CHAPTER V

AREAS IN WHICH STEPS NEED TO BE TAKEN TOWARDS FULL OBSERVANCE
OF THE HUMAN RIGHTS SET FORTH IN THE AMERICAN DECLARATION
OF THE RIGHTS AND DUTIES OF MAN AND THE AMERICAN
CONVENTION ON HUMAN RIGHTS

            I.  MEASURES NECESSARY TO ENHANCE THE AUTONOMY, INDEPENDENCE
                   AND INTEGRITY OF THE MEMBERS OF THE JUDICIAL BRANCH

          Introduction

          In acting upon the recommendation formulated by the General Assembly of the OAS to the Inter-American Commission on Human Rights to the effect that the latter conduct a study of necessary measures to improve the autonomy, independence and physical security of members of the judiciary, the Commission has found that in addition to the structural deficiencies apparent in most countries of the inter-American system, in certain States, more specifically in Colombia and Peru, the administration of justice is currently in a crisis owing to threats and attacks targeting the members of the Judicial Branch.  The generalized violence to which the members of the judiciary are subject in these states and the impunity with which these acts are perpetrated are such that the scope of this study has had to be narrowed to confine it to specific, concrete measures that could be adopted to protect judges, their integrity and independence.

          The Commission conducted an analysis premised on the fact that the study focuses on juridical-political communities beset by tremendous violence from different quarters:  the guerrilla movement, drug traffickers, paramilitary groups and, in some cases, military units.  In this context, the members of the judiciary, i.e. those who by reason of their independence and impartiality are considered the natural guarantors of human rights, are among the first victims.  And the episodes in which they are protagonists are not isolated incidents but part of a generalized context of violence.

          In both Colombia and Peru this situation has led to declaration of states of emergency.  While the modalities and scope of these states of emergency may differ from one country to the next, the exceptional laws that have been adopted have altered the enjoyment and exercise of human rights, especially the judicial guarantees.

          It was therefore decided that the first phase of the study would analyze the measures in effect in those countries to protect judges and whether they were compatible with due respect for human rights.  The idea was to identify the criteria used by lawmakers to preserve the independence and integrity of the judiciary.

          For the second stage, a comparative-law analysis was done, i.e. an analysis of the measures adopted in other countries that have been forced to come to grips with situations similar to those prevailing in Colombia and Peru, on the assumption that the criteria used to adopt those measures and to measure their effectiveness might be helpful in coming up with recommendations.

          A preliminary problem, however, was to ascertain which experiences might be relevant.  The lessons taught by the history of certain Latin American countries that eradicated violence by exercising it, thus endorsing the very methods they were purportedly combatting, had to be discarded.  The lessons that had to be considered were those taught by States with democratic governments, voted into office by the people.  From this standpoint, the situations prevailing in Italy and the former Federal Republic of Germany in the 1970s and 1980s were considered the closest to the situation under study.  However, the situations are not identical.  Though the attacks against members of the judiciary by the Red Brigades or the Bader Meinhoff have something in common with the actions of guerrilla groups in Colombia and Peru, and even assuming, for the sake of argument, that the scale of the Mafia's activities was somehow comparable to the drug trafficking in those two countries, the paramilitary and military groups that still operate in the Latin American countries have no counterpart in those European countries.  Nor do these examples offer the same setting, one of social disturbance.

          The development of these two parts of the study and the conclusions drawn from them led to recommendations on measures to protect members of the judiciary that are compatible with the judicial guarantees of the American Convention on Human rights.

          The Commission, then, believes that it is useful to include its conclusions and recommendations on this question in its Annual Report to the General Assembly and wishes to inform the member states as well as interested individuals that full copies of its study may be obtained from the Executive Secretariat of the Commission, at its Washington headquarters.

            Evaluation of the measures adopted in Colombia and Peru

          - COLOMBIA

          The legislative and other measures adopted by the Colombian Government to prevent attacks on members of the judiciary fall within the broader framework of emergency legislation proposed as a means to deal with a situation of generalized violence.  The subject of this study is but one aspect of that generalized violence.

          As emergency legislation, these anti-terrorist laws are based on a clause in the constitution concerning the state of siege and have their immediate rationale in Decree 1038 of 1984, which suspended the constitutional order and proclaimed a nationwide state of siege.

          In 1990, when promulgating the Statute for the Defense of Justice, the Government added threats and attacks against "judges and other persons who by reason of their office must participate in the prosecution" of terrorists and drug traffickers as grounds for declaring a state of siege.

          However, after the state of siege was lifted on July 4, 1991, the emergency legislation has since become part of the permanent body of ordinary law.  The Special Legislative Commission made it Transitory Article 8 of the new Constitution.

          The measures adopted can be classified as follows:

          (a) modifying the structure of the Judicial Branch by means of the creation of new fora;

          (b) typifying new crimes, creating aggravated forms of existing offenses and harsher penalties;

          (c) giving armed corps authority to combat certain groups that commit acts of violence;

          (d) preserving the safety of members of the Judicial Branch by shielding of the identity of magistrates, court officials and witnesses;

          (e) providing safety equipment to members of the Judicial Branch.

