|
OEA/Ser.L/V/II.98 CHAPTER
VII
RECOMMENDATIONS
OF THE INTER-AMERICAN COMMISSION ON HUMAN
RIGHTS
1. The
Commission recommends that the member States adopt measures to improve the
administration of justice within their respective jurisdictions.
The Rule of Law in a democratic society depends largely on the action
taken by the Judicial Branch. Transparent and effective functioning of that
Branch represents a basic and unavoidable challenge for any State. The
international law of human rights –enshrined, in the inter-American system,
in the American Declaration on the Rights and Duties of Man, the American
Convention on Human Rights and other applicable instruments— must be
considered a minimum standard in the task of applying the law, even in times
of political, social, or economic crisis.
With regard to institutional matters, the Commission recommends that
the member States take the measures necessary to ensure the independence of
members of the Judicial Branch. Impartiality and transparency are concepts
inherent in the very idea of administration of justice. Unfortunately, the
members of the Judicial Branch --including judges, prosecutors and defense
attorneys-- and the members of the legal profession representing citizens
before the courts, are at times subjected to harassment and intimidation.
Accordingly, the member States should not neglect their physical and moral
integrity.
With regard to jurisdictional matters, the Commission reminds the
member States that their citizens must be judged pursuant to ordinary law and
justice and by their natural judges. Thus, civilians should not be subject to
Military Tribunals. Military justice has merely a disciplinary nature and can
only be used to try Armed Forces personnel in active service for misdemeanors
or offences pertaining to their function. In any case, this special
jurisdiction must exclude the crimes against humanity and human rights
violations.
With regard to basic and universal principles of administration of
justice, the Commission recalls that the member States' legal order should
fully and effectively contemplate the following principles: detention pursuant
to arrest warrant duly grounded on facts and law and issued by a competent
authority; the right of the accused to be informed of the charges against him;
the right to appear before a competent judge and to be assisted by a legal
representative; the right to the presumption of innocence; and the right to
defend himself and be impartially and expeditiously judged.
The member States must put an end to situations of impunity. They must
ensure that effective legal remedies are available to their citizens to defend
their rights and to have access to justice rendered by independent and
impartial judges, according to the aforementioned principles on jurisdiction.
2. The
Commission recommends that the member States take the measures necessary to
improve the operation of the prison system and the conditions of imprisonment
and detention.
On repeated occasions, the Commission has expressed its concern over
the extremely precarious situation of men, women, and children inmates who
live over crowded in many prisons of the hemisphere. The Commission reiterates
to the member States the urgent need to improve the existing prison
infrastructure and provide it with trained staff. It also urges them to
provide for the separation of inmates between those who are being tried and
have been convicted; between minors and adults; and according to the severity
of the crimes committed. The Commission also invites the member States to
consider the adoption of alternative sanctions to that of imprisonment.
The Commission also reiterates its concern over the practice adopted in
many member States with regard to preventive detention. The principle of
presumption of innocence is being seriously violated by the imprisonment of
citizens tried for possible commissions of crime -- but not convicted --
together with those already serving their prison sentences.
This situation becomes even worse when the precautionary measure of
detaining the accused is extended over unreasonable periods of time which, in
some well documented cases, have even exceeded the prison sentence applicable
under the law. The Commission reiterates that the liberty of the accused must
be the rule, and the exceptions must be expressly set forth by the law and be
duly invoked and grounded in each case.
3. The
Commission recommends that the member States clearly establish the role of
Armed and Security Forces in the context of the Rule of Law.
In every democratic State, the Armed and Security Forces perform a
crucial role in the protection of civilians, their property and their rights.
This is a function with many nuances and which involves different institutions
–amongst them the police and the Armed Forces—with features of their own.
The Commission recommends that the member States give special attention
to the training provided to police officers, who have the delicate task of
exercising public authority vis-à-vis society. The democratic order
requires the citizens to trust in the professionalism and, above all, the
ethics of police authorities. The Commission reiterates its appeal to the
member States to adopt United Nations standards on the conduct of law
enforcement officials for guidance in this area.
The task to be fulfilled by the police in the civilian context is
delicate and requires special instruction and training. Accordingly, as a
general principle, the police cannot be replaced by the Armed Forces in the
fulfillment of its role. The Commission wishes to recommend, with emphasis,
that the Armed Forces not be deployed for the purposes of law enforcement. Due
to their specialty, complexity and degree of interaction with civilians, the
investigation of common crimes and arrests, amongst other tasks, require a
duly trained police corps particularly respectful of the Law.
