access to justice as a guarantee of economic, social, and cultural rights. 

a review of the standards adopted by the inter-american system of

human rights

V.        The substance of the right to effective judicial protection against violation of social rights

235.          A fourth significant obstacle to the effectiveness of economic, social and cultural rights is the lack of adequate judicial mechanisms for their protection.  The traditional judicial remedies on the law books were conceived for the protection of conventional civil and political rights.  A lack of adequate and effective remedies in the domestic law of a state for the protection of economic, social and cultural rights is an infringement of the rules contained in international human rights instruments, which enshrine the right of access to such remedies and, consequently, to those rights.  Without question, these standards entitle the holder of a right to a remedy for its protection.

236.          Recognition of rights imposes the obligation to create judicial or other remedies that enable their holders to invoke their protection in court or before another similarly independent authority when a person required to observe them fails to do so.  Accordingly, to recognize rights is also to recognize powers to their holders and, in that sense, can act as a means to restore equality in the context of profoundly unequal social situations.  Therefore, the recognition of economic, social and cultural rights leads to the recognition of the need for suitable and effective mechanisms to invoke these individual and collective rights.

237.          One important aspect is the issue of judicial remedies of a collective nature or class actions on social rights.  These rights have a clear collective dimension and their breach usually affects more or less established groups or collectives.  The collective nature of the majority of economic, social and cultural rights creates problems with respect to standing that are not confined to the filing stage but also extend throughout all the other stages of the proceeding, owing to the absence of adequate participation mechanisms for collective persons or large groups of victims in different procedures and jurisdictions.^[183]  This circumstance shows that remedies and procedures are designed for the settlement of individual disputes.

238.          It should be noted that the various collective mechanisms for access to justice enable public policy monitoring by various social actors, in particular groups or communities affected by structural situations that violate their rights.  Thus, collective amparo actions, writs for protection (acciones de tutela), mandados de seguranca or injuncao in Brazil, class actions, declaratory judgment actions, unconstitutionality actions, and public civil actions act as mechanisms for societal oversight of policies and at the same time serve to activate accountability processes and systems of checks and balances among government organs.  In these actions, environmental groups, users organizations, indigenous peoples, women’s groups and human rights organizations, or, occasionally, public officials with standing to represent collective stakeholders --such as the Attorney General or the Ombudsman-- have managed, through the institution of judicial proceedings, to influence the direction of social policy in many different ways.  Actions of this type have led to debate on public policy in a variety of areas, such as guidelines for social security reform; mass pension and wage reduction programs; HIV/AIDS drugs provision policy; education quota systems for Afro-descendent populations; distribution of public education budget appropriations; exclusion of social sectors from food assistance programs; discriminatory practices against immigrants in access to social services and housing schemes; and non-fulfillment of social policy for displaced persons in armed conflicts.  These remedies have also contributed to monitoring of companies that provide public services, in order to protect the rights of users, or private groups and companies which engage in economic activities that have an environmental impact.  They have also served to secure the disclosure of information and demand participation mechanisms in processes prior to the design of policy or the award of concessions for potentially harmful economic activities.^[184]

239.          Therefore, the enforceability of adequate mechanisms to claim social rights is a core item for the judicial reform agenda in the region, in order to strengthen access to jurisdictional organs and social and political participation in the area of justice, as well as for monitoring government policy and the performance of private players whose activities impact on the exercise of basic rights.  In this framework, the IASHR has recognized the critical importance of developing effective judicial remedies suitable for the protection of economic, social and cultural rights and has begun to draw up guidelines for the design and implementation of appropriate mechanisms to ensure the effectiveness of these rights.

a.        The Right to Effective Judicial Protection in the American Convention on Human Rights

240.       The American Convention recognizes the right to a specific judicial guarantee designed to provide effective protection for persons against violation of their human rights.  Basically, Article 25 of said treaty enshrines the right to simple, prompt, and effective recourse against infringement of fundamental rights.

241.          The American Convention, a) creates the obligation for States to create a simple and prompt recourse, in particular of a judicial nature, although other recourses are admissible provided they are effective, for the protection of “fundamental rights” contained in the Convention, the Constitution, or the law; b) requires that the recourse be effective; c) stipulates the requirement that the victim of the violation be able to invoke it; d) requires the State to ensure that the recourse shall be heard; e) mentions that such recourse must be possible even against violations committed by public officials (it follows, therefore, that it is also possible against acts committed by private persons); f) obligates the State to develop the possibilities of judicial remedy; and, g) establishes the obligation for state authorities to enforce such remedies when granted.

242.          The duties of States in this connection flow from the combined the scope of Articles 2, 25, and 1(1) of the American Convention.[185] The reason for the foregoing is that  Article 2 of the American Convention requires states to adopt measures,  including legislative measures to give effect to any of the rights contained in that instrument that are not already ensured.  This includes the right to an effective remedy against individual or collective violations of economic, social and cultural rights.

243.          In this connection, it has been noted that states parties are obliged, by Articles 25 and 1(1) of the American Convention, to establish a system of simple and prompt local remedies, and to give them effective application.  If de facto they do not do so, due to alleged lacunae or insufficiencies of domestic law, they incur into a violation of Articles 25, 1(1) and 2 of the Convention.[186]

244.          The foregoing demonstrates that the American Convention creates the obligation to provide simple, prompt, and effective remedies against violations of human rights.  It would be seemly, therefore, briefly to examine the scope of those aspects of the right to due process.

B.         The Obligation to Provide Simple, Prompt, and Effective Remedies

245.       According to the case law of the IASHR,^[187] the “effectiveness” of a remedy has two aspects: one is normative, the other empirical.^[188]

246.        The first of these aspects has to do with these so-called "suitability" of the remedy.  A remedy’s "suitability" is represented by its potential "to determine whether a violation of human rights had been committed and do whatever it takes to solve it,"[189] and its capacity to "yield positive results or responses to human rights violations." The Inter-American Court analyzed among its first judgments.  Thus, in the Velázquez Rodríguez Case,[190] the Court found that, according to generally recognized principles of international law, judicial remedies must not also exist formally but also be effective and adequate.  The Court held:

Adequate domestic remedies are those which are suitable to address an infringement of a legal right.  A number of remedies exist in the legal system of every country, but not all are applicable in every circumstance.  […] A norm is meant to have an effect and should not be interpreted in such a way as to negate its effect or lead to a result that is manifestly absurd or unreasonable.  […]A remedy must also be effective - that is, capable of producing the result for which it was designed.[191]

247.          As regards its normative design, the remedy should offer the possibility of addressing human right violations and of providing adequate redress for such violations.  On this specific point, the Inter-American Court has reiterated the following:

[F]or the State to comply with the provisions of this Article [25], it is not enough that the recourses exist formally, but that they must be effective; in other words, the persons must be offered the real possibility of filing a simple and prompt recourse in the terms of Article 25 of the Convention.[192]

248.          The IACHR, for its part, has also identified standards by which a remedy is deemed to be “effective”, with particular emphasis on its normative aspect.  Thus, in its report on merits in the Case of Loren Riebe et al.[193]­­ --which was examined closely in the third section of this report-- the Commission found that the simplicity, promptness, and effectiveness of the writ of amparo presented by the three priests against the decision of the Mexican state to expel them from its territory should be measured on the basis of: a) the possibility of verifying the existence of such violations; b) the possibility of remedying them; and, c) the possibility of making reparation for the damage done and of punishing those responsible.[194] Bearing these parameters in mind, the IACHR concluded,

It is clear that the legal remedy did not comply with the above-mentioned requirements.  On the contrary, the final decision of the Mexican courts found, without sufficient legal grounds, that government officials had acted legally.  Thus, that decision consolidated the violations of the human rights of the complainants and allowed the violators to go unpunished.  In other words, the priests were denied the protection of Mexican justice against transgressions of their fundamental rights, in violation of the right to judicial guarantees […] On the basis of all the above, the Commission concludes that the Mexican State violated the right to judicial protection established in Article 25 of the American Convention in the case of Fathers Loren Riebe Star, Jorge Barón Guttlein, and Rodolfo Izal Elorz.[195] (Emphasis added)

249.          It should be noted that in the aforesaid case the IACHR concluded that there had been a violation of Article 25 of the American Convention, bearing in mind, among other things, the scope of the judicial review of the administrative decision to expel the priests.  However, as mentioned in the third section of this report, on other occasions the IACHR has analyzed this issue in reference also to the implicit nature of Article 8 of the American Convention.  Thus, we detect a certain difference between violations that fall within the framework of Article 8 and those that concern Article 25 and, in particular, the close link that the IACHR and the Inter-American Court have determined to exist between the rights and guarantees recognized in these two articles of the American Convention.

