Petition referring to the American convention on human rights and other applicable instruments

CHAPTER II

PETITIONS REFERRING TO THE AMERICAN CONVENTION

ON HUMAN RIGHTS AND OTHER APPLICABLE INSTRUMENTS

Article 26.  Initial Review

1.   The Executive Secretariat of the Commission shall be responsible for the study and initial processing of petitions lodged before the Commission that fulfill all the requirements set forth in the Statute and in Article 28 of these Rules of Procedure.

2.   If a petition or communication does not meet the requirements set for in these Rules of Procedure, the Executive Secretariat may request the petitioner or his or her representative to fulfill them.

3.   If the Executive Secretariat has any doubt as to whether the requirements referred to have been met, it shall consult the Commission.

Article 27.  Condition for Considering the Petition

The Commission shall consider petitions regarding alleged violations of the human rights enshrined in the American Convention on Human Rights and other applicable instruments, with respect to the Member States of the OAS, only when the petitions fulfill the requirements set forth in those instruments, in the Statute, and in these Rules of Procedure.

Article 28. Requirements for the Consideration of Petitions3

Petitions addressed to the Commission shall contain the following information:

1. the name of the person or persons making the denunciation; or in cases where the petitioner is a nongovernmental entity, its legal representative(s) and the Member State in which it is legally recognized;

2. whether the petitioner wishes that his or her identity be withheld from the State, and the respective reasons;

3. the e-mail address for receiving correspondence from the Commission and, if available, a telephone number, facsimile number, and postal address;

4. an account of the fact or situation that is denounced, specifying the place and date of the alleged violations;

5. if possible, the name of the victim and of any public authority who has taken cognizance of the fact or situation alleged;

6. the State the petitioner considers responsible, by act or omission, for the violation of any of the human rights recognized in the American Convention on Human Rights and other applicable instruments, even if no specific reference is made to the article(s) alleged to have been violated;

7. compliance with the time period provided for in Article 32 of these Rules of Procedure;

8. any steps taken to exhaust domestic remedies, or the impossibility of doing so as provided in Article 31 of these Rules of Procedure; and

9. an indication of whether the complaint has been submitted to another international settlement proceeding as provided in Article 33 of these Rules of Procedure.

Article 29. Initial Processing4

1. The Commission, acting initially through the Executive Secretariat, shall receive and carry out the initial processing of the petitions presented. Each petition shall be registered, the date of receipt shall be recorded on the petition itself and an acknowledgement of receipt shall be sent to the petitioner.

2. The petition shall be studied in the order it was received; however, the Commission may expedite the evaluation of a petition in situations such as the following:

a. when the passage of time would deprive the petition of its effectiveness, in particular:

i. when the alleged victim is an older person or a child;

ii. when the alleged victim is terminally ill;

iii. when it is alleged that the death penalty could be applied to the presumed victim; or

iv. when the object of the petition is connected to a precautionary or provisional measure in effect;

b. when the alleged victims are persons deprived of liberty;

c. when the State formally expresses its intention to enter into a friendly settlement process in the matter; or

d. when any of the following circumstances are present:

i. the decision could have the effect of repairing serious structural situations that would have an impact in the enjoyment of human rights; or

ii. the decision could promote changes in legislation or state practices and avoid the reception of multiple petitions on the same matter.

3. If the petition does not meet the requirements of these Rules of Procedure, the Commission may request that the petitioner or his or her representative complete them in accordance with Article 26.2 of these Rules.

4. If the petition sets forth distinct facts, or if it refers to more than one person or to alleged violations not interconnected in time and place, the Commission may divide it and process the files separately, so long as all the requirements of Article 28 of these Rules of Procedure are met.

5. If two or more petitions address similar facts, involve the same persons, or reveal the same pattern of conduct, the Commission may join them and process them together in the same file.

6. In the situations provided for in subparagraphs 4 and 5, the Commission shall give written notification to petitioners.

7. In serious or urgent cases, the Executive Secretariat shall immediately notify the Commission.

Article 30. Admissibility Procedure5

1. The Commission, through its Executive Secretariat, shall process the petitions that meet the requirements set forth in Article 28 of these Rules of Procedure.

2. For this purpose, it shall forward the relevant parts of the petition to the State in question. The request for information made to the State shall not constitute a prejudgment with regard to any decision the Commission may adopt on the admissibility of the petition.

