RESOLUTION Nº 29/86

CASE 9102

NICARAGUA

April 16, 1986

CONSIDERING:

1.          The complaint presented to the Inter-American Commission on Human Rights on May 23, 1983, in English, of which the pertinent parts state the following:

In the June, 1982, issue of the Soberania magazine an article appeared accusing Mr. Macias of receiving money from the United States Central Intelligence Agency and thus implying that Mr. Macias was engaged in activities detrimental to the Government of Nicaragua.

Mr. Macias was born in Nicaragua and his family has lived there for many generations. He has been a public servant to the people of Nicaragua from 1979 to 1982, in coalition with the Sandinista Government and although not employed in that capacity at the time when the article appeared, still felt his career to be that of a public servant. Mr. Macias still feels his profession to be that of a public servant.

Mr. Macias has never had any covert, or otherwise, dealings with the United States Central Intelligence Agency, and so, to protect his career interest and to disassociate himself from a falsehood he initiated a suit for malicious defamation against the Soberania magazine. Trial was set for, and began on, June 18, 1982.

At the trial the editor of the Soberania magazine, Freddy Balzan, failed to appear even though he had been personally summoned (the magazine alleging that he was out of the country at an unstated location). The summons was then amended to evoke the presence in the court of the Advisory Board of the magazine, which consisted of three people, Javier Chamorro, Placido Erdozia and Uriel Molina; they also failed to appear in court.

Instead, the editor, Freddy Balzan, now appeared in court and answered the charges by saying that the author of the accusing article, one David Armstrong--a North American writer--had documentation proving the truthfulness of the article's contentions. However, such documentation was never produced, either by the editor or by David Armstrong. Moreover, subsequent events tend to detract from the validity of the editor's contentions.

There are only two alleged witnesses to the existence of such documentation: 1) the editor, Freddy Balzan, and 2) the North American writer, David Armstrong.

Later in 1982, Mr. Macias' wife, Geraldine Macias, was in the United States on business related to her work and, having a natural concern for her husband, sought out and found the North American author by the name of David Armstrong. Mr. Armstrong said that he did not write the accusing article and had no knowledge whatsoever of Mr. Macias' activities, providing a written statement stating as much.

The credibility of the other witness, Freddy Balzan, is also suspect, because of his connection with the Sandinista Government, i.e., he works for the Ministry of the Interior. Such employment is suspect because denial of due process by the Sandinista Government amounts to an affirmation by that government of the accusations made in the magazine's article.

The trial was stopped at this point because the judge, Felix Trejos, had lost Mr. Macias' petition. Events, to be described, caused Mr. Macias to flee the country of Nicaragua, so information concerning the trial proceedings is now obtained from Mr. Macias' Nicaraguan lawyer, Mr. Salomon Calvo.

Information from Mr. Calvo indicates that the petition has been resubmitted and the trial is presently pending for the purpose of allowing the Sandinista Government the time needed to write and enact new defamation laws so that the court may follow the latest legislative decree. Mr. Macias' filed suit under the then current (and still current) laws of defamation in Nicaragua.

Mr. Macias left Nicaragua because he feared for his life. Events which caused such fears evolved over time, making a short historical sketch necessary.

Mr. Macias was first a member and then President of the Christian Democrat political party in Nicaragua from 1970 to 1982, thus supporting a position in opposition to the previous ruling party, the Somocistas.

When the Sandinista Government became the ruling political party in Nicaragua on July 20, 1979, Mr. Macias, as a member of the coalition government, served first as a Vice-Minister of Social Welfare and later as Vice-Minister of Labor.

Under the procedures for appointment to ministerial position in Nicaragua, each minister resigns his office in December of each year and is customarily reappointed to his office the following January. Mr. Macias was the only minister not reappointed to his office in January of 1982. Trying to ascertain the reason for non-reappointment, Mr. Macias could obtain no official information, but was unofficially (verbally) told that his failure to obtain reappointment was due to his friendly relationship with the United States Embassy. Mr. Macias visited the United States Embassy in a ministerial capacity or as a representative of his political party, but contends no involvement in any action or plan to bring harm to the Nicaraguan Government.

