HR First Three Cases August 31, 2016

PEOPLE OF THE PHILIPPINES, plaintiff-appellee
vs.
ANDRE MARTI, accused-appellant.
The Solicitor General for plaintiff-appellee.
Reynaldo B. Tatoy and Abelardo E. Rogacion for accused-appellant.
BIDIN, J.:
This is an appeal from a decision * rendered by the Special Criminal Court of Manila (Regional Trial Court, Branch
XLIX) convicting accused-appellant of violation of Section 21 (b), Article IV in relation to Section 4, Article 11 and
Section 2 (e) (i), Article 1 of Republic Act 6425, as amended, otherwise known as the Dangerous Drugs Act.
The facts as summarized in the brief of the prosecution are as follows:
On August 14, 1987, between 10:00 and 11:00 a.m., the appellant and his common-law wife, Shirley Reyes,
went to the booth of the "Manila Packing and Export Forwarders" in the Pistang Pilipino Complex, Ermita,
Manila, carrying with them four (4) gift wrapped packages. Anita Reyes (the proprietress and no relation to
Shirley Reyes) attended to them. The appellant informed Anita Reyes that he was sending the packages to
a friend in Zurich, Switzerland. Appellant filled up the contract necessary for the transaction, writing therein
his name, passport number, the date of shipment and the name and address of the consignee, namely,
"WALTER FIERZ, Mattacketr II, 8052 Zurich, Switzerland" (Decision, p. 6)
Anita Reyes then asked the appellant if she could examine and inspect the packages. Appellant, however,
refused, assuring her that the packages simply contained books, cigars, and gloves and were gifts to his
friend in Zurich. In view of appellant's representation, Anita Reyes no longer insisted on inspecting the
packages. The four (4) packages were then placed inside a brown corrugated box one by two feet in size (1'
x 2'). Styro-foam was placed at the bottom and on top of the packages before the box was sealed with
masking tape, thus making the box ready for shipment (Decision, p. 8).
Before delivery of appellant's box to the Bureau of Customs and/or Bureau of Posts, Mr. Job Reyes
(proprietor) and husband of Anita (Reyes), following standard operating procedure, opened the boxes for
final inspection. When he opened appellant's box, a peculiar odor emitted therefrom. His curiousity aroused,
he squeezed one of the bundles allegedly containing gloves and felt dried leaves inside. Opening one of the
bundles, he pulled out a cellophane wrapper protruding from the opening of one of the gloves. He made an
opening on one of the cellophane wrappers and took several grams of the contents thereof(tsn, pp. 29-30,
October 6, 1987; Emphasis supplied).
Job Reyes forthwith prepared a letter reporting the shipment to the NBI and requesting a laboratory
examination of the samples he extracted from the cellophane wrapper (tsn, pp. 5-6, October 6, 1987).
He brought the letter and a sample of appellant's shipment to the Narcotics Section of the National Bureau
of Investigation (NBI), at about 1:30 o'clock in the afternoon of that date, i.e., August 14, 1987. He was
interviewed by the Chief of Narcotics Section. Job Reyes informed the NBI that the rest of the shipment was
still in his office. Therefore, Job Reyes and three (3) NBI agents, and a photographer, went to the Reyes'
office at Ermita, Manila (tsn, p. 30, October 6, 1987).
Job Reyes brought out the box in which appellant's packages were placed and, in the presence of the NBI
agents, opened the top flaps, removed the styro-foam and took out the cellophane wrappers from inside the
gloves. Dried marijuana leaves were found to have been contained inside the cellophane wrappers (tsn, p.
38, October 6, 1987; Emphasis supplied).
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Velsquez Rodrguez v. Honduras

