Press Release

Report on Public Hearings from the 162nd Session

June 27, 2017

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Washington, D.C. - The Inter-American Commission on Human Rights (IACHR) held is 162nd special session in Buenos Aires on May 22-27, 2017, at the invitation of the Argentine State. It held 18 public hearings on human rights situations in Brazil, Chile, Paraguay, Peru, and Uruguay, and on regional situations that affect the Southern Cone.

Here are summaries of the hearings in the chronological order in which they took place.

1 - Human Rights Situation of Trans Persons in Chile

The organizations that requested this hearing said that although the State has made progress in terms of equality and non-discrimination of trans persons, this progress has fallen short. Specifically, the organizations indicated that trans people in Chile have been forced to resort to a civil name-change procedure that was put in place not to recognize the gender identity of trans persons but rather to correct registration problems, and therefore the procedure is done through the justice system. The organizations specified that the courts have established standards of proof such as requiring the presentation of psychological, psychiatric, or medical reports, which pathologizes the name-change process. Moreover, they said that this process, as it is judicial, is public and includes the publication of the name-change request in the Official Gazette, with a period allowed for third parties to present comments or register opposition to the change. They also indicated that Chile lacks specific regulations ensuring access to hormonal or surgical treatments. Regarding economic, social, and cultural rights, they indicated that trans persons are frequently disowned by their families and left homeless, and are excluded from the workplace in both the public and private sector, which in many cases forces them to turn to sex work. In this regard, they indicated that public policies and affirmative measures are needed to ensure “dignified jobs” for trans people. They also referred to the situation of trans children and adolescents, noting that they are not protected under existing law. Trans children and adolescents are mistreated and insulted in the schools, while in higher education they face problems having their gender identity recognized.

For its part, the State of Chile indicated that it has developed technical assistance policies and that sex education is addressed in educational programs, including teacher training. The representatives of the State noted that there are courses, programs, and protocols that include the subject matter in schools and safeguard the rights of trans students. The State also presented information about a bill on the right to gender identity, which the organizations that participated in the hearing indicated has been pending before the Chilean Senate since May 2013. Chile reiterated the commitment, expressed by President Michelle Bachelet, to include children and adolescents in this bill. It also stressed the work that has been done in the area of education and said that it will send the Inter-American Commission a written brief detailing the measures adopted.

The IACHR stressed the importance for States to take affirmative steps to ensure access to the labor market for trans persons, and inquired about the enactment of the law on gender identity. The IACHR also expressed interest in learning more about the implications of the judicial name-change procedure, and how this could affect the right to privacy. The IACHR reiterates that States should adopt measures that mainstream a gender identity perspective in public policies that seek to break the cycles of poverty, exclusion, violence, and criminalization that affect trans people. Such measures include, among other things, the recognition of gender identity in a simple, expedited, and non-pathologizing way, as well as the protection of conduct in the exercise of that identity. This should extend to the various aspects of a person’s life, in areas such as education, health, work, and housing.

2 - Situation of Sexual and Reproductive Rights in Chile

The organizations that requested the hearing presented information about the challenges faced by women in Chile in being able to effectively exercise their sexual and reproductive rights. The organizations noted that Chile is one of the few countries on the planet where abortion is criminalized even in cases in which the woman’s life is at risk, when a pregnancy results from rape, and when fetal abnormalities mean the fetus would not be viable outside the womb. The Chilean writer Isabel Allende, who participated in the hearing via a video presentation, said, “Chile has one of the most draconian legal systems in the world.” She said that penalizing abortion primarily affects low-income women and teens, since those with the means go “discreetly to a private clinic” for an illegal abortion. “Getting an abortion in Chile is easy if you have resources. It is girls and women who are poor who don’t have access,” she said. The author referred to the case of Belén, an 11-year-old girl who was raped by her stepfather and was denied access to an abortion. “The shameful truth in Chile is that adolescents and women are at greater risk of being raped in their home than on the street,” she said, adding that they are then “forced to continue an unwanted pregnancy.” Isabel Allende called for reproductive rights to be guaranteed to all women in Chile.

In the hearing room, Paola Valenzuela offered testimony about her own experience. She wanted a second child, but from the first ultrasounds the doctors told her that the fetus had serious abnormalities and would not be able to live outside the womb. Ms. Valenzuela described having to continue with the pregnancy and give birth to a stillborn son as “agony and torture.” The Commission thanked Ms. Valenzuela for sharing her experience and expressed its solidarity with her. The participating organizations and the State informed the IACHR that in January 2015 President Michelle Bachelet introduced a bill that seeks to decriminalize abortion on three grounds: to preserve the life of the mother; when the life of the fetus is incompatible with life outside the womb; and when the pregnancy is the result of rape. The participating organizations indicated that this bill has been before the legislature for three years and said that the State has not given it the utmost urgency it deserves. They therefore asked the Commission to urge the State to expedite its approval.

For their part, the representatives of the State admitted that “it is not up to the State to decide for women” and that women should not live under the threat of criminal sanction. The State delegation maintained that sexual and reproductive rights are a priority for the government, as is the bill to legalize abortion. They also expressed confidence that the bill would be passed soon.

