Second report on the situation of human rights defenders in the americas

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INTER-AMERICAN COMMISSION ON HUMAN RIGHTS

OEA/Ser.L/V/II.


Doc. 66

31 December 2011

Original: Spanish

SECOND REPORT ON THE SITUATION OF

HUMAN RIGHTS DEFENDERS IN THE AMERICAS

2011


Internet: www.iachr.org

OAS Cataloging-in-Publication Data

Inter-American Commission on Human Rights

Segundo informe sobre la situación de las defensoras y defensores de los derechos humanos en las Américas /

Comisión Interamericana de Derechos Humanos.

v. ; cm. (OEA documentos oficiales ; OEA/Ser.L)

ISBN 978-0-8270-5742-5

1. Human rights--Americas.  2. Civil rights--America I. Title. II Series. III. Series. OAS official records ; OEA/Ser.L.

OEA/Ser.L/V/II.  Doc.66



Document published thanks to the financial support of the Swedish Foundation for Human Rights, the Swedish International Development Cooperation Agency, and Finland.

The Positions herein expressed are those of the Inter‐American Commission on Human Rights and do not reflect the views of the Swedish Foundation for Human Rights, the Swedish International Development Cooperation Agency or Finland











Approved by the Inter-American Commission on Human Rights on December 31, 2011



INTER-AMERICAN COMMISSION ON HUMAN RIGHTS

MEMBERS

Dinah Shelton


José de Jesús Orozco Henríquez
Rodrigo Escobar Gil
Paulo Sérgio Pinheiro
Felipe González
Luz Patricia Mejía Guerrero
María Silvia Guillén

******

Executive Secretary: Santiago A. Canton


Assistant Executive Secretary: Elizabeth Abi-Mershed

SECOND REPORT ON THE SITUATION OF HUMAN RIGHTS DEFENDERS

IN THE AMERICAS
TABLE OF CONTENTS

Page

I. INTRODUCTION 1
A. Follow-up to the first report on the situation of human rights
defenders in the Americas 1
B. Definition of human rights defender and his or her importance
in a democratic society 4
C. International recognition of the right to defend human rights 4
II. OBSTACLES FACED BY HUMAN RIGHTS DEFENDERS 6

  1. Murders, extrajudicial executions, and forced disappearances 7





  1. Attacks, threats, and other forms of harassment 14




  1. Intelligence activities and other illegal, abusive, or arbitrary types of interference 21




  1. The criminalization of human rights defenders 28

1. The principle of legality in the formulation and application of


criminal charges 32

2. Protracted criminal proceedings instituted based on criminal definitions that contravene the principle of legality 36

3. The criminalization of speech denouncing human rights violations and the right to peaceful social protest 37

4. The excessive prolongation of criminal proceedings 41

5. The arbitrary detention and the unwarranted prolongation
of pretrial detention 42

6. The violation of personal integrity as a result of criminalization 44

7. Stigmatization and discredit of the work of criminalized
human rights defenders as a result of their criminalization 45
E. Abusive use of force in social protest demonstrations 49


  1. The obligation to respect and guarantee the right of assembly
    in protest demonstrations 50

2. The right to hold a demonstration without prior permission 52

Page
3. Measures to prevent the excessive use of force 54

4. The obligation to investigate and punish those responsible

for acts of violence in protest demonstrations 58

F. Restrictions to the exercise of freedom of association 59


  1. Restrictions to freedom of association in conformity with
    international law standards 63

2. Restrictions to the registration and operation of civil society
organizations 65

3. Financial controls over human rights organizations 69


G. Undue restrictions to access to State-held information 74
H. Restrictions to habeas data actions 82


  1. Restrictions on the exercise of activities of defense and promotion
    of human rights by foreign citizens 86

J. Impunity in the investigations related to violations of the rights


of human rights defenders 89
1. The right to an effective remedy compatible with due process 90
III. ESPECIALLY EXPOSED GROUPS OF HUMAN RIGHTS DEFENDERS 98


