Report on the situation of human rights defenders in the Americas

REPORT ON THE SITUATION OF HUMAN RIGHTS DEFENDERS IN THE AMERICAS

VI. ESPECIALLY EXPOSED GROUPS OF DEFENDERS

208. The Commission notes that in recent years certain groups of human rights defenders have been more exposed to the infringement of their rights than others.[168] In this connection, one should note, among others, trade union leaders, who are especially exposed during periods leading up to changes in rights in their union, campesino and community leaders who stage or organize public demonstrations, indigenous leaders who defend the rights of their peoples, and judicial officers, especially to the extent they bring cases on human rights violations. In addition, it should be noted that women human rights defenders, considering their gender, are exposed to specifically sexual threats or assaults.

A. Trade union leaders

209. Since they first appeared in history, trade union organizations have played a fundamental role in the defense of the human rights of thousands of workers throughout the hemisphere who have faced precarious labor conditions in their workplaces. In addition, these institutions have been key in the political and social organizing of thousands of persons, as they constitute key examples of organized political expression for presenting the labor and social demands of many sectors of society.

210. In retaliation for this social and political initiative, many trade union leaders have been victims of all types of acts aimed at thwarting their work, including serious human rights violations.[169] Accordingly, in many countries of the region, the exercise of trade union activity is dangerous, due to the extreme risks faced by those who seek to lead efforts to improve working and social conditions for workers.

211. Due to the natural inequality in the labor relationship, trade union leaders make easy targets of professional or labor-related reprisals for their work. The cumulative experience of the Committee on Freedom of Association has shown the interminable ways in which trade union promotion can be thwarted by anti-union discrimination in areas such as remuneration, economic, social, and fringe benefits, workloads, work hours, and opportunities for rest and vacation, among many others. In other cases, employers have recourse to lay-offs or transfers in direct retaliation for the exercise of the right to form and join trade unions, with a negative impact on the interests of trade union leaders, organizing, and the workers. Thanks to these practices, many union organizations have disappeared or have lost their capacity to negotiate and press grievances, for reprisals against trade union leaders discourage all other workers from joining unions, staying in them, or participating in their activities.

212. In addition to the types of labor-related repression within the workplace, workers who take the initiative in pressing trade-union demands are frequently victims of threats, assaults, and assassination attempts. The Commission has found that in some countries, the persecution of trade union leaders and their family members is increasingly common and systematic. The Commission has learned that most violations take place in the context of trade union activity, and occur with greater intensity when there are nationwide work stoppages, when unions are being established, during collective bargaining, or in the midst of other struggles to improve observance of social rights, such as the negotiation of trade union demands and internal union elections. These actions are aimed at limiting the bargaining power of organizations at those moments that are most crucial to improving labor conditions.

213. The IACHR has found that in many cases, repressive actions combine physical violence with threats to life, and increased harassment in the workplace, or temporary transfer of certain leaders from the workplace, as a result of which the leader loses touch with the rest of the unionized workers, and is unable to carry out his or her organizing activities.

214. The Commission also notes with concern that in some countries of the region, violent actions against trade union leaders entail a process of stigmatization that has turned many unionists into “military targets” of “self-defense” or paramilitary groups, as well as the contracting of private justice groups to direct physical violence against members of trade union organizations engaged in collective bargaining. In addition, the Commission has received reports of speeches and public statements by state authorities that delegitimize the work of trade unions, adducing that their members oppose the economic development of nations or productive progress, in an effort to get society to reject the legitimate work of those persons who vindicate such rights.

B. Campesino and community leaders

215. The backsliding in the degree of attainment of economic, social, and cultural rights, the increased inequity in the concentration of wealth, and the deepening of social exclusion that have taken place in the last decade have generated protests and deepening social exclusion in the hemisphere, giving rise to protests and social mobilizations that have extended to several countries of the Americas. The struggle for the right to land and the right to a healthy environment, demonstrations against economic reforms, and protests against greater “flexibility” in labor contracts, among many other factors, have led thousands of human rights defenders, student leaders, social leaders, and rural leaders to organize to struggle for the effective observance of their rights. The Commission has received many complaints that indicate that many leaders have been targeted by threats and attacks because of their work to protect economic and social rights.[170] In this regard, the Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission has stated that

Our hemisphere’s most impoverished sectors encounter discriminatory policies and actions, their access to information about the planning and execution of measures affecting their daily lives is nascent at best, and, in general the traditional channels of participation for publicizing their complaints are frequently blocked off to them. Faced with this, in many countries around the hemisphere, protests and social mobilizations have become a tool for petitioning the authorities and a channel for publicly denouncing human rights abuses and violations.[171]

216. The IACHR observes with concern that in some cases the institutional responses to the acts mentioned have been tended to criminalize social protest by police repression and criminal prosecution of the persons involved, distorting the application of the criminal laws of the state, and violating inter-American treaties for the protection of human rights, which protect the rights to life, physical integrity, freedom of expression, freedom of assembly, and freedom of association, among others.[172]

217. The Commission wishes to reiterate that the effective exercise of democracy requires as a precondition the full exercise of the fundamental rights and freedoms of citizens. Criminalizing legitimate social mobilization and social protest, whether through direct repression of the demonstrators or through an investigation and criminal prosecution, is incompatible with a democratic society in which persons have the right to express their opinion.