The Commission must also express concern over the fact that the Armed
and Security Forces of some member States continue to be related to the
commission of abuses, directly or through unofficial armed groups. Amongst the
measures to be adopted in order to ensure that Armed and Security Forces are
duly subject to civil authority and act within the law, the Commission urges
the member States to train their agents on the rules regarding the respect for
human rights and international humanitarian law and adequately sanction those
who violate such rules.
With regard to the Armed Forces in particular, the Commission cannot
but call attention to the use of military tribunals to review cases involving
issues ruled by ordinary law, amongst them, those relating to the observance
of individual rights. The Commission reiterates that military tribunals should
only be employed to address those cases involving internal discipline within
the Armed Forces. The Commission recommends, emphatically, that the member
States take the necessary measures to ensure that those members of the Armed
Forces who commit common crimes be judged by ordinary courts and pursuant to
ordinary law so as to ensure the right of the affected party to an impartial
judge.
4. The
Commission recommends the Member States to take all necessary measures to
protect human rights workers.
The activities carried out by human rights workers, and the
organizations which many of them represent, are vital to the protection of
human rights. Their work has a crucial relevance both from the technical and
ethical point of view, whether connected to fact-finding, promotional or
pedagogical activities or the lodging of complaints regarding the commission
of human rights violations. These individuals and institutions are an
important part of society and constitute a fundamental element in the process
to strengthen democracy.
Sadly, the Commission has received and receives on a regular basis,
numerous complaints on, sometimes fatal, attacks committed against individuals
and organizations carrying out these tasks in the countries of the Continent.
Consequently, it must specially recommend the member States to take all
necessary measures to respect the freedom of expression and work of those who
have chosen to work for the respect of human rights and also to protect their
moral and physical integrity.
5. The
Commission recommends that the Member States give special attention to the
full protection of children's rights.
The American Declaration, the American Convention, and other
instruments of universal character reflect a consensus that children have the
right to special measures of protection. Accordingly, the necessary resources
should be allocated to the care and development of children, and the necessary
legislative and other measures should be taken to protect their rights. In
this regard, the Commission recommends to the member States that all decisions
affecting the life, freedom, physical or moral integrity, development,
education, health or other rights of children, be made with a view to ensuring
that their best interests are taken into account.
The Commission recalls that the member States are to take specific
measures enabling children living within their jurisdiction to gain access to
primary education --which must be compulsory and free-- and secondary
education which, in areas where it does not exist, should gradually become
available free of charge to all.
The Commission also wishes to reiterate that, as provided for in the
San Salvador Protocol, persons under 18 years of age should not be subject to
nocturnal work schedules or unhealthy or dangerous conditions and that, in any
case, they must be treated according to the standards established in ILO
Convention 138.
The rules of the inter-American system are based on broad principles of
equality and non-discrimination. Member States have the obligation to adapt
their legislation to such principles whenever a legal provision proves to be
discriminatory simply by virtue of its existence, its effects, or the manner
in which it is interpreted and applied in practice.
The Commission has verified that the legislation in force in the
jurisdiction of some member States does not conform to the principles of
equality and non discrimination and that this situation mainly affects women.
Such De jure discrimination transforms the legal system itself into an
instrument of subordination, and is an affront to the most fundamental
principles of the inter-American system.
Pursuant to the study conducted by the Rapporteur on Women's
Rights and the guidelines set out in his report, the Commission wishes to
request the States that still have not done so to conduct a comprehensive
review of their national legislation. Such review should be focused on the
areas of civil, labor, commercial, and criminal law and should have the aim of
identifying provisions that establish distinctions, exclusions, or
restrictions of a sexual character, whose purpose or effect is to diminish the
recognition or exercise of human rights by women.
In all cases in which discrimination is detected, and given that it
constitutes a patent violation of the fundamental principles on which the
inter-American system is founded, member States should act without further
delay to modify their legislation as necessary.
Member States should also review their domestic remedies with a view to
evaluating the extent to which they are accessible and effective in ensuring
the exercise of the right not to be subjected to any form of sexual
discrimination in public as well as private life. The member States should
also strengthen the effectiveness of those remedies and should take the
appropriate measures to ensure that women have access to the information
needed to avail themselves thereof.
7. The Commission
recommends the member States that they take the necessary measures to protect
those suffering from mental or physical disabilities.
