Cesti Hurtado Case, Judgment of November 27, 2001, Inter-Am Ct. H.R. (Ser. C) No. 86 (2001).
In the Cesti Hurtado case,
the Inter-American Court of Human Rights (hereinafter
“the Court” or “the Inter-American Court”), composed of the following judges*:
Antônio A. Cançado Trindade, 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
Pablo Saavedra Alessandri, Deputy Secretary;
pursuant to article 67 of the American Convention
on Human Rights (hereinafter “the Convention” or “the American Convention”)
and article 58 of the Rules of Procedure of the Court (hereinafter “the rules
of Procedure”) decides on the request for interpretation of the judgment on
reparations delivered by the Court on May 31, 2001 in the Cesti Hurtado case[1]
(hereinafter “the judgment on reparations” or “the judgment”) against the
State of Peru (hereinafter “the State”, “the Peruvian State”, or “Peru”),
filed by Gustavo Adolfo Cesti Hurtado (hereinafter “Mr. Cesti” or “Mr. Cesti
Hurtado”) on September 4, 2001.
I
COMPETENCE AND COMPOSITION OF THE COURT
1. Article
67 of the Convention establishes that
[t]he
judgment of the Court shall be final and not subject to appeal. In case of
disagreement as to the meaning or scope of the judgment, the Court shall interpret
it at the request of any of the parties, providing the request is made within
ninety days from the date of notification of the judgment.
In accordance with the abovementioned article, the
Court is competent to interpret its decisions, and to examine the request
for interpretation it will meet, if possible, with the same composition it
had when it delivered the respective judgment (article 58(3) of the Rules
of Procedure). On this occasion, the
Court is composed of the same judges who delivered the judgment on reparations,
whose interpretation has been requested by Mr. Cesti Hurtado.
II
INTRODUCTION
OF THE REQUEST FOR INTERPRETATION
2. On September 4, 2001, pursuant to article
67 of the American Convention and in accordance with article 58 of the Rules
of Procedure, Mr. Cesti Hurtado filed a request for interpretation of the
judgment on reparations.
III
PROCEEDING
WITH THE COURT
3. This case was filed before the Court by
the Inter-American Commission on Human Rights (hereinafter “the Commission”
or “the Inter-American Commission”) on January 9, 1998. Subsequently, the Court delivered judgments on preliminary objections,
merits, interpretation of the decision on the merits, and reparations, respectively
on January 26, 1999, September 29, 1999, January 29, 2000, and May 31, 2001[2].
4.
In a note of September 5, 2001, the Secretariat of the Court (hereinafter
“the Secretariat”) forwarded copies of the request for interpretation to the
Peruvian State and to the Inter-American Commission, and pursuant to article
58(2) of the Rules of Procedure, invited them to submit, no later than October
5 of that same year, whatever comments they deemed relevant.
5.
On October 4, 2001 the Commission requested an extension of the deadline
to submit its comments on the request for interpretation made by Mr. Cesti,
until the 23 of that same month and year.
Said extension was granted that same day, under instructions by the
President of the Court (hereinafter “the President”).
6.
On October 5, 2001 the Peruvian State submitted its written comments
on the request for interpretation, which were complemented in a brief on October
9.
7. On October 23, 2001 the Commission submitted
its comments on the request for interpretation in English, and on the 30th
of that same month and year it submitted the translation of that brief into
Spanish.
8. On November 27, 2001 Mr. Cesti Hurtado
filed a brief before the Court in which he requested a hearing on the interpretation
of the judgment on reparations, for the Court to hear the pleadings of his
attorneys before reaching a decision on the request.
IV
SUBJECT OF THE REQUEST
9. Mr. Cesti requested in his petition that
the Court “interpret paragraphs 41, 46, and 47 of its judgment on reparations
delivered on May 31, 2001, and point No. 1 of the operative section of that
judgment, bearing in mind the questions raised [in the request for interpretation
and] that it convene the parties to a public hearing, so as to hear his pleadings
on [the] interpretation remedy”.
10. Mr. Cesti specifically requested that the
Court clarify the following:
1. Whether, as part of the material damage caused, the Peruvian
State must indemnify the victim for direct detriment to his assets derived from the expenses he had to incur
to confront the acts which violated his rights and which have been established
by the […] Court in its judgment on the merits in the Cesti Hurtado Case.
2. Whether -taking into account what the Court said in paragraphs
32, 33, and 36 of the judgment on reparations-, as part of the material damages,
the Peruvian State must indemnify the victim for the expenses required for
his legal defense in face of the acts of the Peruvian State which violated
his rights, which in fact were detrimental to his assets, and which the […]
Court did not include under Costs and Expenses.
