Inter-American Court of Human Rights
Case of Kawas-Fernández v. Honduras
Judgment of April 3, 2009
(Merits, Reparations and Costs)
In the case of Kawas-Fernández,
the Inter-American Court (hereinafter, “the Inter-American Court” or “the Court”),
composed of the following judges:
Cecilia Medina-Quiroga, President
Diego García-Sayán, Vice President
Sergio García-Ramírez, Judge
Manuel E. Ventura-Robles, Judge
Leonardo A. Franco, Judge
Margarette May Macaulay, Judge
Rhadys Abreu Blondet, Judge, and
Leo Valladares-Lanza, Judge ad hoc;
also present,
Pablo Saavedra-Alessandri, Secretary, and
Emilia Segares-Rodríguez, Deputy Secretary,
pursuant to Articles 62(3) and 63(1) of the American Convention on Human Rights
(hereinafter, “the Convention” or “the American Convention”) and Articles 29, 31, 53(2),
55, 56 and 58 of the Court’s Rules of Procedure (hereinafter, “the Rules of Procedure”),
delivers this Judgment.
I
INTRODUCTION OF THE CASE AND PURPOSE OF THE DISPUTE
1. On February 4, 2008, in accordance with the provisions of Articles 51 and 61 of the
American Convention, the Inter-American Commission on Human Rights (hereinafter, “the
Commission” or “the Inter-American Commission”) lodged before the Court an application
against the Republic of Honduras (hereinafter, “the State” or “Honduras”), which originated
from the petition submitted on January 13, 2003, by the Center for Justice and International
Law (hereinafter, “CEJIL”) and the Equipo de Reflexión, Investigación and Comunicación de
la Compañía de Jesús in Honduras (hereinafter, “ERIC”). On October 13, 2005, the
Commission adopted Report No. 67/05
1
declaring the petition admissible. Subsequently, on
1
In Report on admissibility No. 67/05, the Commission decided to declare admissible petition No. 61/03
concerning the presumed violation of Articles 4, 8 and 25, in relation to Article 1(1), of the American Convention
(file of attachments to the application, appendix 2, fs. 683, para. 45).
2
July 20, 2006, the Commission adopted Report on Merits No. 63/06,
2
pursuant to Article 50
of the Convention, which made certain recommendations to the State. This report was
notified to the State on August 4, 2006. After considering the information provided by the
parties following the adoption of the Report on Merits, and based on “the lack of substantive
progress in complying effectively with [its recommendations],” the Commission decided to
submit the instant case to the jurisdiction of the Court. The Commission appointed Florentín
Meléndez, Commissioner, and Santiago A. Canton, Executive Secretary, as delegates, and
the lawyers, Elizabeth Abi-Mershed, Deputy Executive Secretary, Juan Pablo Albán-
Alencastro and Alejandro Aristizábal, experts attached to the Commission’s Executive
Secretariat, as legal advisers.
2. According to the Commission’s application, on February 6, 1995, at approximately
7:30 p.m., Blanca Jeannette Kawas-Fernández was shot and murdered while she was inside
her home. The Commission indicated that, at the time of her death, Mrs. Kawas-Fernández
was President of the Fundación para la Protección de Lancetilla, Punta Sal, Punta Izopo y
Texiguat [Foundation for the Protection of Lancetilla, Punta Sal, Punta Izopo and Texiguat]
(hereinafter, “PROLANSATE”), an organization created in order “to improve the quality of life
of the people who live within the watersheds of the Bahía de Tela [Department of Atlántida,
Honduras],” and that, in this capacity, “she had denounced, among other matters, the
attempts by private individuals and entities to illegally appropriate Punta Sal, as well as the
contamination of the lakes and the depredation of the forests of the region.” According to
the Inter-American Commission, “the material contained in the record effectively shows
solid indications to reach the conclusion that the state has direct responsibility in the
deprivation of the life of the alleged victim”. Moreover, it stated that following her death
“serious omissions revealed that the State authorities did not adopt with due diligence all
the necessary measures to conduct an investigation that would achieve a concrete outcome.
As a result of the State’s failure to comply with its obligation, the right of ‘the next of kin’ of
the [alleged] victim to know the truth about what happened and to reparation for the losses
they suffered has been denied.”
3. The Commission alleged that “the effects of the impunity in this case, and the failure
to adopt measures that would avoid a repetition of the facts, has contributed to a context of
impunity for the acts of violence committed against defenders of human rights and of the
environment and natural resources in Honduras.” In this regard, it indicated that “the case
reflects the situation of defenders of the environment and natural resources in Honduras,
the attacks against these individuals, and the obstacles to the investigation of acts of
harassment and aggression.”
4. Based on the above, the Commission asked that the Court declare the international
responsibility of the State for the violation of Article 4 (Right to Life) of the American
Convention, in relation to Article 1(1) (Obligation to Respect Rights) thereof, to the
detriment of Blanca Jeannette Kawas-Fernández; and of Articles 8 (Right to a Fair Trial) and
25 (Right to Judicial Protection) also of the American Convention, in relation to Article 1(1)
2
In Report on Merits No. 63/06, the Commission concluded that the State was responsible for the violation
of Article 4 of the American Convention (Right to Life) in relation to the obligations established in Article 1(1)
thereof, to the detriment of Blanca Jeannette Kawas-Fernández; and of the rights recognized in Articles 8 (Right to
Fair Trial) and 25 (Right to Judicial Protection) of the American Convention, in conjunction with Articles 1(1) and 2
thereof, to the detriment of the next of kin of Mrs. Kawas-Fernández. The Commission also considered that “there
were no independent grounds for declaring the State responsible for the alleged violations of the [right to personal
integrity] Article 5 of the American Convention” (file of attachments to the application, appendix 1, fs. 672, para.
118).
3
(Obligation to Respect Rights) and Article 2 (Domestic Legal Effects) thereof, to the
detriment of the “next of kin” of Blanca Jeannette Kawas-Fernández. Lastly, the Commission
asked the Court to order the State to adopt specific measures of pecuniary and non-
pecuniary reparation.
5. On May 7, 2008, Viviana Krsticevic, Executive Director of CEJIL, and Luis Diego
Obando, Ramiro Barriga, Soraya Long and Gisela de León, all of CEJIL, together with Father
Ismael Moreno, Director of ERIC, representatives of the alleged victims (hereinafter “the
representatives”), presented their brief with pleas, motions and evidence (hereinafter the
“pleas and motions brief”), pursuant to Article 23 of the Rules of Procedure. In this brief,
they alleged that “Blanca Jeannette Kawas was a well-known Honduran defender of the
environment who promoted the protection of her country’s natural resources, principally in
Tela, an area located on the Atlantic coast of Honduras” and that, in this capacity, she was
murdered on February 6, 1995. The representatives reiterated that the death of Mrs.
Kawas-Fernández “was particularly symbolic, because she was the first person murdered in
Honduras for defending natural resources and the environment. After her murder, and
owing to the impunity that characterized it, a series of murders of other defenders of the
environment in Honduras occurred.”
6. Consequently, the representatives asked that the Court declare the State responsible
for the violation of Article 4 (Right to Life) of the Convention, in relation to Article 1(1)
thereof, to the detriment of Blanca Jeannette Kawas-Fernández, “based on the [alleged]
participation of State agents in ordering, planning and executing her murder and on the lack
of an effective investigation into her death”; of Articles 8 (Right to a Fair Trial) and 25 (Right
to Judicial Protection) of the American Convention, in relation to Article 1(1) thereof, to the
detriment of Blanca Jeannette Kawas-Fernández and of “her next of kin,” “for failing to
conduct a serious and effective investigation in order to prosecute and punish those
responsible for the violation of the right to life of Jeannette Kawas”; of Article 16 (Freedom
of Association) of the American Convention, in relation to Article 1(1) thereof, to the
detriment of Blanca Jeannette Kawas-Fernández, “because Mrs. Kawas was murdered
because she exercised her right to freedom of association,” and of Article 5 (Right to
Humane Treatment) of the American Convention, in relation to Article 1(1) thereof, to the
detriment of the “next of kin” of Blanca Jeannette Kawas-Fernández, “owing to the suffering
caused by her murder and the lack of an effective investigation.”
7. On July 3, 2008, the State presented its brief answering the application and with
observations on the pleas and motions brief (hereinafter “answer to the application”), in
which, on the one hand, “it partially acquiesced to [the Commission’s application and the
pleas and motions brief] and accept[ed] its international responsibility” for the violation of
Articles 8 (Right to a Fair Trial) and 25 (Right to Judicial Protection) of the Convention, in
relation to Articles 1(1) (Obligation to Respect Rights) and 2 (Domestic Legal Effects)
thereof, “to the detriment of the next of kin of Blanca Jeannette Kawas-Fernández”; and, on
the other hand, it “denied the alleged violation” of Article 4 (Right to Life) of the
Convention, “to the detriment of Blanca Jeannette Kawas-Fernández”; of Article 16
(Freedom of Association) of the Convention, “to the detriment of Blanca Jeannette Kawas-
Fernández,” and of Article 5 (Right to Humane Treatment) of the Convention, “to the
detriment of the next of kin of the [alleged] victim,” all in relation to Article 1(1) (Obligation
to Respect Rights) of the Convention.
8. In addition, the State rejected “the Commission’s argument […] that [this] case
reflects the situation of defenders of the environment and natural resources in Honduras, as
well as the attacks against the said individuals and the obstacles to the investigation of the
4
acts of harassment and aggression against them.” Similarly, it rejected “the argument used
by the representatives that the impunity of the Kawas case generated a context of violence
against environmentalists, and that the State did not take effective measures of prevention
and investigation, aggravated by the lack of due diligence of the agents of justice, which
contributed to a climate of impunity.” The State appointed Ángel David Reyes-Paz, Deputy
Prosecutor General of the Republic of Honduras, as Agent, and Ambassador Roberto Ramos-
Bustos, Director General of Special Affairs of the Secretariat of State of the Republic of
Honduras as Deputy Agent.
II
PROCEEDING BEFORE THE COURT
9. The Commission’s application was notified to the State and the representatives on
March 7, 2008. During the proceedings before the Court, in addition to the presentation of
the principal briefs forwarded by the parties (supra paras. 1 to 8), the President of the Court
(hereinafter, “the President”) ordered that the testimony of seven witnesses and two expert
witnesses offered, at the opportune time, by the Commission, the representatives and the
State, should be received by means of statements made before notary public (affidavits);
the parties were given the opportunity to submit their observations on these statements.
3
In
addition, the President convened the Commission, the representatives and the State to a
public hearing to receive the testimony of two witnesses and an expert witness, as well as
the final oral arguments of the parties on the Merits, reparations, and costs.
10. The public hearing was held on December 2, 2008, during the XXXVII Special Period
of Sessions of the Court, held in Mexico City, United Mexican States.
4
At the conclusion of
this hearing the judges asked the State and the representatives to submit complementary
information with their final written arguments.
11. On January 13, 2009, on the instructions of the President of the Court, the
representatives were asked to submit specific helpful evidence,
5
which was received on
January 29 and 30, 2009.
12. On January 20, 2009, the Commission, the representatives and the State forwarded
their respective final written arguments. Both the representatives and the State attached
some documentary evidence to their briefs (infra, para. 41).
13. On March 25, 2009, the Environmental Defense Law Center filed an amicus curiae
brief.
III
JURISDICTION
3
Cf. Order of the President of the Court of October 7, 2008.
4
There appeared at this hearing: (a) for the Inter-American Commission: Juan Pablo Albán, Isabel
Madariaga and Lilly Ching; (b) for the representatives of the alleged victims: Viviana Krsticevic, Soraya Long,
Gisela de León, Marcia Aguiluz, Vanessa Coria, Blanca Araceli and Lucy Mendoza-Díaz; and (c) for the State: Ángel
David Reyes (Agent), Roberto Ramos-Bustos (Deputy Agent), Rosalinda Bueno-Fura (Honduran Ambassador to
Mexico), Hugo Alberto Soaso, María Luisa Ramos-Matute, Mariela Castañeda, Fernando Griffin, Carolina Pineda and
Germán Silvestrucci-Santos, all lawyers.
5
The evidence requested consisted of the birth and death certificates of Mrs. Blanca Jeannette Kawas-
Fernández.
5
14. The Inter-American Court is competent to hear this case, pursuant to Articles 62(3)
and 63(1) of the American Convention, because Honduras has been a State Party to the
Convention since September 8, 1977, and accepted the compulsory jurisdiction of the Court
on September 9, 1981.
IV
PROVISIONAL MEASURES
15. On November 28, 2008, the representatives requested the Court to order the State
to adopt provisional measures for the benefit of one of the eyewitnesses of the murder of
Mrs. Kawas-Fernández. On November 29, 2008, the Court issued a Resolution ordering the
State to take the measures required to protect the life and personal integrity of Mr. Dencen
Andino-Alvarado, a witness in the investigation carried out in Honduras concerning the
murder of Mrs. Kawas-Fernández.
6
16. Said provisional measures are in full force and effect as of the date of this Judgment.
V
ACKNOWLEDGEMENT OF INTERNATIONAL RESPONSIBILITY
17. In its answer to the application, the State partially acknowledged its international
responsibility (supra paras. 7 and 8). The State repeated this acquiescence during the public
hearing and in its final written arguments (supra paras. 10 and 12).
18. The State limited its acquiescence to the claims of the Inter-American Commission
and of the representatives concerning the alleged violations of Articles 8 (Right to a Fair
Trial) and 25 (Right to Judicial Protection) of the American Convention, in conjunction with
Articles 1(1) and 2 thereof, to the detriment of “the next of kin of Blanca Jeannette Kawas-
Fernández” (supra para. 7). The State accepted “the arguments used by the parties
concerning the violation of [the said] rights.” Nevertheless, Honduras rejected and
contested the allegations concerning its international responsibility for the supposed
violation of Articles 4 (Right to Life) and 16 (Freedom of Association) of the Convention, to
the detriment of Blanca Jeannette Kawas-Fernández, and of Article 5 (Right to Humane
Treatment) thereof, to the detriment of her “next of kin,” all in relation to Article 1(1)
thereof (supra para. 7).
19
. With regard to the facts, the State acknowledged the results achieved owing to the
work of Blanca Jeannette Kawas-Fernández as a “defender of human rights and the
conservation of the environment and natural resources,” and affirmed that it “regretted the
events that caused her irreparable loss […].” However, it indicated that “the investigations
into the case under domestic law had not found that State agents had taken part in the
crime perpetrated against Mrs. Kawas-Fernández.” It also denied that “[this] case reflects
the situation of defenders of the environment and natural resources in Honduras, as well as
the attacks against the said individuals and the obstacles to the investigation of the acts of
harassment and aggression against them,” and that “the impunity in the Kawas case
generated a context of violence against environmentalists” (supra para. 8).
6
Cf. Order of the Inter-American Court of Human Rights of November 29, 2008.
6
20. Regarding the reparations requested, the State indicated that “it is a principle of
international law that any violation of an international obligation that has caused damage,
gives rise to an obligation to repair this damage satisfactorily”; accordingly, it agreed “to
make pecuniary and non-pecuniary reparations to the individuals who, based on the
corresponding judgment, are declared to have a right to them.” The State made some
observations on establishing pecuniary damages for loss of income, but added that it “would
submit to whatever the Court orders in the corresponding judgment.”
21. The Inter-American Commission and the representatives assessed the State’s
acknowledgement of responsibility positively. The Commission, in particular, indicated that
the State’s acknowledgement was “an act that paved the way towards reparation and
implementation of the efforts that must be made to ensure justice in this case, and to
guarantee that this type of violation is never repeated.”
22. The representatives indicated that the immediate consequence of the State’s partial
acquiescence was that the Court “should consider that the facts that gave rise to the said
[...] violations have been accepted [...] and that [it should declare] that the dispute has
ceased in relation to the violation of these rights.” They stated that “the dispute persists
concerning the facts on which the violations of the rights to life, personal integrity and
freedom of association are based, as well as on the existence of a context of violence and
impunity that affects, in particular, defenders of the environment” in Honduras.
23. Under Articles 53(2) and 55 of the Rules of Procedure,
7
and in function of its
authority to exercise the international judicial protection of human rights, the Court may
determine whether an acknowledgement of international responsibility made by a defendant
State offers sufficient grounds, in the terms of the American Convention, to continue
examining the Merits and determining reparations and costs.
8
24. Since the proceedings before this Court relate to the protection of human rights, a
matter of international public order that goes beyond the intent of the parties, the Court
must ensure that acts of acquiescence are acceptable for the purposes of the Inter-
American system. To this end, the Court does not limit itself to merely verifying the formal
conditions of the said acts, but relates them to the nature and gravity of the alleged
violations, the requirements and interests of justice, the particular circumstances of each
case, and the attitude and position of the parties.
9
7
Article 53. Discontinuance of a Case
[…]
2. If the respondent informs the Court of its acquiescence to the claims of the party that has brought the case
as well as the to claims of the representatives of the alleged victims, his next of kin or representatives, the
Court, after hearing the opinions of the other parties to the case, shall decide whether such acquiescence and
its juridical effects are acceptable. In that event, the Court shall determine the appropriate reparations and
indemnities.
Article 55. Continuation of a Case
The Court, may notwithstanding the existence of the conditions indicated in the preceding paragraphs, and
bearing in mind its responsibility to protect human rights, decide to continue the consideration of a case.
8
Cf. Case of Myrna Chang V. Guatemala. Merits, Reparations and Costs. Judgment of November 25, 2003.
Series C No. 101, para. 105; Case of Ticona-Estrada et al. V. Bolivia. Merits Reparations and Costs. Judgment of
November 27, 2008. Series C No. 191, para. 20; and Case of Valle-Jaramillo et al. V. Colombia. Merits, Reparations
and Costs. Judgment of November 27, 2008. Series C No. 192, para. 28.
9
Cf. Case of Myrna Mack-Chang. Merits, Reparations and Costs, supra note 8, 106 to 108; Case of Kimel V.
Argentina. Merits, Reparations and Costs. Judgment of May 2, 2008, Series C No. 177, para. 24, and Case of
Ticona-Estrada et al. Merits, Reparations and Costs, supra note 8, para. 21.
7
25. Regarding the facts of the instant case, the Court observes that the State has not
made any specific acknowledgement of the facts on which its acquiescence is founded.
However, by having acquiesced to the alleged violations of Articles 8 and 25 of the American
Convention, in relation to the obligations established in Articles 1(1) and 2 thereof, the
Court understands that the State has implicitly acknowledged the facts, which, according to
the application – the factual framework for the proceedings – constitute these violations; in
other words, the facts relating to “the murder of Blanca Jeannette Kawas-Fernández and the
related investigation,” described in paragraphs 49 to 71 of the application, so that no
dispute subsists in this regard.
26. Regarding the alleged victims, the State, in its brief answering the application,
accepted the violation of the rights established in Articles 8 and 25 of the Convention, in
relation to Articles 1(1) and 2 thereof, to the detriment of “the next of kin of Blanca
Jeannette Kawas-Fernández,” identified generically. In the application’s chapter
corresponding to the alleged violation of these rights, both the Commission and the
representatives refer generically to “the next of kin” of Mrs. Kawas-Fernández as alleged
victims, without clarifying who they consider to be next of kin.
27. The Court has established that the alleged victims must be indicated in the
application and in the report of the Commission under Article 50 of the Convention. Also, in
accordance with Article 33(1) of the Rules of Procedure, it is the Commission, and not the
Court, that must identify the alleged victims precisely in a case before the Court and at the
due procedural opportunity.
10
28. The Court observes that in Chapter VIII “Reparations and Costs” of the application,
the Commission presented a list of the “beneficiaries of the reparations” with the names of
eight next of kin of Mrs. Kawas-Fernández.
11
The representatives did the same.
12
In this
regard, the State affirmed that it did not contest the list of “beneficiaries” that was
presented; this implies that it made its acquiescence with full knowledge of those who had
been defined as next of kin by the representatives and the Inter-American Commission.
Nevertheless, the State “consider[ed] it necessary to authenticate the said relationship, by
means of the respective documents.”
29. Furthermore, the Court observes that the representatives included Blanca Jeannette
Kawas-Fernández as a victim of the alleged violations of Articles 8(1) and 25(1) of the
American Convention, in relation to Article 1(1) thereof, and that this inclusion does not
10
Cf. Case of Goiburú et al. V. Paraguay. Merits, Reparations and Costs. Judgment of September 22, 2006.
Series C No. 153, para. 29; Case of Perozo et al. V. Venezuela. Preliminary Objections, Merits, Reparations and
Costs. Judgment of January 28, 2009. Series C No. 195, para. 50; Case of Ríos et al. V. Venezuela. Preliminary
Objections, Merits, Reparations and Costs. Judgment of January 28, 2009. Series C No. 194, para. 43.
11
In its application, the Commission indicated that “[o]wing to the nature of this case, the beneficiaries of
any reparations Ordered by the Court as a result of the human rights violations perpetrated by the Honduran State
are the victim already mentioned in this application and her next of kin who have suffered pecuniary and/or non-
pecuniary damage as a result of the alleged human rights violations. According to the information in the case file,
the direct next of kin include: Blanca Fernández (mother); Jacobo Kawas-Cury (father); James Gordon Watt
(husband); Jaime; Alejandro Watt-Kawas (son); Selsa Damaris Watt-Kawas (daughter); Carmen Marielena Kawas-
Fernández (sister); Jacobo Roberto Kawas-Fernández (brother); Jorge Jesús Kawas-Fernández (brother).”
12
In their pleas and motions brief, the representatives indicated that “the closest next of kin should be
considered victims and beneficiaries of the reparations, owing to the violations they have suffered over the years,”
stating that the reparations should be granted to the following individuals: Blanca Fernández (mother), Jacobo
Kawas-Cury (father – deceased in November 2005), Jaime Alejandro Watt-Kawas (son), Selsa Damaris Watt-Kawas
(daughter), Carmen Marianela Kawas-Fernández (sister), Jacobo Roberto Kawas-Fernández (brother) and Jorge
Jesús Kawas-Fernández (brother).
8
form part of the State’s acquiescence.
30. Based on the foregoing, the Court will proceed to determine who should be
considered victims of the violation of the rights embodied in Articles 8 and 25 of the
Convention, in conjunction with Articles 1(1) and 2 thereof, and, to this end, will examine
the evidence presented in relation to the alleged relationships (infra para. 119).
31. The above notwithstanding, the Court notes that the acknowledgement of State
responsibility (supra paras. 17 to 20) is based on facts established in the application, is
consequent with the preservation of the right embodied in Articles 8(1) (Right to a Fair
Trial) and 25(1) (Right to Judicial Protection) of the American Convention, as well as the
general obligation to respect and guarantee rights established therein, and does not restrict
the fair reparations to which the alleged victims would have a right, but rather defers to the
decision that the Court will make. Consequently, the Court decides to accept the
acknowledgement made by the State and classify it as an admission of the facts and a
partial acquiescence to the legal claims contained in the Commission’s application, and an
admission of the arguments made by the representatives.
32. The Court considers that the attitude of the State makes a positive contribution to
the development of these proceedings, to the exercise of the inter-American jurisdiction on
human rights, to the implementation of the principles that inspire the American Convention,
and to the conduct that States are obliged to adopt in this regard,
13
owing to the
commitments they assume as parties to international human rights instruments.
*
* *
33. Moreover, the Court notes that, with regard to the facts, the dispute subsists
concerning whether this case reflects the situation of those who work for the defense of the
environment in Honduras (supra para. 19). The Court also considers that the dispute
subsists concerning the facts described in the application concerning the supposed
participation of State agents in planning and covering-up the murder of Mrs. Kawas-
Fernández.
34. Regarding the legal claims, the Court finds that the dispute between the parties
subsists concerning the alleged violation of Articles 4 (Right to Life) and 16 (Freedom of
Association) of the Convention, in relation to Article 1(1) thereof, to the detriment of Mrs.
Kawas-Fernández; the alleged violation of Article 5 (Right to Humane Treatment) of the
Convention to the detriment of “the next of kin” of Mrs. Kawas-Fernández, and
determination of reparations.
*
* *
35. In consideration of the above, the Court finds that, notwithstanding the partial
admission of facts and the acknowledgement regarding the various claims by the State,
there is still the need to determine the nature and scope of the violations alleged in the
instant case. Therefore, in view of the powers entrusted upon it to protect human rights,
13
Cf. Case of Benavides-Cevallos V. Ecuador. Merits, Reparations and Costs. Judgment of June 19, 1998.
Series C No. 38, para. 57; Case of Ticona-Estrada et al. Merits, Reparations and Costs, supra note 8, para. 26; and
Case of Valle-Jaramillo et al. Merits, Reparations and Costs, supra note 8, para. 46.
9
and as a method of reparation, the Court finds it necessary to pass a Judgment to establish
the facts and all the elements on the Merits of the instant case, as well as the related
consequences regarding reparations.
VI
EVIDENCE
36. Based on Articles 44 and 45 of the Rules of Procedure, as well as on the case law of
the Court concerning evidence and its assessment,
14
the Court will proceed to examine and
assess the documentary probative elements forwarded by the parties at different procedural
opportunities, the statements provided by affidavit and the testimony received at the public
hearing (supra para. 10), as well as the helpful evidence requested by the President (supra
para. 11). In this regard, the Court will abide by the principles of sound judicial discretion,
within the corresponding legal framework.
15
A) Documentary, Testimonial and Expert Evidence
37. The statements made before notary public (affidavits) by the following alleged
victims, witnesses and expert witnesses were accepted:
16
a) Trinidad Marcial Bueno-Romero, former personal assistant to Blanca
Jeannette Kawas-Fernández and witness proposed by the Commission. Her
testimony referred to: (a) the work of Blanca Jeannette Kawas in her capacity as a
defender of the environment and natural resources; (b) the alleged conflicts with
peasants of the Unión Nacional Campesina (UNC) and with industrialists from the
Hondupalma company in the agricultural sector; and (c) what she knew about the
facts that occurred on February 6, 1995.
b) Danelia Ferrera-Turcios, Director General of the Prosecutor’s Office and
witness proposed by the State. She testified about the lawsuits filed in the cases of
the death of Carlos Escalera-Mejía, Carlos Antonio Luna-López, Hernaldo Zúñiga and
other environmentalists named by the Commission and the representatives in their
applications, as well as the results of those actions, the individuals convicted, the
arrest warrants issued, and the status of the said cases.
c) Selsa Damaris Watt-Kawas, alleged victim in the instant case proposed by the
representatives. She testified about: (a) the work performed by her mother, Blanca
14
Cf. Case of the “White Van” (Paniagua-Morales et al.) V. Guatemala. Merits. Judgment of March 8, 1998.
Series C No. 37, para. 76; Case of Ríos et al. Preliminary Objections, Merits, Reparations and Costs, supra note 10,
para. 101; and Case of Perozo et al. Preliminary Objections, Merits, Reparations and Costs, supra note 10, para.
112.
15
Cf. Case of Nogueira de Carvalho et al. V. Brazil. Preliminary Objections and Merits. Judgment of
November 28, 2006. Series C No. 161, para. 55; Case of La Cantuta V. Perú. Merits, Reparations and Costs.
Judgment of November 29, 2006. Series C No. 162, para. 59; and Case of Kimel. Merits, Reparations and Costs,
supra note 9, para. 29.
16
In relation to testimony given by Blanca Fernández and Carmen Marianela Kawas-Fernández, offered by
the representatives and required by the Order of the President, on November 7, 2008, the representatives
presented a communication affirming that “with regard to the testimony of Blanca Fernández, mother of the
[alleged] victim in the case, we desist from presenting this because [...] she is currently 82 years of age and her
physical and mental condition has deteriorated so that it is not possible to provide the requested statement. We
also desist from the testimony of Carmen Marianela Kawas-Fernández, the [alleged] victim’s sister, because she
was unable to make the required statement and carry out the corresponding authentication procedure, since she is
currently responsible for the care of her mother, Blanca Kawas, whose health […] has deteriorated.”
