(Credit: Maria Patricia Leiva/OAS)
The Inter-American Commission on Human Rights (IACHR) has announced proposed changes to its Rules of Procedure, policies, and practices, which are open to public comment through March 1. The proposals are motivated by the Commission’s interest in increasing its transparency and effectiveness, but are also a proactive response to the ongoing reform process through which the General Assembly of the Organization of American States (OAS) will decide next month whether to impose other ‘reforms’ via its authority to modify the Commission’s Statute.
The Commission has stated that its proposed changes reflect its commitment to the principles of: “integral consideration” (of all recommendations made by civil society, States, and users of the Inter-American system), “strengthening the useful purpose of the Commission,” and “transparency.”
Between February 15 and March 1, 2013 the IACHR’s proposed reforms are open to public comment and observation. To submit comments on the proposed reforms, send an e-mail to [email protected] with the subject line “Consultation 2013.” Following the period of public consultation, the Commission plans to “deliberate and adopt its definite program of reform” and will publish the adopted changes along with their justifications. [IACHR]
The Commission’s proposals are divided into three modules, each addressing a different area: Module I focuses on the IACHR’s procedural rules, Module II addresses institutional policy priorities, and Module III concerns changes in practices not directly governed by the rules of procedure. The proposed reforms address many of the recommendations made by the OAS Permanent Council’s Special Working Group to Reflect on the Workings of the IACHR With a View to Strengthening the IAHRS (hereinafter “OAS Recommendations”) made in 2011, and they focus on four broad areas: promoting human rights, improving access to information, providing more procedural clarity, and changing the annual reporting process. These changes are summarized in the subsequent paragraphs and, below, each of the changes to the Commission’s Rules of Procedure proposed in Module I is described in specific detail.
Promoting Human Rights
The Special Working Group’s recommendations emphasized the Commission’s role in promotion of human rights and raised concerns regarding the lack of universality within the Inter-American System. In response, the Commission’s proposed reforms call for promoting universal ratification of Inter-American human rights instruments, including the American Convention and the Protocol of San Salvador, and sets forth plans for a study on universality in response to Recommendations VIII(ii)(1)(A)(a)-(c), and (6)(A). See Module II, § I(A); Module III, §§ III(A), (B), (C) and (D), and IV(A). Along these same lines, the reforms specifically call for stronger promotion of economic, social, and cultural rights, including with regard to the Commission’s Strategic Plan, in line with OAS Recommendation VIII(ii)(1)(A)(d). See Module II, § I(B); Module III, § III(h). Furthermore, the proposed reforms coincide with the OAS Recommendations in calling for a permanently-functioning presidency for the Commission, in contrast to the current, part-time nature of the Commission president’s role (as is also the case with the other six members of the Commission). See OAS Recommendation VIII(ii)(1)(A)(h); Module II, § I(C).
Access to Information
The ability of petitioners, States, and other users to access information about cases and legal criteria is another top priority for both the Commission and the OAS. See OAS Recommendations VIII(ii)(3)(A)(k) and (l). To this end, a number of proposed reforms focus on different methods of disseminating information about the Commission’s mandate and work. Proposed changes include publishing handbooks and guides on procedural and substantive topics, improving the search function of the Commission’s website, adding a user portal on the website, and increasing the online provision of information about cases. See Module II; Module III, §§ II, IV. Other proposed methods include issuing a pocket edition of the American Declaration, American Convention, and other human rights instruments, as well as translating a variety of documents into not just English and Spanish, but other languages as well. Module III, §§ III(F) and (G).
The proposed reforms also aim to increase transparency with regard to procedures and decisions relevant to precautionary measures, exhaustion of domestic remedies, and friendly settlements, as well as statistics about cases and petitions. See Module III, § IV(B), (C), (D), (E). These changes were also proposed in OAS Recommendations VIII(ii)(1)(A)(e), (f), and (g). More conferences, meetings, and presentations between the Commission, Member States, and civil society are also envisioned. See Module III, §§ III(I), (J), (K), (L), and V.
Procedural Requirements
The OAS Recommendations called for changes and/or increased clarity with regard to the Commission’s protection mechanisms in three main areas: processing of petitions and cases, precautionary measures, and friendly settlements. OAS Recommendations VIII(ii)(2)(A), (3)(A), and (4)(A).
