The Practice and Procedure of the Inter-American Court of Human Rights

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1 The Practice and Procedure of the Inter-American Court of Human Rights SECOND EDITION JO M. PASQUALUCCI..,.: :.,,, CAMBRIDGE ::: UNIVERSITY PRESS

2 Foreword by Thomas Buergenthal Preface to the Second Edition Preface Acknowledgments Table of Cases Table of Articles of the American Convention on Human Rights Table of Rules of Procedure of the Inter-American Court of Human Rights Table of Rules of Procedure of the Inter-American Commission on Human Rights Table of Other Legal Instruments and Documents 1 Introduction The Inter-American Human Rights System A Concise History of the Inter-American Court Composition of the Court Overview of Jurisdiction The Court's Interpretation of the American Convention An Illustrative Contentious Case Facts Procedures before the Commission Jurisdiction of the Court Initial Procedures before the Court Provisional Measures Partial Acceptance of International Responsibility page xv xvii XXI XXV XXVll xliii xlv xlvii xlix vii

viii IX Proceedings on the Merits Decision on the Merits Reparations State Compliance Past Procedural Advances Made by the Court and the Commission More Recent Procedural Changes Limitations

3 viii IX Proceedings on the Merits Decision on the Merits Reparations State Compliance Past Procedural Advances Made by the Court and the Commission More Recent Procedural Changes Limitations Influencing the Effectiveness of the Inter-American System Inadequate Funding of the Court and the Commission Lack of Universality Domestic Implementation Failure of the Political Organs to Exert Political Pressure on States Quality Control of Judges Elected to the Court Continuting Proposals to Alter the Inter-American System Conclusion PART I THE ADVISORY JURISDICTION OF THE INTER-AMERICAN COURT 16 Advisory Jurisdiction Subject to the Court's Discretion 16 Discretion to Exercise Advisory Jurisdiction over a Case in Dispute between Two States or between a State and an 17 International Organization Discretion to Exercise Advisory Jurisdiction over a Dispute that is 19 before Another International Body 65 Court Procedures Applicable to an Advisory Opinion Request Requirements of the Request Admissibility Notification of the Submission Written Proceedings 71 Amicus Briefs Preliminary Objections to an Advisory Request Oral Proceedings Content, Delivery, and Publication of Advisory Opinions Domestic and Institutional Implementation of the Court's Advisory Opinions Conclusion 77 So 2 PART II THE CONTENTIOUS JURISDICTION OF THE Advisory Practice and Procedure 37 INTER-AMERICAN COURT OF HUMAN RIGHTS Character and Scope of the Inter-American Court's Advisory Jurisdiction 38 3 Proceedings before the Inter-American Commission 83 Jurisdiction Ratione Personae (Standing) 40 Initial Processing of Petitions 85 Standing of Member States 41 Technical Informational Requirements 87 Standing of OAS Organs 42 Six-Month Rule 88 Jurisdiction Ratione Materiae (Subject Matter Jurisdiction) 46 Petition Not Substantially the Same as One Previously Studied or Jurisdiction to Issue Advisory Opinions Interpreting the Pending before Another International Body 89 American Convention Exhaustion of Domestic Remedies Interpretation of the Substantive Provisions of the American Domestic Remedies Must Be Available, Adequate, Appropriate, Convention 48 and Effective 94 Interpretation of the Procedural Provisions of the American Exceptions to the Exhaustion of Domestic Remedies 97 Convention 52 Decision on Admissibility 98 Jurisdiction to Issue Advisory Opinions Interpreting Other Fact-Finding before the Commission 101 Treaties Hearings before the Commission Are Not Required Other Inter-American Treaties On-Site Investigations in the State Are Not Required Nonregional Treaties Presumption of the Truth of the Allegations in the Petition Jurisdiction to Issue Advisory Opinions on the Compatibility of Friendly Settlement 106 Domestic Laws of a Member State Withdrawal and Archiving of Petitions and Cases Jurisdiction Ratione Temporis Following the Attempted Reporting Requirements 110 Withdrawal of a Request for an Advisory Opinion The Commission's Decision to Submit a Case to the Court Deadline for Submission of a Case to the Court 112

