Legislative reforms

Although legislative measures were first granted in 1997, in the cases Loayza Tamayo v. Peru, and then again in 1999 in Castillo-Petruzzi v. Peru,⁵⁷⁵ they have been more consistently granted since 2001, with the Olmedo Bustos et al v. Chile Case. In this case the Chilean State had banned the exhibition of the film ‘The last temptation of Christ’, relying on article 19(12) of the Chilean Constitution which establishes a ‘system of censorship for the exhibition and publicity of cinematographic productions.’⁵⁷⁶ The Inter-American Court found that previous censorship, as was established in the Chilean Constitution, represented a violation of the freedom of expression, set up in Article 13 of the Convention. As a consequence, the Court ordered the State to ‘amend its domestic law, within a reasonable period, in order to eliminate prior censorship to allow exhibition of the film.’⁵⁷⁷ The case is relevant since it ordered the modification of a constitutional provision in order to make it compatible with the American Convention.

From 2001 onwards, legislative measures have been applied in a wide range of topics related to:

575Case of Castillo-Petruzzi et al. v Perú para 226 (14).

576 Case of “The Last Temptation of Christ” (Olmedo-Bustos et al.) v. Chile (Merits, Reparations and Costs) Inter-American Court of Human Rights Series C No. 73 (5 February 2001) para 60.

577 idem para 103 (4).

‘children’s rights, conditions of detention, corporal punishment, death penalty, extrajudicial executions, forced disappearances, freedom of expression, judicial independence, juvenile detention, indigenous land and property titles, kidnapping or abduction, military jurisdiction, obligation to investigate, prosecute and punish, political rights, principle of legality, procedures for acquiring nationality, registers of detainees, regulation of the recourse of habeas corpus, right of judicial appeal, states of exception and suspension of guarantees, terrorism, use of force by State agents and use of information.’⁵⁷⁸

Regarding the level of specificity, they have varied over the course of time. In early decisions the Court was prone to order general reforms, ordering the states to ‘adopt the legislative, administrative and any other measures that are necessary in order to adapt [a state’s] legislation.’⁵⁷⁹ In other cases, such as in the case Olmedo Bustos v.

Chile, the Court ordered specific measures oriented to eliminate, include, or modify, specific pieces of legislation. For example, the Court has ordered the elimination of prior censorship from the Chilean Constitution,⁵⁸⁰ the Corporal Punishment Act from the domestic legislation in Trinidad and Tobago,⁵⁸¹ and, most recently, it has ordered the annulment of the prohibition to practice In vitro Fertilization (IVF) in Costa Rica.⁵⁸² In other cases, the Court has also ordered the inclusion of specific

578 Sofía Galván, ‘Legislative measures as guarantees of non-repetition: a reality in the Inter-American Court, and a possible solution for the European Court’ (2009) 49 Revista IIDH 69, pp.80-82.

579 Case of ‘Street Children’ (Villagrán-Morales et al) v. Guatemala (Reparations and Costs) Inter-American Court of Human Rights Series C No.77 (26 May 2001) para 132 (5).

580 Olmedo-Bustos et al para 103 Orders (4).

581 Case of Caesar v. Trinidad and Tobago (Merits, Reparations and Costs) Inter-American Court of Human Rights Series C No.123 (11 March 2005) para “Decides” (3).

582 in vitro fertilization paras 336 and Orders (2).

provisions, usually in criminal legislation, for example, the order to define both the forced disappearance of persons,⁵⁸³ and the sale of children,⁵⁸⁴ as an offence in criminal codes, and to approve an Ethics Code.⁵⁸⁵

The Court has also ordered the modification of specific pieces of legislation that were found to be incompatible with the Convention. It has largely ‘ordered to conform to international standards’ specific provisions of domestic legislation, in cases regarding the definition of the crimes of kidnapping and abduction,⁵⁸⁶ forced disappearance,⁵⁸⁷ and, military jurisdiction,⁵⁸⁸ among others.

Only in one decision, Raxcaco-Reyes v. Guatemala, was the Court detailed in its identification of the concrete elements different forms of the crime of kidnapping or abduction should take into account, in order to be compatible with the Convention.⁵⁸⁹ In this case a person was sentenced to death via the application of a law that

583 Trujillo-Oroza v. Bolivia (Reparations) paras 98 and Orders (2)

584 Fornerón and daughter v. Argentina Orders (4)

585 Case of Apitz Barbera et al. (“First Court of Administrative Disputes”) v. Venezuela (Preliminary Objections, Merits, Reparations, and Costs) Inter-American Court of Human Rights Series C No.182 (5 August 2008) para 253 and Orders para 19; Case of Chocrón v.

Venezuela (Preliminary Objections, Merits, Reparations, and Costs) Inter-American Court of Human Rights Series C No. 227 (1 July 2011) para 163.

586 Case of Raxcaco-Reyes v. Guatemala (Merits, Reparations and Costs) Inter-American Court of Human Rights Series C No.133 (15 September 2005) para “Orders” (5).

587 Case of Goiburú et al v. Paraguay (Merits, Reparations and Costs) Inter-American Court of Human Rights Series C No. 153 (22 September 2006) paras 179 and Orders (12).

588 Radilla-Pacheco v. Mexico para 342; Fernández-Ortega et al v. Mexico para 239; and Rosendo-Cantú and other v. Mexico para 222.

589 Raxcaco-Reyes v. Guatemala para 132 (i).

punished, with the death penalty, the perpetrators of the crime of kidnapping or abduction. The Court found that such legislation which ‘punishes any form of kidnapping or abduction with the mandatory death penalty and expands the number of crimes punishable with this sanction’,⁵⁹⁰ violated the rights to life (Article 4), and that the state must adopt legislative or other measures necessary to give effects to the rights in the Convention (Article 2). The Court ordered the modification of this article in the Criminal Code, in very precise terms:

‘It orders that the State should adopt the legislative, administrative and any other measures necessary to adapt its domestic legislation to the American Convention; in particular: (i) Modification, within a reasonable period, of Article 201 of the Penal Code in force, in order to define various specific crime categories that distinguish the different forms of kidnapping or abduction, based on their characteristics, the gravity of the facts, and the circumstances of the crime, with the corresponding provision of different punishments, proportionate to each category, and the empowerment of the courts to individualize punishment in keeping with the specifics of the crime and the perpetrator, within the maximum and minimum limits that each crime category should include, This modification should, under no circumstances, expand the list of crimes punishable with the death penalty established prior to ratification of the American Convention.’⁵⁹¹

The specificity of this order seems to be justified due to the gravity of the rights involved. In fact, the provision deals with the application of the death penalty which is

590 idem para 88.

591 idem para 132 (i).

considered a clear violation of the right to life under the American Convention. As a consequence, even though the order establishes a clear directive to the legislative power in the modification of these norms, this seems to be justified for the relevance of the rights involved.

The granting of these measures imposes several challenges for the Court. As Antkowiak has pointed out, three elements are crucial for the development of legislative measures: ‘they must be clear enough to be understood and followed by frequently unenthusiastic bureaucrats, [...] concrete enough to be verifiable by the Court in the supervisory process, [and] they should be sufficiently flexible to allow the sovereign state some discretion.’⁵⁹² In the granting of legislative measures, the Court seems to have taken a proactive role by establishing, not only those cases where domestic provisions were against international standards, but also by establishing the elements that should be taken into account by congresses and parliamentary institutions, in order to adapt its legislations.