University of Minnesota



CDH/CP14/99

PRESS RELEASE(*)


 

 

The Inter-American Court of Human Rights (hereinafter the “Court,” or the “Inter-American Court”) issued Advisory Opinion OC-16/99 on the 1st October 1999, during its XLV Regular Session.

Following is a summary of the relevant aspects of the advisory proceedings.

I. THE CONSULTATION

On the 9th December 1997, the United States of Mexico (hereinafter “Mexico”) submitted to the Court, an inquiry concerning the right of information on consular assistance, and its relationship to the guarantees of the due process, in the framework of prosecutions for crimes punishable with the death penalty.

The Advisory Opinion requested by Mexico with the framework of Article 64.1 of the American Convention on Human Rights, involves several international instruments, to wit: the Vienna Convention on Consular Relations, the International Covenant on Civil and Political Rights, the Charter of the Organization of American States, and the American Declaration of the Rights and Duties of Man.

Mexico requested the opinion of the Court on the following matters:

Concerning the Vienna Convention on Consular Relations

1. Within the framework of Article 64.1 of the American Convention, is it to be understood that there are provisions in Article 36 of the Vienna Convention (on Consular Relations) applicable to the protection of human rights in the American States?

2. From the point of view of international law, is the right that interested parties have to demand before the receiving state the individual rights conferred on foreigners by Article 36 of the Vienna Convention contingent on the filing of protests by the State of their nationality?

3. Taking into account the purpose and objective of Article 36.1.b) of the Vienna Convention, is the term “without delay” that is contained in that provision, to be interpreted as a requirement for the authorities of the receiving State to inform all foreigners under custody for crimes punishable with the death penalty about the rights to which they are entitled as per Article 36.1.b) itself at the time of the arrest, and in any event before the person arrested makes any statement or confession to the police or judicial authorities?

4. From the point of view of international law, and in the case of foreigners, which should be the legal consequences with respect to the imposition and execution of the death penalty if the notice to which Article 36.1.b) of the Vienna Convention refers were not given?

With respect to the International Covenant on Civil and Political Rights:

5. Within the framework of Article 64.1 of the American Convention, is it to be understood that there are provisions in Articles 2, 6, 14, and 50 of the Covenant that apply to the protection of human rights in the American States?

6. Within the framework of Article 14 of the Covenant, is it to be understood that Article 14 itself must be applied or interpreted in light of the sentence “all the guarantees possible to ensure a fair trial,” contained in paragraph 5 of the respective safeguards of United Nations, and that since this is a case of foreigners accused or indicted for crimes punishable with the death penalty, said expression calls for immediate notification to the accused or indicted individual by the receiving State, of the rights to which she or he is entitled as per Article 36.1.b) of the Vienna Convention?

7. The case being that of foreigners accused or indicted for crimes punishable with the death penalty, is there omission on the part of the receiving State of the notice required as per Article 36.1.b) of the Vienna Convention with respect to interested parties, the latter having the right to have “the means deemed adequate for the preparation of their defense” as per Article 14.3.b) of the Covenant?

8. The case being that of foreigners accused or indicted for crimes punishable with the death penalty, is it to be understood that the terms “minimum guarantees,” contained in Article 14.3 of the Covenant, and “comparable as a minimum,” contained in paragraph 5 of the respective safeguards of United Nations, exempt the receiving State from the obligation to comply immediately with the provisions of Article 36.1.b) of the Vienna Convention with respect to the person detained or indicted,?

9. The case being that of American countries established as federal States that are parties to the Civil Rights Covenant, and within the framework of Articles 2, 6, 14 and 50 of the Covenant, are said States obliged to guarantee the notice in due time to all foreigners arrested, detained or indicted in their territory for crimes punishable with the death penalty, to which Article 36.1.b) of the Vienna Convention refers, and to adopt provisions as per their internal law to ensure in such cases the notification in due time to which this article refers in all its parts, if it were not already ensured by legislative or other provisions, in order to make the respective rights and guarantees that the Covenant protects fully effective?

10. Within the framework of the Covenant, and the case being that of foreign nationals, which should be the legal consequences with respect to the imposition and execution of the death penalty in the event of failure to issue the notification to which Article 36.1.b) of the Vienna Convention refers?

With respect to the OAS Charter and the American Declaration

11. The case being that of the arrest and detention of foreigners accused or indicted for crimes punishable with the death penalty, and within the framework of articles 3.1) [1] of the Charter and II of the Declaration, is there omission by the receiving State of the notification without delay to the person under custody or indicted, about the rights to which she or he is entitled as per Article 36.1.b) of the Vienna Convention, with the proclamation by the human rights Charter, without distinction on the basis of nationality, and with the recognition by the Declaration, of the right to equality before the law without distinction?

12. The case being that of foreign nationals and within the framework of Article 3.(1) [2] of the Charter of the OAS and articles I, II and XXVI of the Declaration, which should be the legal consequences of the imposition and execution of the death penalty if the notice to which Article 36.1.b) of the Vienna Convention refers were not served?

II. THE PROCEDURE

The following States, Organs, institutions and individuals took part in the consulting procedure in their capacity as amici curiae:

States: Mexico (requesting State), El Salvador, Dominican Republic, Honduras, Guatemala, Paraguay, Costa Rica, and United States of America.

OAS bodies: Inter-American Commission on Human Rights.

