International Law and Reparations: The Inter-American System

By Claudio Grossman

This book presents the most thorough analysis to date on the jurisprudence of the Inter-American Court of Human Rights (IACtHR) concerning full reparations. This jurisprudence interprets Article 63 of the American Convention on Human Rights. In its interpretation of the Convention, the IACtHR is guided by the important notion that human rights instruments should be interpreted in light of its object and purpose, in accordance with the State members of the Organization of the American States. The Court’s jurisprudence ensures that victims of human rights violations are awarded not only monetary compensation in cases, but also a full array of reparations designed to restore their dignity and reaffirm the value of the rule of law. Accordingly, reparation also includes moral compensation, guarantees of non repetition, and truth as a measure of satisfaction. More specifically, the book explores the notions of “fair remedy,” “injured party,” and the possibility of achieving “restitutio in integrum” for human rights violations through an analysis of decisions issued by the Inter-American Court. The book urges its reader to consider not only the current status of the law, but also the role played by victims, lawyers, Commissioners, and Judges in its jurisprudential development. As a living instrument, the value of the American Convention depends in great part on their actions and decisions. This book, by presenting the role of the different actors through concrete cases that shaped the system, encourages everyone to think how the System should continue to satisfy the aspirations of justice in cases of human rights violations.

• Language: English
• Publisher: Clarity Press
• Release date: Mar 22, 2018
• ISBN: 9780997896589

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INDEX

PREFACE

This book encompasses the Inter-American Court of Human Rights’ jurisprudential developments concerning full reparation, in accordance with Article 63 of the American Convention on Human Rights (Pact of San José, Costa Rica). Article 63 states that, [if] the Court finds that there has been a violation of a right or freedom protected by this Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, that the consequences of the measure or situation that constituted the breach of such right or freedom be remedied and that fair compensation be paid to the injured party. What does fair remedy mean? Who are the injured parties? Is it possible to achieve restitutio in integrum in all human rights violations? A simple reading of this text makes apparent the need for interpretation of its terms. The Inter-American Court, through its decisions, has made a rich contribution in developing Article 63.

These contributions in the area of reparations of the Inter-American system are widely recognized and influential in international law. The latest example is evidenced in the adoption of General Comment No. 3 of the Committee against Torture of the United Nations. However, the contributions of the Inter-American System, including the original documents, have not been fully presented in a systematic way. As a result, it is difficult for all stakeholders, including States, non-governmental organizations, and individuals, to understand the full scope of the different topics covered under Article 63.

Further, while the need to simply present the jurisprudence is a great one, it is also crucial to understand that it cannot remain static and that new circumstances and different sets of facts could lead the Inter-American Court’s jurisprudence to develop in directions that have not yet been addressed or even imagined. Accordingly, this book is structured not simply by presenting the status of the law and the original documents essential for legal reasoning, but also by raising questions and presenting problems. These questions could prove useful not only for practical purposes, but also for theoretical purposes by striving to achieve coherence in the application of international legal standards.

In this matter, it is important to consider that international human rights treaties have a special humanitarian purpose, unlike that of classic treaties that present a system of reciprocal rights and obligations. In classic international law, when there is doubt about the intended scope of the treaty, the Courts preferred the interpretation that less impedes national sovereignty, assuming that the State parties did not have the intention to limit their sovereignty unless that could be demonstrated. On the other hand, human rights treaties do not establish a system of reciprocal rights and obligations among states, but have a humanitarian purpose. Accordingly, courts, including the Inter-American Court, have concluded that such an object and purpose leads to the conclusion that, in cases of justifiable doubts concerning the application of the treaty, the preferred interpretation was that which protected more human rights."

To achieve its goals, this book is organized in the following fashion: Chapter 1 defines victims, beneficiaries, and the right of action; Chapter 2 covers compensation for damages; Chapter 3 examines reparations beyond compensations: resitutio in integrum; finally, Chapter 4 explores provisional measures and monitoring compliance with judgments.

All of the chapters follow a common methodology. After an introduction presenting the topic, the chapters include a normative framework of valid sources of international law. This is followed by the jurisprudence of the court, specifically leading cases, and later an analysis section with questions raised by the Court’s jurisprudence. In every chapter, a detailed table of contents is provided.

Finally, my recognitions go to Agustina del Campo and Mina A. Trudeau who worked tirelessly with me in achieving this final result. I would also like to recognize Pablo Saavedra, Diego Rodriguez-Pinzon, and Viviana Krsticevic who each provided valuable case suggestions. In addition, I want to extend my appreciation to Michael Miller, Cleopatra Mawaro, Mathew Solis, Cecilia Mullan, Pablo Saavedra, Diego Rodriguez-Pinzon and Viviana Krsticevic. Finally, my recognitions are extended to the Dean’s Fellows at American University Washington College of Law who participated in completing this manuscript: Maria Victoria Gama, Stefania Butoi Varga, Daniel Cappelletti, and all other students and interns who over the years have contributed to this project. Without them this work would not have been possible.

Claudio Grossman

Professor of Law and Dean Emeritus

R. Geraldson Scholar for International and

Humanitarian Law

American University Washington College of Law

| Chapter One |

DEFINING VICTIM, BENEFICIARY, AND THE RIGHT OF ACTION

I. INTRODUCTION

While the concept of victim often may seem self-evident, throughout its jurisprudence, the Inter-American Court of Human Rights has developed nuanced definitions of injured party for the purposes of compensation and other reparations in cases involving violations of rights and freedoms guaranteed by the American Convention on Human Rights. As demonstrated through case excerpts in this chapter, the Court has detailed and made modifications as to who may be considered the next of kin or beneficiary of a victim, when their suffering may be presumed, and when such potential beneficiaries bear the burden of proof. The Court has also considered cases in which the identification of victims and beneficiaries may be difficult, including cases involving indigenous communities and local customary law. Additional case excerpts demonstrate the Court’s consideration of the impact of violations upon society as a whole. Finally, this chapter reviews the Court’s efforts to improve financial accessibility to the Inter-American human rights system through creation of the Victims’ Legal Assistance Fund.

II. NORMATIVE FRAMEWORK

A. AMERICAN CONVENTION ON HUMAN RIGHTS

ARTICLE 1

1.The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.

2.For the purposes of this Convention, person means every human being.

ARTICLE 63

1.If the Court finds that there has been a violation of a right or freedom protected by this Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, that the consequences of the measure or situation that constituted the breach of such right or freedom be remedied and that fair compensation be paid to the injured party.

B. RULES OF PROCEDURE OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS ¹

ARTICLE 2. DEFINITIONS

16.The expression next-of-kin refers to the immediate family, that is, the direct ascendants and descendants, siblings, spouses or permanent companions, or those determined by the Court, if applicable.

27.The term alleged victim refers to the person whose rights under the American Convention have allegedly been violated.

33.The term victim refers to a person whose rights have been violated, according to a judgment emitted by the Court.

