In the Castillo-Petruzzi et al. Case,
The Inter-American Court of Human Rights (hereinafter
"the Court," "the Inter-American Court," or "the
Tribunal") composed of the following judges:
Hernán Salgado-Pesantes,
President
Antônio A. Cançado Trindade, Vice-President
Máximo Pacheco-Gómez,
Judge
Oliver Jackman, Judge
Sergio García-Ramírez,
Judge
Carlos Vicente de Roux-Rengifo, Judge
Fernando Vidal-Ramírez, Judge ad
hoc;
also present:
Manuel E. Ventura-Robles, Secretary, and
Víctor M. Rodríguez-Rescia,
Interim Deputy Secretary
pursuant to Article 36(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
objections interposed by the State of Peru (hereinafter "the State"
or "Peru").
I
INTRODUCTION
OF THE CASE
1.
This case was submitted to the Inter-American Court of Human Rights by
the Inter-American Commission on Human Rights (hereinafter "the Commission"
or "the Inter-American Commission") on July 22, 1997.
It originated with petition No. 11.319 lodged with the Secretariat of
the Commission on January 28, 1994.
II
FACTS AS
SET FORTH IN THE APPLICATION
2.
According to the application, Peru violated the right to nationality
of Jaime Francisco Castillo-Petruzzi, María Concepción Pincheira-Sáez, Lautaro
Enrique Mellado-Saavedra and Alejandro Astorga-Valdéz by trying and convicting
them of the crime of “treason against the fatherland,” pursuant to Decree-law
25,659, although they are not Peruvians. The
Commission also asserted that these persons were not tried by a competent, independent,
and impartial judge or court in violation of their right to a fair trial, because
they were all tried, convicted, and sentenced to life imprisonment in Peru by
a "faceless" tribunal under military jurisdiction.
The Commission supports that statement,
inter alia, with the following facts:
a. On October
15, 1993, the alleged victims were detained by members of the National Anti-Terrorism
Bureau.
b. On November
20, 1993, the investigative judge decided to open an investigation against
the alleged victims.
c.
On January 7, 1994, the Special Military Investigative Judge of the Peruvian
Air Force rejected "the jurisdictional
objection made by the accused Jaime Francisco Castillo-Petruzzi, María Concepción
Pincheira-Sáez, and Lautaro Mellado-Saavedra, and upheld the jurisdictional
objection made by the accused Alejandro Astorga-Valdéz."
The first three accused were convicted as "perpetrators of the crime
of treason against the fatherland, with a sentence of life imprisonment without
parole, continuous solitary confinement for the first year of the sentence and
then forced labor." In the case
of Astorga-Valdéz, the court ruled that "this Court does not have jurisdiction
to rule on his criminal conduct."
d.
On March 14, 1994, the military court of the second instance upheld the
Judgment of January 7, 1994, rendered by the Special Military Court of the Peruvian
Air Force.
e.
On May 3, 1994, the Special Military Supreme Court rejected the motion
to annul the Resolution of March 14, 1994, and
upheld the January 7, 1994 Judgment, rejecting as without merit the jurisdictional
objection made by Mr. Castillo-Petruzzi, Ms. Pincheira-Sáez, and Mr. Mellado-Saavedra.
The Court also held that "the part of the judgment that upheld the jurisdictional
objection made by Alejandro Luis Astorga-Valdéz was annulled" and refused
to hear the case on finding him responsible for
the crime of terrorism [...] for which reason it
denied the present motion and modified the judgment of the first instance, rejecting
the jurisdictional objection made by Alejandro Luis Astorga-Valdéz and condemning
him to life imprisonment as the perpetrator of the crime of treason against
the fatherland.
III
PROCEEDINGS
BEFORE THE COMMISSION
3.
On January 28, 1994, Verónica Reyna, Chief of the Legal Department of
the Chilean organization Fundación de Ayuda Social de las Iglesias Cristianas
(hereinafter "FASIC") submitted the first complaint in this case. On June 29, 1994, the Commission transmitted
the pertinent parts of the complaint to the State and requested that it provide
information within two months about the events reported in the complaint. The Commission also requested information concerning
the exhaustion of domestic remedies.
4.
On August 26, 1994, a second group of complainants provided new information
on the case, and on November 18, 1994, they added the case of Alejandro Astorga-Valdéz.
In their first communication they reported that on January 6, 1994, the
defense attorneys of the alleged victims were notified that they had two hours
to consult the case file and prepare the defense, and that the judgment would
be read the following day. On September
29, 1994, this group of petitioners reiterated their complaint.
On November 22, 1994, the Secretariat of the Commission informed that
group by telephone that it needed to have a power-of-attorney or an authorization
from the initial petitioners in order to be included as co-petitioners in the
case.
5. On September
14, 1994, the State provided information, accompanied by a copy of Official
Document No. 534-S-CSJM from the Superior Council of Military Justice dated
September 1, 1994. In that report it
was stated that:
Case No 078-TP-93-L [against Castillo-Petruzzi,
Pincheira-Sáez, and Mellado-Saavedra] for the crime of Treason Against the Fatherland
was tried before the Military Court of the Air Force of Peru, which convicted
them of the commission of the illegal criminal act charged and sentenced them
to life in prison.
Moreover, the State added that the
Peruvian Courts "exercise jurisdiction over crimes committed within Peruvian
national territory as an expression of sovereignty," and that the criminal
law of Peru is binding independent of the perpetrator’s nationality and domicile. The State also specified that the type of crime
denominated as treason against the fatherland in Law 25,659 identifies an aggravated
act of terrorism, which "in view of its nature and the way it is carried
out, requires courts that have the necessary assurances of security."
Finally, the State maintained that in all proceedings that come before
the military courts, the courts observe "the rules of due process, the
right to appeal to a higher court (three appeals), judicial oversight, rationale
for the decisions, inapplicability by analogy of criminal law, and inform the
defendant of the charges against him" and provide the defendant with legal
assistance. On September 23, 1994, the Commission transmitted
a copy of Peru’s response to the petitioners.
6. On November
8, 1994, the original petitioners submitted their observations to the State’s
answer. In their observations they requested
that "the January complaint be expanded to include Alejandro Astorga-Valdéz,"
who had not been listed as a victim in the original complaint.
In reference to his case, they provided that
[i]n the ruling of the first instance,
the military judge upheld the objection made by the defense regarding lack of
jurisdiction.
The Superior Military Prosecutor,
issued a report expressing his opinion in favor of confirmation of the judgment
including the objection of Astorga-Valdéz.
The ruling of the second instance of the Special Military Court of the Peruvian
Air Force, upheld the judgment of the first instance with an order that the
documentation on the case of
Astorga-Valdéz to be remitted to the regular
court.
Nevertheless, when the motion
for annulment was interposed on behalf of those who were condemned to life imprisonment,
his file was also forwarded to the Supreme Council of Military Justice.
This Council modified the judgment of the first instance and condemned Astorga-
Valdéz to life imprisonment as the perpetrator of the crime of treason against
the Fatherland of the Peruvian State.
The Commission admitted the request pursuant to Article
30 of its Regulations.
7.
On December 14, 1994, the second petitioners in the case submitted a
notarized power-of-attorney, executed by the family members of the alleged victims,
to the president of the Chilean Commission on Human Rights, Jaime Castillo-Velasco
and to Carlos Margotta-Trincado.
8.
On January 31, 1995, the Commission received from the petitioners a report
of the Human Rights Commission of the Chilean Parties of Democratic Reconciliation
(hereinafter "the Chilean delegation"), in which it was stated that
this commission attempted to make a visit in
loco to the Chilean citizens imprisoned in Peru. According to this report, "the Peruvian Government prohibited
the Chilean delegation from meeting with the Chilean prisoners, even though
the delegation was able to visit the Yanamayo Prison [...] where the petitioners
are now held." This report was forwarded
to the State on March 20, 1995.
