EUROPE AND INTER-AMERICAN

SYSTEM PROTECTION
OF HUMAN RIGHTS:
SIMILARITIES AND
DIFFERENCES.

Article wrote by Flavia Fiorella Dondero Ugarriza, Peruvian Lawyer

I. INTRODUCTION.

As everyone knows, there are three basic mechanisms for protecting human
rights: The national legal systems, the international legal system and regional
legal systems. Among the latter are the European System and the Inter-
American System, which are the subject of our study.

Through this work we seek to highlight some of the similarities and differences
of the two most important regional systems: American and European, through a
brief but thorough examination of its main policy and procedural development.

A central aspect, since we already have in mind is that the context in which
arises the American system is far from the European System. Unlike the
American Convention, the European Convention was drafted and approved,
mostly by liberals and genuine democracies with a strong and independent
judiciary.

Professors Henry Steiner and Phillip Austin 1have observed: "The development
of Inter-American system followed a different path from that of its European
counterpart. Although superficially similar institutional structure and regulatory
requirements are similar in many respects, the conditions under which both
systems were developed radically different. The Council of Europe,
governments military and other authoritarian regimes have been few and short;
while in Latin America were almost the norm, until the changes that began in
the eighties.

1
REVORIO Diaz , Francisco Javier . Jurisprudence of the European Court of Human Rights.
Lima: Editorial Palestra. 2004, pp. 18-20.
The biggest challenges facing the European system are summarized in matters
such as the length of detention before trial or what implications have the right to
privacy. By contrast, cases involving states of emergency have been relatively
few. The European Commission and Court have rarely had to deal with
governments that are entirely indifferent or antagonistic and having very deep
structural problems that lead to systematic and gross violations of human rights
(…). By contrast, states of emergency have been common in Latin America, the
Judiciary of nations has often been extremely weak (…) in the best position of
the government has been ambivalent and at worst, are openly hostile to them. "

On the other hand, when the American Convention was being negotiated in the
mid-sixties, most governments were democratic. By contrast, in 1978 when the
Convention entered into force several countries were ruled by military
governments or weak civilian governments (under the tutelage of the army).

II. CONCEPTUAL ASPECTS: SYSTEM AND HUMAN RIGHTS.

Before we begin to explore the two most important systems Protection of

Human Rights (European and Inter-American), we deem it necessary to pause
in some conceptual item, which will enable us to better understand their
organization and scope.

A first question refers to understand why they use the term "system" reviewed
for the protection of human rights, and a second point is to establish precisely -
at least briefly - what is meant by "Human Rights"; more although usually similar
to terms such as "Fundamental Rights".

We believe that the uses of the term “system” - in the case either European or
American - are based that both normative and organisational aspects must be
intrinsically linked. In this sense, the dictionary of the Royal Spanish Academy
(RBA)2 has established that a "system" is a set of rules or principles on a matter
rationally linked together.

Moreover, in order to establish is meant by "human rights", and in turn, what is

its difference with other terms (fundamental rights), we will base on the criterion
used by Castillo Cordova3, it means, in a neutral perspective. In that sense, the
author notes: "However, this is not the only group of terms that are normally
used to refer to individual rights. There are other expressions that neither a
priori nor so clearly pose a direct allusion to a particular philosophical ideology.
Indeed, expressions such as human rights, fundamental rights and
constitutional rights, unlike those previously studied, rather than being linked to
employee speech in philosophical debates, are linked to legal and judicial

2
Information obtained from the Website: http://buscon.rae.es/draeI/. Question: 24/06/08.
3
Castillo Córdova, Luis. The constitutional rights. Elements for a general theory. Lima: Palestra
Publishers. 2005; P. 38.
practice. This situation makes them less expressions with ideologies that initially
studied and (…) more neutral. "

However, it is considered that through the expression "human rights" refers to

human rights that have been collected in the various declarations and
covenants. Instead the term "fundamental rights" would be reserved to refer to
human rights that have been collected in domestic law.

In this regard, Perez Luño4 said that "the focus has been on the propensity of
doctrine and policy to reserve the term fundamental rights to designate the
rights positivization domestically, while the formula human rights would be the
most common call for the natural rights positivization in international
declarations and conventions”

In conclusion, we note that when referring to a system of protection of Human

Rights, we are describing a set of rules and agencies - properly interrelated -
that protect those rights that are enshrined in international instruments
(conventions, declarations,etc.)

III. HISTORICAL CONTEXT AND SYSTEM ORGANIZATIONS

EUROPE AND INTER-AMERICAN.

