Annex to Press Release 134/12 on the 146th Regular Session of the IACHR
November 16, 2012
Washington, D.C.—The Inter-American Commission on Human Rights (IACHR) held its 146th regular session from October 29 to November 16, 2012. The IACHR is made up of José de Jesús Orozco Henríquez, Chair; Tracy Robinson, First Vice-Chair; Felipe González, Second Vice-Chair; and Dinah Shelton, Rodrigo Escobar Gil, Rosa María Ortiz, and Rose-Marie Belle Antoine. The Executive Secretary is Emilio Álvarez Icaza L.
During the 146th session, the Commission held hearings and working meetings, and approved reports on individual cases and petitions. The hearings and reports reflect some of the structural human rights problems that persist in the region. These have to do with, among other issues, the respect for the right to life and physical integrity; the guarantees of due process and judicial protection; the exercise of economic, social, and cultural rights; and the situation regarding the rights of children, migrants, human rights defenders, indigenous peoples, people of African descent, women, persons deprived of liberty, and lesbian, gay, trans, bisexual, and intersex persons.
The Inter-American Commission on Human Rights finds it necessary to speak out emphatically about the need for participants in its public hearings to conduct themselves with dignity and with complete respect for everyone present. The Inter-American Commission reserves the right in the future to ask any person, persons, or delegations to leave a hearing if they fail to conduct themselves with a minimum of respect and dignity.
In addition, the IACHR insists on the need for the States to guarantee the integrity of everyone who attended the hearings and working meetings held by the IACHR in the context of these sessions, and to adopt measures so that these individuals can continue to carry out their work of defending human rights under safe conditions. The Commission considers unacceptable any type of action a State might undertake that is motivated by the participation or actions of individuals or organizations that come before inter-American human rights bodies in the exercise of their rights under the Convention.
On another matter, the IACHR continued to receive information regarding the failure by States to adopt effective protection measures, and on obstacles to the implementation of precautionary or provisional measures handed down by the bodies of the inter-American system—particularly the practice by some States of subjecting requests for the adoption of measures to a new risk analysis. In this regard, the Commission reiterates that the States’ role in the process associated with a protective measure ordered by the inter‐American system is to implement the measure and monitor it. However, it is not the States’ function to assess the factors that prompted the request for protective measures, including whether they rise to what the States deem to be the necessary degree of risk.
I. The Work of the IACHR
Strengthening the Commission's Work
During this session, the Commission continued to strengthen its efforts to protect and promote economic, social, and cultural rights. In accordance with its commitment to strengthen its work in this area, and in response to suggestions made by the States and by civil society, the Commission decided during these sessions to create a Unit on Economic, Social, and Cultural Rights, which will be led by Commissioner Rose-Marie Antoine.
The IACHR also continued its collaborative efforts with the OAS Working Group on Economic, Social, and Cultural Rights. The Commission's representative on the Working Group, Commissioner Rose-Marie Antoine, participated in a work session of the OAS Group and formulated comments on the indicators for measuring the rights to work, education, the environment, and cultural rights, with a view to making such rights more achievable, pursuant to the Protocol of San Salvador. During this session, the IACHR designated Commissioner Rosa María Ortiz as alternate representative to the OAS Working Group.
In addition, the Commission underscores the importance of the work being done by the Unit on the Rights of Lesbian, Gay, Trans, Bisexual, and Intersex (LGTBI) Persons. To strengthen the work in this area, the Commission decided to designate Commissioner Tracy Robinson to be in charge of this Unit.
On another matter, on November 15, 2012, the Inter-American Commission signed a memorandum of understanding with Colombia's Supreme Court of Justice, in order to strengthen the relationship of cooperation between the institutions. The document lays out the parties' intention to sign an agreement that reflects that interest, to protect and promote human rights, along with the intention to hold meetings and forums and implement training and educational programs for justice operators and the Colombian public.
Friendly Settlement Process
The Inter-American Commission welcomes the willingness of parties to reach friendly settlement agreements, and hopes that States and petitioners will use this mechanism more and more to resolve pending petitions and cases. The Commission offers its good office to facilitate this process.
Along these lines, the Inter-American Commission welcomes the signing of friendly settlement agreements between the parties in four cases involving Mexico: Case 12.610, Faustino Jiménez Alvarez, signed on September 27, 2012; Case 12.813, Blanca Olivia Contreras Vital et al., signed on October 5, 2012; Case 12.847, Vicenta Sánchez Valdivieso, signed on September 25, 2012; and Case 12.627, María Nicolasa Garcí Reynoso, signed on October 10, 2012. Commissioner Rodrigo Escobar Gil, IACHR Rapporteur for Mexico, signed the agreements as a witness of honor.