9.
On March 8, 1995, the Commission received additional information from
the Peruvian State with respect to the "legal status" of the case
of Jaime Castillo-Petruzzi, María Concepción Pincheira-Sáez, and Lautaro Mellado-Saavedra
which established that
[b]y means of official Document No.
09-FG/CSJM, dated February 15, 1995, the General Prosecutor of the Supreme Council
of Military Justice, Major General Enrique Quiroga-Carmona of the Peruvian Air
Force, stated that [Jaime Castillo-Petruzzi, María Concepción Pincheira-Sáez,
and Lautaro Mellado-Saavedra] were sentenced to life in prison.
He stated that Jaime Castillo-Petruzzi had filed, through his attorney,
Dr. Grimaldo Achaui Loayza, a motion for annulment of the final judgment of
conviction, which had been rejected on September 14, 1994, by a ruling
of the Special Supreme Military Tribunal.
This information was transmitted to the petitioners
on March 16, 1995.
10.
By note of June 6, 1995, through Official Document No. 316-95 of June
2, 1995, Peru reported on the health and legal status of three of the alleged
victims. Peru stated that
the Superior Prosecutor of Puno,
had been requested by means of [official
document no.] 223-95 MP-FN-FEDPDH-DH-V dated April 18, 1995, to verify the state
of health of [Jaime Castillo-Petruzzi and Lautaro Mellado-Saavedra], and to
report on their present legal situation. By mean of [official document no.] 09-FG-CSJM,
dated February 15, 1995, the General Prosecutor of the Supreme Council of Military
Justice communicated that they had been sentenced to life imprisonment [.]
He also added that
[b]y means of [official document
no.] 222-95-MP-FN-FEDPDH-DH-V, dated April 18, 1995, the Director of the Maximum
Security Criminal Establishment of Women-Chorrillos was asked for information
on the legal situation and the state of health of certain prisoners [among whom
was María Concepción Pincheira-Sáez.] He stated that this information was not
obtained on this occasion.
This information was supplemented
on November 7, 1995, to provide that María Concepción Pincheira-Sáez had been
sentenced to life imprisonment for the crime of treason against the fatherland
and that she had been counseled during the entire proceeding by Dr. Castañeda. It referred to health problems and harassment
on the part of the prisoners. Said information
was sent to the petitioners on November 30, 1995.
11.
On June 14, 1996, the petitioners asked the Commission to adopt precautionary
measures on behalf of the alleged victims, as a result of the possibility that
they would be transferred to an "uninhabitable" prison. The Commission requested that the Peruvian State
provide information on this matter. By
means of a note of July 16, 1996, the State reported that there was "no
order of any kind to transfer the Chilean prisoners" to another penitentiary,
in accordance with the final judgment handed down by the Supreme Special Military
Court, which ordered that the sentence of life imprisonment should be served
at the Maximum Security Prison at Yanamayo in Puno.
12.
On November 19, 1996, the Commission communicated to the State that at
its 93rd Regular Session the Commission had determined that Case 11.319 was
admissible, and that the Commission was at the disposition of the parties to
arrive at a friendly settlement. On February
6, 1997, Peru refused the proposal of a friendly settlement, on the grounds
that the alleged victims were tried, convicted, and sentenced pursuant to the
provisions of Decree-law 25.659 and Decree-Law 25.708, which regulate the crime
and corresponding procedure in cases of treason against the fatherland. Peru also asserted that it had observed the
rules of due process and adhered to the principle of territoriality set forth
in Article 1 of the Peruvian Criminal Code.
13.
On December 17, 1996, the Commission received a report from the Supreme
Court of Military Justice of Peru, in which it asserted that the Peruvian courts
have jurisdiction in the cases of the alleged victims, since the crimes of which
they are accused were committed in the jurisdiction of Peru, and because "the
territoriality of criminal law is independent of the nationality of the perpetrator."
Moreover, the State maintained that in the aforementioned cases it had
observed the principles of due process, the right to appeal, judicial oversight,
and rationale for the judgments.
14.
On December 18, 1996, the petitioners requested that the Commission adopt
precautionary measures to protect the physical integrity of the alleged victims,
in consideration of the circumstances resulting from the seizure at the Japanese
Embassy in Peru by members of the Revolutionary Movement Tupac Amaru (MRTA),
a group with which the alleged victims had been associated.
15. On March
11, 1997, the Commission approved Report 17/97, in the final part of which
it stated
[...]
86. That the State of Peru, on trying Jaime Francisco Castillo-Petruzzi,
María Concepción Pincheira-Sáez, Lautaro Enrique Mellado-Saavedra and Alejandro
Astorga-Váldez, pursuant to Decree-Laws No. 25,475 and 25,659, has violated
the judicial guarantees set forth in Article 8(1) of the American Convention
on Human Rights [hereinafter "the Convention or the American Convention"] and the rights to a nationality and
to the judicial protections recognized respectively by Articles 20 and 25, all
in conjunction with Article 1(1) of the Convention.
87. That the crime of treason against the fatherland which is governed
by the legal order of Peru violates universally accepted principles of international
law, of legality, due process, judicial
guarantees, right to a defense, and the right to be heard by impartial and independent
courts; and in consequence
The Commission resolved [to recommend] that the State
of Peru:
88.
Declare the annulment of the proceedings undertaken in the Exclusive
Military Jurisdiction for Treason Against the Fatherland against Jaime Francisco
Castillo-Petruzzi, María Concepción Pincheira-Sáez, Lautaro Enrique Mellado-Saavedra
and Alejandro Astorga-Váldez, and order that the trial of these persons be carried
out in a new hearing in the regular courts with full observance of the norms
of legal due process, and
89. The Commission, pursuant to Article 50 of the Convention, requests
that the Peruvian Government inform the Commission within two months of any
measures it has taken in the instant case in accordance with the recommendations
contained in the present report, which is confidential in nature and should
not be published.
16.
On April 24, 1997, Report 17/97 was transmitted to Peru, with the request
that the State inform the Commission of the measures adopted with respect to
it within a period of two months.
17.
After having requested and received an extension until July 8, 1997,
the State presented a report, in which it refuted the conclusions of the Commission
and affirmed the legitimacy of its proceedings.
18. On June
27, 1997 the Commission made the decision to submit the case to the Court.
IV
PROCEEDINGS
BEFORE THE COURT
19.
In submitting the case to the Court on July 22, 1997, the Commission
invoked Article 51(1) of the American Convention and requested that the Court
render a judgment as to whether there were violations of Article 5 (Right to
Humane Treatment), 8 (Right to a Fair Trial), 20 (Right to Nationality), 29
(Restrictions Regarding Interpretation) in conjunction with the Vienna Convention
on Consular Relations; 1(1) (Obligation to Respect Rights) and 51(2) of the
American Convention.
20.
The Inter-American Commission appointed Oscar Luján-Fappiano, Carlos
Ayala-Corao, and Claudio Grossman to act as its delegates, Christina M. Cerna
as its attorney, and Verónica Reyna, Nelson Caucota, Jaime Castillo-Velasco,
and Enrique Correa as its assistants. Pursuant
to Article 22(2) of its Regulations, the Commission also informed the Court
that the first two assistants would act for the original petitioners and the
latter two as representatives of the alleged victims.
21.
By note of July 31, 1997, after a preliminary review of the application
by the President of the Court (hereinafter "the President") the Secretariat
of the Court (hereinafter "the Secretariat"), transmitted the application
to the State and informed the State that it had the following deadlines: four
months in which to submit its answer, one month to appoint an agent and alternate
agent, and two months to interpose preliminary objections.
