Cantoral Benavides Case, Judgment of August 18, 2000, Inter-Am Ct. H.R. (Ser. C) No. 69 (2000).
In
the Cantoral-Benavides Case,
the
Inter-American Court of Human Rights (hereinafter “the Court” or “the Inter-American
Court” or “the Tribunal), composed of the following judges:
Antônio A. Cançado Trindade, President
Máximo Pacheco-Gómez, Vice President
Hernán Salgado-Pesantes, Judge
Oliver Jackman, 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 Pomi, Deputy Secretary
pursuant
to Articles 29 and 55 of its Rules of Procedure (hereinafter “the Rules of
Procedure”), renders the following judgment on the present case.
I
INTRODUCTION OF THE CASE
1.
The Inter-American
Commission on Human Rights (hereinafter “the Commission” or “the Inter-American
Commission”), in filing the application, invoked Articles 50 and 51 of the
American Convention on Human Rights (hereinafter “the American Convention”
or “the Convention”) and Article 26 et
seq. of the Rules of Procedure then in force.[1] In filing said application, the Commission
asked 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. (Domestic
Legal Effects), 7(1) to 7(6) (Right to Personal Liberty), 5 (Right to Humane
Treatment), 8(1), 8(2), 8(2)d), 8(2)f), 8.2.g), 8(3) and 8(4) (Right to a
Fair Trial) and 25 (Right to Judicial Protection), and Articles 2 and 8 of
the Inter-American Convention to Prevent and Punish Torture (hereinafter “Inter-American
Convention Against Torture”). According
to the application, these violations were suffered by Mr. Luis Alberto Cantoral-Benavides
due to the unlawful deprivation of his liberty, following his arbitrary detention
and incarceration, cruel, inhuman and degrading treatment, violation of the
judicial guarantees, and double jeopardy based on the same facts. In its final
written brief, the Commission added the alleged violation of Articles 8(2)c),
8(5) and 9 of the American Convention, and 6 of the Inter-American Convention
Against Torture.
II
JURISDICTION
2.
The Court has jurisdiction
to hear the present case. Peru has
been a State Party to the American Convention since July 28, 1978, and accepted
the jurisdiction of the Court on January 21, 1981. Also, Peru has been a State Party to the Inter-American
Convention Against Torture since March 28, 1991.
III
PROCEEDINGS
BEFORE THE COMMISSION
3.
On April 18, 1994,
a petition was transmitted via fax to the Inter-American Commission relevant
to the facts of this case, and on April 20, 1994, the original copy of the
petition was received at the Secretariat. On August 24, 1994, the Commission
forwarded to the State the pertinent parts of the petition, pursuant to Article
34 of its Rules of Procedure.
4.
On September 7,
1994, the State requested that the Commission refrain from taking up the present
case because “the time period for filing the petition had expired, as it had
been filed after the period of six months established by Article 46(1)b. of
the American Convention.”
5.
On November 25,
1994, the petitioners informed the Commission that the decision of the Supreme
Court of Peru regarding the appeal for annulment of the judgment of October
10, 1994, rendered by the “faceless special tribunal of the regular court
system” was pending.
6.
On February 15,
1995, the State asserted that the Commission did not have jurisdiction to
consider the case due to the “non-exhaustion of domestic remedies.” On March 2, 1995, the Commission, in response
to the State, noted that it was not possible to raise that objection in “the
situation in which a person who has been tried and acquitted by a military
court for the crime of ‘Treason against the Fatherland’ then finds himself
being tried and in the process of being judged by the regular court for the
same facts, under the legal title of the crime of ‘Terrorism’.”
7.
On March 5, 1996,
the Commission approved Report No. 15-A/96. The following day, the Commission,
in accordance with Article 48(1)f. of the American Convention, put itself
at the disposal of the parties to explore the possibility of arriving at a
friendly settlement, deciding not to notify them of the report until they
had responded to its offer. The petitioners
were willing to take part in the suggested proceeding under certain conditions.
The State, for its part, requested, on April 1, 1996, an extension
to respond to the possibility; however, despite having obtained the extension,
it did not respond to the Commission’s offer.
8.
On May 8, 1996,
the Commission transmitted to the State Report No. 15-A/96, which in its operative
paragraphs resolved:
1.
To
declare that the Peruvian State is responsible for the violation of Luis Alberto
Cantoral-Benavides’ rights to personal liberty, humane treatment and a fair
trial as set forth in Articles 7, 5 and 8 of the American Convention on Human
Rights, all in accordance with the failure to comply with the obligations
set forth in Article 1(1).
2.
To
recommend to the Peruvian State that, in consideration of the examination
of the facts and law made by the Commission, it immediately release Luis Alberto
Cantoral-Benavides upon receiving notification of this report.
3.
To
recommend to the Peruvian State that it pay compensation to the claimant in
the instant case, for the injury caused as a result of the denounced facts
which have been verified by the Commission.
4.
To
request that the Government of Peru inform the Inter-American Commission on
Human Rights, within a period of forty-five (45) days, of any measures it
has taken in the instant case in accordance with the recommendations contained
in paragraphs 2 and 3 above.
5.
To
submit the present case to the Inter-American Court of Human Rights, if, within
the period established in the preceding paragraph, the State of Peru does
not implement the recommendations made by the Commission.
9.
On July 5, 1996, by means of note No. 7-5-M/204, the State transmitted
to the Commission a copy of the report prepared by a task force comprising
representatives of various ministries of the State, in which it stated that
during the processing of the case it had indicated several times that there
were ongoing judicial proceedings, and that, therefore, domestic remedies
had not been exhausted. Moreover,
its asserted that there had been a lapse in the right invoked pursuant to
Article 46(1)b. of the Convention. Finally,
it maintained that it was not possible to respond to the recommendations contained
in Report No. 15-A/96.
IV
PROCEEDINGS BEFORE THE COURT
10.
The application corresponding to this case was submitted to the Court on
August 8, 1996. The Inter-American
Commission named Carlos Ayala Corao and Jean Joseph Exumé as its delegates;
Domingo E. Acevedo as its attorney; and as its assistants Iván Bazán-Chacón,
Rosa Quedena, José Miguel Vivanco, Viviana Krsticevic, Ariel Dulitzky and
Marcela Matamoros, who, according to information from the Commission to the
Court, would also act as representatives of the victim. By note of June 18, 1998, Mrs. Matamoros informed
the Court that she would not participate in the present case.
11.
By note of August
21, 1996, the Secretariat of the Court (hereinafter “the Secretariat’), after
the President of the Court (hereinafter “the President”) had made a preliminary
review of the application, notified the State of same.
12.
On September 6,
1996, the State informed the Court that it had appointed Mario Cavagnaro-Basile
as its agent. On June 4, 1998, it named Walter Palomino-Cabezas as its alternative
agent.
13.
On September 20,
1996, the State raised seven preliminary objections and asked the Court to
admit them or, alternately, to join them to the merits. Peru also requested additional time to “interpose
new objections in addition to the earlier ones,” which was not granted by
the Court.
14.
On October 4, 1996,
the State named Mr. Fernando Vidal-Ramírez as Judge ad hoc.
15.
On December 12,
1996, the State submitted its answer to the application.
16.
On March 18, 1997,
the Court, at the behest of the Commission, asked the State for the report
on the personal search of Luis Alberto Cantoral-Benavides conducted on February
6, 1993, and for police affidavit No. 049 DIVICOTE 3 – DINCOTE, of February
26, 1993. On May 19, 1997, the State submitted the aforementioned report,
and, on April 10, 1997, asked that, in the interest of judicial economy, the
affidavit that had been submitted in the Loayza-Tamayo case be incorporated
into the present case. On April 14,
1997, the President issued a favorable ruling on this request.
17.
In briefs dated
May 19 and June 23, 1997, the State reported that Mr. Luis Alberto Cantoral-Benavides
had requested, on October 9, 1996, a pardon from the ad hoc Commission created under Law No.
26.655. Said Commission was responsible
for studying and evaluating cases and proposing that the President of the
Republic, in exceptional circumstances, pardon those convicted of the crimes
of terrorism or treason against the fatherland.
Said Commission recommended that Cantoral-Benavides be granted this
benefit. On July 15, 1997, the State reported that said pardon had been granted
in Supreme Decision 078-97-JUS, of June 24, 1997. Inasmuch as Mr. Cantoral-Benavides had been released from prison,
it asked the Court to dismiss the case. The
State re-submitted this request on November 4, 1997 and April 24, 1998.
18.
On October 16,
1997, the Commission submitted its comments on the State’s request for dismissal,
and asked the Court to declare it inadmissible.
19.
On June 8, 1998,
the Court decided to postpone consideration of the State’s “request for dismissal”
until after the public hearing on preliminary objections.
20.
On June 18, 1998,
the Court decided “[t]o deny the request for dismissal presented” by the State,
and to continue processing the case.
21.
On August 21 and November 9, 1998, the Secretariat asked the State to re-submit
some of the documents it had presented as direct evidence in its answer to
the application, which were found to be illegible. On December 23, 1998, the State submitted several
of the documents that had been requested, some of which were still found to
be illegible. On January 22, 1999,
the State again presented some of the documents that had been requested.
22.
On August 18, 1998,
the State was asked to provide the following documentation as additional evidence,
in accordance with Article 44 of the Rules of Procedure: a duly certified copy of the judicial document
showing the date on which the alleged victim was officially notified of the
judgment rendered on September 24, 1993, and a copy of the law that governs
all procedural aspects of the extraordinary motion for review, both in the
military and the regular jurisdiction.
23.
On September 3,
1998, the Court dismissed the preliminary objections interposed by the State.
24.
On February 16,
1999, the Secretariat again asked the State to submit the documentation requested
in its note of August 18, 1998, and requested a copy of the brief in which
the petitioners presented an extraordinary motion for review of the judgment
rendered by the Supreme Council of Military Justice on September 24, 1993,
and of the decision issued by the Supreme Court of Peru on October 22, 1993.
25.
On February 16
and June 22, 1999, the Commission proposed Mr. Luis Guzmán-Casas as a witness,
indicating that he was incarcerated at the “Miguel Castro-Castro” prison at
the time, and asked the Court to order that his statement be taken in Peru,
in said facility.
26.
On April 5, 1999,
the State submitted part of the documentation requested by the Secretariat
in its note of February 16, 1999.
27.
On June 28, 1999,
the Court requested authorization from the State to question the witness Luis
Guzmán-Casas at the “Miguel Castro-Castro” prison in Peru, where he was incarcerated.
To date, the State has not responded to this request.
28.
On August 4, 1999, the President summoned the Inter-American Commission
and the State to a public hearing on the merits, to be held at the seat of
the Court on September 20, for the purpose of taking the statements of the
witnesses and the expert proposed by the Commission. Also, the President instructed the Secretariat to inform the parties
that they would be able to present their final oral arguments on the merits
of the case immediately after such evidence was received.
29.
On September 10,
1999, the State informed the Court that it was materially impossible to summon
the witness identified as “Naval Investigating Judge identified with code No. BT-10003000,” since his name and surnames
were unknown, and because his identity was secret in accordance with Article
15 of Decree Law No. 25.475.
30.
On September 20 and 21, 1999, in a public hearing on the merits, the Court
took the statements of the witnesses and the expert proposed by the Inter-American
Commission, and heard the Commission’s oral arguments.
Appearing
before the Court were:
for
the Inter-American Commission on Human Rights:
Domingo E. Acevedo, delegate;
Viviana Krsticevic, assistant;
María Claudia Pulido, assistant;
Carmen Herrera, assistant; and
Iván Bazán, assistant.
As
witnesses proposed by the Inter-American Commission:
Luis Alberto Cantoral-Benavides;
Gladys Benavides-de-Cantoral;
Susana Villarán-de-la-Puente;
María Elena Castillo;
Pedro Telmo Vega-Valle;
Víctor Álvarez-Pérez;
Elba Greta Minaya-Calle;
Rosa María Quedena-Zambrano; and
Julio Guillermo Neira.
As
the expert proposed by the Inter-American Commission:
Arsenio Oré-Guardia.
The
State did not participate in the public hearing, despite having been summoned.
Also absent was the Naval Investigating Judge identified with the code
number BT-10003000, proposed as a witness by the Commission (supra
para. 29).
31.
On March 3, 2000,
the Secretariat, on instructions from the President, informed the State and
the Commission that they would have until April 11, 2000, to submit their
final written briefs on the merits of the case.
32. On
March 6, 2000, the Court, pursuant to the powers conferred upon it in Article
44 of its Rules of Procedure, decided to incorporate into the evidence of
this case the following evidence produced in the Loayza-Tamayo case: the legal provisions related to the crimes
of terrorism and treason against the fatherland (infra para. 38); five testimonies given in Peru; two testimonies (infra para. 38) and three expert testimonies (infra para. 38) given before the Court in a public hearing on the
merits which began on February 5, 1997; and one testimony (infra para. 38) given before
the Court at the public hearing on reparations which began on June 9, 1998.
It also asked the State for information relative to any petition(s)
regarding torture that Mr. Cantoral-Benavides had submitted to Peruvian authorities,
and an official document stating the date on which he was released. Said information was submitted by the State on April 10, 2000.
Also, on March 27, 2000, the President of the Court asked the State
to provide as additional evidence, under the powers referenced above, the
files related to the military and civilian trials of Luis Alberto Cantoral-Benavides
for the crimes of treason against the fatherland and terrorism.
33.
On March 27, 2000,
the Court asked the Secretary General of the Organization of American States
(hereinafter “OAS”) for information as to whether the State had informed the
OAS of a state of emergency or suspension of guarantees decreed between February
3, 1993 and October 6, 1995. On May
10, 2000, the Director of the International Law Department of the General
Secretariat of the OAS, Mr. Jean-Michel Arrighi, informed the Court that no
notification had been received from the Peruvian State regarding a suspension
of guarantees on the dates cited. On
May 31, 2000, the Secretary General of the OAS, Mr. César Gaviria, sent information
related to the notification by the State of the suspension of guarantees in
Peru during several periods (infra para.
42.). On June 2, 2000, the State submitted
its comments on the note dated May 10 of this year.
34.
On April 11, 2000,
the Commission filed its final written briefs.
The State did not file final written briefs.
35.
On May 23, 2000,
the State filed, beyond the time allowed for same, a certified copy of the
files of the criminal trial of Luis Alberto Cantoral-Benavides and others
for the crime of terrorism, as part of the additional evidence requested on
March 27 of this year.
V
DOCUMENTARY EVIDENCE
36.
As appendices to
the application, the Commission submitted copies of 27 documents contained
in 23 appendices.[2]
37.
As appendices to
the answer to the application, the State submitted copies of 46 documents.[3]
38.
The evidence produced
in the Loayza-Tamayo case was incorporated into the evidence of the present
case, as additional evidence (supra
para. 32).[4]
39.
At the request
of the Court, the State submitted documentation related to the internal processing
of the case (supra paras. 16, 17 and 26).[5]
40.
Certain documentation
related to the internal processing of the case, beyond that called for in
Article 43 of the Rules of Procedure, was submitted by the State even though
it had not been requested by the Court. (supra para. 26).[6]
41.
The State presented,
as part of the additional evidence requested, two notes and a certified copy
of the files of the criminal trial of Mr. Luis Alberto Cantoral-Benavides
and others for the crime of terrorism (supra
para. 35).[7]
42.
The Secretary General
of the OAS submitted documentation related to the notification of the suspension
of guarantees by the Peruvian State (supra para. 33).[8]
VI
ORAL AND EXPERT EVIDENCE
43.