In addition, during this session an agreement of understanding was signed for compliance with the friendly settlement agreement signed on March 6, 2000, concerning Petition 12.041 - M.M., Peru. Participants in the meeting included representatives of the Peruvian government and the organizations DEMUS, CLADEM, and CEJIL. The petition alleged that Mrs. M.M. had been the victim of a rape committed by a doctor employed by the Juliaca Regional Hospital, and that staff and authorities of the Health Ministry had ignored her claims and treated her in a cruel, inhuman, and degrading manner. They likewise indicated that the judicial authorities had again violated her rights during the criminal process that she initiated to seek justice. In the agreement of understanding signed on November 3, 2012, the State of Peru pledged to ask the Governing Board of the Peruvian Magistrates Academy to incorporate courses, seminars, and workshops on "Gender and Justice" into its training programs geared toward judges and prosecutors. The IACHR will continue to monitor compliance with this agreement.
II. The Human Rights Situation in the Region
Deportation of Haitian Nationals by the United States
During these sessions, the Inter-American Commission received information regarding the situation of Haitian nationals who are deported back to Haiti from the United States, in a context marked by the continuing humanitarian crisis and other difficulties in the receiving country since the January 2010 earthquake. In this regard, the IACHR recognizes that the United States has been applying a differentiated policy that limits the decision to deport to persons sentenced for crimes, and that such a decision is put to a test that includes an analysis of factors such as medical condition and family ties in the United States. It should also be noted that the United States has cooperation programs in place in Haiti specifically aimed at assisting the deportees upon their arrival to their country.
In spite of the above, the IACHR expresses its concern that the United States, after resuming deportations to Haiti in January 2011, proceeded to deport some of the beneficiaries of Precautionary Measure 5/11. That measure had been granted for a group of persons who were facing deportation and who alleged that they would not have access to medical treatment in Haiti to address their health situation, or that there was a special situation with respect to their young children in the United States. As part of the measures, the IACHR had asked that the United States suspend the deportation process until Haiti is able to guarantee that detention conditions and access to medical care for persons in custody comply with applicable minimum international standards, and the procedures in place to decide upon and review deportations adequately take into account the beneficiaries' right to family life and their family ties in the United States.
The information presented to the Inter-American Commission indicates that the individuals who were deported allegedly do not have access to adequate medical care in Haiti, and the satisfaction of other basic needs is further affected by the weak structure of the Haitian State following the 2010 earthquake. Many of them were apparently deported despite presumed family ties in the United States, where they were the main income providers. As highlighted by Michel Forst, United Nations Independent Expert on Haiti, in his June 2012 report, the minimum measures that must be adopted by States when deporting Haitians, in accordance with their international legal obligations, should include consideration of humanitarian factors and ensure adequate reintegration and support services for persons forcibly returned to Haiti. In the same report, the Independent Expert indicated that “some member States that are forcibly returning individuals to Haiti may not be following these obligations, raising serious concerns about the rights to life, health, dignity, family, due process, and access to justice.”
The Inter-American Commission again calls on the United States to suspend deportations to Haiti of persons of Haitian origin who have are seriously ill or who have family members in the United States, especially when those family members are children and those at risk of deportation were the family's primary breadwinners. This suspension should be maintained until Haiti can guarantee that access to medical treatment meets the minimum applicable standards.
Information Received on the Human Rights Situation in the Region
With regard to the investigation into deaths caused by the police in Brazil, the IACHR received information about the alleged lack of due diligence in these investigations. According to the information presented by both the petitioners and the State, these deaths are commonly categorized and registered as "resistance followed by death" (resistência seguida de morte) or "acts of resistance" (autos de resistência). This practice began during the 1964-1985 military dictatorship, as a way of covering up civilian deaths committed by Brazilian security forces and automatically characterizing them as the result of unlawful resistance to arrest. According to the information presented during this hearing, only four states in Brazil publicly divulge official statistics on deaths caused by police: São Paulo, Rio de Janeiro, Mato Grosso do Sul, and Santa Catarina. In the states of São Paulo and Rio de Janeiro, for instance, official statistics indicate that 11,000 people were killed by police between 2003 and 2009. The State noted that there is no legal basis in domestic law for this classification commonly used by the police, since self- defense must be determined after an impartial and exhaustive investigation and trial for homicide. The State also mentioned public policies and legislative proposals that aim to correct some of the deficiencies in the investigations of violent deaths, such as legislative bill No. 4.471/2012 and the Third National Human Rights Plan. The Inter-American Commission has asserted that “one argument commonly used by the military police in response to the accusations leveled at them concerning numerous deaths they cause, is that fatalities occurred in legitimate self-defense or in strict compliance with their duty.” Additionally, the IACHR has observed that “many...police currently commit abuses in the performance of their duties, evident even when the examination of victims show that …they had not attempted to resist, and in many cases were unarmed.”