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The package which allegedly contained books was likewise opened by Job Reyes. He discovered that the
package contained bricks or cake-like dried marijuana leaves. The package which allegedly contained
tabacalera cigars was also opened. It turned out that dried marijuana leaves were neatly stocked
underneath the cigars (tsn, p. 39, October 6, 1987).
The NBI agents made an inventory and took charge of the box and of the contents thereof, after signing a
"Receipt" acknowledging custody of the said effects (tsn, pp. 2-3, October 7, 1987).
Thereupon, the NBI agents tried to locate appellant but to no avail. Appellant's stated address in his passport being
the Manila Central Post Office, the agents requested assistance from the latter's Chief Security. On August 27,
1987, appellant, while claiming his mail at the Central Post Office, was invited by the NBI to shed light on the
attempted shipment of the seized dried leaves. On the same day the Narcotics Section of the NBI submitted the
dried leaves to the Forensic Chemistry Section for laboratory examination. It turned out that the dried leaves were
marijuana flowering tops as certified by the forensic chemist. (Appellee's Brief, pp. 9-11, Rollo, pp. 132-134).
Thereafter, an Information was filed against appellant for violation of RA 6425, otherwise known as the Dangerous
Drugs Act.
After trial, the court a quo rendered the assailed decision.
In this appeal, accused/appellant assigns the following errors, to wit:
THE LOWER COURT ERRED IN ADMITTING IN EVIDENCE THE ILLEGALLY SEARCHED AND SEIZED
OBJECTS CONTAINED IN THE FOUR PARCELS.
THE LOWER COURT ERRED IN CONVICTING APPELLANT DESPITE THE UNDISPUTED FACT THAT
HIS RIGHTS UNDER THE CONSTITUTION WHILE UNDER CUSTODIAL PROCEEDINGS WERE NOT
OBSERVED.
THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE EXPLANATION OF THE APPELLANT
ON HOW THE FOUR PARCELS CAME INTO HIS POSSESSION (Appellant's Brief, p. 1; Rollo, p. 55)
1. Appellant contends that the evidence subject of the imputed offense had been obtained in violation of his
constitutional rights against unreasonable search and seizure and privacy of communication (Sec. 2 and 3, Art. III,
Constitution) and therefore argues that the same should be held inadmissible in evidence (Sec. 3 (2), Art. III).
Sections 2 and 3, Article III of the Constitution provide:
Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by
the judge after examination under oath or affirmation of the complainant and the witnesses he may produce,
and particularly describing the place to be searched and the persons or things to be seized.
Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order
of the court, or when public safety or order requires otherwise as prescribed by law.
(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose
in any proceeding.
Our present constitutional provision on the guarantee against unreasonable search and seizure had its origin in the
1935 Charter which, worded as follows:
The right of the people to be secure in their persons, houses, papers and effects against unreasonable
searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be
determined by the judge after examination under oath or affirmation of the complainant and the witnesses he
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1915
may produce, and particularly describing the place to be searched, and the persons or things to be seized.
(Sec. 1 [3], Article III)
was in turn derived almost verbatim from the Fourth Amendment ** to the United States Constitution. As such, the
Court may turn to the pronouncements of the United States Federal Supreme Court and State Appellate Courts
which are considered doctrinal in this jurisdiction.
Thus, following the exclusionary rule laid down in Mapp v. Ohio by the US Federal Supreme Court (367 US 643, 81
S.Ct. 1684, 6 L.Ed. 1081 [1961]), this Court, in Stonehill v. Diokno (20 SCRA 383 [1967]), declared as inadmissible
any evidence obtained by virtue of a defective search and seizure warrant, abandoning in the process the ruling
earlier adopted in Moncado v. People's Court (80 Phil. 1 [1948]) wherein the admissibility of evidence was not
affected by the illegality of its seizure. The 1973 Charter (Sec. 4 [2], Art. IV) constitutionalized the Stonehill ruling
and is carried over up to the present with the advent of the 1987 Constitution.
In a number of cases, the Court strictly adhered to the exclusionary rule and has struck down the admissibility of
evidence obtained in violation of the constitutional safeguard against unreasonable searches and seizures. (Bache
& Co., (Phil.), Inc., v. Ruiz, 37 SCRA 823 [1971]; Lim v. Ponce de Leon, 66 SCRA 299 [1975]; People v. Burgos, 144
SCRA 1 [1986]; Roan v. Gonzales, 145 SCRA 687 [1987]; See also Salazar v. Hon. Achacoso, et al., GR No. 81510,
March 14, 1990).
It must be noted, however, that in all those cases adverted to, the evidence so obtained were invariably procured by
the State acting through the medium of its law enforcers or other authorized government agencies.
On the other hand, the case at bar assumes a peculiar character since the evidence sought to be excluded was
primarily discovered and obtained by a private person, acting in a private capacity and without the intervention and
participation of State authorities. Under the circumstances, can accused/appellant validly claim that his
constitutional right against unreasonable searches and seizure has been violated? Stated otherwise, may an act of
a private individual, allegedly in violation of appellant's constitutional rights, be invoked against the State?
We hold in the negative. In the absence of governmental interference, the liberties guaranteed by the Constitution
cannot be invoked against the State.
As this Court held in Villanueva v. Querubin (48 SCRA 345 [1972]:
1. This constitutional right (against unreasonable search and seizure) refers to the immunity of one's person,
whether citizen or alien, from interference by government, included in which is his residence, his papers, and
other possessions. . . .
. . . There the state, however powerful, does not as such have the access except under the circumstances
above noted, for in the traditional formulation, his house, however humble, is his castle. Thus is outlawed
any unwarranted intrusion by government, which is called upon to refrain from any invasion of his dwelling
and to respect the privacies of his life. . . . (Cf. Schermerber v. California, 384 US 757 [1966] and Boyd v.
United States, 116 US 616 [1886]; Emphasis supplied).
In Burdeau v. McDowell (256 US 465 (1921), 41 S Ct. 547; 65 L.Ed. 1048), the Court there in construing the right
against unreasonable searches and seizures declared that:
(t)he Fourth Amendment gives protection against unlawful searches and seizures, and as shown in previous
cases, its protection applies to governmental action. Its origin and history clearly show that it was intended
as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other
than governmental agencies; as against such authority it was the purpose of the Fourth Amendment to
secure the citizen in the right of unmolested occupation of his dwelling and the possession of his property,
subject to the right of seizure by process duly served.
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The above ruling was reiterated in State v. Bryan (457 P.2d 661 [1968]) where a parking attendant who searched the
automobile to ascertain the owner thereof found marijuana instead, without the knowledge and participation of
police authorities, was declared admissible in prosecution for illegal possession of narcotics.
And again in the 1969 case of Walker v. State (429 S.W.2d 121), it was held that the search and seizure clauses are
restraints upon the government and its agents, not upon private individuals (citing People v. Potter, 240 Cal. App.2d
621, 49 Cap. Rptr, 892 (1966); State v. Brown, Mo., 391 S.W.2d 903 (1965); State v. Olsen, Or., 317 P.2d 938
(1957).
Likewise appropos is the case of Bernas v. US (373 F.2d 517 (1967). The Court there said:
The search of which appellant complains, however, was made by a private citizen the owner of a motel in
which appellant stayed overnight and in which he left behind a travel case containing the
evidence***complained of. The search was made on the motel owner's own initiative. Because of it, he
became suspicious, called the local police, informed them of the bag's contents, and made it available to the
authorities.
The fourth amendment and the case law applying it do not require exclusion of evidence obtained through a
search by a private citizen. Rather, the amendment only proscribes governmental action."
The contraband in the case at bar having come into possession of the Government without the latter transgressing
appellant's rights against unreasonable search and seizure, the Court sees no cogent reason why the same should
not be admitted against him in the prosecution of the offense charged.
Appellant, however, would like this court to believe that NBI agents made an illegal search and seizure of the
evidence later on used in prosecuting the case which resulted in his conviction.
The postulate advanced by accused/appellant needs to be clarified in two days. In both instances, the argument
stands to fall on its own weight, or the lack of it.
First, the factual considerations of the case at bar readily foreclose the proposition that NBI agents conducted an
illegal search and seizure of the prohibited merchandise. Records of the case clearly indicate that it was Mr. Job
Reyes, the proprietor of the forwarding agency, who made search/inspection of the packages. Said inspection was
reasonable and a standard operating procedure on the part of Mr. Reyes as a precautionary measure before
delivery of packages to the Bureau of Customs or the Bureau of Posts (TSN, October 6 & 7, 1987, pp. 15-18; pp. 78; Original Records, pp. 119-122; 167-168).
It will be recalled that after Reyes opened the box containing the illicit cargo, he took samples of the same to the NBI
and later summoned the agents to his place of business. Thereafter, he opened the parcel containing the rest of the
shipment and entrusted the care and custody thereof to the NBI agents. Clearly, the NBI agents made no search
and seizure, much less an illegal one, contrary to the postulate of accused/appellant.
Second, the mere presence of the NBI agents did not convert the reasonable search effected by Reyes into a
warrantless search and seizure proscribed by the Constitution. Merely to observe and look at that which is in plain
sight is not a search. Having observed that which is open, where no trespass has been committed in aid thereof, is
not search (Chadwick v. State, 429 SW2d 135). Where the contraband articles are identified without a trespass on
the part of the arresting officer, there is not the search that is prohibited by the constitution (US v. Lee 274 US 559,
71 L.Ed. 1202 [1927]; Ker v. State of California 374 US 23, 10 L.Ed.2d. 726 [1963]; Moore v. State, 429 SW2d 122
[1968]).
In Gandy v. Watkins (237 F. Supp. 266 [1964]), it was likewise held that where the property was taken into custody
of the police at the specific request of the manager and where the search was initially made by the owner there is no
unreasonable search and seizure within the constitutional meaning of the term.
That the Bill of Rights embodied in the Constitution is not meant to be invoked against acts of private individuals
finds support in the deliberations of the Constitutional Commission. True, the liberties guaranteed by the
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fundamental law of the land must always be subject to protection. But protection against whom? Commissioner
Bernas in his sponsorship speech in the Bill of Rights answers the query which he himself posed, as follows:
First, the general reflections. The protection of fundamental liberties in the essence of constitutional
democracy. Protection against whom? Protection against the state. The Bill of Rights governs the
relationship between the individual and the state. Its concern is not the relation between individuals,
between a private individual and other individuals. What the Bill of Rights does is to declare some forbidden
zones in the private sphere inaccessible to any power holder. (Sponsorship Speech of Commissioner
Bernas , Record of the Constitutional Commission, Vol. 1, p. 674; July 17, 1986; Emphasis supplied)
The constitutional proscription against unlawful searches and seizures therefore applies as a restraint directed only
against the government and its agencies tasked with the enforcement of the law. Thus, it could only be invoked
against the State to whom the restraint against arbitrary and unreasonable exercise of power is imposed.
If the search is made upon the request of law enforcers, a warrant must generally be first secured if it is to pass the
test of constitutionality. However, if the search is made at the behest or initiative of the proprietor of a private
establishment for its own and private purposes, as in the case at bar, and without the intervention of police
authorities, the right against unreasonable search and seizure cannot be invoked for only the act of private
individual, not the law enforcers, is involved. In sum, the protection against unreasonable searches and seizures
cannot be extended to acts committed by private individuals so as to bring it within the ambit of alleged unlawful
intrusion by the government.
Appellant argues, however, that since the provisions of the 1935 Constitution has been modified by the present
phraseology found in the 1987 Charter, expressly declaring as inadmissible any evidence obtained in violation of the
constitutional prohibition against illegal search and seizure, it matters not whether the evidence was procured by
police authorities or private individuals (Appellant's Brief, p. 8, Rollo, p. 62).
The argument is untenable. For one thing, the constitution, in laying down the principles of the government and
fundamental liberties of the people, does not govern relationships between individuals. Moreover, it must be
emphasized that the modifications introduced in the 1987 Constitution (re: Sec. 2, Art. III) relate to the issuance of
either a search warrant or warrant of arrest vis-a-vis the responsibility of the judge in the issuance thereof
(SeeSoliven v. Makasiar, 167 SCRA 393 [1988]; Circular No. 13 [October 1, 1985] and Circular No. 12 [June 30,
1987]. The modifications introduced deviate in no manner as to whom the restriction or inhibition against
unreasonable search and seizure is directed against. The restraint stayed with the State and did not shift to anyone
else.
Corolarilly, alleged violations against unreasonable search and seizure may only be invoked against the State by an
individual unjustly traduced by the exercise of sovereign authority. To agree with appellant that an act of a private
individual in violation of the Bill of Rights should also be construed as an act of the State would result in serious
legal complications and an absurd interpretation of the constitution.
Similarly, the admissibility of the evidence procured by an individual effected through private seizure equally applies,
in pari passu, to the alleged violation, non-governmental as it is, of appellant's constitutional rights to privacy and
communication.
2. In his second assignment of error, appellant contends that the lower court erred in convicting him despite the
undisputed fact that his rights under the constitution while under custodial investigation were not observed.
Again, the contention is without merit, We have carefully examined the records of the case and found nothing to
indicate, as an "undisputed fact", that appellant was not informed of his constitutional rights or that he gave
statements without the assistance of counsel. The law enforcers testified that accused/appellant was informed of his
constitutional rights. It is presumed that they have regularly performed their duties (See. 5(m), Rule 131) and their
testimonies should be given full faith and credence, there being no evidence to the contrary. What is clear from the
records, on the other hand, is that appellant refused to give any written statement while under investigation as
testified by Atty. Lastimoso of the NBI, Thus:
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Fiscal Formoso:
1918
You said that you investigated Mr. and Mrs. Job Reyes. What about the accused here, did you investigate
the accused together with the girl?
WITNESS:
Yes, we have interviewed the accused together with the girl but the accused availed of his constitutional
right not to give any written statement, sir. (TSN, October 8, 1987, p. 62; Original Records, p. 240)
The above testimony of the witness for the prosecution was not contradicted by the defense on cross-examination.
As borne out by the records, neither was there any proof by the defense that appellant gave uncounselled
confession while being investigated. What is more, we have examined the assailed judgment of the trial court and
nowhere is there any reference made to the testimony of appellant while under custodial investigation which was
utilized in the finding of conviction. Appellant's second assignment of error is therefore misplaced.
3. Coming now to appellant's third assignment of error, appellant would like us to believe that he was not the owner
of the packages which contained prohibited drugs but rather a certain Michael, a German national, whom appellant
met in a pub along Ermita, Manila: that in the course of their 30-minute conversation, Michael requested him to ship
the packages and gave him P2,000.00 for the cost of the shipment since the German national was about to leave
the country the next day (October 15, 1987, TSN, pp. 2-10).
Rather than give the appearance of veracity, we find appellant's disclaimer as incredulous, self-serving and contrary
to human experience. It can easily be fabricated. An acquaintance with a complete stranger struck in half an hour
could not have pushed a man to entrust the shipment of four (4) parcels and shell out P2,000.00 for the purpose
and for appellant to readily accede to comply with the undertaking without first ascertaining its contents. As stated
by the trial court, "(a) person would not simply entrust contraband and of considerable value at that as the marijuana
flowering tops, and the cash amount of P2,000.00 to a complete stranger like the Accused. The Accused, on the
other hand, would not simply accept such undertaking to take custody of the packages and ship the same from a
complete stranger on his mere say-so" (Decision, p. 19, Rollo, p. 91). As to why he readily agreed to do the errand,
appellant failed to explain. Denials, if unsubstantiated by clear and convincing evidence, are negative self-serving
evidence which deserve no weight in law and cannot be given greater evidentiary weight than the testimony of
credible witnesses who testify on affirmative matters (People v. Esquillo, 171 SCRA 571 [1989]; People vs. Sariol,
174 SCRA 237 [1989]).
Appellant's bare denial is even made more suspect considering that, as per records of the Interpol, he was
previously convicted of possession of hashish by the Kleve Court in the Federal Republic of Germany on January 1,
1982 and that the consignee of the frustrated shipment, Walter Fierz, also a Swiss national, was likewise convicted
for drug abuse and is just about an hour's drive from appellant's residence in Zurich, Switzerland (TSN, October 8,
1987, p. 66; Original Records, p. 244; Decision, p. 21; Rollo, p. 93).
Evidence to be believed, must not only proceed from the mouth of a credible witness, but it must be credible in itself
such as the common experience and observation of mankind can approve as probable under the circumstances
(People v. Alto, 26 SCRA 342 [1968], citing Daggers v. Van Dyke, 37 N.J. Eg. 130; see also People v. Sarda, 172
SCRA 651 [1989]; People v. Sunga, 123 SCRA 327 [1983]); Castaares v. CA, 92 SCRA 567 [1979]). As records
further show, appellant did not even bother to ask Michael's full name, his complete address or passport number.
Furthermore, if indeed, the German national was the owner of the merchandise, appellant should have so indicated
in the contract of shipment (Exh. "B", Original Records, p. 40). On the contrary, appellant signed the contract as the
owner and shipper thereof giving more weight to the presumption that things which a person possesses, or
exercises acts of ownership over, are owned by him (Sec. 5 [j], Rule 131). At this point, appellant is therefore
estopped to claim otherwise.
Premises considered, we see no error committed by the trial court in rendering the assailed judgment.
WHEREFORE, the judgment of conviction finding appellant guilty beyond reasonable doubt of the crime charged is
hereby AFFIRMED. No costs.
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SO ORDERED.
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Fernan, C.J., Gutierrez, Jr. and Feliciano, JJ., concur.
Footnotes
* Penned by Judge Romeo J. Callejo.
** It reads: "The right of the people to be secure in their persons, houses, papers and effects, against
unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable
cause, supported by oath or affirmation, and particularly describing the place to be searched, and the
persons or things to be seized."
*** Forged checks.
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1920
Kenneth Walker v. United States, Case P12.049, Report No. 62/03, Inter-Am. C.H.R.,
OEA/Ser.L/V/II.118 Doc. 70 rev. 2 at 550 (2003).
REPORT No 62/03*
PETITION P12.049
INADMISSIBILITY
KENNETH WALKER
UNITED STATES
October 10, 2003
I. SUMMARY
1. On July 17, 1995, the Inter-American Commission on Human Rights (hereinafter the
Commission) received a petition dated July 17, 1995 from the International Human Rights Law
Clinic at the Washington College of Law (hereinafter the Petitioners) against the Government of
the United States of America (hereinafter the State or United States). The petition was
presented on behalf of Mr. Kenneth Walker (hereinafter Mr. Walker), a citizen of Canada who is a
fugitive in the United States after failing to appear at a sentencing hearing. The petition was also
submitted on behalf of Mr. Hossein Alikhani and Mr. George Christoforou, but their complaints
were subsequently severed from Mr. Walkers petition in February of 1999, at the Petitioners
request.
2. The petition alleges that the State is responsible for violations of Mr. Walkers rights under
Articles I, II, V, VIII, XIV, XVII, XVIII, XXV, and XXVI of the American Declaration of the
Rights and Duties of Man (hereinafter the American Declaration or the Declaration), based
upon the United States practice of abduction by deceit and fraud, otherwise know as irregular
extraterritorial rendition. The Petitioners claim that U.S. Customs officials improperly lured Mr.
Walker to the United States as part of a covert sting operation and subsequently arrested and
detained him and charged him with arms export offenses. The Petitioners also contend that Mr.
Walker is unable to exhaust domestic remedies without being subjected to arrest and detention in
the United States and that the United States has failed to provide due process of law for the rights
alleged to have been violated.
3. The State argues that the petition is inadmissible because remedies provided under domestic law
have not been exhausted in accordance with generally recognized principles of international law,
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1921
and because the petition fails to state facts that constitute a violation of the rights set forth in the
American Declaration.
4. As set forth in this Report, having examined the information available and the contentions of the
parties on the question of admissibility, the Commission has decided to declare the petition
inadmissible in accordance with Article 31(1) of the Commissions Rules of Procedure for failure to
exhaust domestic remedies.
II. PROCEEDINGS BEFORE THE COMMISSION

