Amicus Curiae de "Amnesty International".

IN THE
INTER AMERICAN COURT OF HUMAN RIGHTS

IN RE: REQUEST PRESENTED BY THE GOVERNMENT OF
URUGUAY FOR AN ADVISORY OPINION INTERPRETING
ARTICLE 27(2) OF THE AMERICAN CONVENTION ON
HUMAN RIGHTS.

BRIEF OF
AMNESTY INTERNATIONAL
AS AMICUS CURIAE

Legal Office
Amnesty International
International Secretariat
1 Easton Street
London WC1X 8DJ
United Kingdom


16 June 1987

I. Interest of Amicus Curiae

This brief is submitted amicus curiae by Amnesty International. Amnesty International is an independent, private international human rights organization which (1) seeks the release of "prisoners of conscience" -- men and women detained anywhere because of their beliefs, color, sex, ethnic origin, language or religious creed, provided they have not used or advocate violence; (2) works for fair and prompt trials for all political prisoners and on behalf of all people detained without charge or trial; and (3) opposes the death penalty and torture or other cruel, inhuman or degrading treatment or punishment of all prisoners without reservation. Amnesty International acts on the basis of the Universal Declaration of Human Rights and other international instruments.

Amnesty International was founded in London in 1961 and now has sections in forty-four countries (in Africa, Asia, the Americas, Europe and the Middle East). Individual members number over 500,000 and members, subscribers and supporters come from more than 120 countries. There are 3,800 local Amnesty International groups throughout the world working in support of all aspects of Amnesty International's mandate. Since it was founded, Amnesty International groups have intervened on behalf of more than 25,000 prisoners in over a hundred countries with widely differing ideologies. In 1977 Amnesty International was awarded the Nobel Prize for Peace for its work and in 1978 it received a United Nations Award for Human Rights.

Amnesty International has formal consultative status or similar formal relations with the United Nations, UNESCO, the Council of Europe, and in regard to refugees, the Organization of African Unity. since 1977 Amnesty International has attended as a "special guest" the annual regular sessions of the General Assembly of the Organization of American States (OAS).

In its work Amnesty International has received documented evidence of torture, arbitrary arrests, "disappearances" and summary executions throughout the world. It has sent observers to assess the fairness of trials in many different countries. Amnesty International has published factual and analytical reports on human rights practices all over the world, in its Annual Report, country reports and other documents, including The Death Penalty (1979), 'Disappearances': A Workbook (1981), Political Killings by Governments (1983), and Torture in the Eighties (1984).

In its experience Amnesty International has observed that without the assurance of certain procedural guarantees, the non-derogable character of the basic rights enumerated in Article 27, especially the right to life and the right to human treatment, cannot be reliably protected. These minimum judicial guarantees should be observed by all governments, especially during a state of emergency when non-derogable rights are most in jeopardy.

II. Questions Presented

The Government of Uruguay has requested an advisory opinion of the Inter American Court of Human Rights regarding the interpretation of Article 27(2) of the American Convention on Human Rights .

Article 27(2) provides:

"The foregoing provision does not authorize any suspension of the following articles: Article 3 (Right to Juridical Personality), Article 4 (Right to Life), Article 6 (Freedom from Slavery), Article 9 (Freedom from Ex Post Facto Laws), Article 12 (Freedom of Conscience and Religion), Article 17 (Rights to a Family), Article 18 (Right to a Name), Article 19 (Rights of the Child), Article 20 (right to a Nationality), and Article 23 (Right to Participate in Government), or of the judicial guarantees essential for the protection of such rights". (emphasis added)

1. Because it is often during a state of emergency that the basic, non-derogable rights are most threatened, the Government of Uruguay seeks elaboration of what are "the judicial guarantees essential for the protection of such rights" which should also be considered non-derogable.

2. The Government of Uruguay also seeks clarification of the relation of Article 27(2) of the American Convention to Article 25 and 8.

III. Summary of Argument

1. Article 27(2) of the American Convention on Human Rights enumerates basic human rights which may not be suspended even in times of national emergency. Included as non-derogable rights at the end of paragraph (2) are "judicial guarantees essential for the protection of such rights".

Amnesty International understands such judicial guarantees to mean those procedural rights which protect the individual from the abuse of power by the state. They attach from the moment the individual is taken into custody with either the tacit or explicit consent of government authorities and remain vested until the individual is releases. Judicial guarantees fulfill two functions: they provide an independent review of the legality of the state's custody of the individual and they ensure human treatment of the prisoner in compliance with national and international legal obligations.

Procedural guarantees play an important role in protecting all human rights. The international community has acknowledged their importance by including them among the substantive rights listed in human rights treaties and declarations. The international community has also enshrined in human rights agreements certain rights which are considered so fundamental that no derogation from them is permitted even when the security of the nation is threatened. Predictably, it is those rights which are most susceptible to being violated during a state of emergency.

The judicial guarantees essential to protecting basic human rights to which Article 27(2) refers, therefore, are those which logic and experience have proven to be indispensable for safeguarding rights most often violated during a state of emergency. Rights most vulnerable during a state of emergency and which can be best protected by judicial guarantees are the right to life and the right to human treatment.

