... continued Article 41.
Friendly Settlement 1.
On its own initiative or at the request of any of the parties, the
Commission shall place itself at the disposal of the parties concerned, at
any stage of the examination of a petition or case, with a view to
reaching a friendly settlement of the matter on the basis of respect for
the human rights recognized in the American Convention on Human Rights,
the American Declaration, and other applicable instruments.
2.
The friendly settlement procedure shall be initiated and continue
on the basis of the consent of the parties.
3.
When it deems it necessary, the Commission may entrust to one or
more of its members the task of facilitating negotiations between the
parties.
4.
The Commission may terminate its intervention in the friendly
settlement procedure if it finds that the matter is not susceptible to
such a resolution or any of the parties does not consent to its
application, decides not to continue it, or does not display the
willingness to reach a friendly settlement based on respect for human
rights.
5.
If a friendly settlement is reached, the Commission shall adopt a
report with a brief statement of the facts and of the solution reached,
shall transmit it to the parties concerned and shall publish it.
Prior to adopting that report, the Commission shall verify whether
the victim of the alleged violation or, as the case may be, his or her
successors, have consented to the friendly settlement agreement.
In all cases, the friendly settlement must be based on respect for
the human rights recognized in the American Convention on Human Rights,
the American Declaration and other applicable instruments.
6.
If no friendly settlement is reached, the Commission shall continue
to process the petition or case. Article 42.
Decision on the Merits
1.
The Commission shall deliberate on the merits of the case, to which
end it shall prepare a report in which it will examine the arguments, the
evidence presented by the parties, and the information obtained during
hearings and on-site observations. In
addition, the Commission may take into account other information that is a
matter of public knowledge.
2.
The Commission shall deliberate in private, and all aspects of the
discussions shall be confidential.
3.
Any question put to a vote shall be formulated in precise terms in
one of the official languages of the OAS.
At the request of any member, the text shall be translated by the
Secretariat into one of the other official languages and distributed prior
to the vote.
4.
The minutes referring to the Commission's deliberations shall
restrict themselves to the subject of the debate and the decision
approved, as well as any separate opinions and any statements made for
inclusion in the minutes. Article 43.
Report on the Merits
After the deliberation and vote on the merits of the case, the
Commission shall proceed as follows:
1.
If it establishes that there was no violation in a given case, it
shall so state in its report on the merits.
The report shall be transmitted to the parties, and shall be
published and included in the Commission’s Annual Report to the OAS
General Assembly.
2.
If it establishes one or more violations, it shall prepare a
preliminary report with the proposals and recommendations it deems
pertinent and shall transmit it to the State in question.
In so doing, it shall set a deadline by which the State in question
must report on the measures adopted to comply with the recommendations.
The State shall not be authorized to publish the report until the
Commission adopts a decision in this respect.
3.
It shall notify the petitioner of the adoption of the report and
its transmittal to the State. In
the case of States parties to the American Convention that have accepted
the contentious jurisdiction of the Inter-American Court, upon notifying
the petitioner, the Commission shall give him or her one month to present
his or her position as to whether the case should be submitted to the
Court. When the petitioner is
interested in the submission of the case, he or she should present the
following: a.
the position of the victim or the victim’s family members, if
different from that of the petitioner; b.
the personal data relative to the victim and the victim’s family
members; c.
the reasons he or she considers that the case should be referred to
the Court; d.
the documentary, testimonial, and expert evidence available; and, e.
the claims concerning the reparations and costs. Article 44.
Referral of the Case to the Court
1.
If the State in question has accepted the jurisdiction of the
Inter-American Court in accordance with Article 62 of the American
Convention, and the Commission considers that it has not complied with the
recommendations of the report approved in accordance with Article 50 of
the American Convention, it shall refer the case to the Court, unless
there is a reasoned decision by an absolute majority of the members of the
Commission to the contrary.
2.
The Commission shall give fundamental consideration to obtaining
justice in the particular case, based, among others, on the following
factors:
a. the position of the petitioner; b.
the nature and seriousness of the violation; c.
the need to develop or clarify the case-law of the system; d.
the future effect of the decision within the legal systems of the
member States; and,
e. the quality of the evidence available. Article 45.
