EFFECTIVENESS OF HUMAN RIGHTS PROTECTION INSTRUMENTS
Héctor FIX-ZAMUDIO*
Original Text (Spanish) PDF
SUMMARY
I. Introduction. II. Access to Justice. III. The Right to Procedural Action. IV. Due Process of Law. V. Competent, Independent and Impartial Judge or Court. VI. The Simple and Brief Procedure, Reasonable Term and Undue Delays. VII. Compliance and Enforcement of International Decisions about Rights Protection and Fundamental Freedoms.
I. INTRODUCTION
1. Over recent years, since the United Nations was created and numerous international human rights instruments were put into effect, one can see a reciprocal influence of internal and international human rights law statutes with a progressive nature. A significant number of procedural human rights protection instruments themselves have been created or improved and have been taken on in a very wide protective sphere, both nationally and internationally. However, this development of promoting and protecting an each person's human rights, though impressive, is insufficient, if said protection instruments are not truly efficient in attaining effective protection of the rights themselves, and if they do not remain, as sometimes happens, within the scope of theory, good intentions and unapplied legal rules.
2. We do not intend to carry out a panoramic study of various procedural aspects related to the efficiency of national human rights protection instruments, but only of the most relevant institutions. In addition to the fact that said inquiry would be very extensive, we run the risk of repeating the ample considerations formulated in renowned experts Stanislav Chernichencko and William Treat's final report presented before this sub-commission during the 1994 period of sessions. In their report, The right to a fair trial: Current recognition and measures necessary for its strengthening,1 they proposed a set of principles and international instruments to make this right more effective. Considering this relevant, we therefore stand by this important document.
3. While effectiveness of legal and procedural instruments is a requirement that should comply with protection mechanisms for all the rights that could be classified as common ones in contrast to those considered fundamental, the need of effectiveness for these last ones is evident and therefore unavoidable.
4. We should take into consideration that international human rights instruments in general establish requirements that should be insisted upon in order to attain said effectiveness of protection mechanisms for the mentioned rights. In this respect it is necessary combine precepts related to the so-called judicial guarantees that apply to all kind of rights, such as the specific legal protection of fundamental rights, since the former, as we have said, should be insisted upon with greater force in dealing with the latter.
5. Ordinary judicial guarantees are mentioned in Articles 10 of the Universal Declaration of Human Rights; XXVI, of the American Declaration of the Rights and Duties of Man (which only refers to criminal matters); 14 of the International Covenant on Civil and Political Rights; 8 of the American Convention on Human Rights; 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and 47 of the Charter of Fundamental Rights of the European Union, approved on December 7, 2000. There are other instruments covering certain aspects of these legal rights that were specifically developed for the fields they regulate, and which are mentioned in Messrs. Chernichencko and Treat's report cited in paragraph 2.2
6. It is not easy to point out the common aspects of said precepts for protection, but in essence we can say that they coincide in that every person has the right to a hearing with due guarantees within a reasonable time by an independent and impartial judge or court previously established by law, in determining their civil, administrative, labor, tax or other rights, further detailing the guidelines to be followed in criminal procedures.
7. Regarding the specific protection of fundamental rights, the cited international instruments, as well as the guidelines above, are of a generic nature. Articles 8, XVIII, 2, 13 and 25 of the Universal and American Declarations, the International Covenant on Civil and Political Rights, the American Convention and the European Convention, respectively, state that every person has the right to an effective, simple and prompt recourse, that safeguards against the violation of his fundamental rights as set forth in the Constitution and internal laws, as well as by those established by said instruments. Moreover, both the International Covenant and the American Convention stipulate that the member States commit to guaranteeing that the competent authority designated by the State's legal system decides on the rights of the individual that files said legal recourse, develop the possibility of judicial remedy and to guarantee the compliance of the competent authorities with any decision said instance has deemed admissible.
8. From the above, close connections of the legal protection proceedings established by national legislations, even at a constitutional level, and the precepts of the mentioned international instruments can be ascertained, since the latter establish several minimum guidelines to ensure real effectiveness of internal human rights protection mechanisms.
9. Even though it is very complicated to analyze these international guidelines that are closely related to those established in internal statutes, which in turn have been gradually harmonized with the first ones, we will make an inevitably superficial attempt to carry out a concise study of what we consider to be of greater importance. For this, we can cite article 24 of the 1978 Spanish Constitution as an exemplary regulation of the various elements of effective judicial protection, on a national level. The precepts of this constitution have been developed by constitutional tribunal jurisprudence, taking into account the principles and laws of international instruments, as well as European Human Rights Court criteria. Among the contributions of this tenet, known Spanish legal scholar Jesus Gonzalez Perez' work, El derecho a la tutela jurisdiccional, stands out.3
II. ACCESS TO JUSTICE
10. Even when human rights protection is not expressly mentioned in the international precepts we have discussed, but do in some of the more recent national statutes, it should be considered an indispensable pre-requisite for the effectiveness of human rights protection instruments. As an example of the validation of this right in an internal constitutional scope, we should underline that which is set forth in article 26 of the 1999 Constitution of Venezuela, even when this fundamental norm can be too naive regarding the reality of imparting justice in our times in certain aspects. This precept establishes:
Right to access to justice. Every person has the right of access to the agencies of administration of justice to assert their rights and interests, even collective or widespread ones, to the effective protection of said rights and to obtain the corresponding decision promptly. The State shall guarantee free, accessible, impartial, suitable, transparent, autonomous, independent, responsible, fair and expeditious trial, without undue delays, without formalisms or useless rehearings.
11. In this sense we should point out the example of the research covering many fields of study that was carried out by the European University Department of Law, sitting in the city of Florence and under the leadership of the renowned Italian legal scholar Mauro Cappelletti. The results of this research were published in the paper in English entitled Access to Justice.4 The introduction of said work jointly written by Mauro Cappelletti and US legal scholar Bryan Garth, which is included in the first volume of the cited book, has been translated into Spanish under the title of El acceso a la justicia. La tendencia en el movimiento mundial para hacer efectivos los derechos.5
12. One of the most important aspects of access to justice, according to what is stressed in the mentioned study, refers to the analysis of the institutions that have been established to grant plaintiffs the real possibility of accede to legal conflict-solving agencies and the courts in particular. To achieve effective legal protection of the rights of those affected, legal counseling and economic aid are needed so they can find themselves in a suitable position to prepare the defense of their rights.
13. We should clarify that we prefer to use the terms "access to justice" instead of those sometimes used as synonyms: "legal access" or "access to jurisdiction". The first one is much broader, since it includes the possibility of turning not only to judges or courts through proceedings in the strictest sense, but also to other instruments to solve non-jurisdictional conflicts, such as legal proceedings before administrative authorities, as well as conciliation, mediation, arbitration and agencies like the Ombudsman.
14. After the Second World War, a group of mechanisms have emerged and gradually become stronger to implement access to justice for people who due to their economic and cultural situation are in a poor position to defend their rights in general and before the public agencies for solving controversies specifically. Before, the traditional system was based on a system of charge free legal assistance donated by law schools or public agencies that carried out the so-called public defense, specially for criminal proceedings, but this system has been proven to be inefficient because it was based on the sole concept of poverty. Those requesting this service had the burden of proof of showing that they completely lacked the economic means for help from private lawyers. Only then would the courts grant them professional legal assistance and waive the cost of the legal services.
15. Modifications to this traditional regime began in England in 1949, with a legal aid and counseling program. The administration of this program was given to the Legal Association, which is made up of Solicitors (attorneys) and receives the public funding needed to set up offices for the public and private lawyers that provide Legal Aid to people who according to their social security status lack the necessary means or do not have sufficient resources to obtain legal counsel, or even for representation in court. In this case, they are not only assisted by lawyers, but also provided with the economic means to cover the expenses of the corresponding process.
