In
the Loayza-Tamayo Case,
the
Inter-American Court of Human Rights, composed of the following judges:
Héctor Fix-Zamudio, President
Hernán Salgado-Pesantes, Vice President
Alejandro Montiel-Argüello, Judge
Máximo Pacheco-Gómez, Judge
Oliver Jackman, Judge
Alirio Abreu-Burelli, Judge
Antônio A. Cançado Trindade, Judge;
also
present:
Manuel E. Ventura-Robles, Secretary,
Ana María Reina, Assistant Secretary,
pursuant
to Article 31(6) of the Rules of Procedure of the Inter-American Court of
Human Rights (hereinafter “the Rules of Procedure”), renders the following
judgment on the preliminary objection interposed by the Government of the
Republic of Peru (hereinafter “the Government” or “Peru”).
I
1.
This case was submitted to the Inter-American Court of Human Rights
(hereinafter “the Court” or “the Inter-American Court”) by the Inter-American
Commission on Human Rights (hereinafter “the Commission” or the “Inter-American
Commission”) by petition of January 12, 1995.
The case originated in a complaint (No. 11.154) received at the Secretariat
of the Commission on May 6, 1993.
2.
In referring the case to the Court, the Commission invoked Articles
50 and 51 of the American Convention on Human Rights (hereinafter “the Convention”
or “the Inter-American Convention”) and Articles 26 et
seq. of the Rules of Procedure. The
Commission submitted this case to the Court for a decision as to whether,
with the alleged “unlawful deprivation
of liberty, torture, cruel and inhuman treatment, violation of the judicial
guarantees, and double jeopardy to María Elena Loayza-Tamayo for the same
cause, in violation of the Convention,” and of Article 51(2) of the Convention
for failing to “implement the Commission's
recommendations,” the Government had violated the following articles of
the Convention: 7 (Right to Personal Liberty), 5 (Right to Humane Treatment),
8 (Right to a Fair Trial) and 25 (Right to Judicial Protection), all these
in relation to Article 1(1) (Obligation to Respect Rights). It also asked the Court to declare that the
Government “must pay full compensation
to María Elena Loayza-Tamayo for the grave damage -material and moral- she
has suffered and, consequently, to instruct the Peruvian State to order her
immediate release and make her appropriate reparation” and “pay the costs incurred in processing this
case.”
3.
The Inter-American Commission named Oscar Luján-Fappiano as its Delegate
and Edith Márquez-Rodríguez, Executive Secretary, and Domingo E. Acevedo as
its Attorneys. The Commission named
the following persons as their Assistants:
Juan Méndez, José Miguel Vivanco, Carolina Loayza, Viviana Krsticevic,
Verónica Gómez and Ariel E. Dulitzky, the legal representatives of the plaintiff
as petitioners before the Commission.
4.
After the President of the Court (hereinafter “the President”) had
made the preliminary review of the application, the Secretariat of the Court
(hereinafter “the Secretariat”) notified the State of the application in a
note of February 9, 1995 -received on February 13- and informed it that it
had a period of three months in which to reply, two weeks to name an Agent
and Alternate Agent and thirty days to present preliminary objections, all
of those periods to commence on the date of notification of the application. In a communication of the same date, the Government
was invited to designate a Judge ad
hoc.
5.
On March 23, 1995, the Government communicated to the Court that it
had appointed Mario Cavagnaro-Basile to act as its Agent and on the following
day it reported that it had appointed Iván Paredes-Yataco to act as Alternate
Agent.
6.
By communication of March 22, 1995, the Delegate of the Commission
indicated that the thirty-day deadline for the Government to present preliminary
objections had expired on March 13.
7.
On March 24, 1995 Peru filed a preliminary objection alleging “non-exhaustion of all domestic remedies” (capitals in original) and
on April 3, 1995, it submitted a brief containing arguments to obviate interpretations
contrary to its interests regarding the time limits established in the Regulations.
In a brief of April 24, 1995, the Commission urged that the brief of
preliminary objections submitted by the Government be declared inadmissible,
and on April 27, 1995, it submitted another brief contesting the preliminary
objection filed by the Government.