ARTICLE 50. CONVOCATION OF ALLEGED VICTIMS, WITNESSES, AND EXPERT WITNESSES

2.A party offering testimonial or expert evidence shall bear the costs of the appearance of alleged victims, witnesses, or expert witnesses before the Tribunal.

C. RULES OF PROCEDURE OF THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS ²

ARTICLE 23. PRESENTATION OF PETITIONS

Any person or group of persons or nongovernmental entity legally recognized in one or more of the Member States of the OAS may submit petitions to the Commission, on their behalf or on behalf of third persons, concerning alleged violations of a human right recognized in, as the case may be, the American Declaration of the Rights and Duties of Man, the American Convention on Human Rights Pact of San José, Costa Rica, the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights Protocol of San Salvador, the Protocol to the American Convention on Human Rights to Abolish the Death Penalty, the Inter-American Convention to Prevent and Punish Torture, the Inter-American Convention on Forced Disappearance of Persons, and/or the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women Convention of Belém do Pará, in accordance with their respective provisions, the Statute of the Commission, and these Rules of Procedure. The petitioner may designate an attorney or other person to represent him or her before the Commission, either in the petition itself or in a separate document.

D. BASIC PRINCIPLES AND GUIDELINES ON THE RIGHT TO A REMEDY AND REPARATION FOR VICTIMS OF GROSS VIOLATIONS OF INTERNATIONAL HUMAN RIGHTS LAW AND SERIOUS VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW ³

8. [V]ictims are persons who individually or collectively suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts of omissions that constitute gross violations of international human rights law, or serious violations of international humanitarian law. Where appropriate, and in accordance with domestic law, the term victim also includes the immediate family or dependents of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization.

9. A person shall be considered a victim regardless of whether the perpetrator of the violation is identified, apprehended, prosecuted, or convicted and regardless of the familial relationship between the perpetrator and the victim.

10. Victims should be treated with humanity and respect for their dignity and human rights, and appropriate measures should be taken to ensure their safety, physical and psychological well-being and privacy, as well as those of their families. The State should ensure that its domestic laws, to the extent possible, provide that a victim who has suffered violence or trauma should benefit from special consideration and care to avoid his or her re-traumatization in the course of legal and administrative procedures designed to provide justice and reparation.

11. Remedies for gross violations of international human rights law and serious violations of international humanitarian law include the victim’s right to the following as provided for under international law:

(a) Equal and effective access to justice;

(b) Adequate, effective and prompt reparation for harm suffered;

(c) Access to relevant information concerning violations and reparation mechanisms.

III. DEFINING VICTIMS AND OTHER INJURED PARTIES

The definitions of victim and injured party are central to the concept of seeking reparations. These definitions determine who may seek and receive compensation and other measures of reparation for violations of rights and freedoms guaranteed by the American Convention on Human Rights. The American Convention, along with the Rules of Procedure of the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights, provide fundamental guides as to who is considered a victim or alleged victim or injured party within the Inter-American human rights system. The Court’s jurisprudence has augmented these definitions as demonstrated by the following case excerpts.

Blake v. Guatemala

24-Jan-1998

Series C No. 36––Merits

1.The Commission submitted this case for the Court to decide whether the State had violated the following articles of the Convention: 4 (Right to Life), 7 (Right to Personal Liberty), 8 (Right to a Fair Trial), 13 (Freedom of Thought and Expression), 22 (Right of Movement and Residence), and 25 (Right to Judicial Protection), all these in relation to Article 1(1) of the Convention, for the alleged abduction and murder of Mr. Nicholas Chapman Blake (hereinafter Nicholas Blake) by agents of the Guatemalan State on March 28, 1985, and his disappearance, which lasted over seven years until June 14, 1992. The Commission also asked the Court to find that the State had violated Article 51(2) of the Convention by its refusal to implement the recommendations made by the Commission.

22-Jan-99

Series C No. 48––Reparations and Costs

32.The obligation to make reparation established by international courts is governed, as has been universally accepted, by international law in all its aspects: scope, nature, forms, and determination of beneficiaries, none of which the respondent State may alter by invoking its domestic law.

35.As regards the beneficiaries of the reparations, in their March 27, 1998 brief, the parents and brothers of Mr. Nicholas Blake asserted that they had been directly injured by the violations of the fundamental rights of their son and brother.

37.The State maintains that the relatives of Mr. Nicholas Blake may not receive reparations in their own right, since the parents and brothers of the victim have not demonstrated that they had a relationship of dependence on him.

38.This Court already recognized, in operative paragraphs 1 and 2 of the January 24, 1998 Judgment, that violations of Articles 8(1) and 5 of the Convention, in conjunction with Article 1(1), were to the detriment of the relatives of Nicholas Blake. Therefore, for the purpose of reparations, the Court determines that these relatives constitute the injured party within the meaning of Article 63(1) of the American Convention. The Court determines that Richard Blake, Mary Blake, Richard Blake Jr., and Samuel Blake may receive reparations in their own right as the injured party in the present case.

Bamaca Velasquez v. Guatemala

25-Nov-2000

Series C No. 70––Merits

2.The Commission stated that the purpose of the application was for the Court to decide whether the State had violated the following rights of Efraín Bámaca Velásquez:

Article 3 (Right to Juridical Personality), Article 4 (Right to Life), Article 5 (Right to Humane Treatment), Article 7 (Right to Personal Liberty), Article 8 (Right to a Fair Trial), Article 13 (Freedom of Thought and Expression), Article 25 (Right to Judicial Protection), and Article 1 (Obligation to Respect Rights), all of the American Convention, and also Articles 1, 2 and 6 of the Inter-American Convention to Prevent and Punish Torture and Article 3 common to the Geneva Conventions.

18.The Court summarizes the facts set out in the application as follows:

(a) Efraín Bámaca Velásquez, known as Comandante Everardo, formed part of the Revolutionary Organization of the People in Arms (hereinafter ORPA), one of the guerrilla groups that made up the URNG; Bámaca Velásquez led this group’s Luis Ixmatá Front.

(b) Efraín Bámaca Velásquez disappeared on March 12, 1992, after an encounter between the Army and the guerrilla in the village of Montúfar, near Nuevo San Carlos, Retalhuleu, in the western part of Guatemala.

(c) Bámaca Velásquez was alive when the Guatemalan armed forces took him prisoner, and they imprisoned him secretly in several military installations, where they tortured and eventually executed him.

22-Feb.-02

Series C No. 91––Reparations and Costs

29. With the aim of determining the appropriate measures of reparation in the instant case, the Court will base itself on the facts admitted as proven in the November 25, 2000 Judgment. During the current stage of the proceedings, the parties have also contributed new evidence with the aim of proving the existence of supplementary facts that are relevant to the aforementioned measures. The Court has examined the evidence and the respective arguments of the parties on the declarations and, as a result of this examination, declares that the following facts have been proven.