All terms were to begin from the date of notification of the application. By communication of the same date, the State was invited to designate
a judge ad hoc.
22.
By means of communications of August 26 and 28, 1997, the Commission
submitted a corrected version of the Spanish text of the application, and stated
that it contained "corrections of minor errors, above all in style [and]
should replace the earlier version which had been submitted to the Court on
July 22, 1997." The corrected version
was transmitted to the State on September 2, 1997.
23. On September
3, 1997, Peru informed the Court that it had designated Fernando Vidal-Ramírez
as judge ad hoc.
24. On September
5, 1997, Peru designated Mario Cavagnaro-Basile as its agent and Walter Palomino-Cabezas
as its alternate agent.
25.
On September 22, 1997, the State asked the Court to indicate if it should
"consider as valid" the new version of the application (supra 22) or if, to the contrary, it should
maintain that dated July 22 of the same year.
26.
On September 24, 1997, the Secretariat, following instructions from the
President, informed Peru that in view of the request for clarification of the
State and to insure the "transparency of the process," the President
had decided to suspend the time limits to answer the application and interpose
preliminary objections until the Commission presented clarifications of the
corrections made to the original text of the application.
27. On October
1, 1997, Peru submitted its brief in which it raised the following preliminary
objections.
First Objection
failure to exhaust the domestic remedies
of Peru at the time the Inter-American Commission on Human Rights, pursuant
to Article 37 of its Regulations, admitted for processing the complaint on behalf
of Jaime Francisco Castillo-Petruzzi, María Concepción Pincheira-Sáez, Lautaro
Enrique Mellado-Saavedra and Alejandro Astorga-Valdéz.
Second
Objection
lack of competence of the Inter-American
Commission on Human Rights and the Inter-American Court of Human Rights, first
to consider the petition lodged by the Fundación de Ayuda Social de las Iglesias
Cristianas (FASIC) on behalf of the aforementioned Chilean citizens; and second,
to process this application when the original petition was lodged without establishing
the exhaustion of the domestic remedies of Peru.
Third Objection
lack of a prior demand and of the
exhaustion of the domestic remedies of Peru [with respect to] the alleged violation
[of Article 29 of the Convention in relation to] the Vienna Convention on Consular
Relations.
Fourth
Objection
lack of a prior demand and of the
exhaustion of the domestic remedies of
Peru with respect to the claim made in point six of the brief supporting the
application, under which the Court is
to order the Peruvian State to immediately release and compensate Jaime Francisco
Castillo-Petruzzi, María Concepción Pincheira-Sáez, Lautaro Enrique Mellado-Saavedra,
and Alejandro Astorga-Valdéz.
Fifth Objection
lack of status as a legal entity
of the party that, in the name of the Fundación de Ayuda Social de las Iglesias
Cristianas (FASIC), filed petition No. 11,319 with the Inter-American Commission
on Human Rights against the Peruvian State and lack of standing of the aforementioned
foundation.
Sixth Objection
lack of standing of the Fundación
de Ayuda Social de las Iglesias Cristianas (FASIC) and of those who the Commission
referred in points thirteen and fourteen of the application as "another group of complainants" or "a
second group of petitioners" [and sovereignty].
Seventh
Objection
premature decision of the Honorable
Commission to send the present case to the Inter-American Court of Human Rights.
Eighth
Objection
Ambiguity in the manner of submitting
the application.
Ninth Objection
Lapse of the application.
Tenth Objection
Disregard of the principles of sovereignty
and jurisdiction.
As to the first, second, third, fourth,
fifth, sixth, and eighth objections, the State requests that the Court admit
them or reserve its decision until the judgment on the merits of the case. As to the seventh, ninth, and tenth objections,
it requests that they be admitted and that the application be dismissed.
28.
On October 6, 1997, the Commission presented a communication to the Court,
to which it added a "list of corrections made [...] to the application"
of July 22, 1997 (supra 26). The following day the Secretariat, on instructions
from the President, requested that Peru present its comments on the clarifications
made by the Commission by the latest date of October 13, 1997.
These observations were not received.
29. By resolution
of October 15, 1997 the President decided
1. To clarify that the original text of the application submitted to the
Inter-American Court of Human Rights on July 22, 1997, by the Inter-American
Commission on Human Rights, is the document that the parties should consider
valid to prepare their defense and arguments in this case.
2. To incorporate into the original text of the application only the corrections
submitted by the Inter-American Commission on Human Rights in its correspondence
of October 6, 1997.
3. To declare the request of the Commission that the original text of
the application to replaced with the text submitted to the Court on August 26
and August 28, 1997, to be inadmissible.
4. To continue with the processing of the present case and to resume the
time period to answer the application, which will expire on December 27, 1997.
5. To resume the time period to interpose preliminary objections, which
will expire on October 27, 1997, and to request that the State indicate if it
endorses its correspondence of October 1, 1997.
30. On October
17, 1997, the State endorsed its brief on preliminary objections, which had
been filed on October 1, 1997 (supra
27).
31. On October
22, 1997, the Secretariat received a copy of the original file processed by
the Commission.
32.
On November 21, 1997, the Commission filed its written response to the
preliminary objections interposed by Peru in which it requested that the Court
declare the objections to be inadmissible.
33.
On December 12, 1997, Peru requested an extension to file its answer
to the application until January 5, 1998. On
December 15, 1997, the Secretariat, following the instructions of the President,
informed the State that
the time period to file the answer
to the demand can not be extended. Nevertheless,
the Court will be closed as of noon on December 24 of the present year and will
reopen on January 5, 1998, for which reason the Illustrious State of Peru may
take until that date to file its answer.
34. On January
5, 1998, the State submitted the answer to the application, in which it asked
the Court to reject the entire application.
35.
On January 19, 1998, the State requested that the document the Commission
annexed to its arguments on preliminary objections, which established the legal
entity status of FASIC, referred to in that communication as the Fundación de
Ayuda Social de las Iglesias Cristianas "be considered challenged as false."
36. On January
22, 1998, the Commission remitted a copy of the documentation sent by FASIC,
that related to FASIC’s status as a legal entity.
37.
On February 17, 1998, in accordance with the Commission’s February 11
request, the Secretariat asked the State to send various documents relating
to the types of evidence contained in its answer to the application. The State complied with this requirement on March 23, 1998.
38.
By Resolution of March 9, 1998, the President summoned the Inter-American
Commission and Peru to a public hearing to be celebrated at the seat of the
Court on June 8, 1998, to hear their oral
arguments on preliminary objections.
39.
By means of a March 17, 1998 letter, the State maintained that the documents
filed by the Commission on January 22, 1998 (supra
36) did no more than confirm its questions about the petitioning foundation’s
status as a legal entity, and it challenged
one of the documents.
40.
On March 19, 1998, the Secretariat, following the instructions of the
President, informed the State that in response to its demand made in both its
brief on preliminary objections and its answer to the application, that the
Commission exhibit all of its proceedings in this case, the Commission had opportunely
sent the pertinent parts of the file processed before it, and they were in the
Court’s possession.
41.
On March 19, 1998, the Secretariat, following the instructions of the
President, asked the State for an authenticated copy of the laws and regulatory
provisions applied in the proceedings before the Peruvian courts against the
alleged victims in this case, and for the complete judicial files of those proceedings.
42.
On April 14, 1998, the State informed the Court that the legal provisions
requested had been submitted as part of the evidentiary file in the Loayza-Tamayo
Case, and requested that the Court inform it of the items it would be necessary
to submit from the judicial files of the alleged victims in this case, since
the files "contain a voluminous amount of documents that relate to many
persons apart from those referred to in this application."
