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THE AMERICAN CONVENTION ON HUMAN RIGHTS
THE AMERICAN CONVENTION
ON HUMAN RIGHTS

Crucial Rights and Their

Theory and Practice

Cecilia Medina

2nd edition

Cambridge – Antwerp – Portland

Intersentia Ltd
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The American Convention on Human Rights (2nd edition). Crucial Rights and
Their Theory and Practice
© Cecilia Medina 2017
First published in paperback in 2016, ISBN 978-1-78068-321-8

The author has asserted the right under the Copyright, Designs and Patents Act 1988, to be
identified as author of this work.

No part of this book may be reproduced, stored in a retrieval system, or transmitted, in any form,
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NUR 820

British Library Cataloguing in Publication Data. A catalogue record for this book is available from
the British Library.
To Pablo, Amalia Matilde, Anaïs and Max,
and to the memory of Jerónimo
 PREFACE

The first English edition of this book on the American Convention on Human
Rights advanced the idea that a second edition would show the Court on its
way towards maturity. This is indeed the case; the Court has developed greatly
and its case law has been affirmed in many respects. In addition, my idea when
I started to work on the case law of the Court was that the egregious violations
of human rights seen in the first cases would dwindle to give way to new case
law addressing problems of democratic societies. In that prediction, I was wrong.
I did not take sufficient account of the delay the Inter-American Commission
on Human Rights had in processing cases and of the fact that a systematic effort
would be made to attempt to clear the significant backlog. From 2004 to 2014
– the period of case law covered in this edition – the Commission has sent a
considerable number of cases to the Court concerning facts that occurred in the
1980s and 1990s, many of them massacres or disappearances. This means that
systematic and gross violations have been a significant part of the Court’s work
despite the change in political and social circumstances in the region.
This second edition is not merely an update on the jurisprudence. As
I mentioned in the first edition, I suspended my writing when I was elected to
the Court, as I believed my approach to the analyses of the Convention and
the Court’s jurisprudence would probably be changed by this experience. The
knowledge I acquired in the law of the different States under the jurisdiction
of the Court, the many social and cultural problems on the continent, and
my experience of the different approaches that were necessary to build a good
relationship with the States while at the same time maintaining independence,
needed some time to sink in. Only after it had settled in did a review of what
I wrote in the first edition seem sensible. I believe I was right about this. Certain
subjects began to emerge as being more significant than before and so they had
to be explored and developed further. Moreover, there is a further reason why
merely updating the first edition would not have been adequate. In this regional
system for the protection of human rights, political factors are always present.
When I look back to the State Parties as they were at the beginning of my term
and later at the end of it, I cannot ignore the major changes they underwent. The
Court grew at that time and this must be taken into account. The first edition
shows the Court handling cases during periods of non-democratic States or States
that had recently been able to do away with dictatorships. The jurisprudence of
that time reflects this and it is with that perspective in mind that the judgments

Intersentia vii
 The American Convention on Human Rights

should be read: a Court struggling to make of the American Convention an

instrument that would start improving the human rights situation of those
living in the American continent in hostile environments. However, from 2004
to 2014 the Court adjudicated for States already in the process of accustoming
themselves to international human rights law and international supervision. This
period also saw an increasing number of cases reaching the Court whose legal
nature reflects the problems of States already embarking on the process towards
democracy. They deal not only with deprivation of lives, or torture, or arbitrary
deprivation of life during dictatorships, but also with inter alia freedom of
speech, structural discrimination, and the lack of proper protection for women’s
human rights and for persons due to their sexual orientation. Cases involving
alleged violations of torture or ill-treatment and of personal freedom continue to
come in, but not in the framework of a situation of generalized gross, systematic
violations; instead, they mainly arise from remaining practices of badly trained
police forces and judiciary.
My experience in the Court as a judge from 2004 to 2009 reaffirmed my
belief that the American Convention, although written along the same lines as
the European Convention, does not completely resemble it: the reality of life
on the American continent shows through in many provisions. Europe and
its Council of Ministers belonged to a group of States that were determined to
eradicate Nazism from their lands and promote respect for human rights. Latin
America wrote the American Convention, I believe, with the hope that if they
wrote the words and placed them in a treaty, there would be a chance for human
rights to become important and respected at some future point in time. There is
an old saying from colonial times that guided the Spanish conquistadors when
carrying out the king’s orders: one respects the order but does not comply with
it (se acata, pero no se cumple). This position, much attenuated, still remains
today. There was a glimpse of this when the Inter-American Commission on
Human Rights (the Commission or IACHR) was created in 1959. A resolution of
a Meeting of Ministers of Foreign Affairs established the Commission; however,
the Meeting had in principle no power to create organs of the Organization of
American States (OAS), a problem they circumvented by deciding the organ
would be a sui generis entity. Some countries opposed this initiative because
“to create an organ to promote the rights before respect of these rights became
a precise and clear obligation” would be illogical.1 Among the defenders of the
setting up of this organ was the delegate of Venezuela. He did not resort to legal
or technical arguments but to what he thought was the appropriate approach,
asserting that, leaving legality aside, “there is [in America] a democratic surge
which must be put to use to strengthen everything that serves the purpose of

