Cesti Hurtado Case, Judgment of May 31, 2001, Inter-Am Ct. H.R. (Ser. C) No. 78 (2001).
In
the Cesti Hurtado case,
the
Inter-American Court of Human Rights, composed of the following judges*:
Antônio A. Cançado Trindade, President
Hernán Salgado Pesantes, Judge
Oliver Jackman, 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 56 of the
Rules of Procedure of the Inter-American Court of Human Rights (hereinafter
“the Court” or “the Inter-American Court”) in relation to Article 63(1) of
the American Convention on Human Rights (hereinafter “the Convention” or “the
American Convention”) and in compliance with the judgment of September 29,
1999, delivers this judgment on reparations.
I
Competence
1. According
to Articles 62 and 63(1) of the Convention, the Court is competent to decide
on reparations and expenses in the instant case, because the Republic of Peru
(hereinafter “the State”, “Peru” or “the State of Peru”) has been a State
Party to the American Convention since July 29, 1978, and accepted the contentious
jurisdiction of the Court on January 21, 1981.
II
Background
2. This
case was referred to the Court by the Inter-American Commission on Human Rights
(hereinafter “the Commission” or “the Inter-American Commission”), in an application
dated January 9, 1998, accompanied by Report No. 45/97 of October 16, 1997.
It originated in a petition (No. 11.730) against Peru, received by
the Secretariat of the Commission on March 7, 1997.
3. On
September 29, 1999, the Court delivered judgment on the merits of the case
in which it decided unanimously:
1. to rule that the State of Peru violated Articles 7(6) and
25 of the American Convention on Human Rights with regard to Gustavo Adolfo
Cesti Hurtado, in the terms established in paragraphs 123 to 133 of this judgment,
and to order that the decision of the Chamber of Public Law of Lima on the
petition for habeas corpus filed by Gustavo Adolfo Cesti Hurtado, of February
12, 1997, should be complied with;
2. to rule that the State of Peru violated Article 7(1), 2
and 3 of the American Convention on Human Rights with regard to Gustavo Adolfo
Cesti Hurtado, in the terms established in paragraphs 140 to 143 of this judgment;
3. to rule that the State of Peru violated Article 8(1) of
the American Convention on Human Rights with regard to Gustavo Adolfo Cesti
Hurtado, in the terms established in paragraph 151 of this judgment;
4. to rule that, in the instant case, it was not proved that
the State of Peru violated Article 8(2) of the American Convention on Human
Rights with regard to Gustavo Adolfo Cesti Hurtado, in the terms established
in paragraph 152 of this judgment;
5. to rule that, in the instant case, it was not proved that
the State of Peru violated Article 5(2) of the American Convention on Human
Rights with regard to Gustavo Adolfo Cesti Hurtado, in the terms established
in paragraph 160 of this judgment;
6. to rule that the State of Peru violated Articles 1(1) and
2 of the American Convention on Human Rights with regard to Gustavo Adolfo
Cesti Hurtado, in the terms established in paragraphs 166 to 170 of this judgment;
7. to rule that in the instant case it was not proved that
the State of Peru violated Articles 11 and 21 of the American Convention on
Human Rights with regard to Gustavo Adolfo Cesti Hurtado, in the terms established
in paragraphs 177, 178 and 183 of this judgment;
8. to rule that the proceeding against Gustavo Adolfo Cesti
Hurtado under the military justice system is incompatible with the American
Convention on Human Rights and to order the State to annul this action and
all the effects that may derive from it;
9. to rule that the State of Peru is obliged to pay fair compensation
to Gustavo Adolfo Cesti Hurtado and to indemnify him for any expenses that
he may have incurred in steps related to this proceeding, and
10. to order that the reparations stage should be opened and
to authorize its President to duly adopt the appropriate measures.
III
Proceeding at the Reparations Stage
4. On
January 21, 2000, the President of the Court (hereinafter “the President”),
in compliance with the judgment of September 29, 1999, decided:
1. To grant the Inter-American Commission on Human Rights
until March 3, 2000, to submit a brief and any evidence it had. for the purpose
of determining reparations and costs in the instant case.
2. To grant Gustavo Adolfo Cesti Hurtado, the victim in this
case, or his legal representative, until March 3, 2000, to submit a brief
and any evidence he had, for the purpose of determining reparations and costs
in the instant case.
3. To instruct the Secretariat of the Court to remit all the
briefs and evidence submitted to the State of Peru, once the period mentioned
in the previous operative paragraphs has expired.
4. To grant the State of Peru a period of six weeks, from
the date on which it receives the briefs and the evidence referred to in operative
paragraphs 1 and 2, to submit its comments and any evidence it had, for the
purpose of determining reparations and costs in the instant case.