10
Jeannette Kawas-Fernández, and what she presumably earned; (b) the supposed
emotional effects that the next of kin of Blanca Jeanette Kawas, in general, and she,
in particular, had suffered owing to the alleged execution of Mrs. Kawas-Fernández;
and (c) the presumed impact of the impunity of the death of Blanca Jeannette Kawas
on the alleged victim’s next of kin.
d) Jaime Alejandro Watt-Kawas, alleged victim in the instant case proposed by
the representatives. He testified about: (a) the work performed by his mother,
Blanca Jeannette Kawas-Fernández, and what she presumably earned; (b) the
supposed emotional effects that the next of kin of Blanca Jeanette Kawas, in general,
and he, in particular, had suffered owing to the alleged extrajudicial execution of
Mrs. Kawas-Fernández and the fact that they do not know who was responsible; (c)
the supposed facts that have obstructed the investigation in the instant case, and (d)
the alleged financial difficulties that he experienced following his mother’s death.
f) Jorge Jesús Kawas-Fernández, alleged victim in the instant case proposed by
the representatives. He testified about: (a) the presumed emotional effects that the
next of kin of Blanca Jeanette Kawas, in general, and he, in particular, had suffered
following the alleged extrajudicial execution of his sister; (b) the alleged impact of
the impunity of the death of Blanca Jeannette Kawas on her next of kin, and (c) the
alleged financial expenses that the family incurred following her execution.
h) Rigoberto Ochoa, Human Rights specialist and expert witness proposed by
the Commission. He provided information on the situation of defenders of the
environment and natural resources and, in general, the situation of human rights
defenders in Honduras.
i) Juan Almendares, environmentalist and social leader, and expert witness
proposed by the representatives. He provided his expert opinion on the alleged
relationship between the supposed impunity of the alleged violations of which human
rights defenders in Honduras (principally those dedicated to the defense of the
environment) are victims, and the alleged impunity that reigns with regard to the
grave human rights violations that characterized Honduras during the 1980s.
38. Regarding evidence provided during the public hearing, the Court heard the
testimony of the following persons:
a) Jacobo Kawas-Fernández, alleged victim proposed by the Commission and the
representatives. He testified about: (i) the work performed by Blanca Jeannette
Kawas and her presumed earnings; (ii) what he knew about the execution of his
sister, Blanca Jeannette Kawas; (iii) the alleged measures taken by the next of kin of
Blanca Jeannette Kawas in the period immediately following her murder, the alleged
expenses they incurred, and their contributions to the investigation; (iv) what he
knew about the attitude of the authorities and how the latter responded to these
measures; (v) what he knew about the problems in conducting the investigations in
the domestic sphere; (vi) the supposed obstacles confronted by the alleged victim’s
next of kin in their search for justice in this case, and (vii) the alleged consequences
on his personal life and on the members of his family of the alleged human rights
violations presumably suffered by Blanca Jeannette Kawas-Fernández.
b) Rafael Sambulá, former director of PROLANSATE and witness proposed by the
representatives. He testified about: (i) the work of Blanca Jeannette Kawas as an
11
ecologist and the presumed contributions of the alleged victim to the fight to protect
the environment in Honduras; (ii) what he knew of the facts that occurred on
February 6, 1995, and the investigation opened into them; (iii) the effects of the
death of Blanca Jeannette Kawas on PROLANSATE; and (iv) what he knew about the
situation of those who work to defend the environment in Honduras after the death
of Blanca Jeannette Kawas.
c) Clarisa Vega Molina, former special prosecutor for the environment in
Honduras, and expert witness proposed by the representatives. She provided her
expert opinion on: (i) environmental conditions in Honduras; (ii) the situation of
defenders of the environment in this country; (iii) the alleged general impunity with
regard to violations perpetrated against environmentalists in Honduras, and (iv) the
difficulties in investigating this type of facts.
B) Assessment of the Evidence
39. In this case, as in others,
17
the Court accepts the probative value of those
documents presented opportunely by the parties, which were not contested or opposed, and
whose authenticity was not challenged. In relation to the documents forwarded as helpful
evidence (supra para. 11), the Court incorporates them into the body of evidence, in
application of the provisions of Article 45(2) of the Rules of Procedure.
40. Regarding the statements and expert opinions, the Court finds them pertinent to the
extent that they are in keeping with the purpose defined by the President in the Order
requiring them (supra para. 9), and they will be examined in the corresponding chapter.
The Court finds that the testimonial statements made by the alleged victims cannot be
assessed alone, since they have a direct interest in the case; consequently they will be
assessed together with all the evidence in the proceedings.
18
41. With regard to the documents referring to procedural costs and expenses forwarded
by the representatives together with their final written arguments, the Court notes that the
State did not oppose the incorporation of this evidence, so that, pursuant to Article 45(2) of
the Rules of Procedure, it incorporates them into the body of evidence because it considers
them useful. In addition, it accepts as helpful evidence, those documents forwarded by the
representatives and the State with their respective final written arguments, which respond
to requests made by the Court during the public hearing held in this case (supra para. 10).
The Court will assess all this information applying the rules of sound judicial discretion,
within the corresponding factual framework.
42. The Court accepts the documents provided by the expert witness during the public
hearing, because it finds them useful for this case and, also, they were not opposed and
their authenticity and veracity were not challenged.
43. In relation to the newspaper articles forwarded by the parties at the due procedural
opportunity, the Court finds that they can be assessed when they refer to well-known public
17
Cf. Case of Velásquez-Rodríguez V. Honduras. Merits. Judgment of July 29, 1988. Series C No. 4, para.
140; Case of Ríos et al. Preliminary Objections, Merits, Reparations and Costs, supra note 10, para. 81; and Case
of Perozo et al. Preliminary Objections, Merits, Reparations and Costs, supra note 10, para. 94.
18
Cf. Case of Loayza-Tamayo V. Perú. Merits. Judgment of September 17, 1997. Series C No. 33, para. 43;
Case of Ríos et al. Preliminary Objections, Merits, Reparations and Costs, supra note 10, para. 89; and Case of
Perozo et al. Preliminary Objections, Merits, Reparations and Costs, supra note 10, para. 103.
12
facts or declarations of State officials that were not rectified, or when they corroborate
aspects related to the case.
19
The newspaper articles which the representatives submitted
as “supervening evidence” on March 17, 2009 must be disallowed, as they are unrelated to
the factual framework of the instant case, as per the application filed by the Inter-American
Commission.
44. Having examined the probative elements that appear in the case file, the Court will
now examine the alleged violations taking into account the claims made by the parties and
the partial acknowledgment of international responsibility made by the State (supra paras.
17 to 35).
VII
ARTICLES 4(1) (RIGHT TO LIFE),
20
8(1) (JUDICIAL GUARANTEES)
21
AND 25(1)
(JUDICIAL PROTECTION)
22
OF THE AMERICAN CONVENTION, IN RELATION TO
ARTICLES 1(1) (OBLIGATION TO RESPECT RIGHTS)
23
AND 2 (DOMESTIC LEGAL
EFFECTS)
24
THEREOF
45. The Commission and the representatives alleged that there are “clear indications” as
to the participation of members of the State security forces in the planning and concealing
of the execution of Mrs. Blanca Jeannette Kawas-Fernández, which, in their opinion,
evidences the international responsibility of the State, in accordance with Article 4(1) of the
American Convention.
Furthermore, they alleged that the overall lack of an efficient
investigation of the events, punishment of those responsible and reparation to the alleged
victims purports a violation of Article 4(1) of the American Convention, as regards the duty
to provide judicial protection set forth in Article 1(1) of the treaty, and Articles 8(1) and
19
Cf. Case of Velásquez-Rodríguez V. Honduras, supra note 17, para. 146, quoting Military and Paramilitary
Activities in and against Nicaragua (Nicaragua V. USA), 1986 ICJ, paras. 62-64; Case of the “White Van”
(Paniagua-Morales et al). Merits, supra note 14, para. 75; Case of Ríos et al. Preliminary Objections, Merits,
Reparations and Costs, supra note 10, para. 87; and Case of Perozo et al. Preliminary Objections, Merits,
Reparations and Costs, supra note 10, para. 101.
20
In this regard, Article 4(1) sets forth that “[e]very person has the right to have his personal life respected.
This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily
deprived of his life”.
21
Article 8(1) of the American Convention establishes that “[e]very person has the right to a hearing, with due
guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established
by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his
rights and obligations of a civil, labor, fiscal, or any other nature”.
22
Article 25(1) of the Convention states that “[e]veryone has the right to simple and prompt recourse, or
any other effective recourse, to a competent court or tribunal for protection against acts that violate his
fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even
though such violation may have been committed by persons acting in the course of their official duties”.
23
Article 1(1) of the Convention sets forth that “[t]he States Parties to this Convention undertake to respect
the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full
exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion,
political or other opinion, national or social origin, economic status, birth, or any other social condition”.
24
Article 2 of the Convention provides that “[w]here the exercise of any of the rights or freedoms referred to
in Article 1 is not already ensured by legislative or other provisions, the States Parties undertake to adopt, in
accordance with their constitutional processes and the provisions of this Convention, such legislative or other
measures as may be necessary to give effect to those rights or freedoms”.
13
25(1) thereof. They noted that, in accordance with such rules, in the event of extra-judicial
execution, the State has the "duty to initiate ex officio an investigation, promote and further
criminal proceedings to the last stage”.
46. In Chapter V of this Judgment, it was established that the State recognized its
international responsibility for the violation of Articles 8(1) and 25(1) of the American
Convention, in relation to Articles 1(1) and 2 thereof (supra paras. 17 to 35), to the
detriment of "the relatives" of Mrs. Blanca Jeannette Kawas-Fernández. The dispute
remained open, among other issues, (supra paras. 33 to 34), regarding the responsibility of
the State for the alleged violation of Article 4(1) of the American Convention, in relation to
Article 1(1) of such treaty, to the detriment of Mrs. Blanca Jeannette Kawas-Fernández.
47. In this regard, the State alleged that; 1) it was not in a position of guarantor in
accordance with the case law criteria established by this Court in the judgment rendered in
the case of the Pueblo Bello Massacre v. Colombia, since “Mrs. Kawas had not reported any
threats to her life, and was not under the custody and protection of the State, and she was
not the beneficiary of any precautionary measure. [The State was not] informed [either] of
any actual or immediate risk that could endanger her life or integrity”; 2) “the investigations
of the case in [d]omestic [l]egislation did not result in any determination as to the
participation of State agents in the crime committed against Mrs. Kawas-Fernández”, and 3)
the arguments indicated by the Commission and the representatives “regarding the violation
of the right to life due to an inefficient investigation […] purport a violation of the rights
enshrined in Articles 8 and 25 of the Convention […] for which the State filed an
acknowledgment and not a violation of the right to life.”
48. The dispute brought before the Court calls for an analysis of the circumstances under
which the events of the instant case may be attributed to the State and, consequently,
compromise its international responsibility for the alleged violation of Article 4(1) of the
American Convention, in relation to Article 1(1) thereof. Furthermore, despite the
acquiescence made by the State, there is still the need to identify the nature and scope of
the violations committed in relation to Articles 8(1) and 25(1) of the American Convention,
in connection with Articles 1(1) and 2 of that treaty (supra para. 35).
49. To that effect, the Court will: a) establish the facts that have been proven; and, b)
analyze any appropriate issues of law.
A) Facts
The activity carried out by Mrs. Blanca Jeannette Kawas-Fernández
50. Blanca Jeannette Kawas-Fernández was the President of PROLANSATE foundation,
organized in 1990, to promote the protection and preservation of the areas surrounding
Tela bay, in the Department of Atlántida, Honduras, and to improve the quality of life of the
residents of the area.
25
In accordance with the statement rendered before this court by Mr.
Rafael Sambulá, former director of the foundation, the work of Mrs. Kawas-Fernández
consisted in “providing the political guidelines that […] were drafted by the board of
25
Cf. statement of Rafael Sambulá rendered before the Inter-American Court at a public hearing held on
December 2, 2008; statement of Jacobo Kawas-Fernández rendered before the Inter-American Court at a public
hearing held on December 2, 2008, and statement of Trinidad Marcial Bueno rendered before a notary public
(affidavit) on November 18, 2008 (record on the Merits, volume II, folios 466 to 468).
14
directors, as well as receiving the claims related to environmental damage suffered in the
region and the Municipality of Tela”.
26
51. Under the charge of Mrs. Kawas-Fernández, the foundation obtained, among other
things,
27
the approval by National Congress of Decree Law No. 154–94, whereby the Punta
Sal area in the Department of Atlántida was formally recognized as National Park.
28
Pursuant
to the testimony of her brother, Mr. Jacobo Kawas, “[Blanca Jeannette] was tireless in
performing her duties[…], always fulfilling her obligations and trying to have these lands
recognized as […] protected areas; something she achieved after significant efforts and hard
work”.
29
The result of her efforts became evident weeks after her death (infra para. 53),
when on March 17, 1995, National Congress named the Punta Sal National Park “Blanca
Jeannette Kawas-Fernández National Park," considering that she had “devot[ed] entirely to
the defense of the ecosystem”.
30
52. Through the foundation, Mrs. Kawas-Fernández reported cases of illegal wood
exploitation, damage to Punta Sal National Park and other protected areas; she also
opposed openly to diverse economic development projects in the area.
31
A few days before
her death (infra para. 53), Mrs. Kawas-Fernández organized a demonstration in the city of
26
Cf. statement rendered by Rafael Sambulá before the Inter-American Court, supra note 25.
27
In the brief of requests and arguments, the representatives alleged that during Blanca Jeannette Kawas-
Fernández’s term in office as President, the foundation obtained the approval by the Secretary of Education for the
Environment and Ecology undergraduate course (Bachillerato en Ecología y Medio Ambiente), that today offers
Instituto Triunfo de la Cruz, in Tela, and “through the Secretary of Environment, the cancellation of the permits for
building a channel parallel to Martínez dam, located to the southeast of Parque Punta Sal."
28
Cf. decree No. 154-94 “whereby Punta Sal is formally recognized as National Park” Official Gazette No.
27.538 of December 28, 1994 (record of appendixes to the application, appendix 8, folios 301 to 306), and
statement of Rafael Sambulá rendered before the Inter-American Court at the public hearing held on December 2,
2008.
29
Cf. statement rendered by Jacobo Kawas-Fernández before the Inter-American Court, supra note 25.
30
Cf. decree No. 43-95 whereby it is Ordered to "Designate Punta Sal National Park as Blanca Janeth Kawas-
Fernández National Park", Official Gazette No. 27.636 of April 25, 1995 (record of appendixes to the application,
appendix 9, folio 308).
31
Cf. statement of Rafael Sambulá rendered on March 1, 1995, before the Juzgado de Paz de los Criminal
(Criminal Magistrate’s Court) in and for Tela, (record of appendixes to the answer to the application, appendix 8,
folio 2551); statement of Ismael Edgardo Lozano rendered on February 21, 1995, before Juzgado de Paz de los
Criminal (Criminal Magistrate’s Court) in and for Tela (record of appendixes to the answer to the application,
appendix 8, folio 2142); testimony of Saúl Benjamín Zapata-Mejía rendered on January 20, 2004 (record of
appendixes to the answer to the application, appendix 8, folios 2320 and 2321); Technical Legal Report No. DCAT-
SATJ- AFS 022/20003 “Determination of the investigation procedures to be carried out in a criminal proceeding
initiated under the former Code of Criminal Procedure”. Attorney General’s Office Technical Legal Training
Department, November 18, 2003 (record of appendixes to the answer to the application, appendix 8, folios 2371 to
2392); investigation report of the Dirección General de Investigación Criminal (General Bureau of Criminal
Investigations) of October 30, 2003, signed by Daniel Barahona, Non-commissioned Officer III of Investigations
(record of appendixes to the answer to the application, appendix 8, folios 2341 to 2343); official letter of December
7, 2006, sent by the Dirección General de Investigación Criminal (General Bureau of Criminal Investigations) to the
Court of First Instance in and for Tela (juzgado de Letras Seccional, Tela), Atlántida (record of appendixes to the
answer to the application, appendix 8, folios 2431 and 2432); and report of November 27, 2006, addressed to the
General Director of Criminal Investigations (record of appendixes to the brief of requests and arguments, appendix
L.17, folios 1747).
15
Tela to express opposition to the initiative of the State related to the granting of legal title
certificates to lands within Punta Sal National Park.
32
Deprivation of life to Mrs. Blanca Jeannette Kawas-Fernández
53. The facts described by the Commission and the representatives, as accepted by the
State and proven in the instant case, reflect that on February 6, 1995, at approximately
7:45 p.m., Mrs. Blanca Jeannette Kawas-Fernández died instantly after receiving “a 9 mm.
gunshot in the back of her neck with an exit orifice in the left cheekbone”, while she was
working with her assistant, Trinidad Marcial Bueno-Romero, at her place, located in El Centro
neighborhood in the city of Tela, Honduras.
33
Some witnesses declared they had seen two
young men holding arms, traveling in a white pick-up van, burst in the nearby of the
residence of Mrs. Kawas-Fernández, and later heard two gunshots.
34
54. Soon after that, a squad of the Public Security Forces (hereinafter, the “FUSEP”)
appeared at the place of the events and removed the body.
35
The authorities, under the
direction of police sergeant Ismael Perdomo, did not implement any measures aimed at
arresting the potential perpetrators and no police detention was made effective.
36
Investigation of the events
55. On February 7, 1995, the Criminal Magistrate’s Court (Juzgado de Paz de lo Criminal)
of the city of Tela initiated the investigations for the alleged commission of the crime of
“consummated murder” to the detriment of Mrs. Kawas-Fernández.
37
As instructed by the
32
Cf. statement rendered by Trinidad Marcial Bueno before a notary public (affidavit), supra note 25, and
communication of February 28, 1996 from the executive director and coordinator of the “Vida y Naturaleza” (Life
and Nature) radio show, broadcast on Radio América, sponsored by the Asociación Hondureña de Periodistas
Ambientalistas y Agro Forestales (A.H.P.A.A.F.) (Honduran Association of Environmental and Agroforestry
Journalists) (record of appendixes to the application, appendix 3, folios 723 and 724).
33
Cf. statement of Trinidad Marcial Bueno of February 9, 1995 (record of appendixes to the answer to the
application, appendix 8, folio 2110); procedure for removal of the body performed on February 7, 1995 (record of
appendixes to the answer to the application, appendix 8, folio 2106), and report of expert witness Alfredo Girón-
Montoya, MD, before the Criminal Magistrates’ Court in and for Tela of February 9, 1995 (record of appendixes to
the application, appendix 16, folio 368). Pursuant to the statement rendered by the medical expert attached to the
judicial record, “the cause of death was probably a spinal cord section with skull base fracture and hypovolemy as a
result of bleeding”.
34
Cf. statement by Dencen Alex Andino of February 9, 1995 (record of appendixes to the answer to the
application, appendix 8, folio 2113), and statement of Xiomara Camsbell Andino of February 10, 1995 (record of
appendixes to the answer to the application, appendix 8, folio 2114-2115).
35
Cf. procedure for removal of the body carried out on February 7, 1995, supra note 33; statement of Carlos
Antonio Quintana rendered on February 10, 1995, before the Criminal Magistrate’s Court in and for Tela (record of
appendixes to the answer to the application, appendix 8, folio 2127); statement of Roberto Bendeck rendered on
February 14, 1995, before the Criminal Magistrate’s Court in and for Tela (record of appendixes to the answer to
the application, appendix 8, folio 2129); statement of Dagoberto Alcides Varela rendered on February 9, 1995,
before the Criminal Magistrate’s Court in and for Tela (record of appendixes to the answer to the application,
appendix 8, folio 2123), and statement of Jacobo Kawas-Fernández rendered before the Inter-American Court,
supra note 25.
36
Cf. Technical Legal Report No. DCAT-SATJ- AFS 022/2003, supra note 31.
37
Cf. Order to commence investigation proceedings passed by the Criminal Magistrate’s Court in and for Tela
on February 7, 1995 (record of appendixes to the answer to the application, appendix 8, folio 2096).
16
Court,
38
a judicial inspection of the place where the events occurred
39
and a medical
identification of the corpse were performed.
40
Furthermore, the testimony of 27 individuals
was received during the first six weeks following the events.
41
38
Cf. Order to commence investigation proceedings passed by the Criminal Magistrate’s Court in and for
Tela, supra note 37.
39
Cf. minutes of the judicial inspection carried out by the Criminal Magistrate’s Court in and for Tela on
February 7, 1995 (record of appendixes to the answer to the application, appendix 8, folio 2097).
40
Cf. opinion of expert witness Alfredo Girón-Montoya, MD, supra note 33.
41
Cf. statement by Xiomara Campsbell Andino rendered on February 9, 1995, before the Criminal
Magistrate's Court in and for Tela (record of appendixes to the answer to the application, appendix 8, folio 2114);
statement by Marco Antonio Urraca-Zaldivar rendered on February 9, 1995, before the Criminal Magistrate's Court
in and for Tela (record of appendixes to the answer to the application, appendix 8, folio 2111); statement by
Marcial Bueno-Romero rendered on February 9, 1995, before the Criminal Magistrate's Court in and for Tela
(record of appendixes to the answer to the application, appendix 8, folio 2110); statement by Dencen Alex Andino-
Alvarado rendered on February 9, 1995, before the Criminal Magistrate's Court in and for Tela (record of
appendixes to the answer to the application, appendix 8, folio 2113); statement by Mirian Janneth Alvarado
rendered on February 9, 1995, before the Criminal Magistrate's Court in and for Tela (record of appendixes to the
answer to the application, appendix 8, folio 2124); statement by Patricia Padilla rendered on February 9, 1995,
before the Criminal Magistrate's Court in and for Tela (record of appendixes to the answer to the application,
appendix 8, folio 2122); statement by Liliana Jasmín Padilla rendered on February 9, 1995 before the Criminal
Magistrate's Court in and for Tela (record of appendixes to the answer to the application, appendix 8, folio 2122);
statement by Dagoberto Alcides Varela rendered on February 9, 1995, before the Criminal Magistrate's Court in
and for Tela (record of appendixes to the answer to the application, appendix 8, folio 2123); statement by Carlos
Antonio Quintana rendered on February 10, 1995, before the Criminal Magistrate's Court in and for Tela (record of
appendixes to the answer to the application, appendix 8, folio 2127); statement by José Israel Amaya-Orellana
rendered on February 10, 1995, before the Criminal Magistrate’s Court in and for Tela (record of appendixes to the
answer to the application, appendix 8, folio 2128); statement by Roberto Bendeck rendered on February 14, 1995,
before the Criminal Magistrate’s Court in and for Tela (record of appendixes to the answer to the application,
appendix 8, folio 2129); statement by Ramón Israel Castillo-Flores rendered on February 14, 1995, before the
Criminal Magistrate’s Court in and for Tela (record of appendixes to the answer to the application, appendix 8, folio
2130); statement by José Antonio Banegas-García rendered on February 14, 1995, before the Criminal Magistrate’s
Court in and for Tela (record of appendixes to the answer to the application, appendix 8, folio 2131); statement by
Dinora Paz Hernández rendered on February 14, 1995, before the Criminal Magistrate’s Court in and for Tela
(record of appendixes to the answer to the application, appendix 8, folio 2132); statement by Juan Díaz-Martínez
rendered on February 15, 1995, before the Criminal Magistrate’s Court in and for Tela (record of appendixes to the
answer to the application, appendix 8, folio 2134); statement by José Luis Ramos-Gómez rendered on February 15,
1995, before the Criminal Magistrate’s Court in and for Tela (record of appendixes to the answer to the application,
appendix 8, folio 2135); statement by Julio Armando Mier-Callejas rendered on February 16, 1995, before the
Criminal Magistrate’s Court in and for Tela (record of appendixes to the answer to the application, appendix 8, folio
2136); statement by Elías Álvarez rendered on February 21, 1995, before the Criminal Magistrate’s Court in and for
Tela (record of appendixes to the answer to the application, appendix 8, folio 2138); statement by Aurelio
Martínez-Flores rendered on February 21, 1995, before the Criminal Magistrate’s Court in and for Tela (record of
appendixes to the answer to the application, appendix 8, folio 2140); statement by Ismael Edgardo Lozano
rendered on February 21, 1995, supra note 31; statement by Rafael Sambulá rendered on March 1, 1995, supra
note 31; statement by Juan Alberto Hernández-Sánchez rendered on March 1, 1995, before the Criminal
Magistrate’s Court in and for Tela (record of appendixes to the answer to the application, appendix 8, folio 2153);
statement by Luis Ramón Maloff rendered on March 2, 1995, before the Criminal Magistrate’s Court in and for Tela
(record of appendixes to the answer to the application, appendix 8, folio 2155); statement by Nicolás Maloff
rendered on March 2, 1995, before the Criminal Magistrate’s Court in and for Tela (record of appendixes to the
answer to the application, appendix 8, folio 2158); statement by Juan Francisco López rendered on March 6, 1995,
before the Criminal Magistrate’s Court in and for Tela (record of appendixes to the answer to the application,
appendix 8, folios 2275 to 2280); statement by Eulogio García-Sandoval rendered on March 8, 1995, before the
Criminal Magistrate’s Court in and for Tela (record of appendixes to the answer to the application, appendix 8, folio
2163); statement by Mario Amaya rendered on March 23, 1995, before the Criminal Magistrate’s Court in and for
Tela (record of appendixes to the answer to the application, appendix 8, folio 2164).
17
56. On February 9, 1995, a representative of the Attorney General’s Office filed a
request for “appearance” in the instant case.
42
During the processing of such investigation,
eight prosecutors “were designated” as representatives of the Attorney General’s Office.
43
57. On March 6, 1995, police sergeant Ismael Perdomo took Juan Francisco López-
Mejía, a 16-year old boy, who was allegedly responsible for the events, before the
authorities of the Bureau of Criminal Investigations (Dirección de Investigación Criminal).
44
In his statement, the young boy admitted his responsibility for the events and accused two
of his relatives.
45
On that same day, the Criminal Magistrate’s Court of the city of Tela
ordered the arrest of Mr. Juan Mejía-Ramírez and Mr. Sabas Mejía-Ramírez, identified as
alleged suspects for the murder of Mrs. Blanca Jeannette Kawas-Fernández.
46
On March 8,
1995, the Court “annulled the warrant of arrest issued”.
47
Even though this decision was
groundless, the prosecutor in charge of the investigation at that time stated in a subsequent
statement (infra para. 63) that Juan Francisco López-Mejía confessed to have been coerced
into rendering an incriminating statement; therefore, the arrest was declared without
Merits.
58. On March 23, 1995, the last of the 27 witness testimonies mentioned above was
received from an Army Coronel, Mr. Amaya.
48
One year later, on March 10, 1996, the Tela
42
Cf. request for “appearance” of the Attorney General’s Office filed by José Francisco Pineda-Ayala with the
Criminal Magistrate’s Court in and for Tela(record of appendixes to the answer to the application, appendix 8, folio
2108).
43
Cf. request for “appearance” by the Attorney General’s Office (record of appendixes to the answer to the
application, appendix 8, folio 2108); official letter of April 17, 1995, sent by José Mario Salgado-Montalbán, for
“appearance” by a member of the Attorney General’s Office, Criminal Magistrate’s Court in and for Tela (record of
appendixes to the answer to the application, appendix 8, folio 2168); official letter of June 8, 2001, sent by
prosecutor Luis Javier Santos-Cruz, for “appearance” by a member of the Attorney General’s Office, Criminal
Magistrate’s Court in and for Tela (record of appendixes to the answer to the application, appendix 8, folio 2177);
official letter of August 14, 2003, sent by prosecutor Jacobo Jesús Erazo-Osorto, for “appearance” by a member of
the Attorney General’s Office, Criminal Magistrate’s Court in and for Tela (record of appendixes to the answer to
the application, appendix 8, folio 2182); official letter of September 19, 2003, sent by prosecutor Luis Javier
Santos-Cruz, for “appearance” by a member of the Attorney General’s Office, Criminal Magistrate’s Court in and for
Tela (record of appendixes to the answer to the application, appendix 8, folio 2192), brief of December 1, 2006,
sent by prosecutor María de los Ángeles Barahona-Díaz, for “appearance” by a member of the Attorney General's
Office, Court of First Instance in and for Tela (record of appendixes to the answer to the application, appendix 8,
folio 2429), and brief of June 12, 2008, sent by prosecutor Eduardo Antonio Lagos-Galindo, for “appearance” by a
member of the Attorney General's Office, Court of First Instance in and for Tela, Atlántida (record of appendixes to
the answer to the application, appendix 8, folio 2546).