The Commission has verified that those persons suffering from mental or
physical disabilities are particularly vulnerable to discrimination, to
arbitrary restriction of their personal freedom and to inhuman and degrading
treatment. This situation, and its impact in their integration into society,
has also been acknowledged in different international guidelines.
The Commission wishes to reiterate that the full exercise of the rights
enshrined in the Declaration, the Convention and its Protocols, and other
instruments in force in the inter-American system, must be ensured without any
kind of discrimination whatsoever. Therefore, it recommends the member States
to take all legislative or other measures necessary to ensure that those with
physical or mental disabilities can exercise their civil and political rights
without discrimination; and, in the light of the compromises set forth in the
San Salvador Protocol, to ensure that their economic, social and cultural
rights receive special protection.
8. The
Commission recommends the member States to respect, protect, and guarantee the
rights of migrant workers and their families.
Frequently, migrant workers and their families find themselves without
protection in the States where they work. This results from, among other
factors, differences in language, race, custom, culture, economic resources,
and educational level. This situation of vulnerability repeatedly leads to
discrimination against migrant workers and their families and to delays or the
absence of recognition of their fundamental rights.
The Commission recommends that the member States, in accordance with
the relevant international instruments and their own domestic legislation,
should promote, respect, and ensure the fundamental rights of migrant workers
and their families.
9. The
Commission recommends that the member States take special care to guarantee
the exercise of freedom of expression.
The Commission deems it necessary to emphasize the importance of the
exercise of freedom of expression in the strengtening and development of
democracy. The member States must protect this important right, taking
measures to ensure its exercise, including the prosecution of those who
attempt to hinder it. This recommendation should be especially taken into
account in the case of those who collect and transmit information as a
profession and thus perform a vital role in a democratic society.
Bearing in mind the purpose of this recommendation, the Commission has
decided to establish a Rapporteur on Freedom of Expression and calls
the Member States to cooperate and collaborate with it.
10. The
Commission recommends that member States whose legislation provides for
compulsory military service take measures to ensure protection for the
individual rights of the inductees.
The Commission is aware that a number of member States, rather than
applying current legal provisions for the recruitment of inductees, resort to
the arbitrary detention of candidates. In other cases, the individuals
recruited are not permitted recourse to the courts to demonstrate that the law
exempts them from service. The Commission also has knowledge that certain
ethnic, religious, and racial minorities are subjected to discriminatory
practices upon recruitment. The
Commission urges the member States to put an end to those practices.
The Commission takes note of the suggestions made by other
international bodies to the effect that States must effectively implement the
right to freedom of conscience and religion, through legislative amendments
providing for exemptions from military service in cases of conscientious
objection.
[1]
Accordingly, the Commission recommends that States whose legal order
provides for compulsory military service should revise their legal provisions
on recruitment with a view to respecting and protecting the right of inductees
to humane treatment, due process, freedom of conscience and religion, and
equality before the law. The Commission also invites the member States whose
legislation still does not exempt conscientious objectors from military
service or alternative service, to review their legal regimes and make
modifications consistent with the spirit of the international law of human
rights.
11. The
Commission recommends the member States to take all necessary steps to provide
it with more human and material resources, needed to fully develop its
mandate.
12. The
Commission urges the member States to comply with the recommendations made by
the Commission in its reports on individual cases and to abide by the requests
of provisional measures.
The Inter-American Court has indicated that States parties to the
American Convention have the obligation to adopt the recommendations issued by
the Commission in its reports on individual cases, in the light of the
principle of good faith. This obligation extends to the member States in
general, provided that, pursuant to the OAS Charter, the Commission remains
one of the main organs of the Organization with the function of promoting the
observance and defense of human rights in the hemisphere.
Accordingly, the Commission urges the member States, whether they are
parties to the American Convention or not, to fulfill their international
obligations by following the recommendations issued in the reports on
individual cases and abiding by the requests of provisional measures.
The Commission also invites them to invoke, in good faith, and to
follow the friendly settlement mechanism provided for in the Convention and
its Regulations.
13. The
Commission invites the member States to adopt legal mechanisms for the
execution of the recommendations of the Commission in the domestic sphere.
As aforementioned, member States have the obligation to comply with the
recommendations issued by the Commission in its reports on individual cases.
Such obligation must be satisfied by whichever organ of the State is competent
to adopt the corresponding measures. However, in some cases, State authorities
have indicated that the lack of appropriate mechanisms for the execution of
international obligations in their respective legal orders has somehow
hindered compliance with the recommendations. The Commission wishes to urge
the States that consider this legal vacuum as an impediment, to follow the
example of other member States -- as well as other States of the international
community – which have found it convenient and expedient to establish
specific legal mechanisms, either of a judicial or administrative nature, to
implement directly the Commission's recommendations.
