Barrios Altos Case, Judgment of May 14, 2001, Inter-Am Ct. H.R. (Ser. C) No. 75 (2001).
In the Barrios Altos case,
the
Inter-American Court of Human Rights (hereinafter “the Court” or the “Inter-American
Court”), composed of the following judges:[1]
Antônio A. Cançado Trindade, President
Máximo Pacheco Gómez, Vice President
Hernán Salgado Pesantes, Judge
Alirio Abreu Burelli, Judge
Sergio García Ramírez, Judge and
Carlos Vicente de Roux Rengifo, Judge;
also
present:
Manuel E. Ventura Robles, Secretary and
Renzo Pomi, Deputy Secretary
in
accordance with Articles 29, 55 and 57 of the Rules of Procedure of the Court
(hereinafter “the Rules of Procedure”), delivers this judgment.
I
Introduction of the case
1. On June 8, 2000, the Inter-American Commission
on Human Rights (hereinafter “the Commission” or “the Inter-American Commission”)
submitted to the Court the application in this case, in which it invoked Article
51(1) of the American Convention on Human Rights (hereinafter “the Convention”
or “the American Convention”) and Article 32 of the Rules of Procedure.
The Commission submitted the case so that the Court would decide whether
the State of Peru (hereinafter “Peru”, “the State” or “the State of Peru”)
had violated Article 4 (Right to Life) of the American Convention with regard
to Placentina Marcela Chumbipuma Aguirre, Luis Alberto Díaz Astovilca, Octavio
Benigno Huamanyauri Nolazco, Luis Antonio León Borja, Filomeno León León,
Máximo León León, Lucio Quispe Huanaco, Tito Ricardo Ramírez Alberto, Teobaldo
Ríos Lira, Manuel Isaías Ríos Pérez, Javier Manuel Ríos Rojas, Alejandro Rosales
Alejandro, Nelly María Rubina Arquiñigo, Odar Mender Sifuentes Nuñez and Benedicta
Yanque Churo. It also requested the Court to decide whether
the State had violated Article 5 (Right to Humane Treatment) of the American
Convention with regard to Natividad Condorcahuana Chicaña, Felipe León León,
Tomás Livias Ortega and Alfonso Rodas Alvítez. Furthermore, it requested the Court to decide whether the State
of Peru had violated Articles 8 (Right to a Fair Trial), 25 (Judicial Protection)
and 13 (Freedom of Thought and Expression) of the American Convention as a
consequence of the promulgation and application of Amnesty Laws No. 26479
and No. 26492. Lastly, it requested
the Court to determine whether Peru had failed to comply with Articles 1(1)
(Obligation to Respect Rights) and 2 (Domestic Legal Remedies) of the American
Convention on Human Rights, as a result of the promulgation and application
of Amnesty Laws No. 26479 and No. 26492 and the violation of the rights indicated
above.
The
Commission also requested the Court to call on Peru:
a) To
reopen the judicial investigation into the facts;
b) To
grant adequate integral reparation for material and moral damage to the next
of kin of the 15 alleged victims who were executed and the four alleged victims
who are alive;
c) To
abrogate or annul Law No. 26479 that conceded “a general amnesty to military,
police and civilian personnel for various reasons” and Law No. 26492 that
“[d]efines … [the] interpretation and [the] scope of [the] amnesty granted
by Law No. 26479”; and
d) To
pay the costs and expenses incurred by the alleged victims and/or their next
of kin while litigating this case both in the domestic sphere and before the
Commission and the Court, together with reasonable fees for their lawyers.
II
Facts
2. In section III of its application, the
Commission described the facts that constituted the origin of this case. It indicated that:
a) At approximately 11.30 p.m. on November
3, 1991, six heavily-armed individuals burst into the building located at
No. 840 Jirón Huanta in the neighborhood known as Barrios Altos in Lima. When this irruption occurred, a “pollada” was being held, that is, a party
to collect funds in order to repair the building. The assailants arrived in two vehicles, one
a jeep Cherokee and the other a Mitsubishi.
These cars had police lights and sirens, which were turned off when
they reached the place where the events took place;
b) The
individuals, who ranged from 25 to 30 years of age, covered their faces with
balaclava helmets and obliged the alleged victims to lie on the floor. Once they were on the floor, the assailants
fired at them indiscriminately for about two minutes, killing 15 people and
seriously injuring another four; one of the latter, Tomás Livias Ortega, is
now permanently disabled. Subsequently,
and with the same speed with which they had arrived, the assailants fled in
the two vehicles, sounding their sirens once again;
c) The
survivors stated that the detonations sounded “muffled”, which appears to
suggest that silencers were used. During
the investigation, the police found 111 cartridges and 33 bullets of the same
caliber at the scene of the crime; they corresponded to sub-machine guns;
d) The
judicial investigations and newspaper reports revealed that those involved
worked for military intelligence; they were members of the Peruvian Army who
were acting on behalf of the “death squadron” known as the “Colina Group”,
who carried out their own anti-terrorist program.
Information from different sources indicates that, in the instant case,
the acts were executed in reprisal against alleged members of Sendero Luminoso (Shining Path);
e) A
week after the attack, Congressman Javier Diez Canseco gave the press a copy
of a document entitled “Plan Ambulante”
(Door-to-door [salesmen] Plan), which described an intelligence operation
implemented at the scene of the crime. According
to this document, the “terrorists” had been meeting in the place where the
events of the instant case took place since January 1989 and they concealed
themselves by pretending that they were door-to-door salesmen.
