7 mar. 2009



Gonzalo: ésta fue la primera modificación importante del Reglamento. Hubo y habrá otras, pero es viernes a la noche. Por ahora este adelanto. Este breve trabajo fue publicado en “Interights’ Bulletin”, Ed. The International Centre for the Legal Protection of Human Rights, Londres, vol. 14, 2002. El motivo de que se me pidiera que escriba sobre el tema no fue mi particular conocimiento sobre el entonces nuevo Reglamento, sino el hecho de que intervine profesionalmente en el primer caso ante la Corte Interamericana en que se aplicó el Reglamento y, por lo tanto, se permitió a los familiares de la presunta víctima —se trataba de una ejecución extrajudicial— que presentaran su propia demanda luego de ser notificados de la demanda interpuesta por la Comisión. Intervine coordinadno el equuipo de abogados que representaba a los familiares de la antropóloga guatemalteca, Myrna Mack Chang, asesinada por miembros de las fuerzas de seguridad de la Inteligencia del Ejercito de la República de Guatemala.

The Victim Before the Interamerican Court of Human Rights

Alberto BOVINO


On 1 May 2001, the new Rules of Procedure of the Inter-American Commission on Human Rights (the Commission) entered into force. This was followed a month later by the entry into force of the new Rules of Procedure of the Inter-American Court of Human Rights (the Court). Both sets of rules express the political will to bring about substantial change in the practice and procedure for dealing with individual cases in the Inter-American system for the protection of human rights.

The most relevant aspects of the reforms are:

• the simplification of proceedings;

• the acceleration of the decision-making process, not only regarding admissibility of individual petitions but also on the merits of each case;

• a much more active role for the Court in decisions on individual cases; and d) wider scope for participation of petitioners and victims in the proceedings.

The New Rules

With regard firstly to the Commission’s Rules of Procedure, reform has resulted in a number of changes. The new Rules now oblige the Commission to decide quickly on the admissibility of petitions and increase the prospects of reaching friendly settlement. Where the Commission decides that right(s) protected by the Inter-American Convention have been violated, and that the state has failed to comply with its recommendations, it shall request an opinion from the petitioners (not necessarily the victims) in deciding whether to submit the case to the Court. As a rule, the Commission shall submit most cases to the contentious jurisdiction of the Court. In this regard, the broad discretion afforded to the Commission has been reduced.

According to the new rules governing the Court, once the case is submitted by the Commission to the Court, the state, the victims, their next of kin, or their representatives will be notified and provided with the Commission’s application. The persons notified will be allowed one month to exercise their right to intervene as autonomous parties in the proceedings before the Court.

If the victims file their own application, the state will in turn be informed. The state will then have two months to respond to the Commission’s application, and one month to respond to the victims’ application.
If the victim, their next of kin or representatives decide to intervene, they will have the right to file an application, to respond to any preliminary objections filed by the State, to offer evidence at any stage of the proceedings, and to file their own motions. Victims’ participation may produce important consequences not only as a matter of procedure, or for the redefinition of the rights protected in the Convention, but also so far as it contributes to the development of the concept of integral reparation for victims more generally

The ambiguous language of the new Rules of Procedure relating to the scope of victims’ participation in the proceedings before the Court is, however, worthy of note. This apparent disadvantage may however itself become a useful tool in the development of case law that favours a broader role for victims in the proceedings.

The New Rules in Practice

On 14 June 2001, in the first case submitted by the Commission to the Court under the new Rules, the Commission filed an application against Guatemala. The grounds of the application were the extrajudicial execution of Guatemalan anthropologist Myrna Mack Chang. The Commission’s application defines the facts and requests that the Court declare a violation of the applicant’s rights as protected by the Convention.

In preparing their case, the representatives of the victim’s next of kin took the Commission’s application as a starting point; it was thought that a relationship of close cooperation with the Commission was essential if the victim's new role, as enshrined in the Rules, is to operate effectively. The complementary nature of the victim’s application does not, however, mean that the application by the victim’s next of kin corresponds with the Commission’s application in all formal and substantive aspects. Importantly, the Rules enable an independent and potentially distinct perspective to be put forward by the victim representatives. In the case of Myrna Mack Chang, the main differences between the two applications are discussed in turn below.

In the application by the victim’s next of kin, a detailed description of the domestic proceedings was unnecessary, as the Commission’s application already contained 80 paragraphs dedicated to that issue. Instead, after referring to the Commission’s application, the analysis of the representatives of the victim’s next of kin focused on the meaning and scope of the right to 'fair trial' (Article 8), promoting a broader definition of the concept of 'fair trial' or 'due process’ than that developed in the Court’s case law up to that time. Perhaps due to the fact that most members of international bodies such as the Court are specialists in international law, not domestic criminal law, the development of case law related to Article 8 of the Inter-American Convention has, in my view, been poor. In this regard, victim interventions may help to redefine the scope of the rights protected by article 8 - by taking into account the specific problems of domestic law - and thereby contribute to reducing the gap that currently exists between the concepts as defined by domestic courts and the Inter-American standards under Article 8.

The Commission and the representatives of the victim’s next of kin both consider that specific procedures provided for within the Guatemalan constitution have been abused and have become mechanisms whereby justice is denied. However, while the Commission’s analysis considers the problem to be limited to the current judicial interpretation of this procedure, representatives of the victim’s next of kin argue the need for law reform.

One issue which remains unclear in the Court’s new Rules of Procedure is whether victims have the right to allege in their applications the violation of rights protected by the Convention but not adressed by the Commission in its own application. In the Myrna Mack Chang case, the representatives of the victim’s next of kin have added the violation of a right that was not addressed by the Commission’s application. However, in order to respect the right of the State to defend itself the allegations of fact are limited to those described in the Commission’s application.

In its application the Commission merely asserted the main principles governing the concept of ‘integral reparation’. The representatives of the victim’s next of kin developed the principle that the victim should be the one entitled to define the specific content of reparations owed by the State, being closest to the particular circumstances of the case. Hence they are in a much better position to express their understanding of the relevant circumstances of the case and, moreover, the specific consequences produced by the violation of their rights.

Potentially Problematic Area

Finally, I should also note certain aspects of the reforms that may prove problematic. The ability to introduce evidence in what are now more adversarial proceedings before the Commission may in fact undermine the prospects of arguing one's case and producing all crucial evidence at the hearing before the Court. The regulations seek to restrict the oral procedure before the Court and so to undercut the adversarial nature of the main stage of the proceedings, comparable to the trial stage in a criminal proceeding. As a result, the relevance of the written stages of proceedings is increased, despite the undesirable effects that emphasis on written proceedings produced under the former rules (for example, leading to undue focus on documentary evidence and briefs to the detriment of due consideration of other evidence).


In spite of this criticism, the reforms are, in general, extremely positive. A fuller assessment of the reforms will have to wait until we can see what decisions the Court makes pursuant to the new rules, and how the system unfolds in practice. In the meantime, all the ‘clients’ of the Inter-American System will have to work to consolidate the more valuable aspects of the reforms, to overcome the obstacles, and to achieve the reforms' worthy goals. The Myrna Mack Chang case may serve as the first indication of the extent to which the reforms are successful, and of their potential for the future.

Alberto BOVINO is an attorney and associate professor at the University of Buenos Aires School of Law (Argentina). He is also counsel for the victim’s next of kin in the Myrna Mack Chang case against the State of Guatemala before the Inter-American Court of Human Rights. The article expresses the author’s personal views only and not the views of other groups or entities working on the Myrna Mack Chang case.

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