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Corruption and Human Rights in the Americas: Inter-American Standards

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Corruption and Human Rights in the Americas: Inter-American Standards OEA/Ser.L/V/II. Doc. 236 6 December 2019 Original: Spanish INTER-AMERICAN COMMISSION ON HUMAN RIGHTS Corruption and Human Rights in the Americas: Inter-American Standards 2019 cidh.org OAS Cataloging-in-Publication Data Inter-American Commission on Human Rights. Corruption and human rights: inter-American standards : approved by the Inter- American Commission on Human Rights on December 6, 2019. p. ; cm. (OAS. Official records ; OEA/Ser.L/V/II) ISBN 978-0-8270-7015-8 1. Human rights. 2. Corruption. 3. Political corruption. I. Title. II. Series. OEA/Ser.L/V/II. Doc.236/19 INTER-AMERICAN COMMISSION ON HUMAN RIGHTS Members Esmeralda Arosemena de Troitiño Joel Hernández García Antonia Urrejola Margarette May Macaulay Francisco José Eguiguren Praeli Luis Ernesto Vargas Silva Flávia Piovesan Executive Secretary Paulo Abrão Assistant Executive Secretary for Monitoring, Promotion and Technical Cooperation María Claudia Pulido Assistant Executive Secretary for the for the Case and Petition System Marisol Blanchard Vera Chief of Staff of the Executive Secretariat of the IACHR Fernanda Dos Anjos In collaboration with: Edison Lanza, Relator, Special Rapporteur for Freedom of Expression Soledad García Muñoz, Special Rapporteurship on Economic, Social, Cultural, and Environmental Rights (ESCER) Approved by the Inter-American Commission on Human Rights on December 6, 2019 TABLE OF CONTENTS INTRODUCTION 11 A. Methodology 13 B. Structure 14 CHAPTER 1 | CONVERGENCE OF CORRUPTION AND HUMAN RIGHTS 19 A. General Background 19 B. International Response: International Anti-corruption Initiatives 21 1. Inter-American System 21 2. Universal System 24 C. Domestic Responses: Initiatives of American States in the Fight against Corruption 26 D. Convergence from the Perspective of International Human Rights Bodies 31 CHAPTER 2| THE PHENOMENON OF CORRUPTION AND HUMAN RIGHTS 41 A. The Phenomenon of Corruption in the Americas 41 B. Factors that Facilitate or Foster Corruption 48 C. Principles in the Fight against Corruption 50 D. The Negative Impact of Corruption on Democracy and the Rule of Law 52 E. The Negative Impact of Corruption on Human Rights 55 F. Dynamics of the Interaction between Human Rights Protection and the Fight against Corruption 56 G. Affectations and Impact of Corruption on Economic, Social, Cultural, and Environmental Rights (ESCER) 58 1. Maximum Resources Available 61 2. Discrimination 63 3. Impact and Materialization of Corruption in ESCER 64 4. Poverty 71 H. Affectations and Impact of Corruption on Freedom of Expression 73 1. Freedom of Expression 73 2. Investigations and Complaints of Corruption as a Matter of Great Public Interest 76 3. Protection of Journalists' Sources and of the Media 81 4. Access to Information 83 5. New Technologies and Their Role in Combating Corruption 89 6. Pluralism and Diversity in the Media 90 CHAPTER 3 | OBLIGATIONS OF STATES IN CASES OF HUMAN RIGHTS VIOLATIONS DUE TO ACTS OF CORRUPTION 95 A. Obligations of States under the American Convention on Human Rights 96 1. Obligation to Respect Human Rights 96 2. The Obligation to Adopt Measures to Prevent Rights Violations Related to Acts of Corruption 97 3. The Obligation to Investigate Acts of Corruption 99 4. The Obligation to Guarantee the Exercise of Rights on an Equal Footing, without Discrimination 102 5. The Obligation to Make Reparation to Victims of Corruption 103 B. States' Obligations under the American Declaration of the Rights and Duties of Man 104 CHAPTER 4 | STRENGTHENING OF PUBLIC INSTITUTIONS: THE PART PLAYED BY ADMINISTRATION OF JUSTICE AND THE ELECTORAL APPARATUS 109 A. Administration of Justice 109 1. The Role of Administration of Justice 109 a. Guarantees of Independence 115 2. Due Process as a Limit on Discretion 118 a. Impartiality 118 b. The Guarantee of a Reasonable Time 120 c. The Duty to Investigate 121 d. The Right to Defense 123 e. The Duty to State Reasons 124 f. System of Judicial Remedies 125 3. The Effectiveness of the Institutional Response in Criminal Investigation 128 a. Due Process Guarantees for Persons Accused of Corruption 130 B. Electoral Institutions and Corruption 135 1. Electoral Oversight Bodies 139 2. Relevant Actors: Political Parties, Citizen Movements, and Candidacies 140 CHAPTER 5 | PERSONS AND GROUPS OF SPECIAL CONCERN 145 A. Human Rights Defenders, Judicial Officers, and Environmentalists 145 B. Journalists and Others Who Work in Communications Media 151 C. Whistleblowers and Witnesses of Acts of Corruption 152 1. Differential Impacts on Whistleblowers and Witnesses 154 D. Differentiated Impact on Groups Facing Vulnerability and Discrimination 157 1. Persons Deprived of Liberty 157 2. Indigenous and Tribal Peoples 160 3. Persons in Human Mobility 163 4. Children and Adolescents 165 5. Women, LGBTI Persons, Persons of African Descent, Persons with Disabilities, and Older Persons 167 CHAPTER 6 | THE HUMAN RIGHTS APPROACH TO PUBLIC POLICIES FOR FIGHTING CORRUPTION 175 CONCLUSIONS 187 RECOMMENDATIONS 193 INTRODUCTION Chapter 1: Introduction | 11 INTRODUCTION 1. The principle role of the Inter-American Commission on Human Rights (hereinafter “the Inter-American Commission,” “the Commission,” or “the IACHR”) is to promote and protect human rights in the Americas. It exercises these functions through a variety of mechanisms, in accordance with the provisions of Articles 106 of the OAS Charter1 and 41 of the American Convention on Human Rights2 (hereinafter "the American Convention," the “Convention,” or the “ACHR”). 