The Commission may not admit petitions unless all remedies available under domestic law have been invoked and exhausted in accordance with generally recognized principles of international law. Administrative or judicial decisions must be appealed, wherever possible, unless it can be shown that such appeal would be futile.
Some exceptions to the requirement of exhaustion of domestic remedies are –
- Proof of exhaustion of domestic remedies need not be presented if the complainant can show that the domestic legislation of the state concerned does not afford due process of law for the protection of the right;
- the victim had been denied access to the remedies under domestic law or otherwise prevented from exhausting them; or
- there has been unwarranted delay in rendering a final judgment under those remedies.
The petition must be filed with the Commission within six months from the date on which the party alleging violation of his rights has been notified of the final judgment. Lastly the Commission will not examine a petition where the subject of that petition is pending in another international proceeding for settlement.
The decisions and recommendations when carried out by the States are effective tools by which states strengthen their mechanisms to protect and promote human rights. The Commission in 1997 received 435 petitions in 2010 it received 1598. So the Commission is a victim of its own success. Like the domestic system, the Commission is plagued by a serious backlog. However the protocol is that cases involving death row prisoners and children are given priority.
Friendly settlements provide an opportunity for dialogue between States and individuals or groups of individuals. They also provide a forum for discussion on such issues as reparations and guarantees of no–repetition, recognition, systemic reforms leading to legislative and public policy initiatives, programmes and services.
The Commission focuses on certain disadvantaged groups by creating thematic rapporteurships. The present rapporteurships are for women, children; persons deprived of liberty, Afro Descendants, indigenous people, migrant workers and their families; and the latest, human rights defenders. There is also a special rapporteurship for freedom of expression. In addition the states of the hemisphere are divided among the commissioners creating what are called country rapporteurs.
Monitoring Human Rights Situations in Member States
The Inter-American system is the only regional mechanism in the Americas that monitors States compliance to an established set of human rights standards. The system functions as a facilitator between government and civil society to ensure that human rights and freedoms remain integrated in government policy and planning and these rights and freedoms are not left behind in the pursuit of economic development and citizen security. The recommendations of the Commission and decisions of the Court have been instrumental in assisting Member States to re-examine legislation and policies in the area of human rights.
The Commission monitors the human rights situation by making in loco visits to states and thus getting a first hand view of the human rights situation in those states. These visits may be by the full Commission or by the country rapportuer or the thematic rapportuer. These visits serve not only to highlight the human rights situation in the country but can booster the work of human rights defenders at home.
For example the Commission made several visits to Haiti to monitor and advise on the human rights situation there. The Commission also played an important role in keeping donors interested in alleviating the dire plight of the people of Haiti. In Columbia, the Commission was kept busy in ensuring that the effect of the internal armed conflict on the most vulnerable was monitored and given the Government’s attention.
In December 2008 the Commission made an in loco visit to Jamaica at the invitation of the Jamaican government. The Commission’s visits are always on the invitation of the governments. Sometimes the Commission has to invite the invitation and other times the invitation comes with conditions (always refused). As a result of the visit the Jamaica Gleaner newspaper screamed on May 24th 2009,
“Lock it down! – Inter-American Commission on Human Rights calls for major overhaul of the lock-up at Hunts Bay Police Station.
A preliminary report prepared by the Inter-American Commission on Human Rights (IACHR) in December 2008 called for the closure of the Hunts Bay Police Station lock-up in the St Andrew South Division.
The damning prelude to the final report, scheduled for release later this year, called on the Government to act with immediacy in remedying what it deemed inhumane conditions in police holding cells.
“The commission calls for urgent action to be taken to transfer the persons detained at Hunts Bay to a place that offers adequate standards of detention,” the introductory report said.
The commission recommended that the State comply with the applicable international human-rights standards and take the necessary measures to resolve the problem of overcrowding in prisons and police holding cells.
However, Superintendent Delroy Hewitt, the officer in charge of the division, dismissed the commission’s call to transfer the persons detained at Hunts Bay to another location, as he believes the findings of the IACHR were written in hyperbolic terms.
“I think it is highly exaggerated. It is not as easy as that; taking prisoners and transferring them because the other facilities probably suffer from the same overcrowding,” he said.
I say as one of the Commissioners who visited Jamaica that the conditions at the lock up were worse than the Commission reported. Words could hardly describe the inhumane conditions at the Hunt Bay police lock up.
The most famous visit would have been when the Commission visited Argentina in 1979 during the height of the dictatorship. That visit brought to light the systematic human rights violations that were being perpetrated by the dictatorship. They collected harrowing testimonies of persons being shot and of children being taken from their families and never seen again. The Commission insisted on visiting lockups. They discovered secret cemeteries. It is said that the visit and the report of the Commission was a turning point in the restoration of the rule of law in Argentina. The Commission visited Argentina fifty years later to commemorate that first visit and we were received with adulation, if not reverence. On that visit, as part of the Commission, I really realized how powerful a body the Commission was in protecting human rights even where the Commission had to confront dictatorship and authoritarian governments in doing so.
Article 25 of the Rules of Procedure of the Inter-American Commission on Human Rights provides that “In serious and urgent cases and whenever necessary according to the information available, the Commission may, on its own initiative or at the request of a party, request that the state concerned adopt precautionary measures to prevent irreparable harm to persons”. The mantra in the Commission is that precautionary measures save lives. It is true. A good example of the usefulness of precautionary measures in protecting human rights is the case of persons living with aids in El Salvador. The Commission issued precautionary measures requesting that El Salvador provide free antiviral therapy. The precautionary measures were instrumental in bringing about the adoption of public policy in El Salvador that guarantees treatment for all persons living with HIV in El Salvador.
However precautionary measures are not always successful. For example the Commission often issues precautionary measures to the United States of America involving death row cases. These are regularly ignored and prisoners executed in the face of the precautionary measures.
Hearings and Reports
The Commission holds hearings during its regular sessions having to do with alleged violations. For instance, at the next session of the Commission to be held next week, among the hearings scheduled is, “The Human Rights Situation of Persons Living with HIV in Countries of the Caribbean region” – requested by PAHO. The Commission will also have hearings on the human rights situation in Haiti, Nicaragua and Honduras.