Durand and Ugarte Case, Judgment of August 16, 2000, Inter-Am Ct. H.R. (Ser. C) No. 68 (2000).
In Durand and Ugarte Case,
the Inter-American Court of Human Rights (hereinafter
"the Court" or "the Inter-American Court"), composed by
the following judges:*
Antônio
A. Cançado Trindade, President
Máximo Pacheco Gómez, Vice-President
Hernán Salgado Pesantes, Judge
Alirio Abreu Burelli, Judge
Sergio García Ramírez, Judge
Carlos Vicente de Roux Rengifo, Judge and
Fernando Vidal Ramírez, Judge ad hoc;
also, present,
Manuel
E.Ventura Robles, Secretary and
Renzo Porni, Deputy Secretary,
pursuant to Articles 29 and 55 of
the Rules of Procedure of the Court (hereinafter "the Rule"), issues
the following judgment:
I
INTRODUCTION
TO THE CASE
1.
When submitting
this application before the Court, the Inter-American Commission of Human
Rights (hereinafter "the Commission" or "the Inter-American
Commission") relied upon Articles 50 and 51 of the American Convention
on Human Rights (hereinafter "the Convention" or "the American
Convention") and Article 26 together with the next Rules of Procedure
of the Court in force[1]. The Commission stated this case to entitle
the Court to decide whether the State of Peru (hereinafter "the State"
or "Peru") had violated the following Articles of the Convention:
1(1) (Obligation to Respect Rights), 2 (Duty to Adopt the Clauses of
National Law), 4 (Right to Life), 7(6) (Right to Personal Freedom), 8(1) (Judicial
Guarantees), 25(1) (Judicial Protection) and 27(2) (Suspension of Guarantees),
to the detriment of Mr. Nolberto Durand Ugarte and Mr. Gabriel Pablo Ugarte
Rivera. The Commission asked the Court
to demand Peru to undertake the necessary investigations for to identify,
judge, and punish those who were guilty of committing these violations; to
inform on the whereabouts of Mr. Durand Ugarte and Mr. Ugarte Rivera corpses,
and to give them back to their relatives. Finally, the Commission asked the
Court to demand the State
to make full moral and material
reparation and indemnification to the relatives of Nolberto Durand Ugarte
and Gabriel Pablo Ugarte for the grave damage sustained as a result of the
multiple violations of the rights recognized in the Convention and also [to
pay] for all expenses incurred by the victims relatives and representatives
before the Commission and the Inter-American Court in processing the case.
In the final plea brief, the Commission stated the
alleged violation of Article 5(2) of the American Convention.
II
COMPETENCE OF THE COURT
2.
The Court is competent to have knowledge of the present case. Since July
28, 1978 Peru has been a State Party to the American Convention, and it acknowledged
the mandatory competence of the Court on January 21, 1981.
III
PROCEEDINGS BEFORE THE COMMISSION
3.
On April 27, 1987,
the Commission received a complaint on alleged violations of human rights
to the detriment of Mr. Durand Ugarte and Mr. Ugarte Rivera. On May 19 of
the same year the corresponding sections of such accusation were sent to the
State, according to Article 34 of the Rules of the Commission, and requested
information on internal recourse exhaustion.
4.
On January 19,
1988 the Commission reiterated to the State the petition to submit the corresponding
information of the case. On next June 8, it insisted on the petition, indicating
that, if no answer was received, it would consider the implementation of Article
42 of its Rules, wherein it stipulates that
[t]he facts indicated in the petition
and whose relevant parts have been conveyed to the Government of the State
concerned if the maximum deadline set by the Commission pursuant to the Article
34, paragraph 5, shall be considered truthful, said Government would not render
the corresponding information as long as other certainty elements would not
result in another conclusion.
On February 23, 1989 once again the Commission requested
this information. On next May 31, the petitioners asked that denounced actions
be taken for granted.
5.
Peru submitted a brief dated September 29, 1989 wherein it stated that
[c]oncerning cases 10.009 and 10.078
of public domain they are in a judicial process before the Military Exclusive
Court of Peru, pursuant to the laws in force, it must be stated that the internal
jurisdiction of the State has not been yet exhausted, so it would be convenient
for the Inter-American Court of Human Rights to wait until the closing of
said cases, before taking a definitive stand on them.
6.
On June 7, 1990,
the Commission asked the State information for internal recourses exhaustion,
the proceedings before the military Court and the whereabouts of Mr. Durand
Ugarte and Mr. Ugarte Rivera, but it did not respond to this requirement.
7.
On March 5, 1996,
the Commission approved Report No. 15/96, which was sent to the State on May
8 of the same year. In the operative paragraphs of said report, the Commission
decided:
1.
TO DECLARE the State of Peru responsible for
the violations to the detriment of Gabriel Pablo Ugarte Rivera and [Nolberto]
Durand Ugarte, of the rights to personal freedom, life, and an effective judicial
protection, as well as judicial guarantees of due legal process that are recognized,
respectively, by Articles 7, 4, 25 and 8 of the American Convention. Likewise,
in the present case, the Peruvian state has not fulfilled the obligation to
respect the rights and guarantees stipulated by Article 1(1) of the American
Convention.
2.
TO RECOMMEND to the State of Peru to pay an
adequate, prompt, and effective indemnification to compensate the victims'
relatives for the moral and material damage as a result of the facts denounced
and proven by the Commission and the Inter-American Court of Human Rights.
3.
TO REQUIRE the Government of Peru that within
60 days after the notification of the current report, to communicate to the
Inter-American Commission of Human Rights, the measures that would have been
adopted in the present case, pursuant to the recommendations mentioned in
the previous paragraph.
4.
TO CONVEY the present report in keeping with
Article 50 of the American Convention and to communicate to the Government
of Peru that it does not have authorization to publish it.
5.
TO SUBMIT this case to the consideration
of the Inter-American Court of Human Rights if, within sixty days, the Peruvian
State will not comply with the recommendation stated in paragraph 2.
8.
On July 5, 1996 the State sent to the Commission a copy of the Report developed
by a Task Force composed of representatives of various branch offices of the
State. According to the Commission and based on said Report, it was evident
that Peru had not followed its recommendations.
IV
PROCEEDINGS BEFORE THE COURT
9.
On August 8, 1996, the application was submitted to the Court. The Commission
appointed Mr. John S. Donaldson as delegate, Mr. Alvaro Tirado Mejía as alternate
delegate, and Mr. Domingo E. Acevedo as advisor; whereas, Mr. Ronald Gamarra,
Katya Salazar, José Miguel Vivanco, Viviana Krsticevic, Ariel Dulitzky, and
Marcela Matamoros were appointed as assistants. On March 9, 1998, the Commission appointed
Helio Bicudo and Domingo E. Acevedo as new delegates. Based on a note received on June 18, 1998 Mrs. Matamoros communicated
to the Court her resignation to participate in the present case.
10.
On August 23, 1996,
the Secretariat of the Court (hereinafter "the Secretariat"), after
a preliminary examination of the application undertaken by the President of
the Court (hereinafter "the President"), informed it to the State.
11.
On September 6,
1996 Peru informed the Court about the appointment of
Mr. Jorge Hawie Soret as agent.
12.
On September 19,
1996, the President, at the request of the State, extended the deadline for
the appointment of the judge ad hoc
until October 8, 1996. On the 4th
of the same month and year, Peru appointed Mr. Fernando Vidal Ramírez as Judge
ad hoc.
13.
On September 20,
1996, the State submitted a brief wherein it filed seven preliminary objections
and requested the Court, based on the resulting objections, to arrange for
the application file.
14.
On October 29,
1996, the Commission submitted a reply to the preliminary objections and requested
to Court to underestimate them as a whole.
15.
On November 22,
1996, the State requested an extension of the deadline to respond to the application,
which was granted until December 20, 1996. On November 26, 1996, the State submitted its
reply to said application wherein it requested the possibility of "sending
in an additional brief enough documentation to prov[e] its statements".
In this connection, on December 3, 1996, the President of the Court granted
the extension requested until January 6, 1997.
16.
On January 6, 1997,
Peru submitted a note related to the offering of evidence and on January 15,
1997, it sent "two leaflets with subversive nuances [entitled Pronouncements
and Day of Heroism!] wherein [the] names of Nolberto Durand Ugarte and [Gabriel]
Pablo Durand Rivera, appeared as participants who never gave up during the
riots" that took place in San Juan Bautista prison, known as El Frontón
(hereinafter "El Frontón"), and it also asked the Court to accept
said documentation as evidence.
17.
On January 22,
1997 the Inter-American Commission submitted some observations to the brief
of the State of January 6, 1997, pointing out that it represented "an
extension of the application reply filed by Inter-American Court of Human
Rights, which does not harmonize with what was foreseen by the Rules of Procedure
of the Court, particularly Article 37".
18.
On March 18, 1997,
the Secretariat, at the request of the Commission, asked Peru to send the
following documentation: a list of prisoners delivered by the Chief of Identification
of San Juan Bautista Prison to the 2nd Permanent Instruction Judicial
Court of the Navy, a resolution of July 17, 1987 issued by the 6th
Correctional Court of Lima; besides some majority and minority opinions issued
by the Investigating Commission of the Congress of Peru about the facts of
June 18 and 19, 1986. On May 19, 1997
the State reported difficulties to find July 17, 1987 decision, caused by
a fire which took place in 1993, when files inside the Sixth Correctional
Court of Lima were completely destroyed, but it also said it would try to
find a copy or submit written proof from the Superior Court of Justice of
Lima to confirm destruction of the file.
On May 20, 1997, the State submitted the list and requested opinions.
Until now, the decision of July 17, 1987 has not been submitted yet. In documentation
submitted on January 24, 1999 there is a note dated January 6, 1998 indicating
that "the Sixth Court presently has been deactivated, [and] the staff
who worked there points out that the Books from 1988 were destroyed during
the fire some years ago in the attic of Record Files, not being able to determine
if the file was sent to the Files of the Court or to the Court of Origin".
19.
On September 28,
1998 the State submitted a brief related to the judicial situation of Mr.
Nolberto Durand Ugarte and Mr. Gabriel Pablo Ugarte Rivera.
20.
On October 26,
1998, the State, at the request of the Secretariat, submitted a brief related
to a judicial situation of Mr. Nolberto Durand Ugarte.
21.
On November 9,
1998, the Secretariat, following instructions by the President, asked the
State, in keeping with Article 44 of the Rules of Procedure to submit some
documentation regarding the filed habeas
corpus recourse and charges of terrorism against Mr. Durand Ugarte and
Ugarte Rivera as evidence for a better decision.
22.
On November 27,
1998, the Inter-American Commission, by means of the Decision of the President,
was asked, in view of said request in the application brief, to provide detailed
information on evidence produced in Neira Alegría Case, asking for the inclusion
of the evidence in this case.
23.
On December 14, 1998, the Commission sent a brief wherein it indicated
the documents of evidence produced in Neira Alegría Case, to be included in
the evidence of this case. On January
11, 1999, the Secretariat sent said brief to the State and extended the deadline
until the 22nd of the same month and year to submit observations it may deem
relevant. To this date no brief has
been submitted to this regard.
24.
On January 6, 1999,
the State requested a deadline extension to submit evidence for a better decision
request, said extension was granted until January 22nd of the same year.
On January 24, 1999, Peru submitted a pronouncement dated October 28,
1986 of the Court of Constitutional Guarantees concerning the action of habeas
corpus, documentation regarding several procedures to find out about the
actions related to the habeas corpus
recourses and the case on terrorism, as well as documentation provided by
the National and Corporate Penal Court for Cases of Terrorism, regarding Mr.
Durand Ugarte and Mr. Ugarte Rivera. On
March 3, 1999, the evidence was again requested to the State for a better
solution which was previously asked for.
