...continuation (Chapter III)

Case 11.335 - Report Nº 78/02 Guy Malary, (Haiti)

214. In Report Nº 78/02 of December 27, 2002, the IACHR made the following recommendations to the Haitian State:

a) Carry out a full, prompt, impartial, and effective investigation within the Haitian ordinary criminal jurisdiction in order to establish the responsibility of the authors of the violation of the right to life of Mr. Guy Malary and punish all those responsible.

b) Provide full reparation to the next-of-kin of the victim, inter alia, the payment of just compensation.

c) Adopt the measures necessary to carry out programs targeting the competent judicial authorities responsible for judicial investigations and auxiliary proceedings, in order for them to conduct criminal proceedings in the accordance with international instruments on human rights.

215. The parties have not provided the Commission with up-dated information concerning compliance with the Commission’s recommendations in Report 78/02. Based upon the information available, the Commission considers that compliance with the Commission’s recommendations is pending.

Cases 11.826, 11.843, 11.846 and 11.847 - Report Nº 49/01, Leroy Lamey, Kevin Mykoo, Milton Montique and Dalton Daley (Jamaica)

216. In Report Nº 49/01 dated April 4, 2001 the Commission recommended that the State:

1. Grant the victims an effective remedy which included commutation of their death sentences and compensation;

2. Adopt such legislative or other measures as may be necessary to ensure that the death penalty is not imposed in violation of the rights and freedoms guaranteed under the Convention, including Articles 4, 5 and 8, in particular that no person is sentenced to death pursuant to a mandatory sentencing law;

3. Adopt such legislative or other measures as may be necessary to ensure that the right under Article 4(6) of the Convention to apply for amnesty, pardon or commutation of sentence is given effect in Jamaica;

4. Adopt such legislative or other measures as may be necessary to ensure that the victims' rights to humane treatment under Articles 5(1) and 5(2) of the Convention, particularly in relation to their conditions of detention, are given effect in Jamaica;

5. Adopt such legislative or other measures as may be necessary to ensure that the right to a fair hearing under Article 8(1) of the Convention and the right to judicial protection under Article 25 of the Convention are given effect in Jamaica in relation to recourse to Constitutional Motions.

217. In a letter dated January 11, 2004, the representatives of Dalton Daley, Milton Montique and Leroy Lamey confirmed that the death sentences of Messrs. Daley, Montique and Lamey were commuted by Jamaica to terms of life imprisonment, in compliance with the decision of the Judicial Committee of the Privy Council in the case of Pratt and Morgan in which that Court found that it would be unconstitutional for a prisoner to be held under sentence of death for a period in excess of five years. The representatives also indicated that on July 7, 2004, in the case of Lambert Watson, the Privy Council unanimously concluded that the mandatory sentence of death for capital murder, introduced in Jamaica in the Offenses Against the Person Act 1992, was an inhuman and degrading punishment within the meaning of section 17(1) of the Jamaican Constitution. According to the representatives, with the abolition of the mandatory death penalty in Jamaica, a discretion to impose a lesser sentence has now been given to the judges of Jamaica. Further, the representatives indicated that as a result of the Privy Council decision in Lewis v. The Attorney General of Jamaica, the Mercy Committee in Jamaica must now operate fair procedures and give reasons wherever it seeks to depart from the views of international human rights bodies. In a communication dated February 10, 2005, the State indicated in respect of the Commission’s first recommendation that the mandatory death sentences that were imposed against the Petitioners were rendered unconstitutional by the decision of the Judicial Committee of the Privy Council held in the case of Lambert Watson v. The Queen[1], as a consequence of which all inmates who were sentenced under the Offenses Against the Persons Act are now entitled to have their matters remitted to the Supreme Court for sentencing hearings to be conducted as their sentences have been set aside. The Supreme Court has been taking steps to set the dates for those sentencing hearings. With respect to the Commission’s second recommendation, the State similarly indicated that as a result of the Privy Council’s decision in Lambert Watson v. The Queen, the mandatory sentence of death under section 3(1A) of the Offences Against the Persons Act of 1864 as amended was unconstitutional as it was incompatible with section 17(1) of the Constitution of Jamaica which provides that “no person shall be subjected to torture or to inhuman or degrading punishment or other treatment”, and that in arriving at their decision, the Privy Council considered relevant international jurisprudence, including Articles 4 and 5 of the American Convention on Human Rights. According to the State, this decision has had the effect of rendering unconstitutional all mandatory sentences of death imposed under the Offenses Against the Persons Act as amended, and therefore that all inmates who were sentenced under the Act are now entitled to have their matters remitted to the Supreme Court for sentencing hearings to be conducted as their sentences have been set aside, the dates for which the Supreme Court has been taking steps to set. The State also indicated that legislation has been drafted to amend the Offenses Against the Persons Act, a well as consequential amendments to the Criminal Justice (Reform) Act, the Gun Court Act and the Parole Act, by removing the mandatory sentence of death for murder and giving the court the discretion to impose a sentence of death or imprisonment for life in those cases that formerly attracted the mandatory sentence, to impose upon the court a duty to specify a period of imprisonment which the offender should serve before becoming eligible for parole, for the court to hear submissions, representations and evidence relevant to the issue of the sentence to be passed, and to provide for the review of those cases in which the mandatory sentence of death has been pronounced with a view to the court making a determination as to the appropriate sentence. With respect to the Commission’s third recommendation, the State indicated that the current procedure under Sections 90 and 91 of the Jamaican Constitution by which the Governor General may, on recommendations by the Privy Council, grant a pardon to any person convicted of any offense, either free or subject to lawful conditions, is in accordance with the obligations imposed by the decision of the Judicial Committee of the Privy Council in the case of Neville Lewis et al. v. The Attorney General of Jamaica, in that individuals are given an opportunity to make submissions and are always given sufficient notice of the Privy Council hearing to allow petitioners to prepare representations. With respect to the Commission’s fourth recommendation, the State indicated that by virtue of the Lambert Watson decision, all persons on “death row” have been or will soon be transferred from “death row” to the general prison population, and that, upon the re-hearing of each case, there is the possibility that individual convicts will then be returned to “death row”, although the procedure for hearing these cases is still under development. The State also indicated that generally, the conditions of detention comply with the standards of humane treatment and that it is in the process of ascertaining specific conditions that pertain to the Petitioners in this case. Finally, the State indicated that it retained reservations concerning the value of the Commission’s fifth recommendation, because it does not consider that Article 25 of the American Convention places an obligation on State Parties to provide legal aid for constitutional motions and is also of the view that Article 8(2)(e) of the Convention only obliges states to provide legal aid in relation to criminal proceedings and that a constitutional motion does not constitute a criminal proceeding. Based upon the information available, the Commission considers that there has been partial compliance with the Commission’s first, second and third recommendations.

