Volume 43 | Number 2 Spring 2008
Upholding Human Rights in the Hemisphere: Casting Down Impunity Through the Inter-American Court of Human Rights
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A. Velásquez Rodríguez
1. Narrative
Velásquez Rodríguez was a case about kidnapping, torture, and forced disappearance.58 According to the petition filed with the Commission, Manfredo Velásquez, a student at the Universidad Nacional Autónoma de Honduras, was forcibly detained by members of the National Office of Investigations (DNI) and G-2 of the Armed Forces of Honduras, without a warrant for his arrest.59 He was accused of political crimes and subjected to torture and interrogation at the Public Security Forces Station.60 However, the police and security forces denied that he was detained. Since the Commission received no response from the Honduran authorities to the petitions it transmitted regarding Velásquez, he was presumed to have disappeared.61
Subsequently, Sergeant José Isaías Vilorio, who had been summoned to serve as a witness for this case, was assassinated in Honduras.62 Then, Mr. Angel Pavón Salazar, who had already testified as part of the case was also assassinated in Honduras.63 The Court denounced the assassinations as “reprehensible.” 64
Because other witnesses had also been threatened based of their testimony before the IACHR, the President and Secretariat of the Court sent notes to the agent of the government of Honduras on November 6 and December 18, 1987. These notes requested the Honduran government to take the necessary steps to protect the lives, property, and well-being of those who had been threatened.65
As the basis of its authority for making such a request, the Court cited Article 1(1) of the Convention.66 The IACHR also looked to Articles 63(2) and 23(5) to take the provisional measures to avoid irreparable damage to persons in cases of extreme gravity and urgency. In addition, the Court ordered Honduras to investigate the assassinations and impose punishments under Honduran law.67
2. Judgment on the Merits
Velásquez Rodríguez was the Court’s first judgment on the merits of a contentious case and was decided on July 29, 1988.68 The Court ruled that Honduras violated the Article 7 right to personal liberty, the Article 5 right to humane treatment, and the Article 4 right to life in conjunction with Article 1(1) through its conduct towards complainant Angel Manfredo Velásquez Rodríguez. 69 All of these rulings were unanimous. The Court also unanimously decided that Honduras was required to pay fair compensation to the victim’s next-of-kin.70
3. Form and Amount
On July 29, 1988, the Court decided six votes to one (Judge Rodolfo E. Piza dissenting) that if the Commission and Honduras failed to come to an agreement on the form and amount of compensation within six months from the date of the judgment, the Court would retain jurisdiction and would settle the form and amount of compensation.71 The Court also unanimously determined that its approval was necessary regarding compensation, and that it was unnecessary at that time to make a decision on the question of costs.72
Nearly one year later, on July 21, 1989, the Court unanimously set compensatory damages at 750,000 lempiras (free from taxes) to be paid to the family of Angel Manfredo Velásquez Rodríguez.73 Moreover, the Court determined that it would supervise the entire indemnification, which could be paid in six monthly installments, the first being made within ninety days from the date of notification of the judgment.74 Appropriate interest rates applied.75
4. Commission and Government
Both the Commission and Government of Honduras came before the Court concerning compensation.76
B. Godínez Cruz
1. Narrative
Saul Godínez Cruz was a schoolteacher whose house was put under surveillance.77 He disappeared on July 22, 1982 after leaving his house by motorcycle at 6:20 a.m.78 He was on his way to his work at the Julia Zelaya Pre-Vocational Institute in Monjaras de Choluteca.79 A witness claimed that a man in a military uniform and two persons in civilian clothing put someone who looked like Godínez and his motorcycle in a double-cabin vehicle without license plates.80
Saul Godínez was a leader of a teachers’ group, had participated in several strikes, and was in the midst of planning a new strike when he disappeared.81 Godínez was then (presumably) tortured, executed, and clandestinely buried by agents of the Armed Forces of Honduras. His disappearance was part of a systematic and selective perpetration of between approximately one-hundred and one-hundred-and-fifty disappearances, which the government either assisted or tolerated from 1981 to 1984.82
2. Judgment on the Merits
The Court unanimously declared that Honduras violated Saul Godínez Cruz’s rights by breaching Articles 7 (personal liberty), 5 (humane treatment) and 4 (right to life) in conjunction with 1(1).83
Accordingly, the Court awarded 650,000 lempiras to the family of Saul Godínez Cruz,84 to be paid tax-free ninety days from the date of notification, as in Velásquez Rodríguez.85 The Court assumed responsibility for supervising the implementation and would close the case upon full compliance.86
C. Clarification of the Velásquez Rodríguez and Godínez Cruz cases
On September 29, 1989, delegates of the Inter-American Commission on Human Rights in the Velásquez Rodríguez case, asked the President of the Court to clarify and interpret the compensatory damages judgment of July 21, 1989.87 They made an identical request for the Godínez Cruz case.88 The Commission based its motions on Article 67 of the American Convention (disallowing appeal, but allowing for interpretation by the Court) as well as Article 48 (allowing for the participation of the Honduran government by “written observations”) of the Rules of Procedure of the Inter-American Court of Human Rights.89
The Commission’s concerns stemmed from the effect that inflation and currency devaluation would have on the monetary awards for the concerned children in both cases. Some of the children involved would not receive their payments for nearly two decades.90 Given how inflation and currency devaluation had been historically common in Latin America, the Commission was concerned that future devaluation would diminish the value of court-ordered damages.91 As they stated in their brief, the Consumer Price Index (CPI) had risen 721 percent in Latin America as a whole from 1983 to 1988, or 144 percent per annum.92
In Honduras, CPI increases had been milder, but a trust set up with 562,500 lempiras in 1971 would be worth only 147,127 lempiras in 1989.93 The lempira had stayed steady (about two lempiras to one dollar) vis-à-vis the dollar over the previous fifty years, but when the Commission petitioned the Court for clarification, the lempira was declining in relation to strong currencies, such as the dollar.