8.
In the brief of preliminary objections the Government requested, in
accordance with Article 31(4) of the Rules of Procedure, suspension of the
“proceedings on the merits until such time
as the preliminary objection is resolved.”
The Court, by Order of May 17, 1995, declared the request inadmissible
and decided to proceed with the case at its various judicial stages on the
grounds that the suspension sought did not meet the requirement of “exceptional situation” and could not be
justified on any grounds.
9.
On May 5, 1995, the Government submitted its answer to the application.
10.
By Order of the President of May 20, 1995, the parties were summoned
to a public hearing on preliminary objections to be held at the seat of the
Court on September 13 of that year. The
Commission orally requested a postponement of the hearing, and the President,
by Order of June 30, 1995, acceded to the request and set the hearing for
September 23.
11.
On May 23, 1995, the Government submitted a brief in which it refuted
“the alleged extinguishment of [its] right to file this preliminary objection,”
and on August 24, 1995, the Commission requested that the Court deem the brief
not to have been filed and to expunge it definitively from the records. On September 18, the President declared that
the brief would be evaluated in due course.
12.
In a brief of December 29, 1995, the Commission, for its part, presented
a copy of the judgment of October 6, 1995, rendered by the Supreme Court of
Justice upholding the sentence passed on María Elena Loayza-Tamayo et al. for the crime of terrorism, and on January 22, 1996, the Government
requested that the Commission's brief be rejected and considered not to have
been filed. On January 30, 1996, the
President declared that the brief would be evaluated in due course.
13.
The public hearing took place at the seat of the Court on September
23, 1995.
There
appeared
for
the Government of Peru:
Mario Cavagnaro-Basile, Agent
Iván Carluis Fernández-López, Advisor;
for
the Inter-American Commission on Human Rights:
Oscar Luján-Fappiano, Delegate
Edith Márquez-Rodríguez, Attorney
Domingo E. Acevedo, Attorney
José Miguel Vivanco, Assistant
Ariel E. Dulitzky, Assistant
II
14.
The Commission claims in its application that:
a. On February 6, 1993, María Elena Loayza-Tamayo,
a Peruvian citizen and a professor at the Universidad San Martín de Porres,
was arrested together with a relative, Ladislao Alberto Huamán-Loayza, by
officers of the National Anti-Terrorism Bureau (DINCOTE) of the Peruvian National
Police, while visiting the construction site of a property she owned on Mitobamba
Street, Block D, Lot 18, Urbanización Los Naranjos, Distrito de los Olivos,
Lima, Peru. The police officers did
not produce an arrest warrant issued by a court or any order from a competent
authority. The arrest was based on
a charge made to the police authorities by Angélica Torres García, alias “Mirtha,”
that María Elena Loayza-Tamayo was a collaborator of the subversive group
Shining Path [Sendero Luminoso]. The Supreme Court of Military Justice acquitted
Ladislao Alberto Huamán-Loayza of the crime of treason and he was released
in November 1993.
b. María Elena Loayza-Tamayo was detained by the
DINCOTE from February 6 to 26, 1993. During that period she was held incommunicado for ten days and subjected to torture, inhuman and degrading
treatment and unlawful pressure. All
this was done for the purpose of forcing her to incriminate herself and confess
that she was a member of the Peruvian Communist Party-Shining Path (PCP-SL).
Despite this, the victim not only declared her innocence, denying membership
of the PCP‑SL, but “criticized its methods: the violence and the human rights violations
committed by that subversive group.” On
March 3, she was transferred to the Chorrillos Women's Maximum Security Prison
and, according to the Commission, was still incarcerated in Peru on the date
the application was filed.
c. During those ten days she was allowed no contact
with her family or her attorney, nor were they informed of her arrest.
María Elena Loayza-Tamayo's family learned of her arrest through an
anonymous telephone call on February 8, 1993.
