In the Castillo Páez case,
the Inter-American Court of Human Rights, composed
of the following judges:
Hernán Salgado-Pesantes, President
Antônio A. Cançado Trindade, Vice-President
Máximo Pacheco-Gómez, Judge
Oliver Jackman, Judge
Alirio Abreu-Burelli, Judge
Sergio García-Ramírez, Judge
Carlos Vicente de Roux-Rengifo, Judge
Also present:
Manuel
E. Ventura-Robles, Secretary and
Víctor
M. Rodríguez-Rescia, Assistant Secretary a.i.
Pursuant to articles 29, 55 and 56 of the Rules of
Procedure of the Inter-American Court of Human Rights (hereinafter "the Court" or "the
Inter-American Court"),
in relation to Article 63(1) of the American Convention on Human Rights (hereinafter
"the Convention" or "the American Convention") and in compliance with operative paragraph five of the
judgment of November 3, 1997, enters the following judgment on reparations
in this case, brought by the Inter-American Commission on Human Rights (hereinafter
"the Commission" or "the Inter-American Commission") against the Republic of Peru (hereinafter "Peru" or "the
State").
I
1. Under articles
62 and 63(1) of the Convention, the Court has jurisdiction to order reparations
and costs in the instant case, inasmuch as Peru ratified the American Convention
on July 28, 1978, and accepted the contentious jurisdiction of the Court on
January 21, 1981.
II
2. The Inter-American
Commission brought the instant case to the Court in an application dated January 13, 1995, attached
to which was Report No. 19/94 of September 26, 1994. It had originated with a complaint (No. 10.733) against Peru, received
at the Secretariat of the Commission on November 16, 1990.
3. In the operative
part of the judgment that the Court issued on November 3, 1997, it unanimously
decided the following:
…
1. That the State of Peru violated the right to personal liberty recognized
in Article 7 of the American Convention on Human Rights, in relation to Article
1(1) thereof, to the detriment of Ernesto Rafael Castillo-Páez.
…
2. That the State of Peru violated the right to humane treatment recognized
in Article 5 of the American Convention on Human Rights, in relation to Article
1(1) thereof, to the detriment of Ernesto Rafael Castillo-Páez.
…
3. That the State of Peru violated the right to life recognized in Article
4 of the American Convention on Human Rights, in relation to Article 1(1)
thereof, to the detriment of Ernesto Rafael Castillo-Páez.
…
4. That the State of Peru violated the right to effective recourse to
a competent national court or tribunal, recognized in Article 25 of the American
Convention on Human Rights, in relation to Article 1(1) thereof, to the detriment
of Ernesto Rafael Castillo-Páez and his next of kin.
…
5. That the State of Peru is obliged to repair the consequences of those
violations and compensate the victim’s next of kin and reimburse them for
any expenses they may have incurred in their representations to the Peruvian
authorities in connection with this case, for which purpose the proceeding
remains open.
III
4. On December
10, 1997, the President of the Court (hereinafter “the President” decided
the following:
1. To give the Inter-American Commission on Human Rights until February
10, 1998, to submit a brief and any evidence it may have in its possession
for purposes of determining the compensation and costs in the instant case;
2. To give the next of kin of Mr. Ernesto Rafael Castillo-Páez, the victim
in the instant case, or their representatives, until February 10, 1998 to
submit a brief and any evidence they might have in its possession for purposes
of determining the compensation and costs;
3. To give the State of Peru until April 10, 1998, to make its observations
on the briefs that the Inter-American Commission on Human Rights and the victim’s
next of kin or their representatives submit pursuant to the preceding paragraphs.
5. On December
16, 1997, the Inter-American Commission informed the Court that it had named
Mr. Domingo E. Acevedo, Mr. Carlos Ayala-Corao and Mr. Alvaro Tirado-Mejía
as its delegates in the instant case. On June 18, 1998, Marcela Matamoros, who had been designated as the
Commission’s assistant for the public hearing on preliminary objections, advised
the Court that she was withdrawing from the case.
6. On January
27, 1998, the Commission requested a thirty-day extension of the deadline
set by the President in his order of December 10, 1997, in order to submit
its brief on the compensation and costs in the instant case. On January 28 and 29, 1998, the President extended
the deadlines set for the Commission and the victim’s next of kin to February
25 of that year, and the State’s deadline to May 11, 1998.
7. On February
25, 1998, the Commission and the victim’s next of kin each submitted to the
Court briefs on reparations, with the corresponding evidence, which were then
forwarded to the State on March 12 of that year.
8. On March
9, 1998, the President sent a summons to the victim’s next of kin, to the
Inter-American Commission and to Peru, for a public hearing on reparations,
which was to be held at the seat of the Court on June 9, 1998.
9. On March
11, 1998, the Secretary requested that the State submit the following documents:
the 1991 sworn earnings statement of Mr. Cronwell Pierre Castillo-Castillo,
a copy of the report prepared by the Office of the Inspector General of Police
concerning the operation in which Mr. Ernesto Rafael Castillo-Páez had been
detained on orders from the Ministry of the Interior, and any other intelligence
relative to the circumstances surrounding the disappearance of Ernesto Rafael
Castillo-Páez and his whereabouts. By note of May 29, 1998, the State informed
the Court that there was a legal impediment to supplying Mr. Cronwell Pierre
Castillo-Castillo’s sworn statement. The
State also failed to supply the other documents that had been requested, despite
the fact that the Secretariat had repeated the Court’s request on July 21
and again on August 26, 1998.
10. On March
24, 1998, the State filed a brief wherein it argued that the case should be
closed since inasmuch as it had not received the reparations briefs of either
the victim’s next of kin or of the Commission. The next day, the Secretariat informed the State that the reparations
briefs had been submitted by the victim’s next of kin and the Commission on
February 25 of that year and had been forwarded to the State on March 12.
11. On April
20, 1998, the Secretariat requested that the victim’s next of kin and the
State indicate how many witnesses and experts they would call at the public
hearing on June 9, 1998 (supra 8)
and what the purpose of their testimony or expert testimony would be. Also, on instructions from the President, they
were advised that "for
the sake of procedural economy and speed, they [should] give particular consideration
to the possibility of submitting some testimony and expert testimony in the
form of sworn statements."
12. By note
of April 29, 1998, the victim’s next of kin petitioned the Court to extend
the deadline they were given to submit the "definitive
list of witnesses" and
to establish a deadline for submitting the sworn statements from the parents
of the victim and from his sister, as well as the corresponding expert testimony.
13. On May 5,
1998, the Secretariat sent a note to the victim’s next of kin wherein it explained
the criteria for introducing evidence at this stage of the proceedings and
reported that the President had denied their request seeking an extension
of the deadline for submitting the definitive list of witnesses and experts.
It also advised them that the date for submitting the sworn statements
being offered in evidence would be set shortly.
By Secretariat note dated May 19, 1998, the victim’s next of kin were
notified that the deadline for submitting the sworn statements would be June
5 of that year.
14. On May 11,
1998, Peru submitted its observations on the reparations briefs filed by the
victim’s next of kin and by the Commission and attached documentary evidence.
It offered neither witnesses nor expert witnesses.
15. On June
4, 1998, the victim’s next of kin submitted a power of attorney signed in
Amsterdam, Kingdom of the Netherlands, on May 22, 1998; a statement made and
signed in the presence of a notary by Cronwell Pierre Castillo-Castillo, Mónica
Inés Castillo-Páez and Carmen Rosa Páez-Warton, and a technical report prepared
by Dr. Carmen Wurst-Calle de Landazuri on the "psychological
consequences of disappearances and political asylum" and the appendix thereto.
16. On June
4, 1998, Peru named Ana Reátegui-Napurí as its alternate agent in the instant
case.
17. On June
9, 1998, the Court held the public hearing on reparations and compensatory
damages.
Appearing before the Court:
for the victim’s next of kin:
Ariel Dulitzky
Ronald Gamarra,
For the Inter-American Commission:
Domingo E. Acevedo, Delegate,
For the State of Peru:
Ana Reátegui-Napurí, Alternate Agent
Jennie Vizcarra-Alvizuri and
Walter Palomino-Cabezas.
18. On July
20, 1998, the State filed two briefs containing a number of objections to
the affidavits signed in the presence of a notary, the expert report prepared
by Dr. Carmen Wurst-Calle de Landazuri, and to the power of attorney submitted
by the victim’s next of kin on June 4, 1998 (supra 15). The State’s contention
was that the affidavits signed in the presence of a notary and submitted on
June 23 of that year were extemporaneous. On August 22, 1998, the Secretariat replied
that the case file showed that the statements in question were reported on
June 11 of that year. On September
9, 1998, Peru petitioned the Court to inform it of the processing given to
those objections; accordingly, on September 11, 1998, the Secretariat informed
the State that the objections had been brought to the attention of both the
Commission and the victim’s next of kin and would be seen by the Court at
its forthcoming session.
19. By notes
of July 21, 1998, and pursuant to Article 44 of its Rules of Procedure, the
Court requested the victim’s next of kin, the Commission and the State to
forward the following documents as evidence by August 21 of that year:
from the victim’s next of kin:
a) Certifications of the salaries earned by Mr. Cronwell
Pierre Castillo-Castillo and Ms. Carmen Rosa Páez-Warton between 1990 and
the year in which they left for the Netherlands;
b) Certification of the proceedings conducted in
the bankruptcy of Mr. Cronwell Pierre Castillo-Castillo;
c) Certification of the political-refugee status
of Mónica Inés Castillo-Páez, in Sweden and in the Netherlands, and of her
parents Cronwell Pierre Castillo-Castillo and Carmen Rosa Páez-Warton in the
Netherlands;
d) An itemization of the lost family earnings, presented
in the brief on reparations they had filed the previous February;
e) Certification of the academic record of Mr. Ernesto
Rafael Castillo-Páez, issued by the Pontificia Universidad Católica del Peru,
during his years as a student, and
f) The sales contract for the home of the Castillo-Páez
family and the official appraisal with the estimated price of the house.
From the Inter-American Commission:
a) Certifications of the salaries earned by Mr. Cronwell
Pierre Castillo-Castillo and Ms. Carmen Rosa Páez-Warton between 1990 and
the year in which they left for the Netherlands;
b) Certification of the proceedings conducted in
the bankruptcy of Mr. Cronwell Pierre Castillo-Castillo;
c) Certification of the political refugee status
of Mónica Inés Castillo-Páez in both Sweden and the Netherlands, and of her
parents Cronwell Pierre Castillo-Castillo and Carmen Rosa Páez-Warton in the
Netherlands, and
d) Certification of the academic records of Mr. Ernesto
Rafael Castillo-Páez, issued by the Pontificia Universidad Católica del Peru,
during his years as a student.
From the State:
a) Certification of the minimum salary a sociologist
receives at the present time;
b) Life expectancy figures for Peru in 1990;
c) The official exchange rate of the United States
dollar to the Peruvian currency, for the period from 1990 to 1998, issued
by the Central Bank of Peru;
d) Peruvian legislation on the two annual job bonuses,
which become a thirteenth monthly salary;
e) Peruvian legislation exempting petitions of habeas corpus and criminal proceedings
from payment of court fees;
f) Law No. 26.926, of January 30, 1998, enacted on
February 21, 1998, typifying genocide, forced disappearance and torture as
crimes against humanity, even though there were precedents in the criminal
code, and
g) Decree-Law No. 25.592, published July 2, 1992,
which typifies the crime of forced disappearance.