Case 12.069 - Report Nº 50/01, Damion Thomas (Jamaica)

218. In Report Nº 50/01 dated April 4, 2001 the Commission recommended that the State:

1. Grant the victim an effective remedy, which included compensation;

2. Conduct thorough and impartial investigations into the facts of the pertinent incidents denounced by the Petitioners in order to determine and attribute responsibility to those accountable for the violations concerned and undertake appropriate remedial measures;

3. Review its practices and procedures to ensure that officials involved in the incarceration and supervision of persons imprisoned in Jamaica are provided with appropriate training concerning the standards of humane treatment of such persons, including restrictions on the use of force against such persons; and

4. Review its practices and procedures to ensure that complaints made by prisoners concerning alleged mistreatment by prison officials and other conditions of their detention are properly investigated and resolved.

219. In a letter dated January 25, 2005, the Petitioners informed the Commission that, based upon the information available to them and to the best of their knowledge, the State had not implemented any of the Commission’s recommendations in Report Nº 50/01, and that during 2004 Damion Thomas had asserted that he had been both physically and verbally mistreated by prison officials on several occasions. In a note dated January 25, 2005, the State informed the Commission that it retained reservations concerning the value of the Commission’s first and second recommendations because, in its view, Mr. Thomas should first seek redress of alleged violations through the Jamaican courts, and because it maintains that thorough and impartial investigations were already conducted. Regarding the Commission’s third recommendation, the State indicated that the Inspectorate Unit of the Correctional Services Department conducts awareness training with correctional officers, which covers relevant United Nations treaties and resolutions as well as Jamaican legislation concerning the standards of humane treatment and restrictions on the use of force. Concerning the Commission’s fourth recommendation, the State indicated that there continue to be several internal and external mechanisms in place for investigating and monitoring complaints made by inmates and the conditions of their detention and which are periodically reviewed. These are said to include investigations carried out by the Superintendent of the Correctional Centre where the inmate is housed followed by the Department of Correctional Services’ Inspectorate Unit. The Inspectorate Unit in turn may make recommendations for disciplinary action where the laws, policy guidelines, rules and/or standards and procedures have been breached and, as it related to conditions of detention, has the responsibility of inspecting cells, the interior and exterior of the buildings, staff restrooms, trade areas and all other facilities, records, and equipment at every correctional institution and continues to monitor conformity to the requisite standards of order, cleanliness, adequacy of space, bedding, lighting, and ventilation as well as the impact on morale and programmes and, as necessary, makes recommendations for systematic and physical improvements. Further, the State indicates that the Office of the Public Defender is available to receive and investigate complaints from inmates, and that the Corrections Act also provides for Boards of Visiting Justices and Boards of Visitors to visit various Correctional Centres, interview inmates, observe conditions and to make recommendations to the Commissioners of Corrections and/or the responsible Minister for corrective actions to be taken. Finally, the State indicates that where there are sudden deaths in a correctional institution, a Coroner’s Inquest is carried out and major incidents may be subject to a Commission of Enquiry. Based upon the information available, the Commission considers that there has been partial compliance with the Commission’s third and fourth recommendations.

Case 12.183 - Report Nº 127/01, Joseph Thomas (Jamaica)

220. In Report Nº 127/01 dated December 3, 2001, the Commission recommended that the State:

1. Grant the victim an effective remedy, which included a re-trial in accordance with the due process protections prescribed under Article 8 of the Convention or, where a re-trial in compliance with these protections is not possible, his release, and compensation;

2. Adopt such legislative or other measures as may be necessary to ensure that the death penalty is not imposed in contravention of the rights and freedoms guaranteed under the Convention, including and in particular Articles 4, 5 and 8;

3. Adopt such legislative or other measures as may be necessary to ensure that the right under Article 4(6) of the Convention to apply for amnesty, pardon or commutation of sentence is given effect in Jamaica; and

4. Adopt such legislative or other measures as may be necessary to ensure that the conditions of detention in which the victim is held comply with the standards of humane treatment mandated by Article 5 of the Convention.