The Court received, in the public hearings held on September 20 and 21,
1999, the statements of the witnesses and the expert proposed by the Inter-American
Commission. Said statements are summarized below, in the order in which they
were given:
a.
Testimony of Luis Alberto Cantoral-Benavides, alleged victim in the case.
The
witness was convicted in Peru for the crime of treason against the fatherland.
He was arbitrarily detained at his home by members of the National Police
of Peru – National Anti-Terrorism Bureau (hereinafter “DINCOTE”) - dressed
as civilians, in the early morning hours of February 6, 1993. He was shown no warrant from a competent authority
to conduct the search or arrest him. The
police were looking for his older brother, José Antonio Cantoral-Benavides,
but when they could not find him, they arrested Luis Alberto.
At the time he was detained he was made to sign a document identifying
all items confiscated, but was not shown the contents of the document.
They took him to his aunt’s house in hopes of finding his brother José
Antonio, who was not there either. His twin brother, Luis Fernando, offered
to accompany him to the police station to find out what was going on. After both were blindfolded and handcuffed,
a hood was placed over their heads and they were taken to DINCOTE headquarters,
along with other detainees.
He
was held incommunicado at DINCOTE for eight or nine days, and was not permitted
to see a lawyer. Detainees were held
in a large room, blindfolded and with their hands tied. It was not until some 15 days after his detention, when he gave
his statement to the police, that he first had access to the lawyer who had
been assigned to his case; he was never allowed to meet with his lawyer in
private.
He
was held there for close to one month, until March 4 or 5, blindfolded and
handcuffed just like all the other detainees; when they were interrogated,
the police subjected them to physical and psychological torture. One night they took him, his brother and another
person to the beach; they took his brother out of the car and began to torture
him; as he listened he became filled with fear. Then they took him from the
car, threw him to the sand and began beating him. Still blindfolded, they
began to slap him around the ears, telling him that they were going to throw
him in the water just as they had done with his brother. He told them he didn’t
know what his brother had done and that he was not guilty of anything. The “psychological torture was too much for
me to bear.”
During
his detention at DINCOTE, he was brought before the press wearing a striped
prison uniform, and was publicly charged with terrorism as a member of Sendero
Luminoso (Shining Path). A so-called
“legal doctor” examined him one time, but only superficially. Also, they forced him to sign a document in
which he admitted that he was guilty of the crime of treason against the fatherland.
He was also held at the veterinary section of a naval base.
He was arraigned under the
military jurisdiction and they began the investigation stage of the trial
for the crime of treason against the fatherland at the veterinary section. He did not have access to a lawyer he could
trust. He was assigned a lawyer, who
was not present when his statement was taken.
At the veterinary section of the naval base, all members of the court
were military personnel, who wore hoods, dark glasses, side arms and military
uniforms; his court-appointed lawyer was also dressed in a military uniform.
Later,
he was transferred to the holding cells at the Palace of Justice of Lima,
where conditions were unsanitary. While
being transferred to these cells he was beaten again. Upon his arrival, he
received no medical attention. While
there, he gave a statement in the presence of his lawyer, Víctor Álvarez,
on May 5, 1993, a statement he confirmed in the hearing before the Court. Then he was taken for trial before the military
jurisdiction, which acquitted him in the first instance. Then he was transferred
to the Cristo Rey prison in Cachiche, Ica, where he was also mistreated by
those in charge, leading to serious physical injury. He was made to lie face
up in the sun for hours and was not allowed to open his eyes; he was forced
to stand in line to receive a beating with a club; when electrical current
was applied to his waist, he was thrown to the floor, which was covered with
water and kerosene; his body was covered with blood, and even though he could
not move one of his arms, he had to drag himself back to his cell; he was
never seen by a doctor. While there, he was never notified of his acquittal
in August 1993 by the Supreme Council of Military Justice.
His
twin brother, who had been sentenced to 30 years in prison in the first instance
by the military court, was released; actually, they should have released Luis
Alberto. His lawyer, Dr. Víctor Álvarez,
filed a writ of habeas corpus, which was rejected on two occasions.
While he was awaiting a decision, naval officers interrogated him regarding
his brother’s whereabouts, first offering him freedom and later telling him
they had new evidence against him. This evidence consisted of a hand-drawn
sketch and some diagrams showing the placement of bombs, which, allegedly,
he had prepared along with another detainee, Margarita Clarivel Mateo, a person
Cantoral did not know. At DINCOTE, he gave handwriting samples to be compared
with the writing on the documents. Later he learned that, on the basis of
this evidence, his case was remitted to a regular court, for a new trial,
which meant that he had to be transferred to Lima.
During the new trial, his lawyer was also Dr. Víctor Álvarez, who requested
that an expert witness for the defense analyze the handwriting, which turned
out not to be that of Cantoral-Benavides.
During
said trial, he was accused of participating in the placement of bombs and
of allegedly training university students, and was sentenced to 20 years in
prison. He was transferred to the
“Miguel Castro-Castro” prison, where he remained for almost three and one-half
years. Prisoners were held incommunicado
in very small cells (3 per cell) for 23 and one-half hours per day, and allowed
out into the sunlight for only 30 minutes a day. They were allowed to visit
with relatives for one half hour per month, but were separated from them by
fences that made communication difficult at best, and the prison was very
overcrowded. He was allowed to have contact with his lawyer for only five
minutes, separated by the same fence, and always under the watchful eyes of
a guard and within earshot of the other prisoners and their lawyers.
Once
his lawyer explained the situation to him, and realizing that there was no
other way to gain his release, he requested a pardon, even though he understood
that a person who is pardoned does not have his criminal record expunged. The processing of the pardon took more or less
a year. As a result of the pardon,
he was released on June 25, 1997. He was not compensated in any way for the
more than four years he was imprisoned, nor was his record expunged. In addition,
his imprisonment caused him psychological trauma and made it much more difficult
for him to rejoin society.
He
was threatened during his incarceration at the naval base and while being
taken to the hearing before the Board of Pardons, and has been the object
of threats since his release. His
family has also been threatened. He
turned to Amnesty International, which helped him get from Peru to Brazil,
where he currently resides. He is afraid to return to his homeland, and fears
for his family. He has received no psychological treatment.
b.
Testimony of Susana Villarán-de-la-Puente, journalist and member of the
Board of Directors of the National Coordination Office for Human Rights.
In
the 1980s, the State repressed subversive terrorist groups such as Sendero
Luminoso and the Movimiento Revolucionario Tupac Amaru, MRTA, through forced
disappearances and extrajudicial executions. In 1992, the State shifted from
these practices to arbitrary arrests and systematic torture, according to
the National Coordination Office for Human Rights. These practices coincided
with the implementation of the so-called anti-terrorism laws, all of which
violated the principle of due process in some way.
People being detained did not denounce the torture for fear of reprisal.
The witness mentioned certain cases of torture and self-incrimination or “coerced
confessions” which she covered as a journalist. The National Coordination Office for Human
Rights stated in a report that torture had been practiced on a systematic
basis for the 10 last years. “We have gathered 4,601 complaints in the last
ten years, and 3,868 people detained for terrorism
or treason against the fatherland have been tortured.” In violation of the United Nations Standard
Minimum Rules for the Treatment of Prisoners, the anti-terrorism laws created
very harsh prison conditions for those being held for terrorism and treason
against the fatherland. There were many cases of people being detained and
tried under the anti-terrorism laws who later were found to be innocent; in
an attempt to right this situation, a law was passed creating the ad hoc Commission charged with studying the proposed
pardons submitted to the President of the Republic. In her opinion, this law was not an effective
solution, since it did not even call for the financial compensation of those
pardoned.
c.
Testimony of Pedro Telmo Vega-Valle, co-defendant of Luis Alberto Cantoral-Benavides.
He
was convicted in Peru for the crime of treason against the fatherland. He was detained at his home by members of the
DINCOTE on January 9, 1993, because they had linked him to the Sendero Luminoso
terrorist organization. He was taken
to DINCOTE, where he was held for 27 days. While there, he was held incommunicado, and spoke with a lawyer
for the first time 15 days after his detention. He was interrogated and taken to the beach, where he was stripped
and subjected to what is known as the “palanca.” In this maneuver, “the detainee is forced to lie facing down. The
hands are then forced over the head, pushing the face into the sand. Next, they wrapped him in blankets like a mummy
and put him in the ocean in an attempt to drown him.” They beat him until
he lost consciousness. When he gave
his statement to the police, he could not denounce the torture because he
was only permitted to answer the questions asked of him.
On
January 15, 1993, he was brought before the press wearing a striped prison
uniform and accused of being a criminal. He was tried by the Naval Tribunal
for the crime of treason against the fatherland and sentenced to 30 years,
under the same judgment in which Luis Alberto Cantoral-Benavides was convicted. After being at DINCOTE, he was transferred
to the veterinary section of the Army base in Chorrillos, and held in what
essentially were stalls for horses and pens for dogs, where he remained for
some ten days. Next, he was taken
to the holding cells at the Palace of Justice of Lima, where he was held for
four months and met Luis Alberto Cantoral-Benavides and his twin brother,
Luis Fernando. Subsequent to his conviction,
he was transferred to the Cristo Rey prison in Cachiche, Ica, along with Luis
Alberto Cantoral-Benavides. Under
a judgment rendered on August 10, 1993, the Supreme Council of Military Justice
ordered his release, which took place on August 25, 1993. After his release, the same judge that had
ordered his release, summoned him. He was detained on September 8, 1993. He was taken to the Rospigliosi Castle and
then to the DINCOTE, and from there to the holding cells at the Palace of
Justice of Lima, where he remained for three or four months. An attorney from the Ecumenical Foundation
for the Development of Peace (hereinafter FEDEPAZ) filed a writ of habeas
corpus on his behalf and that of two other people, which was studied by a
judge named Elba Greta Minaya-Calle and rejected. He was tried again for the
same facts in the regular jurisdiction. He
was acquitted in both jurisdictions and released on January 28, 1998, based
on a judgment rendered by the Supreme Court of Peru. He received no compensation
whatsoever for his arbitrary detention, and only once denounced the torture
he was subjected to, but no written record was made of his testimony.
d.
Testimony of María Elena Castillo, journalist, La Republica newspaper,
Lima, Peru.
When
implementation of the anti-terrorism laws began in 1992, complaints began
to come in from people who had been accused, without evidence, of terrorism
or treason against the fatherland, prompting the press to investigate the
issue of the innocent in prisons. Many
of the complaints received by the press, in the context of the struggle against
subversion, dealt with the conviction of innocent people and with illegal
treatment and torture attributable to the police when conducting interrogations
and to the military when making arrests.
In many cases, torture could not be proven because the person affected
did not denounce it out of fear or because of threats to him or his family,
or because the existing evidence was insufficient. To a certain extent, the anti-terrorism laws contributed to this
situation, since lawyers were not given free access to prisons and the work
of prosecutors was made very difficult. Members
of the security forces were investigated for these facts, but she has no knowledge
of any sanctions actually being applied. In any case, with the approval of the Amnesty
Law of 1995, such acts could no longer be punished. This law granted amnesty to all the members
of the security forces and civilians who were the subject complaints, investigations,
trials or convictions, for acts committed in the struggle against terrorism.
She learned of Luis Alberto Cantoral-Benavides’ case, and the conditions
surrounding his arrest, from the case involving María Elena Loayza-Tamayo. People come out of prison with their lives turned upside down, with
their families is crisis, and without work. Since the State does not compensate those who have been pardoned,
there was no compensation for Mr. Benavides.
e.
Testimony of Víctor Álvarez-Pérez, Luis Alberto Cantoral-Benavides’ defense
lawyer
He
became Luis Alberto Cantoral-Benavides’ defense lawyer in April 1993. When
he took the case, it was in the military jurisdiction and two judgments had
already been rendered: one, from the Naval Investigating Judge, and another,
from the Superior War Council, in which his client had been acquitted of the
crime of treason against the fatherland. When Luis Alberto Cantoral-Benavides
was arrested, there was no outstanding warrant for his arrest, he was not
being sought, and he had not been accused.
In the indictment read by the Military Prosecutor for the crime of
treason against the fatherland, Cantoral-Benavides was accused of belonging
to the Movimiento de Socorro Popular – of Sendero Luminoso – and of being
one of the leaders of this subversive group.
It was difficult to mount a defense;
in force at the time was Law 25.475, which prohibited lawyers from
defending more than one person being tried for the crimes of treason against
the fatherland and terrorism; the documentation on the trial was voluminous,
containing information on more than 20 defendants; he was given one day to
read the file, but actually only had one afternoon to do so, which means he
could not study it in detail, making it impossible to mount a proper defense. In the hearing before the Supreme Council of
Military Justice, he was given 15 minutes to present his oral argument. He was taken to the venues of the other military
trials blindfolded and with a hood over his head. When Mr. Cantoral-Benavides was transferred
to the prison in Ica, the witness had to travel great distances to visit with
his client, and to be present when he gave his statement. There, he was able to meet with his client
in person, but a policeman was only a few meters away. When Cantoral-Benavides was transferred to
the “Miguel Castro-Castro” prison in Lima, there was what is known as a “locutorio,”
which is very small room where the lawyer can speak with his client through
a thick glass window, making it necessary for them to shout or write messages
on a piece of paper, since they could hardly hear each other. Five lawyers were next to them talking to
five other inmates, which made it even more difficult to carry on a conversation.
Lawyers were given 15 minutes, once or twice a week, to meet with their
clients.
Mr.
Cantoral-Benavides told him, in detail, of the torture he was subjected to.
Cantoral had suffered considerable injury, but emphasized that he was
more interested in gaining his freedom than in denouncing his mistreatment.
However, since he was abused while he was in the prison in Cachiche,
the Prosecutor in Ica was asked to investigate this situation. The situation in which Cantoral-Benavides found
himself, and his fear of reprisal and psychological trauma, made it very difficult
to lodge complaints regarding torture; furthermore, at the time, the crime
of torture was not clearly defined in the laws of Peru.
The
Supreme Council of Military Justice acquitted Luis Alberto Cantoral-Benavides
of the crime of treason against the fatherland and ordered his immediate release
in a judgment rendered on August 11, 1993, but it was never carried out.
The witness was not notified of the decision and did not find out about
it until a month later, when he filed a writ of habeas corpus on behalf of
three persons who were being tried in the same proceeding.
Immediately, he submitted a writ of habeas corpus on behalf of Mr.
Cantoral-Benavides, but it was declared inadmissible, since the judge, while
studying the case, found that the Chief Military Prosecutor had presented
an extraordinary motion for review of the judgment rendered on August 11,
1993. This was an illegal and unconstitutional
motion which was not, and is still not, covered in criminal legislation; review
is only permitted in the case of persons who have been convicted.
Said motion was based on alleged new evidence related to a handwriting
analysis of documents allegedly prepared by Luis Alberto Cantoral-Benavides
and others on trial, which led to the judgment of acquittal being reviewed
and modified, even though same was res
judicata. He was not notified
of the presentation of this motion for review by the Chief Military Prosecutor.
The
Council of Military Justice decided, in a judgment rendered on September 24,
1993, to remit the case to the regular jurisdiction, where the defendant was
to be tried for terrorism. Also, it revoked the release order issued on behalf
of Cantoral in the judgment of August 11, and interposed, before the Superior
Court of Lima, an extraordinary motion for review of the judgment of September
24, which was declared inadmissible by said court. The file was sent to the
Provincial Prosecutor for the 43rd District of the regular jurisdiction.
He was never informed of this officially, and had to wait until a “meeting
of parties” to learn that Luis Alberto Cantoral-Benavides was being accused
of terrorism based on the aforementioned handwriting evidence.