Publication of the Report
1.
If within three months from the transmittal of the preliminary
report to the State in question the matter has not been solved or, for
those States that have accepted the jurisdiction of the Inter-American
Court, has not been referred by the Commission or by the State to the
Court for a decision, the Commission, by absolute majority of votes, may
issue a final report that contains its opinion and final conclusions and
recommendations.
2.
The final report shall be transmitted to the parties, who, within
the time period set by the Commission, shall present information on
compliance with the recommendations.
3.
The Commission shall evaluate compliance with its recommendations
based on the information available, and shall decide on the publication of
the final report by the vote of an absolute majority of its members.
The Commission shall also make a determination as to whether to
include it in the Annual Report to the OAS General Assembly, and/or to
publish it in any other manner deemed appropriate. Article 46.
Follow-Up
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. Article 47.
Certification of Reports
The originals of the reports signed by the Commissioners who
participated in their adoption shall be deposited in the files of the
Commission. The reports
transmitted to the parties shall be certified by the Executive
Secretariat. Article 48.
Interstate Communications
1.
A communication presented by a State party to the American
Convention on Human Rights that has accepted the competence of the
Commission to receive and examine such communications against other States
parties shall be transmitted to the State party in question, whether or
not it has accept the Commission’s competence in this respect.
If that competence has not been accepted, the communication shall
be transmitted in order that the State concerned may exercise its option
under Article 45, paragraph 3 of the Convention, to recognize that
competence in the specific case that is the subject of the communication.
2.
If the State in question has accepted the Commission’s competence
to consider a communication from another State party, the respective
procedure shall be governed by the provisions of the present Chapter II,
insofar as they apply. CHAPTER
III PETITIONS
CONCERNING STATES THAT ARE NOT Article 49.
Receipt of the Petition The Commission shall receive and examine any petition that contains a denunciation of alleged violations of the human rights set forth in the American Declaration of the Rights and Duties of Man in relation to the member states of the Organization that are not parties to the American Convention on Human Rights. Article 50.
Applicable Procedure
The procedure applicable to petitions concerning member states of
the OAS that are not parties to the American Convention shall be that
provided for in the general provisions included in Chapter I of Title II;
in Articles 28 to 43 and 45 to 47 of these Rules of Procedure. CHAPTER
IV ON-SITE
OBSERVATIONS Article 51.
Designation of the Special Commission
On-site observations shall in each case be conducted by a
Special Commission named for that purpose.
The number of members of the Special Commission and the designation
of its President shall be determined by the Commission.
In cases of great urgency, such decisions may be made by the
President subject to the approval of the Commission. Article 52.
Disqualification
A member of the Commission who is a national of or who resides in
the territory of the State in which the on-site observation is to be
conducted shall be disqualified from participating in it. Article 53.
Schedule of Activities The
Special Commission shall organize its own activities.
To that end, it may assign any activity related to its mission to
its own members and, in consultation with the Executive Secretary, to any
staff members or necessary personnel of the Executive Secretariat.
Article 54.
Necessary Facilities and Guarantees In
extending an invitation for an on-site observation or in giving its
consent thereto, the State shall furnish to the Special Commission all
necessary facilities for carrying out its mission.
In particular, it shall commit itself not to take any reprisals of
any kind against any persons or entities cooperating with or providing
information or testimony to the Special Commission. Article 55.
Other Applicable Standards
Without prejudice to the provisions in the preceding article, any
on-site observation agreed upon by the Commission shall be carried
out in accordance with the following standards: a.
the Special Commission or any of its members shall be able to
interview any persons, groups, entities or institutions freely and in
private; b.
the State shall grant the necessary guarantees to those who provide
the Special Commission with information, testimony or evidence of any
kind; c.
the members of the Special Commission shall be able to travel
freely throughout the territory of the country, for which purpose the
State shall extend all the corresponding facilities, including the
necessary documentation; d.
the State shall ensure the availability of local means of
transportation; e.
the members of the Special Commission shall have access to the
jails and all other detention and interrogation sites and shall be able to
interview in private those persons imprisoned or detained;
f.