250.          Furthermore, and still with respect to the normative aspect of the remedy, it cannot be overlooked that the Inter-American Court, in referring to the concept of "effective remedy" enshrined in Article 25 of the Convention, has drawn attention to the significance of two procedural institutions in particular.  Thus, the Court has reiterated that the procedural institutions of amparo and habeas corpus meet “the necessary characteristics for the effective protection of the fundamental rights; in other words, [they are] simple and brief.”[196] With respect to this situation, it should be noted that Article 25 of the American Convention allows for “effective remedies” that are not simple or prompt.  It may be surmised that said article refers to remedies for situations in which the facts or evidence are highly complex, or situations that require a complex remedy. 

251.          As noted, the second aspect of an "effective" remedy is of an empirical nature.  This refers to the political or institutional conditions that enable a legally recognized remedy to “fulfill its purpose” or “produce the result for which she was designed.” On this latter point, a remedy is not effective when it is “illusory”, excessively onerous for the victim, or when the State has not ensured its proper enforcement by the judicial authorities.  Thus, the Inter-American Court has consistently held that,

A remedy which proves illusory because of the general conditions prevailing in the country, or even in the particular circumstances of a given case, cannot be considered effective.  That could be the case, for example, when practice has shown its ineffectiveness: when the Judicial Power lacks the necessary independence to render impartial decisions or the means to carry out its judgments; or in any other situation that constitutes a denial of justice, as when there is an unjustified delay in the decision; or when, for any reason, the alleged victim is denied access to a judicial remedy.^[197]

252.          It is not necessary to resort to extreme examples --such as, for instance, a particular country in the region where genuine rule of law might not be in force-- to find precedents that offer a clear illustration of the empirical aspect of an effective remedy.

253.          For example, the Case of Maria Da Penha Maia Fernandes offers an account of structural circumstances that may cause remedies provided for human rights violations to be ineffective.^[198] At issue in this case was the way in which the courts acted with regard to the prohibition of discrimination in cases that involved particularly vulnerable groups.

254.          Mrs. Da Penha complained to the IACHR that the Brazilian State for years condoned domestic violence perpetrated against her by her husband during their marital cohabitation, culminating in attempted murder.  As a result of the aggression to which she was subjected during her marriage, the petitioner suffered irreversible paraplegia.  The petition basically alleges that the State has condoned this situation, since, for more than 15 years, it has failed to take the effective measures required to prosecute and punish the aggressor, despite repeated complaints. 

255.          In its report on merits, the Commission concluded that the State violated Mrs.  Maria da Penha Maia Fernandes’ rights to a fair trial and judicial protection recognized in Articles 8 and 25 of the American Convention, in conjunction with the general obligation to respect and ensure rights established in Article 1(1) of said instrument, as well as in Articles II and XVIII of the American Declaration of the Rights and Duties of Man, as well as Article 7 of the Convention of Belém do Pará.  The IACHR concluded that this violation formed a pattern of discrimination evidenced by the condoning of domestic violence against women in Brazil through ineffective judicial action.[199] Thus, the IACHR found,

Furthermore, as has been demonstrated earlier, that tolerance by the State organs is not limited to this case; rather, it is a pattern.  The condoning of this situation by the entire system only serves to perpetuate the psychological, social, and historical roots and factors that sustain and encourage violence against women […] Given the fact that the violence suffered by Maria da Penha is part of a general pattern of negligence and lack of effective action by the State in prosecuting and convicting aggressors, it is the view of the Commission that this case involves not only failure to fulfill the obligation with respect to prosecute and convict, but also the obligation to prevent these degrading practices.  That general and discriminatory judicial ineffectiveness also creates a climate that is conducive to domestic violence, since society sees no evidence of willingness by the State, as the representative of the society, to take effective action to sanction such acts […] [I]n this case, which represents the tip of the iceberg,  ineffective judicial action, impunity, and the inability of victims to obtain compensation provide an example of the lack of commitment to take appropriate action to address domestic violence.[200] (Emphasis added)

256.          Thus, in this case, the IACHR identified a pattern of discrimination associated with toleration of domestic violence against women in Brazil that resulted in the complete ineffectiveness of the judicial mechanisms available to the victims to remedy their violated rights.

257.          However, there is another type of case that also serves to illustrate the empirical aspect of a so-called “effective remedy.”  Thus, as mentioned, ineffectiveness may also result from an unwarranted delay in rendering a decision.

258.          The analysis of the IACHR in the case of Jorge Odir Miranda Cortez et al v. El Salvador, illustrates such circumstances.[201] In this case, the petitioners alleged violation of their right to life, health, and well being because they were not provided with the triple therapy needed to treat HIV/AIDS.  Insofar as is relevant here, they alleged that the State also violated the right to a fair trial and judicial protection by its failure to observe the principle of reasonable time in reaching a decision on the merits of an amparo action that they had brought with a view to safeguarding their fundamental rights.  Accordingly, it was argued that the amparo action demonstrated a total lack of effectiveness for the protection of fundamental rights.  In light of this situation, in its analysis of admissibility in the case, the Commission found,

In fact, the petitioners filed a petition for amparo proceedings on April 28, 1999 with the Supreme Court of that country seeking the provision of anti-retroviral medication for seropositive patients.  According to the information furnished by the petitioners (which was not disputed by the Salvadoran State), on June 15, 1999, the Constitutional Division of the Supreme Court decided to accept the petition.  However, as of the date of this report, it had not handed down a final ruling on the merits of the claim […] In the view of the IACHR, the petitioners had access to amparo proceedings, the remedy offered by the domestic legal system in this case, and they filed for these proceedings within the time period and in the manner required.  However, to date, this remedy has not proven effective in responding to the claims of alleged violation of human rights.  Almost two years have elapsed since the petition was filed and no final decision has been handed down by the Salvadoran Supreme Court.[202] (Emphasis added)

259.          The foregoing precedents, leads to the conclusion that the notion of effectiveness of a remedy that flows from Article 25 of the American Convention, in terms of both its normative and its empirical aspect,[203] is associated with the suitability of the remedy to prevent, halt, curb the effects of, and repair the infringement of the human right in question.  For that reason, the Inter-American Court has consistently concluded that “the inexistence of an effective recourse against violations of the acknowledged rights by the American Convention constitutes a transgression thereof by the State Party.”[204]

c.         Judicial Remedies for Effective Protection of Rights

260.          Having briefly sketched out the general framework on which the right to effective judicial protection rests, it is appropriate now to refer to the standards of the IASHR that are of particular relevance to the effectiveness of economic, social and cultural rights.  Accordingly, we shall examine considerations expressed by the IACHR and the Inter-American Court on the requirements for judicial actions and remedies for protection of fundamental rights to be considered suitable and effective, such as actions of a precautionary or preventive nature, as well as other actions and procedures for protection of both an individual and a collective nature.

1.         Provisional Protection of Rights

261.          The IASHR has recognized that the notion of effectiveness in the sense of Article 25 of the Convention, requires that available judicial remedies include procedural measures, such as preventive, provisional, or precautionary measures and, in general, simple and prompt remedies for the protection of rights in order to prevent violations from continuing over time;^[205] the foregoing notwithstanding that the determination on the merits of the matter might take longer.

262.          Particularly relevant in this connection are two recent reports of the Inter-American Commission in which it expressly refers to the importance of ensuring provisional protection for rights: the “Report on the Situation of Human Rights Defenders in the Americas”^[206] and “Access to Justice for Women Victims of Violence in the Americas.”^[207]

263.          In the former, the IACHR notes that “the right to judicial protection creates an obligation for states to establish and guarantee appropriate and effective judicial remedies for the precautionary protection of rights.”^[208] The Commission then goes on to refer to certain conditions that these remedies should meet, as well as certain features that should be present in their processing.