He did not see the originals of same, and was only allowed to see photocopies
when the trial began in the regular courts, because, apparently, this evidence
was submitted after the trial in the military jurisdiction had concluded. There, Cantoral-Benavides was charged with
preparing the documents in question and belonging to the subversive movement
Sendero Luminoso. Since the photocopies
were blurry and illegible, he requested the opinion of an expert witness for
the defense during the investigation stage of the trial. Handwriting samples were taken during the oral
proceeding. This evidence showed that Luis Alberto Cantoral-Benavides had
not prepared said documents. The experts
who had conducted the first test, which incriminated Luis Alberto Cantoral-Benavides,
did not appear before the court to ratify the content of same. Given the discrepancy
between the findings of the tests, there should have been a debate between
the experts, but this never took place. The same evidence used to convict Luis Alberto
Cantoral-Benavides was used to acquit Margarita Clarivel Mateo-Bullón of the
same charges, even though both were alleged to have prepared the documents.
Luis
Alberto Cantoral-Benavides was finally convicted of the crime of terrorism
and sentenced to 20 years in prison, based on the same facts for which he
was tried in the military jurisdiction. The charges against Luis Alberto Cantoral-Benavides
were never clear. Also, since the
definition of the crimes of treason against the fatherland and terrorism are
very similar, there was confusion regarding the charges against his client.
The Supreme Court of Peru upheld the judgment of the Superior Court
of Lima, based on the same merits. In the judgment, no consideration was given
to the allegation of res judicata made by the defense. As a lawyer, he faced difficulties in mounting
a defense in the ordinary jurisdiction, such as being prohibited, by law,
to represent more than one person, or to present any motion on behalf of persons
tried for the crimes of treason against the fatherland and terrorism; also,
he was not notified when the motions he presented were denied. In the regular jurisdiction, during the investigation
phase of the proceedings, the members of the Tribunal did not wear masks or
hoods, and it was possible to recognize them, but during the oral proceeding
the judges were hidden behind a two-way mirror and spoke through a microphone
that distorted their voices. As regards the military judges, when he went
to the Supreme Council of Military Justice in the process of preparing the
defense, he found five alleged judges, one judge advocate and one prosecutor,
who wore military uniforms and ski masks; it was possible to see the eyes
of only one or two of them because the others wore dark glasses.
He
was not subjected to direct threats or any type of hostility. However, his name was later found on a confidential
list of lawyers and journalists that were being investigated by the National
Intelligence Service of the Ministry of the Interior of Peru.
f.
Testimony of Rosa María Quedena-Zambrano, attorney, Deputy Executive Director
of the Ecumenical Foundation for the Development of Peace (FEDEPAZ).
She became aware of Luis Alberto Cantoral-Benavides’
acquittal via the presentation of a writ of habeas corpus on behalf of Pedro
Telmo Vega-Valle, who was being tried in the same proceeding. Only then did
she learn of the judgment of acquittal rendered by the Supreme Council of
Military Justice on August 11, 1993, since the habeas corpus had been declared
inadmissible based on said judgment. The judge who executed the judgment made an
error when transcribing it; he released three people who had actually been
convicted, rather than Luis Alberto Cantoral-Benavides, Margarita Mateo Bullón
and Ladislao Amán. Subsequently, orders were given to recapture all three.
A writ of habeas corpus was submitted
to the 26th Criminal Court of Lima to require the appearance of the special
Naval Investigating Judge identified with the code number BT1000-3000, on
behalf of Luis Alberto Cantoral-Benavides and the two other people acquitted
in the judgment of August 11, 1993. Said
writ was submitted on the grounds that the Supreme Council of Military Justice,
on September 24, 1993, modified the earlier judgment only as it referred to
Luis Alberto Cantoral-Benavides and Margarita Mateo-Bullón, and ordered that
the case be remitted to the ordinary jurisdiction, where they were to be tried
for terrorism. Based on this judgment,
the new writ of habeas corpus was declared inadmissible.
The extraordinary motion for review
presented by the Deputy General Prosecutor,
which provided the grounds for the review of the judgment of August
11, 1993, by said Council was illegal; the reasons put forth in same were
not admissible as such under the Code of Military Justice, since this case
involved a person who had been acquitted and a judgment that could not be
reviewed.
In October 1996, a request for a pardon
was presented on behalf of Luis Alberto Cantoral-Benavides because it was
the only means of obtaining his immediate release, even though he and his
mother, initially, refused to go along with the request. The case was presented to the ad hoc Commission created in August 1996.
After a thorough investigation, he was granted a pardon in June 1997.
It was very difficult to defend persons
being investigated or tried for the crimes of terrorism or treason against
the fatherland since they were held incommunicado from the time of their arrest.
It was difficult to gain access to the files, especially in the military
courts, and to interview clients. Many
people did not have a defense attorney while on trial, and could not exercise
their rights fully.
g.
Testimony of Elba Greta Minaya-Calle, former criminal judge of the First
Investigation Court of Lima at the time of the events in question.
On September 16, 1993, she was serving
as Criminal Judge of the First Investigation Court of Lima, and had jurisdiction
to receive writs of habeas corpus. According to the law, criminal judges were
not restricted in any way from entering any place they needed to visit, including
military facilities, where, at the time, certain restrictions had been imposed
by the military in violation of the law.
She was made aware of a writ of habeas
corpus interposed on behalf of Pedro Telmo Vega-Valle, Luis Guzmán-Casas and
Luis Fernando Cantoral-Benavides on the grounds that they had been arrested
arbitrarily; the writ was not executed properly at the Rospigilosi Castle
and she had difficulty gaining access to the visitors register. Later, the Supreme Council of Military Justice
gave her a copy of the judgment of August 11, 1993, in which she learned,
among other things, that Luis Alberto Cantoral-Benavides had been acquitted.
However, since he was not named in the writ in question, she could not issue
an opinion on the matter. She declared
the writ inadmissible in accordance with Article 6(2) of the Law on Habeas
Corpus, considering that the arrest had been properly ordered and had not
been arbitrary. Later, she found out
that there had been a judicial error on the part of the naval judge in charge
of imposing sentences; he ordered the release of three persons who had actually
been convicted, and left three that had been acquitted behind bars.
She has experienced difficulty in
submitting writs of habeas corpus to the military courts; for example, difficulties
in entering military facilities. She
has been harassed and threatened for attempting to administer justice.
In August 1997, after she gave testimony before the Inter-American
Court, the Ministry of the Interior ordered that she be investigated for treason
against the fatherland and terrorism. Later, she was also investigated by
the governing body of the judiciary.
h.
Testimony of Julio Guillermo Neira-Castro, retired commandant of the Peruvian
police, expert witness for the defense on internal processing.
He referred to the inconsistency of
the handwriting evidence used to determine the guilt of Luis Alberto Cantoral-Benavides,
since he had been called as an expert witness for the defense in the trial
against Cantoral-Benavides for terrorism.
The goal was to determine who had prepared the anonymous documents
that contained certain street addresses in the city of Lima. According to
the police, their evidence showed that Mr. Cantoral-Benavides had written
the word “canchas” (sport field or court) which appeared in the document. However, the police had not taken the appropriate
handwriting samples, thus making it impossible to determine authorship.
Several samples must be taken and the person must be allowed to write
freely; Luis Alberto Cantonal Benavides was handcuffed when the samples were
taken. The expert witness for the defense studied three documents, one
entitled “cronograma,” (timetable) a sketch and another entitled “plan de
accion,” (plan of action) and came to the conclusion that the sketch contained
in the document entitled “Volanteo” (distribution of leaflets) was not made
by Luis Alberto Cantoral-Benavides. As regards the other documents, it was
impossible to determine authorship given the poor quality of the photocopies,
which were not even legible and certainly could not be used to establish authorship.
i.
Expert testimony of Arsenio Oré-Guardia, an attorney specializing in criminal
procedural law.
The phenomenon of terrorism, which
was a fact of life in Peru from the 1980s to the mid-1990s, was a new kind
of crime for which the Peruvian criminal system was not prepared. This led to the passage of Decree Laws No.
25.475, of May 6, 1992, No. 25.659, of August 13, 1992, and No. 25.708, of
September 10, 1992, known as the anti-terrorism laws, which had an impact
on the principles of criminal procedural legality and of substantive criminal
legality. The implementation of these
laws violated the principle of due process.
As a common characteristic, Peruvian legislation creates a system that
is accusatory and humanitarian and calls for minimal intervention by the criminal
system, which co-exists with a system that is highly inquisitorial and authoritarian,
as, for example, in the case of the anti-terrorism laws. Thanks to the implementation of these laws,
the role of those in the penal system in the investigation and judgment of
crimes changed; in trials for terrorism and treason against the fatherland,
the police participated actively in the investigation. Consequently, it is
basically up to the police to decide in which court system each case is to
be heard, and whether a citizen being investigated is innocent or guilty. In many aspects, the anti-terrorism laws violated
the Constitution.
As regards the motion for review,
the judgment of the Supreme Council of Military Justice is res judicata in the military courts, and cannot be reviewed by a regular
court, because this would violate the principle of non bis in idem. Judgments
of acquittal cannot even be reviewed by the same jurisdiction, and guilty
verdicts are reviewed only if specific cause can be shown. For a person acquitted in the military courts
to be convicted in the regular courts for the same facts, is a perversion
of due process.
j.
Testimony of Gladys Benavides López de Cantoral, mother of Luis Alberto
Cantoral-Benavides.
She was informed over the phone that
two of her sons, Luis Alberto and Luis Fernando Cantoral-Benavides, had been
detained on February 6, 1993. The
house of her son Luis Alberto, located in La Victoria, in Lima, was a complete
mess when she arrived, and a neighbor told her that he had been detained by
the police at about three o’clock in the morning.
The police were looking for her eldest son Jose Antonio, who, it appeared,
had been accused by someone who confessed under duress. Since they did not find him, the police took
Luis Alberto, and his twin brother Luis Fernando decided to accompany him. She went to the DINCOTE to look for her sons,
where she was told that there was no one there with those last names.
It was not until the next day that they confirmed that they in fact
were there, but she was not allowed to speak to them because she was told
they were being investigated and, therefore, were being held incommunicado.
She had difficulties in finding a lawyer willing to defend her sons
because of the type of case involved, and because of the cost; she would have
to hire two lawyers, since it was illegal for the same lawyer to defend two
people. When she was finally able to retain the services
of two attorneys, four or five days after the arrest, they were not allowed
into the detention facility.
She was finally able to see her sons
eight days after their detention, and only on two occasions during their stay
at DINCOTE, the last being on February 25, 1993. The next day, they were paraded
before television cameras as terrorists. Next, they were taken to the holding cells at the Palace of Justice,
where she managed to see them only once, and later to the veterinary section
of a naval base. Then they were taken
back to the holding cells. Her son
Luis Alberto, who was in very poor health, was later transferred to the prison
in Ica.
She was not notified of Luis Alberto’s
transfer to Ica, and was not able to see him until two weeks later.
Before being allowed to enter, she was subjected to degrading treatment,
which included body searches and, on certain occasions, even vaginal searches.
Communication with her sons was difficult at best; she was allowed
to visit them only once a month, for one half hour, speaking to them through
a fence, with a policeman standing next to him, and another next to her. On one occasion, the prison doctor prescribed
some medication for her son Luis Alberto. She reported the mistreatment of her son to the National Prosecutor’s
Office in Lima, and two months later a prosecutor was sent to investigate
said allegations.
Her son was released almost five years
after his detention, when the ad hoc
Commission pardoned him, which was very humiliating because her son was
innocent and deserved to be acquitted. During Luis Alberto’s detention, the
family was threatened and harassed, and were kept under surveillance even
after her son was released. Also, the police launched an investigation of
the witness’s brother, whose telephone was tapped. As a consequence of all this, her health has suffered considerably.
VII
ASSESSMENT OF THE EVIDENCE
44.
Prior to the examination of the evidence received, the
Court will define the general criteria it will apply in assessing the evidence
in this case. Most of these criteria
have already been defined in the jurisprudence of this Tribunal.
45.
An international tribunal whose purpose is to protect
human rights, such as the Inter-American Court, has its own procedures, which
distinguish its proceedings from proceedings under domestic law. They are less formal and more flexible than
the latter, which does not mean that the Court disregards the legal protection
of and procedural balance for the parties.[9]
46.
Also, it is necessary to bear in mind that the international
protection of human rights must not be confused with criminal justice. When
States appear before the Tribunal, they are not engaged in a criminal proceeding.
The function of the Court is not to impose punishment on States or
persons guilty of violating human rights, but rather to protect victims from
such violations, declare States responsible for same internationally, when
appropriate, and order said States to provide compensation for the injury
caused by the acts in question.[10]
47.
In addition to direct evidence, be it testimonial, expert
or documentary, international courts, as well as domestic courts, can base
their judgments on circumstantial evidence, indications and presumptions,
provided same lead to sound conclusions regarding the facts. In this regard, the Court has already said
that
in the exercise
of its jurisdictional function, and in the process of obtaining and assessing
the evidence it needs to decide the cases it hears, it may, in certain circumstances,
use both circumstantial evidence and indications or presumptions as a basis
for its pronouncements, when consistent conclusions regarding the facts can
be inferred from same. [11]
48.
Also, as the Court has pointed out, the criteria used
by an international human rights tribunal in assessing evidence are broader,
and in determining the international responsibility of a State for the violation
of human rights, it has greater flexibility in assessing the evidence placed
before it in connection with the pertinent facts, in accordance with the rules
of logic and based on experience.[12]
49.
In this case, the Court will weigh the value of the
documents, testimony and expert opinions presented to it.
50.
As regards the documentary evidence submitted by the
Commission and by the State, the Court accepts the documents presented, which
were not contested or objected to, and, as a result, have been incorporated
into the evidence.
51.
Regarding the objection of the State to the statement
made by Luis Alberto Cantoral-Benavides in the holding cells of the Palace
of Justice on May 5, 1993, contained in the answer to the application, this
Court has taken into consideration the State’s allegation that said declaration
“lacks all credibility in terms of form and substance […] for example, neither
the pseudo-interviewer nor the authority before whom it was given is identified.”
Also, during the public hearing, Mr. Cantoral-Benavides was asked about
said statement, to which he responded that it had been given at the holding
cells of the Palace of Justice of Lima in the presence of his lawyer; his
lawyer was also asked about said statement, to which he replied that he had
recorded it at said holding cells, adding that “what is in the document appears
to be a transcription of everything [Luis Alberto Cantoral-Benavides] said
to me.”
52.
This Tribunal, as it has stated on other opportunities,
“uses it discretion in assessing the statements presented to it, in writing
or by other means. To do this, like any other tribunal, it can make a proper
assessment of the evidence following the rule of “reasoned judgment.””[13]
In consideration of the above and based on the preceding paragraphs, the Court
incorporates into the evidence the statement made by Luis Alberto Cantoral-Benavides
referred to in the preceding paragraph, which will be assessed in accordance
with the rules of reasoned judgment.
53.
The State also objected to the summons of the Naval
Investigating Judge identified with the code number BT-10003000, who did not
appear to make a statement even though he had been duly summoned. In objecting, Peru alleged that the identity
of the judges that participate in trials for the crimes of treason against
the fatherland and terrorism is kept secret, in accordance with domestic legislation
on the matter.
54.