Since leaving government service and until the time he left Nicaragua, Mr. Macias worked, without salary, as a director of the national 4-H Club in Managua, Nicaragua, and it was during this period that he began to fear for his life.

During this period and in addition to the accusing article in the Soberania magazine, newspaper articles by government affiliated press, sought by innuendo to label Mr. Macias as an enemy of the State of Nicaragua. Television media subjected Mr. Macias to even other denunciations.

In this situation, given the history of violence and street gang justice in Nicaragua, and upon receiving a warning from a person working for the Security Police to the effect that Mr. Macias was considered to be a dangerous person who should be eliminated, Mr. Macias felt it was better to leave the country, than to die. He therefore sought and received refuge with the Venezuelan Embassy, through whose offices, and because his wife is a United States citizen, he came to the United States as a political exile.

Because such events forced him into exile, Mr. Macias was forced to abandon his trial proceedings against the Soberania magazine. Mr. Macias left Nicaragua under the protection of Luis Herrera, the President of Venezuela and so he was given permission to leave the country and told that there were no charges against him.

Such assurances have not allayed Mr. Macias' fears, so he is reluctant to return to Nicaragua to direct and press his defamation claim. Given his previous treatment and the fact that the editor of the Soberania magazine is intimately connected with the Sandinista Government, i.e. Mr. Balzan works for the Ministry of Interior, Mr. Macias feels that even though his trial on the defamation suit is still pending, he is without the capacity to exhaust domestic remedies further and must seek a higher authority to vindicate his honor and reputation.

Mr. Macias has standing to bring this action before the Inter-American Commission on Human Rights because the Nicaraguan Government is a ratifier of the American Convention on Human Rights as of 25 September 1979.

1. Under Article 3 of the Convention, Mr. Macias has the right to recognition as a person before the law. As such, the countries which are members of the Convention have obliged themselves to respect the rights of persons within the jurisdiction of the member states. As the time in question, Mr. Macias was residing in and a citizen of the country of Nicaragua.

2. Under Article 44 of the Convention, Mr. Macias has the right to lodge a petition with the Inter-American Commission on Human Rights denouncing or complaining about violations of the Convention by a state party to the Convention.

3. Under Article 46 of the Convention, Mr. Macias feels that he is in compliance with the requirements thereof, because:

a. He has pursued and exhausted domestic remedies to the utmost of his capacity to do so; in fact, the very essence of his complaints is that avenues of domestic remedy were closed to him;

b. The trial he initiated is still officially in the status of pending, hence the six month filing period from final judgment has not run out;

c. This petition is not before any other international body;

d. His petition contains his name, nationality, profession, domicile and signature.

4. Under Article 47 of the Convention, Mr. Macias feels in compliance with the requirements thereof, because:

a. He has met the requirements of Article 46;

b. His petition does state facts that tend to establish a violation of rights guaranteed by the Convention, i.e. the right to a fair trial, the right to privacy, and the right to reply;

c. He feels that his contentions are grounded in probable fact by accompanying documentation and supports an ordered approach to redress of legitimate grievances;

d. His petition is unique to the facts that gave rise to deprivation of his rights and is not substantially the same as previously studied petitions submitted to the Commission because:

1. His deprivation of a position in the coalition government is an attack on the concept of plurality government, which is especially germane because of Mr. Macias' ministerial position and because of his position as President of the Christian Democrat political party;

2. He does not seek redress from violations of criminal law by the Sandinista Government, but from violations of the civil law of defamation, as he seeks to remove an impediment of falsehood from his honor, his career and his reputation.