221. In a note dated January 25, 2005, the State informed the Commission that it retained reservations on whether it should accept the Commission’s first recommendation because the State maintains that it is for the appellate courts, and not the Commission, to review the manner in which a trial is conducted and the Commission had not provided a clear and sustainable basis for the Commission’s departure from this approach, because the Jamaican Privy Council considered the Commission’s recommendation and concluded that it preferred the view of the Court of Appeal in that it agreed that the remainder of the summing up made up for the lapse by the judge in that he went on to remind the jury of the prosecution’s burden of proof, and because the Judicial Committee of the Privy Council refused Mr. Thomas special leave to appeal based upon the issues raised before the Commission. Concerning the Commission’s second recommendation, the State indicated that since the Commission’s report, the Judicial Committee of the Privy Council held in the case of Lambert Watson v. The Queen[2] that the mandatory sentence of death under section 3(1A) of the Offences Against the Persons Act of 1864 as amended was unconstitutional as it was incompatible with section 17(1) of the Constitution of Jamaica which provides that “no person shall be subjected to torture or to inhuman or degrading punishment or other treatment”, and that in arriving at their decision, the Privy Council considered relevant international jurisprudence, including Articles 4 and 5 of the American Convention on Human Rights. According to the State, this decision has had the effect of rendering unconstitutional all mandatory sentences of death imposed under the Offenses Against the Persons Act as amended, and therefore that all inmates who were sentenced under the Act are now entitled to have their matters remitted to the Supreme Court for sentencing hearings to be conducted as their sentences have been set aside, and that the Supreme Court has been taking steps to set the dates for these sentencing hearings. The State also indicated that legislation has been drafted to amend the Offenses Against the Persons Act, a well as consequential amendments to the Criminal Justice (Reform) Act, the Gun Court Act and the Parole Act, by removing the mandatory sentence of death for murder and giving the court the discretion to impose a sentence of death or imprisonment for life in those cases that formerly attracted the mandatory sentence, to impose upon the court a duty to specify a period of imprisonment which the offender should serve before becoming eligible for parole, for the court to hear submissions, representations and evidence relevant to the issue of the sentence to be passed, and to provide for the review of those cases in which the mandatory sentence of death has been pronounced with a view to the court making a determination as to the appropriate sentence. With respect to the Commission’s third recommendation, the State indicated that the current procedure under Sections 90 and 91 of the Jamaican Constitution by which the Governor General may, on recommendations by the Privy Council, grant a pardon to any person convicted of any offense, either free or subject to lawful conditions, is in accordance with the obligations imposed by the decision of the Judicial Committee of the Privy Council in the case of Neville Lewis et al. v. The Attorney General of Jamaica, in that individuals are given an opportunity to make submissions and are always given sufficient notice of the Privy Council hearing to allow petitioners to prepare representations. With respect to the Commission’s fourth recommendation, the State indicated that by virtue of the Lambert Watson decision, all persons on “death row” have been or will soon be transferred from “death row” to the general prison population, and that, upon the re-hearing of each case, there is the possibility that individual convicts will then be returned to “death row”, although the procedure for hearing these cases is still under development. The State also indicated that generally, the conditions of detention comply with the standards of humane treatment and that it is in the process of ascertaining specific conditions that pertain to Mr. Thomas. Based upon the information available, the Commission considers that there has been partial compliance with the Commission’s second and third recommendations.

Case 12.275 - Report Nº 58/02 Denton Aitken, (Jamaica)

222. In Report Nº 58/02 dated October 21, 2002, the Commission recommended that t the State:

1. Grant Mr. Aitken an effective remedy which includes commutation of sentence and compensation.

4. Adopt such legislative or other measures as may be necessary to ensure that the conditions of detention in which Mr. Aitken is held comply with the standards of humane treatment mandated by Article 5 of the Convention.

5. Adopt such legislative or other measures as may be necessary to ensure that the right to a fair hearing under Article 8(1) of the Convention and the right to judicial protection under Article 25 of the Convention are given effect in Jamaica in relation to recourse to Constitutional Motions in accordance with the Commission’s analysis in this report.

223. In a letter dated January 13, 2005, Mr. Aitken’s representatives informed the Commission that Mr. Aitken’s death sentence was commuted by Jamaica to a term of life imprisonment in accordance with the decision of the Judicial Committee of the Privy Council in the case of Pratt and Morgan in which that Court found that it would be unconstitutional for a prisoner to be held under sentence of death for a period in excess of five years. The representatives also indicated that on July 7, 2004, in the case of Lambert Watson, the Privy Council unanimously concluded that the mandatory sentence of death for capital murder, introduced in Jamaica in the Offenses Against the Person Act 1992, was an inhuman and degrading punishment within the meaning of section 17(1) of the Jamaican Constitution. According to the representatives, with the abolition of the mandatory death penalty in Jamaica, a discretion to impose a lesser sentence has now been given to the judges of Jamaica. Further, the representatives indicated that as a result of the Privy Council decision in Lewis v. The Attorney General of Jamaica, the Mercy Committee in Jamaica must now operate fair procedures and give reasons wherever it seeks to depart from the views of international human rights bodies. In a note dated January 25, 2005, the State indicated in respect of the Commission’s first recommendation that, since the publication of the Commission’s report, the Governor General of Jamaica was advised by the Jamaican Privy Council to extend the Prerogative of Mercy and commute Mr. Aitken’s death sentence, and therefore that Mr. Aitken’s sentence has been commuted from death to life imprisonment. With respect to the Commission’s second recommendation, the State indicated that since the Commission’s report, the Judicial Committee of the Privy Council held in the case of Lambert Watson v. The Queen[3] that the mandatory sentence of death under section 3(1A) of the Offences Against the Persons Act of 1864 as amended was unconstitutional as it was incompatible with section 17(1) of the Constitution of Jamaica which provides that “no person shall be subjected to torture or to inhuman or degrading punishment or other treatment”, and that in arriving at their decision, the Privy Council considered relevant international jurisprudence, including Articles 4 and 5 of the American Convention on Human Rights. According to the State, this decision has had the effect of rendering unconstitutional all mandatory sentences of death imposed under the Offenses Against the Persons Act as amended, and therefore that all inmates who were sentenced under the Act are now entitled to have their matters remitted to the Supreme Court for sentencing hearings to be conducted as their sentences have been set aside, and that the Supreme Court has been taking steps to set the dates for these sentencing hearings. The State also indicated that legislation has been drafted to amend the Offenses Against the Persons Act, a well as consequential amendments to the Criminal Justice (Reform) Act, the Gun Court Act and the Parole Act, by removing the mandatory sentence of death for murder and giving the court the discretion to impose a sentence of death or imprisonment for life in those cases that formerly attracted the mandatory sentence, to impose upon the court a duty to specify a period of imprisonment which the offender should serve before becoming eligible for parole, for the court to hear submissions, representations and evidence relevant to the issue of the sentence to be passed, and to provide for the review of those cases in which the mandatory sentence of death has been pronounced with a view to the court making a determination as to the appropriate sentence. With respect to the Commission’s third recommendation, the State indicated that the current procedure under Sections 90 and 91 of the Jamaican Constitution by which the Governor General may, on recommendations by the Privy Council, grant a pardon to any person convicted of any offense, either free or subject to lawful conditions, is in accordance with the obligations imposed by the decision of the Judicial Committee of the Privy Council in the case of Neville Lewis et al. v. The Attorney General of Jamaica, in that individuals are given an opportunity to make submissions and are always given sufficient notice of the Privy Council hearing to allow petitioners to prepare representations. With respect to the Commission’s fourth recommendation, the State indicated that by virtue of the Lambert Watson decision, all persons on “death row” have been or will soon be transferred from “death row” to the general prison population, and that, upon the re-hearing of each case, there is the possibility that individual convicts will then be returned to “death row”, although the procedure for hearing these cases is still under development. The State also indicated that generally, the conditions of detention comply with the standards of humane treatment and that it is in the process of ascertaining specific conditions that pertain to Mr. Thomas. Finally, the State indicated that it retained reservations concerning the value of the Commission’s fifth recommendation, because it does not consider that Article 25 of the American Convention places an obligation on State Parties to provide legal aid for constitutional motions and is also of the view that Article 8(2)(e) of the Convention only obliges states to provide legal aid in relation to criminal proceedings and that a constitutional motion does not constitute a criminal proceeding. Based upon the information available, the Commission considers that there has been partial compliance with the Commission’s first, second and third recommendations.