X xi Extension of the Time Period for Submission of a Case Jurisdiction 114 Ratione Loci Not Limited to a State's Physical 1 Interstate Cases 116 Territory 47 Limitation of Jurisdiction Ratione Loci

4 X xi Extension of the Time Period for Submission of a Case Jurisdiction 114 Ratione Loci Not Limited to a State's Physical 1 Interstate Cases 116 Territory 47 Limitation of Jurisdiction Ratione Loci Must Be Expressly 4 Jurisdiction of the Inter-American Court 117 Permitted by Treaty 148 Competence de fa competence 117 Proceedings on the Merits: Fact-Finding and Attribution Scope of the Jurisdiction of the Inter-American Court of State Responsibility 150 Manner in which a State May Accept the Jurisdiction of the Inter-American Court 120 The Scope of the Court's Fact-Finding Powers 151 Jurisdiction Ratione Materiae 122 Submission of Evidence 152 The "Fourth Instance Formula" 125 The Court's Authority to Admit Evidence on Its Own Motion 153 Manifestly Groundless Petitions 128 Expert Witnesses State Reservations Modifying the Ratione Materiae of the Declarants Convention 128 Amicus Curiae 158 Jurisdiction Ratione Personae 130 Oral Proceedings Jurisdiction Ratione Personae: Passive Legitimation 130 Structure of Hearings Jurisdiction Ratione Personae: Active Legitimation 131 Testimonial Evidence 163 Jurisdiction Ratione Personae: Standing to File a Complaint with Objections to Witnesses and Alleged Victims 164 the Commission 131 Documentary Evidence Jurisdiction Ratione Personae to Consider Petitions Filed by Any Demonstrative Evidence Person or Group of Persons 132 Presumptions and Circumstantial Evidence Jurisdiction Ratione Personae to Consider Concrete Cases 1 33 Circumstantial Evidence Jurisdiction Ratione Personae to Consider Cases in which the Presumptions 169 Victim Is an Individual or Shareholder in a Business Burden of Proof 171 Entity 1 35 Standard of Proof 173 Jurisdiction Ratione Personae to Consider State-Filed Complaints 136 Judicial Notice 174 Jurisdiction Ratione Temporis 1 37 Written Closing Arguments 175 Lack of Jurisdiction Ratione Temporis If the Violation Took Place Discontinuance, Acquiescence, and Friendly Settlement 175 before the State Accepted the Jurisdiction of the Court 138 Deliberations and Judgment 178 Jurisdiction Ratione Temporis over Continuing Violations 138 Interpretation of Judgment 179 Forced Disappearance as a Continuing Violation 1 Revision ofjudgment on the Basis of Newly Discovered Facts or 39 The Failure to Investigate, Prosecute, and Punish May Fraudulent Evidence Constitute a Continuing Violation 1 Attribution of State Responsibility 39 Failure to Investigate and Punish Violations by Persons Not Acting Violation of Property Rights May be a Continuing Violation 141 on Behalf of the State 184 Continuing Violations of Other Treaties 141 State Acceptance of Jurisdiction with a Temporal Condition 1~ t88 6 Victim Reparations Jurisdiction Ratione Temporis over States that Denounce the Scope of the Inter-American Court's Authority to Order Reparations 189 Convention 1 43 The Goal of Full Restitution (restitutio in integrum) 190 Jurisdiction Ratione Temporis over States that Attempt to Withdraw Acceptance of the Jurisdiction of the The Injured Party 193 Types of Reparations Ordered by the Inter-American Court 196 Court 1 45 Jurisdiction Ratione Loci Restitution