To the date of this judgment, the State had not submitted the file
processed for charges of terrorism against Mr. Durand Ugarte and Mr. Ugarte
Rivera, or the documentation related to the habeas
corpus recourse on their behalf in February 1986.
25.
On April 7, 1999,
the Court requested the OAS Secretary General for information related to the
notification about the state of emergency or suspension of guarantees by Peru,
decreed between June 1, 1986 and July 20, 1987. On May 19, 1999 Mr. Jean-Michel Arrighi, Director of the International
Law Department of the OAS General Secretariat, informed that he had not received
any notification to this regard.
26.
On May 28, 1999,
the Court issued a preliminary objections judgment.
27.
On June 10, 1999
the Secretariat asked the Commission for a definite list of witnesses and
experts who should be summoned at the public hearing.
On June 29, 1999 the Commission informed that Mrs.Virginia Ugarte Rivera
and the expert Robin Kirk would attend said hearing. On September 15, 1999, the Commission reported that said expert
would not attend "for reasons beyond her control".
28.
On June 25, 1999,
the Secretariat, following instructions by the President, asked the State
for information on the merits on the fact and right of the "Decision
of NOT HAVING EVIDENTIAL FORCE FOR AN ORAL TRIAL" indicated in notices
No. 544.98.INPE-CR-1 of September 18, 1998 and No. 635.98.INPE-CR-P of October
21, 1998, reiterating the request of sending the file related to the process
followed against the defendants on charges of terrorism.
29.
By means of the
Decision of the President of August 4, 1999, the Inter-American Commission
together with the State were summoned to attend a public hearing to be held
at the seat of the Court on next September 20 to hear the statement by the
witness before the Commission, and the parties were told to submit its final
oral statements on the merits of the case, immediately after such evidence
was received.
30.
On September 20,
1999 the Court held a public hearing to be informed about the statement by
the witness proposed by the Inter-American Commission.
Attended before the Court:
by the Inter-American Commission of Human Rights:
Domingo E. Acevedo, delegate;
Viviana Krsticevic, assistant;
María Claudia Pulido, assistant; and
Carmen Herrera, assistant.
As a witness proposed by the Inter-American Commission:
Virginia Ugarte Rivera
The
State did not attend the public hearing despite being summoned.
31.
On September 21,
1999, the Secretariat, following President's instructions, based on the powers
conferred upon him by Article 44 of the Rules of Procedure of the Court, asked
the Commission, as evidence for a better resolution, for the information related
to the process followed on charges of terrorism against Mr. Nolberto Durand
Ugarte and Mr. Gabriel Pablo Ugarte Rivera between June 18, 1986 and July
17, 1987 and, particularly, all information or documentation about the participation
of Mr. Miguel Talavera Rospigliosi, attorney of the alleged victims in said
process during the period. On October
4, 1999, the Commission submitted the above-mentioned information.
32.
On September 20,
1999, the President informed the Commission that it had a thirty-day deadline
to submit the final arguments.
33.
On October 20,
1999, the Commission submitted its final argument brief.
34.
On January 10,
2000 the Secretariat, following instructions by the President, informed the
State that the deadline was granted to present final written arguments on
the merits of the case until February 11 of the same year. On said date, the State submitted its final argument brief.
35.
On June 9, 2000
the President decided to incorporate in the evidence in this case part of
the evidence produced in Neira Alegría Case (infra
para. 38).
V
DOCUMENTARY
EVIDENCE
36.
Together with the
application brief, the Commission submitted a copy of 11 documents with the
same number of annexes.[2]
37.
When submitting
its reply to the application, the State attached copy of two leaflets.[3]
38.
The following documentary
and witness evidence produced in Neira Alegría Case were incorporated to the
evidence of this case (supra para.
35): Minority opinion by the Congressional
Investigative Commission of the Republic of Peru on the events of June 18
and 19, 1986, in Lurigancho, El Frontón, and Santa Bárbara (Lima, December
1987) including an assessment of the events in San Juan Bautista (Former Frontón),
San Pedro (Former Lurigancho), and Santa Bárbara prisons and of the decisions
made by the Government to this regard, news articles on the events in San
Juan Bautista (Former Frontón), San Pedro (Former Lurigancho), and Santa Bárbara
prisons; autopsies carried out on the corpses of some prisoners of "El
Frontón" by doctors Augusto Yamada, Juan Herver Kruger, and José Ráez
González; and a file processed in the Military Exclusive Court related to
the investigation of the events in San Juan Bautista prison on June 18 and
19, 1986. Likewise, the following statements and expert reports rendered during
the public hearings held at the seat of the Court on July 6 and 10, 1993 on
the merits of Neira Alegría et al
Case:
a)
Testimony of Sonia Goldenberg (journalist)
As journalist, she interviewed
Jesús Mejía Huerta who told her how after the bombing of the prison only 70
prisoners were alive; that they were called in groups and some executions
took place, that he had eight or ten bullet shots and was thrown, together
with other wounded prisoners, into a ditch. Lately, the Blue Pavilion was
bombed. Moreover, Juan Tulich Morales
was interviewed by Mrs. Goldenberg who told her that he knew that the leading
detainees were taken to San Lorenzo naval base and were executed.
b)
Testimony of Pilar Coll (social worker)
In August 1987, she was assigned to an office of
the Investigative Commission of the Congress in charge of gathering testimonies
by the detainees' relatives in the prisons and survivors. Jesús Mejía Huerta
told her in an interview, more openly, exactly what the previous witness had
declared. She pointed out that some
detainees' relatives knew that some survivors had already disappeared.
c)
Judgment of Guillermo Tamayo Pinto Bazurco (civil
engineer)
In 1987, the Center of Projects and Constructions,
from which he was President, was hired by the commission of the Congress in
charge of investigating the events in the prisons to technically assess what
had happened in the Blue Pavilion from an engineering point of view. He visited El Frontón, whose Blue Pavilion
was demolished. The total demolition
was carried out by means of plastic explosives that were placed at columns'
bottom. He also declared having observed
tracks of the expansive wave outside the building, as well as the existence
of 20 meters of tunnels that did not affect structure strength; there were
no traces of explosions.
d)
Opinion by Enrique Bernardo Cangahuala (civil engineer)
The deponent stated that he was hired by the commission
of the Senate to carry out an assessment, from a civil engineering point of
view, on the situation that took place in San Juan Bautista prison.
After visiting the place and gathering antecedents, he got involved
in the report preparation. The Engineering Association adopted this report,
where they found that the tunnels did not lead to the coast's openings or
evidence of explosives in the Pavilion columns was available. With the help of ten workers, it would have
been possible to eliminate all the debris in the pavilion within a month.
If the intention of using explosives had been to clear the Pavilion, they
would have been placed on the walls. According
to their his opinion, explosives were placed to demolish the building.
There is no evidence of a possible explosion inside the building. A
plastic explosive could not cause a casual dynamite sympathetic explosion.
There was also the possibility that people could use the tunnels as
shelter but could not leave them.
e)
Testimony of Ricardo Aurelio Chumbes Paz (attorney
and court judge)
During the period of the facts he was a Judge in
charge of preliminary of the stage of criminal proceedings of Callao. On June
18, 1986, he listened on the radio the news on the riots in El Frontón, and,
at about 1 p.m. the President of the Supreme Court entrusted him with observing
the facts, reporting them afterwards, but not being entitled for making decisions.
Navy officials denied him means to move to the Penal Island.
At 3:30 or 4 p.m., he received an habeas
corpus in his office presented by the prisoners' attorney, and at about
9:30 p.m. a vessel was ready to take him to the Island. He interviewed the prison's director, who told
him that the Island was under Navy control. He also interviewed the Vice-Minister of the Interior who informed
him that the Government, by means of the Council of Ministers, had entrusted
the Armed Forces with subduing the riots. After that, there were explosions and a blackout. Then, he approached a fence about 50 meters
away from the prison and started shouting that prisoners' delegates should
show up, but there was no reply. He was not allowed to speak to the Commander
in Chief of the military operation, and while he was boarding the vessel at
dawn, he heard a series of explosions. Three
days later, he found out on mass media about the deaths caused by the actions
to subdue the riots. He tried to go
back to the prison but he was not allowed to do it because the prison had
become a Restricted Military Zone. In some other rioting cases, lethal weapons
were not needed to subdue the uprisings.
Prisoners of El Frontón could not escape anyway. Guarantee or habeas corpus recourses in the specific
case of El Frontón were inefficient to protect the life, physical integrity,
and fundamental rights of individuals. While
removing the corpses, fingerprints, tooth prints and footprints are usually
taken, and photographs and fingerprints are taken when a prisoner goes to
jail.
f)
Testimony of José Antonio Burneo Labrín (attorney
and professor of the human rights course in Universidad Mayor de San Marcos)
In 1986, he was director of the Juridical Department
of the Comisión Episcopal de Acción Social (CEAS) of the Catholic Church.
Two or three weeks after the events, Mrs. Alegría, the mother of Victor
Neira Alegría and the father of Edgar Zenteno Escobar and William Zenteno
Escobar, went to this office asking for information on the whereabouts of
their relatives. Thus, he presented an habeas corpus recourse before the Twentieth First Court of Instruction
of Lima, on July 16, 1986. The Chairman
of the Joint Command of the Armed Forces and the General Commander of the
Navy declared that said information should be requested to the penal authorities
or to the Special Judge of the Navy in charge of body removal.
The President of the National Penal Council submitted a list of detainees
in El Frontón on the day of the events, including 152 inmates, among them
Víctor Raúl Neira Alegría and the Zenteno brothers, and also reported on the
availability of 27 safe and sound detainees and seven wounded people.
The judge determined that habeas
corpus did not proceed, a decision that was appealed, and the Correctional
Court of Lima by two votes against one decided that there was no cause for
the appeal. On August 25, 1986 an extraordinary appeal
was filed before the Supreme Court, and the Penal Court of this Trial decided
to declare no nullity. CEAS filed
an extraordinary appeal before the Constitutional Guarantees Court, and four
of its members voted in favor of, that is, only one vote was missing to reach
nullity because five favorable votes are required. Therefore, the national instance was exhausted. He advised the family to appeal before the
Inter-American Commission.
g)
Testimony of César Delgado Barreto (attorney)
This witness was elected Senator in 1985 and served as member of the Human
Rights Justice Commission of the Senate.
After the events in the prisons, at the request of the President of
the Republic, he served in a bicameral investigative and multipartisan commission
of thirteen members working for four months was appointed in which he took
part. In the riots of El Frontón at
first, the Republican Guard and then the Navy Infantry played an active role;
at the first three rockets were launched, and later plastic explosives were
used. In his opinion, there was disproportion in the means used because it
was unnecessary to use explosives. The
commission had the support from a group of engineers who prepared a report
on the demolition. He does not know
about any investigation to determine the whereabouts of Neira Alegría and
the Zenteno brothers. Reports of on
majority and minority opinions by the commission agreed upon the facts and
disagreed upon the political constitutional point of view regarding the liability
of the Ministers who approved the participation of the Joint Command in subduing
the riots. One of the survivors informed
a third party about rioter executions after they surrendered, but once he
was summoned to confirm its version, he refused to do so.
h)
Testimony of Rolando Ames Cobián (B.A. Political
Science)
He was Senator in 1987 and appointed President of
the Congress commission to investigate the events that took place during the
riots in the three prisons. The commission
strictly performed the investigation. Reports on majority and minority opinions agreed on the facts; the
difference lies in the responsibility pointed out by each of them at the highest
government level, regarding repression in prisons. The Government declared not taking rebellion
in the three prisons as a police problem, but as “the great confrontation
between the Government and Sendero Luminoso … because public releases and
statements by the President of the Republic are clear in detailing events,
Sendero Luminoso versus the Government”.
All of this made possible for the subduing to be carried out in the
fastest possible way by the Joint Command of the Armed Forces.
