Report No. 24 (2015) IACHR. Petition No. 1752-09 (Estados Unidos de America)

• Court: Inter-American Comission of Human Rights
• Year: 2015
• Petition Number: 1752-09
• Report Number: 24
• Respondent State: United States
• Case Type: Admissibility
• Alleged Victim: Bernardo Abán Tercero

REPORT No. 24/15

PETITION 1752-09

REPORT ON ADMISSIBILITY

BERNARDO ABAN TERCERO

UNITED STATES

OEA/Ser.L/V/II

Doc. 21

24 J. 2015

Original: English

Approved electronically by the Commission on J. 24, 2015

Cite as: IACHR, Report No. 24/15, Petition 1752-09. A.. Bernardo Aban Tercero. United S.s. J. 24, 2015.

www.cidh.org

REPORT No. 24/15¹

PETITION 1752-09

ADMISSIBILITY

BERNARDO ABAN TERCERO

UNITED STATES
JUNE 24, 2015

I. SUMMARY

1. On September 10, 2009, the Inter-American Commission on Human Rights (hereinafter, “the Inter-American Commission” or “the IACHR”) received a petition lodged by P.B. (hereinafter, “the petitioner”) on behalf of Bernardo Aban Tercero (hereinafter, “the alleged victim” or “Mr. Tercero”), a Nicaraguan national deprived of his liberty on death row in Texas, United S.s. According to press reports, Mr. Tercero is scheduled to be executed on August 26, 2015.

2. The petitioner submits that Mr. Tercero was under 18 years of age at the time of the offense; that the S. refused to notify the consular authorities in violation of Article 36 of the Vienna Convention on Consular Relations, despite the alleged victim’s request; and that the court-appointed counsel rendered ineffective assistance. L., the petitioner states that Mr. Tercero’s right to due process has been violated; in particular, that the prosecution supressed the declarations and evidence of witnesses, by threat or intimidation. As of the date of approval of this report, the S. has not submitted its observations.

3. W. prejudging the merits of the complaint, after examining the position of the petitioner, and pursuant to the requirements set out in Articles 31 to 34 of its Rules of Procedure, the Inter-American Commission decides to declare the case admissible for the purpose of examining the alleged violation of the rights set forth in Articles I (right to life, liberty and personal security), VII (right to protection for children), XVIII (right to a fair trial) and XXVI (right to due process of law) of the American Declaration of the Rights and Duties of Man (hereinafter, “the American Declaration”). The IACHR also decides to notify the parties of its decision and include it in its Annual Report to the General Assembly of the OAS.

II. PROCEEDINGS BEFORE THE IACHR

4. On September 10, 2009, the Inter-America Commission received a petition filed initially against Nicaragua by P.B. on behalf of the alleged victim. By letter dated J. 24, 2013, the IACHR informed the petitioner that, having completed the study set forth in Article 26 of the Commission, it was not possible to process the petition against Nicaragua given that the information it contained did not satisfy the requirements set forth in those Rules and other applicable instruments. F., the IACHR informed the petitioner that it had also identified allegations in the petition against the United S.s and that such claims were under study in accordance with the Rules of Procedure. The Commission also requested that the allegations against the United S.s be sent in English, the official language of the concerned S..

5. On M. 19, 2013, the IACHR received a communication in English summarizing the allegations against the United S.s and requesting precautionary measures. On M. 24, A.7., May 29, and August 20, 2013, the petitioner sent additional information. On N. 5, 2013, the Commission forwarded the pertinent parts of the petition to the S., granting it a three month period in which to submit its observations as provided for in Article 30(3) of the Commission’s Rules of Procedure.

6. On J. 30, 2014, the petitioner sent additional information, which was transmitted to the S.. As of the date of the adoption of this report, the Inter-American Commission has not received any observations from the United S.s.

Precautionary Measures

7. On April 4, 2013, the Inter-American Commission notified the S. that it had adopted precautionary measures in favor of Mr. Tercero, and requested a stay of execution until such time as it would be able to issue a determination on the merits of the petition.

