Loayza Tamayo Case, Interpretation of the Judgment of September 17, 1997, Order of the Court of March 8, 1998, Inter-Am. Ct. H.R. (Ser. C) No. 47 (1999).
In the Loayza Tamayo case,
The Inter-American Court of Human Rights (hereinafter
"the Court" or "the Inter-American Court") composed of
the following judges[1]:
          Â
Hernán Salgado-Pesantes,
President
           Antônio
A. Cançado Trindade, Vice President
           Héctor Fix-Zamudio, Judge
           Alejandro Montiel-Argüello,
Judge
           Máximo
Pacheco-Gómez, Judge, and
           Alirio
Abreu-Burelli, Judge;
also present,
          Â
Manuel E. Ventura-Robles, Secretary
           VÃctor M. RodrÃguez-Rescia, Interim
Deputy Secretary,
pursuant to Article 67 of the American Convention
on Human Rights (hereinafter "the Convention" or "the American
Convention") and Articles 29(2) and 58 of the Rules of Procedure of the
Court (hereinafter "the Rules of Procedure") rules on the request
for interpretation of the judgment of September 17, 1997, rendered by the
Court in the Loayza Tamayo case (hereinafter "the judgment"), submitted
by the State of Peru (hereinafter "Peru" or "the State")
on December 19, 1997.
I
INTRODUCTION
TO THE APPLICATION
1.        On
December 19, 1997, Peru submitted, in accordance with Article 67 of the American
Convention, in connection with Article 58 of the Rules of Procedure, a request
for interpretation of the aforementioned judgment.
2.        By
note of December 22, 1997, the President granted the Inter-American Commission
on Human Rights (hereinafter "the Commission" or "the Inter-American
Commission") until January 27, 1998 to present its arguments in connection
with the request for interpretation.
3.        On
January 16, 1998 the Commission submitted a brief containing its comments
on the request for interpretation, in which it asked the Court to declare
it out of order and rejected.
4.        On
February 23, 1998 the State dispatched a brief in which it referred to the
Inter-American Commission's comments on the request for interpretation. It
also repeated some of the points contained therein.
5.        On
March 3, 1998 the Commission submitted a note containing comments on the State's
brief, dated February 9, 1998, in which it again said that it did not express
its opinion on many of the points raised by the State because
it deemed
it unnecessary in view of their groundlessness ... [and that] the Commission
has no "obligation" to pronounce on the specific point referred
to in the aforementioned brief, especially since the request for interpretation
was addressed to the Honourable Court and not to the Commission.
It also requested that the brief in question not
be added to the file, on the ground of its inadmissibility since it does not
comply with the Rules of Procedure.
II
COMPOSITION AND COMPETENCE
6.        For
this occasion the Court is composed of the judges who delivered the judgment
of September 17, 1997, for which the interpretation is being sought by Peru.
7.        This
composition is in keeping with Article 58(3) of the Rules of Procedure, which
provides that
[w]hen
considering a request for interpretation, the Court shall be composed, whenever
possible, of the same judges who delivered the judgment of which the interpretation
is being sought [...]
8.        The
Court is competent to settle the present request for an interpretation inasmuch
as Article 67 of the Convention provides that:
[t]he
judgment of the Court shall be final and not subject to appeal. In case of
disagreement as to the meaning or scope of the judgment, the Court shall interpret
it at the request of any of the parties, provided that the request is made
within ninety days from the date of notification of the judgment.
9.        For
its part, Article 58 of the Rules of Procedure establishes the following:
1.            The request for interpretation, referred
to in Article 67 of the Convention, may be made in connection with judgments
on the merits or on reparations and shall be filed with the Secretariat.Â
It shall state with precision the issues relating to the meaning or
scope of the judgment of which the interpretation is requested.
2.            The Secretary shall transmit the request
for interpretation to the States that are parties to the case and to the Commission,
as appropriate, and shall invite them to submit any written comments they
deem relevant, within a time limit established by the President.
[...]
10.      The
judgment of September 17, 1997 was notified on September 20 to Peru, which
submitted the aforementioned request for interpretation within the time limit
established in Article 67.