218. The conflicts and situations of tension provoked by the inequality in the distribution of natural resources in the vast majority of countries of the hemisphere has given rise to confrontations that create the conditions for excesses to be committed in the repression, and for human rights violations.[173] In many cases, the persons who promote and lead these initiatives to seek redress are the hardest hit, as they are considered targets who can set an example to dissuade others from participating in the protests.

219. The Commission has received information concerning the increase in the cases of excessive use of force by state agents to control demonstrations and protests of rural workers, campesino leaders, social leaders, and student leaders. The Commission has been informed that in many cases, peaceful demonstrations have become violent confrontations due to the authorities’ repressive approach and the lack of comprehensive solutions.

C. Indigenous and Afro-descendant leaders

220. Indigenous and Afro-descendant leaders play a crucial role in their communities, religious as well as cultural and political. The IACHR has found that the patterns of violations of their human rights generally have a direct correlation with their activities laying claim to, defending, and protecting their territories and natural resources, defending their rights to autonomy and to cultural identity. The IACHR has noted with concern the frequency of assassinations of and threats against indigenous leaders engaged in the defense of their peoples’ rights, and impunity, in the vast majority of cases, for the perpetrators of these serious violations. Similarly, the Commission has received and processed complaints of violations of leaders of Afro-descendant communities in several countries of the region, and has requested the Inter-American Court to protect threatened Afro-descendant leaders.[174]

221. In recent years a considerable increase has been observed in the requests for precautionary measures from indigenous leaders, who have found it necessary to recur to the inter-American human rights system to attain protection for the right to life and the right to personal integrity, and respect for the special relationships indigenous peoples have with their ancestral territories. The Commission is extremely concerned over the devastating effect on the indigenous peoples and Afro-descendant communities of threats, assassinations, and the forced displacement of their leaders. In the vast majority of cases, the persons who stand up for the rights of their peoples and communities are those spiritual leaders considered a source of ancestral knowledge; they are fundamental figures for the political, spiritual, and cultural development of the communities. The unexpected absence of these leaders seriously undercuts the identity, integrity, and culture of the peoples and communities to which they belong. Accordingly, these actions have a direct negative impact on the cultural integrity and survival of the indigenous peoples.

222. In addition, the Commission is concerned about incidents involving attacks on human rights defenders who represent the rights of indigenous peoples and Afro-descendant communities in the courts. Historically, discrimination against and exclusion of ethnic minorities in the hemisphere have been accompanied by the systematic lack of access to justice. The attacks on persons who provide legal counsel to the members of indigenous peoples and Afro-descendant communities further aggravate the already-precarious judicial protection for indigenous peoples.

D. Judicial officers

223. In the region, there are ever more judicial officers committed to the cause of human rights, justice, and the attainment of democracy. In this regard, the Commission wishes to note the valuable work of those individuals and authorities whose functions include protecting, enforcing, promoting, or defending the human rights of individuals and communities throughout the Americas. Judges, prosecutors, public defenders, and police commissars, as agents of the administration of justice, play a fundamental role as a liaison between the state and the general population. Moreover, they are the ones who carry out the investigation, prosecution, and punishment of perpetrators of human rights violations.

224. The Commission is aware that the situation of insecurity affecting judicial officers in charge of investigating cases of human rights violations has a detrimental impact on the independence of their work, and on their personal security and that of their families. Threats, intimidation, and other acts against the life and physical integrity of judicial officers have led to a substantial increase in insecurity in the performance of their work.

225. The Commission also observes that the users of the judicial system as well as all those who answer to the call of justice to participate in the proceeding, be it as witnesses or experts, are also victims of this insecurity, which encumbers the search for justice, and determines that on many occasions citizen opt not to have recourse to the courts or to refrain from cooperating with the judicial organs.

E. Women

226. The Commission considers violence against women to entail violations of many human rights.[175] In this regard, the IACHR has referred to the right to be free from violence in the public sphere and in the private sphere, stipulated in Article 3 of the Convention of Belém do Pará, which includes protection of other basic rights, among them, the rights to life, to personal integrity, to liberty, to be free of torture, to equal protection before and of the law, and to effective access to justice, stipulated in Article 4.[176] Accordingly, there is an integral connection between the guarantees established in the Convention of Belém do Pará and the fundamental rights and freedoms stipulated in the American Convention, which applies once one treats violence against women as a human rights violation.

227. The Commission finds that there are two situations that require special attention: that faced by women human rights defenders in general, due to the historical disadvantages women and girls have suffered, and that of women human rights defenders who specifically promote and protect women’s rights.