  1. Leaders of organized labor 99




  1. Women human rights defenders 113




  1. Campesino and community leaders 119




  1. Indigenous and Afro-descendant leaders 124



  1. Defenders of the right to a healthy environment 131





  1. Defenders of Lesbian, gay, trans, bisexual and intersex (LGTBI) persons 141




  1. Defenders of migrant workers and their families 150


IV. THE INDEPENDENCE AND IMPARTIALITY OF OPERATORS OF JUSTICE 156


  1. The role of justice operators in ensuring access to justice for the victims
    of human rights violations 156

Page


  1. Independence and impartiality of justice operators 158




  1. Independence 159

a. Selection and term of appointment 161

b. Irremovability 163

c. Guarantee against external pressures 169


2. Impartiality 170


  1. The freedom of association of the justice operators 172




  1. Obstacles faced by justice operators of the region 172


V. THE PROTECTION OF HUMAN RIGHTS DEFENDERS 183
A. Special international mechanisms for the protection of human
rights defenders 184
B. Mechanisms of protection of human rights defenders within
the Inter-American Commission on Human Rights 186

  1. Requests of information to the States (Article 41 of the Convention and Article 18 of the IACHR’s Statute) 186


2. Press Releases 187

3. Thematic hearings 187

4. Reports on the situation of human rights defenders
under the petition and case system 188

5. Thematic reports 189

6. Precautionary measures 189
a. Necessary requirements for granting precautionary
measures 190

b. Granting precautionary measures and their


follow-up 193

c. Implementation by the States of protection measures requested by the Inter-American system 196


i. Systems of implementation through
interinstitutional meetings 197

ii. Systems of implementation of protective


measures with prior judicial clearance 200

iii. Systems of implementation by incorporating


the measures into national protection
programs for human rights defenders 201

Page
iv. Systems in which a State-designated authority is in charge of implementing the measures 204
C. National Mechanisms for the protection of human rights defenders 207
1. The States’ duty to protect human rights defenders 207

2. A global policy of protection for human rights defenders 208

3. Special protection of human rights defenders to prevent
attacks to their lives and personal integrity 213

a. The political commitment of the State to the national

protection program 215

b. Protected subjects 217

c. Grounds for requesting special protection 218

d. Risk assessment 220


i. Context-based assessment 222

ii. Assessing the risk in the specific case 222

e. Suitability and effectiveness of the protection
measures 224

f. When the risk ceases 227


4. The national institutions for the Promotion and Defense
of Human Rights (Ombudsperson) 228
VI. RECOMMENDATIONS 231

SECOND REPORT ON THE SITUATION OF HUMAN RIGHTS DEFENDERS

IN THE AMERICAS
I. INTRODUCTION
A. Follow-up to the first report on the situation of human rights defenders in the Americas


  1. The purpose of this report is to follow up on the recommendations made by the Inter-American Commission on Human Rights (hereinafter, the Commission, Inter-American Commission, or IACHR) in its Report on the Situation of Human Rights Defenders in the Americas,1 published on March 7, 2006 (hereinafter, the 2006 report), as well as to provide an update on the standards of international law in this area.



  1. In the 2006 report, the IACHR analyzed the main problems faced by human rights defenders in the hemisphere2 The report also referred to the situation of groups of defenders at particular risk3 and the precautionary measures requested by the IACHR, as one of the protection mechanisms the inter-American system offers for human rights defenders throughout the region. The recommendations made in the 2006 report included measures the States should adopt to guarantee the protection of defenders' lives and safety, as well as those necessary to guarantee the exercise of their work.4





  1. Since the publication of the 2006 report, the IACHR has followed-up on the issues identified as priorities with respect to the situation of human rights defenders. During the follow-up period, from 2006 through 2011, the IACHR submitted two questionnaires to the States and to civil society (November 2008 and December 2010)5 in regards to the recommendations issued in its report. The Commission received responses to the questionnaires from the following States: Argentina, Brazil, Bolivia, Canada, Chile, Colombia, Dominica, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Paraguay, Peru, Uruguay, and Venezuela. It also received 91 responses to the questionnaire from civil society, as well as a response from the Ombudsperson of Guatemala and the Human Rights Commission of the Federal District of Mexico.