Case Processing
The Commission’s proposed changes to its rules of procedure more clearly define and lay out the criteria for whether a petition is: opened for processing, declared admissible, or archived. Module I, Articles 28-30, 36, 42. Included in these proposed reforms are increased time limits and extensions for State responses. Module I, Article 30.
Precautionary Measures
The proposed reforms more concretely state under what circumstances the Commission may grant precautionary measures and more clearly define the terms the Commission uses when making that determination. See Module I, Article 25. The proposed reforms also provide greater detail about how the Commission will periodically review precautionary measures, including States’ compliance with them and the possibility of lifting or modifying the measures. Module I, Article 25(9)-(11); Module III, § VII. In addition, the proposed reforms call for more support for States in complying with precautionary measures, including developing timetables and organizing working meetings and visits from Special Rapporteurs. Module I, Article 25(10); Module III, § IV. See also OAS Recommendations VIII(ii)(2)(A)(d).
Friendly Settlement
In addition to creating a manual for States and training staff on the friendly settlement process, under the proposed reforms the Commissioners would play a large role in promoting and monitoring friendly settlements, including by creating and leading mediation teams. Module III, §§ III(L), IV(B) and (C). See also OAS Recommendation VIII(ii)(4)(A). Lastly, information about existing friendly settlements would be more quickly and widely available under the proposed reforms. Module I, Article 37; Module III, § IV(D).
Annual Reporting
The Commission has proposed significant changes to its Annual Report, particularly Chapter IV, which focuses on countries of most concern to the Commission. The OAS Recommendations had called for Chapter IV to include a review of all OAS Member States and proposed allowing States to provide comment before its publication. See OAS Recommendation VIII(ii)(5). While the Commission’s proposed reforms would continue its practice of highlighting countries of particular concern (in Chapter IV(B)), they also envision: including a hemispheric overview of human rights conditions (in Chapter IV(A)), giving the State an opportunity to reply before the annual report is published, and exempting a State from inclusion in Chapter IV(B) when that country has been the subject of an on-site visit that year. Module I, Article 59(2)(e), (3). The Commission also proposes specific criteria to be used in determining which countries to include in Chapter IV(B), lays out the structure for the full annual report, and identifies the sources to be used in its preparation. Module I, Article 59(5), (6) and (7). The proposed reforms also call for a consolidation of reports from Special Rapporteurs and Thematic Units, as was supported in the OAS Recommendations. See Module III, § I(C); OAS Recommendation VIII(ii)(1)(A)(i).
The specifics of the proposed changes to the Rules of Procedure are detailed below. For additional information on the Inter-American Commission and Court of Human Rights, see IJRC’s resources on the Inter-American System, which include an educational video and manual for advocates. To learn about the background and details on the ongoing reform process, see the previous post, “Understanding the IACHR Reform Process.”
Module I: Draft Reforms of the Rules
Module I includes the most in-depth and formal changes proposed by the Commission. The differences between the current Rules of Procedure and proposed reforms are as follows:
Article 25 – Precautionary Measures
1) The proposed reforms add reference to Articles 106 of the Charter of the Organization of American States and 41.b of the American Convention on Human Rights, as well as Article 18.b of the Statute of the Commission and the American Convention on Forced Disappearance of Persons. They further add language that precautionary measures “shall concern serious and urgent situations” and clarify that requests may or may not be “related to a petition” before the “organs” of the Inter-American system.
2) Defines the criteria used in issuing precautionary measures:
a) serious situation: a grave impact that an action or omission can have on a guaranteed right or on the eventual effect of a pending decision in a case or petition before the organs of the inter-American system
b) urgent situation: determined by information indicating that a risk or threat involved is imminent, can materialize, and requires an immediate response to remedy or prevent the act or omission
c) irreparable harm: damage to the rights of a proposed beneficiary that would not be susceptible to restitution or other redress
3) Specifies that precautionary measures are available to persons or groups of persons and adds a requirement that the person(s) or groups of persons must be identifiable either by their geographic location or as members of a specific group, people, community or organization.