44
Cf. witness testimony of Saúl Benjamín Zapata-Mejía of January 20, 2004, supra note 31; Technical and
Legal Opinion No. DCAT-SATJ- AFS 022/2003, supra note 31; and memorandum addressed to Bureau of Criminal
Investigations director Wilfredo Alvarado by Carlos Cruz-Pérez, coordinator of the Bureau of Criminal Investigations
of Tela, on May 10, 1996 (record of appendixes to the brief of requests and arguments, appendix L.11, folios 1714
to 1716).
45
Cf. statement of Juan Francisco López-Mejía rendered on March 6, 1995, before the Criminal Magistrate’s
Court in and for Tela (record of appendixes to the answer to the application, appendix 8, folio 2276).
46
Cf. official letter March 6, 1995, of the Criminal Magistrate’s Court in and for Tela whereby it Ordered the
arrest of Mr. Sabas Mejía-Ramírez and Mr. Juan Mejía-Ramírez (record of appendixes to the answer to the
application, appendix 8, folio 2174 and 2176).
47
Cf. official letter of March 8, 1995, of the Criminal Magistrate’s Court in and for Tela, whereby the warrant
of arrests for Mr. Sabas Mejía-Ramírez and Mr. Juan Mejía-Ramírez were annulled (record of appendixes to the
answer to the application, appendix 8, folio 2175).
48
Cf. statement of Mario Amaya rendered on March 23, 1995, supra note 41.
18
Bureau of Criminal Investigations filed a report on the case whereby it stated that “in the
investigations of the instant case, various important interests will be affected and, in any
case, the investigation officers assigned to the case are in serious danger.”
49
59. After that report, there is no proof of new evidentiary practices but until mid 2003,
once proceedings in the instant case commenced before the Inter-American Commission
(supra para. 1). Hence, on August 29, 2003, upon request by the prosecutor in charge, the
Criminal Magistrate’s Court of the city of Tela received an extension of the statement
rendered by one of the witnesses to the events,
50
who indicated that he had been
threatened by police "sergeant Perdomo”, as a consequence of his testimony
51
(supra para.
55). Furthermore, on October 30, 2003, the General Bureau of Criminal Investigations,
formerly the Bureau of Criminal Investigations (hereinafter, the “DGIC”), received the
statements of eight individuals, some of whom had rendered testimony in 1995.
52
60. During proceedings, the coordinators of the DGIC filed various reports on the
investigation activities carried out in the instant case.
53
In general, these reports explain
various hypotheses as regards the responsibility for the murder of Mrs. Blanca Jeannette
Kawas-Fernández, mentioning as a motive the possible conflicts with the environmental
activity carried out by the alleged victim. These reports highlight indications as to the
participation of public officers in the planning of the events and obstructing of the
investigation.
54
Furthermore, it is restated that certain witnesses to the case "could be in
49
Cf. memorandum addressed to Bureau of Criminal Investigations director Wilfredo Alvarado, supra note
44.
50
Cf. official letter of the Attorney General’s Office of August 26, 2003 before the Criminal Magistrate’s Court
in and for Tela (record of appendixes to the answer to the application, appendix 8, folio 2189).
51
Cf. statement by Dencen Alex Andino-Alvarado rendered on August 29, 2003 (record of appendixes to the
answer to the application, appendix 8, folio 2191), and statement by Dencen Alex Andino-Alvarado rendered on
December 9, 2003 (record of appendixes to the brief of requests and arguments, appendix L.9, folio 1706).
52
Cf. statement by Isdenia Enid Ramírez rendered on October 29, 2003, before the General Bureau of
Criminal Investigations (record of appendixes to the answer to the application, appendix 8, folios 2346); statement
by Rosendo Aguilar rendered on October 29, 2003, before the General Bureau of Criminal Investigations (record of
appendixes to the answer to the application, appendix 8, folios 2348); statement by Trinidad Marcial Bueno-
Romero rendered on October 30, 2003, before the General Bureau of Criminal Investigations (record of appendixes
to the answer to the application, appendix 8, folios 2349); statement by Juan Mejía-Gómez rendered on October
30, 2003, before the General Bureau of Criminal Investigations (record of appendixes to the answer to the
application, appendix 8, folios 2351); statement by Sabas Gómez rendered on October 30, 2003, before the
General Bureau of Criminal Investigations (record of appendixes to the answer to the application, appendix 8, folios
2355 to 2357); statement by Carlos Antonio Quintana rendered on October 30, 2003, before the General Bureau of
Criminal Investigations (record of appendixes to the answer to the application, appendix 8, folio 2358), and
statement by Dencen Alex Andino-Alvarado rendered on October 30, 2003, before the General Bureau of Criminal
Investigations (record of appendixes to the answer to the application, appendix 8, folios 2360 to 2363).
53
Cf. investigation report of the General Bureau of Criminal Investigations of October 30, 2003, signed by Daniel
Barahona, supra note 31; official letter of December 7, 2006, sent by the General Bureau of Criminal Investigations
to the Court of First Instance in and for Tela, Atlántida (record of appendixes to the answer to the application,
appendix 8, folios 2431 and 2432); report of November 27, 2006, addressed to the General Director of Criminal
Investigations (record of appendixes to the brief of requests and arguments, appendix L.17, folios 1747 to 1750);
briefs of February 19, 2008, sent by inspector Evin Salinas, “Head of the Environmental Death Investigation Unit”
to prosecutor Sandra Ponce of the General Bureau of Criminal Investigations (record of appendixes to the answer
to the application, appendix 8, folios 2537 to 2544).
54
Cf. expert opinion by Clarisa Vega-Molina at the public hearing held before the Inter-American Court on
December 2, 2008.
19
danger of death" and that, therefore "some individuals may agree to give testimony [...]
only if the record of the case is moved to another city or if such testimony is taken at a
court in a city other than Tela”.
55
It also mentions that, “to judicially process any new
elements related to the death of Mrs. Kawas, a prosecutor from the Attorney General’s
Office not commissioned to Tela should be designated”.
56
61. As a result of the request made by the Supreme Court of Justice of Honduras, on
November 18, 2003, the Advisory and Training Department of the Attorney General’s Office
issued a “Technical Legal Report” on the case, whereby it stated that the testimonies
received reflect that the death of Mrs. Kawas was associated with her work as
environmental activist in the PROLANSATE foundation.
57
Furthermore, the report highlighted
the alleged participation of State agents in these events.
58
62. In such report, the Attorney General’s Office suggested, among other things, to
practice the following judicial procedures: 1) extension of the testimonies relevant for the
clarification of the events; 2) request for a warrant of arrest against Police Sergeant Ismael
Perdomo for the crime of coercion, and 3) extension of the accusation against such sergeant
for the crime of concealment. Furthermore, the Attorney General’s Office recommended the
practice, among other things, of the following investigation procedures: 1) organizing a
special investigation team to sort out and gather all evidence necessary to clarify the crime,
and 2) designing a strategy for protecting witnesses.
59
63. In view of the recommendations contained in the “Technical Legal Report”, the
prosecutor who “appeared” in the case received new testimonies,
60
including the January
55
Cf. report of November 27, 2006, addressed to the General Director Criminal Investigations, supra note
53.
56
Cf. report of November 27, 2006, addressed to the General Director Criminal Investigations, supra note
53.
57
Cf. Technical Legal Report No. DCAT-SATJ- AFS 022/2003, supra note 31. See also the internal record on
the following statements: statement rendered on February 21, 1995, before the Criminal Magistrate’s Court in and
for Tela by Elías Álvarez, Secretary of Projects of Unión Nacional Campesina (National Rural Union) who stated that
“her death probably resulted from her work”, supra note 41; statement rendered on February 21, 1995, before the
Criminal Magistrate’s Court in and for Tela by Ismael Edgardo Lozano from Corporación Hondureña de Desarrollo
Forestal (Honduras Forestry Development Corporation - CODEFORH), who indicated that, even though the alleged
victim did not claim to have been threatened, he is “aware that the activity for protection of natural resources is
highly risky, due to the nature of the activity itself, and that he thinks that “the death of Mrs. Kawas was the result
of the activity she carried out as environmentalist and her capacity as activist for the protection of the ecosystem,”
supra note 31; statement rendered on February 14, 1995, before the Criminal Magistrate’s Court in and for Tela by
Dinora Paz Hernández, who stated that when working with the alleged victim “she received disgusting calls, [...] to
take care of herself, that old woman […],” supra note 41; and statement rendered on March 1, 1995, before the
Criminal Magistrate’s Court in and for Tela by Juan Alberto Hernández-Sánchez who stated that he remembers that
in a given occasion Mrs. Kawas and that companies and individuals having economic interests in the protected
areas could be involved in the murder, supra note 41.
58
Cf. Technical Legal Report No. DCAT-SATJ- AFS 022/2003, supra note 31.
59
Cf. Technical Legal Report No. DCAT-SATJ- AFS 022/2003, supra note 31.
60
Cf. request from prosecutor Luis Javier Santos-Cruz of December 9, 2003 (record of appendixes to the
answer to the application, appendix 8, folios 2299 and 2300), witness statement rendered on February 2, 2004, by
Juan Mejía-Gómez before the Criminal Magistrate’s Court in and for Tela (record of appendixes to the answer to the
application, appendix 8, folios 2329 and 2330), witness statement rendered on February 2, 2004 by Sabas Gomez
before the Criminal Magistrate’s Court in and for Tela (record of appendixes to the answer to the application,
appendix 8, folios 2331 and 2332), and witness statement rendered on February 2, 2004 by Isdenia Enid Ramírez-
Díaz before the Criminal Magistrate’s Court in and for Tela (record of appendixes to the answer to the application,
appendix 8, folios 2333 and 2334).
20
30, 2004 testimony of Mr. Saúl Benjamín Zapata, former Coordinating Prosecutor in the city
of La Ceiba (Department of Atlántida), who mentioned the investigations made in the case
of the murder of Mrs. Blanca Jeannette Kawas-Fernández and, particularly, addressed the
police authorities’ involvement in the murder.
61
64. On March 2, 2004, the prosecutor requested the Judge of the Court of First Instance
in and for Tela to order the arrest of Police Sergeant Class III, Ismael Perdomo, as “alleged
responsible for the crimes of abuse of authority and coercion to the detriment of public
authorities”.
62
On March 10, 2004, the arguments of the prosecutor and of the defendant
having been heard,
63
the Court ordered a prohibition to leave the country upon Police
Sergeant Ismael Perdomo, and to get in contact with the witnesses or attend any places at
which they are usually present.
64
On March 15, 2004, the Court of First Instance issued a
warrant of arrest against the aforementioned Police sergeant
65
and rejected a request
submitted by the defense for final dismissal on the grounds that the crime was statute-
barred.
66
This decision was appealed.
67
65. On March 23, 2004, the Court of First Instance admitted without stay of execution
the appeal filed by the defense; therefore, it ordered that the record be sent to the Court of
Appeals of the city of La Ceiba, Atlántida.
68
On that same day, the prosecutor of the
Attorney General’s Office requested the Court to initiate trial proceedings against the
National Police sergeant for the alleged commission of the crime of “concealment to the
detriment of public authorities”.
69
On March 25, 2004, the court denied the request on the
61
Cf. witness testimony of Saúl Benjamín Zapata-Mejía of January 20, 2004, supra note 31.
62
Cf. brief of request for issuance of a warrant of arrest filed by prosecutor Luis Javier Santos-Cruz to the
Court of First Instance in and for Tela, on March 2, 2004 (record of appendixes to the answer to the application,
appendix 8, folio 2402).
63
Cf. brief of March 10, 2004, of Ismael Perdomo addressed to the Court of First Instance in and for Tela,
Atlántida (record of appendixes to the answer to the application, appendix 8, folio 2403). On March 10, 2004, Mr.
Ismael Perdomo appeared voluntarily at the premises of the First Instance Court in and for Tela, Atlántida, and
requested that “his interrogatory statement be received pursuant to the procedure set forth by law and,
furthermore, request that a provisional measure other than preventive detention be imposed”.
64
Cf. Order of the Court of First Instance in and for Tela, Atlántida, of March 10, 2004 (record of appendixes
to the answer to the application, appendix 8, folios 2404 and 2405).
65
Cf. Order for imprisonment against Ismael Perdomo-Velásquez issued by the First instance Court in and
for Tela, Atlántida, on March 15, 2004, (record of appendixes to the answer to the application, appendix 8, folio
2407 and 2408).
66
Cf. brief submitted by public counsel José Luis Mejía-Herrera before the First Instance Court in and for
Tela, Atlántida, on March 15, 2004 (record of appendixes to the answer to the application, appendix 8, folios 2409
and 2410), and Order of the Court of First Instance in and for Tela, Atlántida, of March 15, 2004 (record of
appendixes to the answer to the application, appendix 8, folio 2411).
67
Cf. brief submitted by public counsel José Luis Mejía-Herrera before the Court of First Instance in and for
Tela, Atlántida, on March 18, 2004 (record of appendixes to the answer to the application, appendix 8, folio 2414).
68
Cf. Order issued by the Court of First Instance in and for Tela, Atlántida on March 23, 2004 (record of
appendixes to the answer to the application, appendix 8, folio 2415).
69
Cf. brief of March 23, 2004, filed by prosecutor Luis Javier Santos-Cruz before the Court of First Instance
in and for Tela, Atlántida (record of appendixes to the answer to the application, appendix 8, folios 2416 and
2417).
21
grounds that “the order for imprisonment imposed upon Mr. […] was appealed by the
defense”.
70
66. On October 9, 2006, two years after the admission, the Court of Appeals of La Ceiba
ruled on the appeal and decided that the order for detention issued “had defects that called
for annulment”, since “the appropriate request from the prosecutor was not obtained”, in
accordance with legislation on criminal procedures in force.
71
In view of the decision, on
November 23, 2006, the Court of First Instance in and for Tela ordered the Attorney
General’s Office to carry out an analysis of the conduct of the defendant Police sergeant in
order to file the related request from the prosecutor. That notwithstanding, no prosecutor
had been assigned to the case at that time
72
and the warrant of arrest was not requested
again.
67. In 2007 and 2008, the Court of First Instance in and for Tela requested that certain
evidentiary procedures be carried out,
73
including: search for Juan Francisco López-Mejía in
official records,
74
inspection of the alleged victim’s workplace premises, PROLANSATE
foundation and the offices of the National Preventive Police of La Ceiba,
75
interviews in the
cities of Tela, La Ceiba, El Progreso, and San Pedro Sula.
76
Such procedures showed that
Juan Francisco Mejía-López, who had been coerced to incriminate himself for the events of
the instant case (supra paras. 57), died violently in 2008.
77
68. To date, the criminal proceeding initiated for the death of Mrs. Blanca Jeannette
Kawas-Fernández is still at preliminary stage. The perpetrators of the murder have not been
identified; and no criminal complaint has been filed against any individual. There is no
evidence either that during these years domestic measures have been implemented to
protect witnesses, other than those ordered by this Court in the context of the provisional
measures adopted for the benefit of Mr. Dencen Andino-Alvarado on November 29, 2008
(supra paras. 15 and 16).
Threats and executions of environmental activists in Honduras
70
Cf. Order of March 25, 2004, on the appeal filed on March 18, 2004, Court of First Instance in and for
Tela, Atlántida (record of appendixes to the answer to the application, appendix 8, folio 2418).
71
Cf. Order of the Court of Appeals of La Ceiba, Atlántida, of October 9, 2006 (record of appendixes to the
answer to the application, appendix 8, folios 2424 and 2425).
72
Cf. official letter of November 23, 2006, Court of First Instance in and for Tela, Atlántida (record of
appendixes to the answer to the application, appendix 8, folio 2427).
73
Cf. official letter of October 27, 2007, of the Court of First Instance in and for Tela, Atlántida (record of
appendixes to the answer to the application, appendix 8, folio 2488).
74
Cf. communication of the Municipal Registrar of Tela, Atlántida, of February 1, 2007 (record of appendixes
to the answer to the application, appendix 8, folios 2440 to 2468).
75
Cf. minutes of judicial inspection of September 11, 2007 (record of appendixes to the answer to the
application, appendix 8, folio 2487).
76
Cf. briefs of February 19, 2008, sent by inspector Evin Salinas, “Head of the Environmental Death
Investigations unit,” supra note 53.
77
Cf. brief of February 19, 2008, sent by inspector Evin Salinas, “Head of the Environmental Death
Investigations unit,” supra note 53.
22
69. During the decade that followed the death of Mrs. Blanca Jeannette Kawas-
Fernández, there have been reports of acts of aggression, threats and execution of various
individuals who devoted to the defense of the environment in Honduras.
78
In 1996, Carlos
Escaleras, a popular leader of Valle del Aguán,
79
was executed; in 1998, Carlos Luna, an
environmental activist;
80
in 2001, Carlos Flores, a community leader and environmental
activist of Olancho, and in 2006, Heraldo Zúñiga and Roger Iván Cartagena, members of the
Olancho Environmental Movement (MAO).
81
The information provided by the State shows
that, even though there have been convictions for these events, some of the individuals
responsible therefor have not been captured, and instigators have not been identified
either.
82
70. Moreover, in 2007, the State organized the Group for Investigation of Environmental
Activists’ Deaths (“Grupo de Investigación para la Muertes de los Ambientalistas”) -reporting
to the Secretary of State, Security Office- which is exclusively in charge of the investigation
of cases involving the death of environmental activists’ deaths.
83
That notwithstanding, the
78
Cf. expert opinion issued by Clarisa Vega-Molina before the Inter-American Court, supra note 54;
Environment and Human Rights Center (Centro de Derechos Humanos y Ambiente - CEDHA), El Costo Humano de
Defender el Planeta. Violaciones de Derechos Humanos a Defensores Ambientalistas en las Américas, Report 2002-
2003 (record of appendixes to the brief of requests and arguments, appendix D, folios 1461 and 1505); Amnesty
International, Honduras: Asesinatos de activistas medioambientalistas en el Departamento de Olancho. February
2007, table of contents: AI 37/001/2007 (record of appendixes to the brief of requests and arguments, appendix
K, folios 1649 to 1653); Amnesty International. Persecución y resistencia. La experiencia de defensores y
defensoras de derechos humanos en Guatemala y Honduras. August 2007, índice AI: AMR 02/001/2007 (record of
appendixes to the brief of requests and arguments, appendix J, folio 1637); note of May 22, 2008, signed by the
Coordinator of the Attorney General’s Office of Juticalpa, Olancho (record of appendixes to the answer to the
application, appendix 11, folio 2561-2570); copy of official letter No. FEDH-575-2009 of July 2, 2008, signed by the
Coordinating Prosecutor of the Human Rights Prosecutor’s Office of the Attorney General’s Office (record of
appendixes to the answer to the application, appendix 10, folio 2556-2559). In its answer to the application, the
State indicated that as regards the threats against José Andrés Tamayo, Víctor Manuel Ochoa, René Wilfredo
Gradiz, Elvín Noe Lanza, Macario Alfonso Zelaya, Pedro Amado Acosta, Heraldo Zúñiga, and Santos Efraín Paguada:
the 10 people accused of these threats and the victims signed a Forgiveness Memorandum and Ordered the final
dismissal of the accusations. Furthermore, dismissal was ordered also in the case against a person accused of
forgery of public documents, fraud, damage, extortion, theft, and evasion to the detriment of companies related to
the environment.
79
As a result of these events, a person was convicted to 17 years' imprisonment and there is also a warrant
of arrest against the person who escaped justice. Cf. official letter No. FEDH-575-2009 of July 2, 2008, supra note
78, and copy of the judgment rendered by the Court of First Instance in and for Tocoa, Colón, of October 16, 2002
(record of appendixes to the answer to the application, appendix 16, folios 2638-2645).
80
Three individuals were convicted for these events, and warrants of arrest are pending execution against
two individuals for the crime of murder. Cf. official letter No. FEDH-575-2009 of July 2, 2008, supra note 78, and
copy of the judgment rendered by the Court of First Instance in and for Catacamas, Olancho, of December 11,
2002, and record signed by the Court Clerk of June 26, 2008 (record of appendixes to the answer to the
application, appendix 15, folios 2627-2636).
81
Four people were found guilty for the events. Cf. expert opinion issued by Clarisa Vega-Molina before the
inter-American Court, supra note 54, and Amnesty International, Honduras: Asesinatos de activistas
medioambientalistas en el Departamento de Olancho. February 2007, table of contents: AI 37/001/2007 (record of
appendixes to the brief of requests and argument, appendix K, folios 1649 to 1653). Cf Amnesty International.
Persecución y resistencia. La experiencia de defensores y defensoras de derechos humanos en Guatemala y
Honduras. August 2007, índice AI: AMR 02/001/2007, supra note 78. Cf. official letter No. FEDH-575-2009 of July
2, 2008, supra note 78.
82
Cf. expert opinion issued by Clarisa Vega-Molina before the Inter-American Court, supra note 54.
83
Cf. official letter No. SEDS-SG-1083-2007, whereby it reported the organization of this group through
Agreement No. 0989-2007 of the Secretary of State at the Security Office (record of appendixes to the answer to
the application, appendix 9, folios 2550 to 2551).
23
State has not implemented an overall public policy aimed at protecting the supporters of
human rights, in particular environmental activists.
84
B) As regards the responsibility of the State
71. As established above (supra para. 55), as a result of the death of Mrs. Blanca
Jeannette Kawas-Fernández, the State initiated judicial investigation proceedings. In
accordance with the allegations of the parties, the Court will first analyze if such
investigation proceedings reflect sufficient elements to establish a failure by the State to
respect the right to life of Mrs. Kawas-Fernández, and if such investigation inured to the
benefit of the latter as guarantee of her rights, pursuant to Article 1(1) of the American
Convention. Furthermore, the Court will define certain aspects related to the right to justice
corresponding to the relatives of Mrs. Blanca Jeannette Kawas-Fernández, considering the
acknowledgment made by the State in that regard.
i) Duty to respect and guarantee the right to life (Article 4(1) of the Convention), in
accordance with Article 1(1) of the American Convention
72. In accordance with Article 1(1) of the Convention, the States are bound to respect
and guarantee the human rights protected under such instrument. The international
responsibility of the State results from the acts or omissions of any of its bodies or agencies,
regardless of their authority, which are in violation of the Inter-American Convention.
It is
a tenet of international law that the State is responsible for the acts and omissions of its
agents acting in their official capacity, even when those agents act outside the scope of
their authority.
85
73. In accordance with the precedents of this Court, in order to establish that a violation
of the rights enshrined in the Convention has been committed, it is not required, as it is
under domestic criminal law, that the perpetrators’ liability or intent be established. Nor is it
required that the agents to whom such violations are attributed be identified individually,
86
but rather it is enough to prove that there have been acts or omissions that allowed for the
perpetration of such violations or that the State has failed to fulfill an obligation.
87
74. Compliance with Article 4(1) of the American Convention, in conjunction with Article
1(1) of this same Convention, not only requires that a person not be arbitrarily deprived of
84
Cf. expert opinion of Rigoberto Ochoa-Peralta, rendered before a notary public (affidavit) on November
18, 2008 (record on the Merits, volume II, folios 482 and 483), and expert opinion rendered by Clarisa Vega-Molina
before the Inter-American Court, supra note 54.
85
Cf. Case of Velásquez-Rodriguez. Merits, supra note 17, para. 173; Case of the “White Van” (Case of
Paniagua-Morales et al.). Merits, supra note 14, para. 91; Case of Ríos et al. Preliminary Objections, Merits,
Reparations and Costs, supra note 10, para. 119; and Case of Perozo et al. Preliminary Objections, Merits,
Reparations and Costs, supra note 10, para. 130.
86
Cf. Case of Velásquez-Rodriguez V. Honduras. Merits, supra note 17, para. 173; Case of the “White Van”
(Paniagua-Morales et al.). Merits, supra note 14, para. 91; Case of Ríos et al. Preliminary Objections, Merits,
Reparations and Costs, supra note 10, para. 117, and Case of Perozo et al. Preliminary Objections, Merits,
Reparations and Costs, supra note 10, para. 128.
87
Cf. Case of Velasquez-Rodriguez. Merits, supra note 17, paras. 134 and 172; Case of the “White Van”
(Paniagua-Morales et al.) Merits, supra note 14, para. 91; Case of the Rochela Massacre V. Colombia. Merits,
Reparations and Costs. Judgment of May 11, 2007. Series C No. 163, para. 68, and Case of Zambrano-Vélez et al.
V. Ecuador. Merits, Reparations and Costs. Judgment of July 4, 2007. Series C No. 166, para. 104.
24
his or her life (negative obligation) but also that the States adopt all the appropriate
measures to protect and preserve the right to life (positive obligation),
88
as part of their
duty to ensure full and free exercise of the rights of all persons under their jurisdiction.
75. This duty to “guarantee” the rights entails a positive obligation for the State to adopt
a series of conducts, depending on the specific substantive right involved.
89
In cases of
violent death, such as the instant case, the Court has considered that the performance of an
ex officio, prompt, serious, impartial and effective investigation constitutes a fundamental
element essential for the protection of the rights affected in these situations.
90
76. In the judgment on the Merits issued in the case of Velásquez-Rodríguez v.
Honduras, the Court established that, pursuant to the duty to guarantee:
[t]he State is […] obligated to investigate every situation involving a violation of the rights
protected by the Convention. If the State apparatus acts in such a way that the violation goes
unpunished and the victim's full enjoyment of such rights is not restored as soon as possible, the
State has failed to comply with its duty to ensure the free and full exercise of those rights to the
persons within its jurisdiction. The same is true when the State allows private persons or groups
to act freely and with impunity to the detriment of the rights recognized by the Convention.
91
77. The Court has also mentioned that the obligation to investigate not only derives from
conventional International Law rules binding upon the States Parties, but also from domestic
legislation related to the duty to investigate ex officio certain unlawful conduct and the rules
that allow victims or their relatives to report or file claims to participate in criminal
investigation proceedings in order to find the truth of the events.
92
78. In that regard, the Court has informed that the obligation persists irrespective of the
agent to whom the violation may be eventually attributed, even individuals, since if the
events are not investigated in depth, they would be, in some way, assisted by public
authorities, which would entail international responsibility for the State”.
93
79. As to the duty to respect the right to life, the Court agrees, as in other
opportunities,
94
that the Court should not analyze the hypothesis about perpetrators
88
Cf. Case of the “Street Children” (Villagrán-Morales et al.) Merits. Judgment of November 19, 1999. Series
C No. 63, para. 144; Case of the Miguel Castro-Castro Prison v. Perú. Merits, Reparations and Costs. Judgment of
November 25, 2006. Series C No. 160, para. 237; and Case of Zambrano-Vélez et al. Merits, Reparations and
Costs, supra note 87, para. 80.
89
Cf. Case of Cantoral-Huamaní and García-Santa Cruz V. Perú. Preliminary Objection, Merits, Reparations
and Costs. Judgment of July 10, 2007. Series C No. 167, para. 101.
90
Cf. Case of the Pueblo Bello Massacre v. Colombia, para. 145; Case of Ríos et al. Preliminary Objections,
Merits, Reparations and Costs, supra note 10, para. 283, and Case of Perozo et al. Preliminary Objections, Merits,
Reparations and Costs, supra note 10, para. 298.
91
Cf. Case of Velasquez-Rodriguez. Merits, supra note 17, para. 176.
92
Cf. Case of García-Prieto et al. V. El Salvador. Preliminary Objections, Merits, Reparations and Costs.
Judgment of November 20, 2007. Series C No. 168, para. 104; Case of Ticona-Estrada et al. Merits, Reparations
and Costs, supra note 8, para. 95; and Case of Valle-Jaramillo et al. V. Colombia. Merits, Reparations and Costs,
supra note 8, para. 99.
93
Cf. Case of Velasquez-Rodriguez. Merits, para. 174; and Case of Godínez Cruz v. Honduras. Mertis.