1 The most coherent opposition came from the delegate from Uruguay, quoted in C. Medina,
The Battle of Human Rights. Gross, Systematic Violations and the Inter-American System,
Martinus Nijhoff Publishers, Dordrecht/Boston/London, 1988, pp. 67–68.

viii Intersentia
 Preface

making human rights to be respected”. The Honduran delegate added his vote
“because it means a voice of encouragement to American democracy”.2 This has
been the spirit of the system.
The fact of life that a written legal provision would not necessarily be
complied with and that there would probably be obstacles placed in the way
of victims wishing to avail themselves of the system made the drafters of the
Convention take some precautions to limit that possibility, and it is these
precautions that made the American Convention unique. The Commission and
the Court, making use of their powers to interpret the Convention and to decide
on their Rules of Procedure, developed the sometimes scant provisions in the
Convention with regard to the functions of both organs. They aimed at making
the Convention adequate for the sorts of cases that they would have to deal with,
while also taking into account the volatile political situation in many countries.
One precaution is the admittance of an actio popularis to start cases before the
Commission. It was expected that disappeared individuals, those subject to
prolonged arbitrary detention, or those subject to severe physical or psychological
ill-treatment could not or would not start a case before the system against the
State that was subjecting him or her to those severe violations. Thus, the way out
was that the individual complaint could be started by the victim, a third person,
a group of persons, or any non-governmental entity legally recognized in one
or more Member States of the OAS,3 with or without the victim’s knowledge or
consent. In its Rules of Procedure, the Commission stated that it “may also, motu
proprio, initiate the processing of a petition which, in its view, meets the necessary
requirements”.4 In the Rules of Procedure of the Court, there is the possibility
of ending a case through friendly settlement, acquiescence of the responding
State to a complaint, or discontinuance as a result of the petitioner’s decision to
withdraw his or her complaint. In spite of the clear intention of the parties to
the case in all three of these situations, a provision in the Rules gives the Court
the power to decide to continue the case “bearing in mind its responsibility to
protect human rights”.5 There is thus the possibility of going beyond the will
of the parties when the Court feels that it has not considered the protection of
human rights properly. The Court will not allow any arrangement between the
alleged victim and the State that could be detrimental to the scope and content of
all human rights for all those under the umbrella of the inter-American system.
In this sense, the Court sees its role as going beyond that of a judge deciding
individual cases: it is the custodian of the public order created by the system.
As one can observe, the Commission and the Court take on a very important
role in looking after individuals who certainly appear to be in a weak position

2 Ibidem.
3 American Convention, article 44.
4 IACtHR, Rules of Procedure 2009, Article 24.
5 IACtHR, Rules of Procedure 2009, Article 64.