4) Whereas the existing provision lists the factors the Commission must consider in determining whether to adopt precautionary measures, the proposed change lays out the information that must be included in a request for precautionary measures, specifically:
a) identifying information for the persons proposed as beneficiaries or information that allows them to be determined;
b) a detailed and chronological description of the facts that motivate the request and any other available information; and
c) the nature and scope of the requested measures.
5) This provision would require that, when the potential harm requires the Commission to grant (or deny) precautionary measures without first requesting information from the State, the Commission must review its decision as soon as possible, taking into account information received from all parties.
6) Periodic evaluation is replaced with factors the Commission will consider in determining whether to grant precautionary measures. The factors considered are the same as current paragraph 4.
7) The proposed change expands on specific factors the Commission will consider in determining whether to grant, extend, modify, or lift precautionary measures. They include:
a) a description of the alleged situation
b) consent from the beneficiary, or a reason consent was not obtained
c) information presented by State, if available
d) Commission’s evaluation of seriousness, urgency, and irreparability
e) time period the measures will be in place, if applicable
f) Commission member votes
9) Requires the Commission to periodically evaluate whether to maintain, modify, or lift precautionary measures, whether at its own initiative or by request from a party. Current paragraph 7 is included, but states “lift the precautionary measures” rather than “withdraws its request for the adoption of precautionary measures.”
10) The Commission will take appropriate follow-up measures for the granting, observance, and maintenance of precautionary measures, including requesting information from interested parties, timetables for implementation, hearings, working meetings, and visits.
11) The Commission may lift or review a precautionary measure when the beneficiaries or their representatives fail to provide a substantive response about the requirements for implementation without justification. This proposed change is similar to current paragraph 8.
12) The Commission may make a request for provisional measures to the Inter-American Court of Human Rights in accordance with Article 76. Any precautionary measures already granted by the Commission remain in place until the Court notifies the parties of its resolution of the request.
13) Where the Court rejects a request for provisional measures, the Commission will not consider a new request for precautionary measures unless there are new facts to justify it. The Commission may use other mechanisms to monitor the situation.
Article 28 – Requirements for the Consideration of Petitions
1) The proposed change deletes the name, nationality, and signature requirements of current subparagraph a, and instead requires simply the identification of the person or persons making the denunciation. There is an additional requirement that a representative from a nongovernmental organization (NGO) include the Member state in which the NGO is legally recognized.
2) A petitioner must include the reasons for requesting his or her identity be withheld from the State.
3) Requires the petitioner to provide an e-mail address as the primary means of receiving correspondence from the Commission.
Article 29 – Initial Processing
2) This provision formalizes the “per saltum” mechanism. Petitions will be studied in the order in which they are received, but may be expedited:
a) when the passage of time would deprive the petition of effectiveness, specifically when:
i) victims are older persons or children
ii) victim has a terminal illness
iii) when the death penalty will be applied to the victim
iv) when the petition is connected to a precautionary or provisional measure
b) when the victims are persons deprived of liberty
c) when the State formally expresses its intention to enter into a friendly settlement process on the matter
d) where:
i) the decision can repair serious structural situations affecting human rights
ii) the decision can promote changes in legislation or State practices and avoid multiple petitions on the same matter
Article 30 – Admissibility Procedure
2) The proposed change deletes the statement that the petitioner’s identity will not be revealed without his or her express authorization.
3) Increases the State’s time period to respond to the petition from two (2) months to three (3) months. Possible extensions for response time are also increased to four (4) months, from three (3) months.
Article 36 – Decision on Admissibility
3) This provision specifies the “exceptional circumstances” in which the Commission may defer its consideration of admissibility to coincide with its consideration of the merits. Exceptional circumstances for joint consideration of admissibility and merits include:
a) when an analysis of a possible exception to exhaustion of domestic remedies would inextricably be linked to the merits of the matter
b) where the Commission considers that the life or personal integrity of a person may be at risk in a case of seriousness and urgency
c) where passage of time would prevent the Commission’s decision from having a useful effect.
The requirement that the Commission notify both parties in writing when it decides to consider the admissibility together with the merits is moved from Article 36(3) to Article 36(4).
Article 37 – Procedure on the Merits
1) Increases the time for parties to submit additional observations on the merits to four (4) from three (3) months.
