Order of the inter-american court of human rights



Download 0.57 Mb.
Page1/8
Date21.04.2016
Size0.57 Mb.
  1   2   3   4   5   6   7   8

ORDER OF THE

INTER-AMERICAN COURT OF HUMAN RIGHTS

MARCH 20, 2013


CasE OF GELMAN v. URUGUAY

MONITORING COMPLIANCE WITH JUDGMENT

HAVING SEEN:

  1. The Judgment on merits and reparations delivered by the Inter-American Court of Human Rights (hereinafter, “the Inter-American Court” or “the Court”) on February 24, 2011. The facts of this case took place during the military dictatorship that governed Uruguay between 1973 and 1985, when the security and intelligence forces resorted to the systematic practice of serious human rights violations in collaboration with Argentine authorities as part of the national security doctrine and the so-called “Operation Condor.” In that context, María Claudia García Iruretagoyena Casinelli and her husband Marcelo Ariel Gelman Schubaroff, son of Mr. Juan Gelman, both of Argentine nationality, were detained on August 24, 1976, in Buenos Aires, Argentina, by Uruguayan and Argentine military, after which they were separated. At the time of her arrest, María Claudia was nineteen years old and in an advanced stage of pregnancy (approximately seven months). In October 1976, María Claudia García was secretly flown to Montevideo, Uruguay, by Uruguayan authorities and held at a facility of the Uruguayan Defense Intelligence Service (hereinafter, “the SID” for its Spanish acronym). She subsequently gave birth to a daughter who was taken away from her as a newborn and given to a Uruguayan policeman and his wife, who registered her as their own daughter and named her María Macarena. Since then, María Claudia García Iruretagoyena has been missing. Mr. Juan Gelman and his wife made inquiries on their own account, and in 2000, made contact with their granddaughter María Macarena. Subsequently, they initiated legal action and, as a result, in 2005 she took the name of María Macarena Gelman García Iruretagoyena. In its response to the petition, the State of Uruguay partially acknowledged its international responsibility for the violation of the human rights of María Claudia García Iruretagoyena de Gelman, María Macarena de Gelman García and Juan Gelman.1 The Inter-American Court unanimously ruled that the State of Uruguay is internationally responsible for: a) the forced disappearance and violation of the rights recognized in Articles 3, 4(1), 5(1), 5(2) and 7(1), in relation to Article 1(1) of the Convention and with Articles I and XI of the Inter-American Convention on the Enforced Disappearance of Persons, to the detriment of María Claudia García; b) Articles 3, 4(1), 5(1), 7(1), 17, 18, 19 and 20(3), in relation to Article 1(1) of the Convention and Articles I and XI of the Inter-American Convention on the Enforced Disappearance of Persons to the detriment of María Macarena Gelman; c) Articles 5(1) and 17, in relation to Article 1(1) of the Convention, to the detriment of Mr. Juan Gelman and d) Articles 8(1) and 25(1), in relation to Articles 1(1) and 2 of the Convention and Articles I(b) and IV of the Inter-American Convention on the Enforced Disappearance of Persons, for the failure to investigate effectively the facts of this case, to the detriment of Mr. Juan Gelman and María Macarena Gelman. Furthermore, the Court ruled that the State had not fulfilled its obligation to adapt its domestic legislation to the American Convention, contained in its Article 2, in relation to Articles 8(1), 25 and 1(1) of the same document and Articles I(b), III, IV and V the Inter-American Convention on the Forced Disappearance of Persons, as a consequence of the interpretation and implementation of the Law on the Expiry of the Punitive Claims of the State. Moreover, the Court ruled:

unanimously, that:

  1. This Judgment constitutes per se a form of reparation.

9. The State must, within a reasonable period of time, conduct and carry out effectively the criminal investigation of the facts of this case, in order to ascertain them, determine the corresponding criminal, civil, and administrative responsibilities and apply the consequential sanctions provided by law, in accordance with paragraphs 252 to 256 and 274 and 275 of the Judgment.

10. The State should continue and accelerate the search and immediate location of Maria Claudia Garcia Iruretagoyena, or of her bodily remains and, where appropriate, deliver them to her next of kin, after genetic parentage testing, all in accordance with paragraphs 259 and 260 of the Judgment.


11. The State must guarantee that the Expiry Law, lacking effects due to its incompatibility with the American Convention and the Inter-American Convention on the Enforced Disappearance of Persons, insofar as it can hinder the investigation and possible sanction of those responsible for serious human rights violations, will never again be an impediment to the investigation of facts and to the identification, and where applicable, punishment of those responsible, in conformity with paragraphs 253 and 254 of the Judgment.

