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Introduction
This consultation aims to gather information on friendly settlement proceedings of the Inter-American Commission on Human Rights (hereinafter the “IACHR,” “Inter-American Commission” or “Commission”) from different actors in the system, including States, civil society organizations, and other system users. Furthermore, it seeks to obtain the opinion of specialists in the area of alternative dispute resolution in order to identify elements that could be included in the IACHR friendly settlement mechanism.
The IACHR has extensive experience in facilitating friendly settlement agreements between petitioners and/or alleged victims of human rights violations and States. The 1980 IACHR Rules of Procedure already provided in Article 42 that upon request of any of the parties or on its own initiative, the Commission would place itself at the disposal of the parties during any stage of the examination of a petition with a view to reaching a friendly settlement of the matter. Thus, the IACHR has facilitated friendly settlements, especially since the early 1990s. As of September 2011, the Commission has adopted 97 reports on friendly settlement.
Friendly settlement processes represent a unique scenario for dialogue between the States and alleged victims of human rights violations that can give rise to fruitful opportunities for the adoption of a wide range of measures, including, for example, measures guaranteeing non-repetition. Where successful, friendly settlement proceedings have the advantage of averting a decision by the IACHR on the substance of the matter or possible litigation of a case before the Inter-American Court of Human Rights (hereinafter “the Inter-American Court” or “the Court”), by reaching a settlement whose terms have been mutually agreed upon by both parties as the result of a flexible process that has allowed for a rapprochement between them. Additionally, it is hoped that the systematization of IACHR friendly settlement practices -thanks to the current initiative being undertaken- may shorten the proceeding and facilitate the process for the parties involved.
In recent decades, thanks to the good offices of the Inter-American Commission, petitioners, victims and States have signed friendly settlement agreements in dozens of cases regarding a range of human rights violations. In addition to obtaining measures for the specific victims in a case, these agreements have led to the adoption of measures with far-reaching effects regarding systemic reform of all intervening public sectors —such as legislation, public policies, programs and services— and changes fostering respect for human rights.
Some examples of legislative reform include: the amendment of legislation in the areas of military justice and migration in favor of the protection and respect for human rights; and the reform of an electoral law in order to promote women’s political participation and their inclusion on political parties’ voting lists of elected officials. Additionally, several countries in the region have abolished desacato laws that made criticism of public officials punishable by law, thanks to a process that arose from a friendly settlement agreement that was the subject of a report adopted by the IACHR in 1994.
Friendly settlements resulting thanks to the good offices of the IACHR for more than 20 years have also had an impact on specific groups or sectors of the population. For example, indigenous peoples have seen the registration in their name and the subsequent return of their ancestral lands. In matters related to women’s rights, friendly settlement proceedings have enabled the adoption of public policies to ensure their right to be free from violence and discrimination, as well as to train public officials in women’s access to justice issues. IACHR friendly settlement proceedings have likewise led to the preparation of reparation plans and programs for victims of human rights violations.
Given this tool’s significance and impact on protecting human rights in the region, the Commission is evaluating possible measures related to its role as a facilitator of friendly settlement proceedings, pursuant to the powers and responsibilities with which it is vested under the American Convention on Human Rights (hereinafter the “American Convention” or “Convention”) and stemming from its Rules of Procedure. In this framework, the following questionnaire has been prepared in order to identify the needs, challenges, and best practices of the IACHR friendly settlement mechanism from a multi-disciplinary perspective.
- The Inter-American Commission on Human Rights
The IACHR, headquartered in Washington, D.C., is a principal, autonomous organ of the Organization of the American States (OAS), whose mandate stems from the OAS Charter, the American Convention and the IACHR Statute. The Inter-American Commission’s mandate is to promote the observance and defense of human rights in the region and the Commission acts as an advisory body to the OAS on the subject. The IACHR is one of the two organs of the inter-American system charged with promoting and protecting human rights, the other being the Inter-American Court of Human Rights, headquartered in San José, Costa Rica. The IACHR consists of seven members who carry out their functions independently, without representing any particular country. The Executive Secretariat carries out the tasks delegated to it by the IACHR and provides the Commission with legal and administrative support in its pursuit of its functions.
In April 1948 the OAS approved the American Declaration of the Rights and Duties of Man (hereinafter “the American Declaration” or “the Declaration”), the first international human rights instrument of a general nature. The IACHR was created in 1959 and convened its first meetings in 1960. In 1961, the IACHR began visiting different countries to observe the human rights situation on the ground and in 1965 it was expressly authorized to review complaints or petitions related to specific cases of human rights violations. By 2010 the Commission had received thousands of complaints, bringing the total number of cases and petitions to over 14,000. The final reports the IACHR has published on individual cases can be found in the Commission’s Annual Reports, or on the IACHR’s webpage, section of approved case reports.
The American Convention was approved in 1969 and entered into force in 1978. The Convention defines the human rights that the ratifying States have agreed to respect and guarantee. The Convention also created the Inter-American Court of Human Rights and established the functions and procedures of the Court and of the Commission. In addition to examining complaints regarding violations of the American Convention committed by
States party to this instrument, the IACHR has competence, pursuant to the OAS Charter and the Commission’s Statute to examine alleged violations of the American Declaration by OAS member states that are not yet party to the American Convention, as well as violations of other regional human rights treaties.