B) with respect to the next of kin of Efraín Bámaca Velásquez:

a) that José León Bámaca Hernández is his father, and his sisters are Egidia Gebia and Josefina Bámaca Velásquez and Alberta Velásquez, and that they as well as their father are members of the Mayan culture, Mam ethnic group. His wife was Jennifer Harbury;

30.The court will now determine the person or persons who in the instant case are the injured party, pursuant to Article 63(1) of the American Convention. In view of the fact that the violations of the American Convention determined by the Court in its November 25, 2000 Judgment were committed against Efraín Bámaca Velásquez, Jennifer Harbury, José León Bámaca Hernández, Egidia Gebia Bámaca Velásquez, and Josefina Bámaca Velásquez, all of them—as victims— must be included in that category and be entitled to the reparations decided by the Court, both in connection with pecuniary damages, when appropriate, and in connection with non-pecuniary damages.

31.In the case of Mrs. Jennifer Harbury, the State has objected to her being entitled to possible reparations, both in her own right and through inheritance, as a consequence of her own statement that this reparation will be delivered, in full, to the relatives of Bámaca Velásquez, and it is therefore the opinion of the State that this is an explicit waiver of the right declared in her favor by the Court, one that constitutes full evidence because it was made during the contentious phase of the case before the Court. The Court does not share the interpretation of the State regarding that statement, as it does not issue from the terms of that statement that such was Mrs. Harbury’s intention, and for these reasons the Court believes that a determination of the compensation due to her is in order, and she can freely dispose of it.

Juvenile Reeducation Institute v. Paraguay

2-Sep-2004

Series C No. 112––Preliminary Objections, Merits, Reparations, and Costs

2.The Commission filed the application pursuant to Article 61 of the American Convention, seeking a judgment from the Court as to whether the State had violated, in relation to its obligation under Article 1(1) (Obligation to Respect Rights) of the Convention, Article 4 (Right to Life) of that instrument by virtue of the deaths of inmates Elvio Epifanio Acosta Ocampos, Marco Antonio Giménez, Diego Walter Valdez, Sergio Daniel Vega Figueredo, Sergio David Poletti Domínguez, Mario Álvarez Pérez, Juan Alcides Román Barrios, Antonio Damián Escobar Morinigo, and Carlos Raúl de la Cruz, all of whom perished as a result of a fire at the Instituto de Reeducación del Menor Coronel Panchito López (Colonel Panchito López Juvenile Reeducation Institute, hereinafter the Center or the ‘Panchito López’ Center) and by virtue of the death of Benito Augusto Adorno, who died of a bullet wound sustained at the Center. The Commission also asked the Court to decide whether the State had violated Article 5 (Right to Humane Treatment) of the American Convention, in relation to its obligation under Article 1(1) thereof, by virtue of the injuries and smoke inhalation that minors Abel Achar Acuña, José Milicades Cañete, Ever Ramón Molinas Zárate, Arsenio Joel Barrios Báez, Alfredo Duarte Ramos, Sergio Vincent Navarro Moraez, Raúl Esteban Portillo, Ismael Méndez Aranda, Pedro Iván Peña, Osvaldo Daniel Sosa, Walter Javier Riveros Rojas, Osmar López Verón, Miguel Coronel, César Ojeda, Heriberto Zarate, Francisco Noé Andrada, Jorge Daniel Toledo, Pablo Emmanuel Rojas, Sixto Gonzáles Franco, Francisco Ramón Adorno, Antonio Delgado, Claudio Coronel Quiroga, Clemente Luis Escobar González, Julio César García, José Amado Jara Fernando, Alberto David Martínez, Miguel Ángel Martínez, Osvaldo Espinola Mora, Hugo Antonio Quintana Vera, Juan Carlos Viveros Zarza, Eduardo Vera, Ulises Zelaya Flores,Hugo Olmedo, Rafael Aquino Acuña, Nelson Rodríguez, Demetrio Silguero, Aristides Ramón Ortiz B., and Carlos Raúl Romero Giacomo sustained in three fires at the Center.⁴

3.The Commission also petitioned the Court to find that the respondent State had violated Articles 5 (Right to Humane Treatment), 7 (Right to Personal Liberty), 19 (Rights of the Child), 8 (Right to a Fair Trial), and 25 (Judicial Protection) of the American Convention, all in relation to Article 1(1) thereof, to the detriment of all juveniles incarcerated at the Center at any time in the period between August 14, 1996, and July 25, 2001, and those juvenile inmates subsequently remanded to the country’s adult prisons.

4.The Commission’s contention was that the Panchito López Center embodied a system that was the antithesis of every international standard pertaining to the incarceration of juveniles, given the allegedly grossly inadequate conditions under which the children were interned. Specifically, those conditions involved a combination of: overpopulation, overcrowding, lack of sanitation, inadequate infrastructure, and a prison guard staff that was both too small and poorly trained.

271.The Court will now proceed to determine which persons are to be regarded as an injured party, in the terms of Article 63(1) of the American Convention, and who shall be entitled to the reparations that the Court orders, both for pecuniary and, where appropriate, non-pecuniary damages.

272.To begin with, the injured parties are the deceased inmates, as victims of the violation of the right recognized in Article 4(1) of the American Convention, in relation to Article 1(1) thereof, and also in relation to Article 19 when the victims are children; all those inmates at the Center between August 14, 1996 and July 25, 2001, as victims of the violation of the rights protected in Articles 4(1), 5(1), 5(2), and 5(6) of the American Convention, in relation to Article 1(1) thereof, and also in relation to Article 19 of the Convention, when the victims in question are children; the children injured in the fires, as victims of the violation of the rights upheld in Articles 5(1) and 5(2) of the American Convention, in relation to Articles 1(1) and 19 thereof; the identified next of kin of the deceased and injured inmates, as victims of violation of the right protected in Article 5(1) of the American Convention, in relation to Article 1(1) thereof; all the children interned at the Center between August 14, 1996 and July 25, 2001, as victims of the violation of the rights recognized in Articles 2 and 8(1) of the American Convention, in relation to Articles 1(1) and 19 thereof; and the 239 inmates named in the writ of generic habeas corpus, as victims of the violation of the right recognized in Article 25 of the American Convention, in relation to Article 1(1) thereof. All these persons shall be entitled to the reparations set by the Court for pecuniary and non-pecuniary damages.

273.This Court observes that when a contentious case is being litigated before the Court, the interested party must decide who the beneficiary or beneficiaries will be. Therefore, the Court is not prepared to order compensation for any potential next of kin of the inmates who were victims of human rights violations but were not identified.

Moiwana Community v. Suriname

15-Jun-2005

Series C No. 124––Preliminary Objections, Merits, Reparations, and Costs

2.The Commission submitted the application for the Court to decide whether the State has violated Articles 25 (Right to Judicial Protection), 8 (Right to a Fair Trial), and 1(1) (Obligation to Respect Rights) of the Convention, to the detriment of certain former residents of Moiwana Village. . . Furthermore, the Commission requested that the Court order the State to adopt several monetary and non-monetary reparations measures, as well as to pay the legal costs and fees incurred during both the domestic and international proceedings of the instant case.