In June 1989, Sendero Luminoso had carried out an attack
about 250 meters from the place where the Barrios Altos events occurred, in
which several of the assailants were disguised as door-to-door salesmen.
f) On November 14, 1991, the senators of
the Republic, Raúl Ferrero Costa, Javier Diez Canseco Cisneros, Enrique Bernales
Ballesteros, Javier Alva Orlandini, Edmundo Murrugarra Florián and Gustavo
Mohme Llona requested the full Senate of the Republic to clarify the facts
of the Barrios Altos crime. On November
15 that year, the Senate adopted this petitory and appointed Senators Róger
Cáceres Velásquez, Víctor Arroyo Cuyubamba, Javier Diez Canseco Cisneros,
Francisco Guerra García Cueva and José Linares Gallo as members of an Investigation
Committee, which was installed on November 27, 1991. On December 23, 1991, the Committee conducted
an inspection of the building where the events took place, interviewed four
people and executed other measures. The senatorial Committee did not complete its investigation, because
the “Government of National Reconstruction and Emergency”, which came to power
on April 5, 1992, dissolved Congress and the Democratic Constituent Congress
elected in November 1992 did not take up the investigation again or publish
the senatorial Committee’s preliminary findings;
g) Although
the events occurred in 1991, the judicial authorities did not commence a serious
investigation of the incident until April 1995, when the prosecutor of the
Office of the Forty-first Provincial Criminal Prosecutor of Lima, Ana Cecilia
Magallanes, accused five Army officials of being responsible for the events,
including several who had already been convicted in the La Cantuta case. The five men accused were Division General
Julio Salazar Monroe, at that time Head of the National Intelligence Service
(SIN), Major Santiago Martín Rivas, and Sergeant Majors Nelson Carbajal García,
Juan Sosa Saavedra and Hugo Coral Goycochea. On several occasions, the prosecutor
tried unsuccessfully to compel the accused men to appear before the court
to make a statement. Consequently,
she filed charges before the Sixteenth Criminal Court of Lima. The military officers replied that the charges
should be addressed to another authority and indicated that Major Rivas and
the sergeant majors were under the jurisdiction of the Supreme Military Justice
Council. As for General Julio Salazar
Monroe, he refused to answer the summons, arguing that he had the rank of
a Minister of State and therefore enjoyed the same privileges as the Ministers;
h) Judge
Antonia Saquicuray of the Sixteenth Criminal Court of Lima initiated a formal
investigation on April 19, 1995. Although
this Judge tried to take statements from the alleged members of the “Colina
Group” in prison, the Senior Military Command prevented this. The Supreme
Military Justice Council issued a resolution establishing that the accused
men and the Commander General of the Army and Head of the Joint Command, Nicolás
de Bari Hermoza Ríos, were prevented from giving statements before any other
judicial organ, because a case was being processed concurrently before military
justice.
i) As soon
as Judge Saquicuray’s investigation began, the military courts filed a petition
before the Supreme Court claiming jurisdiction in the case, alleging that
it related to military officers on active service. However, before the Supreme Court could take
a decision on this matter, the Congress of Peru adopted Amnesty Law No. 26479,
which exonerated members of the army, police force and also civilians who
had violated human rights or taken part in such violations from 1980 to 1995
from responsibility. The draft law
was not publicly announced or discussed, but was adopted as soon as it was
submitted, in the early hours of June 14, 1995.
The President promulgated the law immediately and it entered into force
on June 15, 1995. The effect of this
law was to determine that the judicial investigations were definitively quashed
and thus prevent the perpetrators of the massacre from being found criminally
responsible;
j) Law
No. 26479 granted an amnesty to all members of the security forces and civilians
who had been accused, investigated, prosecuted or convicted, or who were carrying
out prison sentences, for human rights violations. The few convictions of members of the security
forces for human rights violations were immediately annulled. Consequently, eight men who had been imprisoned
for the case known as “La Cantuta”,
some of whom were being prosecuted in the Barrios Altos case, were liberated;
k) On
June 16, 1995, pursuant to the Constitution of Peru, which indicates that
judges have the obligation not to apply those laws that they consider contrary
to the provisions of the Constitution, Judge Antonia Saquicuray decided that
article 1 of Law No. 26479 was not applicable to the criminal cases pending
in her court against the five members of the National Intelligence Service
(SIN), since the amnesty violated constitutional guarantees and the international
obligations that the American Convention imposed on Peru. A few hours after this decision had been issued,
the Prosecutor General, Blanca Nélida Colán, stated in a press conference
that Judge Saquicuray’s decision was an error; that the Barrios Altos case
was closed; that the Amnesty Law had the status of a constitutional law; and
that the prosecutors and judges who did not obey the law could be tried for
malfeasance;
l) The
lawyers of those accused in the Barrios Altos case appealed Judge Saquicuray’s
decision. The case was transferred
to be heard by the Eleventh Criminal Chamber of the Lima Superior Court, whose
three members would be responsible for revoking or confirming the decision.
On June 27, 1995, Carlos Arturo Mansilla Gardella, Superior Prosecutor,
defended all aspects of Judge Saquicuray’s decision declaring Amnesty Law
No. 26479 inapplicable in the Barrios Altos case.
An audience on the applicability of the said law was arranged for July
3, 1995.
m) Judge
Saquicuray’s refusal to apply Amnesty Law No. 26479 led to another congressional
investigation. Before the public hearing
could be held, the Congress of Peru adopted a second amnesty law, Law No.