The judicial guarantees essential for their protection are:

(1) No secret detention or "disappearances"; (2) No prolonged incommunicado detention; (3) Recourse to habeas corpus; (4) Observance of certain safeguards during interrogation and custody; (5) Judicial guarantees relating to a fair trial, including the right to be heard before a competent, independent and impartial tribunal, the right to be presumed innocent until proven guilty, the right to an adequate defense by legal counsel of the person's own choosing, the right not to be compelled to testify against oneself or to confess guilt, and the right to appeal the judgment to a higher tribunal.

These judicial guarantees are either specifically articulated in international human rights agreements or can be inferred from their provisions. Many of the judicial guarantees are also found in the Geneva Conventions. If such rights must be observed in times of war, governments should be obligated to observe them even during a state of emergency.

If the Court finds that the judicial guarantees enumerated above are essential for the protection of basic human rights, it follows that it must hold that they are themselves non-derogable according to Article 27(2) of the American Convention on Human Rights.

2. Some of the rights here identified as judicial guarantees essential for the protection of basic rights appear in Articles 25 (right to Judicial Protection) and 8 (Right to a Fair Trial) of the American Convention on Human Rights; yet they are not specified in Article 27(2). This apparent inconsistency is resolved when one considers that the list of rights in Article 27(2). This apparent inconsistency is resolved when one considers that the list of rights in Article 27(2) by definition was not meant to be all inclusive. The concept of judicial guarantees essential to protect the basic rights included in Article 27(2) introduces another category of non-derogable rights. These rights obligate state parties to provide judicial guarantees to ensure that basic human rights will not be suspended even during a state of emergency.

Because the drafters intended that the American Convention on Human Rights should be a living, relevant document extending the protection of human rights to cover all situations of human rights abuses, the provision concerning essential judicial guarantees was left open to interpretation and implementation by the parties. The drafters, however, also provided a means for the interpretation of this and other provisions of the Convention, namely, the Inter American Court of Human Rights. Since the parties themselves have in many instances failed to give substance to this provision, the Court should now recognize and proclaim the above mentioned judicial guarantees as being among those essential for the protection of basic human rights and should find those rights to be non-derogable.

IV. Article 27(2) of the American Convention on Human Rights Provides for

Non-Derogable Judicial Guarantees Essential for the Protection of Basic Human Rights

A. Introduction

Article 27 of the American Convention on Human Rights ("ACHR") has two main elements. It defines, in paragraph 1, the circumstances under which rights set down in the Convention may be suspended, namely, "in time of war, public danger, or other emergency that threatens the independence or security of a State Party". In paragraph 2, Article 27 also insulates from that exemption a number of rights from which no derogation is permitted. These are the substantive rights that are considered so basic, so essential, that no emergency or threat to national security can justify their violation. Drafters of the ACHR considered these rights so important that they enumerated them lest a vague or ambiguous reference leave their compliance in doubt .

Many of these rights are accorded the same non-derogable status in other treaties. For example, the International Covenant on Civil and Political Rights ("ICCPR") holds sacrosanct, inter alia, the right to life and the right to be free from torture, cruel, inhuman or degrading treatment or punishment . The European Convention on Human Rights ("ECGR") similarly holds, inter alia, the right to life and the right not to be subjected to torture, inhuman or degrading treatment or punishment to be non-suspendable . Clearly then, the international community is agreed that certain rights are so intrinsic to civilized society that they must always be protected.

The completion of the ACHR followed that of the ICCPR by three years and that of the ECHR by nineteen years. The drafters thus had the benefit of experience and thus the opportunity to acknowledge that without an additional proviso the basic non-derogable rights remained vulnerable and potentially unenforceable . To ensure that these basic rights would be implemented and respected at all times, then, the drafters of the ACHR considered it essential to include as a safety net the principle of non-suspendable judicial guarantees.

Judicial guarantees are the set of rights capable of defending the individual who comes under the control of governmental authorities. These are essentially procedural rights which stand between the individual and the untrammeled power of the state. These rights attach at the moment the individual loses his or her liberty.

In all societies observing the rule of law, an individual is at liberty until reasonably suspected of having committed a crime. At that moment the state may initiate procedures by which it has the authority to arrest and detain the individual, conduct investigations, present evidence in a court of law and execute the sentence. In some legal systems no one can be arrested unless a magistrate signs a warrant; in many systems no one can be detained unless the detention is approved by a judge or magistrate; the accused in many legal systems must be brought before a judge to be charged. Legal challenges to unlawful arrest and detention or habeas corpus proceedings are generally heard by a judge. In some countries, the judiciary officially controls the police and may take part in disciplinary acts against the police for infractions of the rules. At almost all stages of criminal proceedings then the only protection the individual has against the abuse of power is the objective review of the judiciary. The term judicial guarantees, therefore, fully encompasses procedures which commence from the moment of arrest.

Numerous studies, conventions and other normative instruments attest to the importance the international community attaches to procedural rights which protect basic human rights . While the goal of all judicial procedures is protection of the prisoner and fairness of the process by which guilt or innocence is determined, some of these procedures are considered essential to protect the basic rights and thus, according to the ACHR, would be non-derogable even in a time of national emergency.

B. Specific Judicial Guarantees for the Protection of Basic Human Rights.

Procedural guarantees are already found in the Convention or can be inferred by reference to a number of rights listed in the Convention. Logic and experience dictate which guarantees should be considered essential for the protection of basic rights. Since the drafters only referred to the concept of judicial guarantees and did not mention specific articles, the court in proclaiming certain judicial guarantees as non-derogable should not be confined necessarily to the text of the Convention.

