The Situation of Reparations in the Inter-American Human Rights System: Analysis and Comparative Considerations

On April 17, 2015, the Inter-American Court of Human Rights (IACtHR) rendered its resolution in the monitoring of Chile’s implementation of the reparations ordered in García Lucero v. Chile.[1] The IACtHR had ordered Chile to grant Leopoldo Guillermo García Lucero reparations on August 28, 2013.[2] The Court had found Chile responsible for not investigating the torture of García Lucero. These acts of torture took place during García Lucero’s detention from 1973 to 1975 and were committed as part of ex-President Augusto Pinochet’s policy against those regarded as political dissidents. García Lucero was arrested, kept incommunicado, and transferred to different locations, where he was tortured until his deportation to the United Kingdom. Chile’s lack of investigation into torture against García Lucero led to violations of judicial guarantees and judicial protection rights under the American Convention on Human Rights (ACHR) and the Inter-American Convention to Prevent and Punish Torture.[3] The resolution is used in this Insight to examine the current situation of the IACtHR’s monitoring/implementation reparations regime and reparation forms (compensation and others).

García is considered because it is representative of and follows the IACtHR’s consistent case law and practice on reparations for serious human rights violations and their implementation. García is also relevant to evidence how the IACtHR deals with reparations implementation challenges, particularly when some of the harm inflicted falls short of the Court’s temporal jurisdiction. At a more general level, the facts in García correspond to one of the several dictatorships that have plagued Latin America, and about which the IACtHR has largely developed its case law on reparations and related implementation. There are also comparative references to the UN Remedy/Reparation Principles[4] and other regional and international human rights systems in which victims of serious human rights violations can claim reparations, namely, the UN system and the European and African regional human rights systems. This comparative analysis is justified because reparations ordered by international and regional human rights courts and/or bodies against states rely on similar principles and/or mechanisms and are also pivotal in transitional justice worldwide.    

Monitoring/Implementing Reparations

The IACtHR may order a state to provide reparations to victims of state violations of the ACHR.[5] Thus, the IACtHR monitored Chile’s implementation of the reparations ordered. States must inform the IACtHR about compliance with its judgments. Under the pacta sunt servanda principle, states are to carry out their international law obligations in good faith. By implementing reparation orders, states ensure observance of the ACHR’s provisions and inherent effects (effet utile) within their national systems, i.e., substantive and procedural norms.[6] The IACtHR may note non-compliance in its annual report. Although the General Assembly of the Organization of American States takes no action to oblige states to comply, it requires states to inform the IACtHR on compliance.

Unlike the Inter-American human rights system, the UN, European, and African human rights systems follow non-judicial supervisory mechanisms. Concerning the European human rights system, the Council of Europe Committee of Ministers (CoECM) supervises the implementation of the European Court of Human Rights (ECtHR) judgments,[7] which enhances reparations monitoring/implementation and puts political pressure on states. However, the high number of judgments in the European system is a factor that, in principle, makes it more difficult to control judgment implementation in the European system when compared to the Inter-American human rights system.[8] Similarly, African Union political organs have a supervising role over state implementation of the African Court on Human and People’s Rights (ACtHPR) judgments.[9] Compared to the IACtHR, the situation of the UN treaty-based committees (e.g., the Human Rights Committee) is more difficult, as they only issue non-legally binding judgments published in their annual reports.[10]

Satisfaction

Under the UN Remedy/Reparation Principle 22, satisfaction is one of five modalities of reparations and consists of a series of measures to commemorate and/or apologize to the victims, cease violations, and determine the truth. The ECtHR, UN Committee against Torture (CAT), and ACtHPR have ordered satisfaction but less often than the IACtHR and normally limited it to the obligation to investigate.

In García, satisfaction was granted when the IACtHR ordered Chile to investigate torture.[11] Failure to investigate fell within the IACtHR’s temporal jurisdiction, as Chile accepted the Court’s jurisdiction on August 21, 1990. Thus, Chile’s delay in investigation triggered the obligation to redress because the investigation is still preliminary, pending after three years, and involves only one person. However, reparations for earlier violations (i.e., torture) fell outside the IACtHR´s jurisdiction. The fact that the victim has waited four decades for justice compounds the situation. Therefore, the IACtHR requested Chile to present up-to-date and detailed information on the investigation, including pending procedures.

Concerning other satisfaction measures,[12] first, the IACtHR judgment and its official summary were published on the Chilean Ministry of Justice’s website and the Official Gazette, respectively. However, the victim’s representatives considered the judgment’s publication unsuitable due to problems with the web-site, i.e., no user-friendly access. Although the IACtHR found correct implementation, it suggested that Chile upload the judgment on another official website. Second, although the IACtHR did not order Chile to apologize to the victim, state representatives conducted a public ceremony acknowledging the violation of the victim’s rights and promising non-repetition.