No protective remedy could be filed on her behalf because Decree Law
No. 25.659 (Counter-Insurgency Law) prohibited the filing of “a
petition of habeas corpus when the acts in question concern the crime
of terrorism.”
d. On February 26, 1993, María Elena Loayza-Tamayo
was exhibited to the press, dressed in a striped gown, and accused of the
crime of treason against her country. The Police Report specified that the crime was treason and the next
day her case was brought before the Special Naval Court for trial. A number of judicial proceedings were instituted
before the organs of the Peruvian domestic jurisdiction. She was tried by the Military Court for the
crime of treason against her country: the
Special Naval Court composed of “faceless
military judges” acquitted her; the Special Naval War Council found her
guilty on appeal; a petition for nullification was filed and the Supreme Council
of Military Justice acquitted her of that crime and ordered that the records
be forwarded to the regular courts. In
that jurisdiction she was tried for the crime of terrorism: the Forty-third Criminal Court of Lima bound
her over for trial; the “faceless Special
Tribunal of the regular court system,” on the basis of the very same facts
and charges, sentenced her to 20 years imprisonment. A petition was filed with the Supreme Court of Justice seeking nullification
of the court's ruling, but was rejected.
15.
On May 6, 1993, the complaint concerning the detention of María Elena
Loayza-Tamayo was received by the Inter-American Commission, which forwarded
it to the Government six days later. On
August 23, 1993, the Commission received the Government's reply together with
the documentation on the case and the information that the Prosecutor's Office
had instituted proceedings against María Elena Loayza-Tamayo in the special
military court system under Decree Law No. 25.659.
16.
On July 13, 1994, in response to a request from the Commission on November
17, 1993, the Government declared the existence of “file No. 41-93 before the fortieth
criminal court of Lima against [María Elena Loayza-Tamayo] for the crime of terrorism, and [that]
the file had been sent to the President of
the Superior Court of Lima ... for the oral proceedings to be initiated.”
17.
On September 16, 1994, the parties attended a hearing held at the seat
of the Commission.
18.
On September 26, 1994, the Commission approved Report 20/94, in the
resolutory part of which it was decided:
1. To declare that the Peruvian State is responsible
for the violation, against María Elena Loayza, of the rights to personal liberty,
humane treatment and judicial protection enshrined in Articles 7, 5 and 25
respectively of the American Convention on Human Rights.
2. To recommend to the Peruvian State that, in consideration
of the analysis of the events and of the right invoked by the Commission,
it immediately release María Elena Loayza-Tamayo once it receives notification
of this Report.
3. To recommend to the Peruvian State that it pay
compensation to the plaintiff in the instant case, for the damage caused as
a result of her unlawful deprivation of liberty from February 6, 1993 until
such time as it orders her release.
4. To inform the Government of Peru that it is not
at liberty to publish this Report.
5. To request that the Government of Peru inform
the Inter-American Commission on Human Rights, within thirty days, of any
measures it has taken in the instant case, in accordance with the recommendations
contained in paragraphs 2 and 3 above.
19.
On October 13, 1994, Report 20/94 was transmitted to Peru by the Commission. In response, the Government deemed that it could
accept neither the analysis nor the conclusions and recommendations and attached
a brief prepared by a Task Force composed of government officials, stating
that:
[d]omestic
remedies have not been exhausted inasmuch as María Elena Loayza-Tamayo's legal
situation should be defined at the end of the judicial proceeding for the
CRIME OF TERRORISM in the common court system [and that] the recommendations
made by IACHR [Inter-American Commission on Human Rights] in the instant case
would involve deciding on a case still pending in the Peruvian justice administration.
This is not possible, since, under Peru's Political Constitution in force,
no authority could arrogate that power. It is for the Judicial Branch to rule
on Maria Elena Loayza-Tamayo's legal situation through the proper criminal
process.
20.
On January 12, 1995, the Commission, not having reached agreement with
the Government, submitted this case for the consideration and decision of
the Court.
III
21.
The Court is competent to hear the instant case.
Peru ratified the Convention on July 28, 1978, and accepted the jurisdiction
of the Court on January 21, 1981.
IV
22.
Before examining the preliminary objection brought by the Government,
it is appropriate to consider a previous matter raised by both parties, in
writing and at the hearing, concerning the admissibility of the filing of
the objection.