228. The Commission has learned of special types of threats, based on the gender of the threatened person. Based on information collected recently, the Commission observes that women human rights defenders and organizations that defend women’s human rights continue to be subjected to systematic intimidation, persecution, kidnapping, torture and sexual abuse, among other crimes, in relation to their work, along with other forms of discrimination and physical, psychological and sexual violence for gender reasons. In this respect, the Commission has received multiple petitions regarding the stigmatization of women’s rights defenders, who are stigmatized due to the historical patriarchal conception that assigns an inferior role to women. As such, these defenders are stigmatized with social, degrading stereotypes concerning their sexual life, or are accused that their work for eradicating discrimination against women is against the moral values or the social institutions such as the family.

229. The Commission also recognizes the vulnerability of women who specifically work to defend women’s human rights. The IACHR recognizes that by promoting and protecting the rights of other women, these women defenders increase their own risk and are exposed to yet another factor of discrimination among the many forms of discrimination suffered by women.[177]

230. In some countries where armed conflicts persist, combatant groups frequently impose social controls on women’s living conditions, dictating to them standards of daily behavior, interfering in family and community disputes, and meting out punishments as harsh as murder, torture, and cruel and degrading treatment, in situations in which these women fail to adhere to the codes of behavior imposed on them by force. In such cases, the armed actors believe that the leadership exercised by women’s organizations represents an obstacle to advancing their own social and territorial control and, as a result, national and regional women’s organizations operating in zones of armed conflict are subject to harassment and threats that seriously affect the community work they perform.[178]

231. The Commission also finds that the situation of ingenuous and afro-descendent women, including those women who lead the campaigns demanding rights, is particularly critical, as they are victims of multiple forms of discrimination because of their race, ethnic group and by the virtue of being women; A situation that is aggravated in those countries that suffer from social tensions or armed conflict. Indigenous and afro-descendent women face two layers of discrimination since they are born: for belonging to their racial and ethnic group and because of their sex. Being exposed to two forms of discrimination historically, they are doubly vulnerable to abuse and mistreatment. The Commission has had knowledge that the champions of the rights of indigenous and afro-descendent women, in addition to the other forms of discrimination already indicated, are habitual victims of acts of racism, stultification and stigmatization on the part of the majority communities and, in some cases, of public authorities and people from within their own communities.

232. Given this context, the Commission reiterates that gender-based violence is unacceptable, be it in the form of murder, sexual violence, or domestic violence. Moreover, impunity for such acts reduces the visibility of these violations of rights to the point that domestic violence, for example, is the practice of an invisible crime.

VII. PRECAUTIONARY MEASURES

233. The mechanism of precautionary measures granted by the Commission is one of the most effective instruments for protecting the work of human rights defenders and their rights in the inter-American system. Like the provisional measures granted by the Inter-American Court[179], precautionary measures perform a “precautionary” function, in terms of preserving a legal situation vis-à-vis the exercise of jurisdiction by the Commission, and “protective” in the sense of preserving the exercise of the human rights enshrined in the provisions of the inter-American system, preventing irreparable harm to persons.

234. In practice, precautionary and provisional measures have been recognized by the member states of the OAS, the individuals who use the system, and the human rights community as a whole as an important tool for protecting human rights in the inter-American system. In recent years the Commission has made an effort geared to recording and properly analyzing the growing number of requests, defining criteria for invoking the provisions that regulate such measures, and monitoring their implementation. Below, a summary will be presented of the importance of precautionary measures of protection to human rights defenders.

A. Precautionary measures in the inter-American system

235. Precautionary or provisional measures (“interim measures”) are a procedural mechanism used by several international tribunals and quasi-judicial organs, both in the universal United Nations realm, and in the regional systems for the protection of human rights in Europe and the Americas. In the inter-American system, the Commission and the Court have the authority to decree precautionary and provisional measures, respectively.

236. Like other international organs, the Inter-American Commission has defined the existence and operation of this mechanism in its Rules of Procedure.[180] Article 25 states:

1. In serious and urgent cases, and whenever necessary according to the information available, the Commission may, on its own initiative or at the request of a party, request that the State concerned adopt precautionary measures to prevent irreparable harm to persons.

2. If the Commission is not in session, the President, or, in his or her absence, one of the Vice-Presidents, shall consult with the other members, through the Executive Secretariat, on the application of the provision in the previous paragraph. If it is not possible to consult within a reasonable period of time under the circumstances, the President or, where appropriate, one of the Vice-President shall take the decision on behalf of the Commission and shall so inform its members.

3. The Commission may request information from the interested parties on any matter related to the adoption and observance of the precautionary measures.

4. The granting of such measures and their adoption by the State shall not constitute a prejudgment on the merits of a case.