3.1 Source:

Broadly speaking, the common origin - as both the European system of inter-
American system - what we find in the United Nations (UN), who in 1948
proclaimed the Universal Declaration of Human Rights. This tool collects
considered basic human rights (civil, economic, social, political and cultural).

Specifically, the so-called European system (comprised of member countries of

the European Union) had its starting point in the Council of Europe5 and the
European Convention6, which was adopted in 1950 and came into force in

4
Pérez Luño, Antonio. Human rights, rule of law and constitution. Seventh Edition. Madrid:
Editorial Tecnos. 2001; P. 44.
5
The Council of Europe, established in 1949, is a political intergovernmental organization with
its permanent headquarters in Strasbourg (France). It consists of: Committee of Ministers,
Parliamentary Assembly, Congress of Local and Regional Authorities of the Council of Europe,
European Court of Human Rights and Secretary-General.
6
At the Congress of Europe, held in The Hague in May 1948, the idea came at the initiative of
the International Committee of the Movement for European Unity, to establish a European
Convention on Human Rights, which would be enforced by a court.
1953. The official name of the Convention is "to the European Convention on
Human Rights and Fundamental Freedoms" and aims to protect human rights
and fundamental freedoms, allowing judicial control of respect for those
individual rights. For its part, called the American system (comprised of member
countries of the Organization of American States), took as its starting point the
Organization of American States (OAS) and the American Declaration of Rights
and Duties of Man (1948), text which, curiously little was taken even before the
Universal Declaration of Human Rights. Years later, in 1969, adopted the
American Convention on Human Rights, which is intended, as the Preamble,
"consolidate on this continent, within the framework of democratic institutions, a
system of personal liberty and justice social founded on respect for the essential
rights of man.”7

However, we believe that the consolidation of democracy in much of American

States is unfortunately still a job unfinished. With a wide range and nuances, of
course, we find that such States, generally, have strengthened, with varying
degrees of success, the formal aspect of democracy, largely conforming to the
existence, development and cleaning of electoral processes and production
standards, but have not had the same impulse, on the other side of the coin or
material aspect of democracy, referring to the democratic content and
especially respect and guarantee human rights.

3.2 Techniques and supervisory bodies:

The techniques and especially the supervisory bodies are based on the
declaratory holding initially international documents, and thus fulfilling its
content was subject to the will of States. This led to emerge supervisory bodies
as the European Court once and the current Inter-American Court of Human
Rights.

Initially, the European system and the Inter-American shared similar supervisory
bodies, namely: A Commission and Court. And, additionally, in the European
case, it had a Committee of Ministers (the first two were created in the
Convention itself, the third being an organ of the Council of Europe set out in its
statute). However, with the consolidation of the Protocol No. 11, was eliminated
the European Commission, focusing all the attention in the European Court of
Human Rights.

It is worth noting that although the American Convention as well as the

European Convention provides for a Commission and Court. But unlike the

7
Information obtained from the Website: http://www.oas.org/Juridical/spanish/treaties/b-32.html.
Question: 24/06/08
European Convention, the American Convention incorporated into a single
instrument the rights guaranteed both as a means of protecting them.

In the American case, according to its statute, the Inter-American Court of

Human Rights is an independent court of Inter-American system, whose
function is to interpret and apply the American Convention on Human Rights.
Also, it is considered that the Court is a regional court of International protection
of those human rights which are included in both the American Convention on
Human Rights and also today, the rights protected by the Protocol of San
Salvador that are justiciable, are economic, social and cultural as well as
protecting other protocols and related documents.

In the European case, have special meaning Protocols No. 8 and 11. The first
of these came into force in January 1990 and helped to improve the working
capacity of the Court, and above all, of the Commission. With regard to the
Commission, allowed that in her womb, constitute Salas-responsible for
resolving cases not present particular difficulties-and-three-member committees
for the rejection, unanimously, of individual claims which could be inadmissible
or manifestly be removed from the list of pending cases.

The above is important because there are also a difference between the role of
the European Commission and the Inter-American Commission. While the first -
under the said Protocol - could solve certain cases, the second was only
empowered to conduct investigations. In this context, is used to assert that the
powers of investigation and research of the Inter-American Commission are
less effective in practice than those of similar body Europe, as, on the one
hand, does not have the technical tools to perform such delicate work , And on
the other hand, does not count in all cases with the cooperation of States
applicants, conduct that although it has changed slowly, particularly after the
restoration of democratic governments in many member countries have not yet
achieved level of collaboration of European regime. Unfortunately, this is a
situation that is still in force, and that will be discussed later.

