Resolución Del Presidente De La s2

ORDER OF THE PRESIDENT OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS

SEPTEMBER 14, 2012

VICTIMS’ LEGAL ASSISTANCE FUND

CASE OF SUÁREZ PERALTA v. ECUADOR

HAVING SEEN:

1. The brief of January 26, 2012 and its attachments, in which the Inter-American Commission on Human Rights (hereinafter “the Inter-American Commission” or “the Commission”) submitted to the Inter-American Court of Human Rights (hereinafter “the Inter-American Court” or “the Court”) an application against the Republic of Ecuador (hereinafter “Ecuador” or “the State”).

2. The brief of April 28, 2012, in which the representative of the alleged victims (hereinafter “the representative”) presented his brief with pleadings, motions and evidence in this case (hereinafter “the pleadings and motions brief”). The attachments to said brief were received on May 14, 2012 and, at the request of the Secretariat of the Court, were completed with the communication of June 14, 2012. The representative requested access to the Victims’ Legal Assistance Fund of the Inter-American Court of Human Rights (hereinafter “the Assistance Fund of the Court” or “the Fund”) to cover the expenses incurred by two alleged victims, five family members, four expert witnesses, four witnesses and two representatives, during their participation in the public hearing to be held in this case.

3. The brief of August 22, 2012, in which the State submitted its response to the brief presenting the case and its observations to the pleadings and motions brief. The State “consider[ed] unnecessary the participation of those not classified as beneficiaries by the [Commission] in relation to this case, and who have no role whatsoever in the proceedings at a future hearing. Furthermore, [it asserted that] the testimony of Mr. Dennis Cerezo, husband of the alleged victim, […] if pertinent, could be submitted by means of an affidavit. [Likewise,] the participation of the other persons is not at all relevant to the process. Furthermore, the State challenge[d] the request that the Victims’ Legal Assistance Fund cover the travel, hotel and per diem expenses for the lawyers [and] expert witnesses required by the petitioners to attend the hearings programmed by the Court.” 2 CONSIDERING THAT:

1. Ecuador is a State Party to the American Convention on Human Rights (hereinafter “the American Convention” or “the Convention”) since December 28, 1977 and recognized the contentious jurisdiction of the Court on July 24, 1984, in accordance with Article 62 thereof.

2. In 2008 the General Assembly of the Organization of American States (hereinafter the “OAS”) created the Legal Assistance Fund of the Inter-American Human Rights System (hereinafter “the Assistance Fund of the Inter-American System”) and entrusted its regulation to the Permanent Council of the OAS.1 This Assistance Fund was created to “facilitate access to the inter-American human rights system by persons who currently lack the resources needed to bring their cases before it.”2 In accordance with the Rules of Procedure adopted by the Permanent Council of the OAS in November 2009,3 the Assistance Fund of the Inter-American System maintains two separate accounts: one for the Inter-American Commission and the other for the Court. As to the financing of the Assistance Fund of the Inter-American System, this is currently comprised of “voluntary capital contributions from the Member States of the OAS, the Permanent Observer States and other States and donors that may wish to collaborate with the Fund.”4 Likewise, pursuant to Article 4 of the Rules of Procedure approved by the Permanent Council, the Court shall determine the eligibility requirements for requesting assistance as well as the procedure for approving such assistance.

3. Accordingly, on February 4, 2010 the Court adopted the Rules for the Operation of the Assistance Fund, (hereinafter the “Rules of the Assistance Fund”), which entered into force on June 1, 2010, and whose purpose is to “regulate the operation of, and access to, the […] Fund, for the litigation of cases before it.”5 As established therein, alleged victims wishing to have access to the Fund must follow three steps: 1) request assistance in the brief containing pleadings, motions and evidence; 2) demonstrate, by means of a sworn affidavit and other probative evidence that will satisfy the Court, that they lack the financial resources needed to cover the cost of litigation before the Inter- American Court, and 3) state precisely the aspects of their participation in the proceedings that require the use of resources of the Court’s Legal Assistance Fund. 6