Attorneys, non governmental organisations and individuals: Amnesty International; the Mexican Commission for the Defence and Promotion of Human Rights; Human Rights Watch/Americas and the Center for International Justice and Law; Death Penalty Focus of California; Delgado Law Firm and Mr. Jimmy V. Delgado; International Human Rights Law Institute of DePaul University College of Law, and MacArthur Justice Center of the University of Chicago Law School; Minnesota Advocates for Human Rights and Ms. Sandra L. Babcock; Bonnie Lee Goldstein and William H. Wright, Jr.; Mark Kadish; José Trinidad-Loza; John Quigley and S. Adele Shank; Robert I. Steele; Jean Terranova; and Héctor Gros-Espiell.

All of the above submitted their opinions to the Court in writing, and most of them participated in the public hearing that the Court held at its headquarters in San Jose, Costa Rica, on the 12th and 13th June 1998.

II. THE COURT'S OPINION

After the respective deliberations during its XLV Regular Session, the Court issued its Advisory Opinion. The conclusions of the Court are transcribed below:

The Court, unanimously, stated the following:

Article 36 of the Vienna Convention on Consular Relations recognises individual rights to foreign inmates; among others, the right to information on consular assistance, to which correlative duties on the part of the receiving State correspond;

Article 36 of the Vienna Convention on Consular Relations applies to the protection of the rights of nationals of the sending State, and is integrated into the international rules on human rights;

The expression “without delay” used in Article 36.1.b) of the Vienna Convention on Consular Relations means that the State must comply with its duty to inform the person detained on the rights that said precept recognises on her or his behalf, the moment it brings her or him under custody or, in any event, before she or he makes the first statement before the authorities;

The observance of the rights of the individual as recognised in Article 36 of the Vienna Convention on Consular Relations is not contingent on protests by the sending State;

Articles 2, 6, 14 and 50 of the International Covenant on Civil and Political Rights apply to the protection of human rights in the American States.

the individual right to information established in Article 36.1.b) of the Vienna Convention on Consular Relations, makes it possible, in specific cases, for the right to the due process established in Article 14 of the International Covenant on Civil and Political Rights to become effective; this precept establishes minimum guarantees that can be extended in light of other international instruments, such as the Vienna Convention on Consular Relations, that broaden the horizon of protection of prosecutable individuals; and

the international provisions that apply to the protection of human right in the American States, including the provision contained in Article 36.1.b) of the Vienna Convention on Consular Relations, must be observed by the American States parties to the respective conventions, regardless of whether they have a federal or a central government structure.

In like manner, the Court, by six votes to one, expressed the following opinion:

Non observance of the right that foreign individuals under custody have to information, as recognised in Article 36.1.b) of the Vienna Convention on Consular Relations, affects the guaranties of the due process, and, under such circumstances, the imposition of the death penalty constitutes a violation of the right not to be deprived of life “arbitrarily,” in terms of the relevant provisions of human rights agreements (i.e. the American Convention on Human Rights, Article 4; the International Covenant on Civil and Political Rights, Article 6), this having the legal consequences that are inherent to a violation of this nature; that is, those that apply to the international responsibility of the State and the obligation to provide reparation.

Judge Jackman informed the Court of his Partially Dissenting Vote, and Judges Cançado Trindade and García-Ramírez of their Concurring Votes, which are attached to the Advisory Opnion.

IV - COMPOSITION OF THE COURT

The members of the Inter-American Court are Antônio A. Cançado Trindade (Brazil), President; Máximo Pacheco-Gómez (Chile), Vice President; Hernán Salgado-Pesantes (Ecuador); Oliver Jackman (Barbados); Alirio Abreu-Burelli (Venezuela); Sergio García-Ramírez (Mexico), and Carlos Vicente de-Roux-Rengifo (Colombia). The Court's Secretary is Manuel E. Ventura-Robles, and Renzo Pomi is Deputy Secretary.

In conformity with the American Convention on Human Rights, the Inter-American Court of Human Rights, an autonomous legal institution of the Organization of American States established in 1979, is comprised of legal experts of the highest moral authority and recognised competence in the field of human rights.

For further information, please address all request to:

Manuel E. Ventura-Robles, Secretary

Inter-American Court of Human Rights

Apartado 6906-1000, San Jose, Costa Rica

Telephone (506) 234 0581. Telfax (506) 234 0584

E-mail: corteidh@racsa.co.cr

San Jose, 2nd October 1999.


Footnotes / Pies de página

(*El contenido de este comunicado es responsabilidad de la Secretaría de la Corte Interamericana de Derechos Humanos. El texto reseñados puede obtenerse mediante solicitud escrita dirigida a la Secretaría, en la dirección que adjunta. se

[1] La referencia original que hizo el Estado solicitante corresponde al artículo 3.l) de la Carta reformada por el Protocolo de Buenos Aires en 1967, por el Protocolo de Cartagena de Indias en 1985, por el Protocolo de Washington en 1992, y por el Protocolo de Managua en 1993.

[2] Supra nota 1.

* The Secretariat of the Inter-American Court of Human Rights is responsible for the contents of this release. The official version of the documents referred to may be obtained by written request to the Secretariat at the address indicated.

[1] The original reference made by the requesting State corresponds to Article 3.1) of the Charter reformed by the Buenos Aires Protocol in 1967, the Cartagena de Indias Protocol in 1985, the Washington Protocol in 1992, and the Managua Protocol in 1993.

[2] Supra, note 1.

 

 

 



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