the State shall provide the Special Commission with any document
related to the observance of human rights that the latter may consider
necessary for the presentation of its reports;
g.
the Special Commission shall be able to use any method appropriate
for filming, photographing, collecting, documenting, recording, or
reproducing the information it considers useful;
h.
the State shall adopt the security measures necessary to protect
the Special Commission; i.
the State shall ensure the availability of appropriate lodging for
the members of the Special Commission;
j.
the same guarantees and facilities that are set forth in this
article for the members of the Special Commission shall also be extended
to the staff of the Executive Secretariat;
k.
the expenses incurred by the Special Committee, each of its members
and the staff of the Executive Secretariat shall be borne by the OAS,
subject to the pertinent provisions.
CHAPTER
V ANNUAL
REPORT AND OTHER REPORTS OF THE COMMISSION Article
56. Preparation of Reports
The Commission shall submit an annual report to the General
Assembly of the OAS. In
addition, the Commission shall prepare the studies and reports it deems
advisable for the performance of its functions and shall publish them as
it sees fit. Once their publication is approved, the Commission shall
transmit them, through the General Secretariat, to the member states of
the OAS and its pertinent organs. Article 57.
Annual Report
1.
The Annual Report presented by the Commission to the General
Assembly of the OAS shall include the following: a.
An analysis of the human rights situation in the hemisphere, along
with recommendations to the states and organs of the OAS as to the
measures necessary to strengthen respect for human rights; b.
a brief account of the origin, legal bases, structure and purposes
of the Commission, as well as the status of ratifications of the American
Convention and all other applicable instruments;
c.
a summary of the mandates and recommendations conferred upon the
Commission by the General Assembly and the other competent organs, and of
the status of implementation of such mandates and recommendations;
d.
a list of the periods of sessions held during the time period
covered by the report and of other activities carried out by the
Commission to achieve its purposes, objectives and mandates;
e.
a summary of the activities of the Commission carried out in
cooperation with other organs of the OAS and with regional or universal
organs of the same type, and the results achieved;
f.
the reports on individual petitions and cases whose publication has
been approved by the Commission, as well as a list of the precautionary
measures granted and extended, and of its activities before the
Inter-American Court; g.
a statement on the progress made in attaining the objectives set
forth in the American Declaration of the Rights and Duties of Man, the
American Convention on Human Rights and all other applicable instruments;
h.
any general or special report the Commission considers necessary
with regard to the situation of human rights in the member states, and, as
the case may be, follow-up reports noting the progress achieved and the
difficulties that have existed with respect to the effective observance of
human rights; and, i.
any other information, observation or recommendation that the
Commission considers advisable to submit to the General Assembly, as well
as any new activity or project that implies additional expenditures.
2.
For the preparation and adoption of the reports provided for in
paragraph 1(h) of this article, the Commission shall gather information
from all the sources it deems necessary for the protection of human
rights. Prior to its publication in the Annual Report, the Commission
shall provide a copy of said report to the respective State. That State
may send the Commission the views it deems pertinent within a maximum time
period of one month from the date of transmission.
The contents of the report and the decision to publish it shall be
within the exclusive discretion of the Commission. Article 58.
Report on Human Rights in a State
The preparation of a general or special report on the status of
human rights in a specific state shall meet the following standards: a.
after the draft report has been approved by the Commission, it
shall be transmitted to the government of the member State in question so
that it may make any observations it deems pertinent; b.
the Commission shall indicate to that State the deadline within
which it must present its observations;
c.
once the Commission has received the observations from the State,
it shall study them and, in light thereof, may maintain or modify its
report and decide how it is to be published;
d.
if no observation has been submitted by the State as of the
expiration of the deadline, the Commission shall publish the report in the
manner it deems appropriate; e.
after its publication, the Commission shall transmit it through the
General Secretariat to the member states and General Assembly of the OAS. CHAPTER
VI HEARINGS BEFORE THE COMMISSION Article 59.
Initiative
The Commission may decide to hold hearings on its own initiative or
at the request of an interested party.