          The organic system of the Colombian Judicial Branch is a plethora of rules and laws, often contradictory.  They are constantly being changed and amended to introduce changes in jurisdiction or to create new entities.  In this respect, the Colombian Government has moved away from the traditional subject-specific  jurisdictions, based on the various branches of the law; it has opted instead to set up new jurisdictions in response the problems of drug trafficking and guerrilla warfare.

          An organic framework of this sort, in constant flux, invariably creates conflicts of jurisdiction and slows down proceedings to the point that some cases are never closed.

          Regarding the typification of new crimes, Colombian legislation has resorted to very broad definitions, like the definition of terrorism that appears in Decree 180 to 1988, which includes all types of politically motivated crimes, legal political activism, efforts to secure recovery, etc.

          The amounts of the penalties are not high per se, but in cases where more than one crime is involved the maximum penalties set are greatly exceeded.

          It should be pointed out that the Inter-American Court of Human Rights generically identifies the judicial guarantees essential for protection of nonderogable rights during states of emergency:  habeas corpus as covered in Article 7(6), amparo and any other effective recourse before the courts in accordance with article 25(1), and all judicial procedures inherent in the democratic form of government and specified in the domestic law of the states parties to the Convention as set forth in Article 29(c), all of which are to be exercised within the framework and in accordance with the principles of due process of law as set forth in Article 8.[1]

          Protecting the identity of those involved--including judges, the Public Prosecutor's staff and witnesses--which is the purpose of the Statute for the Defense of Justice, invariably leads to secret legal proceedings.  This secrecy--which is incompatible with the guarantee of public trial contained in Article 8(5) of the American Convention on Human Rights--is maintained at least during the preliminary proceedings, so that the inquiries are secret.  Compounding the problem is the fact that the identity of the witnesses is not disclosed, which makes it virtually impossible to rebut their testimony and is thus a violation of the accused's right of self-defense.  While no one doubts that measures of this nature were adopted under extraordinary circumstances, it is important to stress the fact that however complex the situation may be, the minimum guarantees of due process, as established in international instruments on the subject, must be respected.

          - PERU

          Few legal measures have been adopted in Peru to deal with its widespread violence and the special predicament of its judiciary.  However, it should be noted that the number of measures adopted has been inversely proportional to their impact on the current legal order.

          Peru is atypical in that it has coexisting states of emergency:  on the one hand, the emergency zones, and on the other the alteration of the democratic order.

          The scope of the military jurisdiction--which is exercised in respect of those who are prima facie responsible for violations of the human rights of the people, including members of the judiciary--in the emergency zones, i.e. in half of the country, is not compatible with the guarantee of trial by an independent and impartial court specified in Article 8(1) of the American Convention on Human Rights.

          The powers that members of the Armed Forces and Security Services have to hold persons in custody, without a court order, is incompatible with the provisions of Article 7 of the Convention.

          The fact that the civil guarantees, essentially habeas corpus, are virtually inoperative deprives the people of a simple and swift recourse before competent courts to protect themselves against acts that violate their fundamental rights, in accordance with Article 25 of the Pact of the San José.

          Besides these general considerations, the few rules created to protect the members of the judiciary basically involve practical security measures.

          In any event, the suspension of constitutionality as of April 5, 1992, has not only subverted the rule of law but has given the political power enormous, unlawful ascendancy over the judiciary, which has in effect been taken over.   To this must be added the dissolution of Parliament--described as an effort to find methods and means to remedy the violence--,which prevented any oversight over the state of emergency and deprives the judiciary of an important ally.

            EVALUATION OF MEASURES ADOPTED IN OTHER COUNTRIES

          The violence now assailing certain Latin American nations with particular ferocity, has in the past struck other societies which have had to find effective methods and means to combat it.

          The experience of the European countries in dealing with terrorist groups and armed bands, and Italy's experience with the Mafia, is useful for purposes of this study.

          Some lessons can be learned from the comparative technique in law, though one must always bear in mind that the violence in those countries lacks one element characteristic of violence in our hemisphere, the paramilitary element.  Also missing is the social disturbance found in some Latin American societies.

          The documentary resources consulted included the "anti-terrorist legislation" adopted between the mid-1970s through the mid-1980s in Italy, Spain, Germany and France.  These laws sought to preserve an adequate balance, which was not always achieved, between restriction of individual liberties and state security.

          Although in some of the States studied, violence and attacks against members of the judiciary were quite widespread, the legislation consulted shows that no special measures were taken in this respect other than Interior Ministry resolutions providing them with safety equipment.  The following analysis, therefore, covers the entire range of measures adopted to combat violence.  The standpoint taken is that the judiciary and its staff can only be protected by focusing on the general situation, not by dividing up reality into individual components by adopting specific measures that are predestined to fail because they are not rooted in the broader context.

          - ITALY, SPAIN, GERMANY AND FRANCE

          The European laws considered have a number of features in common.  Although the presence of armed bands or terrorist groups has led to the adoption of special legislative measures, these measures have not in general meant that the entire population's exercise and enjoyment of human rights have been suspended.  This is because suspension as envisaged in Article 15 of the European Convention for Protection of Human Rights and Individual Freedoms and Article 4 of the International Agreement on  Civil and Political Rights has never been invoked or because--as in Spain's case--the Constitution includes a provision allowing suspension of specific rights of certain persons in the event of terrorism.

