CIDH

Reform process 2012

Background

The Individual Petition System is one of the IACHR’s main functions in furtherance of its mandate, which is “to promote the observance and protection of human rights,” as set forth in Article 106 of the Charter of the Organization of American States.  It consists of the procedures created through the inter-American instruments that give the IACHR the authority to examine complaints of human rights violations.  Salient among those instruments are the American Convention on Human Rights, its protocols, the specialized conventions, as well as the Inter-American Democratic Charter (Article 8). 

Article 44 of the American Convention reads as follows:

[a]ny person or group of persons, or any nongovernmental entity legally recognized in one or more member states of the Organization, may lodge petitions with the Commission containing denunciations or complaints of violations of th[e] by a State Party.

With respect to the States Parties to the American Convention, Article 19 of the Commission’s Statute provides that the Commission shall have the power

a. to act on petitions and other communications, pursuant to the provisions of Articles 44 to 51 of the Convention

In relation to those member states of the Organization that are not parties to the American Convention, the Commission shall have the following power

b. to examine communications submitted to it and any other available information […].

A significant portion of the Commission’s Rules of Procedure –from Article 22 to Article 52- is devoted to a description of the procedure that applies to petitions and cases, which is a four-stage process:  an initial review, admissibility, merits, and follow-up of recommendations.  In the case of states that accept the Inter-American Court’s contentious jurisdiction, once a final report on the merits has been adopted, and based on the degree of compliance with the recommendations made therein, the Commission decides whether to refer the case to the Court’s jurisdiction or to publish the Report on the Merits in its Annual Report.

For an individual petition system to be effective, a possible victim of a human rights violation must be afforded simple and rapid access to the Commission; the State and the petitioner must be afforded the right to present their views at each stage of the process, the Commission’s decision must be opportune, and the State concerned must comply with the Commission’s recommendations effectively.

The alleged victims’ access to the Commission is currently guided by the following parameters:

1. The broad definition of who has standing to legitimately file petitions with the Commission, as set forth in Article 44 of the American Convention;
2. The only formality that must be met when filing petitions is to provide the information necessary to enable a diligent examination of the facts being alleged;
3. Petitions can be filed in any of the official languages of the OAS;
4. The Commission accepts communications presented in person, by mail, by e-mail and on the digital form available at its website;
5. Proceedings before the IACHR do not require the presence of an attorney-at-law;
6. There are no expenses associated with filing complaints or petitions with the IACHR; and
7. In the admissibility and merits phases, financial assistance from a legal aid fund may be provided to cover the expenses associated with the appearance of the alleged victim, witnesses or experts at the Commission’s hearings or if the Commission deems such assistance to be necessary to process a petition or case.

Furthermore, the Commission is currently working on a new user portal through which the petitioner and the States will be able to get information on the status of petitions and cases and to file communications.

In addition to the resources projected in its Strategic Plan to hasten the Commission’s decisions on petitions and cases, it is already studying the possibility of introducing changes in its practices and adopting regulatory reforms.  In making those changes, the IACHR will pay particular attention to those situations in which a delay in processing a petition or case could be prejudicial.  The Commission will also focus on providing better information on the criteria it applied when deciding to join the admissibility phase with the merits phase of case proceedings.

Purpose of the consultation

As part of the IACHR’s careful and diligent consideration of its rules, policies and practices, and to continue an ongoing process of reflection and institutional strengthening, the Commission is asking all the actors in the Inter-American System for the Protection of Human Rights to present the observations they deem pertinent on the topics listed below:

1. Concerning the complaint
   1. The formal requirements for filing a complaint (Article 28 of the Rules of Procedure);
   2. The alleged victims: mechanisms and criteria by which they are identified and/or determined;
   3. Digitalization of the process: application criteria and safeguards to ensure access to persons, populations and communities excluded from coverage.
2. Concerning the exceptions to the principle that petitions will be reviewed in the order in which they were received when
   1. The alleged victims are elderly adults or children and it is foreseeable that the petition will lose its effet utile with the passage of time;
   2. The alleged victims are terminally ill;
   3. The alleged victims may be facing the death penalty;
   4. The Commission, through the adoption of a precautionary measure, seeks to prevent irreparable harm to the subject matter of the proceedings in connection with a pending petition or case (Article 25(1) of the Rules of Procedure);
   5. The alleged victims are deprived of their liberty;
   6. The IACHR considers that, owing to the exceptional circumstances, a delay in a decision on the merits could deprive a petition of its effet utile.
3. Concerning the decision to join the admissibility and merits phases
   1. Criteria governing exercise of the authority given in Article 36(3) of the Rules of Procedure, and the possibility of elevating these criteria to the rank of rules.  The following are examples of those governing criteria:
      1. an inextricable link between the arguments on exhaustion of domestic remedies and the merits of the case;
      2. cases of extreme gravity and urgency for the alleged victim; and
      3. when the petition’s effet utile will cease to exist with the passage of time.
   2. Means and opportunity to inform the parties of the decision to join the admissibility and merits phases, allowed under Article 36(3) of the Rules of Procedure.
4. Concerning the possibility of extending the time period currently allowed under Article 30(3) of the Rules of Procedure of the IACHR (on, e.g., the State’s response on a petition’s admissibility) to three months, with the possibility of a one-month extension.
5. Concerning the possibility of extending the time period now allowed under Article 37(1) of the Rules of Procedure of the IACHR (on, e.g., the parties’ observations on the merits) to four months, with the possibility of a one-month extension.
6. Concerning equality of arms in time periods and the appropriate responses of the IACHR when time periods are exceeded.
7. Concerning compliance with the recommendations that the IACHR makes to the States
   1. Follow-up method;
   2. Advisory services that the state concerned requires, and
   3. Conditions described in Article 46 of the IACHR’s Rules of Procedure for suspending the time limit for referring a case to the Court, provided in Article 51(1) of the American Convention; in addition to the criteria already established:
      1. When the recommendations are of such a complex nature that their compliance will require the concerted action of different branches or spheres of State institutions; and/or
      2. when a legal mechanism for the implementation of the decisions of the Commission has been established at the domestic level.
8. Additional observations on the Individual Petition System

The period to send comments ended October 5, 2012.

1889 F St. N.W. Washington, DC, U.S.A. 20006 / E-mail: cidhoea@oas.org / Phone: (202) 370-9000 / Fax: (202) 458-3650