264.          Given the special nature of these remedies, and the urgency and necessity in which they must operate, the IACHR pointed out certain basic characteristics that they required in order to be considered “suitable”.  Such characteristics include: a) that the remedies be simple, urgent, informal, accessible, and processed by independent bodies; b) that individuals have the opportunity to approach federal or national legal entities when bias is suspected in the conduct of state or local bodies; c) that the such remedies enjoy broad, active legitimacy; d) that they can be processed on an individual basis or as collective precautionary actions (to protect a particular group or one that is identifiable based on certain parameters as affected or at imminent risk); and, e) that provision be made for the implementation of protective measures in consultation with the affected parties.[209]

265.          As regards, the processing of these remedies, the IACHR mentions in its report that due to the fact that,

[S]uch actions are designed to protect fundamental rights in urgent cases, the evidentiary procedures should not be the same as that required in ordinary proceedings; the idea is that measures be adopted within a brief time period for the immediate protection of the threatened rights.[210]

266.          At the same time, in Access to Justice for Women Victims of Violence in the Americas, the IACHR identifies the right to seek effective precautionary protection as a specific dimension of the right to judicial protection under Article 25 of the American Convention; it also mentions various elements of the type of remedies that states are required to provide in cases of violence against women.[211]  In particular, the Commission notes:

One specific dimension of the right to judicial protection is the right to seek effective precautionary protection.  Article 8.d of the Convention of Belém do Pará indicates spells out some of the elements of the type of protective measures that States are required to provide in cases of violence against women, such as appropriate specialized services, including shelters, counseling services for all family members, care and custody of the affected minors.  These specialized services are in addition to court restraining orders or other precautionary measures compelling the assailant to cease and desist and protecting the physical safety, freedom, life and property of the aggrieved women.[212]

267.          As the foregoing shows, particularly in recent times, the precautionary protection of rights --and the different remedies that ensure that protection-- has been accorded an important function within the scope of the right to effective judicial protection.
 

2.         The Right to Effective Judicial Protection against Collective Violations of Human Rights

268.          As mentioned, social rights indubitably have a collective dimension and, therefore, their breach usually affects more or less established groups or collectives.  The same applies to  government measures that affect excluded social sectors and usually take the form of widespread practices that generate situations of a structural nature and require collective remedies, such as impairment of the civil, political, and social rights of an indigenous community or a group of displaced persons.[213]

269.          Thus, a component of the enforceability of rights in the courts is the possibility of access to actions of this type in representation of public or collective interests, regardless of their procedural design.  This right is covered in Article 25 of the American Convention and closely linked to freedom of association and the right to participate in government.  Accordingly, the relevant judicial remedies are those that are suitable for the protection of rights of this type.  Such judicial remedies are often limited or subject to procedural rules or restrictive case law in reference to standing, evidence, litigation costs, and enforcement mechanisms for decisions.  By placing actions of this type within the framework of the collective dimension of the right to effective judicial protection for human rights it is possible to develop clearer guidelines on the type of rules and regulations that states may or may not enact.

270.          In this framework, the IASHR has begun to outline standards on judicial protection mechanisms to guarantee collective litigation and, in particular, on the scope of the obligation of states to ensure grievance procedures of this type in domestic judicial systems.

271.          The aforesaid situations necessarily require the design and implementation of collective litigation mechanisms are those in which the ownership of a right corresponds to a plural or collective person, or in which the right must be exercised in a collective manner.  In such cases, in order to invoke judicial protection it is necessary for someone to claim a group or collective violation and not simply an individual violation.  By the same token, it is necessary for someone in these circumstances to demand a collective remedy and not simply one of a purely individual scope, since otherwise the remedy could not be considered effective.

272.          In keeping with the foregoing, a clear example of collective rights ownership is the right of indigenous communities to ancestral land.  This right is meaningless if is subdivided into individually assigned portions of property; the condition for the preservation of the people’s identity is their communal ownership and enjoyment of the right to the land.  Both the IACHR and the Inter-American Court have outlined standards in this area.

273.          In the Awas Tingni Case,^[214] the Court analyzed the scope of Article 21 of the American Convention, which enshrines the right to private property.  The case involved, among other relevant facts, the allegation that the State of Nicaragua failed to demarcate and title indigenous communal land and that it granted concessions for private exploitation of natural resources on said land.  The Court found the following in its judgment:

[I]t is the opinion of this Court that Article 21 of the Convention protects the right to property in a sense which includes, among others, the rights of members of the indigenous communities within the framework of communal property… […] Given the characteristics of the instant case, some specifications are required on the concept of property in indigenous communities.  Among indigenous peoples there is a communitarian tradition regarding a communal form of collective property of the land, in the sense that ownership of the land is not centered on an individual but rather on the group and its community.  Indigenous groups, by the fact of their very existence, have the right to live freely in their own territory; the close ties of indigenous people with the land must be recognized and understood as the fundamental basis of their cultures, their spiritual life, their integrity, and their economic survival.  For indigenous communities, relations to the land are not merely a matter of possession and production but a material and spiritual element which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations.[215]

274.          Thus, the Court considered that Article 21 should be interpreted in the sense that it also protects the collective property of an indigenous community.  Collective ownership of land necessarily entails the possibility of treating that property as a collective asset and not simply a cluster of individual assets.  While the Court did not refer in this case to the specific need to introduce mechanisms to ensure protection of the right to collective litigation, it ordered the State to adopt the legislative, administrative, and any other measures necessary to create an effective mechanism for delimitation and titling of the property of the members of the Awas Tingni Mayagna Community, in accordance with the customary law, values, customs and mores of that Community.  Based on the foregoing, the Court concluded that the State violated Article 25 of the American Convention, to the detriment of the members of the Mayagna (Sumo) Awas Tingni Community, in connection with Articles 1(1) and 2 of the American Convention.  In this way, it took the initial steps along a path that the Commission would rejoin.

275.          In the Case of the Maya Indigenous Communities of the Toledo District,^[216] the petitioners alleged that the State of Belize violated the rights of the Maya people by awarding logging and oil concessions on Maya lands without meaningful consultations with the Maya people and in a manner that has caused substantial environmental harm and threatens long term and irreversible damage to the natural environment upon which the Maya depend.  The petition also contended that the State failed to recognize and provide adequate protection for the rights of the Maya people to those lands and failed to ensure adequate judicial protection of their rights and interests due to delays in court proceedings instituted by the community.

276.          The purpose of these proceedings was to secure a court order declaring the existence and nature of Maya interests in the land and resources and the status of those interests as rights protected under the Constitution of Belize, as well as declarations of violations of those rights by the Government because of the licenses to log within Maya traditional lands.  The motion also requested that the Government be ordered to cancel or suspend the logging licenses and any other licenses for resource extraction within the lands held by Maya aboriginal rights, and an injunction was requested to restrain the Government from granting further concessions except pursuant to an agreement negotiated with and entered into by the Maya leadership.  In its report on merits, the IACHR underscored the collective dimension of the rights in contention:

Among the developments arising from the advancement of indigenous human rights has been recognition that rights and freedoms are frequently exercised and enjoyed by indigenous communities in a collective manner, in the sense that they can only be properly ensured through their guarantee to an indigenous community as a whole.  The right to property has been recognized as one of the rights having such a collective aspect.  […] It is also apparent to the Commission that despite its recognition of the property right of the Maya people in their traditional lands, the State has not delimited, demarcated and titled or otherwise established the legal mechanisms necessary to clarify and protect the territory on which their right exists.  In this regard, the record indicates that the present system of land titling, leasing and permitting under Belizean law does not adequately recognize or protect the communal rights of the Maya people in the land that they have traditionally used and occupied.  According to the information provided by the Petitioners, which has not been refuted by the State, the regime governing the ownership of private property does not recognize or take into account the traditional collective system by which the Maya people use and occupy their traditional lands.  […] [I]t is apparent that under domestic legislation, ownership of the reservation lands lies with the State as “national lands” and there are no provisions recognizing or protecting Maya communal land interests in the lands […] [T]he State has failed to delimit, demarcate and title or otherwise establish the legal mechanisms necessary to clarify and protect the territory on which their right exists.  Accordingly, the Commission finds that the State of Belize violated the right to property enshrined in Article XXIII of the American Declaration to the detriment of the Maya people.[217] (Emphasis added)

277.          In keeping with the judgment of the Inter-American Court in Awas Tingni Case, the IACHR concluded here that the State of Belize failed to comply in full with its obligations by not having established the necessary legal mechanisms to ensure effective recognition and protection for the right to communal property of the indigenous community, in patent disregard of the collective aspect of the community’s rights over their lands.