The international community, in fact, has already recognized that without certain procedural guarantees against practices which include incommunicado detention and "disappearances", the right to freedom from torture and other inhuman treatment cannot be protected. The Human Rights Committee, for example, appears to have found an obligation for states to take steps to prohibit incommunicado detention and practices deterring "disappearances", for example, by reading together Covenant Article 7 with Article 2. Article 2 requires states to take the measures necessary to give effect to the rights recognized in the ICCPR. In considering cases of torture or similar practices the Human Rights Committee stated

"It follows from article 7, read together with article 2 of the Covenant, that States must ensure an effective protection through some machinery of control... Among the safeguards which may make control effective are provisions against detention incommunicado, granting, without prejudice to the investigation, persons such as doctors, lawyers and family members access to the detainees; provisions requiring that detainees should be held in places that are publicly recognized and that their names and places of detention should be entered in a central register available to persons concerned, such as relatives..."

If the Court finds that prolonged incommunicado detention, "disappearances" and other practices violate articles 4 and 5 of the ACHR, it is recommended that the Court similarly hold that state parties must take effective measures to end those practices. This obligation flows not only from the prohibition in Article 27(2) against suspending judicial guarantees to protect basic rights but also from the affirmative obligation in Article 2 which requires states to adopt measures necessary to give effect to rights and freedoms contained in the Convention.

According to documentation which Amnesty International has received concerning countries not only in the Americas but all over the world, when these judicial guarantees have been suspended, basic non-derogable rights have been violated:

(1) No secret detention or "disappearances",

(2) No prolonged incommunicado detention;

(3) Recourse to habeas corpus;

(4) Observance of certain safeguards during interrogation and custody;

(5) Judicial guarantees relating to a fair trial.

These procedural rights are not meant to comprise an exhaustive and final list. As new governmental practices arise which might endanger basic rights, new judicial guarantees to protect those rights might be needed. These particular rights have been selected because of their importance placed on them by the international community in the wake of current practices which violate basic rights and their logical nexus to the basic rights to be protected.

1. No Secret Detention or "Disappearances"

Secret detentions or "disappearances" are not new phenomena although the term "disappearances" or "desaparecidos" was not widely used until the mid-1970s . By "disappearances" Amnesty International means a case where

"- there are reasonable grounds to believe that a person (the victim) has been taken into custody the authorities or their agent;

- the authorities deny that the victim is in their custody or the custody of their agent;

- there are reasonable grounds to disbelieve that denial" .

When a person is secretly detained or "disappeared", there are no legal constraints on the government; even all pretenses of observing the rule of law are effectively discarded. These conditions not only jeopardize a person's basic rights, but the practice of "disappearances" itself is so heinous and beyond the bounds of civilized conduct that it may be said to constitute torture, cruel, inhuman or degrading treatment in violation of the non-derogable right listed in Article 27(2) of the American Convention on Human Rights as well as in other human rights treaties .

The Working Group on Enforced or Involuntary Disappearances, established by the United Nations in 1980 to address this growing problem , has identified the rights which are denied to a "disappeared" person:

"(1) the right to liberty and security of the person;

(2) the right to humane conditions of detention and freedom from torture, cruel or degrading treatment or punishment;

(3) the right to life" .

For the following reasons the Court should similarly find that "disappearances" deny basic human rights and therefore hold that judicial guarantees against this practice are essential and non-derogable.

A "disappearance" violates the right to freedom from torture, cruel, inhuman or degrading treatment or punishment in several ways. First, it provides the opportunity and the vehicle for mistreatment without any constraints of law or legal procedures. Second, a "disappearance" may itself constitute torture or prohibited ill-treatment in that it, at a minimum, is severe mental pain and suffering within the terms of the definition of torture found in all international instruments outlawing torture .

The practice of "disappearances", moreover, inflicts severe mental pain and suffering not only on the victim but on the family and loved ones as well. The Human rights Committee in one case, for example, has held that the applicant, the victim's mother, was herself "a victim of the violations of the Covenant, in particular of Article 7, suffered by her daughter" . The Inter American Commission on Human Rights ("IACHR") too has held the procedure of "disappearances" to be cruel and inhuman and in its 1982-1983 Annual Report found "disappearances" to be a form of torture for the victim's family and friends.

A permanent "disappearance" also violates the right to life as those who "disappear" must be understood to have actually been extra judicially executed during detention. Amnesty International observed in 'Disappearances' A Workbook:

"Wherever there is or has been concern about a pattern of "disappearances", there has also been a systematic practice of extra judicial execution. In many countries where people have been murdered with the complicity of the officials, they have first "disappeared". When individuals have "disappeared" for long periods of time (the period varies, depending on the country, from a few months to a couple of years), they are widely assumed to have been secretly executed" .

Finally, a "disappearance" violates the liberty and security of the person because the arrest and detention are arbitrary, in that they are not based on legal grounds or executed in accordance with procedures established by law. The Human Rights Committee, for example, has twice found violations of Article 9 of the ICCPR because of the victim's secret detention . In two other cases involving "disappearances" the IACHR also has found violations of Article 7 of the American Convention on Human Rights .

The right to liberty and security of the person, though not a non-derogable right, is considered so important that its breach entitles the victim to an enforceable right of compensation under the ICCPR . Victims presumably could claim compensation for its breach under Article 63 of the American Convention on Human Rights as well .

