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IACHR ANNUAL REPORT 2008
D. Status of compliance with the recommendations of the IACHR
38. Complete compliance with the decisions of the Inter-American Commission is essential for ensuring that human rights have full force in the OAS member states, and for helping strengthen the Inter-American system for the protection of human rights. With that in mind, the IACHR, in this section, analyzes the status of compliance with the recommendations in the reports adopted by the Commission in the last seven years.
39. In this regard, the OAS General Assembly, in its resolution AG/RES. 2409 (XXXVIII-O/08), “Observations and Recommendations on the Annual Report of the Inter-American Commission on Human Rights,” urged the member states to follow up on the recommendations of the Inter-American Commission on Human Rights (operative paragraph 3.b) and to continue to take appropriate action in connection with the annual reports of the Commission, in the context of the Permanent Council and the General Assembly of the Organization (operative paragraph 3.c). Likewise, in its resolution AG/RES. 2407 (XXXVIII-O/08), “Strengthening of Human Rights Systems pursuant to the mandates arising from the Summits of the Americas,” it reaffirmed the intent of the OAS to continue taking concrete measures aimed at implementing the mandates of the Third Summit of the Americas, including follow-up of the recommendations of the Inter-American Commission on Human Rights (operative paragraph 1.b), and instructed the Permanent Council to continue to consider ways to promote the follow-up of the recommendations of the Inter-American Commission on Human Rights by member states of the Organization (operative paragraph 3.e).
40. Both the Convention (Article 41) and the Statute of the Commission (Article 18) explicitly grant the IACHR the authority to request information from the member states and to produce such reports and recommendations as it considers advisable. Specifically, Article 46 of the IACHR Rules of Procedure, which took effect on May 1, 2001, provides the following:
1. Once the Commission has published a report on a friendly settlement or on the merits in which it has made recommendations, it may adopt the follow-up measures it deems appropriate, such as requesting information from the parties and holding hearings in order to verify compliance with friendly settlement agreements and its recommendations. 2. The Commission shall report on progress in complying with those agreements and recommendations as it deems appropriate.
41. In compliance with its powers under the Convention and the Statute and with the above-cited resolutions, and pursuant to Article 46 of its Rules of Procedure, the IACHR requested information from the States on compliance with the recommendations made in the reports published on individual cases included in its annual reports from 2000 through 2007.
42.
The table the Commission
is presenting includes the status of compliance with the recommendations
made by the IACHR in the cases that have been decided and published in
the last seven years. The IACHR notes that compliance with different
recommendations is meant to be successive and not immediate and that
some recommendations require a reasonable time to be fully implemented.
The table, therefore, presents the current status of compliance, which
the Commission acknowledges as being a dynamic process that may evolve
continuously. From that perspective, the Commission evaluates whether or
not compliance with its recommendations is complete and not whether it
has been started.
43. The three categories included in the table are the following:
- total compliance (those cases in which the state has fully complied with all the recommendations made by the IACHR. Having regard to the principles of effectiveness and fully observed those recommendations where the state has begun and satisfactorily completed the procedures for compliance);
- partial compliance (those cases in which the state has partially observed the recommendations made by the IACHR either by having complied with only one or some of them or through incomplete compliance with all of them);
- compliance pending (those cases in which the IACHR considers that there has been no compliance with the recommendations because no steps have been taken in that direction; because the state has explicitly indicated that it will not comply with the recommendations made; or because the state has not reported to the IACHR and the Commission has no information from other sources that would suggest otherwise).
44. On October 11, 2001, the Commission approved the friendly settlement in the case of María Merciadri de Morini when it adopted Report 103/01. In summary, the petition objected to the application of Law 24,012 (the “Quota Law”) and the decree that implemented it, which addressed the inclusion of women candidates on electoral ballots.
45. The friendly settlement report indicated that on December 28, 2000, Decree No. 1246 was issued to guarantee the effective participation of women in the lists of candidates for national elective office. The petitioner stated that it adequately addressed the fundamental aspects of her complaint before the IACHR.
46. Based on what was stated, the IACHR concludes that the friendly settlement agreement has been implemented.
Case 11.804, Report No. 91/03, Juan Ángel Greco (Argentina)
47. On October 22, 2003, by Report No. 91/03, the Commission approved a friendly settlement agreement in the case of Juan Ángel Greco. In summary, the petitioners alleged that on June 25, 1990, Mr. Greco, 24 years of age, was illegally detained and mistreated when he sought to obtain police assistance when lodging a complaint regarding an assault. The petitioners indicated that while Mr. Greco was detained at the police station in Puerto Vilelas, province of Chaco, there was a fire in his cell in circumstances that were not clarified that led him to suffer serious burns. In addition, they argued that the police were responsible for provoking the fire and for delaying the transfer of the victim to the hospital for several hours. Mr. Greco was hospitalized until his death on July 4, 1990, and buried, according to the petitioners’ complaint, without an adequate autopsy. The petitioners also noted that the state did not perform an adequate investigation to clarify the facts adduced, with which it denied the family its right to have justice done, and to obtain compensation.