5. Following the receipt of the Petitioners complaint, the Commission transmitted the pertinent
parts of the complaint to the United States by means of a note dated August 27, 1998 with a request
for observations within 60 days as established by the Commissions Rules of Procedure. By note of
the same date, the Commission informed the Petitioners that the pertinent parts of their petition had
been transmitted to the State.
6. In two letters dated September 19, 1998 and January 14, 1999, the Petitioners requested that the
Commission hold a hearing concerning their petition. Subsequently, in notes dated February 2,
1999, the Commission informed the Petitioners and the State that a hearing on the admissibility and
merits of the petition had been scheduled on March 5, 1999 during the Commissions 102nd
session.
7. By a note dated January 25, 1999, the Commission informed the State that it had yet to receive
any communication concerning the Petitioners complaint. The Commission again transmitted the
pertinent parts of the Petitioners complaint and requested that the State submit relevant
observations within 30 days.
8. In a communication dated February 16, 1999 and received by the Commission on February 17,
1999, the State requested an extension of time until March 31, 1999 within which to respond to the
Petitioners complaint and a postponement of the hearing that had been scheduled for March 5,
1999. In a note dated February 19, 1999, the Commission granted the State an extension but denied
its request for a postponement of the hearing.
9. In a letter dated February 21, 1999 and received by the Commission on February 25, 1999, the
Petitioners requested that Mr. Walkers complaint be severed from those of Mr. Hossein Alikhani
and Mr. George Christoforou because they conceded that the requirement of exhaustion of domestic
remedies had not been satisfied with respect to the latter individuals. According to the request, the
Petitioners had originally joined the cases of Mr. Alikhani and Mr. Christoforou to that of Mr.
Walker because all three petitioners alleged that the United States had employed deceptive and
illegal tactics to abduct and detain the alleged victims and had forced them to sign guilty plea
agreements under duress. The Commission granted the Petitioners request to sever the complaints
and proceeded with the hearing on March 5, 1999 on Mr. Walkers claim alone.
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1922
10. The hearing was convened on March 5, 1999 with representatives of the State and the
Petitioners in attendance. Both parties made representations concerning the admissibility and merits
of Mr. Walkers claims and responded to questions from the Commission members who presided
over the hearing.
11. In a communication dated March 26, 1999 and received by the Commission on March 30, 1999,
the State provided its observations on the Petitioners complaint. The Commission transmitted the
States observations to the Petitioners, with a response requested within 30 days.
12. By letter dated April 30, 1999 and received by the Commission on May 6, 1999, the Petitioners
provided their observations on the States March 26, 1999 response. The Commission transmitted
the pertinent parts of the Petitioners response to the State by a note dated May 12, 1999 with a
response requested within 30 days.
13. In a letter dated June 16, 1999 and received by the Commission on June 17, 1999, the State
delivered a response to the Petitioners observations of April 30, 1999. The Commission transmitted
the pertinent parts of the States response to the Petitioners by a note dated June 24, 1999 with a
response requested within 30 days. By a letter dated January 19, 2000, the Petitioners informed the
Commission that they did not intend to reply to the States response.
III. POSITIONS OF THE PARTIES
A. Position of the Petitioners
14. According to the petition, Kenneth Walker is a citizen of Canada who had been working as a
businessman and commodity trader in Toronto when the alleged events took place. Mr. Walker was
a business contact of New York commodities broker trader Barry Brokaw, who was under
surveillance by the United States Customs Service in early 1989. In an attempt to entrap Mr. Walker
in a covert sting operation, Customs agents used Mr. Brokaw to call Mr. Walker in mid-1989 with a
request for 1,000 chrome-plated pistols for delivery to Ecuador. According to the petition, although
Mr. Walker had regularly traded in a variety of commodities, he had no source of firearms and had
never previously traded in them. After initially declining and then making multiple inquiries, he
located an arms dealer in Switzerland. Mr. Walker agreed to assist Mr. Brokaw, and the Customs
Service covertly made arrangements for Mr. Walker to travel from Toronto to The Bahamas on
November 28, 1989 to meet with Mr. Brokaw.
15. According to the Petitioners, the Customs Service sent Mr. Walker his plane tickets at the last
possible moment, and once aboard the November 28, 1989 flight to The Bahamas, Mr. Walker
learned that the flight was routed through La Guardia airport in New York. Pursuant to a warrant
citing conspiracy to defraud the United States and to violate the Arms Export Control Act, Mr.
Walker was arrested by waiting U.S. customs agents as he departed the plane in New York for his
connecting flight. The Petitioners claim that Mr. Walker was subsequently interrogated for eight
hours without counsel. During this time, Mr. Walker cooperated with the Customs officials and
ultimately signed a statement concerning his involvement in the transaction on a promise by the
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officials that they would send him home. Instead, he was placed in custody and advised of his right
to retain counsel, and in December 1989 was indicted in the U.S. District Court for the Eastern
District on federal charges of violations of the U.S. Arms Export Control Act.
16. According to the petition, Mr. Walker was initially denied bail because he was a Canadian
citizen and was then moved back and forth between different U.S. detention facilities in a practice
known as diesel therapy, which is allegedly intended to disorient prisoners for the purpose of
breaking down their psychological defenses. Mr. Walker was subsequently granted bail on
condition that he remain in New York City until trial.
17. The petition states further that because his resources were depleted, Mr. Walker agreed to a plea
bargain on March 30, 1990 at which time an Assistant U.S. attorney is alleged to have promised to
endorse a defense request for a sentence of time served and threatened to add a charge of money
laundering in connection with a deposit wired by Mr. Brokaw to the supplier. After executing the
plea agreement, Mr. Walker was released and returned to Canada on April 6, 1990.
18. According to the petition, upon his return to Canada, Mr. Walker instructed his counsel to
withdraw his plea, who filed a corresponding motion on January 17, 1991. The United States
District Court of New York agreed to hear the motion but adjourned it pending Mr. Walkers
appearance and issued a bench warrant for his arrest. The U.S. government then requested that the
Canadian government extradite Mr. Walker back to the United States. On September 9, 1993, the
Canadian government rejected the extradition request and filed a diplomatic note formally
protesting the actions and sting operation of the U.S. Customs agents.
19. The Petitioners state that Mr. Walker then filed a civil action for damages before the Ontario
Court of Justice, which held that Mr. Walkers abduction constituted de facto kidnapping, as he was
lured by deceit to New York by undercover U.S. Customs agents, and that Mr. Walkers abduction
violated U.S. treaty obligations with Canada.[1] The Petitioners acknowledged during the course of
the proceedings before the Commission that the decision of the Ontario Court of Justice was
subsequently overturned by the Ontario Court of Appeal, but argue that the Court of Appeals
decision turned on its finding that Mr. Walker boarded the plane in Toronto willingly, that his
injuries did not take place in Canada, and therefore that Mr. Walker suffered no harm in Canada.[2]
The Petitioners claim that the Court of Appeal nevertheless recognized that Mr. Walker was
encouraged to enter the U.S. by false representations of U.S. customs officials and that Mr. Walker
suffered mental duress, emotional harm and false imprisonment at the hands of the U.S.
government, and argue that in any event the decision of the Court of Appeal should not be
considered dispositive of the issue of whether Mr. Walker entered the United States of his own free
will.
20. According to the petition, Mr. Walker has since been unsuccessful in his attempts to withdraw
the guilty plea or otherwise gain redress and has declined to go back to the United States for fear of
further incarceration.
21. Concerning the merits of the criminal charges against Mr. Walker, the Petitioners argue that
until his arrest, Mr. Walker had thought that the pistols at issue would be shipped to Ecuador, which
they claim was a permissible destination for this product with no criminal liability under U.S. law.
2014]
1924
However, upon his indictment in New York, Mr. Walker learned that the pistols were to be shipped
to Chile, which was a prohibited destination under the U.S. Arms Export Control Act. The
Petitioners therefore contend that U.S. Customs agents deceived Mr. Walker into a transaction that,
unbeknownst to him, violated U.S. law.
22. In relation to the admissibility of their complaint, the Petitioners argue that they are excused
from exhausting domestic remedies because Mr. Walker is barred from filing any legal action
before U.S. courts as long as he remains a fugitive in Canada. Mr. Walker had attempted to file a
motion to withdraw his guilty plea before the U.S. District Court for the Eastern District of New
York, which agreed to hear the motion but adjourned the hearing when Mr. Walker was not present.
The Petitioners indicate that Mr. Walker would be subject to arrest and detention if he appears in
person to withdraw his plea. The Petitioners cite the U.S. Doctrine of Fugitive Disentitlement,
which precludes a fugitive from using the resources of the courts to resolve his claim.[3] According
to the U.S. Supreme Court case of Degen v. United States, a fugitive is disentitled to standing in
criminal appeals and is, therefore, precluded from pursuing remedies in U.S. courts.[4] The
Petitioners also complain that since the Court adjourned the motion to withdraw pending Mr.
Walkers appearance, there has been undue delay in issuing a final judgment in the proceeding.[5]
23. With respect to the circumstances of Mr. Walkers arrest in particular, the Petitioners claim that
existing U.S. jurisprudence, including the decision of the U.S. Supreme Court in the case of United
States v. Alvarez-Machain,[6] bars a defendant who has entered the United States through luring or
abduction by U.S. government agents from challenging the jurisdiction of a court to entertain
criminal proceedings against them. Accordingly, the Petitioners contend that because illegal
abduction by state actors under U.S. criminal procedure cannot be raised to challenge an American
courts authority to try a criminal defendant, the Petitioners due process rights have been violated
and such violations are not cognizable under U.S. law.[7] The Petitioners also argue in this regard
that U.S. Customs officials take the position that they have the authority to arrest people if they are
lured or abducted from outside of the United States and accordingly that attempts to resolve Mr.
Walkers grievances with the U.S. government are futile.[8]
24. The Petitioners further indicate that the six-month deadline for filing the petition does not apply
due to an exception to the requirement of prior exhaustion of domestic remedies. They claim that
the petition was filed within a reasonable period of time, as prescribed by Article 32(2) of the Rules
of Procedure of the Commission, given that the violations by the State are ongoing. They assert that
Mr. Walker continues to suffer from a fear of illegal abduction and arbitrary detention by agents of
the State.
25. The Petitioners also assert that no petitions or communications substantially the same as the
present have been studied by the Commission or by another international organization in
accordance with Article 33(1) of the Commissions Rules of Procedure.
26. With respect to the merits of the complaint, the Petitioners claim that the State is responsible for
violating Mr. Walkers rights under the American Declaration and customary international law,
including a violation of a jus cogens norm that prohibits state-sponsored abductions.[9] The
Petitioners argue that the United States is responsible for violating Mr. Walkers right to liberty and
personal security under Article I of the Declaration, his right to protection of honor, personal
2014]
1925
reputation, and private and family life under Article V, his right to residence and movement under
Article VIII, and his right of protection from arbitrary arrest under Article XXV by deceiving,
abducting, and arbitrarily detaining Mr. Walker for a crime he allegedly did not commit. The
Petitioners contend that the United States resorted to irregular extraterritorial rendition because it
considered that the Canadian government would refuse to extradite Mr. Walker for trafficking in
illegal U.S. arms. The Petitioners argue further that the United States divested Mr. Walker of his
right to equality before the law under Article II, his right to recognition of civil rights under Article
XVII of the American Declaration, and his right to due process under Article XXVI of the
American Declaration when it circumvented the extradition process and illegally abducted Mr.
Walker without his consent or that of the Canadian government.
27. The Petitioners also argue that the United States interfered with Mr. Walkers right to work
under Article XIV by secretly taping his business phone calls, supplying him with fraudulent
information, and thwarting his attempts to conduct a due diligence investigation. They further
contend that the United States is responsible for violating Mr. Walkers right to a fair trial under
Article XVIII because he was detained against his will and without any formal legal process and
because the courts have not heard his motion to withdraw his plea.
B. Position of the State