Furthermore, it must be remembered that no state may derogate from this or any right more than strictly required by the exigencies of the situation. It is hard to imagine a national emergency which could justify the authorities causing a person to disappear. While it is possible that some other elements of the right to security of the person might be temporarily suspended in some situations, a "disappearance" has been categorically condemned by the international community as a violation of that right.

The judicial guarantee against secret detention or "disappearance" then is essential to protect the basic rights of freedom from torture, cruel or degrading treatment or punishment, and the right to life as well as certain elements of the right to liberty and security of the person. The Court should hold that the judicial guarantees against "disappearances" are non-derogable rights necessary to protect the rights to life and to humane treatment and should recommend specific measures for implementing these procedural rights.

Guidance for implementing this judicial guarantee may be found in the recommendations of both the OAS General Assembly and the IACHR. In resolution AG/RES.510 (X-0/80) adopted in regard to the problem of disappearances referred to in the Annual Report and Special Reports of the Inter American Commission on Human Rights, the General Assembly at its tenth regular session recommended to governments

"that central records be established to account for all the persons that have been detained, so that their relatives and other interested persons may promptly learn of any arrest that may have been made; to request that arrests be made only by competent and duly identified authorities, and that the arrested persons be kept in premises designed for that purpose" .

In the Annual Report of the Inter American Commission on Human Rights 1981-1982, the Commission in its general consideration of "Areas in Which Steps Need to Be Taken Towards Full Observance of the Human Rights Set Forth in the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights Set Forth in the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights" similarly

"repeated its request that the fate of those who have disappeared after being arrested be clarified and their families informed of their status. It also recommended that centralized arrest records be established, that arrests be made only by competent authorities with proper identification, and that the detainees be held in places designed for the purpose" .

Thus organs of the OAS have already identified steps needed to be taken to eradicate the practice of "disappearances": 1) establishing central records; 2) having arrests made only by competent authorities; 3) holding detainees only in areas designed for that purpose; 4) informing families of the status of detainees. Amnesty International endorses these measures as effective protection against the practice of "disappearances" and urges the Court to adopt them as judicial guarantees protecting basic rights found in Article 4 and 5 of the Convention.

Amnesty International also considers the Standard Minimum Rules for the Treatment of Prisoners ("SMRTP) to provide effective measures for deterring "disappearances". Article 7 of the SMRTP requires that in every place where persons are imprisoned there shall be kept a bound registration book in which shall be entered in respect of each prisoner received: a) information concerning his identity; b) the reasons for his commitment and the authority therefore; c) the day and hour of his admission and release.

2. No Prolonged Incommunicado Detention

Incommunicado detention is the practice of denying a person arrested any access to the outside world, to legal counsel, medical personnel or family, or failing to bring the person promptly before the appropriate judicial authorities. Prolonged incommunicado detention is holding a person in such circumstances .

During the period of incommunicado detention the right to life and the right to be free from torture, cruel, inhuman or degrading treatment, two non-derogable rights, are seriously threatened. The detainee is under the complete control of the authorities who may perceive the person as the enemy or as a serious threat to national security. There are no witnesses to any misdeeds and the likelihood of ill-treatment being discovered can also be foreclosed by detaining the person long enough for any evidence of such misdeeds to heal. The opportunity for abuse by the detaining authorities, where no checks or oversight are provided, is greatly enhanced.

In its study Torture in the Eighties, Amnesty International observed:

"Torture most often occurs during a detainee's first days in custody. These vulnerable hours are usually spent incommunicado, when the security forces maintain total control over the fate of the detainee, denying access to relatives, lawyer or independent doctor. Some detainees are held in secret, their whereabouts known only to their captors. The authorities may deny that certain detainees are held, making it easier to torture or kill them or to make them "disappear". Incommunicado detention, secret detention and "disappearance" increase the latitude of security agents over the lives and well-being of people in custody" .

Judicial guarantees to prohibit prolonged incommunicado detention must then contain two elements: the requirement that the authorities bring the detainee promptly before a judge, and the right of the detainee to have access to the outside world. In the absence of these judicial guarantees, the right to life and to human treatment can be endangered.

The right of the detainee to be brought promptly before a judge is found in numerous international treaties, as well as in other normative instruments. Article 7(5) of the ACHR states: "Any person detained shall be brought promptly before a judge or other officer authorized by law to exercise judicial power". Similarly in Article 9 (3) of the ICCPR and Article 5 of the ECHR, persons accused of an offense have the right to be brought "promptly" before a judge or an officer vested with judicial authority.

The object of this procedural right is, in part, to protect the detainee form arbitrary arrest and detention. The impartial review of a judge obviously will deter or prevent the state from making false or illegal arrests and/or detaining someone in the absence of sufficient evidence. Equally important, however, the right to be brought promptly before a judge is critical to terminating that period during which the detainee is utterly at the behest of his captors. It provides a check on ill-treatment and a means for detainees to make known their complaints.

Similarly the right to have access to legal counsel, medical personnel and family acts as an essential safeguard for the right to humane treatment. According to the Standard Minimum Rules for the Treatment of Prisoners, a prisoner should be allowed to see a medical officer "as soon as possible after admission" (Article 24). A detainee or "untried prisoner" should be allowed "to inform immediately his family of his detention" and to be allowed to receive visits from them (Article 92) and to receive visits from legal counsel (Article 93).