43.
On April 27, 1998, the Commission reiterated its request for the submission
of "the laws and other regulatory decrees relevant to the proceedings carried
out by the Peruvian Courts against Jaime Castillo-Petruzzi et. al., as well
as all the pertinent parts of the judicial files on these cases." Moreover, the Commission opposed the use of
the same documents containing the laws and decrees submitted in the Loayza-Tamayo
Case, arguing that the files were different. On July 7, 1998, the Secretariat, following
the instructions of the Court, requested that the State submit the pertinent
parts of the judicial file of the trial which took place in Peru against Jaime
Francisco Castillo-Petruzzi et. al., and informed both parties that the legal
provisions submitted in the Loayza-Tamayo Case would be integrated into the
file.
44. The public
hearing took place at the seat of the Court on June 8, 1998.
Appearing
for the State of Peru:
Walter Palomino-Cabezas, alternate agent
Ana Reátegui-Napurí, counsel, and
Jennie Vizcarra-Alvizuri, counsel
for the Inter-American Commission on Human Rights:
Oscar Luján-Fappiano, delegate
Christina Cerna, attorney
Verónica Reyna, assistant, and
Nelson Caucota, assistant.
45.
On July 14, 1998, the Secretariat, following instructions of the Court,
requested that the Commission remit the minutes of the session in which it decided
to send the present case to the Court, and any document in which it was recorded
that the alleged victims knew of the motions made on their behalf before the
Commission, notwithstanding the petitioners were rented with power of representations.
On July 29, 1998, the Commission sent the requested documents.
46.
On July 14 and August 3, 1998, the Secretariat, following instructions
of the Court, requested that the State send official document number 521-DIVICOTE-DINCOTE
dated October 19, 1993. The State forwarded
the requested document to the Court which was received by the Secretariat of
the Court on August 7, 1998.
47.
On August 24, 1998, the State objected to the minutes of the Commission
(supra 45), because they were drawn up in
English, and requested that they be sent in Spanish. On August 25, 1998, the Secretariat, following instructions of the
President, sent a translation of the minutes to the State and the Commission,
so that they would both be aware of the content of the translation.
The time period granted for their comments expired on August 28, 1998,
without the Secretariat receiving comments from the parties.
48.
On September 1, 1998, the State reported on certain questions related
to Chilean consular assistance in Peru. This
communication was transmitted to the Commission on September 3, accompanied
by a request that the Commission send to the Court within twenty-four hours
any comments that it deemed pertinent.
V
JURISDICTION
49.
Peru has been a State Party to the American Convention since July 28,
1978, and accepted the contentious jurisdiction of the Court on January 21,
1981. Consequently, the Court is competent, pursuant
to Article 62(3) of the Convention, to consider the preliminary objections submitted
by the State.
VI
PRELIMINARY
CONSIDERATIONS
50.
The objections raised by Peru basically refer to the following procedural
matters: exhaustion of domestic remedies (cfr.
first, second, third, and fourth objections), legal entity status and standing
(cfr. fifth and sixth objections), "premature
decision" to send the case to the Court (cfr. seventh objection), ‘ambiguity in
the manner of submitting the application" (cfr. eighth objection), lapse of the application (cfr. ninth objection) and “sovereignty
and jurisdiction" (cfr. tenth
objection). To avoid unnecessary repetition,
these objections will be examined below under general headings that indicate
the basic subject matter of the objections, with pertinent cross-references,
and an examination in each case of other matters brought up by Peru in its explanation
of the respective objections.
VII
EXHAUSTION
OF DOMESTIC REMEDIES
First Objection
51. The first
objection interposed by the State refers to the
failure to exhaust the domestic remedies
of Peru at the time the Inter-American Commission on Human Rights, pursuant
to Article 37 of its Regulations, admitted for processing the complaint on behalf
of Jaime Francisco Castillo-Petruzzi, María Concepción Pincheira-Sáez, Lautaro
Enrique Mellado-Saavedra, and Alejandro Astorga-Valdéz.
52. The Court
summarizes in the following terms the arguments of the State and the Commission
as to this objection:
a.
The State asserted that the Inter-American Commission received and initiated
the processing of the January 28, 1994 complaint when a proceeding in Peru was
pending against the alleged victims. On
May 3, 1994, the Special Military Supreme Court of the Supreme Council of Military
Justice convicted the alleged victims of “the commission of the above-mentioned
criminal act. The complaint filed by
Verónica Reyna, Chief of the Legal Department of FASIC, concerned three of the
alleged victims; the fourth alleged victim, Alejandro Astorga-Valdéz, was added
subsequently. In the public hearing Peru
stated that the Commission informed it of the complaint on June 29, 1994.
The State maintained that the Commission did not comply with the requirements
of Articles 46(1)(a) and 47(a) of the Convention, Article 37 of its Regulations,
and Articles 18 and 19 a. of its Statute.
b.
The Commission asserted that the complaint was transmitted to Peru on
June 29, 1994, after the Supreme Council of Military Justice issued the conviction
on May 3, 1994. It added that, in its
judgment, it would not have been necessary to exhaust domestic remedies, given
that Decree-Laws No. 25,659 and 25,708 the corresponding procedural norms, and
their application in a concrete case, do not provide "the fundamental guarantees
of due process" for the crime of treason against the fatherland.
During the public hearing, the Commission pointed out that its argument
was grounded in the exception to the rule of the exhaustion of domestic remedies
(Article 46(2) of the Convention) and stated that this issue had not been raised
before it in a timely manner.
53.
As to this first objection raised by the State, the Court will not consider
the assessments of the parties as to the conformity of the nature of the proceedings
against the alleged victims with the principles of legal due process set forth
in the Convention. Taking into account
the nature of this matter, the Court considers that its analysis should be reserved
for the decision on the merits.
54.
The Court points out that if the Commission did receive the complaint
in this case while the criminal proceeding was pending a final judgment before
the military court of the last instance, the mere filing of it did not amount
to the Commission’s commencement of the
processing of the matter. Strictly speaking,
the receipt of the complaint, which derives from an act of the complainant,
should not be confused with its admission and processing, which are accomplished
by specific acts of the Commission itself, such as the decision to admit the
complaint and, when appropriate, the notification of the State.
55.
It must be noted that in this case the processing began several months
after the complaint was lodged, when there was already a final judgment from
the organ of final instance in the military jurisdiction.
It was only then, by means of a notification on June 29, 1994, that the
Commission informed Peru that the complaint had been submitted and required
its observations concerning it, so that the State could provide that which it
believed to be relevant in its defense.
56.
The Court also indicates that the State did not allege the failure to
exhaust domestic remedies before the Commission.
By not doing so, it waived a means of defense that the Convention established
in its favor and made a tacit admission of the non-existence of such remedies
or their timely exhaustion, as has been stated in proceedings before organs
of international jurisdiction (such as the European Court which has maintained
that objections to inadmissibility should be raised at the initial stage of
the proceedings before the Commission, unless it proves impossible to interpose
them at the appropriate time for reasons that cannot be attributed to the Government),
(cfr. Eur. Court H.R., Artico judgment
of 13 May 1980, Series A No 37, paras. 24 et seq; Eur.
Court H.R., judgment of Foti and others of 10 December 1982, Series A No.
56, paras. 46 et seq; Eur. Court H.R., Corigliano judgment of
10 December 1982, Series A No. 57, paras. 31 et seq; Eur. Court H.R., Bozano judgment of 18 December 1986, Series A No.
111, para. 44; Eur. Court H.R., Ciulla case decision of 23 March 1988, Series A No.