2) Possible extensions of the period to submit additional observations are increased to six (6) months from four (4) months.
3) “State” is replaced with “parties” when referring to the requirement that the Commission request additional observations on the merits be submitted within a “reasonable time” in serious and urgent cases.
Article 42 – Archiving of Petitions and Cases
1) This provision specifies additional instances in which the Commission may decide to archive a case, specifically when:
a) the information necessary for the adoption of a decision is unavailable, “despite attempts to secure such information”; or
b) the unjustified procedural inactivity of the petitioner constitutes a serious indication of lack of interest in the processing of petition.
3) The decision to archive will be final, except:
a) where there is material error
b) where there are supervening facts
c) there is new information that would have affected the Commission’s decision
d) where there is fraud
Article 44 – Report on the Merits
3) The proposed version removes current subparagraph 3.b, which requires a petitioner interested in the submission of a case to the Inter-American Court of Human Rights to provide personal data relative to the victim and the victim’s family members.
Article 46 – Suspension of Time Limit to Refer the Case to the Court
1) The proposed changes are included in subparagraph (a).
a) adds the requirement that the State must demonstrate its ability to implement the Commission’s recommendations (in addition to willingness), in order for the Commission to consider deferring referral of a case to the Court and extending the time period for State compliance. The Commission may take into account existing domestic legislation that establishes a mechanism for compliance with recommendations.
2) The Commission may consider certain factors in establishing the period for the suspension of the time limit for compliance / referral to the Court, including:
a) the complexity of the matter and the measures necessary to comply with the Commission’s recommendations
b) the measures towards compliance with the recommendations adopted by the State prior to the request for an extension, and
c) the petitioner’s position
Article 59 – Annual Report
1) The proposed change alters the structure of annual reporting, and the annual report shall be comprised of two volumes.
2) The first volume shall include the following:
a) Introduction consists of the information in current subparagraphs 1.g, 1.b, and 1.c.
b) Chapter I consists of the information in current subparagraphs 1.d and 1.e.
c) In Chapter II, a presentation of the state of the Petition and Case System, with the following information:
i) petitions under initial study
ii) petitions declared admissible and inadmissible and the respective reports
iii) merits reports issued
iv) friendly settlements approved during the period
v) archive reports adopted
vi) precautionary measures granted
vii) status of compliance with recommendations made in individual cases
d) In Chapter III, an account of the activities of its Rapporteurships, Special Rapporteurships and Thematic Units, including references to thematic or regional reports produced by them, as well as other promotional activities.
e) In Chapter IV,
i) Section A) will include an annual overview of the human rights situation in the hemisphere, derived of the Commission’s monitoring work, which shall identify the main tendencies, problems, challenges, progress and best practices of civil and political rights, and social, economic and cultural rights
ii) Section B) will include the special reports that the Commission considers necessary regarding the situation of human rights in Member States, pursuant to the criteria, methodology and procedure provided for in the following subparagraphs.
f) Chapter V consists of the follow-up reports referred to in the latter portion of current subparagraph 1.h.
g) In Chapter VI, an account of institutional development activities, which shall include information on financial resources and the execution of the Commission’s budget.
3) In a second volume of the Annual Report, the Commission shall incorporate country, thematic or regional reports adopted or published during the year, including those prepared by Rapporteurships, Special Rapporteurships and Thematic Units.
4) The Commission will apply the rules established in paragraphs 5 to 9 of this Article in the preparation of Chapters IV and V of its Annual Report, in the exercise of its mandate to promote and protect human rights and, in particular, its duty to inform the OAS Member States about human rights situations that may require a response from the political organs and priority attention from the Commission.
5) The Commission will utilize clear and convincing information from the following sources:
a) official acts of all levels and branches of government, including constitutional amendments, decrees, judicial decisions, policy statements, official communications to the Commission and to other human rights organs, as well as any other statement or action attributable to the Government.
b) information available in cases, petitions and precautionary and provisional measures in the inter-American system, as well as information on compliance by the State with recommendations of the Commission and judgments of the Inter-American Court.
c) information gathered in the course of on-site visits by the Commission, its Rapporteurs and members of its staff.
d) information obtained during hearings held by the Commission as part of its sessions.
e) conclusions of other international human rights bodies, including UN treaty bodies, UN Rapporteurs and working groups, the Human Rights Council, and other UN specialized agencies.
f) information from human rights reports issued by governments and regional organs.
g) reports by civil society organizations, as well as reliable and credible information presented by such organizations and prívate persons and
h) public information that is widely disseminated in the media.