5. To summon Gustavo Adolfo Cesti Hurtado, the victim in this
case, or his legal representative, and also the Inter-American Commission
on Human Rights and the State of Peru to a public hearing at a date that will
be announced in due course, once the written stage of the proceeding has been
completed.
5. On
March 1, 2000, the Inter-American Commission submitted its brief on reparations
and expenses
6. On
March 2, 2000, Gustavo Adolfo Cesti Hurtado (hereinafter “Mr. Cesti” or “the
victim”) submitted his brief and certain documentary evidence relating to
reparations, in 14 annexes (infra 24).
7. On
March 20, 2000, the President summoned Mr. Cesti or his legal representative,
Peru and the Inter-American Commission to a public hearing on reparations,
to be held at the seat of the Court on June 16 that year.
8. On
April 7, 2000, the Secretariat of the Court (hereinafter “the Secretariat”)
advised Mr. Cesti, the Inter-American Commission and the State that the Forty-eighth
Regular Session of the Inter-American Court had been suspended, and that the
public hearing on reparations programmed for that session (supra 7) would be convened again, in due
course.
9. On
April 13, 2000, the State requested the President to extend the period established
for formulating its comments on the briefs on reparations submitted by the
victim and the Inter-American Commission. The following day, on the instructions of the President, the Secretariat
advised Peru that the period for submitting its brief had been extended until
May 3, 2000.
10. On
May 4, 2000, the State commented on the briefs on reparations submitted by
the victim and the Inter-American Commission.
11. On
June 12, 2000, the President summoned Mr. Cesti or his legal representative,
the Inter-American Commission and Peru to a pubic hearing on reparations to
be held at the seat of the Court on August 10, 2000.
12. On
June 20, 2000, Mr. Cesti commented on the brief on reparations submitted by
the State.
13. On
August 10, 2000, the Court held a public hearing on reparations.
There appeared before the Court:
Gustavo
Adolfo Cesti Hurtado;
for the Inter-American Commission:
Oscar
Luján Fappiano
Alberto
Borea Odría, and
Christina
M. Cerna;
for the State:
Jorge
Hawie Soret, and
Rolando
Eyzaguirre.
14. On
September 11, 2000, the victim submitted written comments on the arguments
made by the State during the public hearing on reparations.
15. On
November 6, 2000, the State informed the Court that “the Supreme Council of
Military Justice ha[d] complied with the decisions of the judgment [on merits]”
and attached a copy of the decision of the Plenary of the Supreme Council
of Military Justice of September 14, 2000, which established that “the orders
issued against [Mr. Cesti] that restricted his freedom and embargoed his property
are suspended.”
16. On
February 9, 2001, the State informed the Court that it had appointed Patricio
Marcial Rubio Correa and Iván Arturo Bazán Chacón as its agent and deputy
agent, respectively, in this case, and on February 16 that year, it indicated
the place where any notifications would be officially received.
17. On
April 26, 2001, the victim submitted a brief with observations on the reparations
in the instant case and attached certain documentary evidence in six annexes
(infra 27 and 29).
IV
Evidence
18. Article
43 of the Rules of Procedure of the Inter-American Court (hereinafter “the
Rules of Procedure”) establishes that:
Items of evidence tendered by the
parties shall be admissible only if previous notification thereof is contained
in the application and in the reply thereto [...]. Should any of the parties allege force majeure, serious impediment or the emergence of supervening
events as grounds for producing an item of evidence, the Court may, in that
particular instance, admit such evidence at a time other than those indicated
above, provided that the opposing parties are guaranteed the right of defense.
19. Article
44 of the Rules of Procedure indicates that, at any stage of the case, the
Court may:
1. Obtain, on is own motion, any evidence it considers helpful.
In particular, it may hear as a witness, expert witness, or in any other capacity,
any person whose evidence, statement or opinion it deems to be relevant.
2. Request the parties to provide any evidence within their
reach or any explanation or statement that, in its opinion, may be useful.
3. Request any entity, office, organ or authority of its choice
to obtain information, express an opinion, or deliver a report or pronouncement
on any given point. The documents
may not be published without the authorization of the Court.
[...]
20. According
to the consistent practice of the Court, during the reparations stage, the
parties must indicate the evidence that they will offer at the first occasion
granted to them to make a written statement.
Moreover, the exercise of the Court’s discretional powers stipulated
in Article 44 of its Rules of Procedure, allows it to request the parties
to provide additional elements of evidence to help it to make a more informed
decision; however, this does not grant the parties another opportunity to
expand or complete their arguments or offer new evidence on reparations, unless
the Court so allows.