48. In this agreement the State agreed to the following:
1. Provide economic reparation to the family members of Juan Ángel Greco in the sum of three hundred thousand pesos ($300,000) that shall be paid to Mrs. Zulma Basitanini de Greco in the amount of thirty thousand ($30,000) per month in the time period specified in point 3 of the present item, that amount comprising material damages, moral damages, lost wages, costs, fees and any other classification that would arise from the responsibility assumed by the Province of Chaco.
2. Provide the petitioners and the Inter-American Commission on Human Rights, through the Office for Human Rights of the Foreign Ministry, a legalized and certified copy of two cases for which the Province of Chaco has requested reexamination.
3. Within the framework of its competences, encourage the reopening of the criminal case and the corresponding investigations.
4. Direct the reopening of the administrative case Nº 130/91-250690-1401 once the criminal case has been reopened.
5. Commit itself, in the framework of its competences, to ensuring that the victim’s family members have access to the judicial and administrative investigations.”
6. Publish the agreement in the principle written press sources of the nation and the Province of Chaco.”
7. Continue pursuing legislative and administrative measures for the improved protection of Human Rights. Specifically, it was placed on record that a draft law creating a Criminal Prosecutor’s Office for Human Rights has been developed and transmitted to the Provincial Chamber of Deputies for its study and approval.
8. Strengthen the work of the Permanent Commission for Control of Detention Centers, created by Resolution No. 119 of the Ministry of Government, Justice and Labor of the Province of Chaco, on February 24, 2003.
9. Further emphasize the work of the Organ of Institutional Control (O.C.I) created by Article 35 of the Organic Police Law of the Province of Chaco Nº 4.987, directing it toward the more effective protection of human rights on the part of the Provincial Police. At the initiative of the Executive, the Provincial Counsel for Education and Promotion of Human Rights created by Law Nº 4.912 was constituted in the sphere of the Chamber of Deputies. The representatives of the distinct intervening organs and powers have already been designated and convoked.
49. In 2008, the Commission requested up-to-date information from both parties. In this respect, in communications of July 17 and December 19, 2008, the State referred the IACHR to the report of April 3, 2008, prepared by the General Bureau of the Institutional Oversight Organ of the Police of the Province of Chaco for the Provincial Bureau for the Defense of Democracy and the Citizen of the Province of Chaco, on the steps taken in the administrative summary proceeding initiated in the case of the Principal Police Commissioner Juan Carlos Escobar, the Deputy Police Commissioner Adolfo Eduardo Valdez, and the First Sergeant Number 2065 Julio Ramón Obregón, for the purpose of establishing whether there was disciplinary liability on their part on the occasion of the detention of Juan Ángel Greco and his subsequent death.
50. The petitioners presented letters of August 13 and December 5, 2007, in which they indicated to the IACHR that five years had elapsed since the friendly settlement agreement and 18 years since the death of Juan Ángel Graco without any criminal and/or disciplinary sanction being imposed to date on anyone in connection with the events that unfolded from June 25 to July 4, 1990, which caused the victim’s death. In addition, the petitioners reported that the point of the agreement regarding access to the criminal and administrative proceedings had not been implemented, nor had they received the certified and legalized copy of the two cases in which the province of Chaco has sought reconsideration. They concluded that the information provided by the State is incomplete and does not make it possible to supervise the implementation of the commitments assumed by the State in the friendly settlement agreement.
51. Based on the available information, the Commission has already considered implemented those aspects of the agreement related to monetary compensation, and those related to its publication. Nonetheless, based on the information submitted by the parties in 2008, it appears that the aspects related to the duty to investigate and punish the persons responsible for the violation of the human rights of Juan Ángel Greco, and those related to access of the victim’s family members to the judicial and administrative investigations, have yet to be carried out.
52. In view of the foregoing, the IACHR concludes that the friendly settlement agreement has been implemented in part.
Case 12.080, Report No. 102/05, Sergio Schiavini and María Teresa Schnack (Argentina)
53. On October 27, 2005, by Report 102/05, the Commission approved a friendly settlement agreement in the case of Sergio Schiavini and María Teresa Schnack. In summary, the petitioners had made arguments referring to the responsibility of the State for the death of Sergio Andrés Schiavini, on May 29, 1991, during a confrontation between members of the Police of the Province of Buenos Aires and a group of assailants who held several persons hostage, including the young Schiavini. The petitioners stated as injuries inflicted by grievous conduct on the part of the State the excessive use of force during the exchange of fire; the denial of judicial protection and judicial guarantees; and the acts of persecution to which María Teresa Schnack has been subjected since the death of her son, Sergio Schiavini, for giving impetus to the investigation.
54. In the friendly settlement agreement, the State recognized its responsibility for “the the facts of what transpired in the aforementioned jurisdiction and the attendant violation of the rights and guarantees recognized by the American Convention on Human Rights as described in Admissibility Report No. 5/02, adopted by the IACHR during its 114th regular session.”