Prolonged incommunicado detention has been recognized by the international community as the means by which authorities violate the right to life and the right to humane treatment. Therefore it is recommended that the Inter American Court of Human Rights hold that a prohibition on prolonged incommunicado detention is a judicial guarantee essential for the protection of those basis rights.

3. Recourse to Habeas Corpus

The Inter American Court of Human Rights in January 1987 handed down an advisory opinion stating that the writ of habeas corpus is a judicial guarantee essential for the protection of basic human rights which cannot be suspended by the state parties to the American Convention on Human Rights . Amnesty International fully supports this opinion and finds no need to elaborate upon the issues already considered by the Court.

4. Safeguards during Interrogation and Custody

Even though lawfully arrested and detained and brought promptly before a judge, a prisoner is still subject to possible infringements of the right to physical integrity and the right to life during custody. Certain safeguards should be observed during interrogation and custody to protect the detainee from over-zealous and unscrupulous interrogators and prison officials. Some of the procedures for detention and interrogation that should be observed concern the recording of interrogation sessions, medical safeguards during interrogation, and promulgation of codes of conduct for those conducting investigations such as the UN Code of Conduct for Law Enforcement Officials .

Both the Declaration on the Protection of all Persons from Being subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("Declaration") and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("Torture Convention") obligate states in general to take measures to prevent torture and ill-treatment. The Torture Convention specifically recommends that states

"keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment... with a view to preventing any cases of torture".

The Inter American Convention to Prevent and Punish Torture does not contain a provision specifically concerned with review of interrogation practices and treatment in custody. That Convention does share with the Declaration and Torture Convention, however, articles concerning the general obligation to enact preventive measures and contains one specific provision obligating states to take measures

"so that, in the training of police officers and other public officials responsible for the custody of persons temporarily or definitely deprived of their freedom, special emphasis shall be put on the prohibition of the use of torture in interrogation, detention, or arrest".

The Court should look to these three instruments which prohibit torture for specific means to implement procedural safeguards during interrogation and custody, a time when the rights to life and to humane treatment are clearly subject to abuse.

The Standard Minimum Rules for the Treatment of Prisoners here also provides some specific means for implementation. Article 24 provides that medical officers should see every prisoner "as soon as possible after admission". Medical officers are also to report to the prison director whenever any condition of imprisonment injuriously effects a prisoner's physical or mental health as provided in Article 25(2).

Amnesty International agrees that it is important for medical officers to examine the detainee before interrogation begins. But is equally important that medical examinations take place after each session and periodically during detention. The detainee should be allowed to have an examination by his own doctor or at least a second opinion by an independent medical officer. A detailed record of these examinations should always be made available to the detainee's own doctor, lawyer and family.

Amnesty International also believes governments should adopt and publish codes of conduct for law enforcement officials and those who maintain authority over detainees and prisoners. These codes should include a proscription against torture and ill-treatment and an obligation to report abuses to the appropriate authorities.

An essential safeguard against torture during interrogation is an effective mechanism for hearing prisoners' complaints about ill-treatment. Adequate measures should be taken to ensure that prisoners who have been ill-treated or tortured can complain to the authorities. These complaints should be investigated and acted upon and should not further jeopardize the detainee's rights.

Article 8 of the Inter American Convention to Prevent and Punish Torture, for example, guarantees the right of any person accusing the state of torture to have an impartial examination of his or her case and obligates the state to conduct an investigation of the allegations. The Declaration and Torture Convention contain similar provisions and the Torture Convention, in addition, provides in Article 14 for an enforceable right to fair and adequate compensation for the victim or his dependents.

In its Twelve-Point. Program for the Prevention of Torture adopted by the organization in October 1983, Amnesty International urged implementation, inter alia, of the following measure:

"Governments should keep procedures for detention and interrogation under regular review. All prisoners should be promptly told of their rights, including the right to lodge complaints about their treatment. There should be regular independent visits of inspection to places of detention. An important safeguard against torture would be the separation of authorities responsible for detention from those in charge of interrogation".

The Inter American court of Human Rights should recognize that safeguards during interrogation and custody are essential to protect the right to life and to humane treatment. Those safeguards can be found in the international and regional instruments concerning torture, the SMRTP, the Code of conduct for Law Enforcement Officials and other international agreements. Procedures regarding medical examinations, the recording of the details of interrogation sessions, and provision for complaints mechanisms and investigations into allegations of torture should be regarded as essential, non-derogable guarantees incorporated in Article 27(2) of the American convention on Human Rights.

5. Rights Relating to Fair Trial

The nexus between the judicial guarantee of a fair trial and non-derogable rights to life and to humane treatment is clear. A conviction and sentence resulting from an unfair trial must be considered arbitrary and therefore invalid, not being based on a fair, independent and impartial hearing in accordance with national and intentional law. To carry out a prison sentence against a person who has not received a fair trial, therefore, could be said to amount to a punishment in violation of Article 5(2). To execute a person who has not received a fair hearing could be said arbitrarily to deprive him or her of the right to life in violation of Article 4(1). The judicial guarantee of a fair trial then also protects the right to life and to humane treatment.

Article 8 of the American Convention on Human Rights lists numerous rights incorporated in the right to a fair trial. Many of these rights are also found in the preamble of resolution (XXVII) adopted by the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities at its Twenty-seventh session (1974). The resolution states the following rights relating to a fair trial are basic for any person subjected to any form of detention or imprisonment:

"the right to communicate with legal counsel; the right to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; the right to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; the right to have free assistance of an interpreter if he cannot understand or speak the language used in court; the right not to be compelled to testify against himself or to confess his guilt; the right to a fair and public hearing by an independent and impartial tribunal; the right to be presumed innocent until proved guilty according to law".