          In the majority of cases, the solutions adopted seek to attack the foci or associations generating violence by means of a combination of genuinely legal measures and political decisions deployed in a positive sense.  In this way, the law is used to broaden existing definitions of crime, to make penalties harsher, and to put in place effective investigatory procedures for terrorist activities.

          Moreover, a policy decision is needed to forego trials and sentences for the sake of a greater social good, by encouraging defectors to leave the ranks of the terrorists.  In these cases, the law creates ingredients likely to cause dissention within armed bands as a means of destroying them from within.  It has been noted that "the facts show that many terrorists have seized upon the opportunity offered by the law, without much regard for ideology much less ethical considerations, in order to obtain a reduced sentence or even get off scot free."[2]

          Special provisions in the European Convention enable States to place restrictions on the right to respect privacy and family life, domicile and correspondence, pointing up a significant difference between the International Covenant on Civil and Political Rights and the American Convention on Human Rights.  This difference is all the more significant when one considers that this right is one of those most frequently curtailed in the anti-terrorist laws considered.

          It should be noted, however, that on more than one occasion the decision authorizing the members of the security services to intercept correspondence of all types has not always been effected in accordance with the constitutional requirements of the States in question.

          The same can be said regarding detention at police headquarters without need for immediate notification of a judge.

            CONCLUSIONS AND RECOMMENDATIONS

          The measures analyzed by the Commission here take place in a context of multifaceted violence generated by congenital social problems and clearly identifiable factors:  guerrilla bands, paramilitary groups and drug traffickers, not to mention also members of the security services who overstep their powers.

          The violence suffered by members of the judiciary is just one manifestation of a widespread situation that affects the entire nation.

          Any attempt, therefore, to separate the judiciary's dilemma from the overall situation will not work.  If the overall situation improves, so will the judiciary's situation.

          In the last two years certain positive signs have surfaced amid the generalized violence in Colombia, though recently there have been negative developments as well.  The positive developments include passage of the new Political Constitution of July 6, 1991; and the demobilization of three guerrilla groups and their reassimilation into normal civilian life:  the Popular Liberation Army--now called Hope, Peace and Liberty--,the Workers Revolutionary Party and the Indian movement known as the Quintín Lame Armed Movement, and a significant increase in the salaries paid to the members of the judiciary.  It is regrettable, nevertheless, that the new wave of narco-terrorism has prompted the Government of President Gaviria to decree and then renew the exceptional measures allowed in a state of internal disturbance under the new Constitution and to suspend talks between the Government and the Simón Bolívar Guerrilla Coordinator, consisting of the Revolutionary Armed Forces of Colombia (FARC), the Army of National Liberation (ELN) and a dissident faction of Popular Liberation Army (EPL).

          While the signs of improvement in the civic health of Colombia can be interpreted as one of several indications that the situation of the members of the judiciary in Colombia is improving, Peru's abandonment of the rule of law can only mean that the independence and autonomy of its judiciary will deteriorate further.

          In both countries public opinion is openly critical of the judiciary.  In Colombia it is often said that justice, especially in the criminal courts, moves at a snail's pace if at all as a result of the overload of work and the protracted delays in trying cases, while in Peru the judiciary is viewed as corrupt and overly politicized.

          As a result, a vicious circle has been created in which the Judicial Branch is both cause and effect of its dilemma.  Thus, it is assumed that the inefficiency of the Judicial Branch is the reason why criminals go unpunished, and this in turn spawns the attacks to which the judiciary is prey.

          However, over and above any individual grounds for blame which undoubtedly exist and need to be corrected in accordance with the law, the political authorities have done little to assist the Judicial Branch to perform its function properly.

          In any event, by pushing for a more independent and autonomous Judicial Branch, particularly in Colombia and to a lesser degree in Peru, the governments have interfered in the workings of justice, changing its organic structure and the relevant substantive and procedural laws.

          The states of emergency in force for long periods in the two countries have not respected the independence of the judiciary but have curtailed it instead and violated its jurisdiction and due process of law.

          Apart from the fact that the rule of law must be in full effect, with the principle of separation of powers duly observed, and the fact that administrative measures are needed to provide judges with suitable material means for protecting their security, the autonomy, independence and integrity of the members of the judiciary calls for measures that will ensure unrestricted access to the courts and legal remedies, trials conducted in accordance with the principles of due process of law, and the conclusion of such trials, within a reasonable time and with judgments that address all points involved.