23.
On March 22, 1995, the Commission requested the Court to rule that
the Government's right to file preliminary objections had been extinguished,
on the grounds that the period of thirty days for filing them had already
expired. In its brief of March 24, 1995, received at
this Court on April 3, the Government alleged that it had presented the preliminary
objection on time. In support of this
claim, it argued that there was a distinction between the deadline established
in the Rules of Procedure of this Court for answering to the application (Article
29(1)), set at three months, and the deadline for filing preliminary objections
(Article 31(1)), set at thirty days, proving that there was a difference,
well supported by procedural doctrine, between dates established in days and
those established in months or years; whereas the former include only working
days, the latter are reckoned in calendar days.
24.
The Government also contends that this difference is consistent with
Peru's legislation and jurisprudence whereby procedural periods established
in days are reckoned excluding non-working days; however, when the reference
is to months or years those days are included; in other words, they are calendar
days. The Government concluded that
in the Rules of Procedure of this Court a clear distinction is drawn between
the period for answering the application and the period for filing preliminary
objections, with the deliberate intention of following the generally accepted
procedure that when a period is indicated in months it includes all the days
in the Gregorian calendar, holidays and working days alike, but that when
it is established in days -as is the case with preliminary objections- only
working days are taken into account. According to that hypothesis, the brief
of preliminary objections had been presented on time.
25.
On April 24, 1995, the Inter-American Commission, for its part, reiterated
its request of March 22, 1995, and also asked that the brief presented by
Peru on March 24 be declared inadmissible, on the grounds that it had not
been presented within the deadline established by the Rules of Procedure of
this Court. The Commission maintains
that the Government received notification of the application on February 13,
1995, so that when the preliminary objection was presented on March 24, 1995,
‑without any request for a deferment or extension of the deadline- the
period of thirty days established in Article 31(1) of the Rules of Procedure
had long expired, and, consequently, Peru's right to file the objection had
been extinguished.
26.
The Commission invoked the thesis sustained by the Court in the Cayara
case, to the effect that “there must
be a fair balance between the protection of human rights, which is the ultimate
purpose of the system, and the legal certainty and procedural equity that
will ensure the certainty and reliability of the international protection
mechanism” (Cayara Case, Preliminary Objections, Judgment of February
3, 1993. Series C, No. 14, para. 63). Hence,
admission of the brief on preliminary objections presented extemporaneously
would violate those principles.
27.
As far as the above allegations are concerned, the Court considers
those brought by the Government regarding the filing of its preliminary objection
to be unfounded, on the ground that although the time limit established in
Article 31(1) of the Rules of Procedure is thirty days, whereas the deadline
for answering the application is three months, the difference is not one of
reckoning as Peru maintains, for the simple reason that time limits set in
international and national proceedings are not based on the same criteria.
28.
It is true that a distinction is drawn between judicial periods established
in days and those established in months or years in some national procedural
rules and in the practice of many domestic tribunals. The former are reckoned
excluding non-working days and the latter in calendar days. However, this distinction cannot be applied to international tribunals,
there being no standard regulation for determining which days are non-working,
unless these are expressly stated in the rules of procedure of the international
organizations.
29.
This situation is more evident in the case of this Court, which is
a jurisdictional body that does not function on a permanent basis and holds
its sessions, without need of authorization, on days that may be non-working
by the rules established for national tribunals and those of the host country
of the Court itself. For this reason,
the criteria used in domestic legislation cannot be applied.
30.
The Rules of Procedure of this Court make no provision similar to that
established in Article 77 of the Regulations of the Inter-American Commission,
whereby all periods indicated in days in those Regulations “shall be understood to be calculated as calendar days.” Nonetheless,
this provision must be regarded as implicit in the proceedings before this
Tribunal since, as stated above, the differentiation criterion invoked by
Peru is unacceptable, there being no point of reference -such as that established
in domestic procedural legislation- to determine which days are non-working.
It is therefore not feasible to use any reckoning other than natural
days to establish periods in days, months or years.
31.