With regard to Venezuela, the Commission received information from civil society organizations indicating that there has been an increase in rates of violence and impunity, with special emphasis on infringements of the rights to life and personal integrity. In this regard, the IACHR received troubling statistics on extrajudicial executions, which were reported by the National Commission for Police Reform (CONAREPOL), and on the participation of members of the police in these executions.
In terms of Colombia, the Commission received information from the State on actions carried out by the Ministry of National Defense to enhance security for Colombians. The State provided information on the strengthening of its military and police institutions and its security and defense policies, in order to restore the rule of law. The State also talked about the internal armed conflict and the legal framework it believes is necessary to address issues related to international humanitarian law and to the jurisdictional authority that determines whether a case comes before the regular or military jurisdiction. For their part, civil society representatives criticized the national consolidation plan and indicated that it continues to endanger the lives, safety, and life goals of many people in the conflict areas.
In addition, the Commission received information regarding the draft constitutional reform in Colombia. The draft reform seeks to modify the military jurisdiction, establishing that violations of international humanitarian law will be heard exclusively in the military criminal jurisdiction and that human rights violations will not be excluded from this jurisdiction. According to the information provided to the IACHR, the draft reform establishes that the courts under military criminal jurisdiction are made up of active or retired members of public security forces. The reform also creates a Court of Criminal Guarantees within the military criminal jurisdiction; it will act as judge to oversee guarantees when it comes to investigations and criminal prosecutions carried out against members of public security forces.
On this point, the Commission calls to mind that the Inter-American Court of Human Rights has established that the State has the obligation to provide effective judicial recourse to victims of human rights violations, and the Commission believes that such recourse, in all cases, is through the regular criminal jurisdiction, regardless of whether or not the violations being prosecuted were committed by members of the military. The Commission has spoken out extensively with respect to cases involving alleged human rights violations committed by agents of the State, and it has urged the State to ensure that its entities act in a coordinated manner to guarantee that all cases not directly tied to military service are heard in the regular jurisdiction. Moreover, the Commission emphasizes that, with respect to guarantees of independence of military judges, inter-American standards require than such judges not exercise command duties at the same time as the duties of investigation, accusation, and prosecution; rather, when the military jurisdiction is the appropriate venue, only judges who are retired from their military duties and from the command structure should be assigned to this task.
The State of Peru provided information to the IACHR on the progress made in defending victims in the context of its public defense system. It indicated that with the creation of the Ministry of Justice and Human Rights in December 2011, a Vice-Ministry of Human Rights and Access to Justice was created to coordinate and execute policies on access to justice, and to promote access to justice through the defense of victims. In addition, the State reported that it has expanded the jurisdiction of the former agency through the creation of the Office of Legal Assistance and Victims' Assistance, which provides services for low-income, vulnerable victims of a crime. The State also indicated that in December 2012 the new National Human Rights Plan will be approved; it was designed with the participation of civil society.
With regard to the effect of court decisions in cases involving human rights violations in Peru, the organizations that petitioned for the hearing indicated that actions by Peru's National Criminal Chamber in recent years have sought to absolve those responsible for crimes against humanity committed during the armed conflict, by moving the burden of proof to victims and by accepting only direct evidence, among other changes. Moreover, the petitioners stated that the aforementioned court has presented such cases as isolated, rather than systematic, acts of violence, denying their nature as crimes against humanity, and that it has not established the masterminds of these crimes. The petitioners added that the Supreme Court's Permanent Criminal Chamber has changed its judgments since 2011, and that it now ignores those behind the crimes and has reduced sentences for the convicted, based on unwarranted grounds. For its part, the State reported that a judgment by the Supreme Court was recently nullified based on an exhortation issued by the Inter-American Court of Human Rights in a proceeding to monitor compliance with its judgment in the Case of Barrios Altos. The State also noted that Peru has a Magistrates Academy and a School for Prosecutors to provide training.
During the hearings, the State of Mexico presented information about legal and institutional progress on human rights in that country. These include, among others, the constitutional reform processes carried out in 2011; restrictions to the military jurisdiction; and measures adopted in the areas of trafficking in persons and the protection of journalists and human rights defenders. The State also reiterated its disposition to move forward in resolving cases being heard by the Commission. It emphasized the friendly settlement mechanism and expressed its willingness to pursue this type of agreement before the Commission.