          In this regard, it seems appropriate to make certain recommendations, both regarding the members of the judiciary and regarding certain guarantees that, regardless of the difficulties a State may be experiencing, must be part of the administration of justice and whose implementation and adaptation to each State's particular circumstances is the responsibility of its authorities:

          -          providing for personal and material security measures to guarantee, insofar as possible, the physical safety of the members of the judiciary;

          -          guaranteeing that the executive and legislative branches will not interfere in matters that are the purview of the judiciary;

          -          providing the judiciary with the political support and the means needed for it to be able to fully perform its function of guaranteeing human rights;

          -          ensuring the exclusive exercise of jurisdiction by the members of the judiciary, and eliminating special courts;

          -          guaranteeing that judges cannot be removed from office as long as their conduct remains above reproach, and ensuring that panels are set up to consider the cases of judges who are accused of unethical conduct or corruption;

          -          preserving the rule of law; and declaring states of emergency only when absolutely necessary, in keeping with Articles 27 of the American Convention on Human Rights and Article 4 of the International Covenant of Civil and Political Rights, structuring this system in such a way that it does not affect the independence of the different branches of government;

          -          ensuring unrestricted access to the courts and legal remedies and enabling the victim, when called for, to take action to bring those responsible to book;

          -          ensuring the effectiveness of the judicial guarantees essential for the protection of human rights, and removing the obstacles that prevent their swift and appropriate application;

          -          guaranteeing due process of law--indictment, defense, evidence and conviction--in public trials;

          -          returning to judges the responsibility for disposition and supervision of persons detained;

          -          guaranteeing that judges will be immediately notified of all facts and situations in which human rights are restricted or suspended, regardless of the legal status of the accused;

          -          removing the procedural obstacles that cause trials to run on for extended periods of time, so that cases may be tried within a reasonable period and settled by means of judgments covering all points involved;

          -          ensuring separate hearings of criminal cases and of civil or administrative disputes involving damages for injuries and losses.

           II.  ACTIVITIES OF IRREGULAR ARMED GROUPS

          1.          Introduction

          There has been increasing concern in international and regional human rights organizations with activities that constitute violations of internationally guaranteed human rights by armed groups that operate over a period of time and control, in varying degrees, the territory in which they operate.

          Pursuant to resolution 1990/75 of the United Nations Commission on Human Rights,  in the report he submitted to the Commission's forty-seventh session the Special Rapporteur on the question of the use of mercenaries as a means of violating human rights included a chapter titled "Activities of irregular armed groups and drug traffickers adversely affecting the enjoyment of human rights"[3] wherein he stated the following:

          At the present stage of development of international law, it is agreed that States bear primary responsibility for the life, freedoms and security of individuals and that States should be condemned and penalized when human rights violations falling within their responsibility and competence occur. (paragraph 156).

          Later, in reference to the activity of armed irregulars, either separately or in combination with bands of drug traffickers and mercenaries, the Special Rapporteur stated the following:

          Thus, not only do these irregular armed groups or gangs of drug traffickers or mercenaries commit acts that are contrary to international and national law but they must be branded as violators of human rights.  While it could be argued that the precepts of international law are not applicable to these groups, this would be to overlook the fact that international law consists not only of treaty provisions but also of general principles and customary rules which both States and individuals are required to observe. (paragraph 158).

          The Inter-American System of protection has grappled with this problem over a number of years.

          When the Annual Report of the Inter-American Commission on Human Rights was examined by the General Assembly at its twenty-second regular session, it was said that terrorism constitutes "the most serious violation of human rights that existed in Latin America" and that it cannot be regarded as a separate and unrelated phenomenon.[4]

          Among other observations and recommendations concerning the Commission's Annual Report, the General Assembly urged that it include in its next Annual Report "...a general description of the actions of irregular armed groups and the adverse effect of such acts on the enjoyment of human rights, for which it shall take into account, among other sources, the information to be supplied by the member states."[5]

          On March 7, 1990, the United Nations Commission on Human Rights approved resolution 1990/75, wherein it expresses its concern over the crimes and atrocities committed by irregular armed groups and drug traffickers, and `Requests all Special Rapporteurs and Working Groups to pay particular attention to the activities of irregular armed groups and drug traffickers in their forthcoming reports to the Commission".  In 1991 and in 1992 the Commission approved resolutions 1991/29 and 1992/42.  In the latter, it again calls upon the special rapporteurs and working groups to pay particular attention to the crimes and atrocities committed by drug traffickers and by armed groups that terrorize the population, and encourages nongovernmental organizations to be attentive to that phenomenon.

          Lacking any concrete frame of reference, the Commission is interpreting the expression "actions of irregular armed groups" used in resolution AG/RES. 1169 to mean those activities carried out by organized groups amid an internal armed conflict and for the purpose of altering, through the use of violence, a given political order which the members of the group regard as unjust.         

          From the foregoing, it would follow that the expression "actions of irregular armed groups" would not refer to situations created by internal unrest, such as sporadic and isolated acts of violence and other similar acts that would not constitute armed conflicts per se.

          There are, of course, other types of internal conflicts:  for example, conflicts that can be traced to guerrillas active in urban areas whose methods often involve indiscriminate violence against the civilian population of the State.

          On several occasions in the past, the Commission has made reference to the violence that engenders human rights violations.  The Commission has criticized the methods used by the irregular armed groups in those situations and the acts of violence that many such groups commit against innocent victims.

          In the Annual Report of the Inter-American Commission for the period from May 1990 to February 1991 (document CP/doc.2144/91), there was a section under Chapter V, on Irregular Armed Groups and Human Rights, pursuant to the provisions of AG/RES. 1043 (XX-0/90) of the General Assembly, which recommended to the Commission "that in reporting on the status of human rights in the American States, it include reference to the action of irregular armed groups in such states."