237. The text of the provision, which entered into force on May 1, 2001, with the Commission’s new Rules of Procedure[181], reflects the elements of gravity, urgency, and irreparability present in Article 63 of the American Convention. While these elements are taken into account by the judicial and quasi-judicial organs to whose practice reference has been made, these terms have not been clearly defined in the case-law of these organs. In the view of the Inter-American Court, the appreciation of the “extreme gravity” and “urgency” of the threat that such measures are intended to prevent should be understood mindful of the nature and content of the right in question. The requirement of extreme gravity and urgency presupposes the existence of a real danger or certain imminent threat that could result in irreparable harm to the fundamental rights of persons.[182]

238. This provision does not require that a case be pending before the Commission for a request for precautionary measures to be considered, in view of the circumstances in which the petitioners seeking the measure require the protection of the Commission, in order to prevent the grave and imminent consummation of an irreparable harm. When there is a case pending concerning an alleged violation of a right enshrined in the instruments of the system, the Commission can exercise its precautionary function in order to preserve circumstances which, if it were otherwise, would make its intervention in the determination of the international responsibility of States abstract. The Commission endeavors to avoid situations in which its issuance of precautionary measures, whether it be autonomous or as an accessory to a pending case, implies a pronouncement on the merits of a case about which a decision still has not been issued[183].

239. The mechanism established in Article 25 of the Rules of Procedure applies to both the member states of the OAS that have ratified the American Convention and those that have not yet done so. As the Commission has noted:

OAS member states, by creating the Commission and mandating it through the OAS Charter and the Commission's Statute to promote the observance and protection of human rights of the American peoples, have implicitly undertaken to implement measures of this nature where they are essential to preserving the Commission's mandate.[184]

240. The foundation underlying the binding nature of what the Inter-American Court has called the “precautionary” aspect of the measures issued by the organs of the system is similar to that of the universal and regional antecedents analyzed. The Court has highlighted the obligations of the states parties in the following terms:

the States Parties to the Convention should fully comply in good faith (pacta sunt servanda) to all of the provisions of the Convention, including those relative to the operation of the two supervisory organs; and, that in view of the Convention’s fundamental objective of guaranteeing the effective protection of human rights (Articles 1(1), 2, 51 and 63(2)), States Parties must not take any action that may frustrate the restitutio in integrum of the rights of the alleged victims.[185]

241. The binding nature of the protective aspect of the precautionary measures decreed by the IACHR rests on the general duty of the states to respect and guarantee human rights, to adopt the legislative or other measures necessary for ensuring effective observance of human rights, and to carry out in good faith the obligations contracted under the American Convention and the Charter of the OAS, as well as the competence of the IACHR to oversee that the states parties are carrying out the commitments they assumed, established at Articles 33 and 41 of the American Convention. In this respect, the Inter-American Court has established that

the ultimate aim of the American Convention is the effective protection of human rights, and, pursuant to the obligations contracted under it, the States should ensure the effectiveness of their mechanisms (endow them with effet utile), which implies implementing and carrying out the resolutions issued by its supervisory organs, whether the Commission or the Court.[186]

242. In practice, for the purposes of facilitating the study of requests for precautionary measures, the Commission has considered the requirements of gravity, urgency, and irreparability in relation to categories such as threats to life and the physical integrity of persons, threats to the environment that may result in harm to the life or health of the population or the way of life of indigenous peoples in their ancestral territories, and threats to health; the enforcement of certain types of judicial or administrative orders; and the legal situation of persons who are detained and held incommunicado.

243. Measures to protect life and physical integrity are of vital importance to human rights defenders, given the current situations of risk these persons face in many countries of the region. Given this situation, the lion’s share of requests are in this category, and precautionary measures have been decreed to protect the right to life and personal integrity, whether of one person, several persons, or an entire community.

244. The decision on the request depends on the gravity of the individual or collective situation, taking into account (a) the content of the threats received (oral, written, and symbolic messages, among others) and whether they have been carried out against one or more members of a group of persons; (b) previous acts of aggression against persons similarly situated; (c) the acts of direct aggression that may have been perpetrated against the possible beneficiary; (d) the increase in threats, showing the need to take preventive action; (e) and factors such as advocacy of or incitement to violence against a person or group of persons. Second, one must consider the urgency of the situation reported based on (a) the existence of cycles of threats and attacks showing the need to act immediately; (b) the continuity and proximity in time of the threats; (c) whether a credible “ultimatum” has been stated which, for example, indicates that the potential beneficiary should leave the region where he or she lives or become the victim of violations. The interests threatened in this category – life and personal integrity – no doubt constitute the extreme of irreparability of the consequences, which the granting of precautionary measures seeks to avoid.

245. In order to evaluate these aspects, one should consider information related to the description of the acts that are the grounds for the request (phone threats/written threats/assassination attempts/acts of violence/public accusations), the identity of the origin of the threats (private persons, private persons with ties to the state, state agents, others), the complaints lodged with the authorities, the measures of protection of which they are already beneficiaries and their effectiveness, a description of the context needed to weigh the seriousness of the threats, the chronology and proximity in time of the threats made, the identification of the persons affected and their degree of risk; individually identifying persons or groups who belong to a category of individuals at risk; and a description of the measures of protection or other measures requested. In addition, on evaluating this information, one takes account of the following contextual elements in relation to the country to which the request refers: the existence of an armed conflict, whether a state of emergency is in force, the degrees of effectiveness and impunity in the functioning of the judicial system, indicia of discrimination against vulnerable groups, and the controls imposed by the Executive branch on the other branches of government.

