eNotes  -  July 2007

Amicus Briefs Submitted to Inter-American Commission on Human Rights

Two amicus briefs facilitated by the Vance Center's Amicus Network were recently filed at the Inter-American Commission on Human Rights. The case of Marcel Claude Reyes and Others v. State of Chile concerns access to state-held information regarding natural resources and environmental protection. The second, Eduardo Perales Martinez v. State of Chile, is brought on the basis of due process of law and freedom of speech.

Claude Case Challenges Restrictions on Access to Information

In 2004, Chilean public interest organizations filed a petition before the Inter-American Commission on Human Rights against the state of Chile, alleging violations of the right to access public information and to participate in public matters. The petition was brought on behalf of Marcel Claude Reyes and other petitioners who were denied access to information on environmental accounts held by Chile's Central Bank. A decision of admissibility from the Commission is pending.

Petitioners are seeking access to facts, sources and methodology used in a report produced by Chile's Central Bank on the country's forestry resources. The claim contends that the Chilean government has withheld this information, on the basis that the Central Bank is exempt from certain domestic legislation allowing access to state information. 

An amicus brief was filed by the Open Society Justice Initiative, Instituto Prensa y Sociedad in Peru and Libertad de Información México. The brief was developed in coordination with the Vance Center; Michael Hepworth, of counsel at DLA Piper US LLP; David Langlois, a partner at Sutherland Asbill & Brennan LLP; and local pro bono counsel, Juan Pablo Olmedo and Verónica Bustos Vial. It emphasizes the importance of the information in question to sound public policy decisions and government transparency.

"The question of whether Chile's forestry resources are being renewed or sustained through wise management, or whether they are being depleted at unacceptable rates, has been the subject of intense national debate in Chile, and the information [sought in this matter] is essential to sound policy decisions," Hepworth and Langlois said. 

The amicus brief focuses on the legal underpinnings of the right of access to government information, and highlights international instruments and declarations that promote access to information related to environmental issues.

"Drawing attention to these declarations and principles may help the Commission understand the importance of the Claude case and the environmental information that the petitioners seek," Hepworth and Langlois said.

The Claude case has the potential to affect not only Chile's domestic policy on access to information but could also strengthen the effectiveness of "freedom of thought and expression" provisions in the Inter-American Convention on Human Rights, according to Hepworth and Langlois. The current petition, if admitted, will test the scope of an earlier decision by the Inter-American Commission, which affirmed that the Convention protects a right of access to state-held information in signatory states. While the Commission lacks an enforcement mechanism, its decisions can significantly influence the actions of member states, according to Hepworth and Langlois. The Commission can also refer the case to the Inter-American Court for further action if a member state does not respond satisfactorily to the Commission after a petition has been admitted.

Click here to read the Claude brief.

Amici Make Case for Freedom of Speech

Early in 2007, the Freedom of Expression Institute Law Clinic in South Africa and the Peruvian Press Council submitted an amicus brief to the Inter-American Commission on Human Rights in the matter of Eduardo Perales Martinez v. Chile. The brief was developed by the Vance Center in coordination with Edward P. Davis, Jr., a partner at Orrick, Herrington & Sutcliffe LLP; Danielle P. Van Wert, an associate at Orrick; Orrick pro bono counsel Rene Kathawala; and local pro bono counsel, Juan Pablo Olmedo and Verónica Bustos Vial.

The matter deals with freedom of speech as it applies to public servants. The petitioner, Eduardo Perales, was removed from his post in the Chilean police force when he made a joke to his colleagues about a controversial government decision to raise wages within the police force. Perales was later questioned by a superior about the joke and then asked to resign by the General of his region. When Perales refused to resign, he was removed from his post by a Supreme Decree of the President of Chile. Perales then decided to take the matter to court.

The Chilean Appeals Court originally overturned the Supreme Decree. The Supreme Court of Chile, however, overturned the Appeals Court's decision, holding that the power to issue a Supreme Decree was the prerogative of the president and that he was not required to justify his decision.

With his options in Chile exhausted, Perales took the matter to the Inter-American Commission on Human Rights, where the petition is pending a decision of admissibility. Perales claims that his right to due process of law was violated as he was not given the opportunity to defend himself. He also claims that his freedom of speech was violated.

The amicus brief examines the ways in which application of the First Amendment of the U.S. Constitution to the facts of the Perales case would influence its outcome. The brief also examines similar cases that have gone through the European Court of Human Rights. The comparative analysis aims to provide the Commission with a sense of how different legal approaches can lead to similar outcomes.

"A decision by the Inter-American Commission to uphold Mr. Perales's right to freedom of speech could have an important impact in other global regions where this right is not well-defined," Davis said. 

"Our argument is a measured one," he added. "It looks to balancing the needs of the public entity with the value of speech."

Click here to read the Perales brief.

For more information on the Vance Center's Global Pro Bono Clearinghouse and Amicus Network contact Elise Colomer Grimaldi at ecolomer@nycbar.org.

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