SANTIAGO, 5 NOV 1996
Dr. Héctor Fix-Zamudio
President of the Inter-American
Court of Human Rights
SAN JOSE, COSTA RICA
In conformity with Article 64(1) of the American Convention on Human Rights and Article 51 of the Rules of Procedure of the Inter-American Court of Human Rights, the Government of Chile, a State Member of the Organization of American States and a Party to the said Convention, has the honor to address to you a request for an Advisory Opinion.
The purpose of the request is to obtain an interpretation of Articles 50 and 51 of the Convention, in the context of the specific circumstances set out below.
The Government of Chile is desirous of obtaining the considered opinion of the Court as to whether Articles 50 and 51 of the Convention give the Inter-American Commission on Human Rights authority to revise a Report which it has unanimously approved and has ordered to be published, having notified the Parties to that effect.
Specifically, the Government of Chile is requesting from the Inter-American Court of Human Rights answers to the following two questions:
(a) Can the Inter-American Commission on Human Rights, once it has, in relation to a given State, adopted the two Reports mentioned in Articles 50 and 51, and has notified the State that the second of these is definitive, subsequently make substantial changes to those reports and issue a third report?
(b) In the event that the Commission is not authorized by the Convention to make changes to its definitive Report, which of the Reports should the State consider to be valid?
In formulating this request, the Government of Chile has in mind the circumstances surrounding an actual case which was submitted to the Inter-American Commission on Human Rights.
For greater clarity and ease of comprehension, the chronological order of the events that have given rise to this request is set out below:
(1) On September 14, 1995, the Commission approved, in accordance with Article 50 of the Convention, Report 20/95 on this case, and transmitted it to the Government of Chile on October 6, 1995. The Chilean Government responded to this on February 8, 1996.
(2) On March 19, 1996, the Commission notified Report 11/96 to the Chilean Government. In its communication the Commission advised the Government of Chile that it had given final approval to the Report and ordered its publication.
(3) On April 2, 1996, the Commission wrote to the Government of Chile stating that it had agreed to postpone publication of Report 11/96, in the light of new information which the petitioners had brought to its attention on March 27 and 29, 1996.
(4) On April 22, 1996, the Permanent Representative of Chile to the Organization of American States informed the Commission of the views of his Government concerning its decision to postpone publication of Report 11/96.
(5) On May 2, 1996, at the request of the Petitioners, a hearing was held at which they, as well as representatives of the Government of Chile, participated.
(6) It is also worthy of note that, on May 3, 1996, the Commission adopted a new Report on the case, the next of which was substantially different from the text of the second Report. This last report was transmitted to the Government on May 21, 1996. The new report was described as being “a copy of the Report with the modifications approved by the Commission in its Session held on May 3 of the current year.”
It should be pointed out that this new Report of the IACHR was not unanimously approved by the Commission, as it includes the dissenting opinion of Dr Alvaro Tirado-Mejía, an opinion which the Government of Chile wholly supports.
In addition, it is the view of the Government of Chile that no power to revise and amend a final report is neither contemplated in, or can be inferred from, the text of Articles 50 and 51 of the Convention. On the contrary, such a proceeding undermines the juridical security which is essential to the functioning of the system.
Given the difference of opinion within the Commission itself over this decision, which touches on an extremely important practical and procedural aspect of the Convention, and in view of the necessity that those who take part in proceedings before the IACHR should know what they can rely upon, it is imperative that the Government of Chile be apprised to the opinion of the Inter-American Court of Human Rights on this matter.
The Government of Chile recalls and registers its full support for the dictum in the Cayara Case of the Court over which Your Excellency presides, to the effect that: “The Court must preserve fair balance between the protection of human rights, which is the ultimate purpose of the system, and the legal certainty and procedural equity that will ensure the stability and reliability of the international protection mechanism. In the instant case, to continue with a proceeding aimed at ensuring the protection of the interests of the alleged victims in the face of manifest violations of procedural norms established by the Convention itself would result in a loss of the authority and credibility that are indispensable to organs charged with administering the system for the protection of human rights.”
The Government of Chile believes that the Advisory Opinion which it is requesting is of great importance for the due application of the American Convention on Human Rights and for the proper functioning of the American regional system for the protection of human rights.
The names and addresses of the agents for this request are:
- Ambassador Edmundo Vargas Carreño, Permanent Representative of Chile to the OAS., 200 L Street, N.W., Suite 720 Washington, D.C., United States of America, telephone: No. (202) 887-5475 and fax: No. (202) 775-0713;
- Attorney Carmen Hertz Cádiz, Human Rights Advisor of the Minister of Foreign Affairs, Catedral 1183, Santiago, Chile, telephone: No. (56-2) 672-7581 and fax: No. (56-2) 699-0783.
I avail myself of this opportunity to express to your Excellency the assurances of my highest and most distinguished consideration.