246. In the case of protecting life and physical integrity, not only is reference made to security measures required by the beneficiary, but also, it has been noted consistently that one must judicially investigate the threats, acts of harassment, or attacks that have targeted the beneficiary directly or other persons in his or her same situation (for example, in the case of human rights defenders, other members of the organization of which he or she is a member, who have been killed or exiled because of the threats). The Inter-American Court has established in its case-law that an investigation aimed at clarifying and eliminating the causes for which provisional measures have been granted is among the measures that the State should adopt for carrying out its obligation to remove the risk factors that beset the beneficiary.

247. The Commission is satisfied to note the measures that many states have adopted to comply with the requests for precautionary measures, which have included, in some cases, implementing systems of protection and risk analysis, and it calls on all other states to adopt without delay all measures necessary to keep human rights defenders from continuing to be victims of actions that impede the free exercise of their activity.

B. Precautionary measures decreed from January 2002 to December 2005 to protect persons involved in activities of human rights defense

248. Since the Human Rights Defenders Unit was established, the Commission has granted a total of 217 precautionary measures[187] of 1163 requests received. The following graphs show the relationship between the number of requests received and the number of measures actually granted in recent years. It should be noted that the number of precautionary measures granted does not reflect the number of persons protected by their adoption, since, as noted below, many of the precautionary measures granted by the Commission extend protection to more than one person, and in certain cases to groups of persons such as communities, indigenous peoples, and civil society organizations.

249. The Commission notes with concern that the group that has been forced to seek precautionary measures in the largest numbers corresponds to those persons who have received threats to their own rights because of their efforts to defend the human rights of other persons. Of the total number of precautionary measures granted during the period analyzed (217), 44,8% correspond to measures of protection granted to human rights defenders, which means that 97 measures in all have been granted to this group of persons.

250. Of the universe of the measures granted to defenders, the Commission notes that the largest numbers of threats come from Colombia (44), Guatemala (18), Mexico (8), Venezuela (7), and Brazil (6). In addition the situation is worrisome in Haiti, with respect to which five measures of protection have been granted, and from which one provisional measure was sought from the Inter-American Court.

251. Based on the affiliation of the beneficiaries of the measures granted, one finds that in the vast majority of these cases, they were granted to persons tied to civil society organizations, such as non-governmental human rights, peace, development, and environmental organizations. Second is a group of persons who did not say they were directly tied to a civil society organization, but who individually carry out work to defend human rights. Third were public employees such as judicial officers, personnel from the forensic medicine services, personnel from prosecutorial offices, and persons who hold popularly-elected positions such as legislators and local council members. Shared the same third persons who benefited from measures said they belonged to trade union organizations. Fourth place were indigenous leaders. Finally, in one case the beneficiaries belonged to a student organization.

252. The Commission notes that the defenders who are beneficiaries of precautionary measures undertake activities in different areas related to the promotion and protection of human rights. A large majority are involved in the judicial investigations of serious violations such as forced disappearances, extrajudicial executions, forced displacement, torture, and other forms of cruel, inhuman, and degrading treatment. Other persons work overseeing the power of the state in matters such as denouncing corruption, denouncing police brutality, and denouncing acts of collusion between authorities and paramilitary or parapolice groups. In addition, persons dedicated to protecting the rights of children, the rights of homosexuals, lesbians, and transgenders, the right of migrants, and the cultural and territorial rights of indigenous peoples and Afro-descendant communities have been victims of threats and risks to their life and integrity related to their work. The Commission also notes the grave risk that trade union leaders, social leaders, and student leaders in several countries face as they seek redress for their grievances.

253. In every case of measures granted to defenders, the Commission concluded that the facts show grave risks to the life and integrity of these persons and, in some cases, their families. Death threats are reported in almost every case. Many threats were made through written notes in which the messages are found, and in some cases strict orders indicating the time the threatened person has to leave a given place or must stop seeking redress for a given grievance. Another type of threat has been found in the form of objects that represent death or violence that appear at the offices or homes of human rights defenders, as in the case of bullet cartridges or bloodied dolls. In other cases, the threats were made through intimidating or insulting phone calls. In one case, a defender received phone calls where only funeral music was heard.

254. In addition, in evaluating the risk defenders face, the Commission took into account that many of these persons were victims of attacks with firearms and explosive artifacts, such as “book bombs.” The fact of human rights defenders or their family members being followed was also considered to show the urgent need for special protection. Commonly, vehicles without license plates or identification numbers follow the movements of human rights defenders; these vehicles park in strategic locations such as in front of their residences or offices, or by the schools attended by the children of the persons being threatened. Other defenders were arbitrarily deprived of their liberty and forced to get into vehicles in which they were beaten and threatened. In one such case, a woman human rights defender was knocked out and placed in the trunk of a vehicle, and released in another town several kilometers away.