The Commission expressed its concern about how long it is taking to get the bill passed, calling to mind that President Bachelet served as Executive Director of UN Women and that her current term as President of Chile is coming to an end.

The IACHR points out there are barriers for access to quality sex education and to necessary family-planning methods in the countries of the region. The Commission also indicates that the laws in place are restrictive and hamper access to reproductive health services, which are essential so that women can make free and autonomous decisions about their reproductive and family life. This situation particularly affects female adolescents and girls, women who are low-income or who live in rural areas, women of African descent, indigenous women, women with diverse sexual orientations and gender identities, and women with disabilities. In addition, the IACHR notes the importance for women to participate and be able to influence the design of policies to address this situation.      

3 - National Child Protection System in Chile

The participating civil society organizations said that Chile does not have a comprehensive law in place to protect the rights of children and adolescents, and that the bill currently under debate does not better the situation as it lacks an assigned budget and does not clearly determine the obligations of the various government ministries. They indicated that the position of Children’s Defender that the legislation would create has jurisdiction only in cases involving torture. On another matter, the organizations claimed that the State has failed to provide an effective response to the deaths of 1,318 children and adolescents in the last 10 years in institutions that belong to the National Service for Minors (SENAME). The organizations participating in the hearing said that there is no official information as to the cause of the deaths and that the State decided to investigate only 260 of these cases. They indicated that, as a consequence of the failure to properly investigate and the lack of preventive measures, another six children have died recently in SENAME facilities.

For its part, the State of Chile acknowledged that institutions are sorely lacking in terms of protection of children, which is why the current government has adopted a robust, transformative agenda to meet its international obligations. The State representatives indicated that one component of the new agenda is the creation of a comprehensive protection system that establishes a series of policies, institutions, and norms to safeguard the rights of children and adolescents, who are considered subjects of rights—a system that will have a $100 million budget in its first year. The State highlighted the existence of the bill that will establish the National System for the Comprehensive Protection of Children and Adolescents, and the creation of the position of Children’s Defender.

The IACHR Rapporteur on the Rights of the Child expressed her concern regarding the lack of a law establishing comprehensive protection for children and adolescents in Chile, noting that this is one of the two countries in Latin America that still do not have such a law. She also stressed the importance of coordination among institutions to enable comprehensive protection of the rights of children and adolescents. The IACHR has urged the States of the region to redouble their efforts to strengthen the functioning of their national child-protection systems. It is especially essential to strengthen the institutions responsible for promoting, protecting, and defending the rights of children at the local level; establish systems for periodically assessing and monitoring the progress being made on children’s rights; and allocate the financial and human resources needed to ensure that child-protection systems can function properly throughout the country. The IACHR also stressed the need for the voices and opinions of children and adolescents themselves to play a bigger role, so that they are empowered to understand their rights, identify situations in which their rights are at risk or are being violated, and increase their involvement in seeking solutions and in designing, implementing, monitoring, and evaluating the public policies that affect them.

4 - Independence of Justice Operators in Brazil

The participating organizations said that Brazil is currently experiencing a situation in which judges who work to enforce domestic laws and inter-American standards are targets of acts of reprisal. They indicated that these judges see their independence and freedom of expression curtailed, as they are subject to disciplinary measures, investigative proceedings, and admonitions and are singled out publicly over the decisions they make. Among other examples, they mentioned the case of a judge who received a disciplinary sanction for having ordered the release of 11 persons deprived of liberty who had been held in pretrial detention for longer than the maximum time established by law as punishment for the crime for which they were accused. They indicated that it is established practice to conduct administrative proceedings against judges who adopt decisions in line with inter-American standards, and that these proceedings serve to warn and intimidate other members of the judiciary. The organizations asked the IACHR to call on the Brazilian State to guarantee the plurality of ideas and the guarantees of impartiality and independence of justice operators so that they can issue their decisions in accordance with the law, free from any pressure or intimidation.

For its part, the State reported that the 1988 Constitution established a highly sophisticated democratic system which created an autonomous and independent judiciary. The State delegation also reported that there are currently 17,000 judges in the country, 90 courts, and more than 100 million pending cases, and said that these figures show that there is ample access to justice in Brazil. In addition, the representatives of the State indicated that Brazil safeguards the judiciary’s guarantees of impartiality and noted that judges express themselves freely in the media.

At the close of the hearing, the IACHR asked that it be provided specific information about the processes to appoint and select judges. The Commission also reiterated the importance of guaranteeing the independence of the judiciary, and emphasized the importance that appointment and selection processes be carried out with strict adherence to the inter-American standards laid out in the IACHR report “Guarantees for the Independence of Justice Operators.” In that report, the IACHR said that even though the international community has underscored the fact that judges, prosecutors, and public defenders are essential to ensuring access to justice and due process, in some States of the region these officials are performing their functions without essential guarantees for their individual independence and the independence of the institutions in which they serve. That lack of independence manifests itself in the form of interference by government and non-State actors who would erect de jure and de facto barriers to deny access to justice to those who seek it. Such interference is a function of a lack of institutional structures able to resist pressures from other branches of government or State institutions; it is also caused by a lack of adequate selection and appointment procedures and due process guarantees in disciplinary proceedings. 