In García, the IACtHR categorized the obligation to investigate as a guarantee of non-repetition rather than satisfaction. Under the UN Remedy/Reparation Principle 22, such obligations arguably fall under satisfaction measures. The IACtHR’s approach may be justified as the investigation evidences zero tolerance for violations. In any event, both satisfaction and guarantees of non-repetition hold important symbolic value, are fundamental in serious violations cases, complement each other, and constitute reparation forms under the UN Remedy/Reparation Principles.      

Compensation

Under the UN Remedy/Reparation Principle 20, compensation seeks to redress “any economically assessable damage” in a proportionate and appropriate manner, including physical, mental, and material harm. Reparations ordered by the ECtHR have mainly been limited to compensation, the ACtHPR Protocol explicitly mentions compensation (Article 27), and the UN treaty bodies have urged states to compensate.[13]

In García, Chile complied with the IACtHR’s order to pay García Lucero non-pecuniary damages.[14] Non-pecuniary damages consisted of “suffering and difficulties caused to the direct victim and his next of kin, the impairment of values that are very significant to the individual,” and non-pecuniary changes in the living conditions of victims.[15] However, pecuniary damages (i.e., loss or detriment to the victims’ income, related expenses, and pecuniary consequences) were not ordered, as the acts of torture committed against García Lucero came outside the IACtHR´s temporal jurisdiction.[16] The Court did not rule on the alleged violation of the right to humane treatment; however, it considered the impact of delayed proceedings on the victim.[17] This is relevant because finding that the subsequent human rights violation (delayed proceedings) fell within the IACtHR’s temporal jurisdiction was a condition for the Court to determine Chile’s obligation to compensate.

Compensation might not be the only or most appropriate reparation form, as other reparations forms could be more suitable. Nevertheless, reparation orders should integrate monetary, material, and symbolic components, rather than rely only on or exclude compensation. UN Remedy/Reparation Principle 15 refers to “adequate, appropriate and prompt reparation,” which suggests combining diverse reparations forms. Therefore, the importance of compensation in serious human rights violations cases should neither be underestimated nor overestimated.     

Rehabilitation

Rehabilitation, including medical and psychological care, corresponds to the UN Remedy/Reparation Principle 21. The European and African human rights bodies seemingly present a very limited practice on ordering rehabilitative reparations.[18] At the UN human rights bodies, rehabilitation has normally been narrowed to quite a reduced number of victims per decision.[19] In contrast, the IACtHR’s rehabilitative reparations practice has been much more robust than that of the other human rights bodies, considering: i) number of rehabilitative reparations; ii) scope of beneficiaries (i.e., aimed at both single victims and entire groups such as massacre victims or ethnic groups victimized); and iii) grant of individual and collective reparations.[20]

Concerning the requests for medical and psychological treatment, in García the IACtHR found that torture-related harm inflicted on García Lucero fell outside its temporal jurisdiction. However, the Court approved Chile´s measures to improve his well-being and urged Chile to grant a discretionary sum to cover medical and psychological treatment.[21] Although this is not subject to compliance monitoring because the IACtHR did not order it, the Court urged Chile to provide the victim with rehabilitative health care.[22]

Guarantees of Non-repetition

Under the UN Remedy/Reparation Principle 23, guarantees of non-repetition are measures aimed at preventing serious human rights violations. Guarantees of non-repetition have been present at the UN, European, and African human rights systems; however, when ordered, they have mainly consisted in undetailed, general orders rather than specific measures to be adopted by the responsible state. In contrast, the IACtHR’s practice on ordering guarantees of non-repetition has been much more robust and detailed. In García, the petitioners requested the IACtHR to permanently void an amnesty law; however, the IACtHR did not rule on this matter, as the Court had already declared that such a law lacked legal effects and, therefore, could not block ongoing or future investigations.[23]

Restitution

Under the UN Remedy/Reparation Principle 19, restitution seeks, if possible, to restore the victim to the situation present prior to the violation. The UN human rights bodies, the ECtHR, and the ACHPR have sometimes awarded restitution.[24] In contrast, the IACtHR has frequently ordered it.[25] However, in García, restitution was not sought and, thus, not ordered by the Court.

Conclusion

As compared to other adjudicative human rights bodies, the IACtHR’s reparations regime exemplifies the tension between fragmentation and unification of international law. Across international/regional human rights reparation regimes, compliance monitoring of reparation orders is either judicial or nonjudicial. Although all forms of reparations may potentially be ordered by all institutions examined, their application has varied widely.  Overall, the IACtHR’s practice has been the most robust due to, inter alia, the wide array of modalities of reparations frequently granted and the mechanisms to monitor their enforcement, which makes it stand out from other international/regional human rights reparations regimes. Indeed, seminal developments in the IACtHR’s reparations case law have, mutatis mutandis, influenced the practice of other reparations regimes.

About the Author: Juan Pablo Pérez-León-Acevedo is a Post-Doctoral Fellow at PluriCourts, Faculty of Law, University of Oslo (Norway