3. Whether, pursuant to paragraphs 46 and 47 of the judgment
on reparations, to determine the amount of material damage, “taking into account
the items usually included under material damage” […], that is, consequential damages, lost earnings,
and other economic damages derived from the violation of the human rights
of Gustavo Cesti Hurtado, and taking into account the principle of restitutio in integrum […], it can be understood
that the Peruvian State must indemnify for all material damages caused in
this case, and that only determination of their amount is pending.
4. Whether the Peruvian State, in light of the mandate of the
judgment on reparations for which an interpretation has been requested, is
under the obligation to begin on its own initiative the relevant procedures
before domestic entities for payment of the indemnification set forth in points
1, 2, 3, and 4 of the operative part of the judgment, or whether the victim
must initiate them, so as to collect the indemnification due to him.
5. Whether the term ‘relevant
national procedures’ mentioned in point No. 1 of the operative part of
the judgment, as well as the reference to ‘mechanisms
established in domestic legislation’ stated in paragraph 46, and the reference
to the “relevant national laws” contained in paragraph 47 of the judgment
on reparations, refer to:
a)
judicial procedures to determine the amount of indemnity
to be paid, therefore leaving the determination of that amount entirely and
exclusively in the hands of the courts of that State […], or
b) if it is sufficient for the victim,
as part of those ‘relevant procedures’,
to demonstrate to the State -with the same evidentiary documents previously
filed before the […] Court and which were not challenged before the Court-
the expenses he had to make and the amount of damages caused to him, or
c) whether the expression ‘relevant domestic procedures’, or ‘mechanisms established under domestic legislation’,
or ‘relevant national norms’
presuppose a direct negotiation among the parties so as to determine the amount
of indemnification, or
d) whether these expressions refer to alternative forms of conflict
resolution, such as arbitration, provided for by Peruvian legislation.
6. In any of the abovementioned cases, taking into account
the provisions of paragraphs 47 and 74 of the judgment on reparations, to
state:
a) what is the period within which the amount of indemnification
to be paid for material damages must be determined, and
b) what is the period within which payment of that part of
the indemnification must be made.
7. Whether, in case the indemnification decided by the State
were not satisfactory for the victim, he can come before this […] Court, for
it to determine, as a last resort, the definitive amount of indemnification.
V
ADMISSIBILITY
11. Article 67 of the Convention requires, as
a condition for the admissibility of the request for interpretation of judgment,
that it be submitted “within ninety days from the date of notification of
the judgment”. In the instant case,
the Court has verified that the judgment on reparations was notified to the
parties on June 6, 2001. Therefore, the request for interpretation was filed
in a timely manner (supra 2). Furthermore, the victim has legal standing
to appear before the Court, in light of the fact that article 67 of the Convention
and the rules of procedure of the Court establish the possibility that the
Court interpret its ruling in response to a request by any of the parties
and that Mr. Cesti can submit his request in an autonomous manner during the
proceedings[3].
12. As regards the comments filed by Peru and
by the Inter-American Commission, they were submitted within the time limit
(supra 6 and 7) and the Court therefore deems it appropriate to examine them.
13. The Court must now verify whether the substantive
aspects of the request for interpretation satisfy the applicable norms[4]. Article 58(1) of the Rules of Procedure establishes
that
[t]he request for interpretation,
referred to in Article 67 of the Convention, may be made in connection with
judgments on the merits or on reparations and shall be filed with the Secretariat.
It shall state with precision the issues relating to the meaning or
scope of the judgment of which the interpretation is requested.
14. The request for interpretation filed by
Mr. Cesti is based on doubts regarding the meaning
or scope of the reparations ordered
by the Court in its May 31, 2001 judgment.
15.
In light of the foregoing, the Court notes that the request for interpretation
is in accordance with the provisions of article 67 of the Convention and article
58 of the Rules of Procedure, for which reason it declares the request admissible.
Without detriment to the above, the Court considers that, even though
the scope and the content of the provisions of the judgment on reparations
are clear, it will examine the points raised by Mr. Cesti to dispel any doubt
that might exist regarding the indemnification he is entitled to for material
damages.
16. Regarding
the requests for a public hearing, filed before the Court by Mr. Cesti (supra 8 and 9), the Court deems it appropriate
to specify that the purpose of the hearing, proposed by the victim, is not
directly related to interpretation of the judgment, but rather to the phase
of compliance with the judgment on the merits, and that the Court has given
the parties the opportunity to file whatever written pleadings they believe
are important. Therefore, pursuant
to article 39 of the Rules of Procedure of the Court, it does not consider
that the request referred to here is in order.