Case 12.347 - Report Nº 76/02 Dave Sewell, (Jamaica)

224. In Report Nº 76/02 dated December 27, 2003, the Commission made the following recommendations to the State:

1. Grant Mr. Sewell an effective remedy which includes commutation of sentence in relation to the mandatory death sentence imposed upon Mr. Sewell, and compensation in respect of the remaining violations of Mr. Sewell’s rights under the American Convention as concluded above.

3. Adopt such legislative or other measures as may be necessary to ensure that the conditions of detention in which Mr. Sewell is held comply with the standards of humane treatment mandated by Article 5 of the Convention.

4. Adopt such legislative or other measures as may be necessary to ensure that the right to a fair hearing under Article 8(1) of the Convention and the right to judicial protection under Article 25 of the Convention are given effect in Jamaica in relation to recourse to Constitutional Motions in accordance with the Commission’s analysis in this report.

225. In a letter dated January 13, 2004, Mr. Sewell’s representatives informed the Commission that Mr. Sewell’s death sentence was commuted to a term of life imprisonment in accordance with the decision of the Judicial Committee of the Privy Council in the case of Pratt and Morgan in which that Court found that it would be unconstitutional for a prisoner to be held under sentence of death for a period in excess of five years. The representatives also indicated that on July 7, 2004, in the case of Lambert Watson, the Privy Council unanimously concluded that the mandatory sentence of death for capital murder, introduced in Jamaica in the Offenses Against the Person Act 1992, was an inhuman and degrading punishment within the meaning of section 17(1) of the Jamaican Constitution. According to the representatives, with the abolition of the mandatory death penalty in Jamaica, a discretion to impose a lesser sentence has now been given to the judges of Jamaica. Further, the representatives indicated that as a result of the Privy Council decision in Lewis v. The Attorney General of Jamaica, the Mercy Committee in Jamaica must now operate fair procedures and give reasons wherever it seeks to depart from the views of international human rights bodies. In a note dated January 25, 2005, the State indicated in respect of the Commission’s first recommendation that, since the publication of the Commission’s report, the Governor General of Jamaica was advised by the Jamaican Privy Council to extend the Prerogative of Mercy and commute Mr. Sewell’s death sentence, and therefore that Mr. Sewell’s sentence has been commuted from death to life imprisonment. With respect to the Commission’s second recommendation, the State indicated that since the Commission’s report, the Judicial Committee of the Privy Council held in the case of Lambert Watson v. The Queen[4] that the mandatory sentence of death under section 3(1A) of the Offences Against the Persons Act of 1864 as amended was unconstitutional as it was incompatible with section 17(1) of the Constitution of Jamaica which provides that “no person shall be subjected to torture or to inhuman or degrading punishment or other treatment”, and that in arriving at their decision, the Privy Council considered relevant international jurisprudence, including Articles 4 and 5 of the American Convention on Human Rights. According to the State, this decision has had the effect of rendering unconstitutional all mandatory sentences of death imposed under the Offenses Against the Persons Act as amended, and therefore that all inmates who were sentenced under the Act are now entitled to have their matters remitted to the Supreme Court for sentencing hearings to be conducted as their sentences have been set aside, and that the Supreme Court has been taking steps to set the dates for these sentencing hearings. The State also indicated that legislation has been drafted to amend the Offenses Against the Persons Act, a well as consequential amendments to the Criminal Justice (Reform) Act, the Gun Court Act and the Parole Act, by removing the mandatory sentence of death for murder and giving the court the discretion to impose a sentence of death or imprisonment for life in those cases that formerly attracted the mandatory sentence, to impose upon the court a duty to specify a period of imprisonment which the offender should serve before becoming eligible for parole, for the court to hear submissions, representations and evidence relevant to the issue of the sentence to be passed, and to provide for the review of those cases in which the mandatory sentence of death has been pronounced with a view to the court making a determination as to the appropriate sentence. With respect to the Commission’s third recommendation, the State indicated that by virtue of the commutation of Mr. Sewell’s sentence, he would have been transferred from “death row” to the general prison population and that, in its view, the conditions of Mr. Sewell’s detention comply with the standards of humane treatment. Finally, the State indicated that it retained reservations concerning the value of the Commission’s fifth recommendation, because it does not consider that Article 25 of the American Convention places an obligation on State Parties to provide legal aid for constitutional motions and is also of the view that Article 8(2)(e) of the Convention only obliges states to provide legal aid in relation to criminal proceedings and that a constitutional motion does not constitute a criminal proceeding. Based upon the information available, the Commission considers that there has been partial compliance with the Commission’s first and second recommendations.