Judgment of January 20, 1989. Series C No. 5, para. 188.
94
Cf. Case of Cantoral-Huamaní and García-Santa Cruz. Preliminary Objection, Merits, Reparations and
Costs, supra note 89, para. 87.
25
prepared during the investigation of the events of the instant case and determine individual
responsibility, whose definition corresponds to domestic criminal tribunals, but rather
evaluate the acts and omission of State agents, pursuant to the evidence submitted by the
parties.
80. In the instant case, the Commission and the representatives find that the conduct of
a FUSEP agent is an indication sufficient to conclude that there is direct State responsibility
in the deprivation of life suffered by Mrs. Blanca Jeannette Kawas-Fernández. In that regard,
they agree that “it is clear that the execution of Mrs. Kawas-Fernández was the result of
prior planning” which involved two perpetrators and an unspecified number of instigators,
accomplices and concealing parties.” In this sense, they alleged that the actions taken by
the FUSEP sergeant “proved the direct relation to the murder of Mrs. Jeannette Kawas.”
81. The State, on the other hand, rejected the aforementioned argument and held that
the investigation of the events of the instant case remains open and there are various
hypotheses regarding the responsibility for the deprivation of the life of Mrs. Kawas-
Fernández; therefore, no direct responsibility should be imposed upon the State for the acts
of its agents.
82. International case law has upheld the power of international tribunals to freely evaluate
evidence, without adopting a strict assessment of the quantum necessary to provide the
grounds for a judgment,
95
and it is essential for the jurisdictional body to pay attention to
the circumstances of the specific case and to take into account the limits imposed by respect
of legal certainty and procedural balance between the parties.
96
83. The Court cannot ignore the special relevance of imposing upon a State Party to the
Convention the responsibility for performing or tolerating within its territory the performance
of practices such as those explained in the instant case. Therefore, the Court will now
perform an evidence appraisal test that takes that circumstance into account while being
capable of establishing the truth of the events alleged.
97
84. First of all, the Court notes that the authorities in charge of the investigation agree
that the murder of Blanca Jeannette Kawas-Fernández was the product of careful planning in
which people from the area were involved. The investigation report submitted by the Tela
Bureau of Criminal Investigations stated that, “in murdering Janeth Kawas, the people who
performed the deed were guided and advised in a manner such that they already knew she
was by herself and which room she would be in, and the exact time at which it would go
down; some of the people who saw it, particularly the person who was with her, has not said
95
Cf. Case of Velasquez-Rodriguez. Merits, supra note 17, para. 127. Cf. also Case of the Miguel Castro-
Castro Prison, supra note 88, para. 184; Case of Cantoral-Huamaní and García-Santa Cruz. Preliminary Objection,
Merits, Reparations and Costs, supra note 89, para. 86.
96
Cf. Case of Baena Ricardo et al. V. Panamá. Merits, Reparations and Costs. Judgment of February 2, 2001.
Series C No. 72, para. 71; Case of Tiu Tojín V. Guatemala. Merits, Reparations and Costs. Judgment of November
26, 2008. Series C No. 190, para. 38, and Case of Perozo et al. Preliminary Objections, Merits, Reparations and
Costs, supra note 10, para. 95.
97
Cf. Case of Velasquez-Rodriguez. Merits, supra note 17, para. 129; Case of Ríos et al. Preliminary
Objections, Merits, Reparations and Costs, supra note 10, para. 136, and Case of Perozo et al. Preliminary
Objections, Merits, Reparations and Costs, supra note 10, para. 148.
26
a word for fear of getting killed, as he knows that whoever did this are from the same place
and they know each other, and they are very dangerous people.”
98
85. Also, as alleged by the Inter-American Commission and the representatives, the
evidence taken domestically and the reports issued by the investigation organs evidence the
involvement of a FUSEP official in this complex structure that was in charge of carrying out
and concealing the murder of Mrs. Kawas-Fernández. In this regard, in the proven facts
section of this Judgment (supra paras. 50 to 70) it was established that at least one police
officer took steps aimed at obstructing the administration of justice in this case by
threatening witnesses
99
(supra paras. 59, 60 and 64), by acts of coercion intended to throw
the investigation off track
100
(supra para. 57), and by negligence in the gathering of
evidence at the crime scene and in the performance of the steps customarily taken to arrest
the perpetrators of this crime
101
(supra para. 54).
86. In this regard, the Court notes that one year after the events, in their report of May
10, 1996, agents of the Tela Bureau of Criminal Investigations highlighted the involvement
of a FUSEP official in the facts of the instant case. Accordingly, they stated that
we then realized that a sergeant from the Public Security Force […] of this very same town coerced one
Juan Francisco López-Mejía, offering to pay him money to say he was the perpetrator. When conducting
our investigations we learned that Jorge Montoya owns a place nearby the city’s Public Force building,
about half a block away […] what we could verify was that Public Security Force sergeant Perdomo was
seen entering the house. We thus started finding links between these people and looking for sufficient
evidence to clarify this crime.
102
87. The involvement of said police officer in the cover-up of Mrs. Kawas-Fernández’s
murder is also evidenced by the witness statement of Mr. Dencen Andino-Alvarado, which
he rendered on October 30, 2003 before DGIC, stating that:
[…] we were brought to the Courthouse to give a statement on whether we knew the killers and, from
there, we were taken back to the police station, taken to San Pedro Sula around three in the
afternoon, because they claimed to have found a car [which] the killers had supposedly driven;
sergeant Perdomo got there when we were in the holding cells and said to us, What you have to say
is that you don’t know them, so it will be you left, that you do not know them […]
[…] I was home and received an anonymous message, the same one engineer Urraco got, saying we
had to stick to what we had said, that we hadn’t seen anything.
98
Cf. memorandum addressed to Bureau of Criminal Investigation Director Wilfredo Alvarado, supra note 44.
99
Cf. statement rendered by Dencen Alex Andino-Alvarado on August 9, 2003, supra note 51; Technical and
Legal Opinion No. DCAT-SATJ- AFS 022/2003, supra note 31; investigation report of the General Bureau of
Criminal Investigations of October 30, 2003, signed by Daniel Barahona, supra note 31, and brief of request for
issuance of an warrant of arrest filed by prosecutor Luis Javier Santos-Cruz to the Court of First Instance in and for
Tela, on March 2, 2004 (record of appendixes to the answer to the application, appendix 8, folios 1722-1725).
100
Cf. witness testimony of Saúl Benjamín Zapata-Mejía of January 20, 2004, supra note 31; memorandum
addressed to Bureau of Criminal Investigation Director Wilfredo Alvarado, supra note 44; Technical and Legal
Opinion No. DCAT-SATJ- AFS 022/2003, supra note 31; brief of request for issuance of an warrant of arrest filed by
prosecutor Luis Javier Santos-Cruz to the Court of First Instance in and for Tela, on March 2, 2004, supra note 99.
101
Cf. Technical and Legal Opinion No. DCAT-SATJ- AFS 022/2003, supra note 31.
102
Cf. memorandum addressed to Bureau of Criminal Investigation Director Wilfredo Alvarado, supra note 44.
27
[…] there’s engineer Urraco, who can also say that sergeant Perdomo got there about two in the
morning and told us that what we had to say was we hadn’t seen anything, and he also said to say he
hadn’t said a word to us, that he was telling us so as not to make things worse later on.
[…] because of fear due to the threats I received, I hadn’t made a statement because of the threat
against my life […] only because of sergeant Perdomo’s threats.
103
88. In a subsequent statement rendered on December 9, 2003, the same witness
extended his prior statement, saying that:
On Wednesday last week, at about ten to eleven in the morning, I was in the San José neighborhood
along with my boss, the Municipal Head of Public Works, who was telling me where I was supposed to
be sweeping, when ISMAEL PERDOMO came out and called me and said he wanted to talk to me, and
I said OK, and he said that there was [sic] that we were going to see each other. […] On Friday that
week my daughter […] told me some guys had come looking for me […] that day the person in charge
of the cards at the municipal building said that two persons who had identified themselves as agents
[…] had come looking for me […]
[…] around midnight last night some men came to my place, knocked on my door and asked me to
step outside because they wanted to talk to me, but I didn’t open the door, they stayed for about half
an hour and as I wasn’t stepping outside they left […] Ismael Perdomo has something to do with this
because of the words he said to us back when it all happened […] I fear for my life and I want to be
told what I can do.
104
89. Moreover, the Court notes that in the Attorney General’s Office 2003 technical-legal
report, it was found that FUSEP, which was then under the charge of sergeant Perdomo,
“DID NOT TAKE ANY STEPS aimed at arresting the possible perpetrators of the murder, did
not set up police posts, taking an indifferent and worriedless position in view of the situation
arisen, in an attempt to repeatedly throw […] the investigation off track or keep it
completely stalled.”
105
In this regard, it noted that:
pursuant to the investigations, Sergeant Ismael Perdomo had a very active participation in the
course of investigation from the day of the events; […] The witnesses Alex Dencen Andino and
Marco Antonio Urraco stat[ed] that they were coerced by Sergeant Perdomo into refraining from
declaring about the facts; and in the case of Juan Francisco Mejía, he was coerced to incriminate
two individuals who had nothing to do with the case, in exchange for their freedom, since he was
detained at Police locations for theft of a bicycle […]
[Juan Francisco Mejía López is] a key witness to the resolution of this case, as the investigation
team of the Bureau of Investigations confirmed that this young man was coerced by sergeant
Ismael Perdomo into giving a statement against his two cousins […] it should be noted that, to
date, the whereabouts of this witness remain unknown and it is the Police' task […] to find him so
that he can render his witness statement before the Judge in charge of the case, so that sergeant
Perdomo, who is involved in this case whichever way it is looked at, can be arrested.
106
90. In confirmation of the above, later on Saúl Benjamín Zapata, the former prosecutor
in charge of the investigation, stated that:
the Police delegate for Tela then in office […] called to Ceiba to [report] that they had arrested a
‘minor’ who claimed to be one of the perpetrators of the murder, [when questioned]; [w]hich
103
Cf. statement rendered by Dencen Alex Andino-Alvarado on August 29, 2003, supra note 51.
104
Cf. statement rendered by Dencen Alex Andino-Alvarado on December 9, 2003, supra note 51.
105
Technical and Legal Opinion No. DCAT-SATJ- AFS 022/2003, supra note 31.
106
Technical and Legal Opinion No. DCAT-SATJ- AFS 022/2003, supra note 31.
28
called our attention was that he said that the Head of Police Department of Tela[,] had exerted
pressure upon him [to have him self incriminated] for the murder under threats of death; our
suspicion that the Police knew the identity of the actual murderers and was concealing it[;] nearly
a week afterwards, the Court of Tela released the minor due to lack of Merits of the accusation
against him, but they found his testimony useful in the sense that we were initiating
investigations on the participation of police authorities in the events. Thus, we reached a
community called Sparta, where one of the individuals who had planned the murder lived, known
by his nick name: “the Tiger”, who had acted in connivance with other wealthy people of the area
to plan the events, apparently having as main grounds or reason that Yaneth [sic] Kawas was a
tireless environmental activist and opposed to a tourism project to be developed in Tela bay […]
at an area protected as National Park.
107
91. It is worth repeating that, based on the evidentiary elements provided on March 2,
2004, the prosecutor “assigned” to the case requested the Judge of the Court of First
Instance in and for Tela to request the arrest of the Police sergeant as “alleged responsible
for the crimes of abuse of authority and coercion to the detriment of public authorities”
108
(supra para. 64).
92. Based on the above, the Court notes that the authorities in charge of the
investigation identified indications of the participation of the aforementioned police sergeant
in the murder of Blanca Jeannette Kawas-Fernández
109
. In addition to the actions for
obstruction of justice by such police officer, the authorities considered that the early
presence of the sergeant in the crime scene was suspicious,
110
as well as the fact that a few
days before the death of Mrs. Kawas-Fernández, he was seen while meeting
111
with an Army
Colonel who had disagreements with Mrs. Kawas-Fernández and who is also suspected of
having some kind of involvement in the crime.
112
93. In that regard, in its reports, the DGIC held that “pursuant to the statements
[received] and that of the last witness, Dencel, sergeant Ismael Perdomo is the key suspect
for the events since he always tried to hide the identity of those who murdered Mrs.
Kawas[. T]his witness, Dencen, states that sergeant Sargento Ismael Perdomo, when the
Lombardía suspects were captured, […] he drove the vehicle of Coronel Amaya,[and that]
107
Cf. witness testimony of Saúl Benjamín Zapata-Mejía of January 20, 2004, supra note 31.
108
Cf. brief of requests for a warrant of arrest sent by prosecutor Luis Javier Santos-Cruz to the Court of First
Instance in and for Tela, March 2, 2004 (record of appendixes to the answer to the application, appendix 8, folio
2402).
109
Cf. memorandum addressed to Bureau of Criminal Investigation Director Alvarado, supra note 44;
Technical and Legal Opinion No. DCAT-SATJ- AFS 022/2003, supra note 31, and investigation report by the General
Bureau of Criminal Investigations of October 30, 2003, signed by Daniel Barahona, supra nota 31.
110
Cf. Technical Legal Report No. DCAT-SATJ- AFS 022/2003, supra note 31.
111
Cf. Technical Legal Report No. DCAT-SATJ- AFS 022/2003, supra note 31; statement rendered by Dencen
Alex Andino-Alvarado on August 9, 2003, supra note 51; investigation report by the General Bureau of Criminal
Investigations of October 30, 2003, signed by Daniel Barahona, supra nota 31, and official letter of October 29,
2003, addressed to the Non-commissioned Officer III of the DGIC by the Local Coordinator of the Attorney
General’s Office in and for Tela (record of appendixes to the answer to the application, appendix 8, folios 2344 to
2345).
112
Cf. Technical Legal Report No. DCAT-SATJ- AFS 022/2003, supra note 31; report of the DGIC not dated
(record of appendixes to the brief of requests and arguments, appendix L.1, folio 2393); report of November 27,
2006, addressed to the General Director of Criminal Investigations (record of appendixes to the answer to the
application, appendix 8, folios 2498), and statement of Mario Amaya rendered on March 23, 1995, before Criminal
Magistrate’s Court in and for Tela (record of appendixes to the answer to the application, appendix 8, folio 2161).
29
after the event he saw the several times together in the white double-cab [T]oyota”;
therefore “the Prosecutor’s Office [was requested] to issue a warrant of arrest against
sergeant Ismael Perdomo[, since] he appears to be the person who planned the murder.”
113
94. Furthermore, in its technical-legal report, the Attorney General’s Office found that
“sergeant Perdomo arrives immediately at the crime scene since, according to him, the
police squad was covering a fake report on robbery of one of the banks of the city of Tela.
This situation was challenged by the representatives of the banks in that city, who told the
agents that on that day no robbery had been attempted at any bank branch.”
114
Also, “the
team established that from February 3 to 4, 1995, i.e. 3 days before the murder, a person
named Mario Pineda, also known as Chapín ((identified as a former member of a death
squad known as Mano Blanca, and allegedly protected by Coronel Amaya), and Coronel
Mario Amaya, met at the offices of the Police in Tela, with sergeant Ismael Perdomo.”
115
95. However, the Court has held that the use of circumstantial evidence, indication and
assumptions to support the judgment as legitimate, “provided they can be used to infer
consistent conclusions about the facts.”
116
In that regard, the Court has held that the
plaintiff should, in principle, undertake the burden of proof regarding the facts connected
with its arguments; however, the Court has highlighted that, as opposed to domestic
criminal law, in proceedings for violations of human rights, the defense of the State may not
lie on the impossibility of the plaintiff to produce evidence, when it is the State that has
control of the means to clarify the events occurred within its territory.
117
96. It is clear that, in the instant case, which involves the violent death of a person, the
investigation initiated was to be carried out in a manner such that it could guarantee the
due analysis of the responsibility hypothesis thus arrived at, particularly those which lead to
suspect the participation of State agents.
118
Honduras has not advised this Court of any
progress in the investigation carried out by the State authorities which may disprove the
indications pointing to the involvement of State agents in the murder of Mrs. Kawas-
Fernández. The Court notes that, on the contrary, the defense of the State is supported in
the lack of diligence in a judicial proceeding to clearly assess criminal responsibility for the
death of Mrs. Blanca Jeannette Kawas-Fernández, which lack of diligence can only be
attributed to its own judicial authorities (infra para. 114).
113
Cf. Investigation report by the General Bureau of Criminal Investigations of October 30, 2003, signed by
Daniel Barahona, supra nota 31.
114
Cf. Technical Legal Report No. DCAT-SATJ- AFS 022/2003, supra note 31.
115
Cf. Technical Legal Report No. DCAT-SATJ- AFS 022/2003, supra note 31.
116
Cf. Case of Velásquez-Rodríguez. Merits, supra note 17, para. 130; Case of Ríos et al. Preliminary
Objections, Merits, Reparations and Costs, supra note 10, para. 101; and Case of Perozo et al. Preliminary
Objections, Merits, Reparations and Costs, supra note 10, para. 112.
117
Cf. Case of Velásquez-Rodríguez. Merits, supra note 17, para. 135; Case of Yatama V. Nicaragua.
Preliminary Objections, Merits, Reparations and Costs. Judgment of June 23, 2005. Series C No. 127, para 134;
and Case of Ríos et al. Preliminary Objections, Merits, Reparations and Costs, supra note 10, para. 198.
118
Cf. Technical Legal Report No. DCAT-SATJ- AFS 022/2003, supra note 31.
30
97. Considering that, more than 14 years after the murder of Blanca Jeannette Kawas-
Fernández, the State has allowed for it to be impossible so far to establish individual
responsibility, the Court finds it reasonable to assess as evidence the indications contained
in the case file (supra paras. 84 to 94) that point to the involvement of state agents in
these events, particularly those handled by the very state agencies that were in charge of
the investigation which have not been disproven by the State. Reaching any other
conclusion would entail allowing the State to resort to its own negligence or inefficacy for
the criminal investigation to release itself from responsibility for the violation of Article 4(1)
of the Convention.
98. Moreover, the Court notes that, as per the statement rendered before the Juzgado
Primero de Letras Seccional (First Divisional Trial Court) in and for Comayagua by the
prosecutor formerly in charge of the investigation, Saúl Benjamín Zapata (supra para. 62),
“the apparent main reason or motive [for her murder] was that Kawas was a tireless
environmental advocate and was opposed to a tourist development to be built in Tela Bay
[…] in an area protected under a National Park designation.”
119
In this regard, the reports
issued by the authorities in charge of the investigation find that Mrs. Blanca Jeannette
Kawas-Fernández was at odds with some people “owing to her work in defense of the
environment, conducted through the PROLANSATE environmental foundation.”
120
In this
connection, Mr. Rafael Sambulá stated before this Court that “the reports [filed by] those
who wor[k] in the environmental area or […] in protected areas […] are extremely related to
economic interests, very powerful economic interests.”
121
Similarly, the State has
acknowledged “the difficult situation facing those citizens engaged in the defense of the
environment,” among whom the State included Ms. Kawas-Fernández,
122
economic groups
that may not share their vision regarding environmental protection.”
99. Considering the above, which the State itself has asserted, the Court notes that even
though the murder of Blanca Jeannette Kawas-Fernández was caused by certain private
interests, the specific circumstances surrounding it show that the murder was enabled by
the involvement of people who acted under the protection of their authority as state agents,
as established supra.
*
* *
100. Based on all of the above, it is clear that the State did not perform a serious,
complete and effective investigation of the events, in compliance with its duty to
“guarantee” rights (Article 1(1) of the Convention). Basically, the State has recognized that
it has breached its duty upon accepting its international responsibility for the violation of
Articles 8(1) and 25 of the American Convention (supra para. 7).
119
Cfr. Witness statement rendered by Saúl Benjamín Zapata Mejía on January 20, 2004, supra note 31.
120
Cf. Technical Legal Report No. DCAT-SATJ- AFS 022/2003, supra note 31.
121
Cf. Statement rendered by Rafael Sambulá before the Inter-American Court, supra note 25.
122
Cf. UN, Human Rights Commission, Consideration of the reports submitted by states parties under Article
40 of the Covenant, Initial Report, HONDURAS, CCPR/C/HND/2005/1, April 26, 2005 (record of appendixes to the
application, appendix 2, folio 56).
31
101. The Court has held that such duty entails an obligation to use best efforts, rather
than an obligation to ensure results,
123
that does not mean, however, that the investigation
can be “undertaken as a mere formality condemned in advance to be fruitless”.
124
In that
regard, the Court has held that “each State act that composes the investigation proceeding,
and the entire investigation in itself, should be oriented at a specific purpose: the
determination of the truth and the investigation, finding, arrest, prosecution and, if
applicable, punishment of those responsible for the events”.
125
102. The Court has specified the principles that should be applied in investigating a violent
death. In accordance with the precedents of the Inter-American Court, State authorities in
charge of conducting the investigation should at least try, inter alia: a) to identify the
victim; b) to collect and preserve evidence related to the death in order to assist in any
investigation; c) to identify possible witnesses and obtain testimonies in relation to the
death under investigation; d) to determine the cause, manner, place and time of death, as
well as any pattern or practice which may have brought about such death, and e) to
distinguish between natural death, accidental death, suicide and homicide. In addition, it is
necessary that a thorough investigation of the crime scene be conducted and rigorous
autopsies and analyses of human remains be performed by competent professionals, using
the best available procedures.
126
103. In this regard, the Court notes that during the first few weeks after the deprivation
of life of Mrs. Blanca Jeannette Kawas-Fernández, the authorities in charge of the
investigation adopted a series of enquiry and evidentiary procedures aimed at clarifying the
events, including the identification of witnesses and obtaining their statements (supra para.
55). That notwithstanding, there are no records that the evidentiary elements present at the
crime scene were duly safeguarded (supra paras. 54 and 55), or that an autopsy or other
type of analysis of the remains of Mrs. Kawas-Fernández has been performed. Moreover, as
established above (supra para. 54), the authorities verified that the squad of the FSP that
appeared at the crime scene did not perform any action aimed at arresting the perpetrators
of the events “taking an indifferent and worriedless position in view of the situation
arisen”.
127
104. The testimonies received at the beginning of the investigation gave rise to various
hypothesis regarding the responsibility for the crime; however, such investigation remained
inactive for no apparent reason until 2003 (supra para. 59).
123
Cf. Case of Velasquez-Rodriguez. Merits, supra note 17, para. 177; Case of Heliodoro-Portugal V. Panamá.
Preliminary Objections, Merits, Reparations and Costs. Judgment of August 12, 2008. Series C. No. 186, para. 144;
and Case of Valle-Jaramillo et al. V. Colombia. Merits, Reparations and Costs, supra note 8, para. 100.
124
Cf. Case of Velasquez-Rodriguez, Merits, supra note 17, para. 177; Case of Heliodoro-Portugal.
Preliminary Objections, Merits, Reparations and Costs, supra note 123, para. 144; and Case of Valle-Jaramillo et al.
V. Colombia. Merits, Reparations and Costs, supra note 8, para. 100.
125
Cf. Case of Cantoral-Huamaní and García-Santa Cruz. Preliminary Objection, Merits, Reparations and
Costs, supra note 89, para. 131.
126
Cf. Case of Juan Humberto Sánchez V. Honduras. Preliminary Objection, Merits, Reparations and Costs.
Judgment of June 7, 2003. Series C No. 99, para. 127; Case of Escué-Zapata V. Colombia. Merits, Reparations and
Costs. Judgment of July 4, 2007. Series C No. 165, para. 106; and Case of Zambrano-Vélez et al. Merits,
Reparations and Costs, supra note 87, para. 121. Cf. also: Case of the Moiwana Community V. Surinam.
Preliminary Objections, Merits, Reparations and Costs. Judgment of June 15, 2005. Series C No. 124, para. 149.
127
Cf. Technical Legal Report No. DCAT-SATJ- AFS 022/2003, supra note 31.
32
105. Later, when the instant case was being heard by the Inter-American Commission,
the authorities carried out new investigation procedures (supra paras. 59 to 63 and 67),
which must be positively assessed. That notwithstanding, the Court notes that the
negligence of the authorities in charge of examining the circumstance of the death of Mrs.
Blanca Jeannette Kawas-Fernández through the timely collection of evidence in situ and the
timely taking of the relevant testimony can hardly be redressed through late evidentiary
procedures,
128
as evidenced by the reports issued by the authorities in charge of the
investigation (supra paras. 58 and 60 to 62). In that regard, the Court found takes note of
the fact that one of the individuals identified as witness of the events died recently (supra
para. 67).
106. In addition to the overt negligence in furthering the investigation, as mentioned
before, the Court has verified through the body of evidence that certain witnesses have
been threatened (supra paras. 59 to 61 and 64) and other individuals were coerced to
render false testimonies; these circumstances have had an intimidating and discouraging
effect on those in charge of investigations and potential witnesses, seriously affecting the
effectiveness of the investigation. At the request of the representatives, this Court had to
step in, through the adoption of provisional measures, in view of the hardening of threats to
a given witness,
129
which indicates that, to date -14 years after the occurrence of the
events- the risk has not yet come to an end. The fact that those responsible have not yet
been punished gives rise to an intimidating effect that is permanent in nature.
107. This Court considers that, to fulfill the obligation to investigate, pursuant to Article
1(1) of the Convention, the State should adopt ex officio and immediately sufficient
investigation and overall protection measures regarding any act of coercion, intimidation
and threat towards witnesses and investigators, as suggested by its own authorities in
various opportunities (supra paras. 58, 60 and 62). In the instant case, the participation of
at least one State agent in the obstruction of the investigation became evident during the
first weeks of such proceedings (supra paras. 57 and 58);
130
that notwithstanding, judicial
actions against them were brought nine years afterwards (supra para. 64). Furthermore,
there is evidence that since 1996, the Bureau of Criminal Investigations knew that certain
witnesses were afraid of giving testimony (supra para. 58), but no protection scheme was
ever implemented. The records show also that the authorities that conducted the
investigation on the deprivation of life of Mrs. Kawas-Fernández perceived risks associated
with their work. In that regard, in a given opportunity they requested that the investigation
unit be strengthened through the provision of human resources, arms and a vehicle, and
later suggested to transfer the case to a prosecutor’s office outside the city of Tela (supra
para. 60 and 62). There is no information as to whether such measures were adopted or
not.
128
Cf. Case of the Ituango Massacres v. Colombia. Preliminary Objection, Merits, Reparations and Costs.
Judgment of July 1, 2006, Series C No. 148, para. 316.
129
Cf. Provisional measures Dencen Alvarado regarding Honduras. Order of the Inter-American Court of
Human Rights of November 29, 2008.
130
Cf. memorandum addressed to Bureau of Criminal Investigations director Wilfredo Alvarado, supra note
44, and witness statement rendered by Saúl Benjamín Zapata-Mejía on January 20, 2004, supra note 31.
33
108. Based on the considerations above, the Court finds that the State did not fulfill its
obligations to respect and guarantee the right to life of Mrs. Blanca Jeannette Kawas-
Fernández, which constitutes a violation of Article 4(1) of the Convention, in connection with
Article 1(1) thereof.
ii) Right to justice of the relatives of Mrs. Blanca Jeannette Kawas-Fernández
109. The fulfillment of the obligation to undertake a serious, complete and effective
investigation of the events, in accordance with the guarantees of due process of law,
entailed an examination of the term of the investigation
131
and “the legal means
available”
132
to the relatives of the deceased victim, in order to guarantee that their
testimony is received during investigation and judicial proceedings, and that they may
openly participate therein.
110. In that regard, the Court has repeatedly maintained that the States Parties are
obliged to provide effective judicial remedies to the victims of human rights violations
(Article 25), and that these remedies must be provided in accordance with due process of
law (Article 8(1)), all within the framework of the general State obligation to guarantee the
free and full exercise of the rights recognized by the Convention to all those within its
jurisdiction (Article 1(1)).
133
111. Even though the State has acknowledged its international responsibility for the
violation of Articles 8(1) and 25(1), the Court finds it is convenient to analyze if the
proceedings initiated in the domestic jurisdiction for the events of the instant case respected
the right of the relatives of Mrs. Blanca Jeannette Kawas-Fernández to be heard subject to
due legal guarantees and within a reasonable term, and if an effective resource was
provided to guarantee the rights of access to justice, truth and reparation.