However, as we noted, the European Commission was eliminated under the

Second Protocol, adopted in 1994 and which entered into force on 01
November 1998; focusing, in this way, all the attention in the new European
Court. It is worth noting that the dilution of the Commission was not peaceful, as
there were countries like Holland and Sweden, along the lines Inter, they
proposed maintaining the Commission and the European Court.

It is true that a system with two instances (Commission and Court) enable
significant cases could be seen twice. However, supporters of the merger were
alleging that the important thing was to seek the speed of the process. Posture
apparently has finally prevailed.

Following established structural similarities and differences between the Inter-

American Court and the European Court, we consider it appropriate; make a
reference to the perception that they have two different systems in certain
subjects. For example, compared to the European Court, the Inter-American
Commission seems to be particularly conscious of its role in driving women's
rights at international level. This is most evident if we query the Commission
website, which contains a site dedicated to promoting women's rights within the
Inter-American system (www.cidh.oas.orgjwomenj / Default.htm). In contrast,
the website of the European Court remains "neutral in terms of gender." Its
database only provides a search term to refer cases from a gender perspective:
sex, which, besides presenting cases of sex discrimination, also identifies cases
involving transsexuals. Any other matter of particular impact on women, such as
domestic violence or sexual, requires a careful record of jurisprudence gathered
in generic terms as "degrading treatment" or "respect for family life

The Inter-American Commission has also begun to set the tone for a new phase
in the discourse of international human rights with regard to women. In contrast
to the European Court, the Commission, through its decisions, has been
involved in a dialogue taking place between multiple actors in this field (other
international tribunals, NGOs and academics), which is actively involved in
creating a growing body of international jurisprudence on women's rights.

3.3 Procedure:

According to the original European Convention, within the jurisdiction

contentious, always demands were presented to the Commission, who was
responsible for filtering, urging the amicable settlement, to express an opinion
on the merits of complaints declared admissible and by unresolved the
aforementioned friendly way, deciding to raise the case before the Court and, if
so, play the role of assistant of the European Court. The causes that were not
subject to the Court, would be resolved by the Committee of Ministers (should
monitor also compliance with the judgments of the Court). On the other hand,
provided that individuals would be allowed to submit its application only to the
Commission, and that if the respondent State had recognized the competence
of the Conference. Moreover, even after neither the Commission’s intervention,
nor individuals could refer the matter to the Court since only the Commission or
a state would have standing to do so.

In the Inter-American system, complaints are examined by the Inter-American

Commission who determines whether the claims met the eligibility
requirements, and seeks a friendly solution which, if reached, a report published
by. If no amicable settlement, the Commission or the State concerned may
send the case to the Court to issue a ruling. Also, if you do not submit the
matter to the Court, the Commission may, by an absolute majority, to give its
opinion and recommendations to relevant state and the time limit that has to
carry them out.

It must also bear in mind that not all complaints have the same fate, but this will
depend on the three mechanisms for monitoring States' obligations on human
rights:
a) Reports that each state must provide the Commission with the information it
requested on the manner in which their internal law ensures the
implementation of the Convention. Following its analysis, the Commission
can issue recommendations to the State.

b) Interstate communications, consisting of a mechanism optional (must be

expressly accepted by the States), and subject to the principle of reciprocity
(only a State may denounce another State which has already accepted the
eventuality of being denounced). The Inter-American Commission examines
claims that meet the eligibility requirements, and seeks a friendly solution
which, if reached, a report published by. If no amicable settlement, the
Commission or the State concerned may send the case to the Court to issue
a ruling. Also, if you do not submit the matter to the Court, the Commission
may, by an absolute majority, to give its opinion and recommendations to
relevant state and the time limit that has to carry them out.

c) Communications individual who submits any person, group of persons or

non-governmental entity, with allegations or complaints of violations of the
Convention by a State Party, and who follow the same procedure as the
interstate. It is interesting to note that, unlike what happens in the European
system, here communications may be conducted not only by victims, but
also by other individuals and organizations.

3.4 The locus standi of individuals on the European Court.

An important difference between American and European perspective of

protecting human rights relates to the role reserved for victims of any violations
of the rights recognized. In the European system of protection of human rights,
following the entry into force of Protocol No. 11, individuals can raise a case
directly to the European Court (Article 34 ° of the Convention in its new version).
The current Rules of Court, 04 November 1998, contains various provisions,
active participation during the proceedings of the applicant (Articles 36 °, 49th,
54th, 59th and 71st) to be a victim of invoked violation of the Convention.
However, the legal configuration of individuals in the system of the Convention
was not always as described. The modification should be seen as the
culmination of a long process that has lasted nearly half a century.