255. In response to these incidents and the grave and imminent risk to life and physical integrity they pose to human rights defenders and their families, the Commission has made several requests to the states involved. In general, the Commission has called on the states to adopt, without delay, all measures necessary to protect the life and personal integrity of the beneficiaries. This has been translated, depending on the circumstances in each case, into the granting of perimeter protection for headquarters, offices, and residences, police escorts and private bodyguards, mechanisms of personal protection such as armored vehicles and bulletproof vests, temporarily leaving town, changes in residence, and trips outside the country.

256. The Commission has also requested the states that in carrying out the measures they pay special attention to the circumstances that produced the risk, so as to be able to fully deactivate the focal points giving rise to risk, and to keep the situations reported from recurring. In addition, the Commission finds that for this to be done, it is vital that the states allow the beneficiaries of the measures to participate in planning and implementing them. Finally, to prevent the chronic repetition of situations of risk, the Commission asks in every case, as part of the measures of protection, that a serious investigation be undertaken into the facts, so as to identify, prosecute, and punish the direct perpetrators and masterminds of the acts of intimidation and violence.

257. Even though the Commission is satisfied to receive the response from the state in most cases in which it has granted measures of protection to human rights defenders, it laments and is concerned about the lack of prompt and adequate action to provide effective protection in some cases, which has translated into fatal events, such as the death of defenders who have been beneficiaries of precautionary measures. In addition, the Commission notes its concern over the failure of judicial investigations to advance in the vast majority of cases studied. The Commission reiterates that the failure to prosecute and sanction the persons responsible for such deeds makes it impossible to structurally dismantle the causes giving rise to risk; accordingly, the failure to undertake an adequate investigation not only prejudices the daily activities of the defenders, but also increases the risk that they might become victims of even worse acts of violence. The Commission makes an appeal to the states to take actions necessary to fully protect human rights defenders, especially those who are the beneficiaries of precautionary and provisional measures.

VIII. THE STATES’ RESPONSES ON THE SITUATION OF HUMAN RIGHTS DEFENDERS

258. The Commission underscores the importance of the role of state organs in implementing international human rights law. Accordingly, in principle the implementation of human rights in the international system is primarily an internal matter, and, therefore, the organs of protection of the inter-American system are subsidiary in nature.

259. On that basis, and in order to analyze the advances of the states’ protection of defenders in keeping with the obligations they have assumed under the American Declaration and the American Convention, and reaffirmed in the most recent sessions of the OAS General Assembly, the Human Rights Defenders Unit prepared a questionnaire that it sent to the 35 member states of the OAS. The questionnaire had 20 questions, divided into three themes: recognition of the human rights organizations by the states, protection by the states, and acts that impede or encumber the tasks of human rights defenders and their organizations.

260. The Commission is grateful for the responses received from the states of Argentina, Belize, Bolivia, Chile, Costa Rica, El Salvador, Honduras, Mexico, Panama, Paraguay, Peru, Uruguay, and Venezuela. Below a summary of the states’ responses will be presented, organized based on the topics addressed in the consultation.

A. Recognition of human rights organizations

261. The Commission asked the states four questions to determine the legal requirements demanded by the authorities for forming civil society organizations whose purpose is to promote and protect human rights, and to determine whether the domestic legislations include measures that differentiate between those organizations that are legally recognized and those that are not. In addition, the Commission asked about the possibilities of foreign individuals and organizations exercising the defense of human rights in the territory of the countries of the Americas.

262. First, the Commission asked the states specifically how their legislation provided for developing the freedom of association for the defense of human rights, and whether the domestic laws or regulations imposed any restrictions on such activity. In general, the states answered that the freedoms of assembly and association are constitutionally recognized rights and that their citizens may make use of them to carry out activities to protect human rights.

263. Argentina stated that its legislation does not establish restrictions. Those persons who so desire may form non-profit civic associations with legal status, may do so informally in keeping with the provisions of the Civil Code, or may come together as fundaciones under the pertinent commercial law provisions. Non-profit civic associations must meet certain requirements such as having articles of incorporation, registering with the Office of the Inspector General of Justice, and keeping books of their assemblies and accounting books.

264. Belize noted that its Constitution establishes the right of association for all persons, and, pursuant to that right, those persons so interested may form non-governmental organizations in keeping with the provisions of the Companies Act. The state also noted that such organizations are independent of governmental control in both operations and management.

265. The Government of Chile stated that in its domestic legal order there is no special legislation for associating to defend human rights, accordingly one should refer to the general rules on the subject, contained in the Civil Code. Accordingly, the requirements for organizations dedicated to defending human rights are the same as for any group. Those organizations that formalize their existence as such become corporations at private law. The Chilean State indicated that to meet this requirement the organizations must fill out the standard form bylaws drawn up by the Ministry of Justice, by which they request of the President of the Republic that he grant them juridical personality. That authority grants such recognition through a decree that must be published in the Diario Oficial. The request must be submitted by at least six persons or the number of persons required to serve in the positions and functions described in the respective bylaws. None of these persons can have a criminal record, and they must have a minimum of economic means to carry out their activities.