Two thirds of the Blue Pavilion that were standing were demolished
with dynamite placed at the outer columns thus producing an absolutely unnecessary
toll of dead people among prisoners who were not actively resisting. There was no interest in looking for wounded
people or other people inside the tunnels, even entrance to the prison was
not allowed until one year later. Neira
Alegría and the Zenteno brothers were not among the prisoners who surrendered,
but they appeared in the list provided to the commission by the National Penitentiary
Institute. Riots' survivors refused to declare before the commission.
The Congress adopted the investigating commission majority report.
The final explosion that demolished the prison, took place when there
was no strong attack, but this was already over, and as a result of sympathetic
dynamite explosion, but due to the explosions of the building columns. Besides the 28 prisoners who surrendered on
the same day of the events, a day after one or two more prisoners appeared
and three days later some others did too.
The investigative commission asked for information on the investigation
undertaken by the Supreme Council of Military Justice, but the Naval Court
did not provide any and even refused to provide the names of the officials
who were in charge of the operation. The
commission did have evidence related to the fact that prisoners had dynamite
and tried to get information to explain why diverse means, like tear or enervating
gas, were not used, and it was told that there was no time to apply them because
of the urgency to subdue the riots that same night. There was no possibility for prisoners to escape.
i)
Testimony of José Ráez González (surgeon)
At the request of the Navy, the Legal Medicine Institute
was asked to designate two experts to carry out studies on corpses in El Frontón,
and under those circumstances, he worked in the island from February to April
1987 and examined about 90 corpses. The objective of the legal doctor is to determine the cause of death
and to help in the identification. The
corpses had undergone all the stages of primary putrefaction, some were in
mummification stage, and others had lost all soft parts and there were only
fragments of the bodies. In many cases it was not possible to determine the
cause of death because there only bone remains, and in other cases death was
caused by multiple fractures. In some
cases, remnants of clothes, size, sex, age, and dental remains were described.
It is not within the scope of the doctor to keep in touch with the
relatives' victims; identification is the Investigating Department´s duty.
He was able to take fingerprints of some of the bodies. Crushing caused
an overwhelming majority of the deaths. Once
expert investigations were over, the deponent handled the protocols, summaries,
and comments to the Naval Judge and signed the death certificates. There are
many factors that avoid taking fingerprints of a corpse. He does not remember to have seen burning scars
on the corpses.
j)
Testimony of Augusto Yamada Yamada (Chief Doctor
of the Pathological Anatomy of the Naval Hospital, Navy Officer and Captain
of the Navy Health Frigate)
On June 19 and 20, 1986,
he began doing autopsies in El Frontón. The
police took fingerprints, and an odontologist took odontographs.
He prepared autopsy protocols and the death certificates and followed
orders by the Navy judge. Of the 38
autopsies he subscribed, in 17 a weapon-inflicted wound has been determined
as the cause of death, and in 21, crushing, in some cases bullet wounds were
multiple, and the shots were fired at a short distance.
The Investigative Police was responsible for the identification. In four death certificates, the names of the
deceased provided by the judge were added.
No splinters were found in the bodies.
The corpses were almost complete, except three who had no heads. He carried out the autopsies on June 19 and
20, several in July, and five on January 22, 1989.
k)
Testimony of Juan Kruger Párraga (Anatomy-Pathologist)
Until 1989, he was the head of the Pathology Department of
the Navy Medical Center, and his rank is Ship Captain. The purpose of an autopsy, among others, is
to determine the cause of death, corpse identification does not concern the
physician but the Investigative Police. He
was asked to do the autopsies in El Frontón. The first time he went there was on July 5,
1986, and the last one on January 22, 1987.
He did 23 autopsies and in most of them he pointed out the “stage of
putrefaction” of the corpses, and that many of them had multiple fractures
as a result of crushing; none of the autopsy protocols he signed identified
any person. Several odontologists
took odontographs when dental pieces were found.
The medical statement was submitted to the Navy Judge. Some of the corpses had civilian clothes on,
but this information was not included in the protocols. There were no weapon-inflicted wounds in the
corpses. Due to the corpse putrefaction
stage, it was not possible to determine if death occurred on the 18 or 19. Each autopsy lasted two or more hours. A few of the corpses showed burns.
l)
Judgment of Robert H. Kirschner (doctor and forensic
pathologist)
He was Assistant Chief Examining Doctor and deputy principal
of Cook County, Chicago, Illinois at the moment of rendering his statement.
He has done over 7,000 autopsies throughout.
In the case of El Frontón, authorities must, as usual, get fingerprints
of the inmates, and it would have been easier to compare them with those of
the corpses, as well as odontographs, tattoos, and old scars; therefore, family
help is very important. On June 20, it would have been very easy, if
the necessary information had been available, to identify all the corpses. It is very important to take photographs and
prepare drawings of the disaster place before removing the corpses, even to
identify the cause of death. Autopsies
were very professional, but there was neglect by the people in charge of the
identification; even now many identifications could be possible, even without
exhumation, especially if families cooperate.
There are a few cases in which identification is not possible. An internal blast would leave perceptible traces
on the body.
m)
Judgment of Clyde C. Snow (doctor and forensic-anthropologist)
Since 1984 he has been called several times outside the United States,
to investigate mass disappearances or executions in Argentina, Bolivia, Chile,
Guatemala, El Salvador, Iraq, Kurdistan, and former Yugoslavia. Many of these
cases were even more difficult than El Frontón case because there was a list
of prisoners and in penal records there should have been physical descriptions,
fingerprints, dental evidence, etc. Somehow mummification makes identification
easier, in particular through fingerprints and skin scars. Statistically,
it is not possible for a doctor to have found 17 corpses among 96 presenting
bullet wounds and that the other two doctors have not found any. In a building
bigger than the Blue Pavilion corpses were removed and identified in two or
three weeks. If he had been called
to identify the corpses of El Frontón, first he would have gathered all the
information on the victims and afterwards he would have taken photographs
of the bodies in the places where they were found. Even seven months after
the incident, it would had been possible to identify more than 90 percent
of the bodies, and that even now these would be possible by gathering all
the data on fingerprints and tooth prints and, in some cases by exhuming the
bodies.
39.
At the request
of the Commission, the Court asked the State for some documents related to
the case, of which the State only provided some (supra para. 18).[4]
40.
The State submitted
two notices related to the juridical situation of Durand and Ugarte.[5]
41.
At the request
of the President, the Commission submitted a document as evidence, for a better
resolution. Such document gathered information related to the process on charges
of terrorism followed against Mr. Durand Ugarte and Ugarte Rivera and to the
habeas corpus recourse filed as
a result of the riot subduing.[6]
42.
The Commission
submitted a newspaper article attached to the brief besides the assumptions
of Article 43 of the Rules of Procedure.[7]
VI
TESTIMONIAL EVIDENCE
43.
At a public hearing, held on September 20, 1999, the Court listened to
the following witness statement, on behalf of the Inter-American Commission:
Testimony of
Virginia Ugarte Rivera, mother and sister of Nolberto Durand Ugarte and Gabriel
Pablo Ugarte Rivera, respectively.
Her
brother Gabriel Pablo was arrested in his apartment, on February 14, 1986
at 2:00 a.m. She never knew who was responsible for his detention. She found out when she found the house in a
complete mess and a neighbor told her how civil policemen had taken him away.
Neighbors were afraid of warning her because they had been threatened
by the captors. In her searching, she went to Tahuantisuyu police station, but she
was told that he was not there, and continued unsuccessfully looking for him
at Independencia, Cachitá, Rimac, Sixth and Breña police stations. When she came back to her house, on the same
day, her niece told her that policemen, some dressed in military uniforms
while others in civilian clothes, had taken his son Nolberto away in a white
truck, together with other persons around 11:00 a.m. while working as a salesman. She did not know where his son was until 8
days after his detention, precisely during an interview with Esther Moreno,
mayor of Independencia, only for being recommended to speak to the corresponding
mayor, who at the same time advised her to meet with Senator Genaro Ledezma.
The Senator gave her a letter for DINCOTE to look for them, and afterwards
he himself accompanied her. At that
moment, she knew about their whereabouts and 15 days later, she was able to
see them at DINCOTE; they were mistreated and with swollen and deformed faces
as a result of the beatings, according to what his son and brother told her. They stayed around 15 to 18 days at DINCOTE,
and then they were transferred to the Sixth Police Station, later to the Justice
Palace of Lima, and finally they were taken to El Frontón, at the end of February.
When she visited them on Saturdays and Sundays at the political prisoners'
section in El Frontón prison she, together with other relatives' prisoners
were threatened by the guards. Thanks
to the advice by the priest from her community, she was able to hire Doctor
Miguel Talavera as her relatives' attorney.
Two habeas corpus actions were filed to free
them. She found out on the radio about the uprisings in El Frontón on June
18, 1986. Once at Callao, many prisoners'
relatives were shouting
for them not to be killed, but they could see too much smoke on the island.
Around 10:00 a.m., the police and the army, wearing hoods, took away
the prisoners' relatives who were at Callao on trucks.
So she stayed until 3:00 or 4:00 p.m., but she did not know anything
about what had happened to her relatives in the incident.
She did not know about their relatives’ fate on the media.
Her attorney indicated that they were maybe taken to San Lorenzo or
that they were set free. They filed
an habeas corpus recourse before the Callao
Court. She looked for their names
in the list of deceased people during the riots, that were available at the
Palace of Justice, but she was not able to find them there. She went to the Central Morgue where corpses were taken after the
uprisings, but her relatives’ bodies were not there. Those at the Central Morgue were “all burned, head and hair burned
too, some of them were crushed and some destroyed”. She was not able to find them either among
the corpses at Huachipa cemetery where she looked among the dead bodies. None of the authorities gave her an explanation
about her relatives' fate. Their bodies
were never given to her and on the newspaper she found out that after the
riots her son and brother were declared judicially not guilty.
Later on, she suffered from a partial paralysis of her body and was
hospitalized for several months and stated that she was afraid for what could
happen to her after submitting her statement before the Court.
VII
EVIDENCE ASSESSMENT
44.
Once evidence described
was gathered, the Court shall determine the general criteria, most of them
developed by the jurisprudence of this Tribunal, about evidence appraisal
in this case.
45.
In an international
tribunal such as the Inter-American Court whose one of the main tasks is to
protect human rights, the proceedings had some peculiarities that differentiated
it from a national law process, being the latter less formal and more flexible
than this one, without disregarding legal certainy and process balance between
the parties.[8]
46.
On the other hand,
it is necessary to bear in mind how international jurisdiction of human rights
differs from penal justice and must not be confused with it. Whenever the States submit themselves before
the Court, they are never subjected to a criminal proceeding because the Court
does not punish liable parties for the violation of human rights. On the contrary, its function is to declare
that a human right has been violated to the detriment of some persons, to
protect the victim and to determine the reparation of damages caused by the
States submitted to the international responsibility resulting from said violation.[9]
47.
Besides direct
evidence, whether by testimony, documentary or by an expert, international
tribunals –as well as the internal ones- are entitled to ground their decisions
on circumstantial evidence, hints, and assumptions, whenever sound conclusions
can be reached about the facts subjected to an examination. To this regard, the Court has stated that
to exercise its jurisdictional functions,
to obtain and assess the necessary evidence in the decision making process
of the cases that could, under some circumstances, use both circumstantial
evidence, hints, and assumptions whenever sound conclusions could be reached
based on the facts.[10]
48.
Likewise, as pointed
out by the Court, appreciation evidence criteria before an international court
of human rights have a larger scope; because the international liability of
a State to determine the violation of rights of a person gives the court more
flexibility in evaluating relevant facts of the submitted evidence based on
logic rules and experience.[11]
49.
The Court must
evaluate documents and testimony submitted in the case.
50.
Concerning the
documentary evidence produced by the Commission and the State (supra para. 36 and 37), the Court acknowledges
the evidence value of the documents submitted that, besides that, they were
not objected or argued.