12. The State must, within a period of one year, carry out a public act of acknowledgment of international responsibility for the facts of this case, in conformity with paragraph 266 of this Judgment.


13. The State must locate, within the building of the Defense Intelligence Service (SID), accessible to the public, within a period of one year, a memorial plaque with the inscription of the names of the victims and all persons who were illegally in said place, pursuant to paragraph 267 of the Judgment.
14. The State must carry out, within a period of six months, the publications provided for in paragraph 271 of this Judgment.
15. The State must implement, within a reasonable period and with the respective budgetary provisions, a permanent human rights program, directed at the agents of the Public Prosecutor’s Office and the judges of the Judicial Branch of Uruguay, in conformity with paragraph 278 of this Judgment.
16. The State must adopt, within a period of two years, the appropriate measures to guarantee the technical and systematical access to the information regarding serious violations of human rights that occurred during the dictatorship that are held in State archives, in conformity with paragraphs 274, 275 and 282 of the Judgment.
17. The State must pay, within a period of one year, the amounts established in paragraphs 291, 293, 296, and 304 of this Judgment, for compensation of pecuniary and non-pecuniary damage and the reimbursement of costs and expenses that correspond, in conformity with paragraphs 305 to 311 of this Judgment.
18. Pursuant to the provisions of the American Convention, the Court will monitor full compliance with this Judgment and will conclude the case once the State has entirely satisfied said provisions. Within a period of one year as of the legal notification of this Judgment, the State must provide the Court with a report on the measures adopted to satisfy compliance.


  1. The briefs of the Eastern Republic of Uruguay (hereinafter, “the State” or “Uruguay”) of January 17 and March 14, 2012, in which it referred to its compliance with the Judgment.

  2. The briefs of the victims’ representatives (hereinafter, “the representatives”) of July 22, 2011, and February 17 and April 4, 2012, containing their observations regarding the status of compliance with the Judgment.

  3. The brief of the Inter-American Commission on Human Rights (hereinafter, “the Inter-American Commission” or “the Commission”) of April 12, 2012, in which it submitted observations regarding the status of compliance with the Judgment.

  4. The note of the Secretariat of December 19, 2012, in which it stated that in compliance with Article 68(1) of the Convention and Articles 15(1) and 69(3) of the Rules of the Court, the President of the Court, in consultation with the remaining Judges of the Court, decided to summon the State, the representatives and the Commission to a private hearing for monitoring compliance with the Judgment.

  5. The private hearing on monitoring compliance with Judgment took place on February 13, 2013.2

  6. The brief of February 27, 2013, in which the victims’ representatives submitted a copy of the ruling issued by the Supreme Court of Justice of Uruguay regarding compliance with the Judgment.

  7. The note of the Secretariat of March 5, 2013, in which, following the instructions of the President, it requested that the Inter-American Commission and the State submit, no later than March 11, 2013, their observations on the information provided, particularly regarding the effects that the ruling of the Supreme Court of Uruguay could have in relation to the decisions in the Judgment.



  1. The briefs of March 11, 2013, in which the representatives and the State submitted their observations on the effects of said decision.

  2. The note of March 11, 2013, wherein the Commission requested an extension until March 13 to submit its observations, which was granted following instructions of the President, through a note from the Secretariat the following day.

  3. The brief of March 15, 2013, in which the Commission submitted its observations extemporaneously.

CONSIDERING THAT:

  1. One of the inherent attributes of the jurisdictional functions of the Court is to monitor compliance with its decisions.

  2. Uruguay has been a State Party to the American Convention on Human Rights (hereinafter, “the American Convention” or “the Convention”) since April 19, 1985, and recognized the contentious jurisdiction of the Court on that same date.

3. In compliance with Article 67 of the American Convention, the State must comply fully and expeditiously with the Court’s judgments. Likewise, Article 68(1) of the American Convention stipulates that, “[t]he States Parties to the Convention undertake to comply with the judgment of the Court in any case to which they are parties.” To this end, the States must ensure implementation at the domestic level of the Court’s rulings in its judgments.3

4. In the following section the Court will assess the actions taken by the State in compliance with the reparation measures ordered and will determine the points already fulfilled by the State (infra paras. 5 to 13); subsequently it will analyze those points on which the State has complied in part or which are still pending.