4. As stipulated in Article 3 of the Rules of the Court’s Assistance Fund, in response to a request to access the Fund’s resources, the Secretariat of the Court shall conduct a preliminary review of the request for assistance and shall require the requesting party to present the background information necessary so that the request may be submitted to the consideration of the President. The President of the Court shall then evaluate the

1 Cf. AG/RES. 2426 (XXXVIII-O/08) Resolution adopted by the General Assembly of the OAS during the thirty-eighth regular session of the OAS, at the fourth plenary session, held on June 3, 2008, “Establishment of the Legal Assistance Fund of the Inter-American Human Rights System,” Operative Paragraph 2(b). 2 AG/RES. 2426 (XXXVIII-O/08), supra note 1, operative paragraph 2(a), and CP/RES. 963 (1728/09), Order adopted on November 11, 2009 by the Permanent Council of the OAS, “Rules of Procedure for the Operation of the Legal Assistance Fund of the Inter-American Human Rights System,” Article 1(1). 3 Cf. Resolution CP/RES. 963 (1728/09), supra note 2, Article 3(1).

4 CP/RES. 963 (1728/09), supra note 2, Article 2(1).

5 Rules for the Operation of the Victims’ Legal Assistance Fund of the Inter-American Court of Human Rights, approved by the Court on February 4, 2010, Article 1.

6 Cf. Rules of the Assistance Fund, supra note 5, Article 2.

3 request and make a decision within three months as of the date on which the required background information is received.

5. The representative based his application on the fact that “[t]he situation of [his] client is serious and the available financial resources must be used to cover the medical costs of treating her illness and for the rehabilitation which she is undergoing, and therefore she has no funds to cover the litigation costs.” To support this request, the representative submitted the sworn statements rendered by Melba del Carmen Suárez Peralta, Luis Alberto Azanza Azanza, Stalin Xavier Intriago Burgos, Luis Humberto Córdova Ramos, and an expert report by Hugo Moran Sánchez. All these statements confirmed that Mrs. Suárez Peralta is in a difficult financial situation due to the costs of the medical treatment required to treat her illness. Medical certificates and receipts were attached to the sworn statements, providing evidence of the treatments received, their cost and the various loans and debts pending payment by Mrs. Suárez Peralta and her husband.

6. The representative requested that the Fund cover the travel, hotel and per diem expenses during the public hearing before the Court of the alleged victims Melba Del Carmen Suárez Peralta and Melba Gardenia Peralta Mendoza; their relatives, Miguel Marcelo Suárez Robinson, Dennis Edgar Cerezo Cervantes, Gandy Alberto Cerezo Suárez, Katherine Madeline Cerezo Suárez and Marilyn Melba Cerezo Suárez; the expert witnesses Iván Castro Patiño, Ignacio Hanna Musse, Hugo Miguel Morán and Rodolfo Sánchez Jiménez; the witnesses Eduardo Tigua Castro, Luis Alberto Azanza Azanza, Luis Humberto Córdova Ramos and Stalin Xavier Intriago Burgos; and the legal representative of the alleged victims, Mr. Jorge Sosa Meza and his assistant José Peralta Rendón.

7. However, it is noted that in his pleadings and motions brief, the representative indicated that the sworn statements of Eduardo Tigua Castro, Rodolfo Sánchez Jiménez, Dennis Cerezo Cervantes, Luis Alberto Azanza Azanza, Luis Humberto Córdova Ramos and Stalin Xavier Intriago Burgos were to be offered as testimonial evidence. Likewise, he indicated that the statements of Iván Castro Patiño, Ignacio Hanna Musse and Hugo Morán Sánchez were offered as expert evidence. Therefore, the President notes that there are inconsistencies as to the role and number of people who would need support from the Assistance Fund to participate in the public hearing, in relation to the witness and expert testimonies indicated in the offer of evidence, a matter that should be clarified in the final list of deponents that will be required in due course.

8. In relation to the foregoing, the President notes that the alleged victims have requested assistance from the Fund to cover expenses related not only to the production of evidence before the Court, specifically for the presentation of six testimonies and three expert testimonies at the public hearing, but also for the attendance of the alleged victims, their relatives and their legal representative during the public hearing of this case.