16. In the United States of America, a similar system was set up with the 1964 Economic Opportunity Act. The Legal Services Program was established and started up in 1965 to back this Act. It culminated in 1974 with the establishment of a federal public agency named Legal Services Corporation, which is in charge of coordinating both federal government programs and state programs for rendering public legal counsel services to people that lack the resources or when their resources are not enough for them to go to private lawyers to defend their rights.
17. In several Continental European statutes, legal modifications have been made to set adequate compensation for private lawyers that render professional assistance, as happened several times in Germany, Sweden, Austria and Holland. These countries have also been in favor of setting up and developing surety bonds granted by private companies to solve the risks derived from the conflicts, especially those of a legal nature. It has been endorsed in such a way that plaintiffs can secure assistance from private lawyers and a refund for the costs of the corresponding proceedings.
18. To summarize, we can point out that there are three categories of legal assistance for people with low incomes by means of public agencies: a) the Judicare system (similar to Medicare, which renders healthcare services), and which consists of the beneficiary's right (not only of poor people, but also those with limited means) to choose private lawyers from those on the official lists of qualified professionals that have accepted to receive payment from public agencies.
19. b) Public offices of designated lawyers that are paid by public agencies (public defenders), such as the so-called Neighborhood Law Offices in the United States of America. These offices are located in marginalized zones or neighborhoods and render their services not only before judges and courts of law, but also give general legal counsel. Some of these lawyers have distinguished themselves for defending public interest cases, especially so-called interests or rights of a widespread nature, to protect non-organized social groups.
20. c) Mixed systems that combine the rendering of services by private lawyers that are paid by the State with offices made up of professionals of a public nature. Those of Australia, Great Britain and Sweden, among others, can be cited as examples.
21. The above instruments are not the only ones. Other mechanisms have been used, including that of establishing free services rendered by judges and courts of law, an institution created by the French revolution. This mechanism was later abandoned in most European statutes, even though said free service has been established in numerous legislations as a general rule, in referring to certain specific human rights protection instruments (particularly the amparo and the habeas corpus). The reason that said free service has not been generalized is to due the experience that, by itself, it does not solve the problem of poverty of people with limited resources. There are also the so-called process fees, especially the expenses that the parties must cover in offering and formally admitting evidence. These expenses affect judicial proceedings and generally this encumbrance is proportionally higher in minor cases.
22. To even partially solve the issue of the high cost of minor conflicts, courts specializing in said conflicts have been created in many recent statutes. These courts do not require professional assistance of lawyers and they aim to solve the issues quickly and simply. Or else, professional mediator offices have been established to solve said litigation on friendly terms and on certain occasions. Arbitration is yet another resort.
23. In reference to the Latin American statutes that were behind in terms of access to justice in view of the traditional public defense instruments, especially for criminal matters, have been used, a concern to overcome this deficiency is seen, though gradually. The creation of both public and private mechanisms has been initiated to help people of limited means so that they may go to conflict-solving agencies. This is seen in the comparative study carried out by the Inter-American Institute of Human Rights with the backing of the Inter-American Development Bank. This study was published in the work headed by Jose Thompson, Acceso a la justicia y equidad. Estudio en siete paises de America Latina [Access to Justice and Equity].6
24. This very superficial overview implies that there is a modern trend to solve problems that derive from access to justice by means of various mechanisms that have branched out. But as a group, the trend to establish a complex system of legal assistance for people of low income or limited means that is similar to that of social security healthcare services can be observed. In view of the above, we can conclude that in this subject, systems of social security of a legal nature are being created.
25. Free assistance to the accused in criminal proceedings has also been established in international human rights protection instruments, especially for criminal matters. Articles 6, section 3 of the European Convention; 8, section 2, clause e) of the American Convention; and 14, section 3 clause d) of the International Covenant on Civil and Political Rights set forth the unalienable right of receiving assistance from a professional defender that should be named by the judge if a lawyer is not appointed. Defense counsel will be assigned to the accused free of charge if he lacks the economic means to pay for a lawyer's services.
26. In its legal system, the European Court of Human Rights has established the right to free legal assistance, especially for those processed for criminal matters, which includes the preliminary stage of police investigation. It has also set some precedents in reference to other procedural issues. In extending legal assistance for criminal proceedings to other types of rulings, the third paragraph of cited article 477 establishes this right in a general way, by stipulating "Free legal assistance shall be rendered to those who do not have sufficient resources as long as said assistance is deemed necessary to guarantee the effectiveness of access to justice."
27. This right to legal assistance, which the above precepts consider within the procedural instruments in an internal scope, has also extended to procedures before international agencies. They have particularly done so in cases presented before the European Court of Human Rights.
28. Said legal assistance system depends on the European Council. It can be requested by the interested party that presents themselves before said European Court under the terms of articles 91 to 96 of its November 1998 regulations. It can be granted by the chief judge handling the case, at the request of either the interested party or ex officio, when there are not enough resources to cover the fees of a private attorney. Said legal assistance also includes duly estimated fees of the corresponding lawyer or of his representative, travel expenses and living expenses, as well as others that are deemed necessary, both for the plaintiff and said representatives.
29. The costs of offering and formally admitting evidence, which can be onerous, are not included in free assistance. Under the assumption that they cannot be covered by the plaintiffs, they are paid with European Council funds according to the estimate made by the chief judge handling the case, as set forth in article 65, section 3, of the cited European Court Rules and Regulations.
III. THE RIGHT TO PROCEDURAL ACTION
30. The right to procedural action obtained scientific autonomy with the works of German and Italian legal scholars in the second half of the 19th century. This led to immeasurable development of procedural studies, which influenced the validation of the public individual right to jurisdiction in a significant number of Constitutions. This in turn implied the prohibition of self-defense to reclaim rights, except in extraordinary situations (including, legitimate defense), which is why individuals must go to judges and courts of law to solve legal conflicts they are party to.
31. In classic constitutionalism the right to action had a purely formal nature. In other words, it was fulfilled by simply going to courts of law on formal and equal terms. Regardless of social inequalities, judges limited themselves to passively ensuring that procedural rules were respected, except in the case of criminal proceedings, which were subject to the initiative of the parties involved.
32. The traditional concept of public right to legal action was defined as an individual right before the State to demand the exercise of the public legal duty in the hands of judges and courts of law. Its purely technical meaning came from the individualistic and liberal concept of formal equality of citizens, without considering "the obstacles of an economic and social kind (political and cultural should also be added), that in fact limiting freedom and equality of citizens hinder the full development of human personality", according to that which was exemplarily set forth in article 3 of the 1948 Italian Constitution.
33. This orientation has gradually transformed itself and acquires a new social dimension after the Second World War with the strengthening of the social, democratic Rule of Law. This aimed to replace formal equality with real equality among citizens. The influence of this social orientation in procedural law and in conflict-solving instruments is evident. It can be said to have begun with the creation of procedural labor law, in which prerogatives are granted to the weaker party, that is to the worker, when he participates in litigation against companies and businessmen that usually have more resources. The purpose of these procedural prerogatives is to attain what tenets call equality by compensation.
34. Another instrument used to modernize the process lies in developing the judges' role so that they go from passive observers to directors of the process, without affecting their impartiality. Thus, they work with the parties' lawyers to corroborate the truth of the statements of said parties, and not exclusively, as was the custom, to conform to the so-called court-proven truth. Currently, magistrates have the authority and even the obligation to receive and admit evidence, directly if possible, and to bring additional evidence that brings full understanding of the conflict to the proceeding.
35. One of the most important aspects of the executive powers of the modern judge concerns the iura novit curia principle. This means the judge knows the law and must apply it even when the parties, or one of them, does not invoke it correctly. Therefore, the judge is obligated to prevent a lack of proper defense of the plaintiffs by correcting the flaws or errors that arise from the absence or inadequateness of technical counseling, which often affects those lacking sufficient means to obtain the legal assistance needed to effectively claim their rights before conflict-solving agencies.