14. The
Commission recommends that the member States adopt measures necessary to
consider and approve the proposed "Inter-American Declaration on the
Rights of Indigenous Peoples."
The Commission wishes to recommend that the member States, in pursuance
of the General Assembly Resolution on "Draft American Declaration on the
Rights of Indigenous Peoples" (AG/RES. 1480 (XXVII-0/97)), prepared by
the IACHR, contribute to the establishment and work of the meeting of
government experts to be convened by the Permanent Council with a view to
approval of the aforementioned instrument at the twenty eighth regular session
of the General Assembly.
15. The
Commission recommends that the member States ratify the American Convention on
Human Rights and its Protocols.
The Commission recommends to the ten member States that have not
ratified the American Convention on Human Rights --Antigua and Barbuda,
Bahamas, Belize, Canada, Cuba, United States, Guyana, Saint Vincent and the
Grenadines, St. Kitts and Nevis, and Saint Lucia-- that they should ratify
this instrument and thus allow for the consolidation of the system within a
unified legal framework.
The Commission also recommends that Antigua and Barbuda, Argentina,
Bahamas, Barbados, Belize, Bolivia, Canada, Chile, Colombia, Costa Rica, Cuba,
Dominica, Dominican Republic, Grenada, Guatemala, Guyana, Haiti, Honduras,
Jamaica, Nicaragua, St. Kitts and Nevis, St. Lucia, Saint Vincent and the
Grenadines, Trinidad and Tobago, United States of America, and Venezuela,
should ratify the Additional Protocol in the area of Economic, Social, and
Cultural Rights.
The Commission also recommends that Antigua and Barbuda, Argentina,
Bahamas, Barbados, Belize, Bolivia, Canada, Chile, Colombia, Costa Rica, Cuba,
Dominica, Dominican Republic, Ecuador, El Salvador, United States of America,
Grenada, Guatemala, Guyana, Haiti, Honduras, Jamaica, Mexico, Nicaragua,
Paraguay, Peru, St. Kitts and Nevis, St. Lucia, Saint Vincent and the
Grenadines, Suriname and Trinidad and Tobago should ratify the Additional
Protocol to Abolish the Death Penalty.
16. The
Commission recommends that the member States ratify the inter-American
instruments on human rights.
The Commission also recommends that Antigua and Barbuda, Bahamas,
Barbados, Belize, Bolivia, Canada, Colombia, Costa Rica, Cuba, Dominica,
Ecuador, Grenada, Guyana, Haiti, Honduras, Jamaica, Nicaragua, St. Kitts and
Nevis, St. Lucia, Saint Vincent and the Grenadines, Trinidad and Tobago and
the United States of America, should ratify the Inter-American Convention to
Prevent and Punish Torture.
The Commission also recommends that Antigua and Barbuda, Bahamas,
Barbados, Belize, Bolivia, Brazil, Canada, Chile, Colombia, Cuba, Dominica,
Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Guyana, Haiti,
Honduras, Jamaica, Nicaragua, Peru, St. Kitts and Nevis, St. Lucia, Saint
Vincent and the Grenadines, Suriname, Trinidad and Tobago, United States and
Venezuela, should ratify the Inter-American Convention on the Forced
Disappearance of Persons.
The Commission also recommends that Antigua and Barbuda, Canada, Cuba,
Grenada, Jamaica, Mexico, Suriname and United States of America should ratify
the Inter-American Convention on the Prevention, Punishment and Eradication of
Violence Against Women.
17. The
Commission recommends that the States Parties to the American Convention
accept the compulsory jurisdiction of the Inter-American Court of Human
Rights.
The Commission recommends Barbados, Brazil, Dominica, Grenada, Haiti,
Jamaica, Mexico, and the Dominican Republic to undertake the obligations set
forth in Article 62 of the American Convention and accept the jurisdiction of
the Inter-American Court.
18. The
Commission recommends that the member States should undertake to respect the
customary and conventional international humanitarian law.
The Commission recommends that the member States should undertake to respect customary and conventional international humanitarian law. Particularly, it recommends their considering the advisability of ratifying the instruments of international humanitarian law intended to reinforce the protection of fundamental human rights in situations of armed conflict, such as the Geneva Conventions of 1949 and their Additional Protocols of 1977. [
Table of Contents | Previous | Next ]
|