In protecting the basic rights, such as the right to life, other intergovernmental organizations have more narrowly circumscribed the essential rights relating to a fair trial. In particular, the Human Rights Committee in its general comment on Article 6 of the ICCPR concerning the death penalty has stated "The procedural guarantees... prescribed [in Article 14] must be observed, including the right to a fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for the defense, and the right to review by a higher tribunal" .

The Economic and Social Council resolution 1984/50 has adopted "Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty". Among the safeguards specified to protect the right to life form arbitrary or summary execution one may glean the elements of a fair trial:

"Capital punishment may only be carried out pursuant to a final judgment rendered by a competent court after legal process which gives all possible safeguards to ensure a fair trial, at least equal to those contained in article 14 of the International Covenant on Civil and Political Rights, including the right of anyone suspected of or charged with a crime for which capital punishment may be imposed to adequate legal assistance at all stages of the proceedings" .

Among those which Amnesty International considers essential judicial guarantees for a fair trial are: the right to be heard before a competent, independent and impartial tribunal; the right to be presumed innocent until proven guilty; the right to an adequate defense by legal counsel of the person's own choosing; the right not to be compelled to testify against oneself or to confess guilt; and the right to appeal the judgment to a higher tribunal. With all these elements present, a trial may still be unfair by reason of other defects; but certainly where any one of these is missing, the accused cannot be said to have had a fair trial, and a sentence carried out pursuant to the court's decision may violate one of the basic human rights.

In determining the essential judicial guarantees for a fair trial the Court should be guided by the following principles which are based on provisions in the major international human rights agreements .

a) The right to be heard before a competent, independent and impartial tribunal

This right is found in the Universal Declaration (Article 10), the American Convention on Human Rights (Article 8[1], the ECHR (Article 6[11]) and the ICCPR (Article 14[1]). The common elements in these provisions allow one to define this right in the following manner: A competent, and independent and impartial tribunal is one which is established by law and conforms to customary international and national legal requirements. The judge must not be prejudiced or influenced in his consideration of the case by information or pressure from outside the courtroom. The trial should take place within a reasonable amount of time. Since this judicial guarantee would apply even during a state of emergency, "reasonable" in that instance should be as soon as possible given the exigencies of the situation.

b) The right to be presumed innocent until proven guilty

 

Again, this right is so basic it appears in almost the exact language in all four human rights documents. The Universal Declaration, (Article 11[1], the American Convention on Human Rights, (Article 9[2]), the ECHR, (Article 6[2]) and the ICCPR (Article 14[2]) all refer to the right to be "presumed innocent until proved guilty according to law".

This presumption of innocence must be reflected in the proceedings of the court. The judge must be impartial and assess the defendant's guilt based only on the evidence adduced during the proceedings. Such evidence should only be presented in accordance with rules established by law. The court may not itself present evidence and the accused must be allowed to refute the evidence. The logical presumption here is that the accused must be able to be present during the trial and must be allowed to confront the evidence introduced against him or her, rights also prescribed in the Sub-Commission's Resolution 7.

c) The right to an adequate defense by legal counsel of the person's own choosing

 

The right to counsel and an adequate defense is found in the UDHR (Article 11[1]), the American Convention on Human Rights (Article 8[2][d], the ECHR (Article 6[2][n] and [c]) and ICCPR (Article 14[2][b]). In cases involving capital punishment, the ECOSOC safeguards also provide for "adequate legal assistance at all stages of the proceedings" .

It is essential that the detainee has access to a lawyer in all stages of the proceedings. If he or she is truly presumed innocent, the right to counsel to prepare a defense must be inviolate. Without the advice of counsel, the detained person may unknowingly give evidence against his or her interest or be forced to confess guilt. The visits of a lawyer also deter ill-treatment and torture; where such treatment occurs, the lawyer may be the only independent witness.

A defense is not adequate unless the accused has had sufficient time to brief counsel and counsel has had a reasonable amount of time to prepare the case. This means that counsel must have access to the accused in circumstances which protect the lawyer-client privilege. Counsel must also have access to any evidence which may be used in the proceedings.

The accused should be able to select his or her own legal counsel. Depending on the circumstances of the accused, it may be necessary to provide free or subsidized legal representation. The detainee's right to free legal assistance is found in the American Convention on Human Rights (Article 8[2][e]) and the ICCPR (Article 14[2][d]).

d) The right not to be compelled to testify against oneself or to confess guilt

The American Convention on Human Rights (Article 8[2][g] and the ICCPR (Article 14[3][g]) explicitly state this as a right although it can be inferred from other articles in the UDHR referring to the right to a "fair hearing" and "all the guarantees necessary for his defense".

This right ensures that the accused not be compelled to cooperate in the collection of evidence against him or her. This right also includes the prohibition against using as evidence a confession which was coerced under duress or torture. All three international instruments relating to the prohibition against torture recognize the importance of denying the use of such coerced testimony in any proceedings as an effective deterrent against torture. The Inter American Convention to Prevent and Punish Torture states in Article 10

 

"No statement that is verified as having been obtained through torture shall be admissible as evidence in a legal proceeding, except in a legal action taken against a person or persons accused of having elicited it through acts of torture, and only as evidence that the accused obtained such statement by such means".