In the same notes sent to the State, just as in an
earlier note dated August 26, 1998, the Court reiterated the request it had
made Peru on March 11, 1998, that it send the
[r]eport
prepared by the Office of the Inspector General of Police on the operation in which Ernesto Rafael Castillo-Páez was detained on orders from
the Ministry of the Interior, as mentioned in official memorandum 2558/DMC-CA,
and any other available intelligence relative to the circumstances of the
disappearance of Ernesto Rafael Castillo-Páez.
20. On July
27, 1998, the State requested another hearing to "elaborate upon the observations made […] on the [r]eparations
requested." On July 30, 1998, the Secretariat advised Peru
that the President considered its request inadmissible.
21. On August
21 and 24, September 9, 11, 29 and 30, October 1, 9, 26 and 29, and November
2 and 11, all in 1998, the State forwarded some of the documents the Court
had requested as additional, helpful evidence (infra 32). By notes dated August
20 and 28, 1998, the victim’s next of kin submitted some of the documents
the Court had requested as helpful evidence for purposes of arriving at a
more informed judgment (infra 28).
The Inter-American Commission, for its part, did not respond to the
Court’s request for evidence.
22. On September
11, 1998, the State filed a brief with observations on the assessments made
by the victim’s next of kin, wherein it reserved its right to express its
view on the English-language publication of "Human Rights Watch/Americas/Helsinki" (HRW), submitted by the victim’s
next of kin in their brief of August 20, 1998, until such time as a Spanish
translation of that publication was made available to it. The State attached the following documents to
its brief: a November 6, 1990 letter that the then Dean of the Pontificia
Universidad Católica del Peru, Mr. Hugo Saravia-Swett, sent to the Minister
of the Interior wherein reference was made to the disappearance of student
Ernesto Rafael Castillo-Páez, and press clippings on bankruptcy proceedings
that had occurred in Peru. On October
2, 1998, the victim’s next of kin supplied a Spanish translation of the publication
of "Human Rights Watch/Americas/Helsinki,"
which the Secretariat then forwarded to the State on October 5, 1998.
23. By a brief
dated October 9, 1998, the State submitted its observations on the identification
papers of Ernesto Rafael Castillo-Páez and the consequences of the fact that
the victim did not have those identification papers in his possession on the
day the events in question occurred. It also pointed out that although the voter
registration booklet had been issued on July 14, 1986, "it does not show any record of the individual having voted
in the municipal and general elections"
held, respectively, in 1989 and 1990, so that Castillo-Páez had not exercised
his political rights.
24. In a brief
from the State dated October 26, 1998, a registration record was received
for Ernesto Rafael Castillo-Páez, issued by the Chief of the Records Unit
of the National Registry of Identification and Vital Statistics and a "certification issued by the Office
of Remunerations and Benefits of the Office of Personnel of the Ministry of
the Interior" regarding
the salary that a sociologist at that agency receives.
DOCUMENTARY
EVIDENCE SUBMITTED BY THE PARTIES
25. By briefs
dated February 25 and June 4, 1998, the victim’s next of kin offered the following
documents as evidence:
a) The birth certificate and voter registration booklet
of Mr. Ernesto Rafael Castillo-Páez;
b) The marriage license of Cronwell Pierre Castillo-Castillo
and Carmen Rosa Páez-Warton;
c) The birth certificate of Ms. Mónica Inés Castillo;
d) The sworn testimony of Mr. Cronwell Pierre Castillo-Castillo
during the Inter-American Court’s proceedings into the merits;
e) An autopsy report on Abel Malpartida-Páez, cousin
of the victim, who allegedly disappeared under similar circumstances;
f) A copy of the canceled payment voucher of Ernesto
Rafael Castillo-Páez for the first semester of the 1990 at the Pontificia
Universidad Católica del Peru;
g) The teaching contract of Ernesto Rafael Castillo-Páez
with the Instituto Superior de Estudios Teológicos "Juan XXIII" [John XXIII Theological Studies Institute], signed September
6, 1988;
h) A salary pay slip of Ernesto Rafael Castillo-Páez
for October 1990;
i) A sworn statement, dated February 19, 1998, and
a pay slip dated January 21, 1998, both from sociologist Manuel Piqueras-Luna;
j) A copy of Mr. Cronwell Pierre Castillo-Castillo’s
"category four income tax
withholding statement;"
k) A newspaper clipping titled "Comandante-Bomba. Este es Juan
Carlos Mejía, el hombre más explosivo de la policía" [Commander Bomb. This
is Juan Carlos Mejía, the most explosive man on the police force] in Revista
Sí. No. 214, for the week of March 24 to 31, 1991, Lima, Peru, pp. 78-85;
l) A report by the office of the "Inspector General of Police on the
operation in which Ernesto [Rafael] Castillo-Páez was detained on orders of
the Ministry of the Interior;"
m) A statements signed in the presence of a notary
in the Netherlands on May 25, 1998, by Cronwell Pierre Castillo-Castillo,
Mónica Inés Castillo-Páez and Carmen Rosa Páez-Warton; and
n) The technical report prepared by Dr. Carmen Wurst-Calle
de Landazuri on the "psychological
consequences of disappearances and political asylum" in the case of the next of kin of victims of human rights
violations, and the appendix thereto.
26. In a brief
of May 11, 1998, the State objected to part of the documentary evidence submitted
by the victim’s next of kin. Concerning
the certification of Manuel Piqueras, it stated that "under the austerity policy, and
especially from 1990 onward, the government budget laws prohibited hiring,
making the claim implausible." It also contested the statement made by the
victim’s next of kin concerning the income of a sociologist in the public
sector, asserting that it “is false and we dismiss it outright: not only is it utterly unsubstantiated but also
appears to suggest that the amount in question is a monthly salary, which
is misleading since Mr. Piqueras, being an appointee, would have had a higher
salary than career members of the civil service. The State also challenged the evidentiary value of the autopsy report
on Abel Malpartida-Páez, the victim’s cousin, "because this documentation is immaterial to the issue
under discussion at this reparations and compensation stage."
27. With its
briefs of May 11 and 29, July 20, September 11, October 9 and 26, all in 1998,
the State submitted the following documentary evidence:
a) Law No. 26.479, June 14, 1995, published in "El Peruano" on June 15, 1995, whereby "a general amnesty is granted to military, police and civilian
personnel for various cases;"
b) Law No. 26.492, June 30, 1995, published in "El Peruano" on July 2, 1995, which explains the "interpretation and scope of the
amnesty granted under Law No. 26.479";
c) Judgment of the [Peruvian] Constitutional Tribunal,
dated April 28, 1997, published in "El
Peruano" on May 9, 1997,
which "dismisses the case
alleging the unconstitutionality of several articles of Laws Nos. 26.479 and
26.492;"
d) A copy of the "certification
attesting to the absence of any application for intestate succession,"
issued by the Office of the Registrar of Lima and Callao, on May 6, 1998,
attesting to the fact that the Office of Declaration of Heirs had "no
record of any judgment or request [concerning intestate succession to the
estate of [Ernesto Rafael Castillo-Páez];"
e) Official memorandum No. 00249661-98, certification
of registration from the Chief of the Records Unit of the National Registry
of Identification and Vital Statistics;
f) Official memorandum No. 485-98.R1-1200 of May
18, 1998, reporting an impediment to supplying the 1991 sworn earnings statement
of Mr. Cronwell Pierre Castillo-Castillo;
g) Official memorandum No. 66-58-98-IN-1601-UNICA,
July 1, 1998, signed by the Inspector of Migrations, Héctor Huamán-Maquiña,
Deputy Director General of Migrations and Naturalization, Ministry of the
Interior, concerning the "migration" of Mr. Cronwell Pierre Castillo-Castillo,
Ms. Mónica Inés Castillo-Páez and Ms. Carmen Rosa Páez-Warton;
h) A letter from the rector of the Pontificia Universidad
Católica del Peru, Mr. Hugo Saravia-Swett, to the Minister of the Interior,
dated November 6, 1990;
i) Press clippings on bankruptcy proceedings in Peru;
and
j) A copy of the voter registration booklet of state
agent Mario Cavagnaro-Basile.
EVIDENCE
REQUESTED EX OFICIO
28. On August
20 and 28, 1998, pursuant to a request the Court had made on July 21 (supra 19), the victim’s next of kin forwarded
the following documents as additional helpful evidence:
a) The sworn income tax declaration of Mr. Cronwell
Pierre Castillo-Castillo for the year 1991;
b) A copy of the cover and preface of the book "Cálculo Diferencial" (Differential Calculus) by Michel
Helfgott and Tomás Núñez, containing an acknowledgment of the typing done
by Ms. Carmen Rosa Páez-Warton;
c) A copy of the bankruptcy lawsuit of the APIS S.A.
paper company, filed on August 13, 1998;
d) A copy of the certification issued by Swedish
attorney Eva Ericson, attorney ex oficio
for Mónica Inés Castillo-Páez, attesting to the political asylum proceedings
conducted in Sweden;
e) A copy, in English, of the report from the publication
by "Human Rights Watch/Americas/Helsinki"
of September 1996, vol. 8, No. 14 (D), p. 29;
f) A copy of transcript No. 0002691 of the courses
passed by Mr. Ernesto Rafael Castillo-Páez, issued on February 23, 1998 by
the Pontificia Universidad Católica del Peru;
g) Request of August 19, 1998, to the Pontificia
Universidad Católica del Peru to certify that Mr. Castillo-Páez was enrolled
in the second semester;
h) A copy of the August 10, 1998 request for a certified
transcript of the academic records of Mr. Ernesto Rafael Castillo-Páez;
i) A copy of the sales contract for the house of
the Castillo-Páez family, dated July 18, 1997;
j) A copy of the Dutch identity papers that grant
political refuge to Mónica Inés Castillo-Páez and Cronwell Pierre Castillo-Castillo,
and humanitarian asylum to Carmen Rosa Páez-Warton;
k) A copy of the cancelled payment voucher in the
name of Ernesto Rafael Castillo-Páez for the first semester of the 1990 academic
year at the Pontificia Universidad Católica del Peru;
l) A copy of an uncancelled payment voucher in the
name of Ernesto Rafael Castillo-Páez for the second semester of the 1990 academic
year at the Pontificia Universidad Católica del Peru; and
m) Press clippings titled: "En la Corte Interamericana de Derechos Humanos está el
caso Castillo Páez" (Castillo
Páez case at the Inter-American Court of Human Rights) and "Policías asesinaron a estudiante" (Police killed student. ")
29. In its brief
of September 11, 1998, the State challenged a number of the documents submitted
by the victim’s next of kin as evidence. It pointed out that the costs alleged to represent the earnings lost
by the parents due to the victim’s disappearance "are merely unsubstantiated claims, with no evidence to
prove them." It also indicated that “a typing acknowledgment
in the prologue of a book […] is hardly proof of gainful employment, much
less permanent employment." Moreover, the State objected to the uncancelled
payment voucher from the Pontificia Universidad Católica del Peru, arguing
that “it has no validity inasmuch as it bears no cancellation mark."
30. The Court’s
request notwithstanding (supra 19),
the victim’s next of kin did not supply the following documents requested
as evidence:
a) Certification of the salaries of Mr. Cronwell
Pierre Castillo-Castillo for the years 1990, 1992, 1993, 1994, 1995, 1996,
1997, 1998, or any for Ms. Carmen Warton-Páez;
b) Certification of the academic records of Mr. Ernesto
Rafael Castillo-Páez, issued by the Pontificia Universidad Católica del Peru
for his years as a student; and
c) An official appraisal of the Castillo-Páez family
home.