36. The current trend not only in the tenets, but also in internal statutes and international human rights instruments is that of considering said right to procedural action a human right to justice, and not simply as a formal right to bring a case before a judge or generalized as the right to go before public conflict-solving agencies. In other words, the right to procedural action in modern statutes must be considered citizens' fundamental public individual right fundamental to demand from the State (social or welfare) that they be given equal participation before courts of law and other conflict-solving agencies; that it cannot be purely formal since courts of law must venture a fair solution to said conflicts.
37. On the other hand, solely for the purpose of analysis, we can consider the right to procedural action to justice separately. This right is closely tied to other basic procedural instruments, such as the right to a trial or due process, which in turn is linked to the so-called right to defense. All of these aim at reaching a fair solution to legal conflicts. Therefore we will also briefly discuss those instruments that were established to ensure efficiency in courts of law and other conflict-solving agencies.
IV. DUE PROCESS
38. Due process of law is based on the American concept expressly set forth in Amendments V and XIV of the Constitution of the United States of America in 1791 and 1868, respectively. These articles, especially the first one, had a significant repercussion on Latin American constitutional statutes, as well as on the legislations of various family or legal traditions. Said institution is also known as the right to defense in trial or the right to a trial, and in English as fair hearing.
39. Actually, as pointed out above, the right to due process, to defense or to trial cannot be separated from procedural action, since it has a bilateral nature. In other words, it is common to both parties of a legal conflict. We cannot conceive the action itself unless it is exercised through a procedure that allows for the proper defense of both parties since the action itself implies not only the beginning, but also the continuation of the process until its final stages, including its execution, except in the case of criminal proceedings in which it is granted to the administrative authorities, even when there is increasing intervention of the so-called jueces de ejecución.
40. The due process of law is an extremely complex institution and it embraces numerous aspects that have been extended in various ways by jurisprudence in the statutes that establish it. It not only comprises procedural aspects, which are the most evident ones, but it also has extended into substantive issues. Since jurisprudence has backed this institution, especially in the Supreme Courts of the United States of America and Argentina, among others, those that have established the principle that the ruling pronounced in the proceeding must be reasonable, that is, congruent to the conflict presented.
41. As indicated above, both internal statues and international human rights instruments place great importance on violations of a procedural nature that affect the basic aspects of the due process. As to the latter, the fundamental rights of a procedural nature are covered in cited articles 6, 8, 14 and 47 of the European and American Conventions, the International Covenant on Civil and Political Rights, and the Charter of Fundamental Rights of the European Union, respectively. While all these precepts minutely regulate the procedural rights of the accused in criminal proceedings, they still refer generically to all kinds of proceedings.
42. According to doctrinal statistics and comments, claims of procedural violations hold a preferential place in the cases presented before the European Commission (dissolved in November 1998), the European Court of Human Rights and the United Nations Human Rights Committee. Up to a certain degree there is a similar situation at the Inter-American Commission, but the same has not happened in the first cases acquitted by said court. However, issues concerning procedural violations have recently been presented to this court, which in turn has ruled on them.
43. If we focus on the guidelines of due process, of defense or of hearings, we can point out several essential aspects, such as those regarding publicity, equality of arms, the term for filing evidence, provisional remedies and grounding sentences, among others.
44. A) Publicity of the proceeding, which implies not only that the procedure is carried out publicly, but also that proper and timely information is provided to the parties in terms of their procedural rights and the subject matter of the conflict, so that they can exercise these rights appropriately. Even when said publicity seems to be an obvious characteristic of modern proceedings that contrasts with the secret of an inquisition, it has been necessary for it to be reiterated in several constitutional provisions in our time and even in international human rights instruments due to the constant relapses authoritarian regimes have incurred in hiding procedural acts from view. These are sometimes tied in, as seen below, with common judges' avoidance of the case by handing them over to military ones.
45. Thus, publicity of legal actions and of other conflict solving agencies has stood out. Publicity can only be restricted in special situations. Within this principle, we can point out other related aspects such as notifying and informing the parties of the contents or object of the proceeding, which acquires singular transcendence in the preliminary stages of the criminal process and in the administrative procedure. There are also oral depositions, which refer to receiving evidence, according to the principio contradictorio.
46. Publicity has not been a characteristic of the administrative procedure. Therefore, it is necessary to make essential modifications to protect the legitimate rights and interests of the individuals in terms of an increasingly domineering administration, since the former have until recently been largely forgotten in legal provisions. For this reason, said individuals should not only be well informed, but they also need professional guidance and counsel, as established in the most recent laws of administrative procedure.
47. Positive progress in this has been observed in article 41 of the recent Charter of Fundamental Rights of the European Union, entitled Right to good administration and covers, among other aspects, the universal right of every individual to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union. Moreover, it specifically includes, among others, the right to be heard before any individual measure which would affect him or her adversely is taken, as well as the right to have access to his or her case file, while respecting the legitimate interests of confidentiality and of professional and business secrecy, including the obligation of the administration to justify its decisions.
48. But this situation is even more pressing in criminal proceedings, especially during the preliminary investigation stage. However many constitutional texts and international ones have minutely established the accused's rights and stipulated the obligation of the authorities carrying out said investigation to inform the accused of the reasons for his or her arrest when this takes place, the performance of this obligation has generally been inefficient. The same thing happens with professional counsel, since the defense generally intervenes until the legal stage begins, that is, when the Public Prosecutor has already brought the case before the judge.
49. Along this line, it is important to mention the interpretation the US Supreme Court made of Articles V and XIV of its Constitution8 in the judgments rendered in the well-known cases of Escobedo vs. Illinois (1964) and especially Miranda vs. Arizona (1965). These rulings establish the unlawfulness of any detention unless the accused is expressly informed of his constitutional rights at the time of arrest. Along this line, it is important to keep in mind Principles 10 and 13 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, approved by the United Nations General Assembly in its resolution A/RES/43/173 on December 9, 1998, according to which:
Anyone who is arrested shall be informed at the time of his arrest of the reason for his arrest and shall be promptly informed of any charges against him... Any person shall, at the moment of arrest and at the commencement of detention or imprisonment, or promptly thereafter, be provided by the authority responsible for his arrest, detention or imprisonment, respectively, with information on and an explanation of his rights and how to avail himself of such rights.
50. Another procedural institution tied in with the principle of publicity is the one dealing with oral statements of procedural activities especially in formal admission and filing of evidence, if this institution has been introduced as a general rule in the provisions of common law countries while those from a Roman line have ruled the principle of written submissions. However, in the latter, much has also been done to replace the text, as much as possible, for oral statements, by means of what has been called "open court". However, even when oral statements are sought in contemporary proceedings, it is not easy to instill since it requires a series of assumptions that are difficult to obtain, including those concerning court facilities and infrastructure. The main obstacle, in addition to economic issues, lies in the number of cases that weigh the judges down, hindering them from presiding hearings that they then delegate to other legal officers.
51. One important aspect of due process concerns true equality in rights for all parties, as drawn from the universal principle of equality of all citizens, set forth in Article 1 of the 1789 Declaration of the Rights of Man and Citizen. This principle implies the existence of two parties in equality of arms. Thus, the principle of adversarial proceedings in modern proceedings demands that equal opportunity be given to the plaintiffs for arguing and presenting their claims. As mentioned above, this requires that advantages and privileges be given to the weaker party so it may stand at the same level as the one with more economic and professional resources.