  1. MEASURES OF REPARATION IMPLEMENTED BY THE STATE

  1. Obligation to conduct a public act acknowledging international responsibility for the facts of this case and to install a plaque in the SID building

5. The State indicated that a public act was held at the Legislative Palace on March 21, 2012, with the participation of the three branches of Government, led by the President of the Republic, attended by María Macarena Gelman García Iruretagoyena and Juan Gelman and with the presence of the Vice-President of the Republic and the President of the Supreme Court of Justice. Furthermore, the State reported that on March 21, 2012, in the former building of the Defense Intelligence Service (SID), it had installed a plaque in memory of María Claudia García Iruretagoyena, María Macarena Gelman García and all the victims of State terrorism who were deprived of their freedom there. It also made reference to the Judgment of the Court.

  1. The representatives recognized this public act of acknowledgment of international responsibility, but during the private hearing they pointed out that the plaque cannot be seen by anyone because the National Institute of Human Rights is not yet functioning. They concluded this point by stating they were confident that the institution would operate and would be an additional element of reparation. The representatives and the Commission welcomed this information and considered that the State had complied with the measure ordered.

  2. The Court had specified in the Judgment that the public act of acknowledgment must: a) refer to the violations established in the Judgment; b) be carried out through a public ceremony conducted by high-ranking national authorities with the presence of the victims in this case; c) consult the victims or their representatives regarding the method of compliance; d) broadcast the event through the media; e) conduct the public ceremony within one year of notification of the Judgment, and f) as agreed, and within one year, unveil a plaque engraved with the names of the victims and the period during which they were illegally detained, in an area accessible to the public in the SID building.

  3. The Court welcomes the fact that the public act of acknowledgment was led by the President of the Republic himself, Mr. José Mujica, with the participation of the three branches of Government (and in the presence of the Vice-President of the Republic and the President of the Supreme Court of Justice), in the Legislative Palace and in the presence of Macarena and Juan Gelman. Additionally, it reported on the installation of a plaque with the name of María Claudia García and other victims and survivors that were held, interrogated, detained or disappeared in the building where the Defense Intelligence Service operated. This building is currently the headquarters of the National Institute of Human Rights. These proceedings were widely disseminated by the media and were carried out within the period stipulated in the Judgment. Accordingly, the Court considers that the public ceremony fully satisfies the object and purpose of the reparation ordered, in one of the most significant acts carried out by the States in compliance with measures of reparation of this type. It therefore declares that the State has fully implemented operative paragraphs twelve and thirteen of the Judgment.



  1. Obligation to issue, within a period of six months, the publications stipulated in paragraph 271 of the Judgment

  1. The State reported that the publications ordered were issued in the Official Gazette and on the websites of the Presidency of the Republic, the Ministry of Foreign Relations and the Ministry of Culture and Education. Furthermore, it confirmed that on August 21, 2011, an official summary of the judgment was published in newspapers with wide national circulation, El País and La República. In a subsequent communication, the State clarified that the judgment was published on the website of the Ministry of Culture and Education and remains available on the other websites.

  2. The Commission pointed out that it does not have copies of the publications made by the State, which would be useful for verifying full compliance with this obligation. As to the online publications, it welcomed the fact that these have been maintained on the official websites, although it considered that access to them is not at all straightforward.

  3. The representatives pointed out that the State had not attached copies that would allow them to verify compliance, given that it did not indicate the possible date of publication and they do not have copies of the media cited. They therefore asked the Court to require the State to present supporting documentation of the publications. They added that they were able to confirm the publication of the Judgment on the Ministry of Foreign Relations’ website and of the operative part and summary of the judgment on the website of the Presidency. However, it was not possible to find these publications on the website of the Ministry of Culture and Education.

  4. Based on what the State has reported, the Court considers that it has complied with the obligation to issue the publications in the Official Gazette, in national newspapers with wide circulation and on the websites. Consequently, and while continuing to wait for the State to submit the documentation specifically confirming the issue of these publications, the Court finds that the State has complied with this measure. It therefore declares that the fourteenth operative paragraph of the Judgment has been fulfilled.



  1. Obligation to pay, within a period of one year, the amounts ordered in compensation for pecuniary and non-pecuniary damages and for reimbursement of costs and expenses

  1. The Court confirmed that the State had made the payments for the amounts established for pecuniary and non-pecuniary damages. Both the Commission and the representatives indicated that the amounts corresponding to the compensation had been paid. Consequently, the State has fully complied with operative paragraph seventeen within the stipulated period.



  1. MEASURES OF REPARATION IN PROGRESS OR PENDING COMPLIANCE



  1. Obligation to adopt, within a period of two years, the appropriate measures to guarantee the technical and systematic access to information held in State archives regarding the serious human rights violations that occurred during the dictatorship

  1. The State reported that it is updating the historical investigation, which is available on the website of the Presidency of the Republic of Uruguay. It has also formed a team of archivists to “organize, catalogue, classify, computerize and systematize” the entire document collection stored in the Monitoring Secretariat of the Uruguayan Peace Commission since August 2000. Similarly, during the private hearing the State provided further details on how any natural or legal person interested in accessing the public records can do so within the framework of Law 18381 regarding access to public information, aimed at promoting transparency in public administration.