31. As the case
file shows, thus far none of the documents that the Court requested of the
Commission as evidence to help the former arrive at a more informed judgment
has been received (supra 19).
32. In response
to the Secretariat’s notes of July 21, August 26, September 11 and 21, October
2 and 21, 1998, the State, through submissions dated August 21 and 24, September
9, 11, 29 and 30, October 1, 9, 26 and 29, and November 2 and 11, 1998, sent
the following documents as evidence to help the Court arrive at a more informed
judgment:
a) Law No. 26,926 of February 19, 1998, published
in "El Peruano", February 21, 1998, which "amends several articles of the Penal
Code and introduces Title XIV-A, concerning crimes against humanity;"
b) Decree-Law No. 25,592, dated June 26, 1992, published
in "El Peruano", July 2, 1992, establishing "a penalty of incarceration for public
officials or civil servants who deny any person his freedom by ordering or
executing actions that result in said person’s disappearance;"
c) A copy of Law No. 25,139 dated December 14, 1989,
on the annual Independence Day and Christmas Day bonuses;
d) Supreme Decree No. 061-98-EF, dated July 6, 1998,
published in "El Peruano"
on July 7, 1998, whereby "government
pensioners, officials and civil servants are granted the National Holidays
(Fiestas Patrias");
e) Report No. 0053-98-GAFSP-GG-PJ for an extra month’s
pay, in accordance with Legislative Decree No. 728;
f) A photostat copy of Legislative Decree No. 276,
"Statute of Government
Service and Public Sector Remuneration",
dated March 6, 1984, published in "El
Peruano" on March 24, 1984;
g) A photostat copy of the Initial Implementing Legislation
for Legislative Decree No. 276, Supreme Decree No. 018-85-PCM of February
28, 1985;
h) Law No. 26,894, of December 10, 1997, "1998 Public Sector Budget Law", published in "El Peruano" on December 11, 1997;
i) Emergency Decree No. 107-97, dated December 5,
1997, published in "El
Peruano" on December 6,
1997, whereby "a Christmas
bonus is granted to government pensioners, officials and civil servants, armed
forces and national police personnel;"
j) Law No. 23,506 "Habeas Corpus
and Amparo Law", dated December 7, 1982, published in "El Peruano" on December 8, 1982.
k) Law No. 25,398, "Law supplementing the provisions of Law No. 23,506 on
the matter of Habeas Corpus and
Amparo",
of February 6, 1992, published in "El
Peruano" on February 9,
1992;
l) Law No. 26.846, of July 23, 1997, published in
"El Peruano" on July 27, 1997, which "establishes principles that are the basis for payment
of court fees and that amends the Civil Code and Judiciary Statute";
m) Judiciary Statute of July 23, 1997, published
in "El Peruano" on July 27, 1997;
n) A photostat copy of Article 24 of the Judiciary
Statute;
o) Official memorandum No. 7220-98, dated September
3, 1998, on the official exchange rate between the Peruvian currency and the
United States dollar from January 1990 to June 1998, issued by the head of
the Department of Economic Statistics and Studies of the Office of the Superintendent
of Banking and Insurance;
p) Supreme Decree No. 069-85-PCM, dated July 26,
1985, published in "El
Peruano" on July 27, 1985;
q) A photostat copy of Decree-Law No. 22,482 of March
27, 1979, on the "maternity
and nursing subsidies currently in effect";
r) A photostat copy of Decree-Law No. 18.846, dated
April 28, 1971, on "Job-related
Accidents";
s) Law No. 24.993, of January 19, 1989, published
in "El Peruano" on January 21, 1989, whereby the
"Peruvian Sociologists
Association is created";
t) Life expectancy chart for the 1990-1995 five-year
period, broken down by sex, published in the document titled "Proyecciones de Población del Peru
1995-2025" (Peruvian population
forecasts 1995-2025), official memorandum No. 199-98-INEI/DTDES, dated August
18, 1998, from the head of the National Institute of Statistics and Informatics;
u) Certification issued by the Office of Remunerations
and Benefits of the Office of Personnel of the "Ministry of the Interior" on a sociologist’s salary at that
agency as of September 1998; and
v) Urgent Decree 074-97, dated July 31, 1997, published
in "El Peruano" on August 3, 1997, on the minimum
lifetime remuneration of workers in the private sector in Peru.
33. The Commission
and the victim’s next of kin made no objections to the documents submitted
by the State.
OTHER EVIDENCE
34. On April
29, 1998, the victim’s next of kin reported that given the request made by
the President (supra 11) and "the limited means they had to produce
the evidence, " the victim’s
next of kin would not be deposed before the Court and would instead submit
sworn affidavits and expert psychological reports prepared in Peru and in
the Netherlands. The victim’s next
of kin submitted those documents on June 4, 1998 (supra 15).
35. On July
20, 1998, the State filed two briefs objecting to the sworn affidavits submitted
by the victim’s next of kin and the report prepared by the psychological expert
(supra 18). It argued that submission of the documents in
question was in violation of articles 46 and 47 of the Rules of Procedure,
as it left "our side …
unable to avail itself of remedies that the procedural system affords, such
as interrogation of the professional who prepared the expert report; nor was
there any oath or solemn declaration pledging to tell the truth, and so on…"
The State argued that the expert report was "extemporaneous evidence, as it was not furnished with
the original application"
filed by the next of kin and was "put
together and drafted in Lima, although the subjects of the report [the Castillo-Páez
family] were not in Peru at the time it was issued."
To support its argument, the State supplied evidence in the form of
a record of the Castillo-Páez family’s emigration. It also noted that the appendix to the expert report was unsigned.
The State claimed to have had no knowledge of the sworn affidavits
and expert report until the June 9, 1998 public hearing.
However, it later corrected itself, stating that the affidavits had
been sent to the State by note of June 6, 1998.
The Secretariat clarified that the case file showed that the "sworn
affidavits" made by the
victim’s next of kin had been sent to the State on June 11, 1998.
GENERAL OBSERVATIONS ON EVIDENCE
36. Under Article
43 of the Court’s Rules of Procedure:
Items
of evidence tendered by the parties shall be admissible only if previous notification
thereof is contained in the application and in the reply thereto […] Should
any of the Parties allege force majeure,
serious impediment or the emergence of supervening events as grounds for producing
an item of evidence, the Court may, in that particular instance, admit such
evidence at a time other than those indicated above, provided that the opposing
party is guaranteed the right of defense.
37. It must
be understood that with the justified exceptions indicated above, at the first
opportunity they have to make their case during the reparations stage of the
proceedings the parties are to indicate what evidence they will offer. Under Article 44 of its Rules of Procedure,
the Court has discretionary authority to request from the parties certain
additional evidence that it deems helpful, relevant, or useful. However, this does not mean that the parties
will have another opportunity to expand upon or add to their reparations arguments,
unless the Court so permits. In the
instant case, the procedural opportunity for submission of evidence and arguments
was specified in the President’s orders of January 28 and 29, 1998 (supra
6).
38. The Court
has always held that proceedings before the Inter-American Court have their
own unique characteristics that distinguish them from domestic legal proceedings,
without detriment to the principles of legal certainty and the procedural
equality of the parties (cf. Cayara
Case, Preliminary Objections,
Judgment of February 3, 1993. Series C No. 14, para. 42; Caballero Delgado and Santana Case, Preliminary Objections, Judgment
of January 21, 1994. Series C No. 17,
para. 44, and Loayza Tamayo Case, Reparations,
Judgment of November 27, 1998. Series C No. 42, para. 38. Given
that fact, this Court has always been flexible with the standard of proof
it applies for receiving evidence. International
jurisprudence has recognized the power of the courts to weigh the evidence
freely, but has consistently avoided a rigid rule regarding the amount of
proof necessary to support a judgment (cf. Corfu Channel, Merits, Judgment, I.C.J. Reports 1949, Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America), Merits, Judgment,
I.C.J. Reports 1986, paras. 29-30 and 59-60; Velásquez Rodríguez Case, Judgment of July 29, 1988. Series C No.
4, para. 127; Godínez Cruz Case,
Judgment of January 20, 1989. Series C No. 5, para. 133, and Fairén Garbi and Solís Corrales Case, Judgment
of March 15, 1989. Series C No. 6, para. 130).
39. In the instant
case, the Court accepts the evidentiary value of the documents submitted by
the victim’s next of kin and by the State that were neither contested nor
objected to, and whose authenticity was not challenged; hence, the Court regards
them as valid (Suárez Rosero Case,
Judgment of November 12, 1997. Series C. No. 35, para. 29, and cf. Loayza
Tamayo Case, Reparations, supra 38, para. 53).
40. The State
objected to the offer of testimony by Cronwell Pierre Castillo-Castillo, Carmen
Rosa Páez-Warton and Mónica Inés Castillo-Páez, made in the reparations brief,
arguing that “it is improper and irregular for the interested party to intervene
as a witness.” It also objected to
the declaration signed in the presence of a notary and to the expert report
prepared by Dr. Carmen Wurst-Calle de Landazuri (supra 35). The Court notes that while the victim’s next of kin did not testify
(supra 34), the affidavits they
signed in the presence of a notary had been suggested by the President of
the Court for the sake of procedural economy and speed. This was to ensure that the oral proceedings
in the instant case would be as expeditious as possible, without infringing
the right of the victim’s next of kin, of the Commission and of the State
to offer whatever testimony they believed should be heard directly by the
Court. The Court confirms the President’s decision,
which helped advance the proceedings, and so orders that the affidavits be
added to the body of evidence in the instant case. The Court has discretionary authority to weigh the declarations or
statements submitted to it, both in writing and by other means. As with any tribunal, the Court may use the
rule of “sound criticism” to weigh the evidence properly, thus enabling the
judges to arrive at a decision as to the truth of the alleged acts while taking
into account the object and purpose of the American Convention (cf. Paniagua Morales et al. Case, Judgment
of March 8, 1998. Series C No. 37,
para. 76, and Loayza Tamayo Case, Reparations,
supra 38, para. 57).
41. Peru has
stated that it left in a defenseless position because the affidavits signed
in the presence of a notary were not brought to its attention in advance of
the public hearing. The Court observes
that the document in which those statements appear was received by the Court
on June 4, 1998, only a few days before the hearing in question and that it
was therefore unable to forward them to the State as far in advance as it
might have preferred. The Court further
notes that in observance of the principle of the procedural equality of the
parties and to guarantee the transparency of the proceedings, the Secretariat
notifies each party of every communication the other party sends, so that
the former has an opportunity to refute or comment on what the latter has
stated. There are no specific rules establishing a deadline
or timeframe within which the Court must act. However, the understanding is that it must do
so in such a way as to enable the other party to properly exercise its right
of self-defense within the context of the proceedings. In the instant case, the State had an opportunity
to exercise that right and did so, since it explained its position on the
matter in briefs dated July 20 and September 9, 1998. The Court forwarded those briefs to the victim’s
next of kin and to the Commission, following the guidelines described herein,
and in this Judgment will weigh the arguments of all parties concerning the
statements made in the presence of the notary and the briefs filed by the
State according to the principles set forth herein (supra 40).
42. The State
objected to the "sworn
affidavits" and other documents,
such as the powers of attorney granted by the victim’s next of kin, by alluding
to a number of formalities, especially those under its domestic legal system.