Violations of Due Process Article 8 - Right to a Fair Trial

Under Article 8(1), Mr. Macias has the right to a hearing before an impartial tribunal for the determination of his rights and obligations of a civil nature, within a reasonable time, by a competent, independent, impartial tribunal. Mr. Macias feels that his rights to a fair trial has been violated because of:

1. The judicial loss of the petition, causing the interruption of the trial, which, if it does not speak to the independency of the tribunal, speaks loudly to the competency of the tribunal and provides circumstantial evidence of partiality;

2. The allowance into evidence of the unsubstantiated statements of the Editor of the Soberania magazine concerning the supposed documentation providing proof of the assertions made by the magazine against the Macias's, which, because unsubstantiated, amount to mere hearsay;

3. The holding up of the trial for ex post facto reasons. It is not contended that Mr. Macias suffered directly from the enactment of an ex post facto law because the new defamation law here in question has not appeared as yet, so no cause of action within the meaning of Article 9 of the Convention is presently contemplated. However, it is contended that postponement of Mr. Macias' trial for reasons of allowing the government time to write and enact new defamation laws amounts to denial of a fair trial and provides further circumstantial evidence of partiality. This is so because Mr. Macias sought relief under the law in effect when the act of defamation occurred and thus, any new law, even if more beneficial to his cause, cannot be used to decide his case because the defaming party (the magazine) can only be held to the law in existence when the act of defamation occurred;

4. The unreasonable delay in obtaining a settlement of the claim. Trial was initiated on June 18, 1982 and has not been resolved as of this writing (May 12, 1983) almost eleven months (Also, see Article 46(2)(c);

5. The conditions of threat, innuendo and personal abuse, by the various government regulated and affiliated "communications media" which caused Mr. Macias to flee Nicaragua in fear for his life.

Article 11 - Right to Privacy

Mr. Macias feels that his right to privacy has been invaded upon because:

1. The method by which his trial was suspended amounted to an unlawful attack on his honor and reputation, caused denial of a fair trial as per the contentions made under Article 8 cause of action constituted an affirmation of the Soberania magazine's defamation and thus denied Mr. Macias an Article 14 right to reply. This unlawful attack on honor and reputation is protected against by Article 11(2).

2. The conditions, existing prior to and at the time of the magazine's article, of threat, innuendo and personal abuse were allowed and even abetted by the Sandinista Government, thus denying Mr. Macias the protection of the law against such interferences or attacks. Such denial is protected against by Article 11(3).

Article 14 - Right to Reply

Mr. Macias feels that because he has been denied the right to a fair trial as per his Article 8 contentions, and because he has been denied the protection of the law as per his Article 11 contentions, he has consequently been denied an effective right to reply. Article 14(1) allows to anyone injured by inaccurate or offensive statements the right to reply in the same communications outlet where such statements were made.

1. Mr. Macias feels that he has been injured by such statements because:

a. He was forced to leave his home country.

b. Of the damage done to his career.

c. Of the damage done to his reputation and honor.

2. Mr. Macias feels that the statements made in the Soberania magazine were inaccurate, because such statements indicate on their face that he received money from the United States Central Intelligence Agency, when in fact he received no money from that source.

3. Mr. Macias attempted to use the pages of the Soberania magazine to reply to the accusations made therein, but was refused this right;* nor would the magazine retract its offensive and inaccurate statements, so Mr. Macias filed suit under the law of Nicaragua, i.e. Title II, Article 3 of the Statute on the Rights and Guarantees of Nicaraguans (Decree Nº 52, published in DIARIO OFICIAL, Nº 11, on 17 September 1979).

4. The Soberania magazine is disseminated to the public and is legally regulated by the Nicaraguan Government through the Provisional Law of the Communications Media, issued on 26 August, 1979, and Decreee 511 and 512 issued on August 27, 1980.

5. Article 14(3) of the Convention purposes the protection of a citizen's honor and reputation and facilitates the implementation of such purpose by removing protection to communication media of special privilege and immunity; thus the Soberania magazine can claim no special protection from the consequences of statements made therein.

Mr. Macias' main purpose in filing this petition is to clear his name from the calumnious statements made against him by the Soberania magazine. Under normal expectations such an endeavour would be rather easily attained through the due process of local law, but as indicated in this petition and accompanying documentation, such due process has been denied to him.