278.          The IASHR took another important step toward recognition of the need to safeguard the collective dimension of rights in the Yakye Axa Case, which is addressed in the third section of this report.  In said case, the IACHR argued before the Inter-American Court that the State of Paraguay was responsible for violation of the rights to a fair trial and effective judicial protection recognized in Articles 8 and 25 of the American Convention, by failing to provide the indigenous community and its members with an effective and efficient remedy for resolving the Yakye Axa Community’s claim to its ancestral territory. 

279.          The IACHR held that “Paraguayan law does not provide an effective judicial remedy for protecting the legitimate territorial claims of the indigenous peoples of Paraguay.  If efforts made before the executive branch (land claim) or the legislative branch (expropriation) are not effective, the persons affected, in this case the Yakye Axa Community and its members have no judicial recourse by which to uphold their rights, and the ineffectiveness of these procedures has essentially entailed the failure of the State to guarantee the property right of the Yakye Axa Community to its ancestral territory.”^[218] For its part, the Court took up this claim in its judgment and established as a measure of just satisfaction and guarantee of non repetition the obligation for the State to adopt measures to create an effective land claim mechanism for indigenous communities in Paraguay.^[219]

280.          The Case of 12 Saramaka Clans v. the Republic of Suriname also deserves mention here.  In keeping with the foregoing precedents, in its recent application to the Inter-American Court in this case, the IACHR requested that the Court order the State to “remove the legal provisions that impede protection of the right to property of the Saramaka people and adopt, in its domestic legislation, and through effective and fully informed consultations with the Saramaka people, legislative, administrative, and other measures needed to protect, through special mechanisms, the territory in which the Saramaka people exercises its right to communal property, in accordance with its customary land use practices, without prejudice to other tribal and indigenous communities; […] take the necessary steps to approve, in accordance with Suriname’s constitutional procedures and the provisions of the American Convention, such legislative and other measures as may be needed to provide judicial protection and give effect to the collective and individual rights of the Saramaka people in relation to the territory it has traditional occupied and used.”^[220]

281.          As to what is particularly relevant in this instance, in its application the IACHR held that:

In accordance with Article 25 of the American Convention, the State has the duty to adopt positive measures to guarantee the judicial protection of the individual and collective rights of indigenous communities.  With respect to the right to collective property, the State should provide in its judicial regime, suitable and effective judicial remedies, which should provide some special guarantee/compensation depending on/in accordance with the social dimension of the violated right.  These remedies should offer an adequate procedural framework to deal with the collective dimension of the conflict, conferring on the affected group the possibility of claiming, through its representatives or authorized persons, the guaranteed right to participate in the process and to obtain compensation.  […] Based on the foregoing considerations, the Commission requests the Court to declare, that there are no effective domestic remedies available to the Saramaka people for the protection of their rights under Article 21 of the American Convention and, consequently, the State of Suriname violated the right to judicial protection established in Article 25 of this instrument.  […] In the instant application, the question of making amends acquires a special dimension on account of the collective nature of the rights infringed by the State to the detriment of the Saramaka people.  […] The Commission submits that the violation to the Saramaka people’s rights will continue until there is an adequate legal framework in place to ensure their protection.  Therefore, given developments in property law, as the organs of the inter-American human rights system have recognized, the State must eliminate the legal and regulatory impediments to the protection of the Saramaka people’s property rights or adopt the necessary legal provisions to ensure protection.  […] As a result of the abovementioned, the Inter-American Commission requests that the Court order the State to […] take the necessary steps to approve, in accordance with Suriname’s constitutional procedures and the provisions of the American Convention, such legislative and other measures as may be needed to provide judicial protection and give effect to the collective and individual rights of the Saramaka people in relation to the territory it has traditional occupied and used.”[221]

282.          The position that the IACHR has adopted in the case is an indication of how the IASHR has evolved in terms of recognition of the collective dimension of certain rights and the need to design and implement legal mechanisms to ensure that dimension in full.  Thus, there is a discernible widening of the traditional scope of the guarantee provided in Article 25 of the American Convention, in order also to accommodate effective judicial protection for collective rights in its framework.

3.        The Right to Effective Judicial Protection against Individual Violations in the Area of Social Rights

283.          In recent years, the case law of the IASHR has tended to confirm the enforceability of the right to effective judicial protection in the area of social rights in their individual dimension.

284.          Advisory Opinion OC-18/03, Juridical Condition and Rights of the Undocumented Migrants,^[222] is a good example of that tendency.  As mentioned in the second section of this report, in May 2002, Mexico submitted to the Inter-American Court a request for an advisory opinion, inter alia, on the deprivation of the enjoyment and exercise of certain labor rights of migrant workers, and its compatibility with the obligation of the American States to ensure the principles of legal equality, non-discrimination and the equal and effective protection of the law embodied in international instruments for the protection of human rights.

285.          In its advisory opinion the Court set important standards on the assurance of core social rights, such as the rights of workers.  Specifically, the Court held that:

States must ensure strict compliance with the labor legislation that provides the best protection for workers, irrespective of their nationality, social, ethnic or racial origin, and their migratory status; therefore they have the obligation to take any necessary administrative, legislative or judicial measures to correct de jure discriminatory situations and to eradicate discriminatory practices against migrant workers by a specific employer or group of employers at the local, regional, national or international level.  […]On many occasions, undocumented migrant workers are not recognized the said labor rights.  For example, many employers engage them to provide a specific service for less than the regular remuneration, dismiss them because they join unions, and threaten to deport them.  Likewise, at times, undocumented migrant workers cannot even resort to the courts of justice to claim their rights owing to their irregular situation.[223](Emphasis added)

286.          Thus, the Court finds that an undocumented migrant worker should always have the right to be represented before a competent body so that he is recognized all the labor rights he has acquired as a worker.  In this way, the Court considers that undocumented migrant workers, who are in a situation of vulnerability and discrimination with regard to national workers, possess the same labor rights as those that correspond to other workers of the State of employment, and the latter must take all necessary measures to ensure that such rights are recognized and guaranteed in practice.  Workers, "as possessors of labor rights, must have the appropriate means of exercising them."^[224]

287.          It is appropriate to cite here the reasoned concurring opinion of Judge Sergio García Ramírez  in the framework of this Advisory Opinion:

OC-18/2003 focuses on rights arising from employment and thus concerning workers.  Such rights belong to the category of “economic, social and cultural rights.  […] [W]hatever their status, bearing in mind their subject matter and also the moment in which they were included, first in constitutional and then in international texts, the truth is they have the same status as the so-called “civil and political” rights.  Mutually dependent or conditioned, they are all part of the contemporary statute of the individual; they form a single extensive group, part of the same universe, which would disintegrate if any of them were excluded.  […]Among these rights, the only difference relates to their subject matter, the identity of the property they protect, and the area in which they emerge and prosper.  They have the same rank and demand equal respect.  They should not be confused with each other; however, it is not possible to ignore their interrelationship, owing to circumstances.  For example, let us say that, although the right to work cannot be confused with the right to life, work is a condition of a decent life, and even of life itself: it is a subsistence factor.  If access to work is denied, or if a worker is prevented from receiving its benefits, or if the jurisdictional and administrative channels for claiming his rights are obstructed, his life could be endangered and, in any case, he would suffer an impairment of the quality of his life, which is a basic element of both economic, social and cultural rights, and civil and political rights.[225] (Emphasis added)

288.          The Court thus the recognized --both in its majority opinion and in the opinion of Judge García Ramírez-- that states should provide migrant workers with effective judicial remedies to enable them to realize their labor rights. These rights require the design of legal mechanisms to claim them, ensure that they are effectively observed, and safeguard them in practice.