52. B) Along these lines, the need to confer equal terms for filing evidence to both parties has been pointed out. This means a balanced and reasonable occasion for the plaintiffs so that they can offer, and if necessary, intervene in the filing of evidence, considering that the evidence has transcendental bearing on the process, since the essence of the sentence laids on said evidence. In view of this, one of the most essential aspects of the right to defense is the plaintiffs' ability and possibility to fully demonstrate the basis of what they seek. Therefore, the principle of adversarial proceedings has gradually been set on the means of evidence, according to which both parties can intervene in presenting evidence on an equal status under the guidance of the judge.
53. In a criminal proceeding, which has been regulated with more details in both internal provisions and international instruments, equality of the parties -that is, of the accused and the Public Prosecutor and the private complainant, if the case, and more recently the victim of the crime- is attained by means of two basic principles that are set forth in said provisions and instruments. These principles are the presumption of innocence and the in dubio pro reo that allow balance between the accusation and the defense. However, we believe that the victim of the crime should be granted greater participation in the criminal proceeding, especially in provisions that establish the monopoly of the public prosecutor in exercising criminal action.
54. C) One of the elements of due process that has been insufficiently regulated in constitutional statutes and international instruments but which we consider fundamental is the one referring to precautionary measures. These measures focus on safekeeping the substance of the proceeding and the effectiveness of the underlying sentence. In terms of legal protection of fundamental rights, precautionary measures are essential for avoiding irreparable culmination of violations to those rights, as discussed in the first part of this paper.
55. Since it deals with protecting personal freedom and integrity, constitutional precepts and international instruments have specifically regulated two important provisional remedies: preventive arrest on one hand and release on bail on the other for the accused in both the preliminary proceeding and in formal criminal action.
56. However even when dealing with ordinary subjective rights or protecting legitimate interests, balanced regulation of precautionary measures is essential to the effectiveness of due process. In the absence of a proper regime of said measures, the ruling can become immaterial, especially because of the duration of the proceedings due to the caseloads of public conflict-solving agencies and even more so in those of the courts. More precise regulation of provisional remedies in the texts of constitutions and international instruments would be beneficial.
57. As said before, in dealing with the protection of fundamental rights, the need for precautionary measures is evident because the risk of committing violations to said rights is more notable than when it occurs to other rights and legitimate interests. Therefore, stricter provisional remedies have been established in internal provisions than they have been in those governing other legal conflicts. These include urgent measures that are granted without the opportunity of being heard by public authorities or social sectors to which the violations are attributed in a situation of predominance, for the purpose of paralyzing the allegedly breaching behavior and when possible to partially redress those affected in exercising their rights and thus avoid the irreparable culmination of violations or that cause damage that is very difficult to redress.
58. As examples, we can cite the powers that have been granted to international organisms to enact precautionary measures. These attributes are broader in the case of those with roles as human rights protectors. In fact, even though the International Court of Justice has the power to enact provisional remedies since the conflicts presented to it usually refer to the rights of the States, it has rarely exercised this power. This is especially true when it deals with an indirect effect on the rights of individuals or social groups. This can be similarly stated about the remedies the European Court can order.
59. The same does not happen in dealing with the precautionary measures that international organisms can enact or order. In the European system, these faculties are not expressly set forth in the Convention of Rome, but are in their respective regulation. As to the European Court, Rules of Court Rule 39 in effect as of November 1998 grants the president of the corresponding chamber the power to indicate any interim measure which it considers should be adopted in the interests of the parties or of the proper conduct of the proceedings. Notice of these measures is to be given to the Committee of Ministers of the European Council.
60. The doctrine points out that the power to adopt or decree provisional remedies are much broader in Inter-American human rights protection agencies and they are directly regulated in the American Convention and developed by statutes of the Commission and of the Inter-American Court. In fact, Article 63.2 of the American Convention states: "In cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons, the Court shall adopt such provisional measures as it deems pertinent in matters it has under consideration. With respect to a case not yet submitted to the Court, it may act at the request of the Commission. [My italics]."
61. The Inter-American Commission does not have the power to enact provisional measures, but based on what is established in Article 25 of its rules of procedure (entitled precautionary measures), in urgent cases and whenever necessary to avoid irreparable harm, the Commission may request that the State concerned adopt precautionary measures to prevent irreparable harm if the claimed acts are true. According to the same article, if the Commission is not in session, the President, or, in his or her absence, one of the Vice-Presidents, shall consult the other members, through the Executive Secretariat, on the application of the provision in the previous paragraph. If it is not possible to consult within a reasonable period of time, the President shall take the decision on behalf of the commission and shall so inform its members. The granting of such measures and their adoption without constituting prejudgment on the merits of a case is clarified in this article.
62. On the contrary, the attributes to enact needed provisional remedies are quite broad regarding the Inter-American Court, according to that which the convention sets forth in the above provision. This provision was further developed by Article 25 of its Rules of Procedure, under the heading precautionary measures. Regulatory provisions state that in serious and urgent cases, and whenever necessary to prevent irreparable harm to persons, the court, at any stage of the procedure, may, on its own initiative or at the request of a party, order said precautionary measures. In the cases not made known to the commission, but that are pending, the commission may request that the court order said precautionary measures. The cited measures can take on a trait of urgency when so requested by the President if the court is not in session, for the purpose of ensuring the effectiveness of the precautionary measures the court may take in its next period of sessions. The court shall include a list of the precautionary measures it has ordered, as well as the cases in which said measures were not duly carried out, in its annual report to the OAS General Assembly, along with the recommendations the Court deems fitting.
63. The Inter-American Court has ordered provisional remedies in the cases made known to it quite frequently. However, the Inter-American Commission requests most of these remedies for the cases in process before said commission. It can be said that to a large extent, the States involved have complied with the measures ordered and have regularly informed on their fulfillment. This has been very beneficial to avoid committing the claimed violation or to protect the people linked to the respective causes and who were in danger or had been threatened. The reason for this, unlike the much more limited powers of the European Court, is due to the diverse nature of the violations to fundamental rights that are first claimed before the Inter-American Commission and later clamed before the court, because inertia from the security forces of the authoritarian governments that have evolved into more democratic regimes can still be observed in Latin American countries.
64. One last essential aspect of the due process refers to justification of the decision rendered by national human rights protection agencies. This demand is even more severe when regarding jurisdictional sentences. In several domestic constitutional provisions, this requirement has been expressly established, even when the repeatedly cited international instruments are not considered. However, European Human Rights Court jurisprudence has analyzed this aspect because it believes that the arguments base of the sentence are necessary for the affected individual can duly contest them. Furthermore, another aspect of the grounds of rulings refers to the coherence of legal reasoning, according to which the sentences should decide all and only the issues presented in the process.
65. We have already pointed out that United States of America Federal Courts of Law jurisprudence and, to a certain degree, the Argentinean Supreme Court, consider coherence or reasonability of the rulings the core aspect of due process of law.9 To the contrary, the requirement of grounds of the rulings is expressly set forth in Articles 51, Section 1 of the Convention of Rome and Article 66, Section I of the American Convention, regarding the sentences ruled by the European and American Human Rights courts, respectively.
V. COMPETENT, INDEPENDENT AND IMPARTIAL JUDGE OR COURT
66. A) One of the essential elements of effective legal protection consists of the requirement for a competent judge. This means that plaintiffs cannot be subjected to the jurisdiction of a judge or court established after the acts that gave rise to the conflict, that is, the so-called special or ad hoc courts of law. (This differs from the specializing courts in certain issues or over specific regions.) This principle is especially applied in military courts of law, whether in emergency situations (in most cases), as well as in normal periods, in which they are unduly given information of behavior attributed to civilians.
67. Overstepping the boundaries of military jurisdiction has been particularly seen in extraordinary situations due to internal or external conflicts. In these situations, and especially in proclamations of emergency made by authoritarian governments, it is common to have civilians placed under the jurisdiction of military courts because they are assumed to be dissidents. One clear example is that of the predominantly military governments that were established in Latin America in the seventies and the eighties.