2.          The pertinent parts of the complaint were transmitted to the Government of Nicaragua on May 31, 1983 and the response of the government dated August 18, 1983, states the following:

The Court records of the first Criminal Court of Managua show that file Nº 450 of 1982 involved a case brought by Mr. Edgard Macias Gomez against Freddy Balzan charging the latter with having slandered him in writing and having caused him damages, these charges were filed on July 2, 1982.

The National Commission for Promotion and Protection of Human Rights appeared as an observer to this case, and Dr. Salomon Calvo Arrieta appeared as the person who presented the criminal charges against Freddy Balzan, having been granted Mr. Edgard Macias Gomez's power of attorney. Any attempt at conciliation of the parties was not attempted. Therefore this procedure has not been exhausted.

Lastly, the Government of Nicaragua vigorously rejects the notion that Mr. Freddy Balzan works for the Ministry of the Interior, and on the contrary, he is the founding director of the magazine.

Soberania which has national and international circulation and which is an independent news organ and the only body responsible for the news, ideas and opinions published in the magazine.

3.          The observations of the complainant to the response of the government, dated February 17 1984, reads as follows:

The international rule of law that settlement of disputes in an international forum must be preceded by an exhaustion of domestic remedies is not an inflexible or rigid rule of law,[1] but contains many exceptions most all of which are essentially concerned with a denial of justice.

Such exceptions include, but are not limited to:

1. Justice in the local courts is wholly lacking;

2. The injury was caused by the arbitrary and unjust actions of the highest officials of the government, and there appears to be no adequate ground for believing that a sufficient remedy is afforded by judicial proceedings;

3. The local courts have been superseded by military or executive authorities;

4. The local courts have been menaced or controlled by hostile mobs.

These exceptions seem to us to be accepted consensual law,[2] as well as simple common sense.

A. THE RELEVANCE OF THESE EXCEPTIONS TO THE CASE OF EDGARD MACIAS:

First Exception

Justice in the local courts is wholly lacking

We contend that, if the facts alleged in Mr. Macias' petition concerning the events relating to a denial of a fair trial[3] are true, then he has effectively received a denial of justice at the hands of the First District Court of Nicaragua, in Managua; and such facts have not been refuted by the Nicaraguan Government's reply.

While the single fact of the First District Court's losing of Mr. Macias' complaint does not, in and of itself, suggest anything more than a non-malicious incompetency or at least a good natured mistake common to all jurisdictions at times, we feel that it must be viewed with more suspicion when the fact is integrated with the other acts of his court (presided over by Felix Trejos), and his government out of court.

When the losing of the petition is combined with the other fact alleged, as in

1. the court's indulgences in allowing into evidence the unsubstantiated hearsay statements of the Soberania Editor, Freddy Balzan, even after he had refused to answer a subpoena, and[4]

2. the holding up of the trial for ex post facto reasons, i.e., allowing the Government the right to stop an ongoing civil trial in order to write a different defamation law to be used by the courts.

We begin to see a pattern of behavior which expresses law not in any manner perceived by us as conforming in any way to just or even familiar norms of international law.[5]

This pattern of behavior is reinforced when we note the obvious reality that this disruption of the civil trial proceeding, which continues to this date (February 17, 1984), besides being an illegal prolongation of justice, has certainly had the effect of non-resolution of the defamation issue.

