PART II

AREAS IN WHICH FURTHER STEPS ARE NEEDED TO GIVE EFFECT

TO THE HUMAN RIGHTS SET FORTH IN THE AMERICAN

DECLARATION OF THE RIGHTS AND DUTIES OF MAN

          In its previous annual reports, the Commission reported to the General Assembly on the serious situation in the region as a whole as regards the observance of human rights. During 1978, there were no significant changes in this situation. However, there were some encouraging signs during this period with regard to the promotion and protection of human rights, that we are pleased to print out at the very beginning of this part of our report.

          One of the most positive events that occurred was the entry into force, on July 18, 1978, of the American Convention on Human Rights, or the Pact of San José. This event, which inaugurated a new stage in the progressive development of the promotion and protection of human rights within the framework of the Organization of American States, was, without doubt, the best way of commemorating the thirtieth anniversary of the American Declaration of the Rights and Duties of Man. The Commission, which has made repeated recommendations toward achievement of this objective, now calls on the member states that are not parties to this international instrument to take the steps necessary for ratification or accession as soon as possible, to achieve broadest possible adherence to the Convention in the near future.

          Secondly, we wish to express our satisfaction over the attention given at the eighth regular session of the General Assembly to the recommendation contained in our previous annual report, that a convention be drafted to make torture an international crime. Resolution 368 of the General Assembly, which endorses this recommendation is, without doubt, a very clear expression of the Organization’s desire to condemn and combat torture by all appropriate means.

          Last, but not least, we must take notice of the very positive efforts to reestablish representative democracy in some of the member states of the Organization. As the Commission has stated in previous annual reports, a political system in the Americas organized on the basis of the effective exercise of representative democracy is one of the principles enshrined in the Charter of the Organization that has the most direct relationship with the observance of human rights.

          These positive tendencies, along with the qualitative and quantitative decrease in human rights violations in some countries cannot allow us, however, to conclude that the situation described in our previous annual reports has appreciably improved.

          In fact, during the year covered by this report, the Commission has received numerous denunciations of human rights violations in various member states of the Organization, some of which demand particular comment because of their gravity and frequency.

          It is of continued concern to the Commission that some governments continue to refuse to provide information on the fate of persons kidnapped from their homes, places of work, ports or airports or in public thoroughfares, by non/uniformed, heavily armed individuals, traveling in unmarked vehicles and acting with such security and impunity that they are assumed to be forces invested with some authority. The truth is that until now, all the remedies provided for under domestic law, and the innumerable efforts made by family members, friends, institutions, agencies, and by this Commission itself, to find out what has happened to victims of such procedures have been fruitless. What is more, cases of this type continue to occur, although not with the same frequency as in previous years.

          A particularly serious aspect of this problem is the fact, which has been repeatedly brought to the attention of the Commission, that children born to women who have “disappeared” while pregnant, and very young children kidnapped with their parents, have not been placed into the custody of their legitimate guardians-grandparents, aunts or uncles, or other family members—but rather placed in institutions and in some cases, given up for adoption either in the same country or abroad.

          The Commission reiterates its severe condemnation of this practice. As was stated in the previous report, this kind of repression is cruel and inhuman, and represents a very serious actual or potential violation of such fundamental rights as the right to life, the right of freedom and the right to the security and integrity of the person. It leaves the victim totally defenseless violating the rights to a fair trial, to protection against arbitrary arrest and to due process. It also affects the entire circle of family and friends who wait for months and sometimes years for some news of the victim’s fate. This uncertainty, and the deprivation of contact with the victim, creates serious family problems, particularly for children, who in some cases have witnessed the kidnapping of their parents or relatives and the physical mistreatment or verbal abuse to which they were subjected.

          The Commission also regrets the fact that in some states of the Organization, there is systematic recourse to the use of all types of physical and mental coercion, not only during pre trial interrogation, but even after an administrative or legal prison sentence has been handed down. Torture in some countries appears to be a usual practice in the investigation of all kinds of facts, particularly those that have to do with public policy (ordre publique) or the security of the State. The Commission has said many times, and it believes it necessary to repeat it on this occasion, that it is necessary for all governments to adopt a deliberate policy against torture. This policy must have two basic components: a thorough investigation of all accusations of torture, to be conducted by impartial authorities, and public example and sanction to those responsible for acts of this nature, no matter what their position or standing.

          A further negative aspect of the situation, which indeed is nothing new, is the way in which some governments abuse the power granted to the executive, under the constitution or other laws, to detain persons without trial in cases of national or international emergency. Indefinite maintenance of the state of siege is one of the artifices employed to cloak long or indefinite sentences with supposed legality. The Commission’s position on this is well-known; the right, and at the same time, the duty of governments to maintain public order and the security of the state is undeniable, but it is also evident that the detention of persons without trial, for an indefinite time, constitutes a serious violation of the right to freedom and of the right to due process of law.

          These and many other violations of civil and political rights and of economic, social and cultural rights, are occurring precisely in those countries where either there are not sufficient means of protection and relief against such violations, or where the organs established for such a purpose are impotent or ineffective. It is obvious that in countries where the judiciary is not completely independent, or where its independence may be formally respected, judges are subjected to pressures and threats from the executive authorities, there can be no effective domestic defense of human rights. Legal remedies such as “habeas corpus” or the writ of amparo are useless if judges are not independent and live in a climate of insecurity and terror, which inhibits them from acting. To complete the picture, if, as often happens, there is no legislative branch, or if the legislators are docile instruments of the will of the executive, there is a total lack of domestic protection of human rights and fundamental liberties.

RECOMMENDATIONS

          Taking into account the foregoing considerations, the Commission recommends:

          1.          Prompt ratification of the American Convention on Human Rights or the Pact of San José, or accession to this instrument, as the case may be, by all member states of the Organization that have not yet done so.

          2.          Recognition by the States Parties to the American Convention on Human Rights, and by those states that shall be parties to it, of the jurisdiction of the Inter-American Court of Human Rights to hear all cases regarding the interpretation or enforcement of this Convention.

          3.          Prompt clarification of the status of persons who have disappeared.

          4.          Lifting or modification of states of emergency and laws of exception whenever the circumstances that originally gave grounds for these measures have ceased or tapered off.

          5.          In those countries where there are still de facto regimes, adoption of measures for prompt reinstatement of a system of representative democracy, which is the system that best ensures full observance of the fundamental rights and liberties of man.

          6.          Promotion, by the Organization of American States (OAS) and by each of its member states, of human rights education programs and other means of promoting human rights.

          It likewise reiterates the recommendations contained in its previous Annual Reports.

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