This Court takes note of said objection. However, it holds that the parties must submit
to the Tribunal any and all evidence it requests, be it documents, testimony,
opinions of experts or other kinds. The States cannot use domestic considerations
as a pretext for failing to comply with the demands of this Court, such as
the failure of the aforementioned investigating judge to appear at the respective
public audience (supra para. 30).
55.
The parties, and in particular the State, must provide
the Tribunal with all the evidence required –as a matter of routine, as additional
evidence or at the request of a party- so that it may have as many criteria
as possible for assessing and reaching sound conclusions regarding the facts.
In trials dealing with violations of human rights it often happens
that the claimant is not in a position to provide evidence, since same, in
many cases, cannot be obtained without the cooperation of the State, which
exercises control over the means necessary to clarify events that have taken
place in their territories.[14]
56.
In the present case, in addition to not facilitating
the appearance of the aforementioned witness, the State failed on various
occasions to provide the following documentation: legislation related to all the procedural aspects of the extraordinary
motion for review; a certified copy of the motion for review of the judgment rendered by the Supreme Council
of Military Justice; the decision of the Supreme Court of Peru, dated October
22, 1993; the records of the military trial of Luis Alberto Cantoral-Benavides;
and documents the State was asked to re-submit because they were illegible. In addition to this, it refused to allow Mr.
Luis Guzmán-Casas’ testimony to be taken in Peru. Therefore, the Court considers that the State did not fulfill its
obligation to help clarify the facts of the case.
57.
As regards the medical certificate issued by the Peruvian
Institute of Forensic Medicine on February 8, 1993, two days after Cantoral-Benavides’
detention, on the basis of which it denied that the alleged victim had been
tortured, it is the criteria of the Court that said certificate is not enough
to weaken Cantoral-Benavides’ version of how he was treated in prison, considering
that it only proves the absence of injury at a given moment, probably prior
to the mistreatment to which he was submitted. Also, the file contains indications that make
it possible to affirm that the medical exam that led to the issuance of the
certificate (infra 63.g.) was not
thorough, and that it constituted little more than a mere administrative formality.
58.
Regarding the testimony given in the present case, the
Court accepts it only to the extent that is in keeping with the purpose of
the interrogation proposed by the Commission and, as for the expert opinion
of Mr. Arsenio Ore-Guardia, the Court accepts it because it is related to
the knowledge of the expert in the field of national or comparative law. With regard to the statement given by Mr. Julio Guillermo Neira, same is incorporated
into the evidence as testimonial evidence, since it was proposed as such by
the Commission in its application.
59.
As for the statement given by Luis Alberto Cantoral-Benavides,
the Court considers that, since he is the alleged victim in this case and
has a direct interest in same, his comments cannot be assessed in isolation,
but rather in light of the whole of the evidence of this proceeding. However,
it must be considered that the statements of Mr. Cantoral-Benavides have special
value, since it is he who can provide the most information regarding certain
facts and alleged violations committed against his person.
Taking into consideration the affirmations of the Commission regarding
the fact that the accused was held incommunicado, his testimony becomes highly
presumptive, since, if this fact could be demonstrated, it would imply necessarily
that only Mr. Cantoral-Benavides and the State would have knowledge of the
treatment the former received during the corresponding period.[15]
Therefore, said statement is incorporated into the evidence, with the reservations
expressed.
60.
As for the evidence produced in the Loayza-Tamayo case,
and incorporated into the evidence of the present case (supra para. 38) by decision of the Court,
it should be pointed out that same will be assessed within the context of
the whole of evidence in this proceeding, and in accordance with the rules
of “reasoned judgment.”
61.
As for the official letter from the Registry of Complaints
and Files (RUDE), the certification from the Executive Office of the Penitentiary
Record Center of the National Penitentiary Institute, and the certified copy
of the records of the trial of Luis Alberto Cantoral-Benavides et al. for the crime of terrorism, submitted
as additional evidence at the request of the Court, same shall be assessed
within the context of the whole of the evidence of this case.
62.
Decree Law No. 25.475 (Crime of Terrorism) is considered
useful in deciding the present case, and is added to the evidence of same,
in compliance with Article 44(1) of the Rules of Procedure.[16]
VIII
PROVEN FACTS
63.
From the examination of the documents, the witnesses’
testimony, the report from the expert and the statements of the State and
the Commission during the course of the proceedings, the Court considers the
following facts to have been proven:
a.
that on February 6, 1993, Luis Alberto Cantoral-Benavides
was detained, without an arrest warrant issued by a competent authority, by
agents of the DINCOTE at his home, located at Jirón Obreros 566, 4to piso
“A” in the La Victoria District of Lima, Peru; [17]
b.
that Luis Alberto Cantoral-Benavides had no prior criminal
record;[18]
c.
that the members of the DINCOTE arrived at the house
to detain José Antonio Cantoral-Benavides, Luis Alberto’s brother, but, when
he was not found, they detained Luis Alberto.
Luis Alberto Cantoral-Benavides’ twin brother, Luis Fernando Cantoral-Benavides,
voluntarily accompanied his brother to the police station, and was later detained
and sentenced to 25 years in prison;[19]
d.
that at the time of Luis Alberto Cantoral-Benavides’
detention a state of emergency was in effect in the Department of Lima and
the Province of Callao, and that the guarantees covered in sections 7 (inviolability
of domicile), 9 (freedom of movement in national territory), 10 (freedom of
association) and 20 g. (arrest with a warrant order or by police authorities
in cases of a crime detected in the act) of Article 2 of the Peruvian Constitution
in force at the time had been suspended; [20]
e.
that Luis Alberto Cantoral-Benavides was held incommunicado at DINCOTE
for eight or nine days, beginning on February 6, 1993, and it was not until
15 days after his detention that he was allowed to see a lawyer;[21]
f.
that while being held incommunicado at DINCOTE Luis Alberto Cantoral-Benavides
was subjected to, by the police and naval personnel, acts of violence in an
attempt to get him to confess; for example, he was blindfolded, cuffed with
his hands behind his back, forced to remain standing, struck in several parts
of his body and, together with his brother Luis Fernando Cantoral-Benavides
and another detainee, was taken to the beach at night, where he was subjected
to physical and psychological torture, and could not avoid hearing the cries
of his brother Luis Fernando Cantoral-Benavides as he was beaten by police
agents. Also, Luis Alberto Cantoral-Benavides was thrown to the ground, beaten,
interrogated and threatened with physical torture.
Also, he was held, together with animals, at the veterinary section
of the Las Palmas military base. [22]
g.
that two days after his detention at the police station he was visited
by a physician, who did not examine him thoroughly;[23]
h.
that writs of habeas corpus
could not be submitted on behalf of people being tried for the crimes of treason
against the fatherland and terrorism. On
November 25, 1993, with the promulgation of Lay No. 26.248, the presentation
of writs of habeas corpus for such crimes was permitted, except “writs of
habeas corpus based on the same facts and causes which are the subject of
a proceeding under way or already decided,” as in the case of Mr. Cantoral-Benavides;[24]
i. that Luis Alberto Cantoral-Benavides was displayed before
the media, wearing the striped garb of a prisoner, as a member of the Communist
Party of the Shining Path (hereinafter (“PCP-SL”) and as the perpetrator of
the crime of treason against the fatherland, even though he had not yet been
legally tried or convicted;[25]
j. that Luis Alberto Cantoral-Benavides was subjected to physical
violence, including beatings with a club, during his transfer and upon his
arrival at the Cristo Rey prison in Cachiche;[26]
k. that Luis Alberto Cantoral-Benavides spent the first year of
his incarceration in solitary confinement, in a small cell with no ventilation
or natural light, where he was held for twenty-three and a half hours a day;
the other half hour, he was allowed to be outside in a small yard. Also, he was permitted to see his relatives
only once a month, but could have no physical contact with them; he was restricted
from engaging in physical exercise or intellectual efforts; and he suffered
the consequences of overcrowding;[27]
l. that on February 25, 1993, police affidavit No. 49-DIVICOTE
3-DINCOTE was taken from Luis Alberto Cantoral-Benavides, in connection with
the crime of treason against the fatherland;[28]
ll. that Luis Alberto Cantoral-Benavides was tried in the military
jurisdiction, together with other defendants in a joinder, for the crime of
treason against the fatherland, a trial in which the following acts took place:
i)
in a judgment rendered on March 5, 1993, the Special
Naval Court acquitted him, but ordered the transfer of all police and judicial
records to the Provincial Prosecutor of Lima duty, for study and subsequent
action;
ii)
in a judgment rendered on April 2, 1993, the Special
Naval War Council upheld the judgment of the Special Court and decided to
acquit him, but ordered the transfer of the file to the Provincial Prosecutor
for criminal cases, in the regular jurisdiction, for action. The accused submitted an appeal for annulment
of said judgment;
iii)
in a judgment rendered on August 11, 1993, the Special
Tribunal of the Supreme Council of Military Justice for Matters of Treason
Against the Fatherland acquitted him of the crime of treason against the fatherland
and ordered his immediate release. The Special Deputy General Prosecutor submitted an extraordinary
motion for review; and
iv)
in a judgment rendered on September 24, 1993, the Full
Special Tribunal of the Supreme Council of Military Justice upheld the acquittal
of Luis Alberto Cantoral-Benavides, but ordered the transfer of the records
to the regular jurisdiction, where he was to be tried for the crime of terrorism;[29]
m.
that the judge responsible for executing the judgment calling for the
release of Luis Alberto Cantoral-Benavides released, by mistake, on August
25, 1993, his twin brother Luis Fernando Cantoral-Benavides, who had been
sentenced to 25 years in prison. Luis
Alberto Cantoral-Benavides was not released;[30]
n.
that on September 23, 1993, Luis Alberto Cantoral-Benavides’ attorneys
submitted a writ of habeas corpus to require the presence of the Special Naval
Investigating Judge identified with the code number BT-10003000, and all other
responsible parties, to execute the release ordered in the judgment of August
11, 1993, rendered by the Special Tribunal of the Supreme Council of Military
Justice for Matters Related to Treason Against the Fatherland. On September 24,1993, the 26th Criminal
Court of Lima took the writ under consideration and, in a decision rendered
on September 29, 1993, declared the writ of habeas corpus unfounded.
On October 22, 1993, an appeal for review was submitted to the Supreme
Court of Peru, but it did not succeed;[31]
ñ.
that Luis Alberto Cantoral-Benavides was tried in the regular jurisdiction
for the crime of terrorism, during which:
i)
on October 7, 1993, the Provincial Prosecutor’s Office
for the 43nd District of Lima submitted a criminal indictment to the 43nd
Criminal Court of Lima;
ii)
on October 8, 1993, the 43nd Criminal Court of Lima
ordered the opening of the investigation stage of the trial;
iii)
in a judgment rendered on October 10, 1994, the Special
Criminal Branch of the Superior Court of Lima sentenced him to 20 years in
prison for the crime of terrorism. Said
sentence was appealed by the petitioners; and
iv)
in a judgment rendered on October 6, 1995, the Supreme
Court of Peru upheld the judgment of October 10, 1994;[32]
o. that DINCOTE formulated the legal definition of the crime which
was used as the foundation for the proceedings before the military and regular
courts; that in cases involving the crime of treason against the fatherland
and terrorism a summary proceeding is conducted by “faceless” judges; and
that Luis Alberto Cantoral-Benavides was judged by “faceless” judges in both
jurisdictions;[33]
p.
that in the military trial of Luis Alberto Cantoral-Benavides his defense
lawyer faced difficulties in gaining access to the file, being given only
one afternoon to study same and prepare his arguments; he was not allowed
to speak openly and in private with his client; and he was given only fifteen
minutes to present his oral arguments; neither Cantoral-Benavides nor his
defense lawyer were notified of some of the aspects of the military criminal
proceedings; he had difficulty in gaining access to evidence and contesting
it; and hearings were held in military or penitentiary facilities, and were
not open to the public;[34]
q.
that during the trial in the regular jurisdiction for
the crime of terrorism, and even though Luis Alberto Cantoral-Benavides was
able to appoint a lawyer of his choosing, same was not allowed to present
a proper defense;[35]
r.
that on October 9, 1996, Luis Alberto Cantoral-Benavides
requested a pardon from the ad hoc Commission created under Law No. 26.655, and that in Supreme
Decision No. 078-97-JUS, of June 24, 1997, published in the El Peruano newspaper
on June 25, 1997, said benefit was granted to him;[36]
s.
that Luis Alberto Cantoral-Benavides was incarcerated
from February 6, 1993, to June 25, 1997, when he was released;[37]
t.
that during the time Luis Alberto Cantoral-Benavides
was under arrest, physical and psychological aggression against people being
investigated for the crimes of treason against the fatherland and terrorism
was a common practice;[38]
and
u.
that the State had knowledge of the acts of physical
and psychological aggression committed against Luis Alberto Cantoral-Benavides,
yet made no attempt to investigate same.[39]
IX
PRIOR CONSIDERATIONS ON THE
MERITS
64.
In the reply to the complaint, the State declared, based
on considerations of the internal laws of Peru (Article 305 of the Peruvian
Constitution of 1979, Article 205 of the Peruvian Constitution of 1993, and
Article 39 of Law No. 23.506 on Habeas
Corpus and Civil Rights Protection), that the Commission should have rejected
in-limine and ab-initio the petition submitted by the
petitioner, and that, likewise, the Court should not have admitted the complaint.
65.
The Court considers that, by making this allegation,
Peru is attempting to re-open, in the merits stage, some of the points already
decided in the judgment on preliminary objections rendered on September 3,
1998. This Tribunal dismisses the
State’s allegation, considering that same is totally inadmissible because
it addresses matters already decided in the aforementioned judgment, which
is final and cannot be appealed, under Article 67 of the Convention.
X
VIOLATION OF ARTICLES 7(1),
7(2), 7(3), 7(4) and 7(5)
RIGHT TO PERSONAL LIBERTY
66.
As regards the violation of Articles 7(1), 7(2), 7(3),
7(4), and 7(5) of the Convention, the Commission alleged that:
a)
Mr. Cantoral-Benavides was detained without a warrant
issued by a competent authority and which specified the reasons for his detention,
ignoring the basic procedures and requirements established in Article 2.20.g)
of the Peruvian Constitution of 1979;
b)
Mr. Cantoral-Benavides was held incommunicado for eight
days and was not permitted to see his relatives; for five (sic) days he had
no access to a lawyer; and he was held for 20 days at the facilities of the
DINCOTE, being brought before the Special Naval Court on February 26, 1993.
The Commission considers that, for these reasons, it is shown that
the Peruvian State violated Article 7(5) of the Convention;
c)
Mr. Cantoral-Benavides was held prisoner even though
the judgment rendered on August 11, 1993, which was considered res judicata, ordered his release. This happened because an illegal motion for
review was accepted. An extraordinary
motion for review of a final judgment for acquittal is not permitted in either
a military or regular criminal proceeding.
According to Article 690 of the Code of Military Justice, there are
four situations in which a motion for review of a guilty verdict is permitted,
but none of them applied to the circumstances of this case because the judgment
of August 11 was a judgment for acquittal;
d)
Mr. Cantoral-Benavides’ detention and the trials he
was subjected to were not supported by reasonable grounds of incrimination;
and
e)
given the above, Mr. Cantoral-Benavides’ detention constitutes
a violation of the right set forth in Article 7(2) and 7(3) of the Convention.
67.