51.
This Court considers
the parties should provide the requested evidence to the Tribunal whether
documentary, testimony, by an expert or any other category. The State and the Commission should render
the legal probative elements required -as evidence for a better decision or
at the request of the party- so the Tribunal can have the largest amount possible
of judgment elements to be aware of the facts and to motivate further resolutions.
To this regard, it is mandatory to take into account that in human rights
violation the plaintiff may not have the evidence that could only be gathered
with State cooperation.[12]
52.
In this case, on
several occasions the State omitted to provide the requested documentation.
Therefore, the following documents were not available:
file processed on the charges of terrorism against Ugarte Rivera and
Durand Ugarte; decision of July 17, 1987, besides information about fact motives
and rights of said decision reflected in notices No. 544.98.INPE-CR-P from
the Ministry of Justice and No. 635.98.INPE-CR-P from the Ministry of Justice
on September 18, 1998 and October 31, 1998, respectively. Under those circumstances,
Peru disregarded handing relevant documentation to the Tribunal for fact acknowledgement.
53.
Virginia Ugarte
Rivera testimony is only admitted as long as it agrees with the intention
of the proposed interrogatory by the Commission and shall be assessed within
the group of evidence in this proceeding, according to the principle of “reasoned
judgment”.
54.
Evidence resulting
from Neira Alegría Case, added to evidence in this case (supra para. 38) shall be similarly assessed within the context of
the corresponding evidence to these proceeding and in keeping with the rules
of “reasoned judgment”.
55.
Documentary evidence produced by the Commission, at the request of the
Court, as evidence for a better decision, shall be evaluated in similar terms
mentioned in previous paragraphs.
56.
Regarding notices
No. 544.98.INPE-CR-P and No. 635.98.INPE-CR-P from the Ministry of Justice,
of September 18, 1998 and October 31, 1998 respectively, that were untimely
submitted by the State, the Court considers them useful documentation to render
information about the proceeding of terrorism followed against Durand Ugarte
and Ugarte Rivera in Peru, and incorporated into the evidence of the present
case, in compliance with Article 44 (1) of the Rules of Procedure, and will
be assessed within the context of the whole evidence in the present case,
and in accordance with the rules of “reasoned judgment”.
57.
Considerations
stated in the previous paragraph are also applicable to the newspaper article
untimely submitted by the Commission, on January 22, 1997, containing information
related to Durand Ugarte and Ugarte Rivera situation.
58.
Peru Political
Constitution of 1979, the Organic Law of Military Justice (Executive Order
No. 23201) and the Code of Military Justice (Executive Order No. 23214) are
considered useful for the resolution of this case, therefore added to probative
antecedent as stipulated by Article 44(1) of the Rules of Procedure.[13]
VIII
PROVEN FACTS
59.
Based on document examination and witness statement, as well as declarations
stated by the State and the Commission, in the development of proceedings,
this Court considers the following facts as proven:
a. on
February 14 and 15, 1986, Nolberto Durand Ugarte and Gabriel Pablo Ugarte
Rivera were detained respectively by members of the Department Against Terrorism
-DIRCOTE- under suspicion of having participated in acts of terrorism;[14]
b. Nolberto
Durand Ugarte and Gabriel Pablo Ugarte Rivera were detained without any warrant
or having been found guilty of a flagrant felony;[15]
c. Mr.
Gabriel Pablo Ugarte Rivera was denied the right to have a defense attorney
because he was forced to expressly give up this right;[16]
d. once
police investigation went through, Nolberto Durand Ugarte and Gabriel Pablo
Ugarte Rivera were sent to the 39 Instruction Court of Lima, on March 4, 1986,
when a criminal proceeding was started for the alleged crime of terrorism,
and file No. 83-86 was opened. Durand
Ugarte and Ugarte Rivera were transferred to El Frontón by means of a warrant.[17]
e. on
February 25 and 26, 1986, Virginia Ugarte Rivera filed two habeas corpus recourses before the 46th Instruction Judicial Court
of Lima, one on behalf of her son Nolberto Ugarte and the other of her brother
Gabriel Pablo Ugarte Rivera, wherein she asked for the protection of the physical
integrity of her relatives, free access to a defense attorney, and immediate
freedom of the detainees. Said recourses
were declared groundless.[18]
f. on
June 18, 1986 simultaneous uprisings took place at three penal centers of
Lima: the Social Re-Adaptation Center
-CRAS- "Santa Bárbara", the Social Re-Adaptation Center -CRAS- San
Pedro (former "Lurigancho"), and the Blue Pavilion from San Juan
Bautista CRAS, (former El Frontón), where Nolberto Durand Ugarte and Gabriel
Pablo Ugarte Rivera were detained;[19]
g. prisoners
took over the pavilions, after taking as hostages some of the members of the
Republican Guard and some of the weapons they had. Under those circumstances, negotiations developed between the penitentiary
authorities in coordination with competent judicial authorities and rioters
to know their claims;[20]
h. the
President of the Republic of Peru summoned the Council of Ministers to an
extraordinary session on June 18, 1986, also attended the Joint Command of
the Armed Forces. This meeting was
held within the juridical framework pointed out by Executive Order No. 012-86-IN,
dated June 2, 1986, which "extende[d] the Emergency State... in the Province
of Lima and Constitutional Province of Callao [and decreed that] in those
provinces internal order should be controlled by the Armed Forces. In this meeting it was decided that after the
intervention of the Peace Commission to obtain rioters' surrender, the Joint
Command of the Armed Forces should be ordered to subdue the uprisings.[21]
i. on
June 19, 1986, the President of the Republic issued Supreme Order No. 006-86-JUS,
wherein it declared the above mentioned prisons as "restricted military
zone" and formally, they remained under the jurisdiction of the Joint
Command of the Armed Forces, while emergency state extended in compliance
with Supreme Order No. 012-86-IN. This
standard forbade the entrance of civilian and judicial authorities to El Frontón,
giving to the Navy of Peru absolute control of the prison. Said order was published on the next day in
the official newspaper, on June 20, 1986, with the explicit indication of
being in force since its issuing (on June 19, 1986) even though military operations
performed on June 18 and 19 were over and the riot was controlled;[22]
j. the
Navy and the Republican Guard, under the Joint Command, were entrusted with
subduing the riots at El Frontón. Military operations started at 3:00 on June
19. The Special Operation Task Force
(FOES) carried out the demolition of the Blue Pavilion causing great number
of deaths and wounded prisoners. The
Blue Pavilion was an isolated area of the prison, where the events took place.
There was an evident disproportion between the riots danger and actions taken
to subdue it;[23]
k. Supreme
Order No. 006-86-JUS allowed that exclusive military court to get knowledge
of the events resulting from the subduing of the riots, not excluding the
common jurisdiction. On August 27,
1986, the Supreme Court settled the competence debate stating that corresponding
knowledge of the process should be placed on the military court.[24]
l. the
2nd Navy Permanent Instruction Court started a proceeding to determine the
possible penal responsibility of Navy's members who subdued the uprisings. On June 6, 1987 the cause was acquitted, and
it was determined that there was no responsibility among the defendants; such
decision was confirmed on the 16 of the same month and year by the Permanent
Council of the Navy. By decision of
the Supreme Council of Military Justice the proceeding was reopened to implement
some missing proceedings, none of them had any relationship with the identification
of the detainees. It definitively
concluded on July 20, 1989 reaching the decision that there was no responsibility
among those who subdued the riots;[25]
ll. according
to the proceeding discussed in the military court, 111 persons died (bone
remains of 14 persons and 97 corpses) and 34 survivors who surrendered, amounting
to a total of 145 persons, while the unofficial list handed by the President
of the National Penitentiary Council included 152 inmates before the riots.
Removal of debris was carried out from June 20, 1986 to March 31, 1987;[26]
m. identification
of bodies was not carried out diligently enough after the riot subduing, and
no help was requested from victims' relatives to this end. Out of 97 corpses
only 7 were identified after autopsies. According to many protocols of autopsies
crushing and multiple traumas appeared as the causes of inmates' death. Nolberto
Durand Ugarte and Gabriel Pablo Ugarte Rivera are not included in the list
of survivors, and their corpses were never identified;[27]
n. regarding
the uprisings at El Frontón and the other two prisons, the National Congress
of Peru designated an investigating commission, which was formally founded
on August 7, 1987. In December of that year, a report by majority and another
by minority were submitted to the Congress by this commission; [28]
ñ. in
keeping with the Organic Law of the
Peruvian Military Justice (Executive Order No. 23.201), "Military
Justice Tribunals represent an outstanding body of the Armed Institutes".
Judges belonging to the Exclusive Military Court are, at the same time,
members assigned to active service according to Articles 6, 22, and 31 of
said Executive Order. Besides, it is mandatory to be an attorney to be a member
of the military court, with the exception of those who were part of the Military
Juridical Body;[29]
o. on June 26, 1986 Virginia Ugarte filed an habeas corpus recourse before the First
Instruction Judicial Court of Callao on behalf of her son Nolberto Durand
Ugarte and her brother Gabriel Pablo Ugarte Rivera, asking for the investigation
and clarification of their whereabouts, as well as for respecting the following
rights: life, personal integrity, and communication access.[30]
p. habeas corpus stated the director of the
National Penitentiary Institute and the San Juan Bautista CRAS director (Former
El Frontón) as liable parties and in its proceedings the followings measures
were adopted:
i) on
June 27, 1986 the First Instruction Court of Callao declared such recourse
as unfounded;
ii) on
July 15, 1986, the First Correctional Tribunal of the Supreme Court of Callao confirmed the judgment;
iii) on
August 13, 1986 the First Penal Hall of the Supreme Court declared "no
nullity" in the judgment issued by the Correctional Tribunal that confirmed
the verdict of June 27, 1986;
iv) on
October 28, 1986 the Constitutional Guarantees Tribunal “declared that the
Supreme Court of Justice decision unchanged, and that the right of the plaintiff
to restate the action was prevailing";[31]
q. Supreme
Orders No. 012-86-IN of June 2, 1986, wherein the State of Emergency was "extended
in the province of Lima and in the Constitutional Province of Callao [and
decreed internal order" under the control of the Armed Forces] in said
provinces, and No. 006-86 JUS of June 19, 1986, wherein
it was declared restricted military
zone under the jurisdiction and competence of the Joint Command of the Armed
Forces in the Penitentiary facilities of "San Juan Bautista" (former
El Frontón), "San Pedro"
(former Lurigancho), and “Santa Bárbara” of Callao while the state
of emergency is in force by means of Supreme Order No. 012-86-IN of June 2,
1986.
they did not suspend the habeas corpus recourse explicitly, but it was inefficient due to a
prohibition stating that civil judges were not allowed to enter the prisons
because they were restricted military zones; and because stipulations prevented
the investigation and determination of the whereabouts of the people who benefited
from the filed recourse [32];
r. Nolberto
Durand Ugarte and Gabriel Ugarte Rivera were exempted from any responsibility
and ordered to set free. However, such an order was void at that moment because
those persons were already missing, a situation that still continues to the
present time.[33]
IX
PREVIOUS
CONSIDERATIONS ON THE MERITS
60.
In its final arguments
the State declared that the Commission and the Court made an "evident
mistake" for not having gathered the present proceedings in Neira Alegría
et al Case (No. 10.078), which determines that "the first one to
qualify, prejudges on another case because of similar facts".
So, "[t]his pre-judgment determines the impossibility [that] the
same affiliated person issues judgment again, because it only adjusted to
previous criteria". Likewise,
it stated how in Neira Alegría Case, "There was not an individual analysis
of how allegedly human rights were violated by those responsible for opening
said case". It added that "the
Inter-American Commission in the present case [has] stopped being a local
impartial, objective and deliberating instance; thus the Inter-American Court,
when assessing this omission, has also stopped being an impartial, objective,
controversy, and judging instance."