289.          Another interesting precedent in this respect is the Yean and Bosico Case.  The petition in this case complained, inter alia, of the absence of a judicial review mechanism or procedure to challenge the decision of the Dominican Registry Office to refuse late registration of the girls’ births.  The IACHR mentioned in its arguments to the Court that the situation constituted a violation of Article 25 of the American Convention.^[226] Specifically, the Commission held,

The State has not established a mechanism or procedure for appeal before a competent judge or court against a decision not to register an individual.  Despite several reasonable attempts by the mothers of the children Dilcia and Violeta, the negative decision of the Civil Status Registrar was never reviewed by a competent and independent court.  […] There are two procedures for reviewing the decisions of a civil status registrar: (1) the review established in Act No. 659, and (2) review by the administrative authority responsible for recording the registrations, in this case the Central Electoral Board. The Central Electoral Board is not regulated by formal procedures and has not published regulations or issued procedures that applicants may use to request a review of the adverse decisions of the civil status registrars.  Consequently, the State does not offer an effective remedy that would allow the children Dilcia and Violeta to contest the Civil Status Registrar’s refusal.  […] The resolution of remedies of amparo and unconstitutionality can take up to two years; accordingly, in the Dominican Republic, there is no simple recourse, and this constitutes a violation of Article 25 of the Convention.(Emphasis added)

290.          Another important case in this area is that of Damião Ximenes Lopes.  In said case, both the IACHR and the Inter-American Court drew attention to the need to ensure effective recourse to judicial inspection and control of the situation of persons interned in health care facilities.  In its application to the Court the IACHR emphasized that,

The importance of this case has to do, first, with the need to do justice by Mr. Damião Ximenes Lopes and to provide adequate reparations to his next of kin.  However, it is also important because it offers an opportunity to the inter-American system for protection of human rights to develop its case law regarding the rights and special situation of persons with mental disability, the cruel, inhumane or degrading treatment to which they are vulnerable, the obligations of the State vis-à-vis the health care centers that act in their name and representation and the judicial guarantees in respect of the patients interned therein, as well as the need to conduct effective investigations into cases of this type.  […]  The Commission notes in the instant case that Mr. Damião Ximenes Lopes, a person with mental disability, not only had fewer opportunities to defend himself from the humiliating treatment or violations to which he may have been subjected, but also fewer possibilities to invoke the remedies in place or to present and pursue a complaint that might lead to an investigation of the facts.  He was in an especially vulnerable situation.  […] Guarantees of non repetition […] As a fundamental component of non-repetition measures, the Commission believes that the Court should order the Brazilian State to adopt measures to ensure that it effectively performs its legal obligation to supervise the conditions of internment of persons with mental disability who are confined in hospitals, including adequate judicial inspection and control systems.[227] (Emphasis added)

291.          The IACHR, thus, drew attention to the particular vulnerability in which persons interned in health facilities find themselves and considers it necessary to put in place effective remedies to permit judicial control of such facilities.  In its ruling, the Court concurred with the Commission’s findings:

[T]he Court considers that the States are responsible for regulating and supervising at all times the rendering of services and the implementation of the national programs regarding the performance of public quality health care services so that they may deter any threat to the right to life and the physical integrity of the individuals undergoing medical treatment.  They must, inter alia, create the proper mechanisms to carry out inspections at psychiatric institutions, submit, investigate, and solve complaints and take the appropriate disciplinary or judicial actions regarding cases of professional misconduct or the violation of the patients´ rights.[228] (Emphasis added)

292.          The Inter-American Court thus established the duty of the State to monitor public health services.  This duty includes the obligation to ensure the existence of legal grievance mechanisms against threats to the physical well-being of persons undergoing treatment at facilities where said services are provided.

293.          Finally, we should mention a case in which the IACHR centered in particular on the individual dimension of the right of indigenous peoples to their ancestral lands.  The case in question is that of Mary and Carrie Dann v. United States.^[229] In this case, the Dann sisters lodged a petition with the IACHR in which they alleged that a claim to their ancestral lands was pursued by a band of the Western Shoshone people with no apparent mandate from the other Western Shoshone bands or members.  The IACHR concluded that there was no evidence on the record that appropriate consultations were held within the Western Shoshone at the time that certain significant determinations were made in the processing of the claim to the community’s ancestral lands.  The IACHR stated the following in its report on merits:

Specifically with regard to the adequacy of the Danns’ participation in the process by which title to the Western Shoshone ancestral lands was purported to be determined, the Commission considers it important to emphasize […] that the collective interests of indigenous peoples in their ancestral lands is not to be asserted to the exclusion of the participation of individual members in the process.  To the contrary, the Commission has found that any determination of the extent to which indigenous peoples may maintain interests in the lands to which they have traditionally held title and have occupied and used must be based upon a process of fully informed and mutual consent on the part of the indigenous community as a whole.  And as the Commission concluded on the circumstances of this case, the process by which the property interests of the Western Shoshone were determined proved defective in this respect.  That only proof of fraud or collusion could impugn the Temoak Band’s presumed representation of the entire Western Shoshone people, and that Western Shoshone General Council meetings occurred on only three occasions during the 18 year period between 1947 and 1965, fails to discharge the State’s obligation to demonstrate that the outcome of the ICC process resulted from the fully informed and mutual consent of the Western Shoshone people as a whole.”[230] (Emphasis added)

294.          The IACHR noted in its report that the State should afford the Dann sisters “resort to the courts for the protection of their property rights, in conditions of equality and in a manner that considers both the collective and individual nature of the property rights that the Danns may claim in the Western Shoshone ancestral lands.”^[231]

295.          The precedents summarized here, concerning provisional, as well as collective and individual, protection of rights, indicate that the IASHR has recognized the need to develop the scope of the right to effective judicial protection beyond the classical or traditional formulae for that right. In this way it is possible to attain a stronger frame of protection for the effective observance no longer only of so-called civil and political rights alone, but also of economic, social and cultural rights.

d.        The Right to an Effective Judicial Remedy and Development of Adequate Judgment Enforcement Mechanisms

296.          As mentioned in reference to the scope of Article 25, the Convention requires the State to design and embody in legislation an effective recourse, and also to ensure the due application of the said recourse by its judicial authorities.^[232] However, that obligation is not met simply through the enactment of an effective remedy that leads to a proceeding with due guarantees, but includes the duty to design and implement mechanisms that ensure effective enforcement of the judgment handed down by the judiciary in each State.

297.          If a judgment is rendered inoperative due to the absence of adequately designed judicial procedures, then that constitutes a classic case of lack of an adequate and effective judicial remedy for the protection of a right.  Thus, a remedy may prove ineffective to protect a social right if a suitable judgment enforcement mechanism is not provided to overcome the kind of problems that usually occur at this procedural stage in judgments that impose an obligation on the State to take certain actions.  In addressing situations of this type, both the IACHR and the Inter-American Court  have recognized the importance of developing this aspect of the effective judicial remedy.

298.          In the Case of César Cabrejos Bernuy the petitioners alleged that the Peruvian State had violated the right to effective judicial protection enshrined in Article 25 of the American Convention by failing to carry out rulings of the Supreme Court of Justice and the Second Civil Chamber of the Supreme Court Justice of Lima. On two occasions said rulings ordered Mr. César Cabrejos Bernuy’s reinstatement to the position of Colonel of the National Police of Peru, and the authorities twice reinstated the petitioner in his position only to then immediately force him into retirement, reproducing in each case the respective administrative. 

299.          Having analyzed the merits of the case, the IACHR concluded that Peru violated Articles 25 and 1(1) of the Convention in respect of Mr. Cabrejos Bernuy,^[233] and in no uncertain terms set out the scope of the right to effective judicial protection.  In particular, the IACHR held,

The corollary of the jurisdictional function is that judicial decisions must be carried out, in either a voluntary or coercive manner, with the assistance of the forces of public order if necessary […] Failure to carry out judicial rulings not only affects juridical security but also threatens the essential principles of the rule of law.  Ensuring the execution of judicial judgments thus constitutes a fundamental aspect that is the very essence of the rule of law […] The effectiveness of the remedy, as a right, is precisely what is enshrined in the final clause of Article 25 of the Convention, which establishes the obligation of the State to guarantee the enforcement of decisions when such remedies are granted.  This obligation is the culmination of the fundamental right to judicial protection.[234]

300.          In this case, the IACHR also drew attention to the singular characteristics of a judgment enforcement proceeding in which it is the State that is required to carry out the judgment.  Thus, it noted that the obligation of the State to guarantee the enforcement of judicial rulings takes on special importance when it is the State itself that must carry out the ruling, whether this is to be done through the executive, legislative or judicial branch, at the provincial or municipal level, through the central administration or the decentralized structure, through public enterprises or institutes, or any similar body, since such bodies are part of the State and generally enjoy procedural privileges, such as freedom from embargo for their assets.  According to the IACHR, these bodies may be inclined to use their power and their privileges in an effort to ignore judicial rulings that go against them.  In this connection, according to the Commission, "when an organ of the State does not wish to carry out a judicial ruling that has gone against it, it may try to ignore the ruling by simply failing to observe it, or it may opt for more or less elaborate methods that will lead to the same objective of rendering the ruling ineffective, while trying to maintain a certain appearance of formal validity in its proceedings."^[235] Thus, the IACHR concluded as follows:

The Commission considers the facts of the present case to constitute a clear violation by the Peruvian State, to the prejudice of Mr. César Cabrejos Bernuy, of the right to judicial protection enshrined in Article 25(c) of the American Convention, whereby Peru undertook to “ensure that the competent authority shall enforce such remedies when granted”.  In fact, although Mr. César Cabrejos Bernuy had access to a remedy that resulted in a ruling by the Supreme Court of Justice on June 5, 1992, ordering his reinstatement as a colonel in the National Police of Peru, the State failed to guarantee the enforcement of the decision.  […]Although subsequent to the ruling of the Supreme Court Justice the National Police of Peru issued two supreme resolutions reinstating Mr. César Cabrejos Bernuy, that reinstatement never materialized in practice, because he never returned to his position.  The continued reproduction of resolutions of removal issued by the administration has constituted continuous evasion of the judicial ruling.  […] This attitude on the part of the National Police of Peru constitutes an affront to the judicial branch and makes it absolutely unnecessary to insist that the victim continue with judicial proceedings that, as already demonstrated, have failed to remedy his situation.[236](Emphasis added)

301.          In turn, in the framework of its admissibility report in the aforementioned Case of Amilcar Menéndez, Juan Manuel Caride et al.,^[237] the IACHR again made clear its position as regards the scope of the guarantee recognized in Article 25 of the Convention.  On that occasion, the IACHR noted that,

[I]n regard to cases in which the petitioner has made an administrative or judicial appeal based on the way the judgment was enforced and on which judgment has been pronounced, […] the rule on exhaustion of domestic remedies as provided for in Article 46(1)(a) of the Convention shall be applied.  The IACHR esteems that in these cases the principle […] that “Failure to enforce a final judgment is an on-going violation by States that persists as an infraction of Article 25 of the Convention,” is applicable. [238](Emphasis added)

302.          Another notable precedent in the area of judgment enforcement is the IACHR’s report on merits in the Case of Milton García Fajardo et al.^[239]  In this case, the petitioners, customs service workers, went on strike after trying unsuccessfully to negotiate a number of petitions with the Ministry of Labor.  Said petitions were for, inter alia, nominal reclassification of the specific and common positions in the General Directorate of Customs, job stability, 20% indexing of wages pegged to devaluation, and others.  The Ministry of Labor found that the workers’ strike was illegal on the ground that the Labor Code did not extend the right to strike to public or social service workers.  In response, the customs service workers filed a petition for amparo with the Court of Appeals against the Ministry of Labor’s declaration of illegal strike, seeking a ruling from the Supreme Court of Justice declaring the supremacy of the Constitution over the labor laws.  The Court of Appeals issued an interlocutory decision ordering the custom service to suspend its dismissal of employees.  Despite this, the authorities still dismissed 142 employees, most of whom were local labor leaders.  For its part, the Supreme Court of Justice issued a ruling on the petition for amparo one year after it was filed, confirming the Ministry of Labor’s resolution with respect to the illegality of the strike.

303.          The IACHR concluded in this case that the State violated, to the detriment of Milton García Fajardo and the 141 workers named in the complaint, the right to a fair trial, the right to judicial protection, and the economic, social, and cultural rights protected by Articles 8, 25, and 26 of the same international instrument, in connection with the general obligation to respect and ensure those rights set forth in Article 1(1) thereof. 

304.          This case is different from the other aforementioned cases on enforcement of judgments and effective judicial recourse.  The IACHR determined in its report on merits that the right to effective judicial protection had been violated by the failure to implement court-ordered provisional measures that required the workers to reinstated.  In particular, the Commission held that,

The State violated Article 25(2)(c) of the American Convention by ignoring the precautionary measures ordered by the Appeals Court for Civil and Labor Matters of the Third Region, which required the suspension of all dismissals while the petition for amparo was being heard.  […] It has been demonstrated that the decisions issued by the Court of Appeal ordering precautionary measures as a remedy to prevent future violations of the customs workers’ rights proved ineffective and illusory.  In that connection, the Inter-American Court has found that for such a remedy to exist, “… it is not sufficient that it be provided for by the Constitution or by law or that it be formally recognized, but rather it must be truly effective in establishing whether there has been a violation of human rights and in providing redress.  […]  In the instant case, the remedies did indeed prove illusory and their uselessness was demonstrated in practice when the State refused to comply with the judicial decisions ordering precautionary measures.  Despite the existence of those decisions, which sought to avert further violations, the customs workers were dismissed.[240]

305.          In keeping with the foregoing, in its analysis of the admissibility in the Case of Jesús Manuel Naranjo Cárdenas et al.  (Pensioners of the Venezuelan Aviation Company – Viasa),^[241] the IACHR expressly found that there had been a violation of the economic, social and cultural rights recognized in Article 26 of the American Convention.  The petition alleged that Venezuela violated to the detriment of 17 retired former workers of the Venezuelan International Aviation Corporation (VIASA) the rights to social security, private property, and judicial protection, all recognized in the American Convention and the American Declaration of the Rights and Duties of Man. 

306.          The petitioners argued that the state-owned company VIASA was partially privatized in 1992 and the State agreed with the buyers that all the workers would lose their status as government employees, and that they would therefore also lose the benefits of the retirement plan established for them.  This clause was agreed despite the fact that under domestic law, labor rights are considered irrevocable.  When the company was privatized, the alleged victims continued to be dependent on VIASA.  That company paid its pension obligation up to 1997, when it unilaterally stopped payment of these benefits.  Faced with this situation, the retired workers filed a petition for amparo, in which they alleged violation of their right to work, irrevocable labor rights, and the right to social security.  The judicial remedy was accepted at first and second instance.  However, at the time the petition was lodged, after more than five years had gone by since the amparo ruling was pronounced, the court’s decisions had not been complied with.  Therefore, the petitioners alleged that the noncompliance with the judicial orders entailed the continued violation of the labor rights of the retired workers.

307.          What sets this case apart is that in addition to finding that the facts described by the petitioners could constitute, prima facie, a violation of Articles 21 and 25 of the American Convention, the IACHR noted in its report that, “the nonperformance of the judicial judgment dictated in the internal order guaranteeing the right to social security, alleged by the presumed victims as entitlement, might characterize a violation of the Article 26 of the American Convention.”^[242]

308.          The Case of the "Five Pensioners" also concerned the right to social security.^[243] As mentioned in the second section, the matter at issue was the reduction in the amount of the pension benefits of five pensioners who had served in the public administration of Peru, as well as a failure to abide by court decisions that ordered the payment of those benefits in accordance with the original rules for their calculation.  Accordingly, this case was a fresh opportunity for the IACHR to express its position on the connection between failure to abide by court decisions and the scope of the right to effective judicial protection.^[244] In its application to the Inter-American Court, the IACHR held that:

The Peruvian State violated […] the right to effective judicial protection set forth in Article 25 of the American Convention, on failing to abide by what was ordered by final and firm judgments handed down by the Peruvian courts ordering that the victims be paid a retirement pension progressively equalized with the remuneration of the Superintendency of Banking and Insurance employee who holds the same post as or performs duties analogous to those held or performed by them at the time of their retirement.  […] Article 25 of the Convention alludes directly to the criterion for effectiveness of the judicial remedy, which is not exhausted with the judgment on the merits, but with the enforcement of that decision.  […] [I]n in this case […] state organs attributed to themselves, de facto, the power to decide that they were no longer under a duty to enforce the decisions of the highest court in the country, and assumed on their own that a 1992 Decree-Law authorized their failure to enforce 1994 judgments.  In so doing, those state organs not only breached the rule of law generally, but also, in particular, the right to effective judicial protection for the victims, elderly persons whose dignified and decorous existence, from the material standpoint, depended precisely on the enforcement of the judgments which they had obtained from the Supreme Court of Justice of their country, upholding their acquired rights.[245]

309.          In this case, the IACHR forged an important standard regarding the obligations of the state with respect to the enforcement of judgments and the lengths to which victims should have to go to bring about their compliance.  Thus, the IACHR considered that,