5 - Human Rights, Incarceration, and Drug Policy in Brazil

The participating organizations denounced the growth of the prison population, particularly that of women and youth, as a consequence of a practice of incarcerating people for nonviolent crimes related to the illicit drug trade. They said that the law regulating national drug policy, which has been in force since 2006, represented a step forward in terms of prioritizing prevention; it strengthened individual responsibility for drug abuse and established that the apparatus of the State treats drug users differently from drug traffickers, among other aspects. However, the organizations said, that same law has troubling aspects in terms of consequences related to the incarceration of individuals who commit minor offenses and who do not belong to criminal groups. They indicated that the number of people deprived of liberty for drug-related offenses increased from 31,000 in 2006 to 174,000 in 2014, an increase of 461 percent, which further exacerbated the situation of overcrowding in Brazilian jails. Moreover, according to the information presented, this increase has particularly affected women and adolescents. The organizations noted that an aggravating factor has been that small-scale drug trafficking is treated as a heinous crime. In this regard, the organizations that requested the hearing emphasized that the Brazilian State needs to reorient its drug policy. They also referred to a decision issued by the Supreme Court which allows for measures other than pretrial detention to be applied for women and adolescents who are prosecuted for drug use. They stressed that the current challenge is to overcome judges’ reticence to carry out the Supreme Court’s decision. The organizations also expressed their concern regarding the militarization of the fight against drugs, citing as an example the events of May 21 in Cracolandia (“Crackland”), São Paulo, where hundreds of civilian and military police officers conducted an operation in an area that allegedly was being used as a gathering place for drug users.

For its part, the State indicated that there is a culture of incarceration in Brazil which undermines the possibility of applying alternatives to prison, as such measures are considered synonymous with impunity. The representatives agreed on the need to strengthen measures other than incarceration in the State’s drug policy. The State further indicated that it believes it is necessary to undertake a critical review of the current legislation on this subject, based on a multidisciplinary perspective on how to treat drug trafficking-related crimes, one that includes public policies geared toward prevention of drug use.

During the hearing, the IACHR Rapporteur on the Rights of Persons Deprived of Liberty asked the State if it would agree to a visit by a delegation from the Rapporteurship to prisons and detention centers in Brazil, and the State gave its consent. In addition, the Commission noted that while the problem of prison overcrowding is a comprehensive issue, the policy carried out in Brazil regarding the creation of new jails does not respond to the urgency of the situation, and that measures such as custody hearings are insufficient. The IACHR expressed the need to consider measures such as repealing the prohibition established in Article 28 of the drug law; decriminalizing marijuana for medical use; granting pardons for marijuana convictions; and demilitarizing the State’s response to drug use. As the IACHR has stated before, current drug policies in the region have contributed to an increase in the number of children and adolescents deprived of liberty for low-level drug trafficking and possession of small quantities. In general, adolescents who are poor, of African descent, or members of minority groups are overrepresented, and many are held in pretrial detention for long periods due to the overburdened court systems.

6 - Changes in Public Policies and Laws on Indigenous and Quilombo Peoples in Brazil

The organizations that requested the hearing alleged that the demarcation of lands and territories of indigenous peoples and descendants of African slaves has been systematically paralyzed. They suggested that this situation results from the weakening of the legal framework provided for the demarcation of their lands, and from a restrictive and improper interpretation of the indigenous rights guaranteed by the Constitution. The organizations also reported that there has been a weakening of both State and civil society institutions that provide support to indigenous peoples. They indicated as an example that these organizations have had drastic budget cuts and that the processing of the 400 demarcation cases currently pending has been slow, which meant that from 2013 to 2015 the goals set out in the Quadrennial Demarcation Plan were not met. They also indicated that there have been appointments of military officials and leaders opposed to indigenous claims, such as the designation of someone who had worked in missions to evangelize indigenous peoples to one of the highest positions in the “National Indian Foundation” (FUNAI), among other appointments they called into question. The organizations at the hearing also underscored the urgency of addressing the problem of violence against indigenous human rights defenders and leaders, citing examples such as the recent incidents against the Gamela community in the state of Maranhão and their direct connection to indigenous protests resulting from this failure to demarcate the lands. In addition to that, the organizations indicated that the model established by the government for negotiations between indigenous peoples and landowners is inefficient and unequal and has exacerbated the violence. They reported that between 2012 and 2014, there were 251 killings of indigenous people, and that the National Human Rights Council carried out a mission to southern Brazil which concluded that there is a pattern of violating the rights of indigenous peoples, including extreme cases such as the decapitation of indigenous children in Imbituba, in the state of Santa Catarina.