Originally, the Convention did not allow individuals to raise a case before the
European Court or before the same act as parties. Only authorized the
respondent State, the State of which the individual is a national introduced a
complaint to the European Commission and the same. However, on the basis of
Article 29.1 of the Rules of Court ° 1959, which allowed delegates from the
European Commission of Human Rights become attend before the European
Court by any person of their choice, in its resolution of April 07 1961, by which
resolved a similar procedural issue raised in the case De Wilde, Ooms and
ersyp (judgement of 18 June 1971) allowed the lawyer for the plaintiffs attend
the Committee during the proceeding before him.

Regulation of the European Court, in its reform of 01 January 1983, retained a

provision similar to article 29.1 ° (of regulation), but introduced the novelty of
that, once the case was submitted to the European Court by the State of
nationality of the applicant or by the European Commission, the applicant could
express their desire to participate in the procedure being represented by a
lawyer (Article 30 ° regulation of the European Court of 01 January 1983). Later,
the Additional Protocol No. 09 recognized the locus standi of the individual
before the European Court, but only deployed its effects on individuals who
were under the jurisdiction of a State party to it. Finally, the last link in the chain
has been Article 34 ° of the Convention recognizes that the locus standi to the
European Court of any individual under the jurisdiction of a State party to it.

In the American system, by contrast, the situation is very different. In this

regard, Villan Duran8 said: "unlike the European system… (The American
Convention) does not allow individual victims or their representatives to appeal
directly (jus standi) to the court seeking custody for their rights violated, but they
will be consulted by the Inter-American Commission to decide whether to
submit the case to the Inter-American Court. In addition, once admitted
demand, the victim, his representative or their families can submit to the Inter-
American Court their requests, arguments and evidence in its own throughout
the process. As noted, this regulatory solution has recognized the full locus
standi the individual before the court for inter-regional protection of human
rights ".

Please note that speaks of standing locus standi rather than jus standi for
individuals, which would leave an incomplete solution. In this sense, Cancado9
has pointed out "the necessary recognition of locus standi in judicio of the
alleged victims (or their representatives) to the Inter-American Court is a
breakthrough of the most important, but not necessarily the final stage of
refinement. From the locus standi, the trend points towards the future
recognition of the right of direct access of individuals to the Court (jus standi) to
bring a case directly before it (…). In the inter-American system of protection,
the right of individual petition will reach its fullness and not the day before the
Inter-American Commission, but directly to the Inter-American Court of Human
Rights”.

In addition, unlike the European system, in the Inter-American system, the way
to expedite the process of protecting human rights, it may submit requests even
by those, who are not victims of violation of a right. This is extremely important
because victims may find it difficult to present a petition, or even ignore the
existence of protection mechanism.

8
Villán Durán, Carla. International Law Course of Human Rights. Madrid: Editorial Trotta. 2002:
P. 545.
9
Cancado Trindade, Alberto. The direct access of individuals to the International Tribunals for
Human Rights. Publications Deusto. 2001: P. 57.
3.5 Enforcement of sentences:

One issue that also unlike the European system of inter refers to the level of
enforcement of sentences issued by the supervisory bodies, being clear, that in
Europe there is a higher percentage of compliance. By contrast, in the Inter-
American system, it appears that there are many states that are working on a
system with the rhetoric, but in practice unknown faults and not give support.
On a more serious challenge openly what some states, eroding its legitimacy.
Peru, for example, threatened to withdraw from the system; Trinidad and
Tobago denounced the American Convention and withdrew the jurisdiction of
the Court, in 1998, following its rejection of failures relating to the administration
of the death penalty. More recently, the Dominican Republic had a serious
conflict by the Court's ruling, while Venezuela has had several serious problems
in the latter role in the failed coup (2003). Thus, if the Inter-American system,
there is an apparent absence of a culture of compliance by the vast majority of
Member States. To reverse this situation, broadly speaking, there is a need for
respect for international law and human rights must be addressed through the
socialization of society as a whole. In extent that these behaviors are
internalized by the people, obviously improve practices. More specifically, it
must carry out reforms of the three branches of government, especially the
Judiciary. In this regard, greater compliance with the decisions of the organs of
SIDH goes through the training of State officials, especially judges, lawyers and
diplomats. Another practice has to do with the promotion and dissemination
system to citizenship, at least to key players such as government officials,
congressmen and members of political parties10.