This non-resolution of the defamation issue is of no benefit to Mr. Macias who vigorously seeks to disassociate himself from the defamatory falsehood. He has not received any money from the United States Central Intelligence Agency and thus knows that such a charge can not be proved. Since this accusation can not be proved, and since the Soberania Magazine is known by its rhetoric, and by common knowledge[6] to be a voice of the government, as well as being extensively regulated by promulgated law,[7] then it naturally follows that the accusation against Mr. Macias was put into the public view to perpetuate a lie against Mr. Macias (and his wife) that could only work to his discrediting. This point is given clear additional credence by the tape/deposition of Miguel Bolaños, who purports to be the agent of the Nicaraguan Government employed to discredit Mr. Macias.[8]

From the trial facts asserted, from the logical inferences drawn from these facts and from the evidence presented to support our conclusions and our asserted facts, we see a governmental pattern of behavior designed to discredit Mr. Macias which manifested itself at the trial level by the loss of the petition, the allowance into evidence of unsubstantiated hearsay, and the postponement of the trial and non-resolution of the issue, for ex post facto reasons. Any judge, on any court, knows, or should know that such procedural illegalities are a violation of all known civilized law, thus the mere fact of such occurrences proves governmental control over the judiciary. A judiciary, so controlled, could not give independent reasoned justice even if it wanted to. And there is evidence[9] which indicates that one of the judges presiding over Mr. Macias' case (Felix Trejos) totally capitulated justice in his court on other occasions.[10] Such evidence indicates a man devoid of principle and subservient to unelected power, whose mere presence at the trial as a judicial officer provides additional evidence that justice was wholly lacking in the civil trial of Edgard Macias.

Second Exception

The injury was caused by the arbitrary and unjust acts of the highest officials of the government, and there appears to be no adequate ground for believing that a sufficient remedy is afforded by judicial proceedings.

A. Arbitrary and unjust acts

We contend that the injury sustained by Mr. Macias[11] directly resulted from the acts of the higher government officials of Nicaragua because we have presented evidence which indicates that these injurious acts resulted from the plans and policies of higher government officials.

1. Evidence presented

The role of the higher governmental officials of Nicaragua in the discrediting of Edgard Macias is well delineated and supported by the following evidence:

a. The tape/deposition of Miguel Bolaños who defected from Nicaragua about six months ago and was the agent employed by the Nicaraguan Government to discredit Mr. Macias. Mr. Bolaños not only makes known the plans and methods by which Mr. Macias was to be discredited, but also provides the names and their position occupied in the chain-of-command down which these plans and methods found expression.[12]

b. The affidavit signed by Salomon Calvo, Mr. Macias' Nicaraguan lawyer (who we feel showed great courage by responding to our request for additional information). Among other things, Mr. Calvo mentions that in his opinion Mr. Macias' life was in great danger for accusing the Soberania Magazine of liable. He further states that he, himself, saw the order issued to arrest Mr. Macias, and he also makes mention of the campaign launched by the government to discredit Mr. Macias.[13]

c. The La Prensa newspaper article censored by the government, wherein Mr. Macias tried to reply to the accusations made in the Soberania Magazine.[14]

d. The Directions of the Media and Communications, issued by the Minister of the Interior, dated June 15, 1982.[15]

e. The letter from the Editor of the La Prensa newspaper.[16]

f. The letter of David Armstrong to the Soberania magazine denying authorship of the defamatory article, when he was the author alleged in the hearsay testimony of Freddy Balzan.[17]

g. The Diplomatic Protection extended to Edgard Macias by Venezuela which by international law standards is never given unless domestic remedies were considered exhausted and resulting injuries are attributable to higher governmental officials.[18]

NOTE: The above items of evidence have already been presented to the Inter-American Commission on Human Rights; items (b), (c), (d), (e), (f), and (g) were presented with our petition on 31 May 1983. Item (a) was presented to the Commission when it was handed over to Mr. Jimenez during our January 10, 1984 meeting. We consider the item (a) piece of evidence to be only supplemental in nature because the acts of the higher government official in the discrediting of Mr. Macias, and the threat to his life can be readily deduced from the evidence submitted with our petition. We consider the item (a) piece of evidence to be confirmatory in nature and to flesh out what was already known. We therefore request that the item (a) piece of evidence not be used as a pretext to prolong the Commission's deliberations by the length of time necessary for the Nicaraguan Government to additionally respond to it.