For its part, the State explained that the economic crisis that affects the country has forced it to take drastic measures to curb spending and that this has hampered the capacity of the State, as reflected in the small delegation the State brought to the hearing. Nevertheless, the State reiterated its full intention to respect the Constitution and Brazil’s international commitments, including indigenous peoples’ right to consultation when projects to be developed affect their territories. The representatives of the State maintained that the biggest projects in the Amazon territory are not being developed on indigenous lands, and said that studies are underway to guarantee that the pending demarcation processes move forward.

During the hearing, the IACHR asked the State to report on the measures it plans to take to strengthen FUNAI, while the Rapporteur on the Rights of Indigenous Peoples reiterated the obligatory nature of prior, free, and informed consultation of indigenous peoples regarding any project that may affect their rights over their ancestral lands and the natural resources therein. These consultation processes should be carried out before bids are tendered and plans or projects executed, and the indigenous peoples in question should participate in the decisions to ensure the effective enjoyment of their right to community ownership and cultural identity.   

7 - Human Rights and Free, Plural, and Uncensored Education in Brazil: The Proposed Exclusion of a Gender Identity and Sexual Orientation Perspective in the National Curriculum Base, and the "School Without Party” Project (Ex-officio)

The IACHR convened this hearing at its own initiative and invited civil society organizations to present information on the subject. The organizations expressed their concern about the situation regarding the right to education in Brazil, particularly considering the fragile time the country is going through. The organizations recalled that in 2016, during the hearings in Panama, the Commission expressed its concern over legislative initiatives that could lead to setbacks related to the human right to education. They expressed their concern about the “School Without Party” project, saying it violates the right to freedom of expression and academic freedom as it shows that the religious/conservative movement is trying to neutralize politics in the classroom, banning discussions about gender freedom in schools and making sexual orientation issues invisible. The IACHR was asked to make a joint public statement along with several of its rapporteurships, such as those related to economic, social, cultural, and environmental rights; LGBTI persons, children, and women; and the right to freedom of expression. The organizations also asked that an advisory opinion be sought from the Inter-American Court on the scope of the right to education in the Americas.

For its part, the State noted that the basic school curriculum in Brazil is a document that values cultural diversity and diversity of social groups, both by identifying specific learning competencies and by defining the skills that should be developed by students while they are in school. The State then offered seven notable examples related to diversity in the basic national curriculum. Secondly, the representative of the State referred to the “School Without Party” program. The Brazilian State stressed that these legislative bills are still being discussed, in a democratic spirit, through the promotion of debates among civil society experts on the issue. The State mentioned that the Ministry of Education spoke out officially against the abovementioned program.

The IACHR, for its part, stressed the obligation of every State to fulfill its international commitments, so as to make effective all the provisions of the American Convention and prevent discrimination based on gender or sexual orientation issues. The Commission emphasized the role Brazil has had in defending the rights of LGBTI people on the international and inter-American stage. The IACHR President and Rapporteur on the Rights of LGBTI Persons noted that nowadays there are conservative movements in many countries that want to make this issue invisible, and said it must be made crystal clear that education, beginning in childhood, is the best way to overcome discrimination against LGBTI persons. Education based on diversity, he said, can help to prevent bullying and mistreatment. The Rapporteur added that the IACHR will closely follow the issue, confident that the government of Brazil will defend the gains it has made in this area so that there will be no turning back.    

8 - Judicial Independence in Uruguay

At the beginning of the hearing, the IACHR announced that the State of Uruguay had excused itself from participating in the hearing and had sent in a written report on the subject matter. This report was provided to the organizations that had requested the hearing. The IACHR regrets the State’s absence, as these hearings constitute an important forum for shedding light on issues that warrant attention. In a press release issued on May 27, at the end of its session in Argentina, the Inter-American Commission expressed regret that the State of Uruguay did not participate in two of the three hearings to which it had been convened. For the Inter-American Commission, hearings are an essential means for receiving information so that it can fulfill the mandate the States themselves have given it, to promote the observance and defense of human rights in the region.

The participating organizations made a presentation to the IACHR regarding the problems with the legislative process of electing Ministers of the Supreme Court, the highest-ranking judicial body in the country. They claimed that the selection process revolves around political party negotiations. In this regard, they indicated that the process is tainted by secrecy and lack of transparency; that there is no provision for citizen participation; that the right to access information in the selection process is not guaranteed; and that there is no possibility of accountability after the fact. The organizations indicated that these characteristics in the selection process mean that citizens and civil society organizations have no knowledge of what objective criteria are used to select the members of the country’s highest court. Given that Uruguay has been a democracy for decades, they said, it is unacceptable for a decision so critical for the life of a country to be made without citizens being able to know the grounds for selection and thus without any accountability on the part of those who make the decisions. The organizations asked the IACHR to follow up on the situation and to recommend to the State that it end the practice they reported. They indicated that a large group of nongovernmental organizations had presented a proposal for increasing transparency in the process and ensuring that civil society is heard. They stressed that it is essential for the State of Uruguay to ensure a transparent, participatory process based on objective eligibility criteria for the highest authorities of the country’s judicial branch.