This argument is unacceptable in an International Court of Human Rights
whose proceedings are not bound by the formalities present in domestic legal
systems. This is the position this Court has consistently
taken in its case law, wherein it has upheld flexibility on the matter of
receiving evidence (Gangaram Panday
Case, Preliminary Objections, Judgment of December 4, 1991. Series C No.
12, para. 18; Cayara Case, Preliminary
Objections, supra 38, para.
42; Caballero Delgado and Santana Case,
Preliminary Objections, supra
38, para. 44 and Loayza Tamayo Case,
Reparations, supra 38, para.
38). The Court has already declared
that in this area, international law does not require any particular formalities
to make an act valid; under the law of nations, even oral statements are valid
(cf. Legal Status of Eastern Greenland,
Judgment, 1933, P.C.I.J., Series A/B, No. 53, p. 71; Garrido and Baigorria Case, Reparations
(Art. 63(1) American Convention on Human Rights),
Judgment of August 27, 1998. Series C No. 39, para. 55).
43. As for the
objection to the expert report prepared by Dr. Carmen Wurst-Calle de Landazuri
(supra 35), the Court considers
that the document was not filed extemporaneously since it is related to the
offer of evidence made in the reparations brief submitted by the victim’s
next of kin (supra 7). The Court further notes that the State’s objection to the effect
that the report was prepared in Peru and that the victim’s next of kin were
not present, is inadmissible since the document in question is not an expert
analysis done of those individuals in particular, but rather a study on the
general psychological consequences of disappearances and political asylum,
as its name and content indicate.
44. As for the
State’s objection to the fact that the appendix to the expert report was not
signed, the Court’s consistent practice has been that an appendix that is
a supplement to the main body of a document does not have to be signed.
45. Therefore,
the Court orders that the sworn statements signed in the presence of a notary
by the parents of the victim and his sister, and the expert report prepared
by Dr. Carmen Wurst-Calle de Landazuri and its appendix are to be added to
the body of evidence.
V
46. In operative
paragraph 5 of the Judgment of November 3, 1997, the Court decided that the
State of Peru "is obliged
to repair the consequences of those violations [of articles 7 (the right to
personal liberty), 5 (the right to humane treatment), 4 (the right to life)
and 25 (the right to judicial protection), all in relation to Article 1(1)
of the American Convention] and compensate the victim’s next of kin and reimburse
them for any expenses they may have incurred in their representations to the
Peruvian authorities in connection with this case, for which purpose the proceeding
remains open."
47. The applicable
law in the matter of reparations is Article 63(1) of the American Convention,
which states that:
If
the Court finds that there has been a violation of a right or freedom protected
by this Convention, the Court shall rule that the injured party be ensured
the enjoyment of his right or freedom that was violated.
It shall also rule, if appropriate, that the consequences of the measure
or situation that constituted the breach of such right or freedom be remedied
and that fair compensation be paid to the injured party (emphasis added).
48. Reparations
is a generic term that covers all of the various ways a State can redress
the international responsibility it has incurred (restitutio in integrum, indemnization, satisfaction, assurances of
guarantees that the violations will not be repeated, and others).
49. The obligation
to make reparation established by international courts is governed, as has
been universally accepted, by international law in all its aspects: scope, nature, modality and determination of
beneficiaries, none of which the respondent State may alter by invoking its
domestic law (Garrido and Baigorria
Case, Reparations, supra 42,
para. 42).
50. As the Court
has indicated (Aloeboetoe et al. Case,
Reparations (Art. 63(1) American Convention on Human Rights), Judgment
of September 10, 1993. Series C No. 15, para. 43), Article 63(1) of the American
Convention codifies a rule of customary law which, moreover, is one of the
fundamental principles of current international law and a responsibility of
the States (cf. Factory at Chorzów,
Jurisdiction, Judgment No. 8, 1927, P.C.I.J., Series A, No. 9, p. 21 and
Factory at Chorzów, Merits, Judgment
No. 13, 1928, P.C.I.J., Series A, no. 17, p. 29; Reparations for Injuries
Suffered in the Service of the United Nations, Advisory Opinion, I.C.J.
Reports 1949, p. 184). This is the sense in which this Court has applied
that provision (in, inter alia,
the El Amparo Case, Reparations (Art.
63(1) American Convention on Human Rights), Judgment of September 14,
1996. Series C No. 28, para. 14; Neira
Alegría et al. Case, Reparations (Art. 63(1) American Convention on Human
Rights), Judgment of September 19, 1996. Series C No. 29, para. 36; Caballero Delgado and Santana Case, Reparations (Art. 63(1) American Convention
on Human Rights), Judgment of January 29, 1997. Series C No. 31, para.
15; Garrido and Baigorria Case, Reparations,
supra 42, para. 40, and Loayza
Tamayo Case, Reparations, supra 38, para. 84). When a wrongful act occurs that is imputable
to a State, the latter incurs international responsibility for violation of
an international rule, and thus incurs a duty to make reparation.
51. The reparations
established in this Judgment must be proportionate to the violations of articles
7, 5, 4 and 25, in relation to Article 1(1) of the American Convention, violations
whose occurrence was established in the Judgment of November 3, 1997.
52. In cases
involving violation of the right to life, such as the instant case, given
the nature of that which was affected reparation is generally in the form
of a pecuniary compensation, according to international case law, and assurances
of guarantees that the wrongful act will not be repeated (Garrido and Baigorria Case, Reparations, supra 42, para. 41).
53. As the name
implies, reparations are intended to wipe out the effects of the violation.
Their quality and amount will depend upon the damage caused at both
the material and moral levels. Reparation is not to imply either enrichment
or impoverishment for the victim or his heirs (cf. Garrido and Baigorria Case, Reparations, supra 42, para. 43; the Delagoa
Bay Case, LA FONTAINE, Pasicrisie internationale, Berne, 1902, p. 406).
VI
54. The Court will now determine the person or persons
who, in the instant case, constitute the "injured party"
to whom Article 63(1) of the American Convention refers. Inasmuch as Ernesto Rafael Castillo-Páez was
the victim of most of the violations of the American Convention established
by the Court in its Judgment of November 3, 1997, the Court will have to ascertain
which of the reparations ordered in his favor can convey to his next of kin
by succession and to which of those next of kin.
In the case of reparations for violation of Article 25 in relation
to Article 1(1) of the American Convention, the Court must determine which
of the victim’s next of kin are entitled in their own right to reparations,
as victims of the breach of Article 25 established in operative paragraph
4 of the Judgment on the merits.
55. The Commission
and the victim’s next of kin named the following members of the victim’s family
as the beneficiaries or successors in title of the reparations: the victim’s
father, Mr. Cronwell Pierre Castillo-Castillo; his mother, Ms. Carmen Rosa
Páez-Warton; and his sister, Ms. Mónica Inés Castillo-Páez. During the reparations hearing, the victim’s
next of kin asserted that the kinship of the sister of victim Ernesto Rafael
Castillo-Páez had been proven, as had the injury and consequences she suffered
as a result of her brother’s disappearance.
56. Concerning
this matter, Article 23 of the Court’s Rules of Procedure provide that:
At
the reparations stage, the representatives of the victims or of their next
of kin may independently submit their own arguments and evidence.
This provision gives the injured party locus standi, i.e., the right to appear
directly before the Court during the reparations stage and safeguard his own
interests during the proceedings.
57. Peru argued
that for reparations purposes, heirs "must
prove their claim of inheritance in accordance with the provisions of Peruvian
law." On May 11, 1998, the State supplied the "certification attesting to the absence
of any application for intestate succession" which, it asserted, showed that the procedures required
under Peruvian law to allow intestate succession had not been carried out.
58. During the
public hearing (supra 17), the victim’s
next of kin asserted that given the State’s argument that the succession procedures
required under Peruvian law had not been followed, Peru was demanding the
observance of the formalities of its own domestic legal system, whereas "in
the Velásquez Rodríguez Case and subsequent
judgments, the Court had ruled that one need only prove kinship"; this had already been done with
submission of the birth certificates and marriage certificate of the parents
of the victim.
59. The Court
has held, and now reiterates, that the right to compensation for damages suffered
by victims up to the time of their death conveys to their heirs by succession.
On the other hand, the victim’s death may entitle his next of kin or
injured third parties to seek damages in their own right (cf. Aloeboetoe
et al. Case, Reparations, supra
50, para. 54; El Amparo Case, Reparations,
supra 50, paras. 43 and 46; Neira Alegría et al. Case, Reparations,
supra 50, paras. 63 and 65; Caballero and Santana Case, Reparations,
supra 50, paras. 60 and 61 and Garrido and Baigorria Case, Reparations,
supra 42, para. 50). In operative paragraph four of the Judgment
of November 3, 1997, this Court recognized Ernesto Rafael Castillo-Páez’ next
of kin as victims.
60. Therefore,
this Court considers the beneficiaries to be Mr. Cronwell Pierre Castillo-Castillo,
Ms. Carmen Rosa Warton-Páez, and Ms. Mónica Inés Castillo-Páez.
REPRESENTATION
61. On February
25, 1998, the parents of Ernesto Rafael Castillo-Páez submitted a power of
attorney granted on February 19, 1998, to the Center for Justice and International
Law (CEJIL) and the Instituto de Defensa Legal (IDL). In its brief of observations of May 11, 1998,
the State argued that that power of attorney was invalid, since it was a letter
that had been neither "certified
or legalized by an authority of the Kingdom of the Netherlands, where it was
apparently draft[ed."] The State further argued that inasmuch as the
members of the Castillo-Páez family were Peruvian citizens, they were "obliged to comply with the requirements
of Peruvian law when conferring their representation by way of a power of
attorney." Peru also stated that if the people in question
were living in the Netherlands, they should have used the "identification documents that the
Netherlands provides to aliens living within its territory."
Finally, it pointed out that Ms. Mónica Inés Castillo-Páez had not
signed the power of attorney to be represented in this stage of the proceeding,
nor was representation given to "Human
Rights Watch/Americas"
(HRW).
62. On June
4, 1998, the victim’s next of kin submitted another power of attorney, this
one made by the parents and sister of the victim on May 22, 1998, and signed
in the presence of a notary public in the Netherlands.
63. On July
20, 1998, the State objected to that power of attorney using the same arguments
that it had used against the power of attorney of February 19, 1998.
The State’s contention was that the representatives were not authorized
to make representations on behalf of the next of kin of Ernest Rafael Castillo-Páez
at the time the reparations petition was made through the brief of February
25, 1998, since the "confirmation" "that the power of attorney of May 22, 1998 was meant to
be did not validate the February power of attorney or have any effect at all."
It argued further that in that "confirmation" Mónica Inés Castillo-Páez appeared
“as if she had been a party to the first power of attorney, which is flatly
inconsistent and lacking in legal efficacy. "
64. In this
case, the Court must weigh the two powers of attorney given by the victim’s
next of kin at different times: the first, given by the parents of the victim
on February 19, 1998, in Utrecht, the Netherlands, to Viviana Krsticevic of
the Center for Justice and International Law (CEJIL) and to Ronald Gamarra
of the Instituto de Defensa Legal (IDL); and the second, given on May 22,
1998 in the Netherlands, whereby the parents and the sister of the victim
as well "confirm" the power of broad representation vis-à-vis the Court given to the following institutions: the Center
for Justice and International Law (CEJIL), the Instituto de Defensa Legal
(IDL) and Human Rights Watch/Americas (HRW).