3.According to the Commission, on November 29, 1986, members of the armed forces of Suriname attacked the N’djuka Maroon village of Moiwana. State agents allegedly massacred over 40 men, women, and children, and razed the village to the ground. Those who escaped the attack supposedly fled into the surrounding forest, and then into exile or internal displacement. Furthermore, as of the date of the application, there allegedly had not been an adequate investigation of the massacre, no one had been prosecuted or punished and the survivors remained displaced from their lands; in consequence, they have been supposedly unable to return to their traditional way of life. Thus, the Commission stated that, while the attack itself predated Suriname’s ratification of the American Convention and its recognition of the Court’s jurisdiction, the alleged denial of justice and displacement of the Moiwana community occurring subsequent to the attack comprise the subject matter of the application.

177.It is necessary to recall that within the context of the contentious process, the identities of the beneficiaries must be properly communicated to the Court. ⁹⁹ ⁵ Thus, this Tribunal cannot grant the request that additional victims, which to date have not been individualized before the Court, be named for compensation purposes subsequent to the instant judgment. Such a decision is consistent with the case of Plan de Sanchez Massacre, as in that case no additional victims were permitted to be identified, following the judgment on reparations, in order to receive monetary awards. ¹⁰⁰ ⁶

178.Following precedent,¹⁰¹ ⁷ this Court considers as properly identified those victims who are referred to in an official document, such as a birth certificate or family book, submitted before the Tribunal. Regarding the other victims individualized in the application who have not been suitably identified, the Court holds that the compensation that corresponds to each one shall be awarded in the same manner as those properly identified by State documents–– as long as they appear before the appropriate State officials within 24 months following the notification of the instant judgment and provide sufficient means of identification.¹⁰² ⁸ Adequate identification shall entail either: a) an official document attesting to the person’s identity, or b) a statement before a competent state official by a recognized leader of the Moiwana community members, as well as the declarations of two additional persons, all of which clearly attest to the individual’s identity. The Court notes that it is granting more latitude in this case with respect to acceptable means of proving identity, in light of the statements by the Commission and the representatives that many Maroons do not possess formal identity documents and were never inscribed in the national registry.

The Ituango Massacres v. Colombia

1-Jul-2006

Series C No. 148––Preliminary Objections, Merits, Reparations, and Costs

1.On July 30, 2004, in accordance with the provisions of Articles 50 and 61 of the American Convention, the Inter-American Commission on Human Rights (hereinafter the Commission or the Inter-American Commission) lodged before the Court an application against the State of Colombia (hereinafter the State or Colombia), which originated from petitions No. 12,050 (La Granja) and 12,266 (El Aro), with regard to the Municipality of Ituango, received by the Secretariat of the Commission on July 14, 1998, and March 3, 2000, respectively. On March 11, 2004, the Commission decided to joinder the cases.

2.In its application, the Commission referred to events that occurred in June 1996 and October 1997 in the municipal districts (corregimientos) of La Granja and El Aro, respectively, both of them located in the Municipality of Ituango, Department of Antioquia, Colombia. The Commission alleged that the State’s responsibility . . . arose from the [alleged] acts of omission, acquiescence, and collaboration by members of law enforcement bodies based in the Municipality of Ituango with paramilitary groups belonging to the United Self-Defense Forces of Colombia (AUC), which [allegedly] perpetrated successive armed raids in this Municipality, assassinating defenseless civilians, robbing others of their property, and causing terror and displacement. The Commission also stated that eight years after the raid in the municipal district of La Granja and more than six years after the armed incursion in the municipal district of El Aro, the Colombian State ha[d] still not complied significantly with its obligation to clarify the facts, prosecute all those responsible effectively, and provide adequate reparation to the [alleged] victims and their next of kin.

3.The Commission presented the application for the Court to decide whether the State is responsible for the alleged violation of the following rights established in the following articles of the American Convention, in relation to Article 1(1) thereof:

(a) 4 (Right to Life), to the detriment of the following nineteen (19) persons: William Villa García, Graciela Arboleda, Héctor Hernán Correa García, Jairo Sepúlveda, Arnulfo Sánchez, José Darío Martínez, Olcris Fail Díaz, Wilmar de Jesús Restrepo Torres, Omar de Jesús Ortiz Carmona, Fabio Antonio Zuleta Zabala, Otoniel de Jesús Tejada Jaramillo, Omar Iván Gutiérrez Nohavá, Guillermo Andrés Mendoza Posso, Nelson de Jesús Palacio Cárdenas, Luis Modesto Múnera, Dora Luz Areiza, Alberto Correa, Marco Aurelio Areiza Osorio, and Rosa Areiza Barrera;

(b) 19 (Rights of the Child), to the detriment of the minor, Wilmar de Jesús Restrepo Torres;

(c) 7 (Right to Personal Liberty), to the detriment of the following three (3) persons: Jairo Sepúlveda, Marco Aurelio Areiza Osorio, and Rosa Areiza Barrera;

(d) 5 (Right to Humane Treatment), to the detriment of the following two (2) persons: Marco Aurelio Areiza and Rosa Areiza Barrera;

(e) 21 (Right to Property), to the detriment of the following six (6) persons: Luis Humberto Mendoza, Libardo Mendoza, Francisco Osvaldo Pino Posada, Omar Alfredo Torres Jaramillo, Ricardo Alfredo Builes Echeverry, and Bernardo María Jiménez Lopera; and

(f) 8 (Right to a Fair Trial) and 25 (Right to Judicial Protection), to the detriment of all the [alleged] victims and their next of kin.

4.Lastly, the Commission requested the Court to order the State to adopt a series of measures of pecuniary and non-pecuniary reparation, and also to pay the costs and expenses arising from processing the case in the domestic jurisdiction and before the inter-American system for the protection of human rights.

90.The Court will now determine, pursuant to the Rules of Procedure and its case law, and bearing in mind the characteristics of this specific case, which of the people who were not included by the State’s acknowledgement of responsibility will be considered alleged victims in this case.