3. The State shall submit its response within three months from the date the request is transmitted. The Executive Secretariat shall evaluate requests for extensions of this period that are duly founded. However, it shall not grant extensions that exceed four months from the date of transmission of the first request for information sent to the State.

4. In serious and urgent cases, or when it is believed that the life or personal integrity of a person is in real and imminent danger, the Commission shall request the promptest reply from the State, using for this purpose the means it considers most expeditious.

5. Prior to deciding upon the admissibility of the petition, the Commission may invite the parties to submit additional observations, either in writing or in a hearing, as provided for in Chapter VI of these Rules of Procedure.

6. The considerations on or challenges to the admissibility of the petition shall be submitted as from the time that the relevant parts of the petition are forwarded to the State and prior to the Commission’s decision on admissibility.

7. In the cases referred to in paragraph 4, the Commission may request that the State presents its response and observations on the admissibility and the merits of the matter. The response and observations of the State shall be submitted within a reasonable period, to be determined by the Commission in accordance with the circumstances of each case.

Article 31.  Exhaustion of Domestic Remedies

1.   In order to decide on the admissibility of a matter, the Commission shall verify whether the remedies of the domestic legal system have been pursued and exhausted in accordance with the generally recognized principles of international law.

2.   The provisions of the preceding paragraph shall not apply when:

a.   the domestic legislation of the State concerned does not afford due process of law for protection of the right or rights that have allegedly been violated;

b.   the party alleging violation of his or her rights has been denied access to the remedies under domestic law or has been prevented from exhausting them; or

c.   there has been unwarranted delay in rendering a final judgment under the aforementioned remedies.

3.   When the petitioner contends that he or she is unable to prove compliance with the requirement indicated in this article, it shall be up to the State concerned to demonstrate to the Commission that the remedies under domestic law have not been previously exhausted, unless that is clearly evident from the record.

Article 32.  Statute of Limitations for Petitions

1.   The Commission shall consider those petitions that are lodged within a period of sixmonths following the date on which the alleged victim has been notified of the decision that exhausted the domestic remedies.

2.   In those cases in which the exceptions to the requirement of prior exhaustion of domestic remedies are applicable, the petition shall be presented within a reasonable period of time, as determined by the Commission.  For this purpose, the Commission shall consider the date on which the alleged violation of rights occurred and the circumstances of each case.

Article 33.  Duplication of Procedures

1.   The Commission shall not consider a petition if its subject matter:

a.   is pending settlement pursuant to another procedure before an international governmental organization of which the State concerned is a member; or

b.   essentially duplicates a petition pending or already examined and settled by the Commission or by another international governmental organization of which the State concerned is a member.

2.   However, the Commission shall not refrain from considering petitions referred to in paragraph 1 when:

a.   the procedure followed before the other organization is limited to a general examination of the human rights situation in the State in question and there has been no decision on the specific facts that are the subject of the petition before the Commission, or it will not lead to an effective settlement; or

b.   the petitioner before the Commission or a family member is the alleged victim of the violation denounced and the petitioner before the other organization is a third party or a nongovernmental entity having no mandate from the former.

Article 34.  Other Grounds for Inadmissibility

The Commission shall declare any petition or case inadmissible when:

a.   it does not state facts that tend to establish a violation of the rights referred to in Article 27 of these Rules of Procedure;

b.   the statements of the petitioner or of the State indicate that it is manifestly groundless or out of order; or

c.   supervening information or evidence presented to the Commission reveals that a matter is inadmissible or out of order.

Article 35.  Working Group on Admissibility

The Commission shall establish a working group of three or more of its members to study, between sessions, the admissibility of petitions and make recommendations to the plenary.

Article 36. Decision on Admissibility6

1. Once it has considered the positions of the parties, the Commission shall make a decision on the admissibility of the matter. The reports on admissibility and inadmissibility shall be public and the Commission shall include them in its Annual Report to the General Assembly of the OAS.

2. When an admissibility report is adopted, the petition shall be registered as a case and the proceedings on the merits shall be initiated. The adoption of an admissibility report does not constitute a prejudgment as to the merits of the matter.

3. In exceptional circumstances, and after having requested information from the parties in accordance with the provisions of Article 30 of these Rules of Procedure, the Commission may open a case but defer its treatment of admissibility until the debate and decision on the merits. The decision shall be adopted by a reasoned resolution of the Commission, which will include an analysis of those exceptional circumstances. The exceptional circumstances that the Commission shall take into account will include the following:

a. when the consideration of the applicability of a possible exception to the requirement of exhaustion of domestic remedies would be inextricably tied to the merits of the matter;

b. in cases of seriousness and urgency, or when the Commission considers that the life or personal integrity of a person may be in imminent danger; or

c. when the passage of time may prevent the useful effect of the decision by the Commission.