28. In its March 26, 1999 and June 16, 1999 observations, the State provides descriptions of the
circumstances surrounding Mr. Walkers complaint, some of which conflict with the Petitioners
accounting of the relevant facts. More particularly, the State disputes the Petitioners contention that
Mr. Walker was not informed that the destination of the arms shipment would be Chile, not
Ecuador. The State notes that Mr. Walker was informed of the final destination of the arms during a
taped phone conversation on September 19, 1989. In addition, the State claims that on January 31,
1994, the Ontario Court of Appeal reversed the decision of the Ontario Court of Justice in Mr.
Walkers civil claim in Canada,[10] and that a subsequent motion for leave to appeal to the
Supreme Court of Canada was denied. According to the State, the Ontario Court of Appeal found
that Mr. Walker had voluntarily cleared U.S. Customs and Immigration before boarding the plane to
The Bahamas of his own free will, and that he only had to look at his plane ticket to realize that he
would be stopping in New York.
29. With respect to the admissibility of the Petitioners complaint, the State claims that the petition
of Kenneth Walker is inadmissible on either of two grounds. First, the Petitioners have failed to
invoke and exhaust domestic remedies in accordance with Article 31 of the Commissions Rules of
Procedure. Second, the State asserts that the petition fails to state facts that would constitute a
violation of rights set forth in the American Declaration and is manifestly groundless, as required
under Article 34 of the Commissions Rules of Procedure.
30. The State argues that the Petitioner has not pursued a variety of remedies in U.S. domestic
courts, with the exception of a motion to withdraw his plea. In this regard, the State asserts that the
Doctrine of Fugitive Disentitlement is not a jurisdictional bar to the pursuit of proceedings by
fugitives, but rather gives courts the discretion to dismiss an appeal or certiorari if a party seeking
2014]
1926
relief is a fugitive while the matter is pending. The State therefore argues that it remains open to
Mr. Walker to pursue his motion to withdraw his plea, notwithstanding the fact that he may be
considered a fugitive.[11] The State also emphasizes that procedural safeguards exist under U.S.
law to ensure that plea agreements are entered voluntarily.
31. Concerning the Petitioners allegations of undue delay in the resolution of Mr. Walkers motion
to withdraw his plea, the State asserts that Mr. Walker did not immediately begin proceedings to
contest the voluntariness of the plea agreement upon his return to Canada, as the Petitioners claim
in their complaint. He waited from his arrival in Canada on April 6, 1990 until January 22, 1991 to
file a motion to withdraw his plea. Mr. Walker also filed five requests to postpone the sentencing
hearing that was originally scheduled for June 13, 1990 and then failed to appear at the hearing
after leaving for Canada, as a consequence of which on January 25, 1991 the court issued a warrant
for his arrest for failure to appear. The State, therefore, argues that any delay in the domestic courts
consideration of Mr. Walkers plea is entirely attributable to Mr. Walkers own conduct.
32. Concerning the merits of the petition, the State argues that Mr. Walker entered the United States
of his own free will, by voluntarily accepting the airline tickets, boarding the plane, and passing
through U.S. Customs and Immigration. As a consequence, the State contends that Mr. Walkers
arrest cannot be said to have amounted to a forcible abduction or de facto kidnapping, but rather
that U.S. Customs agents were acting within the scope of their lawful authority to pursue and arrest
individuals suspected of having violated U.S. federal law.
33. In addition, the State contends that the practice of luring cannot be equated with that of forcible
abduction and kidnapping and does not violate customary international law. In particular, the State
argues that the jurisprudence cited by the Petitioners relates to instances of forcible abduction or
kidnapping and that the facts in Mr. Walkers case do not establish that he was kidnapped or
abducted. The State also contends that there is no authority for the proposition that luring or
trickery violates customary international law and that as a consequence, the Petitioners petition is
manifestly groundless.
34. With respect to the Petitioners allegations concerning the fairness of Mr. Walkers legal
proceedings, the State alleges that Mr. Walkers guilty plea was not coerced but was, on the
contrary, entirely voluntary. In support of this allegation, the State cites a court transcript that it
claims verifies that Mr. Walker understood the conditions of the plea agreement and had discussed
it with his attorney.[12] Based upon Mr. Walkers statements, the State contends that he understood
that he could be sentenced for up to five years imprisonment and a special parole term of up to one
year, and voluntarily accepted these terms on his guilty plea.
IV. ADMISSIBILITY
35. The Commission has considered the admissibility of the present complaint pursuant to Articles
30 and 34 of its Rules of Procedure and makes the following determinations.
A. Competence of the Commission ratione personae, ratione materiae, ratione temporis and ratione
loci
2014]
1927
36. The Commission is competent to examine the petition in question. Under Article 23 of the
Rules of Procedure of the Commission, the Petitioners are authorized to file complaints alleging
violations of rights protected under the American Declaration of the Rights and Duties of Man. The
alleged victim, Mr. Walker, is a person whose rights are protected under the American Declaration,
the provisions of which the State is bound to respect in conformity with the OAS Charter, Article
20 of the Commissions Statute and Article 49 of the Commissions Rules of Procedure. The United
States has been subject to the jurisdiction of the Commission since June 19, 1951, the date on
which it deposited its instrument of ratification of the OAS Charter.
37. Inasmuch as the Petitioners have filed complaints alleging violation of Articles I, II, V, VIII,
XIV, XVII, XVIII, XXV, and XXVI of the American Declaration, the Commission is competent
ratione materiae to examine the petition.
38. The Commission is competent ratione temporis to examine the complaints because the petition
alleges facts that occurred on and after the date on which the United States obligations under the
American Declaration took effect.
39. Finally, the Commission is competent ratione loci, given that the petition indicates that Mr.
Walker was under the jurisdiction of the United States at the time of his arrest, detention and
subsequent criminal proceedings.
B. Exhaustion of Domestic Remedies
40. Article 31(1) of the Commission's Rules of Procedure specifies that, in order to decide on the
admissibility of a matter, the Commission must verify whether the remedies of the domestic legal
system have been pursued and exhausted in accordance with generally recognized principles of
international law. When domestic remedies are unavailable as a matter of fact or law, however, the
requirement that they be exhausted may be excused. Article 31(2) of the Commissions Rules of
Procedure specifies that this exception applies if the legislation of the State concerned fails to
afford due process for the protection of the right allegedly violated, if the party alleging the
violation has been hindered in his or her access to domestic remedies, or if there has been an
unwarranted delay in the issuance of a final judgment.
41. Further, when the petitioner alleges that he or she is unable to prove exhaustion, Article 31(3) of
the Commissions Rules of Procedure provides that the burden then shifts to the State to
demonstrate that the remedies under domestic law have not previously been exhausted, unless it is
clearly evident from the record.[13] If a State which alleges non-exhaustion proves the existence of
specific domestic remedies that should have been utilized, the opposing party has the burden of
showing that those remedies were exhausted or that the case comes within the exceptions of Article
46(2). As the Inter-American Court of Human Rights has affirmed, [i]t must not be rashly
presumed that a State party to the Convention has failed to comply with its obligation to provide
effective domestic 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." [14]
2014]
1928
42. In the present complaint, the Petitioners acknowledge that Mr. Walker has not exhausted
remedies available before the courts in the United States, but maintain that the exception to the rule
of exhaustion of domestic remedies is applicable because Mr. Walker is restricted from filing any
motions in the United States while he is a fugitive living in Canada, under the U.S. Doctrine of
Fugitive Disentitlement. They claim that if Mr. Walker returns to the United States in order to file a
motion to withdraw his guilty plea, he will have to surrender himself to U.S. authorities and face
indictment for failure to return for trial.
43. The State, on the other hand, has alleged that adequate and effective domestic remedies exist to
address the alleged infringement of Mr. Walkers legal rights. According to the State, these
remedies include Mr. Walkers motion to withdraw his guilty plea. The State indicates that the
proceedings before the U.S. District Court for the Eastern District of New York had been stayed
pending Mr. Walkers appearance at the sentencing hearing. It further notes that a criminal
defendant may file a motion to withdraw a guilty plea and that the motion may be granted if the
defendant shows a fair and just reason warranting withdrawal.[15]
44. Based upon the record before it and the arguments of the parties, the Commission must
determine whether Mr. Walker has been hindered in his access to domestic remedies in the United
States so as to excuse him from the exhaustion requirement under the Commissions Rules of
Procedure. In this regard, the parties appear to agree that the U.S. Doctrine of Fugitive
Disentitlement presently precludes Mr. Walker from pursuing remedies before the courts in the
United States as long as he remains outside of the U.S. In Degen v. United States, the U.S. Supreme
Court held that federal courts have the authority to dismiss an appeal or writ of certiorari if the
party seeking relief is a fugitive while the matter is pending.[16]
45. Accordingly, the central issue before the Commission is whether, as a condition to engaging this
Commissions contentious jurisdiction, Mr. Walker should be expected to return to the United
States to attempt to pursue domestic remedies in that country, notwithstanding the existence of
ongoing criminal proceedings against him before the U.S. District Court for the Eastern District
Court of New York.
46. In determining this question, the Commission is satisfied based upon the record before it that
certain remedies relating to the issues raised before this Commission would be available to Mr.
Walker if he returned to the United States. First, the information indicates that Mr. Walkers motion
to withdraw his guilty plea has been adjourned and therefore that it could be pursued if Mr. Walker
returned to the United States. It cannot be disregarded in this respect that it was Mr. Walkers
conduct in entering a plea of guilty and then leaving the United States that gave rise to his inability
to pursue this, and potentially other remedies, before the United States courts. The Commission
also notes in this regard that the Petitioners have not contended that a motion to withdraw Mr.
Walkers guilty plea would be an ineffective remedy, but that it is not available owning to the
Doctrine of Fugitive Disentitlement.
47. It also appears that Mr. Walker would be in a position to pursue constitutional and other
remedies before state and federal courts challenging the processes against him on grounds raised
before this Commission, including those relating to the fairness of his proceedings and his
treatment while in custody.[17] Concerning the legality of his arrest in particular, the Petitioners
2014]
1929
have argued that existing U.S. jurisprudence precludes individuals like Mr. Walker from
challenging the personal jurisdiction of U.S. courts based upon the alleged illegality of their arrest
or seizure by private or state actors through irregular territorial rendition. The record indicates,
however, that previous precedents cited by the Petitioners have entailed circumstances different
than those involving Mr. Walker, and have nevertheless led those complainants to pursue criminal
and civil remedies before the courts in the United States.[18]
48. In this connection, the Commission considers it relevant that in the circumstances of the present
case, Mr. Walker chose not to raise any of the issue in his petition before the U.S. courts during any
of the stages of his criminal proceedings. Rather, as indicated by the record in this matter, he made
a conscious and informed decision to admit his guilt before the U.S. courts and participate in an
agreement through the U.S. justice system that facilitated his release and return to Canada, and
which he subsequently renounced. While the Commission may appreciate the reasons for Mr.
Walkers decision in this regard, the Commission must nevertheless consider whether it is
permissible in these circumstances for Mr. Walker to now impugn the government of the United
States before this Commission when he chose to cooperate with, rather than challenge, the U.S.
authorities before the U.S. judicial system. In these circumstances, and in light of the subsidiary
nature of its jurisdiction, the Commission does not consider an exception to the exhaustion of
domestic remedies requirement to be properly applicable.[19]
49. Moreover, there is no evidence that, should Mr. Walker return to the United States, he may be in
jeopardy of violations of his fundamental rights. There are no allegations or evidence, for example,
that Mr. Walker would be subjected to torture or other inhuman or degrading treatment, or that his
due process rights would be threatened by reason of a lack of independence or impartiality on the
part of the U.S. judicial system or otherwise. In this respect, the Commission shares the view of the
European Court of Human Rights that the decisive element in deciding whether an exception
applies to the exhaustion of domestic remedies is not the subjective fear of the affected person with
regard to the tribunals impartiality, but whether the fears can be justified objectively.[20] The
Commission cannot conclude, on the basis of the information presented in this case, that any future
decisions of a court or other tribunal in the United States will be taken in a biased manner and
without regard for the due process norms, or that Mr. Walker will otherwise be at risk of violations
of his fundamental rights.
50. Accordingly, after considering the arguments of the parties, the Commission finds that in this
case the exception to the rule of exhaustion of domestic remedies is not applicable because it has
not been shown that Mr. Walker would be denied access to adequate and effective remedies upon
returning to the United States or that U.S. legislation fails to provide due process of law for the
rights alleged to have been violated.
51. The Commission wishes to emphasize, however, that the circumstances of the present case must
be distinguished from cases in which there are grounds for considering that a petitioner who has
fled the jurisdiction of a state will be subjected to further human rights violations if they return to
that state to pursue domestic remedies. This may occur, for example, where a petitioner may be the
victim of torture or other inhumane treatment, or where he or she may be subjected to criminal
proceedings that are manifestly incompatible with the due process standards applicable under interAmerican human rights instruments. The Commission also wishes to note that its determination as
2014]
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to the admissibility of Mr. Walkers claims should not be interpreted as condoning or otherwise
passing judgment upon the propriety of the alleged actions of U.S. officials in the circumstances of
Mr. Walkers arrest and detention.
52. Based upon the information presented, the Commission finds that Mr. Walkers claims are
barred from consideration under Article 31(1) of its Rules of Procedure, and accordingly that the
Petitioners petition is inadmissible.
53. In light of its conclusion as to exhaustion of domestic remedies, the Commission does not
consider it necessary to address the remaining elements of admissibility.
V. CONCLUSIONS
54. The Commission concludes that it has the competence to examine the Petitioners allegations.
55. The Commission also concludes that the claims raised in the petition are inadmissible, on the
basis that the alleged victims have failed to pursue and exhaust domestic remedies in accordance
with the generally recognized principles of international law as required under Article 31 of the
Commissions Rules of Procedure.
56. On the basis of the findings of fact and law set forth above, and without prejudging the merits
of the matter,
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
DECIDES TO:
1. Declare the present case inadmissible.
2. Transmit this report to the parties.
3. Publish this report and include it in its Annual Report to the General Assembly of the
Organization of American States.
Done and signed in the city of Washington, D.C., U.S.A., on the 10TH day of the month of
October, 2003. (Signed): Jos Zalaquett, President; Clare Roberts, First Vice-President; Susana
Villarn, Second Vice-President; Julio Prado Vallejo, Commissioner.
* Commission Member Professor Robert K. Goldman, a national of the United States, did not take
part in the discussion and voting on this case, pursuant to Article 17(2) of the Commission's Rules
of Procedure.
[1] Petitioners petition dated July 17, 1995, pp. 24-25, citing Walker v. Bank of New York, Inc.,
(1993) 16 O.R. (3d) 596 (Gen. Div.).
2014]
1931
[2] Petitioners Response dated April 30, 1999, p. 3, citing Walker v. Bank of New York, Inc.,
(1994) 16 O.R. (3d) (Court of Appeal).
[3] Petitioners Response dated April 30, 1999, pp. 1-2, citing Molinaro v. New Jersey, 396 U.S.
365, 366 (1970).
[4] Petitioners observations dated April 30, 1999, citing Degen v. United States, 517 U.S. 820
(1996).
[5] Petitioners petition dated August 28, 1998, pp. 54-55.
[6] United States v. Alvarez-Machain, 504 U.S. 655 (1992).
[7] Petitioners petition dated August 28, 1998, pp. 6, 46, citing Ker v. Illinois, 119 U.S. 436 (1986),
Frisbie v. Collins, 342 U.S. 519 (1952), U.S. v. Yunis, 681 F. Supp. 909 (D.D.C. 1988), United
States v. Alvarez-Machain, 504 U.S. 655 (1992).
[8] Petitioners petition dated August 28, 1998, pp. 54-55.
[9] Petitioners petition dated August 28, 1998, pp. 50-53, citing Res. N 3/87, Case N 9674, Roach
and Pinkerton (United States), Annual Report of the IACHR 1987-88; Bennett v. Horsefery
Magistrates Court [1993] 3 All E.R. 128 (H.L.); R. v. Secretary of State for the Home Department,
Ex Parte Schmidt QBD (Unreported), 26 November 1993; Canon Garcia v. Ecuador, UNHRC,
Decision of 5/11/91, UN Doc. CCPR/C-43/D319/1988; R. v. Harley [1978] 2 NZLR 199; S. v.
Reahan 1992 (1) South African Criminal Law Reports 307 (ZS) at 317 (Zimbabwe); Limits to
National Jurisdiction, Documents and Judicial Resolutions on the Alvarez Machain Case, Vol. 1
(Mexico 1992) at 91; August 15, 1992 opinion of the Inter-American Juridical Committee;
International Penal Law Association Congress, Rio de Janeiro (September 10, 1994), Part II, para.
9.
[10] As indicated in the States observations, however, on January 31, 1994 the Ontario Court of
Appeal reversed the decision of the lower court, finding that Mr. Walker got on the plane at
Pearson International Airport of his own free will (albeit encouraged by a false representation of the
American customs officials). He voluntarily cleared U.S. Customs and Immigration before he did
so. He had only to look at his ticket to realize that he would be stopping in New York. Walker v.
Bank of New York, Inc. (1994) 16 O.R. (3d) 504 (Court of Appeal).
[11] States observations dated June 16, 1999, pp. 2-3, citing Degen v. United States, 517 U.S. 820
(1996).
[12] States observations dated June 16, 1999, p. 7, citing portions of Transcript of Criminal Cause
for Pleading of Kenneth Walker before Judge Jack B. Weinstein dated 30 March 1990, as follows:
Court: Have you read the plea agreement and discussed it with your attorney?
Mr. Walker: Yes
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1932
Court: Now you can be sentenced up to five years imprisonment and a special parole term of up to
one year. It means that after youre released if you get into any further trouble you can go back to
prisondo you understand that?
Mr. Walker: Yes
Court: So you must assume that you could go to prison for five years and be fined a quarter of a
million dollars. Do you understand?
Mr. Walker: Yes.
Court: Have you read the indictment?
Mr. Walker: Yes.
Court: Do you understand it?
Mr. Walker: Yes.
Court: Are you satisfied with your present counsel?
Mr. Walker: Yes.
Court: Did you select him?
Mr. Walker: Yes.
[13] See also I/A Court H.R., Velsquez Rodrguez Case, Merits, Judgment of July 29, 1988, Ser. C
N 4, para. 59.
[14] Id,. para. 62.
[15] States observations dated March 26, 1999, p. 5, citing Federal Rules of Criminal Procedure
32(2).
[16] Degen v. United States, supra note 3, at 824.
[17] In this regard, for example, the Fifth Amendment to the U.S. Constitution provides in part:
No person shall be compelled in any criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process of law. The Sixth Amendment to the
U.S. Constitution provides: In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and district wherein the crime shall have
been committed, which district shall have been previously ascertained by law, and to be informed
of the nature and cause of the accusation; to be confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for
his defence."
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1933
[18] In the case of Humberto Alvarez-Machain, for example, Dr. Alvarez-Machain, a Mexican
national, was abducted by U.S. Drug Enforcement Agency officials in Mexico and transported to
the United States to face prosecution on a murder charge. Dr. Alvarez-Machain pursued both
criminal and civil remedies before the courts in the United States. While he was ultimately not
successful in attempting to dismiss the indictment against him on the basis that his abduction
violated the extradition treaty between the United States and Mexico, he succeeded in bringing a
civil claim for, inter alia, cruel and inhuman and degrading treatment or punishment, arbitrary
detention, and false arrest and imprisonment before the federal courts under the Alien Tort Claims
Act and the Federal Tort Claims Act. In ruling in Dr. Alvarez-Machains favor on several of his
claims, the courts considered the United States' international human rights obligations and rendered
determinations of liability on the part of the State and its agents and corresponding awards of
damages. See United States v. Humberto Alvarez-Machain, 504 U.S. 655 (1992). Humberto
Alvarez-Machain v. United States, 266 F.3d 1045 (2001).
[19] See, similarly, Petition 12.274, Report N 18/02, Csar Verduga Vlez (Ecuador), Annual
Report of the IACHR 2002; Petition N 12.259, Report N 93/01, Alberto Dahik Garzozi (Ecuador),
Annual Report of the IACHR 2001. The Commission also notes in this regard that allegations by a
petitioner that ongoing criminal proceedings against him or her are unfair or otherwise suspect do
not, without more, exempt the petitioner from pursuing domestic remedies in respect of those
proceedings. See, e.g., Report N 89/01, Case 12.342, Balkissoon Roodal v. Trinidad and Tobago,
Annual Report of the IACHR 2001.
[20] See Eur. Court H.R., Albert and Le Compte v. Belgium, February 10, 1983, Series A, N 58,
para. 32 (finding that [i]n principle, the personal impartiality of the members of a tribunal must be
presumed until there is proof to the contrary.).
2014]
1934