26492, which “was directed at interfering with legal actions in the Barrios
Altos case”. This law declared that
the amnesty could not be “revised” by a judicial instance and that its application
was obligatory. Moreover, it expanded
the scope of Law No. 26479, granting a general amnesty to all military, police
or civilian officials who might be the subject of indictments for human rights
violations committed between 1980 and 1995, even though they had not been
charged. The effect of this second
law was to prevent the judges from determining the legality or applicability
of the first amnesty law, invalidating Judge Saquicuray’s decision and preventing
similar decision in the future; and
n) On
July 14, 1995, the Eleventh Criminal Chamber of the Lima Superior Court of
Justice issued a decision on the appeal that was contrary to the decision
by the Judge at the lower level; in other words, it decided that the proceeding
in the Barrios Altos case should be quashed.
In its judgment, this Chamber decided that the Amnesty Law was not
contrary to the Constitution of the Republic or to international human rights
treaties; that judges could not decide that laws adopted by Congress could
not be applied, because that would go against the principle of the separation
of powers; and ordered that Judge Saquicuray should be investigated by the
Judiciary’s internal control organ for having interpreted laws incorrectly.
III
Competence
of the Court
3. The Court is competent to hear this case.
Peru has been a State Party to the American Convention since July 28,
1978, and recognized the obligatory competence of the Court on January 21,
1981.
IV
Proceeding
before the Commission
4. As a result of the petition submitted
by the National Human Rights Coordinator on June 30, 1995, against Peru for
granting an amnesty to agents of the State who were responsible for the assassination
of 15 persons and the injuries inflicted on a further four in the Barrios
Altos incident, the Commission starting processing the case, registered as
No. 11528, on August 28, 1995. The
Secretariat of the Commission notified the State and requested it to transmit
any pertinent information on the facts within 90 days.
5. On July 10, 1995, before the Commission
started processing the case, the petitioners requested precautionary measures
to avoid the application of Law No. 26479 to the events that were the grounds
for the instant case and to protect Gloria Cano Legua, the lawyer of one of
the survivors of the Barrios Altos massacre in the criminal proceeding initiated
against Army General Julio Salazar Monroe and other persons. On July 14, 1995,
the Commission requested the State to adopt pertinent measures to guarantee
the personal safety and right to life of all the survivors, their next of
kin and the lawyers related to the Barrios Altos case.
6. On October 31, 1995, the State answered
the Commission’s request (supra para. 4), and, on November 8, 1995,
the Commission forwarded the communication received from Peru to the petitioners
and asked them to submit their comments on this document within 45 days.
A few days later, on November 21, the State submitted another communication
to the Commission, and this was forwarded to the petitioners on November 30,
1995, so that they could submit their comments on this document within 45
days. On January 17, 1996, the petitioners transmitted their comments on Peru’s
communications, and these comments were forwarded to Peru on March 28, 1996.
7. On January 29, 1996, the Asociación Pro-Derechos Humanos (APRODEH)
submitted a petition to the Commission on behalf of the next of kin of the
15 people who were killed and the four who were injured in the events that
occurred in Barrios Altos. On March
26, 1996, the Commission registered this petition as case No. 11601.
Subsequently, on May 23, 1996, the
Comisión de Derechos Humanos (COMISDEH)
of the National Human Rights Coordinator submitted the case of Filomeno León
León and Natividad Condorcahuana, respectively killed and injured, during
the Barrios Altos incident.
This
information was forwarded to the State on June 21, 1996, so that it could
submit its comments.
8. On May 29, 1996, Peru sent its answer
to the Commission, and this was forwarded to the petitioners on June 21, 1996,
so that they could submit their comments, which they did on August 1, 1996.
On October 15, 1996, the Commission forwarded the petitioners’ communication
to the State and gave it 30 days to submit its comments.
9. On September 23, 1996, the Commission
received a petition from the Fundación
Ecuménica para el Desarrollo y la Paz (FEDEPAZ), member of the National
Human Rights Coordinator, in the name of the next of kin of Javier Manuel
Ríos Rojas and Manuel Isaías Ríos Pérez, two of those who died in the events
in Barrios Altos. This information
was transmitted to Peru on February 12, 1997.
10. The same February 12, 1997, the Commission
joined the petition submitted in case No. 11528 and the petitions that were
part of case No. 11601, so that they all formed part of case No. 11528.
11.
On March 4, 1997, a hearing of this case was held during the Commission’s
Ninety-fifth session.
12. On May 1, 1997, the State replied to the
information that the Commission had transmitted on February 12, 1997 (supra para. 9); this communication was
forwarded to the petitioners on May 27, 1997.
13.
In a letter of June 11, 1997, the petitioners requested that the Center
for Justice and International Law (CEJIL) and the Legal Defense Institute
(IDL) should be included as co-petitioners in this case.
14.
On June 22, 1997, the petitioners submitted comments on the State’s
communication of May 1, 1997 (supra
para. 12), which were forwarded to Peru on July 28, 1997.
15.
On October 9, 1997, during the Commission’s Ninety-seventh session,
another hearing on the case was held.
16. On January 7, 1999, the Inter-American Commission
made itself available to the parties in order to reach a friendly settlement;
however, Peru asked it to desist from this initiative and to declare the case
inadmissible, owing to failure to exhaust domestic remedies.
17. On March 7, 2000, during its One hundred
and sixth session and based on Article 50 of the Convention, the Commission
adopted Report No. 28/00, which was transmitted to the State the next day. In this Report, the Commission recommended
to the State that:
A. […] it
annul any domestic, legislative or any other measure aimed at preventing the
investigation, prosecution and punishment of those responsible for the assassinations
and injuries resulting from the events known as the “Barrios Altos” operation.