91.The Court has developed extensive case law on the determination of alleged victims in the cases it hears using criteria applicable to the circumstances of this case. According to Article 50 of the Convention, the alleged victims must be indicated in the application and in the Commission’s report. However, owing to the particularities of each case, this has not always been so, and the Court has therefore considered as alleged victims persons who were not alleged as such in the application, provided that the right to defense of the parties has been respected and that the alleged victims have some connection with the facts described in the application and the evidence provided to the Court.¹² ⁹

92.Particularly in cases of massacres or of multiple victims, the Court has been flexible in the identification of alleged victims, even when they have been alleged in the Commission’s application as the survivors of the massacre and their next of kin, or when the parties have submitted additional information on the identification of the alleged victims in briefs submitted subsequent to the application.¹³ ¹⁰ In other cases involving massacres, the Court has considered as alleged victims, the persons identified by the Commission in its application . . . and those who may be identified subsequently, since the complexities and difficulties in individualizing them, suggest that there are still other victims to be determined.¹⁴ ¹¹

93.In some cases, the Court has emphasized that the right to defense of the parties is the determining criteria.¹⁵ ¹² Nevertheless, even in the presence of objections by the State, the Court has considered that such alleged new victims should be included.¹⁶ ¹³

94.Based on its jurisdictional function and pursuant to Article 62 of the Convention, which indicates that the Court has jurisdiction to hear all cases concerning the interpretation and application of the provisions of [the] Convention in cases with multiple alleged victims, the Court has considered several ways to overcome shortcomings in the identification or individualization of some of the alleged victims in the application,¹⁷ ¹⁴ whose names are to be found in the briefs where other alleged victims appear. For example, the Court has requested the Commission to remedy such flaws by presenting lists of alleged victims identified following the application.¹⁸ ¹⁵ Also, in cases where the alleged victims have or have not been identified or individualized in the application,¹⁹ ¹⁶ the Court has ordered the State to individualize and identify the victims . . . and their next of kin, for the effects of reparations.²⁰ ¹⁷ Finally, the Court has taken the initiative to overcome the shortcomings in the identification of alleged victims in the application, by its own examination of the evidence presented by the parties, even when the parties have admitted that some people by error, were not included in the list of alleged victims.²¹ ¹⁸ Likewise, the Court has declared individuals who were identified in the evidence provided by the parties as possible victims, even when these people were not identified in the Commission’s application.²² ¹⁹

95.The foregoing makes it clear that, although the identification of alleged victims in a case is governed by the parameters established in the Convention and in the Rules of Procedure, the Court, based on its jurisdictional function and in accordance with Article 62 of the Convention, may take decisions in this respect that take into account the particularities of each case and the rights regarding which a violation has been alleged, provided that the right to defense of the parties is respected and that the alleged victims have some connection with the facts described in the application and the evidence provided to the Court.

96.In keeping with these criteria, the Court will examine the determination of the alleged victims in this case who were not included in the State’s acknowledgement of responsibility in the chapters on the merits of each alleged violation.

97.The Court deems it pertinent to indicate its concern regarding the discrepancy between the persons indicated by the Commission in its report based on Article 50 of the Convention as alleged victims of Article 21 thereof, versus the persons that its application alleges are victims of this article. Neither the number nor names of the individuals listed in these two documents coincide. The Court also notes that the persons alleged by the representatives in their requests and arguments brief are totally different from those indicated in the said Article 50 report.

98.This Court has had to make a laborious examination of the evidence provided by the parties in order to extract the elements required to make a precise identification of the victims, since the Commission’s application did not include complete information in this regard. The Court observes that the Commission’s application contained general references to the victims in relation to some groups of them, such as 17 herdsmen or victims of displacement, without providing the necessary details for the appropriate identification of individual alleged victims. The Court considers that, in accordance with Article 33(1) of the Rules of Procedure of the Court, it falls to the Commission, and not to the Court, to identify precisely the alleged victims in a case before the Court.

Miguel Castro Castro Prison v. Peru

25-Nov-2006

Series C No. 160––Merits, Reparations, and Costs

2.The Commission submitted the petition for the Court to decide if the State is responsible for the violation of the rights enshrined in Articles 4 (Right to Life) and 5 (Right to Humane Treatment) of the American Convention, in relation to the obligation established in Article 1(1) (Obligation to Respect Rights) of the same, in detriment of at least 42 inmates that died; the violation of Article 5 (Right to Humane Treatment) of the Convention, in relation to the obligation established in Article 1(1) (Obligation to Respect Rights) of the Convention, to the detriment of at least 175 inmates that were injured and of 322 inmates that were [allegedly] uninjured were submitted to a cruel, inhuman, and degrading treatment; and for the violation of Articles 8(1) (Right to a Fair Trial) and 25 (Right to Judicial Protection) of the Convention, in relation to the obligation established in Article 1(1) of the same, to the detriment of the [alleged] victims and their next of kin.

3.The facts presented by the Commission in the application occurred as of May 6, 1992,and they refer to the execution of Operative Transfer 1 within the Miguel Castro Castro Prison, during which the State, allegedly, caused the death of at least 42 inmates, injured 175 inmates, and submitted another 322 inmates to a cruel, inhuman, and degrading treatment. The facts also refer to the alleged cruel, inhuman, and degrading treatment experienced by the alleged victims after Operative Transfer 1.

418.The Court has determined that the facts of the present case constituted a violation of Article 4 of the American Convention, in relation to Article 1(1) of the same, to the detriment of the 41 deceased inmates identified in Appendix 1 of victims of this Judgment; of Article 5 of the American Convention, in relation to Article 1(1) of the same, and in connection to Articles 1, 6, and 8 of the Inter-American Convention to Prevent and Punish Torture, to the detriment of the 41 deceased inmates identified and of the inmates who survived; of Article 5 of the American Convention, in relation to Article 1(1) of the same, in detriment of the next of kin of the inmates determined in paragraphs 336, 337, 340, and 341 of the chapter on the violation to the right to humane treatment and identified in Appendix 2 of victims of this Judgment; and of Articles 8(1) and 25 of the American Convention, in relation to Article 1(1) of the same, in connection to Articles 7(b) of the Inter-American Convention to Prevent, Punish, and Eradicate Violence Against Women and 1, 6, and 8 of the Inter- American Convention to Prevent and Punish Torture, to the detriment of the next of kin of the 41 dead inmates, of the surviving inmates, and of the next of kin of the inmates determined in paragraphs 336, 337, 340, and 341 of the chapter on the violation to the right to humane treatment and identified in Appendix 2 of victims of this Judgment. These people are entitled to the reparations set by the Tribunal, as victims of the mentioned violations.

420.According to the evidence presented, the Court has identified some of the mentioned next of kin, whose names are listed in Appendix 3 of the present Judgment In that appendix only those people are listed with regard to whom there is evidence that allows the Court to determine that they were alive at the time of the facts. In relation to the other next of kin of the 41 deceased victims identified that have not been individualized in these proceedings, the Court states that the compensation that corresponds to them be delivered to them directly, in the same way provided regarding those who have been individualized, after they present themselves before the competent State authorities within the eight months following the notification of this Judgment, and they prove, through a sufficient means of identification,²¹⁷ ²⁰ their relationship or kinship with the victim and that they were alive at the time of the facts.