65. The practice
of this Court with regard to the rules of representation has always been flexible
vis-à-vis States, the Inter-American Commission and, during the reparations
stage, the victims. A clear manifestation
of the will of the victim’s next of kin in the powers of attorney submitted
suffices to constitute sufficient evidentiary material in this international
jurisdiction. Thus, regardless of what
it is called -power of attorney, letter of attorney, authorization, or any
other term-, any document wherein the persons granting the power of attorney
express their desire to be represented is sufficient to be legitimate for
this Court, which need not conform to the formalities required by domestic
laws. Those formalities are not exigible
in an international court of human rights (supra 42).
66. The latitude
in accepting the representation instruments has, however, certain limits dictated
by the use to which the representation will be put. First, the instruments must clearly identify
the party bestowing the power of attorney and reflect a lucid and unambiguous
manifestation of will. It must also
name the person to whom the power of attorney is being given and, finally,
indicate in very specific terms the purpose of the representation. In the opinion of this Court, instruments that
meet these requirements are valid and have full effect once submitted to the
Court.
67. This Court
considers that the powers granted on February 19 and May 22, 1998, are valid.
The first became effective when the Center for Justice and International
Law (CEJIL) and the Instituto de Defense Legal (IDL) represented the victim’s
parents and filed the reparations brief. The
second power of attorney also became valid inasmuch as the parents ratified
everything done under the first power of attorney and because another member
of the victim’s family, his sister, Mónica Inés Castillo-Páez, was named as
one of the parties granting power of attorney.
In this second power of attorney, the three parties granting it named
the Center for Justice and International Law (CEJIL), the Instituto de Defensa
Legal (IDL), and "Human Rights Watch/Americas" (HRW) as their representatives.
Consequently, Human Rights Watch/Americas has been co-representing
the victim’s next of kin since May 22, 1998.
VII
68. To determine the reparations called for in the
instant case, the Court will rely primarily upon the facts established in
the Judgment of November 3, 1997. During
this stage of the proceeding, the parties introduced new evidence to demonstrate
the existence of certain additional or supervening facts relevant to a determination
of reparations. The Court has examined
the arguments of the parties and the corresponding evidence and considers
the following facts proven:
A) Concerning
Ernesto Rafael Castillo-Páez:
a) He was 22 years old at the time of his detention
and subsequent disappearance
(cf. the birth certificate of Ernesto Rafael
Castillo-Páez);
b) At the time of his disappearance, he was living
with his parents and sister
(Cf. birth certificate and voter registration
booklet of Mr. Ernesto Rafael Castillio-Páez; marriage certificate of Cronwell
Pierre Castillo-Castillo and Carmen Rosa Páez-Warton; birth certificate of
Ms. Mónica Inés Castillo-Páez; testimony given before the Court by Mr. Cronwell
Pierre Castillo-Castillo during in the merits stage of the proceedings; statements
signed in the presence of a notary in the Netherlands, May 25, 1998, by Cronwell
Pierre Castillo-Castillo, Mónica Inés Castillo-Páez and Carmen Rosa Páez-Warton;
the Castillo Páez Case, Judgment of November 3, 1997);
c) He was a sociology student at the Pontificia Universidad
Católica del Peru, between the first semester of 1985 and the first semester
of 1990
(Cf. letter from the rector of the Pontificia
Universidad Católica del Peru, Mr. Hugo Saravia Swett, to the Minister of
the Interior, dated November 6, 1990; copy of transcript No. 0002691 listing
the courses passed by Ernesto Rafael Castillo-Páez, issued on February 23,
1998 by the Pontificia Universidad Católica del Peru; a copy of the cancelled
payment voucher for the first semester of 1990 at the Pontificia Universidad
Católica del Peru; a copy of an uncancelled payment voucher for the second
semester of 1990 at the Pontificia Universidad Católica del Peru; press clippings
titled: "En la Corte Interamericana de Derechos Humanos
está el case Castillo-Páez"
and "Policías asesinaron a estudiante" (Police killed student); and
d) At the time of his detention, he was a mathematics
teacher at the "Juan XXIII"
Institute of Theological Studies, teaching twelve hours of classes per month,
and drew a monthly salary of 13,200.000 intis, which at that time was the
equivalent of approximately US$30.00 (thirty United States dollars).
(Cf. teaching contract of Ernesto Rafael Castillo-Páez
with the "Juan XXIII"
Institute of Theological Studies, signed on September 6, 1988, and salary
pay slip of Ernesto Rafael Castillo-Páez for October 1990);
B) Concerning the victim’s next of kin:
a) The victim’s known next of kin are Cronwell Pierre
Castillo-Castillo, father, Carmen Rosa Páez-Warton, mother, and Mónica Inés
Castillo-Páez, sister
(cf. birth certificate and voter registration
booklet of Ernesto Rafael Castillo-Páez; marriage certificate of Cronwell
Pierre Castillo-Castillo and Carmen Rosa Páez-Warton; birth certificate of
Ms. Mónica Inés Castillo-Páez);
b) Said next of kin suffered material and moral damages
as a consequence of the disappearance of Ernesto Rafael Castillo-Páez
(cf. sworn income tax declaration of Mr. Cronwell
Pierre Castillo-Castillo for 1991; a copy of a "category four income tax withholding statement" for Mr. Cronwell Pierre Castillo-Castillo;
a copy of the cover and preface of the book "Cálculo Diferencial" [Differential Calculus] by Michel Helfgott
and Tomás Núñez, which contains an acknowledgment of the typing services of
Ms. Carmen Rosa Páez-Warton; a copy of the sales contract for the Castillo-Páez
family home, July 18, 1997; a copy of the certificate issued by Swedish attorney
Eva Ericson, attorney ex oficio for Mónica Inés Castillo-Páez, which certifies
the political asylum proceedings conducted in Sweden; a copy of the English-language
report from the publication of "Human Rights Watch/Americas/Helsinki" for September 1996, volume 8, No. 14 (D),
p. 29; a copy of the identification papers that grant political refuge to
Cronwell Pierre Castillo-Castillo and Mónica Inés Castillo-Páez and "humanitarian asylum" to Carmen Rosa Páez in the Netherlands; official
memorandum No. 66-58-98-IN-UNICA, July 1, 1998, signed by the Inspector of
Migrations, Héctor Huamán-Maquiña, Deputy Director General of Migrations and
Naturalization of the Ministry of the Interior, concerning the emigration
of Mr. Cronwell Pierre Castillo-Castillo, Ms. Carmen Rosa Páez-Warton and
Ms. Mónica Inés Castillo-Páez; statements signed in the presence of a notary
in the Netherlands, May 25, 1998, by Cronwell Pierre Castillo-Castillo, Mónica
Inés Castillo-Páez and Carmen Rosa Páez-Warton; expert report of Dr. Carmen
Wurst-Calle de Landazuri on the "psychological
consequences of disappearances and political asylum"
relating to the next of kin of victims of human rights violations, and its
appendix);
c) The parents of Ernesto Rafael Castillo-Páez began
their search in a number of police stations and took the appropriate judicial
steps, in accordance with domestic law, to locate him; they then turned to
the inter-American system. All this
necessitated various expenditures
(cf. testimony of Cronwell Pierre Castillo-Castillo,
Judge Minaya-Calle and Augusto Zúñiga-Paz, given during the proceedings on
the merits; statements signed in the presence of a notary in the Netherlands,
May 25, 1998, by Cronwell Pierre Castillo-Castillo, Mónica Inés Castillo-Páez
and Carmen Rosa Páez-Warton); and
d) At the present time the three named family members
of Ernesto Rafael Castillo-Páez are living off of funds provided to them by
the Dutch social security system.
(cf. copy of the identification papers granting
political refuge to Cronwell (Pierre Castillo-Castillo and Mónica Inés Castillo-Páez,
and humanitarian asylum to Carmen Rosa Páez-Warton in the Netherlands; official
memorandum No. 66-58-98-IN-UNICA, dated July 1, 1998, signed by the Inspector
of Migrations, Héctor Huamán-Maquiña, Deputy Director General of Migrations
and Naturalization of the Ministry of the Interior, concerning the “emigration”
of Mr. Cronwell Pierre Castillo-Castillo, Ms. Carmen Rosa Páez-Warton and
Ms. Mónica Inés Castillo-Páez; a copy of the report from the publication of
"Human Rights Watch/Americas/Helsinki", September 1996, volume 8, No. 14 (D), p.
29); and
C) Concerning the facts:
a) In 1990, the life expectancy of a 22-year old
male in Peru was 71
(cf. life expectancy chart for the 1990-1995
five-year period, by sex, published in the document "Proyecciones de Población del Peru 1995-2025"
[Peruvian population forecasts 1990-2025], official memorandum No. 199-98-INEI/DTDES,
dated August 18, 1998, from the head of the National Institute of Statistics
and Informatics);
b) The minimum wage of workers in Peru’s private
sector as of September 1, 1997, was 345 soles
(cf. Emergency Decree 074-97, July 31, 1997,
published in "El Peruano"
on August 3, 1997, on the minimum wage of private workers in Peru);
c) The exchange rate of Peruvian currency to the
United States dollar as of September 1, 1997, was S/2.65
(cf. official memorandum No. 7220-98, of September
3, 1998, on the official exchange rate of Peru’s currency to the United States
dollar from January of 1990 to June of 1998, the document issued by the head
of the Department of Economic Statistics and Studies of the Office of Superintendent
of Banking and Insurance);
d) In Peru, a number of laws govern work bonuses
within the public and private sectors; of these, the one most favorable to
the worker is Law No. 25.139, of December 4, 1989, which grants two annual
bonuses, each one equal to "the
basic wage a worker is receiving at the time the benefit is granted"
(cf. Law No. 25,139 of December 14, 1989, on
annual National Holidays and Christmas bonuses; Supreme Decree No. 061-98-EF
of July 6, 1998, published in “El Peruano” on July 7, 1998, which "grants government pensioners, officials and
civil servants an National Holiday";
Reform No. 0053-98-GAF-SP-GG-PJ on payment of a bonus in accordance with Legislative
Decree No. 728; a photostat copy of Legislative Decree 276 – Statute on the
Civil Service and Remuneration in the National Public Sector, of March 6,
1984, published in "El Peruano"
on March 24, 1984; a photostat copy of the initial implementing legislation
for Legislative Decree No. 276, supreme Decree No. 018-85-PCM, February 28,
1985; Law No. 26.894, "1998 Public Sector Budget Law", of December 10, 1997, published in "El Peruano"
on December 11, 1997; Urgent Decree No. 107-97 of December 5, 1997, published
in “El Peruano” on December 6, 1997, which "grants
government pensioners, officials, civil servants, and armed forces and national
police personnel a Christmas bonus";
Supreme Decree No. 069-85-PCM of July 26, 1985, published in “El Peruano”
on July 27, 1985; a photostat copy of Decree-Law No. 22.482, of March 27,
1979; on the “maternity and nursing subsidies currently in effect”; a photostat
copy of Decree-Law No. 18.846 of April 28, 1971, on “Job-related Accidents”);
e) Amnesty Law No. 26.479 and Law No. 26.492, which
interprets the Amnesty Law, are currently in force in Peru
(cf. Law No. 26.479 of June 14, 1995, published in "El Peruano" on June 15, 1995, which "grants a general amnesty to military, police and civilian personnel for
various cases"; Law No. 26,492 of June 30, 1995, published
in "El Peruano" on July 2, 1995, which "specifies the interpretation and scope of the amnesty granted by Law No.