The decision to convoke the hearings shall be made by the President
of the Commission, at the proposal of the Executive Secretary. Article 60.
Purpose
The hearings may have the purpose of receiving information from the
parties with respect to a petition or case being processed before the
Commission, follow-up to recommendations, precautionary measures, or
general or particular information related to human rights in one or more
members states of the OAS. Article
61. Guarantees
The State in question shall grant the necessary guarantees to all
the persons who attend a hearing or who in the course of a hearing provide
information, testimony or evidence of any type to the Commission.
That State may not prosecute the witnesses or experts, or carry out
reprisals against them or their family members because of their statements
or expert opinions given before the Commission. Article 62.
Hearings on Petitions or Cases
1.
Hearings on petitions or cases shall have as their purpose the
receipt of oral or written presentations by the parties relative to new
facts and information additional to that which has been produced during
the proceeding. The
information may refer to any of the following issues: admissibility; the initiation or development of the friendly
settlement procedure; the verification of the facts; the merits of the
matter; follow-up on recommendations; or any other matter pertinent to the
processing of the petition or case.
2.
Requests for hearings must be submitted in writing at least 40 days
prior to the beginning of the respective session of the Commission.
Requests for hearings shall indicate their purpose and the identity
of the participants.
3.
If the Commission accedes to the request or decides to hold a
hearing on its own initiative, it shall convoke both parties.
If one party, having been duly notified, does not appear, the
Commission shall proceed with the hearing. The Commission shall adopt the
necessary measures to maintain in confidence the identity of the experts
and witnesses if it believes that they require such protection.
4.
The Executive Secretariat shall inform the parties as to the date,
place and time of the hearing at least one month in advance. However, that
time period may be reduced if the participants grant the Executive
Secretariat prior and express consent to that effect. Article 63.
Presentation and Production of Evidence
1.
During the hearing, the parties may present any document,
testimony, expert report, or item of evidence.
At the request of a party or on its own initiative, the Commission
may receive the testimony of witnesses or experts.
2.
With respect to the documentary evidence submitted during the
hearing, the Commission shall grant the parties a prudential time period
for submitting their observations.
3.
A party that proposes witnesses or experts for a hearing shall so
state in its request. For this purpose, it shall identify the witness or expert and
the purpose of his or her witness or expert testimony.
4.
On deciding on the request for a hearing, the Commission shall also
determine whether to receive the witness or expert testimony proposed.
5.
When one party offers witness and expert testimony, the Commission
shall so notify the other party.
6.
In extraordinary circumstances and for the purpose of safeguarding
the evidence, the Commission may, at its discretion, receive testimony in
hearings without satisfying the terms of the previous paragraph.
In such circumstances, it shall take the measures necessary to
guarantee the procedural balance between the parties in the matter
submitted for its consideration.
7.
The Commission shall hear one witness at a time; the other
witnesses shall remain outside the hearing room.
Witnesses may not read their presentations to the Commission.
8.
Prior to giving their testimony, witnesses and experts shall
identify themselves and take an oath or make a solemn promise to tell the
truth. At the express request
of the interested person, the Commission may maintain the identity of a
witness or expert in confidence when necessary to protect him or her or
other persons. Article 64.
Hearings of a General Nature
1.
Persons who are interested in presenting testimony or information
to the Commission on the human rights situation in one or more States, or
on matters of general interest, shall direct a request for a hearing to
the Executive Secretariat with proper notice prior to the respective
session. 2.
Persons making such a request shall indicate the purpose of their
appearance, a summary of the information they will furnish, the
approximate time required for that purpose, and the identity of the
participants. Article 65.
Participation of the Commission Members
The President of the Commission may form working groups to
participate in the program of hearings. Article 66.
Attendance
Attendance at the hearings shall be limited to the representatives
of the parties, the Commission, the staff of the Executive Secretariat,
and the Recording Secretaries. The
decision to allow the presence of other persons shall vest exclusively in
the Commission, which shall so inform the parties prior to beginning the
hearing, orally or in writing. Article 67.
Expenses
The party that proposes the production of evidence at a hearing
shall cover all of the attendant expenses. Article 68.