[T]he right to effective judicial protection set forth in Article 25 of the American Convention, and specifically, the obligation referred to at Article 25(2)(c), with respect to the states’ obligation “to ensure that the competent authorities shall enforce such remedies when granted,” implies that the states should enforce such decisions in good faith and immediately, without allowing for a situation in which the persons affected have to bring additional actions to secure enforcement, for criminal, administrative, or other liability, or any other similar actions that clearly represent delays in the immediate enforcement of a judgment upholding fundamental rights.[246] (Emphasis added)

310.          The circumstances of this case, therefore, led the IACHR to request that the Court order the Peruvian State to undertake a thorough, impartial, and effective investigation into the facts, for the purpose of determining responsibilities for the failure to comply with the above-mentioned judgments handed down by the Supreme Court of Justice of Peru and by the Constitutional Court. The IACHR also requested that, by means of criminal, administrative, or other appropriate proceedings, the persons responsible be subjected to the pertinent sanctions commensurate with the gravity of the violations mentioned.^[247]

311.          For its part, the Case of the Community of San Mateo de Huanchor and its Members is also worthy of mention in this context.^[248] The petition alleged that the State was responsible for violation of the rights to life, humane treatment, personal liberty, a fair trial, protection of honor and dignity, freedom of association, protection of the family, rights of the child, property, freedom of movement and residence, to participate in government, equal protection before the law, judicial protection, and progressive development of economic, social, and cultural rights of the members of the Community of San Mateo de Huanchor, owing to the effects sustained by the members of the community as a result of the environmental pollution produced by a  toxic tailings dump next to the community, which has not been removed despite an administrative order to that effect.

312.          In order to bring an end to the environmental pollution that was harming the community, its members instituted an administrative procedure to have the toxic tailings dump removed and a halt put to the activities of the mining company that owns the dump.  After the proceeding had dragged on for several years, the Ministry of Energy and Mines finally ordered the permanent closure of the toxic waste dump.  However, this order was never put into effect.  At the same time, criminal  proceedings were instituted against the manager of the mining company on charges of crimes against the environment and natural resources; those proceedings were still pending at the filing the petition.

313.          In this framework, the IACHR found in its admissibility report that there was an unwarranted delay in complying with the administrative resolutions that were issued to remove the tailings as well as the unwarranted delay in processing the criminal complaint. The IACHR, therefore, concluded that the requirements set forth in the American Convention regarding exhaustion of domestic remedies were not applicable in said case and held that the exception provided for in Article 46(2)(c) of that instrument applied.  The Inter-American Commission reached this conclusion based on the following analysis:

Regarding the adequate remedy, the Commission observes that the petitioners filed existing administrative and judiciary remedies which led to criminal proceedings; nevertheless, these remedies have not been effective as they have not provided the juridical protection that the petitioners seek under domestic law for the violation of the fundamental rights of the Community of San Mateo de Huanchor as a result of the pollution stemming from a mining activity.  The administrative decisions that were taken were not observed, more than three years have elapsed, and the toxic waste sludge of the Mayoc field continues to cause damage to the health of the population of San Mateo de Huanchor, whose effects are becoming more acute over time.  In view of the repeated failure to comply with the administrative order, only administrative sanctions of pecuniary nature have been imposed, which has not made it possible to remedy the events on which the petition is based.  As for the summary criminal proceedings aimed at punishing the crimes committed against the environment, more than three years have elapsed since they were filed, and as yet no definitive verdict has been pronounced […] The Commission considers that the remedies that were filed with the administrative and judicial authorities for the purpose of legally safeguarding the rights that were violated to the detriment of the inhabitants of the San Mateo de Huanchor have turned out to be ineffective.  […] The Court has pointed out that the State’s responsibility does not end when competent authorities issue a decision or judgment, because the State is also bound to guarantee the means whereby these judgments can be definitively implemented.  […] The Commission considers that the events that were denounced with regard to the effects of the environmental pollution of the Mayoc sludge, which has created a public health crisis in the population of San Mateo de Huanchor, if proven, could be characterized as a violation of the right to personal security, right to property, rights of the child, right to fair trial and judicial protection and the progressive development of economic, social, and cultural rights enshrined in Articles 4, 5, 8, 17, 19, 21, 25, and 26 of the American Convention, related to Articles 1(1) and 2 of the same instrument.[249] (Emphasis added)

314.          On this occasion, the IACHR set out its position on the failure to enforce administrative decisions to the detriment of the enjoyment and exercise of fundamental human rights, since it believed that this situation constituted a violation of the guarantee provided in Article 25 of the American Convention.  At the same time, it is noteworthy that the Commission made express reference to the ineffectiveness of the methods used by the State authorities to enforce compliance with the administrative orders --a fine-- and, in that connection, to the responsibility of the State for ensuring effective mechanisms for enforcing final judgments.

315.          Finally, it is necessary to mention here the Case of Acevedo Jaramillo et al.  In December 1992 Decree-Law 26093 was promulgated, instructing ministers and public officials in charge of ministries and decentralized state agencies to implement half-yearly staff assessments, by which any staff who did not pass the assessment could be dismissed on grounds of redundancy.  In light of this situation, on December 29, 1992 the Metropolitan Municipality of Lima and the Lima Municipality Workers Union (SITRAMUN) entered into a collective labor agreement, whereby the Municipality agreed to respect the job stability and the administrative career of its members; that undertaking was reiterated in a memorandum signed by the same parties in October 1995. 

316.          However, in December 1995, the 1996 Public Sector Budget Act (Law 26553) was enacted, which included local governments within the scope of Law No.  26093; in other words, municipal governments were authorized to start assessment and classification of their employees and workers.  The Municipality of Lima made use of the powers afforded by this law and proceeded to lay off a large number of workers.^[250] In response, the workers attempted numerous judicial remedies to secure their reinstatement or payment of an appropriate indemnity.  The vast majority of these decisions were not complied with. 

317.          At the same time, as a result of the measures adopted by the Municipal Government, SITRAMUN called a general strike of its members. The stoppage was declared illegal by resolution R.A. No. 575 of April 1, 1996, which warned the workers not to participate on pain of administrative penalties.  In the wake of the strike the Municipality of Lima proceeded to institute disciplinary administrative proceedings against the workers who took part in the stoppage.  Accordingly, by means of various resolutions, 418 workers were dismissed.  Following said decision, the workers again sought judicial remedies and obtained judgments that ordered the Municipality of Lima to reinstate them.  These decisions were also not properly complied with. 

318.          At the same time, the Municipality of Lima, to the detriment of its workers, also failed to carry out court judgments that concerned the payment of wages, bonuses, allowances, incentives, and other benefits; the surrender of the union premises to the workers; and the failure to adjudicate plots of land for a union-administered worker housing program.

319.          In this framework, in its application to the Inter-American Court,^[251] the IACHR requested the Court to find that the Peruvian State had engaged its international responsibility by its failure to perform its obligations under Article 25 of the American Convention, in connection with Article 1(1) of the same instrument, to the detriment of Julio Acevedo Jaramillo et al., workers of the Municipality of Lima and members of SITRAMUN, by reason of its failure to enforce the “judicial rulings issued by judges of the city of Lima, the Superior Court of Justice of Lima in second instance, and the Constitutional Tribunal of Peru, in response to appeals for constitutional protection lodged since 1997, in proceedings in which the rights of the workers of the Municipality of Lima belonging to SITRAMUN were recognized.”^[252] Thus, in keeping with the aforementioned precedents, in its application the IACHR noted that,

The respect and enforcement of judgments of the judicial branch is intimately linked, therefore, with the very concept of the judicial function of the State, which has powers both of coercion and of execution.  A material right confirmed by a judicial ruling would have little force if it were not backed by the real power of the State to make it effective.  The court’s power is limited to its ability to make a decision, based on law, and to the moral force binding society to its duty (legality and legitimacy), and that juridical and moral force will succumb in the face of physical resistance by those who disagree with the decision, which means that the judiciary must rely on the State administration to overcome physical resistance and to impose the decision if it is not voluntarily accepted.  […] If the judicial branch is to serve effectively as an organ for the control, guarantee and protection of human rights, it must not only be constituted formally, but it also has to be independent and impartial, and its rulings must be carried out.  […] A fundamental premise of the administration of justice is the binding nature of the decisions adopted in the judicial determination of citizens’ rights and obligations, which must be carried out, recurring to the security forces if necessary, even though they entail the liability of the State organs.[253] (Emphasis added)