2. Additional evidence available

Other items of evidence which indicate government involvement in the misuse of media, not submitted with the petition, but available in the public domain at the time of submission or developed later by subsequent events, include:

a. The Nicaraguan Provisional Law of the Communications Media, issued on 26 August 1979.

b. Nicaraguan Decrees 511 and 512, issued 9 September 1981.

c. Nicaraguan Decree 812, Article (3), issued 9 September 1981.

d. An Americas Watch Report on Human Rights in Nicaragua, May 1982 (see especially page 44).

e. An Americas Watch Report on Human Rights in Nicaragua, an updated assessment, November 1982 (see: especially pages 20-30).

f. Human Rights Working Papers, Nicaragua's Human Rights Record, The International League for Human Rights, March 1983 report (particularly chapter two, page 24).

3.          Conclusions from the evidence

Thus, from the evidence it seems possible to conclude that the higher officials of the current Government of Nicaragua actively sought to injure Mr. Macias by a media campaign to discredit him, and closure to him of any means to reply including the legal forum of a court of law. Such activity is by definition arbitrary and unjust.

B. No adequate remedy afforded by judicial proceedings

When a man's personal and civic honor is insulted in a communication media known to be the voice of and controlled by the executive board of a de facto government, and he is given no outlet to reply, whether in the communications media or a court of law then there is simply no adequate remedy possible, because in order to obtain a remedy there must first be a trial on the merits.

As was indicated under the first exception to the domestic remedies rule Mr. Macias' civil trial was sabotaged and finally prematurely terminated by the acts of the First District Court of Managua. Also, as already indicated (see: page 4 of this brief), one of the Judges involved in this case, i.e., Felix Trejos, has a penchant for unprincipled acts which links him to the government's plans and methods to discredit Mr. Macias.

But even if this were not the case, a judge's position as a judge makes him, in the eyes of any citizen bringing litigation before the court, a government official[19] with a sacred (although in this case abused) duty to uphold the law. That the acts of this Court illegally resulted in the non-resolution of the defamation claim brought by Mr. Macias indicates that not only was a sufficient remedy not afforded by judicial proceedings, but also that the very access to law[20] needed for a remedy to be forthcoming has also been denied.

The judicial loss of the petition; the allowance into evidence of rank hearsay; the postponement of the trial for ex post facto reasons; and the unreasonable delay in obtaining a resolution of the defamation claim, all support the contention that access to law was denied and so remedy was thus unattainable. Further, having no access to the trial court automatically precludes any appeal right, if such rights exist.[21]

Nor can it be assumed that treatment at an appeals level would be any different than what has been noted at the trial level, because as we have shown[22] there was great involvement by the higher officials of the Government of Nicaragua in the discrediting of Mr. Macias, and the government's ability to control lower judicial officers gives little hope that there could be an expectation of justice at an appeals level.

Third and Fourth Exceptions:

We feel that exceptions three and four, i.e., the local courts have been superceded by military or executive authority, and the local courts have been menaced or controlled by hostile mobs, can be combined in our case because:

Exception Three:

a. We have put forth allegations which on their face indicate that the judicial authority of the Government of Nicaragua, as represented by the First District Court of Managua and by Judge Felix Trejos, has been superceded by the executive authorities of the Government of Nicaragua; and such allegations have not been rebutted by the Nicaraguan government's reply.

b. We have supported such allegations by presented evidence indicating the governmental campaign to discredit Mr. Macias[23]; we have shown by two pieces of evidence (Miguel Bolaños' tape/deposition and Salomon Calvo's letter) and his own unrefuted acts, the complicity of Judge Felix Trejos in the discrediting of Mr. Macias,[24] a discrediting which could only benefit the government's point of view; also see the Commission's own report on Felix Trejos.[25]

c. We therefore feel that we have shown the hegemony of the executive authorities over the judicial authorities in the present de facto Government of Nicaragua.