For its part, the State alleged that;
a)
on February 6, 1993, when Mr. Cantoral-Benavides was
detained, the Department of Lima and the Province of Callao were under a state
of emergency, in accordance with Article 231.a) of the Peruvian Constitution
of 1979. Said Article states that, under a state of emergency, the constitutional
guarantees set forth in Article 2, subsections 7 (inviolability of domicile),
9 (freedom of movement in national territory), 10 (freedom of association)
and 20.g) (arrest with a warrant or by police authorities in cases of a crime
detected in the act) of the same Constitution, could be suspended. The state of emergency was legally decreed
by the President of the Republic, with the consent of the Council of Ministers;
b)
the arrest or detention of Mr. Cantoral-Benavides was
neither arbitrary nor illegal since it was carried out within the constitutional
and legal framework in force in Peru, meaning that his personal liberty was
not violated under the terms of Article 7 of the Convention; and
c)
since it is a rule of procedure, there is room for interpretation
as to the use of the motion for review in the military jurisdiction.
*
* *
68.
Article 7 of the American Convention states, in numerals
1 to 5, that:
1. Every person has the right to personal liberty and security.
2. No one shall be deprived of his physical liberty except
for the reasons and under the conditions established beforehand by the constitution
of the State Party concerned or by a law established pursuant thereto.
3. No one shall be subject to arbitrary arrest or imprisonment.
4. Anyone who is detained shall be informed of the reasons
for his detention and shall be promptly notified of the charge or charges
against him.
5. 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.
69.
The Court will now examine whether Mr. Cantoral-Benavides
was detained for the reasons and under the conditions set forth in the Peruvian
Constitution and in the laws established pursuant thereto.
70.
The Peruvian Constitution of 1979, in force at the time
of the events, states in Article 2.20.g):
No one may be
detained without a written warrant from a judge, except in the case of crimes
detected in the act, in which case the police are authorized to carry out
the detention.
In any case,
the detainee must be brought before the corresponding court within twenty-four
hours, depending on the distance involved.
Exceptions are
cases of terrorism, espionage and drug trafficking, in which police authorities
may arrest and hold the alleged perpetrators for a term not to exceed fifteen
calendar days, and are responsible for reporting same to the Office of the
Public Prosecutor and the Judge, who may assume jurisdiction prior to the
expiration of this term.
71.
Article 231.a) of the Peruvian Constitution of 1979,
stated:
The President
of the Republic, with the consent of the Council of Ministers, decrees, for
an indefinite period of time, in all or part of the national territory, and
reporting same to the Congress or the Standing Commission, the states of emergency
considered in this Article:
a) State of emergency, in cases of disturbances
of the peace or internal order, of catastrophes or of grave circumstances
that affect the life of the Nation. In such cases, the constitutional guarantees related to personal
liberty and security, inviolability of domicile, freedom of association and
freedom of movement in national territory, covered in subsections 7, 9 and
10 of Article 2, and in subsection 20-g of the same Article 2 […], may be
suspended
72.
This Tribunal has noted that
[S]ince the suspension
of guarantees must not exceed […] the exact amount of time needed to respond
to the emergency, all actions taken by the public powers that exceed those
limits are illegal; these limits must be specified in the provisions decreeing
the state of emergency, even within the situation of juridical exception in
force.[40]
73.
As part of its efforts to combat terrorism, the State
issued Decree Laws No. 25.475, which refers to the crime of terrorism, on
May 5, 1992, and No. 25.744, which refers to the crime of treason against
the fatherland, on September 27, 1992. The
first states, in Article 12.c), that a person allegedly implicated in the
crime of terrorism can be held under arrest for a period not to exceed fifteen
calendar days, and that same is to be reported within 24 hours to the Office
of the Public Prosecutor and the criminal judge.
According to Article 2.a) of Decree Law No. 25.744, said term of 15
days could be extended for an equal period without the person being brought
before a judicial authority. This Court has noted that such provisions contradict
the Convention, which states “Any person detained shall be brought promptly
before a judge or other officer authorized by law to exercise judicial power.”[41]
74.
It has been proven that Luis Alberto Cantoral-Benavides
was held for many days without knowing the reasons for his arrest or the charges
against him (supra para. 63. a.
and e.).
75.
Also, the Court considers that the trial of Mr. Luis
Alberto Cantoral-Benavides in the military criminal court violated Article
8(1) of the American Convention, which refers to the right to a fair trial
before a competent, independent and impartial judge (infra
para. 115). Consequently, the
fact that Cantoral-Benavides was brought before a military criminal judge
does not meet the requirements of Article
7(5) of the Convention. Also, the
continuation of his detention by order of the military judges constituted
arbitrary arrest, in violation of Article 7(3) of the Convention.
76.
The legal principle set forth in Article 7(5) of the
Convention was not respected in this case until the accused was brought before
a judge in the regular jurisdiction. In
the file, there is no evidence of the date on which this occurred, but it
can be reasonably concluded that it took place in early October 1993, since
on October 8, 1993, the 43rd Criminal Court of Lima ordered that
the investigation stage of a trial be opened against Cantoral-Benavides.
77.
Therefore, the Court concludes that the State violated,
to the detriment of Luis Alberto Cantoral-Benavides, Article 7(1), 7(2), 7(3),
7(4) and 7(5) of the American Convention.
XI
VIOLATION OF ARTICLE 5
RIGHT TO HUMANE TREATMENT
78.
As regards the violation of Article 5 of the Convention,
the Commission alleged that:
a)
Mr. Cantoral-Benavides
was subjected to physical and psychological violence by police authorities
while held incommunicado at DINCOTE, and by naval personnel, in an attempt
to get him to incriminate himself. He was not held incommunicado in order to prevent
the obstruction of the investigation of the facts, nor was this an exceptional
measure;
b)
the fact that Mr. Cantoral-Benavides was held incommunicado
“arbitrarily,” and the prison conditions in which he was held, constituted
cruel and inhuman treatment that caused him suffering and psychological trauma;
c)
the persons investigated in trial No. 634-93 before
the regular court, and who were being held at the same time as Mr. Cantoral-Benavides,
affirmed that “they were subjected to torture similar to that imposed on”
him while he was held by the police. The investigation conducted by the Office of the Public Prosecutor
of the petition related to the rape of Mrs. María de la Cruz Pari established
that several detainees were taken to the beach at night by members of the
police, “which in itself constitutes an irregular procedure which is not in
keeping with the rules of procedure of the internal legal system of Peru;”
d)
the State “did not deny or challenge the facts that
had been denounced, limiting itself, instead, to saying that the complainant
had not proven the facts he had denounced;” and
e)
Gladys Benavides-de-Cantoral, Luis Alberto Cantoral-Benavides’
mother, suffered cruel, inhumane and degrading treatment from the Peruvian
authorities, and alluded to the “pain, humiliation, helplessness, uncertainty
and frustration she felt as a result of the deceit and mistreatment” she was
subjected to when she asked about her detained sons and when she visited them
in jail. She also stated that Luis
Fernando Cantoral-Benavides, Luis Alberto Cantoral-Benavides’ brother, was
also subjected to torture and cruel, inhuman and degrading treatment by the
Peruvian authorities. As a consequence,
the Commission asked the Court to declare that Article 5(1) and 5(2) of the
Convention, as they relate to Article 1(1) of same, had been violated to the
detriment of Mrs. Benavides-de-Cantoral and Mr. Luis Fernando Cantoral-Benavides.
79.
For its part, the State alleged that:
a)
when the facts occurred, the Department of Lima and
the Province of Callao were under a state of emergency, as per Article 231.a)
of the Peruvian Constitution of 1979, in force at the time. The aforementioned article stated that once
a state of emergency had been declared, constitutional guarantees could be
suspended;
b)
police authorities did not engage in torture or coercion
to the detriment of Mr. Cantoral-Benavides. Since such illegal actions did not take place “it is unlikely that
“proof” to the contrary could exist.” According
to the State, this affirmation is corroborated by medical certificate No.
5313-L, of February 8, 1993, and by the statement of the accused himself,
given in the presence of his lawyer, Washington Durán-Abarca, and a representative
of the Office of the Public Prosecutor, neither of which reveal facts that
could have affected Mr. Cantoral-Benavides’ physical well-being;
c)
the statement given by Mr. Cantoral-Benavides on May
5, 1993, in the holding cells of the Palace of Justice of Lime lacks all validity,
since it was not taken in compliance with legal requirements;
d)
from the time of his detention, Mr. Cantoral-Benavides
had access to a representative of the Office of the Public Prosecutor and
his defense lawyer, who neither filed complaints nor denounced his mistreatment,
a fact corroborated by the certifications of his perfect “mental and psychological”
state; and
e)
therefore, the State had not violated Article 5 of the
Convention.
*
* *
80.
Article 5 of the American Convention states, in numerals
1 and 2, 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.
81.
The file of the proceeding before this Court reveals
that Mr. Cantoral-Benavides was held incommunicado for the first eight days
of his detention (supra para. 63.e).
82.
Under international human rights law it has been established
that people are to be held incommunicado during detention only in exceptional
situations, and that to do so may constitute an act contrary to human dignity.
83.
Dating back to its earliest judgments, this Court has
established that
Prolonged isolation
and being held incommunicado constitute, in themselves, forms of cruel and
inhuman treatment, harmful to the mental and moral integrity of the person
and to the right of all detainees of respect for the inherent dignity of the
human being.[42]
84.
In the Suárez-Rosero
case (1997), the Court spoke out again on holding a person incommunicado,
stating that same can only be decreed as an exceptional measure, since it
can cause the detainee to suffer extreme psychological and moral injury. The Court has said that
[O]ne of the
reasons why holding a person incommunicado is viewed as an exceptional instrument
is because of the serious impact it has on the detainee. Isolation from the outside world causes any
person to suffer moral and psychological trauma, making him/her particularly
vulnerable and increasing the risk of aggression and arbitrariness in jails.[43]
85.
As regards prison conditions, the Court accepts as proven
the fact that Mr. Cantoral-Benavides was held in strict isolation for one
year, in a crowded cell with other prisoners, without ventilation or natural
light, and that he was permitted to receive few visitors (supra para. 63.k). Also, the evidence presented clearly reveals
that the medical attention given to the victim was very deficient (supra para. 63.g). Also, it has been established in this same
judgment that 20 days after being incarcerated, when he had not yet been tried,
much less convicted, Mr. Cantoral-Benavides was paraded before the media,
dressed in defamatory clothes, along with other prisoners, as the perpetrator
of the crime of treason against the fatherland (supra para. 63.i).
86.
The United Nations Human Rights Committee (hereinafter
the “Human Rights Committee”) has
held that the detention of a prisoner with other persons, in conditions that
pose a threat to his/her health, constitutes a violation of Article 7 of the
International Covenant on Civil and Political Rights.[44]
87.
The Inter-American Court has stated that
all persons detained
have the right to live in prison conditions that are in keeping with personal
dignity, and the State must guarantee their right to life and personal integrity.
Consequently, the State, which is responsible for detention facilities,
is the guarantor of these rights of detainees.[45]
88.
In the provisional measures related to the case of Mrs. María Elena
Loayza-Tamayo, who was tried at the same time as Mr. Cantoral-Benavides for
the crimes of treason against the fatherland and terrorism, this Tribunal
concluded that the prison conditions for persons accused of such crimes did
not comply with the provisions of the American Convention, and ordered the
State
to modify the
conditions in which Maria Elena Loayza-Tamayo was being held, especially as
regards her isolation in cell(s), for the purpose of bringing such conditions
into line with the provisions of Article 5 of the American Convention […].[46]
Also, it ordered the State to provide
the prisoner with medical attention, both physical and psychological, as soon
as possible.
89.
The Court has established that
Holding a person
incommunicado, public exhibition in defamatory clothing before the media,
isolation in a small cell, without ventilation or natural light, […] restriction
of visiting rights […], constitute forms of cruel, inhuman and degrading treatment,
as per Article 5(2) of the American Convention.[47]
90.
Also, the Court, for its part, has reiterated that “a
person illegally detained […] is in a situation of heightened vulnerability
in which there is a high risk of his/her rights being violated, such as the
right to physical integrity and to be treated with dignity.”[48]
91.
There are sufficient reasons to assert that, in addition
to being held incommunicado, and having been subjected to very hostile and
restrictive prison conditions, Mr. Cantoral-Benavides was on several occasions
beaten and physically mistreated in other ways, and that this caused him severe
bodily injury and emotional suffering (supra para. 43.a. and 63.f. and j.).
92.
Other persons tried along with Mr. Cantoral-Benavides
said in their statements that they suffered acts of aggression similar to
those inflicted upon him (supra paras.
38 and 43.c.).
93.
The Courts deems it pertinent to consider the facts
that make up the present case in the context of the practices prevailing at
the time in Peru vis-à-vis persons
accused of the crimes of treason against the fatherland and terrorism.
94.
When adopting the judgment on merits in the Loayza-Tamayo case (1997), whose evidence
was incorporated into the file of the present case (supra para. 38), the Court affirmed that
During the time
Mrs. María Elena Loayza-Tamayo was detained, cruel, inhuman and degrading
treatment during criminal investigations into the crimes of treason against
the fatherland and terrorism was common practice in Peru […].[49]
95.
The Court must now determine whether the facts referred
to above constitute torture, cruel, inhuman and degrading treatment, or both,
in violation of Article 5(2) of the American Convention. It must be clearly understood that, regardless
of the nature of the acts referred to, they are strictly prohibited under
international human rights law. To
this end, the European Court of Human Rights has noted, in reference to Article
3 of the European Convention on Human Rights, that same
strictly prohibits
torture and inhuman or degrading punishment or treatment regardless of what
the victim has done. Article 3 provides
for no exceptions, in contrast with most of the principles of the Convention
[…] and […] does not permit derogation
even in the case of a public danger which threatens the life of the nation.[50]
The aforementioned Tribunal has specified,
on repeated occasions, that said prohibition applies even in the most difficult
of circumstances for the State, such as those involving aggression by terrorist
groups or large-scale organized crime.[51]
96.
Along the same lines, the Inter-American Court has warned
that the fact that a State is confronted with terrorism should not lead to
restrictions on the protection of the physical integrity of the person. Specifically, the Court has stated that
[A]ny use of
force that is not strictly necessary, given the behavior of the person detained,
constitutes an affront to human dignity […] in violation of Article 5 of the
American Convention. The need to conduct investigations and the undeniable
difficulties inherent to combating terrorism are not grounds for placing restrictions
on the protection of the physical integrity of the person.[52]
97.
The European Court has underscored that fact that one
of the elements considered in defining torture in Article 1 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
is the intentional infliction of physical or mental pain or suffering for
certain purposes, such as obtaining information from a person, or intimidating
or punishing him/her.[53]
98.
The Inter-American Convention Against Torture, in Article
2, defines torture as
any act intentionally
performed whereby physical or mental pain or suffering is inflicted on a person
for purposes of criminal investigation, as a means of intimidation, as personal
punishment, as a preventive measure, as a penalty, or for any other purpose.
Torture shall also be understood to be the use of methods upon a person intended
to obliterate the personality of the victim or to diminish his physical or
mental capacities, even if they do not cause physical pain or mental anguish.
And adds:
The concept of
torture shall not include physical or mental pain or suffering that is inherent
in or solely the consequence of lawful measures, provided that they do not
include the performance of the acts or use of the methods referred to in this
article.
99.
The European Court has pointed out recently that certain
acts that were classified in the past as inhuman or degrading treatment, but
not as torture, may be classified differently in the future, that is, as torture,
since the growing demand for the protection of fundamental rights and freedoms
must be accompanied by a more vigorous response in dealing with infractions
of the basic values of democratic societies.[54]
100.
It should be pointed out that, according to international
standards for protection, torture can be inflicted not only via physical violence,
but also through acts that produce severe physical, psychological or moral
suffering in the victim.
101.