ABSTRACT1
This is the first case decided by the Inter-American Court of Human Rights. The Velsquez Rodrguez case, together with
the Godnez Cruz, and Fairn Garbi and Sols Corrales cases, all considered by the Court around the same time, form a
trio of landmark cases targeting forced disappearance practices by the Honduran government during the early 1980s.
I. FACTS
A. Chronology of Events
September 12, 1981: Mr. Angel Manfredo Velsquez Rodrguez, a student at the National Autonomous
University of Honduras (Universidad Nacional Autnoma de Honduras, UNAH), is involved in activities
that the State considers dangerous to national security. 2 Between 4:30 and 5:00 pm, several
heavily armed men in civilian clothes, driving a white Ford vehicle without license plates, kidnap
Mr. Velsquez Rodrguez from a parking lot in downtown Tegucigalpa. 3
Mr. Velsquez Rodrguez is taken to an armed forces station located in Barrio El Manchn of
Tegucigalpa, where he is detained by members of the National Office of Investigations (DNI)
and the Honduran Armed Forces, who accuse him of political crimes, and subject him to harsh
interrogation and torture.345
September 17, 1981: Mr. Velsquez Rodrguez is moved to the First
Infantry Battalion, an armed forces command area, near Tegucigalpa. 6
1 . Leona Lam, Author; Elise Cossart-Daly, Grace Kim, and Sascha Meisel, Editors; Sarah Frost,
Chief Articles Editor; Cesare Romano, Faculty Advisor.
2 . Velsquez Rodrguez v. Honduras, Merits, Judgment, Inter-Am. Ct. H.R. (ser. C) No.
3 , 147(g)(i) (July 29, 1988).
4 . Id. 147(e).
5 . Id. 3.
6 . Id.
2014]
1935
1913
The police and security forces deny that he was ever detained there. 7
B. Other Relevant Facts