III
PURPOSE
OF THE REQUEST
11.      The
State pointed out, in its request for interpretation, that it refers to the
operative part of the judgment of the Court of September 17, 1997, in which
the Court decided:
unanimously,
1.            That the State of Peru violated, to
the detriment of MarÃa Elena Loayza-Tamayo, the right to personal liberty
recognized in Article 7 of the American Convention on Human Rights, in relation
to Articles 25 and 1(1) thereof.
unanimously,
2.            That the State of Peru violated, to
the detriment of MarÃa Elena Loayza-Tamayo, the right to humane treatment
recognized in Article 5 of the American Convention on Human Rights, in relation
to Article 1(1) thereof.
unanimously,
3.            That the State of Peru violated, to
the detriment of MarÃa Elena Loayza-Tamayo, the judicial guarantees established
in Article 8(1) and (2) of the American Convention on Human Rights, in relation
to Articles 25 and 1(1) thereof, on the terms set forth in this judgment.
by six
votes to one,
4.            That the State of Peru violated, to
the detriment of MarÃa Elena Loayza-Tamayo, the judicial guarantees established
in Article 8(4) of the American Convention on Human Rights, in relation to
Article 1(1) thereof.
Judge Alejandro Montiel-Argüello dissenting.
by six
votes to one,
5.            To order the State of Peru to release
MarÃa Elena Loayza-Tamayo within a reasonable time, on the terms set forth
in paragraph 84 of this judgment.
Judge Alejandro Montiel-Argüello dissenting.
unanimously,
6.            That the State of Peru is obliged
to pay fair compensation to the victim and her next of kin and to reimburse
them for any expenses they may have incurred in their representations before
the Peruvian authorities in connection with this process, for which purpose
the corresponding proceeding remains open.
Judge
Montiel-Argüello informed the Court of his Dissenting Opinion, and Judge Cançado
Trindade and Judge Jackman of their Joint Concurring Opinion, both of which
are attached to this judgment.
12.      The
Court summarizes the arguments and requests submitted by the State in its
request for interpretation as follows:
          Â
a.        that
the operative part of the judgment does not contain any pronouncement on the
exhaustion of domestic remedies, since only a brief and incomplete mention
is made on the subject in paragraphs 47 and 48, nor did the Court, in the
judgment on preliminary objections rendered in this case, put forward any
basis for its rejection of the non-exhaustion of domestic remedies. Peru submitted other arguments connected with above-mentioned preliminary
objection and declared the entire proceeding before the Commission and the
Court to be null and void. For these reasons, it requested the Court to deliver
a specific ruling on the non-exhaustion of domestic remedies;
          Â
b.        that
Article 7 of the Convention had not been violated to the detriment of Ms.
MarÃa Elena Loayza-Tamayo and that the judgment did not specify which of the
seven subparagraphs of that article had been violated; that in the judgment
the Court admitted that Supreme Decree 006‑93‑DE/CCFFAA of January
19, 1993, extending the state of emergency in the Province of Lima and in
the Constitutional Province of Callao was in force on February 6, 1993, the
date on which Ms. Loayza-Tamayo was arrested and that her detention was
effected in accordance with the requirements of Article 27 of the Convention
and of the Constitution and laws of Peru.Â
The State further stated that the Court did not study the validity
of the declaration of the state of emergency, within the requirements of the
aforementioned Article 27;
          Â
c.        that
Ms. MarÃa Elena Loayza-Tamayo was serving a 20-year prison sentence; that
in this case, under Peruvian legislation, the fulfillment of that sentence
could only be interrupted when it had been served or by the granting of a
pardon; that, for this reason, the Court's order to release Ms. Loayza-Tamayo
was out of order and illegal; that the Court's order was complied with even
thought the Supreme Court of Justice of Lima, by decision of October 14, 1997,
expressed its disagreement with the tenor and scope of the judgment of the
Inter-American Court, with particular regard to operative paragraphs four
and five, inasmuch as, in its view, the Peruvian jurisdictional organs did
not violate Article 8(4) of the Convention which concerns the principle of
res judicata or double jeopardy. Nor
did the judgment specify whether the decision to order the release was a dismissal
of the case, a supranational judicial pardon, or a supranational review. It added that, in a note of May 20, 1995, the
President of the Court (hereinafter "the President") pointed out,
after consultation of the Permanent Commission, that the Court was not empowered
to, nor should it, intervene directly in the taking of judicial or administrative
decisions which fall within the purview of the national organs that comprise
each country's domestic jurisdiction. According to the State, that note was not challenged and constitutes
a part of the proceeding, even though it was "deliberately" excluded
from the acts mentioned in the text of the judgment. Consequently, the Court
committed an error in iudicando in taking a decision contrary to a previous
decision in the same case and ruled on a matter which falls outside its competence.Â
The State also requested the Court to clarify how the order for Ms.