          In that section, the Commission discussed the legal points that would have to be considered when the member States take up this subject and expressed its readiness to continue to work with the competent organs of the Organization to establish a proper frame of reference.

          It would be pointless to dwell upon the content of that section of the Commission's Report in this introduction.  Suffice it to say that in it the Commission describes how, when preparing its report, it took into consideration the climate of violence in which human rights violations could occur.

          Of the reports in which reference is made to terrorism or in which acts of violence committed by irregular armed groups are criticized, the Commission mentioned, among others, the reports on El Salvador (1978), Argentina (1980), Colombia (1981), Guatemala (1981, 1983 and 1985), Nicaragua (1983) and Peru (1989).

          To elaborate upon the information that the Commission wishes to supply to the member States on this subject, an excerpt from its Annual Report for the 1988-1989 period is being cited.  There, in reference to an on-site visit made to Peru in 1989, the Commission had the following to say:

          ...it was imperative to put an end to the activities of irregular groups; they are causing an escalation and spreading of the violence, which is taking a dire toll of human lives, and eroding the country's basic institutions.  There is no circumstance in which either the alleged struggle to overcome poverty and build a new state or the need to take justice into one's own hands can justify recourse to selective assassination, summary execution, the destruction of production plants, torture, forced disappearance of persons, or the use of terror as an instrument of social control.

          More recently, the Commission again made reference to the activities of irregular armed groups, among others, in the report on the SITUATION OF HUMAN RIGHTS IN PERU wherein the Commission states that:  The tactics employed in the activities attributed to the PCP-SL or for which it has claimed responsibility, have caused enormous suffering and damage, even among the civilian population uninvolved in the conflict.  Very destructive explosive devices have been detonated.  Union leaders, politicians and leaders of grassroots organizations, most of them associated with the disadvantaged sectors of Peruvian society, have been targeted for assassination.  Young people and even children have been recruited by force and persons whose activities are considered to be contrary to the party's plans have been tried, summarily executed or mutilated.

          In this most recent report on Peru, the Commission points out that these methods are intended not just to affect the individuals against whom the acts of violence are targeted, but also to create terror within the general public and thereby thwart any active opposition to the Sendero Luminoso's political ends.

          In that same report, the Commission said something similar with respect to the armed violence of the Tupac Amaru Revolutionary Movement (MRTA).  The report states that the "MRTA is said to be responsible for a number of armed actions and selective assassinations, especially of members of the security forces involved in violent actions against it."

          In the Report on the Situation of Human Rights in the Republic of Guatemala (1981), the Commission observed, inter alia, that to more effectively combat the spread of groups that use violence and weapons to challenge the established order for the avowed purpose of effecting a change in the legal system and social structure in Guatemala, the governing authorities stepped up counter-insurgency tactics.[6]   When in 1985 it addressed those same counter-insurgency tactics from the standpoint of the human rights of the indigenous peoples, the Commission said that:

          To put matters in historical perspective, the IACHR was aware that it was the guerrilla movement that brought the war into indigenous territory, that went into hiding and sheltered itself in the indigenous people's villages, that compromised the villagers' neutrality and embroiled them in the conflict.[7]

          Even in its reports on individual cases, the Commission has taken into account the backdrop of violence against which human rights violations occur.

          At a number of its sessions the OAS General Assembly has recommended to the Inter-American Commission that it take account of the operations of armed bands in making assessments of the status of human rights.  As reviewed above, the Commission has been sensitive to this problem and has taken account of it in due fashion in annual reports.

          However, the Commission would note that it encounters significant procedural problems in implementing this general concern.  As the Special Rapporteur of the United Nations Commission on Human Rights remarked, in this regard, in 1990:

          ...(the Commission) should continue to deal with it as a matter of high priority and should study it in greater depth with a view to formulating a conceptual framework that could be applied juridically and would be useful in ensuring the effective protection and defence of individuals and populations whose fundamental human rights are being violated by these irregular armed groups and drug traffickers and in preventing, condemning and punishing their unlawful, criminal activities. (paragraph 190).

          The Commission would draw the Assembly's attention to the considerations deemed relevant by the Special Rapporteur of the UN Commission on Human Rights, for many of them obtain in our region as well.  It is hoped that the Assembly will turn its attention to the procedural problems insofar as it wishes the Commission to proceed further.

          It need hardly be said that under no circumstances should a sensitivity toward the activities of armed irregular groups leading to violations of human rights be used as a justification for the violations of human rights by governments themselves.  One should bear in mind that the primary function of the Commission is "to promote respect for and defense of" human rights which members of the OAS have undertaken to respect in the terms set forth in the American Declaration of the Rights and Duties of Man, and the American Convention on Human Rights. Though the Commission is willing and anxious to expand its focus, when relevant, to deal with any violation of human rights, nothing may be done that could possibly minimize its primary function.

III. STATUS OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS IN THE HEMISPHERE

          Introduction

          The Inter-American Commission on Human Rights has continued its observation of the economic, social and cultural rights in the hemisphere, in furtherance of the recommendations set out in resolutions AG/RES. 1044 (XX-O/90), AG/RES. 1112 (XXI-91), and AG/RES. 1169 (XXII-92) adopted by the General Assembly.  In its previous annual report, the CIDH developed a preliminary study of the status of those rights.  It drew on data contained in the reports that a number of member states had submitted to international agencies as well as a study prepared by the Pan American Health Organization.[8]

          Considering how important economic, social and cultural rights--also called second generation rights--are becoming in international forums, the IACHR addressed the governments of the member states to request direct information on this matter from them.  Nevertheless, it will continue using secondary sources of information such as the publications of different international agencies on the status of these rights in 1992.