In addition, the IACHR received information during the hearings regarding the challenges Mexico will reportedly continue to face due to the participation of the armed forces in matters of public security. The information presented indicates that serious human rights violations will continue as a result of the adoption of these types of measures for controlling citizen security. The Inter-American Commission on many occasions has expressed its concern over the participation of the armed forces in professional tasks that, by their nature, belong exclusively to the police. It has also stated that, given that the armed forces lack proper training for the control of citizen security, it is the job of a civilian police force, one that is efficient and respectful of human rights, to combat insecurity, crime, and violence within the country.
In terms of the situation of street people in Mexico, the IACHR received information about the infringement of various fundamental rights suffered by children, young people with families, adults, and senior citizens who live on the streets. In particular, it received information about these individuals' high degree of vulnerability due to their precarious living conditions, their lack of access to minimal conditions of well-being and dignity, and the limitations and challenges they face in availing themselves of their rights, given their circumstances. The Commission also received information about situations of violence, exclusion, and discrimination against street people—especially against women, children, and LGTBI persons—and the high levels of impunity that reportedly exist in these cases. In particular, information was presented on children who, because they are living on the streets, are separated from their families and institutionalized. The State presented information on government programs to address these situations, especially in Mexico City, and it extended an invitation to the Rapporteur on the Rights of the Child to conduct a visit to Mexico to study this issue in greater detail. The State also suggested the establishment of a roundtable that would bring together the public authorities and organizations that work on this issue so they can join efforts to address the problem. The IACHR recalls that the bodies of the inter-American human rights system have underscored the importance that the State pay special attention to this particularly vulnerable group and design appropriate public policies to guarantee decent living conditions and the fundamental rights of people who live on the streets.
With regard to El Salvador, the Commission received information about the effects of metal mining projects on Salvadoran water resources, with the resulting effects on the population. On this matter, the IACHR was informed that on July 17, 2012, El Salvador's Ministry of the Economy and Ministry of the Environment and Natural Resources introduced a bill to the Legislative Assembly, the "Special Law to Suspend Administrative Procedures related to Projects for Exploration and Exploitation of Metal Mining." The IACHR was informed that environmental organizations, along with El Salvador's Office of the Human Rights Ombudsman, have expressed their concerns about the bill.
With regard to Panama, the Commission received information on the right to justice, particularly regarding the protection of the right to a healthy environment and the right of access to environmental justice. Specifically, it was informed about the existence of difficulties in domestic law and in the attainment of justice through the authorities, a situation that has reportedly contributed to a deterioration in the protection of the right to a healthy environment and in the situation of environmental activists in Panama.
Rights of Human Rights Defenders
During the sessions, the Commission received information of concern regarding ongoing violence against human rights defenders in some countries. This is manifested in murders, threats, and acts of harassment against their life and integrity, as well as undue restrictions to the exercise of freedom of association. In particular, information was received about actions on the part of officials and groups of private individuals intended to discredit or stigmatize human rights defenders, particularly those who work to defend the environment, women's reproductive rights, and the rights of LGBTI persons. The IACHR also received information on the criminalization of the activities of groups of defenders, based on the rights they are promoting; this not only seriously hampers their work, but places them at grave risk.
The Commission reiterates that exercise of the right to defend human rights implies the possibility of freely and effectively promoting and defending any right whose acceptance is unquestioned, as well as new rights or components of rights whose formulation is still a matter of debate. In this regard, activities to defend and promote human rights should not be discredited or criminalized in any way. To the contrary, States have the obligation to facilitate the necessary means so human rights defenders can freely carry out their work; to protect them when they are subject to threats so as to prevent attempts on their life and integrity; and to seriously and effectively investigate violations committed against them, in order to combat impunity.
With regard to Ecuador, the Commission received information regarding the allegedly improper use of criminal law against defenders who had participated in protest demonstrations related to the defense of the environment and of indigenous ancestral territories. The IACHR takes note of information provided by the State of Ecuador indicating that a reform of the current Criminal Code is underway, which would eliminate the criminal classifications of "terrorism" and "sabotage," which have reportedly been used to bring criminal cases against human rights defenders who participate in demonstrations. The IACHR hopes that this reform will enable the State of Ecuador to ensure that criminal classifications are formulated in accordance with the principle of legality so that criminal law cannot be used to criminalize activities to defend and promote human rights.