320.          In its judgment, the Inter-American Court accepted the observations of the IACHR in the case and emphatically set out the scope of the rights enshrined in Articles 25(1) and 25(2)(c).  In this respect, the Court developed relevant standards on the question of effective judgment enforcement mechanisms.  Specifically, the Court held that,

States have the responsibility to embody in their legislation and ensure due application of effective remedies and guarantees of due process of law before the competent authorities, which protect all persons subject to their jurisdiction from acts that violate their fundamental rights or which lead to the determination of the latter’s rights and obligations.  However, State responsibility does not end when the competent authorities issue the decision or judgment.  The State must also guarantee the means to execute the said final decisions.  […] [T]he Court has asserted that “the effectiveness of judgments depends on their execution.  The process should lead to the materialization of the protection of the right recognized in the judicial ruling, by the proper application of this ruling.  [...]  The right to judicial protection would be illusory if a Contracting State’s domestic legal system were to allow a final binding decision to remain inoperative to the detriment of one party.[254]  (Emphasis added)

321.          According to the Court, the case shows that to satisfy the right to access to an effective remedy it is not sufficient that final judgments be delivered on the appeal for legal protection proceedings, ordering protection of plaintiffs’ rights, but that “it is also necessary that there are effective mechanisms to execute the decisions or judgments, so that the declared rights are protected effectively.”^[255] Accordingly, the Court held, “The enforcement of judgments should be considered an integral part of the right to access to the remedy, encompassing also full compliance with the respective decision,”^[256] and that “insofar as these judgments decide on guarantee remedies, on account of the special nature of the protected rights, the State must comply with them as soon as practicable, adopting all necessary measures to that end.”^[257] Therefore, “[d]elay in executing a judgment may not be such as to allow that the very essence of the right to an effective recourse be impaired and, consequently, that the right protected by the judgment be adversely affected.  Budget regulations may not be used as an excuse for many years of delay in complying with the judgments.”^[258]

322.          Thus, the Court ruled that the State violated the right to the judicial protection established in Articles 25(1) and 25(2)(c) of the American Convention and failed to comply with the general obligation to respect and guarantee the rights and freedoms established in Article 1(1) of said Convention.  The Court further found that such violations “are particularly serious as they implied that during many years the labor rights guaranteed by said judgments have been impaired.”^[259]

323.          Accordingly, the standards set out in this case are clearly of critical importance as regards the design and implementation of mechanisms to guarantee effective enforcement of judgments that deal with economic, social and cultural rights.

E.         Conclusions

324.          Article 25 of the American Convention establishes the duty of states parties to provide a simple, prompt, and effective recourse for the protection and assurance of rights.  Thus, the organs of the IASHR have set about drawing up standards on the scope of that obligation in the area of economic, social and cultural rights. 

325.          Both the IACHR and the Inter-American Court have identified the need to provide procedural measures by which to ensure immediate protection of social rights even though the merits of the matter in question may require more prolonged analysis.

326.          The Inter-American Commission has identified certain basic characteristics that such measures should meet in order to be considered suitable by the standards of the American Convention.  Thus,  it has found that such remedies should be simple, urgent, informal, accessible, and processed by independent bodies; that they can be processed on an individual basis or as collective precautionary actions to protect a particular group or one that is identifiable; that the such remedies enjoy broad, active legitimacy; that individuals have the opportunity to approach federal or national legal entities when bias is suspected in the conduct of state or local bodies, and, finally, that provision be made for the implementation of protective measures in consultation with the affected parties.

327.          The IACHR has noted that inasmuch as such actions are designed to protect fundamental rights in urgent cases, the evidentiary procedures should not be the same as that required in ordinary proceedings; the idea is that measures be adopted within a brief time period for the immediate protection of the threatened rights.  The reason for this is that the fundamental idea of this precautionary protection is to adopt necessary measures in the short term for the immediate protection of the rights at stake.

328.          In recent times, the Inter-American Court and the IACHR have recognized the need for protection of economic, social and cultural rights, no longer simply in their individual dimension, but also in their collective aspect.  In this framework, the IASHR has begun to outline standards on judicial protection mechanisms designed to ensure access to collective litigation and, in particular, on the scope of the obligation of states to make available grievance procedures of this type.

329.          The IASHR has clearly evolved in this area insofar as it has expressly recognized the collective dimension of certain rights and the need to draw up and put into practice legal mechanisms in order fully to ensure that dimension.  Thus, the greater scope that the organs of the IASHR have recognized to the guarantee provided in Article 25 of the American Convention, in order to include effective judicial protection of collective rights in its framework, is plainly visible.

330.          At the same time, of late the case law of the IASHR has also been firmer and more robust in demanding effective observance of the right to effective judicial protection for economic, social and cultural rights in their individual dimension.  Thus, for example, the Inter-American Court has recognized the need for states to design and implement effective judicial grievance mechanisms to claim protection of basic social rights, such as the rights of workers.

331.          Finally, it should be mentioned here that in recent years, the System has made significant strides in setting standards on the obligation of states to have in place mechanisms to ensure the effective enforcement of judgments handed down by the judiciary in each state.

332.          The Inter-American Commission has taken it upon itself to underscore certain distinctive features of the judgment enforcement process when it is the State that is required to carry out the judgment.  It has noted that the obligation of the State to guarantee the enforcement of judicial rulings takes on special importance when it is the State itself that must carry out the ruling, whether this is to be done through the executive, legislative or judicial branch, at the provincial or municipal level, through the central administration or the decentralized structure, through public enterprises or institutes, or any similar body, since such bodies are part of the State and generally enjoy procedural privileges, such as freedom from attachment of their assets.  According to the IACHR, these bodies may seek to use their power and privileges in an effort to ignore judicial rulings that go against them.  In this connection, according to the Commission, when an organ of the State is unwilling to carry out an unfavorable judgment, it may try to ignore the ruling simply by failing to observe it, or it may opt for more elaborate methods also with the aim of rendering the ruling ineffective, while trying to maintain a certain appearance of formal validity in the way in which it acts.

333.          The IACHR has reiterated on several occasions that there exists within the IASHR a principle that holds that failure to abide by a binding judicial decision constitutes a continuing violation by states parties that persists as a permanent breach of Article 25 of the American Convention.  In this regard, the IACHR has also outlined an incipient standard whereby it has held that non-compliance with judicial rulings that protect social rights, such as the right to social security, may also amount to a violation of Article 26 of the Convention.

334.          At the same time, the IACHR has determined that the right to effective judicial protection requires the implementation of court-ordered provisional measures.  Failure to implement such measures may also entail violation of this right.

335.          The Inter-American Commission has also established an important standard regarding the lengths to which victims should have to go in seeking compliance with judicial rulings in their favor.  Accordingly, the IACHR considered that states should enforce such judicial decisions immediately, without making it necessary for the persons affected to bring additional actions of a criminal, administrative, or any other nature, in order to secure their enforcement.

336.          Likewise, the IACHR has been emphatic with regard to the need to ensure enforcement of administrative decisions.  In that connection, it considers it necessary for the Administration to have effective mechanisms to ensure compliance with orders issued by administrative authorities.

337.          For its part, the Inter-American Court has started to develop important standards on the design and implementation of effective judgment enforcement mechanisms.  In this connection, the Court has found that State responsibility does not end when the system of justice issues a final judgment and it becomes binding.  In the view of the Inter-American Court, from that point forward the State must also guarantee the necessary means to enable effective execution of said judgment.  In the words of the Court, the right to judicial protection would prove illusory if the State’s domestic legal system were to allow a final binding decision to remain inoperative to the detriment of one party.

338.          In keeping with the foregoing, the Court has considered that to speak of “effective judicial remedies” it is not sufficient for final judgments to be delivered that protect the rights at issue, since the enforcement of judgments should be considered an integral part of the right to effective judicial protection.  At the same time, the Court has held that in the case of judgments on guarantee remedies, due to the special nature of the protected rights, states should comply with them as soon as possible, adopting all necessary measures to that end.  On that score, the Court has emphatically stated that budget regulations may not be cited as an excuse for a protracted delay in complying with the judicial decisions that protect human rights.

339.          Thus, the Court has found that delay in executing a judgment may not be such as to cause greater impairment of the rights protected in the decision and, so, undermine the right to effective judicial protection.

 
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