  2. The Commission considered it important for the State to continue reporting on the progress made by this initiative and for the Court to continue monitoring its implementation for a reasonable time in order to determine the effectiveness of the measures. As to the historical investigation, it considered it appropriate that the State reply to the concerns raised by the representatives on the scope and intention of said investigation, and on the accessibility of the authorities responsible for the investigations and proceedings. Moreover, it considered it necessary to have more information on the impact of the reopening and progress of the investigations on the human rights violations, in order to assess the suitability of these measures.

  3. The representatives noted that the scope of the initiatives reported by the State remained unclear. In particular, they considered it disturbing that the documents attached by the State only referred to those collected by the Secretariat of the Peace Commission, precisely when the debate raised before the Court and “addressed in its ruling” shows the wide range of places where documents could be found that would clarify the circumstances and responsibilities for the serious human rights violations committed during the last dictatorship. They further noted that, as is evident in the presentation of the work related to the investigation of the disappeared detainees, this is a strictly academic investigation that does not fulfill the State’s obligation as established in the Judgment. Moreover, they pointed out that it was unclear whether the records being systematized also include all of the archives that the University researchers have been able to access.4 Finally, they stressed that in the accompanying documents submitted by the State as attachments contain no specific information on the budget allocation, the institutional design of the team it claims to have formed, the time frame or the assigned budget.

  4. Regarding this reparation measure, the Court recalls that in the Judgment it welcomed the State’s offer to create an Interministerial Commission in charge of promoting investigations to discover the fate of those who disappeared between 1973 and 1985 and that the Court recommended that the State ensure “the participation of a representative of the victims of those events” in that body “who would be able to channel relevant information and would be subject to the confidentiality that such information requires, and [the participation] of a representative of the Public Prosecutor’s Office acting as a contact to compile such information.” Similarly, the Court appreciated the State’s willingness to establish a “Protocol for the collection and information on the bodily remains of the disappeared persons” and ordered the State to indeed adopt it and make this known to the authorities responsible for its immediate implementation.5

  5. The Court noted that in this case one of the constraints making progress with the investigation was the fact that information concerning serious human rights violations that took place during the dictatorship was kept in different national security files which are dispersed with no adequate control. Given that this information could be useful to the officials who conduct the relevant judicial investigations, it ordered the State to adopt “the appropriate and adequate measures to guarantee the technical and systematic access to this information, measures that must be supported by the appropriate budget allocation.”6

  6. Accordingly, the Court calls on the State to provide more precise and detailed information in its next report regarding compliance with this measure of reparation referred to in operative paragraph sixteen of the Judgment, which it will continue to monitor.



  1. Obligation to implement, within a reasonable period and with the respective budgetary allocation, a permanent human rights program directed at officials of the Public Prosecutor’s Office and judges of the Judicial Branch of Uruguay

  1. The State pointed out that even though training programs on human rights already exist, the Interministerial Commission is working to include in these programs courses or modules for the proper investigation and prosecution of acts involving the forced disappearance of persons and the abduction of children as well as the interpretation of the Law from a human rights perspective. It added that these programs are being coordinated with the Center of Judicial Studies of the Judiciary and the Ministry of Education and Culture. The State added that, thanks to the joint work of the Ministry of Education and Culture, the Center for Legal Studies of the Judicial Branch (CEJU for its Spanish acronym) and the Public Prosecutor’s Office, the first annual lesson of the human rights course for judicial officials took place at the headquarters of CEJU on September 28 and 29, October 26 and 27, and November 23 and 24, 2012.

  2. The Commission and the representatives pointed out that the State did not provide documents with details of the course contents, the officials to whom the courses were imparted, the institutions to which they belong or the duration of the courses.

  3. Regarding this reparation measure, the Court notes that the State referred to the organization of human rights courses for officials of the Judiciary and the Public Ministry. However, the Court considers that the information provided by the State is insufficient because it does not report on the permanent nature of the program, the syllabus or the content of the courses. Therefore, the Court calls on the State to submit more specific and detailed information regarding compliance with this measure of reparation in its next report, and will continue to monitor compliance with this measure, as established in operative paragraph fifteen of the Judgment.






  1. Share with your friends:
  1   2   3   4   5   6   7   8




The database is protected by copyright ©essaydocs.org 2020
send message

    Main page