Both the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, and the Inter-American Convention
on the same subject, make reference to this possibility. Also, by institutionalizing the right to personal
integrity, the latter of these two international instruments makes explicit
reference to respect for the psychological and moral integrity of the person.
102.
International jurisprudence has been developing the
notion of psychological torture. The
European Court of Human Rights has established that the mere possibility of
the commission of one of the acts prohibited in Article 3 of the European
Convention is sufficient to consider that said article has been violated,
although the risk must be real and imminent.
In line with this, to threaten someone with torture may constitute,
in certain circumstances, at least “inhuman treatment.”[55] That same Tribunal has decided that, for purposes
of determining whether Article 3 of the European Convention on Human Rights
has been violated, not only physical suffering, but also moral anguish, must
be considered.[56] Having examined communications received from
individuals, the United Nations Human Rights Committee has classified the
threat of serious physical injury as a form of “psychological torture.”[57]
103.
The above leads to the conclusion that a true international
system prohibiting all forms of torture has been put in place.
104.
Considering the circumstances of the case, and the context
in which the facts took place, this Tribunal considers, beyond a reasonable
doubt, that at least some of the acts of aggression examined in this case
can be classified as physical and psychological torture. The Court also considers that said acts were
planned and inflicted deliberately upon Mr. Cantoral-Benavides for at least
two purposes. Prior to his conviction, the purpose was to wear down his psychological
resistance and force him to incriminate himself or to confess to certain illegal
activities. After he was convicted,
the purpose was to subject him to other types of punishment, in addition to
imprisonment.
105.
As regards the alleged violation of Article 5(1) and
5(2) of the Convention vis-à-vis
the relatives of Mr. Cantoral-Benavides, the Court recognizes that the situation
Mrs. Gladys Benavides-de-Cantoral and Mr. Luis Fernando Cantoral-Benavides,
mother and brother of the victim, respectively, went through as a result of
his detention and imprisonment caused them severe suffering and anguish, but
the Tribunal will assess same when setting necessary reparations for proven
violations of the American Convention.
106.
Given the above, the Court concludes that the State
violated, to the detriment of Mr. Luis Alberto Cantoral-Benavides, Article
5(1) And 5(2) of the American Convention.
XII
VIOLATION OF ARTICLE 8
RIGHT TO A FAIR TRIAL
107.
The Commission alleged that, in the present case, the
State had violated the following rights and guarantees of due process covered
in the American Convention: to a hearing
before an independent and impartial tribunal (Article 8(1)); to the presumption
of innocence (Article 8(2)); to have adequate time and means to prepare a
proper defense (Article 8(2)c); to choose a lawyer (Article 8(2)d); to question
witnesses (Article 8(2)f); to not be compelled to be a witness against himself
and to speak without coercion of any kind (Article 8(2)g and 8(3)); to not
be subjected, after being acquitted in a nonappealable judgment, to a new
trial for the same facts –non bis in
idem- (Article 8(4)), and to a public trial (Article 8(5)).
Violation
of Article 8(1) of the Convention
Competent,
independent and impartial judge
108.
As regards the violation of Article 8(1) of the Convention,
the Commission alleged that:
a)
Mr. Cantoral-Benavides was judged, both in the military
and regular courts, by “faceless judges” who lacked the independence and impartiality
demanded by Article 8(1) of the Convention;
b)
Decree Law 25.659 (Crime of Treason Against the Fatherland)
states that persons accused of having committed said crime shall be judged
by military judges. By expanding the
military jurisdiction to include civilians, Peru contradicts due respect for
the guarantees of the administration of justice and the right of persons to
be judged by the appropriate and competent judge. The exclusive military jurisdiction is a special jurisdiction which
is subordinate to the Executive Branch; and
c)
when the military jurisdiction is expanded to include
civilians, the independence and impartiality of judges cannot be guaranteed.
The armed forces are responsible for combating subversion and, at the
same time, assume the function of judging those accused of belonging to irregular
armed groups.
109.
For its part, the State alleged that:
a)
Article 233(1) of the Peruvian Constitution of 1979
established that military justice and arbitrational justice were separate
from regular or common justice, a provision contained in Article 139(1) of
the Constitution in force and in numeral III of the preliminary chapter of
the Organic Law of Military Justice (Decree Law No. 23.201);
b)
in accordance with Decree Law No. 25.659, the so-called
“faceless judges” who try the crime of treason against the fatherland in the
military jurisdiction have the required professional credentials. Said jurisdiction is made up of officers of
the Military Justice Corps who have a law degree, and its composition, as
well as the recruitment and promotions of its officers are regulated by Article
623 et seq. of the Organic Law of Military
Justice (Decree Law No. 23.201) and complementary rules;
c)
the “faceless judges” in both the military and regular
courts issue decisions in their field of competence when judging the crimes
of treason against the fatherland and terrorism, and convict or acquit the
accused as the case may be; and
d)
the special military tribunals that investigate and
judge the crime of treason against the fatherland, and the tribunals of the
regular criminal court system qualified to hear cases of terrorism, were the
ideal jurisdictional organs, given the gravity of the internal situation in
Peru in 1992 and 1993. Said tribunals
fell within the scope of Article 8(1) of the Convention, and the special legislation
complied with the provisions of Article 27(1) of same.
*
* *
110.
Article 8(1) of the American Convention reads:
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.
111.
The Court notes that Decree Law No. 25.744, of September
27, 1992, regarding trials of treason against the fatherland, granted the
DINCOTE investigative powers regarding the corresponding crimes and determined
that same should be tried by military judges even if committed by civilians,
in a summary proceeding “in the theatre of operations,” as provided for in
the Code of Military Justice.
112.
It is important to point out that the military jurisdiction
is established in several laws, in order to maintain order and discipline
within the armed forces. Therefore,
its application is reserved for military personnel who have committed crimes
or misdemeanors in the performance of their duties and under certain circumstances.
In this regard, the military jurisdiction was regulated under Peruvian law
(Article 282 of the Constitution of 1979). The transfer of jurisdiction from the regular
courts to military courts, and the subsequent trying of civilians for the
crime of treason against the fatherland in these courts, as in this case,
excludes the appropriate judge from hearing such cases. In this regard, the Court has said that “[w]hen
the military courts assume jurisdiction over a matter that should be heard
by the regular courts, the right to the appropriate judge is violated, as
is, a fortiori, due process, which,
in turn, is intimately linked to the right of access to justice.”[58]
113.
In a recent case, the Court determined that
[i]n a democratic
state of law, the criminal military jurisdiction is to be restricted and exceptional
in scope and intended to protect special juridical interests linked to the
duties assigned to the armed forces by law. Therefore, civilians are not to be judged in this jurisdiction,
and only military personnel are to be tried for crimes or misdemeanors which,
by their very nature, harm the juridical interest of the military.[59]
114. The Court considers that the military courts of the State that
judged the alleged victim for the crime of treason against the fatherland
do not meet the requirements of independence and impartiality established
in Article 8(1) of the Convention. The
Court considers that in a case such as the present one, the impartiality of
the judge is affected by the fact that the armed forces have the dual function
of combating insurgent groups with military force, and of judging and imposing
sentence upon members of such groups. On
another occasion, this Tribunal asserted that
according to
the Organic Law of Military Justice, the appointment of the members of the
Supreme Council of Military Justice, the highest ranking body within the military
jurisdiction, is the responsibility of the Minister of the pertinent sector.
The members of the Supreme Military Council, in turn, determine the
promotions, professional incentives and assignment of duties of their subordinates. This fact raises questions regarding the impartiality of the military
judges. [60]
115. For these reasons, the Court concludes that the State violated,
to the detriment of Luis Alberto Cantoral-Benavides, Article 8(1) of the American
Convention. It also concludes that,
as a result of this determination, Article 8(2)c), d) and f) (the means necessary
to prepare a proper defense, to choose a lawyer, to question witnesses), 8(4)
(non bis in idem) and 8(5)(a public
trial), as they pertain to the military criminal trial of Luis Alberto Cantoral-Benavides,
were also violated.
Violation
of Article 8(2) of the Convention
Presumption
of Innocence
116.
As regards the violation of Article 8(2) of the Convention,
the Commission alleged that:
a)
the “faceless judges” who participated in the present
case entered the case with prejudice and assumed a priori that the accused was guilty, meaning that Peru violated Article
8(2) of the Convention. It is the
obligation of the State to prove the guilt of the accused, not the obligation
of the accused to prove his/her innocence;
b)
in the present case, the indications taken into consideration to convict
Luis Alberto Cantoral-Benavides “did not meet the requirements of formality,
precision and compatibility needed to establish the subjective link that must
exist between the perpetrator of the criminal offense and the criminal act;”
c)
the detention and trials of Mr. Luis Alberto Cantoral-Benavides were
not supported, in fact or in law, by reasonable grounds for incrimination,
since Peru punished an innocent person whose link to terrorist activities
was not demonstrated; and
d)
Peru also violated the principle of presumption of innocence when,
on February 26, 1993, Mr. Cantoral-Benavides was “paraded by the DINCOTE before
the media, dressed in a striped uniform, as a member of the PCP-SL and as
the perpetrator of the crime of treason against the fatherland.”
117.
For its part, the State alleged that:
a)
Peruvian law guarantees the presumption of innocence
in Articles 2(20)f) of the Constitution of 1979, 12.c) of Decree Law No. 25.475
and 13 of Decree Law No. 24.475. According
to the State, the Commission is attempting
to disavow the
legitimacy of the special processes of investigation and judgment for the
crimes of treason against the fatherland in the exclusive military jurisdiction;
however, when arguing against the outcome of the trial of the same person
in the regular courts, it reaffirms its action because it involved a judgment
favorable to it; and
b)
the Commission cannot rightfully, via judicial maneuvers,
claim a violation of the right to the presumption of innocence since, based
on the evidence presented initially, the criminal liability of Mr. Cantoral-Benavides
was corroborated and accredited during the proceedings. The burden of proof lies with the accuser and,
in the present case, the proof consisted of the expert handwriting evidence
which was the basis for the presumption of liability for the crime of terrorism,
and was corroborated during the criminal proceeding in the regular courts,
which determined said liability.
*
* *
118.
Article 8(2) of the Convention reads:
Every person
accused of a criminal offense has the right to be presumed innocent so long
as his guilt has not been proven according to law.
119.
The Court observes, in the first place, that in the
present case it is proven that Mr. Cantoral-Benavides was paraded before the
media, dressed in defamatory clothing, as the perpetrator of the crime of
treason against the fatherland, before he had been legally tried or convicted
(supra para. 63.i.).[61]
120.
The principle of presumption of innocence, as stated
in Article 8(2) of the Convention, demands that a person cannot be convicted
unless there is clear evidence of his criminal liability. If the evidence
presented is incomplete or insufficient, he must be acquitted, not convicted.
121.
In the criminal proceedings against Luis Alberto Cantoral-Benavides,
full evidence of his liability was not presented; nonetheless, the judges
in the regular courts sentenced him to 20 years in prison.
This situation was expressly recognized by the State, as can be seen
in Supreme Decision No. 078-97-JUS, of June 24, 1997, which was added to the
file by the State, and says textually:
HAVING SEEN:
The application presented by Luis Alberto Cantoral-Benavides and Report No.
127-97/CAH, prepared by the ad hoc Commission
created under Law No. 26.655, in which a pardon is recommended;
WHEREAS:
Under Law No.
26.655, an ad hoc Commission was
created to study cases and propose that the President of the Republic, in
exceptional situations, grant a pardon
and act of grace, to persons who
have been convicted of terrorism or treason against the fatherland on the
basis of insufficient evidence which enables the Commission to assume,
reasonably, that they had no link to terrorist elements, activities or organizations;
and
Since the application
of Luis Alberto Cantoral-Benavides
falls within the scope of Article 1 of Law No. 26.655, the members of the
aforementioned ad hoc Commission have unanimously recommended that Luis Alberto
Cantoral-Benavides be granted a pardon;
Pursuant to Article
118, subsection 21) of the Peruvian Constitution, it is the prerogative of
the President of the Republic to grant pardons;
IT IS RESOLVED:
Article one.
To grant a PARDON to LUIS ALBERTO CANTORAL-BENAVIDES, who is in the
Miguel Castro-Castro Prison.
Be it known,
(in italics outside the text)
122.
Consequently, the Court considers that the State violated,
to the detriment of Luis Alberto Cantoral-Benavides, Article 8(2) of the American
Convention.
Violation
of Article 8(2)c), d) and f) of the Convention
to prepare
a proper defense
to choose
a lawyer
to question
witnesses
123.
As regards the violation of Article 8(2)c), d) and f)
of the Convention, the Commission alleged that:
a)
The Peruvian State violated Article 8(2)c) of the American
Convention, mentioning in support of this claim, “inter alia the limited communication between Luis Alberto [Cantoral-Benavides]
and his defense lawyers and the failure to notify them of resolutions and
procedural matters.” Also, it referred
to the difficulties faced by lawyers in gaining access to the file; to the
material aspects of communication between the accused and his lawyers; and
to the fact that the judges in charge of the military trial wore field uniforms,
side arms and ski masks “for the purpose of intimidating the defense lawyer,
who was taken to the military facilities blindfolded;”
b)
the State violated Article 8(2)d) of the Convention
in that it made it difficult for Mr. Cantoral-Benavides to select a lawyer
of his choosing by assigning lawyers to his case; and
c)
Articles 13.c) and 2.b) of Decree Laws No. 25.475 and
No. 25.744, respectively, state that those involved in the preparation of
the police affidavit, and the members of the armed forces that captured the
accused, may not appear as witnesses before the court hearing the case. Consequently, the members of the DINCOTE that
drew up the police affidavit that incriminated Luis Alberto Cantoral-Benavides
did not make statements during the criminal proceedings.
124.
For its part, the State alleged that:
a)
Mr. Cantoral-Benavides, throughout his detention and
during the trials in the military and regular courts, was assisted by lawyers,
and that “the right to a defense was respected at all times, there being no
statement or certification to the contrary, nor complaint or denunciation
regarding the quality of the defense provided;” and
b)
as regards the impossibility of summoning as witnesses
police officials or members of the armed forces who prepared the police affidavit
or participated in the capture or detention, this is forbidden by law and
does not constitute a violation of Article 8.f) of the Convention.
*
* *
125.
Article 8(2) of the Convention states, as pertains,
that:
Every
person accused of a criminal offense has the right to be presumed innocent
so long as his guilt has not been proven according to law. During the proceedings,
every person is entitled, with full equality, to the following minimum guarantees:
[…]
c. adequate time and means for the preparation of his defense;
d. the right of the accused to defend himself personally or
to be assisted by legal counsel of his own choosing, and to communicate freely
and privately with his counsel;
[…]
f. the right of the defense to examine witnesses present in
the court and to obtain the appearance, as witnesses, of experts or other
persons who may throw light on the facts;
126.
The Court refers to the decision in this same judgment
(supra para. 115) regarding the
violation of Articles 8(1) and 8(2)c), d) and f) of the Convention, as they
pertain to the criminal military trial of Luis Alberto Cantoral-Benavides.
127.
It has been proven in the present case that in the actions
carried out by the judges in the regular courts the following situations occurred:
a) free and private communication between Mr. Cantoral-Benavides and
his defense lawyer was impeded; b) the victim’s lawyer was unsuccessful in
presenting certain evidence crucial to the defense, such as the admission
of the testimony of members of the DINCOTE who captured Cantoral-Benavides
and participated in the preparation of the incriminating affidavit; nor was
he able to force a confrontation of the handwriting experts in order to clear
up the differences in their testimony; and c) the identity of the judges who
heard the trial for terrorism was hidden, making it impossible for Cantoral-Benavides
and his lawyer to determine if there were grounds for a challenge, and to
mount a proper defense.