2. In exercise of its mandate and in response to the regional situation revealed through its various mechanisms, the IACHR presents, with this thematic report, an analysis of the phenomenon of corruption from a human rights perspective. The Commission also provides, herein, an analysis of the progress made and challenges encountered, as well as the initiatives that have helped consolidate regional, national, and local strategies for addressing the need to fight and eradicate the phenomenon of corruption in the hemisphere. Along these lines, the IACHR’s aim with this report is to show the multidimensional impact of corruption on democracy, the rule of law, and, in particular, on the enjoyment and exercise of human rights on the continent. Thus, the report includes a series of recommendations for States on combating corruption from a human rights perspective. 3. The starting point for the drafting of this document is Resolution 1/18 of the Inter- American Commission. Therein, the IACHR found corruption to be a phenomenon characterized by the abuse or misuse of the power entrusted, which may be public or private, that displaces the public interest for a private benefit (personal or for a third party) and that damages democratic institutions and the rule of law, and affects access to human rights. In this regard, with this report, the IACHR provides a tool for moving forward in addressing corruption from a human rights approach that enables the coordination of effective strategies for eradicating this regional scourge; that dialogues with the actions taken by other mechanisms of the OAS or 1 OAS Charter. Article 106: There shall be an Inter-American Commission on Human Rights, whose principal function shall be to promote the observance and protection of human rights and to serve as a consultative organ of the Organization in these matters. An inter-American convention on human rights shall determine the structure, competence, and procedure of this Commission, as well as those of other organs responsible for these matters. 2 American Convention on Human Rights. Article 41: The main function of the Commission shall be to promote respect for and defense of human rights. In the exercise of its mandate, it shall have the following functions and powers: b. to make recommendations to the governments of the member states, when it considers such action advisable, for the adoption of progressive measures in favor of human rights within the framework of their domestic law and constitutional provisions as well as appropriate measures to further the observance of those rights; c. to prepare such studies or reports as it considers advisable in the performance of its duties; e. to respond, through the General Secretariat of the Organization of American States, to inquiries made by the member states on matters related to human rights and, within the limits of its possibilities, to provide those states with the advisory services they request. Inter-American Commission on Human Rights | IACHR 12 | Report on Corruption and Human Rights in the Americas the universal system; and that, in particular, strengthens cooperation with Member States and civil society on initiatives to fight corruption. 4. Among the most important impacts of corruption in the region, the IACHR puts special emphasis on harm to State institutions particularly in the administration of justice and elections systems, with the resulting impacts on the exercise of political rights. Institutional impacts can include concentration of power, discretionary acts, a lack of public administration oversight, and impunity, as well as cultural elements such as tolerance of corruption. Corruption also has a crosscutting effect on everyday actions and can produce structural systems of corruption or macrocorruption, which in some cases can amount to complex forms of State capture, the co-opting of State structures, and even diversion of institutions for criminal purposes. 5. In addition, with regard to impacts on the administration of justice, the IACHR finds that administration of justice itself can be the subject of acts of corruption affecting its independence, and at the same time transforming it into an agent of corruption harming the proper administration of justice. Therefore, the effective implementation of due process guarantees is a safeguard for preventing and controlling judicial corruption, limiting opportunities for discretion and guaranteeing forms of control. 6. It is also important to highlight the differentiated impact of corruption on the situation of freedom of expression in the Americas, as well as its relationship to the enjoyment and exercise of the economic, social, cultural, and environmental rights (ESCER) of the residents of the hemisphere.
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