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March 8, 2005
TAKING INTO CONSIDERATION THE FOLLOWING:
1. The Inter-American Commission on Human Rights (IACHR) has learned of the public comments made by Commissioner Freddy Gutiérrez Trejo, in Oaxaca, Mexico, in February of 2005, while attending an International Seminar of Human Rights Protection organized by the State Human Rights Commission of Oaxaca. Commissioner Gutiérrez indicated that the government of Oaxaca had no obligation to comply with precautionary measures issued by the IACHR “because they are only observations issued from the Secretariat, not from the Commission; accordingly, the case has to be closely reviewed, but for now this does not imply that the government has to comply with the observations.”
2. In February of 2005, Commissioner Gutiérrez Trejo indicated to the Mexican newspaper “El Imparcial” that “the recommendation issued by the Inter-American Commission on Human Rights in the case of Raul Gatica and the Popular Indigenous Council de Oaxaca (CIPO) has to be investigated more deeply, and it does not have the support of this world-organization [the Inter-American Commission on Human Rights], because this was a decision taken only by the Secretariat.” These statements were made in relation to precautionary measures adopted by the IACHR with the majority vote of its members.
3. In a hearing held during its 122 regular period of sessions, the Inter-American Commission received public expressions of deep concern with respect to the statements of Commissioner Freddy Gutiérrez Trejo, from both the petitioners in the case of these precautionary measures, as well as from other Mexican citizens. These individuals indicated that the statements of this Commissioner had created fear for the beneficiary of the precautionary measures that the local authorities would not comply with them, notwithstanding the willingness to comply that had been expressed by the Federal State. They further indicated that these statements had seriously compromised the life and physical integrity of the beneficiary of these precautionary measures. According to the information reported to the IACHR, the beneficiary of the precautionary measures decided to leave the territory of Oaxaca because of the statements of Commissioner Gutiérrez concerning the measures.
4. The statements of Commissioner Freddy Gutiérrez Trejo may be added to those he has been making since he became a member of the Commission in terms of undermining or discrediting central aspects of its work to promote and protect human rights. For example, he indicated publicly and repeatedly that the “Commission has an almost virtual existence.” Commissioner Gutiérrez has also publicly affirmed that the Executive Secretary of the IACHR has usurped the functions of the IACHR, and is the person who “decides to admit and process all the files in relation to questions on the merits and precautionary measures.” Further, in November of 2004, while in Colombia, he stated that precautionary measures are not binding. That is precisely the country with the greatest number of precautionary measures issued -- measures that protect hundreds of persons – in a context in which the country concerned has never questioned the obligation to comply with such measures, and in which the very Constitutional Court of Colombia has indicated that compliance is obligatory.
5. Commissioner Gutiérrez cannot ignore that all decisions on individual reports, reports on countries, the submission of cases to the Inter-American Court of Human Rights, precautionary measures, and the other functions and attributions of the IACHR are adopted by the vote of the members of the IACHR, either personally, when the Commission is in session, or through conference calls or electronic means, in accordance with Article 17(5) of the Rules of Procedure of the IACHR. Nor can he ignore that the work of the Commission demands from each member between 50 and 65 days of work outside their own countries, in addition to the daily work presented via e-mail or telephone conference.
6. In various opportunities, Commissioner Freddy Gutiérrez Trejo, who is a Venezuelan national, has given public opinions concerning statements of the Inter-American Commission on Human Rights related to the situation of human rights in Venezuela, in express contradiction to the strict practice of the IACHR in this regard, and what is set forth in Article 17 of the IACHR’s Rules of Procedure.
7. Commissioner Freddy Gutiérrez Trejo has not denied before the plenary of the IACHR having made the statements attributed to him. In spite of having been given various opportunities to do so, and the various requests for correction that have been made to him, urging him to comply with his juridical and ethical obligations as a member of the Commission, Commissioner Freddy Gutiérrez Trejo has neither corrected himself nor provided satisfactory explanations for his conduct.
8. Given the foregoing, the Inter-American Commission on Human Rights has the legal and moral obligation to report on this situation to the member States, the organs of the OAS and civil society, and to respond publicly to the notions put forth by Commissioner Freddy Gutiérrez Trejo.
9. The IACHR must reiterate that precautionary measures are an important working mechanism of the Inter-American Commission on Human Rights that has contributed to saving numerous lives throughout the hemisphere. Precautionary measures are issued in compliance with the Commission’s functions to promote and defend human rights, as set forth in Articles 106 of the OAS Charter, 41 of the American Convention on Human Rights, and 18 of the Statute of the IACHR. The juridical basis for the precautionary measures is found in the obligation of States to respect and ensure the human rights of all persons subject to their jurisdiction, and the general practice of compliance with them on the part of the great majority of States is based on the existing understanding of their binding nature.