The Commission therefore suggested that the value of the capital placed in trust be calculated as a fixed purchasing power rate of lempiras that would be grounded by its value in dollars.94 This approach could still cause the beneficiaries to lose purchasing power as the dollar devalued, but the dollar’s decline would likely not be as precipitous as the currency of many Latin American countries. In addition, this approach had the functional benefit of relative simplicity and clarity for all parties involved.95
The Commission made its case on the basis of a portion of the judgment of the Court which provided that the beneficiaries will receive interest “under the most favorable conditions permitted by Honduran banking practice.”96
The Commission also noted the special, precedential legal value such a clarification would have, not only in the Latin American context, but in the overall development of the international humanitarian legal order.97 With regard to the Court’s oversight of compliance, the Commission aptly stated, “[t]he Court’s specific assumption of the supervision of compliance with its judgment is an eloquent indication of the responsibility the Court assigns to full and exact compliance, and serves to justify the importance of the interpretation we request.”98
The IACHR had thus indicated a willingness to take a more proactive role in seeking compliance with its judgments than, for instance, the U.S. courts, which in the midst of overflowing dockets, are often loath to supervise judgments, especially for certain types of equitable relief.
On the other hand, given the OAS General Assembly’s passivity in levying sanctions against non-complying member states, U.S. contempt laws, especially for criminal contempt, provide more forceful incentives to comply with courts’ judgments. However, in recent years, the IACHR has benefited from the OAS General Assembly’s concern with promoting democracy in Latin America (e.g., in the case of Peru).99
In the Honduran cases, on August 17, 1990, the Court took a bold step and handed down the pioneering interpretation that the real amount of the award (purchasing power) needed to be preserved.100
1. Compliance in the Aftermath of the Clarification
The Honduran government refused to comply with the judgment aimed at preserving purchasing power, but it did undertake to make payments in the amounts the court had previously specified.101 Through its Ambassador, Edgardo Sevilla Idiáquez, Honduras expressed surprise at the “broad interpretation” the Court gave in response to the Commission’s request for clarification.102 Idiáquez protested the effect of increasing the amount that Honduras would pay to the beneficiaries in the Godínez Cruz and Velásquez Rodríguez cases. Honduras claimed that the Court’s judgments of July 21, 1989, fixed the amount of compensation in the lempira without tying it to any foreign currency. Idiáquez felt that these judgments required no clarification.103
Furthermore, Honduras protested that it had already set its budget for the year and that the country faced economic constraints.104 These two factors, according to Idiáquez, made it infeasible for Honduras to provide the extra allocation to the judgment’s beneficiaries.105 So Honduras reaffirmed its commitment to pay no more than the literal amount specified in the judgments.106
The Court, in a letter from President Héctor Fix-Zamudio, rejected the arguments of Honduras and reiterated its orders of payment according to its judgments.107 According to the President, non-compliance would damage the Inter-American system of human rights.108
i. Closing of the Cases
In its 1996 Report, the court revealed that on September 10, 1996, the IACHR unanimously decided to close both the Velásquez Rodríguez and the Godínez Cruz cases based on compliance with the Judgments on Compensatory Damages and Their Interpretations.109 Honduras had made official communications to the Commission that it had made the compensation in accordance with the Court’s order.110 Honduras also submitted a brief directly to the Court on April 12, 1996 in which it indicated that its President had delivered the requisite checks.111 Both the Commission and Honduras thus requested that the Court close the cases.112 The petitioners also indicated that they did not want to go forward with further pleadings pertaining to the incidental plea to establish Honduras’ compliance with the judgments.113 The first judgment on the merits of the Court thus found compliance with the payment of reparations, a landmark outcome for human rights in the hemisphere.