148, paras. 28 et seq., and Eur. Court
H.R., de Jong, Baljet and van den Brick judgment of 22 May 1984, Series
A No 77, paras. 35 et seq). and this Court has stated in earlier judgments.
(In the Matter of Viviana Gallardo et.
al. No. G 101/81. Series A, para 26; Velásquez Rodríguez Case, Preliminary Objections, Judgment of June
26, 1987. Series C No. 1, para. 88, 89; Fairén
Garbi and Solís Corrales Case, Preliminary Objections, Judgment of June
26, 1987. Series C No. 2, para. 87, 88; Godínez
Cruz Case, Preliminary Objections, Judgment of June 26, 1987. Series C No.
3, para. 90, 91; Fairén Garbi and Solís
Corrales Case, Judgment of March 15, 1989. Series C No. 6, para. 109; Neira Alegría et al., Preliminary Objections,
Judgment of December 11, 1991. Series C No. 13, para. 30; Gangaram Panday Case, Judgment
of January 21, 1994. Series C No. 16, para. 38 and 40; Castillo Páez Case, Preliminary Objections,
Judgment of January 30, 1996. Series C No. 24, para. 40; Loayza Tamayo Case, Preliminary Objections, Judgment of January 31,
1996. Serie C No. 25, para 40; in addition to the aforementioned judgments,
as to the opportunity to present defenses, the Court has expressed its opinion
in Caballero Delgado and Santana Case, Preliminary
Objections, Judgment of January 21, 1994. Serie C No. 17, para. 60).
57. Consequently,
the Court deems this preliminary objection to be inadmissible.
Second
Objection
58. The second
objection raised by the State concerns the lack
of competence of the Inter-American Commission on Human Rights and the Inter-American
Court of Human Rights first, to consider the petition lodged by the Fundación
de Ayuda Social de las Iglesias Cristianas (FASIC) on behalf of the aforementioned
Chilean citizens; and second, to process this application when the original
petition was lodged without establishing the exhaustion of the domestic remedies
of Peru.
59. The Court
summarizes as follows the positions of the State and the Commission with respect
to this objection:
a.
The State asserted that the Commission received and initiated the processing
of the complaint when the criminal proceeding was still ongoing against the
alleged victims. It declared that the
Commission is authorized to consider a matter when domestic resources have been
exhausted and that the non-fulfilment of that norm "results in the incompetence
of the Commission and [...] determines that the Court also lacks the competence
to exercise jurisdiction and to render a valid decision on the merits of the
disputed question." The State emphasized
that the alleged victims or their attorneys could have filed writs of habeas
corpus or of amparo but did not do so.
b.
The
Commission pointed out that the second objection merely repeats the first. It observed that in October of 1993, due to
the circumstances of the proceedings and the
applicability of Article 6 of Decree-Law No. 25.659 "the alleged victims were not permitted
the option of filing a writ of habeas corpus or of amparo." Moreover, the Commission asserted that even
though the aforementioned Decree-Law was modified on November 25, 1993, by Decree-Law
No. 26.248, which allowed for the filing of a writ of habeas corpus in cases
of treason against the fatherland, this legal modification "came about
long after the final, ultimate, and executed judgment rendered in the exclusive
military jurisdiction; as a result of which the remedy was ineffective for reasons
of untimeliness.
It also pointed out that this motion could not be filed, since it concerned
the same events for which the prisoners
had been tried. Likewise, the Commission
stressed that the State had not demonstrated the effectiveness of that remedy
for the release of persons tried before" a "faceless" military
court.
60.
The principal issue raised in the second objection, the failure of the
timely exhaustion of domestic remedies, has been examined with regard to the
first objection (supra 53 to 56),
and for that reason the Court does not consider it necessary to repeat the same
observations already stated.
61.
In its explanation of the second objection, the State referred specifically
to the remedies of habeas corpus and amparo.
In previous decisions, the Court has maintained that habeas corpus is,
in fact, the appropriate remedy to combat violations of the right to personal
liberty (Habeas Corpus in Emergency Situations
(Arts. 27(2), 25(1) and 7(6) American Convention on Human Rights), Advisory
Opinion OC-8/87 of January 30, 1987. Series A No. 8, paras. 35 and 42).
62.
In this matter, it is important to remember that Article 6(4) of Decree-Law
No. 26,248 of November 12, 1993, which modified Decree-Law No. 25.659 on this
point, as applied to the alleged victims provides that “writs of habeas corpus
based on the same facts or grounds, the subject of a proceeding that is under
way, or a proceeding that is already resolved, are not admissible.” As regards amparo, Decree-Law 25.569 excluded
access to that guarantee, and it has not been proved that there has been a modification
of the aforementioned legislation which would authorize the use of that remedy.
It is appropriate to remember that in the Loayza-Tamayo Case this Court
determined that persons accused and tried, pursuant to the provisions
of the aforementioned Decree-Law No. 25.659, did not have access to the right
of petition for any guarantee to safeguard personal liberty. (Loayza-Tamayo Case, Judgment of September
17, 1997. Serie C No. 33, para. 52).
63.
Moreover, on proposing the objection that is now examined, the State
did not explore the applicability of habeas corpus and amparo in this case,
nor did it demonstrate the general effectiveness of these remedies in matters
such as the present one, by showing that they would be adequate and available. It is evident, and the Court has so decided, that the State must
prove the effectiveness of the domestic remedies. (In the Matter of Viviana Gallardo
et. al., supra 56; Velásquez Rodríguez Case, Preliminary Objections,
supra 56; Fairén Garbi and Solís Corrales Case, Preliminary
Objections, supra 56; Godínez Cruz Case, Preliminary Objections, supra 56; Velásquez Rodríguez
Case, Judgment of July 29, 1988. Series C No 4, para. 64; Godínez Cruz Case, Judgment of January
20, 1989. Series C No. 5, para 67; Fairén
Garbi and Solís Corrales Case, supra
56; Neira Alegría et al., Preliminary
Objections, supra 56; Gangaram Panday Case, supra 56; Caballero Delgado and Santana Case, Preliminary Objections, supra 56; Castillo Páez Case, Preliminary Objections, supra 56; Loayza Tamayo Case,
Preliminary Objections, supra
56).
64. In light
of the above, the Court deems this preliminary objection to be inadmissible.
Third Objection
65.
The third objection interposed by the State concerns the lack of a prior
demand and of the lack of the exhaustion of the domestic remedies of Peru with
respect to the alleged violation of Article 29 of the American Convention in
relation to the Vienna Convention on Consular Relations.
66. The Court
summarizes the arguments of the State and Commission on this point as follows:
a.
The State asserted that “it offered the Chilean consular officials all of the facilities to visit the persons of
their nationality who were detained.” It
stated that Report 17/97 did not contain any recommendation about the alleged
violation of Article 29 of the American Convention in conjunction with the Vienna
Convention on Consular Relations, and that because the domestic jurisdiction
of Peru had not been exhausted as to this question, the Court should reject
this point of the application. In the
public hearing, the State indicated that the report of the Chilean delegation’s
visit, “had not been a topic of debate and discussion at the level of the Inter-American
Commission [nor] had it been a subject of the confidential report.
b.
The Commission asserted that neither the American Convention nor the
Rules of Procedure establish that the application must be an exact replica of
the report provided for in Article 50 of the Convention.
It added that Report 17/97 stated that the Chilean delegation, which
was prohibited from visiting the alleged victims, sent a report to the State
on March 20, 1995, in which it pointed out that Article 20 of Decree-Law No.