112. As regards the fairness of the term, the Court has stated that the right to fair trial
should guarantee, within reasonable time, the right of the alleged victims or their relatives
to have adopted all measures necessary to know the truth about the facts and to punish
those responsible.
134
The Court found that it is necessary to take into account four elements
to determine the fairness of such term: a) the complexity of the matter, b) the procedural
activity of the interested party, c) the conduct of judicial authorities,
135
and d) the
impairment to the legal situation of the person involved in the proceedings.
136
131
Cf. Case of Genie-Lacayo V. Nicaragua. Merits, Reparations and Costs. Judgment of January 29, 1997.
Series C No. 30, para. 77; Case of Ticona Estrada et al. Merits, Reparations and Costs, supra note 8, para. 79; and
Case of Valle-Jaramillo et al. V. Colombia. Merits, Reparations and Costs, supra note 8, para 140.
132
Cf. Case of the “White Van” (Paniagua-Morales et al.) Merits, supra note 14, para. 173.
133
Cf. Case of Velásquez-Rodríguez V. Honduras. Preliminary Objections. Judgment of June 26, 1987. Series
C No. 1, para. 91; Case of Yvon Neptune V. Haiti. Merits, Reparations and Costs. Judgment of May 6, 2008. Series
C No. 180, para. 77; and Case of Castañeda-Gutman V. Mexico. Preliminary Objections, Merits, Reparations and
Costs. Judgment of August 6, 2008. Series C No. 184, para. 34.
134
Cf. Case of Bulacio. Judgment of September 18, 2003. Series C No. 100, para. 114; Case of Tiu Tojin.
Merits, Reparations and Costs, supra note 96, para. 72; and Case of Ticona-Estrada et al. Merits, Reparations and
Costs, supra note 8, para. 79.
135
Cf. Case of Genie-Lacayo. Merits, Reparations and Costs, supra note 131, para. 77; Case of Suárez-
Rosero. Judgment of November 12, 1997. Series C No. 35, para. 72; Case of Bayarri V. Argentina. Preliminary
34
113. As far as the first element is concerned, the Court considers that the death of Mrs.
Kawas-Fernández does not reflect features that render the case complex. There is only one
victim who is clearly identified, and from the very beginning of the investigation there have
been indications as to the identity of the perpetrators and instigators of the crime (supra
paras. 53, 54 and 57). As regards the second element, there is no evidence that the
relatives of Mrs. Blanca Jeannette Kawas-Fernández have taken actions aimed at
suspending investigations. On the contrary, it has been established that the brother of Mrs.
Blanca Jeannette Kawas-Fernández repeatedly provided accommodation and traveling
expenses to the DGIC agents who were to perform investigation procedures in the area
137
(infra para. 169).
114. As shown by the body of evidence (supra paras. 55 to 68), the inefficacy of domestic
resources is attributable only to the conduct of the authorities in charge of directing
proceedings, who first kept the investigation inactive for eight years, and, once resumed,
adopted no further measures and, second, implemented measures aimed at deviating the
investigation and intimidating witnesses (supra paras. 57 and 59). Particularly, the Court
finds that the participation of Judges and prosecutors of the Attorney General’s Office has
also been evidently inadequate during the investigation.
138
In that regard, in its technical
legal report, the Attorney General’s Office set forth that:
“even though the judge has the power to order performing certain procedures based on its power
to direct proceedings, such procedures have not been completed, thus causing an unjustified
delay in the clarification of the case and, hence, the finding of justice. […] The Attorney General’s
Office has had no active participation in proceedings since there has been no order to perform the
procedures necessary to achieve an acknowledgment of responsibility by the perpetrators of the
events.
”139
115. As regards the fourth element, the Court has held that, in order to determine
whether the term is reasonable, regard must be had to how the legal situation of the person
involved in the proceeding has been impaired by its duration, considering, among other
things, the subject-matter of the dispute. The Court has thus determined that where the
lapse of time has a relevant impact on the individual’s legal situation, the proceeding will
need to be conducted more diligently in order that the case may be resolved in a brief
period of time.
140
In the instant case, it is the Court’s view that this element does not need
to be analyzed in order to determine whether the duration of the investigation and the
proceedings initiated due to the victim’s death is reasonable.
Objection, Merits, Reparations and Costs. Judgment of October 30, 2008. Series C No. 187, para. 107; and Case of
Valle-Jaramillo et al. V. Colombia. Merits, Reparations and Costs, supra note 8, para. 155.
136
Cf. Case of Valle-Jaramillo et al v. Colombia. Merits, Reparations and Costs, supra note 8, para. 155.
137
Official letter signed by Licenciado Luis Javier Santos-Cruz, Coordinator of the Attorney General’s Office in
and for Tela, November 5, 2003 (record of appendixes to the answer to the application, appendix 8, folio 2366).
138
Cf. official letter of November 23, 2006 addressed to the coordinator of prosecutors by the Court of First
Instance in and for Tela (record of appendixes to the answer to the application, appendix 8, folio 2427).
139
Cf. Technical Legal Report No. DCAT-SATJ- AFS 022/2003, supra note 31.
140
Cf. Case of Valle-Jaramillo et al. V. Colombia. Merits, Reparations and Costs, supra note 8, para. 155.
35
116. Considering these elements, and the acknowledgement made by the State, the Court
finds that in the 14-year term that took the domestic jurisdiction to carry out the
investigation of the events exceeds openly a reasonable term for the State to perform the
related investigation and constitutes a flagrant denial of justice to the detriment of the next
of kin of Blanca Jeannette Kawas-Fernández.
117. Moreover, in cases as the one analyzed herein, pursuant to Articles 8(1) and 25 of
the American Convention, the relatives of the deceased victim have the right to know the
truth of the events
141
and such right requires the procedural determination of the most
complete historical truth as possible.
142
The relatives of the victims also have the right, and
the States the obligation, to have any damage and loss the sustained repaired.
143
In this
sense, the State has the duty to repair directly and essentially those human rights violations
for which it is responsible.
144
The Court finds that, as of the date of this Judgment, the
relatives of Mrs. Blanca Jeannette Kawas-Fernández have had no judicial determination of
the events and those responsible therefor, covering the reparation of violations, the
clarification of the facts regarding the execution of Mrs. Kawas-Fernández and if applicable,
the punishment of those responsible. The circumstances described above constitute a
source of additional anguish and suffering to them (infra para. 139).
118. Based on the considerations above, the Court finds that the investigation opened in
the domestic jurisdiction has not guaranteed true right to justice for the relatives of the
deceased victim, which constitutes a violation of their rights to judicial protection and
judicial guarantees, in accordance with the terms of Articles 8(1) and 25 of the American
Convention.
119. Considering the acknowledgment made by the State (supra para. 28), the Court has
verified that the individuals listed below are the relatives of Mrs. Blanca Jeannette Kawas-
Fernández; therefore, they will be considered victims in the instant case: Blanca
Fernández,
145
mother; Jacobo Kawas-Cury,
146
deceased father; Jaime Alejandro Watt-
Kawas,
147
son; Selsa Damaris Watt-Kawas,
148
daughter; Carmen Marielena Kawas-
141
Cf. Case of Velásquez-Rodríguez. Merits, supra note 17, para. 181; Case of Ticona-Estrada et al. Merits,
Reparations and Costs, supra note 8, para 80, para. 289; and Case of Heliodoro-Portugal. Preliminary Objections,
Merits, Reparations and Costs, supra note 123, para. 244.
142
Cf. Case of the Rochela Massacre. Merits, Reparations and Costs, supra note 87, para. 195; and Case of
Valle-Jaramillo et al. V. Colombia. Merits, Reparations and Costs, supra note 8, para. 155.
143
Cf. Case of Durand and Ugarte V. Perú. Merits. Judgment of August 16, 2000. Series C No. 68, para. 130,
and Case of Valle-Jaramillo et al. V. Colombia. Merits, Reparations and Costs, supra note 8, para. 103.
144
Cf. Case of Valle-Jaramillo et al. V. Colombia. Merits, Reparations and Costs, supra note 8, para. 155.
145
Cf. birth certificate of Mrs. Blanca Jeannette Kawas-Fernández (record on the Merits, volume III, folio
675).
146
Cf. birth certificate of Mrs. Blanca Jeannette Kawas-Fernández (record on the Merits, volume III, folio
675).
147
Cf. birth certificate of Mr. Jaime Alejandro Watt-Kawas (record of appendixes to the brief of requests and
arguments, folio 1797).
148
Cf. birth certificate of Mrs. Selsa Damaris Watt-Kawas (record of appendixes to the brief of requests and
arguments, folio 1798).
36
Fernández,
149
sister; Jacobo Roberto Kawas-Fernández,
150
brother, and Jorge Jesús Kawas-
Fernández,
151
brother. The Commission included Mr. James Gordon Watt as husband of Mrs.
Kawas-Fernández; that notwithstanding, he submitted no evidence to prove that such
relationship existed; hence he will not be considered a victim for the purposes of the instant
case.
120. The Court notes that in the instant case, Mrs. Blanca Jeannette Kawas should not be
recognized as victim of the violation of Articles 8(1) and 25(1) of the American Convention,
as requested by the representatives (supra para. 6), since in cases of violent deaths, the
power to claim for these rights “corresponds to the relatives of the deceased victim, who are
interested parties to the search for justice and to whom the State must provide effective
resources to guarantee such right to justice, investigations and potential punishment, as
applicable, of those responsible and the overall reparation of the consequences of
violations”.
152
*
* *
121. Lastly, the Commission requested the Court to declare that the State is responsible
for non-fulfillment of the duty to adopt domestic law measures, in accordance with Article 2
of the American Convention, in order to give efficacy to the State obligations resulting from
Articles 8(1) and 25 of such treaty. The Commission supported such arguments in the
statements made by the State during the processing of the case at such instance, pursuant
to which “every deficiency in the furthering of proceedings resulted from the fact that the
procedural framework in force at the time of the events has given rise to limitations in their
investigation”.
153
The Court finds that the Commission has not elaborated on this argument.
122. Accordingly, in the exercise of the rights contained in Article 53(2) of the Rules of
Procedure, the Court finds that there are no elements in the instant case to conclude that
the State has failed to fulfill its duties in accordance with Article 2 of the American
Convention.
*
* *
149
Cf. birth certificate of Mrs. Carmen Marilena Kawas-Fernández (record of appendixes to the brief of
requests and arguments, folio 1799).
150
Cf. birth certificate of Mr. Jacobo Kawas-Fernández (record of appendixes to the brief of requests and
arguments, folio 1800).
151
Cf. Birth certificate of Mr. Jorge Jesús Kawas-Fernández (record of appendixes to the brief of requests and
arguments, folio 1801).
152
Cf. Case of Valle-Jaramillo et al v. Colombia. Merits, Reparations and Costs, supra note 8, para. 170.
153
Cf. Brief of the State submitted to the Commission on June 2, 2004 (record of appendixes to the
application, appendix 3, folios 831 to 832). In said brief, the State alleged that “the case discussed herein is being
studied in accordance with the Inquisitive Criminal Justice System, regulated by the Code of Criminal Procedure of
1984, which in principle establishes the concept of the “Investigating Judge”, absolute director of the investigation
stage of proceedings, assigning a merely formal role to the agents of the Attorney General’s Office. In accordance
with such regulations, they only participate in the trial stage of proceedings; hence the “Investigating Judge” does
not have the elements and logistics (sic) necessary to promptly perform any enquiring procedures entrusted
thereto; as opposed to the Attorney General’s Office which does have the necessary elements. However, as
mentioned before, the procedural participation of the Prosecutor’s Office is merely formal and thus delays the
regular progress of the criminal proceeding as described above”.
37
123. In conclusion, pursuant to the partial acknowledgment of responsibility made in the
instant case, the Court finds that the Honduras violated the rights set forth in Article 4(1) of
the Convention, in relation to the obligation to respect and guarantee rights enshrined in
Article 1(1) thereof, to the detriment of Mrs. Blanca Jeannette Kawas-Fernández.
Furthermore, it considers that the State violated the rights enshrined in Articles 8(1) and 25
of the American Convention, in relation to Article 1(1) of such treaty, to the detriment of
Mrs. Blanca Fernández, Mr. Jacobo Kawas-Cury, Mr. Jaime Alejandro Watt-Kawas, Mrs.
Selsa Damaris Watt-Kawas, Mrs. Carmen Marielena Kawas-Fernández, Mr. Jacobo Roberto
Kawas-Fernández and Mr. Jorge Jesús Kawas-Fernández.
VIII
ARTICLE 5(1) (RIGHT TO HUMANE TREATMENT)
154
IN RELATION TO ARTICLE 1(1)
(OBLIGATION TO RESPECT RIGHTS) OF THE AMERICAN CONVENTION
124. The representatives requested the Court to find the State of Honduras responsible
for the violation of the right to humane treatment to the detriment of the next of kin of
Blanca Jeannette Kawas-Fernández, pursuant to the provisions set forth in Articles 5(1) and
5(2) of the American Convention, in relation to the general obligation to respect and
guarantee human rights enshrined in Article 1(1) thereof. They alleged that the children,
mother and brothers of Blanca Jeannette Kawas “have suffered serious emotional harm [...]
not only as a result of the premeditated murder of Jeannette, but also as a consequence of
years of impunity” insofar as they “[h]ave witnessed the passivity and incompetence of the
authorities in charge of the investigation and the delay in gaining access to justice as a
result of the omissions and obstructive behavior of public officials seeking to hinder the
proceedings.” In this connection, they stated that “[their] expectations of justice were
thwarted.” The representatives mentioned that the relatives of Blanca Jeannette Kawas “are
frightened by the presence of people in their community who might be involved in the
murder, [which] causes additional stress [that] affects their integrity.”
125. In its Reports on admissibility and Merits, the Inter-American Commission did not
consider that a violation of Article 5 of the American Convention had occurred and,
therefore, did not allege the violation of the right to humane treatment to the detriment of
the next of kin of Blanca Jeannette Kawas-Fernández in the application filed with the Court.
126. The State of Honduras disputed the alleged violation of the right to humane
treatment to the detriment of the next of kin of Blanca Jeannette Kawas-Fernández and
requested the Court to consider the argument raised by the Inter-American Commission in
its Report on the Merits, in which it found that “based on the analysis of the case, there are
no other independent facts that may lead the Commission to conclude that Article 5 of the
American Convention has been violated.”
127. In accordance with this Court’s precedents, the alleged victim, his or her next of kin
154
In this regard, Article 5 provides that:
1. Every person has the right to have his physical, mental, and moral integrity respected.
2. No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons
deprived of their liberty shall be treated with respect for the inherent dignity of the human person.
38
or representatives may invoke different rights from those included in the application filed by
the Commission, based on the facts alleged therein.
155
In this case, the Court notes that
given that the arguments raised by the representatives regarding the violation of Article
5(1) of the American Convention to the detriment of the next of kin of Blanca Jeannette
Kawas-Fernández are based on facts contained in the application, the Court will proceed to
consider such arguments.
128. On several occasions,
156
the Inter-American Court has declared the violation of the
right to humane treatment in respect of the next of kin of victims of certain human rights
violations or with respect to other persons having close relationships with such victims. In
this connection, in the Case of Valle-Jaramillo et al. v. Colombia, the Court held that a
violation of the right to mental and moral integrity of the direct next of kin of victims of
certain human rights violations may be declared by applying a rebuttable presumption with
regard to mothers and fathers, daughters and sons, husbands and wives, permanent
companions (hereinafter “direct next of kin”) provided it responds to the specific
circumstances of the case. With regard to such direct next of kin, it is for the State to rebut
said presumption.
157
129. In all other cases, the Court must analyze if the evidence in the records of the case
shows a violation of the right to humane treatment of the alleged victim, regardless of
whether he/she is a next of kin of another victim in the case or not. As regards those
persons in respect of whom the Court does not presume that the right to humane treatment
has been violated because they are not direct next of kin, the Court must assess, for
example, whether there is a particularly close relationship between them and the victims in
the case that would enable the Court to find that the right to humane treatment has been
violated. The Court may also assess whether the alleged victims have been actively involved
in seeking justice in the specific case,
158
or whether they have suffered as a result of the
facts of the case or of subsequent acts or omissions on the part of the State authorities in
relation to the incidents.
159
130. The Court notes that the representatives have requested that the State be found
responsible for the violation of Articles 5(1) and 5(2) of the American Convention to the
detriment of the following direct next of kin of Blanca Jeannette Kawas-Fernández: Mr.
Jacobo Kawas-Kury, father;
160
Blanca Fernández, mother;
161
Selsa Damaris Watt-Kawas,
155
Cf. Case of “Five Pensioners” V. Perú. Merits, Reparations and Costs. Judgment of February 28, 2003.
Series C No. 98, para. 155; Case of Ríos et al. Preliminary Objections, Merits, Reparations and Costs, supra note
10, para. 42; and Case of Perozo et al. Preliminary Objections, Merits, Reparations and Costs, supra note 10, para.
32.
156
Cf. Case of Blake V. Guatemala. Merits. Judgment of January 24, 1998. Series C No. 36, para. 114; Case
of Heliodoro-Portugal. Preliminary Objections, Merits, Reparations, and Costs, supra note 123, para. 163; Case of
Valle-Jaramillo et al. v. Colombia. Merits, Reparations, and Costs, supra note 8, para. 119.
157
Cf. Case of Valle-Jaramillo et al. V. Colombia. Merits, Reparations, and Costs, supra note 8, para. 119.
158
Cf. Case of Bámaca-Velásquez V. Guatemala. Merits. Judgment of November 25, 2000. Series C No. 70,
para. 163; Case of Heliodoro-Portugal. Preliminary Objections, Merits, Reparations, and Costs, supra note 123,
para. 163, and Case of Valle-Jaramillo et al. V. Colombia. Merits, Reparations, and Costs, supra note 8, para. 119.
159
Cf. Case of Blake. Merits, supra note 156, para. 114; Case of Heliodoro-Portugal. Preliminary Objections,
Merits, Reparations and Costs, supra note 123, para. 163; and Case of Valle-Jaramillo et al. Merits, Reparations
and Costs, supra note 8, para. 119.
160
Cf. Birth certificate of Blanca Jeannette Kawas-Fernández, supra note 145.
161
Cf. Birth certificate of Blanca Jeannette Kawas-Fernández, supra note 145.
39
daughter,
162
and Jaime Alejandro Watt-Kawas, son.
163
Therefore, considering the
circumstances of the instant case, in principle the Court presumes that the death of Blanca
Jeannette Kawas-Fernández adversely affected their mental and moral integrity. However,
given that the State, based on the findings of the Inter-American Commission in its Report
on the Merits,
164
opposed any such ruling in relation to this alleged violation, the Court will
examine the evidence presented by the representatives. The Court notes that the State did
not challenge said evidence.
131. Based on the statements rendered during the course of these proceedings, it is clear
that Mr. Jacobo Kawas-Kury, father of Mrs. Blanca Jeannette Kawas-Fernández, was
significantly affected by her death. Mrs. Blanca Jeannette Kawas “was his right-hand
person; she took care of him and his ailment [and] managed his business.”
165
Blanca
Jeannette Kawas and her father had a very close relationship; she even left the United
States of America to provide him with care.
166
Mr. Jacobo Kawas-Kury passed away a few
months after the death of his daughter.
167
132. Also, in relation to Blanca Jeannette Kawas-Fernández’s relationship with her mother,
Blanca Fernández, the record shows that the former traveled to the United States of
America along with her two children in order to take care of her mother, who was ill.
168
Blanca Jeannette Kawas-Fernández subsequently returned to Honduras to take care of her
father, but maintained regular contact with her.
169
Because of the facts of this case, Mrs.
Fernández suffered “due to the feelings of anger and impotence […] and cried inconsolably;
to this date her favorite topic of conversation is [her] daughter.”
170
133. Furthermore, based on the record, Selsa Damaris Watt-Kawas and her mother, Mrs.
Blanca Jeannette Kawas-Fernández, had a very close relationship. Ms. Watt-Kawas stated
that her mother provided her with financial support for her studies in the United States of
America and that “when she [had] some free time she visited her [and] was inspired by her
environmental mission and vision.” She stated that she talked with her mother on the
telephone “a few days before she died.” Ms. Watt-Kawas “has suffered emotional [t]rauma
[as a result] of [her] mother’s violent death” and considers that it has caused “irreparable
162
Cf. Birth certificate of Selsa Damaris Watt-Kawas, supra note 148.
163
Cf. Birth certificate of Jaime Alejandro Watt-Kawas, supra note 147.
164
Cf. Report on Merits No. 63/06, supra note 2.
165
Cf. Statement rendered by Mr. Jacobo Kawas-Fernández before the Inter-American Court, supra note 25.
166
Cf. Statement rendered before a notary public (affidavit) by Mr. Jaime Alejandro Watt-Kawas on
November 4, 2008 (record on the Merits, volume II, folio 453).
167
Cf. Statement rendered by Mr. Jacobo Kawas-Fernández before the Inter-American Court, supra note 25,
and statement rendered before a notary public (affidavit) by Mr. Jorge Jesús Kawas-Fernández on October 30,
2008 (record on the Merits, volume II, folio 444).
168
Cf. statement rendered before a notary public (affidavit) by Mr. Jorge Jesús Kawas-Fernández on October
30, 2008 (record on the Merits, volume II, folio 443).
169
Cf. Statement rendered before a notary public (affidavit) by Mr. Jaime Alejandro Watt-Kawas on
November 4, 2008, supra note 166.
170
Cf. Statement rendered before a notary public (affidavit) by Mr. Jorge Jesús Kawas-Fernández on October
30, 2008, supra note 168.
40
damage, searing and long-lasting grief.”
171
She added that “she feels helpless and
constantly stressed out when visit[ing] her family in Honduras” and that she “[is]
disappointed at the incompetence displayed by the authorities in a murder case that has
received national and international attention.” Currently, Selsa Damaris Watt-Kawas is living
in Germany and is afraid of returning to Honduras.
172
134. Mr. Jaime Alejandro Watt-Kawas, son of Blanca Jeannette Kawas-Fernández, stated
that he “always had a very close relationship” with his mother “and [that] she thoroughly
fulfilled her role as mother.” Furthermore, he added that, when she died, he suffered from
“feelings of loneliness and abandonment[,] feeling unprotected without the only person who
was so close to him” and, therefore, he needed the support of his family to “cope with the
overwhelming grief that [he] experienced [...].” Mr. Watt-Kawas stated that his life
“underwent a radical, negative, frustrating change, imbued with emotional instability and
deep sadness that led [him] to distrust everything and everyone” and that he “feels a sense
of impotence and frustration in the face of the absence of competent authorities to
determine what happened and why it happened.”
173
At the time Blanca Jeannette-Kawas
was deprived of her life, her son was seventeen years old.
174
135. In addition, the representatives have requested the Court to declare the violation of
Article 5 of the American Convention to the detriment of the siblings of Blanca Jeannette
Kawas-Fernández: Jacobo Roberto;
175
Jorge Jesús,
176
and Carmen Marilena.
177
The Court
points out that, in accordance with its case law (supra para. 128), the foregoing persons are
not considered to be direct next of kin. Therefore, the Court must examine the evidence
presented by the representatives to that effect.
136. During the public hearing (supra para. 10), Mr. Jacobo Roberto Kawas-Fernández
stated that he arrived at the house of his sister, Blanca Jeannette Kawas-Fernández, a few
minutes after she died. He said that he saw her “lying on the floor [and that] he tried to
pick her up [and] carry her.” As evidenced by the record, he subsequently “led” the
investigations initiated by the authorities regarding her death.
178
Mr. Kawas-Fernández
pointed out that, as a result of the murder, “he no longer [has an] older sister who gave
him all her support” and that “[his] life has changed in that he used to be engaged in other
activities [and] had to [take over] the management of [his] father’s business,” formerly
managed by Blanca Jeannette Kawas-Fernández. He mentioned that the possibility of
171
Cf. Statement rendered before a notary public (affidavit) by Selsa Damaris Watt-Kawas on October 28,
2008 (record on the Merits, volume II, folios 428 and 429).
172
Cf. Statement rendered before a notary public (affidavit) by Selsa Damaris Watt-Kawas on October 28,
2008, supra note 171.
173
Cf. Statement rendered before a notary public (affidavit) by Mr. Jaime Alejandro Watt-Kawas on
November 4, 2008, supra note 166.
174
Cf. Birth certificate of Jaime Alejandro Watt-Kawas, supra note 147; and statement rendered before a
notary public (affidavit) by Jorge Jesús Kawas-Fernández on October 30, 2008, supra note 168.
175
Cf. Birth certificate of Jacobo Kawas-Fernández, supra note 150.
176
Cf. Birth certificate of Jorge Jesús Kawas-Fernández, supra note 151.
177
Cf. Birth certificate of Carmen Marilena Kawas-Fernández, supra note 149.
178
Cf. Statement rendered before a notary public (affidavit) by Mr. Jorge Jesús Kawas-Fernández on October
30, 2008, supra note 168.
41
rendering testimony before the Inter-American Court meant “an opportunity for securing
justice, the hope that impunity would end [...].”
137. Mr. Jorge Jesús Kawas-Fernández stated that he had a very close relationship with
his sister, Blanca Jeannette Kawas-Fernández, that “she was like the head of the family;
[that] whenever she c[a]me to Tegucigalpa she would stay at [his] home and vice versa.”
Furthermore, he pointed out that “from an early age she was like a mother to [him].” He
added that “when his biological mother left for the Unites States, Jeannette, barely eighteen
years old, took over [his] care” and that “there was always a special bond between them
beyond sibling love and that her personal demeanor and conduct [earned her] the respect
and deep appreciation of the family.” Mr. Jorge Jesús Kawas pointed out that his sister’s
death “was the end[;] an initial reaction of shock and disbelief which later developed into a
profound grief and sorrow at her unjust death.” Furthermore, he stated that the family “[is]
afraid […] owing to the [State’s] inability to prosecute and punish those who commit violent
crimes.”
179
138. As regards Carmen Marilena Kawas-Fernández, sister of the deceased victim, the
record shows that they had a “very good” relationship and that “she always supported
[her].”
180
In addition, from the statement rendered by Mr. Jacobo Roberto Kawas-
Fernández, it is clear that since Blanca Jeannette was the oldest of four children, “at an
early age, she had to look after her younger siblings [Carmen Marilena Kawas-Fernández
among them] and to always watch over them [...].” Mr. Jacobo Kawas-Fernández also
stated that his sister Carmen Marilena traveled to Honduras from the United States to go to
her sister’s funeral.
181
The Court points out that the State acknowledged the violation of
Articles 8 and 25 of the American Convention to the detriment of “the next of kin of Blanca
Jeannette Kawas-Fernández” (supra para. 7), Mrs. Carmen Marilena among others.
139. Based on the foregoing, the Court finds that Jacobo Roberto Kawas-Kury, Blanca
Fernández, Selsa Damaris Watt-Kawas, Jaime Alejandro Watt-Kawas, Jacobo Kawas-
Fernández, Jorge Jesús Kawas-Fernández and Carmen Marilena Kawas-Fernández’s close
family relationship with Blanca Jeannette Kawas-Fernández has been established.
Furthermore, the Court considers that the manner and circumstances in which Blanca
Jeannette Kawas-Fernández was deprived of her life and the inefficiency of the measures
adopted to investigate the murder and punish the perpetrators have caused them pain and
suffering in addition to a feeling of insecurity, frustration and impotence at the public
authorities’ failure to investigate the facts of the case, thus undermining their mental moral
integrity (supra para. 117). Therefore, the Court finds that the State is responsible for the
violation of Article 5(1) of the American Convention, in relation to Article 1(1) thereof, to
the detriment of the abovementioned persons. The Court has not found a violation of Article
5(2) of the American Convention, in accordance with its previous decisions on the subject of
torture and other cruel, inhumane or degrading treatment.
IX
179
Cf. Statement rendered before a notary public (affidavit) by Mr. Jorge Jesús Kawas-Fernández on October
30, 2008, supra note 168.
180
Cf. Statement rendered before a notary public (affidavit) by Selsa Damaris Watt-Kawas on October 28,
2008, supra note 171.