21. The
Court has previously indicated that the proceedings before it are not subject
to the same formalities as domestic proceedings and that, when incorporating
determined elements into the body of evidence, particular attention must be
paid to the circumstances of the specific case and to the limits imposed by
respect for legal certainty and the procedural equality of the parties[1]. In its jurisprudence, the Court has sustained
that it has the authority to evaluate the evidence within the limits of sound
judicial discretion; and has always avoided making a rigid determination of
the amount of evidence required to support a judgment[2].
22. This
practice extends to the briefs in which the victim and the Inter-American
Commission formulate their claims for reparations and to the State’s answering
brief, which are the principle documents at this stage and, in general, entail
the same formalities with regard to the offer of evidence as the application.
23. On
this basis, the Court will proceed to examine and evaluate all the elements
that make up the body of evidence, according to the rules of sound judicial
discretion[3],
within the legal framework of the instant case.
24. Regarding
the evidence, when Mr. Cesti submitted his brief on reparations, he attached
a series of documents in 14 annexes[4]
(supra 6).
25. Neither
the Inter-American Commission nor the State submitted any evidence with their
briefs on reparations.
26. On
November 6, 2000, the State submitted a copy of the decision of the Plenary
of the Supreme Council of Military Justice of September 14, 2000 (supra 15).
27. On
April 26, 2001, the victim submitted comments on reparations and attached
six annexes[5]
(supra 17).
28. In
the instant case, the Court admits the value as evidence of those documents
that were submitted by the parties at the appropriate time, that were not
contested or opposed, and the authenticity of which was not questioned[6].
29. With regard to the decision of the Plenary
of the Supreme Council of Military Justice of September 14, 2000, although
this was not submitted at the appropriate procedural moment (supra 15 and 26), the Court observes that
this evidence refers to a supervening event and this reason justifies its
tardy presentation, so that it is in order to admit it to the body of evidence.
The same may be said of the evidence submitted by the victim on April
26, 2001 (supra 17 and 27).
V
Obligation to Make Reparation
30. In the tenth operative paragraph of the judgment on merits of
September 29, 1999, the Court decided to open the reparations stage and authorized
the President to adopt the corresponding procedural measures.
31. With
regard to reparations, Article 63(1) of the American Convention is applicable
and it establishes:
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
(the original is not underlined).
32. In its
consistent jurisprudence, this Court has reiterated that it is a principle
of international law that any violation of an international obligation that
has produced damage entails the obligation to make adequate reparation[7].
33. Reparation
of the damage resulting from the violation of an international obligation
requires, whenever possible, the full restitution (restitutio in integrum), which consists in the re-establishment of
the previous situation. If this is
not possible, as in the instant case, the international court must determine
a series of measures to guarantee the violated rights and order payment of
compensation for the damage caused[8].
34. The respondent State may not invoke provisions
of domestic law in order to modify or fail to comply with the obligation to
make reparation – all aspects of which (scope, nature, methods and determination
of the beneficiaries) are regulated by international law[9].
35. As
the Court has indicated, Article 63(1) of the American Convention codifies
a rule of common law that is one of the fundamental principles of contemporary
international law on State responsibility[10].
When an unlawful act occurs that may be attributed to a State, the international
responsibility of the latter is immediately engaged for the violation of an
international law, with the resulting obligation to make reparation and to
ensure that the consequences of the violation cease[11].
36. As the word indicates, reparation consists
in the measures that are intended to eliminate the effects of the violations
that were committed. Their nature
and amount depend on the damage caused at both the pecuniary and the non-pecuniary
level. Reparations are not supposed
to enrich or impoverish the victim or his heirs[12].
37. The reparations
established in this judgment must be consistent with the violations found
in the judgment on merits delivered by the Court on September 29, 1999 (supra 3).
VI
Beneficiaries
38. In
the instant case, Gustavo Adolfo Cesti Hurtado is evidently the victim. In its judgment of September 29, 1999, the
Court declared that the State violated several of his rights embodied in the
Convention (supra 3); therefore,
he merits the compensation that the Court determines in his favor.
39. However,
in his brief of March 2, 2000, Mr. Cesti also requested the Court to compensate
his wife, children, mother-in-law and father for non-pecuniary damage, as
they had been affected by the violations of his fundamental rights for more
than three years.
40. The Court recognizes that the violations
that have been established must have produced prejudices of various kinds
within the victim’s household and, consequently, his nearest next of kin may
have the right to receive compensation, provided this is in relation to the
violations that were declared in the judgment on merits and provided that
it complies with the requirements established in the jurisprudence of this
Court.