The Saramaka People v. Suriname

28-Nov-2007

Series C No. 172––Preliminary Objections, Merits, Reparations, and Costs

2.The application submits to the Court’s jurisdiction alleged violations committed by the State against the members of the Saramaka people, an allegedly tribal community living in the Upper Suriname River region. The Commission alleged that the State has not adopted effective measures to recognize their right to the use and enjoyment of the territory they have traditionally occupied and used, that the State has allegedly violated the right to judicial protection to the detriment of such people by not providing them effective access to justice for the protection of their fundamental rights, particularly the right to own property in accordance with their communal traditions, and that the State has allegedly failed to adopt domestic legal provisions in order to ensure and guarantee such rights to the Saramakas.

3.The Commission asked the Court to determine the international responsibility of the State for the violation of Articles 21 (Right to Property) and 25 (Right to Judicial Protection), in conjunction with Articles 1(1) and 2 of the American Convention. Furthermore, the Commission requested that the Court order the State to adopt several monetary and nonmonetary reparation measures.

4.The representatives of the alleged victims, namely, Mr. Fergus MacKay, of the Forest Peoples Programme, Mr. David Padilla, and the Association of Saramaka Authorities (hereinafter the representatives), submitted their written brief containing pleadings, motions and evidence (hereinafter representatives’ brief), in accordance with Article 23 of the Rules of Procedure. The representatives asked the Court to declare that the State had violated the same rights alleged by the Commission, and additionally alleged that the State had violated Article 3 (Right to Juridical Personality) of the Convention by failing to recognize the legal personality of the Saramaka people. Moreover, the representatives submitted additional facts and arguments regarding the alleged ongoing and continuous effects associated with the construction of a hydroelectric dam in the 1960s that allegedly flooded traditional Saramaka territory. Additionally, they requested certain measures of reparation and the reimbursement of the costs and expenses incurred in processing the case at the national level and before the international proceedings.

188.The Tribunal has previously held that in a contentious case before the Court, the Commission must individually name the beneficiaries of possible reparations.²⁰⁸ ²¹ However, given the size and geographic diversity of the Saramaka people²⁰⁹ ²² and, particularly, the collective nature of reparations to be ordered in the present case, the Court does not find it necessary in the instant case to individually name the members of the Saramaka people in order to recognize them as the injured party. Nevertheless, the Court observes that the members of the Saramaka people are identifiable in accordance with Saramaka customary law, given that each Saramaka individual belongs to only one of the twelve matrilineal lös in which the community is organized.

189.Thus, in accordance with the Court’s jurisprudence regarding indigenous and tribal peoples,²¹⁰ ²³ the Court considers the members of the Saramaka people as the injured party in the present case who, due to their status as victims of the violations established in the present Judgment, are the beneficiaries of the collective forms of reparations ordered by the Court.

Ticona Estrada et al. v. Bolivia

27-Nov-2008

Series C No 191––Merits, Reparations, and Costs

2.The application refers to the alleged forced disappearance of Renato Ticona Estrada (hereinafter, Renato Ticona, Mr. Ticona Estrada, or the victim) as of July 22, 1980, date on which he and his brother, Hugo Ticona Estrada (hereinafter, Hugo Ticona or Hugo), were detained by an Army patrol in the vicinity of the control gate of Cala-Cala in Oruro, Bolivia; the application also relates to the alleged impunity that surrounded the case for more than 27 years since the occurrence of such event, as well as the long denial of justice experienced by the next-of-kin of Renato Ticona and the alleged lack of reparation of said next-of-kin for the damages caused as a consequence of the loss of a loved one. Moreover, the Commission stated that, given the fact that the Court has no jurisdiction ratione temporis to hear the illegal and arbitrary detention and the tortures suffered by Hugo Ticona in the year 1980, it did not include the allegation of these violations in the application. Nevertheless, the Commission did include the alleged denial of justice of which Hugo Ticona was an alleged victim as of the date on which the State acknowledged the competence of the Court to hear such violations.

3.In the application, the Commission requested that this Tribunal decide that the State violated the rights of Renato Ticona as enshrined in Articles 3 (Right to Juridical Personality), 4 (Right to Life), 5 (Right to Humane Treatment), 7 (Right to Personal Liberty), 8 (Right to a Fair Trial), and 25 (Right to Judicial Protection) of the American Convention, as well as Articles I, III, and XI of the Inter-American Convention on Forced Disappearance of Persons (hereinafter, IACFDP). In addition, the Commission requested the Court to declare that Bolivia has violated the rights contained in Articles 5 (Right to Humane Treatment), 8 (Right to a Fair Trial), and 25 (Right to Judicial Protection) of the American Convention, to the detriment of the next-of-kin of Renato Ticona; in particular, his parents, María Honoria Estrada Figueroa de Ticona (hereinafter, Honoria Estrada de Ticona) and César Ticona Olivares, as well as his brothers Hugo Ticona and Rodo Ticona Estrada (hereinafter, Rodo Ticona) and his sister, Betzy Ticona Estrada (hereinafter, Betzy Ticona). The foregoing is in relation to the general obligations to respect and ensure the rights contained in Article 1(1) (Obligation to Respect Rights). Furthermore, the Commission considered that the State failed to comply with the duty to adopt domestic legal provisions according to the provisions of Article 2 (Domestic Legal Effects) of the American Convention, in relation to Articles I and III of the IACFDP. Finally, the Commission requested the Court to order certain measures of reparations.

108.The Tribunal recalls that an injured party is considered to be the victim of a violation of some of the rights enshrined in the Convention. In this sense, the Court considers that Renato Ticona Estrada, Honoria Estrada de Ticona, César Ticona Olivares, Hugo Ticona, Rodo Ticona, and Betzy Ticona are the injured parties in their capacity of victims of the violations declared in the previous chapters, and therefore, they shall be entitled to the reparations ordered by the Tribunal as pecuniary and non-pecuniary damage.

Valle Jaramillo et al. v. Colombia

27-Nov-2008

Series C No. 192––Merits, Reparations, and Costs

1.On February 13, 2007, the Inter-American Commission on Human Rights (hereinafter the Commission or the Inter-American Commission) submitted to the Court, in accordance with the provisions of Articles 50 and 61 of the American Convention, an application against the Republic of Colombia (hereinafter the State or Colombia). This application originated from petition No. 12,415, forwarded to the Secretariat of the Commission on August 2, 2001, by the Grupo Interdisciplinario por los Derechos Humanos (Interdisciplinary Group for Human Rights, hereinafter GIDH). On February 20, 2003, the Commission approved Admissibility Report No. 5/03 and, on October 16, 2006, it approved Merits Report No. 75/06 in the terms of Article 50 of the Convention,² ²⁴ which contained various recommendations to the State. Taking into consideration the State’s report on the implementation of the recommendations included in the Report on the merits, and the lack of substantive progress in compliance with them, the Commission decided to submit the instant case to the jurisdiction of the Court on February 13, 2007. The Commission appointed Víctor Abramovich, Commissioner, and Santiago A. Canton, Executive Secretary, as delegates, and Ariel E. Dulitzky, Elizabeth Abi-Mershed, Juan Pablo Albán A., Verónica Gómez, Andrea Repetto, and Karin Mansel as legal advisers.