Between 1981 and 1984, approximately 150 people disappear in Honduras. 8 These
disappearances all follow a similar pattern: the victims are kidnapped by force from public places
in broad daylight by armed men in civilian clothes and disguises. 9 It is common knowledge that
the kidnappings are carried out by military personnel or the police, or persons acting under
government orders.10 The victims are usually persons whom the authorities consider to be
dangerous to State security, and who have been under surveillance for long periods of time. 11
Military and police officials either deny these disappearances or claim that they are
incapable of preventing or investigating them, unable to punish those responsible, or powerless
to help locate the victims or their remains. 12 The investigative committees created by the State
and the Armed Forces are ineffective in producing results, and judicial proceedings regarding
these disappearances are handled inefficiently. 13
II. PROCEDURAL HISTORY

A. Before the Commission
October 7, 1981: A petition is submitted to the Inter-American Commission of Human Rights on
behalf of Mr. Angel Manfredo
Velsquez Rodrguez.14
October 4, 1983: The Commission adopts Resolution No. 30/83, which presumes the allegations
contained in the petition to the Commission are true. 14 The petition concerns the detention and
7 . Id.
8 . Id. 147(a).
9 . Id. 147(b).
10 . Id. 147(c).
11 . Id. 147(c)(i).
12 . Id. 147(d)(v).
13 . Id.
14 . Id. 1. 14. Id. 4.
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1936
possible disappearance of Mr. Velsquez Rodrguez, and lays out the allegations that Mr.
Velsquez Rodrguez was kidnapped by government officials, taken away to armed forces
headquarters, detained, interrogated and tortured. 15
November 18, 1983: The State requests reconsideration of Resolution No. 30/93 on the grounds that
domestic remedies have not been exhausted, and further claims that the National Government of
Investigations has no knowledge of the whereabouts of Mr. Velsquez Rodrguez, and that the
State is making every effort to locate Mr. Velsquez Rodrguez. 16 The State further contends that
Mr. Velsquez Rodrguez is rumored to be with Salvadoran guerilla groups. 17
May 30, 1984: The Commission informs the State that it has decided in light of the information
submitted by the Honorable Government to reconsider Resolution No. 30/83 and to continue its
study of the case.18
April 18, 1986: The Commission adopts Resolution No. 22/86, finding that the new information
presented by the Government is insufficient to warrant reconsideration of Resolution No. 30/83.
To the contrary, the Commission finds that all evidence points to the State being responsible for
the disappearance of Mr. Velsquez Rodrguez, who is still missing. 19 The Commission confirms
Resolution No. 30/83 and refers the matter to the Court. 20
B. Before the Court

April 24, 1986: The Commission submits the case to the Court after the
State failed to adopt its recommendations. 21
1. Violations Alleged by Commission22

Article 4 (Right to Life)
15 . Id. 3, 4.
16 . Id. 5.
17 . Id.
18 . Id. 6.
19 . Id. 10.
20 . Id.
21 . Id. 1.
22 . Id. 2. The Merits Judgment does not indicate that the Commission alleged that the State
violated Articles 4 (Right to Life), 5 (Right to Humane Treatment), and 7 (Right to Personal
Liberty) in relation to Article 1(1) (Obligation to Respect Rights). Id.
2014]
Article 5 (Right to Humane Treatment)
1937
Article 7 (Right to Personal Liberty)
2. Violations Alleged by Representatives of the Victims 23