D. Aloeboetoe
1. Narrative
The reported events of this case occurred in the South American Republic of Suriname. Specifically, what transpired took place in both Atjoni, which is the landing stage of the village of Pokigron, District of Sipaliwini, and also in Tjongalangapassi in the District of Brokopondo.114 Soldiers beat over twenty male, unarmed maroons (“bushnegroes”) with rifle-butts, and detained them under suspicion that they were Jungle Commando members.115 The soldiers wounded some of the maroons with bayonets and knives, and the soldiers also forced them to lay face down while they stepped on their backs and urinated on them.116
The roughly fifty persons who witnessed these events, as well as those who were beaten, were villagers from Paramaribo who were passing through Atjoni on their way home.117 The army commander ignored onlookers who told him that these people had no involvement in the Jungle Commando.118
The soldiers detained seven of the maroons (including a fifteen-year old) and let the others continue on their way. The soldiers then blindfolded and dragged their captives into a military vehicle and drove them along the Tjongalangapassi road towards Paramaribo.119 One soldier told the captives that they would be celebrating the end of the year with them.120
After about thirty kilometers, the vehicle stopped and the victims were ordered to get out; those who refused to exit were forcibly removed. The seven men were given a spade and told to begin digging a short distance from the road.121 When asked what they were digging for, one of the soldiers responded that they were going to plant sugar cane; another soldier said again that they would celebrate the end of the year with them.122
Richenel Voola, one of the maroons, then bolted. The soldiers fired bullets, wounding him, and Voola collapsed to the ground feigning death. Laying there on the ground, he witnessed the execution of his six friends.123
On January 2, 1988, men from the village went to the authorities to demand information regarding the whereabouts of the seven abductees. Neither the Coordinator of the Interior for Volksmobilisatie, nor the Military Police of Fort Zeeland would tell them where the men were.124
Accordingly, the village men began searching on their own, going back into the Tjongalanga area.125 There they found the corpses of the murdered maroons, whose bodies had already been partially consumed by vultures.126 The six deceased’s next-of-kin did not receive permission to bury them until January 6.127 The villagers also found Voola, still alive, but critically wounded, with a bullet embedded in the muscle above his right knee.128 Voola’s wound had become infested with maggots and an “X” had been carved into his right shoulder blade.129
Voola was brought back to Paramaribo, and after negotiating with the authorities for twenty-four hours, an International Red Cross representative received permission to evacuate him to better care facilities.130 The Academic Hospital of Paramaribo admitted him on January 6, and despite caring for him for several days, the doctors were unable to save his life. Adding insult to injury, the Military Police prevented Voola’s relatives from visiting him during his stay in the hospital.131
In filing its petition to the Court against Suriname on behalf of the seven deceased men, the Commission raised Articles 51 and 61 of the Convention as well as Article 50 of its Regulations in order to allege violations of Articles 1 (Obligation to Respect Rights), 2 (Domestic Legal Effects), 4 (Right to Life), 5 (Right to Humane Treatment), 7 (Right to Personal Liberty), and 25 (Right to Judicial Protection).132 Appearing for Suriname were Carlos Vargas-Pizarro (Agent), Ramon de Freitas, Albert Vrede, and Fred M. Reid, while the Inter-American Commission’s Delegates were Oliver H. Jackman and David J. Padilla.133
2. Judgment on the Merits
Noting Suriname’s admission of responsibility concerning the violation of Articles 1(1)–(2), 4(1), 5(1)–(2), 7(1)–(3) and 25,134 the Court unanimously set the reparations at $453,102 U.S. dollars, or the equivalent in Dutch Florins.135 Accordingly, Suriname was ordered to pay this amount to the victims’ heirs.136 The IACHR decided, however, not to order the payment of costs.137
The Court also ordered the creation of two trust funds and a one time payment of U.S. $4,000 for the establishment of a foundation to administer the funds as trustee.138 In addition, Suriname was ordered to reopen and staff the school in Gujaba (where most of the families lived) with teaching and administrative workers on a permanent basis, as well as ensure that the medical dispensary there was operational beginning in 1994.139 Finally, the Court determined that it would supervise compliance with its orders before taking steps to close the case.140
3. Compliance with Aloeboetoe
Noting in its report to the OAS General Assembly that it had not received any official communication from the Suriname Government with regard to compliance with the judgment,141 the Court requested that Suriname be compelled to disclose its progress, if any, in fulfilling the orders of the Court.142
However, members of the Foundation established under the terms of the judgment that Suriname had: (1) deposited the sum of U.S. $3,853 in Dutch Florins as working capital for the Foundation’s operations; (2) deposited U.S. $134,990 as partial payment of the $453,102 that the Court ordered as reparation to the injured parties; and (3) that the balance of these reparations would be paid out in seven monthly installments.143
Yet in its 1996 Report, the Court stated again that it had not received any official communications from Suriname on its compliance in the Aloeboetoe Case.144 The Court noted the necessity of receiving official communication in order to be able to decide whether or not to close the case.145
During Regular Session XXXIII, from January 22 to February 3, 1996, the Court reviewed compliance with the Judgment on reparations in the Aloeboetoe Case. Here, Judge Héctor Fix-Zamudio required Suriname to inform the Court on the status of the reparations.