26,479"; Judgment of the [Peruvian] Constitutional
Court of April 28, 1997, published in "El Peruano" on May 9, 1997,
which "dismisses the suit challenging the constitutionality
of various articles of Laws Nos. 26.479 and 26.492);
f) Also in force in Peru is Law No. 26.926, which
typifies crimes against humanity, among them genocide, forced disappearance
and torture
(cf. Law No. 26,926 of February 19, 1998, published
in "El Peruano," February 21, 1998, which "amends several articles of the Penal
Code and introduces Title XIV-A, concerning crimes against humanity", and Decree-Law No. 25,592, dated
June 26, 1992, published in "El
Peruano" on July 2, 1992,
establishing "a penalty
of incarceration for public officials or civil servants who deny any person
his freedom by ordering or executing actions that result in said person’s
disappearance").
VII
69.
While the rule of restitutio
in integrum is one form of reparation for an international wrongful act
(cf. Factory at Chorzów, Merits,
supra 50, p. 48), it is not the
only form of reparation. There may
be cases in which restitutio in integrum is impossible, insufficient,
and inadequate, as in the instant case. This
necessitates recourse to other forms of reparation for the victim’s next of
kin. Compensation is, first of all,
for the damages suffered by victim and includes, as this case has held previously,
both material and moral damages (Garrido and Baigorria Case, Reparations, supra 42, para. 41); (cf.
chemin de Fer de la baie de Delagoa,
sentence, 29, mars 1900, Martens, Nouveau Recueil Général de Traités,
2eme série, t. 30, p. 402; Case of Cape
Horn Pigeon, November 29, 1902, Papers relating to the Foreign Relations
of the United States, Washington, D.C.: Government
Printing Office, 1902, Appendix I, p. 470; Traité of Neuilly, Article 179, Annex, Paragraph
4 (Interprétation), Arrêt No. 3, 1924, P.C.I.J., series A, No. 3, p. 9;
Maal Case, 1 June 1903, Reports
of International Arbitral Awards, vol. X, pp. 732 and 733, and Campbell Case, 10 June 1931, Reports of
International Arbitral Awards, vol. II, p. 1158).
70. The consequences
of the violation of Article 25 of the American Convention were detrimental
to Ernesto Rafael Castillo-Páez’ next of kin because the remedy of habeas corpus was ineffective in securing
his release and perhaps saving his life (cf. Castillo Páez Case, Judgment of November 3, 1997. Series C No. 34,
paras. 81-84). Accordingly, the Court
considers that effective investigation and punishment of those responsible
for the events that prompted the instant Case (infra
107), as ordered by this Court in its Judgment of November 3, 1997 (infra 103), is one reparation measure that
those next of kin are due.
IX
71. The victim’s
next of kin listed three items under the generic heading of "material damages":
a) The lost earnings include the lost earnings
of Ernesto Rafael Castillo-Páez for three years as a mathematics professor
and for 42 years (from age 25 to 67) as a sociologist, less 25 percent for
personal expenditures. This gives a
total of US$687,132.00 (six hundred eighty-seven thousand, one hundred thirty-two
United States dollars);
b) The indirect or consequential damages include representations before the Peruvian
authorities, medical expenses and expenses incurred for Mónica Inés Castillo-Páez’
exile in the Netherlands and in Sweden, for a total of US$56,300.00 (fifty-six
thousand three hundred United States dollars); and
c) The nuclear family’s patrimonial damages
occasioned by the victim’s disappearance include various lost assets (a decline
in family income, bankruptcy of the family business, the sale of the home
occupied by the family at a very reduced cost, and family expenses occasioned
by their current residence), for a total of US$200,000.00 (two hundred thousand
United States dollars).
The "material
damages" being claimed,
therefore, total US$943,432.00 (nine hundred forty-three thousand, four hundred
thirty-two United States dollars).
72. The Commission
argued that when computing the “lost earnings” and "indirect or consequential damages,"
it was imperative that they be "updated
for monetary depreciation or devaluation and interest accruing from the date
on which the victim’s unlawful detention and disappearance occurred…."
73. For its
part, the State objected to the assertions and figures presented by the Commission
and Ernesto Rafael Castillo-Páez’ next of kin, arguing, inter alia, the following:
a) Concerning lost earnings: Ernesto Rafael
Castillo-Páez’ academic performance was so poor that there was no guarantee
that he would promptly and satisfactorily complete his sociology studies;
the calculation made of his future earnings from the practice of his profession was, therefore, baseless;
b) Concerning the indirect or consequential damages:
the figure given for the expenses incurred by the victim’s next of kin to
investigate the facts was inflated, unsupported by evidence, and included
expenses that were negligible (court costs); it argued that indirect or consequential
damages should be limited to expenses incurred in proceedings before Peruvian
authorities; and
c) Concerning the nuclear family’s patrimonial
damages: the alleged income of the victim’s next of kin was not properly
substantiated; no causal nexus was established between the alleged human rights
violations and the loss or sale of the family assets; the family’s move to
another country was its own decision, but not because of persecution by Peruvian
authorities.
74. Concerning
the suggestion to the Court that a lump-sum compensation be awarded on the
premise that an improvement in the victim’s future income was a “probable
certainty”, the Court considers that compensation must be calculated on the
basis of a definite injury that is sufficiently substantiated to find that
the injury likely occurred. Given the
circumstances of the instant case, the evidence is not sufficient to prove
the loss of opportunity in the terms requested.
75. An equitable
point of departure to use to compute the lost earnings is the minimum monthly
wage in Peru at the present time. Under
Urgent Decree No. 074-97, of July 31, 1997, published in “El Peruano” on August
3, 1997, the minimum monthly wage is S./345,00, which must then be figured
in dollars at an average exchange rate of between S./2.652 and 2.659 to the
dollar, according to the exchange table applied (supra 68.C.c). The computation was done using 12-month annual salaries, plus an
additional bonus of two months’ salary per year, in keeping with the Peruvian
law (supra 68.C.d). most advantageous
to workers (cf. Velásquez Rodríguez
Case, Compensatory Damages (Art. 63(1) American Convention on Human Rights),
Judgment of July 21, 1989. Series C No. 7, para. 46, and Godínez Cruz Case, Compensatory Damages (Art. 63(1) American Convention
on Human Rights), Judgment of July 21, 1989. Series C No. 8, para. 44).
This figure was then multiplied by 49 years, the number of years between
the victim’s age at the time of his disappearance and the end of the life
expectancy of a Peruvian male in the 1990-1995 period, which is 71 years (supra
68.C.a).. From this amount, 25 percent
must be deducted for personal expenses, and then the current interest added.
Consequently, the amount at the present value as of the date of this
judgment for this item is US$35,021.80 (thirty-five thousand and twenty-one
United States dollars and eighty cents).
76. Compensation
of the “nuclear family’s patrimonial damages” has also been requested because
of the material damages that its members sustained by virtue of the consequences
of Ernest Rafael Castillo-Páez’ disappearances which were detrimental to the
family group’s employment or business activities. The State did not directly oppose this item, but it objected to the
figure (supra 14 and 22). The Court recognizes the difficulty of determining
the damages caused under this category and the amount they represent, especially
inasmuch as it is impossible to establish the causal nexus between the fact
and the consequences alleged to have followed from it and to which this part
of the claim refers: the bankruptcy of the business of the victim’s father,
sale of the family home at less than its market value, and other aspects mentioned
(supra 71.c).
Elsewhere the Court has held that “To compel the perpetrator of an
illicit act to erase all the consequences produced by his action is completely
impossible, since that action caused effects that multiplied to a degree that
cannot be measured” (Aloeboetoe et al. Case, Reparations, supra 50, para. 48). However, the Court considers that in practice,
a general patrimonial injury was done to the family group by the disappearance
of one of its members, for reasons imputable to the State. The disappearance caused economic and other
types of problems for the family that must be redressed based on principles
of equity. The Court sets the reparations
for this category of damages at US$25,000.00 (twenty-five thousand United
States dollars).
77. Also being
sought is reimbursement of the expenses incurred by the next of kin of Ernesto
Rafael Castillo-Páez in their search for him. These expenses included outlays for travel, communications, administrative
inquiries, visits to jails, hospitals and public institutions, for medical
treatment to recover from the disappearance of a son and brother, and for
the family’s move to the Netherlands, where its members have been granted
humanitarian refuge and political asylum (supra 71.b). However, the evidence
submitted to support the figure is not neither sufficient nor conclusive.
Therefore, based on principles of equity, the Court considers the sum
of US$25,000.00 (twenty-five thousand United States dollars) to be appropriate
compensation for the items mentioned under this category.
X
78. In their
brief on reparations, the victim’s next of kin requested that the compensation
for moral damages be fixed at a total of US$500,000.00 (five hundred thousand
United States dollars) “to be divided equitably among the family: parents
and sister of the victim”. They also
requested the creation of a fund of US$5,000.00 (five thousand United States
dollars) for needed rehabilitation, to cover medical and psychological care
for the next of kin.
79. The Commission
asserted that the moral damage inflicted was, first of all, the pain and suffering
suffering that Ernesto Rafael Castillo-Páez’ next of kin experienced with
his disappearance. One immediate consequence
of his disappearance, the Commission argued, was that the victim’s sister
received threats and had to “abruptly leave her country.” The Commission maintained that the second moral
damage inflicted was the suffering caused to the victim by the violent circumstances
under which the events occurred. The victim’s next of kin as well claimed the moral damage inflicted
upon the victim, asserting that “Ernesto Rafael Castillo-Páez suffered directly
by the aggression and abuse to which he was subjected during the course of
his detention, as the Court established.”
80. The Commission
requested that compensation for moral damages be set at a total of US$125,000.00
(one hundred twenty-five thousand United States dollars) “to be divided equitably
among the three members of the victim’s family”; in support of this argument,
it cited the precedents established by the Court in the Velásquez Rodríquez, Godínez Cruz and Aloeboetoe et al. cases.
81. The victim’s
next of kin supplied three statements signed in the presence of a notary (supra
15), wherein they narrated the various suffering that the disappearance of
Ernesto Rafael Castillo-Páez had caused them.
Those statements underscored the pain over the loss of the victim,
Ms. Mónica Inés Castillo-Páez’ move to Sweden and then to the Netherlands,
the break-up of the family nucleus and its eventual reunion in the Netherlands
after almost eight years of separation. In
support of these damages, they submitted the Expert Report that explained
the general psychological consequences that forced disappearance and asylum
have.
82. The State
stated that it was not in agreement with any of the sums requested by the
Commission and by the victim’s next of kin and called the Court’s attention
to the “disproportionate claims submitted by the next of kin, who are seeking
US$500,000.00 (five hundred thousand United States dollars) in moral damages,
US$5,000.00 (five thousand United States dollars) for the medical and psychological
rehabilitation of family members, and US$100,000.00 (one hundred thousand
United States dollars) for violation of Ernesto Rafael Castillo-Páez’ right
to life.
83. The Court
is of the opinion that while case law may establish precedents in this regard,
it cannot be invoked as an absolute criterion, as each case must be examined
individually (Neira Alegría et al. Case,
Reparations, supra 50, para.
55).
84.
As for moral damages, the Court has previously held that there are
numerous cases in which other international tribunals have decided that a
judgment of condemnation constitutes per
se adequate reparation for moral damages, as demonstrated by the case
law of, among others, the European Court of Human Rights (Cour
eur. D. H. arrêt Kruslin 24 du avril 1990, série A no. 176-A, p. 25, párr.
