Substantive standards: GNR in cases of ‘general patterns’ of violations

In its first cases the Court did not take into account the systemic character of a violation, or the pattern of recurrence in which the violation took place, in order to award or reject any request of GNR. As a consequence, the Court did not grant any strong GNR in cases that had a clear structural component. For example, in the Cases Castillo Paez v Peru, and Blake v. Guatemala, both cases relating to a proven pattern of disappearance of political opponents, the Court ordered the states, in very

622 Case of Valle Jaramillo et al. v. Colombia (Preliminary Objections, Merits, Reparations, and Costs) Inter-American Court of Human Rights Series C No. 192 (27 November 2008) para 239; Manuel Cepeda-Vargas v. Colombia para 238.

623 Case of Heliodoro Portugal v. Panama (Preliminary Objections, Merits, Reparations, and Costs) Inter-American Court of Human Rights Series C No. 186 (12 August 2008) para 262.

624 Tristán Donoso v. Panama para 211.

general terms, to ‘adopt the necessary domestic legal measures to ensure that this obligation is fulfilled.’⁶²⁵ Although this measure has some structural dimension, the Court did not grant any specific measures aimed at addressing the pattern of violence in which the violations took place.⁶²⁶

In contrast, the Court has ordered important GNR in cases of individual violations that were not necessarily part of a pattern of violations by the state. For example, in the case Gutiérrez Soler v. Colombia, the Court analyzed the case of Mr. Wilson Gutiérrez who was detained and tortured by members of the National Police. The case was not presented before the Court as part of a systemic violation, or as part of a context of torture against a particular population. The Court, however, ordered the state to grant wider GNR in the form of human rights training for officials,⁶²⁷ measures of dissemination and implementation of the Istanbul Protocol,⁶²⁸ and measures to strengthen existing control mechanisms in state detention centers.⁶²⁹

The lack of connection between the granting of GNR and the demonstration of a

‘pattern of violations’ may be problematic. As more of the cases presented before the Inter-American System are related to individual violations of human rights, this standard may raise the expectation of the victim’s representatives who, as a result of

625 Case of Castillo-Páez v. Peru (Reparation and Costs) Inter-American Court of Human Rights Series C No.43 (27 November 1998) para 118 (2).

626 According to Antkowiak, other measures would have included ’orders to build transparency/accountability within government institutions, to increase civilian control over the military, and to implement military/police training programs on human rights’. Antkowiak, Remedial Approaches to Human Rights Violations 371 [footnote 99.]

627 Case of Gutiérrez-Soler v. Colombia (Merits, Reparations and Costs) Inter-American Court of Human Rights Series C No. 132 (12 September 2005) paras 106-107.

628 idem para 110.

629 idem para 112.

the litigation, may request the granting of GNR in cases that affect exclusively the individual victim in the case, and do not necessarily reflect a generalized problem, or have a public impact. Unless the case clearly shows a risk of repetition or it is related to a gross or serious violation, the demonstration of a pattern of violations should be a relevant criterion in the award of GNR.

In more recent cases, the Court has applied a more restrictive criterion, stating that it is necessary to prove that there is a ‘generalized problem’ or ‘general pattern’, in order to grant certain GNR. For example, in Salvador Chiriboga v. Ecuador, the Court found that the expropriation of certain property for environmental reasons, but without the respect of the legal procedure to restrict rights, violated the Convention.

As a consequence, the Commission requested, as a GNR, the training of administrative and judicial officials involved in expropriation processes on human rights. The Court, however, considered that ‘it was not proven that the violations and circumstances proven in the case sub judice constitute a generalized problem in the substantiation of these type of trials in Ecuador’ [emphasis added].⁶³⁰

Similarly, in the case Mejía Idrovo v. Ecuador, the Court found a lack of compliance of a judicial decision that ordered the payment of compensation for the suspension of Mejía Idrovo’s job as a Colonel of the Army. The representative requested, as GNR, the state to be ordered to carry out specific training courses on human rights for the military high command, and to take all necessary measures to adapt its legislation to accord with the Convention. The Court found that ‘since no violation of Article 2 of the Convention was declared, nor the existence of general patterns of

630 Case of Salvador-Chiriboga v. Ecuador (Reparations and Costs) Inter-American Court of Human Rights Series C No. 222 (3 March 2011) para 131.

noncompliance with the rulings’, [emphasis added]⁶³¹ these measures were not appropriate.