To this end, the State of Peru should abrogate Amnesty Laws Nos. 26479
and 26492.
B. […] it
conduct a serious, impartial and effective investigation into the facts, in
order to identify those responsible for the assassinations and injuries in
this case, and continue with the judicial prosecution of Julio Salazar Monroe,
Santiago Martín Rivas, Nelson Carbajal García, Juan Sosa Saavedra and Hugo
Coral Goycochea, and punish those responsible for these grave crimes, through
the corresponding criminal procedure, in accordance with the law.
C. […] it
grant full reparation, which implies granting the corresponding compensation
for the human rights violations indicated in this case to the four surviving
victims and the next of kin of the 15 victims who died.
Moreover,
the Commission agreed:
To transmit this report to the State of Peru and to grant
it a period of two months to comply with its recommendations. This period will be calculated from the date
that this report is transmitted to the State, which is not authorized to publish
it. The Commission also agrees to
notify the petitioners that the report has been approved, in accordance with
Article 50 of the Convention.
18. On May 9, 2000, Peru forwarded its answer
to the Commission’s Report, which indicated that the promulgation and application
of Amnesty Laws No. 26479 and No. 26492, were exceptional measures adopted
against terrorist violence. It also
pointed out that the Constitutional Court of Peru had declared that the action
on unconstitutionality filed against those laws was unfounded, “but it expressly
indicated the subsistence of the actions for civil reparation in favor of
the injured parties or their next of kin.”
19. On May 10, 2000, the Commission decided
to submit the case to the Court.
V
Proceeding
before the Court
20.
The application in this case was submitted to the consideration of
the Court on June 8, 2000.
21.
The Commission appointed Juan E. Méndez and Hélio Bicudo as its delegates;
Christina M. Cerna and Andrea Galindo as its lawyers; and Sofía Macher, Executive
Secretary of the National Human Rights Coordinator; Germán Alvarez Arbulú,
of the Asociación Pro-Derechos Humanos
(APRODEH); Iván Bazán Chacón, Executive Director of the Fundación Ecuménica para el Desarrollo y la
Paz (FEDEPAZ); Ronald Gamarra Herrera, of the Legal Defense Institute
(IDL); Rocío Gala Gálvez, of the Comisión
de Derechos Humanos (COMISDEH); Viviana Krsticevic, Executive Director
of the Center for Justice and International Law (CEJIL) and María Claudia
Pulido, lawyer of the Center for Justice and International Law (CEJIL) as
assistants.
22. On July 4, 2000, on the instructions of
the President of the Court (hereinafter “the President”) and in accordance
with the provisions of Articles 33 and 34 of the Rules of Procedure, the Secretariat
of the Court (hereinafter “the Secretariat”) requested the Commission to transmit
various items of information and documentation that were missing, and also
certain attachments to the application that were incomplete or illegible,
within 20 days. On July 21, 2000,
the Commission forwarded part of the requested documentation. On August 11, 2000, the Secretariat requested
the Commission to transmit the documents corresponding to the attachments
that had not been duly corrected when it sent its previous communication.
23. On August 14, 2000, the Secretariat notified
the application and its attachments to the State. It also informed the State that it had asked
the Commission to transmit some attachments that were still defective and
these would be forwarded once they had been received. Furthermore, it advised Peru that it had one month to appoint its
agent and deputy agent and designate an ad
hoc judge; and four months to answer the application.
24. On August 21, 2000, the Commission sent
part of the attachments that the Secretariat had requested on August 11 that
year (supra para. 22). On September 1, 2000, the Secretariat informed
the Commission that it was still awaiting some pages corresponding to attachments
to the application, mentioned in the brief of August 18, 2000.
25. On August 24, 2000, a representative of
the Peruvian Embassy before the Government of the Republic of Costa Rica came
to the seat of the Court to return the application in the instant case. This official handed the Secretariat Note No.
5-9-M/49 of the Peruvian Embassy dated August 24, 2000, which stated that:
… on the instructions
of its Government, it proceeded to return to [the Court] the ... notification
[of the application] and its attachments, ... for the following reasons:
1. By Legislative Resolution dated July 8, 1999, ... the Congress of
the Republic approved the withdrawal of the recognition of the contentious
jurisdiction of the Inter-American Court of Human Rights.
2. On July 9, 1999, the Government of the Republic of Peru deposited
with the General Secretariat of the Organization of American State (OAS),
the instrument wherein it declares that, pursuant to the American Convention
on Human Rights, the Republic of Peru is withdrawing the declaration consenting
to the optional clause concerning recognition of the contentious jurisdiction
of the Inter-American Court of Human Rights ... .
3. [...T]he withdrawal of the recognition of the Court’s contentious
jurisdiction takes immediate effect as of the date on which the said instrument
was deposited with the General Secretariat of the OAS, that is, July 9, 1999,
and applies to all cases in which Peru has not answered the application filed
with the Court.
Finally, the State declared in its letter that:
[...] the notification contained
in note CDH-11.528/002, of August 11, 2000, concerns a case in which the Honorable
Court is no longer competent to hear the applications filed against the Republic
of Peru, under the contentious jurisdiction provided for in the American Convention
on Human Rights.
26. On October 19, 2000, the Inter-American
Commission submitted a communication concerning Peru’s return of the notification
of the application and its attachments. In this document, the Commission requested the Court to “reject
the State of Peru’s assertion and proceed to process this case”.
27. On November 12, 2000, the Court transmitted
a note signed by all its judges to the Secretary General of the Organization
of American States, César Gaviria Trujillo, informing him of the situation
of some of the cases being processed before the Court in relation to Peru.