181
Cf. Statement rendered by Mr. Jacobo Kawas-Fernández before the Inter-American Court, supra para. 25.
42
ARTICLE 16(1) (FREEDOM OF ASSOCIATION)
182
OF THE AMERICAN CONVENTION,
IN RELATION TO ARTICLE 1(1) (OBLIGATION TO RESPECT RIGHTS) THEREOF
140. The representatives pointed out that “[t]he murder of Jeannette Kawas, as a result of
her tireless efforts to protect the environment through the foundation [PROLANSATE], of
which she was the President, constituted a deprivation of her right [to] use any means she
deem[ed] appropriate to exercise her freedom of association, [...] from the individual
perspective of such right.” They added that her murder “must be seen as a violation of the
freedom of association from a collective standpoint [insofar as] its impunity had an
intimidating effect on the environmental movement in Honduras, especially because her
death marks the start of a context of violence against environmental advocates. […] The
right of individuals to associate with others for an environmental cause in Honduras may not
be freely exercised, and the murder and ensuing impunity in the Kawas case has been a true
reflection of that situation.” Furthermore, they alleged that the State, through the Attorney
General’s Office, “has accepted that all the theories regarding the incident are related to the
Jeannette’s fight as an environmentalist.”
141. The Commission made no reference to the alleged violation of the right of freedom of
association.
142. In its answer to the application, the State argued that “both the application and the
brief containing pleadings, motions and evidence list the different activities carried out by
Blanca Jeannette Kawas-Fernández as well as the organizations to which she belonged;
therefore, it is evident that the State [...] never prevented her from freely associating with
others, nor did it place any restrictions on such right.”
143. Article 16(1) of the American Convention provides that individuals under the
jurisdiction of the States Parties have the right and freedom to associate freely with others,
without any interference by the public authorities that could limit or impair the exercise of
such right. It relates, therefore, to the right to join with others in lawful common pursuits,
without pressure or interference that may alter or impair the nature of such purpose.
183
144. In addition to the aforesaid negative obligations, the Inter-American Court has
pointed out that freedom of association also “gives rise to positive obligations to prevent
attacks on it, to protect those who exercise it, and to investigate violations restricting such
freedom.”
184
These positive obligations must be enforced, even in the sphere of relations
between individuals, if necessary.
185
182
In this regard, Article 16(1) of the Convention provides that: “everyone has the right to associate freely
for ideological, religious, political, economic, labor, social, cultural, sports, or other purposes.”
183
Cf. Case of Baena-Ricardo et al. Merits, Reparations and Costs, supra note 96, para. 156. Cf. also Case of
Huilca-Tecse v. Perú. Merits, Reparations and Costs. Judgment of March 3, 2005. Series C No. 121, para. 69; and
Case of Cantoral-Huamaní and García-Santa Cruz v. Perú. Preliminary Objection, Merits, Reparations, and Costs.
Judgment of July 10, 2007. Series C No. 167, para. 144.
184
Cf. Case of Huilca-Tecse. Merits, Reparations and Costs, supra note 183, para. 76, and Case of Cantoral-
Huamaní and García-Santa Cruz. Preliminary Objection, Merits, Reparations, and Costs, supra note 183, para. 141.
185
Cf. Case of Huilca-Tecse. Merits, Reparations and Costs, supra note 183, para. 76; and Case of Cantoral-
Huamaní and García-Santa Cruz. Preliminary Objection, Merits, Reparations, and Costs, supra note 183, para. 141.
43
145. In the instant case, the analysis of the potential violation of the right of freedom of
association, as alleged by the representatives, must be made in the context of the link
between the exercise of said right and the promotion and defense of human rights. In this
regard, the Court has established that the States have the duty to provide the necessary
means for human rights defenders to conduct their activities freely; to protect them when
they are subject to threats in order to ward off any attempt on their life or safety; to refrain
from placing restrictions that would hinder the performance of their work, and to conduct
serious and effective investigations of any violations against them, thus preventing
impunity.
186
146. From this perspective, Article 16 of the American Convention also includes the right
of individuals to set up and participate freely in non-governmental organizations,
associations or groups involved in human rights monitoring, reporting and promotion. Given
the important role of human rights defenders in democratic societies,
187
the free and full
exercise of this right imposes upon the State the duty to create the legal and factual
conditions for them to be able to freely perform their task.
147. The State acknowledged that the work of Blanca Jeannette Kawas-Fernández was
performed “in her role as defender of human rights and of environmental and natural
resource preservation” and recognized “the many achievements gained through her
different activities.” In connection with said acknowledgement, this Court finds it
appropriate to point out that the defense of human rights is not limited to civil and political
rights, but necessarily involves economic, social and cultural rights monitoring, reporting
and education, in accordance with the principles of universality, indivisibility and
interdependence enshrined in the American Declaration of the Rights and Duties of Man, the
American Convention,
188
and the Inter-American Democratic Charter
189
and upheld by this
Court in its case law.
190
In the same vein, the UN Special Rapporteur on the Situation of
186
Cf. Case of Nogueira de Carvalho et al. v. Brazil. Preliminary Objections and Merits. Judgment of
November 28, 2006. Series C No. 161, para. 77; and Case of Valle-Jaramillo et al. Merits, Reparations, and Costs,
supra note 8, para. 91.
187
Cf. Case of Nogueira de Carvalho et al. Preliminary Objections and Merits, supra note 186, para. 74; and
Case of Valle-Jaramillo et al. Merits, Reparations, and Costs, supra note 8, para. 87. In the same vein, cf.
Provisional Measures Mery Naranjo. Order of September 22, 2006, Considering clause No. 8; Provisional Measures
Mery Naranjo. Order of January 31, 2008, Considering clause No. 4; Provisional Measures Lysias Fleury. Order of
June 7, 2003, Considering clause No. 5; Provisional Measures Lysias Fleury. Order of December 2, 2003,
Considering clause No. 10; Provisional Measures Carlos Nieto et al. Order of July 9, 2004, Considering clause No.
10; Provisional Measures Álvarez et al. Order of February 8, 2008, Considering clause No. 23; Provisional Measures
Monagas Judicial Confinement Center ("La Pica"). Order of February 9, 2006, Considering clause No. 14;
Provisional Measures in favor of the Members of the Community Studies and Psychosocial Action Team (ECAP).
Order of October 20, 2006, Considering clause No. 10.
188
In its Preamble, the American Convention recognizes that “the ideal of free men enjoying freedom from
fear and want can be achieved only if conditions are created whereby everyone may enjoy his economic, social,
and cultural rights, as well as his civil and political rights.”
189
The Inter-American Democratic Charter provides that “democracy is indispensable for the effective
exercise of fundamental freedoms and human rights in their universality, indivisibility and interdependence,
embodied in the respective constitutions of States and in inter-American and international human rights
instruments.”
190
Among other cases: Cf. Case of the “Street Children” (Villagrán-Morales et al.). Merits, supra note 88,
para. 191; Case of Baena-Ricardo et al. Merits, Reparations, and Costs, supra note 96, paras. 156 and 168; Case
of the "Juvenile Reeducation Institute” v. Paraguay. Preliminary Objections, Merits, Reparations, and Costs.
Judgment of September 2, 2004. Series C No. 112, paras. 149, 161, 166, 170 and 176; Case of Huilca-Tecse.
Merits, Reparations and Costs, supra note 183, para. 67; Case of the Yakye Axa Indigenous Community v.
Paraguay. Merits, Reparations and Costs. Judgment of June 17, 2005. Series C No. 125, paras. 77, 87, 99, 101,
44
Human Rights Defenders concluded that the protection accorded to defenders “is not
dependent on whether the focus of the work of the defenders […] is on civil and political
rights or on economic, social and cultural rights.”
191
148. Furthermore, in accordance with the case law of this Court
192
and the European Court
of Human Rights,
193
there is an undeniable link between the protection of the environment
and the enjoyment of other human rights. The ways in which the environmental degradation
and the adverse effects of the climate change have impaired the effective enjoyment of
human rights in the continent has been the subject of discussion by the General Assembly of
the Organization of American States
194
and the United Nations.
195
It should also be noted
that a considerable number of States Parties to the American Convention have adopted
constitutional provisions which expressly recognize the right to a healthy environment.
196
and 103; Case of the Girls Yean and Bosico v. Dominican Republic. Preliminary Objections, Merits, Reparations, and
Costs. Judgment of September 8, 2005. Series C No. 130, paras. 142, 173 and 185; Case of Ximenes-Lopes v.
Brazil. Merits, Reparations and Costs. Judgment of July 4, 2006. Series C No. 149, paras. 89, 90, 99 and 104; Case
of the Sawhoyamaxa Indigenous Community v. Paraguay. Merits, Reparations and Costs. Judgment of March 29,
2006. Series C No. 146, paras. 121, 164, 168 and 172; and García-Santa Cruz. Preliminary Objection, Merits,
Reparations, and Costs, supra note 183, paras. 144 and 146.
191
Cf. Report submitted by Ms. Hina Jilani, Special Representative of the Secretary-General on the situation of
human rights defenders. A/HRC/4/37 January 24, 2007. See website:
http://daccessdds.un.org/doc/UNDOC/GEN/G07/104/20/PDF/G0710420.pdf
192
Particularly, in contentious cases and provisional measures regarding the rights of the members of
indigenous communities and the special relationship they have with the land. Cf. Matter of Pueblo indígena de
Sarayaku regarding Ecuador. Provisional Measures. Order of the Court of June 17, 2005, Considering clause No. 9;
Case of the Mayagna Community (Sumo) Awas Tingni. Judgment of August 31, 2001. Series C No. 79, paras. 144,
149. Case of the Yakye Axa Indigenous Community v. Paraguay. Merits, Reparations and Costs. Judgment of June
17, 2005. Series C No. 125, paras. 131, 137, and 141; Case of the Sawhoyamaxa Indigenous Community. Merits,
Reparations and Costs, supra note 190, paras. 118, 121 and 131; Case of the Saramaka People. v. Suriname.
Preliminary Objections, Merits, Reparations, and Costs. Judgment of November 28, 2007. Series C No. 172, paras.
121, 122, 123, 126, 128 and 146.
193
Cf. European Court of Human Rights (ECHR), cases of Guerra and others v. Italy, (1998); Lopez Ostra v.
Spain, (1994), and Fadeyeva v. Russia (2005).
194
Cf. Resolutions OEA/Ser.P AG/RES. 1819 (XXXI-O/01) “Human Rights and the Environment,” approved at
the third plenary session held on June 5, 2001 (available at:
http://www.oas.org/juridico/spanish/ag01/agres_1819.htm
) AG/RES. 1896 (XXXII-O/02) “Human Rights and the
Environment in the Americas,” approved at the fourth plenary session held on June 4, 2002 (available at:
http://www.oas.org/juridico/spanish/ag02/agres_1896.htm
); and AG/RES. 1926 (XXXII-O/03) “Human Rights and
the Environment in the Americas,” approved at the fourth plenary session held on June 10, 2003 (available at:
http://www.oas.org/juridico/spanish/ag03/agres_1926.htm); AG/RES. 2349 (XXXVII-O/07) “Water, Health and
Human Rights,” approved at the fourth plenary session held on June 5, 2007 (available at:
http://www.oas.org/dil/esp/AG-RES_2349_XXXVII-O07.doc
), and AG/RES. 2429 (XXXVIII-O/08) “Human Rights
and Climate Change in the Americas,” approved at the fourth plenary session held on June 3, 2008 (available at:
http://www.oas.org/DIL/ESP/AGRES_2429.doc
).
195
Cf. Resolution 2005/60 adopted by the United Nations Commission on Human Rights, entitled “Human
rights and the environment as part of sustainable development,” approved on April 10, 2005,
E/CN.4/2005/L.10/Add.17 (available at: http://ap.ohchr.org/documents/S/CHR/resolutions/E-CN_4-RES-2005-
60.doc)
196
Cf. Constitution of the Argentine Republic, Article 41; Constitution of the Federative Republic of Brazil Art.
225; Constitution of the Republic of Chile, Art. 19(8); Constitution of the Republic of Colombia, Art. 79;
Constitution of the Republic of Ecuador, Art. 14; Constitution of Haiti, Arts. 253 and 254; Constitution of the United
Mexican States, Art. 4; Constitution of the Republic of Nicaragua, Art. 60; Constitution of the Republic of Panamá,
Arts. 118 to 121; Constitution of the Republic of Paraguay, Art. 7, Constitution of the Republic of Perú, Art. 2(22);
Constitution of the Bolivarian Republic of Venezuela, Art. 127.
45
These advances towards the development of human rights in the continent have been
incorporated into the Additional Protocol to the American Convention on Human Rights in the
Area of Economic, Social and Cultural Rights "Protocol of San Salvador.”
197
149. The recognition of the work in defense of the environment and its link to human
rights is becoming more prominent across the countries of the region, in which an increasing
number of incidents have been reported involving threats and acts of violence against and
murders of environmentalists owing to their work.
198
150. In the judgment rendered by this Court in the cases of Huilca-Tecse v. Peru and
Cantoral-Huamaní and García-Santa Cruz v. Peru, it was held that freedom of association
can only be exercised in a situation in which fundamental human rights are fully guaranteed
and respected, particularly those related to the life and safety of the individual.
199
In this
regard, the impairment of the right to life or to humane treatment attributable to the State
may, in turn, give rise to a violation of Article 16(1) of the Convention when such violation
arises from the victim’s legitimate exercise of the right to freedom of association.
200
151. As it has been established (supra paras. 50 to 52), at the time of death, Blanca
Jeannette Kawas-Fernández was the president of the PROLANSATE foundation, and in that
capacity she promoted the establishment of public policies on environmental protection in
the department of Atlántida, Honduras, as well as awareness regarding natural resource
preservation through education, and reported environmental degradation in the area. From
the uncontroverted evidence presented, particularly from the statement rendered by Mr.
Rafael Sambulá, former director of the foundation, on March 1, 1995, it is concluded that,
before she died, Blanca Jeannette Kawas-Fernández reported “the problems affecting the
protected areas” to the relevant authorities and the media[, …] “that individuals were
197
Cf. Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and
Cultural Rights, "Protocol of San Salvador,” which expressly recognizes the right of every human being to live in a
healthy environment (Article 11).
198
Cf. Inter-American Commission on Human Rights, Report No. 11/04 (admissibility), Petition 735/01,
Teodoro García-Cabrera and Rodolfo Montiel-Flores, Mexico, February 27, 2004; Report No. 63/04 (admissibility),
Petition 60/2003, Carlos Antonio Luna, Honduras, October 13, 2004; Report No. 58/06 (admissibility), Petition
1083/05, Erwin Haroldo Ochoa-López and Julio Armando Vásquez-Ramírez, Guatemala, July 20, 2006; Report No.
80/07 (Merits), Case 11.658, Martín Pelicó-Coxic, Guatemala, October 15, 2007. See also, among others, the
following cases involving alleged violations of human rights of defenders, namely: Report No. 16/98 (admissibility),
Case 11.324, Narciso González, Dominican Republic, March 3, 1998; Report No. 24/98 (Merits), Case 11.287, João
Canuto De Oliveira, Brazil, April 7, 1998; Report No. 45/01 (admissibility), Case 11.149, Augusto Alejandro Zúñiga-
Paz, Perú, March 5, 2001; Report No. 82/01 (admissibility), Case 12.000, Anibal Miranda, Paraguay, October 10,
2001; Report No. 14/02 (admissibility), Petition 12.352, Bruce Campbell Harris-Lloyd, Guatemala, February 28,
2002; Report No. 55/06 (admissibility), Petition 12.380, Members of José Alvéar Restrepo Lawyers’ Collective,
Colombia, July 20, 2006; Report No. 53/07 (admissibility), Petition 1193.03, María Nicolosa García-Reynoso,
Mexico, July 24, 2007, and Report on the situation of human rights defenders in the Americas, March 2006, para.
220. See also, Report submitted by Ms. Hina Jilani, Special Representative of the Secretary-General on the
situation of human rights defenders. A/HRC/4/37 January 24, 2007, para. 40. (Defenders working on land rights,
natural resources or environmental issues seem to be particularly vulnerable to attacks and violations of their
rights under the Declaration on Human Rights Defenders in countries of Latin America and in parts of Asia); and
Amnesty International. Persecution and Resistance. The Experience of Human Rights Defenders in Guatemala and
Honduras. August 2007, AI Index: AMR 02/001/2007 (record of appendixes to the brief of requests and
arguments, appendix J, folio 1637).
199
Cf. Case of Huilca-Tecse. Merits, Reparations and Costs, supra note 183, para. 75; and Case of Cantoral-
Huamaní and García-Santa Cruz. Preliminary Objection, Merits, Reparations and Costs, supra note 183, para. 146.
200
Cf. García-Santa Cruz. Preliminary Objection, Merits, Reparations and Costs, supra note 183, para. 147.
46
invading the core zone of the [Punta Sal National] Park and [that] others were mucking it
out”; the witness also stated that as a result of a complaint filed with the Corporación
Hondureña de Desarrollo Forestal (National Corporation for Forestry Development, AFE-
COHDEFOR) by the PROLANSATE foundation, “the national authorities […] terminated [a
timber extraction] contract.”
201
152. In Chapter VII, the Court held that it had been established that at least one agent of
the State had been involved in the events that ended the life of Blanca Jeannette Kawas-
Fernández, and that such acts were motivated by Ms. Kawas-Fernández’s work in defense of
the environment through the PROLANSATE foundation, especially in retaliation for reporting
and opposing the exploitation of natural resources of certain protected areas in the
municipality of Tela. It is the Court’s view that her death, evidently, resulted in the
deprivation of her right to associate freely with others.
153. As found in other cases,
202
it is undeniable that these circumstances have also had
an intimidating effect
203
on other people who are engaged in the defense of the environment
in Honduras or that are related to this type of causes. This intimidating effect is reinforced
and exacerbated by the fact that the crime remains unpunished (supra para. 68).
154. Furthermore, in the case sub judice, it has been established that during the decade
following the death of Blanca Jeannette Kawas-Fernández, five people lost their life as a
result of their work in defense of natural resources and the environment in Honduras
204
(supra para. 69).
201
Cf. statement rendered by Rafael Sambulá on March 1, 1995, supra note 31, and communication of
February 28, 1996 from the executive director and coordinator of the “Vida y Naturaleza” (Life and Nature) radio
show, broadcast on Radio América, supra note 32. It should be noted that the decree creating Punta Sal National
Park established a system for the management and stewardship of the land comprising the national park which
prohibits its use “for purposes other than conservation.” Article 5 of the Decree No. 154-94 provides that “for
management and stewardship purposes, Punta Sal National Park shall comprise main areas that can meet the park
management objectives [...] a) Core zone, [...] is comprised of natural areas with minimum man-made alterations
that contains unique and fragile ecosystems, species of flora and/or fauna and/or natural phenomena which
deserve full protection for scientific purposes of environmental control. No change to or alteration of the ecosystem
shall be permitted. […] b) Buffer zone: special resources or habitats must be surrounded by a section of land that
acts as a barrier to external impacts. This zone must be broad enough to absorb chemical and physical stressors,
such as air, soil or water pollution, fires, illegal hunting, uncontrolled tourism, and noise. […] The management of
the park shall have the authority to approve or reject any form of economic development in this zone.” In
accordance with Section 14 of the aforesaid decree, the Park’s management that includes a representative of the
PROLANSATE foundation, among others has “the authority to make a decision regarding any form of development
to be built in the protected areas” and may “approve or reject any form of economic development” in the buffer
zone of the Park. Cf. Decree No. 154-94, supra note 28.
202
Cf. García-Santa Cruz. Preliminary Objection, Merits, Reparations and Costs, supra note 183, para. 147.
203
Cf. statement rendered by Rafael Sambulá before the Inter-American Court, supra note 25. In his
statement, the witness said that “initially, there was a great deal of agitation and fear among all the personnel
working for the foundation; the relatives urged the co-workers to be careful because what happened to Jeannette
could happen to us; she was a very responsible person and that she instilled a lot of confidence in the organization
and that in the people who helped and supported us [...].”
204
In 1996, Carlos Escaleras, popular leader of the Honduran Aguán Valley was killed; Carlos Luna,
environmental activist, was murdered in 1998; Carlos Flores, community leader and environmental activist of
Olancho was killed in 2001, and Heraldo Zúñiga and Roger Iván Cartagena, members of the Olancho Environmental
Movement (MAO) were murdered in 2006. Cf. Official Letter No. FEDH-575-2008 of July 2, 2008, supra note 78.
47
155. Therefore, the Court finds that the State is responsible for the violation of the right
to freedom of association provided for in Article 16(1) of the American Convention, in
relation to Article 1(1) thereof, to the detriment of Blanca Jeannette Kawas-Fernández.
X
REPARATIONS
(APPLICATION OF ARTICLE 63(1) OF THE AMERICAN CONVENTION)
156. It is a principle of International Law that any violation of international obligations
which causes damage purports the duty to make adequate reparations.
205
Based on Article
63(1) of the American Convention, the Court has adopted decisions in this regard.
206
157. Considering the partial acknowledgment of liability made by the State, the
considerations on such acknowledgment and the violations to the American Convention
declared in the previous chapters, in the light of the criteria established in the Court’s
judicial precedents with regard to the nature and scope of the obligation to repair,
207
the
Court will proceed to analyze the demands presented by the Commission and the
representatives, as well as the allegations of the State, in order to determine the measures
aimed at repairing the damage caused to the victims.
A) Injured Party
158. The representatives requested the Court to consider Mrs. Blanca Jeannette Kawas-
Fernández as beneficiary of the right to reparation in her capacity as direct victim of the
violations alleged in the instant case. Furthermore, they identified as victims and
beneficiaries of the reparations “[her] closest relatives, due to the violations they suffered
throughout the years,” to wit: Blanca Fernández, mother; Jacobo Kawas-Cury, deceased
father; Jaime Alejandro Watt-Kawas, son; Selsa Damaris Watt-Kawas, daughter; Carmen
Marilena Kawas-Fernández, sister; Jacobo Roberto Kawas-Fernández, brother, and Jorge
Jesús Kawas-Fernández, brother. Similarly, the Commission identified the relatives of Mrs.
Blanca Jeannette Kawas-Fernández, including Mr. James Gordon Watt (alleged husband), as
beneficiaries of the requested reparations.
159. The State did not file any challenge to the list of beneficiaries proposed by the
representatives and the Commission, but “f[ound] the relationships […] should be proven
through the appropriate documents” (supra para. 28). In that regard, the State accepted
“to provide reparation to the individuals to be designated in the appropriate Judgment as
entitled to reparation for pecuniary and non-pecuniary damage”.
205
Cf. Case of Velasquez-Rodriguez V. Honduras. Reparations and Costs. Judgment of July 21, 1989. Series C
No. 7, para. 25; Case of Ríos et al. Preliminary Objections, Merits, Reparations and Costs, supra note 10, para 395;
and Case of Perozo et al. Preliminary Objections, Merits, Reparations and Costs, supra note 10, para 404.
206
Article 63(1) of the Convention states that:
[i]f the Court finds that there has been a violation of a right or freedom protected by [this] Convention, the Court
shall rule that [the] party harmed be ensured the enjoyment of his right or freedom that was violated. It shall also
rule, if appropriate, that the consequences of the measure or situation that constituted that breach of such a right
or freedom be remedied and that fair compensation be paid to the injured party.
207
Cf. Case of Velásquez-Rodríguez. Reparations and Costs, supra note 205, paras. 25 to 27; Case of Ríos et
al. Preliminary Objections, Merits, Reparations and Costs, supra note 10, para. 397; Case of Perozo et al.
Preliminary Objections, Merits, Reparations and Costs, supra note 10, para. 406.
48
160. This Court restated that those individuals who have been declared victims of
violations of any of the rights enshrined in the Convention will be deemed injured parties
(supra para. 27). Consequently, based on the determinations made in the preceding
paragraphs, the Court finds that the individuals listed below must be considered “injured
parties”: Blanca Jeannette Kawas-Fernández, Jacobo Kawas-Cury, Blanca Fernández, Jaime
Alejandro Watt-Kawas, Selsa Damaris Watt-Kawas, Jacobo Roberto Kawas-Fernández, Jorge
Jesús Kawas-Fernández and Carmen Marilena Kawas-Fernández. The aforementioned
individuals will be the beneficiaries of the reparations to be awarded by the Tribunal.
161. Mr. James Gordon Watt cannot be considered an injured party in the instant case
because he has not been declared victim of a violation of any right enshrined in the
Convention (supra para. 119).
B) Compensation
1) Pecuniary damage
162. In its judicial precedents, the Court has developed the concept of pecuniary damage
and the situations in which it must be redressed.
208
163. In the instant case, the Inter-American Commission requested the Court to order the
State to “provide full reparation to the relatives of Mrs. Blanca Jeannette Kawas-Fernández,
including […] the pecuniary […] aspect, as a result of the human rights violations suffered”.
In this sense, the Inter-American Commission requested payment of a compensation for
consequential damage and loss of earnings. The representatives also requested
compensations for such items.
164. Below, the Court will establish the compensations to be paid for this item based on
the violations recognized in the instant Judgment, taking into account the specific
circumstances of the case, the evidence submitted by the parties and their allegations.
1.i) “Consequential damage”
165. The Commission held that “the relatives of the victim made significant economic
efforts to seek justice in domestic courts and to overcome the physical, psychological and
moral trauma sustained as a result of the acts of the State of Honduras". Therefore, it
requested the Court to establish, on equitable basis, the amount of the appropriate
compensation.
166. Furthermore, the representatives requested payment of a compensation for any
expenses incurred as a result of the violations, to wit: Blanca Fernández, Jaime Alejandro
and Selsa Damaris Watt-Kawas, and Carmen Marilena Kawas-Fernández, “who were in the
United States at the time of the murder [and] were forced to travel immediately to
Honduras, incurring a series of expenses in transportation, accommodation and food[, and
that even though] the family does not have the corresponding vouchers, those expenses are
208
This Court has sustained that pecuniary damage involves a “loss of, or detriment to, the income of the
victims, the expenses incurred as a result of the events and the pecuniary consequences that may have a cause-
effect link with the events in the instant case”. Cf. Case of Bámaca-Velásquez V. Guatemala. Reparations.
Judgment of February 22, 2002, para. 43; Case of Ríos et al. Preliminary Objections, Merits, Reparations and
Costs, supra note 10, para. 396; and Case of Perozo et al. Preliminary Objections, Merits, Reparations and Costs,
supra note 10, para. 405.
49
estimated in the approximate amount of eight thousand United States dollars”.
Furthermore, the representatives requested payment of the expenses incurred by Mr.
Jacobo Kawas-Fernández and “the family”, in order to give “proper burial to the victim”, and
any expenses personally incurred by the latter for the purposes of investigating the death of
his sister. The representatives requested the Court to establish the amount of the
compensation for this item, on an equitable basis.
167. The State filed no specific allegation on this matter.
168. The various statements rendered during the proceedings in the instant case show
that Mrs. Selsa Damaris Watt-Kawas, Mrs. Blanca Fernández and Mrs. Carmen Marilena
Kawas-Fernández were in the United States of America at the time Mrs. Blanca Jeannette
Kawas-Fernández was deprived of her life.
209
That notwithstanding, contrary to the
allegations of the representatives and in accordance with his own statement, Mr. Jaime
Alejandro Watt-Kawas was in Tegucigalpa, Honduras, at that time.
210
The Court finds it
reasonable to believe that such individuals incurred certain expenses to travel to the city of
Tela, Honduras, in order to attend the funeral of Blanca Jeannette Kawas-Fernández. In the
case of her children Selsa Damaris and Jaime Alejandro Watt-Kawas, such expenses were
covered, according to their statements, by “[their] grandfather [and] their mother’s
siblings.”
211
169. Moreover, the body of evidence shows that the members of the family of the Blanca
Jeannette Kawas-Fernández contributed various economic and physical resources, and
logistic support to promote the investigation initiated by the authorities.
212
In that regard,
Mr. Jorge Jesús Kawas-Fernández and Mr. Jaime Alejandro Watt-Kawas agreed on their
statements upon stating that “[the] family acted […] in support of the investigations […]
under the instructions of […] Jacobo [Kawas-Fernández]”.