10. The independence that the American Convention on Human Rights, as well as the Statute and Rules of Procedure of the IACHR provide for the Inter-American Commission on Human Rights, through the independence of its members, is the best guarantee for the member States of the OAS, and for the persons subject to their jurisdiction.
11. The situation created by Commissioner Freddy Gutiérrez is deeply regrettable. The IACHR shall consider these facts and decide on the best courses of action to ensure effective compliance with its mandate to protect and promote human rights.
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS RESOLVES:
1. To reaffirm the international obligation that member States have to comply with precautionary measures issued by the Inter-American Commission on Human Rights.
2. To reiterate the ethical and legal commitment that members of the IACHR have to refrain from participating in the discussion, investigation, deliberation or decision of a matter submitted to the Commission if they are nationals of the State which is the subject of general or specific consideration, in accordance with the strict practice of the Commission in this regard and the terms established in Article 17 of its Rules of Procedure.
3. To make public the present Resolution.
Done and signed at the headquartes of the Inter-American Commission on Human Rights in Washington D.C., on March 8, 2005. (Signed): Clare K. Roberts, President; Susan Villarán, First Vice-President; Paulo Sérgio Pinheiro, Second Vice-President; Commissioners: Evelo Fernández Arévalos, José Zalaquett and Florentín Meléndez.
Washington, February – March 2005
Inter-American Commission on Human Rights Washington D.C.
Members of the Commission:
Concerning resolution 01-05 of March 8, 2005, it is necessary to clarify the following points.
1.- From the moment of my election until the present time, I have conducted myself in accordance with the values, principles and norms set forth in the American Convention on Human Rights, and I have observed in the strictest manner the duties that are imposed on me in the exercise of that position, and the responsibility the States entrusted to me during the General Assembly carried out in Chile during the month of June of 2003. Further, I have exercised the rights vested in me by the Pact of San José with the required probity and efficacy. Nothing more and nothing less.
2.- It is not true that I participated directly or indirectly in debates on matters concerning the Bolivarian Republic of Venezuela. I have never tried to influence the will of any Commission member in order that he or she favor or disfavor any matter that would be debated within the Commission. Nor have I tried to influence Secretary Canton in order that he process, carry forward or conclude any Venezuelan matter. In fact, while a year or more of my term has passed, I have never had a conversation that would have lasted more than 20 minutes with him. Moreover, the Pact of San José in no way impedes me from giving conferences in my country of origin, speaking about varied themes, or pronouncing with respect to the spirit, purpose and basis of a norm or its jurisprudential interpretation. In Venezuela, I have been invited to speak about different human rights topics, and I don’t believe that this constitutes a wrongdoing. On the contrary, this deals with a duty with which one must comply.
3.- It is a distortion of the facts to say that I discredit the organ when I call it virtual. Exactly what I am referring to, as the Commission members well know, is the advisability of pursuing a Permanent Commission that would sit 365 days a year, rather than only 30 as is the current situation. I regret that matters as sensitive as the right to life, liberty, association, and expression of thought, or that concern women or children, are attended to only through electronic communications. The abdication by the Commission of its permanent status has created a situation in which the secretary determines the most important lines of orientation with respect to human rights.
4.- It is false that I have expressed myself concerning precautionary measures in the manner indicated in the resolution. I have said and reiterated time and again that precautionary measures have enormous value, and that they should not continue to be diminished in a rule of sub-legal status, of a regulatory nature, pertaining to the operations of the Commission. I commented in Oaxaca on the importance of elevating precautionary measures to a higher rank that they currently have, namely through an additional protocol to the Pact of San José, given that this represents a necessity felt by the States that have assumed a serious commitment in the area of human rights, as well as by the peoples who live in circumstances of systematic violations of the right to judicial guarantees, due process, and attacks against children or against migrants seeking better conditions of life, and finally all the other rights enshrined in the Pact of San José as innate to the human being. In Oaxaca as well, I asked for support to pursue this international treaty that would enshrine the binding character of precautionary measures in verified situations of gravity and urgency. Accordingly, it is irresponsible in the utmost and absolutely rash to imply a causal relationship between my opinions and the specific facts set forth concerning the case referred to in the resolution.
5.- The resolution and this response that I am offering open the doors in the continent for a deep and fruitful debate on the promotion and protection of human rights in the continent. This debate has to be detached from prejudices and fraudulent manipulations and instances of intemperance that confuse. It is not possible that in a place where it would be presumed that the right to dissent would be defended, that the publication of my dissent would be denied, thus contravening what is set forth in the rules. There is still time to correct this error by publishing, in the official languages, the points that I have expressed in this document. To correct requires courage, and I hope that in this occasion courage flowers.
(signed) Freddy Gutiérrez
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