  1. In addition, the IACHR held 50 public hearings specifically to address the situation of human rights defenders.6 During the Commission's 140th and 141st regular sessions, the Unit on Human Rights Defenders held working meetings with activists from across the region to discuss the main challenges they face in their work and to coordinate activities, particularly concerning the follow-up to the 2006 report. In addition, in its 141st session the IACHR held a hearing on "The Situation of Human Rights Defenders in the Americas," which had been requested by more than 30 civil society organizations, in order to receive input for the follow-up report7.



  1. Finally, also during its 141st period of sessions, the IACHR decided to create the Rapporteurship on Human Rights Defenders to continue monitoring the serious situation faced by human rights defenders in the region.8





  1. This report is structured based on the content of the 2006 report to update the inter-American standards in this area and to follow up on the recommendations issued on the following subjects: (1) problems faced by human rights defenders in the region; (2) human rights defenders at particular risk; (3) independence and impartiality of justice operators as a guarantee of access to justice; and (4) protection mechanisms for human rights defenders. As is laid out in the report, the States should take the relevant measures in these four areas in order to implement a global protection policy for human rights defenders, as the IACHR specified in its 2006 report.9 Each section refers to the Commission's recommendations from the previous report and includes measures that some States have taken to implement the recommendations. The Commission hope trusts that this report, as was the 2006 report, continues to be used by civil society in the region as a tool to reivindicate its rights.



  1. The Commission recognizes that some Member States have made significant efforts in order to comply with the recommendations established in the 2006 report. In this regard, the IACHR highlights the following good practices: (a) expressions by high-level State authorities supporting the work of human rights defenders in the construction of democratic societies; (b) the creation of specific units and special protocols to investigate crimes committed against human rights defenders; (c) the adoption of statistical records on the types and patterns of attacks against defenders; (d) the issuance of instructions directing authorities to recognize and facilitate the work of defenders; (e) the creation of national human rights protection mechanisms; (f) the continuation or initiation of dialogue processes with human rights defenders, in order to learn about the problems they face and facilitate their active participation in the adoption of public policies; and (g) the establishment of mechanisms to implement special protection measures issued by the bodies of the inter-American system.





  1. Notwithstanding these efforts, the obstacles pointed-out in the 2006 report persist. In some cases, these obstacles have intensified during the period of follow-up. There is a continuance of murders, assaults, forced disappearances, threats, illegal searches, as well as in the statements by high-level authorities discrediting and stigmatizing the work of defending human rights. Moreover, the Commission has noted a growing sophistication of the mechanisms designed to hamper, block, or discourage the work of defending and promoting human rights, which is reflected in baseless criminal charges being filed, financing sources for organizations being restricted, and in the absence of adequate and effective mechanisms for their protection.




  1. The IACHR has observed that additional groups other than those already identified in 2006 have been targets of frequent and serious attacks, assaults, and harassment. For this reason, the Commission has decided to also refer in this report to the situation of defenders of the right to a healthy environment; of the rights of lesbian, gay, trans, bisexual, and intersex (LGTBI) persons; and of the rights of migrant workers and their families. Further, the IACHR has decided to devote a chapter of this report to justice operators as defenders of access to justice for thousands of victims of human rights violations.



  1. Even though the IACHR has recognized the positive value of the creation of specialized national mechanisms for protecting human rights defenders in some countries, it has also been informed about persisting deficiencies in their design and operation. It has also been informed about the absence of protection mechanisms in other States and the lack of appropriate and effective systems for implementing specialized protection measures issued by the bodies of the inter-American system. These problems are related to the situation of defenselessness in which many human rights defenders find themselves in some parts of the hemisphere and that has led hundreds of them to lose their lives during the last years.





  1. Given the large quantity of information provided by civil society related to attacks and harassment directed against human rights defenders, as in the 2006 report, this report refers only to some specific situations by way of example, in no way suggesting that the factual information included is exhaustive or addresses all incidents the Commission has learned about during the follow-up period. The IACHR believes that the trends identified through the examples can provide guidance to the States and civil society as to the most serious patterns of obstacles against human rights defenders, with the aim to promote normative reforms as well as the design and implementation of public policies to guarantee the work of defense and promotion of human rights.