With regard to Cuba, the Commission received new information on the allegedly excessive force used by police forces against human rights defenders of African descent who participate in protest demonstrations. The IACHR underscores that public protest is one way to exercise the right of assembly and freedom of expression, and thus expressions of protest against government projects or policies, far from inciting violence, are inherent to any democracy.
With regard to Colombia, the IACHR continued to receive information about the special risks faced by some human rights defenders, particularly community leaders participating in efforts to assert the rights of people in a situation of displacement. The IACHR also received information about the lack of specialized protocols that would make it possible to coordinate and consolidate investigations into acts of aggression and harassment against human rights defenders and their organizations.
In addition, the IACHR received information about alleged acts of harassment and persecution directed against people who promote public policies to benefit street children in Mexico. The information presented indicates that these acts are being perpetrated by criminal groups. The IACHR reiterates the importance that the State adopt special measures so that those working on behalf of this population can defend human rights freely and safely.
In addition, the Commission continued to receive troubling information about complex procedures and discretionary requirements that have taken away the legal status of organizations of human rights defenders in some countries. The Commission was also told that in some countries, such as in Venezuela, restrictions to international funding are still in effect for organizations of human rights defenders.
The Commission continued to receive information regarding some of the obstacles that affect the independence and impartiality of people who handle judicial functions in some Central American countries. Among the challenges faced by some countries are the effective enforcement of regulations related to careers in the judiciary, as well as undue restrictions to equal access to judicial posts. The most common problems related to the appointment of individuals to the judiciary include the fact that the body in charge of selecting judges lacks autonomy with respect to the other branches of government and the lack of regulation of a legal framework that establishes procedures for selecting and evaluating candidates to judicial posts.
Rights of People of African Descent
The Commission received troubling information about the principal obstacles that people of African descent in Cuba reportedly face when it comes to protection of their human rights, in a context of historical discrimination and with particular repercussions on access to economic, social, and cultural rights. In addition, the Commission was informed that those who defend the rights of the Afro-descendant population face threats and harassment because of their efforts, in addition to legal obstacles that keep them from organizing as civil society groups and carrying out their work independently.
Moreover, the IACHR received information on the situation of Afro-Cubans who are incarcerated, as well as the application of certain types of punitive charges such as "pre-criminal dangerousness to society." The IACHR has spoken out before about the problems posed by ambiguity in the classifications of such crimes. According to the information it has received, the existence of this type of legislation seems to particularly affect people of African descent, since its application brings into play negative prejudices and racial stereotypes held against Afro-Cubans. In that context, Afro-descendant persons are reportedly being subject to arbitrary detentions and violations of their rights to liberty and personal integrity.
Rights of Indigenous Peoples
With regard to indigenous peoples living in voluntary isolation in South America, the Commission received information indicating that despite certain progress in terms of laws in some countries, these laws are reportedly not being implemented. According to the information received, some States have protected areas in which no activities of any kind are allowed because of the existence of peoples in isolation, and yet permits and concessions are being granted for the exploration and exploitation of natural resources (mainly wood and hydrocarbons), and activities involving forced contact are even being carried out. The IACHR calls on the States in the region to ensure that human rights of indigenous peoples in voluntary isolation are respected and guaranteed, and to implement appropriate measures to enable them to effectively enjoy their right to ownership of their ancestral lands and the natural resources therein. Moreover, the Commission urges the States to assess the possibility of considering regional protection measures, given the particular circumstances of peoples in voluntary isolation.
In addition, the IACHR received troubling information related to the repression of protest actions and public demonstrations carried out by leaders, authorities, and members of indigenous peoples in defense of their ancestral territories and natural resources. The IACHR is particularly concerned about the use of unclear and broad classifications of crimes to restrict the right to public protest, and about the excessive use of force by public agents to repress legitimate demonstrations and acts of social protest. Recent events in the region, in which indigenous demonstrators have even died, draw attention to the seriousness of the situation and the importance of safeguarding this right in democratic societies.
With regard to the right of consultation of Peru's indigenous peoples, the State asserted that legislative progress had been made with the adoption of the "Law on the Right to Prior Consultation of Indigenous or Native Peoples, recognized in Convention 169 of the International Labour Organization," and its regulations. The State indicated that the current challenge lies in implementing these provisions to ensure that consultation becomes a public policy that guarantees to indigenous peoples that their rights are being respected. The State explained that technical documents are being prepared toward that end; a working group has been created, which includes the participation of indigenous organizations; and institutional reforms have been proposed to strengthen the State's role in the implementation of this right. For their part, the petitioners of the hearing noted that indigenous organizations and civil society have raised a series of questions about the law and its regulations, claiming that these do not meet international standards on this matter, as they restrict the rights of indigenous peoples, and that the consultation process is being distorted in its implementation. They underscored the importance that the State show a genuine intention to engage in dialogue, and the need for a State institutional framework for indigenous peoples.