Case 11.565 - Report Nº 53/01, González Pérez Sisters (Mexico)

226. On April 4, 2001 the Inter-American Commission approved Report Nº 53/01 on the Case under reference, in which it made the following recommendations:

1. Conduct a complete, impartial, and effective investigation, within the regular criminal courts in Mexico, to determine the responsibility of all persons who violated the human rights of Ana, Beatriz, and Celia González Pérez, and Delia Pérez de González;

2. Adequately compensate Ana, Beatriz, and Celia González Pérez and Delia Pérez de González for the human rights violations established in this report.

227. On August 17, 2004, the Mexican State sent a communication enclosing the agreement reached by the parties at a meeting in Tuxtla Gutiérrez, Chiapas, on August 4, 2004. Under that agreement the victims’ representative agreed to contact Mexico’s Under-secretary for Foreign Affairs to set a date for carrying out the formalities still pending in this case.

228. On November 5, 2004, the IACHR wrote to the Mexican State and the petitioners, requesting up-to-date information on the steps taken in pursuit of Report 53/01’s recommendations.

229. The petitioners’ reply was made in a communication of December 6, 2004, in which they expressed their concern that more than 10 years had gone by since the violations and the full and impartial investigation ordered by the Commission to identify, prosecute, and punish the members of the military responsible had still not taken place. They also stated that to date, the meetings and working groups had produced no concrete results and that there were also “matters not at issue in this case that have nevertheless kept the investigation from making significant progress,”, such as, for example, the discussion of whether or not the victims were sexually assaulted. The petitioners claim that this has become “a new investigation – costly, at the wrong time, and newly traumatizing for the victims.” The petitioners state that: “the three González sisters, together with their mother and family, have stated that they feel used and that they greatly mistrust the authorities, fearing that their statement would work against them, generating new unfulfilled expectations of justice,” and that “this has led to greater social, economic, and emotional damage, and even damage to their physical health, vis-à-vis their neighbors, their relatives, and themselves.” They also ask the Inter-American Commission “to request the Mexican State to provide up-to-date information on the steps taken to fully comply with, in as short as time possible,” the recommendations in Report 53/01.

230. On December 7, 2004, the petitioners submitted an additional communication with a copy of a letter of November 16, 2004, addressed to Mexico’s Under-secretary for Foreign Affairs, further to the meeting held on August 26, 2004, in the city of Ocosingo, Chiapas.

231. In turn, the Mexican State replied to the IACHR’s request with a submission dated December 14, 2004, in which it listed the agreements reached at previous meetings and summarized the events of 2003. The State also explains the events of the August 26, 2004, meeting in Chiapas, at which expanded statement formalities were pursued with respect to the González Pérez sisters. These formalities were conducted in the presence of the Under-secretary for Foreign Affairs and the Assistant Attorney General for Justice of Chiapas state; for the victims’ family, only Beatriz and Celia González Pérez were present, since the mother and the other sister could not attend for heath reasons. The State explains that: “the proceedings consisted of taking statements from two of the petitioners, who also replied to the questions asked by the prosecution service” and that “they reviewed the photograph albums containing photographs of military personnel.” The State’s communication includes a list of the officials who attended the meeting from the Secretariat of Foreign Affairs, the Secretariat of National Defense, and the Chiapas Attorney General’s Office; it also gives the names of the representatives of the victims who were present. The State also notes that: “the prosecution service has handed over, to the Office of the Attorney General for Military Justice, the records of the formalities it carried out in conjunction with those military prosecutors.” In its final comments, the State notes that it is waiting for the official of the Public Prosecution Service in charge of the investigation to “determine whether there are still formalities pending, in which she will no doubt analyze those arising from the statements made by the alleged victims.” The State reiterates its commitment toward keeping the IACHR informed about the results of the investigations into this case.

232. Based on the information received from the two parties, the Inter-American Commission concludes that compliance with this case’s recommendations is still pending. The IACHR appreciates the major ongoing efforts made by the two parties toward that end, but it believes it must point out that the starting point for that process must be the legal and factual conclusions of Report 53/01 regarding the violations suffered by the González Pérez sisters.

Case 11.807 Report Nº 69/03, José Alberto Guadarrama García (Mexico)

233. On October 10, 2003 the Inter-American Commission approved Report Nº 69/03 on the Case under reference, in which it made the following recommendations:

1. To approve the friendly settlement agreement signed by the parties on October 30, 1998, together with the final friendly settlement agreement signed on February 27, 2003.

2. To monitor the points of the agreement that have not been met in full.

234. The Inter-American Commission sent a request for information to the parties on November 5, 2004, specifically as regards compliance with agreement item “a” in the third paragraph, which sets the goal of arresting José Luis Velásquez Beltrán, suspected of being one of those responsible for kidnapping and extrajudicially killing José Alberto Guadarrama García.