2.In its application, the Commission alleged that:

On February 27, 1998, . . . two armed men entered Jesús María Valle Jaramillo’s office in . . . Medellín [where Carlos Fernando Jaramillo Correa and] Nelly Valle [Jaramillo], Jesús María Valle’s sister, were also present . . . . [Subsequently, a woman entered and, together with two armed men, proceeded to] tie up and immobilize the hostages . . . . Jesús María Valle was murdered with two shots to his head, [and] died instantly. . . . Following the extrajudicial execution, Mrs. Valle and Mr. Jaramillo Correa were dragged to the lobby, [where] they were threatened with guns . . . . [T]he perpetrators [then] left the office. . . . Carlos Fernando Jaramillo . . . had to go into exile because of his fears owing to the threats he had received. . . . The available evidence indicates that the motive for the murder was to silence the reports of the human rights defender Jesús María Valle about the crimes perpetrated in the municipality of Ituango by members of paramilitary forces in connivance with members of the Army. . . . [A]lmost nine years have passed, . . . three civilians have been convicted in absentia, and there are no judicial investigations underway to determine whether State agents bear any responsibility.

3.Based on the above, the Commission alleged that the State is responsible for:

The [alleged] extrajudicial execution of the human rights defender Jesús María Valle Jaramillo; the [alleged] detention and cruel, inhuman, and degrading treatment that preceded it, to the detriment of Mr. Valle Jaramillo, Nelly Valle Jaramillo, his sister, and Carlos Fernando Jaramillo Correa . . . ; the [alleged] lack of investigation and punishment of those responsible for these acts; the [alleged] lack of adequate reparation in favor of the [presumed] victims and their next of kin; and the [alleged] forced displacement that Mr. Jaramillo Correa suffered following the facts.

4.The Commission asked the Court to declare the international responsibility of the State for the violation of:

(a) Articles 4 (Right to Life), 5 (Right to Humane Treatment) and 7 (Right to Personal Liberty) of the American Convention, in relation to Article 1(1) (Obligation to Respect Rights) thereof, to the detriment of Jesús María Valle Jaramillo;

(b) Articles 5 (Right to Humane Treatment) and 7 (Right to Personal Liberty) of the American Convention, in relation to Article 1(1) (Obligation to Respect Rights) thereof, to the detriment of Nelly Valle Jaramillo Jaramillo (hereinafter María Nelly Valle Jaramillo or Nelly Valle Jaramillo) and Carlos Fernando Jaramillo Correa;

(c) Article 22 (Freedom of Movement and Residence) of the American Convention, in relation to Article 1(1) (Obligation to Respect Rights) thereof, to the detriment of Carlos Fernando Jaramillo Correa and his next of kin; and

(d) Articles 8(1) (Right to a Fair Trial) and 25 (Right to Judicial Protection) of the American Convention, in relation to Article 1(1) (Obligation to Respect Rights) thereof, to the detriment of Nelly Valle Jaramillo, Carlos Fernando Jaramillo Correa, and the next of kin of Jesús María Valle Jaramillo.

Finally, the Commission asked the Court to order the State to adopt various measures of pecuniary and non-pecuniary reparation.

5.On May 9, 2007, the GIDH, represented by María Victoria Fallon Morales, Patricia Fuenmayor Gómez, and John Arturo Cárdenas Mesa, and the Comisión Colombiana de Juristas (Colombian Commission of Jurists, hereinafter CCJ), represented by Gustavo Gallón Giraldo and Luz Marina Monzón Cifuentes, as representatives of the alleged victims and their next of kin (hereinafter the representatives), presented their brief with pleadings, motions, and evidence (hereinafter brief with pleadings and motions or the representatives’ brief), in the terms of Article 23 of the Rules of Procedure. The representatives asked the Court to declare that the State had violated the same rights as those alleged by the Commission and, in addition, they alleged that the State was responsible for the violation of:

(a) Article 5(1) (Right to Humane Treatment) of the Convention, in relation to Article 1(1) (Obligation to Respect Rights) thereof, to the detriment of the next of kin of Jesús María Valle Jaramillo and Nelly Valle Jaramillo;

(b) Article 13 (Freedom of Thought and Expression) of the Convention, in relation to Article 1(1) (Obligation to Respect Rights) thereof, to the detriment of Jesús María Valle Jaramillo;

(c) Article 22 (1) (Freedom of Movement and Residence) of the Convention, in relation to Article 1(1) (Obligation to Respect Rights) thereof, to the detriment of the following next of kin of Carlos Fernando Jaramillo Correa: Gloria Lucía Correa García, Carlos Enrique Jaramillo Correa, Carolina Jaramillo Correa, and María Lucía Jaramillo Correa;

(d) Articles 8(1) (Right to a Fair Trial) and 25 (Right to Judicial Protection) of the Convention, in relation to Article 1(1) (Obligation to Respect Rights) thereof, to the detriment of all the [alleged] victims and their next of kin;

(e) Article 11(1) and (2) (Right to Privacy) of the Convention, in relation to Article 1(1) (Obligation to Respect Rights) thereof, to the detriment of Jesús María Valle Jaramillo, Carlos Fernando Jaramillo Correa, and their/his next of kin;

(f) Articles 5(1) (Right to Humane Treatment), 13 (Freedom of Thought and Expression), and 16 (Freedom of Association) of the Convention, in relation to Article 1(1) (Obligation to Respect Rights) thereof, to the detriment of the indirect victims, [namely,] the human rights defenders; and

(g) Article 17 (Rights of the Family) of the Convention, to the detriment of the next of kin of the victims.

Additionally, the representatives requested the adoption of certain measures of reparation and the reimbursement of the expenses incurred during the proceedings before the Court.

119.In this regard, the Court finds it pertinent to clarify some aspects of its case law concerning the determination of violations of the personal integrity of the next of kin of victims of certain human rights violations,⁷⁷ ²⁵ or other persons with close ties to such victims. For instance, the Court considers that a violation of the right to mental and moral integrity of the direct next of kin of victims of certain human rights violations can be declared, applying a presumption iuris tantum with regard to mothers and fathers, daughters and sons, husbands and wives, permanent companions (hereinafter direct next of kin), provided this responds to the specific circumstances of a case, as has happened, for example, in the cases of various massacres,⁷⁸ ²⁶ forced disappearance of persons,⁷⁹ ²⁷ and extrajudicial executions.⁸⁰ ²⁸ With regard to these direct next of kin, it is for the State to disprove their claim. In other cases, the Court must analyze if the evidence in the case file proves a violation of the right to personal integrity of the alleged victim, whether he/she is a next of kin of another victim in the case or not. In relation to those persons regarding whom the Court does not presume that the right to personal integrity has been harmed, because they are not direct next of kin, the Court must assess, for example, whether there is a particularly close tie between them and the victims in the case that would allow the Court to declare a violation of their right to personal integrity. The Court can also assess whether the alleged victims have been involved in seeking justice in the specific case⁸¹ ²⁹ or whether they have endured special suffering as a result of the facts of the case or of subsequent acts or omissions of the State authorities in relation to the facts.⁸² ³⁰