9. As to the State’s challenges regarding the Assistance Fund, the President notes that its concerns are related to the role of the persons offered by the representatives, and not to the lack of economic resources of the alleged victims and the consequences that these financial constraints might have for the parties’ access to the inter-American system of human rights. Furthermore, it has not yet been determined whether the testimonies offered by the representative shall be admitted by the Court, or the means by which these will be rendered. In accordance with Article 50(1) of the Court’s Rules of Procedure, that decision is taken by the Court or its President, once the parties have submitted the definitive lists of proposed deponents and the right to defense has been

4 guaranteed, under the terms of Articles 45 to 49 of the Court’s Rules of Procedure. Therefore, the State’s challenges to the ruling in relation to the Fund are dismissed. Any decision regarding the appropriateness or relevance of the final deponents proposed by the victims’ representative shall be taken at the proper procedural moment.

10. The President confirms that the request made on behalf of the alleged victims to have access to the Court’s Assistance Fund was submitted at the appropriate time in the pleadings and motions brief (supra having seen paragraph 2). The President reiterates that the alleged victims are the ones who should benefit from the Assistance Fund 7. In this regard, the President takes cognizance of the lack of financial resources claimed by the alleged victims and their representative and considers the affidavits rendered before a notary public, as well as the other probative evidence offered, as sufficient proof thereof, pursuant to Article 2 of the Rules for the Operation of the Assistance Fund.

11. The President recalls that the Court’s Legal Assistance Fund is comprised of voluntary contributions from donor sources (supra considering paragraph 2), and that these limited resources are insufficient to cover all the expenses related to a possible appearance and presentation of evidence before the Court by the alleged victims. Therefore, in each specific case, the President must consider a request for financial assistance on the basis of the resources available and bearing in mind the need for assistance that might arise in other cases before the Court, in order to ensure the correct administration and fair distribution of the Fund’s limited resources.

12. Based on the foregoing considerations, the President considers valid the request made by the representative of the alleged victims to have recourse to the Court’s Legal Assistance Fund. Accordingly, with regard to the resources currently available in the Court’s Assistance Fund, the alleged victims shall be granted the financial assistance necessary for the presentation of a maximum of four witnesses, whose testimonies shall be rendered either by means of affidavits or at a public hearing, to be determined in due course. Likewise, the President considers it appropriate to defer a decision on the specific amount, recipients and purpose of the financial assistance to be provided to the alleged victims until such time as the Presidency, or the Court, rules on the validity and relevance of the evidence offered by experts and witnesses and on the opening of the oral proceedings, in accordance with Article 50(1) of the Court’s Rules of Procedure, in order to have certainty regarding which of the testimonies shall be admitted by the Court, and the means by which these shall be obtained.

THEREFORE:

THE PRESIDENT OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS, in the exercise of his authority in relation to the Victims’ Legal Assistance Fund of this Court, and in accordance with Article 31 of the Court’s Rules of Procedure and Article 3 of the Rules of the Legal Assistance Fund,

7 Cf. Case of Contreras et al. v. El Salvador. Order of the President of the Inter-American Court of Human Rights of March 4, 2011, ninth considering paragraph, and Case of Mendoza et al. (Juveniles sentenced to Life imprisonment) v. Argentina. Order of President of the Inter-American Court of Human Rights of May 8, 2012, ninth considering paragraph.

5 DECIDES:

1. To declare admissible the request submitted by the alleged victims, through their representative, to have access to the Victims’ Legal Assistance Fund of the Inter-American Court of Human Rights, and to grant the financial assistance necessary for the presentation of a maximum of four testimonies, either by means of affidavits or at a public hearing. The amount, recipients and purpose of this assistance shall be determined when a decision is made on the production of the testimonial and expert evidence, and the opening of the oral proceedings, under the terms of Article 50 of the Court’s Rules of Procedure, in accordance with considering paragraph 12 of this Order.

2. To order the Secretariat of the Court to notify this Order to the representative of the alleged victims, to the Republic of Ecuador and to the Inter-American Commission on Human Rights.

Diego García-Sayán President

Pablo Saavedra Alessandri Secretary

So ordered,

Diego García-Sayán President

Pablo Saavedra Alessandri Secretary