Same Violations Alleged by Commission.
Amnesty International, Association of the Bar of the City of New York, Lawyers Committee for
Human Rights, and Minnesota Lawyers International Human Rights Committee submit amicus
curiae briefs to the Court.2425
July 23, 1986: Judge Jorge R. Hernndez Alcerro recuses himself from hearing the case. 26
August 21, 1986: The State names Judge Rigoberto Espinal Iras as judge ad hoc.27
October 31, 1986: The State raises objections that the Commission did not follow proper
admissibility procedures; that the Commission did not take into account information provided by
the State regarding the failure to exhaust domestic legal remedies; and further that these
domestic legal remedies were not pursued or exhausted. 28 The State also objects on grounds that
the Commission did not follow proper procedure for preparing reports, ignored the Conventions
provision on friendly settlements, failed to comply with case referral procedures, and that
submitting the States observations on the merits is inappropriate at this time. 29
June 15, 1987: The State raises its preliminary objections at a hearing. 30 The State asserts six
preliminary objections: lack of a formal declaration of admissibility by the Commission, failure to
attempt a friendly settlement, failure to carry out an on-site investigation, lack of a prior hearing,
and improper application of Articles 50, which provides that the Commission may draw up a
23 . The victims representative is never mentioned in Court documents.
25 , 38 (July 29, 1988).
26 . Id. 13.
27 . Id.
28 . Velsquez Rodrguez v. Honduras, Preliminary Objections, Judgment, Inter-Am. Ct. H.R. (ser.
C) No. 1, 25(1)-(3) (June 26, 1987).
29 . Id. 25(4)-(7).
30 . Id. 22.
2014]
1938
report if a settlement is not reached, and 51, which provides that if the State has not responded
to the Commissions report within three months, the Commission may by majority vote set forth
its opinions regarding the question submitted. 31
June 26, 1987: The Court delivers its judgment on the States preliminary objections. 32 The Court
unanimously rejects all of the States preliminary objections except one, the lack of exhaustion of
domestic legal remedies,33 which the Court orders to be joined to the merits of the case because
lack of effective domestic remedy often occurs in forced disappearances. 34
With respect to the objection of the lack of a formal declaration of admissibility by the
Commission, the Court finds that there is nothing in the American Conventions procedures
requiring an express declaration of admissibility when the Commission itself is involved. 34
Therefore, the Commissions failure to make an express declaration on the question of
admissibility is not a valid basis for barring proper consideration by the Court. 35
Regarding the States argument that the Commission did not promote a friendly settlement,
the Court reasons that based on the text of the American Convention, attempting such a friendly
settlement need only happen when the circumstances of the controversy make the option
suitable or necessary, and that the decision is at the
Commissions sole discretion.36
The Court further finds that the Commissions failure to conduct an on-site investigation to
be inconsequential on the grounds that the rules governing on-site investigations are subject to
the discretionary powers of the Commission.35
With respect to the States objection to the Commissions failure to hold a preliminary
hearing, the Court holds that a preliminary hearing is a procedural requirement only when the
Commission considers it necessary or when the parties express such a request. 36 Since neither
the petitioners nor the State asked for a hearing, the Commission did not consider it necessary,
and was not required to hold one.39
As for the States objection to the improper application of Articles 50 and 51 of the
Convention, the Court finds that, despite that the requirements were not fully complied with,
there has been no impairment of the States rights such that the Court should rule the case
inadmissible.37
31 . Id. 32.
C) No. 1, (Jun. 26, 1987).
33 . Id. Now, therefore, the Court, 1.
34 . Id. 94. 34. Id. 39.
35 . Id. 49.
36 . Id. 53. 39. Id. 54.
37 . Id. 77.
35. Id. 41.
36. Id. 44.
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1939
March 20, 1987: In response to the States objections, the Commission draws the conclusion that
the State violated Articles 4 (Right to Life), 5 (Right to Humane Treatment), and 7 (Right to
Personal Liberty) of the American Convention because it detained Mr. Velsquez Rodrguez on
September 12, 1981 and he has been missing ever since. 38 The Commission further asserts that
the substantive or procedural objections raised by the State have no legal basis, and requests
that the Court find that the State violated the aforementioned rights of Mr. Velsquez
Rodriguez.39
November 6, 1987 - December 18, 1987: The Commission asks the Court to take provisional measures in
view of threats against several witnesses who have testified or who have been asked to testify
before the Court.40
January 15, 1988: After being informed that witnesses were assassinated on January 5, 1988 and on
January 14, 1988, the Court adopts provisional measures requesting that the Government of
Honduras adopt all measures necessary to prevent further infringements on the basic rights of
those who have appeared or have been summoned to appear before the Court in all pending
forced disappearance cases (Velsquez Rodrguez, Fairn Garbi and Sols Corrales and Godnez Cruz
cases).41 The Court further requests that the State do everything within its power to investigate
unsolved cases, identify the perpetrators, and impose punishment on those responsible for
forced disappearances.42
January 19, 1988: The Court unanimously orders the State to adopt additional provisional measures
requesting the State inform the Court, within two weeks, on the measures that have or will be
adopted to protect witnesses, the judicial investigations that have been or will be undertaken
with respect to threats against and assassinations of witnesses, and actions the State will take to
punish those responsible.43
III.
MERITS
A. Composition of the Court
38 . Id. 26(1).
39 . Id. 26(2)-(3).
40 . Velsquez Rodrguez v. Honduras, Merits, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 4, 39
(July 29, 1988); see also Velsquez Rodrguez v. Honduras, Provisional Measures, Order of the
Court, Inter-Am. Ct. H.R. (ser. E), Having Regard To 1-3 (Jan. 15, 1988).
41 . Velsquez Rodrguez v. Honduras, Merits, Judgment, 39; see also Velsquez Rodrguez v.
Honduras, Provisional Measures, Order of the Court.
42 . Velsquez Rodrguez v. Honduras, Merits, Judgment, 40, 41.
43 . Id. 45(1).
2014]
Rafael Nieto Navia, President
1940
Hctor Gros Espiell, Vice-President

Rodolfo E. Piza Escalante, Judge
Thomas Buergenthal, Judge
Pedro A. Nikken, Judge
Hctor Fix Zamudio, Judge
Rigoberto Espinal Iras, Judge ad hoc
Charles Moyer, Secretary
Manuel Ventura, Deputy Secretary
B. Decision on the Merits

July 29, 1988: The Court issues its Judgment on the Merits. 44
The Court found unanimously that Honduras had violated:
Article 4 (Right to Life), in relation to Article 1(1) of the Convention, to the detriment of Mr.
Velsquez Rodrguez,45 because:
Article 4 (Right to Life) of the Convention protects the right of every person to have his life respected. 46 The practice of
disappearances in Honduras often involved secret executions and concealment of bodies, the practice is a flagrant
violation of the right enshrined in Article 4.47 Since Mr. Velsquez Rodrguez has been disappeared for seven years, and
because his body was never discovered, the Court found there was a reasonable presumption that he had been killed. 48
The Court stated that even if there is the slightest doubt as to this whether Mr. Velsquez Rodriguez is dead, it is presumed
that his fate was impacted by authorities who systematically executed detainees without trial and who concealed bodies to
avoid punishment.49 Taking the above evidence along with the States failure to investigate or to take steps to prevent such
forced disappearances from happening, the Court found that the State violated Article 4 (Right to Life). 50
44 . Velsquez Rodrguez v. Honduras, Merits, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 4 (Jul. 29,
1988).
45 . Id. 194(4).
46 . Id. 157.
47 . Id.
48 . Id. 188.
49 . Id.
2014]
1941
Article 5 (Right to Humane Treatment), in relation to Article 1(1) of the Convention, to the
detriment of Mr. Velsquez Rodrguez,51 because:
Article 5 (Right to Humane Treatment) of the Convention recognizes the right that every individual has to have their
physical, mental, and moral integrity respected.55 Article 5 also recognizes the right to be free from cruel, inhuman, or
degrading torture, punishment, and treatment.52 Investigations into the practice of forced disappearance in addition to the
testimony of found victims suggest that victims of this practice are usually subject to cruel, inhumane, and degrading
treatment during their detainment.53 Though there is no direct evidence showing that Mr. Velsquez Rodrguez was
tortured, the Court concluded that Mr. Velsquez Rodrguez was kidnapped and imprisoned by government officials, and,
because the State has been shown to subject detainees to torture in the past, the Court held that the State violated Article
5 (Right to Humane Treatment) in this case of forced disappearance. 54
Article 7 (Right to Personal Liberty), in relation to Article 1(1) of the Convention, to the
detriment of Mr. Velsquez Rodrguez,55 because:
The kidnapping of a person is an arbitrary deprivation of liberty, and an infringement of the right to be brought without
delay before a judge or to invoke appropriate procedures to review the legality of an arrest. 56 Based on the evidence
presented in the case, the Court found that Mr. Velsquez Rodrguez was a victim of arbitrary detention, which deprived
him of his physical liberty without cause.61 For that reason, the Court found that the State violated Article 7 (Right to
Personal Liberty).62
Although the Commission did not allege a violation of Article 1(1) (Obligation to Respect Rights) of the American
Convention, the Court specifically applies this violation because Article 1(1) contains the generic basis of the protection
of all the rights recognized by the Convention.63 The Court discussed the essential nature of Article 1(1) in determining
whether a violation of human rights can be imputed to a State by charging States with the duty to respect and guarantee
rights that are recognized in the American Convention.57
The Court also rejected the States final preliminary objection of non-exhaustion of domestic
remedies,58 because:
50 . Id. 185.
51 . Id. 194(3). 55. Id. 156(1).
52 . Id. 156(2).
53 . Id. 156.
54 . Id. 185, 187.
55 . Id. 194(2).
56 . Id. 155. 61. Id. 186.
57 . Id. 163.
58 . Id. 81.
62. Id. 185.
63. Id. 162.
2014]
1942
The requirement of exhaustion of domestic remedies exists to allow the State to resolve the problem under its internal law
before being confronted with an international proceeding.59 The Court agreed with the State that this requirement is
necessary because domestic law precedes the international system in the protection of human rights, 60 however, the Court
also reasoned that the international protection of human rights is founded on the very need to protect victims from
arbitrary exercises of governmental authority.61 For that reason, when a petitioner alleges a lack of adequate domestic
remedy, international protection is not only justified, but necessary and urgent. 62 The Court noted that not all remedies are
applicable in every circumstance, and not all remedies are effective. 63 The Commission was able to show that although
writs of habeas corpus and criminal complaints were filed, they were ineffective. 71 While there may have been legal
remedies in the State that would have theoretically allowed a detained person to be found, the States attempts to solve the
cases of disappearance were ineffective because the imprisonments were clandestine, and suspicious procedures were
used to bring those responsible to justice.72
C. Dissenting and Concurring Opinions
1. Separate Opinion of Judge Rodolfo E. Piza Escalante
In a separate opinion, Judge Piza Escalante discussed his disagreement with the majoritys
opinion recognizing the Commission as the sole procedural party in the case, as opposed to only
the victims.73 Though the Judge conceded that the Commission may be in a better position to
oversee the interests of Mr. Velsquez Rodrguez, and that a specific agreement between the
State and Commission may have greater international standing than an agreement between the
State and the victim, Judge Piza Escalante opines that the Commission lacks the same standing
as the victim.764656667 Judge Piza Esclanate likens the Commission to a public prosecutor of the
Inter-American Human Rights System and not a party in its own right. 75 In the Judges opinion, the
Court did not interpret the Convention and the Regulations of the Commission and Rules of
Procedure of the Court correctly, and the Court did not adhere to the norms of the Convention
based on its ordinary textual meaning.68
59 . Id. 61.
C) No. 1, 92 (June 26, 1987).
61 . Id. 93.
62 . Id.
64 , 64, 66 (July 29, 1988). 71. Id. 81
65 . Id. 80.
66 . Velsquez Rodrguez v. Honduras, Merits, Separate Opinion of Judge Piza Escalante, Inter-Am.
Ct. H.R. (ser. C) No. 4, 6 (July 29, 1988).
67 . Id. 8. 75. Id. 3.
2014]
68 . Id. 8.