Documents and Minutes of the Hearings
1.
A summary of the minutes of hearing shall be prepared and shall
record the day and time it was held, the names of the participants, the
decisions adopted, and the commitments assumed by the parties.
The documents submitted by the parties in the hearing shall be
attached as annexes to the minutes.
2.
The minutes of the hearings are internal working documents of the
Commission. If a party so
requests, the Commission shall provide a copy, unless, in the view of the
Commission, its contents could entail some risk to persons.
3.
The Commission shall make a tape of the testimony and shall make it
available to the parties that so request. TITLE
III RELATIONS
WITH THE INTER-AMERICAN COURT OF HUMAN RIGHTS CHAPTER
I DELEGATES,
ADVISERS, WITNESSES, AND EXPERTS Article 69.
Delegates and Assistants
1.
The Commission shall entrust one or more persons to represent it
and participate as delegates in the consideration of any matter before the
Inter-American Court of Human Rights.
If the petitioner so requests, the Commission shall include him or
her as a delegate.
2.
In appointing such delegates, the Commission shall issue any
instructions it considers necessary to guide their actions before the
Court.
3.
When it designates more than one delegate, the Commission shall
assign to one of them the responsibility of resolving situations that are
not foreseen in the instructions, or of clarifying any doubts raised by a
delegate.
4.
The delegates may be assisted by any person designated by the
Commission. In the discharge
of their functions, the advisers shall act in accordance with the
instructions of the delegates. Article 70.
Witnesses and Experts
1.
The Commission may also request the Court to summon other persons
as witnesses or experts.
2.
The summoning of such witnesses or experts shall be in accordance
with the Rules of Procedure of the Court.
CHAPTER
II PROCEDURE
BEFORE THE COURT Article 71.
Notification of the Petitioner If the Commission decides to refer a case to the Court, the Executive Secretary shall immediately give notice of that decision to the petitioner and to the victim. With that communication, the Commission shall transmit all the elements necessary for the preparation and presentation of the application. Article 72.
Presentation of the Application
1.
When, in accordance with Article 61 of the American Convention on
Human Rights, the Commission decides to bring a case before the Court, it
shall submit an application
specifying the: a.
claims on the merits, and reparations and costs sought; b.
parties in the case; c.
presentation of the facts; d.
information on the opening of the procedure and admissibility of
the petition; e.
individualization of the witnesses and experts and the purpose of
their statements; f.
legal grounds and the pertinent conclusions; g.
available information on the original complainant, the alleged
victims, their family members or duly accredited representatives; h.
names of its delegates; and, i.
the report provided for in Article 50 of the American Convention.
2.
The Commission's application shall be accompanied by certified
copies of the items in the file that the Commission or its delegate
considers pertinent. Article 73.
Transmittal of other Elements
The Commission shall transmit to the Court, at its request, any
other evidence, document or information concerning the case, with the
exception of documents concerning futile attempts to reach a friendly
settlement. The transmittal
of documents shall in each case be subject to the decision of the
Commission, which shall withhold the name and identity of the petitioner,
if the latter has not authorized that this be revealed.
Article 74.
Provisional Measures
1.
The Commission may request that the Court adopt provisional
measures in cases of extreme gravity and urgency, and when it becomes
necessary to avoid irreparable damage to persons in a matter that has not
yet been submitted to the Court for consideration.
2.
When the Commission is not in session, that request may be made by
the President, or in his or her absence, by one of the Vice-Presidents in
order of precedence. TITLE
IV FINAL PROVISIONS Article 75.
Calendar Computation
All time periods set forth in the present Rules of Procedure --in numbers of days--will be understood to be
counted as calendar days. Article 76.
Interpretation
Any doubt that might arise with respect to the interpretation of
these Rules of Procedure shall be resolved by an absolute majority of the
members of the Commission. Article 77.
Amendment of the Rules of Procedure The
Rules of Procedure may be amended by an absolute majority of the members
of the Commission. Article 78.
Transitory Provision These Rules of Procedure, whose texts in Spanish and English are equally authentic, shall enter into force on May 1, 2001. [ Table of Contents | Previous | Next ] |