Recognizing the need to prove a pattern of violations as one of the conditions for the granting of GNR implies accepting that they cannot be granted in all cases but only

‘if circumstances so require’⁶³² as stated in the ILC Articles, or ‘where applicable’ as stated in the Basic Principles and Guidelines on the Right to a Remedy.⁶³³

The request for a ‘generalized pattern’ or ‘generalized problem’ has been implicitly applied by the Inter-American Court in order to grant GNR in cases with a clear public dimension. For example, in the case Gonzales et al (Cotton Field) v Mexico it was proved by the Commission and the petitioners, and accepted by the State, that there was a context of systematic discrimination against women, in Ciudad Juarez (Mexico).⁶³⁴ This pattern was not directly caused by the state. However, the existence of a climate of impunity reveals such a pattern was tolerated and, in some cases, even promoted by Mexican authorities.⁶³⁵ The Court ordered various GNR in order to prevent the repetition of the facts, including, among others: the standardization of protocols to combat the disappearances and murders of women, implementation of a program to look for and find disappeared women, creating legal mechanisms against impunity, and, human rights training for officials and the general public.⁶³⁶

Also, in the ccase Nadege Dorzema v. Dominican Republic, both the Inter-American Commission and the victims proved that the case happened in a context of structural

631 Mejía-Idrovo v. Ecuador para 144.

632 ILC Articles, Article 30.

633 UNGA Basic Principles and Guidelines para 23.

634 Cotton Field paras 133 and 144.

635 idem para 388.

636 idem paras 474-543.

discrimination towards Haitians in the Dominican Republic.⁶³⁷ The Court, however, was very careful in not expressing its opinion regarding the structural situation of discrimination against such persons, only making reference to the specific situation of discrimination faced by the victims in the case.⁶³⁸ However, when granting the measures, the Court clearly linked the patterns of discrimination within the case, with the remedies ordered. According to the Court:

‘since it has been proved that the State was responsible for a pattern of discrimination against migrants in Dominican Republic, the Court finds it relevant that the State organize a media campaign on the rights of regular and irregular migrants on Dominican territory in the terms of this judgment.’⁶³⁹

Later on, in the case Expelled Dominicans and Haitians v. Dominican Republic , the Court studied the context of poverty and discrimination suffered by Haitians and people born in Dominican territory with Haitian ascendency. The case dealt with the arbitrary arrest and summary expulsion of 26 Haitian individuals and Dominicans of Haitian descent, along with the implementation of discriminatory policies that did not allow the right to a nationality for individuals born in the Dominican Republic but whose parents were not citizens. The Court documented extensively the existence of a systematic pattern of collective expulsions of Haitians and people of Haitian origin which happened to have a discriminatory effect against this population.⁶⁴⁰ Although the Court did not link the pattern of collective expulsion with the granting of GNR, the

637 Nadege Dorzema et al v. Dominican Republic paras 219-22.

638 idem para 40.

639 idem para 272.

640 Case of Expelled Dominicans and Haitians v. Dominican Republic (Preliminary Objections, Merits, Reparations, and Costs) Inter-American Court of Human Rights Series C No. 282 (28 August 2014) para 171.

Inter-American Court awarded extensive reparation measures. The Court ordered human rights training for state operators, in particular, for members of the Armed Forces, border agents and agents in charge of migratory and judicial procedures;⁶⁴¹ the adoption of measures of domestic law and, particularly, the adoption of the necessary measures to ensure that the judicial decision that approved discriminatory measures, had legal effects.⁶⁴² The Court also ordered the authorities to exercise a

‘conventionality control’ of the decisions that the authorities were in charge of implementing.⁶⁴³

Adding the criterion of ‘generalized pattern’ or ‘generalized problem’ may be an interesting way to narrow down the criteria for the granting of GNR. This standard could help the Court to gain legitimacy in order not to award GNR, in individual cases without a ‘public relevance’, but, at the same time, allows them the freedom to award truly comprehensive GNR, in cases that do clearly reveal a systemic problem. For example, in the Karen Atala v. Chile, and Nadege Dorzema et al v. Dominican Republic, Cases, arguably there were patterns of discrimination against women and Haitian migrants, based on sexual orientation and origin, respectively. Although these patterns were not explicitly proven in the mentioned cases, a different standard for the application of GNR, one that takes into account the generalized patterns of violations, would have helped the Court to develop comprehensive measures directly linked to redressing the structural situation of discrimination. For example, policies directed at public officials in the judicial branch, in order to eradicate discrimination based on gender, or directed to public officials in the registry offices, in order to eradicate discrimination based on ethnic origin in Dominican Republic.

641 idem para 465.

642 idem para 469.

643 idem para 471.

There is, however, much discussion regarding the standard required to recognise the existence of a context or pattern of violations. For example, in the case Barrios Family v. Venezuela (2011) the Court received extensive evidence from the Ombudsman’s Office regarding the existence of a ‘modus operandi’ in Venezuela, of extrajudicial executions, and threats and harassment against people; the Court considered that the evidence provided was insufficient to recognize the existence of a context of extrajudicial executions in this country.⁶⁴⁴ However, based on similar evidence, the Court recognized the existence of such a pattern later in the cases Uzcategui et al v. Venezuela (2012), and Brothers Landaeta Mejias and others v.

Venezuela (2014).⁶⁴⁵ This opens a new debate regarding the standard of evidence required by the Court in order to prove the existence of a pattern. In this regard, the Court should clarify the standard required so that it may provide better guidance to petitioners. In general, the Court should be able to receive any means of evidence in order to prove the existence of such patterns, and to recognise the existence of such patterns in a larger number of cases.