25.475 contravened the norms of the Vienna Convention on Consular Relations,
because it authorized the total isolation of the prisoners. On June 6, 1995, the State sent its observations
on the Commission’s report, and did not make reference to the suspension of
the visits. During the public hearing
before the Court, the Commission indicated that it had not included the subject
of the consular visit in its report, given that those detained had already been
convicted, and for that reason “there was no possibility of redress because
the injury had already been inflicted and was irrevocable.”
67.
The matter here taken up could be examined in the light of various facts
and considerations, such as: the communication of October 19, 1993, that the
State maintains was sent to the Chilean consular representative of Chile in
Peru concerning the detention of the alleged victims, a copy of which, showing
the stamp of receipt of the corresponding consular office dated October 20,
1993, is included as an exhibit; the nature of the commission of the Chilean
delegation that attempted to interview the alleged victims in the prison of
Yanamayo, which was composed of members of the Chilean Legislature; and the
documentary evidence in the file regarding the consular visits to María Concepción
Pincheira-Sáez. The Court will not examine
these matters which would go to the merits of the case.
68.
However, the Court considers it relevant to indicate that the Commission
did not raise this issue in its Report 17/97.
Although it is true that the application need not necessarily be a simple
reiteration of the report issued by the Commission, it is also true that it
should not contain types of violations of which the State was not aware during
the stage of the proceedings before the Commission itself, and which it could
not, therefore, refute at that time. It
must be remembered that at that stage the State could admit the facts alleged
by the complainants, justifiably reject them, or procure a friendly settlement
which would avoid the submission of the case to the Court. If the State is not aware of certain facts or
particular statements which are later raised in the application, it can not
make use of the rights that assist it at that procedural stage. It must be observed that this instance does
not pertain to one of the general obligations set forth in the American Convention
(Articles 1(1) and (2)), compliance with
which the Court must officially examine (cf. Cantoral Benavides Case, Preliminary Objections,
Judgment of September 3, 1998. Series C No. 40, para. 46)..
69. For the
aforementioned reasons, the Court deems that this preliminary objection is
admissible.
Fourth
Objection
70. The fourth
objection raised by the State concerns the
lack of a prior demand and of the
exhaustion of the domestic remedies of
Peru with respect to the claim made in point six of the brief supporting the
application, under which the Court is
to order the Peruvian State to immediately release and compensate Jaime Francisco
Castillo-Petruzzi, María Concepción Pincheira-Sáez, Lautaro Enrique Mellad[o]-Saavedra,
and Alejandro Astorga-Valdéz.
71. The Court
summarizes the arguments of the State and the Commission pertaining to this
objection in the following manner:
a.
The State pointed out that in Report 17/97 the Commission’s request was limited to the annulment of the
proceedings of the exclusive military jurisdiction against the alleged victims,
so that they would be tried again before the civilian court. On this basis, the State argued that neither
the Commission nor the petitioners exhausted the domestic jurisdiction of Peru,
and that the requests included in the application should concern the matters
established in the conclusions and recommendations of the Report. During the public hearing, Peru added that the
State had found its “right to argue curtailed and had to assert its right by
means of an objection which also pertains to the merits of the case.”
b.
The Commission stated that neither the Convention nor the Rules of Procedure
refer to “the alleged necessity to duplicate the same list of conclusions and
recommendations from the Article 50 report in the application to the Court.”
Moreover, the Commission indicated that by note of July 8, 1997, Peru
submitted its observations on Report 17/97, and in them did not mention any
measures adopted to comply with the recommendations set forth in the report.
In conformance with the principle non
bis in idem, Peru could not try the alleged victims in the civilian jurisdiction
on the same facts as had been considered by the military jurisdiction, for which
reason the Commission requested the annulment of the proceedings.
72.
The Court refers back to the observations it made with respect to the
failure to exhaust domestic remedies, which it examined as to the first objection
(supra 53 and 56) and to which it also alluded
when considering the State’s second objection (supra 60).
73.
It is also important to comment on the State’s argument that there is
a certain incongruity in the position sustained by the Commission, when the
combination of its arguments is considered.
The State asserted that on the one hand the Commission requested the
annulment of the proceedings that culminated in a final conviction of the alleged
victims, and on the other, required their immediate release. Even though the statements in these requests could have been more
precisely formulated so as to avoid confusion, the Court deems that the incongruity
is more apparent than real. The annulment
of a trial that resulted in a final judgment of conviction does not imply the
commencement of a new trial against the same person for the same facts, which
would be a flagrant violation of the principle of non bis in idem, but would lead instead
to the immediate and absolute release of the accused. The Court, on examining the statements of the Commission, can establish
their possible scope, which has a double objective; the annulment of the trial
on the one hand, and the release of the accused as a natural legal effect of
that annulment, on the other.
74. For the
aforementioned reasons, the Court considers that this preliminary objection
is inadmissible.
VIII
LEGAL CAPACITY
AND STANDING
75. The fifth
objection interposed by the State refers to the
lack
of status as a legal entity of the party that, in the name of the Fundación
de Ayuda Social de las Iglesias Cristianas (FASIC), filed petition No. 11.319
with the Inter-American Commission on Human Rights against the Peruvian State
and lack of standing of the aforementioned foundation.
76. In this
regard, the Court summarizes the arguments of the State and the Commission
as follows:
a. The State asserted that a party who takes action
in the name of or in representation of a legal entity, must be duly authorized under the bylaws of that entity
or have its express authorization. Neither
Verónica Reyna nor FASIC were accredited respectively as representatives or recognized
as a non governmental organization in Chile. During the public hearing, the State added that
it was not questioning the existence of this foundation nor the legal capacity
of the person who lodged the complaint in its name.
b. The Commission responded that it did not ask the
foundation to “establish its legal capacity when it lodged the complaint in
this case, because it is an organization known to the Commission,” which appears
in the Guide to Non Governmental Human Rights Organizations, published in 1991
by the Inter-American Institute of Human Rights of San José, Costa Rica.
During the public hearing, the Commission indicated that it had always
“broadly interpreted Article 44 so as not to require the existence of
a power of attorney or specific
representation; it is sufficient that the action is taken by a group of persons.”
77.
As to this objection, the Court takes note that irrespective of the examination
that it could make, if it were necessary, of the existence and authority of
FASIC and of the person who took action in its name, it is clear that Article
44 of the Convention permits any group of persons to lodge petitions or complaints
of the violation of the rights set forth in the Convention. This broad authority to make a complaint is
a characteristic feature of the system for the international protection of human
rights. In the present case, the petitioners
are a “group of persons,” and therefore, for the purpose of legitimacy, they
satisfy one of the possibilities set forth in the aforementioned Article 44.
The evident authority in this instance makes it unnecessary to examine
the registration of FASIC, and the relationship that said foundation has or
is said to have with those who act as its representatives.
This consideration is strengthened if it is remembered that, as the Court
has stated on other occasions, the formalities that characterize certain branches
of domestic law do not apply to international human rights law, whose principal
and determining concern is the just and complete protection of those rights.
In other words, "failure to observe certain formalities is not necessarily
relevant when dealing on the international plane.
What is essential is that the conditions necessary for the procedural
rights of the parties not be diminished or unbalanced, and that the objectives
of the different procedures be met.” (Vélasquez Rodríguez Case, Preliminary Objections,
supra 56, paras. 33 and 34; Fairén
Garbi and Solís Corrales Case, Preliminary Objections, supra
56, paras. 38 and 39; Godínez Cruz Case, Preliminary Objections,
supra 56, paras. 36 and 37; Paniagua Morales et. al. Case, Preliminary
Objections, Judgment of January 25, 1996. Series C No. 23, para. 42, and
Caballero Delgado and Santana Case, Preliminary
Objections, supra note 56, para.