128.
The Court concludes, from the above, that the State
violated, to the detriment of Luis Alberto Cantoral-Benavides, Article 8(2)c),
8(2)d) and 8(2)f) of the American Convention.
Violation
of Article 8(2)g) and 8(3) of the Convention
to not
be required to testify against himself and
to speak
without any type of coercion
129.
As regards the violation of Article 8.2.g) and 8(3)
of the Convention, the Commission alleged that:
a)
Luis Alberto Cantoral-Benavides was coerced into testifying
against himself and, as a result, forced to incriminate himself and accept
the charges against him;
b)
in the trials of Luis Alberto Cantoral-Benavides, statements
obtained from the victim through coercion were provided as partial evidence;
and
c)
his detention for a period of time longer than that
authorized by law, and his interrogation at unusual hours and places, are
also forms of coercion.
130.
For its part, the State alleged that:
a)
The Peruvian Constitution of 1979, in Article 233, established
due process as a jurisdictional guarantee, which was respected; and
b)
the legality of the all police and judicial actions
were “closely watched by the Office of the Public Prosecutor.”
*
* *
131.
Article 8(2)g) and 8(3) of the Convention, as pertains,
state that:
2.
[…] During the proceedings, every person is entitled,
with full equality, to the following minimum guarantees:
[…]
g. the right not to be compelled to be a witness against himself
or to plead guilty; and […]
3. A confession of guilt by the accused shall be valid only
if it is made without coercion of any kind.
132.
As has been expressed in this same judgment (supra para. 104), Luis Alberto Cantoral-Benavides
was subjected to torture to break down his psychological resistance and force
him to incriminate himself or confess to certain illegal activities.
133.
The Court concludes, therefore, that the State violated,
to the detriment of Mr. Luis Alberto Cantoral-Benavides, Article 8(2)g) and
8(3) of the American Convention.
Article
8(4) of the Convention
Non bis in idem
134.
As regards the violation of Article 8(4) of the Convention,
the Commission alleged that:
a)
Luis Alberto Cantoral-Benavides was acquitted by the
Supreme Council of Military Justice on August 11, 1993, a decision upheld
by the same Council on September 24, 1993.
The judgment of the Supreme Council of Military Justice was considered
final because it could not be appealed; however, because the second judgment
so ordered, a copy of the record was sent to the regular courts for a trial
for terrorism, and the accused was subjected to another trial in the regular
courts and convicted for the same facts;
b)
the acquittal of Mr. Luis Alberto Cantoral-Benavides
by the Supreme Council of Military Justice for the charges leveled by the
DINCOTE in police affidavit No. 49-DIVICOTE 3-DINCOTE has, in accordance with
Article 8(4) of the Convention, the binding effect erga omnes against any persecution on the part of Peru against said
person for the same facts. This article
of the Convention prevents a person from being subjected to a new trial for
the same facts, regardless of how the law defines the offense. In other words,
what was absolved as the “crime of terrorism within the definition of treason
against the fatherland cannot be the subject of a new trial for the crime
of terrorism on the basis of the same facts;”
c)
in the case of Mr. Luis Alberto Cantoral-Benavides,
the State changed the facts referred to in the police affidavit which provided
the grounds for his being tried and acquitted in the exclusive military jurisdiction
“on the basis of an argument which turned out to be fictitious, since the
trial in the regular courts was based not only on the same facts, but also
[…] on the same crime;” and
d)
Mr. Luis Alberto Cantoral-Benavides
was tried in two separate trials, in which he was judged for the same facts
in violation of the principle of non bis in idem.
135.
For its part, the State alleged that:
a)
the Peruvian Constitutions of 1979 and 1993 establish
the framework of jurisdictional guarantees for cases of the crimes of treason
against the fatherland and terrorism. The
existence of presumption of liability for another punishable offense, based
on new evidence (handwriting evidence) which was not taken into account when
the decisions were issued in the exclusive military jurisdiction, is the reason
why the records were sent to the regular courts, and the acquittal of Mr.
Luis Alberto Cantoral-Benavides was not executed in the military court.
The accused could have contested the incriminating evidence, but did
not;
b)
there is no double jeopardy for the same crime. The crime of treason against the fatherland
is different from terrorism. If there
were indications confirming liability for the commission of the crime of terrorism,
this could not go unpunished because another trial had taken place for a different
crime, treason against the fatherland; and
c)
the trial was normal and conducted in accordance with
the rules of due process called for in and supported by the Constitution.
*
* *
136.
Article 8(4) of the
Convention states that:
An accused person
acquitted by a nonappealable judgment shall not be subjected to a new trial
for the same cause.
137.
The Court observes that one of the elements regulated
by Article 8(4) is the conduct of a first trial that ends in a final decision
of acquittal. According to the application
of the Commission, that first trial, in the present case, would be the military
trial of Luis Alberto Cantoral-Benavides, for the crime of treason against
the fatherland.
138.
In this same judgment (supra para. 114), the Court has stated that the application of military
criminal justice to civilians infringes upon the provision regarding a competent,
independent and impartial judge (Article 8(1) of the American Convention).
This is enough to determine that the actions and decisions taken by
the authorities of the exclusive military jurisdiction in the matter of Luis
Alberto Cantoral-Benavides do not constitute the type of proceeding called
for in Article 8(4) of the Convention.
139.
This determination is consistent with reasoning of the
Court in the Castillo- Petruzzi et al.
Cesti Hurtado and Durand and Ugarte
cases.[62]
In the first two cases, this Court declared that the application of military
justice to civilians violates the rules of the American Convention regarding
the right to a competent, independent and impartial judge. In the third, it
offered an opinion regarding the limits of the natural jurisdiction of military
justice.
140.
Based on the above, the Court considers that, given
the circumstances of this case, the alleged infraction of Article 8(4) of
the Convention is included in the violation of Article 8(1) of same. Consequently, the Court refers to its decision
regarding the violation, by the State, of Article 8(1) of the Convention (supra
para. 115).
Violation
of Article 8(5) of the Convention
Public
trial
141.
As regards the violation of Article 8(5) of the Convention,
the Commission alleged that the trials of Mr. Luis Alberto Cantoral-Benavides,
in both the military and regular courts, were carried out in the “non public”
way prescribed in the anti-terrorism laws (Articles 13.f) and 14 of Decree
Law No. 25.475, and Article 5 of Decree Law No. 25.659) in force at the time
of the facts, meaning that they consisted of “private hearings, in military
facilities or penal institutions, before “faceless” judges, prosecutors and
even lawyers, in a climate of intimidation and secrecy since no public was
present at any time during the trial.”
142.
The State presented no allegation regarding the alleged
violation of Article 8(5) of the Convention.
*
* *
143.
Article 8(5) of the Convention states that:
Criminal proceedings shall be public,
except insofar as may be necessary to protect the interests of justice.
144.
The Court refers to its decision in this same judgment
(supra para. 115) regarding the
violation of Articles 8(1) and 8(5) of the Convention, in connection with
military criminal trial of Luis Alberto Cantoral-Benavides.
145.
The Court also observes that, according to Article 16
of Decree Law No. 25.475 (Crime of Terrorism),
The trial shall
be conducted in the respective penal institutions and under conditions that
will prevent the judges, members of the Office of the Public Prosecutor and
judicial assistants from being identified visually or audibly by the accused
and the defense lawyers.
146.
It is proven in the file that several hearings held
as part of the proceedings in the regular courts were held in penal institutions
(supra para. 63.p).
147.
The above is sufficient to determine that the trial
of Luis Alberto Cantoral-Benavides in the regular courts did not comply the
requirement for a public trial established in Article 8(5) of the Convention.
148.
The State did not provide information or arguments to
show why the public nature of the trial should be restricted, given the “need
to preserve the interest of justice,” as called for in Article 8(5) of the
Convention. The Court considers that,
given the particular characteristics of the
Luis Alberto Cantoral-Benavides’ case, his trial could be public without affecting
the application of justice.
149.
Consequently, the Court concludes that the State violated,
to the detriment of Luis Alberto Cantoral-Benavides, Article 8(5) of the Convention.
XIII
VIOLATION
OF ARTICLE 9
FREEDOM
FROM EX POST FACTO LAWS
150.
As regards the violation of Article 9 of the Convention,
the Commission alleged that:
a)
Peru has recognized that the crime of treason against
the fatherland, regulated under Decree Law No. 25.659, is an aggravated form
of the crime of terrorism, which is regulated under Decree Law No. 25.475. Both descriptions use unclear terms and are
open to broad interpretation, making it difficult to distinguish one from
the other. This violates the basic
principle of criminal law regarding the need to define the nature of a crime
precisely;
b)
Mr. Luis Alberto Cantoral-Benavides was tried for the
crime of treason against the fatherland in the exclusive military jurisdiction
“under the accusation that documents of a subversive nature were found in
his possession.” Later, he was tried
in the regular courts for the crime of terrorism, for allegedly having authored
documents of this nature; and
c)
The ambiguity and similarity of the legal definitions
of the crimes of treason against the fatherland and terrorism violate the
legal principle established in Article 9 of the Convention, and led to double jeopardy in the case of Mr. Luis Alberto
Cantoral-Benavides.
151.
For its part, the State presented no arguments regarding
the alleged violation of Article 9 of the Convention.
*
* *
152. Article 9 of the American Convention states
that:
No one shall be convicted of any
act or omission that did not constitute a criminal offense, under the applicable
law, at the time it was committed. A heavier penalty shall not be imposed
than the one that was applicable at the time the criminal offense was committed.
If subsequent to the commission of the offense the law provides for the imposition
of a lighter punishment, the guilty person shall benefit therefrom.
153. In Decree Law No. 25.659, Articles 1, 2, and 3, and Decree Law
No. 25.475, Articles 2 and 3, the crimes of treason against the fatherland
and terrorism, respectively, are defined, and the punishment for each is established.
In this regard, this Court has already established that “both Decree
Laws (25.475 and 25.659) refer to conduct that is not precisely defined, meaning
that it could be considered under either, according to the criteria
of the Office of the Public Prosecutor Office, of the respective judges […]
and of the ‘police’ [DINCOTE].”[63]
154.
The Court deems it pertinent to point out that:
a)
according to Article 2 of Decree Law No. 25.475, the
crime of terrorism is committed by a person who “creates […] a state of anxiety
[…] or fear among the population” or who “carries out acts against life, personal
security or against the patrimony, against the security of public buildings,
byways, power stations or any other good or service, using weapons, explosive
materials or devices or any other means capable of causing damage or seriously
disturbing the peace;”
b)
according to Article 1.a) of Decree Law No. 25.659,
the crime of treason against the fatherland is committed by a person who commits
“the acts considered in Article 2 of Decree Law No. 25.475, when the following
methods are used: car bombs or similar
bombs, explosive devices, weapons of war or similar weapons, which cause the
death of persons or injure their physical integrity, or damage public or private
property;” and
c)
it is a fact that Article 2 of Decree Law No. 25.659
specifies the characteristics of the perpetrators of the crime of treason.
However, in doing so, it refers not only to certain special conditions, such
as being the leader or head of a terrorist organization, and belonging to
armed groups or bands responsible for the physical elimination of persons,
but also contributing to “the harmful outcome” of the crime in question by “supplying, providing, disseminating reports,
data, plans, projects and other documents.”
155.
In light of the provisions transcribed above, the Court
considers that the definitions of the crimes of terrorism and treason against
the fatherland do not clearly describe the criminal acts in question, the
elements used in their commission, the objects or assets against which they
are directed, and the impact they have on society. Also, the inclusion of such broad methods of participation in the
commission of the corresponding crime, such as those covered in Article 2
of Decree Law No. 25.659, alters the
definition of the perpetrator of treason against the fatherland, bringing
this crime and the crime of terrorism so close together that they become one.
156.
As the Court asserted on an earlier occasion, the “existence
of common elements [in the crimes of terrorism and treason against the fatherland]
and the lack of precision in drawing a line between both affects the legal
situation of the accused in different ways: the applicable sanction, the competent tribunal
and corresponding trial.” [64]
157.
In defining the crimes, it is necessary to keep the
principle of criminal legality in mind; in other words,
a clear definition
of the illegal conduct, which sets forth its elements and makes it possible
to distinguish it from non-punishable behavior or illegal activities punishable
with non-criminal measures. Ambiguity
in the definition of the crime creates doubt and gives authorities discretion,
which is particularly undesirable when establishing the criminal liability
of individuals and imposing sentences that have a serious impact on fundamental
rights such as life or liberty.[65]
It is clear that the laws governing
the crimes of terrorism and treason against the fatherland in force in the
State at the time of the facts in this case suffer from the ambiguity just
referred to.
158.
The Court concludes, therefore, that the State violated,
to the detriment of Luis Alberto Cantoral-Benavides, Article 9 of the American
Convention.
XIV
VIOLATION OF ARTICLES 7(6)
AND 25(1)
RIGHT TO PERSONAL LIBERTY
AND
JUDICIAL PROTECTION
159.
As regards the violation of Article 7(6) and 25(1) of
the Convention, the Commission alleged that:
a)
during the detention and trial of Mr. Luis Alberto Cantoral-Benavides,
it was not possible to bring action on his behalf because “an express rule
of the anti-terrorism laws (Article 6 of Decree Law No. 25.659) prohibited
the presentation of writs of habeas corpus for facts related to the crime
of terrorism;”
b)
by not providing Luis Alberto Cantoral-Benavides with
any means to ensure respect for his fundamental rights, the State not only
incurred in a violation per se of
Article 25(1) of the Convention, but also exempted him from the obligation
of exhausting domestic remedies; and
c)
on September 23, 1993, Luis Alberto Cantoral-Benavides’
submitted a writ of habeas corpus, which was declared inadmissible on September
29, 1993 by the 26th Criminal Court of Lima.
160.
For its part, the State did not refer to the cited articles.
*
* *
161.
Article 7 of the American Convention, subparagraph 6 states 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.
162.
Article 25(1) of the 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.
163.
The Court reiterates that the right of all persons to
a simple and rapid remedy or to any other effective remedy before competent
judges or tribunals that will protect them against acts that violate their
fundamental rights
constitutes one
of the basic pillars, not only of the American Convention, but also of the
Rule of Law in a democratic society as per the Convention […]. Article 25 is closely linked to the general
obligation set forth in Article 1(1) of the American Convention, by attributing
the function of protection to the internal laws of the States Parties.[66]
164.
Also, the Court
has pointed out that
The absence of
an effective remedy against the violation of rights recognized in the Convention
constitutes a breach of same by the State Party in which such a situation
takes place. In this regard, it is necessary to underscore the fact that,
for such a remedy to exist, it is not enough for it to be called for in the
Constitution or law, or that it be formally admissible; it must also be truly
effective in determining whether there has been a violation of human rights
and providing the means to remedy it.[67]
165.
The above is valid not only in normal situations, but
also in exceptional circumstances. Among the indispensable judicial guarantees that must be observed,
habeas corpus is the most effective means “to control respect for the life
and integrity of persons, to prevent their disappearance or the concealment
of their place of detention, as well as to protect them against torture or
other cruel, inhuman or degrading treatment or punishment.”[68]
166.