39; Cour eur. D. H., arrêt McCallun
du 30 août 1990, série A no. 183, p. 17, párr. 37; Cour eur. D. H., arrêt Wassink du 27 septembre 1990, série A no. 185-A,
p. 15, párr. 41; Cour eur. D. H.,
arrêt Koendjbiharie du 25 octobre 1990, série A no. 185-B, p. 42, párr.
34; Cour eur. D. H., arrêt Darby du
23 octobre 1990, série A no. 187, p. 14, párr. 40; Cour eur. D. H., arrêt Lala c. Pays-Bas du 22 Septembre 1994, série A
No. 297-A, p. 15, párr. 38; Cour
eur. D. H., arrêt Pelladoah c. Pays-Bas du 22 septembre 1994, série A no.
297-B, p. 26, párr. 44; Cour eur.
D. H., arrêt Kroon et autres c. Pays-Bas du 27 octobre 1994, série A no. 297-C,
p. 59, párr. 45; Cour eur. D.H.,
arrêt Boner c. Royaume-Uni du 28 octobre 1994, série A no. 300-B, p. 76,
párr. 46; Cour eur. D. H. arrêt Ruiz Torija c. Espagne
du 9 décembre 1994, série A no. 303-A, p. 13, párr. 33). However, it is the view of this Court that a
condemnatory judgment does not suffice when the right to life is concerned,
and the reparation for the moral suffering caused to the victim and to the
family must take an alternative form, such as pecuniary compensation. Such cases require this category of reparation.
The pecuniary compensation should be determined on the basis of equity
and by a prudent assessment of the moral damages, which cannot be measured
by any absolute rule (cf. El Amparo Case, Reparations, supra 50, para. 35). This same principle was established by the European
Court, which pointed out that moral damages do not lend themselves to precise
evaluation (Cour eur. D. H., arrêt Wiesinger
du 30 octobre 1991, série A no. 213, p. 29, para. 85; Cour eur. D. H., arrêt Kenmache c. France
(article 50) du 2 novembre 1993, série A no. 270-B, p. 16, para. 11; Cour eur. D. H., arrêt Mats Jacobsson du
28 juin 1990, série A no. 180-A, p. 16, para. 44 y Cour eur. D.H., arrêt Ferraro du 19 février 1991, série A no. 197-A,
p. 10, para. 21).
85. The Court
has held that in the case of moral damages, “indemnity may be awarded under
international law and, in particular, in the case of human rights violations”
(Velásquez Rodríguez Case, Compensatory
Damages, supra 75, para. 27
and Godínez Cruz Case, Compensatory
Damages, supra 75, para. 24).
86. In the instant
case, the moral damage inflicted upon the victim is obvious, for it is characteristic
of human nature that anyone subjected to aggression and abuse of the kind
committed against him (unlawful detention, cruel and inhuman treatment, disappearance
and death) will experience terrible moral suffering (cf. Traité de Neuilly,
article 179, annexe, paragraphe 4 (interpretation) arrêt No. 3, 1924, C. P.
J. I, série A No. 3, p. 9, the Arbitrary Tribunals, Maal case, 1 June 1903,
Reports of International Arbitral Awards, vol. X, pp. 732 and 733, and the
Campbell Case, 10 June 1931, Reports
of International Arbitral Awards, vol. II, p. 1158; cf. supra 69. The Court is of the opinion that no evidence or proof is needed to
arrive at this conclusion (Aloeboetoe
et al. Case, Reparations, supra
50, para. 52). As it is impossible
to award compensation for moral damages to the victim himself, the principles
of succession rights must be applied. As
the Court has held, in some circumstances the immediate family members can
be presumed to be successors for purposes of the corresponding compensation
(cf. Aloeboetoe
et al. Case, Reparatons, supra
50, para. 76 and Garrido and Baigorria
Case, supra 42, para. 50).
87. The Court
is of the opinion, moreover, that the anguish and uncertainty that the disappearance
and lack of information about the victim caused to his next of kin constitute
moral damages for them.
88. In the case
of the victim’s parents, the moral damages need not be shown, as they can
be presumed. As the Court has held,
“it can be presumed that the parents have suffered morally as a result of
the cruel death of their offspring, for it is essentially human for all persons
to feel pain at the torment of their child” (Aloeboetoe
et al. Case, Reparations, supra
50, para. 76; Garrido and Baigorria
Case, Reparations, supra 42,
para. 62). This position was reinforced
by the Court’s recent case law, wherein it held that the circumstances of
the forced disappearance “generate suffering and anguish, in addition to a
sense of insecurity, frustration and impotence in the face of the public authorities’
failure to investigate” (Blake Case,
Judgment of January 24, 1998. Series C No. 36, para. 114).
89. As for the
sister of Ernesto Rafael Castillo-Páez, the Court is of the view that it has
been established that she suffered painful psychological consequences as a
result of her brother’s disappearance and death, because he was her only brother
and they lived under the same roof, and because she experienced, together
with her parents, the uncertainty of the victim’s whereabouts and was forced
to move to Europe, where she has lived as a refugee in the Netherlands.
All of this is grounds for direct compensation
for moral damages (cf. European Court of Human Rights, Mori Judgment,
19 February 1991, Series A No. 197-C, p.38, para. 20; similarly, European
Court of Human Rights cases, Tusa v. Italy, February 1992. Series A
No. 231-D, p. 42, para. 21; European Court of Human Rights, Beldjoudi v. France, 26 March 1992, Series
A No. 234-A, p.30, para. 86; and European Court of Human Rights, Kemmache v. France (Article 50), 2 November
1993, Series A No. 270-B, p. 16, para. 11).
90. Based on
the foregoing and the principles of equity, the Court sets the moral damages
suffered by the victim at the sum of US$30,000.00 (thirty thousand United
States dollars), which is to be divided between the parents and sister in
equal parts, as they requested. It
also deems it equitable to award direct compensation for moral damages of
US$50,000.00 (fifty thousand United States dollars) to each parent of Ernesto
Rafael Castillo-Páez, and US$30,000.00 (thirty thousand United States dollars)
to his sister.
XI
91. The victim’s
next of kin asserted that “there is a value that can be attached to every
individual’s life that transcends his earning potential, since every individual
is an essential and unique part of his family, his community, his nation and
humanity.” On that basis, they are
seeking compensation of US$100,000.00 (one hundred thousand United States
dollars). During the public hearing,
the victim’s next of kin clarified that this was a “separate item of reparation,
an economic assessment of the cost of the violation of the right to life.”
92. The State
expressed general opposition to this item in its references to moral damages
(supra 82).
93. The Court
is of the opinion that the statements made by the immediate family of the
victim can be interpreted broadly as allusions to the right of a nation, a
community and a family not to be denied the life of one of its members (cf.
Article 32(1) of the American Convention).
With issues of this kind, the Court has previously held that every
individual, in addition to being a member of a family and a citizen of a State,
also generally belongs to intermediate communities. However, this Court has not held that the moral damages caused by
an individual’s death extend to such communities, and even less to the nation
as a whole. If in some exceptional
case such compensation has ever been granted, it would have been to specific
communities that have suffered proven moral damages (cf. Aloeboetoe et al. Case, Reparations, supra 50, para. 83).
94. The victim’s
next of kin are requesting publication of the Judgment in the Official Gazette
of the Peruvian State and that the latter issue a press communiqué transcribing
the
proven facts and the operative part of the Judgment, as well as an apology
to the family and a commitment from the Peruvian government that events and
acts such as those that occurred will never be repeated in
that country. The press releases
are to be published in five of the country’s major newspapers and in prestigious
newspapers in the international community.
They also request that the victim’s good name be
restored, that the plaza where he disappeared “bear his name and that a plaque
be placed there in [his] memory.”
95. In its brief
of May 11, 1998, the State asserted that these claims
are
an insult not just to the Government of Peru but also and primarily to the
Peruvian people, since such claims would make the Peruvian people into accomplices,
of sorts, in these acts, although it has never been proven that the Peruvian
State was responsible for those acts, even though the judgment might say otherwise.
It pointed out that in the Honduran cases, this Court
defined the expression “fair compensation” as compensatory and not punitive,
and noted that “Although some domestic courts, particularly the Anglo-American,
award damages in amounts meant to deter or to serve as an example, this principle
is not applicable in international law at this time.”
96.
Concerning the foregoing and in keeping with ample international case
law, the Court notes that the possibility that the victims of human rights
violations or their families may file suit against a State in an international
court and participate in the proceedings directly or through their representatives
is in itself a form of satisfaction (cfr.
Cour eur. D. H. arrêt Kruslin 24 du avril 1990,
série A no. 176-A, p. 25, párr. 39; Cour eur. D. H., arrêt McCallun du 30 août 1990, série A no. 183, p.
17, párr. 37; Cour eur. D. H., arrêt
Wassink du 27 septembre 1990, série A no. 185-A, p. 15, párr. 41; Cour eur. D. H., arrêt Koendjbiharie du 25 octobre 1990, série A no.
185-B, p. 42, párr. 34; Cour eur.
D. H., arrêt Darby du 23 octobre 1990, série A no. 187, p. 14, párr 40;
Cour eur. D. H., arrêt Lala c. Pays-Bas du
22 Septembre 1994, série A No. 297-A, p. 15, párr. 38; Cour eur. D. H., arrêt Pelladoah c. Pays-Bas du 22 septembre 1994, série
A no. 297-B, p. 26, párr. 44; Cour
eur. D. H., arrêt Kroon et autres c. Pays-Bas du 27 octobre 1994, série A
no. 297-C, p. 59, párr. 45; Cour
eur. D.H., arrêt Boner c. Royaume-Uni du 28 octobre 1994, série A no. 300-B,
p. 76, párr. 46; Cour eur. D. H.
arrêt Ruiz Torija c. Espagne du 9 décembre 1994, série A no. 303-A, p.
13, párr. 33), especially if the proceedings result in a condemnatory judgment,
as in the instant case, which demonstrated the death and disappearance of
Ernesto Rafael Castillo-Páez and declared that Peru had violated articles
4, 5, 7 and 25, in relation to Article 1(1) of the American Convention (Velásquez
Rodríguez Case, Compensatory Damages, supra
75, para. 36; Aloeboetoe et al. Case,
Reparations, supra 50, para.
31; El Amparo Case, Reparations, supra 50, para 62, and Caballero Delgado and Santana Case, Reparations,
supra 50, para. 58).
It is important to note here that the Court has suitable mechanisms
for publicizing its judgments, which is another form of reparation.
97. Finally,
the Court considers it pertinent to point out that on several occasions, Peru
has stated in writing that it is not responsible for the events that this
Tribunal considers to have been proven in its Judgment. For example, in its brief of May 11, 1998, it
stated that
the
State does not accept that decision [the declaration of the violation of the
right-to-life of Ernest Rafael Castillo-Páez] to be valid, because the proceedings
failed to demonstrate deprivation of life to the detriment of Ernesto Rafael
[Castillo Péz] and less still that the State was the party allegedly responsible
[…]
This assertion constitutes an additional source of
pain for the victim’s next of kin and reflects an attitude contrary to the
provisions of Article 68 of the American Convention.
XII
98. Based on
the Judgment on the merits in the instant case (Castillo Páez Case, supra
70, para. 90), the Commission and the victim’s next of kin requested that
the events be investigated and that those responsible for the crimes perpetrated
against Ernesto Rafael Castillo-Páez be punished. They also requested that the next of kin be informed of the victim’s
fate and that his remains be located since, for “his parents and sister, receiving
Ernesto’s remains is an essential step toward bringing closure to the torment
they suffer from the uncertainty surrounding his fate.”