Radilla-Pacheco v. Mexico

23-Nov-2009

Series C No. 209––Preliminary Objections, Merits, Reparations, and Costs

2.The facts of the present case refer to the alleged forced disappearance of Mr. Rosendo Radilla-Pacheco, which supposedly occurred since August 25, 1974, in the hands of members of the Army in the State of Guerrero, Mexico. According to the Inter-American Commission, the alleged violations derived from this fact continue to exist up to this date, since the State of Mexico has not established the whereabouts of the [alleged] victim, nor have his remains been found. According to that argued by the Commission, more than 33 years after the occurrence of the facts, there is complete impunity since the State has not criminally punished those responsible, nor has it guaranteed the next of kin an adequate reparation.

3.Based on the aforementioned, the Commission requested that the Court declare the international responsibility of the State for the alleged violation of the rights enshrined in Articles 3 (Right to Juridical Personality), 4 (Right to Life), 5 (Right to Humane Treatment), 7 (Right to Personal Liberty), 8 (Right to a Fair Trial), and 25 (Judicial Protection) of the American Convention, in relation to Article 1(1) of the same treaty to the detriment of Rosendo Radilla-Pacheco. Likewise, it requested that the Court declare the international responsibility of the State for the alleged violation of Articles 5 (Right to Humane Treatment), 8 (Right to a Fair Trial), and 25 (Judicial Protection) of the American Convention, to the detriment of the following next of kin of Mr. Radilla-Pacheco: Victoria Martínez Nerí (deceased), Tita, Andrea, Rosendo, Romana, Evelina, Rosa, Agustina, Ana María, Carmen, Pilar, Victoria, and Judith, all with the surnames Radilla Martínez. On the other hand, it requested that the Court declare the State’s failure to comply with Article 2 of the American Convention (Domestic Legal Effects). Finally, the Commission requested that the Court order that the State adopt certain measures of reparation, both pecuniary and non-pecuniary.

4.On June 19, 2008 Messrs. Mario Solórzano Betancourt, Humberto Guerrero Rosales, and María Sirvent Bravo-Ahuja, of the Mexican Commission for the Defense and Promotion of Human Rights, and Mrs. Tita Radilla Martínez and Mr. Julio Mata Montiel, of the Association of Relatives of Disappeared Detainees and Victims of Violations of Human Rights in Mexico, representatives of the alleged victims, filed their brief of pleadings, motions, and evidence (hereinafter brief of pleadings and motions), in the terms of Article 24 of the Rules of Procedure. In that brief they agreed with that argued by the Inter-American Commission in the application and they also argued the alleged violation of other rights enshrined in the American Convention and the Inter-American Convention on Forced Disappearance of Persons (hereinafter, the Inter-American Convention on Forced Disappearance or CIDFP).

5.The representatives requested that the Court declare the State responsible for the violation of the rights enshrined in Articles 4 (Right to Life), 5 (Right to Humane Treatment), and 7 (Right to Personal Liberty) of the American Convention, in relation to Article 1(1) of the same treaty and Articles II and XI of the CIDFP, in detriment of Mr. Rosendo Radilla. Likewise, they argued that the State is responsible for the violation of Article 5 (Right to Humane Treatment) of the American Convention in relation to Article 1(1) of the same instrument, to the detriment of the following next of kin of Mr. Radilla-Pacheco: Victoria Martínez Neri and Tita, Andrea, Romana, Evelina, Rosa, Ana, Agustina, María del Carmen, María del Pilar, Judith, Victoria, and Rosendo, all of them with the surnames Radilla Martínez, as well as of the community to which Mr. Rosendo Radilla-Pacheco belonged. On the other hand, they requested that the State be declared responsible for the violation of Articles 8 (Right to a Fair Trial) and 25 (Judicial Protection) of the American Convention, in relation to Article 1(1) of said treaty and Articles I, subparagraph (b), and IX of the CIDFP, to the detriment of Mr. Rosendo Radilla and his next of kin. Additionally, they requested that the Tribunal declare the violation of Article 13 (Freedom of Thought and Expression) in relation to Articles 8 (Right to a Fair Trial), 25 (Judicial Protection), and 1(1) (Obligation to Respect Rights), all of the American Convention, in consistence with Article I, subparagraphs (a) and (b), of the CIDFP, in relation to the right to the truth to the detriment of the next of kin of Mr. Rosendo Radilla-Pacheco and the Mexican society as a whole. Finally, they requested that the Court declare that [t]he State of Mexico is responsible for not adopting the legislative measures or that of any other nature necessary for the obtainment of justice and truth, thus violating Article 2 of the American Convention, in consistence with Article III of the [CIDFP], and that the reservation filed by the State of Mexico to Article IX of the [CIDFP] be declared null for going against [its] object and purpose.

104.Before ruling on the merits of the present matter, this Court considers it necessary to specify, in the present chapter, the next of kin of the alleged victim, Mr. Rosendo Radilla-Pacheco, regarding whom it will analyze the existence of possible violations to their human rights.

105.In the application, the Inter-American Commission indicated that [t]he next of kin of Rosendo Radilla-Pacheco are his spouse, Mrs. Victoria Martínez Neri (deceased) and his twelve children Tita, Andrea, Rosendo, Romana, Evelina, Rosa, Agustina, Ana María, Carmen, Pilar, Victoria, and Judith, all of surnames Radilla Martínez. The representatives agreed with the list of the alleged victims presented by the Commission.

106.In its response to the application, the State indicated that [i]n good faith, it acknowledge[d] the family relationship of Messrs. Tita, Andrea, and Rosendo, all of surnames Radilla Martínez, with Mr. Rosendo Radilla-Pacheco. However, it asked the Court [n]ot to consider Victoria Martínez Neri, or Romana, Evelina, Rosa, Agustina, Ana María, Carmen, Pilar, Victoria or Judith, all of surnames Radilla Martínez, [alleged] victims in the present case, since they were not presented as such by the Commission at the correct procedural moment. In this regard, it stated that in the Report [on Merits] No. 60/07 of July 27, 2007, the Commission only mentioned Mr. Rosendo Radilla-Pacheco as an [alleged] victim and made brief references to three of his next of kin: Tita Radilla, Andrea Radilla, and Rosendo Radilla Martínez, but it never referred to them as [alleged] victims. According to the State, in that report the Commission did not mention Victoria Martínez Neri or Romana, Evelina, Rosa, Agustina, Ana María, Carmen, Pilar, Victoria, and Judith, all of surnames Radilla Martínez, as injured parties, which it does do so in its application.

107.In response to that requested by