According to the proven facts, Luis Alberto Cantoral-Benavides
did not have, in application of Article 6 of Decree Law no. 25.659 (referring
to the crime of treason against the fatherland), the right to interpose any
action intended to safeguard his personal liberty or question the legality
of his detention (supra para. 63.h.),
regardless of whether guarantees had been suspended or not. This article establishes that
in no stage of
the police investigation or criminal proceedings may action be brought by
persons detained for, implicated in or on trial for the crime of terrorism,
covered in Decree Law No. 25.475, or against the provisions of the present
Decree Law.
167.
This law was later modified by Decree Law No. 26.248,
which was promulgated on November 12, 1993, and entered into force on November
25, 1993. Said modification made it
possible, in principle, to bring action on behalf of those implicated in the
crime of terrorism or treason against the fatherland. However, this change had no impact on the legal situation of Mr.
Luis Alberto Cantoral-Benavides, since Article 2 of said Decree Law stated
that “writs of habeas corpus were
not admissible based on the same facts or causes of a proceeding under way
or already decided.”
168.
According to the proven facts, the judgment of August
11, 1993, rendered by the Special Tribunal of the Supreme Council of Military
Justice, acquitted Mr. Cantoral-Benavides and ordered his release. In response to a motion for review of said
judgment, this same authority upheld, on September 24, 1993, the acquittal
of the accused, but ordered that the records be sent to the regular jurisdiction,
where he was to stand trial for the crime of terrorism. On October 8, 1993,
the regular court ordered the opening of the investigation stage of the trial
(supra para. 63.ñ.ii.).
169.
As a result, a writ of habeas corpus was submitted on behalf of Luis Alberto Cantoral-Benavides
(supra para. 63.n), but was declared
inadmissible. Consequently, the action
brought was ineffective and Mr. Luis Alberto Cantoral-Benavides remained in prison
from February 6, 1993, the date of his detention, until June 25, 1997, when
he was released as the result of a pardon.
170.
For all these reasons, the Court concludes that the
State violated, to the detriment of Luis Alberto Cantoral-Benavides, Articles
7(6) and 25(1) of the American Convention.
XV
NONCOMPLIANCE WITH ARTICLES
1(1) AND 2
OBLIGATION TO RESPECT RIGHTS
AND
FREEDOMS AND DUTY TO ADOPT DOMESTIC
LEGAL EFFECTS
171.
As regards noncompliance with Articles 1(1) and 2 of
the Convention, the Commission alleged that:
a)
as a consequence of the violation of the rights embodied
in Articles 5, 7, 8 and 25 of the Convention, Peru also violated Article 1(1)
of the Convention, which refers to the obligation to respect the rights and
freedoms embodied in same, as well as the duty to ensure and guarantee their
free and full exercise to all persons under the jurisdiction of the State;
and
b)
because Peru had not brought its legislation into line
with the Convention, modifying those laws that contradicted same, especially
anti-subversive legislation, it also violated Article 2 of the Convention.
172.
For its part, the State argued that the topic of the
alleged violation of Article 2 of the American Convention, due to the failure
to adjust anti-subversive legislation to said Convention, was not presented
by the petitioners before the Commission, nor transmitted by same to the State
or included in Report No. 15-A-96, so it was not discussed previously in the
proceedings before the Commission, and the internal jurisdiction of Peru on
this matter was not exhausted. Therefore,
the Court does not have jurisdiction to hear this matter.
Since Decree Laws No. 25.475 and 25.659 were promulgated and published
in 1992, when the application was filed in August 1996, the right to question
such legislation had lapsed, as established in Article 46(1)b) of the Convention.
*
* *
173.
Article 1(1) of the Convention states that:
The 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.
174.
Article 2 of the Convention states 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.
175.
Prior to any consideration of this point, it is necessary
to refer to what this Court has already said in the judgment regarding preliminary
objections rendered in this case on September 3, 1998, to wit:
Although the
Commission had not raised the alleged violation of Article 2 of the Convention
in the application to the Court, the Court is authorized to examine the issue
motu propio. Article 2 of the Convention, like Article 1(1), sets forth a general
obligation-that is added to the specific obligations as to each of the protected
rights- and the Court, as the judicial organ of supervision of the Convention,
has the official duty to determine its fulfillment by the States Parties.
The Respondent State can not, by means of a preliminary objection, attempt
to negate this authority which is inherent to the jurisdiction of the Court.[69]
176.
As the Court has held, the States Parties to the Convention
cannot dictate measures that violate the rights and freedoms recognized in
it.[70] Also, this Tribunal has affirmed that “a rule
per se can violate Article 2 of
the Convention, whether or not it has been applied in a specific case.”[71]
177.
The Court notes that, in this case, according to the
present judgment, the State violated Articles 7(1), 7(2), 7(3), 7(4) and 7(5),
5(1) and 5(2), 8(1), 8(2), 8(2)c), d), f) and g), 8(3), 8(5), 9, 7(6) and
25(1) of the American Convention to the detriment of Luis Alberto Cantoral-Benavides,
meaning that it has not complied with the general duty of respecting the rights
and freedoms recognized in the Convention and of guaranteeing their free and
full exercise, as established in Article 1(1) of same.
178.
The Court observes, furthermore, as it has in the past,
that the provisions contained in the emergency legislation adopted by the
State to combat terrorism, and in particular Decree Laws No. 25.475 and 25.659,
applied to Mr. Luis Alberto Cantoral-Benavides in the present case, violate
Article 2 of the American Convention, because the fact that said decrees had
been issued and were in force in Peru means that the State had not taken the
proper steps of internal law to enforce the rights embodied in the Convention.
On this matter, the Court has said that
the general duty
set forth in Article 2 of the American Convention implies the adoption of
measures on two fronts. On the one
hand, the suppression of rules and practices of any kind that entail the violation
of the guarantees set forth in the Convention. On the other, the issuance of rules and the
development of practices leading to the effective observance of said guarantees.[72]
179.
As a consequence, the Court concludes that the State
has not complied with the general obligations contained in Articles 1(1) and
2 of the American Convention.
XVI
VIOLATION OF ARTICLES 2,
6 AND 8
OF THE INTER-AMERICAN CONVENTION
TO PREVENT AND PUNISH TORTURE
180.
As regards the violation of Articles 2, 6, and 8 of
the Inter-American Convention to Prevent and Punish Torture, the Commission
alleged that:
a)
The State violated same to the detriment of Luis Alberto
Cantoral-Benavides;
b)
the Prosecutor Julia Eguía Dávalos, responsible for
investigating allegations of torture, decided “TO REJECT the petition interposed
in this case … against agents of the DIVICOTE 3-DINCOTE because it LACKED
THE ELEMENTS OR EVIDENCE required to conduct a judicial investigation of the
people denounced;” and
c)
in its final arguments, the Commission indicated that
Peru had violated Articles 6 and 8
of the Inter-American Convention Against Torture
“by not adopting ‘effective measures to prevent and punish torture’
and by not investigating and punishing those responsible for such acts.”
181.
For its part, the State alleged that it had not violated
the cited articles of the Inter-American Convention Against Torture.
Also, it reiterated the arguments it had raised to show that it had
not violated Article 5 of the Convention.
*
* *
182.
Article 2 of the Inter-American Convention Against Torture
states that:
For the purposes of this Convention,
torture shall be understood to be any act intentionally performed whereby
physical or mental pain or suffering is inflicted on a person for purposes
of criminal investigation, as a means of intimidation, as personal punishment,
as a preventive measure, as a penalty, or for any other purpose. Torture shall
also be understood to be the use of methods upon a person intended to obliterate
the personality of the victim or to diminish his physical or mental capacities,
even if they do not cause physical pain or mental anguish.
The concept of
torture shall not include physical or mental pain or suffering that is inherent
in or solely the consequence of lawful measures, provided that they do not
include the performance of the acts or use of the methods referred to in this
article.
183.
Article 6 of the Inter-American Convention Against Torture states that
In accordance with the terms of
Article 1, the States Parties shall take effective measures to prevent and
punish torture within their jurisdiction.
The States Parties shall ensure
that all acts of torture and attempts to commit torture are offenses under
their criminal law and shall make such acts punishable by severe penalties
that take into account their serious nature.
The States Parties
likewise shall take effective measures to prevent and punish other cruel,
inhuman, or degrading treatment or punishment within their jurisdiction.
184.
Article 8 of the Inter-American Convention Against Torture states that:
The States Parties shall guarantee
that any person making an accusation of having been subjected to torture within
their jurisdiction shall have the right to an impartial examination of his
case.
Likewise, if there is an accusation
or well-grounded reason to believe that an act of torture has been committed
within their jurisdiction, the States Parties shall guarantee that their respective
authorities will proceed properly and immediately to conduct an investigation
into the case and to initiate, whenever appropriate, the corresponding criminal
process.
After all the domestic legal procedures
of the respective State and the corresponding appeals have been exhausted,
the case may be submitted to the international fora whose competence has been
recognized by that State.
185.
This Court has already had the opportunity to apply
the Inter-American Convention Against
Torture and to declare a State responsible for violating it.[73]
186.
In the present case, it is appropriate for the Court
to exercise its jurisdiction to apply the Inter-American Convention Against Torture, which entered into
force on February 28, 1987.
187.
The Commission alleged on different occasions that Mr.
Luis Alberto Cantoral-Benavides was
subjected to physical and psychological torture. The State, for its part, alleged that it had not violated the articles
of the Inter-American Convention Against
Torture. From the additional evidence
requested by the Court and submitted by the State, it can be inferred that
the accused filed no application calling for an investigation of the torture
to which he was allegedly subjected. However,
in different writs submitted as evidence by the State, inter alia, the testimony of the lawyer
of the accused (supra para. 43.e.),
as well as the statements of the mother (supra
43.j.) and of Mr. Cantoral-Benavides
himself (supra para. 43.a.), it
is noted that on different occasions the Peruvian authorities were asked to
investigate the facts related to alleged mistreatment or torture (supra para. 63.u.) which have been proven
in this case (supra para. 106).
188.
However, the documents and the testimonies contained
in the file reveal that the administrative and judicial authorities in Peru
did not make a formal decision to initiate a criminal investigation of the
alleged commission of the crime of torture, and that they did not conduct
such investigation (supra para.
63.u.) despite the existence of evidence of cruel, inhuman and degrading treatment
and of torture committed to the detriment of Luis Alberto Cantoral-Benavides.
189.
Article 8 of the Inter-American Convention Against Torture clearly sets forth
the obligation of the State to proceed as a matter of routine and immediately
in cases such as the present case. In
this regard, the Court has held that “in proceedings regarding violations
of human rights, the defense of the State cannot lie on the inability of the
complainant to submit evidence which, in many cases, cannot be obtained without
the cooperation of the State.” [74]
The State, however, did not fulfill said obligation in this case.
190.
The Court concluded, after studying the State’s violation
of Article 5 of the Convention, that the State, through its public agents,
had subjected Luis Alberto Cantoral-Benavides to torture and other cruel,
inhuman and degrading treatment (supra
paras. 104 and 106). Therefore,
it is clear that said State did not effectively prevent such acts, and that,
by not investigating same, failed to punish those responsible for same.
191.
Consequently, the Court concludes that the State violated,
to the detriment of Luis Alberto Cantoral-Benavides, Article 2, 6 and 8 of
the Inter-American Convention Against
Torture.
XVII
APPLICATION OF ARTICLE 63(1)
192.
As regards the application of Article 63(1) of the Convention,
the Commission asked the Court to order that:
a)
Peru make full reparations to Luis Alberto Cantoral-Benavides
for the serious material and moral injury caused to him and, as a consequence,
order his immediate release and payment of fair compensation to him; and
b)
Peru pay the expenses incurred by the relatives of Luis
Alberto Cantoral-Benavides and the petitioners in this case.
193.
For its part, the State alleged that:
a)
it was opposed to the request to release Luis Alberto
Cantoral-Benavides since it was not
obligated to do so until he completed his jail term, and that it was not obligated
to compensate him in any way; and
b)
the payment of expenses should be rejected because Peru
is under no obligation to make any payment to the relatives of Luis Alberto Cantoral-Benavides, or the petitioners
or the Inter-American Commission, and because no evidence has been presented
to demonstrate the expenses incurred by said relatives and petitioners and
the Commission.
*
* *
194.
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.
195.
The Court deems that the request by the Commission that
the Court order the Peruvian State to release Luis Alberto Cantoral-Benavides
is no longer of interest, since he was pardoned and has been free since June
25, 1997 (supra para. 63.r.).
196.
Also, the Court considers that reparations are in order
for the situation created as a result of the violation of the rights specified
in this case, which should include fair compensation and the payment of the
expenses incurred by the victim or his relatives or the petitioners in connection
with this trial.
197.
The Court will require sufficient information and evidence
in order to set reparations, and, therefore, recommends that the corresponding
stage of the proceedings be opened, and commissions its President to adopt
such measures as may be necessary.
XVIII
OPERATIVE PARAGRAPHS
198.
Therefore,
THE COURT,
unanimously,
1.
declares that the State violated, to the detriment of
Luis Alberto Cantoral-Benavides, Article 5(1) and 5(2) of the American Convention
on Human Rights.
unanimously,
2.
declares that the State violated, to the detriment of
Luis Alberto Cantoral-Benavides, Article 7(1), 7(2), 7(3), 7(4) and 7(5) of
the American Convention on Human Rights.
unanimously,
3.
declares that the State violated, to the detriment of
Luis Alberto Cantoral-Benavides, Article 8(1) of the American Convention on
Human Rights.
unanimously,
4.
declares that the State violated, to the detriment of
Luis Alberto Cantoral-Benavides, Article 8(2) of the American Convention on
Human Rights.
unanimously,
5.
declares that the State violated, to the detriment of
Luis Alberto Cantoral-Benavides,
Article 8(2)c), 8(2)d) and 8(2)f)
of the American Convention on Human Rights.
unanimously,
6.
declares that the State violated, to the detriment of
Luis Alberto Cantoral-Benavides,
Article 8(2)g), 8(3) of the American
Convention on Human Rights.
by seven votes to one,
7.
declares that the State violated, to the detriment of
Luis Alberto Cantoral-Benavides,
Article 8(5) of the American Convention
on Human Rights.
Judge Vidal Ramírez dissenting.
by seven votes to one,
8.
declares that the State violated, to the detriment of
Luis Alberto Cantoral-Benavides,
Article 9 of the American Convention
on Human Rights.
Judge Vidal Ramirez dissenting.
unanimously,
9.
declares that the State violated, to the detriment of
Luis Alberto Cantoral-Benavides,
Articles 7(6) and 25(1) of the American
Convention on Human Rights.
unanimously,
10.
declares that the
State has not fulfilled the
general obligations of Article 1(1) and 2
of the American Convention on Human
Rights, in connection with the violations of the substantive rights identified
in the preceding operative paragraphs of the present judgment.
unanimously,
11.
declares that the State violated, to the detriment of
Luis Alberto Cantoral-Benavides,
Articles 2, 6 and 8 of the Inter-American
Convention to Prevent and Punish Torture.
unanimously,
12.
decides that
the State should
order an investigation
to determine
the persons
responsible for the violations of
human rights referred to in this judgment, and punish them.
unanimously,
13.
decides that
the State should
make reparations for the injury caused
by the
violations.
unanimously,
14.
decides to
open the reparations stage, to which end
it commissions its President
to take such measures as may be necessary.
Judge Vidal Ramirez informed the Court
of his reasoned and partially dissenting opinion, which is attached hereto.
Done in Spanish and English, the Spanish
text being authentic, in San José, Costa, Rica, on the eighteenth day of August,
2000.
Antônio A. Cançado Trindade
President
Máximo Pacheco-Gómez Hernán
Salgado-Pesantes
Oliver
Jackman
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