5 Xll xiii Restoration of Liberty to Persons Who Were Illegally Detained The Return of Illegally Seized Property Protection for Displaced Victims to Return to Their Homes Reinstatement of Employment Expungement of Public Records Return, Demarcation, and Award of Title to the Ancestral Lands of Indigenous Communities Miscellaneous Measures of Restitution to Restore the Status Quo Ante Rehabilitation Satisfaction Public Act to Acknowledge Responsibility State Apology Publication or Dissemination of the Judgment of the Inter-American Court Measures to Commemorate the Victims or the Events Locating and Identifying the Victims Educational Expenses and Training Refrain from Execution Community-Based Reparations Miscellaneous Measures of Satisfaction Guarantees of N onrepetition Capacity Building Legislative Reform Amend, Annul, or Repeal Incompatible Domestic Laws Declaration that Domestic Law Lacks Legal Effect Authority to Rule after the State Accepts International Responsibility No Ruling If the Domestic Law Is No Longer in Effect Court Order to Annul or Execute a Domestic Judgment or Ruling Adopting Other Measures to Guarantee the Nontepetition of Violations Obligation to Investigate, Prosecute, and Punish Investigation Prosecution and Punishment Judgment per sea Form of Reparations Compensation Pecuniary Damages Loss of Earnings and Benefits Beneficiaries of Lost Earnings of Deceased Victims Consequential Damages Nonpecuniary Damages 235 Determination of Amount of Nonpecuniary Damages 238 Beneficiaries of Deceased or Disappeared Victim's Nonpecuniary Damages 239 Costs and Expenses 240 Attorneys Fees 241 Costs and Expenses Based in Equity 243 Terms of Payment 243 Legal Assistance Fund 244 No Reparations for Injury to the Victim's Life Plan 245 Reparations Agreements between States and Victims 246 Method of Compliance 247 Provisional Measures 251 Statutory Authority 253 Statutory Requirements 257 Extreme Gravity 257 Urgency 258 Irreparable Damage 259 Irreparable Damage to Persons 263 Prima Facie Situation 265 Inherent Authority to Order Provisional Measures 267 Precautionary Measures Ordered by the Commission 268 Entities Authorized to Request Provisional Measures 269 Temporal Jurisdiction to Order Provisional Measures 270 Expedited Procedures 272 The President's Adoption of Urgent Measures When the Court Is Not in Session 272 Plenary Court's Consideration of Provisional Measures Requests 273 Discretion to Order Provisional Measures 274 Court Orders 275 Beneficiaries of Provisional Measures 276 Witnesses before Domestic and Inter-American Authorities 276 Human Rights Advocates and Organizations 278 Persons Deprived of Their Freedom 279 Persons on Death Row 280 Persons Dislocated during Internal Armed Conflicts 281 Indigenous Communities 282 Means of Protection 283 Maintenance of Provisional Measures 285 Lifting (Terminating) Provisional Measures 287

6 XIV Binding Nature of Provisional Measures Monitoring Provisional Measures Domestic Implementation of Provisional Measures Conclusion 8 State Compliance with Court-Ordered Reparations 2 99 Conventionality Control 300 Monitoring State Compliance with Judgments 303 State Acceptance of International Responsibility 306 Voluntary Apology and Dissemination of the Truth 307 Anticipatory Remedial State Action 308 Implementation of Inter-American Court Orders to Pay Compensatory Damages 309 Prior Payment Authorized by States 310 Implementation of Measures of Restitution 311 Implementation of Measures of Rehabilitation 314 Implementation of Measures of Satisfaction 315 Implementation of Measures of N onrepetition 320 Capacitation Programs 320 Legislative Reform 321 Annul or Execute Domestic Court Rulings 325 Implementation of Orders to Investigate, Prosecute, and Punish 325 Alternative Forms of Reparations 328 Efforts to Improve Compliance with Court Orders 330 Conclusion 334 Appendix 1: American Convention on Human Rights 335 Appendix 2: Rules of Procedure of the Inter-American Court of Human Rights 361 Bibliography 389 Index 401

RULES OF PROCEDURE OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS

RULES OF PROCEDURE OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS Approved by the Court during its XLIX Ordinary Period of Sessions, held from November 16 to 25, 2000, 1 and partially amended by the Court