44). The International Court of Justice
has spoken to this issue in stating that the Court, “whose jurisdiction is international,
is not bound to attach to matters of form the same degree of importance which
they might possess in municipal law (Mavrommatis Palestine Concessions, Judgment
No. 2, 1924, P.C.I.J., Series A, No. 2, p. 34; Legal Status of Eastern Greenland, Judgment, 1933, P.C.I.J., Series
A/B, No. 53, p. 71; Aegean Sea Continental
Shelf, Judgment, I.C.J. Reports 1978, para. 42).
78.
The Court has declared that certain formalities
may be excluded, provided that there is a suitable balance between justice
and legal certainty. (Cayara Case, Preliminary
Objections, Judgment of February 3, 1993. Series C No. 14, para. 42; Paniagua
Morales et al. Case, Preliminary Objections, supra
77, para. 38; Castillo Páez, Preliminary
Objections, supra 56, para. 34,
and Loayza Tamayo, Preliminary Objections,
supra 56, para. 33). In the exercise of its authority to evaluate
due process before the Court (Velásquez
Rodríguez Case, Preliminary Objections, supra
56, para. 34; Fairén Garbi and Solís Corrales
Case, Preliminary Objections, supra
56, para. 39; Godínez Cruz Case, Preliminary
Objections, supra 56, para. 37),
it deems that in the present case the essential matters implicit in the procedural
rules of the Convention have been respected.
79. In view
of the foregoing, the Court determines that this preliminary objection is
not admissible.
Sixth Objection
80. The sixth
objection interposed by the State concerns the
lack
of standing of the Fundación de Ayuda Social de las Iglesias Cristianas (FASIC)
and of those who the Commission referred in points thirteen and fourteen of
the application as “another group of complainants” or “a second group of petitioners”
[and sovereignty].
81. The Court
summarizes in the following manner the arguments of the State and the Commission
concerning this objection:
a. The State pointed out that the aforementioned
persons lack standing under Article 44 of the Convention, “to raise questions
about the sovereign actions taken by the Peruvian authorities.”
The alleged victims “surreptitiously entered [Peru] and devoted themselves
to subverting the established order, associating themselves with a terrorist
organization.” The questioning of the sovereign acts of Peru
is made by “an alleged legal entity under non Peruvian private law and/or third
persons who are unidentified or whose identity is not known to the Peruvian
State and who presumably are not of Peruvian nationality.” “This concerns professional
international terrorists, as they have been characterized even by the Chilean
authorities.” The alleged victims repudiated
the conditions of Article 32 of the Convention and those set forth in the Peruvian
Constitution then in force. During the public hearing Peru advised that
“this objection touches on aspects of the case that should be heard with the
merits, for which reason it reserved the right to support it at that time.”
b. The Commission indicated that “the transition
from a question of the domestic forum to the international forum is made by
virtue of the existence of a treaty of other norm of international law that
imposes an obligation.” It also asserted
that, just as it stated in examining the prior objection, FASIC does have legal
standing to lodge a complaint against Peru. It pointed out that both the Commission and
the Court are competent to examine the instant case, since Peru ratified the
Convention and accepted the jurisdiction of the Court. It asserted that the accused, irrespective of
whether they are terrorists, mercenaries, or common criminals, have the rights
protected by Article 8 of the Convention. In contrast with the reservation made by the State during the public
hearing, the Commission affirmed that “if the objections are raised now, they
should be supported now.”
82.
As to this objection, the Court adheres to the observations that it made
on examining the legitimacy of FASIC and of its representatives (supra 77). As regards statements concerning the principle of sovereignty and
its implications in the present case, reference is made to the examination of
the tenth objection (infra 101 and 102).
83.
As concerns the exclusive subject matter in the sixth objection, the
Court emphasizes that it can not nor should not discuss or judge the character
of the crimes attributed to the alleged victims, certainly very grave, as that
is reserved to the appropriate criminal court.
The Court is called upon only to decide on concrete violations of the
provisions of the Convention, concerning any persons and independent of the
legal situation that applies to them or of the legality or illegally of their
conduct from the perspective of the criminal norms that could be applicable
under national law.
84.
A behavior that risks or harms the legal benefits set forth in Article
32 of the Convention, which was invoked by Peru, would result in the intervention
of the regular courts for a judgment as to the liability of those who committed
it, but will not override the human rights of the accused nor deprive them of
the possibility of access to organs of international jurisdiction. On another occasion, the Court has commented
on the seriousness of the real or alleged crimes committed by the victim, holding
that the Court is not concerned with the innocence or the guilt of the accused,
and that a decision of that nature is in the providence of the domestic criminal
court (cfr. Suárez Rosero, Judgment
of November 12, 1997, Series C No. 35, para. 37).
85. Consequently,
the Court deems that this preliminary objection is inadmissible.
IX
“PREMATURE DECISION” TO SEND THE CASE TO THE
COURT
Seventh
Objection
86.
The seventh objection interposed by the State concerns “the premature
decision of the Honorable Commission to send the present case to the Inter-American
Court of Human Rights.”
87. The Court
summarizes the positions of the State and the Commission on this issue as
follows.
a. The State argued that the Commission, in its Ninety-Fifth
Regular Session, approved Report 17/97 that was transmitted to the State on
April 24, 1997. On June 5 of the same
year, the Commission granted Peru an extension to comment on that Report, which
ended on July 8, 1997. On June 27, 1997,
despite the fact that the additional time period was running, the Commission
made the decision to sent the case to the Court. According to the State, said decision was premature
and constituted a “prejudgment that invalidated the act of the Commission and
nullified the submission of the application, because it infringed on an elementary
guarantee related to the right to due process.”
b. The Commission stated that pursuant to Article
51 of the Convention, it could send the case to the Court on the latest date
of July 24, 1997. On June 27, 1997, it
decided to do so, subject to the possible implementation of the recommendations
by Peru. Peru, by means of a July 8,
1997 note, received by the Commission on July 10, rejected the recommendations
contained in the Report, for which reason, the Commission argued, it was not
necessary to reconsider the decision it had adopted. Moreover, it stated that Peru had not indicated in what way it was
prejudiced by the disputed decision. Finally,
during the public hearing, the Commission added that it found it necessary to
make this decision because “it does not meet on a permanent basis.”
88.
As to this objection, the Court states that the decision adopted by the
Commission to submit the case to the Court, a decision that the Commission explained
as being a function of its work system and of the schedule that governs its
sessions, did not result in the immediate submission of the application to the
Court. In explanation of the preceding
observation, it is useful to recall the relevant dates in the examination of
this objection. The extension of the
time period requested by Peru and granted by the Commission was to expire on
July 8, 1997. According to the Commission,
its decision to send the case to the Court was made on June 27, subject to “the
possible implementation of the recommendations” contained in the Report.
Peru sent its observations on July 10 and in them rejected the recommendations
of the Commission. Finally, the Commission filed the application on July 22, which was
almost a month after deciding to do so and two weeks after the expiration of
the extension of the initial deadline and after the State refused to heed the
recommendations of the Commission. This
circumstance shows that Peru was not affected by a de facto interruption in the time period
it had been granted, and reinforces the statement of the Commission that the
performance of the agreement of June 27 was subject to the answer that was to
be provided by the State. It is apparent
that the mere decision adopted by the Commission on June 27 did not prejudice the State in any way.
89. For the
aforementioned reasons, the Court determines that this preliminary objection
is inadmissible.
X
AMBIGUITY
IN THE MANNER OF SUBMITTING THE APPLICATION
Eighth
Objection
90. The eighth
objection interposed by the State concerns “ambiguity in the manner of submitting
the application.”
91. The Court
summarizes in the following manner the arguments of the State and of the Commission:
a. The State argued that there is no agreement between
the purpose of the application and the petition on which that purpose was based.
