Memorial Amicus Curiae presentado por International Human Rights Law Institute of DePaul University College of Law.
December 5, 1991
Secretary, Inter-American Court of Human Rights
Barrio Los Yoses
San Jose, Costa Rica
Dear Mr. Secretary:
Enclosed for Filing, if time permits, are an original and 20 copies of a Memorandum Amicus Curiae, including a request for leave to file, in Aloeboetoe. I apologize for not having had time to translate it into Spanish, and for sending "fax"copies, but these steps were necessary because I am attending meetings in Europe.
Thank you and the Court for your kind consideration. Best regards.
(s)Douglas W. Cassel, Jr.
cc: David Padilla,
Inter-American Commission (w/encl.)
Ambassador Willem Udenhout of Suriname to the Organization of American States (w/encl.)
TABLE OF CONTENTS
I. Interest of Amicus and Request for Leave to File
II. Summary of Submission
III. Difference in Fact-Finding Practices in Inter-American and European Human Rights Systems
B. Stocke Compared To Aloeboetoe and Gangaram Panday
I. INTEREST OF AMICUS AND REQUEST FOR LEAVE TO FILE
The International Human rights Law Institute of DePaul University College of Law is dedicated to the academic study and public advocacy of international human rights law. since its creation in 1990, the Institute has placed a special emphasis on efforts to strengthen and improve the Inter-American Human Rights system.
The Commission's Memorials in these cases raise several important legal issues (listed at pp. 21-22 of the Aloeboetoe Memorial and p. 13 of the Gangaram Memorial). However, the Memorial of the Amicus Institute is limited to the single issue, posed by the Commission in both cases, of whether the Court should accept as proved the facts as found by the Commission.
As posed by the Commission, this question has broad ramifications for cases before this Court. The Commission's Memorials (e.g., Aloeboetoe, pp. 37-38) contend that finding and verifying the facts in "fundamentally"a responsibility of the Commission, not the Court. The Commission relies in part on the recent decision of the European Court of Human Rights in the Stocke Case, No. 28/1989/188/248, Judgment of 19 March 1991, paragraph 53, which held that the European Court would exercise its fact-finding powers only in "extraordinary" circumstances. The Commission goes so far as to imply that this Court should order further evidentiary submissions only when it finds that the procedure before the Commission violated the Convention.
Amicus is sympathetic with the laudable goals stated by the Commission, namely to increase the number of cases which may be heard by the Court and the efficient functioning of the Inter-American Human Rights system. However, amicus is concerned that there are differences in practice between the Inter-American and the European systems, which suggest caution with regard to adopting the Stocke rule in this system, especially with respect to Commission findings adverse to the complainant. Nonetheless, amicus believes that it is possible to achieve an accommodation of the Commission's goals in a manner consistent with procedural fairness and institutional reliability.
Amicus therefore seeks leave of the Court to submit this Memorial, limited to the issue of the allocation of fact-finding responsibility between the Commission and the Court.
II. SUMMARY OF SUBMISSION
In order to increase the number of cases which can be decided by the Court, and to promote the efficient functioning of the Inter-American Human Rights system, it would be desirable for the Court to rely upon factual findings of the Commission, whenever such reliance is consistent with fairness to the parties, the complainant and the victim, and with the overall integrity of the system.
However, the Court should not go so far as suggested by the Commission, i.e., to accept the facts as found by the Commission so long as that body's fact-finding process has not violated the Convention. Instead, the Court should accept the Commission's findings of fact only when (1) all parties adversely affected, including the complainant and the victim with respect to findings adverse to them, have been fairly heard before the Commission, or have had a fair opportunity to be heard, and (2) the Commission's findings are based on evidence of sufficient probative value as to be persuasive.
This means that this Court should not accept the rule of the European Court in Stocke that it will exercise its fact-finding capacities only in "extraordinary" cases. Such a rule may be appropriate in the European system. In Europe, trials generally comporting with due process are ordinarily held before the national courts. In Europe, defendant governments rarely fail to appear and present their cases before the Commission. And the European Commission, in cases of significant facts remaining in dispute, conducts adversary evidentiary hearings, in which the complaining party is entitled to be represented by counsel, including legal aid counsel where the complainant lacks sufficient funds to pay his own counsel.
Thus, by the time a case is processed through the national courts and the European Commission, rarely is there a need for the European Court to undertake further fact-finding measures. Hence the Court will do so, as stated in Stocke, only in "extraordinary"cases.
In contrast, at the current stage of juridical development in the Americas, the conditions precedent to the Stocke rule are often not present. Trials before the domestic courts may be either nonexistent or inadequate with respect to fair development of evidentiary facts. Governments often fail to appear, or make only a token appearance with no significant evidentiary presentation before the Commission. The Commission does not generally (if ever) conduct adversary evidentiary hearings. Even if it attempted to do so, the lack of prevision for legal aid counsel might prevent complainants from fairly participating in such hearings. Accordingly the rule of Stocke is not ripe for adoption in the Inter-American system.
This is not to say that the Court can never rely on the facts as found by the Commission. In the present cases, for example, the Commission appears to have made factual findings which are not adverse to the complainants and alleged victims. the government, which had sufficient resources to present an evidentiary case had it chosen to do son, failed to do so despite numerous opportunities, both for written submissions and for hearings before the Commission.
Thus, in the instant cases the first criterion for the Court's adopting the Commission's findings --a fair opportunity for the adverse party to be heard-- appears to be met. the question remains whether the second criterion --sufficiently probative evidence on which to rest the findings-- is also met. Amicus has not reviewed the evidence in this record sufficiently to express a view on this question. but if the findings of this Court are to enjoy the confidence necessary for acceptance of its rulings by governments and by the public, amicus believes that is important that the Court examine the Commission's evidence, and satisfy itself that the evidence does (or does not) persuasively support the findings which the Commission now asks the Court to adopt.