68. According to United Nations Special Rapporteur for States of Emergency Leandro Despouy's report on Human Rights and States of Emergency,10 declarations of a state of emergency issued by authoritarian governments often replace the public nature of hearings with individuals believed to be in opposition being tried in secret by a military court, which clearly violates the fundamental right to a competent judge. Despouy cites the predominantly military Latin American governments of the sixties to the eighties of the 20th century, which transformed states of emergency into instruments of oppression towards political dissidence.
69. More recently, we can cite the administration of Peruvian President Fujimori as an example of this use of military courts to try civilians accused of terrorist activity. This was especially true after the 1992 "self-coup" since anti-terrorist legislation was modified to outline two criminal offences that were not defined precisely. The most serious activities were unduly defined as "treason against the nation" and trial of the accused civilians was entrusted to military courts of law. Meanwhile, information about other acts deemed to be "terrorism" was entrusted to ordinary courts of law.
70. The above definition brought about unusual situations, such as the conviction of foreign nationals for having committed "treason against the nation", as well as clear violation to the right to defense and due process. This was highlighted by the Inter-American Court of Human Rights in several verdicts, especially in its judgment on the Castillo Petruzzi et al. case made on May 30, 1999, which was presented by the Inter-American Human Rights Commission against the Republic of Peru after a "faceless" military tribunal tried four Chilean nationals and sentenced them to life imprisonment on the charges of treason under Decree-Law number 25,659.
71. In addition to the other violations indicated by the Inter-American Commission and accepted by the court, the court expressly determined that:
...Transferring jurisdiction from civilian courts to military courts, thus allowing military courts to try civilians accused of treason, means that the competent, independent and impartial tribunal previously established by law is precluded from hearing these cases. In effect, military tribunals are not the tribunals previously established by law for civilians. Having no military functions or duties, civilians cannot engage in behaviors that violate military duties. When a military court takes jurisdiction over a matter that regular courts should hear, the individual's right to a hearing by a competent, independent and impartial tribunal previously established by law and, a fortiori, his right to due process are violated. That right to due process, in turn, is intimately linked to the very right of access to the courts.11
72. This was one of the cases that brought into being the document presented by the Peruvian government to the OAS Secretary General on July 9, 1999, in an attempt to unilaterally withdraw its recognition of the jurisdiction of the Inter-American Court. This situation was later rectified by the interim government that was formed with the Peruvian Congress' ousting of President Fujimori. Furthermore, in its competence judgment dated September 24, 1999, the Inter-American Court considered inadmissible Peruvian State's purported withdrawal of the declaration recognizing the contentious jurisdiction of the Court effective immediately (since said state would have had to file claims against the American Convention of Human Rights, which it had not done, and to give 12-months' notice for its withdrawal to be valid, according to that which is set forth in the convention). Peru therefore decided to continue with the proceedings of two other pending cases filed by the Inter-American Commission against the same State.
73. B) Another basic principle of conflict-solving agencies, especially those that exercise judicial power and authority, lies in the existence of an ndependent and impartial judge, as set forth in almost all internal constitutions and in the international human rights instruments mentioned above.
74. This principle is considered so important that in its resolutions 40/32 and 40/146 dated November 29 and December 13, 1985, respectively, the United Nations General Assembly issued their Basic Principles on the Independence of the Judiciary, which were adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from August 26 to September 6, 1985. The first principle states that: "The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary."
75. The independence of judges and courts of law was the result of a historical evolution. Though absolutist monarchies were subject to and depended on the sovereign, the French Revolution recognized said independence by implementing the separation of powers, but following Baron de Montesquieu's ideas of judges as those who should only pronounce the precise text of the law and cannot moderate its force or rigor. The 1790 Code of the Judiciary, enacted by the National Assembly, saw judges as simply the mechanical enforcers of the law, subject to the interpretation of the legislative body, through the Tribunal de Cassation as a body of the National Assembly. However, in 1837 said body was dissolved and replaced by the Cour de Cassation as the head of the ordinary Judiciary Branch (while the Conseil d'Etat, which is officially subordinate to the Executive branch, was created for administrative conflicts). At that time and in continental Europe, judges had a limited role, hence the expression administration of justice. Real judicial power was not thought to exist until the mid-19th century when judges were gradually recognized as having a real power to interpret and create through jurisprudence.
76. On the other hand, in England, judges enjoyed more autonomy and had early recognition of their creative work, as indicated by the expression judge-made law. This principle extended to the English colonies and with time to the so-called common law system, which has a predominantly jurisprudential nature compared to Continental Europe's legislative domain.
77. However, nowadays, the importance of judicial role and the power of jurisprudence are acknowledged in most national Constitutions and internal laws. Therefore, judicial independence is a common principle in contemporary provisions and has been reinforced by international instruments. Moreover, due to the judicial review of the Anglo-American provisions that came into being in the United States of America in the late 18th century, as well as the establishment of courts of law and constitutional courts throughout Continental Europe and those now included in numerous provisions, judicial power has acquired preeminence, especially when it is deemed the ultimate interpreter of the norms, principles and values of constitutional provisions.
78. Thus, the second basic principle of judicial independence established in the abovementioned document12 states: "The judiciary shall decide matters impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason."
79. The concepts of judicial independence and impartiality are closely linked. The first refers to external factors and the second, to the judge's position before the parties of a given process. If, as stated, the autonomy of the courts is reasonably recognized by other bodies of public power, including the hierarchy of the judiciary, judges nowadays possibly receive much stronger external pressure than pressure of a public nature, such as from the media, especially in processes that receive more coverage, as well as from organized crime, which often attains international importance, as manifested in certain Latin American countries in which there is significant drug trafficking or production controlled by drug lords.
80. Without going into the complex problems above, we can point out that independence and impartiality of judges and courts of law has been ensured by so-called legal guarantees, such as those about selecting, preparing and appointing and promoting judges; the stability in their capacity, whose best instrument is legal unremovability; adequate pay; the right of self-organization; pertinent procedural immunity; responsibility and authority. This last one is through the assistance of other bodies of power so that the courts of law may enforce their rulings.
81. It would be complicated to refer to each of these instruments that are established and governed by internal statutes and some international instruments, such as the cited United Nations Declaration of Principles. As one important aspect of the mechanisms guaranteeing the independence of the judiciary, we can mention the institution known as the Council of Magistrates or of the Judiciary. These councils arose as a constitutional body in Continental European provisions after the Second World War and has spread to other legal families or traditions with different tones and modalities. In general terms, however, they aim to prevent external influences, for example those of Ministries of Justice, to achieve what has been called self-government of the judiciary. It is formed not only of judges and magistrates, but also of legal scholars, to thus avoid a closed and inbred system.
82. Said agencies get involved to organize legal professional growth by means of competition and promotions. They are generally in charge of the training or refining institutes for legal personnel. They have the power to permanently audit judges' activities and impose disciplinary sanctions by means of an adversarial proceedings and based on the defense of those affected.
83. As to impartiality, procedural provisions lay down the mechanisms for establishing mandatory restrictions on the judge. The judge should voluntarily withdraw from any knowledge of a case if there is family relationship, friendship or enmity with the parties or personal interest in said case. If the judge does not do so, the affected party has the right to challenge him for certain justified reasons, which can direct the corresponding judicial official's responsibility.
84. Doubts have arisen about the independence and impartiality of military courts, especially because of experiences in Latin America. It should be noted that military courts of law have been substantially reformed in most modern provisions. In addition to limiting their jurisdiction exclusively to acts of members of the armed forces while in service, these courts have also likened their procedures to those established in codes of criminal procedures, based on the principles of due process that have also been determined in the cited international instruments.