The Declaration and Torture Convention impose a similar obligation not to use evidence "established to have been made as a result of torture" . The Declaration, however, omits the useful and necessary exception contained in both Conventions that such statements may be used as evidence in their own behalf .

e) The right to appeal the judgment to a higher tribunal

The right to appeal to a higher tribunal is found in the American Convention on Human Rights (Article 8[2][h] and the ICCPR (Article 14[5]). It ensures that the accused has a right to have the judgment of the court reviewed by another, higher court. This presumes that the accused will receive the verdict in writing and that sufficient time is given for such an appeal to be made.

These judicial guarantees are meant to protect the accused even in a state of emergency. It is interesting to note that the Geneva Conventions recognize the right to a fair trial even during times of war. The Third Geneva Convention concerning treatment of prisoners of war, for example, provides for procedures involving disciplinary and criminal prosecution during international armed conflict.

Article 96 requires that a prisoner of war accused of offenses against discipline shall be given

 

"precise information regarding the offenses of which he is accused, and given an opportunity of explaining his conduct and of defending himself. He shall be permitted, in particular, to call witnesses and to have recourse, if necessary, to the services of a qualified interpreter. The decision shall be announced to the accused prisoner of war and to the prisoners' representative".

Prisoners of war accused of crimes are also guaranteed certain rights relating to a fair trial. Article 99 prohibits retroactive penalties and moral or physical coercion to induce a confession, and provides for the opportunity to present a defense and the assistance of counsel. Under Article 102 a sentence is valid only if pronounced by a military court competent to try similar military personnel of the government in power; Article 103 provides for a trial to take place as soon as is reasonably possible. Article 106 provides for a right of appeal equal to the right given the members of the armed forced of the Detaining Power.

The Fourth Geneva Convention which concerns protection of civilians in time of war also recognizes procedural guarantees for a fair trial in criminal proceedings including the right to a "regular trial" by competent courts; the right of the accused to be informed in writing and in their own language of the charge, and a speedy trial (Article 71); the right of the accused to present evidence in their own defense, the assistance of counsel of their own choice (article 72) and the right of appeal provided for by the laws applied by the Court (Article 73).

Protocol I concerning international armed conflicts prescribes in Article 75 certain "fundamental guarantees". Among them are: the right to be informed promptly of the charges in a language known to the accused; the right to be heard by an "impartial and regularly constituted court"; all necessary means of defense; the presumption of innocence; the right to be tried in one's own presence; the right not to be compelled to confess guilt; and the right to be advised upon conviction of "judicial and other remedies and of the time-limits within which they may be exercised".

Common Article 3 prohibits the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized people". (emphasis added) Protocol II, which develops and supplements Common article 3, provides the judicial guarantees granted in Protocol 1 during international armed conflict for criminal proceedings during non international armed conflict.

Procedural guarantees for a fair trial even during times of armed conflict have been recognized as essential under international law. If even during times of war respect for a fair hearing of criminal charges is inviolate, it is suggested that the Court should be able to find no grounds to justify suspension of those judicial guarantees to a fair trial which inevitably protect the right to life and to humane treatment.

II. Article 27(2) Incorporates by Reference Many of the Rights Found in Articles 25 and 8

 

While Article 27(2) does not make specific reference to Articles 25 and 8, the concept of judicial guarantees essential for the protection of the basic human rights contained in Article 27(2) must necessarily include some of the rights articulated in those articles. That the drafters took care to list the non-derogable rights in the first instance and then only made reference to those guarantees necessary to protect such rights, however, is initially perplexing.

The apparent inconsistency can be resolved in several ways. In the first place, the list of rights in Article 27(2) was not meant to be all inclusive; the fact that the final phrase in 27(2) refers to other judicial guarantees indicates that the framers envisaged a second series of procedural rights which state parties would have to observe as being non-derogable . The fact that Articles 25 and 8 were at least partially included in generic language and not specifically listed should not preclude them from being considered within the group of non-suspendable rights.

Secondly, Articles 25 and 8 may have been included only in generic language because not all their provisions may be deemed equally essential for the protection of rights listed. Rather than exclude any of the rights within these articles, the framers should be understood as having merely referred to the general principles contained within the articles themselves.

Finally, the reason this phrase was drafted in generic language may be explained by examining the travaux preparatoires.

The travaux preparatoires reveal that the draft Convention prepared by the Secretariat of the Inter American Commission on Human Rights caused some division among the delegates to the Conference Committee I who were charged with drafting the substantive articles.

The IACHR draft contained in original Article 24(2) the following list of non-derogable rights: "the right to life, integrity of the person, protection against arbitrary detention, due process of law, freedom of thought , conscience and religion, recognition of juridical personality and the right not to be deprived of liberty for debt" . (emphasis added).

Several states, however, perceived conflicts between provisions of their respective constitutions which permit suspension of rights and non-derogable rights specified in Article 27(2) . Since some delegates favored mentioning procedural rights in only general terms while others insisted that the articles be referred to specifically, Committee I established a Working Group to determine "the most convenient wording" for that paragraph. The Working Group prepared the following draft:

Article 24(27)

 

"2. The foregoing provision does not authorize any suspension of rights established in the following articles: 2(to the recognition of juridical personality); 3 (to life); 4 (to integrity of the person); 5 (to not be subject to slavery); 8 (to not be subject to ex post facto laws); 11 (to the freedom of conscience and religion); 16 (to contract matrimony and to protection of the family); 17 (to a name); 18 (to nationality); 21 (to participate in government)" .

