to effectively investigate the facts of the case that triggered the violations of the American Convention on Human Rights, and had not complied with its obligations under the Inter-American Convention to Prevent and Punish Torture; it had not yet complied with its obligation to identify, prosecute and punish the responsible parties, and to publish the findings of the investigation (operative paragraph five of the Judgment on merits and reparations).

“Plan de Sánchez Massacre” Case

509. The Court delivered its Judgment on reparations in this case on July 3, 2004.

510. In December 2005, the State filed a number of reports on the matter of compliance. The Court requested that the Commission submit its comments on these reports by January 2006.

Molina Theissen Case

511. The Court delivered the judgment on reparations in this case on July 3, 2004.

512. In response to a compliance-related report filed by the State, on May 24, 2005 the Commission expressed its appreciation for the State’s payment of pecuniary and non-pecuniary damages and costs and expenses. The Commission also pointed out, however, that absolutely no information had been received regarding compliance with the other reparations ordered by the Court in its judgment, including those that were by then past due, such as the obligation to publish the pertinent parts of the judgments on merits and reparations (operative paragraph four of the judgment on reparations).

513. The Commission believed it was vital that the parties have information on measures taken to begin and ultimately fulfil compliance with the non-pecuniary damages ordered by the Court, and expressed the view that the it was essential that the State be prompt about complying with the reparations ordered by the Court and diligent about reporting progress made toward compliance and the achievement of full compliance with the reparations ordered by the Court, given the fact that Article 67 of the American Convention requires prompt compliance with the judgments of the Court.

514. In its comments, the Commission again underscored the fact that the purpose of reparations is to help the victims and their next of kin recover, to restore, to the extent possible, any losses sustained, to re-establish them so that they are able to exercise their rights, and to compensate them for the suffering they endured, all in order to help them recover from whatever harm the wrongs suffered may have done to their honour and good name in society. The Commission therefore respectfully asked the State to fully comply with the obligations set forth in the Court’s judgments as soon as possible, and thereby mitigate the harm caused to Marco Antonio Molina Theissen and his next of kin.

515. The Court has requested that the State file another compliance report by January 2006.

Myrna Mack Case

516. In 2005 the Commission submitted its periodic comments regarding compliance with the reparations ordered by the Court. On September 12 of that year, the Court issued an order on the matter of compliance.

517. In this most recent order, the Court finds that the State has yet to comply with its obligations to

a.        investigate the facts in the case with a view to identifying, prosecuting and punishing all the material and intellectual authors, and others who bear responsibility for the extrajudicial execution of Myrna Mack Chang, the cover-up of her execution and the other facts in this case, apart from the person already sentenced for these events; make public the findings of the investigation;

b.        remove all de facto and legal obstacles and mechanisms that allow the case to go unpunished; provide proper security measures to the judicial authorities, prosecutors, witnesses, legal operators and next of kin of Myrna Mack Chang, and use every means available to it to expedite the process;

c.         include in the training courses for members of the armed forces, the police, and personnel of security agencies, training in human rights and international humanitarian law;

d.         establish a scholarship in the name of Myrna Mack Chang, and

e.         place a plaque in Myrna Mack Chang’s memory either at the spot where she died or nearby, and describing the work she did.

518. On several occasions during 2005, the Commission acknowledged the State’s compliance with the payment of compensation for material and moral damage, as well as for the costs and expenditures, and it reiterated that it highly appreciated the effective compliance of this important obligation, that has both symbolic and practical value. At the same time, it requested the Guatemalan State to present information relating to compliance with the other obligations established by the Court in its Judgement on the Merits and Reparations. In this context, the IACHR considers of fundamental value that the parties have access to information relating to the measures conducive to initiate and obtain compliance with the rest of the non-pecuniary obligations established by the Tribunal.

Paniagua Morales et al. Case

519. In 2005, the Commission filed its periodic observations regarding compliance with the reparations ordered by the Court. The Court’s most recent order on the subject of compliance is dated November 27, 2003.

520. In that order the Court found that the State had yet to comply with its duties to:

a.          investigate the facts in the case and punish those responsible for what happened to the victims (operative paragraph six of the Judgment on the Merits, dated March 8, 1998, and operative paragraph two of the Judgment on Reparations, dated May 25, 2001);

b.         arrange transfer of the mortal remains of Pablo Corado Barrientos and their subsequent burial at the place chosen by his next of kin (operative paragraph three of the Judgment on Reparations, dated May 25, 2001);

c.         adopt the legislative, administrative or other measures to publish the register of detainees and guarantee its accuracy and security (operative paragraph four of the Judgment on Reparations, dated May 25, 2001); and

d.         pay the non-pecuniary and pecuniary damages, costs and expenses (operative paragraphs one and five of the Judgment on Reparations, dated May 25, 2001).

Villagrán Morales et al. Case (The Street Children’s Case)

521. In 2005, the Commission submitted its periodic comments on the State’s compliance with the reparations ordered by the Court. The Court’s most recent order on the subject of compliance in this case is dated November 27, 2003.

522. In this most recent order, the Court finds that the State has yet to comply with its duties to:

a.          pay the compensation ordered for Gerardo Adoriman Villagrán Morales as moral damages;

b.         investigate, prosecute and punish those responsible for the human rights violations the Court declared in its Judgment of May 26, 2001, in keeping with Article 68.1 of the American Convention on Human Rights, and

c.          provide the resources and take the other measures necessary to transfer the mortal remains of Henry Giovanni Contreras and to subsequently bury those remains at the place of his next of kin’s choosing.

Ronald Raxcacó Reyes Case

523. On September 18, 2004, the Commission lodged an application with the Court in Case 12,402, Ronald Ernesto Raxcacó Reyes v. the Republic of Guatemala. The Inter-American Commission asked the Court to find that the State’s international responsibility had been engaged for violation of Articles 4 (right to life), 5 (right to humane treatment), 8 (right to a fair trial) and 25 (right to judicial protection) of the American Convention, in conjunction with the general obligation to respect and ensure the human rights recognized in the Convention and the duty to enforce their domestic legal effects, set forth in Articles 1.1 and 2 thereof, by sentencing Mr. Ronald Ernesto Raxcacó Reyes to death for the commission of a crime that was not, by law, a capital offence at the time Guatemala ratified the American Convention.

524. The Court delivered its Judgment on the Merits in this case on September 15, 2005. There, it declared that the State had violated, to the detriment of the victim in this case, the rights to life and to humane treatment recognized in Articles 4 and 5 of the Convention, in relation to Articles 1.1 and 2 thereof.

525. However, contrary to what the Commission had argued, the Court also ruled that the facts in this case did not tend to establish a violation of the right to judicial protection, recognized in Article 25 of the Convention.

526. In its Judgment, the Court set forth the reparations that it deemed appropriate. The full text of the Judgment is available at the following link: http://www.corteidh.or.cr/seriec/index_c.html.

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