Finally, it should be noted that the issue posed by the Commission implicitly has two separate components. One is the question of whether the Court wishes to exercise its undisputed power under the Convention and the Rules to take additional evidence. Amicus suggests that the Court should consider hearing evidence, except where the two-part test outlined above is met.
The other question is what standard of review should the Court utilize, in deciding whether to accept the Commission's factual findings. At the present time, until sufficient experience in the court's adopting Commission findings has accumulated, the Court might wish to consider using a de novo standard of review, in order to be sure that the Court is fully satisfied with the evidentiary basis of its findings. Over time, Commission findings may prove to be sufficiently reliable, and its fact-finding procedures sufficiently developed, to merit some degree of deference to Commission findings in cases where the affected parties have had a fair opportunity to be heard. At this time, however, a more cautious approach may be prudent.
III. DIFFERENCE IN FACT-FINDING PROCEDURES BETWEEN EUROPEAN AND INTER-AMERICAN HUMAN RIGHTS SYSTEMS.
A. In General
At least three significant differences in fact-finding processes between the European and Inter-American Human Rights systems bear on the extent to which the Courts in each system should accept factual findings by their respective commissions.
First, the complainants in the European system ordinarily have the benefit of trial proceedings before their national courts which, in general, comport with basic requirements of due process, including the opportunity to present evidence and witnesses, and to confront and cross-examine the witnesses offered by the government. Perusal of the reports of the European Court reveals many such instances.
In contrast, victims of human rights violations in many countries in the Americas do not enjoy domestic legal systems in which they have a fair opportunity to develop the facts. The futility of habeas corpus remedies in the early 1980s in Honduras, as found by this Court in the Velasquez Rodríguez case, exemplifies this reality (As noted below, so do the present cases).
As a result of this difference, by the time a case reaches the Commission, the factual record is likely to be less fully and fairly developed in the Inter-American than in the European Human rights system.
A second difference is that in Europe defendant governments generally appear before the Commission, presenting evidence (including the record of the national court proceedings) when appropriate. In contrast, defendant governments in the American often fail to appear before the Commission or, as in the present cases, formally appear but present no significant evidence.
As a result, absent affirmative efforts by the American Commission to obtain facts, its record is, for this additional reason, likely to be less fully developed that the record in a case before the European Commission.
Third, in cases where a significant factual dispute exists, the European Commission can and does assign a delegation of the full Commission to conduct a trial-type evidentiary hearing, in which both the complainant and the defendant government are entitled to participate, to be represented by counsel, including legal aid counsel where the applicant needs such financial assistance, to present evidence, and to cross-examine opposing witnesses. In such cases, the European Commission staff do not perform investigative or prosecutorial roles; rather, the merely advise the Commission's delegates, whose role is to be impartial fact-finders.
In the Inter-American system, in contrast, such "trials" are not generally (if ever) held before the Commission or its members. Indeed, the "trial" conducted before this Court in the Honduran disappearance cases was important for the legitimacy of the Court's findings, and was essential precisely because no such trial had been held before the Commission.
In sum, all these differences collectively suggest that a Stocke rule may be appropriate in the European system, but is not yet consistent with the procedural realities of the Inter-American system.
B. Stocke Compared to Aloeboetoe and Gangaram Panday.
The foregoing differences are illustrated in the proceedings in Stocke as compared to the present cases.
In Stocke the national (German) appellate court had issued a 399-page ruling explaining its decision on a record including the testimony of pertinent witnesses. Judgment of the European court of Human rights at p. 8, para. 33. Nonetheless, once the case reached the Commission, a three-member delegation of the Commission heard at least nine witnesses on three separate dates. Id. at p. 13, para. 51.
In that context, the European Court denied the applicant's request that the Court hear five witnesses (one of whom had already been heard by the Commission). Id. at p. 14, para. 52 and 53. the Court noted the conclusions reached by the national courts after through investigations, as well as the "numerous witnesses already heard by the Commission". Id.
Even so, one member of the Court, concurring in the result, specifically noted that in view of the passage of 12 years since the events in question, further factual inquiry would not have helped to clarify the facts. Thus, even after the extensive fact-finding processes in adversary hearings before the national courts and the Commission, at least on member of the Court implied that he might have taken further evidence had the case not bee stale.
In the present cases, by comparison, no trial proceedings were held before any courts in Suriname, and no credible investigation has been presented by the government of Suriname. Not were any trial proceedings held before the Commission, although the government of Suriname was offered at least three hearings, in which it might have sought to present such evidence. Moreover, while the investigative efforts by the Commission's staff are to be commended, the extent of the investigation was (perhaps necessarily) limited, as is the resulting evidentiary base. See, for example, the declarations attached to the Commission's Memorial in Aloeboetoe.
The Commission is to be commended for seeking to increase the number of cases which can be decided by the Court and to improve the overall efficiency of the Inter-American Human Rights system. Amicus encourages the Court to send a signal to governments and the public that is will seek, to rely on the Commission's findings of fact whenever appropriate, and that extensive evidentiary proceedings of the sort conducted in the Honduran disappearance cases should not necessarily be expected in every case that comes before the Court.
At the same time, in approaching this question, the Court should be sensitive to the differences between the European Human Rights system, and the Inter-American system at its present stage of development. Moreover, in fairness to the parties, including the complainant and victim with respect to any adverse findings, the Court must be assured that the opportunity for a fair hearing exists at least at some point during the processing of a complaint through the system. Finally, to ensure respect for the findings of the Court, and hence of its decisions, the Court should ensure that the procedures it adopts yield findings of fact which are both reliable and which appear to be reliable.
(s)Douglass W. Cassel, Jr.
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