Consequently, the Court when stating the merits of
this case, would be violating the principle non
bis in idem.
61.
The Court considers that this issue has been solved in the judgment about
the preliminary objections issued on May 18, 1999, which is definitive and
unappealable, so it underestimates the argument.
X
VIOLATION OF ARTICLE 4(1)
RIGHT TO
LIFE
62.
Regarding the violation of Article 4(1) of the Convention, the Commission
stated that:
a) Nolberto
Durand Ugarte and Gabriel Pablo Ugarte Rivera were detained at El Frontón
prison on June 18, 1986 after the riot was subdued, as stated in the list
submitted by the President of the Penitentiary National Council to the Instructional
Judge of the 21st Court of Lima. This
can be confirmed in the list handed by the Head of Identification of the Penal
to the 2nd Permanent Instruction Court of the Navy and in the testimony of
relatives and attorneys;
b) after
subduing the riots, Durand Ugarte and Ugarte Rivera were not under control
of authorities, and their names did not appear in the list of survivors, so
one can presume that as a result of the bombings at the prison and under what
was established in the autopsies done to the non-identified bodies, said persons
died as a result of the crushing.
c) "even
though the State had the right and duty to subdue the riot, its suffocation
was carried out by a disproportionate use of force [… making] the State responsible
for the arbitrary life privation of those persons who died because of demolition
of San Juan Bautista prison and, in particular, due to the violation of the
right to life to the detriment of Nolberto Durand Ugarte and Gabriel [Pablo]
Ugarte Rivera";
d) there
was a Navy decision of Peru and of the police forces to deal "in any
possible way" with the riots and the rioters. The kind of the military
attack used against the Blue Pavilion of El Frontón was absolutely out of
proportion in relation to the danger caused by the riots; therefore; its demolition
was ordered being aware that maybe some inmates had surrendered, been wounded,
or hidden in the building; and
e) violations
of the right to life by the members of the Peruvian Navy against the inmates
which were at El Frontón, took place in three different ways: as a consequence
of the disproportionate means used to re-establish the order at the prison;
due to summary executions by members of the Navy of the Peru, after surrendering,
and through the demolition of the prison´s Blue Pavilion.
63.
The State stated that:
a) the
Commission, in all alleged arguments, only offers insufficient statements
and seeks to transfer to the State the burden of proof to impair allegations
lacking evidence content;
b) the
riots subduing was performed by the Navy of Peru, and it was implemented in
different stages, bearing in mind that
once the peaceful
preservation methods were exhausted, it was needed to gradually reduce the
distribution space of the prison, to the extent of keeping inmates in a tractable
and reduced space, [...] The purpose
was to have them (all of them) repressed but mainly alive and scared.
There was never disproportion of means employed,
but an execution of a preconceived scheme to subdue the riots demanding weapons
and members of the Navy. Operations
were implemented within the legal and conventional framework that empowers
every State to defend the principle of authority and security of its citizens;
c) the
existence of 28 safe and sound inmates after the riots’ crushing operations
and the fact that on the following days five inmates showed up from the debris,
who were helped and later on imprisoned at the penitentiary center "Castro
Castro," ratifies the argument that under all circumstances the life
and physical integrity of inmates who surrendered during and after the subduing
were respected.; and
d) the
accusation stating that riot subduing entailed an evident disproportion between
the danger it supposed and the actions taken to subdue it, proves to be false
due to the following reasons: the
struggle against subversion, during those years was waged at different levels,
being a clash between elements enforcing authorities and terrorists the most
ostensible; citizens were experiencing stressing times, terrorist leaders
showed an "unbelievable cruelty and ferocity” which demanded the organization
of the nation and of its defense mechanisms to face said situation; "intervened"
or imprisoned terrorists in the penitentiary transformed it into a "nobody
zone", where the authority principle was totally disregarded.
Due to this context, when extreme cases such as the above-mentioned
take place, when civil forces overflow, then it is necessary to call for the
support of the armed forces.
*
* *
64.
Article 4 of the Convention states, that
1.
Every
person has the right to have his life respected. This right shall be protected
by law and, in general, from the moment of conception. No one shall be arbitrarily
deprived of his life.
65.
Regarding the State'
argument on the burden of proof, this Court has said that "in proceedings
on violations of human rights, the defense of the State can not lean on the
plaintiff impossibility to gather evidence that, in many cases, can not be
obtained without the cooperation of the State"[34]
and, in particular has stated "the State has the control of the means
to clarify the facts that took place in its territory".[35] In that sense, the Court considers that in
this case, it is not the Inter-American Commission' responsibility to prove
the whereabouts of Durand Ugarte and Ugarte Rivera, because penitentiaries
and investigations were under the exclusive control of the State. As a consequence, the burden of proof falls
upon the State.
66.
According to the
proven facts, Durand Ugarte and Ugarte Rivera were detained by charges of
terrorism in the Blue Pavilion at El Frontón penitentiary center, on June
18, 1986 (supra para. 59. f.).
67.
To investigate
the facts related to the uprisings subduing, the Congress of the Republic
of Peru designated an Investigating Commission to carry out the task and that
submitted two reports one by majority, another by minority. In the conclusion
of the report by majority, in paragraph 14, it is stated that "based
on the results it is concluded; however, that there was a disproportionate
use of weapons. Final demolition after surrendering occurred at 14:30 on the
19th , would not have any logic explanation and consequently would
have been unjustified". Similarly,
the report by minority stated in the section related to some previous details,
that
4. [i]t is proven that the government
when not fulfilling its obligation to protect human life, gave orders which
brought about the consequences of an unjustified toll.
a. the decision to subdue the riots through military force, in the
most decisive and peremptory period, meant to seriously and unnecessarily
risk the life of hostages and inmates [and]
b. [m]ilitary force used was disproportionate in relation to the existing
danger and the different implemented ways to attack did not reveal any precaution
to reduce the human costs of the crushing.
68.
Based on the above
and in compliance with Court witness and expert statements, it has been proven
that the Blue Pavilion was demolished by the Peruvian Navy forces. They resorted to a disproportionate use of
force in relation to the supposedly danger that riot represented (supra para. 59. j), said situation caused
the deaths of many of the detainees by crushing, according to the corresponding
autopsies. Likewise, it was possible
to determine as stated in the Congress report by minority that there was no
interest by the corresponding authorities to rescue . the detainees who were
alive after the demolition. Besides,
there was a lack of arrangements to identify the corpses taking into consideration
that only a few of them were identified in the following days after the conflict
was concluded, and the corpses recovering process lasted around nine months.
69.
This Court has stated on other occasions that
[u]ndoubtedly, the State has the right and duty to guarantee its own security.
It is also out of discussion that every society suffers from infraction upon
its legal order. However, despite the seriousness of certain actions by inmates
and their responsibility for some felonies, it is not admissible that power
can be exerted in such a limitless way or that the State can use any proceedings
to reach its objectives, without respecting law and morality. No State activity
can be grounded on disregarding human dignity.[36]
70.
In spite of accepting the possible detainees' responsibility for committing
serious crimes besides and being armed, while in the Blue Pavilion of El Frontón
prison, these facts
are far from constituting [...]
sufficient elements to justify the amount of force used in this and in other
rioted prisons and that it was understood like a political clash between the
Government and Sendero Luminoso true or alleged terrorists [...] which probably
led to Pavilion demolition, with all of its consequences, including the deaths of detainees who eventually had
ended up surrendering and a clear disregard to look for survivors and afterwards
rescuing corpses. [37]
71.
Based on the circumstances
that surrounded the riots’ subduing at El Frontón, mainly regarding the disproportionate
use of force by Peruvian Navy and the fact that for 14 years the whereabouts
of Nolberto Ugarte and Gabriel Pablo Ugarte Rivera has been unknown, it is
possible to conclude that their lives were arbitrarily deprived by Peruvian
authorities in violation of Article 4 of the Convention.[38]
72.
As a consequence,
the Court concludes that the State violated, to the detriment of Nolberto
Durand Ugarte and Gabriel Ugarte Rivera, Article 4(1) of the Convention.
XI
ARTICLE 5(2)
RIGHT TO HUMANE TREATMENT
73.
Regarding the violation of Article 5(2) of the Convention, the Commission
stated that:
a) Peru
is responsible for the forced disappearance of Nolberto Durand Ugarte and
Gabriel Pablo Ugarte Rivera and, in order to establish grounds for their argument,
it referred to what it was stated, inter alia, in the Inter-American Convention on Forced Disappearance
of People, in the Statement on Protection of all People against Forced Disappearances
approved by the UN General Assembly and the UN Task Force on Forced or Involuntary
Disappearances;
b) it
is fully proven that Nolberto Durand Ugarte and Gabriel Pablo Ugarte Rivera
were at El Fronton prison on the day of the events, because their names appeared
in the official list of the prison and their relatives had visited them;
c) Mrs.
Virginia Ugarte Rivera filed on June 26, 1986 an habeas corpus recourse on behalf of her son and brother. Said recourse
was the object of several petitions and concluded on October 28, of 1986 when
the Court of Constitutional Guarantees stated as inalterable the decision
of the Supreme Court of Justice which had sustained the unlawfulness of the
habeas corpus;
d) their
relatives lost communication with Durand Ugarte and Ugarte Rivera starting
from the participation of Navy forces and to this date their whereabouts is
unknown; therefore, they have disappeared. It was added that there was no
possibility of escape; and
e) in
the final arguments the forced disappearance (which includes mistreatment,
humiliation, and torture suffered by the detainees) is related to the violation
of the right to humane treatment. According to above mentioned it is relevant
to state that the forced disappearance of Durand Ugarte and Ugarte Rivera,
by State agents, violates Article 5(2) of the Inter-American Convention.
74.
The State did not
explicitly refer to Article 5(2) of the Convention, but mentioned that under
all circumstances life and physical integrity of the inmates who surrendered
during and after the riots were respected.
*
* *
75.
Article 5 of the
Inter-American Convention, states that:
1.
Every
person has the right to have his physical, mental, and moral integrity respected.
2.
No
one shall be subjected to torture or to cruel, inhuman, or degrading punishment
or treatment. All persons deprived of their liberty shall be treated with
respect for the inherent dignity of the human person.
76.
The Court considers
that the fact that the violation of Article 5(2) of the Convention was not
discussed in the application brief of the Commission does not prevent if from
being examined by the Tribunal, according to the general principle of iura novit curia right, "used repeatedly
by the international jurisdiction in the sense that a judge is entitled and
even has the obligation to implement the corresponding legal dispositions
in a proceeding, even when the parties are not explicitly invoked”.[39]
77.
As stated, the
Commission asked the Court to declare that forced disappearance of Durand
Ugarte and Ugarte Rivera by the Peruvian State agents also produced the violation
of Article 5(2) of the Convention. This
Court observes that effectively Durand Ugarte and Ugarte Rivera were imprisoned
in the Blue Pavilion in El Frontón and were in the official penitentiary list,
and that after the riots their relatives were not aware of their whereabouts,
and State authorities refused to render information thereof, as well as to
establish the identity of the missing persons, despite they were under their
custody.
78.
The Court stated,
as has already done in another case, that
if someone could understand that
when human life is deprived, it also damages humane treatment, this is not
the sense [of Article 5] used by the Convention, in essence, nobody should
be exposed to torture, suffering, or cruel, inhumane, or degrading treatment,
and every person deprived from liberty should be treated with due respect
regarding the inherent dignity of mankind.[40]
79.
In this case it
is not proven that Nolberto Durand Ugarte and Gabriel Pablo Ugarte Rivera
were exposed to mistreatment or that their dignity was hurt by Peruvian authorities
while they were detained at El Frontón penitentiary. The Court reached an identical conclusion regarding Neira Alegría
Case, where same arguments like those in this application were stated. It is evident that there was excessive use
of force to subdue the riot, and this constitutes vulnerability of the principle
on proportion that should exist between the situation to be solved and the
means employed to this end (supra
paras. 67, 68, and 70). Based on this
disproportion, there is no reason to suppose torture or cruel, inhumane, or
degrading treatment, notions with their own juridical content that are not
inferred by a necessary and automatic arbitrary way of deprivation of life,
even in aggravating circumstances such as the current situations.