The Inter-American Commission invites the Uruguayan State to engage in dialogue with civil society from that country over the selection process for the highest-level judicial authorities. The Commission calls to mind the inter-American standard on the matter, which indicates that to ensure equal access to the posts of justice operators, it is imperative that an open and equal opportunity be given through widely publicized announcements that are clear and transparent as regards the eligibility requirements for the post in question. As the IACHR report “Guarantees for the Independence of Justice Operators” indicates, States must publish in advance the vacancy announcements and procedures for applying, the qualifications required, the criteria, and the deadlines, so that any person who believes he or she meets the requirements can apply to positions in the judicial branch. Moreover, the Commission considers it advantageous for selection procedures to be open to public scrutiny, which will significantly reduce the degree of discretion exercised by the authorities in charge of the selection and appointment process and the possibility of interference from other quarters. In this way, the candidates’ merits and professional qualifications can be more readily identified. These practices are essential when appointing the highest-ranking justice operators, when the procedure and selection is in the hands of the executive or legislative branch. The Commission also believes that to strengthen the independence of the justice operators who will serve in the highest positions within the judiciary, public hearings or public interviews should be held, with adequate advance preparations, where the public, nongovernmental organizations, and other interested parties will have an opportunity to see what the selection criteria are and to challenge candidates and express their concern or support.  

9 - Justice Operators and Human Rights Defenders in the Context of Transitional Justice in Uruguay

The government of Uruguay excused itself from participating in the hearing by means of a letter in which it said that it would not attend but that it was willing to cooperate with the IACHR. The government also sent in a written report on the matter, which was provided to the organizations that requested the hearing. For their part, the participating organizations expressed regret over the State’s failure to attend, indicating that its absence hampers dialogue and exchange. In the hearing, the Commissioners noted that the absence of the delegation of the State of Uruguay impedes or severely hampers the IACHR from being able to fulfill its mandate. In its May 27 press release, at the end of its session in Argentina, the Inter-American Commission expressed regret that the State of Uruguay did not participate in two of the three hearings to which it had been convened. For the Inter-American Commission, hearings are an essential means for receiving information so that it can fulfill the mandate the States themselves have given it, to promote the observance and defense of human rights in the region.

Participants in the hearing said that after Law 15.848 became null and void as a result of the Inter-American Court’s judgment in the Juan Gelman case, it became evident that this law had not been the only obstacle to investigating and prosecuting the human rights violations committed during the last dictatorship. They indicated that as of now, only 19 individuals have been prosecuted or are serving sentences for gross human rights violations committed during the civil-military dictatorship; moreover, the outlook does not seem encouraging, given the delays in the inquiries. They allege that this is because of the strategy of delay practiced by the oppressors’ defense attorneys and the careless or negligent conduct of the Uruguayan justice system, leading them to attest that in Uruguay there is “institutionalized impunity.” The participants also criticized the lack of coordination among different State agencies, as well as the lack of resources to carry out planned and effective investigations. Added to the difficulties faced by lawyers defending the victims, they said, is the insensitivity of officials, the lack of psychological support, and exhausting wait times whenever their testimony is required. Finally, the participants expressed their concern over the relationship between the impunity of the threats made against victims’ defenders and the impunity of the crimes of the dictatorship.

Specifically, the organizations referred to the threats directed against attorneys, prosecutors, and high-level public officials through letters signed by “Comando Barneix,” as well as the theft of information and threats against the Forensic Anthropology Investigation Group at the School of Humanities of the Universidad de la República. They indicated that these types of threats and acts are meant to intimidate any attorney who brings criminal cases. They asked that the State adopt protection measures for those who are threatened and that it establish the perpetrators and masterminds responsible and punish them accordingly.

The IACHR Rapporteur on Human Rights Defenders expressed his grave concern over the information regarding threats to human rights defenders and justice operators, saying that this is “serious and extremely troubling” and calls into question the efficacy of justice for victims of the gross human rights violations of the dictatorship. Members of the Commission said they were interested in receiving information from the State regarding any measures of protection that may have been adopted to fulfill its obligation to protect human rights defenders who are threatened, particularly those who were mentioned in the letter signed by “Comando Barneix.” In addition, the Commissioners expressed their concern over the multiple impacts of these types of threats, since they affect not only the human rights defender who is threatened but all the people that person was protecting, as they become more vulnerable. The Commissioners also indicated that this is extremely serious because of the chilling effect these threats can have on other human rights defenders in Uruguay. Along these lines, the IACHR reminds the State of its international obligation to investigate these threats with due diligence and punish those who perpetrated and planned them. Finally, the IACHR urges the State of Uruguay to adopt any measures that may be necessary to move forward with the investigations and the judicial proceedings related to the serious human rights violations of the dictatorship and to ensure that the crimes against humanity perpetrated during this period do not remain unpunished.  

