9
46.
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.
47.
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.
48.
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.
49.
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
50.
In its submissions and 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.
51.
The Commission objected to this argument in its submissions and at the 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.
52.
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.