With regard to the situation of the Achuar people living in the Pastaza River Basin, in the province of Datem del Marañon, in Peru's Loreto region, the Commission received information on risks and threats reportedly being suffered by the Achuar people due, among other things, to the lack of recognition and titling of their ancestral lands and the natural resources therein. Other concerns mentioned include the lack of formal recognition of the Achuar as indigenous peoples; the economic interests of extractive companies, which are keeping the Achuar people from living freely in their ancestral territory; and the continuing health problems of their members as a consequence of the activities of the extractive industry. The State expressed its commitment to the Achuar people and indicated that its intent to protect the rights of indigenous peoples is reflected in the existence of a regulatory and institutional structure that enables them to present their claims.
Rights of Children
With regard to the situation of children in El Salvador who have been affected by gang violence in that country, the IACHR received information indicating that the rates of homicides and forced disappearances of children in El Salvador have declined but remain high. In addition, the Commission was informed about the impact that gang violence and threats of recruitment have on the right to education; on suicides by children influenced by factors such as gang harassment; sexual violence and depression during pregnancy; and violence against children stemming from circumstances of migration. Those who had asked for the hearing laid out their concern over the participation of the armed forces in tasks of public security, and over what they consider to have been a lack of transparency with respect to the government's negotiations with the gangs. The State affirmed that the negotiation process with the gangs has been facilitated by representatives of the church and civil society, and pledged to keep the IACHR up to date on any related developments that take place in the country.
Rights of Women
In these sessions, the IACHR received troubling information about alleged legal and logistical obstacles that women continue to face in exercising their right of access to information on sexual and reproductive health. The Inter-American Commission calls on the States to adopt policies designed to protect this right, so as to ensure that women can make free and informed decisions about their life and their health, and to implement the recommendations contained in its report Access to Information on Reproductive Health from a Human Rights Perspective.
Moreover, the Commission received information pertaining to eight countries in the region where it is necessary to adopt laws to guarantee the right to information and improve implementation of the legal framework in place; to produce comprehensive information on sexual and reproductive health; and to generate statistical information disaggregated by such factors as sex, race, ethnicity, and age, to name a few. In this sense, the Commission underscores States' obligations to guarantee that women have access to information which is timely, complete, accessible, reliable, and proactive on reproductive matters. In fulfilling their obligations, States should be particularly mindful that women who are poor, indigenous, or of African descent and women who are migrants or who live in rural areas tend to face greater obstacles in their access to information on sexual and reproductive health, and are often affected by multiple forms of discrimination.
The Commission received information of concern regarding sexual violence in the countries of the region, and the lack of records of these crimes, since they are still underreported. Specifically with regard to Guatemala, the Commission received information on the high levels of sexual violence. The IACHR is especially concerned about information it received indicating that the practice of "pernada" (droit de seigneur) continues to be used against indigenous girls and young women in rural areas of Guatemala. As the Rapporteur on the Rights of Women noted in a press release issued following a visit to Guatemala in 2004, this practice has its roots in the middle ages and is a serious affront to the integrity and dignity of women. The IACHR reiterates the concern expressed at that time and urges the State of Guatemala to take the necessary measures to bring an end to this practice and to investigate and punish those who engage in it or tolerate it. The Commission also received information about sexual abuse against migrant women and female farm workers in the United States on the part of employers and other workers. The Commission notes that States should act with due diligence to prevent, investigate, punish, and repair these acts and to create conditions in which women can report these crimes. State efforts should include improvements in data collection so as to be able to properly assess the problem at the national level.
In a working meeting, the Commission received information about the risks faced by human rights defenders. In particular, during this 146th session the Commission was told about acts of intimidation, violence, and threats against human rights defenders in Mexico, Colombia, and Bolivia. The Commission again points to the need to legitimize and protect the actions of human rights defenders, and reminds the States of their positive obligation to create the necessary conditions for human rights defenders to be able to carry out their work free of violence and discrimination.