1943
The Judge stated that he would have approved the majoritys
2014]
1944
judgment in its entirety if the majority had framed its

holding regarding compensation to the victim to say the
form and amount of such compensation, failing agreement
between the parties, with the intervention of the Commission, within
six months of the date of this judgment instead of
...agreement between Honduras and the Commission within
six months.69 The Judge thus emphasized his stance that
the victim and his assignees should be the only active party
in the proceeding, and that the Commission should not be
construed as a party in any substantial sense. 70
In this separate opinion, Judge Piza Escalante does not
suggest that the Commission remove itself from actively
participating in negotiations of a settlement with the State
entirely, but rather points out that the Court should not
name the Commission as the only party to consult with the
State when the State must compensate the victim. 71
IV.
REPARATIONS
The Court ruled unanimously that the State had the

following obligations:
A. Specific Performance (Measures of Satisfaction and Non-
Repetition Guarantee)
69 . Id. 1, 3, 4; see also Velsquez Rodrguez v.

Honduras, Merits, Judgment, Inter-Am. Ct. H.R. (ser. C) No.
4, 194(6) (July 29, 1988).
70 . Velsquez Rodrguez v. Honduras, Merits, Separate
Opinion of Judge Piza-Escalante, 1, 3-4.
71 . Id. 7.
Id.
2014]
1945
1. Judgment as a Form of Reparation

The Court indicated that the Judgment on the Merits should
be considered itself a type of reparation and give significant
moral satisfaction to the families of the victim as the
Judgment recognized the States violation of Mr. Velsquez
Rodrguezs human rights.72
2. Continue Investigation into the Fate of the
Disappeared
The Court noted that State must continue to investigate the
fate of a disappeared person as long as their fate is
unknown.73 Since the fate of Mr. Velsquez Rodrguez is still
unknown, the State must maintain its
duty to investigate his disappearance. 74
B. Compensation
The Court awarded the following amounts:
1. Pecuniary Damages
[None]
72 . Velsquez Rodrguez v. Honduras, Reparations, and

Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 7, 36 (July
21, 1989).
73 1. 34.
74 . Id.
Id.
2014]
1946
2. Non-Pecuniary Damages
The Court ordered the State to pay $93750 to Ms. Emma
Guzmn Urbina de Velsquez, the wife of Mr. Velsquez
Rodrguez, for psychological damage and loss of income
from losing her husband.75
The Court ordered the State to pay $281250 dollars to the
three children of Mr. Velsquez Rodrguez: Hctor Ricardo,
Herling Lizzett, and Nadia Waleska Velsquez, for
psychological harm due to the forced disappearance of their
father, and for loss of income from losing their father as a
provider.76
3. Costs and Expenses

The Court did not find it necessary to render a decision
concerning the costs and expenses.7778
4. Total Compensation (including Costs and Expenses
ordered):
$375,000
75 . Id. 50-51, 60(2).

76 . Id. 50-51, 60(3).
77 . Velsquez Rodrguez v. Honduras, Merits, Judgment,
Inter-Am. Ct. H.R. (ser. C) No.
78 , 194(8) (July 29, 1988).
Id.
2014]
1947
C. Deadlines
The State must pay Ms. Urbina de Velsquezs award within
ninety days from the date of notification of the Judgment. 79
If the State decides to pay the award in six monthly
installments, the first payment must be paid within ninety
days of the Judgment and the remaining payments in the
five successive months, with the balance of the award
accruing appropriate interest.80 The award for Ms. Urbina de
Velsquez should be given to her directly, and the funds
awarded to the children shall be held in a trust fund at the
Central Bank of Honduras.81 Mr. Velzquez Rodrguezs
children are to receive monthly payments from this trust
fund and will receive their proportionate share when they
turn twentyfive.82
V. INTERPRETATION AND REVISION OF JUDGMENT
August 17, 1990: The Court admitted the Commissions
request for interpretation of the Judgment, and issued an
interpretation of its July 21, 1989 Judgment on the Merits. 83
The Interpretation of the Judgment assessed the
79 . Velsquez Rodrguez v. Honduras, Reparations, and
Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 7, 57 (Jul.
21, 1989).
80 . Id.
81 . Id. 58.
82 . Id.
83 . Velsquez Rodrguez v. Honduras, Interpretation of
Judgment of Reparations, and Costs, Judgment, Inter-Am. Ct.
H.R. (ser. C) No. 9 (Aug. 17, 1990). Judge Thomas
Buergenthal was unable to participate in the Interpretation
of Judgment of Reparations. See id.
Id.
2014]
1948
compensatory damages against the State. 84 In requesting

an interpretation of the Judgment, the Commission wanted
the Court to clarify the meaning and scope of the judgment
in regard to the future value of compensation that was
placed in a trust for Mr. Velsquez Rodrguezs children. 85
The Commission requested that the Court tie the amounts
in the trust to an appropriate index to protect the
purchasing power of the amounts, because hyperinflation
has historically occurred in Latin American countries. 86 In
response, the Court interpreted the expression under the
most favorable conditions to refer to any decision by the
trustee to ensure that the amount awarded to the
beneficiaries maintains an equivalent level of purchasing
power as when it was assigned and that generates
sufficient earnings or dividends to increase the amount
assigned.94
In their petition, the Commission emphasized that eight
months have elapsed since the damages became due and
payable, that the State
84 . Id.
85 . Id. 18.
86 . Id. 18, 19, 34. 94. 31.
Id.
2014]
1949
has not yet complied with the judgment, and that for this reason, the Court should
order payment of interest for delay as well as adjust the payment to reflect the
purchasing power of the lempira so that its current value is on par with what the
lempira was worth when the payment should have been made. 87
The Court declared the Commissions request for amplification of the petition
for clarification of the judgment inadmissible because, while Article 67 of the
Convention empowers the Court to interpret its judgments whenever there is
disagreement as to the meaning or scope of a judgment, the Commissions petition
requesting amplification of the previous request for interpretation did not mention
any controversy as to the meaning or scope of the judgment. 88 Instead, the
Commission is claiming that there has been nonperformance of clearly stated terms
of the judgment.89
Nonetheless, because the State has yet to comply with the payment of
damages, the Court retains jurisdiction over the case, 90 and since the State has not
made any payments to the beneficiaries, the Court found it appropriate to demand
payment of interest on the entire amount of the capital due. 91
Judge Piza Escalante concurred with the unanimous vote of the Court on their
general lines of reasoning, but the Judge disagreed with the paragraphs of the
Interpretation of the Judgment of Reparation and Costs that invoked the immediate
applicability of Article 67 of the Convention, which governs requests for
interpretation of judgments, in a separate statement. 92 In his separate statement,
Judge Piza Escalante discussed his disagreement with allowing the Judgment of
Reparations and Costs to be interpreted at all because Article 67 interpretation
procedures should only apply to final judgments, and in the Judges opinion, the
final judgment was made on July 29, 1988, in the Judgment on the Merits. 93 There
was no interpretation requested, and none required, of the July 29, 1988 decision. 102
87 . Id. 34.
88 . Id. 36.
89 . Id.
90 . Id. 37.
91 . Id. 40.
92 . Velsquez Rodrguez v. Honduras, Interpretation and Revision of Judgment,
Separate Opinion of Judge Piza-Escalante, Inter-Am. Ct. H.R. (ser. C) No. 9, 1 (Aug.
21, 1989).
93 . Id. 3, 4. 102. 4.
Id.
2014]
1950
In Judge Piza Escalantes opinion, on July 21, 1989, when the Court issued the
Judgment of Reparations and Costs, the Court only enforced the judgment.94
94 .
Id.

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PEOPLE OF THE PHILIPPINES, plaintiff-appellee

Velsquez Rodrguez v. Honduras

Velsquez Rodrguez v. Honduras

Velsquez Rodrguez v. Honduras

Velsquez Rodrguez v. Honduras

Fernan, C.J., Gutierrez, Jr. and Feliciano, JJ., concur.

Velsquez Rodrguez v. Honduras

Velsquez Rodrguez v. Honduras

II. PROCEEDINGS BEFORE THE COMMISSION

Velsquez Rodrguez v. Honduras

Velsquez Rodrguez v. Honduras

Velsquez Rodrguez v. Honduras

Velsquez Rodrguez v. Honduras

B. Position of the State

Velsquez Rodrguez v. Honduras

Velsquez Rodrguez v. Honduras

Velsquez Rodrguez v. Honduras

Velsquez Rodrguez v. Honduras

Velsquez Rodrguez v. Honduras

Velsquez Rodrguez v. Honduras

Velsquez Rodrguez v. Honduras

Velsquez Rodrguez v. Honduras

Velsquez Rodrguez v. Honduras

Velsquez Rodrguez v. Honduras

B. Other Relevant Facts

II. PROCEDURAL HISTORY

B. Before the Court

1. Violations Alleged by Commission22

Article 7 (Right to Personal Liberty)

2. Violations Alleged by Representatives of the Victims 23

35. Id. 41.

36. Id. 44.

Hctor Gros Espiell, Vice-President

B. Decision on the Merits

62. Id. 185.

63. Id. 162.

Velsquez Rodrguez v. Honduras

Velsquez Rodrguez v. Honduras

Velsquez Rodrguez v. Honduras

judgment in its entirety if the majority had framed its

The Court ruled unanimously that the State had the

69 . Id. 1, 3, 4; see also Velsquez Rodrguez v.

Velsquez Rodrguez v. Honduras

1. Judgment as a Form of Reparation

72 . Velsquez Rodrguez v. Honduras, Reparations, and

Velsquez Rodrguez v. Honduras

3. Costs and Expenses

75 . Id. 50-51, 60(2).

Velsquez Rodrguez v. Honduras

Velsquez Rodrguez v. Honduras

compensatory damages against the State. 84 In requesting

Velsquez Rodrguez v. Honduras

Velsquez Rodrguez v. Honduras

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