Medidas de reparação e o cumprimento de sentenças: Liame na jurisprudência da Corte Interamericana de Direitos Humanos e o paradigma europeu

Abstract

The effectiveness of the Human Rights Courts is directly related to the execution of sentences by the States, which is related to the remedial measures determined. Considering their impacts on the system, this work aims to understand the reasons that lead to the failure of compliance with judgments at the Inter-American Court of Human Rights, by means of comparison with the reality of the European Court of Human Rights. To this end, the judgments of the last five years, that is, from 2015 to 2019, of both Cortes were studied, mainly through their respective reports of supervision of the execution of judgments, in order to profile the judgments and assess the nexus between them and the remedial measures applied. The hypothesis was to find a direct relationship between the type of remedial measures adopted and the performance of the states in complying with the sentences. That was expected especially with respect to the satisfactory and guarantees of non-repetition measures adopted by the Inter-American system. It was envisaged that, unlike in the European system, the absence of state’s margin of appreciation in the Inter-American System as regards the measures to be taken in the inter-American system promoted greater resistance by States to the compliance with judgments. The results obtained demonstrated better performance by the European states in all types of remedial measures. However, concerning the judgments in which compliance is pending, the measures that the states demonstrated the greatest difficulty in complying with were the same in both the Inter-American Court and the European Court. They were the measures of legislative reform, non-repetition, and investigation and sanction of responsible parties. This fact revealed that not only do the types of reparation measures have an impact on compliance with judgments and that there must be another factor to that. Therefore, based on the profile of the Courts observed by the results of the survey, it is then suggested a hybridization of the model of reparation of the Inter-American Court. That would make it more similar to the European model by increasing state’s participation in the choice of the remedies and reduce state resistance to them by making them less onerous.