MarÃa Elena Loayza-Tamayo's release is to be interpreted in accordance with
the provisions of Peruvian domestic law.Â
Lastly, the State claimed that the Court should withdraw all the points
contained of operative paragraph 5) of that judgment.
          Â
d.        that
any request to the Court must be based on the preceding events in the proceeding
before the Inter-American Commission, which ends with the Report in which
it concludes that a State has violated specific rights to a person's detriment,
as did Report No. 20/94 in which it declared that Peru was responsible for
the violation of the right to personal liberty and integrity and judicial
guarantees set forth in Articles 7, 5 and 25 of the American Convention; that
the applications lodged by the Commission in this case, exceeding the scope
of that Report, included aspects which were not germane to it, such as the
violation of the rights embodied in Article 8, paragraphs 1, 2(d), 2(g), 3
and 4 of the Convention and that the Court not only admitted that claim into
the case but declared it out of order, which obliges the Tribunal to provide
an interpretation on this matter. It
further stated that operative paragraph three of the judgment was inconsistent
with paragraph 64, since in the latter the Court declared that there was no
evidence that Ms. MarÃa Elena Loayza-Tamayo had been coerced into testifying
against herself and admitting her participation in the events, and that, however,
in that operative paragraph Peru had been found guilty of violation of Article
8(2) of the Inter-American Convention.
          Â
e.        that
even though the request for compensation for Ms. MarÃa Elena Loayza-Tamayo's
relatives was not included in Report No. 20/94 of the Commission nor in its
petition to the Court, the judgment ordered them to be compensated without
specifying who they were. Peru stated
that the Court ruled on this matter ultra petita, for which reason an interpretation
is needed in order to exclude those relatives from the decision contained
in operative paragraph 6) of the judgment on the ground that they were not
included in Report No. 20/94 nor in the brief containing the application and
          Â
f.         that
the Court accepted the testimony of Juan Alberto Delgadillo-Castañeda, Guzmán
Casas-Luis, Pedro Telmo Vega-Valle, Luis Alberto Cantoral-Benavides, MarÃa
Elena Loayza-Tamayo, VÃctor Alvarez-Pérez and Iván Arturo Bazán-Chacón, although,
for a variety of reasons, those witnesses were not impartial. The State requested that, in the interpretation,
the Court rule that those statements are invalid.
13.      In
its brief of January 16, 1998 the Commission pointed out that the request
for interpretation did no meet the requirements set forth in Article 67 of
the American Convention, since rather than seeking clarification of the meaning
or scope of the judgement but, on the contrary, challenges the judgment, which
is final and not subject to appeal. The
Court summarized the arguments adduced by the Commission in its comments on
the request for interpretation as follows:
          Â
a.        that
the Court, in the judgment on preliminary objections and in paragraphs 47
and 48 of the judgment, referred properly and clearly to the objection of
non-exhaustion of domestic remedies; that the statement concerning the allegation
of lack of motive for it is groundless and, in any event, could not be brought
through a request for interpretation.
          Â
b.        that
the Court did rule in the judgment that the scope of the declaration of the
state of emergency governed by Article 27 of the Convention was not pertinent.Â
It further declared that the State is refuting the Court's decision,
rather than submitting any request for interpretation or clarification of
the meaning or scope of the judgment;
          Â
c.        that
the judgment is clear regarding the meaning and scope of the order for Ms.
MarÃa Elena Loayza-Tamayo's release, pursuant to Article 63(1) of the Convention,
since in accordance with the prinicple of restitutio in integrum, the victim's
rights and freedoms enshrined in the American Convention and which the Court
found to have been violated must be restored. It further stated that Peruvian domestic law
provides for compliance with an order issued by an international organization
through its jurisdictional organs, when Peru is subject to its jurisdiction.