Two examples corroborate this point:
first, the provisions of Article 80(1)(b) of the Rules of Procedure
of the Court of Justice of the European Communities, amended on May 15, 1991,
which provides that:
[a]
period expressed in weeks, months or in years shall end with the expiry of
whichever day in the last week, month or year is the same day of the week,
or falls on the date, as the day during which the event or action from which
the period is to be calculated occurred or took place.
If, in a period expressed in months or years, the day on which it should
expire does not occur in the last month, the period shall end with the expiry
of the last day of that month.
Secondly,
mention may be made of Articles 46 and 49 of the Rules of Procedure of the
Court of Justice of the Cartagena Agreement (Andean Agreement) of March 15,
1984. Whereas the former clearly establishes
the working days and hours of the Tribunal, as well as its holidays, Article
49 establishes in its first paragraph that:
“[t]he periods shall be reckoned
in continuous days and calculated excluding the day of the date on which it
begins...” Let it be said, however,
that both the Tribunals cited function on a permanent basis.
32.
Consequently, if the period of thirty days indicated in Article 31(1)
of the Rules of Procedure of this Court should be considered in calendar terms,
and the notification of the application was made on February 13, 1995, the
date on which it was received by the Government, the deadline was March 13,
1995, whereas the preliminary objection brief reached the Secretariat of the
Court on March 24, 1995.
33.
The Court has declared that:
[i]t
is a commonly accepted principle that the procedural system is a means of
attaining justice and that the latter cannot be sacrificed for the sake of
mere formalities. Keeping within certain timely and reasonable limits, some
omissions or delays in complying with procedure may be excused, provided that
a suitable balance between justice and legal certainty is preserved (Cayara
Case, Preliminary Objections, supra 26, para. 42; Paniagua
Morales et al Case, Preliminary Objections, Judgment of January 25, 1996.
Series C No. 23, para. 38).
34.
The Court observes that the brief in which the Government filed its
preliminary objections was presented a few days after expiration of the period
of thirty days set by Article 31(1) of its Rules of Procedure, but that this
delay cannot be considered excessive within the limits of timeliness and reasonableness
considered by this Tribunal to be necessary for excusing a delay in meeting
a deadline (see supra 33, Paniagua Morales et al Case, paras. 37
and 39). Further, that this very Court
has exercised flexibility vis-à-vis
the periods established in the Convention and in its Rules of Procedure, including
that indicated in Article 31(1) of the Rules of Procedure, and has often granted
extensions requested by the parties when they have shown reasonable cause.
35.
In the instant case, the Court considers that, although the Government
did not expressly request an extension, this omission was possibly due to
its mistaken reckoning of the period, excluding the non-working days in accordance
with its procedural rules. For the
reasons adduced, the review of the preliminary objection presented by Peru
should proceed.
V
36.
The Government filed the preliminary objection of non-exhaustion of
domestic remedies on the ground that the Inter-American Commission lodged
the petition against it without fulfilling the provisions of Article 46(2)
of the Convention, inasmuch as the case against María Elena Loayza-Tamayo
for the crime of terrorism was still pending in the Supreme Court of Justice
with the number 950-94.
37.
This objection is based essentially on the charge that:
a. The exceptions to the rule of exhaustion of domestic
remedies, governed by Article 46(2) of the Convention, do not apply in the
instant case, inasmuch as María Elena Loayza-Tamayo was not denied access
to those domestic remedies. While it is true that at the time of the alleged
victim's arrest the remedy of habeas
corpus which, according to the Commission was in process against the deprivation
of liberty, had been suspended under Decree Law No. 25.659 as it pertains
to the crimes of treason and terrorism, owing to the State of Emergency, Mrs.