VII
Proven Facts
41. To
determine the measures of reparation that are in order in this case, the Court
will base itself on the facts that were considered proven in its judgment
of September 29, 1999. Moreover, as
it has been indicated, the victim and the State have contributed new evidence
to the file that is relevant for determining the measures of reparation. The Court has examined this evidence and the
arguments of the parties and declares the following facts proven in relation
to Mr. Cesti:
a) he was 45 years of age at the time of
his detention[13];
b) at the time of his detention, he was the
general manager and legal representative of the insurance company, Top Security Asesores and Corredores de Seguros
Sociedad Anónima (hereinafter “Top Security” or “the company”[14];
c) while he was detained, he suffered health
problems of a psychological and cardiological nature, for which he received
medical treatment during his detention[15];
d) he was liberated on November 11, 1999[16];
e)
he incurred a series of expenses
for the professional fees of his representatives who prepared, filed and processed
his case before the Peruvian authorities and the inter-American system[17];
f)
his lawyers and other persons close to Mr. Cesti also incurred expenses,
in particular, with regard to travel to Costa Rica and the United States[18];
g) his family employed private security services[19].
VIII
Reparations
A) pecuniary
damage
42. At
the time of his detention, Mr. Cesti indicated that he was the legal representative
and general manager of the family company, “Top Security”, which was well
known in Peru; the shareholders were his wife, his daughter and his father.
He indicated that this company was fourth among more than 300 similar
companies in the ranking drawn up by the Superintendency of Banks and Insurance
and first in tax payments. He stated that, during the three years prior
to his detention, the company had billed, on average, more than US$ 2,000,000.00
(two million United States dollars) a year. Lastly, he declared that, when he was detained,
the Superintendency of Banks and Insurance decided that, as he was imprisoned,
he could no longer fulfill his functions as legal representative of the company,
an essential requirements for its operation and, therefore, the company’s
operations had to be suspended, a situation which continued until the date
of the brief on reparations.
43. Based
on the foregoing, Mr. Cesti requested the Court to order the following compensation
for pecuniary damage:
a) US$ 6,000,000.00 (six million United States
dollars) for the loss of earnings caused directly by the termination of the
company’s activities;
b) US$ 106,405.63 (one hundred and six thousand
four hundred and five United States dollars and sixty-three cents) for the
total expenses of security systems and personnel employed to provide surveillance
services for the movements of the Cesti family, their homes and the company,
Top Security, owing to the constant threats, thefts to remove information
from the offices, the placing of a listening device in the office of Carmen
Cardó de Cesti and threats with military weapons from moving vehicles;
c) US$ 15,690.69 (fifteen thousand six hundred
and ninety United States dollars and sixty-nine cents) spent on announcements
in the national and foreign press in order to try and lessen the damage to
Mr. Cesti;
d) US$ 4,000,000.00 (four million United
States dollars) for consequential damage in order to return the company, Top
Security, to its former position of prestige and confidence;
e) US$ 43,907.21 (forty-three thousand nine
hundred and seven United States dollars and twenty-one cents) for consequential
damage, as a result of the interruption of an insurance program of the company,
Top Security, known as “Mi Seguro”
(My Insurance), which had to be suspended due to the problems that arose;
f) US$ 1,070,000.00 (one million seventy
thousand United States dollars) for the total financial damage caused by the
embargo decreed on his assets (property and savings), which his wife co-owned.
This amount includes US$ 360,000.00 (three hundred and sixty thousand
United States dollars) for the embargo of US$ 400,000.00 (four hundred thousand
United States dollars) during three years, plus US$ 710,000.00 (seven hundred
and ten thousand United States dollars) for the embargo on his property.
This property consisted of a residence and a chalet in an exclusive
zone of Lima, an apartment in the best commercial zone of this city and a
parking space, the overall commercial value of which amounts to US$
900,000.00 (nine hundred thousand United States dollars)
approximately; and
g) US$ 67,316.48 (sixty-seven thousand three
hundred and sixteen United States dollars and forty-eight cents) for additional
damage because, owing to the embargoes ordered on his assets, the company
went into arrears in its payments to the Superintendency of Tax Administration,
so that this institution withdrew the benefit of the special system of fractioning
tax payments.
44. The
Commission considered that Peru should make reparation to Mr. Cesti for the
damage of an irreversible nature that he suffered as a result of the violation
of his rights, by paying an adequate indemnity. In this respect, the Commission requested the Court to compensate
the victim for loss of earnings, consisting in the remuneration that he ceased
to receive as an officer of the company, from the time of his detention and
until his effective reincorporation; for the earnings that he had ceased to
receive as a “shareholder” of the company, due to the termination of activities;
and for the income and interest that he had ceased to receive because he could
not dispose of his property owing to the embargo on his assets. The Commission
also requested the Court to order compensation for the consequential damage
resulting from the fact that he could not dispose of his embargoed assets
and for the expenses in order to reinstate Top Security in its previous position.
The Commission cited the estimates and amounts that the victim had requested
and also the evidence that he had submitted.