235. In response, on November 26, 2004, the petitioners sent a copy of a letter from the Attorney General for Justice in the state of Morelos, in which that official stated that “José Luis Velásquez Beltrán is living somewhere in the United States of America, in a place we cannot specify exactly.” On December 6, 2004 the petitioners sent an additional communication stating that the note confirmed the failure to execute an arrest warrant issued in 1997. They claim that the Morelos Attorney General “does not specify the evidence and circumstances whereby he arrived at that conclusion” and that “neither are they aware of the search measures pursued jointly by national authorities and authorities from the United States to locate Mr. Velásquez Beltrán”. With respect to the other perpetrators and planners of the crime, they report that the criminal proceedings for the crimes of kidnapping and homicide against three former members of the Morelos Attorney General’s anti-kidnapping unit accused of the violations committed with respect to Mr. Guadarrama García are still pending. The petitioners also claim that several formalities requested by the accused are still pending, as a result of which to date none of the suspected perpetrators have been punished. They also believe they are still pending compliance. They ask the IACHR to seek information from the Mexican State regarding compliance with the agreement items that address the “identification of all the physical perpetrators of and the masterminds behind the crimes committed against José Alberto Guadarrama García” and the “bringing to trial all the physical perpetrators and masterminds, so they can be duly punished by the competent judicial authorities.”

236. The Mexican State replied to the information request on December 8, 2004. It summarized the steps taken during the processing of the case before the IACHR. In this connection, the State says that, “during the entire time that the friendly settlement procedure was ongoing, the local authorities kept constant vigilance to investigate his whereabouts, and even the authorities of the FBI were asked for assistance,” in spite of which “no positive results have been obtained.” it adds that members of Mr. Velásquez Beltrán’s family have told the local authorities they belive that this person has disappeared, which is corroborated by the report issued by the Morelos Attorney General for Justice. As regards the current situation, the State notes that the Government of Morelos continues to take steps toward executing the arrest warrant, and that on November 26, 2004, the Secretariat of Foreign Affairs held a meeting at the offices of the Morelos Attorney General to hear about the status of the investigations.

237. The Inter-American Commission takes note of the information sent by both parties and it applauds the major efforts made by the two toward final compliance with the items on the friendly settlement agreement. However, the information received indicates that the arrest of José Luis Velásquez Beltrán is still pending, as is the imposition of punishments of those responsible for the violations of José Alberto Guadarrama García’s human rights.

Case 11.381 - Report N° 100/01, Milton García Fajardo (Nicaragua)

238. On October 11, 2001, the IACHR approved Report Nº 100/01 on the above-mentioned case, and made the following recommendations:

1. To conduct a complete, impartial, and effective investigation to establish the criminal responsibility of the persons who inflicted the injuries caused to the detriment of Milton García Fajardo, Cristóbal Ruiz Lazo, Ramón Roa Parajón, Leonel Arguello Luna, César Chavarría Vargas, Francisco Obregón García, Aníbal Reyes Pérez, Mario Sánchez Paz, Frank Cortés, Arnoldo José Cardoza, Leonardo Solis, René Varela and Orlando Vilchez Florez, and to punish those responsible in accordance with Nicaraguan law.

2. To adopt the measures necessary to enable the 142 customs workers who lodged this petition to receive adequate and timely compensation for the violations of their human rights established herein.

239. On November 8, 2004, the Commission requested the State, and on November 12, 2004, the Commission requested the petitioners, to submit information on the status of compliance with the recommendations. By letter dated December 14, 2004, the petitioners responded that despite the hearings on compliance held on March 4, 2002, October 17, 2003 and most recently on October 22, 2004, the State has failed to comply with the agreements reached at these hearings involving holding coordination meetings, presenting a proposal for indemnification within thirty days, appointing an independent expert to propose an appropriate amount for reparation, etc. In the view of the petitioners, the State repeatedly has failed to comply with the Commission’s recommendations.

240. Based on the information presented by both parties and the meetings held to follow up on Report N° 100/01, the Commission considers that compliance with the recommendations is still pending.

Case 11.506 - Report Nº 77/02 Waldemar Gerónimo Pinheiro and José Víctor Dos Santos, (Paraguay)

241. In Report Nº 77/02 dated December 27, 2002 the IACHR made the following recommendations to the Paraguayan State:

1. Make full reparation to Mr. Waldemar Gerónimo Pinheiro, which includes appropriate compensation.

2. Make full reparation to Mr. José Víctor Dos Santos, which includes appropriate compensation.

3. Such reparation should be commensurate with the harm done, which implies that compensation should be greater for Mr. José Víctor Dos Santos, given that he spent eight years in prison, with no legal justification for his detention.

4. Order an investigation to determine who was responsible for the violations ascertained by the Commission and punish them.

5. Take the necessary steps to prevent such violations from recurring.

242. The parties submitted no information regarding compliance with the aforesaid IACHR recommendations. Consequently, and in accordance with the evaluation set out in the 2003 Annual Report, the Commission concludes that the recommendations are still pending compliance.

Case 11.031 - Report Nº 111/00, Pedro Pablo López González et al. (Peru)

243. In Report Nº 111/00 of December 4, 2000, the IACHR made the following recommendations to the Peruvian State:

1. That it carry out an exhaustive, impartial, and effective investigation to determine the circumstances of the forced disappearance of Pedro Pablo López González, Denis Atilio Castillo Chávez, Gilmer Ramiro León Velásquez, Jesús Manfredo Noriega Ríos, Roberto and Carlos Alberto Barrientos Velásquez and Carlos Martín and Jorge Luis Tarazona More, and that it punish the persons responsible, in keeping with Peruvian legislation.

2. That it void any domestic measure, legislative or otherwise, that tends to impede the investigation, prosecution, and punishment of the persons responsible for the detention and forced disappearance of Pedro Pablo López González, Denis Atilio Castillo Chávez, Gilmer Ramiro León Velásquez, Jesús Manfredo Noriega Ríos, Roberto and Carlos Alberto Barrientos Velásquez and Carlos Martín and Jorge Luis Tarazona More. Accordingly, the State should nullify Laws 26.479 and 26.492.