213
Also, Mr. Jorge Jesús Kawas-
Fernández acknowledged that “[a]ll expenses incurred upon the investigation were borne by
[his] brother Jacobo, who covered such expenses with the income obtained from [his]
father’s real estate business”.
214
Furthermore, he stated that the estimated expenses
incurred totaled “six thousand United States dollars for food, fuel, accommodation and
209
Cf. statement rendered before a notary public (affidavit) by Mrs. Selsa Damaris Watt-Kawas on October
28, 2008, supra note 171; statement rendered before a notary public (affidavit) by Mr. Jorge Jesús Kawas-
Fernández on October 30, 2008, supra note 168; and, statement of Mr. Jacobo Kawas-Fernández rendered before
the Inter-American Court, supra note 25.
210
Cf. statement rendered before a notary public (affidavit) by Mr. Jaime Alejandro Watt-Kawas on November
4, 2008, supra note 166, and statement rendered before a notary public (affidavit) by Mrs. Selsa Damarais Watt-
Kawas on October 28, 2008, supra note 171.
211
Cf. statement rendered before a notary public (affidavit) by Mr. Jaime Alejandro Watt-Kawas on November
4, 2008, supra note 166, and statement rendered before a notary public (affidavit) by Mrs. Selsa Damaris Watt-
Kawas on October 28, 2008, supra note 171.
212
Cf. Statement rendered before a notary public (affidavit) by Mr. Jorge Jesús Kawas-Fernández on October
30, 2008, supra note 168, statement rendered by Mr. Jaime Alejandro Watt-Kawas, on November 4, 2008, supra
note 166, and statement rendered by Mr. Jacobo Kawas-Fernández before the Inter-American Court, supra note
25.
213
Cf. Statement rendered before a notary public (affidavit) by Mr. Jaime Alejandro Watt-Kawas, on
November 4, 2008, supra note 166, and statement rendered before a notary public (affidavit) by Mr. Jorge Jesús
Kawas-Fernández on October 30, 2008, supra note 168.
214
Cf. Statement rendered before a notary public (affidavit) by Mr. Jorge Jesús Kawas-Fernández on October
30, 2008, supra note 168.
50
traveling, both for the different investigation teams that worked on the case and the various
individuals who provided information on the case […]”.
215
As regards the possible
disbursement of funds on this account (supra para. 113), it has been proven in the records
that in November 2003, the Coordinator of the Attorney General’s Office sent a letter to the
hearing Judge, stating that “[t]he agents initiated their work in the afternoon [on October
29, 2003], but first they warned the Prosecutor’s Office that had to coordinate their stay in
the city because they had not been assigned traveling expenses, [and], for that reason, Mr.
Jacobo Kawas [...] was contacted, and he offered an apartment and HNL 1,000.00 for them
to work.”
216
The Court finds that the family of the Blanca Jeannette Kawas-Fernández
effectively incurred certain expenses as detailed above, which were borne directly by Mr.
Jacobo Kawas-Fernández.
170. Furthermore, it has been stated in the records that Mr. Jacobo Kawas-Cury, father of
Mrs. Blanca Jeannette Kawas-Fernández, and her siblings, made certain disbursements as a
result of her funeral.
217
171. Based on the considerations above, the Court establishes, on an equitable basis, the
following amounts for the items specified below: USD$ 600.00 (six hundred United States
dollars) to the benefit of Mrs. Blanca Fernández for traveling expenses to attend her
daughter’s funeral, and USD$ 600.00 (six hundred United States dollars) to the benefit of
Mrs. Carmen Marilena Kawas-Fernández for the same purpose.
172. Moreover, the Court establishes, on an equitable basis, the amount of USD$ 800.00
(eight hundred United States dollars) for traveling expenses to attend the funeral of Mrs.
Blanca Jeannette Kawas-Fernández to her children Selsa Damaris and Jaime Alejandro, and
USD$ 300.00 (three hundred United States dollars) for expenses incurred in the funeral of
Mrs. Blanca Jeannette Kawas-Fernández. Such amounts must be delivered to Mr. Jacobo
Kawas-Fernández, who will, in turn, deliver the appropriate amounts to the relatives
specified in the Judgment who timely incurred the aforementioned expenses. In accordance
with the precedents of this Court,
218
the amount corresponding to Mr. Jacobo Kawas-Cury –
who passed away- must be distributed equally to his children, taking into account that at
the time of his death he was separated from Mrs. Blanca Fernández.
219
215
Cf. statement rendered before a notary public (affidavit) by Mr. Jorge Jesús Kawas-Fernández on October
30, 2008, supra note 168.
216
Cf. official communication of November 5, 2003, signed by Licenciado Luis Javier Santos-Cruz, Coordinator
of the Attorney General’s Office of the City of Tela, supra note 137.
217
Cf. statement rendered before a notary public (affidavit) by Mrs. Selsa Damaris Watt-Kawas on October
28, 2008, supra note 171; statement rendered before a notary public (affidavit) by Mr. Jorge Jesús Kawas-
Fernández on October 30, 2008, supra note 168; statement rendered before a notary public (affidavit) by Mr.
Jaime Alejandro Watt-Kawas on November 4, 2008, supra note 166, statement of Mr. Jacobo Kawas-Fernández
rendered before the Inter-American Court, supra note 25.
218
Cf.Case of Myrna Mack-Chang. Merits, Reparations and Costs, supra note 8, para. 294; Case of Ticona-
Estrada et al. Merits, Reparations and Costs, supra note 8, para. 182; and Case of Valle-Jaramillo et al. Merits,
Reparations and Costs, supra note 10, para. 245.
219
Cf. statement rendered before a notary public (affidavit) by Mr. Jorge Jesús Kawas-Fernández on October
30, 2008, supra note 168, and statement rendered by Mr. Jacobo Kawas-Fernández before the Inter-American
Court, supra note 25.
51
173. Lastly, the Court establishes, on an equitable basis, the amount of USD$ 1,000.00
(one thousand United States dollars) to the benefit of Mr. Jacobo Kawas-Fernández, for the
expenses incurred upon the investigation of the events in the instant case.
1.ii) Loss of earnings
174. The Commission requested the Court to establish, on an equitable basis, the amount
of the compensation payable for “loss of profits”.
175. The representatives held that Mrs. Blanca Jeannette Kawas-Fernández had a
professional diploma in Commerce and Accounting (“Perito Mercantil y Contador Público”),
but was mainly involved in the management of the family’s businesses” and that at the time
of her death she was “49 years old”. Furthermore, the representatives stated that “[i]n
accordance with the report issued by the National Statistics Institute of Honduras (Instituto
Nacional de Estadística de Honduras), life expectancy for women upon birth in this country
can be established at 75.3 years […], thus leading to infer that, in ordinary conditions, Mrs.
Kawas could have lived an average of 26 years more”. Furthermore, the representatives
stated that Mrs. Kawas “earned a monthly salary of HNL 20.000, equivalent to USD$
1.050.00”. Additionally, the representatives stated that “the legislation of Honduras
contemplates two additional monthly salaries per year […] as a means for social
compensation” pursuant to legal terms and conditions. Based on the above, the
representatives requested that the State be ordered to provide compensation to the victim
in the amount of “USD$ 303,849.00 [three hundred three thousand, eight hundred forty-
nine United States dollars]”, obtained from multiplying the aforementioned monthly amount
and two additional monthly salaries by the 26-year life expectancy remainder, plus a 6%
interest for loss of earnings, less 25% for expenses that the victim would have incurred had
she been alive; the "total amount that [should] be paid by the State of Honduras to the
relatives of the victim as compensation for loss of earnings”.
176. For the purposes of proving the level of income of Mrs. Blanca Jeannette Kawas-
Fernández, the State submitted as documentary evidence her annual income tax return for
the year 1994,
220
the year immediately preceding that of her death, “in order for the […]
Court to have sufficient evidence to establish the appropriate pecuniary damage”. The
representatives did not object to the validity or authenticity of such evidence.
177. The Court finds that the aforementioned annual income tax return reflects annual
income for Mrs. Kawas-Fernández in the amount of HNL 52,000.00 (fifty-two thousand), i.e.
approximately HNL 4333.33 (four thousand three hundred and thirty-three and thirty-three
cents) per month.
178. Based on the considerations above, and given the time elapsed since Mrs. Blanca
Jeannette Kawas-Fernández was deprived of her life and her probable life expectancy, the
Court orders the State to pay, on an equitable basis, the amount of USD$ 70,000.00
[seventy thousand United States dollars], which, pursuant to applicable judicial precedents
(supra para. 162), should be distributed equally to her children.
2) Non-pecuniary damage
220
Cf. annual income tax return of January 27, 1995 (record of appendixes to the answer to the application,
volume 3, appendix B, folio 2608).
52
179. Based on its precedents, the Court has established various methods to provide for
reparation for non-pecuniary damage sustained.
221
180. The Commission requested the Court to establish, on an equitable basis, the amount
of the compensation to be paid for non-pecuniary damage as a result of the "suffering
endured by the relatives of the victim due to lack of an efficient investigation of the events
and adequate punishment of those responsible, among other things”.
181. Furthermore, the representatives indicated that “it is evident that the relatives of
Mrs. Blanca Jeannette Kawas-Fernández suffered considerably as a result of her death”. In
that regard, they requested the Court to establish compensation considering “the pain
caused given the violent and sudden nature of the victim's death [;] [as] this event took
place while most of her relatives [were] out of Honduras[;] and that [t]he anguish feeling
increased as result of the frustration and defenselessness for having her murder go
unpunished”. The representatives also requested the Court to consider that her death
originated in her capacity as environmental activist”.
182. The State did not submit specific allegations in that regard.
183. In Chapters VII and VIII of this Judgment, the Court concluded that the manner and
circumstances in which Mrs. Blanca Jeannette Kawas-Fernández was murdered, and failure
by Government authorities to investigate that event as well as the inefficacy of the
measures adopted to clarify the events and, if applicable, punish those responsible therefor,
have affected the moral and psychological health of the late Jacobo Kawas-Cury, Blanca
Fernández, Selsa Damaris and Jaime Alejandro Watt-Kawas, Jacobo Roberto Kawas-
Fernández, Jorge Jesús Kawas-Fernández and Carmen Marilena Kawas-Fernández, all of
them relatives of Mrs. Blanca Jeannette Kawas-Fernández.
184. Judgments whereby violations of rights are acknowledged, pursuant to repeated
international precedents, constitute in and of themselves a form of reparation.
222
That
notwithstanding, given the circumstances of the instant case, the Court finds that it is
appropriate to order payment of a compensation, assessed on an equitable basis, for non-
pecuniary damage sustained by the relatives of Mrs. Blanca Jeannette Kawas-Fernández,
who are considered victims of violations of the rights enshrined in Articles 5(1), 8(1) and
25(1) of the American Convention, in relation to Article 1(1) thereof (supra paras. 117 to
119 and 131 to 139). Based on the considerations above, the Court orders the State to pay
the amount of USD$ 20,000.00 (twenty thousand United States dollars) to the benefit of
each of Selsa Damaris and Jaime Alejandro Kawas-Fernández; the amount of USD$
221
Non pecuniary damage may include distress and suffering caused directly to the victim or its relatives,
tampering with individual core values, and changes of a non pecuniary nature in the victim's or relatives' everyday
life. Given that it is impossible to assess the value of the non pecuniary damage sustained in a precise equivalent in
money, […] compensation may be made effective by paying an amount of money or by delivering property or
services whose value may be established in money, as the Court may reasonably determine […] based on equitable
standards; and on the other hand by public actions or works aimed at acknowledging the victim's dignity and
avoiding new human rights violation. Cf. Case of Neira Alegría v. Perú. Reparations and Costs. Judgment of
September 19, 1996. Series C No. 29, para. 57; Case of the “Street Children” (Villagrán-Morales et al.) V.
Guatemala. Reparations and Costs. Judgment of May 26, 2001. Series C No. 77, para. 84; Case of Ríos et al.
Preliminary Objections, Merits, Reparations and Costs, supra note 10, para. 396, and Case of Perozo et al.
Preliminary Objections, Merits, Reparations and Costs, supra note 10, para. 405.
222
Cf. Case of Neira Alegría et al v. Perú. Reparations and Costs. Judgment of September 19, 1996. Series C
No. 29, para. 56; Case of Ríos et al. Preliminary Objections, Merits, Reparations and Costs, supra note 10, para.
403; and Case of Perozo et al. Preliminary Objections, Merits, Reparations and Costs, supra note 10, para. 413.
53
20,000.00 (twenty thousand United States dollars) to the benefit of Mrs. Blanca Fernández
and Mr. Jacobo Kawas-Kury, each; USD$ 10,000.00 (ten thousand United States dollars) to
the benefit of Jacobo Kawas-Fernández and, the amount of USD$ 5,000.00 (five thousand
United States dollars) to the benefit of Mrs. Carmen Marilena and Mr. Jorge Jesús, both
bearing the surname Kawas-Fernández, each. The amount corresponding to Mr. Jacobo
Kawas-Kury must be paid in equal parts to his children.
185. Moreover, as previously held by the Court,
223
in cases such as the instant case, the
non-pecuniary damage inflicted upon the victim is evident. In this regard, and even though
no request has been made to this effect by the Commission or the representatives, the
Court has decided to order the State to pay compensation in the amount of USD$ 50,000.00
(fifty thousand United States dollars) on account of the moral damage sustained by Blanca
Jeannette Kawas-Fernández. Said amount shall be paid in full and in equal parts to the
victim’s children Selsa Damaris and Jaime Alejandro Watt-Kawas.
*
* *
186. The State shall pay these compensations for pecuniary and non-pecuniary damage
directly to their beneficiaries within one year from the date of service of this Judgment, in
accordance with infra paras. 221 to 225.
*
* *
C) Obligation to investigate the facts that resulted in violations in the instant
case, and to identify, prosecute and, as the case may be, punish those responsible
187. The Inter-American Commission requested the Court to order the State: a) to
expeditiously conduct a full, impartial and effective judicial investigation intended to
establish the circumstances in which Mrs. Blanca Jeannette Kawas-Fernández was killed,
identify all persons involved in her death at the various decision-making and execution
stages, and impose the appropriate punishment; and b) to expeditiously conduct a full,
impartial and effective judicial investigation into the obstructions of justice that took place in
the proceeding concerning the murder of Mrs. Blanca Jeannette Kawas-Fernández. The
Commission argued that the State is required to comply with its obligations to “investigate
the facts and make known those which can be sufficiently established; […] prosecute and
punish those responsible therefor; [and] remove from the security forces anyone who has
been proven to have committed, ordered or tolerated such abuses […].” In its final written
arguments, the Commission put emphasis on “the State’s obligation to remove all such
factual and legal obstacles as may hinder the exhaustive judicial clarification of the human
rights violations committed in the instant case.”
188. The representatives requested the Court to order the State to “[i]nvestigate,
prosecute and punish those responsible for planning and carrying out the execution of
Jeannette Kawas, as well as those who committed irregularities and omissions in the
223
Cf. Case of Myrna Mack-Chang. Merits, Reparations and Costs, supra note 8, para. 260; Case of Carpio-
Nicolle et al. V. Guatemala. Merits, Reparations and Costs. Judgment of November 22, 2004. Series C No. 117,
para. 117; Case of Zambrano-Vélez et al. Merits, Reparations and Costs, supra note 87, para. 142; and Case of
Huilca-Tecse. Merits, Reparations and Costs, supra note 183, para. 97.
54
relevant judicial proceeding, thus causing the violations in this case to remain unpunished.”
In this regard, they noted that “[i]t is evident that being an environmentalist in Honduras
entails high risk. An environmentalist’s work becomes increasingly dangerous every day.
The impunity surrounding the case of Kawas opened the door to a context of violence
targeting environmentalists, with the State failing to effectively take preventive and
investigative measures, in addition to the judicial officers’ failure to act on their own
motion.” The representatives requested the Court that “[the victims] be allowed full access
and recognized the standing to act at all procedural stages, in accordance with domestic law
and the American Convention[,] [that the] outcome of the investigation [be] made publicly
known and widely publicized in order that it is known by the Honduran society, [and that]
the State of Honduras be ordered to refrain from resorting to procedural obstacles such as
amnesty, the statute of limitations or any other mechanism intended to promote the
exclusion of liability of those involved in the facts.”
189. In Chapter VII of this Judgment, the Court established that about 14 years have
elapsed since Mrs. Blanca Jeannette Kawas-Fernández was deprived of her life. It was
further established that the body of evidence contains sufficient elements indicating that
state agents were involved in these events. The measures taken domestically in this regard
have not amounted to an effective recourse to guarantee true access to justice for the next
of kin of Mrs. Blanca Jeannette Kawas-Fernández within a reasonable period of time,
including the clarification of the facts of her murder, the investigation of the acts of
obstruction, and, as the case may be, the punishment of all persons responsible and
reparation of the violations (supra paras. 117 and 118).
190. The Court repeats that the State is required to fight such impunity by all means
available, as impunity fosters the chronic repetition of human rights violations and renders
victims -who have a right to know the truth of the facts- completely defenseless.
224
The
acknowledgment and exercise of the right to know the truth in a specific situation represent
a means of reparation. Therefore, in the instant case, the right to know the truth creates in
the victims a legitimate expectation that must be satisfied by the State.
225
The guarantee
obligation enshrined in Article 1(1) of the American Convention entails the duty of the
States Parties to the Convention to organize the governmental apparatus and, in general, all
the structures through which public authority is exercised in a manner such that they may
ensure, in legal terms, the free and full exercise of human rights.
226
191. Considering the above, as well as the Court’s case law,
227
the Court orders that the
State is to effectively conduct the criminal proceedings that are currently pending in
connection with both the murder of Mrs. Blanca Jeannette Kawas and the hindering of the
224
Cf. Case of Velásquez-Rodríguez. Merits, supra note 17, para. 174; Case of La Rochela Massacre, Merits,
Reparations and Costs, supra note 87, para. 289; and Case of Heliodoro-Portugal. Preliminary Objections, Merits,
Reparations and Costs, supra note 123, para. 244.
225
Cf. Case of Velásquez-Rodríguez. Merits, supra note 17, para. 181; Case of Heliodoro-Portugal.
Preliminary Objections, Merits, Reparations and Costs, supra note 123, para. 244; and Case of Tiu Tojin. Merits,
Reparations and Costs, supra note 96, para. 103.
226
Cf. Velásquez-Rodríguez. Merits, supra note 17, para. 166; Case of Ríos et al. Preliminary Objections,
Merits, Reparations and Costs, supra note 10, para. 137, and Case of Perozo et al. Preliminary Objections, Merits,
Reparations and Costs, supra note 10, para. 149.
227
Cf. Case of Baldeón-García v. Perú. Merits, Reparations and Costs. Judgment of April 6, 2006. Series C No.
147, para. 199; Case of Ríos et al. Preliminary Objections, Merits, Reparations and Costs, supra note 10, para.
404; and Case of Perozo et al. Preliminary Objections, Merits, Reparations and Costs, supra note 10, para. 414.
55
proper investigation thereof, as well as such other proceedings as may be instituted to
establish responsibility for the facts of the instant case, and effectively enforce the legally-
prescribed consequences. The State must institute and complete the relevant investigations
and proceedings within a reasonable period of time, to establish the truth of the facts.
192. The Court notes that, in compliance with its obligation to investigate and, if
appropriate, punish those responsible for the facts, the State must remove all factual and
legal obstacles hindering their proper investigation, and use all means available to expedite
such investigation and the relevant proceedings with a view to preventing the recurrence of
facts such as those of the instant case.
193. Moreover, it has been established that various witnesses related to the events of the
instant case have been threatened, and that one such witness is a beneficiary of the
provisional measures ordered by this Court in the course of the proceeding before it (supra
paras. 15 and 16). Accordingly, based on the body of evidence in this case, the State must
apply its domestic law to provide effective protection to any witnesses of the events related
to the murder of Mrs. Blanca Jeannette Kawas-Fernández and offer guarantees to any
person who may wish to testify. The State must guarantee the enforcement of any and all
orders issued by a competent authority restricting or limiting any contact between said
witnesses and the parties who are likely to be responsible for the facts and take the
necessary measures should such orders not be observed. Also, the State must, in a fully
diligent manner and within a reasonable period of time, process and fully deal with any
complaint of coercion, intimidation or threats made by the witnesses in the domestic
proceedings and take all legally prescribed measures for their investigation. Additionally, as
established in this Judgment, the State must guarantee that the prosecutors and other
officers in charge of the investigation and proceeding concerning the murder of Mrs. Blanca
Jeannette Kawas-Fernández have adequate resources, including, without limitation,
economic and logistic resources, and the required protection to move the investigation of
and proceeding concerning the facts of the instant case forward.
194. Based on the Court’s case law,
228
the State must ensure that the victims are given
full access and recognized the standing to act at all stages of such domestic investigations
and proceedings, such that they are allowed to submit claims, receive information, provide
evidence, make arguments and, basically, assert and enforce their interests. The goal of
such involvement must be to have access to justice, to know the truth of the facts and to
secure just reparation. Additionally, the outcome of the proceeding must be publicized in
order that the Honduran society may be made aware of the judicial determination of the
facts and the parties responsible therefore in the instant case.
229
195. Considering the above, the Court finds it appropriate to order the State, pursuant to
paragraph 226 of this Judgment, to provide specific information on the following issues: a)
the status of the criminal files that are currently open concerning the murder of Mrs. Blanca
Jeannette Kawas-Fernández and the obstruction of the related investigations; b) the
measures adopted to provide the agents in charge of the investigation with the necessary
228
Cf. Case of the Caracazo v. Venezuela. Reparations and Costs. Judgment of August 29, 2002. Series C No.
95, para. 118; Case of Bayarri. Preliminary Objection, Merits, Reparations and Costs, supra note 135, para. 176;
and Case of Valle-Jaramillo et al. Merits, Reparations and Costs, supra note 10, para. 233.
229
Cf. Case of Las Palmeras V. Colombia. Reparations and Costs. Judgment of November 26, 2002. Series C
No. 96, para. 67; Case of Heliodoro-Portugal. Preliminary Objections, Merits, Reparations and Costs, supra note
123, para. 247; and Case of Valle-Jaramillo et al. Merits, Reparations and Costs, supra note 10, para. 233.
56
resources to carry out their work, as well as such measures of protection as may be
ordered, if any; c) the measures of protection ordered for the benefit of the witnesses, and
d) any substantive progress made in the relevant investigations and proceedings.
D) Measures of satisfaction and guarantees of non-repetition
196. In this regard, the State claimed it would “comply with such measures as the
Honorable Court may order in this regard.”
1) Publication of the relevant parts of this Judgment
197. The Commission requested the Court to order the State “to publish the judgment to
be rendered by the Court in the printed and broadcast media.”
198. Furthermore, the representatives requested the Court “the publication of the whole
Judgment both in the Official Gazette and in two newspapers of major circulation in
Honduras […], once in each.”
199. As ordered in previous cases,
230
the State shall make a one-time publication, in the
Official Gazette and in another major nationwide circulation newspaper, of paragraphs 1 to
8; 17 to 35; 45 to 155; and 189 to 195 of this Judgment, footnotes excluded, and the
operative section of this Judgment. Such publication shall be made within six months from
notice of this Judgment.
2) Public acknowledgment of international responsibility
200. The Commission requested that the Court order the State “[to hold] a ceremony of
public acknowledgement of its international responsibility for the damage caused and
violations committed, in a decent and significant manner as required by the goal of
reparations, in consultation with the victim’s next of kin and their representatives.”
201. Moreover, the representatives requested the Court to order the State “to carry out a
public acknowledgment of responsibility […] at which the State’s highest authority will
apologize not only to the next of kin of Mrs. Blanca Jeannette Kawas-Fernández but also to
the next of kin of all environmentalists who suffered human rights violations subsequently
to the killing of Kawas.” Moreover, they requested that such acknowledgment be made “at a
highly busy site in the city of Tela, [and be] covered [by] the main national media, [with]
the members of the Kawas family being given a key role, should they so desire.” In
addition, the representatives asked that “the State of Honduras prepar[e] a written
document acknowledging its international responsibility and [offering its] apologies to the
Kawas family […] Such document is to be a full page long and published in the printed
medium with the largest national circulation.”
202. The Court has already stated in this Judgment that the State’s acknowledgment of
responsibility constitutes a positive contribution to this proceeding and to the application of
the principles that inspire the American Convention (supra para. 32). However, in order for
it to be fully effective, it is the Court’s view that the State must carry out a public
230
Cf. Case of Cantoral-Benavides v. Perú. Reparations and Costs. Judgment of December 3, 2001. Series C
No. 88, para. 79; Case of Ríos et al. Preliminary Objections, Merits, Reparations and Costs, supra nota 10, para.
405, and Case of Perozo et al. Preliminary Objections, Merits, Reparations and Costs, supra note 10, para. 415.
57
acknowledgment of responsibility concerning the facts of the instant case, to honor the
memory of Mrs. Blanca Jannette Kawas-Fernández. During such public acknowledgment,
reference must be made to the human rights violations established in this Judgment. Also,
the acknowledgment shall be made via a public ceremony to be attended by State
authorities. The State shall guarantee the participation of those next of kin of Mrs. Blanca
Jeannette Kawas-Fernández who have also been declared victims by this Court and may so
desire. The specifics of such public ceremony must be subject to prior and proper
consultation with the next of kin of Mrs. Kawas-Fernández. The State shall have a period of
one year to comply with this obligation.
203. As regards the representatives’ request that the State prepare a written document
acknowledging its international responsibility and apologizing to the next of kin of Mrs.
Blanca Jeannette Kawas-Fernández, and to have such document published, the Court finds
that the publication of this Judgment (supra para. 199) and the public ceremony
acknowledging responsibility (supra para. 202) are sufficient for such purposes.
3) Construction of a monument and mounting of signs at the national park
204. The representatives requested the Court to order the State to “[c]reate a monument
in memoriam of Mrs. Blanca Jeannette Kawas-Fernández and to mount signs at the National
Park named after her.” In this regard, they argued that “[the] monument’s design must be
in line with its environmental context and [created] by Mr. Jaime Kawas -the son of
Jeannette Kawas-, who is an architect[;] the Ministry of the Environment and another
equal-level official, as well as the City’s local authorities […] including top-level police
authorities […] shall take part [i]n the unveiling ceremony.” Likewise, they asked the Court
to “order the State to mount signs [at the National Park,] clearly identifying the correct
name of the park and explaining the history of such name, so that visitors may learn the
facts surrounding the creation of the Park.”
205. In this regard, the Court notes that while the instant case was being processed
before the Inter-American Commission, the State repeated that “it agreed on the
construction of the requested monument at the site indicated by the representatives and
[the victim’s next of kin] within the land […] of the Blanca Jeannette-Kawas-Fernández
National Park [and that] the funds w[ould] be provided by the State directly to such
individual or legal entity as the representatives may appoint, […] in line with the funding
estimate and design already submitted by engineer Jaime Watt-Kawas, [the son of Mrs.
Blanca Jeannette Kawas-Fernández].” Also, the State repeated “its undertaking to mount
signs at the Blanca Jeannette Kawas-Fernández National Park […].”
231
206. The Court notes that the measures requested by the representatives seek to keep
the memory of Blanca Jeannette Kawas-Fernández alive and prevent the future recurrence
of facts such as those of the instant case.
232
Accordingly, the Court finds it appropriate to
order the State to construct a memorial monument for the victim as well as to mount signs
at the national park named after her, as requested by the representatives. The Court
stresses that such signs shall note the fact that the victim was killed defending the
environment and, in particular, such national park. The monument unveiling ceremony shall
231
Cf. Third report of the State of Honduras regarding compliance with the recommendations made in Merits
Report No. 63-06 in case No. 12.507 Ref.: Blanca Jeannette Kawas Honduras and reply regarding compliance with
the recommendations made by the petitioners’ representatives, of January 23, 2008 (record of appendixes to the
application, appendix 3, folio 1273).
232
Cf. Case of Valle-Jaramillo et al. Merits, Reparations and Costs, supra note 10, para. 229.