45. Finally,
Peru declared that the claims for pecuniary damage were not in order because:
a) the fact that Mr. Cesti was absent from
the administration of the company could not result in pecuniary damage, as a direct consequence, since the company could
have continued offering its services with another legal representative and
even with Mr. Cesti’s participation and advice;
b) the company’s financial statements did
not show that it had an annual income of US$ 2,000,000.00 (two million United
States dollars);
c) the amount requested to compensate the
expense of providing security to Mr. Cesti’s family and assets was not included
in the judgment on merits, and it had not been requested in the domestic jurisdiction;
d) the expenses occasioned by the publication
of newspaper announcements were made “motu proprio”;
e) the level of trust that a company attains
is a result of the importance of the body corporate, unrelated to those who
are on the board of directors, and the “Mi
Seguro” program could have continued, so that its suspension did not constitute
consequential damage;
f) the embargoes that were decreed were
executed as part of a right that corresponds to any jurisdictional instance,
as a precautionary measure to ensure the execution of a subsequent result
of the proceeding, and should not be considered pecuniary damage; and
g) the tax debt to the Office of the National
Tax Administration Superintendency was in existence before Mr. Cesti was detained
and could have been paid, taking into account the annual income that Mr. Cesti
“said he received”; also, this debt arose from how the company, Top Security
was managed, and, therefore, bore no relation to Mr. Cesti’s imprisonment.
46. The
Court takes note of the statements by the victim and the Commission that the
violations that occurred in the instant case justify making reparation to
Mr. Cesti for pecuniary damage. However,
in view of the particularities of this case and the nature of the reparations
requested, this Court considers that they should be determined by the mechanisms
established in the domestic laws. The
internal courts or the specialized national institutions have specific knowledge
of the branch of activity to which the victim was dedicated.
Taking into consideration the specificity of the reparations requested
and also the characteristics of commercial and company law and the commercial
operations involved, the Court considers that this determination corresponds
to the said national institutions rather than to an international human rights
tribunal.
47. In
view of the foregoing, it is appropriate to order the State to compensate
the victim for the pecuniary damage that the violations declared in the judgment
on merits caused him, taking into account, within the circumstances of the
instant case, the elements that normally constitute pecuniary damage; and
that it is appropriate to establish the corresponding compensatory amounts,
following the pertinent national norms, so that the victim will receive them
within a reasonable period.
B) Non-pecuniary
damage
48. The
victim indicated that the three years of “undue, distressing and cruel detention,
together with the permanent uncertainty and tension that the fact that [...]
the motives for his liberation [were] not explained [... had] generate[d in
him]” caused him to live “with the anguish of uncertainty based on the arbitrariness
of the proceedings against him”, all of which had caused very severe psychological
damage from which he has still not recovered. He therefore requested the sum of US$ 20,000,000.00
(twenty million United States dollars) for non-pecuniary damage. In the same way, he indicated that his family
had been constantly harassed, threatened and humiliated, and attempts had
been made on their lives during recent years and, accordingly, he requested
the following amounts:
·
US$ 2,000,000.00
(two million United States dollars) for his wife, Carmen Cardó Guarderas de
Cesti;
·
US$ 1,000,000.00
(one million United States dollars) for his daughter, Margarita del Carmen
Cesti Cardó de Lama;
·
US$ 1,000,000.00
(one million United States dollars) for his son, Gustavo Guillermo Cesti Cardó;
·
US$ 500,000.00
(five hundred thousand United States dollars) for his mother-in-law, Judith
Guarderas Cardó de Cardó; and
·
US$ 500,000.00
(five hundred thousand United States dollars) for his father, Gustavo Aurelio
Cesti Ackermann.
49. The
Inter-American Commission considered that the deprivation of freedom, disregarding
a habeas corpus judgment that ordered
the victim’s liberation, the prison sentence, the embargo on his assets and
the publicity given to the case, affected the Mr. Cesti’s “feelings”; it also
declared that this situation was aggravated owing to the type of work that
he performed, because, in insurance activities, trust is an essential factor
in the relationship between the insurer and the person insured.
Therefore, it requested a compensation, to be determined by the Court.
50. With
regard to non-pecuniary and psychological damage, Peru remarked that this
claim was not admissible, because a detention could not be described as undue
if it was executed on the basis of a warrant and, also, if the effects of
the detention on Mr. Cesti were merely due to an omission on his part, since
he failed to demand and process a request for release on bail.
51. Based
on extensive international jurisprudence, the Court considers that obtaining
a judgment that supports the victim’s claims is, in itself, a form of reparation[20]. However, it also believes that it is pertinent
to grant him an additional compensation for non-pecuniary damage, taking into
account the circumstances of the instant case[21]. This should be determined on the basis of equity
and prudent evaluation, since it is not possible to assess it precisely[22].