Loayza-Tamayo did have access to other effective remedies before the competent
authority, including the possibility of appealing to the Ministry of the Interior
[“Ministerio Público”] to secure its approval of the remedy to protect the
fundamental rights enshrined in the American Convention and the 1979 Political
Constitution in force at the time. Under Article 250 of the Constitution, the Ministry
of the Interior is an autonomous State organ with official responsibility
to promote, in its own right or acting upon a petition of one of the parties,
the protective remedy to defend the legitimacy of civic rights and public
interests protected by the law.
b. María Elena Loayza-Tamayo's right to due process
of law was respected under Article 25 of the Convention, inasmuch as she had
the time and appropriate means to prepare her defense, since she made her
declaration before the military jurisdiction in the presence of her defense
attorney and the Special Military Prosecutor. Moreover, the representative of the Ministry of the Interior was
present at the police action that led to her arrest.
c. Although the Government did not indeed file the
objection of non-exhaustion of the domestic remedies until the presentation
of its Report of November 23, 1994, it had repeatedly declared before the
Commission that the requirement of admissibility had not been fulfilled and
that, in any event, there was nothing to prevent Peru from filing that objection
with this Court, pursuant to Article 31 of the Rules of Procedure.
d. Furthermore, it had sent to the Commission on
three occasions the documentation relating to Mrs. Loayza-Tamayo's arrest,
trial on the charge of treason in the military court and acquittal by the
Supreme Court of Military Justice of August 11, 1993, and the transfer of
the case to the regular courts, which had then tried Mrs. Loayza-Tamayo for
the crime of terrorism, a case that had not been concluded.
The Government had dispatched this documentation to the Commission
with its briefs of August 23 and September 30, 1993, as well as its brief
of July 13, 1994.
38.
The Inter-American Commission, in its brief of comments on the Government's
preliminary objections, maintains that:
a. Peru expressly admits that it did not formally
interpose the objection of non-exhaustion of domestic remedies in a timely
manner and that this admission constitutes in itself sufficient reason for
the Court to declare the objection inadmissible.
b. The Government's assertion that it repeatedly
told the Commission that the domestic remedies had not been exhausted is not
accurate, since it only did so at the time it presented its report prepared
by the Government Task Force. Although
at the hearing held by the Commission on September 16, 1994, the Government's
representative did refer to the failure to exhaust domestic remedies because
the lawsuit against María Elena Loayza-Tamayo was still being tried in the
regular courts, he did so in a very general manner and did not supply any
proof in support of his statement, having at no time indicated the remedy
to be exhausted or given proof of its effectiveness.
c. The Government's argument that, although the remedy
of habeas corpus was suspended in
regard to the crimes of treason and terrorism under Article 6 of Decree Law
25.659, María Elena Loayza-Tamayo had access to other effective remedies before
the competent authority for protection of her rights, including the Ministry
of the Interior, is unacceptable. The
Commission maintains that no reference is made in any part of the brief to
such remedies before the competent authority and that the Ministry of the
Interior is merely mentioned as an example. Therefore, in keeping with the
obligation of probity and good faith that must prevail in international proceedings,
any evasive or ambiguous statement such as that made by the Government in
this regard must be disallowed.
d. The effective remedy referred to in Article 25
of the Convention must be exercised before judges and courts; it is jurisdictional
in nature, inasmuch as it may not be lodged with the Ministry of the Interior
since that would make it a petition before an organ outside the judicial system.
e. Moreover, María Elena Loayza-Tamayo raised the
res judicata objection before the
court, which had dismissed it after hearing the opinion of the Ministry of
the Interior. This means that the latter
was aware of the objection and ignored it, so that there would be no point
in a further request to the same Ministry of the Interior if its representative
did not take the first one into consideration.
f. Also, if under the State of Emergency, protective
remedies were not allowed on behalf of those arrested on charges of treason
and terrorism, there would be no point in appealing to the Ministry of the
Interior in such circumstances, since any petition on that score would be
doomed to failure.
39.
The Commission dispatched to this Court, together with its brief of
December 29, 1995, a photocopy of the October 6, 1995 judgment delivered by the Supreme Court of Justice confirming the
sentence passed on María Elena Loayza-Tamayo for the crime of terrorism.
For this reason, the Commission maintains that this ruling shows that
“the preliminary objection of non-exhaustion of domestic remedies is unfounded.”
VI
40.
The Court wishes to stress that it has established criteria that must
be taken into consideration in this case.