58
be attended by State authorities. Also, the State shall guarantee the participation of the
next of kin of Mrs. Blanca Jeannette Kawas-Fernández who were also declared victims by
this Court who may so desire. Both obligations are to be complied with in a period of two
years as from the date of notice of this Judgment.
4) Psychological care
207. The Commission requested that the Court order the State to “adopt rehabilitation
measures for the benefit of the victim’s next of kin, [which measures] must necessarily
include psychological and medical rehabilitation measures.”
208. Moreover, the representatives stated that “[t]here is no denying the profound pain
that the execution of Mrs. Blanca Jeannette Kawas has caused to her next of kin, in addition
to the fact that no justice has been served in over thirteen years.” Accordingly, they asked
that the Court order the State “to provide free-of-charge psychological care to such next of
kin of Mrs. Blanca Jeannette Kawas who may so request[, …] [which] measure shall include
the cost of any medication prescribed, such that the next of kin […] are not forced to incur
further monetary costs [and that such] care sh[all] be personalized and fit the needs of
each beneficiary.”
209. Based on the damage sustained by the next of kin of Mrs. Blanca Jeannette Kawas-
Fernández, as established in Chapter VIII of this Judgment, the Court finds it appropriate to
order the State to immediately provide free-of-charge adequate and effective psychological
and/or psychiatric care, via its specialized health institutions, to such of the next of kin the
Court has declared victims as may so request. Such treatment must be provided by
personnel and institutions specialized in the disorders and illnesses suffered by such people
as a result of the facts of this case. Said treatment is to begin when the beneficiaries so
request; the beneficiaries shall have a period of two years to seek the treatment as from
the date of notice of this Judgment. Furthermore, said treatment is to be provided for as
long as necessary and shall include the supply of any medication which may be required; it
shall also account for the sufferings of each beneficiary in connection with the facts of the
instant case, as determined through a personal evaluation. The State shall report on such
steps and on the actual provision of treatment as established in paragraph 226 infra.
5) Other reparations sought
210. The Commission requested the Court to order Honduras “to adopt, as a priority
measure, a policy intended to root out violence against natural resources advocates,
including preventive and protective measures,” and “to adopt a public policy to fight
impunity in cases of violations of the human rights of human rights advocates.”
211. In turn, the representatives asked the Court to call upon the State to implement a
“public policy intended to protect human rights advocates, including, among other things,
‘[e]ducation and publicity activities for all State agents, society in general and the media, to
create awareness in society regarding the importance and value of the work of human rights
advocates[;]’ ‘[e]ffective measures to protect the life and physical integrity of those human
rights advocates who have been threatened,’ [and…] ‘fight against impunity in connection
with violations of the human rights of human rights advocates.’”
212. It has been established in this Judgment that the murder of Mrs. Blanca Jeannette
Kawas-Fernández was caused by her work as an environmentalist (supra para. 98). It has
also been mentioned that, later on, other environmentalists were the targets of threats and
59
attacks or even killed as well (supra para. 69). In the course of the instant case, the State
acknowledged the complex situation of those who devote themselves to defending the
environment in that country (supra para. 98).
213. The Court appreciates the organization of the Group for the Investigation of
Environmental Activists’ Deaths (“Grupo de Investigación para las Muertes de
Ambientalistas”), attached to the Secretary of State, Security Office, in response to the acts
of violence perpetrated against that group (supra para. 70). In that regard, it reiterates that
the threats and attempts against the integrity and life of human right supporters and
impunity in this type of events are particularly serious in a democratic society. In
accordance with the general obligation to respect and guarantee human rights enshrined in
Article 1(1) of the Convention, the State has a duty to adopt legislative, administrative and
judicial measures, or to fulfill those already in place, guaranteeing the free performance of
environmental advocacy activities; the instant protection of environmental activists facing
danger or threats as a result of their work; and the instant, responsible and effective
investigation of any acts endangering the life or integrity of environmentalists on account of
their work.
214. In this vein, and as a way to contribute to avoiding the recurrence of facts such as
those of the instant case, the Court finds it appropriate to order the State to carry out a
national campaign to create awareness and sensitivity regarding the importance of
environmentalists’ work in Honduras and their contribution to the protection of human
rights, targeting security officials, agents of the justice system and the general population.
For such purpose, the State shall have a period not to exceed two years as from the date of
notice of this Judgment.
215. For such purpose, it shall report to the Court, in the terms of paragraph 226 infra, on
the steps taken for this and the progress, if any, made in its execution.
E) Costs and Expenses
216. The Inter-American Commission requested the Court “to order the State of Honduras
to pay such necessary and reasonable costs and expenses as may be duly proven to have
been incurred so far or in the future in the processing of this case domestically and before
the Inter-American System of Human Rights.”
217. Initially, the representatives requested “[p]ayment to the next of kin of Mrs.
Jeannette Kawas and the organizations involved in the proceedings (CEJIL and ERIC), as
appropriate, of the costs and expenses incurred on account of the domestic proceedings as
well as the proceedings before the Inter-American Commission and this […] Court.”
However, later on they reported that “ERIC [had] waive[d] such right.”
233
As regards the
expenses incurred by CEJIL in its capacity as a representative, the amount sought is “USD$
11,546.77” [eleven thousand five hundred and forty-six United States dollars and seventy-
seven cents], on account of traveling, postal, telephone, and fax expenses and supplies.
Likewise, in their brief containing pleadings and motions, the representatives asked the
Court to order the State to bear “future expenses” relating to the remaining procedures in
the processing of this case before the Court; accordingly, in their final written arguments
233
Cf. Letter of waiver of costs and expenses incurred by the Reflection, Investigation and Communication
Team (ERIC) in connection with these proceedings (record of appendixes to the brief of requests and arguments,
appendix R, folio 1838).
60
they requested payment of the expenses incurred on account of their trip to the City of
Mexico to attend the public hearing of the instant case, as well as accommodation expenses
and per diem for the attorneys, one expert witness, two witnesses and Mrs. Selsa Damaris
Watt-Kawas, the daughter of the deceased victim. The total amount sought by the
representatives on account of such expenses equals USD$ 8,465.48 [eight thousand four
hundred and sixty-five United States dollars and forty-eight cents]. The total expenses
requested by the representatives amount to USD$ 20,012.25 (twenty thousand twelve
United States dollars and twenty-five cents). The representative specifically noted that “it
has acted as representative of the victim[s] […] since the initial petition was filed with the
Inter-American Commission in January 2003.”
218. In its answer to the application, the State agreed to pay “such necessary and
reasonable [costs and expenses] as may be duly proven to have been incurred so far or in
the future in the processing of this case domestically and before the Inter-American Human
Rights System.”
219. Based on the vouchers for expenditures provided by the representatives, the Court
notes that some of them bear no connection to the instant case,
234
with others relating not
exclusively to expenses incurred in relation to this case.
235
The Court verifies that,
considering the foregoing, the expenditures proven by the representatives total US
$15,695.00 [fifteen thousand six hundred and ninety-five United States dollars], related to
traveling and commuting expenses to: the Inter-American Commission, in connection with
the filing of the application, hearing and proceedings in the instant case; Honduras, in
connection with various steps in the processing of this case; and the city of Mexico, to
attend the hearing held before the Court in the instant case (supra para. 9). The Court
considers it reasonable to add the amount corresponding to the proportional expenditures
made not exclusively for the processing of the instant case.
220. Accordingly, the Court has decided to equitably set at US $19,000.00 [nineteen
thousand United States dollars] the amount due on account of expenses incurred during the
processing of this case before the organs of the Inter-American System. Such amount shall
be paid to Mr. Jacobo Kawas-Fernández, who shall turn over the appropriate amounts to the
representatives. Such amount is inclusive of future expenses which the next of kin of Blanca
Jeannette Kawas-Fernández may incur domestically or at the stage of monitoring
234
Cf. statement of advance payment of traveling expenses, dated November 24, 2006, for the trip to
Honduras intended to follow up on the enforcement of the judgments rendered against Juan Humberto Sánchez,
Alfredo López and Servellón García (record of appendixes to the brief of requests and arguments, appendix Q, folio
1822).
235
Cf. Statement of advance payment of traveling expenses dated November 24, 2006, for the trip to
Honduras to follow up on the cases of “J. Kawas, C. Escaleras and C. Luna and misc. training” (record of
appendixes to the brief of requests and arguments, appendix Q, folio 1823); statement of advance payment of
traveling expenses dated February 26, 2007, for the trip to Honduras “in preparation for the Merits hearing in the
case of Oscar Daniel Medina, meeting with the next of kin of Carlos Escaleras, Jeannette Kawas, Cerrito Lindo,
MAO, reflection seminars with environment organizations, litigant organizations and HIV organizations” (record of
appendixes to the brief of requests and arguments, appendix Q, folio 1831); CEJIL, Application for advance
payment of traveling expenses for the European Community Project trip to Honduras, of March 2003 (record of
appendixes to the brief of requests and arguments, appendix Q, folio 1820); statement of advance payment of
traveling expenses for the Germany Project trip to Honduras, dated December 4, 2006 (record of appendixes to the
brief of requests and arguments, appendix Q, folio 1825); and statement of advance payment of traveling
expenses for the Embassy of Germany Project trip to Honduras, to contact journalists reporting on the subject of
human rights, to report to CEJIL and to publicize the cases, dated February 19, 2007 (record of appendixes to the
brief of requests and arguments, appendix Q, folio 1833).
61
compliance with this Judgment. The State shall pay this amount due on account of costs
and expenses within a one-year period as from the date of notice of this Judgment.
F) Method of compliance with ordered payments
221. The payment of the compensations set forth herein will be made directly to the
individuals specified in this Judgment (supra paras. 171 to 173, 178, 184 and 185). As
regards the reimbursement of costs and expenses, payment will be made directly to Mr.
Jacobo Kawas-Fernández, in accordance with the provisions of this Judgment (supra para.
220). In the case of the beneficiaries who die before receiving the corresponding
compensation, payment thereof will be made to their successors, pursuant to applicable
domestic law.
222. The State must fulfill its obligations through payment in United States dollars or an
equivalent amount in the legal tender of Honduras, applying to that effect the exchange rate
in force in the market of New York, United States of America, on the day prior to the date of
payment.
223. If due to reasons attributable to the beneficiary or its successors, respectively, it is
not possible for the latter to receive such payment within the specified term, the State shall
deposit the corresponding amounts to their name in an account or through a certificate of
deposit with a financial institution from Honduras, in United States dollars and subject to the
most favorable financial conditions allowed by bank and legal practice. If after 10 years such
compensation has not been claimed, the corresponding amounts will be returned to the
State plus any interest accrued.
224. The amounts granted by way of compensation and reimbursement of costs and
expenses through this Judgment must be delivered to the individuals specified above (supra
para. 221) in full in accordance with the provisions of this Judgment, subject to no reduction
as a result of potential tax burdens.
225. In the event of failure by the State to make such payment, the State shall pay
interest on the pertaining amount, calculated on the basis of the default bank interest in
force in Honduras.
226. Pursuant to its common practice, the Court reserves its right under its powers and
Article 65 of the American Convention to supervise full compliance with this Judgment. The
case will be deemed closed once the State has fully honored the orders contained in this
Judgment. Within a term of one year following notice of this Judgment, the State shall
submit to the Court a report on the measures adopted to comply with this Judgment.
XI
OPERATIVE PARAGRAPHS
62
227. Now, therefore,
THE COURT
DECLARES:
Unanimously that:
1. It accepts the State’s partial acknowledgment of international responsibility, in
accordance with paragraphs 31 to 34 of this Judgment, and holds that there was a violation
of the rights to fair trial and judicial protection, as enshrined in Articles 8(1) and 25(1) of
the American Convention on Human Rights, respectively, in connection with the general
obligation to respect and guarantee the rights laid down in Article 1(1) thereof, to the
detriment of Jacobo Roberto Kawas-Cury, Blanca Fernández, Selsa Damaris Watt-Kawas,
Jaime Alejandro Watt-Kawas, Jacobo Roberto Kawas-Fernández, Jorge Jesús Kawas-
Fernández and Carmen Marilena Kawas-Fernández, in the terms of paragraphs 117 to 119
of this Judgment.
2. The State violated the right to life enshrined in Article 4(1) of the American
Convention on Human Rights, in connection with the obligation to respect and guarantee
laid down in Article 1(1) thereof, to the detriment of Blanca Jeannette Kawas-Fernández, in
accordance with paragraphs 72 to 108 of this Judgment.
3. The State violated the right to humane treatment enshrined in Article 5(1) of the
American Convention on Human Rights, in connection with Article 1(1) thereof, to the
detriment of Jacobo Roberto Kawas-Cury, Blanca Fernández, Selsa Damaris Watt-Kawas,
Jaime Alejandro Watt-Kawas, Jacobo Roberto Kawas-Fernández, Jorge Jesús Kawas-
Fernández and Carmen Marilena Kawas-Fernández, in accordance with paragraphs 131 to
139 of this Judgment.
4. The State violated the right to freedom of association recognized in Article 16(1) of
the American Convention on Human Rights, in connection with Article 1(1) thereof, to the
detriment of Mrs. Blanca Jeannette Kawas-Fernández, in accordance with paragraphs 151 to
155 of this Judgment.
5. In accordance with paragraphs 122 and 122 of this Judgment, a State’s failure to
comply with its duty to adopt domestic measures under Article 2 of the American
Convention has not been established.
63
6. The State did not violate the right to humane treatment of Jacobo Roberto Kawas-
Cury, Blanca Fernández, Selsa Damaris Watt-Kawas, Jaime Alejandro Watt-Kawas, Jacobo
Roberto Kawas-Fernández, Jorge Jesús Kawas-Fernández and Carmen Marilena Kawas-
Fernández, recognized in Article 5(2) of the American Convention on Human Rights, in
accordance with paragraph 139 of this Judgment.
AND DECIDES,
Unanimously, that:
7. This judgment constitutes per se a form of reparation.
8. The State shall pay to Blanca Fernández, Selsa Damaris Watt-Kawas, Jaime
Alejandro Watt-Kawas, Jacobo Roberto Kawas-Fernández, Jorge Jesús Kawas-Fernández
and Carmen Marilena Kawas-Fernández, the sums set forth in paragraphs 171 to 173, 178,
184, 185 and 220 of this Judgment on account of compensation for pecuniary and non-
pecuniary damage and reimbursement of costs and expenses, as applicable, within a period
of one year as from the date of notice of this Judgment, in accordance with paragraphs 221
to 225 hereof.
9. The State shall carry out or initiate the required criminal proceedings concerning the
facts that gave rise to the violations in the instant case, completing them as legally
prescribed within a reasonable period of time, in accordance with paragraphs 189 to 195 of
this Judgment.
10. The State shall make a one-time publication in the Official Gazette and in a
newspaper of major national circulation of paragraphs 1 to 8 of Chapter I, 17 to 35 of
Chapter V, 45 to 155 of Chapters VII, VIII and IX, and 189 to 195 of Chapter X of this
Judgment, the relevant footnotes excluded, and the operative paragraphs hereof, within a
period of six months of notice of this Judgment, in accordance with paragraph 199 hereof.
11. The State shall have a period of one year to carry out a public acknowledgement of
international responsibility, in accordance with paragraph 202 of this Judgment.
64
12. The State shall have a period of two years to construct a monument in memoriam of
Blanca Jeannette Kawas-Fernández, and to mount up signs at the national park named after
her, in accordance with paragraph 206 of this Judgment.
13. The State shall immediately and for as long as may be necessary provide free-of-
charge psychological and/or psychiatric care to Blanca Fernández, Selsa Damaris Watt-
Kawas, Jaime Alejandro Watt-Kawas, Jacobo Roberto Kawas-Fernández, Jorge Jesús Kawas-
Fernández and Carmen Marilena Kawas-Fernández, should they so request, in accordance
with paragraph 209 of this Judgment.
14. The State shall have a period of two years to carry out a national awareness and
sensitivity campaign regarding the importance of the work performed by environmentalists
in Honduras and their contribution to the defense of human rights, in accordance with
paragraph 214 of this Judgment.
15. It shall monitor full compliance with this Judgment and shall consider the instant
case closed upon full compliance by the State with the provisions hereof, in accordance with
paragraph 226 of this Judgment.
Judge García-Ramírez presented to the Court his Separate Opinion, which has been
attached to this Judgment. Judge García-Sayán adhered to the Opinion of Judge García-
Ramírez.
Done in Spanish and English, the Spanish text being authentic, in Santo Domingo,
Dominican Republic.
Cecilia Medina-Quiroga
President
Diego García-Sayán Sergio García-Ramírez
Manuel Ventura-Robles Leonardo A. Franco
65
Margarette May Macaulay Rhadys Abreu-Blondet
Leo Valladares-Lanza
Judge ad hoc
Pablo Saavedra-Alessandri
Secretary
So ordered,
Cecilia Medina-Quiroga
President
Pablo Saavedra-Alessandri
Secretary
SEPARATE OPINION OF JUDGE SERGIO GARCÍA-RAMÍREZ ON THE JUDGMENT OF THE
INTER-AMERICAN COURT OF HUMAN RIGHTS IN THE CASE OF KAWAS-FERNÁNDEZ V.
HONDURAS, OF APRIL 3, 2009
1. In the judgment rendered in the Case of Kawas-Fernández v. Honduras by the Inter-
American Court of Human Rights on April 3, 2009, the Court held that there was a violation
of Article 4 (Right to life) in connection with Article 1(1) of the American Convention on
Human Rights. I agree on such finding, which was made unanimously, and add my opinion
explaining my own reasoning which, as I said, is concurrent with that of my colleagues as to
the fundamental finding made in the Judgment.
2. To me, it is clear that the State failed to comply with its duty to investigate the facts
surrounding the deprivation of the victim’s life. Solid evidence has established the mistakes,
misplacements, delays and insufficiencies in the investigation, which evidences the violation
of the State’s duty of guarantee, in the terms of the judgments of the Inter-American Court.
Hence the violation of Articles 4 and 1(1) of the Pact of San José.
EVIDENCE AND JUDGMENT
3. That said, I find that some considerations regarding the evidence, which is a key subject
in the proceedings and a topic of constant occupation for the Inter-American Court, are in
order. Essentially, the trial is an evidentiary exercise that will lead – based on solid grounds
– to the Court’s decision.
4. It is my view that a judge hearing and determining a case involving human rights
violations must use utmost care in the analysis of the available evidence to establish the
existence of certain conduct by action or omission (attributable to State agents or third
parties whose behavior is attributable to the State) and the link between the conduct and
the result that entails a human rights violation. It is based on such evidence that the
adjudication will be made.
5. I agree that, considering its jurisdiction ratione materiae and its human rights protection
mission, the Inter-American Court should not mechanically adopt the criteria for the
admission and assessing of evidence which prevail in the domestic legal system. Indeed, it
is not entrusted with a criminal function and it may and usually does more freely accept and
analyze that evidence which is offered to it or which it orders on its own initiative.
6. However, the above does not mean that the Court actually tones down or reduces the
evidentiary requirements which, along with the relevant logical and legal reasoning, will
provide the foundation for the findings on the facts constituting violations of fundamental
rights, the international responsibility of the State and the legal consequences stemming
from both. The Court itself – a court of Law – constantly refers to the rules of sound
judgment that guide its evidentiary assessments.
7. My experience on this subject is no different from that of any other judge facing the
heavy responsibility of analyzing facts which are not always apparent and sufficiently
established via conclusive evidence, and making serious findings based on the properly
assessed available evidence. The judge will thus find it necessary to address the doubts,
2
which will naturally arise in the course of the examination. The solution to these dilemmas
lies with the evidence: it is only through the evidence that such doubt is quelled.
8. By evidence, I naturally mean means of conviction - I deliberately use this word:
conviction – sufficient to persuade the judge passing a judgment of conviction: “sufficient
evidence.” I am not talking about a criminal conviction; just conviction that is explained by
the – “convincing” – verification of certain unlawful facts, which are the result of the – also
verified – actions of a given agent. Obviously enough, I do not expect all the facts at issue
in a case to be established through official, unquestionable documents and univocal and
reliable testimony, or irrefutable expert opinions. Doing so would be childish. I accept the
possibility and efficacy of indirect means of evidence, provided, however, that they
overcome the – often imprecise and elusive – line separating sufficient evidence from those
data which, by themselves, do not possess this essential quality.
9. Naturally, conviction is a strictly personal matter. I acknowledge the fact that each
person may arrive at their own conclusions with full intellectual probity and a completely
clean conscience, and that these deserve as much respect and consideration as is afforded
to contrary conclusions. A difference of opinion does not entail reproach, as noted in all of
my separate opinions. Other than that, I have already said that I agree that there was a
violation of Articles 4 and 1(1) of the Convention. The insufficiency of the evidence
concerning a given point in the alleged facts is precisely that: insufficiency. It is not - not
even by a long shot – a clearing of the allegations. It has not been so in the instant case.
PRESERVATION OF THE ENVIRONMENT
10. The Inter-American Court has categorically and constantly highlighted the special duty
of the State when it comes to human rights defenders. Such persons are, just like the State
itself – and so I have repeatedly noted – central players in the Inter-American Human
Rights Systems, the operation of which is largely dependent on the progress made in such
protection in the countries of the Americas and the expansion of the human rights culture.
11. I must further note that the violation of the duty of guarantee in this case – in which the
right to life was violated – runs counter to the general protection of those who devote their
life and work to the preservation of the environment, a service that reaches well beyond the
individual right of one or a few persons: it concerns and affects us all. Such devotion has
now become evident, since the victim was a recognized environmentalist who had faced
opposition and adversity because of her being such.
12. Any actions and omissions that directly affect those who act in this context also
intimidate others who are engaged in similar activities. Therefore, they create individual and
social discouragement, causing serious damage to the community as a whole. The position
of the Court on this subject is, moreover, in line with the repeated requirement that special
protection be provided to persons engaged in the defense of human rights. Preservation of
the environment, the integrity of which is a right of all, gravitates in that direction and calls
for protection.
REASONABLE TIME
3
13. On the other hand, I would like to address the repetition, in this Judgment, of
something which has meant a step forward in the Inter-American Court’s case law. I am
talking about the inclusion (as seen in paragraph 112) of a piece of information for the
analysis regarding the reasonable time period: the “the impairment to the legal situation of
the person involved in the proceedings,” an element which was previously included in the
judgment rendered in the Case of Valle-Jaramillo et al. v Colombia (para. 155).
14. In its analysis, the Court has often addressed the “reasonable time” to comply with an
obligation or ensure the protection of a right. For such purpose, it has resorted to certain
elements taken from the case law of the European Court, namely: the complexity of the
matter, the procedural activity of the interested party, and the conduct of the judicial
authorities. The reasonable nature of the time elapsed, i.e. the reasonableness of the time
period in question, has been evaluated in the light of such factors or references.
15. In the judgments rendered in the cases of Valle-Jaramillo and Kawas-Fernández we can
find – alongside the aforementioned data – the assessment of the weight or influence of the
lapse of time on the legal situation of the person involved in the proceedings (or in a
procedure, generally speaking) the duration of which gives rise to the discussion we are now
dealing with. It is evident that the key lies not in adding “conditions” or “requirements” to
the assessment of the time period but in calling the tribunal’s attention to other data that
may contribute to a better analysis of the matter.
16. In the judgment rendered in the Case of Valle-Jaramillo, the Court reiterated “that three
elements must be taken into account in order to determine whether the time is reasonable:
a) the complexity of the matter, b) the procedural activity of the interested party, and c)
the conduct of the judicial authorities;” and then added: “In addition, the Court finds it
pertinent to clarify that, in this analysis of reasonableness, the adverse effect of the
duration of the proceedings on the judicial situation of the person involved in it must be
taken into account; bearing in mind, among other elements, the matter in dispute. If the
passage of time has a relevant impact on the judicial situation of the individual, the
proceedings should be carried out more promptly so that the case is decided as soon as
possible” (para. 155) (emphasis added).
17. Clearly, however, in certain cases no in-depth analysis of the fourth element will be
necessary, just like in other cases it was and is not necessary to analyze each of the three
remaining elements. The matters submitted to the Court’s decision are presented and
adjudicated based on their own characteristics. It is those characteristics which will point
the court in the direction of a more exhaustive or less detailed examination of each of the
points of reference contributed by the European case law, as well as of the one recently
added by the Inter-American decisions.
18. It is, in my view, plausible that the Court has made progress in the examination of this
subject, as per its own experience and reasoning, thereby expanding the framework
contributed by the European case law. The new inclusion does not impair or darken; on the
contrary, it improves and favors the analysis of judiciable cases and the adoption of relevant
definitions. The Inter-American Court has come a long way in the enrichment of
international case law, sometimes overcoming obstacles and dispelling reluctances, and it
will certainly walk a long way in the future as well.
19. I cannot fail to mention the fact that, in certain separate opinions, I have for some time
now dealt with this “fourth element” of assessment, and I will also approvingly make
reference to certain legal authors who have addressed the same subject. So is expressly
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noted, for instance, by judge Cecilia Medina-Quiroga when analyzing the reasonable time
period (cf. La Convención Americana: teoría y jurispudencia. Vida, integridad personal,
libertad personal, debido proceso y recurso judicial (Universidad de Chile, Facultad de
Derecho, Centro de Derechos Humanos, San José, C.R., 2003, p. 311).
20. As far as my opinion goes, I will point out that in my separate opinion on the judgment
rendered in the Case of López-Alvarez v Honduras, of February 1, 2006 – which I addressed
in my opinion in the Case of Valle-Jaramillo – I tried to characterize the nature and scope of
the elements of the reasonable time period as taken from the European case law, and noted
the convenience of “expand[ing] the analysis of the reasonable time and examin[ing] the
possibility of incorporating other elements that merited analysis into this concept – in order
to assess respect for or failure to respect due process.”
21. I maintained as follows: “It seems possible that the complexity of the matter that
motivates the process, the behavior of the interested party – in this case, the defendant –
and the acts of the authority may not be enough to provide a convincing conclusion of the
undue delay, that violates or puts the judicial rights of the subject in grave danger. Thus the
appropriateness, in my opinion, of exploring other elements that complement, but do not
substitute them, for the determination of a fact - the violation of the reasonable time - for
which there are no quantitative universally-applicable boundaries.”
22. Then I mentioned “a possible fourth element to be considered in estimating reasonable
time,” what I called the ‘actual impairment of an individual’s rights and obligations caused
by the proceedings – that is, his judicial situation.’ “It is possible that the latter could have
little relevance on this situation; if this is not so, that is, if the relevance increases, until it is
intense, it would be necessary, for the sake of justice and security, both seriously
threatened, that the process be more diligent so that the subject’s situation, which has
begun to seriously affect his life, may be decided in a short time – ‘reasonable time’. The
impairment must be real, not simply possible or probable, eventual or remote.”
23. “At times, when weighing harm, the time elapsed is irrelevant; in others, it is very
detrimental to the victim. Consequently, the other elements used to assess reasonableness
– complexity of the matter and conduct of authorities and private individuals – should also
be examined in light of the prejudice that is being caused to the victim. Time does not
elapse equally for everyone, and the elements usually taken into consideration to establish
the reasonableness of time do not affect everyone in the same way (…)” I again addressed
this subject in my opinions on the judgments rendered in the cases of Sawhoyamaxa v
Paraguay, of March 28, 2006, and Ituango Massacres v Colombia, of July 1, 2006.
24. Then, just like I am doing here, I stressed that: “it is not my purpose to replace the
elements of traditional legal doctrine and concentrate all the consequences of measuring
reasonable time on the harm caused; on no account. Nor have I suggested that a lack of
appreciable harm legitimates the passage of time, whatsoever the length, and absolves the
State of responsibility as regards due process; on no account. I am merely suggesting the
pertinence of looking at the traditional elements of measurement also – and only, also –
from the optic or the perspective of the actual harm that the passage of time causes to the
victim. This constitutes an additional factor in the assessment, which should be combined
with the other factors considered to measure the reasonableness of the elapsed time.
Sergio García-Ramírez
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Judge
Pablo Saavedra-Alessandri
Secretary
Judge García-Sayán adhered to this Opinion of Judge Sergio García-Ramírez.