55. According to that agreement, the State undertook as follows:
1. The parties agree to set up an “ad-hoc” Arbitration Tribunal to determine the amount of economic reparation due Sergio Andrés Schiavini’s heirs, in keeping with the rights acknowledged to have been violated and the applicable international standards. The Tribunal shall be made up of three independent experts, with recognized expertise in human rights and of the highest moral caliber. The petitioners will designate one expert, the national State shall propose a second, and the third shall be proposed by the two experts designated by the parties. The Tribunal shall be formed no later than 30 days following the approval of this agreement by Decree of the Executive Branch of the Nation.
2. The procedure to be followed shall be determined by common agreement among the parties, and set forth in writing, a copy of which shall be submitted to the Inter-American Commission on Human Rights. To this end, the parties shall designate a representative to participate in the discussions of the procedure. In representation of the national State, the Ministry of Foreign Affairs, International Trade, and Worship and the Ministry of Justice and Human Rights shall be charged with designating an official in the area with competence in human rights matters in both Ministries.
3. The parties agree to form a technical working group, in which the Government of the Province of Buenos Aires shall be invited to participate, to carry out the studies and take such other steps as may be necessary to submit for the consideration of the Legislature and, where appropriate, the competent federal authorities, the following initiatives, aimed at implementing the necessary measures to bring existing law into harmony with international standards, in accordance with point 2 of the Act dated November 11, 2004:
a) Draft legislative reform bill making it mandatory, with no exceptions, to perform an autopsy in all cases of violent or criminally suspicious deaths. It will also prohibit members of the security forces from being involved in this process with respect to facts in which they have participated;
b) Draft reform of the Criminal Procedures Code of the Nation granting a victim’s relatives the right to choose to designate their own expert before the autopsy is performed;
c) Analysis of the legislation in force on the procedures followed by the forensic medical office to evaluate possible modifications that could contribute to ensuring transparency and effectiveness in its performance;
d) Draft reform of the Criminal Procedures Code of the Nation to incorporate the violation of human rights as grounds for review;
e) Draft reform of the Criminal Procedures Code of the Nation incorporating the violation of human rights as grounds for the immediate suspension or interruption of the statute of limitations;
f) Evaluation of domestic law concerning hostage-taking and the use of force to bring it into harmony with international standards in accordance with principle No. 3 of UN Resolution 1989/65;
g) Proposal that, in the event that the appeal for review in the Schiavini case filed by the Provincial Office of the General Prosecutor before Chamber 111 of the Criminal Court of Cassation of Buenos Aires Province is unsuccessful, a “Truth Commission” is established at the federal level to help effectively safeguard that right;
h) Development of draft reforms setting forth the procedures for processing and responding to petitions under study by the Commission and before the Inter-American Court of Human Rights, that include the establishment of a specific entity with jurisdiction in the decision-making process—including the institution of “friendly settlement”—and a mechanism to ensure compliance with the recommendations and/or judgments of the Commission and/or the Inter-American Court of Human Rights.
4. The Government of the Argentine Republic pledges to facilitate the activities of the working group and make available the technical support and facilities it requires in order to perform its task. It also pledges to periodically inform the Inter-American Commission on Human Rights regarding the outcomes of the task entrusted to the technical group and invites the Commission to participate actively in evaluating the draft reforms, as well as the follow-up and evolution of these initiatives.
5. The Government of the Argentine Republic pledges to publish this agreement in the Official Gazette of the Argentine Republic, in the newspapers “La Unión” of Lomas de Zamora, “Clarín”, “La Nación,” and “Página/12”, once it has been approved by the Inter-American Commission on Human Rights in accordance with the provisions of Article 49 of the American Convention on Human Rights.
56. The Ad Hoc Arbitration Tribunal to Determine Pecuniary Reparations in the Case of Schiavini against the State of the Argentine Republic, constituted in the context of the friendly settlement agreement and made up of arbitrators Víctor Manuel Rodríguez Rescia, Marcelo López Alfonsín, and Fabián Omar Salvioli, issued its award on December 4, 2006, and read its arbitral decision in an oral and public hearing held in the city of Buenos Aires that same day.
57. The Commission evaluated the process for reaching the arbitral decision, as well as the decision issued in relation to pecuniary reparations in the case. In addition, in a communication of October 25, 2007, the petitioners reported that a credit was deposited into the beneficiaries’ bank accounts, in the amount agreed upon by the Ad Hoc Tribunal for the for pecuniary reparations. Accordingly, the State has carried out the aspects of the agreement related to monetary compensation.
58. In November 2008 the Inter-American Commission requested up-to-date information from the parties in follow up to its Report 102/05. In a communication of January 9, 2009, the Argentine State reiterated to the IACHR the information regarding compliance with the pecuniary aspects of the agreement As for the non-pecuniary measures of reparation and non-repetition, the State reported holding several meetings with the petitioners to design a specific agenda for this year 2009 whose essential objectives are focused on forming a Truth Commission and evaluating the normative measures in the agreement, particularly those referring to the implementation of an internal procedure for regulating the processing of petitions and cases in the international arena.