266. The Government of Costa Rica indicated that freedom of association is constitutionally recognized and that form provided for in the law for forming such organizations is that of civic association (asociación civil). Nonetheless, human rights organizations may also organize as fundaciones, or trade unions when the purpose is to defend workers’ rights. According to Costa Rican legislation, any association must be constituted through a basic charter that governs its activities (articles of incorporation, or bylaws). In addition, in order for an association to carry out its activities lawfully, it must be entered in the Registry of Associations kept by the Ministry of Interior. The state emphasized that the juridical personality obtained with registration is declarative and not constitutive.

267. El Salvador indicated that if a group of persons wishes to come together to defend human rights, Salvadoran legislation offers the possibility of constituting a non-profit association that is legally formed once the founding members have the articles of incorporation put in the form of an official public document (escritura pública) and elect the members of the boards of directors. According to the Salvadoran authorities, the only restriction established by law is the bar on foreigners being members or founders of an association, which is only allowed if the person shows that he or she resides in the country.

268. The Government of Honduras answered that the freedoms of association, assembly, and petition enjoy constitutional rank. Accordingly, in order to constitute different types of organizations, one must make a formal request to the competent authority (Ministry of Government and Justice or Ministry of Interior) in order to obtain the juridical personality that allows it to operate legally.

269. The Mexican State reported that its legislation provides for two legal forms: Private assistance institutions (instituciones de asistencia privada) and civic associations (asociaciones civiles). The first are governed by the Law on Citizen Participation, among other laws, while the latter are regulated by provisions of the Civil Code. The State indicated that there was no restriction other than respect for the rights of all others. Thus, those persons who wish to form a private assistance institution or a civic association need only file a written request, attaching their draft articles of incorporation.

270. Panama answered noting that its Constitution recognizes the right to peaceful assembly. At the same time, this provision has been developed by an executive decree that regulates recognition as a social-interest, non-profit association for those associations that carry out socially beneficial activities. According to this decree, any organization that wishes to obtain juridical personality must file a power-of-attorney and an application through an attorney on official paper containing the legal grounds for the association. In addition, it must file the articles of incorporation and the bylaws. The members of the board of directors must be of Panamanian nationality, unless they are staff of embassies or diplomatic personnel. The work plan for the first five years must also be attached to the application.

271. The Paraguayan Government stated that any group of persons has broad powers to associate for the defense of human rights in Paraguay, since the Constitution recognizes the freedom of association. The Civil Code has a section on non-profit associations, so long as they state their specific purposes. The only limitation is that the purpose involve the pursuit of lawful aims; the formation of secret and paramilitary organizations is forbidden. The Paraguayan Government also indicated that the existence of juridical persons begins once they have been authorized by law or by the Executive branch, and are entered in the registry at the General Bureau of Public Registries.

272. Peru also indicated that under its domestic law the right of association has constitutional rank. According to the legislation, human rights organizations must adopt the legal form of a non-profit organization, since their activities are not geared to an economic or entrepreneurial objective; rather they have to rise funding to enable them to pursue their objectives. In addition, Peru indicated that within its jurisdiction, organizations can form without prior authorization, i.e. they are not subject to administrative or any other approval. The juridical personality of these organizations begins from their entry in the respective registry. The State emphasized that the entry is a merely declaratory requirement by which access to the formal sector is sought.

273. The Uruguayan Government indicated that its laws contain no restriction on the freedom of association, which is a right recognized in the Constitution. The legal forms provided for in the domestic legislation that are best-suited to human rights organizations are civic associations (asociación civil) and non-profit fundaciones. The requirements for constituting such associations are to present the written by-laws, approved by the assembly, the articles of incorporation of the association, and the notarial stamps and other fees established by the regulation.

274. On the same subject, the Commission asked the states what differences exist, if any, in the legal treatment afforded the organizations that are legally registered before the authorities and those that carry out their work informally. In addition, the Commission asked whether there is any difference between foreign individuals and organizations, and nationals. With respect to the first inquiry, the states in general indicated that the registration of organizations was declarative and enabled organizations to exercise rights as juridical persons, and, in some cases, to receive tax benefits.

275. Argentina indicated that the only notable difference between the informal and registered organizations is that the first are considered mere civic associations, and the founding members and directors assume joint-and-several liability for the acts of the informal ones. In addition, Argentina indicated that under its legislation, associations existing in foreign countries under the same conditions as those required in Argentina are juridical persons.

276. With respect to the differences between legally recognized organizations and those that are not recognized, Belize indicated that the only distinction is that the recognized ones may benefit from tax exemptions. The Belizean State also reported that its legislation regulates national and international organizations without distinction.