4. Closing the Case
On February 5, 1997, the Court closed the Aloeboetoe Case.146 The Commission informed the Court that Suriname had paid US $453,102.00 in accordance with points one, two, and three of the Court’s September 10, 1993 decree.147 The State also complied with point four by providing the stipulated funds for the functioning of the Foundation.148 The Foundation, according to its Article 3k, must send annual reports to the Court concerning the economic well-being, administration, and development of the trusts which it is charged with overseeing.
The Government also repaired and reopened the school in Gujaba with the teaching staff as well as made functional the dispensary in conformity with point five of the Court’s order.149 Given Suriname’s compliance, the Court closed the case but left open the possibility of reopening it under circumstances that would merit it given the ongoing nature of some of the reparations.150
E. Gangaram Panday
1. Narrative
Having been expelled from Holland, Asok Gangaram Panday arrived at Zanderij Airport in Suriname on November 5, 1988.151 Upon his arrival, Panday’s brother, Leo, and wife, Dropati, both saw the Military Police taking him into custody, supposedly to investigate his expulsion from Holland.152 Initially, Panday was detained in a cell for deportees located in the Military Brigade at Zanderij,153 but on Sunday, November 6, he was transferred to Fort Zeeland.154
At no time between November 5th and November 8th, when Panday’s body was found, was he presented before a tribunal.155 Throughout the days of his incarceration, Leo Panday made repeated calls to the Military Police to inquire into the whereabouts and well-being of his brother.156 Eventually, on November 8th, Leo was informed that his brother had hanged himself.157
After viewing his brother’s nearly naked body at the morgue, Leo Panday, in his petition to the Court, claimed to have discovered that his brother had suffered large hematomas on the chest and stomach, had a black eye, a cut lip, a short belt around his neck, and that his testicles had been crushed.158 While the initial autopsy report concluded that Panday’s death was attributable to suicide, the coroner subsequently determined that, in fact, Panday had died from violent treatment.159
2. Judgment on the Merits
The Court unanimously declared that the Surinamese authorities had violated Asok Gangaram Panday’s right to personal liberty as provided by Article 7(2) of the Convention in conjunction with Article 1(1).160 However, as the case progressed, the Court was unable to conclusively determine all of the necessary facts for imposing additional liability. Thus, the judges unanimously dismissed the charges that Suriname had violated Articles 5(1), 5(2), 25(1), and 25(2),161 while splitting 4–3 in finding that Suriname had not violated Panday’s right to life under Article 4(1).162 The dissenting judges were Sonia Picado-Sotela, Asdrubal Aguiar-Aranguren, and Antonio A. Cançado Trindade.163
The Court unanimously set damages at U.S. $10,000, or the equivalent sum in Dutch Florins, to be paid within six months of the date of the judgment,164 but did not award any costs.165 Moreover, the Court decided to supervise the payment of damages and indicated that it would close the case only upon compliance.166
3. Compliance with Gangaram Panday
Up to its 1994 Annual Report, the Court had received no information from the Government of Suriname regarding compliance with its judgments. Thus, the IACHR requested the General Assembly to urge the State of Suriname to comply with the Court’s January 21, 1994 judgment.167
In 1997, the Court laid down a resolution stating that Suriname should make every effort to find the beneficiaries of the Court’s award168 and that if it were unable to locate the beneficiaries, it must deposit the amount in a bank trust.169 If the funds were not claimed by the rightful beneficiaries within ten years, the money would be returned to the government, and Suriname would be considered to have complied with the sentence.170
The Court also urged the Commission to attempt to locate Gangaram Panday’s next-of-kin so that the Government could fulfill the sentence handed down on January 21, 1994.171 The Court also required the parties to update information concerning compliance six months after this resolution.172