3. That it adopt the measures required for the family members of Pedro Pablo López González, Denis Atilio Castillo Chávez, Gilmer Ramiro León Velásquez, Jesús Manfredo Noriega Ríos, Roberto and Carlos Alberto Barrientos Velásquez and Carlos Martín and Jorge Luis Tarazona More to receive adequate and timely reparation for the violations established herein.

244. The State reported on the investigation instituted into the kidnapping and disappearance of Pedro López Gonzáles, the case known as the “Kidnapping and disappearance of the members of the human settlements of ‘La Huaca’, ‘Javier Heraud’ and ‘San Carlos’ in the Santa District of Chimbote Province, Department of Ancash.” This case concerns events alleged to have occurred in the very early morning hours of May 2, 2002, when a group of subjects, military by appearance, armed and traveling in four double-cabin pick-up trucks, arrived at the human settlements of “La Huaca”, “Javier Heraud” and “San Carlos” in the Santa District. They searched a number of houses and “kidnapped” a number of people, among them Pedro López Gonzáles. They took them away in the pick-up trucks, heading in the direction of Trujillo. These people have still not been found and are presumed executed, with their bodies buried nearby.

245. In the report presented by the State, it was indicated that in the Proceedings of Case File Number 001-2003 against de Vladimiro Montesinos Torres, Nicolás Hermosa Ríos, Juan Nolberto Rivero Lazo, Santiago Enrique Martin Rivas Carlos Eliseo Pichilingue Guevara, Jorge Enrique Ortiz Mantas, Carlos Luis Caballero Zegarra Ballón, Hugo Coral Goycochea, José Alarcón Gonzáles, Jesús Antonio Sosa Saavedra, Angel Arturo Pino Díaz, Gabriel Orlando Vera Navarrete, Rolando Javier Meneses Montes de Oca, Julio Chuqui Aguirre, Wilmer Yarleque Ordinola, Angel Sauni Pomaya, Hercules Gomez Casanova, Pedro Guillermo Suppo Sánchez, y Jorge Fung Pinedafor the crime of qualified murder and aggravated kipnapping, was sent to Attorney General’s Office for the opinion required by law on November 3, 2003.

246. On December 1, 2003, the Attorney General Specialized in Human Rights issued the opinion Number 25, as a final judgment for expiration of the time periods for the ordinary and extraordinary proceedings. This case was accumulated to case file number 044-2002 that is being heard by the Second Specialized Criminal Tribunal.

247. For their part, the petitioners expressed that despite the lapse of the time periods of the proceedings initiated against the principal perpetrators of the crime, there has not been a final judgment nor any measures taken to locate the disappeared. Likewise, that a definitive archival has been ordered in favor of Jorge Fung Pineda for having passed away.

248. With regard to points 2 and 3 of the recommendations, the State reported that they are being considered by the High Level Mulitisectoral Committee responsible for the observance of the State’s actions and politics in the realm of peace, collective reparation, and national reconciliation. The petitioners, for their part, indicated that since last year’s report, the situation has not changed, meaning that thus far, adequate reparations have not been granted to the victims.

249. As to the recommendation related to the investigation and punishment of these serious acts, the IACHR observes that it is still uninformed of the results of the proceedings that were initiated by the Attorney General Specialized in Human Rights and that would be accumulated to another suit against the same persons being heard by the Second Specialized Criminal Tribunal.

250. In relation to compliance with recommendations 2 and 3 of the report, the Commission deems that there has been no progress in their implementation or in the creation of the Executive Secretariat, agreed upon by the State, for the coordination of the non-monetary reparations in well-known cases like those of the Joint Press Release signed in February 2001

251. As for the possibility that such reparations be considered by the State through the new system created with the recommendations of the Committee for Truth and Reconciliation, the Commission maintains that the victims receive some type of reparation or attention, that up until now the State has not offered, despite the lapse of the time period from the date on which the merits report was issued and sent to the State by the IACHR, in front of other groups of victims in different cases which have received attention from the State.

252. For these reasons, the Commission believes that thus far, the Peruvian State is only in partial compliance with the recommendations contained in the report.

Case 11.099 - Report N° 112/00, Yone Cruz Ocalio (Peru)

253. In Report Nº 112/00 of December 4, 2000, the IACHR made the following recommendations to the Peruvian State:

1. That it carry out an exhaustive, impartial, and effective investigation to determine the circumstances of the forced disappearance of Mr. Yone Cruz Ocalio, and that it punish the persons responsible, in keeping with Peruvian legislation.

3. That it adopt the measures required for the family members of Mr. Yone Cruz Ocalio to receive adequate and timely reparation for the violations established herein.

254. The Peruvian State has reported that it is pursuing an investigation into the incident, under the authority of the Mixed Specialized Provincial Prosecutor’s Office of Leoncio Prado-Aucayuca. The formalities carried out by the judicial police have heard statements from possible witnesses, all of whom were unaware of the nature and circumstances of the incidents under investigation. However, the inquiries of the Mixed Provincial Prosecutor’s Office of Aucayacu continue.

255. The petitioners submitted no information.

256. As regards implementation of the Report’s third recommendation, the Commission believes that no progress has been made with compliance through the Executive Secretariat mechanism that it was agreed to create to coordinate the nonmonetary reparations of these cases and of the Press Release signed in February 2001, irrespective of what the State offered in that regard.

257. With regard to the possibility of the State considering those reparations through the new mechanism created under the recommendations of the Truth and Reconciliation Commission, the IACHR is waiting for the victims to receive some sort of reparations or attention; to date they have received nothing of the sort from the Peruvian State, in spite of the time that has elapsed since the Commission’s Report on Merits was adopted and conveyed, and in contrast to other groups of victims in different cases who have been attended to by the State.

258. In consideration whereof, the IACHR believes that to date there has been only partial compliance on the part of the Peruvian State with the recommendations set out in the Report.