Intersentia ix
 The American Convention on Human Rights

with respect to the States. This attitude shows that the Court has felt the need
– due to the frequent periods of dictatorships or authoritarian regimes that
have plagued the continent – “to apply the Convention as creatively as possible
to counter the authoritarian tendency of those who have ruled the continent
and the tendency of society towards the maintenance of privileges that lead to
discrimination”.6 Regardless of the continent’s peculiarities, the conduct of the
Court is common among international supervisory organs. There are strong
reasons in the field of international human rights law to support it. Human
rights treaties give the judges or other international decision-makers ample room
to exercise their functions creatively. The Convention is formulated in terms of
principles and general norms, which require further development in the face of
new situations; the evolution of society will also require new interpretations from
the Court; in this sense, interpretation is dynamic. The fact that interpretation
must be pro persona also allows the Court to spread its wings, as it were, to make
human rights available to everybody and to define the mechanism by which it
operates in a manner that will help all.
The organization of this book has not been easy. The rights examined are
closely interlinked. Life and integrity are sometimes analyzed together by the
Court; the right to personal liberty, as set forth in the American Convention,
contains aspects related to integrity and to due process; due process and the right
to judicial remedy are so entwined that the Court has almost never separated
them in a judgment. Furthermore, the phenomenon of disappearances touches
all these rights – and this is reflected in each chapter – but yet it has an individual
identity that I thought should be addressed in a chapter of its own. I hope the
reader will not be confused by this new approach. In addition, as I find the social,
cultural and economic situation an important element in the study of human
rights, a few pages are dedicated to very briefly examining this subject.

6 See C. Medina Quiroga, “The Role of International Tribunals: Law-making or creative

interpretation?” in Dinah Shelton (ed), The Oxford Handbook of International Human Rights
Law, Oxford University Press, 2013, pp. 649–669.

x Intersentia
 ACKNOWLEDGMENTS

A book necessarily requires the participation of several actors, and this book is
no exception. The first actor I want to thank is the University Diego Portales,
which took me under its wings when I left the University of Chile. I deeply
appreciate the possibility of having an academic bond at this stage of my career
with a university whose work I have admired for a long time. This is not the
first time that this university has welcomed me, as it also sheltered me when I
returned from exile. For all this, I am grateful.
I have always had a close connection with several students and, in general,
with young lawyers whom I have met during my academic life. I do not think I
could have finished this book without the help and the encouragement of four of
these brilliant young people who took time aside from their heavy schedules to
read various versions of this book. My deepest gratitude to Claudia Sarmiento
and Valeska David, outstanding former students of mine, for reading several
chapters and giving me valuable comments that I have incorporated into my
writing. Also, my deepest gratitude to two wonderful officers of the Inter-
American Court of Human Rights with whom I worked with much pleasure
for six years in my time as a judge of that tribunal, Oscar Parra and Romina
Sijniensky; their comments have also constituted an improvement for my work.
I received many valuable comments from my husband, Waldo Fortin. I am
grateful for these but also for his patience during the long time it took to produce
this publication.
I want to thank Pascual Cortés, a former assistant at the Law School of the
University of Chile, who helped me with the research of the Court’s case law
and did a remarkable job. He also had an important role in devising the book’s
thematic index.
My daughter Caroline helped me with all technical details and did the table
of cases. I am very grateful for this work that takes time and precision.
A special mention to Ann-Christin Maak and Rebecca Pound, who made the
process of editing so pleasant for me, and to Intersentia, which made this book
possible.

Intersentia xi
 CONTENTS

Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi
Table of Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xix

Chapter 1.
The Court and its Circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Social and Political Landscape . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
3. General Legal Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4. The American Convention on Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.1. The Holders of Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.2. The Supervisory Organs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.3. Protected Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.4. State Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.5. Obligations to Respect and to Ensure . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4.5.1. Prevention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
4.5.2. The State’s Reaction to a Violation . . . . . . . . . . . . . . . . . . . . . . . . . 23
4.5.3. Obligations Arising from Noncompliance . . . . . . . . . . . . . . . . . . 25
4.6. Obligation to Cooperate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
4.7. Obligation to Control Conventionality . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
4.8. Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
4.9. Temporary Suspension of Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
4.9.1. Grounds for Authorizing Suspension . . . . . . . . . . . . . . . . . . . . . . 35
4.9.2. Obligations not Susceptible to Suspension . . . . . . . . . . . . . . . . . . 36
4.9.3. Proportionality of Measures of Suspension . . . . . . . . . . . . . . . . . 38
4.9.4. Prohibition on Affecting Obligations not Subject
to Suspension in Other International Law Norms . . . . . . . . . . . 40
4.9.5. Prohibition of Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
4.9.6. Notification of Other States Parties and International
Supervision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
5. The Principle of Equality and Non-Discrimination . . . . . . . . . . . . . . . . . . . . 42
6. The Interpretation of Human Rights Treaty Provisions . . . . . . . . . . . . . . . . . 51
7. Responsibility of States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

