Double Jeopardy in the Inter-American System of Human Rights: Balancing the Right and the Remedy

Authors

Lisl Brunner, Inter-American Commission of Human Rights

First Page

243

Abstract

On December 11, 2009, the Guatemalan Supreme Court ordered the re-opening of four cases involving murders committed toward the end of the country's civil war. The concise sentences were nearly identical in their summary determinations to vacate all earlier sentences - some of which were acquittals of the accused - and to resume criminal proceedings "against all those that might be responsible" for the crimes. The Guatemalan Supreme Court acknowledged that it was complying with judgments of the Inter- American Court of Human Rights (IACtHR), which had determined the international responsibility of Guatemala for failing to investigate the killings with due diligence and sanction the perpetrators. Yet, it offered no explanation for its decision to reexamine the sentences of acquittal. These and similar orders in Peru, Colombia, and Argentina were motivated by the IACtHR's jurisprudence on the principle of non bis in idem, or double jeopardy. The Court has interpreted this principle when analyzing violations of the American Convention on Human Rights (the Convention) and when granting reparations for such violations. These interpretations have not always been consistent, creating a difficult task for domestic courts that seek to apply a coherent rule that balances the rights of victims with those of the accused. The IACtHR's jurisprudence has also failed to provide guidance to states in an area in which it is most needed: when existing law is insufficient to impel the prosecution of those responsible for serious human rights violations. This article opens in Part II by presenting a background of the Inter-American system of human rights and the principle of non bis in idem. Part III explores how the IACtHR has interpreted this principle, both as a right and in the context of reparations. Part IV presents a critique of the manner in which the principle was adopted and its content. Part V examines how state parties have applied the principle in seeking to make reparations for human rights violations and questions whether they have placed the rights of the accused in peril in so doing.

Recommended Citation

Lisl Brunner, Double Jeopardy in the Inter-American System of Human Rights: Balancing the Right and the Remedy, 7 Intercultural Hum. Rts. L. Rev. 243 (2012).
Available at: https://scholarship.stu.edu/ihrlr/vol7/iss1/12