277. Chile noted that in contrast to the unregistered organizations, those with juridical personality have a full legal existence, and may acquire assets, dispose of their own property, obtain public and private financing, have bank accounts, and represent interests before the courts of justice. Similarly, non-profit organizations enjoy tax benefits. Nonetheless, the organizations without juridical personality may exercise citizen rights as natural persons. Chile indicated that there was no special regulation for foreigners and international organizations wishing to carry out activities in Chile, just as there are no special limitations on the Chileans who work in those organizations.

278. Costa Rica indicated that the informal organizations could carry out the same type of activities, but that their members would answer individually for them. In addition, some economic benefits can be granted to legally constituted organizations to which the informal groupings do not have access. With respect to foreign organizations, the Costa Rican Government reported that foreign associations, according to the associations law, may operate in Costa Rica when they establish a subsidiary or register in the country. If not in compliance with these options, they would be in the same situation as the informal organizations. The only limitation on foreign persons in Costa Rica, according to the state, is that the Constitution prohibits them from holding leadership positions in trade unions.

279. El Salvador stated that both the legally recognized organizations and the informal ones may engage in any lawful activity, peacefully and without arms. Nonetheless, the first are subjects of rights and are obligated to pay taxes, though non-profit associations may be declared to be of public utility by the General Bureau of Revenue, in which case they are exempted from payment of the income tax. El Salvador also indicated that its legislation does not have any special regulation for a foreign person to undertake human rights promotion activities, except that they cannot found an association if they do not have legal residence in the country. Nonetheless, the state recognized that “unfortunately the legislation on migration matters gives wide discretion to the authorities of the Ministry of Interior to consider whether a foreigner is becoming involved in internal political affairs, which is grounds for expulsion. One runs the risk, therefore, of the arbitrary use of that power, according to which a foreigner’s activities in the promotion and protection of human rights may be considered involvement in internal politics, and that they may be expelled and repress by that channel.”

280. Honduras stated that foreign persons have the same rights as nationals as provided in the Constitution. With respect to the difference between registered and informal organizations, Honduras indicated that the unrecognized organizations “may carry out their activities.”

281. Mexico indicated that the legally recognized organizations have the right to enter into cooperation agreements with the state, receive tax incentives, receive donations, make investments, and receive advisory services from the Junta de Asistencia Privada, among other benefits. Foreigners who wish to enter the country and engage in work to monitor the human rights situation may enter as visitors, in which case they are authorized for one year, which can be extended for up to four years. If the purpose of entering the country is solely to engage in promotion activities, no special permission is required to enter the country beyond what is demanded of all foreign citizens.

282. The Panamanian State answered that the legally recognized organizations have access to tax benefits and incentives aimed at bolstering their operations, and to contract and acquire rights and obligations on behalf of the organizations. The State added that under Panamanian law no organization, registered or unregistered, could serve as legal representative before the courts. With respect to the distinction between foreigners and nationals, the State reported that there is no provision establishing any distinction in the exercise of these rights.

283. The Government of Paraguay indicated that the differences between legally constituted organizations and others have to do with actions before the judicial, political, and administrative authorities of the state, in that the legally constituted associations may represent persons affected, whereas the informal groups cannot exercise such representation. As for the distinctions between foreigners and nationals, the State said that any foreign person must be affiliated with an internationally recognized organization to carry out human rights activities.

284. Peru indicated that the associations duly entered in the public registries may act before third persons with no limitations other than those established by law. In contrast, those not so entered do not have sufficient juridical personality to be able to act with the same facility. In addition, the State alleged that there is no limitation or distinction for foreign persons other than complying with residency requirements.

285. Uruguay said that the informal organizations cannot appear at trial, or enjoy tax benefits. Nonetheless, access to mechanisms of citizen participation, for example, on the ground, is not subject to official recognition or having juridical personality. Furthermore, the Government indicated that the recognition of international organizations whose main office is outside Uruguayan territory is subject to the special regime regulated in Decree 334/70. Among the benefits granted by that provision are, inter alia, the recognition of juridical personality, the inviolability of the organizations’ locales and documents, exemption from customs duties and other taxes, exemption from labor charges, and visa at no charge for entering and leaving the country.

B. Protection from the State

286. In the second section of the questionnaire, the Commission inquired into the means of protection created by the state to keep human rights defenders from being victims of illegal restrictions or reprisals for their work. First, the Commission asked the states whether they have forums for dialogue with the organizations dedicated to the promotion and defense of human rights.

287. Based on the states’ responses, the Commission finds that the state entities that have the most contact and dialogue with the human rights organizations are the Offices of the Human Rights Ombudsperson (las Defensorías del Pueblo). Accordingly, the Governments of Argentina, Costa Rica, Panama, and Venezuela indicated that the fundamental mechanism for dialogue was the Office of the Human Right Ombudsperson (la Defensoría del Pueblo or Defensoría de los habitantes).

288. Belize indicated that the Government provides for a mechanism of dialogue that includes quarterly meetings with the prime minister. The Government emphasized that this is the first time the Executive branch has recognized the importance of civil society, including it in the ministerial portfolio.