IACHR refers case on Costa Rica to the Inter-American Court

October 15, 2021

Washington, D.C. - On June 6, 2021, the Inter-American Commission on Human Rights (IACHR) filed the case of Thomas Scot Cochran regarding Costa Rica before the Inter-American Court of Human Rights. The case refers to the international responsibility of the State for the violation of the right to information on consular assistance of Thomas Scot Cochran in the framework of the criminal proceedings against him.

Mr. Cochran was arrested at his home in the city of San José on January 20, 2003, and that same day the Extraordinary Criminal Court of San José ordered his preventive detention for six months, a measure that was extended four times. On August 17, 2004, Mr. Cochran was sentenced to 45 years in prison for the crimes of supplying narcotics to minors, manufacture or production of pornography, dissemination of pornography and paid sexual relations with minors. The defense filed a cassation appeal, which was dismissed by the Third Chamber of the Supreme Court of Justice on February 28, 2005. Subsequently, the defense filed three appeals for review, which were declared without merit.

In its Admissibility and Merits Report, the Commission analyzed the allegations presented by Mr. Cochran regarding the inviolability of the home, judicial guarantees, personal liberty, and the right to appeal the conviction handed down against him before a higher judge or court.

With respect to the first allegation, the Commission indicated that the controversy lies in the fact that, according to the petitioner, the procedure was carried out on a date and at a time different from that provided for in the court order. Based on the available documentation, the Commission verified that the search of Mr. Cochran's home that ended in his arrest took place on the day and time authorized by the judge in the case. On the other hand, it considered that there were no elements to sustain that the search was illegal or arbitrary. Therefore, the Commission did not find that a violation of the right not to be subjected to arbitrary or abusive interference with one's private home had been established.

On the other hand, the IACHR analyzed the dispute as to whether the officials who proceeded to arrest Mr. Cochran informed him of his right to information on consular assistance as a foreign citizen.

The Commission found, first, that at the time of his arrest Mr. Cochran was a citizen of the United States of America. The Commission also found that, the day after his arrest, the Criminal Judge sent a letter to the Embassy of the United States of America in Costa Rica, informing of his decision to issue a six-month preventive detention measure against Mr. Cochran. The IACHR understood that such notification is not sufficient to guarantee the right to information on consular assistance. This, given that this right, according to Inter-American standards, implies the right of the arrested foreign person to be informed without delay that he has the right to request the consular services of his State of origin.

From the reading of the case file, the Commission noted that there is no record that, at the beginning of the criminal proceedings or subsequently, the Costa Rican judicial authorities proceeded to inform Mr. Cochran of his right to information on consular assistance. Likewise, during the international proceedings, the State did not present any evidence in this regard. Consequently, the IACHR concluded that the State is responsible for the violation of Articles 7(4) and 8(2) of the American Convention on Human Rights, in relation to Article 1(1).

Regarding the alleged violation of the right to individual liberty for the imposition of preventive detention, the Commission observed that both the first order and its successive extensions, contain a reasoned and objective legal basis for its origin that accredits its necessity in accordance with the national procedural law and the Inter-American standards. The IACHR emphasized that the judge justified the existence of procedural dangers of flight and obstruction of the process. Consequently, it concluded that it was not proven that the preventive detention measure was arbitrary.

The Commission also analyzed the controversy surrounding the intervention, during the preliminary investigation stage, of one of the judges who later served on the trial court. After analyzing whether in the determination of the imposition of the precautionary measure the authority advanced a position regarding criminal responsibility, the Commission determined that it is not possible to corroborate that Mr. Cochran's right to be heard by an impartial judge was violated. In this regard, it noted that in the preventive detention order, the judge limited himself to certifying that there was a probability - and not a certainty - that Mr. Cochran was responsible for the crimes for which he was accused. On the other hand, it found that the sentence was handed down unanimously by the three members of the Criminal Trial Court.

Finally, the IACHR concluded that, considering the decision of the Inter-American Court in Amrhein et al. v. Costa Rica, the State of Costa Rica is not responsible for the violation of the right to obtain a full review of the conviction enshrined in Article 8(2)(h) of the American Convention. The Commission found that, in analyzing the cassation appeal, the Third Chamber reexamined the evidentiary assessment made by the court a quo and reviewed the way it interpreted and applied the substantive criminal law. On the other hand, the IACHR noted that the appeal for review was an opportunity for Mr. Cochran to raise various grievances related to issues of fact and evidence, as well as the application of substantive criminal law.

Based on the aforementioned considerations, the Commission concluded that the State of Costa Rica is responsible for the violation of the right to information on consular assistance enshrined in Articles 7(4) and 8(2) of the American Convention in relation to Article 1(1).

In its Report on the Merits, the Commission recommended that the State:

1. Make full reparations for the violations of rights declared in the report, including the material and non-material aspects.
2. Adopt as a measure of non-repetition the legal and administrative mechanisms necessary to guarantee the right of foreigners arrested in Costa Rican territory to have information on consular assistance. Likewise, implement a training program aimed at judicial officials, public prosecutors, and criminal investigation bodies to disseminate Inter-American standards on the right to consular assistance.

The IACHR is a principal and autonomous body of the Organization of American States (OAS), whose mandate derives from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote the observance and defense of human rights in the region and acts as a consultative body to the OAS in this area. The IACHR is composed of seven independent members who are elected by the OAS General Assembly in their personal capacity, and do not represent their countries of origin or residence.

A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for and to defend human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.

No. 278/21

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