B. Definition of human rights defender and his or her importance in
democratic societies


  1. In the framework of the analysis contained in Article 1 of the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (hereinafter, the Declaration on Defenders),10 the IACHR understands "every person who in any way promotes or seeks the realization of human rights and fundamental freedoms, nationally or internationally"11 has to be considered as a human rights defender. As indicated by the Office of the United Nations High Commissioner for Human Rights (hereinafter OHCHR), the criterion used to identify whether a person should be considered a human rights defender is the activity undertaken by the person and not other qualities, such as whether or not they are paid for their work or whether or not they belong to a civil society organization.12





  1. The IACHR reiterates that the work of human rights defenders is fundamental for the universal implementation of human rights, and for the full existence of democracy and the rule of law.13 Human rights defenders are an essential pillar for the strengthening and consolidation of democracies, since the purpose that motivates their work involves society in general, and seeks to benefit society. Accordingly, when a person is kept from defending human rights, the rest of society is directly affected.14


C. International recognition of the right to defend human rights


  1. The international recognition of the work of human rights defenders and the resulting development of special mechanisms to protect them had a key turning point on December 9, 1998, when the United Nations General Assembly approved the Declaration on Defenders.15 Adopted by consensus of the members of the General Assembly, the declaration represented, in the words of the then Special Representative of the UN Secretary-General on human rights defenders, "a clear commitment to acknowledge, promote and protect the work and rights of human rights defenders around the world" and "a turning point in improving the protection of human rights defenders."16



  1. The Declaration on Defenders is the first international instrument "formally to define the 'defence' of human rights as a right in itself"17. In this regard, it recognizes that "[e]veryone has the right, individually and in association with others, to promote and to strive for the protection and realization of human rights and fundamental freedoms at the national and international levels."18 Based on this acknowledgment on the part of the UN General Assembly, the right to defend human rights has also been recognized in the regional systems of protection of human rights.19





  1. In the case of the inter-American system, the right to defend human rights has been recognized by both the Commission and the inter-American Court of Human Rights (hereinafter “the Court” or the “inter-American Court”). The IACHR understands that the exercise of the right to defend human rights cannot be subject to geographical restrictions, and that it implies the possibility of freely and effectively promote and defend any right whose acceptance is unquestioned,20 the rights and freedoms contained in the Declaration on Defenders itself,21 as well as any "new rights or components of rights whose formulation is still a matter of debate."22 The Inter-American Court, for its part, has pointed out that, in accordance with the principles of indivisibility and interdependence of human rights, the defense of human rights "is not limited to civil and political rights, but necessarily involves economic, social and cultural rights."23 It has also stated that the fear caused to defenders by the murder of another defender in retaliation of his or her work can directly reduce the possibility of human rights defenders exercising their right to perform their work by means of denunciations.24




  1. The UN Declaration on Defenders refers to various measures the States should take to enable and not hinder the exercise of activities of defense and promotion of human rights. Several of the acts or omissions that the States should observe to respect and guarantee the right to defend human rights, under the Declaration, correspond to obligations whose fulfillment underpins rights recognized in several binding international agreements and declarations.25



  1. In the inter-America System, the Court has noted that “the States have the duty to provide the necessary means for human rights defenders to conduct their activities freely; to protect them when they are subject to threats in order to ward off any attempt on their life or safety; to refrain from placing restrictions that would hinder the performance of their work, and to conduct serious and effective investigations of any violations against them, thus preventing impunity." 26





  1. The aforementioned duties of the State are related to the enjoyment of several rights contained in the Declaration of Rights and Duties of Men (hereinafter “American Declaration”) and in the American Convention on Human Rights (hereinafter the “Convention”, or “American Convention”), such as the rights to life, personal integrity, freedom of expression, judicial guarantees, and judicial protection, among others—rights which, taken together, allow for the free exercise of activities of defense and promotion of human rights. Thus, the attack to a human rights defender in reprisal for his or her activities can have the effect of violating several rights recognized in the inter-American instruments.




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