59. The petitioners, in a communication of July 2, 2008, confirmed enforcement of the arbitral award that determined the pecuniary reparation. As for the other measures included in the agreement, they mentioned a working meeting held to design an agenda to go forward in implementing the various measures agreed upon, in particular referring to the designation of the experts who will constitute the Truth Commission. They also indicated that while initiatives were being considered aimed at implementing an internal procedure for regulating how petitioners and cases before the regional human rights system are to be handled. Finally, they reported that they had heard nothing new from the State on the various bills introduced by COFAVI among the measures for making improvements.
60. In view of the foregoing, the Commission concludes that the friendly settlement agreement has been carried out in part.
Cases 12.067, 12.068 and 12.086, Report N° 48/01, Michael Edwards, Omar Hall, Brian Schroeter and Jeronimo Bowleg (Bahamas)
61. In Report N° 48/01 of April 4, 2001, the Commission concluded that the State was responsible for: a) violating Articles I, XVIII, XXV and XXVI of the American Declaration by sentencing Messrs. Edwards, Hall, Schroeter and Bowleg to a mandatory death penalty; b) violating Messrs. Edwards’, Hall’s, Schroeter’s and Bowleg’s rights under Article XXIV, of the American Declaration, by failing to provide the condemned men with an effective right to petition for amnesty, pardon or commutation of sentence; c) violating Messrs. Hall’s, Schroeter’s and Bowleg’s rights under Articles XI, XXV, and XXVI of the American Declaration, because of the inhumane conditions of detention to which the condemned men were subjected; d) violating Messrs. Edwards’, Hall’s, Schroeter and Bowleg’s rights under Articles XVIII, and XXVI of the American Declaration, by failing to make legal aid available to the condemned men to pursue Constitutional Motions; and e) violating Messrs. Schroeter’s and Bowleg’s rights to be tried without undue delay under Article XXV of the Declaration.
62. The IACHR issued the following recommendations to the State:
· Grant Messrs. Edwards, Hall, Schroeter and Bowleg, an effective remedy which includes commutation of sentence and compensation;
· Adopt such legislative or other measures as may be necessary to ensure that the death penalty is imposed in compliance with the rights and freedoms guaranteed under the American Declaration.
· Adopt such legislative or other measures as may be necessary to ensure that the right to petition for amnesty, pardon or commutation of sentence is given effect in The Bahamas.
· Adopt such legislative or other measures as may be necessary to ensure that the right to an impartial hearing and the right to judicial protection are given effect in The Bahamas in relation to recourse to Constitutional Motions.
· Adopt such legislative or other measures as may be necessary to ensure that the right to be tried without undue delay is given effect in The Bahamas.
· Adopt such legislative or other measures as may be necessary to ensure that the right to humane treatment and the right not to receive cruel, infamous, or unusual punishment are given effect in The Bahamas.
63. On November 8, 2002, the Commission wrote to both the State and the Petitioners and requested up-dated information concerning compliance with the Commission’s Recommendations in Report N° 48/01. The State has not responded. On December 18, 2002, the Petitioners in Case 12.067, Michael Edwards, wrote to the Commission and reported it that they had written to the Attorney General of The Bahamas asking what steps the State would be taking in response to the Commission’s findings and recommendations. To date they are still awaiting a response from the Attorney General of The Bahamas. On December 18, 2002, the Petitioner in Case 12.062, Omar Hall, wrote to the Commission and reported it that despite enquiries made to the Bahamian Government, she has not received any information concerning what steps the State has taken to commute Mr. Hall’s death sentence or otherwise put into effect the Commission’s recommendations made in Report N° 48/01. With regard to Case 12.086, Brian Schroeter and Jeronimo Bowleg, the Petitioners wrote to the Commission and reported it that they were currently attempting to verify which, if any, of the recommendations contained in Report N° 48/01, has been complied with by the State.
64. By communications of July 2, 2004 and November 9, 2004, January 04, 2007, November 02, 2007, and November 3rd 2008, the Commission requested information from the State about compliance with the recommendations set forth in Report N° 48/01, pursuant to Article 46.1 of the Commission’s Rules of Procedure. The Commission has not received any responses from the State to these communications.
65.
Based on these considerations,
the Commission concludes that compliance with the aforementioned
recommendations remains pending. Case 12.053, Report N° 40/04, Maya indigenous communities of the Toledo District (Belize)
66. In its October 12, 2004 Report N° 40/04, the Commission concluded that the State was responsible for: a) violating the right to property enshrined in Article XXIII of the American Declaration to the detriment of the Maya people, by failing to take effective measures to recognize their communal property right to the lands that they have traditionally occupied and used, without detriment to other indigenous communities, and to delimit, demarcate and title or otherwise established the legal mechanisms necessary to clarify and protect the territory on which their right exists; b) violating the right to property enshrined in Article XXIII of the American Declaration to the detriment of the Maya people, by granting logging and oil concessions to third parties to utilize the property and resources that could fall within the lands which must be delimited, demarcated and titled or otherwise clarified and protected, in the absence of effective consultations with and the informed consent of the Maya people; c) violating the right to equality before the law, to equal protection of the law, and to nondiscrimination enshrined in Article II of the American Declaration to the detriment of the Maya people, by failing to provide them with the protections necessary to exercise their property rights fully and equally with other members of the Belizean population; and d) violating the right to judicial protection enshrined in Article XVIII of the American Declaration to the detriment of the Maya people, by rendering domestic judicial proceedings brought by them ineffective through unreasonable delay and thereby failing to provide them with effective access to the courts for protection of their fundamental rights.