6) The Commission will adopt the decision on the specific countries to be included in Chapter IV.B pursuant to a vote of the special quorum set forth in Article 18 of these Rules of Procedure. The criteria for including a State in Chapter IV.B of the Annual Report are the following:
a) serious breach of the core requirements and institutions of representative democracy mentioned in the Inter-American Democratic Charter, which are essential means of achieving human rights, including:
i) the democratically-constituted government has been overthrown by force or the existing government has otherwise come to power through means other than secret, genuine and free elections, pursuant to internationally accepted rules and principles reflected in the Inter-American Democratic Charter.
ii) there is discriminatory access to or abusive exercise of power that undermines or denies the rule of law, such as systematic infringement of the independence of the judiciary or lack of civilian control over the military;
iii) there has been an unconstitutional alteration of the constitutional regime that seriously impairs the democratic order.
b) The free exercise of the rights guaranteed in the American Declaration or the American Convention have been unlawfully suspended, totally or partially, by virtue of the imposition of exceptional measures such as a state of emergency, state of siege, suspension of guarantees or the Constitution, or exceptional security measures;
c) There is clear and convincing evidence from the sources mentioned in paragraph 5 of this Article that the State has committed or is committing massive, serious and widespread violations of human rights guaranteed in the American Declaration, the American Convention, or other applicable human rights instruments.
d) Other structural situations are present which, for different reasons, create situations that seriously affect the capacity of the State to ensure enjoyment of fundamental rights recognized in the American Declaration, the American Convention or other applicable instruments. Factors to be considered shall include the following, among others:
i) serious institutional crises that infringe the enjoyment of human rights;
ii) unwillingness or inability to combat impunity for previous widespread violations;
iii) consistent failure to adopt the necessary measures to make human rights effective or to comply with decisions and judgments of human rights monitoring organs;
iv) internal armed conflict.
7) When a State included in Chapter IV.B of the Annual Report has been the subject of an on-site visit, it will not be included in Chapter IV.B for the year corresponding to the visit. The monitoring of the situation of human rights for that year in that State will be carried out by means of the country report prepared in relation to the on site visit. Once the country report has been published, the Commission will follow up on compliance with the respective recommendations by means of Chapter V of its Annual Report. Thereafter, the Commission shall decide, in accordance with the present Rules of Procedure, if the monitoring of the situation of human rights in the respective country should be included in any of the aforementioned chapters of the Annual Report.
8) By means of Chapter V of its Annual Report, the Commission shall follow-up on measures adopted to comply with the recommendations issued in its country reports, thematic reports, or in reports previously published in Chapter IV.B.
9) Prior to publication of Chapters IV.B and V of the Annual Report, the Commission will transmit a preliminary copy of the Report to the State concerned. That State may send a reply within a maximum timeframe of a month from the transmission of the Report. This reply will be made available through a link on the Commission’s website, unless the State requests otherwise.
10) The Commission shall include in its Annual Report any other information, observation or recommendation that it considers pertinent to present to the General Assembly.
Article 72 – Experts
1) The proposed reform changes “other persons as witnesses or experts” to “expert witnesses.”
2) The proposed reform changes “witnesses or experts” to “experts.”
Article 76 – Provisional Measures
1) The proposed reform deletes the language providing that the Commission may request the Court adopt provisional measures to avoid irreparable damage to persons “in a matter that has not yet been submitted to the Court for consideration.”
2) The Commission shall consider the following criteria to present a request for provisional measures:
a) when the State concerned has not implemented the precautionary measures granted by the Commission;
b) when the precautionary measures have not been effective;
c) when there is a precautionary measure connected to a case submitted to the jurisdiction of the Court; or
d) when the Commission considers it pertinent for the efficacy of the measures, to which end it shall provide its reasons.
Article 79 – Amendment of the Rules of Procedure
1) The rules of procedure may be amended by an absolute majority of the members of the Commission only “after a public consultation.”