They also submitted a report on the internal investigation conducted
by the Office of the Inspector General of the Police, ordered by the Ministry
of the Interior, where mention is made of vehicles and personnel who, according
to the representatives of the next of kin, were directly involved in the detention
and subsequent disappearance of Ernest Rafael Castillo-Páez.
They also reported that in dossier No. 610-91, 14th Criminal Court
of Lima, one Carlos Mejía-León is named as the person who headed up the operation;
according to unofficial versions, Mejía-León was responsible for taking “Ernesto
[Rafael Castillo-Páez] from the San Juan de Miraflores police station for
questioning.” During the public hearing
on reparations, the Commission and the victim’s next of kin added that “the
Government seems to be operating on the notion that the Court cannot order
an investigation into the victim’s disappearance because of the two amnesty
laws in effect in Peru,” which in their judgment constitute “an obstacle to
fulfillment of the State’s international obligations.” They therefore requested that the Court rule
on the incompatibility of the amnesty laws with the State’s international
obligations, since otherwise the crimes would go unpunished, as the Court
held in the Paniagua Morales et al.
Case.
99. The State
asserted that forced disappearance had been typified through Decree Law No.
25.592, published on July 2, 1992. At
the public hearing, Peru stated that its concern was “to comply with the requirements
of international organizations; the renewed effort to normalize laws that
the Peruvian State was forced to change to save itself as a nation and as
a state, demonstrates and confirms the Peruvian Government’s concern.”
Finally, in its brief of August 24, 1998, the State pointed out that
Law No. 26.926 was enacted this year, which typifies genocide, forced disappearance
and torture as crimes against humanity, and establishes severe penalties for
them. Peru also pointed out that it had signed and
ratified the Inter-American Convention to Prevent and Punish Torture.
100.
At the public hearing, the Inter-American Commission argued that according
to the State’s own argument concerning the amnesty laws, Law No. 26.926 was
not applicable in the instant Case. It
further argued that under Article 6 of Law No. 26,479, an amnesty was granted
to all persons responsible for crimes committed as a consequence of the fight
against terrorism, whether or not they had been named, prosecuted, tried,
or investigated. The Commission pointed
out that it had, on a number of occasions, rendered findings on amnesty laws.
Such laws, it argued, violate the international obligation that States
have under Article 1(1) of the Convention and lead to impunity.
The Commission pointed out that this was the position upheld by the
Court and was explained in the report presented to the United Nations Commission
on Human Rights on October 2, 1997, by the special rapporteur of the Sub-Commission
on Prevention of Discrimination and Protection of Minorities on the question
of the impunity of perpetrators of human rights violations (civil and political
rights). It pointed out that in that study, “42 principles
were adopted, calculated to protect and promote human rights through measures
to combat impunity.” The Commission
argued that the applicable principle in the instant case is No. 18, [which]
concerns the “duties of States with regard to the administration of justice.”
When it elaborated, the Commission maintained that “impunity arises
from a failure by States to meet their obligations to investigate violations,
to take appropriate measures in respect of the perpetrators, particularly
in the area of justice, by ensuring that they are prosecuted, tried and duly
punished.”
101. In its
submission of May 11, 1998, the State pointed out that amnesty laws Nos. 26.479
and 26.492 were approved in Peru; and that a suit challenging their constitutionality
was dismissed. It asserted that in
view of the foregoing “a petition seeking the prosecution and punishment of
the individuals responsible, if in fact anyone is responsible, is out of order
[since such] individuals are not be subject to court or administrative questioning
under the provisions of those two laws.” Those laws grant
a
general amnesty to any military, police and civilian personnel, whatever their
military or police rank or function, who have been indicted, investigated,
charged, tried, prosecuted or convicted for common or military crimes involving
acts deriving or originating from, on occasion or as a consequence of, the
fight against terrorism and that they may have committed either individually
or as a group between May of 1980 and the date of their enactment.
102. At the
public hearing, Peru explained that these laws were adopted because of the
difficult situation prevailing in the country at the time. However, it underscored that “the amnesty laws
are no impediment to the victim’s right to compensation, as a ruling of the
Constitutional Court has held.”
103. In its
Judgment of November 3, 1997, the Court established that one of the obligations
of the State was to investigate the facts under the following terms:
In
connection with the above-mentioned violations of the American Convention
[Articles 7, 4, 5 and 25, in relation to Art. 1(1)], the Court considers that
the Peruvian State is obliged to investigate the events that produced them. Moreover, on the assumption that internal difficulties might prevent
the identification of the individuals responsible for crimes of this kind,
the victim’s finally still have the right to know what happened to him and,
if appropriate, where his remains are located. It is therefore incumbent on the State to use
all the means at its disposal to satisfy these reasonable expectations.
In addition to this duty to investigate, there is also the duty to
prevent the commission of forced disappearances and to sanction those responsible
for them. These obligations on Peru shall remain in force
until such time as they have been fully performed (underlining added) (Castillo Páez Case, supra 70, para. 90).
104. The obligation
to investigate is expressly invoked by the victim’s next of kin when requesting
that the Court “require the Peruvian State to remove any legal obstacle that
would prevent it from conducting that investigation and eventually punishing
those responsible.”
105. The Court
reconfirms what it held in paragraph 90 of the Judgment on the merits (supra 103) and is persuaded that the Amnesty
Law enacted by Peru (supra 68.C.e)
is one of the “internal difficulties that might prevent the identification
of the individuals responsible for crimes of this kind”, since it obstructs
investigation and access to the courts and prevents the victim’s next of kin
from learning the truth and receiving the reparations to which they are entitled.
106. As this
Court has held on repeated occasions, Article 25 in relation to Article 1(1)
of the American Convention requires the State to guarantee to all persons
access to the courts, and, in particular, to a simple and rapid recourse so
that, among other things, those responsible for the human rights violations
may be tried and reparations obtained for the damages suffered. As this Court has said, Article 25 “is one of
the fundamental pillars not only of the American Convention, but of the very
rule of law in a democratic society in the terms of the Convention” (Castillo Páez Case, supra 70, paras. 82
and 83; Suárez Rosero Case, supra 39,
para. 65; Paniagua Morales et al. Case,
supra 40, para. 164, and Loayza Tamayo Case, Reparations, supra 38, para.169). That article is closely linked to Article 8(1)
of the American Convention which upholds every person’s right to a hearing,
with due guarantees and within a reasonable time, by a competent, independent
and impartial tribunal for the determination of his rights of any nature.
107. Consequently,
the State has a duty to investigate the human rights violations and prosecute
those responsible and thus avoid impunity.
The Court has defined impunity as “the total lack of investigation,
prosecution, capture, trial and conviction of those responsible for violations
of the rights protected by the American Convention” and has held that
[…]
the State has the obligation to use all the legal means at its disposal to
combat that situation, since impunity fosters chronic recidivism of human
rights violations, and total defenselessness of victims and their relatives
(Paniagua Morales et al. Case, supra
40, para. 173).
108. Furthermore,
the Court is of the opinion that, in principle, the Peruvian legislation typifying
the crime of forced disappearance to be laudable.
XIII
109. Invoking
Article 23 of the Court’s Rules of Procedure, the victim’s next of kin requested
that they be awarded approximately US$4,000.00 (four thousand United States
dollars) to cover their room-and-board and related expenses during the reparations
stage. At the public hearing, the representatives
of the victim’s next of kin requested payment of legal fees since, unless
such fees were recognized, the “Inter-American system will only be available
to those who have economic means.” The amount being claimed was not specified in
that brief.
110. The State
objected to the claims seeking reimbursement of the family’s hotel expenses
at the time of the public hearing, since the victim’s next of kin “are being
represented in these proceedings and their presence at the seat of the Court
is pointless.” It further argued that
under Article 45 of the Court’s Rules of Procedure, the party requesting the
production of evidence shall defray the cost thereof.
111. As for
the expenses for attending the public hearing, the Court considers that any
finding on this claim would be pointless, inasmuch as the victim’s next of
kin were not present for the hearing.
112. It is up
to the Court to make a prudent assessment of the specific scope of the costs
to which the condemnatory judgment refers, taking into account the verification
of those costs, the circumstances of the specific case, to which end the Court
shall determine, on the basis of reason and equity, a reasonable sum for the
costs incurred by the victim or his representatives and attorneys in proceedings
with Peru (cf. Garrido and Baigorria
Case, Reparations, supra 42,
para. 82).
113. Based on
the foregoing, the Court fixes the costs for judicial proceedings in Peru
at the sum of US$2,000.00 (two thousand United States dollars).
XIV
114. To be in
compliance with this Judgment, within six months from the date of its notification
the State is to pay the compensation ordered in favor of the victim’s next
of kin, either as next of kin or as victims themselves, as appropriate.
If any has died, the compensation shall convey to his heirs.
The State may fulfill its obligations through payments in cash, either
in United States dollars or its equivalent in Peru’s local currency. The rate of exchange used to determine the equivalent
value shall be the selling rate for the United States dollar and the local
currency of Peru quoted on the New York market on the day prior to the date
of the payment.
115. If for
any reason it is not possible for the beneficiaries of the compensation to
receive it within that six-month period, the State is to place the amounts
in question in an account or a certificate of deposit in the beneficiary’s
name, with a solvent and secure financial institution, either in United States
dollars or its equivalent in Peru’s local currency, under the most favorable
financial terms that banking law and practice permit. If at the end of ten years the compensation is not claimed, the sum
shall be returned, with interest, to the State.
116. The compensation
specified in this Judgment shall be exempt from any existing or future national,
provincial or municipal tax or duty.
117. Should
the State be in arrears with its payments, it shall pay interest on the amount
owed, at the interest rate in effect in Peru.
118. Now therefore,
THE COURT
DECIDES:
unanimously,
1. To set the
reparations that the State shall pay to the next of kin of Ernesto Rafael
Castillo-Páez at US$245,021.80 (two hundred forty-five thousand twenty-one
United States dollars and eighty cents) or its equivalent in local currency.
The State is to make these payments in the proportion and under the
conditions set forth in paragraphs 75, 76, 77, 90, 114, 115, 116 and 117 of
this Judgment.
2. That the
State of Peru shall investigate the facts in the instant Case, identify and
punish those responsible and adopt the necessary domestic legal measures to
ensure that this obligation is fulfilled.
3. That the
payments indicated in operative paragraphs 1 and 5 shall be made within six
months from the date of notification of this Judgment.
4. That any
payment ordered in this Judgment shall be exempt from any existing or future
tax or duty.
5. To set the
amount the State shall pay to the victim’s next of kin to reimburse them for
costs incurred in domestic legal proceedings at US$2,000.00 (two thousand
United States dollars) or its equivalent in the local currency of Peru.
6. That it shall
oversee fulfillment of this Judgment.
The Judges Cancado Trindade and Abreu-Burelli advise
the Court of their Concurring Opinion, and Judge García-Ramírez of his Explanation
of Vote, which are attached to this Judgment.
Done in Spanish and English, the Spanish being authentic,
in San José, Costa Rica, this twenty-seventh day of November, 1998.
Hernán
Salgado-Pesantes
President
Antônio A. Cançado Trindade Máximo Pacheco-Gómez
Oliver Jackman Alirio Abreu-Burelli
Sergio García-Ramírez Carlos Vicente de Roux-Rengifo
Manuel
E. Ventura-Robles
Secretary
So ordered,
Hernán
Salgado-Pesantes
President
Manuel E. Ventura-Robles
Secretary