Referring to the State’s return of the application and its attachments
in the Barrios Altos case, the Court indicated that:
The decision of the State of Peru
is inadmissible, because the purported withdrawal of the recognition of the
contentious jurisdiction of the Inter-American Court by Peru was rejected
by this Court’s judgments on competence of September 24, 1999, in the Ivcher
Bronstein and Constitutional Court cases (Ivcher
Bronstein case, Competence. Judgment of September 24, 1999. Series C No.
54, and Constitutional Court case,
Competence. Judgment of September 24, 1999. Series C No. 55).
In the opinion of the Inter-American
Court, the attitude of the State of Peru constitutes a clear failure to comply
with Article 68(1) of the Convention, and also a violation of the basic principle
pacta sunt servanda (Castillo
Petruzzi et al. case, Order of November 17, 1999. Compliance with Judgment. Series C No. 59, operative paragraph 1, and Loayza Tamayo case, Order of November 17, 1999. Compliance with Judgment.
Series C No. 60, operative paragraph 1).
28. On January 23, 2001, the Peruvian Embassy
before the Government of the Republic of Costa Rica transmitted a facsimile
copy of Legislative Resolution No. 27401 dated January 18, 2001, published
in the official gazette, El Peruano,
on January 19, 2001, by which “Legislative
Resolution No. 27152 [was] abrogated” and “the Executive [was] authorized
[to execute] all actions necessary to annul the results that may have arisen
from this Legislative Resolution, fully re-establishing the contentious jurisdiction
of the Inter-American Court of Human Rights for the State of Peru.”
29. On February 9, 2001, the Peruvian Embassy
before the Government of the Republic of Costa Rica transmitted a copy of
Supreme Resolution No. 062-2001-RE of February 7, 2001, published in the official
gazette, El Peruano, on February
8, 2001, by which Javier Ernesto Ciurlizza Contreras was appointed agent and
César Lino Azabache Caracciolo, deputy agent.
30. On February 16, 2001, the Peruvian Embassy
in Costa Rica forwarded a note from the agent and deputy agent, in which they
advised that they had been appointed agents and gave the address to which
all communications in the instant case should be notified.
31. On February 19, 2001, the agent and deputy agent submitted a communication in which
they informed that the State:
1.
Recognizes
its international responsibility in the instant case, and will therefore initiate
a friendly settlement procedure with the Inter-American Commission on Human
Rights, and with the petitioners in this case.
2. By virtue of this recognition, […] will transmit communications
to the Inter-American Commission on Human Rights and the National Human Rights
Coordinator in order to initiate formal discussions and reach the above-mentioned
agreement.
32. On
February 21, 2001, the President of the Court issued an order, in which he
decided:
To convene
the representatives of the State of Peru and the Inter-American Commission
on Human Rights to a public hearing to be held at the seat of the Inter-American
Court of Human Rights at 9.00 a.m. on March 14, 2001, in order to hear the
parties, with regard to the position of the State transcribed in Having Seen
2 of [the said] order.
On
February 22, 2001, this order was notified to both Peru and the Commission.
33. On March 14, 2001, a public hearing on this
case was held.
There
appeared before the Court:
For the State of Peru:
Javier Ernesto Ciurlizza Contreras, agent, and
César Lino Azabache Caracciolo, deputy agent.
For the Inter-American Commission on Human Rights:
Juan E. Méndez, delegate
Christina M. Cerna, lawyer
Viviana Krsticevic, assistant
Germán Alvarez Arbulú, assistant
Robert Meza, assistant
Rocío Gala Gálvez, assistant, and
Miguel Huerta, assistant.
VI
Acquiescence
The State’s arguments
34. In its brief of February 19, 2001, and at
the public hearing on March 14, 2001, Peru recognized its international responsibility
in the instant case (supra para.
31).
35. During the public hearing, the State’s agent
stated that:
The Government [of Peru] faces an
extremely complex human rights agenda[; as part of this] re-establishing and
normalizing its relations with the Honorable Inter-American Court of Human
Rights has been and will be an essential priority... .
… [T]he State of Peru.... formulated
an acquiescence in a communication of February 19, in which it recognized
its international responsibility for the events that occurred on November
3, 1991…
…[T]he Government’s strategy in
the area of human rights is based on recognizing responsibilities, but, above
all, on proposing integrated procedures for attending to the victims based
on three fundamental elements: the right to truth, the right to justice and
the right to obtain fair reparation.
…
[With regard to the] Barrios Altos
case[, …] substantial measures have been taken to ensure that criminal justice
will make a prompt decision on this case. However, we are faced with .... an obstacle, ... we refer to the
amnesty laws. The amnesty laws ...
directly entailed a violation of the right of all victims to obtain not only
justice but also truth. … Consequently, the Government of Peru has suggested
to the original petitioners, that is, the National Human Rights Coordinator,
the possibility of advancing with friendly settlements, which entail effective
solutions to this procedural obstacle...
…
The State proposed to the petitioners
the signature of a framework agreement on friendly settlement in the Barrios
Altos case. The framework agreement proposed the explicit recognition of international
responsibility concerning certain articles of the American Convention.