10 - Right to Truth, Justice, and Reparation in Peru

The organizations that requested this hearing reported on the persistent obstacles to obtaining truth, justice, and reparation in connection with the serious human rights violations committed during the internal armed conflict in Peru between 1980 and 2000. They said that the slow pace of the cases, the failure to comply with decisions and recommendations issued by the bodies of the inter-American system, the Ministry of Defense’s lack of cooperation and denial of access to information requested by the public prosecutor’s office and the judiciary, as well as the existence of a culture encouraged by the highest-level State authorities of “ending the lengthy proceedings against military officers” and “turning the page,” all contribute to maintaining and promoting impunity. Moreover, the organizations denounced the lack of a gender focus in cases involving sexual violence and said that of the 4,540 cases of sexual violence against women recorded during that period, only 19 are before the court and in only one has a conviction been handed down. The participating organizations said they were opposed to the State’s covering the expenses of private attorneys for the military officers prosecuted for human rights violations while no victim of the internal armed conflict has the same assistance. They complained that there are delays in prosecutorial investigations and in the court cases, as well as a lack of coordination between the prosecution and the judiciary. Finally, they expressed their objection to Law 789-2006/CR, which would allow members of the military who are prosecuted and convicted to be transferred to military establishments.

For its part, the State denied that the individuals accused of these crimes received a preferential legal defense, noting that if they are found guilty, they have to pay the country back for what was invested in their defense. The representatives noted that the State also offers victims legal assistance, if this is requested. The State indicated that the procedural delays in these situations is due to the complexity and size of these cases. They said a multicultural and linguistic focus is being implemented in the form of interpretation into the victims’ local languages, as three of every four victims are Quechua speakers. The representatives indicated that the State has made improvements with respect to seeking reparation for the victims; these include legislative and educational reforms. At the close of the hearing, the IACHR noted the importance of encouraging cooperation and dialogue between civil society and the State in order to identify joint strategies to obtain truth, justice, and reparation for the grave human rights violations perpetrated between 1980 and 2000, and to design gender-focused policies and practices, among other steps.

11 - Human Rights and Extractive Industries in Peru

The organizations that requested the hearing expressed their concern over what they consider to be a serious human rights situation in Peru due to the implementation of a pro-extraction policy. They said this had given rise to a series of human rights violations and to the concession of a large part of the national territory. In that context, they alleged, there has been an abusive use of law enforcement, and 152 people are reported to have died, with only one case resulting in a guilty verdict. They maintained that the states of emergency issued in the territory are being applied regularly, even preventively, as a mechanism to stifle social protest. They also reported on what they consider to be a privatization of law enforcement, indicating that a series of formal agreements have been reached between private companies and the national police in the last two decades.

The State of Peru expressed appreciation for the opportunity to engage in dialogue on this issue and indicated that institutional frameworks have been adopted to respond to the complaints and address situations involving social conflict. The State reported that there are a series of rules and regulations in place to ensure the wise use of natural resources. In terms of the states of emergency issued in the country, the State maintained that these have always been reported to the OAS General Secretariat. As to the agreements with police forces, the State indicated that only one is now in effect, and it expires in August 2017. The State maintained that the law authorizing such agreements has never been challenged as unconstitutional.

The IACHR stressed the need to coordinate a national system for the protection of human rights defenders. In its observations on the working visit carried out to Peru in December 2016, the IACHR drew attention to information it had received about alleged abuses committed by private security personnel who work for extractive companies, including dozens of deaths that reportedly occurred in a context of criminalization of social protest and abusive use of force. The IACHR was told that since Peru’s return to democracy, there had been only one judgment handed down against a police officer, and moreover that the country ranks fourth in the world in the number of environmental defenders killed. In this regard, the IACHR urges the State of Peru to adopt preventive measures and to investigate the acts of violence reported against human rights defenders, taking into special account their critical role in guaranteeing democracy and the rule of law.

Moreover, the Inter-American Commission reiterates that inter-American standards on this subject establish that the State obligation includes the prevention of human rights violations; thus it is enforceable prior to the authorization of the project or the granting of permits, as well as during the implementation and the life-cycle of the project, via supervision and oversight measures. This obligation includes the need to properly identify and assess the inherent risks to internationally recognized human rights in the context of extractive and development activities, from before they are authorized until after they have been completed, understanding that there may be impacts after a project is finished. States also have the obligation to consult indigenous peoples and communities of African descent that could be affected by these projects; ensure mechanisms for effective participation and adequate access to information that would facilitate the exercise of their rights; supervise and monitor the activities of companies and other non-State actors; prevent illegal activities and forms of violence; and provide measures to ensure proper access to justice through the investigation, punishment, and reparation of human rights violations in these contexts. This broad obligation also includes the consideration of differentiated and adverse impacts on specific groups such as indigenous or Afro-descendant leaders, authorities, and human rights defenders, women, children, older persons, and persons with disabilities.  

12 - Institutional Framework of Indigenous and Afro-Descendant Peoples in Peru

The participating organizations complained to the IACHR that indigenous and Afro-descendant peoples lack institutional representation and participation in public and political life in Peru. The organizations said that the National Institute for the Development of Andean, Amazonian, and Afro-Peruvian Peoples (INDEPA) had been weakened in 2010, having been absorbed first by the Ministry of Women and then by the Vice Ministry of Culture. This led to a loss of budget, ministerial rank, and decision-making power, as well as a loss of relevance in terms of implementation of policies intended to fulfill their rights. The organizations also complained that the inclusion of the category of “mestizo” in the 2017 census has the effect of making indigenous and Afro-descendant peoples invisible. Several participants informed the IACHR that they did not have access to a national identity document and that the State did not recognize the legal personhood of indigenous communities in Peru, but rather recognized them as simple associations, thus minimizing their access to services and to rights, as well as their right to participation and to cultural identity.