          One important point is that implementing and enforcing economic, social and cultural rights has run into difficulties owing to the economic crisis that several of the member states are experiencing.  Since the promotion and enforcement of rights such as these is progressive and proportional to the development of each member country, demands to comply with them have been tied to the possibilities available to each government to implement them.

          The external debt has been mentioned as one further difficulty in enforcing these rights.  Also deserving mention are several reports prepared by different international agencies which point out that, in many cases, the external credit that led to the debt was used to buy weapons in Latin American countries.

          Owing to the difficult economic situation that most of the Latin American countries are facing, the most common problems are gradual deterioration of adequate standards of living for the people, a shortage of resources of all types for medical care and public health, high rates of infant mortality and morbidity, high rates of unemployment and under-employment, the growth of an informal economy paralleling the formal system, unstable economic systems and high inflation, high rates of malnutrition, higher rates of illiteracy, a shortage of suitable housing and the serious degradation of the environment owed to pollution and over-exploitation of valuable ecological resources, among others.  One example of the latter case would be deforestation and indiscriminate tree cutting in the Amazon which is now endangered by the abuse and degradation to which it has been subjected.

          The social costs that the restructuring of the economies in the hemisphere is creating are causing short, medium and long term problems.  Examples are lower spending on education and health.  According to United Nations estimates, 44% of the Latin American population lived in poverty in 1991.  Of this total, 60% is the figure for Central America.[9]

          In the face of such an alarming situation, the Organization of American States is promoting what has been come to be called the "fight against extreme poverty."  That initiative was proposed by the OAS General Assembly in Nassau.  Its main purpose is to undertake an ongoing and systematic task of fighting critical poverty as well as protecting human rights in the OAS member countries.  Within the framework of this effort was the commitment by the Organization to defend and promote representative democracy and human rights in the hemisphere.

          In addition, the President of Chile, Patricio Aylwin, stated to the opening meeting of the 24th session of the Economic Commission for Latin America and the Caribbean (ECLAC), held in Santiago, Chile, on April 13, 1992, "Poverty is rising as the main challenge to humanity as the next century approaches."  This important statement contains, in a nutshell, the major challenge that the American hemisphere faces; in many cases, this challenge is undermining the foundations of the new democratic regimes in the inter-American system.

          Human Rights within the American System

          The Ninth International Conference of American States, which was to be held in 1943 but was postponed because of World War II, met in Bogota, Colombia, from March 30 to May 2, 1948.  That meeting adopted, in addition to other important resolutions, three which were of fundamental importance for the international and then the regional area.  These were the Charter of the Organization of American States (OAS), the International American Charter of Social Guarantees, and another, that is of highest interest because of its subject, the American Declaration on Rights and Duties of Man, on May 2, 1948.  This declaration was the precedent for the Universal Declaration of Human Rights of the United Nations, which was adopted on December 10, 1948 in San Francisco.

          In its meeting of February 12, 1969, the OAS Council decided to convene a specialized inter-American conference for the purpose of adopting a draft convention on human rights.  That conference, held in San Jose, Costa Rica, in November 1969, adopted the American Convention on Human Rights, also known as the Pact of San Jose, Costa Rica, on February 22, 1969.  The convention went into force, pursuant to the provisions of Article 74.2, when it was ratified by eleven states parties.

          In studying the progress of economic, social and cultural rights in the hemisphere, it is important to point out the successes that the inter-American system has had by the passage of the Additional Protocol to the American Convention on Human Rights in the matter of economic, social and cultural rights, known as the "Protocol of San Salvador," which the General Assembly adopted in 1988.  The attachments to the annual report show the status of that protocol.

          This protocol protects, through the length of its articles, the following rights:  the right to labor; just, equitable and satisfactory working conditions; trade union rights; the right to social security; the right to health; the right to a healthy environment; the right to food; the right to education; the right to the benefits of culture; the right to the establishment and protection of the family; the right of childhood; the protection of the elderly and the protection of the disabled.

          The OAS Charter, reformed by the Protocol of Cartagena de Indias, includes the guidelines for implementation of the economic, social and cultural rights in the inter-American system (Chapter VII, Articles 29 and 51).

          The American Declaration of Rights of Man also contains economic, social and cultural rights in its articles.  The pertinent articles in this instrument are Article VI, which embodies the right to establishment and protection of the family, Article VII, which extends the right to maternity and infancy, Article XI, which safeguards the right to the preservation of health and general well-being, Article XII, which pertains to right to education, Article XIII, which sets out the right to the benefits of culture, Article XIV, which protects the right to labor and fair compensation for it, Article XV, which pertains to the right to rest and to its enjoyment, and Article XVI, which protects the right to social security.