When referring to the purpose of the application, the Commission asked
the Court for the release of the prisoners and reparations for the alleged material
and moral injuries they suffered, while in its petition the Commission demanded
that the State annul the proceedings which took place in the military court
against the aforementioned persons and initiate a new proceeding, respecting
due process and granting the consequent reparations for the “violations caused
by the military proceedings.”
b. The Commission observed that this objection “reiterates
the arguments presented under the heading of the Fourth Objection;” that its
position is that which was expressed in the proceeding before the Court and
not that contained in Report 17/97; that
[t]he lack of similarity between
the Article 50 or Article 51 Report and
the application to the Court, results from ‘the conduct of the State,’ as the
Court stated in Advisory Opinion OC\13. [...] If the Peruvian State had taken
steps to implement the recommendations of the Article 50 Report, there would
not have been a need to make an application to the Court. Nor would it have been necessary for the Court
to hear the statements of the petitioners in order to decide on reparations.
During the public hearing, the Commission
added that unclearness of the request “if it exists,
can mean, at most, that the applicant is told to clarify the terms of
its application, but in no way would it result in a rejection in limine.”
92.
As regards this eighth objection raised by the State, the Court deems
that the observations it made in the examination of the fourth objection are
applicable (supra 73). Of course, there should be congruity between the statements made
in the body of the application and those which are made in the pleas of said
document, taking into account the natural continuity that exists logically between
them. In any case, the Court can and
should, in accordance with the principle of iura novit curia, examine the document in its entirety and consider
its character and the meaning of the requests made by the applicant, so as to
duly evaluate and resolve them. (Velásquez
Rodríguez Case, supra 63, para.
163 and Godínez Cruz Case, supra 73,
para. 173). The Court will not begin
to examine the other observations set forth with regard to this objection interposed
by the State and which are not the proper subject matter for a preliminary objection,
analysis of which will be reserved for the time of the respective judgment.
93. Consequently,
the Court deems this objection to be inadmissible.
XI
LAPSE OF
THE APPLICATION
Ninth Objection
94. The ninth
objection interposed by the State concerns the “lapse of the application.”
95. The Court
summarizes the arguments of the State and the Commission as:
a. The State referred to the submission of a corrected
version of the application by the Commission on August 26 and 28, 1997.
It asserted that the “submission of the application, its admission for
processing and the subsequent notification of the opposing party, precluded
all rights of whoever would move to modify or vary in whole or in part its objectives. The submission of the application, its admission, and the notification
of the opposing party, “are exclusive and invariable actions that can not be
modified much less done so unilaterally.” To accept the second text submitted by the Commission as definitive
would amount to an admission that the application was interposed after the expiration
of the three months provided by Article
51(1) of the American Convention in accordance with Articles 19(a) and 23 of
the Statute of the Commission and Article 47(2) of the Regulations of the Commission.
b. The Commission stated that on August 26, 1997,
it asked the Court to replace the application with a corrected version of the
Spanish text submitted that same day. In
said text, the Commission stated that “the corrections were merely of spelling,
style, and typing mistakes in the redaction of the Spanish version of the application.”
It indicated that the matter was resolved by the President of the Court
on October 15, 1997, and lastly observed that the State had not indicated what
prejudice a modification of this character had caused to its defense.
96.
As to this objection, the Court recognizes that there can be no more
than one text of an application, considering the characteristics and consequences
of this proceeding, but at the same time it observes that in this case the applicant
incorporated purely formal corrections and changes, so as to improve the appearance
of the document, without modifying any of the objectives or affecting the procedural
defense of the State.
97.
In any case, it is necessary to indicate that this matter was already
considered and resolved by the President of the Court in his Resolution of October
15, 1997 (supra 29). In effect, the Resolution determined the text
that would serve, to the exclusion of all others, as the valid application in
the instant proceeding. The Commission
and the State were notified of the President’s decision on October 15 and 17
respectively, and neither of them objected or requested clarifications or changes.
98. For the
reasons stated, the Court deems that this preliminary objection is inadmissible.
XII
SOVEREIGNTY
AND JURISDICTION
99. The State
identifies the tenth objection as “sovereignty and jurisdiction.”
100. The Court
summarizes as indicated below the arguments of the State and the Commission
on this issue:
a. The State asserted that, although it would not
begin to inquire into the ambiguity of the application, it considers that “there
are inherent aspects that make up the sovereignty of States and of individuals
that can not be renounced without affecting public order.” On this basis, Peru asserted that it is a sovereign
Republic with the full right to pass the necessary laws to repress crimes committed
in its territory by nationals or foreigners; that the conviction of the alleged
victims took place in accordance with Decree-Laws Nos. 25.659, 25.708, and 25.744,
and with the 1993 Constitution in effect at that time, and that “the sovereign
decision of the legal organs of Peru cannot be modified much less rendered ineffective
by any national, foreign, or international authority.”
Finally, it asserted that “criminal offenses committed by nationals and
foreigners in Peruvian territory, are sanctioned by the competent courts of
the country and that their decisions are final.”
b. The Commission stated that the tenth objection
is “a combination of the objections presented and considered earlier,” and repeated
the arguments it made to the sixth objection. It pointed out that both the Commission and
the Court are competent to examine and decide this case, since Peru accepted
the jurisdiction of the organs of the Inter-American system with respect to
acts that violate the human rights set forth in the American Convention.
101.
As regards the tenth and final objection raised by the State, the Court
must recall that Peru signed and ratified the American Convention on Human Rights.
Consequently, it accepted the treaty obligations set forth in the Convention
with respect to all persons subject to its jurisdiction without any discrimination. It is not necessary to state that Peru, like
the other States Parties to the Convention, accepted the obligations precisely
in the exercise of its sovereignty.
102.
On becoming a State Party to the Convention, Peru accepted the competence
of the organs of the Inter-American system for the protection of human rights,
and therefore obligated itself, also in the exercise of its sovereignty, to
participate in proceedings before the Commission and the Court and to assume
the obligations that derive from them and from the general application of the
Convention.
103.
If the alleged victims have acted, as Peru asserts, in a manner inconsistent
with the provisions of the Convention and with the national law to which they
are subject, it can result in criminal consequences in accordance with the infractions
committed in the case, but it does not relieve the State of the duty to comply
with the obligations that it assumed as a State Party to the aforementioned
Convention.
104. Consequently,
the Court considers this preliminary objection to be inadmissible.
105. Now, therefore,
XIII
THE COURT,
DECIDES:
by five votes to two
1. To dismiss
the first, second, fourth, fifth, sixth, seventh, eighth, ninth, and tenth
preliminary objections interposed by the Peruvian State
Judges de Roux-Rengifo and Vidal-Ramírez dissenting
unanimously
2. To admit
the third objection raised by the Peruvian State.
unanimously
3.
To proceed with the consideration of the merits of the case, except
with respect to the third objection.
Judge Cançado Trindade informed the
Court of his Concurring Opinion; Judge de Roux-Rengifo of his Partially Dissenting
Opinion, and Judge Vidal-Ramírez of his Dissenting Opinion, all of which are
attached hereto.
Done in Spanish and English, the
Spanish text being authentic, in San José, Costa Rica, on this fourth day of
September, 1998.
Hernán Salgado-Pesantes
President
Antônio A. Cançado Trindade Máximo Pacheco-Gómez
Oliver Jackman Sergio García-Ramírez
Carlos Vicente de Roux-Rengifo Fernando Vidal-Ramírez
Manuel E. Ventura-Robles
Secretary
So ordered,
Hernán Salgado-Pesantes
President
Manuel E. Ventura-Robles
Secretary