67. The IACHR issued the following recommendations to the State:
1. Adopt in its domestic law, and through fully reported consultations with the Maya people, the legislative, administrative, and any other measures necessary to delimit, demarcate and title or otherwise clarify and protect the territory in which the Maya people have a communal property right, in accordance with their customary land use practices, and without detriment to other indigenous communities.
2. Carry out the measures to delimit, demarcate and title or otherwise clarify and protect the corresponding lands of the Maya people without detriment to other indigenous communities and, until those measures have been carried out, abstain from any acts that might lead the agents of the State itself, or third parties acting with its acquiescence or its tolerance, to affect the existence, value, use or enjoyment of the property located in the geographic area occupied and used by the Maya people.
3. Repair the environmental damage resulting from the logging concessions granted by the State in respect of the territory traditionally occupied and used by the Maya people.
68. On February 1, 2006, the Commission wrote to both the State and the Petitioners and requested up-dated information concerning compliance with the Commission’s Recommendations in Report N° 40/04. The Petitioners responded to the Commission by letter of March 01, 2006, stating that the State of Belize had so far failed to comply with the Commission’s recommendations. The Petitioners also requested the Commission to grant precautionary measures aimed at enforcing compliance of the recommendations. In July 2006, the Commission considered the Petitioners’ request and declined to grant precautionary measures.
69. On November 2, 2007, the Commission wrote to both the State and the Petitioners and requested up-dated information concerning compliance with the Commission’s Recommendations in Report N° 40/04. The Petitioners responded to the Commission by letter of November 30, 2007, stating that the State of Belize had so far failed to comply with the Commission’s recommendations. However, the Petitioners informed the Commission of a judgment of the Supreme Court of Belize delivered on October 18, 2007, that “found that Belize is obligated not only by the Belize Constitution but also by international treaty and customary international law to recognize, respect, and protect Maya customary land rights.” The Petitioners added that the judgment was “significantly informed throughout by the 2004 final report of the Inter-American Commission on Human Rights”. The Petitioners stated that leasing, logging, and oil exploration activities have continued on Maya lands in the Toledo District, despite the Supreme Court judgment and the Commission’s recommendations contained in Report N° 40/04.
70. On September 2, 2008, the State presented a document called “Report on the measures taken by the Government of Belize to comply with the recommendations of the Inter-American Commission on Human Rights as set forth in Report No. 40/04”. Belize mentions in that report that it has carried out efforts guided by its obligation to comply with the IACHR’s recommendations in the case and also with the judgment of the Supreme Court in the case of Cal et al v The Attorney General et al. The State highlights the fact that in the Cal case the Chief Justice considered the Report of the Commission; that the recommendations of the Commission and the judgment of the Supreme Court contain similar provisions with respect to delimiting, demarcating, titling or otherwise protecting Mayan communal property based on customary use and practice. However, it also notes that the Case before the IACHR involved the entire Maya Indigenous communities in the Toledo District, while the Cal case was brought by only two Maya communities in the Toledo District: the Santa Cruz and Conejo villages. The State adds that for practical reasons, it focused only at the time only on the implementation of the Cal judgment, but it notes that the Maya Leaders alliance had widened its claim and filed a class action suit in June 2008, which seeks to have the Court recognize the Mayas´ customary land rights of thirty eight villages in the Toledo District.
71. The report goes on to mention attempts by the Government of Belize at “delimiting, demarcating, titling or otherwise protecting Mayan communal property rights based on customary use and practices”, including meetings held on December 2007 and January 2008, but clarifies that “the attempts failed”. According to the State, such failure could be attributed to a lack of information by the affected Community, the intervention by Maya organizations and the disagreement regarding common boundaries. Further, it mentions that after the general elections and the change of government, the parties in this case met on April 10th 2008 and agreed to develop a framework for the implementation of the Cal judgment. Among the interim measures adopted by the Government of Belize, a blanket cease-and-desist order was issued by the Attorney General on March 27, 2008 with respect to land in the Toledo District. Shortly after the measure was reconsidered because it had the effect of a shut-down on land-related activities in the Toledo District, the timber industry was completely halted with serious economic implications, and the laborers --most of whom belong to the Maya communities of the Toledo District-- suddenly found themselves out of their jobs. The order was modified to apply only to lands in the villages of Santa Cruz and Conejo, and according to the State of Belize the parties continued communication despite not reaching a consensus.