          The American Convention on Human Rights recognizes in its preamble the indivisibility of civil and political rights from economic, social and cultural rights, and confirms, as does the Universal Declaration of Human Rights, that the ideal of the free human being, unfettered by fear and misery, can only be achieved if the conditions are created for each person to enjoy such rights in addition to civil and political rights.

          Furthermore, Article 26 of the American Convention points out the following as relate to economic, social and cultural rights:

          The States Parties undertake to adopt measures, both internally and through international cooperation, especially those of an economic and technical nature, with a view to achieving progressively, by legislation or other appropriate means, the full realization of the right implicit in the economic, social, education, scientific and cultural standards set forth in the Charter of the Organization of American States as amended by the Protocol of Buenos Aires.

          It is also important to mention the provisions of Article 42 of this important instrument with respect to those rights:

          The States Parties shall transmit to the Commission a copy of each of the reports and studies that they submit annually to the Executive Committees of the Inter-American Economic and Social Council and the Inter-American Council for Education, Science, and Culture, in their respective fields, so that the Commission may watch over the promotion of the rights implicit in the economic, social, educational, scientific, and cultural standards set forth in the Charter of the Organization of American States as amended by the Protocol of Buenos Aires.[10]

          The adoption of Protocol of San Salvador thus constitutes the culmination of efforts by the American international community to convert all the preceding declarations into binding standards.

          However, even though almost five years have passed since this protocol was signed, only Suriname and Panama and Ecuador among all the American states, have ratified it to date.  As a result, the ratification by the other member states is of extreme importance.

          It must be pointed out that this instrument makes a major contribution to empowering individuals to file claims regarding violations of economic, social and cultural rights in the regional international sphere.  Its Article 22 also prescribes the incorporation of other rights and the expansion of recognized rights either by the Inter-American Commission on Human Rights or by the member states in the General Assembly.

          In referring to certain rights in a general way, the Commission points out that the right to health is one of those hardest hit by the critical economic situation.  Public health and drinking water services are almost non-existent for the great majority of the people in the region.

          Likewise, it could be pointed out that the education is a right not shared by the great majority of people in this hemisphere.  For this reason, in referring to the topic of literacy, the United Nations Organization for Education, Science and Culture (UNESCO) points out, "...In a world of five billion inhabitants, one billion are illiterate.  Most of these are poor people living in rural parts of the developing countries.  But in recent years, the industrialized countries have been increasingly seeing that they too have illiterate persons, the so-called functional illiterate...  In general terms, literacy is the ability of a person to read and write in his mother tongue or in the language of his country... `Functional illiteracy' is the lack of the reading and writing skills necessary to meet the demands of modern society."[11]

          Mentioning its statistics, UNESCO pointed out:

         - It is calculated that 962 million persons of 15 years of age and older do not know how to read or write.

          -           95% of them live in developing countries;

          -           Two out of every three are women;

         - In addition, 115 million children do not attend school and run the risk of becoming the adult illiterates of the twenty-first century.

          This situation has been observed previously by the World Health Organization (WHO) which has made references to acquired immune deficiency syndrome (AIDS) since 1990.  The WHO points out that in most developing countries, and in Brazil in particular--a country with a very high rate of this illness--the transmission of this disease is very highly related to extreme poverty and is intertwined with illiteracy because most campaigns against this terrible threat are based on written flyers and graphic documents that require a minimum level of literacy.  UNESCO continues saying, "...In the United States an excellent herd of cattle was lost because a worker did not know how to read and mistook a package of poison for a feed supplement."  In relation to literacy and development, UNESCO states, "Four years of primary education, for example, are equal to an increase in farm productivity of 10% or more, on the average.  Literate mothers have fewer children, and they are healthier and better fed.  For each additional year that a mother attends school, infant mortality is reduced by 9 per thousand, approximately."

          As a result of these facts, the indivisibility of the enjoyment of human rights, both civil and political rights as well as economic, social and cultural rights, is a priority for solving the problems that beset the hemisphere.

            Status of economic, social and cultural rights in several OAS member countries

          On August 20, 1992, the Commission sent a letter to the member states of the Organization seeking information from them pertaining to the observance and promotion of economic, social and cultural rights.  This was in compliance with the General Assembly's recommendation under the resolution, "Strengthening of the OAS in Matters of Human Rights" (AG/RES. 1112 (XX-91), and the contents of paragraph 15 of resolution AG/RES. 1044 (XX-90).

          This section includes a summary of the replies from member states to the Commission.  It uses this opportunity to thank those member states for the materials they forwarded which made it possible to carry out the recommendation.  It also points out that several states provided very complete information which the Commission will use to further its studies in this matter.  Regrettably, owing to space limitations in the annual report, these could not be reproduced in full.

          Argentina

          The Argentine government stated, "The rights protected by the American Convention on Human Rights and the International Pact on Civil and Political Rights are embodied largely in current law in the Argentine republic.  These rights are set out for enjoyment and exercise by all 'residents' of the republic, that is, both nationals and foreigners.  The rights embodied are guaranteed without discrimination of any type, as set out in articles 14 and 20 of the National Constitution, referring to all 'residents,' and article 16, which provides that all residents are equal under the law.  The principle of non-discrimination is also provided for in the laws.  Accordingly, Law No. 23302 of November 8, 1985, has declared native peoples and existing native communities in Argentina and their protection and development to be of national interest and support, so that they are fully involved in the socioeconomic process...  On August 21, 1988, Law No. 23592 was passed.  This law punishes perpetrators of discriminatory acts, and raises the amounts of the sentences provided in the penial code when the crime is committed `For persecution or hatred of a race, religion or nationality, and for the purpose of destroying in part or in full a national, ethnic, racial or religious group.'  Article 17 of the law on labor contracts prohibits discriminations among workers on the grounds of race, sex, nationality, religious reasons, politics, trade unions or age."

