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Ma. Kamille E.

Villalobos
International Humanitarian Law

VELASQUEZ VS. RODRIGUEZ (1988) 9 HRLJ 212, (1990) 11 HRLJ 127

• This case originated in a petition against the State of


Honduras.
• This was submitted to the Inter-American Court of Human
Rights.
• The Commission requested that the Court determine:
o Whether the State had violated Article 4 Right to life,
right to humane treatment and right to personal liberty
of Manfredo Velasquez.
• The case started when Manfredo Velasquez was violently
detained without warrant for his arrest by the members of the
National Office of Investigations and G-2 of the Armed Forces
of Honduras.
• The detention took place in Tegucigalpa on the afternoon of
September 1981
• Several eyewitness reported that Velasquez and others were
detained and taken to the cells of Public Security Forces
Station where he was accused of alleged political crimes and
subjected to harsh interrogation and cruel torture.
• Commission requested various information on the matter.
• Government requested the reconsideration on the grounds
that:
o Domestic remedies had not been exhausted
o National Office of Investigation had no knowledge of the
whereabouts of Velasquez
o The government was making every effort to find him
o There were rumors that he was with Salvadoran guerilla
groups
• The Government submitted autopsy reports on the deaths of
others who were also detained and killed and the inquiry into
threats against the lives of Custodio and Jimenez. From those
documents, the government submits that it has initiated a
judicial inquiry under the procedures provided for by
Honduran law.
• The government submitted some documentary evidence,
including examples of writ of habeas corpus successfully
brought o behalf of some individuals. They also stated that
this remedy requires identification of the place of detention
and of the authority under which the person is detained. The
government also mentioned various remedies that might
possibly be invoked
• The Commission argued that the remedies mentioned by the
government were ineffective because of the internal
conditions in the country during that period. It presented
documentation of three writs of habeas corpus brought on
behalf of Manfredo Velasquez that did not produce results.

EXHAUSTION OF DOMESTIC REMEDIES:


 Article 46 of the Convention provides that, in order for a
petition or communication lodged with the Commission to be
admissible, it is necessary
o That remedies under domestic law have been pursued
and exhausted in accordance with generally recognized
principles of international law.
o However, this shall not be applicable when
 The domestic legislation of the state concerned
does not afford due process of law for the
protection of the rights or rights that have
allegedly been violated
 The party alleging violation of his rights has been
denied access to the remedies under domestic law
or has been prevented from exhausting them.
 There has been unwarranted delay in rendering a
final judgment under the aforementioned
remedies.
 The rule of prior exhaustion of domestic remedies allows the
State to resolve the problem under its internal law before
being confronted with an international proceeding. This is
particularly true in the international jurisdiction of human
rights, because the latter reinforces or complements the
domestic jurisdiction.
 The rule of prior exhaustion of domestic remedies under the
international law of human right has certain implications that
are present in the Convention. Under the Convention, State
Parties have an obligation to provide effective judicial
remedies to victims of human rights violations, remedies that
must be substantiated in accordance with the rules of due
process of law, all in keeping with the general obligation of
such States to guarantee the free full exercise of the rights
recognized by the Convention to all persons subject to their
jurisdiction.
 The other remedies cited by the Government are either for
o Reviewing a decision within an inchoate proceeding
o Addressed to other objectives.
 A remedy must also be effective- capable of producing the result for which
it was designed Procedural requirement can make the remedy of habeas corpus
ineffective; if it is powerless to compel the authorities; if it presents a danger
to those who invoke it; or if it is not impartially applied.
 Contrary to the argument of the Commission, the mere fact that a domestic
remedy does not produce a result favorable to the petitioner does not in and of
itself demonstrate the inexistence or exhaustion of all effective domestic
remedies.
 It is a different matter if it is shown that remedies are denied for trivial reasons
or without an examination of the merits, or if there is proof of the existence of
a practice or policy ordered or tolerated by the government, the effect of
which is to impede certain persons from invoking internal remedies that would
normally be available to others.

VIOLATION OF HUMAN RIGHTS PROVIDED BY THE CONVENTION.

To determine whether a violation of Human Rights recognized by the Convention can


be imputed to a State Party, Article 1 (1) of the Convention charges the State Parties
with the fundamental duty to respect and guarantee the rights.

Under the American Convention, State Parties has the duty to:
1. Respect the rights and freedoms recognized by the Convention. The exercise
of public authority has certain limits which derive from the fact that human
rights are inherent attributes of human dignity and are, therefore, superior to
the power of the State
2. Ensure the free and full exercise of the rights recognized by the Convention to
every person subject to its jurisdiction. This obligation implies the duty of the
Parties to organize the governmental apparatus and, in general all the
structures through which public power is exercised, so that they are capable of
juridically ensuring the free and full enjoyment of human rights. As a
consequence of this obligation, the State must prevent, investigate and punish
any violation of the rights recognized by the Convention and, moreover, if
possible attempt to restore the right violated and provide compensation as
warranted for damages resulting from the violation.

Thus, in principle, any violation of rights recognized by the Convention carried out by
an act of public authority or by persons who use their position of authority is
imputable to the State. However, this does not define all the circumstances, in which a
State is obligated to prevent, investigate and punish human rights violations, nor all
the cases in which a State is obligated to prevent, investigate and punish human rights
violations, nor all the cases in which the State might be found responsible for an
infringement of those rights. An illegal act which violates human right and which is
initially not directly imputable to a State can lead to international responsibility of the
State, not because of the act itself, but because of the lack of due diligence to prevent
the violation or to respond to it as required by the Convention.

For this purpose, the intent of the agent who has violated the rights recognized by the
Convention is irrelevant—the violation can be established even if the identity of the
individual perpetrator is unknown. What is decisive is whether a violation of the
rights recognized by the Convention has occurred with the support or the
acquiescence of the government, or whether the State has allowed the act to take place
without taking measures to prevent it or to punish those responsible.

International protection of human rights should be distinguished from a criminal case.

HUMAN RIGHTS CRIMINAL


States can be held responsible for the States cannot be held criminally liable.
violation of human rights within its
jurisdiction.
Objective is to protect the victims and to Objective is to punish those individuals
provide for the reparation of damages who are guilty of violations
resulting from the acts of the States
responsible.