72. As regards the mitigation of damage to the environment caused by logging, the State informs that the Forestry Department of Belize had reported a change in the situation in 2004 that resulted in the IACHR’s recommendations. Among other things, it mentions that there are only three long-term license holders operating in the Toledo District, and that no new long-term licenses have been issued since the first directive of the Attorney General of March 2008. The State also expresses that the Forestry Department is working in a partnership with Toledo Maya-based NGOs and the private sector in the Toledo Healthy Forest Initiative, with the aim of moving away from conventional logging and engage in sustainable forest practices using international standards. Finally, Belize reaffirms its commitment to “continued discussions and dialogue with the Maya people of Belize in order to implement the ruling of the Supreme Court of Belize and to comply with the recommendation of the Inter-American commission of Human Rights”.
73. On October 27, 2008, the IACHR held a hearing with both parties in this matter in order to receive information on compliance with its recommendations. The petitioners stated that the Maya Leaders Alliance has been trying to engage the Government elected in February 2008 in conversations concerning compliance with the Supreme Court judgment. According to the petitioners, the actions of the Government were initially “quite encouraging” in that “it acknowledged that the judgment had implications for all Maya lands in Toledo District, not just the two that brought the lawsuit” and that it “took a concrete, effective step to protect Maya customary rights, and issued a directive suspending leasing, permitting, and other land dealings in Toledo, until further notice, pending the implementation process”. The petitioners state that there was “an abrupt about-face” just weeks after the directive was issued, whereby the directive was “effectively revoked” by “limiting its application to the claimant villages of Conejo and Santa Cruz, and leaving the lands of the 36 other Maya villages in Toledo District unprotected and vulnerable to exploitation by third parties”. According to the petitioners, the lack of protective measures has resulted in “numerous infringements, violations, and expropriations of Maya lands”. The Maya Leaders Alliance filed an action in the Supreme Court of Belize asking that it maintain the status quo in the Maya lands of the Toledo District until the Government “enacts a legal or administrative framework to recognize and protect Maya land rights”.
74. On November 3, 2008, the IACHR sent a letter to both parties in this case to request information on compliance with the recommendations of its report. The State responded on November 25, 2008 reiterating the content of its report dated September 2, 2008. The petitioners presented their observations on December 3, 2008, which include the assertion that “the State has not complied, even minimally, with the recommendations of the Inter-American Commission on Human Rights”. The petitioners consider that the statements by Belize during the hearing before the IACHR are encouraging, but that in practical terms the State “continues to behave as if those rights do not exist and do not merit effective protection”, and they quote authorities expressing that they would only apply the Cal decision to other Maya villages if they bring their respective cases before the Supreme Court of their country.
75. With respect to the delimitation of the lands of the Maya people, the petitioners hold that the State has made no efforts yet, even in the villages of Santa Cruz and Conejo, where they were ordered to do so by the courts of Belize. They further state that the members of the Maya villages throughout the District have started to demarcate their own boundaries in agreement with the neighboring villages, so once the Government develops a mechanism it will be relatively easy because the boundaries will already be clarified. The petitioners also add that despite its initial actions during 2008 mentioned above, the State “continues to treat Maya land as unburdened land for the purposes of issuing leases, grants and concessions for natural resource exploitation, including logging and oil concessions”, and they list several specific examples.
76. As to the IACHR recommendation on repairing environmental damage, the petitioners admit that “there has been some respite to the large-scale logging” but consider that this is not attributable to the State of Belize. However, they mention that logging continues on a smaller scale and that in some communities this is negatively affecting Maya hunting and fishing activities. According to the petitioners, in the absence of affirmative steps by the authorities of Belize, the Maya themselves have been taken action to minimize the environmental damage from logging, such as creating co-management organizations, supporting ecological and conservation efforts. The petitioners conclude by requesting that a IACHR delegation conduct an on-site visit to Belize in order to observe the situation.
77. On the basis of the information supplied by both parties, the Inter-American Commission observes that despite some important efforts, compliance with the aforementioned recommendations remains pending. Accordingly, the Commission encourages both parties to continue efforts to engage and reach agreements that may contribute to a positive advance toward compliance.
Case 12.475, Report No. 97/05, Alfredo Díaz Bustos (Bolivia)
78. On October 27, 2005, by Report No. 97/05, the Commission approved a friendly settlement agreement in the case of Alfredo Díaz Bustos. In summary, the petitioner alleged that Mr. Alfredo Díaz Bustos was a Jehovah’s Witness in respect of whom the State violated the right to conscientious objection to military service, directly affecting the right to freedom of conscience and religion. In addition, the petition indicated that Mr. Díaz Bustos suffered discrimination based on his status as a Jehovah’s Witness given that the very Law on National Defense Service of Bolivia established inequality between Catholics and those who follow other religions, such that exemption from military service was possible for Catholics, but not for others. The petitioner also alleged that the Bolivian State had violated the right to judicial protection of the alleged victim since, by final judgment of the Constitutional Court, it was established that the matters concerning the right to conscientious objection to compulsory military service cannot be submitted to any judicial organ.