          Â
d.        that
there is no conventional or statutory provision that establishes that the
request originating in a case before the Court must conform to the terms of
the report referred to in Article 50. It
further pointed out that the Court found that the principle of innocence embodied
in Article 8(2) of the Convention had been violated and that it was not a
question, as Peru claimed in its request for interpretation, of a denunciation
of a generic violation of that article.
          Â
e.        that,
there is no need to clarify the meaning or scope of the compensation ordered
to be paid to the victim's next of kin, since a person's next of kin are those
relatives designated by their own names for hereditary purposes, as the Court
has already stated; and
          Â
f.         that,
with regard to the witnesses, the Court acted in accordance with Article 48(3)
of its Rules of Procedure and so indicated when it ruled on the allegations
submitted by the State. It further
stated that a reading of the judgment implies that the Court had attributed
value to the statements when information provided by the witnesses was corroborated
by other evidence produced in the case.
IV
INADMISSIBILITY
OF THE APPLICATION
14.      According
to Article 67 of the Convention transcribed above (supra, para. 8), the judgments
of this Court are final and not subject to appeal, but may be interpreted
at the requested of any of the parties when there is disagreement on the meaning
and scope of the decision.
15.      The
European Court of Human Rights, on the basis of Article 57 of Rules A of that
Tribunal, which is similar to the aforementioned precept of the American Convention,
pointed out that the interpretation of a decision calls implies an explanation
not only of the text of its operative paragraphs, but also a determination
of the scope, meaning and purpose of its considerations (Eur. Court H. R.
Ringeisen Case (Interpretation of the Judgment of 22 June 1972), Judgment
of 23 June 1973, Series A, Vol 16).
16.      By
the same token, this Court considers that the request or petition for interpretation
of a judgment may not be used as a means of challenging it, but must be made
for the sole purpose of working out the meaning of the decision when one of
the parties maintains that the text of its operative paragraphs or its consideranda
is unclear or imprecise, provided those consideranda affect that operative
paragraph. Hence, a request for interpretation may not be used to seek amendment
or nullification or the judgment in question.
17.      This
Court, in studying the State's arguments summarized above (supra, para. 12),
observes that an improper attempt is being made, in the guise of a request
for interpretation, to amend the judgment on merits rendered by this Tribunal
on September 17, 1997 in the Loayza Tamayo case, inasmuch as Peru alleges
that the decision was based on omissions in some aspects and is incorrectly
founded on others.
18.      On
this subject, in two recent judgments the European Court of Human Rights applied
the same criterion adopted by this Court when it considered that interpretation
of a judgment shall not alter its binding aspects (Eur. Court HR, Allenet
de Ribemont v. France, judgment of 7 August 1996 (interpretation) and Eur.
Court HR, Hentrich v. France, judgment of 3 July 1997 (interpretation), Reports
of Judgments and Decisions 1997‑IV).
19.      With
regard to the State's request for an explanation of the scope of the provision
contained in paragraph 84 of the decision which states that "[t]he State
of Peru must, in accordance with the provisions
of its domestic law, order the release of Ms. MarÃa Elena Loayza-Tamayo within
a reasonable time", the Court considers that Peru duly complied with
that part of the judgment by releasing her on October 16, 1997, for which
reason there is no sense to the request for interpretation
V
NOW, THEREFORE,
THE INTER-AMERICAN
COURT OF HUMAN RIGHTS
pursuant to Article 67 of the American Convention
on Human Rights and Article 29(2) and 58 of its Rules of Procedure,
RESOLVES:
unanimously,
To reject as out of order the request for interpretation
submitted by the State of Peru.
Done in Spanish and English, the Spanish text being
authentic, in San José, Costa Rica, this eighth day of March 1998.
Hernán Salgado-Pesantes
President
                                         Â
           Â
Antônio A. Cançado Trindade                                  Â
                       Héctor Fix-Zamudio
                                          Â
Alejandro Montiel-Argüello                                          Máximo Pacheco-Gómez
Alirio Abreu-Burelli
Manuel E. Ventura-Robles
Secretary