On the other hand, we must take into account that in the Inter-American system,
there is - in contrast to the European system - a specialized body guarantor of
monitoring and verifying compliance with the judgments of its highest court.
While the Council of Europe has delegated this important role in its Committee
of Ministers control in the Latin American scene is diffuse. According to the
sentiments of the Court itself, the role of verification corresponds both to herself
as the Inter-American Commission, and ultimately to the OAS General
Assembly. In this sense, the judgement of compliance with Baena case11, it
appears that there is a control system not only complicated by the delegation of
responsibilities involved, but also by a lack of persuasive power versus states.

We believe that the effectiveness in carrying out the judgments issued by the
European Court is due not only a cultural issue, but also a regulatory system
that reflects reality. Thus, in the European case, before a case of impossibility of
performance, or when it is not complete, the ECHR awarded a repair

10
Feldmann Pietsch, Andreas. Some strategies to empower the Inter-American System of
Human Rights. In: The Inter-American System of Protection of Human Rights and Andean
Countries. Lima: Andean Commission of Jurists. 2006; pp.41 - 56.
11
Information obtained from the Website: www.acnur.org/biblioteca/pdf/1896.pdf. Question:
26/06/08.
alternative, the so-called "just satisfaction". In addition, "which is within the
exclusive competence of each Member an obligation to enforce decisions of the
Court, namely that it be left to the discretion of each domestic legal system, has
resulted in an enormous variety of solutions under the diversity and disparity
between the positions of each state regarding the degree of effectiveness of the
Convention into its domestic law "12.

12
Romero ROA, Jose Carlos. Enforcement of judgments of the European Court of Human
Rights. In: Notes of Judiciary Law. New York: Council of the Judiciary. 1995; P. 25.
CONCLUSIONS

 When discussing a system of protection of Human Rights, we are

describing a set of rules and agencies - properly interrelated - that
protect those rights that are enshrined in international instruments
(conventions, declarations, etc.)..
 The review compared the two systems reveals similarities and
differences. Among the first figured to establish a system of collective
security. There is, however, some differences in order to the conception
of the role that the model of democratic society plays in either protection
system, so that seems to have been explicit desire of the drafters of the
European Convention makes inseparable restrictions permitted the
exercise of certain rights and freedoms recognized with a truly
democratic regime.
 Unlike the American Convention, the European Convention was drafted
and approved, mostly by liberals and genuine democracies with a strong
and independent judiciary. By contrast, when the American Convention
entered into force, most countries were ruled by military governments.
 While the American Convention as well as the European Convention
provides for a Commission and Court. But unlike the European
Convention, the American Convention incorporated into a single
instrument the rights guaranteed both as a means of protecting them.

 The differences are appreciated, also at the level of procedure, the most
significant lack of jus standi of the victims of the American Convention
before the Court, unlike the arrangements provided for in Article 34 ° of
the European Convention at its redrafting.
 The Inter-American Commission has played a role more promoter of
women's rights, which the European Court.
 The Inter-American System, there is - in contrast to the European system - a
specialized body guarantor of monitoring and verifying compliance with the
judgments of its highest court. While the Council of Europe has delegated
this important role in its Committee of Ministers control in the Latin American
scene is diffuse.

 Ultimately, the European Court of Human Rights has been a major

milestone in the evolution of international recognition and guarantee of
human rights, conducting a work absolutely necessary. But his current
functioning raises some gaps, doubts and problems to be solved in the
future, not without some difficulties.
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Media defence of Human Rights in the International System. Lima: Jurist
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 Castillo Cordova, Luis.

The constitutional rights. Elements for a general theory. Lima: Palestra
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Website: http://www.corteidh.or.cr/.

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Jurisprudence of the European Court of Human Rights. Lima: Editorial Palestra.
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Some strategies to empower the Inter-American System of Human Rights. In:
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 United Nations
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 Organization of American States

Website: http://www.oas.org/main/spanish/.

 Perez Luño, Antonio.

Human rights, rule of law and constitution. Seventh edition. Madrid: Editorial
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 PORTAL of the EUROPE UNION

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 Royal Spanish Academy

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 Remotti CARBONELL, Jose Carlos.

The Inter-American Court of Human Rights. Structure, functioning and
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 Romero ROA , Jose Carlos.

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 Villan Duran, Carla.
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