Intersentia xiii
 The American Convention on Human Rights

Chapter 2.
Disappearances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
2. Normative Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
3. The Phenomenon of Disappearances in the Court . . . . . . . . . . . . . . . . . . . . . 69
3.1. Elements and Characteristics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
3.2. The Question of Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
3.3. Evidence and State Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
3.4. Prevention and Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
3.5. Impunity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
4. The Next of Kin as Victims of a Disappearance . . . . . . . . . . . . . . . . . . . . . . . . 92
4.1. The Next of Kin and Article 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
4.2. The Next of Kin and Access to Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97

Chapter 3.
Right to Life . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
2. The Death Penalty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
3. Protection of the Right to Life in General . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
3.1. The Duty to Prevent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
3.2. The Duty to Prevent the Misuse of Force . . . . . . . . . . . . . . . . . . . . . . . . 112
3.3. Prevention at the Inter-American Level . . . . . . . . . . . . . . . . . . . . . . . . . 116
3.4. The Duty to Investigate the Misuse of Force . . . . . . . . . . . . . . . . . . . . . 117
3.5. The Duty to Punish and Make Reparation . . . . . . . . . . . . . . . . . . . . . . . 122
4. Life, Personal Integrity and Economic, Social and Cultural Rights . . . . . . 125
4.1. Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
4.2. Indigenous Peoples . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
4.3. Health, Life and Personal Integrity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
5. Protection of Life from the Moment of Conception . . . . . . . . . . . . . . . . . . . 134

Chapter 4.
Right to Humane Treatment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
2. Article 5(1) of the American Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
3. Different Kinds of Prohibited Conduct in Human Rights Treaties . . . . . . . 153
4. Prohibited Conducts in the American Convention (Article 5(2)) . . . . . . . . 159
4.1. Legal Framework. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
4.2. The Court’s Case Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
5. Treatment of People Deprived of Liberty (Article 5(2)). . . . . . . . . . . . . . . . . 168
6. The Belém do Pará Convention and its Interaction with Article 5
of the American Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174

xiv Intersentia
 Contents

7. The Obligation to Investigate, Prosecute, Make Reparations

and Punish . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
8. Separation of Convicted Persons from Accused Persons (Article 5(4)) . . . 186
9. Special Provisions for Children and Adolescents (Article 5(5)) . . . . . . . . . . 188
10. Individualization and Purpose of a Sentence (Article 5(3) and (6)) . . . . . . 190

Chapter 5.
Right to Personal Liberty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
2. General Requirements: Legality and Absence of Arbitrariness
(Article 7(2) and (3)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199
2.1. Legality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
2.2. Absence of Arbitrariness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
3. Grounds for Arresting and for Keeping a Person in Detention
(Article 7(2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
4. Procedural Requirements for an Arrest or for Preventive Detention . . . . . 206
4.1. Right to be Informed of the Reasons for Arrest (Article 7(4)) . . . . . . . 209
4.2. Right to be Notified of the Charges without Delay (Article 7(4)) . . . . 210
4.3. Right to be Brought Promptly before a Judicial Authority
(Article 7(5)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211
4.4. Right to be Brought to Trial within a Reasonable Time
or to be Released (Article 7(5)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
4.5. Writ of habeas corpus (Article 7(6)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220
5. Other State Obligations with regard to Deprivation of Liberty . . . . . . . . . . 222
6. Prohibition on Detention for Debts (Article 7(7)) . . . . . . . . . . . . . . . . . . . . . 226
7. Deprivation of Liberty of Children and Adolescents . . . . . . . . . . . . . . . . . . . 227
8. Deprivation of Liberty of Migrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
9. Deprivation of Liberty of Migrant Children . . . . . . . . . . . . . . . . . . . . . . . . . . 233

Chapter 6.
Right to Due Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 240
2. The Issue of the Fourth Instance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242
3. Right to a Hearing or Access to Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246
4. Determination of Rights and Obligations and Criminal Charges. . . . . . . . 251
5. Competent, Independent and Impartial Tribunal, Previously
Established by Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262
5.1. The Concept of a Tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262
5.2. Tribunal Previously Established by Law . . . . . . . . . . . . . . . . . . . . . . . . . 263
5.3. Competent, Independent and Impartial Tribunal. . . . . . . . . . . . . . . . . 264

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