In this respect, it was proposed to put in writing, in an agreement
signed by the Commission, the State and the petitioners, that the State recognized
its international responsibility for the violation of the right to life embodied
in Article 4 of the American Convention on Human Rights, because of the deaths
of Placentina Marcela Chumbipuma Aguirre, Luis Alberto Díaz Astovilca, Octavio
Benigno Huamanyauri Nolazco, Luis Antonio León Borja, Filomeno León León,
Máximo León León, Lucio Quispe Huanaco, Tito Ricardo Ramírez Alberto, Teobaldo
Ríos Lira, Manuel Isaías Ríos Pérez, Javier Manuel Ríos Rojas, Alejandro Rosales
Alejandro, Nelly María Rubina Arquiñigo, Odar Mender Sifuentes Nuñez and Benedicta
Yanque Churo. The State also proposed
to recognize its international responsibility for the violation of the right
to humane treatment embodied in Article 5 of the American Convention on Human
Rights in this framework agreement, because of the serious injuries to Natividad
Condorcahuana Chicaña, Felipe León León, Tomás Livias Ortega and Alfonso Rodas
Alvítez. Lastly, the State would recognize
its international responsibility for the violation of the right to a fair
trial and to judicial guarantees embodied in Articles 8 and 25 of the American
Convention on Human Rights, because it had failed to conduct a thorough investigation
of the facts and had not duly punished those responsible for the crimes against
the above-mentioned persons....
Based on this recognition of responsibilities
... it suggested that the parties would inform the Court of their willingness
to initiate a direct discussion in order to reach an agreement on a friendly
settlement, which would seek to satisfy the claims for reparations.
This agreement would evidently be submitted to the Honorable Court
for official approval, as mandated in the Convention and the Court’s Rules
of Procedure. ... Furthermore, the State proposed a preliminary agenda based
on three points of substance: identification of mechanisms to fully clarify
the facts on which the petition was based, including identification of the
masterminds and perpetrators of the crime, the viability of criminal and administrative
punishments for all those found responsible, and specific proposals and agreements
on matters relating to reparations.
… To this end, the State proposed
that the parties should request the Inter-American Court to deliver the judgment
on merits immediately, establishing the international responsibility as determined
by the Court and taking into account the brief on acquiescence that had been
submitted. It also proposed that the
parties should suggest to the Court that it suspend its decision on the start
of the reparations procedure, for a period that the parties themselves would
establish and that the Court considered acceptable. Once this period had expired, and if agreement
had not been reached, the parties would commit themselves to request the corresponding
judgment to be delivered, and also to comply with it and execute it in its
entirety.
…[T]he State reiterated its willingness
to enter into direct discussions in order to reach an effective solution ...
to attack the validity of the procedural obstacles that impede the investigation
and punishment of those who are found responsible in the instant case; we
refer, in particular, to the amnesty laws.
…
…The formula
of annulling the measures adopted within the context of impunity in this case
is, in our opinion, sufficient to promote a serious and responsible procedure
to remove all the procedural obstacles linked to the facts; above all, it
is the formula that permits, and this is our interest, recovering procedural
and judicial options to respond to the mechanisms of impunity that were implemented
in Peru in the recent past, in accordance with the law, and opening up the
possibility ... of bringing about a decision under domestic law, officially
approved by the Supreme Court, that allows the efforts that... are being made
to expedite ... these cases, to be brought to a successful conclusion.
The Commission’s arguments
36. In this respect the delegate of the Inter-American
Commission began his statement:
congratulating
the Government of Peru for its attitude before the system, for its attitude
in the numerous cases that it is trying to resolve before the Commission,
but, above all, for its attitude in this case, which is exemplary for many
reasons [, above all] owing to the positive attitude of the Government towards
finding solutions, particularly, because that attitude gives the Commission
and the Honorable Court a special opportunity, a truly historic opportunity,
to advance international human rights law, based on measures under domestic
law that contribute to combat impunity, which is one of the evils of our hemisphere,
to which this Court and ... the Commission have accorded fundamental importance.
I believe that this attitude of the Government of Peru gives us the
opportunity to associate ourselves with the people of Peru, their Government
and their civil society, to find creative solutions, which may subsequently
be emulated and imitated throughout the hemisphere and beyond it.
…
[This case] is
essentially a very serious and very sad case of extrajudicial executions committed
by agents of the Government of Peru, acting unlawfully and clandestinely ...
But, it is also about ... the deliberate imposition of legislative
and judicial mechanisms to prevent the facts being known and prevent those
responsible from being punished. This is why ..... it is not only about the
gruesome events that occurred in Barrios Altos, but also about the attitude
assumed by the former Government of Peru when it violated its international
obligations by adopting laws, with the only purpose of granting impunity. ...In the coming days, weeks, months, these
obstacles in the Peruvian legislation must be specifically removed so that
the Barrios Altos victims may effectively have access to truth and justice
and have recourses to enforce their rights before the State of Peru.
…The circumstances are ripe for
us to reach an agreement with the Government of Peru on the concrete meaning,
the concrete conduct arising from its recognition of responsibility, and for
this agreement on compliance to be officially endorsed by the Honorable Court
as soon as possible, so that it constitutes an instrument that can subsequently
be used, under Peru’s domestic laws, as a tool to destroy and remove the remaining
obstacles in order to combat impunity in Peru.
…
…This is a historical moment [and…]
we are very grateful and very honored, not only to be in the presence of the
Court, but also in the presence of a Government that is taking, has taken
and will continue to take important measures to ensure that human rights are
fully guaranteed…
…The Inter-American
system has played a fundamental role in achieving democracy in Peru.
The Inter-American Commission and the Inter-American Court of Human
Rights led the international community in condemning the practices of horror,
injustice and impunity that occurred under the Fujimori Government.