52. In
this respect, the Court considers it necessary to evaluate the violations
that were declared in the judgment on merits in the instant case and the repercussions
that these had on the victim and, observing the standards established by this
Court in the resolution of other cases, to determine a reasonable and appropriate
amount for non-pecuniary damage in favor of Mr. Cesti, as reparation for the
harm caused him.
53. Based
on the previous considerations, the Court believes that it is fair to grant
the victim a compensation of US$ 25,000.00
(twenty-five thousand United States dollars) for non-pecuniary damage.
54. With regard to Mr., Cesti’s request that this Court order the
State to provide reparations to his next of kin, this Court has already verified
the existence of grave violations against the victim and must presume that
they had consequences on his wife and his children, who were not only separated
from Mr. Cesti and understood and shared his distress, but also, there are
indications that they were harassed and threatened, as a result of which the
Court had to order provisional measures in their favor. The Court considers that these presumptions
have not been disproved by the State and, therefore, it is pertinent to designate
Mr. Cesti’s wife, Carmen Cardó Guarderas de Cesti, and his children, Margarita
del Carmen Cesti Cardó de Lama and Gustavo Guillermo Cesti Cardó, beneficiaries
of a reparation.
55. Accordingly, the Court believes that it is fair to grant Mr.
Cesti’s wife a compensation of US$ 10,000.00 (ten thousand United States dollars)
and each of his children a compensation of US$ 5.000,00 (five thousand United
States dollars) for non-pecuniary damage.
56. Regarding the victim’s father and mother-in-law, Gustavo Aurelio
Cesti Ackermann and Judith Guarderas Cardó de Cardó, respectively, the Court
assumes that they both suffered non-pecuniary damage as a result of the violations
against Mr. Cesti. However, taking
into account the specific circumstances of the instant case, the Court considers
that obtaining a judgment that supports the victim’s claims is, in itself,
a form of reparation.
IX
Other Forms of Reparation
57. In
its brief on Reparations, the Commission requested the Court to order Peru
to ensure Mr. Cesti the full enjoyment and exercise of his personal freedom
and freedom of movement, by releasing him from the prison sentence that had
been imposed, by lifting the prohibition to leave the country, and by allowing
him to have the benefit of his property by annulling the embargo on his assets;
that it attend and cover the costs of any adverse changes in Mr. Cesti’s health
subsequent to his detention; and that it make reparation to him for damage
to his honor and reputation, by a pecuniary compensation and the publication
of announcements that make it clear that Mr. Cesti cannot be considered guilty
of committing any crime, owing to the irregularity of the proceeding to which
he was submitted.
58. The Court observes that, in a resolution
of the Plenary of the Supreme Council of Military Justice of September 14,
2000, the State instructed that “the orders issued against [Mr. Cesti] that
restricted his freedom and embargoed his assets be suspended” (supra 15). Consequently, with regard to the proceeding before
the military justice system, the Commission’s request concerning the enjoyment
and exercise of personal freedom, which includes the consequences that the
imprisonment might have had on Mr. Cesti’s health and the lifting of the embargo
on his assets, is unfounded.
59. With
regard to the request concerning reparation for damage to Mr. Cesti’s reputation
and honor, the Court believes that both the judgment on merits that was delivered
in the instant case, in which it decided that Peru was responsible for violating
his human rights, and also this judgment, constitute per se adequate reparation in this respect.
X
Obligation to take domestic measures
60. The
Inter-American Commission requested the Court to order Peru to take the following
measures to make reparation for the damage suffered: that it conduct an exhaustive,
serious and impartial investigation to identify the authors of the violations
that had been declared and eventually punish them, in accordance with the
applicable constitutional, legal and administrative provisions, and that it
adopt the necessary measures under domestic law so that the State authorities
comply with the judgments delivered by the judges and courts of the Peruvian
Judiciary regarding habeas corpus
and the protection of the fundamental rights and freedoms and ensure that
they are complied with, in order to make Article 25 of the American Convention
fully effective.
61. Neither
the victim nor the State referred to this matter.
62. As
this Court has indicated “the investigation of the facts and the punishment
of those responsible, [...] is incumbent upon the State whenever there has
been a human rights violation and that obligation must be discharged seriously
and not as a mere formality.”[23]
63. As
this Court has already indicated, impunity signifies “the total lack of investigation,
prosecution, capture, trial and conviction of those responsible for violations
of the rights protected by the American Convention,”[24]
and
[...] the State has the obligation
to use all the legal means at its disposal to combat that situation, since
impunity fosters chronic recidivism of human rights violations and total defenselessness
of victims and their relatives[25].
64. Consequently,
the State has the obligation to investigation the human rights violations
that have been determined in this case and prosecute those responsible in
order to avoid impunity.