79. In the friendly settlement agreement, the State undertook to:
a. Give Alfredo Díaz Bustos his document of completed military service within thirty (30) working days after he submits all the required documentation to the Ministry of Defense;
b. Present the service document free of charge, without requiring for its delivery payment of the military tax stipulated in the National Defense Service Act, or the payment of any other amount for any reason or considerations of any other nature, whether monetary or not;
c. Issue, at the time of presentation of the service record, a Ministerial Resolution stipulating that in the event of an armed conflict Alfredo Díaz Bustos, as a conscientious objector, shall not be sent to the battlefront nor called as an aide;
d. Include, in accordance with international human rights law, the right to conscientious objection to military service in the preliminary draft of the amended regulations for military law currently under consideration by the Ministry of Defense and the armed forces;
e. Encourage, together with the Deputy Ministry of Justice, congressional approval of military legislation that would include the right to conscientious objection to military service;
80. After studying the information in the record, the Commission had concluded in its annual reports for 2006 and 2007 that items 1, 2, and 3 of the agreement were being carried out, but not items 4 and 5.
81. In this respect, on December 17, 2007, the petitioner presented a brief communication in which he reported that the new Bolivian Constitution did not include among the rights listed the right to “conscientious objection” and that accordingly the State continued to be in breach of items (d) and (e) of the friendly settlement agreement. Subsequently, on June 4, 2008, a communication was received from the petitioner by which he reported that the Proposed Law on Compulsory Military Service was being debated in the National Congress, and asked the Commission to call on the Bolivian State to incorporate the right to conscientious objection into the new constitutional text.
82. On November 3, 2008, the Commission asked the parties to provide updated information implementation of the agreement. The State did not present any response to this request. On January 13, 2009, the petitioner submitted a document reporting that the Draft Constitution that was the subject of the referendum of January 25, 2009, did not include any reference to conscientious objection.
83. On January 21, 2009, the Comission received a communication from the State, informing that even though the conscientious objection is not included in the Constitution, the proposed law on Compulsory Military Service is currently being debated by the Parliament, and that it is expected to be widely discussed with the paricipation of all the interested parties. The State also noted that on May 2, 2008, it ratified the Iberoamerican Convention on Rights of Youth, which in its Article 12 establishes that: “1. Youth have the right to make conscientious objection towards obligatory military service. 2. The States Parties undertake to promote the pertinent legal measures to guarantee the exercise of this right and advance in the progressive elimination of the obligatory military service.” It added that this ratification implies an incorporation of the conscientious objection to internal law and nnounced the presentation of a future report on this mtter. The Commission awaits such report in order to evaluate compliance with items d) and e) of the friendly settlement agreement.
84. Based on the information available, the IACHR concludes that the friendly settlement agreement has met with partial compliance.
Case 12.516, Report No. 98/05, Raúl Zavala Málaga
and Jorge Pacheco Rondón
85. On October 27, 2005, by Report No. 98/05, the Commission approved a friendly settlement agreement in the case of Raúl Zavala Málaga and Jorge Pacheco Rondón.
86. In the friendly settlement agreement, the State undertook as follows:,
1. Contract Jorge Pacheco Rondón for the ODESUR Project;
2. Reinstate Raúl Zavala Málaga as head of sports infrastructure with rank [Item] No. 13, as of January 3, 2005.
87. For their part, Jorge Pacheco Rondón and Raúl Zavala Málaga agreed to:
1. Formally and expressly discontinue all legal action taken, on a national level, with the Fifth Court for Preliminary Criminal Proceedings, and internationally, with the Inter-American Commission on Human Rights.
2. Refrain from undertaking any future judicial or extrajudicial action pertaining to compliance with Administrative Resolution SSC/IRJ/139/2003 of August 28, 2003.
88. On November 1, 2007, the Commission asked the parties for updated information on implementation of the agreement. On November 13, 2007, the petitioner submitted a brief communication reporting that “as all the recommendations made by the IACHR have been carried out in their entirety, no additional observation whatsoever is in order.” The Commission did not receive any response from the State.
89. Based on the information provided, the Commission concludes that the friendly settlement was agreement carried out in its entirety by the parties.
Petition 269-05, Report No. 82/07, Miguel Angel Moncada Osorio and James David Rocha Terraza (Bolivia)
90. On October 15, 2007, by Report No. 82/07, the Commission approved a friendly settlement agreement in the case of Miguel Angel Moncada Osorio and James David Rocha Terraza. In summary, the petitioner alleged that the State was responsible for the violation of the rights of the alleged victims to judicial guarantees, to have access, on equal conditions, to public office in their country, and to judicial protection, established at Articles 8, 23, and 25, of the American Convention on Human Rights, due to the non-enforcement of an amparo judgment issued on their behalf by the Superior Court of Justice of La Paz.