85. With reference to the ruling on the cited Castillo Petruzzi et al. against the Peruvian government pronounced by the Inter-American Court of Human Rights on May 30, 1999,13 it was held that:
Under Article 8(1) of the American Convention, a presiding judge must be competent, independent and impartial. In the case under study, the armed forces, fully engaged in the counter-insurgency struggle, are also prosecuting persons associated with insurgency groups. This considerably weakens the impartiality that every judge must have. Moreover, under the Statute of Military Justice, members of the Supreme Court of Military Justice, the highest body in the military judiciary, are appointed by the minister of the pertinent sector. Members of the Supreme Court of Military Justice also decide who among their subordinates will be promoted and what incentives will be offered to whom; they also assign functions. This alone is enough to call the independence of the military judges into serious question.14
86. C) Meanwhile, evolution leading to the recognition of the principles of due process, such as that of independence and impartiality of the authorities that in administrative procedure have the authority to solve administrative conflicts with individuals when consistent, is noted in numerous internal statutes. This development has been acknowledged by European Human Rights Court jurisprudence, which has applied provisions regarding Article 6 of the Convention of Rome to its administrative procedure. We have already pointed out that this jurisprudence has been included in Article 41 of the Charter of Fundamental Rights of the European Union, under the title of Right to good administration.15
87. The concern about the efficient performance of law enforcement, especially in the field of fundamental rights, is seen in the statement formulated by the World Conference on Human Rights held in Vienna in June 1993. As to this, it established:
(27) ...The administration of justice, including law enforcement and prosecutorial agencies and, especially, an independent judiciary and legal profession in full conformity with applicable standards contained in international human rights instruments, are essential to the full and non-discriminatory realization of human rights and indispensable to the processes of democracy and sustainable development...
VI. THE SIMPLE AND BRIEF PROCEDURE, REASONABLE TERM AND UNDUE DELAYS
88. In the first part of this short study, we pointed out that the effectiveness of legal human rights protection instruments require that they be carried out simply and rapidly, as set forth in articles XVII of the American Declaration, and 25 of the American Convention on Human Rights. Meanwhile, articles 8 of the Universal Declaration; 4, section 3, clause a) of the International Covenant on Civil and Political Rights, and 13 of the European Convention, all on human rights refer to effective recourse. Therefore, for us, it implicitly includes simplicity and brevity in the corresponding procedure since these instruments make reference to a reasonable term.
89.Simplicity refers to the absence of unnecessary formalities in processing human rights protection mechanisms, and to the brevity or speed a decision is made, within the shortest time possible. In general, we can state that these requirements are usually fulfilled in the procedures established in internal statutes, especially in protecting personal freedom or integrity through a habeas corpus. Formalism and delays result in a complete inefficiency of this instrument since it is admissible for arrests or mistreatment caused by administrative authorities outside the legal procedure, that is, during the stage of preliminary investigation carried out by the police and the Public Prosecutor.
90. On the right to an amparo and similar instruments, national provisions have aimed at simplifying the procedure for the purpose of resolving them in the shortest time possible. Although it is not always possible in practice to apply these principles when competent judges and courts of law have an excessive accumulation of cases, there is a tendency to give priority to habeas corpus and amparo proceedings, over ordinary proceedings.
91. However, it is possible to point out that these two elements, simplicity and brevity, are more apparently complied with in dealing with processing claims before the non-jurisdictional agencies that have been set up, based on the Scandinavian Ombudsman model, in a large number of modern provisions that correspond to various legal families or traditions under many different names, as mentioned in the first part of this paper. The success of this instrument, which -as doctrine has pointed out- has basically become "a universal institution", is precisely due to simple processing of claims because formalities are reduced as much as possible and speed is sought in rulings. However, it should be taken into account that said agencies only issue recommendations, which lack the implication of being mandatory unless the authorities to which they are expressly directed accept them (and hence become mandatory). Therefore the procedural formalities of the judges and the courts, both of which offer substantial support in resolving on a significant number of legal conflicts, do not have to be strictly fulfilled and would otherwise be carried out, for the most part, in courts of law. However, said non-jurisdictional agencies must uphold the basic principles of adversarial proceedings and of the independence and impartiality of those in charge of the investigation and of formulating recommendations.
92. While the mentioned international instruments do not make specific reference to these non-jurisdictional institutions, their relatively satisfactory performance in a number of internal statutes has led them to be recognized around the world. Therefore, Article 41 of the recent Charter of Fundamental Rights of the European Union regulates the existence of the Ombudsman (translated as Defensor del Publo in the Spanish Constitution and in most of the Latin American provisions which have established it), and states that:
Any citizen of the Union and any natural or legal person residing or having its registered office in a Member State has the right to refer to the Ombudsman of the Union cases of maladministration in the activities of the Community institutions or bodies, with the exception of the Court of Justice and the Court of First Instance acting in their judicial role.
93. Even though said precept refers to the concept we consider restricted to maladministration, the fact that this agency is included in a charter of fundamental rights implies that the new European body should look towards the protection of not only citizens' legitimate rights and interests according to common norms, but also basically and preferably to protect human rights in an administrative scope, as established in constitutional provisions and in international instruments, especially those cited in the Charter of Fundamental Rights of the European Union. This notion is based on the evolution observed in this non-jurisdictional institution over the last years, especially since it has been set forth in the constitutional provisions of Portugal and Spain (countries which were under authoritarian regimes for a long period of time), as well as in a significant number of Latin American laws.
94. Besides the instruments mentioned above, the absence of excessive formalities and the speed of the procedure has been very difficult to attain as set forth in modern provisions in most of the processes brought before judges and courts of law, despite the great efforts made to implement these principles.
95. One of the most serious flaws in legal processes lies in the resistance seen in practice to reduce excessive formalism and to expedite the procedure. This is essentially due to the accumulation of processes derived from a rise in economic and social relations and the often-uncontrollable population growth in an important sector of a nation, as well as the increasing trend to make conflicts more technical.
96. One practically universal concern lies in the need for reforming court organization and procedural codes. While notable attempts have been made, even by applying cutting-edge technology, we cannot say that spectacular results have been obtained, except in some sectors. In spite of the above and the constant growth in the number of judges and courts, and their diversification through a growing specialization in different matters, backlog should be considered a legal illness. If we look for a medical equivalent, it is similar to cancer or AIDS, for which despite indisputable scientific advances an effective cure has yet to be found.
97. The above should not discourage the both national and international efforts in perfecting the organization and performance of courts of law and procedural codes, sectors in which indubitable progress has been observed in recent years. The work led by the notable Italian scholar Mauro Cappelletti cited above,16 which he later published under the title Accés a la Justice et État-Providence,17 points out that great effort has been made for legal reform. This reform includes modifications in court of law procedures and were gathered under the name of oral statements,18 which is tied in with critical assessment of evidence, consolidation of procedures, the judge's immediate contact with the parties and witnesses, as well as the participation of active judges that seek the truth and try to make the parties equal.
98. All the above has been merged with the establishment of conflict solving instruments that assist courts of law in their excessive workload. Some of these instruments are the use of conciliation, mediation and arbitration,19 and in the administrative sphere, the non-jurisdictional human rights protection agencies based on the Scandinavian Ombudsman model, mentioned repeatedly.
99. We can state that to solve the complex problems that affect the performance of courts of law, numerous judicial studies, as well as from the point of view of other social fields, have been made and continue to be carried out. As examples, we can cite the congresses organized by the International Association of Procedural Law, beginning with the one held in Ghent, Belgium, in 1978, entitled "Towards a Justice with a Human Face", the works of which were published in a book edited by Marcel Storme and Hélène Casman and entitled Towards a Justice with a Human Face.20 There are also several workshops promoted by the Instituto Iberoamericano de Derecho Procedural [Ibero-American Institute of Procedural Law] in which model civil and criminal procedural codes are discussed and approved. These codes have influenced Latin American provisions. This institute has recently published a collected work coordinated by Roberto O Berizonse entitled El juez y la Magistratura. Tendencias en los albores del siglo XXI [The Judge and the Judiciary at the Dawn of the 21st Century],21 which contains presentations given by institute members at the 9th International Congress of Procedural Law held in Vienna in 1999. This is just a sample of the vast collection of studies carried out in this field.