65. Article
25 of the American Convention establishes:
1. 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.
2. The
States Parties undertake:
a. to
ensure that any person claiming such remedy shall have his rights determined
by the competent authority provided for by the legal system of the state;
b. to
develop the possibilities of judicial remedy; and
c.
to ensure that the competent authorities shall enforce such remedies
when granted.
66. With
regard to Article 25 in relation to Article 1(1) of the Convention, the Court
has already established that the State is obliged to guarantee access to the
administration of justice to all persons and, above all, to an effective,
prompt and simple recourse that ensures the protection of their rights. Article
25 of the Convention is “one of the basic pillars, not only of the American
Convention, but also of the rule of law in a democratic society according
to the Convention”[26] and is directly
related to Article 8(1) of the Convention, which establishes that every person
has the right to a hearing with due guarantees and within a reasonable time,
by an, independent and impartial judge or tribunal for the determination of
his rights, whatever their nature[27].
67. In
view of the foregoing, this Court considers that Peru has the obligation to
ensure and make effect the recourses relating to judicial guarantees for the
protection of fundamental rights and freedoms, which include the procedures
of habeas corpus and amparo.
XI
Costs and Expenses
68. In
his brief on reparations, the victim requested the Inter-American Court to
approve the following amounts for reimbursement of costs and expenses:
a) US$ 34,939.00 (thirty-four thousand nine
hundred and thirty-nine United States dollars) for the fees of Javier Valle
Riestra at the start of the proceeding under the military justice system;
b) US$ 94,892.24 (ninety four thousand eight
hundred and ninety-two United States dollars and twenty-four cents) and US$
10,202.60 (ten thousand two hundred and two United States dollars and sixty
cents) for fees that have already been paid to Alberto Borea Odría and Miguel
Borea Odría, respectively, for assuming his defense in the trial under the
military justice system in Peru and for the application before the Inter-American
Commission and the Inter-American Court;
c) US$ 210,000.00 (two hundred and ten thousand
United States dollars) for pending fees for Alberto Borea Odría, for the proceedings
at the merits and reparation stages before the Inter-American Court;
d) US$ 45,000.00 (forty-five thousand United
States dollars) for retaining a lawyer’s office in the United States to provide
legal advice;
e) US$ 46,512.18 (forty-six thousand five
hundred and twelve United States dollars and eighteen cents) for air travel,
owing to 12 journeys to the seat of the Court in San José, Costa Rica, and
the seat of the Commission in Washington D.C. by his lawyers and family, and
also travel by other lawyers to different places to further his case; and
f) US$ 55,836.56 (fifty-five thousand eight
hundred and thirty-six United States dollars and fifty-six cents) for expenses
arising from these journeys, such as airport taxes, taxis, hotels, food, telephone
calls, faxes and translators.
Mr. Cesti stated that, although the Commission was
formally responsible for submitting the case to the Court, the advice of the
victim’s lawyer was fundamental in order to process the case appropriately.
Moreover, he requested the Court to determine Mr. Borea’s fees for
the reparation stage, since the latter had agreed that his fees would depend
on the respective results, and suggested that this amount should be no less
than 15% of the amount that the Court ordered Peru to pay as reparation.
Lastly, he observed that the disbursements he would have to make for
the presence of his lawyer and the parties in San José, Costa Rica, were still
pending.
69. In
its brief on reparations, the Commission requested the Court to order the
State to pay Mr. Cesti the expenses that he had incurred, at both the domestic
level and before the inter-American system; to this end, it referred to the
justification and the estimate of expenses that the victim had submitted in
the instant case.
70. In
this respect, the State indicated that:
a) the Commission represented Mr. Cesti’s
interests before the Inter-American Court, and its involvement was compensated
by the contributions of the countries that form part of the Convention, which
included Peru, and that the other expenses incurred in the said proceeding
should be paid for by the interested parties;
b) the amounts proposed by the victim, including
those that he was attempting to collect for his defense before the military
justice system, “[did] not harmonize with the table of fees established in
[Peru]” and that it did not consider it viable for a supranational instance
to establish the costs of an internal judicial proceeding; and
c) the expenses for travel and per diems
include travel to countries that have no relation to the proceeding in the
instant case.
71. It should be understood that costs and expenses
are included in the concept of reparation established in Article 63(1) of
the American Convention, because the measures taken by the victim or victims,
their successors or their representatives to have access to international
justice imply financial disbursements and commitments that should be compensated
when a guilty verdict is delivered. Therefore, this Court considers that the costs referred to in Article
55(1) of the Rules of Procedure also include the various necessary and reasonable
expenses that the victims make in order to have access to the inter-American
system for the protection of human rights, and the fees of those who provide
legal assistance are included among the expenses. Evidently, this only refers to the necessary
and reasonable expenses, according to the particularities of the case, which
are effectively incurred or defrayed by the victim or his representatives[28]. Owing
to the foregoing, the Court must prudently assess the scope of the costs and
expenses, bearing in mind the circumstances of the specific case, the nature
of the international jurisdiction for the protection of human rights and the
characteristics of the respective proceeding, which are unique and differ
from those of other proceedings of a national or international nature[29].