80.
As a result, this
Court considers that it has not been
proven yet that The State violated Article 5(2) of the Inter-American Convention
to the detriment of Nolberto Durand Ugarte and Gabriel Pablo Ugarte Rivera.
XII
VIOLATION
OF ARTICLES 7(1) AND 7(5)
RIGHT TO
PERSONAL FREEDOM
81.
Regarding the violation
of Articles 7(1) and 7(5) of the Convention, the Commission stated that on
February 14 and 15, 1986, Nolberto Durand Ugarte and Gabriel Pablo Ugarte
Rivera, respectively, were detained by some members of the Directorship against
Terrorism, without a warrant or having found them guilty of a flagrant felony,
under suspicion of having participated in terrorists acts.
82.
On the other hand,
the State stated that related subversion issue investigation involved a task
of intelligentsia including a follow-up to find out about other terrorists
and to identify higher-ranking persons within the corresponding organizations. Thus, it considered as arbitrary that the Commission
demanded
mediation by a warrant at such level
implies the exhaustion of previous stages of investigation at intelligentsia,
police and Attorney General levels in which statement of alleged author must
be disregarded. To this end the complaint shall become formal without the
inclusion of this important element of investigation and instruction to be
later opened with the detention order to present the judicial order, just
after the possibility of interceding the one involved [...]
83.
Article 7 of the Inter-American Convention states that:
1.
Every
person has the right to personal liberty and security
[...]
4.
Any
person detained shall be brought promptly before a judge or other officer
authorized by law to exercise judicial power and shall be entitled to trial
within a reasonable time or to be released without prejudice to the continuation
of the proceedings. His release may be subject to guarantees to assure his
appearance for trial.
84.
The Court considers
that even when violation of Articles 7(1) and 7(5) of the Convention was not
reflected in the application of the Commission, this does not prevent it from
being stated before the Court, if based on the result of proven facts indicates
that such violation was indeed produced.
As a consequence, the Tribunal will analyze the way the capture was
carried out, and how this lasted until the moment detainees were taken before
a judicial authority.
85.
In this case, as
stated by the Commission, Durand Ugarte and Ugarte Rivera were detained by
members of the police without a warrant or having been found guilty of any
felony, and they remained isolated for eight days, according to Mrs. Virginia
Ugarte Rivera statement before the Court.
To this regard, the Tribunal has said that nobody could be deprived
of personal liberty "but for causes, cases or circumstances explicitly
reflected in the law (material aspect), and strictly subjected to proceedings
objectively defined thereof (formal aspect)”.[41]
86.
Mr. Nolberto Durand
Ugarte detention took place on February 14, 1986 and Gabriel Pablo Ugarte
Rivera’s on the 15thon the same month and year. Both were taken to the corresponding
judicial agency on March 4, 1986, such date has been taken for granted because
the criminal proceeding was started on that date (supra para. 59.d) and because there was
not any denying documentation submitted by the State.
87.
The Court states
that Durand Ugarte and Ugarte Rivera were detained by members of the Directorship
against Terrorism, without intervention of flagrance or warrant.
The State stated that the detention was not arbitrary. The Court, through
a Secretariat note CDH-10 009/178 of June 25, 1999 by President instructions,
asked the State to send the file opened against Nolberto Ugarte Durand and
Gabriel Pablo Ugarte Rivera for charges on terrorism. But the State never
provided this note that could have proven the existence of a detention warrant
and other relevant elements to the determination of the related fact thereof.
When it was referred to the facts it was done in an ambiguous way because
juridical standard was not detailed that could be used as grounds for said
detention.
88.
As has occurred
in other proceedings before the Court, this has to express its conclusions
"disregarding the valuable help from a more active participation of the
State, which would have meant, to adequately provide the defense”. [42]
89.
Thus, the Court
has considered as true the following facts
by virtue of the principle of [...]
silence from the plaintiff or an elusive or ambiguous reply can be interpreted
as acceptance of the facts of the application, at least while the opposite
would not appear in the warrant or from the legal conviction.[43]
90.
The Court points out that Article 2 paragraph 20 literal g of the Political
Constitution of Peru of 1979, then in force, states that:
No one could be detained but by
a written commandment and motivated by the judge or by police authorities
in flagrant felony.
In every case the detainee must
be available, within 24 hours or distance term, to the corresponding court.
Terrorism, espionage, and illegal
drug traffic cases in which preventive detention can be carried out by police
authorities of the presumed liable parties, in a term not over fifteen natural
days, rendering information to State Attorney’s Office and to the judge, who
can assume jurisdiction before due date.
91.
The Court considers
that even though the facts stated in the application regarding the fact that
Nolberto Durand and Gabriel Pablo Ugarte Rivera were detained without a warrant
or having been found guilty of flagrant felony, or lessened by the State also,
the Peruvian Constitution itself exempted cases of terrorism from this rule.
On the other hand, and regarding the accused detention term, it is
convenient to observe that the quoted constitutional notion only authorized
detention by a term not over 15 days with the obligation to render an account
to the State Attorney’s Office and the corresponding jurisdictional agency.
As has been previously stated (supra
para. 59.d and 86), Mr. Durand Ugarte was presented before the competent jurisdictional
agency on March 4, 1986, that is, 17 days after his detention.
Mr. Ugarte Rivera on that same day, that is, 18 days after his detention,
both cases after elapsed the 15 days term allowed by the Political Constitution
of Peru and, as a result, violating Article 7(5) of the Convention.
92.
As a consequence,
the Court states that the State violated, to the detriment of Nolberto Durand
Ugarte and Gabriel Pablo Ugarte Rivera, Articles 7(1) and 7(5) of the American
Convention.
XIII
VIOLATION OF ARTICLES 7(6) AND 25(1)
JUDICIAL PROTECTION
93.
Regarding the violation of Articles 7(6) and 25(1) of the Convention, the
Commission stated that:
a) the
Court has interpreted Article 25 of the Convention to guarantee, inter alia, a simple and prompt recourse
or any other effective recourse for the protection of the fundamental rights
of the person;
b) the
right to effective tutorship includes habeas
corpus or freedom protection, while allowing that a different authority
from the one ordering and implementing deprivation of liberty, to determine
detention legality. For a recourse
to become effective, it must be ideal not only to solve alleged violation,
but it must not also be illusory. In
a concrete case, even when habeas corpus
was an ideal recourse for the judicial authority to investigate and be aware
of the situation of the missing people, Peruvian tribunals were limited to
establish legality of detention and disregarded their obligation to inform
victims' whereabouts, which was the fundamental objective of the recourse
promoted by Mrs. Ugarte Rivera;
c) Article
7(6) the Convention guarantees the access to this kind of recourses to protect
the right to personal freedom and Article 27(2) of the Convention, regarding
suspension of guarantees in states of emergency, it excludes the possibility
for "the indispensable judicial guarantees" to be ineffective for
the protection of the non abolished rights among which there are the habeas corpus and protection proceedings;
d) regarding
the limitation of access to a simple and rapid recourse, in the case of Nolberto
Durand Ugarte and Gabriel Pablo Ugarte Rivera, it offers an identical situation
to Neira Alegria Case. In the latter, the Court stated that the State had
violated "Articles 7(6) and 27(2) of the Convention; under the implementation
of the Supreme Order No. 012-86-IN and Supreme Order No. 006-86-JUS of June
2 and 6 [rectius 19], 1986, who
declared the state of emergency in Lima and Callao provinces and a Restricted
Military Zone in three penitentiaries, among them in San Juan Bautista".
To this regard, the Court has stated that
even though such orders did not
suspend an habeas corpus proceeding
or recourse [...] in fact, the fulfillment of both orders produced the inefficiency
of the quoted protective instrument thus its suspension is to the detriment
of alleged victims. Habeas corpus
was the ideal proceeding for the judicial authority to investigate and find
out about the whereabouts of three persons to which this case refers,[44]
and
e) the
Court must clarify, in this case, that the State is responsible for the violation
of Articles 7(6), 25(1), and 27(2) of the Convention.
94.
The Stated said that:
a)
habeas corpus, as conceived in various legislations, "regulates cases of ARBITRARY
DETENTION that Durand Ugarte and Ugarte Rivera could resort to" because
motives of their detention have been detailed in the corresponding investigation
and had a warrant to proceed to their reclusion, so qualifications of jurisdictional
order, in these cases, turned out to be proper for a legal framework; and
b)
since the relatives
of Durand Ugarte and Ugarte Rivera have not exercised the proceedings of alleged
death statement or since the beginning of legal succession has not been provided
for to exercise the compensation which the legal Peruvian order acknowledges,
the internal recourse has not been exhausted, and this determines a lack of
competence of the Court.
*
* *
95.
Article 25(1) of the American Convention stipulates that:
Everyone has the right to simple
and prompt recourse, or any other effective recourse, to a competent court
or tribunal for protection against acts that violate his fundamental rights
recognized by the constitution or laws of the state concerned or by this Convention,
even though such violation may have been committed by persons acting in the
course of their official duties.
96.
Article 7(6) of the American Convention determines that:
Anyone who is deprived of his liberty
shall be entitled to recourse to a competent court, in order that the court
may decide without delay on the lawfulness of his arrest or detention and
order his release if the arrest or detention is unlawful. In States Parties
whose laws provide that anyone who believes himself to be threatened with
deprivation of his liberty is entitled to recourse to a competent court in
order that it may decide on the lawfulness of such threat, this remedy may
not be restricted or abolished. The interested party or another person in
his behalf is entitled to seek these remedies.
97.
On the other hand, Article 27 of the Convention stated that:
1. In time of war, public danger, or
other emergency that threatens the independence or security of a State Party,
it may take measures derogating from its obligations under the present Convention
to the extent and for the period of time strictly required by the exigencies
of the situation, provided that such measures are not inconsistent with its
other obligations under international law and do not involve discrimination
on the ground of race, color, sex, language, religion, or social origin.
2. The foregoing provision does not authorize
any suspension of the following Articles: Article 3 (Right to Juridical Personality), Article 4 (Right to
Life), Article 5 (Right to Humane Treatment), Article 6 (Freedom from Slavery),
Article 9 (Freedom from Ex Post Facto Laws), Article 12 (Freedom of Conscience
and Religion), Article 17 (Rights of the Family), Article 18 (Right to a Name),
Article 19 (Rights of the Child), Article 20 (Right to Nationality), and Article
23 (Right to Participate in Government), or of the judicial guarantees essential
for the protection of said rights.
98.
During El Frontón
mutiny, Supreme Orders No. 012-86-IN and No. 006-86-JUS on June 2 and 19,
1986, respectively, were implemented in Peru, declaring the extension of the
state of emergency in Lima and Callao provinces, and establishing them a Restricted
Military Zone under of the Joint Command of the Armed Forces control, three
penitentiaries, among them El Frontón, while the state of emergency lasted.
99.
Regarding suspension
of guarantees or state of emergency declarations in time of war, public danger,
or other emergency cases, it is important to refer to Article 27 of the Inter-American
Convention. The Court has stated that if suspension of guarantees has been
duly decreed, and that "all action of public powers surpassing the limits
that must be stated in the dispositions stating the state of exemption is
illegal".[45] The limitations imposed to the obligations
of the State respond to “the general requirement that in any state of emergency
there be appropriate means to control the measures taken, so that they are
proportionate to the needs and do not exceed to strict limits imposed by the
Convention or derived from it”.[46]
100.
