10
48.
The Commission argued that the friendly settlement procedure is not mandatory and that
the special circumstances of this case made it impossible to pursue such a settlement, for the
facts have not been clearly established because of the Government's lack of cooperation, and the
Government has not accepted any responsibility in the matter. Moreover, the Commission
contends that the rights to life (Art. 4), to humane treatment (Art. 5) and to personal liberty (Art.
7) violated in the instant case cannot be effectively restored by conciliation.
49.
Taken literally, the wording of Article 48 (1) (f) of the Convention stating that "(t)he
Commission shall place itself at the disposal of the parties concerned with a view to reaching a
friendly settlement" would seem to establish a compulsory procedure. Nevertheless, the Court
believes that, if the phrase is interpreted within the context of the Convention, it is clear that the
Commission should attempt such friendly settlement only when the circumstances of the
controversy make that option suitable or necessary, at the Commission's sole discretion.
50.
Article 45 (2) of the Regulations of the Commission establishes that:
In order for the Commission to offer itself as an organ of conciliation for a friendly
settlement of the matter it shall be necessary for the positions and allegations of the
parties to be sufficiently precise; and in the judgment of the Commission, the nature
of the matter must be susceptible to the use of the friendly settlement procedure.
The foregoing means that the Commission enjoys discretionary, but by no means arbitrary,
powers to decide in each case whether the friendly settlement procedure would be a suitable
or appropriate way of resolving the dispute while promoting respect for human rights.
51.
Irrespective of whether the positions and aspirations of the parties and the degree of
the Government's cooperation with the Commission have been determined, when the forced
disappearance of a person at the hands of a State's authorities is reported and that State
denies that such acts have taken place, it is very difficult to reach a friendly settlement that
will reflect respect for the rights to life, to humane treatment and to personal liberty.
Considering the circumstances of this case, the Court finds that the Commission's handling
of the friendly settlement matter cannot be challenged.
IX
52.
At the hearing, the Government noted that the Commission had not carried out an on-site
investigation to verify the allegations. The Government claims that Article 48 (2) of the
Convention makes this step compulsory and indispensable.
53.
The Commission objected to this argument at the same hearing, contending that on-site
investigations are not compulsory and must be ordered only in serious and urgent cases. The
Commission added that the parties had not requested such an investigation and that it would
prove impossible to order on-site investigations for each of the many individual petitions filed with
the Commission.
54.
The Court holds that the rules governing on-site investigations (Art. 48 (2) of the
Convention, Art. 18 (g) of the Statute of the Commission and Arts. 44 and 55 - 59 of its
Regulations), read in context, lead to the conclusion that this method of verifying the facts is
subject to the discretionary powers of the Commission, whether acting independently or at the
request of the parties, within the limits of those provisions, and that, therefore, on-site
investigations are not mandatory under the procedure governed by Article 48 of the Convention.