100. Principles on diverse aspects of the judicial role approved by the General Assembly and other United Nations bodies should also be cited. These principles refer to the independence of judges,22 the role of lawyers in their duties as Public Prosecutor, the victimof the crime and abuse of power, juvenile justice, and imprisoned minors, among others.
101. The principles of simplicity and brevity of the legal procedure are closely tied to that of the reasonable time in which legal conflicts should be resolved, and especially with those regarding fundamental rights, according to those set forth in several of the human rights instruments mentioned above. The violation of this principle results in undue delays as referred to in Article 24 of the 1978 Spanish Constitution, which is one of the most complete ones in regulating effective legal protection, as pointed out above.23
102. On interpreting that which is set forth in Article 6, paragraph I of the Convention of Rome, which establishes this norm related to reasonable term, the Strasbourg Court has established guidelines for this instrument in its jurisprudence. These guidelines have also been applied by the Inter-American Court of Human Rights in several cases claiming violations to Article 8, Section I of the American Convention, which also contains this principle.
103. Indeed, the European Court has taken four factors into account: a) the complexity of the case, b) the behavior of the claimant, c) the behavior of the legal or administrative authority before which the conflict was presented, and d) the consequences that ensue from the delay for the claimants. These factors should be examined individually in each case. After being assessed, they should be viewed as a whole. As to the first of these aspects, we should also take other elements into account, such the amount of evidence presented, the number of plaintiffs, the need to resort to expert opinion or evidence from abroad and the complexity of the legal aspects of the case.
104. The claimants' behavior is examined to see whether they have cooperated with the judge or have hindered the procedure by inactivity or whether the number of arguments are presented in such a way that they complicate processing. As to the behavior of judicial or administrative authorities, the caseload they need to handle and the number of proceedings they need to fulfill to reach a final and definite ruling are taken into account. Processing is deemed as requiring more urgency in criminal matters, especially if the accused is in pretrial detention and if a lack of procedural initiative is not used as an excuse. Meanwhile, it must be taken into account that other matters require more proceedings to be carried out by authorities, such as rulings on job-related cases, marital status or the mental health of the claimants, among others.
105. As can be seen, the evaluation criteria are complex and it has not been possible to set either terms or general criteria on the delay for national authorities' rulings on cases. Even then conclusions can be reached from the extensive jurisprudence of the European Court, like that in which a State can be deemed responsible for violating cited Article 6, clause 1, of the Convention of Rome, not only for delays in a particular case, but also for not having used the necessary resources to rectify the backlog or to remedy the deficiencies of its justice system that cause undue delay.
106. As an example of the application of the above European Court criteria on domestic law, we can point at Spanish constitutional court jurisprudence, since in Article 24 of the 1978 Constitution,24 it includes access to a process without undue delays as part of its effective legal protection laws. In fact, in several sentences, this court makes reference to the Strasbourg Court and states that the concept of undue delays should be considered undetermined and open and that it "requires the consolidation and assessment of the circumstances of the case to conclude the unreasonableness and the excessive nature of the delay, which having been caused by law enforcement bodies through 'dead time" in which no activity useful or used for the purpose of the trial was carried out." 25
VII. COMPLIANCE AND ENFORCEMENT OF INTERNATIONAL DECISIONS ABOUT RIGHTS PROTECTION AND FUNDAMENTAL FREEDOMS
107. This is one of the essential aspects in determining the effectiveness of human rights protection instruments, naturally including the fundamental rights of a procedural nature. This is not simple in either a national or international scope since those usually obligated to enforce rulings from legal and administrative conflict-solving bodies are mostly public authorities. It is general experience that the corresponding rulings are not carried out speedily, due to the obstacles derived from the privileged situation of authorities -at least in national provisions- in the State in which verdicts are issued, but neither are the decisions of international bodies easily enforced.
108. In addition to the domestic precepts on the obligation of enforcing rulings from judicial and administrative bodies established in national legislation, there are many precepts from international instruments that expressly set forth this obligation. In view of this, we can cite Article 2, Section 3, clause c) of the United Nations Covenant on Civil and Political Rights and Article 25, Section 2, clause c) of the American Convention on Human Rights, which establish the obligation of member States to guarantee fulfillment on behalf of the competent authorities of the decisions that may have been issued based on the resource presented against the violation of the claimants' fundamental rights.
109. Due to the obstacles for fulfilling conflict-solving agency rulings in internal statutes on behalf of public authorities, in the first part of this study26 and in the most advanced provisions of an objective nature, we pointed out that the State's direct inherit responsibility should be considered one of the complementary instruments for protecting fundamental rights, when reparation aimed at re-establishing victims' the human rights is not possible or very difficult. In both assumptions, an expeditious procedure for enforcing these rulings or corresponding compensation is needed. This has not been specifically established in most provisions, since they follow the established processing to fulfill the rulings against the corresponding State.
110. We have also provided some examples of legal regulation of the measures to redress or compensate serious and massive violations of human rights by authoritarian governments, as happened in Germany, Argentina and Chile, as well as the legal instruments recommended for restitution, compensation and rehabilitation for the victims of flagrant violations of their human rights and fundamental freedoms by the Special Rapporteur, distinguished legal scholar Theo van Boven, presented before this sub-commission on July 2, 1993. However, it cannot be confirmed that adequate systems have been implemented to attain the effective fulfillment of the rulings issued by internal bodies for the protection of citizens' fundamental rights.
111. However, we can mention some advances in terms of the more recent constitutional provisions, among which one established by article 30 of the 1999 Constitution of the Republic of Venezuela states:
Reparations to victims of human rights violations. The State has the obligation to make full reparations to the victims of human rights violations for which it may be held responsible, and to the legal successors to such victims, including payment of damages. Effective legislation. The State shall adopt the necessary legislative measures and measures of other nature to implement the reparations and damage compensation provided for under this article...
112. We should also mention the fulfillment and carrying out, if the case, of international human rights protection agency-issued rulings by the States accused of violating said rights and fundamental freedoms. As to the recommendations or reports on individual cases from the European Committee until its dissolution in November 1998 when Protocol number 11 of the Convention of Rome entered into effect; from the Inter-American Commission and the United Nations Committee. In principle, these recommendations lack the implication of being mandatory, even when there is the obligation of the corresponding States to heed them. However, even when they are accepted, these recommendations become mandatory and should be followed by the States that have approved them.
113. On the other hand, the rulings of the European and Inter-American courts of Human Rights are mandatory for States accused of violations according to that which is expressly stipulated in articles 53 and 68 of the European and American conventions, respectively. However in practice, there are differences in the manner of fulfillment in both systems, since European international courts have left the execution of sentences that establish the responsibility of the States accused of violations to domestic law procedures. Only under the assumption that said fulfillment would have been deficient or unsatisfactory has the European Court condemned the corresponding States to pay fair compensation, according to the terms of article 50 of the Convention of Rome.
114. Even though section II of cited article 68 of the American Convention establishes that part of the ruling that stipulates compensatory damages may be carried out in the corresponding country by the internal procedure in effect for fulfilling sentences against the State, and which apparently could have had similar consequences to those of article 50 of the European Convention, in practice, the Inter-American Court decided, as of the first cases brought before it, to directly apply international law because of the notorious deficiency of these procedures in regional domestic laws. Therefore, the form and terms in which sentences should be enforced by the States responsible for the corresponding violations were determined in its preliminary resolutions.