Case 11.800 - Report N° 110/00, César Cabrejos Bernuy (Peru)

259. In Report Nº 110/00 of December 4, 2000, the IACHR made the following recommendations to the Peruvian State:

1. To offer adequate compensation to Mr. César Cabrejos Bernuy, pursuant to Article 63 of the American Convention, including the moral aspect as well as the material one, for the violation of his human rights, and in particular,

2. To carry out the Judicial Order issued by the Constitutional and Social Chamber of the Supreme Court of Justice on June 5, 1992, reinstating Mr. César Cabrejos Bernuy in his position as Colonel in the National Police, paying him his salary and other remuneration owed to him but not paid since the date of his enforced retirement, and granting him all other benefits to which he is entitled as a Colonel of the Police, including, as appropriate, those relating to his pension; or, as a second resort, to pay him the salary and other remuneration to which he would be entitled as a Colonel of the National Police, until he is of legal retirement age, paying also in this case his retroactive salary from the date of his forced retirement, and granting him all the other economic benefits to which, as a Colonel of the National Police, he is entitled, including, as appropriate, those relating to his pension.

3. To conduct a full, impartial, and effective investigation of the facts, in order to establish responsibilities for the failure to carry out the ruling of the Supreme Court of Justice of June 5, 1992, and to pursue such criminal, administrative, and other procedures as necessary to apply the appropriate punishment to those responsible, as befits the gravity of the violations in question.

260. The State furnished no information on compliance with these recommendations.

261. In turn, the petitioner reports that the State has not fulfilled the IACHR’s recommendations, in that the victim has received no redress to cover the wages and other payments he did not receive during his separation from the force; and that neither has the investigation to establish responsibilities for the violations he suffered progressed – on the contrary, it was only active for a few months and then was suspended again.

262. The State’s compliance with paying the amounts that correspond to the wages and other benefits that Col. César Cabrejos failed to receive, together with the pursuit of an investigation of the facts leading to the violation of his rights, are elements of the reparations set forth in the Report in question; moreover, they are integral in nature, in that the victim in this case must be paid those amounts of money for wages and other benefits that he did not receive during the time he was removed from his position on account of the actions of the agents of the State that undermined his rights. Similarly, as a guarantee of nonrepetition, those officers who facilitated that situation must be officially investigated and punished.

263. The IACHR believes that the formalities pursued have not yet yielded concrete results and that, in addition, the State has not reported on any progress made in this regard. Moreover, the information furnished by the petitioners repeats what was said last year – to wit, there has been no progress with the steps needed to implement those recommendations.

264. In consideration whereof, the IACHR holds that compliance with the recommendaitons set out in the report is still pending.

Cases 10.247 and others - Report Nº101/01 - Luis Miguel Pasache Vidal et. al. (Peru)

265. In Report Nº 101/01 of October 11, 2001, the IACHR made the following recommendations to the Peruvian State:

1. Void any judicial decision, internal measure, legislative or otherwise, that tends to impede the investigation, prosecution, and punishment of the persons responsible for the summary executions and forced disappearance of the victims indicated at paragraph 252. In this regard, the State should also repeal Laws Nº 26,479 and 26,492.

2. Carry out a complete, impartial, and effective investigation to determine the circumstances of the extrajudicial executions and forced disappearances of the victims and to punish the persons responsible pursuant to Peruvian legislation.

3. Adopt the measures necessary for the victim’s families to receive adequate and timely compensation for the violations established herein.

4. Accede to the Inter-American Convention on Forced Disappearance of Persons.

266. By a communication dated December 11, 2003, the State reported that investigations were then underway into all the cases covered in Report Nº 101/01, itemized as follows:

1. Case 10.247, Pasache Vidal Miguel: Lima’s Office of the Special Prosecutor for Forced Disappearances, Extrajudicial Executions and Clandestine Burial Sites has had this case under investigation since November 2002.

2. Case 10.431, Tineo Sandoval Víctor: The La Mar Mixed Law Provincial Prosecutor’s Office is conducting an investigation into this case.

3. Case 10.472, Valer Munaylla Walter: Huamanga’s Second Provincial Prosecutor’s Office has had this case under investigation since January 2003.

4. Case 10.564, Sangama Panalfo Luis Alberto et al.: The Padre Abad Mixed Law Provincial Prosecutor’s Office has had this case under investigation since March 2003.

5. Case 10.744, Torres Quispe Arturo: The Huanta Mixed-Law Provincial Prosecutor’s Office has had this case under investigation since August 2002.

6. Case 10.805, Loli Mauricio Nilton Adelmo et al.: Lima’s Office of the Special Prosecutor for Forced Disappearances, Extrajudicial Executions and Clandestine Grave Sites has this case under investigation.

7. Case 10.878, Javier Ipanaque Marcelo et al.: The Office of the Fifth Special Prosecutor for Human Rights Cases (Fujimori-Montesinos era) has this case under investigation.

8. Case 10.947, Marín Gallegos Guillermo et al.: This case is under investigation by the Aucayacu-Huanuco Mixed Law Provincial Prosecutor’s Office.

9. Case 11.035, Cajacuri Roca Leon: As of the present, one investigation is underway with the Tarma Mixed Law Provincial Prosecutor’s Office, and another with the Lima Office of the Special Prosecutor for Forced Disappearances, Extrajudicial Executions and Clandestine Grave Sites.

10. Case 11.051, Medina Puma Adrian: The Lima Office of the Special Prosecutor for Forced Disappearances, Extrajudicial Executions and Clandestine Grave Sites has this case under investigation.

11. Case 11.088, Inca Ñaupa Amadeo et al.: The Office of the Huancasancos Mixed Law Provincial Prosecutor’s Office has this case under investigation.

12. Case 11.126, Vílchez Simeón César Teobaldo: The Huancayo Office of the Fourth Provincial Prosecutor has had this case under investigation since October 2002

13. Case 11.161, Chipana Huaylla Pascual