Said supreme orders
did not suspend, in an expressed way, the habeas
corpus recourse stated by Article 7(6) of the American Convention, but
the State fulfillment of said decrees produced, in fact, the inefficiency
of said recourse, by virtue of ordinary judges, cannot be allowed to enter
the penitentiaries for being restricted military zones, and such dispositions
prevent investigations and determination of the whereabouts of persons in
favor of which the recourse has been filed.
In this case, habeas corpus
was the ideal proceedings that could be effective, thus enabling judicial
authority to investigate and find out about the whereabouts of Durand Ugarte
and Ugarte Rivera. State allegation
is not valid in the sense that it acknowledges the internal legal order, such
as a statement of alleged death or the opening of the corresponding legal
succession. These resources served other purposes, related to the successive
regime, and "not the clarification
of a disappearance violating human rights".[47]
101.
Likewise, the Court
has reiterated every person has the right to a simple and prompt recourse
or any other effective recourse before a competent judge or tribunal for protection
against acts that violate his fundamental rights.
it constitutes one of the fundamental
pillars, not only of the American Convention but also of the Government of
Laws itself in a democratic society in the sense of the convention [...]
Article 25 is closely related to the general obligation of Article
1(1) of the American Convention by attributing protection functions to the
internal law of States Parties.[48]
102.
Besides, the Court
has stated that
the inexistence of an effective
recourse against violations of the acknowledged rights by the Convention constitutes
a transgression thereof by the State Party in which such situation took place.
It must be pointed out that, in that sense, for the existence of said recourse,
it is not sufficient to be anticipated by the Constitution or the law or shall
be formally accepted, but it should be really ideal to determine whether a
violation of human rights had been committed and do whatever it takes to solve
it.[49]
103.
The above is not
only valid under normal circumstances, but also under particular circumstances.
Within the unrepealable judicial guarantees, habeas
corpus represents the best means "to control the respect of life
and humane treatment, to avoid his disappearance or indetermination of his
detention place, as well as to protect someone against cruel, inhumane, or
degrading punishment or treatment".[50]
104.
Habeas corpus recourse, filed by Mrs.Virginia Ugarte Rivera on June 26, 1986 on behalf
of Nolberto Durand Ugarte and Gabriel Pablo Ugarte Rivera identifying the
director of the National Penitentiary Institute and the director of El Frontón
prison as responsible, was stated on the grounds of not knowing the whereabouts
of her son and brother since the subduing of the riots, arguing they could
have been kidnapped or killed. This
recourse was declared baseless on June 27, 1986, due to judge consideration
that beneficiaries were processed and detained under orders stemming from
regular proceedings, opened on March 4, 1986 by charge on terrorism, within
instruction No. 83-86 before the 39th Court of Instruction of Lima. Besides
it was taken into account that, according to the minute of June 18, 1986 issued
by the director of El Frontón prison, such official received the order to
leave the situation in the hands of the Joint Command of the Armed Forces.
105.
According to what
it was stated, on July 15, 1986 the First Correctional Tribunal of the Superior
Court of Justice of Callao issued liberty deprivation imposed on Nolberto
Durand Ugarte and Gabriel Pablo Ugarte Rivera "to make mention to a detention
warrant issued within the proceeding on charges of terrorism" confirmed
that the decision was appealed and considered the habeas corpus recourse on behalf of said
persons baseless. On August 13, 1986
the First Hall of the Penitentiary of the Supreme Court stated "no nullity"
of the application issued by the Correctional Tribunal. Finally, on October
28, 1986 the Constitutional Tribunal of Guarantees, in view of the recourse
of nullification filed, declared the decision of the Supreme Court of Justice
“unalterable".
106.
The Court has interpreted
Articles 7(6) and 27(2) of the Convention. In advisory opinion OC-8 of January 30, 1987
it has sustained that "habeas corpus
and protection proceedings are those judicial guarantees indispensable for
the protection of some rights whose suspension is forbidden by Article 27(2)
besides they are aimed at preserving legality in a democratic society".[51]
107.
In advisory opinion
OC-9, this Tribunal has stated that
indispensable judicial guarantees
for the protection of human rights not capable of suspension, according to
Article 27(2) of the Convention, are those particularly referred to explicitly
in Articles 7(6) and 25(1), considered within the context and according to
Article 8 principles, and also inherent to the preservation of the Government
of Laws, even under the exceptional legality resulting from the suspension
of guarantees. [52]
108.
Criteria in said
advisory opinions are applied to this case, due to the implementation of Supreme
Order No. 012-86-IN and No. 006-86-JUS. These declared emergency state and a restricted military zone, as
well as the effective control of El Frontón prison, under the Armed Forces,
which produced the suspension of habeas
corpus recourse violating the American Convention.
109.
In relation to
the above mentioned, it could be said that habeas
corpus action on June 26, 1986 was ineffective, on occasion of the disappearance
of Durand Ugarte and Ugarte Rivera resulting from the events on June 18, 1986.
110.
Based the above-mentioned
considerations, the Court concluded that the State violated dispositions of
Articles 7(6) and 25(1) of the American Convention, to the detriment of Nolberto
Durand Ugarte and Gabriel Pablo Ugarte Rivera.
XIV
VIOLATION OF ARTICLES 8(1) AND 25(1)
THE RIGHT TO A HEARING WITH DUE GUARANTEES BY
A COMPETENT, INDEPENDENT, AND IMPARTIAL
TRIBUNAL AND THE RIGHT TO AN EFFECTIVE
RECOURSE.
111.
Regarding the violation of Articles 8(1) and 25(1) of the Convention, the
Commission stated that:
a)
Article 8 of the Convention involved different rights and guarantees that
have as their main purpose to protect the right of every person to a fair
process and to make sure the State judicially ensures the rights.
b)
Gabriel Pablo Ugarte was denied the right to an attorney when was declaring
before the police;
c)
military tribunals aware of the case acted "in open contradiction
to the autonomy and impartial principles which must inform [to them] to comply
with what it is stipulated in the Convention". Impartiality and independence of the tribunal are key topics of
minimal guarantees of justice administration and Article 8 must always be
interpreted in the widest terms, in compliance with the purpose and aim of
the treaty.
d)
military tribunals are not independent, impartial, or competent bodies,
because they belong "according to the Peruvian Organic Law of Military
Justice [Executive Order No. 23.201] to the Ministry of Defense; that is,
it is an special court subordinated to an agency of the Executive Branch". Judges in the military exclusive court are,
similarly, members of the Armed Forces in active duty, (Articles 22 and 31
of Executive Order No. 23.201). Besides,
it is not necessary to be an attorney to become a tribunal member of this
court. Thus, it is logic to say that
if the judicial post depends on the military rank or the status of active
officer, decisions adopted by the judge or tribunal shall be affected by an
interest incompatible with justice. This
might imply that an officer could lack the needed autonomy and impartiality
to investigate events such as the ones in El Frontón.
e)
proceedings before the military exclusive court constitutes an effective
recourse to protect the victims and relatives' rights and repair the damages
caused. In this case events were not
investigated, and the liable parties were not punished either. The War Hall of the Supreme Council of the
Ministry of Justice concluded that those who participated in subduing the
riots had no responsibility. On the
other hand, authorities did not make the necessary efforts to save the largest
amount of lives possible after the prison was demolished, they did not implement
the proper proceedings for the identification of bodies.
f)
since the State was responsible for the victims and their relatives, the
proceedings in the military exclusive court for the clarification of the facts,
identification of bodies, and administration of justice, and since no diligent
investigation of the facts was carried out, they were denied the access to
an effective recourse; and
g)
on July 17, 1987 the Sixth Correctional Tribunal of Lima decided that Nolberto
Durand Ugarte and Gabriel Pablo Ugarte Rivera were "innocent, solving
the case and set them immediately free". Said decision was inefficient because they were missing.
112.
On the other hand,
the State stated that:
a)
the argument lacks evidentiary basis regarding the fact that the detainees
have been denied the access to an attorney and that they have been forced
to expressly give up this right. Clearly,
in writing, in this case those concerned disregarded such a possibility.
The plaintiff has the burden of proof to lessen the value of said event;
b)
in this case, the defendants were declared not guilty on the grounds of
the in dubio pro reo principle,
which is not the equivalent of a non guilty verdict;
c)
the military justice was in charge of the investigations leading to the
determination of responsibilities in the reviewed events. This process had
publicity and respected the corresponding guarantees.
*
* *
113.
Article 8(1) of
the American Convention states that:
Every person has the right to a
hearing, with due guarantees and within a reasonable time, by a competent,
independent, and impartial tribunal, previously established by law, in the
substantiation of any accusation of a criminal nature made against him or
for the determination of his rights and obligations of a civil, labor, fiscal,
or any other nature.
114.
Article 25(1) of
American Convention states that:
Everyone has the right to simple
and prompt recourse, or any other effective recourse, to a competent court
or tribunal for protection against acts that violate his fundamental rights
recognized by the constitution or laws of the state concerned or by this Convention,
even though such violation may have been committed by persons acting in the
course of their official duties.
115.
The Court shall
first examine the argument of the Commission regarding the military process
to investigate the facts and determine the probable liable parties of actions
related to the subduing of the riots in El Frontón. Regarding this process, the Commission stated that military tribunals
were in open contradiction with autonomy and impartiality principles.
116.
The Court has had
the opportunity to refer to the military jurisdiction and has stated that
it
has been established by diverse
legislation to maintain the order and discipline within the armed forces.
Even, such functional jurisdiction states that this legislation is enforced
for soldiers who have committed a felony or offense exerting their functions
and under some circumstances. In this sense it was defined in the Peruvian
legislation itself (Article 282 of the 1979 Political Constitution).[53]
117.
In a democratic
Government of Laws the penal military jurisdiction shall have a restrictive
and exceptional scope and shall lead to the protection of special juridical
interests, related to the functions assigned by law to the military forces.
Consequently, civilians must be excluded from the military jurisdiction scope
and only the military shall be judged by commission of crime or offenses that
by its own nature attempt against legally protected interests of military
order.
118.
In this case, the
military in charge of subduing the riots that took place in El Frontón prison
resorted to a disproportionate use of force, which surpassed the limits of
their functions thus also causing a high number of inmate death toll. Thus,
the actions which brought about this situation cannot be considered as military
felonies, but common crimes, so investigation and punishment must be placed
on the ordinary justice, apart from the fact that the alleged active parties
had been military or not.
119.
In spite of the
above, the State ordered to the military justice to be in charge of the investigation
of the serious events in El Frontón, which carried out such investigation
and dismissed the process followed against the liable military parties.
120.
The Commission
stated that the military exclusive court does not offer the minimal guarantees
of independence and impartiality as stipulated in Article 8(1) of the Convention.
Thus, it does not constitute an effective recourse to protect the victims
and relatives' rights and to repair damages violating also Article 25.
121.
This Court has
stated that:
[a]rticle 25 is closely related
to the general obligation of Article 1(1) of the American Convention, to ascribe
protection functions to the internal law of the States Parties, of which it
is inferred that the State bears the responsibility to design and recognize
an efficient recourse, but at the same time to assure duly implementation
of said recourse by its judicial authorities.[54]
122.
Regarding the proven
facts of this case, victims or their relatives did not have an effective recourse
that could guarantee their rights leading among other things to a lack of
identification of the liable parties during proceedings followed by the military
court and the failure to use due diligence to identify and establish the victims'
whereabouts. The data involved in
the rulings allow considering the investigation of events in El Frontón in
anticipation by military tribunals was simply formal.
123.
To this regard,
this Tribunal has sustained that in view of every violation of rights protected
by the Convention, the duty to investigate
must be carried out seriously and
not as a simple formality deemed in advance to be unfruitful. It must have
a sense and be assumed by the State as its own juridical duty not as simple
proceedings on particular interests, which depend on procedural initiative
by the victims or their relatives or the private delivering of the probative
elements without public authority looking effectively for truth.”[55]
124.