The State reported that different laws, rules and regulations, and public policies have been put in place to integrate and promote indigenous and Afro-descendant culture. With respect to INDEPA, the State responded that before 2010 that institution had experienced instability, which made progress difficult, but that there has been progress ever since the subject matter was incorporated into the Ministry of Culture. The State recognized that the culture of Afro-descendant peoples had not been adequately recognized; thus, a working group was established to address needs that may require a different approach by the State. The State mentioned that the census that will be conducted in 2017 will mark the first time in which people will be asked how they self-identify ethnically.

The Commission, for its part, expressed the importance of recognition of indigenous and Afro-descendant peoples, noting that the inclusion of the word “mestizo” in the census would, in fact, bring serious consequences and an erosion of rights. The Commission stressed the need to grant legal recognition to indigenous and Afro-descendant peoples, and asked the State what would be the obstacle to doing so. Commissioners stressed the importance that the implementation of rights must be progressive and not regressive, and said that it was important to restore INDEPA as a body with full participation and the capacity for influence of indigenous and Afro-descendant peoples.

The IACHR calls attention to the regression implied by the loss of INDEPA’s ministerial rank. In accordance with inter-American standards, States should adopt all necessary measures to ensure that the members of indigenous and ethnic communities can participate, in equal conditions, in decision-making on matters and policies that affect or could affect their rights and the development of these communities. This is to ensure that they can be part of State institutions and bodies and participate directly and proportionately to their population in the conduct of public affairs, and do this from within their own institutions and according to their own values, practices, customs, and forms of organization, provided these are compatible with the human rights embodied in the Convention.

13 - Democratization of the Media in Uruguay

The organization that participated in this hearing reported that Uruguay’s Communication Services Law, which was enacted more than two years ago, has yet to be implemented, and said that ground has been lost with respect to diversity and pluralism. The participants said that the law was drafted in line with inter-American standards on freedom of expression, with widespread participation, and that it guarantees the exercise of these freedoms through audiovisual media. The law also addresses various aspects of the media: the process of assigning broadcast frequencies, public media, limits to undue concentration of media ownership, protection of children, creation of an autonomous regulatory authority independent of the branches of government and media actors, and the creation of an “audience ombudsman,” among other aspects.

The State explained that a series of appeals had been filed challenging the constitutionality of most articles of the law and that the government decided to wait for these issues to be resolved by the Supreme Court, so as to have legal certainty regarding the scope of the policies to be applied; nevertheless, the State noted that some aspects of the law have been applied. The representatives announced that the government is committed to implementing the law and the standards contained therein, and said that the substantive aspects of the law would be implemented in the coming weeks.

The IACHR expressed its satisfaction over the approval of the Audiovisual Communication Services Law in Uruguay, under the standards established by the inter-American human right system, and welcomed the State’s willingness to effectively implement the law. However, the Commissioners expressed their concern regarding the alleged delays in the implementation of the mechanisms established by the law, and asked the State if it was possible to provide a timeline of the steps that will be taken.   

14 - Situation of Freedom of Expression and Community Radio in the Southern Cone

In this regional hearing, the participating organizations laid out the progress made and difficulties faced by community media outlets in the southern region of South America. Specifically, they discussed the extent to which freedom of expression standards related to this issue have been incorporated into legal frameworks and government practices. They said that while there has been progress on the legal front, in practice there are various obstacles to the consolidation of media outlets that serve the community. These include: range limitations imposed on community media outlets; the lack of radio spectrum to assign to new outlets; the use of criminal law to penalize outlets that power up their antenna after waiting years for authorization; and the lack of access to official advertising, among other obstacles. The Office of the Special Rapporteur for Freedom of Expression has indicated on various occasions that legislation and public policies geared toward the community media sector should establish simple procedures for obtaining licenses; should not impose stringent technological requirements that would impede access to licenses; and should provide the possibility of using different funding sources, such as advertising, to finance their operations. In any case, the law must include sufficient guarantees so that these outlets do not become dependent on the State through government funding.

The IACHR thanked the representatives of civil society from the region for the information they provided. It reaffirmed the need to monitor the situation regarding recognition of the community broadcasting sector in the region as a way to facilitate access by communities and indigenous groups to manage their own media outlets.