Indeed, the generally accepted principles of international law, to
which the rule of exhaustion of domestic remedies refers, indicate, first,
that this a rule that may be waived, either expressly or by implication, by
the State having the right to invoke it, as this Court has already recognized
(see Viviana Gallardo et al. [Judgment of November
13, 1981], No. G 101/81. Series A, para. 26). Second, the objection asserting non-exhaustion
of domestic remedies, to be timely, must be made at an early stage of the
proceedings by the State entitled to make it, lest a waiver of the requirement
be presumed. Third, the State claiming
non-exhaustion has an obligation to prove that domestic remedies remain to
be exhausted and that they are effective (Velásquez Rodríguez Case, Preliminary Objections, Judgment of June
26, 1987. Series C No. 1, para. 88; Fairén
Garbi and Solís Corrales Case, Judgment of June 26, 1987. Series C No. 2, para. 87; Godínez Cruz Case, Preliminary Objections, Judgment of June 26, 1987. Series C No. 3, para. 90; Gangaram Panday Case, Preliminary Objections,
Judgment of December 4, 1991. Series
C No. 12, para. 38; Neira Alegría et
al., Preliminary Objections, Judgment of December 11, 1991. Series C No. 13, para. 30 and Castillo Páez Case, Preliminary Objections,
Judgment of January 30, 1996. Series C No. 24, para. 40).
41.
The Court further considers, in accordance with the aforementioned
criteria, that the Government had the obligation to invoke, expressly and
in a timely manner, the rule of non-exhaustion of domestic remedies if it
wished to challenge appropriately the admissibility of the complaint before
the Inter-American Commission, presented on May 6, 1993, concerning María
Elena Loayza-Tamayo's detention and trial.
42.
The briefs that the Government presented to the Commission during the
processing of the case did show inter
alia the way in which the habeas
corpus trials developed in the military and regular court systems. However,
the Government did not clearly state its objection of non-exhaustion of domestic
remedies during the early stages of the proceedings before the Commission,
since it was only expressly invoked in the Task Force report presented to
the Commission by the Government on December 7, 1994, in answer to Report
20/94 approved by the Commission on September 26, 1994, which served to support
the application before this Court.
43.
It may be concluded from the foregoing that, since the Government extemporaneously
alleged the non-exhaustion of domestic remedies required by Article 46(1)(a)
of the Convention to preclude admission of the complaint on behalf of María
Elena Loayza-Tamayo, it is understood to have tacitly waived that right.
44.
At the public hearing on preliminary objections held by this Court
on September 23, 1995, in reply to a question from Judge Antônio A. Cançado
Trindade, the Peruvian Agent and Advisor clearly stated that only at a later
stage in the case before the Commission had the question of exhaustion of
domestic remedies been explicitly raised.
Indeed, in the previous briefs submitted to the Commission, reference
had been made solely to the development of the aforementioned proceedings. In its preliminary objection brief, Peru explicitly stated that it
had not formally filed the objection of non-exhaustion of domestic remedies
to the Commission. In the view of this
Court, this is sufficient to consider the objection not to have been presented.
Accordingly, since the Government waived by implication the right to
file, the Commission could not later properly take the objection into consideration.
45.
The preliminary objection should be dismissed for the reasons stated
above.
VII
46.
Now, therefore,
THE COURT,
DECIDES:
unanimously,
1.
To dismiss the preliminary objection filed by the Government of the
Republic of Peru.
2. To proceed
with the consideration of the merits of the case.
Judge
Antônio A. Cançado Trindade informed the Court of his Separate Opinion, which
is attached hereto.
Done
in English and Spanish, the Spanish text being authentic, in San José, Costa
Rica, on this thirty-first day of January, 1996.
Héctor Fix-Zamudio
President
Hernán Salgado-Pesantes
Alejandro Montiel-Argüello
Máximo Pacheco-Gómez
Oliver Jackman
Alirio Abreu-Burelli
Antônio A, Cançado Trindade
Manuel E. Ventura-Robles
Secretary
Read
at a public session at the seat of the Court in San José, Costa Rica, on February
2, 1996.
So ordered,
Héctor Fix-Zamudio
President
Manuel E. Ventura-Robles
Secretary