72. The
disbursements that are strictly necessary to attend the matters before the
jurisdictional organs at the national and international level are included
in the concept of expenses and costs[30]. With regard to professional fees, it is necessary
to bear in mind the characteristics inherent in the international human rights
proceeding, in which decisions are adopted on the violations of such rights,
without examining all the extremes of the implications of these violations,
which could involve questions of earnings related to the said fees, which
are legitimate in themselves, but unrelated to the specific issue of the protection
of human rights. Therefore, the Court
must decide these claims with restraint. If the Court proceeded otherwise, international human rights litigation
would be denatured. Consequently,
the Court must apply criteria of equity in these cases.
73. To
that end, the Court considers that it is fair to grant the victim the sum
of US$20,000.00 (twenty thousand United States dollars), in reimbursement
of the expenses and costs generated in the domestic jurisdiction and in the
inter-American jurisdiction; this amount includes professional fees[31].
XII
Method of Compliance
74. To
comply with this judgment, the State must pay the indemnities and compensations,
reimburse the costs and expenses, and adopt the other measures ordered, within
six months of the notification of this judgment, with the exception of what
is established in paragraph 47.
75. Reimbursement
of the expenses generated by the measures taken by the victim or his representatives
and reimbursement of the costs resulting from the domestic proceedings or
the international proceeding before the inter-America system for the protection
of human rights will be made to Mr. Cesti.
76. The
State may fulfill its obligations by paying in United States dollars or an
equivalent amount in Peruvian currency, using the exchange rate between the
two currencies in force in the market in New York, United States, the day
before payment, to make the respective calculation.
77. The
payments ordered in this judgment for pecuniary and non-pecuniary damage shall
be exempt of any existing or future tax or charge.
78. Should
the State fall in arrears, it shall pay interest on the amount owed, corresponding
to banking default interest in Peru.
79. In accordance its constant practice, the
Court reserves the authority to monitor full compliance with this judgment. The case shall be closed once the State has
totally complied with all its provisions.
XIII
Operative Paragraphs
80. Therefore,
The
Court,
Decides:
unanimously,
1. to
order the State of Peru to compensate Gustavo Adolfo Cesti Hurtado for the pecuniary damage he was caused by the violations
declared in the judgment on merits of September 29, 1999, and that, following
the pertinent national procedures, it is in order to establish the corresponding
compensatory amounts, so that he may receive them within a reasonable period
of time, if there is cause for them.
unanimously,
2. to
order the State of Peru pay Gustavo Adolfo Cesti Hurtado a compensation of
US$ 25,000.00 (twenty-five thousand United States dollars) or the equivalent
in Peruvian currency, for non-pecuniary damage.
unanimously,
3. to
order the State of Peru to pay Carmen Cardó Guarderas de Cesti a compensation
of US$ 10,000.00 (ten thousand United States dollars), Margarita del Carmen
Cesti Cardó de Lama a compensation of US$ 5,000.00 (five thousand United States
dollars), and Gustavo Guillermo Cesti Cardó a compensation of US$ 5,000.00
(five thousand United States dollars) or the equivalent in Peruvian currency,
for non-pecuniary damage.
unanimously,
4. to
order the State of Peru to pay Gustavo Adolfo Cesti Hurtado, as compensation
for the costs and expenses generated in the internal jurisdiction and in the
inter-American jurisdiction, the sum of US$ 20,000.00 (twenty thousand United
States dollars) or the equivalent in Peruvian currency, an amount that includes
professional fees.
unanimously,
5. to
order the State of Peru to investigate the facts of the instant case, identify
and punish those responsible and adopt any provisions of domestic law that
may be necessary to ensure compliance with this obligation.
unanimously,
6. to
order the State of Peru to make the payments indicated in operative paragraphs
2, 3 and 4 within six months of the notification of this judgment.
unanimously,
7. to
order that the payments for pecuniary and non-pecuniary damage established
in this judgment shall be exempt of any charge or tax that exists or that
may exist in the future.
unanimously,
8. to
monitor compliance with this judgment and to close this case once the State
of Peru has fully applied all its provisions.
Done at San José, Costa Rica, on May 31, 2001, in
Spanish and English, the Spanish text being authentic.
Antônio A.
Cançado Trindade
President
Hernán Salgado-Pesantes Oliver
Jackman
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