2010 in Review: IACHR Merits Reports

The Inter-American Commission on Human Rights has published two merits reports so far this year, having to do with deportation of non-citizens without consideration for humanitarian factors (against the United States) and impunity in the death of a journalist (against Brazil).  In addition to the two merits reports, the Inter-American Commission on Human Rights has published thirty-six favorable admissibility decisions, seven inadmissibility decisions, two friendly settlement reports, and thirty-seven decisions to archive petitions with unresponsive petitioners or in which the grounds of the petition no longer subsist.  The seven members of the Commission meet three times per year to review and decide upon admissibility and merits reports prepared by the attorneys of the Executive Secretariat, meet with petitioners, and discuss internal procedures; at two such sessions, the commissioners hold hearings on cases and on issues of concern.  The decisions published in 2010 were adopted at the Commission’s 138th Period of Sessions held in March.  The Commission can be expected to publish additional reports this year, which it  may have adopted at its summer or fall sessions.


In Wayne Smith, Hugo Armendariz, et al v. United States (mentioned previously on this blog here), the Commission concluded that “the United States violated Wayne Smith and Hugo Armendariz’s rights under Articles V [private and family life], VI [family], VII [protection for mothers and children], XVIII [fair trial], and XXVI [due process] of the American Declaration, by failing to provide an individualized balancing test in their removal proceedings”. IACHR, Report No. 81/10, Case 12.562, Wayne Smith, Hugo Armendariz, et al. v. United States, 12 July 2010, par. 66. The petitioners in the case were the Center for Justice and International Law (CEJIL), immigration law firm Gibbs Houston Pauw, and the Center for Global Justice.  In 2006, the Commission published its admissibility decisions in the separate petitions presented on behalf of the two men, and decided to consolidate their cases.

The victims, Wayne Smith and Hugo Armendariz, are citizens of Trinidad and Tobago and Mexico, respectively, who had been granted lawful permanent residency in the United States in the 1970s, after immigrating with their families when they were small children.  Both of the victims later married U.S. citizens, with whom they had children, and ran small businesses.  In the 1990s, both men were convicted on drug-related charges.

The federal government then initiated deportation proceedings against both men, whose convictions made them eligible for deportation under federal legislation enacted in the mid-1990s which expanded the definition of “aggravated felony” and eliminated judicial discretion to grant humanitarian relief against deportation for those convicted of such felonies.

Before the Commission, the U.S. government argued that the victims could have applied for citizenship before their convictions, and that States have broad authority to regulate immigration, the use of which did not violate the American Declaration in these cases.

In its merits report, the Commission held that a balancing test must be employed to weigh the State interest in preserving the general welfare against the fundamental rights of non-citizens.  Id., par 48 et seq. The Commission cited jurisprudence of the European Court of Human Rights and the U.N. Human Rights Committee and emphasized in particular the interests of minor children of the non-citizen.

Because the deportation proceedings against the two victims in the case did not involve the use of any balancing of humanitarian considerations against government interests, the Commission found the U.S. in violation of Articles V, VI and VII of the American Declaration.  Due to the corresponding lack of an opportunity to seek judicial review of their humanitarian defenses to removal, the Commission also found the State in violation of Articles XXVI and XVIII of the Declaration.

In summary, the Commission concluded:

it is well-recognized under international law that a Member State must provide non-citizen residents an opportunity to present a defense against deportation based on humanitarian and other considerations, such as the rights protected under Articles V, VI, and VII of the American Declaration.  Each Member State’s administrative or judicial bodies, charged with reviewing deportation orders, must be permitted to give meaningful consideration to a non-citizen resident’s defense, balance it against the State’s sovereign right to enforce reasonable, objective immigration policy, and provide effective relief from deportation if merited.  The United States did not follow these international norms in the present case.

Id., par. 5.

The Commission recommended that the United States permit the victims to return and reopen their immigration proceedings in a manner consistent with its decision, as well as implement laws to ensure the protection of non-citizens residents’ right to family life in removal proceedings.  Following notification of the decision in November of 2009, the Commission found that the State had not taken measures to comply with its recommendations. Id., par. 73. 


A petitioner at a hearing on the merits of the Smith and Armendariz case in 2007 (Credit: OAS)


In Manoel Leal de Oliveira v. Brazil, the Commission determined that Brazil was internationally responsible for violations of Articles 4, 13, 8 and 25 of the American Convention, due to its inadequate investigation of the January 1998 murder of journalist Manoel Leal de Oliveira, perpetrated in part by police agents. IACHR, Report No. 37/10, Case 12.308, Manoel Leal de Oliveira v. Brazil, 17 March 2010.   The petitioner in the case was the Inter-American Press Association.

Manoel Leal de Oliveira “was the editor and director of ‘A Região’ newspaper, which had a reputation for denouncing local authorities including judges, influential politicians, and police officials”.  Id., par. 59.  The investigation of his death had been archived in November of 1998, reopened in 2001 following pressure from civil society, and resulted in the 2003 indictment of three individuals, two of whom were acquitted in 2003 and 2005 and another who was convicted in 2003.  The Commission received no substantive response from the Brazilian government regarding the allegations.