III. POSITION OF THE PARTIES

1. Position of the petitioner

8. According to the information available in the file,² on October 20, 2000, Mr. Tercero was sentenced to the death penalty in the 232^nd District Court of H.C., Texas, for a capital murder committed during the course of an aggravated robbery on M. 31, 1997. On N. 20, 2000, counsel for the alleged victim filed a Motion for New Trial based upon prosecutorial misconduct, which was denied on December 18, 2000. The Texas Court of Criminal Appeals denied the direct appeal on September 18, 2002, and on N. 16, 2005, the same court denied a state habeas corpus petition.

9. On October 24, 2006, Mr. Tercero filed a federal habeas corpus petition containing a number of claims, one of which was that the alleged victim was supposedly under 18 years when he committed the offense for which he received the death penalty and was therefore ineligible for execution pursuant to the decision of the U.S. Supreme Court in Roper v. Simmons (543 U.S. 551, 125 S.Ct. 1183, 2005).

10. On J. 22, 2007, the S. filed its answer to the habeas corpus petition, setting forth the results of an investigation by the U.S. Embassy in Nicaragua. The S. claimed that there was a “rectification” of the alleged victim’s birth records which purportedly changed his birth date to show that he was younger than he actually was. Based on this answer, counsel for Mr. Tercero was allocated funds to do their own investigation in Nicaragua. In N. of 2007, N.V., the investigator retain by his counsel, traveled to Nicaragua and reportedly conducted an exhaustive investigation. On J. 8, 2008, Mr. Tercero’s counsel presented a detailed affidavit from Ms. Villanueva, in which she confirmed the authenticity of the birth certificate. On M. 31, 2008, the Court of Appeals directed the alleged victim’s counsel to return to state court to exhaust the Simmons claim.

11. On N. 4, 2009, the parties submitted their proposed findings of fact and conclusions of law before the H.C.D.C.. On N. 13, 2009, the District Court signed the S.’s proposed findings and issued an Order denying Mr. Tercero’s application for writ of habeas corpus. On M. 3, 2010, the Court of Criminal Appeals adopted the District Court’s findings and conclusions and denied relief.

12. On J. 14, 2010, the alleged victim filed a second amended petition for habeas corpus, which was denied by the District Court on February 7, 2013. On M. 5, 2013, the alleged victim filed a notice of appeal. There is no information in the Commission’s file regarding the outcome of this proceeding. On J. 30, 2014, the U.S. Supreme Court denied a petition for certiorari. According to publicly available information, Mr. Tercero is scheduled to be executed on August 26, 2015.

13. Petitioner argues that the purported human rights violations against the alleged victim render his death penalty conviction and sentence contrary to domestic and international law. He alleges in this regard that Mr. Tercero was under 18 years of age at the time of the offense; that the S. refused to notify the consular authorities in violation of Article 36 of the Vienna Convention on Consular Relations; that the court-appointed counsel rendered ineffective assistance; and that Mr. Tercero’s right to due process has been violated.

14. According to the petitioner, Mr. Tercero was under 18 years of age at the time of committing the offense for which he was convicted and sentenced to death. The petitioner asserts in this regard that the imposition of the death penalty is a violation of the alleged victim’s rights under the Eighth and Fourteenth Amendments of the U.S. Constitution as ruled by the U.S. Supreme Court in Roper v. Simmons. The petitioner indicates that the state of Texas, the Federal District Court and prosecuting authorities have sought to undermine the legal evidentiary documents obtained from Nicaraguan authorities, in particular, a birth certificate, attested microfiche records, affidavits of Mr. Tercero’s mother and other family members and neighbors, and the affidavit of a certified defense investigator.

15. According to the information provided, Mr. Tercero’s real date of birth is August 20, 1979. He allegedly immigrated to the United S.s in 1994 when he was 15 years old. Given that he was an undocumented child he could not find work, had no money to obtain food, and would sometimes sleep on the street. That same year he purportedly asked his grandmother in Nicaragua to send his older brother’s birth certificate. His older brother, who reportedly was also born on August 20, but of 1976, died before Mr. Tercero was born. Following the tradition in Nicaragua, the alleged victim was reportedly given his brother’s name. Mr. Tercero allegedly used this document to obtain a Texas Identification Card in order to find a job.

16. It was allegedly on the basis of his brother’s identity and age that the presumed victim was convicted and sentenced to the death penalty. At the time of the trial in 2000 Mr. Tercero allegedly did not reveal his true identity given that it was constitutional to sentence to death...