4. When the Commission proceeds in accordance with Article 30.7 of these Rules of Procedure, it shall open a case and inform the parties in writing that it has deferred its treatment of admissibility until the debate and decision on the merits.

Article 37. Procedure on the Merits7

1. Upon opening the case, the Commission shall set a period of four months for the petitioners to submit additional observations on the merits. The pertinent parts of those observations shall be transmitted to the State in question so that it may submit its observations within four months.

2. The Executive Secretariat shall evaluate requests for an extension of the time periods established in the preceding subparagraph that are duly founded. However, it shall not grant extensions that exceed six months from the date the initial request for observations was sent to each party.

3. In serious and urgent cases, or when it is believed that the life or personal integrity of a person is in real and imminent danger, and once the case has been opened, the Commission shall request that the parties forward their additional observations on the merits within a reasonable time period, established by the Commission taking into account the circumstances of each case.

4. Prior to making its decision on the merits of the case, the Commission shall set a time period for the parties to express whether they have an interest in initiating the friendly settlement procedure provided for in Article 40 of these Rules of Procedure. In the cases provided for in Article 30. 7 and in the preceding subparagraph, the Commission shall request the parties to respond in a more expeditious manner. The Commission may also invite the parties to submit additional observations in writing.

5. If it deems it necessary in order to advance in its consideration of the case, the Commission may convene the parties for a hearing, as provided for in Chapter VI of these Rules of Procedure.

Article 38.  Presumption

The facts alleged in the petition, the pertinent parts of which have been transmitted to the State in question, shall be presumed to be true if the State has not provided responsive information during the period set by the Commission under the provisions of Article 37 of these Rules of Procedure, as long as other evidence does not lead to a different conclusion.

Article 39.  Onsite Investigation

1.   If it deems it necessary and advisable, the Commission may carry out an onsite investigation, for the effective conduct of which it shall request and the State concerned shall furnish all pertinent facilities.  In serious and urgent cases, and with the prior consent of the State in whose territory a violation has allegedly been committed, the sole presentation of a petition or communication that fulfils all the formal requirements of admissibility shall be necessary in order for the Commission to conduct an onsite investigation.

2.   The Commission may delegate to one or more of its members the reception of testimony pursuant to the rules established in sections 5, 6, 7 and 8 of Article 65.

Article 40.  Friendly Settlement

1.   On its own initiative or at the request of any of the parties, the Commission shall place itself at the disposal of the parties concerned, at any stage of the examination of a petition or case, with a view to reaching a friendly settlement of the matter on the basis of respect for the human rights recognized in the American Convention on Human Rights, the American Declaration and other applicable instruments.

2.   The friendly settlement procedure shall be initiated and continue on the basis of the consent of the parties.

3.   When it deems it necessary, the Commission may entrust to one or more of its members the task of facilitating negotiations between the parties.

4.   The Commission may terminate its intervention in the friendly settlement procedure if it finds that the matter is not susceptible to such a resolution or any of the parties does not consent to its application, decides not to continue it, or does not display the willingness to reach a friendly settlement based on the respect for human rights.

5.   If a friendly settlement is reached, the Commission shall adopt a report with a brief statement of the facts and of the solution reached, shall transmit it to the parties concerned and shall publish it.  Prior to adopting that report, the Commission shall verify whether the victim of the alleged violation or, as the case may be, his or her successors, have consented to the friendly settlement agreement.  In all cases, the friendly settlement must be based on respect for the human rights recognized in the American Convention on Human Rights, the American Declaration and other applicable instruments.

6.   If no friendly settlement is reached, the Commission shall continue to process the petition or case.

Article 41.  Withdrawal

The petitioner may at any time desist from his or her petition or case, to which effect he or she must so notify it in writing to the Commission. The statement by the petitioner shall be analyzed by the Commission, which may archive the petition or case if it deems it appropriate, or continue to process it in the interest of protecting a particular right.

Article 42.  Archiving of Petitions and Cases8

1. At any time during the proceedings, the Commission may decide to archive the file when it verifies that the grounds for the petition or case do not exist or subsist. The Commission may also decide to archive the case 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.