In the combined report on admissibility and merits, the Commission concluded Brazil had violated: both its positive and negative obligations to protect the right to life (Article 4) because of State agents’ participation in the murder and irregularities in  and inadequacy of the investigation; the victim’s right to freedom of thought and expression (Article 13) because the State agents killed him to silence him and in reprisal for the information he published and the inadequate investigation would have had a chilling effect on other journalists; the family members’ right to due process and judicial protection (Articles 8 and 25) because the investigation lacked due diligence, was not concluded within a reasonable period of time, the homicide remains partially unsolved and unpunished; and, its obligation to ensure that all the organs of government in a federal system respect and guarantee the rights established in the American Convention (Articles 1.1 and 28) .  On this last point, the Commission explained:

The Inter-American Court considers that State signatories of the American Convention may not hide behind the argument that the author of a violation of a right enshrined in this instrument is a federated entity or a province. It is the understanding of the Court that the international provisions for the protection of human rights adopted by the American States must be respected by them regardless of whether theirs is a federal or unitary structure.

Id., par. 146 (internal citations omitted).  The Commission concluded, “Brazil did not take all of the necessary measures to guarantee and respect the rights to life, freedom of thought and expression, due process guarantees, and judicial protection in favor of Manoel Leal de Oliveira and his family members.  Therefore, it considers that while the actions giving rise to those violations may have been committed by agents and units of a federated entity, the international responsibility for them lies with the Federative Republic of Brazil, as does the obligation to make the respective reparations.” Id.,par. 150.

The Commission took note of an historical “pattern of impunity and the repeated murders of journalists in the exercise of their profession in Bahia state”, as well as “a state of persistent impunity in Brazil for crimes in which the civilian or military police are the main suspects”. Id., par. 139.

The Commission recommended, inter alia, that Brazil conduct a thorough investigation of the murder and of the irregularities in the criminal investigation, make reparations to the family members, “[t]ake steps to restore the historical memory of Manoel Leal de Oliveira and other journalists murdered in Bahia state in the 1990s”, and “[a]dopt, on a priority basis, a global policy of protecting the work of journalist and centralize, as a matter of public policy, efforts to combat impunity for the murders, attacks and threats perpetrated against journalists, through exhaustive and independent investigations of such occurrences and punishment of their material and intellectual authors.”

The Commission prepares its reports on the merits, which are then notified to the State.  Article 51 of the American Convention governs the Commission’s subsequent action; Article 51 states:

1.    If, within a period of three months from the date of the transmittal of the report of the Commission to the states concerned, the matter has not either been settled or submitted by the Commission or by the state concerned to the Court and its jurisdiction accepted, the Commission may, by the vote of an absolute majority of its members, set forth its opinion and conclusions concerning the question submitted for its consideration.

2.    Where appropriate, the Commission shall make pertinent recommendations and shall prescribe a period within which the state is to take the measures that are incumbent upon it to remedy the situation examined.

3.    When the prescribed period has expired, the Commission shall decide by the vote of an absolute majority of its members whether the state has taken adequate measures and whether to publish its report.

Articles 44 and 45 of the Rules of Procedure of the Inter-American Commission on Human Rights specify the factors involved in the Commission’s publication of a merits report or, in the alternative, its referral to the Court.

Article 44 of the Rules of Procedure establishes:

After the deliberation and vote on the merits of the case, the Commission shall proceed as follows:

1.       If it establishes that there was no violation in a given case, it shall so state in its report on the merits.  The report shall be transmitted to the parties, and shall be published and included in the Commission’s Annual Report to the OAS General Assembly.

2.       If it establishes one or more violations, it shall prepare a preliminary report with the proposals and recommendations it deems pertinent and shall transmit it to the State in question.  In so doing, it shall set a deadline by which the State in question must report on the measures adopted to comply with the recommendations.  The State shall not be authorized to publish the report until the Commission adopts a decision in this respect.

3.       It shall notify the petitioner of the adoption of the report and its transmittal to the State.  In the case of States Parties to the American Convention that have accepted the contentious jurisdiction of the Inter-American Court, upon notifying the petitioner, the Commission shall give him or her one month to present his or her position as to whether the case should be submitted to the Court.  When the petitioner is interested in the submission of the case, he or she should present the following:

a.       the position of the victim or the victim’s family members, if different from that of the petitioner;

b.       the personal data relative to the victim and the victim’s family members;

c.       the reasons he or she considers that the case should be referred to the Court; and

d.       the claims concerning reparations and costs.

Article 45 establishes:

1.       If the State in question has accepted the jurisdiction of the Inter-American Court in accordance with Article 62 of the American Convention, and the Commission considers that the State has not complied with the recommendations of the report approved in accordance with Article 50 of the American Convention, it shall refer the case to the Court, unless there is a reasoned decision by an absolute majority of the members of the Commission to the contrary.

2.       The Commission shall give fundamental consideration to obtaining justice in the particular case, based, among others, on the following factors:

a.       the position of the petitioner;

b.       the nature and seriousness of the violation;

c.       the need to develop or clarify the case-law of the system; and

d.       the future effect of the decision within the legal systems of the Member States.

Brazil has ratified the American Convention and recognized the jurisdiction of the Inter-American Court, while the United States has not.  However, the Commission decided to publish its merits reports, rather than referring the case against Brazil to the Inter-American Court , noting that “the Brazilian State has shown goodwill and important initiatives toward compliance with the recommendations” following notification of the decision to the State in November of 2006. Manoel Leal de Oliveira, pars. 160-85.

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