This same criterion
has been endorsed by the Committee of Human Rights of the United Nations on
several occasions wherein it has stated that:
the Party State has the obligation
to investigate the alleged violations of human rights, in particular the forced
disappearance of people and the violations of the right to life, and to bring
criminal charges, to judge, and punish the liable parties of said violations.
Said obligation is only applicable a fortiori in cases in which the active parties of these violations
have been identified.[56]
125.
Regarding the statement
on partiality and dependence of military justice, it is reasonable to consider
that military court officials who acted in the leading process to investigate
the events in El Frontón lacked the required independence and impartiality
as stipulated in Article 8(1) of the Convention to efficiently and exhaustively
investigate and punish the liable parties.
126.
As has been stipulated
(supra para. 59 ñ), the courts that
had knowledge of the facts related to these events "constitute a high
Body of the Armed Institutes"[57]
and the military men who were members of these tribunals were, at the
same time, members of the armed forces in active duty, a requirement to be
part of military tribunals. Thus, they were unable to issue an independent
and impartial judgment.
127.
On the other hand,
the Court states that since the date of the riot subduing in El Frontón prison,
the relatives of Nolberto Durand Ugarte and Gabriel Pablo Ugarte Rivera ignored
their fate and did not have access to an effective recourse to investigate
the facts, identify, and punish the liable parties.
128.
The Court has said
that "Article 8(1) of the Convention must be interpreted in an open way
so that said interpretation be endorsed both in the literal text of that standard
as well as in its essence." [58] With this interpretation, said text
also includes the right of the victims’
relatives to judicial guarantees since "every act of forced disappearance
deprives the victims of the protection of the law and causes great suffering
to them and their relatives" (Statement by the United Nations on the
Protection of Every Person against Involuntary Disappearance, Article 1(2)).[59]
129.
This Tribunal has
also stated that:
based on Article 8 of the Convention
it is understood that victims of violations of human rights, or their relatives,
must be able to be heard and act on their respective proceedings, both looking
for the clarification of facts and the punishment of the liable parties and
a proper compensation".[60]
130.
As a consequence,
Article 8(1) of the American Convention, in connection with Article 25(1)
thereof, confers to victims’ relatives the right to investigate their disappearance
and death by State authorities, to carry out a process against the liable
parties of unlawful acts, to impose the corresponding sanctions, and to compensate
damages suffered by their relatives.
131.
Based on the above,
the Court declared that the State violated, to the detriment of Nolberto Durand
Ugarte and Gabriel Pablo Ugarte Rivera and their relatives, Articles 8(1)
and 25(1) of the American Convention.
XV
NON-COMPLIANCE OF ARTICLES 1(1) AND
2
OBLIGATION TO RESPECT RIGHTS AND DUTY
TO ADOPT
DOMESTIC LEGAL EFFECTS
132.
As for non-compliance
of Articles 1(1) and 2 of the Convention, the Commission stated that:
a)
The State had violated
the obligation to respect and guarantee the rights protected in the Convention.
International Law of Human Rights imposes an obligation of lack of action,
that is, State agents must refrain from taking actions that could invade the
scope of liberty guaranteed in every of the rights listed in the treaty, and
an obligation to take action in order to ensure every person a full enjoyment
and exercise of said rights;
b)
violations of the
Convention regarding Articles 4, 7(6), 8, 25(1), and 27(2) entailed the violation
of Article 1(1) of the Convention; and
c)
the Convention
in its Article 2 explicitly engages the States to adopt legislative dispositions
or any other kind to enforce the rights and freedoms recognized in said Convention.
On the one hand, said disposition compels the State to adopt new measures
and, on the other hand, to revoke any incompatible legislation with the Convention.
As a result, if Peru keeps Executive Order No. 23.201 (Organic Law of Military
Justice) in its legislation, which contradicts the rights guaranteed in Articles
8 and 25 of the Convention, similarly violates its obligations according to
Article 2 thereof.
133.
The State claims
that:
a) Article
29 of the Universal Declaration of Human Rights, Articles 28 and 33 of the
American Declaration and Duties of Man, Article 2 of the European Convention,
and Articles 29 and 32 of the American Convention must be taken into consideration
to define its consubstantiality in relation to the right to life.
b) the
duty to respect the fundamental liberties and rights not only applies to public
authorities, but also to every individual. By ensuring the fundamental right
of the individual to recognize his dignity as a human being, he is also imposed
the fundamental duty of providing his fellow men with a similar treatment.
Under no circumstances, access to illegal recourses can be provided. According
to the duty of non abusing the right itself, every individual must exert his
rights taking into consideration, to a reasonable extent, other’s interests
and, in any case, without abusive purposes. At the same time, there is an
equality duty so that anybody can raise his status over another’s;
c) the
events on June 18 and 19, 1986 during the subduing of the riots in El Frontón,
are framed within the scope of the domestic control standards that Peru, as
every sovereign State, is entitled and has the obligation to exert to protect
the principle of authority and common welfare of its citizens; and
d) it
is necessary to consider circumstances under which the facts took place and
the inmate mutiny, the State - after exhausting initial proceedings and the
excessive intervention of Police Forces - ordered the needed intervention
of the Armed Forces. An important premise to consider is the dangerousness
posed by rioters, who had weaponry such as explosives, provisions, and medical
supplies, and kept two hostages, one of them finally died inside the collapsed
building.
*
* *
134.
Article 1(1) of
the Convention stipulates that
[t]he States Parties to this Convention
undertake to respect the rights and freedoms recognized herein and to ensure
to all persons subject to their jurisdiction the free and full exercise of
those rights and freedoms, without any discrimination for reasons of race,
color, sex, language, religion, political or other opinion, national or social
origin, economic status, birth, or any other social condition.
135.
Article 2 of the
Convention determines that
Where the exercise of any of the
rights or freedoms referred to in Article 1 is not already ensured by legislative
or other provisions, the States Parties undertake to adopt, in accordance
with their constitutional processes and the provisions of this Convention,
such legislative or other measures as may be necessary to give effect to those
rights or freedoms.
136.
In the same sense,
in other case the Court has stated that:
[r]egarding people's law, a customary
rule prescribes that a State, which has entered into an international agreement,
must introduce in its national law the necessary assumed modifications to
ensure the execution of obligations assumed. This rule is universally valid and has been
considered by the jurisprudence as an evident principle ("principe allant
de soi"; Echange des populations grecques et turques, avis consultatif,
1925, C.P.J.I., Series B. No. 10, p. 20). In this sequence of ideas, the American
Convention states the obligation of every State Party to adapt its national
law to dispositions of said Convention, to guarantee the rights recognized
therein.[61]
137.
In this sense,
in another case the Court stated that
[t]he general duty of Article 2 of
the American Convention implies the adoption of measures in two ways. On the
one hand, derogation of rules and practices of any kind that imply the violation
of guarantees in the Convention. On the other hand, the issuance of rules
and the development of practices leading to an effective enforcement of said
guarantees.[62]
138.
The Court warns
that, based on this judgment, the State violated Articles 4(1), 7(1), 7(5),
7(6), 8(1) and 25(1) of the American Convention, to the detriment of Nolberto
Durand Ugarte and Gabriel Pablo Ugarte Rivera; therefore, it has not fulfilled
its general duty of respecting the rights and freedoms recognized therein
and of ensuring its free and full exercise, as stipulated in Article 1(1)
of the Convention. Also, in the present
case Article 2 of the Convention was violated, because the State had not taken
appropriate measures of its internal law which allow making effective the
rights established on the said Convention.
139.
As a consequence,
the Court concludes that the State has failed to comply with the general obligations
of Articles 1(1) and 2 of the American Convention on Human Rights.
XVI
ENFORCEMENT OF ARTICLE 63(1)
140.
Regarding the implementation
of Article 63(1) of the Convention, the Commission asked the Court to arrange
for
a)
Peru to carry out
an investigation to identify, judge, and punish the liable parties of the
violations in this case;
b)
Peru to inform
about the whereabouts of Nolberto Durand Ugarte and Gabriel Pablo Ugarte Rivera
and to inform their relatives;
c)
Peru to properly
compensate the relatives of Nolberto Durand Ugarte and Gabriel Pablo Ugarte
Rivera, both financially and morally as a result of damages from the violations
of rights recognized in the Conventions; and
d)
Peru to pay expenses
incurred by the victims’ relatives and representatives because of their participation
both before the Commission and the Court. Moreover, in its final allegations it asked
for the compensation of expenses by the relatives and petitioners in the internal
seat.
141.
The State did not
mention said requests before the Commission.
142.
Article 63(1) of
the American Convention 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.
143.
The Court considers
that the State is compelled to investigate facts prompting the violations.
Even, if internal order difficulties supposedly prevent the identification
of the liable parties due to the nature of their offenses, the right of the
victims’ relatives to know about their fate and the whereabouts of their mortal
remains. Therefore, the State should
meet these fair expectations with any of its available resources. Besides the obligation to investigate, there
is another obligation to prevent any possible commission of involuntary disappearance
and punish the liable parties.
144.
It is evident in
this case that the Court cannot ensure those damaged to fully enjoy their
violated rights and freedoms. However,
the compensation of the consequences causing the violation of specific rights
is legal and must include a fair compensation of expenses that the victims’
relatives would have incurred in to pay for any related proceedings.
145.
To determine compensation,
the Court shall need information and enough probative elements, so it is legal
to start the corresponding procedural stage. To this end, it entrusts its
President with adopting the necessary measures.
XVII
OPERATIVE PARAGRAPHS
146.
Now therefore,
THE
COURT
unanimously,
1.
declares that the
State violated, to the detriment of Nolberto Durand Ugarte and Gabriel Pablo
Ugarte Rivera, Article 4(1) of the American Convention on Human Rights.
by
six votes against one,
2.
declares it has
not been proven that the State violated, to the detriment of Nolberto Durand
Ugarte Rivera, Article 5(2) of the American Convention on Human Rights.
Judge
Carlos Vicente de Roux Rengifo disagrees.
unanimously,
3.
declares that the State violated, to
the detriment of Nolberto Durand Ugarte and Gabriel Pablo Ugarte Rivera, Article
7(1) and 7(5) of the American Convention on Human Rights.
unanimously,
4.
declares that the State violated, to
the detriment of Nolberto Durand Ugarte and Gabriel Pablo Ugarte Rivera, Articles
7(6) and 25(1) of the American Convention on Human Rights.
unanimously,
5.
declares that the State violated, to
the detriment of Nolberto Durand Ugarte and Gabriel Pablo Ugarte Rivera, as
well as their relatives, Articles 8(1) and 25(1) of the American Convention
on Human Rights.
unanimously,
6.
declares that the State has failed
to comply with the general obligations of Articles 1(1) and 2 of the American
Convention on Human Rights regarding the violations of the substantive rights
included in the above decisions in this judgment.
unanimously,
7.
decides that the
State is compelled to make every possible effort to locate and identify the
victims' mortal remains and deliver them to their relatives, as well as to
investigate the facts and process and sanction the liable parties.
unanimously,
8.
decides that the
State must compensate damages caused by the violations.
unanimously,
9.
decides to open
the stage of reparations; therefore, it entrusts its President with adopting
timely necessary measures.
Judge
Carlos Vicente de Roux Rengifo informed the Court his Partially Dissenting
Opinion and Judge Fernando Vidal Ramírez told the Court his Reasoned Opinion,
attached to this judgment.
Written
in Spanish and English, certifying the text in Spanish, in San José, Costa
Rica on August 16, 2000.
Antônio A. Cançado Trindade
President
Máximo
Pacheco-Gómez
Hernán Salgado-Pesantes
Alirio Abreu-Burelli Sergio
García-Ramírez
Carlos Vicente de Roux-Rengifo Fernando
Vidal-Ramírez
Judge ad hoc
Manuel E. Ventura-Robles
Secretary
So
ordered,
Antônio A. Cançado Trindade
President
Manuel E. Ventura-Robles
Secretary