115. In the regional European system, recommendations from the corresponding committee have had a surveillance mechanism for enforcing its decisions. At least, this was the case from 1954 when it began operation until November 1998 when it was dissolved. In any case, compulsory sentences from the European Court preserves this mechanism through the Committee of Ministers of the Council of Europe, under the terms of articles 31-32 and 54 of the Convention of Rome, respectively, which grants reasonable effectiveness in the fulfillment of said recommendations.
116. The American fundamental rights protection system lacks a mechanism similar to the one entrusted to the Committee of Ministers of the Council of Europe. The only relevant provisions in the American Convention, that is, articles 51, section 3, and 65, establish mechanisms that are too weak to audit the fulfillment of commission reports and court sentences. In the case of commission reports, only with the publication of the definite recommendation -and if it is done by an absolute majority of the committee members- is it deemed that the corresponding State has not heeded the measures set forth in said report. This publication is included in the annual report to be presented before the General Assembly during its ordinary period of sessions. As to the court, said article 65 states specifically and with relevant recommendations that the cases in which a State has not fulfilled its rulings must be included in the annual report presented to the General Assembly itself.
117. As can be seen, while the European system has a body to audit court sentences, in the American one, the surveillance mechanism is very weak since the OAS General Assembly is not the appropriate body to back the fulfillment of Inter-American Court sentences. This has been proven in some cases, though few, in which the State implicated delays or hinders the fulfillment of said rulings. Therefore, we believe it is necessary to establish more responsive instruments that would allow the organization itself to audit the execution of court rulings.
118. Moreover, in addition to the mechanisms of the corresponding international organizations, that is, the Council of Europe and the OAS, to back the fulfillment of European and Inter-American court sentences, these instruments should be supplemented with internal procedures directly aimed at the execution of said sentences, in terms of corresponding redress and especially compensations. The procedures established in national provisions for enforcing sentences against the State are not -or are not completely- adequate since in the sphere of human rights, said procedures should aim at the effective and specific fulfillment of international rulings and even more so if they are definite and indisputable sentences.
119. In the internal European scope, it is very complicated to point out, even briefly, the different procedures used to fulfill European Court rulings because of the various monistic or dualistic criteria of incorporating from international law. However, in general terms, it has not been noted that specific procedural reforms to grant more effectiveness to the fulfillment of rulings of said court have been carried out. Therefore, it is sometimes necessary to resort to the compensatory mechanism of article 50 of the Convention of Rome, though in most cases the corresponding States voluntarily fulfill said rulings. Matters in which major difficulty is seen for enforcing Strasbourg Court sentences have been those related to the procedural violations set forth in article 6 of the Convention of Rome, especially when they have been carried out in a process that has been solved definitely and firmly by national courts of law.
120. In the Americas and especially in Latin America (taking into account that all Latin American States have recognized the contentious jurisdiction of the Inter-American Human Rights Court, while neither the United States of America nor Canada has signed the American Convention or even said jurisdiction) some progress to introduce specific legal norms that tend towards the fulfillment and execution of rulings by international bodies has been noted.
121. a) First of all we can highlight Peruvian legislation. While the 1993 Constitution in effect did not reproduce article 105 of the previous 1979 Constitution, in which the precepts included in human rights treaties had constitutional hierarchy and could not be modified unless done so by the governing procedure for the changes to the Constitution, the 1993 Constitution preserved the norm contained in article 305 of said fundamental law in its article 205 in effect. This article states that: "Having exhausted all domestic appeals, the party deeming itself injured in terms of the rights granted by the Constitution may appeal to international courts or agencies set up by treaties or agreements to which Peru is a subscriber."
122. In agreement with that set forth in the previous precept, article 40 of the Law of Habeas Corpus and Amparo originally published on December 8, 1992 when the 1979 Constitution was in effect, but which is still in effect with several modifications, establishes that:
The ruling of the international body to whose mandatory jurisdiction the Peruvian State finds itself subjected to does not require prior recognition, review or analysis of any kind for its validity and effectiveness. The Supreme Court of the Republic shall receive the rulings issued by the international body and shall order its fulfillment according to the internal norms and procedures in effect for the execution of the sentence.
123. Even though the above norm denotes progress in the legislation of a significant number of provisions in the region, it should be supplemented with a reform to internal procedures on the execution of sentences for the purpose of properly and specifically regulating the fulfillment of Inter-American Court rulings and the recommendations accepted by the commission and by the United Nations Human Rights Committee, if necessary.
124. b) Following this, we should point out Colombian law number 288 published on June 10, 1996. This law establishes the special procedures to make the compensation ruled by specific human rights bodies effective in favor of the victims of human rights violations. While article 2 of this ordinance only refers to the United Nations Human Rights Committee and to the Inter-American Commission, the general interpretation of said precept should also include Inter-American Court rulings, considering that the Colombian government expressly subjected itself to its jurisdictional powers in 1985.
125. c) A recent fundamental precept that should be stressed is the one in the second paragraph of article 31 of the 1999 Constitution of Venezuela since it may be the source of establishing specific procedures for the effective fulfillment and execution of international human rights protection agency rulings. This article entitled Enforcement of international body decisions states: "The State shall adopt, in accordance with the procedures established under this Constitution and by the law, such measures as may be necessary to enforce the decisions emanating from the international bodies as provided for under this article." In turn, the first paragraph of this article, which serves as a precedent to the one transcribed, states: "The right to petition international bodies. Every individual has the right, under the terms established by the human rights treaties, covenants and conventions ratified by the Republic, to address petitions and complaints to the international bodies created for said purpose, in order to request the protection of his or her human rights."
126. If it is the purpose of adequate regulation, the first precept mentioned in the paragraph above, along with the essays on this issue in Peruvian and Colombian legislation, could be a model for developing procedures that lead to the strict fulfillment and execution of international human rights protection bodies' rulings, including those that are more difficult to enforce, that is, those that point at procedural violations to the norms established by articles 8 and 25 of the American Convention.
Notes
* Researcher emeritus of the Legal Research Institute, former judge and president of the Inter-American Court of Human Rights.
1 Document E/CN.4/Sub.2/1994/24.
2 Paragraphs 36-57.
3 Gonzalez Perez, Jesus, El derecho a la tutela jurisdiccional, 3rd edition, Madrid, Civitas, 2001.
4 Cappelletti, Mauro (dir) Access to Justice, IV vols., 6 ts., Milan-Alphen aan den Rijn, Giuffré-Sitjoff and Noordhoff, 1978-1979.
5 Cappelletti, Mauro (dir.), El acceso a la justicia. La tendencia en el movimiento mundial para hacer efectivos los derechos, Mexico, Fondo de Cultura Economica, 1996.
6 Thompson, Jose, Acceso a la justicia y equidad. Estudio en siete países de América Latina, San Jose, Costa Rica, 2000.
7 See paragraph 5 above.
8 See paragraph 38 above.
9 See paragraph 40 above.
10 Despouy, Leandro, Los derechos humanos y los estados de excepción, Mexico, UNAM, 1999.
11 Paragraph 128 of the judgment. Italics are mine.
12 See paragraph 74 above.
13 See paragraph 71 above.
14 Paragraph 130 of the judgment. Italics are mine.
15 See paragraph 47 above.
16 See paragraph 11 above.
17 Cappelletti, Mauro (dir.), Accés a la Justice et État-Providence, Paris, European University Economic Institute, 1984.
18 See paragraph 50 above.
19 See paragraph 45 above.
20 Storme, Marcel and Casman, Héléne (eds.), Towards a Justice with a Human Face, Antwerpen-Deventer, Kluwer, 1978.
21 Berizonse, Roberto O., El juez y la Magistratura. Tendencias en los albores del siglo XXI, Buenos Aires, Culzoni Editores, 1999.
22 See paragraph 74 above.
23 See paragraph 9 above.
24 See paragraph 11 above.
25 Especially sentence number 133/1988.
26 See paragraphs 29-31 above.