91. In the friendly settlement agreement, the State undertook as follows:
a) To pay to James David Rocha Terraza the sum of B. 55,392.12 corresponding to pay accrued for fiscal year 2004 according to the Act of Reconciliation of Accrued Remuneration signed on January 12, 2006 by the interested party and the Ministry of Services and Public Works (today the Ministry of Public Works, Services and Housing). This payment shall be made in three installments, in the months of June, July and August 2007, by the 15th day of each month. From this amount, equivalent to B. 55,392.12, James David Rocha Terraza authorizes the Ministry of Public Works, Services and Housing to withhold the amount of B. 6,750, representing the salary he received between June 16 and July 31, 2005 for services provided to the National Fund for Regional Development. That sum of B. 6,750 will be withheld from the third installment, corresponding to the month of August 2007. Subsequently, the Ministry of Public Works, Services and Housing will transfer this amount of B. 6,750 to the National Fund for Regional Development, and will deliver a legalized receipt for that amount to Mr. James David Rocha Terraza and to the Ministry of Foreign Relations and Worship.
b) To pay to Miguel Angel Moncada Osorio the sum of B. 64,761.90 corresponding to pay accrued for fiscal year 2004 according to the Act of Reconciliation of Accrued Remuneration signed on January 12, 2006 by the interested party and the Ministry of Services and Public Works (today the Ministry of Public Works, Services and Housing). This payment shall be made in three installments, in the months of June, July and August 2007, by the 15th day of each month.
92. By communication received on November 12, 2007, the Bolivian State reported on the payment of checks to Messrs. Moncada and Rocha for salary accrued during fiscal year 2004, noting that it had carried out the friendly settlement agreement. For their part, on January 25, 2008, the petitioners reported that they did not have any observation on the case, and that they were “fully in agreement with the implementation of the agreement.”
93. Based on the information presented, the Commission concludes that the friendly settlement agreement was fully implemented.
Petition 788-06, Report No. 70/07, Víctor Hugo Arce Chávez (Bolivia)
94. On July 27, 2007, by Report No. 70/07, the Commission approved a friendly settlement agreement in the case of Víctor Hugo Arce Chávez. In summary, the petitioner argued that the State was responsible for violating the rights of the alleged victim to judicial guarantees, to have access in general conditions of equality to public office in his country, and to judicial protection, established at Articles 8, 23, and 25 of the American Convention on Human Rights for failure to enforce an amparo judgment issued on his behalf by the Superior Court of La Paz.
95. Through the friendly settlement agreement the State undertook to carry out the following measures:
PECUNIARY MEASURES
a) To pay Víctor Hugo Arce Chávez the sum of Bs 988 (nine hundred eighty-eight bolivianos) to make up for the difference owed to him for his Christmas bonus of the year 2002. This payment must be made within five days of the signature of this document.
b) To pay Víctor Hugo Arce Chávez the sum of Bs 3,440 (three thousand four hundred and forty bolivianos) to complete the infant nursing subsidy owed to him on account of the birth of his son Hugo Alberto Arce Cano. This payment must be made within five days of the signature of this document.
c) To pay Víctor Hugo Arce Chávez the sum of Bs 11,228 (eleven thousand two hundred and twenty-eight bolivianos as the difference owed to him on account of his position in the career ladder and his years of service for the period between January 2002 and September 2006, and for payments to the Future of Bolivia Pension Fund Office for the period between January and September of 2002. This payment must be made within five days of the signature of this document. The payments into the fund shall be the responsibility of police officer Víctor Hugo Arce Chávez once he receives the sum from the Physical Security Battalion.
d) To pay Víctor Hugo Arce Chávez the sum of Bs 5,000 (five thousand bolivianos) in damages for pain and suffering caused to him and his next of kin. This payment must be made within five days of the signature of this document. NON-PECUNIARY MEASURES
e) The Battalion and the National Police shall abstain from taking any measure against police officer Víctor Hugo Arce Chávez in reprisal for the international complaint filed by him against the Bolivian State. Likewise, any present or future investigation and/or disciplinary procedure against police officer Víctor Hugo Arce Chávez shall be conducted under strict adherence to the guarantees of due process provided for by the internal rules of the National Police, the laws of the Nation, the Constitution, and the American Convention on Human Rights.
g) To add to the personal file of police officer Víctor Hugo Arce Chávez, a copy of Decision 359/2002, handed down by the Second Civil Chamber of the Superior Court of Justice of La Paz, a copy of Constitutional Judgment 1239/2002-R, a copy of this compromise agreement, and a copy of the Report on Friendly Settlement that the Inter-American Commission on Human Rights may approve. The first three documents shall be added to his personal file within five days of the signature of this agreement. The copy of the Report on Friendly Settlement of the IACHR shall be added to the file within ten days of its notification to the Bolivian State by the IACHR.
96. On November 3, 2008, the Commission asked the parties to provide information on implementation of the friendly settlement agreement. By communication received on December 5, 2008, the petitioner indicated that he was in conformity with the agreement his representatives reached with the Bolivian State. The State asked for an extension to respond, which was granted to it by the IACHR. By communication of January 2, 2008, the State indicated that each of the commitments assumed pursuant to Article 49 of the American Convention had been faithfully implemented.
97. Based on the foregoing, the Commission concludes that the friendly settlement agreement has been fully implemented.
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