Since the establishment of patterns and contexts in a case requires a higher standard of proof, other criterion should be also taken into account in order to award GNR. In this sense, the standard provided in PIL according to which GNR can be adopted when there is i) a pattern of repetition of the wrongful act; ii) a risk of

644 Case of the Barrios Family v. Venezuela (Merits, Reparations and Costs) Inter-American Court of Human Rights Series C No. 237 (24 November 2011) paras 43 and 44.

645 In Uzcategui et al v. Venezuela and Brothers Landaeta Mejias and other v. Venezuela, in addition to the Ombudsman’s reports cited in Barrios Family, the Inter-American Court also took into account the report prepared by the Venezuelan National Commission for Police Reform (CONAREPOL) as well as the reports of UN Rapporteurs. These reports, however, were previous to 2011 and were available to the public so the Court could have access to them.

repetition, and iii) the breach was particularly grave, could provide an interesting and wider standard for the Inter-American Court to take into account when awarding such measures.⁶⁴⁶

2.3.3 Conclusion

The lack of consistency in the application of the criteria to award GNR by the Court is the result of various tensions. On the one hand, both the Commission and the victims have demanded from the Court the expansion of its remedial powers and orders. In recent years, requests for GNR have increased, not only in number but also in detail and scope, in almost every case. On the other hand, the granting of such measures may face resistance from states who see the expansion of the remedial powers of the Court as ‘ultra vires’.⁶⁴⁷ It also implies additional effort required by the Court’s to follow-up the compliance of these decisions, and to secure their enforcement.⁶⁴⁸

Beyond the political implications that this debate may have, part of the problem is that the Inter-American Court has not established a clear conceptual framework

646 According to the Committee ‘assurances of non-repetition were required not only where there was a pattern of repetition of the wrongful act, but also where there was a risk of repetition or, alternatively, where the breach was particularly grave, even if the risk of repetition was minimal’; UNGA, Sixth Committee (53th Session) ‘Report of the International Law Commission on the work of its fifty-second session’ (15 February 2001) UN Doc A/CN.4/513, para 57.

647 Tara Melish, ‘The Inter-American Court of Human Rights Beyond Progressivity’, in Malcom Langford, Social Rights Jurisprudence Emerging Trends in International and Comparative Law (Cambridge, 2009) p. 404.

648 Shelton Remedies in International Human Rights Law 290.

regarding the conditions that should be taken into account to grant such remedies.

There are no clear standards regarding the circumstances in which GNR should be granted and which form of GNR should be ordered. This situation is not an exclusive problem of the Inter-American system. In fact, both PIL and international human rights law lack a comprehensive conceptual framework to explain the nature and adequate application of GNR.

In order to establish some of the elements that an appropriate understanding of GNR should have, it would be relevant to take into account some of the standards discussed in PIL according to which GNR are granted. The recent jurisprudence of the Court, linking the granting of GNR with a ‘generalized pattern’, may open the door for the establishment of a clearer standard in the granting of GNR in the Inter-American system. However, more consistency from the Court would be needed in order to apply this criterion in all cases where a ‘generalized pattern’ is proved.

Additionally, it would be important for the Inter-American Court to reflect on the possibility of awarding GNR, in those cases where a risk of repetition is proved, or in cases of serious violations of human rights. A strict application of these criteria could help the Court to narrow down the awarding of these measures without depriving the measures of all content.

3. Conclusion

GNR have been extensively developed in the Inter-American System. Although the American Convention does not explicitly refer to GNR they have been clearly recognized as a legitimate form of reparation in the Court’s jurisprudence, in application of Articles 1(1) and 63 of the ACHR. As presented in this chapter, such a process has been developed progressively, appearing for the first time in 2002 and showing a moment of consolidation from 2008 onwards. Besides the boldness of

some of the measures adopted in some cases, after 2008 the Court has taken a more conservative view in the award of GNR, showing a very deferential attitude towards the margin of appreciation that states have in the definition of their own policies and laws. This can be a reaction to the continuous criticisms that the Court has faced in the award of these measures. This is reflected in the low level of compliance of these measures by states. According to David Baluarte, among different forms of reparation in the Inter-American system, GNR are the ones with the lowest levels of compliance.⁶⁴⁹

In this context, clearer criteria for the award of GNR could help to justify the award of GNR in the specific situations where it is necessary. This chapter proposed the limiting of the award of these measures to those situations when i) there is a pattern of repetition of the wrongful act; ii) there was a risk of repetition and, iii) the breach was particularly grave, even if the risk of repetition is minimal. Such criterion is compatible with the practice of the Court in most of its jurisprudence and would help to clarify the situations in which such measures should be awarded. Still more needs to be done by the states. Rather than simply insisting on the legitimacy of the measures, states need to show the same level of compliance with these measures as they do with other forms of obligatory remedies.

649 David Baluarte, ‘The Evolution of a Compliance Phase of Inter-American Court litigation and the Strategic imperative for victims Representatives’ (2011-2012) 27 American University International Law Review 263, p. 303.

PART II: THE AWARDING OF GNR IN RIGHT TO