          Furthermore, it points out that its government and the laws protect the rights to:  recognition of legal personality, life, personal integrity, prohibition of slavery and servitude, personal liberty, judicial protections, principles of legality and ex post facto application, indemnity, protection of honor and dignity, liberty of conscience and religion, liberty of though and expression, rectification and response, assembly, freedom of association, protection of the family, name, rights of children, nationality, private property, free travel and residence, political rights, equality under the law, judicial protection and others.

          In referring in its statement to remedies available to nationals who feel their rights have been violated, a variety of remedies regulated in the law, depending on their purpose, are available.  Examples are filing charges, provided for in the Procedural Codes for Penal Matters and Penal Procedural Codes; due process procedures, regulated by law No. 16.986; habeas corpus, regulated by law No. 23.098; and special appeal, governed by Article 14 of Law No. 48, to the Supreme Court of Justice of the Nation.  The latter right applies before final sentencing.  The last right mentioned in the reply from the Argentine government pertains to administrative rights, regulated by Law No. 19549 on Administrative Procedures.

          Brazil

          The following information came from the letter sent by Brazil to the IACHR regarding protection of and compliance with human rights in that country:  "Within its legal framework, the Brazilian Constitution of 1988 reflects the intentions of the legislators to affirm and expand the range of fundamental rights and guarantees embodied in the preamble to the Constitution (democratic state, designed to ensure the exercise of social and individual rights to liberty, safety, well being, development, equality and justice, as the supreme values of a fraternal and pluralistic society free of bias), which are included in the fundamental principles (citizenship, dignity of the human person, prevalence of human rights, without discrimination, on the basis of origin, race, sex, color, ideas, or status as political refugee), and described in five chapters which take up individual and collective rights and duties, social rights, nationality, political rights and political parties.  The Brazilian Constitution embodies all the rights and liberties such as:  a) individual liberty of travel, respect for private life, inviolability of domicile, of correspondence and of telephonic communications, freedom of persons of legal age to contract matrimony and to have whatever number of children they desire; b) freedom of thought: of opinion, press and instruction; collective liberties of assembly, association and freedom of worship."

          As pertains to economic, social and cultural rights, the Brazilian Constitution embodies the right to a dignified existence;  the right to protection of health, education, employment, guaranteed wage, right to rest and holidays, remunerated rest for expecting mothers, the right to strike, protection against unemployment, and the right to social security.

          As for the internal mechanisms to protect human rights, Brazilian laws include six main actions or remedies to protect any right that might be threatened.  These are habeas corpus, habeas data, the mandate of security, the mandate of collective security, the mandate of injury and popular action.

          The rights and guarantees expressed in the Constitution do not exclude other rights which are recognized and associated with the international juridical instruments to which Brazil is a party.  The instruments that are approved become integral standards of domestic juridical order and are binding in execution.  As a result, they maybe invoked and applied directly by the competent courts and authorities.

          The responsibility to protect human rights contained in domestic laws is very widespread but no authority has exclusive and specific power in this area.  All judicial and administrative authorities, at all levels, are obligated to respect the provisions of the Constitution and legal provisions to protect these rights.  The authorities that are competent to ensure the observance of any human rights threatened are the court authorities and the Public Ministry.  Any victim of a violation of human rights may seek reparation by means of a court action which can also be taken against a person's own trade union.

          Any individuals who believe their rights have been affected can appeal directly to the Public Ministry.  The other area of direct recourse is the Council of Defense of the Rights of the Human Person (CDDPH).  This is a collegiate body made up of representatives of the federal public administration and of civil society, and presided over by the Minister of Justice.  The Council takes up complaints and charges of violations of human rights, made directly by the interested parties, or by others, or through the press media.  It proposes and recommends the adoption of corrective measures to the competent authorities.  The Council is not an executive branch organ and does not have coercive powers over either administrative or judicial authorities.  It is confined to requesting and recommending to these authorities the necessary measures for investigation, punishment and reparation for violations of human rights.  In certain cases, and with the collaboration of the Public Ministry, the CDDPH monitors the treatment by the competent authorities of specific cases of human rights violations of which it is aware.

          The rights of native peoples are protected by the Public Ministry.  Complaints from native peoples can be addressed as well to the Office of General Coordination of the Protection of Indian Rights, created in August 1991, with the power to receive charges of violations of rights from Indians and their communities and to expedite, rule on and orient the competent authorities.  This office acts with the support of the Public Ministry.

          Among the principal institutions functions of the Public Ministry are:  promoting public penal action privately; promoting civil suits and public civil action for the protection of public and social assets, the environment and other collective interests; and defending judiciously the rights and interests of Indian populations.        

  continued...

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