15 - Human Rights Situation of Migrants in the Southern Cone (Ex-officio)

In this hearing, convened by the IACHR at its own initiative, the civil society organizations that attended began by discussing Chile as an example of the situation of migrants in the region. They referred to the legal framework in effect in that country, enacted under the military dictatorship, which does not recognize inter-American human rights standards. The organizations also referred to the serious situation faced by women migrants, especially because of their lack of access to health services. For its part, the IACHR referred specifically to the serious problems that affect other countries in the region in the context of human mobility, such as internal displacement and the critical situation encountered by vulnerable groups. The Commission emphasized the situation faced by Haitians in the context of migration in the Southern Cone, due to language differences and cultural adaptation problems. The Inter-American Commission also highlighted as a good practice the “Chile Reconoce” program, which recognizes Chilean nationality for children of migrants. Another good practice the IACHR mentioned was the legal change advanced in Brazil to facilitate the naturalization process for foreigners and eliminate statelessness. Finally, the Inter-American Commission recognized efforts made by some other countries in the region and urged the rest of the countries to implement these types of regularization programs.

16 - Situation of ESCER due to the Installation of Substations and Power Lines in Paraguay

The organizations that requested the hearing reported that the National Electricity Administration, or ANDE, is the State-owned company responsible for the generation, transmission, and distribution of electricity throughout Paraguay, and that it has the obligation to act in a way that is socially and environmentally responsible. However, they indicated that this utility is polluting the environment via the electromagnetic fields generated by its substations and associated power lines, and via the toxic fumes and other materials released in fires and explosions. They indicated that ANDE and the Secretariat of the Environment belong to the National Environmental Council (CONAM) and that they therefore have the obligation to apply the precautionary principle to protect the right to a healthy environment, which is related to the whole set of human rights, particularly the right to life and health. They indicated that prevention involves placing substations and power lines as far from populated areas as possible. They maintained that this has not been done and that a number of people have suffered serious health effects. In this context, they called into question the construction of the Mburucuya substation, among others.

For its part, the State of Paraguay noted that it recognizes the international protection of human rights, such as the right to life and the right to live in a healthy environment, among others, and considers that the environment belongs to everyone. It indicated that ANDE incorporates the environmental aspect into its mission to meet the energy needs of the population in order to contribute to the development of the country and the social welfare of its citizens. As to the construction of the Mburucuya substation, the representatives indicated that this is part of the master plan for energy distribution and that it follows the legal regulations. The IACHR underscored the importance of addressing this issue, which refers to the situation of the right to the environment and to health in the context of a city. It indicated the importance of adopting the appropriate measures to safeguard the human rights of the population.  

17 - Human Rights Situation of Peasants and their Defenders in Paraguay

The organizations that requested the hearing said that peasant organizations in Paraguay have had to face a situation in which they are constantly stigmatized in the media and at times by representatives of the State. They also reported that they have been subjected regularly to violent evictions carried out without a court order, as well as to prosecutions, detentions, trials, and arbitrary convictions. They said that the State’s criminal law system is being used to discourage their demands and to ensure impunity for abuses carried out by police, prosecutors, and members of the judiciary against campesinos and their defenders. The organizations reported that between 1989 and 2005, 115 campesinos had been killed, and that most of these cases remain unpunished. They said that between 2004 and 2017, 699 individuals had been deprived of their liberty, and indicated that magistrate judges are not fulfilling their duty to safeguard their rights and due process guarantees, and that public defenders cannot freely carry out their duties. The organizations alleged a series of violations to their right to life and to food.

For its part, the State delegation expressed its disagreement with the claim that the Republic of Paraguay promotes a policy of persecuting peasants. It indicated that the State recognizes campesinos’ right to demonstrate, recognizes their important role in society, and seeks to ensure that they can enjoy all rights inherent to human beings, by providing the basic means for their development as well as access to the lands that allow them to have a life of dignity. The State underscored the importance of the 2030 Paraguay National Development Plan, approved in 2014, for its pillars related to poverty reduction and inclusive economic growth. It indicated as well that there are processes in place to regularize land ownership and said that no campesino leader is under investigation for being a human rights defender. The Commission thanked the parties for the information provided in the hearing and asked the State for additional information regarding any existing cases that involve the investigation of acts of violence, torture, and killings of campesinos in Paraguay. 

18 - Protest and Human Rights in Paraguay (Ex-officio)

Representatives of reporters and photojournalists from Paraguay presented videos and evidence of the repression unleashed against members of the press during the protests of March 31, in the context of a vote on a constitutional amendment to allow for presidential reelection. The State accepted the fact that there was excessive use of force that day, but also violence by some demonstrators who set fire to part of the congressional building. The State reported that the President of the Republic had removed the Minister of the Interior and the Chief of Police from office over these abuses and said the State will soon approve a protocol for protecting journalists during protest demonstrations and other events.

The IACHR expresses its concern regarding the information and videos shown by civil society during the hearing, which showed an excessive use of force on the part of the police against demonstrators and members of the press who were covering the protests, as well as regarding the attempt by a group of demonstrators to set the congressional building on fire. The Commission asked the State about the status of the investigations to identify and punish the members of the security forces involved in the attacks on the press and the killing of a member of the Partido Liberal that night. Commissioners also called to mind inter-American standards regarding the need to train police in how to act and in the use of force during demonstrations.

A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for and defense of human rights in the region, and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.

No. 085/17