Rights of Persons Deprived of Liberty
With regard to the situation of persons deprived of liberty in Brazil, the IACHR received information of concern about the high levels of overcrowding in the country's prison system, which has a shortfall of 180,000 slots. It also received troubling information about public policies that reportedly place an emphasis on incarceration as the prescription for solving problems; the high rate of incarcerated individuals who are in pretrial detention, which in Brazil is over 40 percent; the practice of body searches, which are degrading and violate human dignity; and the use of police or military personnel as prison guards instead of a civilian corps specialized in that job. In addition, information was received on the failure to create a national mechanism for the prevention of torture, in accordance with the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
With regard to the situation of persons deprived of liberty in Venezuela, the IACHR once again received troubling information about the high numbers of prison deaths and violence in the country, which has among the highest such rates in the region. During the hearing, the Commissioners asked the State for information on several aspects related to the rights of persons deprived of liberty; specifically, it asked what the purpose is of the National Center for Military Prosecutions (CENAPROMIL) and the Bolivarian National Intelligence Service (CENABIN), and what external oversight is being implemented for both of these agencies. The State did not respond to the questions during the hearing. The Inter-American Commission hopes that the authorities will send specific written responses to these questions and to others asked during the hearing.
With regard to the use of pretrial detention in the Americas, the IACHR received information indicating that one of the most serious problems in the region is the abusive, excessive, and arbitrary use of this practice, which is closely linked and gives rise to other serious problems such as prison overpopulation and overcrowding. The information the Commission received indicates that the main causes of this phenomenon include a lack of awareness and training among justice operators, who consider and use pretrial detention as the general rule and not the exception; public policies on citizen security that do not consider incarceration as a last resort but as the principal and only measure to adopt; judicial delays; and the lack of judicial independence. This hearing was granted by the Inter-American Commission in the context of a regional thematic report on pretrial detention that the Office of the Rapporteur on the Rights of Persons Deprived of Liberty will prepare next year.
Rights of Migrants, Asylum Seekers, Refugees, and Internally Displaced Persons
The Commission received troubling information about the situation of farm workers, primarily migrants, in the United States, as well as their working conditions. The information presented indicates that farm workers are often subject to physical and verbal abuse, and that many women migrants are victims of sexual violence on the part of their employers. In addition, information was received indicating that these workers often receive lower pay than that established by law and that they are not paid for overtime and do not have access to medical care. According to the information provided, the workers face obstacles in forming unions and in defending their rights. In this regard, the Commission welcomes the willingness expressed by the representatives of the State to have the IACHR conduct a visit to monitor the situation of migrant farm workers. The IACHR will follow up with this proposal.
Regarding the situation of refugees and refugee seekers in Ecuador, the Commission was informed about important reforms, adopted based on the 2008 Constitution, on issues related to human mobility. Among the countries of Latin America and the Caribbean, Ecuador currently has the highest number of refugees and refugee seekers. At the same time, the Commission was also informed about concerns that exist due to the adoption in 2012 of Executive Decree No. 1182, which establishes certain limitations in accessing recognition of refugee status, in contravention of Ecuador's international and constitutional obligations.
With regard to the situation of internally displaced persons and dispossession of lands in Colombia, the Commission received information regarding the gravity of the humanitarian crisis affecting that country; according to official statistics, more than 5 million individuals have been victims of internal displacement. In this context, some 6.5 million hectares of land have been forcibly abandoned, along with people's possessions and goods. As a result, according to the information presented, most of the internally displaced live in conditions of poverty or indigence. The Commission was also informed that the dispossession of land has had a direct impact on indigenous peoples and communities of African descent. In addition, the Commission learned, no gender focus has been contemplated for the restitution of lands belonging to women who have been victims of internal displacement. The Commission was also informed about efforts the Colombian State has been carrying out to comprehensively address the internal armed conflict and the victims of that conflict. Among these measures, the Victims and Land Restitution Law is particularly historic.
Rights of Lesbian, Gay, Trans, Bisexual, and Intersex (LGTBI) Persons
The Commission received information of concern regarding the ongoing violence against LGTBI persons in the region and the overall impunity for these crimes. The IACHR is concerned about the lack of investigation and the absence of methodologies to keep records on these types of crimes, which perpetuates victimization and violence against LGTBI persons. The Commission is concerned that crimes against LGTBI persons tend to be characterized as "crimes of passion" and are not properly investigated; as a result, violence against LGTBI persons is reduced to private violence. To the Commission, the concept of prejudice based on sexual orientation, gender identity, or gender expression constitutes a means of understanding violence against LGTBI persons, as it makes it possible to identify the social context in which such violence manifests itself. In this regard, the IACHR expresses its concern over the existence in the Americas of an overall social context characterized by stereotyped prejudice against LGTBI persons. This, along with the failure to properly investigate crimes against them, leads to these acts of violence being endorsed or condoned.