2. Before considering the archiving of a petition or case, it shall request that the petitioners submit the necessary information and notify the possibility of a decision to archive. Once the time limit specified for that purpose has expired, the Commission shall proceed to adopt the corresponding decision.

3. The decision to archive shall be final, except in the following cases:

a. material error;

b. supervening facts;

c. new information that would have affected the decision of the Commission; or

d. fraud.

Article 43.  Decision on the Merits

1.   The Commission shall deliberate on the merits of the case, to which end it shall prepare a report in which it will examine the arguments, the evidence presented by the parties, and the information obtained during hearings and on-site observations.  In addition, the Commission may take into account other information that is a matter of public knowledge.

2.   The Commission shall deliberate in private, and all aspects of the discussions shall be confidential.

3.   Any question put to a vote shall be formulated in precise terms in one of the official languages of the OAS.  At the request of any member, the text shall be translated by the Secretariat into one of the other official languages and distributed prior to the vote.

4.   The minutes referring to the Commission’s deliberations shall restrict themselves to the subject of the debate and the decision approved, as well as any separate opinions and any statements made for inclusion in the minutes. If the report does not represent, in whole or in part, the unanimous opinion of the members of the Commission, any of them may add his or her opinion separately, following the procedure established in Article 19.4 of these Rules of Procedure.

Article 44.  Report on the Merits9

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

c. the claims concerning reparations and costs.

Article 45.  Referral of the Case to the Court

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.

Article 46. Suspension of Time Limit to Refer the Case to the Court10

1. The Commission may consider, at the request of the State concerned, the suspension of the time limit established in Article 51.1 of the American Convention for the referral of the case to the Court, pursuant to the following conditions:

a. that the State shows its willingness and ability to implement the recommendations included in the merits report through the adoption of concrete and adequate measures of compliance. To this end, the Commission may take into account the existence of domestic legislation that establishes a mechanism for compliance with its recommendations; and

b. that in its request the State expressly and irrevocably accepts the suspension of the time limit established in Article 51.1 of the American Convention for the submission of the case to the Court and consequently expressly waives the right to file preliminary objections regarding compliance with the aforementioned time limit in the event that the matter is later referred to the Court.

2. In establishing the period for the suspension of the time limit, the Commission may take into account the following factors:

a. The complexity of the matter and of the measures necessary to comply with the recommendations of the Commission, in particular, when it implies the involvement of different branches of the government or coordination between the central and regional governments, among others;

b. The measures toward compliance with the recommendations, which were adopted by the State prior to the extension request; and

c. The position of the petitioner.

Article 47.  Publication of the Report

1.   If within three months from the transmittal of the preliminary report to the State in question the matter has not been solved or, for those States that have accepted the jurisdiction of the Inter-American Court, has not been referred by the Commission or by the State to the Court for a decision, the Commission, by an absolute majority of votes, may issue a final report that contains its opinion and final conclusions and recommendations.

2.   The final report shall be transmitted to the parties, who, within the time period set by the Commission, shall present information on compliance with the recommendations.

3.   The Commission shall evaluate compliance with its recommendations based on the information available, and shall decide on the publication of the final report by the vote of an absolute majority of its members.  The Commission shall also make a determination as to whether to include it in the Annual Report to the OAS General Assembly, and/or to publish it in any other manner deemed appropriate.

Article 48.  Follow-Up

1.   Once the Commission has published a report on a friendly settlement or on the merits in which it has made recommendations, it may adopt the follow-up measures it deems appropriate, such as requesting information from the parties and holding hearings in order to verify compliance with friendly settlement agreements and its recommendations.

2.   The Commission shall report on progress in complying with those agreements and recommendations as it deems appropriate.

Article 49.  Certification of Reports

The originals of the reports signed by the Commissioners who participated in their adoption shall be deposited in the files of the Commission.  The reports transmitted to the parties shall be certified by the Executive Secretariat.

Article 50. Interstate Communications

1. A communication presented by a State Party to the American Convention on Human Rights that has accepted the competence of the Commission to receive and examine such communications against other States Parties shall be transmitted to the State Party in question, whether or not it has accept the Commission’s competence in this respect. If that competence has not been accepted, the communication shall be transmitted in order that the State concerned may exercise its option under Article 45, paragraph 3 of the Convention, to recognize that competence in the specific case that is the subject of the communication.

2. If the State in question has accepted the Commission’s competence to consider a communication from another State Party, the respective procedure shall be governed by the provisions of the present Chapter II, insofar as they apply.

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