Those of us present at this hearing, recognize the desire of the next
of kin and of the Peruvian human rights community to obtain justice and truth
in that country. This desire is shared by the whole inter-American
system and, in this respect, we would like ... to request the Honorable Court
that ... by virtue of the State’s acquiescence, it should not only establish
the specific violations of the articles of the Convention in which the State
incurred ..., but also, in the operative paragraphs of the judgment, specifically
establish the need to clarify the events, so as to protect the right to truth,
the need to investigate and punish those responsible, ... the incompatibility
of amnesty laws with the provisions of the American Convention, and ... the
obligation of the State to annul amnesty laws.
*
* *
The considerations of the Court
37. Article 52(2) of the Rules of Procedure
establishes that:
If the respondent
informs the Court of its acquiescence in the claims of the party that has
brought the case, the Court shall decide, after hearing the opinions of the
latter and the representatives of the victims or their next of kin, whether
such acquiescence and its juridical effects are acceptable. In that event, the Court shall determine the
appropriate reparations and indemnities.
38. Based on the statements of the parties at
the public hearing of March 14, 2001, and in view of the acquiescence to the
facts and the recognition of international responsibility by Peru, the Court
considers that the dispute between the State and the Commission has ceased
with regard to the facts that gave rise to the instant case.[2]
39. Consequently, the Court considers that the
facts referred to in paragraph 2 of this judgment have been admitted. The Court also considers that, as the State
has expressly recognized, it incurred international responsibility for violating
Article 4 (Right to Life) of the American Convention with regard to Placentina
Marcela Chumbipuma Aguirre, Luis Alberto Díaz Astovilca, Octavio Benigno Huamanyauri
Nolazco, Luis Antonio León Borja, Filomeno León León, Máximo León León, Lucio
Quispe Huanaco, Tito Ricardo Ramírez Alberto, Teobaldo Ríos Lira, Manuel Isaías
Ríos Pérez, Javier Manuel Ríos Rojas, Alejandro Rosales Alejandro, Nelly María
Rubina Arquiñigo, Odar Mender Sifuentes Nuñez and Benedicta Yanque Churo,
and for violating Article 5 (Right to Humane Treatment) with regard to Natividad
Condorcahuana Chicaña, Felipe León León, Tomás Livias Ortega and Alfonso Rodas
Alvítez. In addition, the State is
responsible for violating Article 8 (Right to a Fair Trial) and Article 25
(Judicial Protection) of the American Convention as a result of the promulgation
and application of Amnesty Laws No. 26479 and No. 26492.
Finally, the State is responsible for failing to comply with Article
1(1) (Obligation to Respect Rights) and Article 2 (Domestic Legal Effects)
of the American Convention on Human Rights as a result of the promulgation
and application of Amnesty Laws No. 26479 and No. 26492 and the violation
of the articles of the Convention mentioned above.
40. The Court recognizes that Peru’s acquiescence
makes a positive contribution to this proceeding and to the exercise of the
principles that inspire the American Convention on Human Rights.
VII
The Incompatibility
of Amnesty Laws
with the Convention
41. This Court considers that all amnesty provisions,
provisions on prescription and the establishment of measures designed to eliminate
responsibility are inadmissible, because they are intended to prevent the
investigation and punishment of those responsible for serious human rights
violations such as torture, extrajudicial, summary or arbitrary execution
and forced disappearance, all of them prohibited because they violate non-derogable
rights recognized by international human rights law.
42. The Court, in accordance with the arguments
put forward by the Commission and not contested by the State, considers that
the amnesty laws adopted by Peru prevented the victims’ next of kin and the
surviving victims in this case from being heard by a judge, as established
in Article 8(1) of the Convention; they violated the right to judicial protection
embodied in Article 25 of the Convention; they prevented the investigation,
capture, prosecution and conviction of those responsible for the events that
occurred in Barrios Altos, thus failing to comply with Article 1(1) of the
Convention, and they obstructed clarification of the facts of this case.
Finally, the adoption of self-amnesty laws that are incompatible with
the Convention meant that Peru failed to comply with the obligation to adapt
internal legislation that is embodied in Article 2 of the Convention.
43. The Court considers that it should be emphasized
that, in the light of the general obligations established in Articles 1(1)
and 2 of the American Convention, the States Parties are obliged to take all
measures to ensure that no one is deprived of judicial protection and the
exercise of the right to a simple and effective recourse, in the terms of
Articles 8 and 25 of the Convention. Consequently,
States Parties to the Convention which adopt laws that have the opposite effect,
such as self-amnesty laws, violate Articles 8 and 25, in relation to Articles
1(1) and 2 of the Convention. Self-amnesty laws lead to the defenselessness of victims and perpetuate
impunity; therefore, they are manifestly incompatible with the aims and spirit
of the Convention. This type of law
precludes the identification of the individuals who are responsible for human
rights violations, because it obstructs the investigation and access to justice
and prevents the victims and their next of kin from knowing the truth and
receiving the corresponding reparation.
44. Owing to the manifest incompatibility of
self-amnesty laws and the American Convention on Human Rights, the said laws
lack legal effect and may not continue to obstruct the investigation of the
grounds on which this case is based or the identification and punishment of
those responsible, nor can they have the same or a similar impact with regard
to other cases that have occurred in Peru, where the rights established in
the American Convention have been violated.
VIII
Right
to the Truth and Judicial Guarantees
IN
THE RULE OF LAW
The Commission’s arguments
45. The Commission alleged that the right to
truth is founded in Articles 8 and 25 of the Convention, insofar as they are
both “instrumental” in the judicial establishment of the facts and circumstances
that surrounded the violation of a fundamental right. It also indicated that this right has its roots
in Article 13(1) of the Convention, because that article recognizes the right
to seek and receive information. With
regard to that article, the Commission added that the State has the positive
obligation to guarantee essential information to preserve the rights of the
victims, to ensure transparency in public administration and the protection
of human rights.