In addition, the IACHR received information related to the situation of discrimination based on sexual orientation and gender identity in Guatemala. In particular, it received information on the alleged situation of violence experienced by LGTBI persons in Guatemala and the State's failure to investigate and keep records of these crimes. Additionally, the Commission received troubling information regarding reports of police abuse against LGTBI persons, in particular trans women. The Commission believes that the situation of discrimination and violence against LGTBI persons warrants further study, taking into account local socio-cultural contexts so as to strive toward an understanding of human rights from a crosscutting perspective (for example, sexual diversity and ethnicity). The Commission believes that the State plays an important role in combating discrimination based on sexual orientation and gender identity, both among the general public and within law enforcement forces. The States should implement public policies and publicity campaigns against discrimination, and offer education and training on this subject to law enforcement agents.
Right to Freedom of Expression
With regard to the situation of freedom of expression in Honduras, the IACHR received information on murders, attacks, and threats perpetrated against journalists and media workers in that country, with many of these crimes remaining unpunished. According to the information provided, although the State investigates these acts of violence, in general the lines of investigation have not examined possible connections between the crime and the victim's profession; thus, according to the State most of the attacks fall within the context of common crimes. In addition, the IACHR heard with deep concern the information provided about the alleged lack of effectiveness of the precautionary measures granted by the Inter-American Commission for the purpose of protecting media workers in Honduras. The Commission calls on the State to immediately seek ways to improve their implementation. Finally, the IACHR welcomed the creation, by the State of Honduras, of a special investigation unit dedicated to crimes against journalists and other vulnerable groups. The IACHR will closely follow the implementation of this program.
With regard to the right to freedom of expression in Venezuela, the IACHR received updated information on the difficulties surrounding this right in the country—particularly on the numerous attacks on journalists and media workers, including a growing number of cyber-attacks on e-mail accounts and social networks. The Commission also received information of concern indicating that most of these cases remain unpunished. The organizations that requested the hearing drew attention to problems in access to public information and to government events and offices, as well as to the increase in mandatory presidential broadcasts blanketing the radio and television airwaves in the context of elections. For its part, the State indicated that Venezuela has broad freedom of expression, subject to the restrictions established in the Constitution and the law. According to the State, it is the media that attacks free expression by failing to comply with its obligation to report information that is true and objective.
III. Tasks Carried Out during the 146th Session
Reports on Individual Petitions and Cases
The IACHR continued to study numerous individual petitions and cases that allege violations of human rights protected by the American Convention of Human Rights, the American Declaration of the Rights and Duties of Man, and other inter-American instruments.
During the 146th session, the Commission approved the following friendly settlement agreements, having deemed that the agreements reached by the parties are in line with the object and purpose of the American Convention on Human Rights:
533-05 - Julio Rubén Robles Eras, Ecuador
714-06 - Ángelica Jerónimo Juárez, Guatemala
11.805 - Carlos Enrique Jaco, Honduras
Following is the list of the petitions and cases for which admissibility, inadmissibility, or archive reports were approved during the 146th session. Once the parties have been notified, the Inter-American Commission will publish on its website the reports in which the decisions are of a public nature. The IACHR also approved six reports on the merits that are of a confidential nature.
Approved admissibility reports:
Approved inadmissibility reports:
Approved archive reports:
On October 31 and November 1, 2, and 4, 2012, the Commission held hearings on individual cases and petitions, precautionary measures, and general and specific human rights situations. The original schedule of hearings for October 30-31 and November 1-2 had to be modified due to the impact of Hurricane Sandy in Washington, D.C.; this led to the cancellation of 13 hearings. The IACHR has announced that the hearings that were cancelled will be rescheduled for its 147th session, which will take place March 7-22, 2013.
The videos, audio recordings, and photographs of the public hearings are available on the IACHR website. Their use is authorized, as long as appropriate credit is given to the OAS.
The following working meetings were held during the 146th session:
IV. Financial Contributions
The IACHR would like to express its special appreciation for the significant financial contributions made by countries both within and outside the region, as well as by organizations and international agencies, foundations, and other entities. These donations make it possible for the IACHR to carry out a great many of its activities related to the mandates handed down by the OAS political bodies.
The IACHR particularly appreciates the contributions made so far in 2012 by the governments of the following OAS member countries: Argentina, Chile, Colombia, Costa Rica, the United States, and Mexico. The Commission would also like to thank the observer countries that support the Commission’s activities: Spain, Finland, France, Holland, and Switzerland. The Commission also values and appreciates the contributions it has received from the European Union, the International Work Group for Indigenous Affairs (IWGIA), the Joint United Nations Programme on HIV/AIDS (UNAIDS), Save the Children/Sweden, and the University of Notre Dame. These donations contribute concretely to the strengthening of the inter-American human rights system in the Americas.