Exception Four:

a. We contend that the local courts were controlled by hostile mobs because:

1. The present Government of Nicaragua, because it has never held free elections, can be said to be without legal authority to govern, as is made clear by: Article 21(3) of the Universal Declaration of Human Rights incorporated into Nicaraguan law by Articles 6, 7 and 8 of Nicaragua's Fundamental Statute;[26] Article (1) of the International Covenant on Economic, Social, and Cultural Rights;[27] Article (1) of the International Covenant on Civil and Political Rights;[28] and by U.N. Security Council Resolution 253 (May 29, 1968, U.N. Doc. S/INF/23/REV. 1 (1969). Having no legal authority to govern, any agents employed by the de facto Government of Nicaragua to carry out its desires are by definition mobs;

2. And we have shown that it was the acts of these agents which created the environments hostile to Mr. Macias' efforts to disassociate himself from a lie in a court of law in the communications media.[29]

c. CONCLUSION

We feel that we have clearly shown that Mr. Macias has standing to present his petition to the Inter-American Commission on Human Rights, because, among other things, the evidence clearly indicates that he is in compliance with at least four of the universal recognized exceptions to the international legal rule of exhaustion of domestic remedies; and only a showing of one exception is required. We thus contend that this denial of access to law, by definition constitutes a denial of justice.[30] We therefore ask "How is Mr. Macias to obtain this fundamental legal human right?" (See: Brief on access to Inter-American Human Rights Court).

4.          The petitioner expressed his wish to present his case before the Inter-American Court of Human Rights in the following terms:

I. THE HUMAN RIGHTS INVOLVED, AS WE PERCEIVE THEM

Every person may resort to the courts to insure respect for his legal rights.[31] To deny access to the courts is to prevent the attainment of remedy without a trial on the merits[32] and effectively constitutes a violation of the Rights to Judicial Protection, guaranteed by Article 25 of the Inter-American Human Rights Convention.

Since it is impossible for Mr. Macias to avail himself of this guaranteed right under the current de facto Government of Nicaragua (see Domestic Remedies Brief), we submit that the only judicial forum remaining open to him is the Inter-American Human Rights Court, because it is the only trial organ left which is authorized by the Inter-American Human Rights Convention to enforce the application of the Convention for the purpose of seeking a remedy.[33]

In the case of Mr. Macias, we are not just seeking the results enunciated in Article 41 of the Convention which involves the Commission's report.[34] Instead we are seeking the right of Mr. Macias to have a fair trial, and to legally reply to the defamatory false allegation made against him, and these rights are guaranteed to Mr. Macias by Articles 8 and 14 of the Inter-American Human Rights Convention.

II. ARGUMENT IN THE CONTEXT OF THE INTER-AMERICAN HUMAN RIGHTS CONVENTION

a) ARTICLE 3

The basic question presented is where does a person go to obtain access to law when she/he has been denied the due process of law within the meaning of Article 46(2) of the Convention? Keeping firmly in mind that it is access to law, not access to an administrative hearing that she/he is seeking, it can be noted that the Convention explicitly recognizes his/her judicial personality in Article 3, which states in full:

"Every person has a right to recognition as a person before the LAW."

This right of access to law cannot be deemed by any stretch of imagination, to be satisfied by an administrative hearing which proposes no greater remedy than the issuance of a report and the making of a recommendation. Nor are the judicial safeguards of legal procedures of evidential substantiation protected in a hearing as they are in a court of law.

Thus, an administrative hearing cannot be considered law, per se, but merely a path to law. Article 3 implicitly recognizes this fact by not limiting a person's recognition before the law of a member state, but before law in general.

b) ARTICLE 10

Article 10 reinforces the notion that law implies remedies by stating that every person has a right to be compensated in accordance with law, if final judgment is wrongly arrived at through a miscarriage of justice (like a denial of a fair trial, etc.).

c) ARTICLE 33

Under Article 33 of the Convention, both the Human Rights Court and the Human Rights Commission have equal competency in matters relating to the fulfillment of the commitments made by the states party to the Convention.

This is an unqualified declaration which imposes no hegemony of Court over Commission and vice versa, thus the fulfillment of the Convention's commitment is really the equal responsibility of both. <