This proposal was approved by Committee I; those who had advocated specific reference to non-derogable rights had succeeded. In the debate over substantive rights, however, the concern over procedural rights was momentarily set aside.

In plenary session, however, the United States Delegation proposed a clause which would give some procedural means for protecting non-derogable rights by adding the phrase "judicial guarantees essential to protect unsuspendable rights" . Adopting this phrase was obviously a compromise solution meant to obligate states to provide some procedural guarantees while giving enough latitude to accommodate those states whose constitutional provisions allow suspension of procedural guarantees. Clearly, however, the drafters had agreed to bind states to provide a modicum of procedural rights that would vouchsafe the fundamental rights.

VI. Conclusion

The history of the Americas reveals that many states fail to take seriously their obligations under Article 27(2) of the American Convention on Human Rights not to suspend basic human rights at any time without exception. Documented reports of torture, "disappearances" and extra judicial executions especially during states of emergency have become all too common. Some further means of protecting the rights to life and to humane treatment must be found.

Amnesty International believes that the American Convention on Human Rights contains within its provisions the necessary means for effectively safeguarding the basic rights. All the major human rights treaties contain language that states should undertake measures necessary to give effect to the rights contained in their respective agreements; only the American Convention on Human Rights contains a provision explicitly obligating states to provide non suspendable judicial guarantees to protect the basic rights.

Although drafters of the convention did not specify which judicial protections are needed to safeguard basic human rights they did empower the Inter American Court of Human Rights to interpret provisions of the Convention. Through this power of the Court the drafters have ensured that the Convention is a living, relevant document designed to function effectively to protect human rights. The Court now has the opportunity to state specifically and with authority what are the essential and therefore non-derogable judicial guarantees which will effectively protect basic rights.

In light of practices known to occur in the Americas which abuse fundamental rights, Amnesty International respectfully urges the Court to find that basic human rights, in particular the rights to life and humane treatment, cannot be protected adequately and effectively in the absence of the following judicial guarantees. Amnesty International urges the Court to specifically recommend, where appropriate, the means for implementing these judicial guarantees which can be found in international agreements and the statements of organs of the OAS and other international bodies.

1. No secret detentions or "disappearances"

This practice places in extreme jeopardy the basic rights to life and to humane treatment and may itself also constitute a violation of the right to humane treatment. Amnesty International respectfully urges the Court categorically to prohibit this practice and to find as essential procedural safeguards the following measures which have been articulated by the OAS General Assembly and the Inter American Commission on Human Rights:

a) establishing central prison records;
b) having arrests made only by competent authorities;
c) holding detainees only in areas designated for that purpose;
d) informing families of the status of detainees.

Amnesty International would further urge the Court to recommend that central records contain information concerning the identity of the detainee or prisoner; the reasons for his commitment and the authority therefore; and the day and hour of his admission and release.

2. No prolonged incommunicado detention

To prevent the abuse of rights often associated with this practice, Amnesty International respectfully urges the Court categorically to prohibit prolonged incommunicado detention as well. Governments should be obligated under Article 27(2) to adopt the following essential judicial guarantees:

a) bringing the detainee promptly before a judge or other officer authorized by law to exercise judicial power;

b) allowing relatives, independent medical personnel and legal counsel prompt and regular access to the detainee.

3. Recourse to Habeas Corpus

As the Court has already stated, this is a non-derogable right which plays an essential role in the panoply of procedural guarantees.

4. Safeguards during interrogation and custody

To protect detainees' and prisoners' basic rights throughout the period of incarceration, Amnesty International respectfully urges the Court to find the following safeguards are essential and therefore non-derogable:

a) keeping under regular review procedures for detention and interrogation;
b) requiring medical personnel to examine and report on the prisoner's health before, during and after interrogation sessions;
c) informing prisoners of their rights, including the right to lodge complaints of torture or ill-treatment;
d) conducting impartial and effective investigations of such complaints, punishing those responsible and protecting complainants and witnesses from intimidation;
e) keeping separate the authorities responsible for detention from those in charge of interrogation;
f) training officials involved in custody, interrogation or treatment of prisoners to ensure that torture or ill-treatment is proscribed.

5. Rights relating to a fair trial

Since the determination of guilt or innocence profoundly effects a prisoner's basic rights, the procedures by which such a verdict is reached must be fair. Amnesty International therefore respectfully urges the Court to find as essential the following judicial guarantees:

a) the right to be heard before a competent, independent and impartial tribunal within a reasonable amount of time;
b) the right to be presumed innocent until proven guilty, a right which subsumes the right to be heard by an impartial judge, a right to present evidence and to confront adverse evidence, and the right to be present during the trial;
c) the right to an adequate defense. This right necessarily includes the right of access to all evidence used in the proceedings. A prisoner should also be able to choose his own counsel; if indigent, the state should provide free legal counsel;
d) the right not to be compelled to testify against oneself or to confess guilt. The most logical way of making this right effective is to prohibit the use of confessions extracted by torture or ill-treatment;
e) the right to appeal the judgment to a higher tribunal which presumes that the accused will receive a verdict in writing and that sufficient time is given for an appeal to be made.

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