- IACHR’s System of Individual Petitions and Cases
Among its functions, the IACHR receives, analyzes, and investigates individual petitions alleging human rights violations, pursuant to Articles 44 to 51 of the Convention, Articles 19 and 20 of its Statute, and Articles 22 to 50 of its Rules of Procedure. Any individual, group of individuals, or non-governmental entity legally recognized in one or more of the OAS member states may submit petitions before the Commission regarding violations of a right recognized in the American Convention, the American Declaration or other relevant instruments, in accordance with their respective provisions, the Commission’s Statute and its Rules of Procedure.
Upon receipt of a petition alleging human rights violations, the IACHR, initially acting through its Executive Secretariat, conducts an initial review, in accordance with Article 29 of its Rules of Procedure. If the petition complies with the initial requirements for processing, a copy of the relevant parts will be sent to the State concerned for its observations. Based on the submissions presented by the parties during this phase, the IACHR will issue a report on its admissibility, declaring it either admissible or inadmissible and publishing the respective report (see Articles 30, 31, 32, 33, 34 and 36 of its Rules of Procedure). The adoption of the admissibility report does not prejudge the merits of the matter.
- The IACHR Friendly Settlement Process
Article 48(1)(f) of the American Convention and 40.1 of the Commission’s Rules of Procedure establish that the Commission shall -on its own initiative or a the request of any of the parties and at any stage of the examination of a petition or case concerning the alleged violation of human rights- place itself at their disposal, with a view to reaching a friendly settlement of the matter, on the basis of respect for the human rights recognized in the Convention, the Declaration and other applicable instruments. Additionally, this process is regulated in articles 49 of the American Convention, articles 37(4), 40, 48 and 64(1) of the Commission’s Rules of Procedure and article 23.2 of the Commission’s Statute. The friendly settlement process can be applied to petitions and cases alleging human rights violations, regardless of the State’s status of ratification of the American Convention.
Under the current practice, the IACHR makes itself available to the parties for friendly settlement of a matter when it provides the parties with the admissibility report. Nevertheless, the parties may initiate a dialogue with a view to reaching a friendly settlement prior thereto, or at any stage of the proceedings before the IACHR.
The friendly settlement procedure is initiated and continues on the basis of the consent of the parties. The Commission “may terminate its intervention in the friendly settlement procedure if it finds that the matter is not susceptible to such a resolution or any of the parties does not consent to its application, decides not to continue it, or does not display the willingness to reach a friendly settlement based on the respect for human rights” (Article 40(2) and 40(4) of the Rules of Procedure).
The parties may hold meetings throughout the process whether in their countries of origin, with or without the participation of the IACHR, or with the presence of the IACHR in the context of its period of sessions. In the meetings in which the IACHR participates, the “Country Rapporteur” for the State concerned (article 15(2) of the Rules of Procedure) is usually the Commissioner who facilitates the dialogue. Also, hearings on petitions or cases may be convened in which the parties may present information on the initiation or development of the friendly settlement procedure (Article 64 of the Rules of Procedure). In addition to such meetings, the IACHR facilitates the process by communicating to the parties the written information that has been submitted by them and requesting observations.
Where the parties agree, and the requirements are met, the IACHR will verify whether the victim or the victim’s successors have consented to the friendly settlement agreement and whether said agreement is based on respect for the human rights recognized in the American Convention, the American Declaration and other applicable instruments. Where this is the case, the Commission shall adopt a report with a brief statement of the facts and of the solution reached, shall transmit it to the parties, and shall publish it (Articles 49 of the Convention and 40(5) of the Rules of Procedure).
If the parties were not able to reach a friendly settlement, the petition or case would continue to be processed, at the admissibility or merit stage, as the case may be. The processing of the petition or case may give rise to a report on the merits in which the IACHR issues a decision on the state’s responsibility for alleged human rights violations. In such cases and provided that the State has accepted or accepts the Inter-American Court’s contentious jurisdiction, the IACHR may decide to refer the case to the Court, the body that, where appropriate, may issue a judgment ordering the State to comply with a series of reparation measures.
After publication of the report on the friendly settlement, the IACHR may take the follow-up measures it deems appropriate, such as requesting information from the parties and convening hearings or meetings to verify compliance with the friendly settlement agreement (Article 48 of the Rules of Procedure). Every year, the Commission requests information from the parties in those cases in which full compliance is still pending. Currently, the IACHR includes a section in its Annual Report outlining its follow-up of friendly settlements reports (and the recommendations in the reports that it adopts on the merits) and categorizes cases in a table according to whether state compliance is total, partial, or pending.[1]
The Inter-American Commission invites the States, civil society organizations, experts, programs and/or schools of mediation and dispute resolution from universities in the region to contribute with information in relation to this consultation, based on the questions presented. Specific recommendations addressed to the IACHR on this subject are strongly encouraged. Responses to the questionnaire should be sent by January 9, 2012 to the following address:
Re: Questionnaire on Friendly Settlements Inter-American Commission on Human Rights Organization of American States 1889 F St. NW Washington DC 20006 Email (preferred method): fgomez@oas.org Fax: + 1 (202) 458.39.92 / 62.15
Questionnaire for States and Civil Society
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