The State’s arguments
46. The State did not contest the Commission’s
arguments in this respect and indicated that its human rights strategy was
based on “recognizing responsibilities, but, above all, proposing integrated
procedures for attending to the victims based on three fundamental elements:
the right to truth, the right to justice and the right to obtain fair reparation”.
*
* *
The considerations of the Court
47.
In this case, it is evident that the surviving victims, their next
of kin and the next of kin of the victims who died were prevented from knowing
the truth about the events that occurred in Barrios Altos.
48. Despite this, in the circumstances of the
instant case, the right to the truth is subsumed in the right of the victim
or his next of kin to obtain clarification of the events that violated human
rights and the corresponding responsibilities from the competent organs of
the State, through the investigation and prosecution that are established
in Articles 8 and 25 of the Convention.[3]
49. Therefore, this matter has been resolved,
since it has been indicated (supra
para. 39) that Peru violated Articles 8 and 25 of the Convention, with regard
to judicial guarantees and judicial protection.
IX
Opening of
the Reparations Stage
50. Since Peru has recognized its responsibility,
the Court considers that it is in order to proceed to the reparations stage.[4] The Court considers that it is appropriate
that reparations are determined by mutual agreement between the defendant
State, the Inter-American Commission and the victims, their next of kin or
duly accredited representatives. To
this end, it establishes a period of three months from the date that this
judgment is notified. The Court also
considers it pertinent to indicate that it will evaluate the agreement reached
by the parties and this must be entirely compatible with the relevant provisions
of the American Convention. Should
no agreement be reached, the Court will determine the scope and amount of
the reparations.
X
51. Therefore,
THE COURT,
DECIDES:
unanimously,
1. To admit the State’s recognition of international
responsibility.
2. To find, in accordance with the terms
of the State’s recognition of international responsibility, that it violated:
a) the
right to life embodied in Article 4 of the American Convention on Human Rights,
with regard to Placentina Marcela Chumbipuma Aguirre, Luis Alberto Díaz Astovilca,
Octavio Benigno Huamanyauri Nolazco, Luis Antonio León Borja, Filomeno León
León, Máximo León León, Lucio Quispe Huanaco, Tito Ricardo Ramírez Alberto,
Teobaldo Ríos Lira, Manuel Isaías Ríos Pérez, Javier Manuel Ríos Rojas, Alejandro
Rosales Alejandro, Nelly María Rubina Arquiñigo, Odar Mender Sifuentes Nuñez
and Benedicta Yanque Churo;
b) the right to humane treatment
embodied in Article 5 of the American Convention on Human Rights, with regard
to Natividad Condorcahuana Chicaña, Felipe León León, Tomás Livias Ortega
and Alfonso Rodas Alvítez; and
c) the right to a fair trial and judicial
protection embodied in Articles 8 and 25 of the American Convention on Human
Rights, with regard to the next of kin of Placentina Marcela Chumbipuma Aguirre,
Luis Alberto Díaz Astovilca, Octavio Benigno Huamanyauri Nolazco, Luis Antonio
León Borja, Filomeno León León, Máximo León León, Lucio Quispe Huanaco, Tito
Ricardo Ramírez Alberto, Teobaldo Ríos Lira, Manuel Isaías Ríos Pérez, Javier
Manuel Ríos Rojas, Alejandro Rosales Alejandro, Nelly María Rubina Arquiñigo,
Odar Mender Sifuentes Nuñez, Benedicta Yanque Churo, and with regard to Natividad
Condorcahuana Chicaña, Felipe León León, Tomás Livias Ortega and Alfonso Rodas
Alvítez, as a result of the promulgation and application of Amnesty Laws No.
26479 and No. 26492.
3. To find, in accordance with the terms
of the State’s recognition of international responsibility, that the State
failed to comply with Articles 1(1) and 2 of the American Convention on Human
Rights as a result of the promulgation and application of Amnesty Laws No.
26479 and No. 26492 and the violation of the articles of the Convention mentioned
in operative paragraph 2 of this judgment.
4.
To find that Amnesty Laws No. 26479 and No. 26492 are incompatible
with the American Convention on Human Rights and, consequently, lack legal
effect.
5.
To find that the State of Peru should investigate the facts to determine
the identity of those responsible for the human rights violations referred
to in this judgment, and also publish the results of this investigation and
punish those responsible.
6.
To order that reparations shall be established by mutual agreement
between the defendant State, the Inter-American Commission and the victims,
their next of kin or their duly accredited legal representatives, within three
months of the notification of this judgment.
7.
To reserve the authority to review and approve the agreement mentioned
in the previous operative paragraph and, should no agreement be reached, to
continue the reparations procedure.
Judge Cançado Trindade and
Judge García Ramírez informed the Court of their Concurring Opinions, which
accompany this judgment.
Done
at San Jose, Costa Rica, on March 14, 2001, in the Spanish and English languages,
the Spanish text being authentic.
Antônio A.
Cançado Trindade
President
Máximo Pacheco-Gómez
Hernán Salgado-Pesantes
Alirio Abreu-Burelli Sergio
García-Ramírez
Carlos Vicente
de Roux-Rengifo
Manuel E. Ventura-Robles
Secretary
So ordered,
Antônio A.
Cançado Trindade
President
Manuel E.
Ventura-Robles
Secretary