VI
SCOPE OF THE REPARATIONS
Pleadings
by Mr. Cesti
17. In
his request for interpretation, Mr. Cesti Hurtado stated that the purpose
of the indemnification ordered by the Court in its judgment on reparations
is that “the State must fully reimburse the amount of material damages caused,
which are a direct consequence of the human rights violation”. In this context, he pointed out that the State
must pay a just indemnification covering all material damages caused, and
he stated that “to carry out an effective legal defense, […] he incurred in considerable expenses, which
were detrimental to his assets, and which resulted from the State’s actions”
and that, therefore, this should be the interpretation of the fist operative
point of the judgment.
18. Mr.
Cesti also stated that “it is his understanding that point No. 1 of the operative
part of the judgment on reparations, in accordance with paragraphs 46 and
47 of that judgment, should be interpreted as meaning that the income the
victim did not receive, whether from salaries […] or dividend […], as well
as any other legitimate income derived from the normal activities which both
he and his firm carried out, are part of the material damages which the State
must indemnify”, because the “income of the victim did not only include his
remuneration as an employee or functionary of the family firm, but also the
profits of that firm which depended almost exclusively on his professional
activity”.
19. Likewise,
he pointed out that the reference in the judgment on reparations to the amount
of indemnification being determined by mechanisms established in domestic
legislation, “cannot be interpreted as the right of the State to unilaterally
determine the amount of damage caused [but rather that] it entails a bilateral
procedure in which, based on the general principles stated in the judgment
on reparations and the spirit of that judgment, the parties determine by mutual
agreement […] the amount of the corresponding indemnification”. He also stated that determination of the amount to be paid for moral
damages and payment of same cannot be delayed more than 6 months.
20. Finally,
as regards the procedure to determine the amount of indemnification, Mr. Cesti
considered that “the State must indemnify, with no further procedures, all
material damages duly demonstrated by the victim in this case [and that] the
State must effect the payment […] without improper delays, as soon as possible”.
He added that if necessary, the Court itself might be asked to determine
the amount of indemnification to be paid for material damages.
Pleadings
by the Commission
21. The
Commission, in turn, stated that
the […] Court has established that
Peru has breached the American Convention in this case, and ordered payment
of monetary compensation. It is necessary
for the domestic courts to intervene so as to execute the judgment in accordance
with the parameters established by the […] Court. Those parameters necessarily include indemnification
categories established by the […] Court, such as compensation for consequential
damages and loss of income, lost profits, loss of future incomes, etc.
The Commission respectfully requests that if such parameters were not
sufficiently clear, the Court establish precisely the amount which must be
paid by the State for material damages. It
is not the role of the State to negotiate its responsibility as a victim at
a national level, […] instead it must simply execute the judgment of the […]
Court.
22. Furthermore,
regarding the attorney’s fees, the Commission expressed its concern and stated
that “[t]he judgment must bear some relationship to the criteria to determine
amounts payable at a national level, but it must also bear a realistic relationship
to the contract negotiated between the attorney and his client.
Unwillingness to recognize the contract between the attorney and his
client and to order payment to the attorney of what the applicant calls “symbolic
fees” will reduce the filing of cases with the inter-American system to private
attorneys willing to work pro bono,
and other professionals carrying out their task due to their own interest
and not for expected remuneration, which in [the opinion of the Commission]
is not the result sought”.
Pleadings
by the State
23. In its October 5, 2001 brief, Peru stated
that “merely reading of [paragraphs 41, 46, and 47 of the Judgment on Reparations]
allows them to be understood in the usual sense of the meaning of their wording.
Therefore, the State does not agree that there is a need to request
their interpretation”. Nevertheless, as regards the more specific
aspects on which Mr. Cesti has requested clarification (supra 10), the State agrees that a order of the Court is required,
“since according to domestic norms, a petition by a party is necessary to
initiate judicial action to determine the indemnification”.
24. The Peruvian State expressed that the ideal
entity to determine the amount of indemnification is the Judiciary, since
it is an independent power whose decision will be respected by the Government
“if it were to face an application filed there by citizen Cesti Hurtado”. The State also stated that “within the procedure
established for this purpose there is a conciliation stage, in which the parties
have an opportunity to reach an agreement on the criteria to determine the
amount of indemnification”, and that since there are important discrepancies
between the parties regarding the criteria and the amounts of compensation
claimed, said discrepancies should be heard in civil proceedings.
25. The
Peruvian State added that
[…] it considers that both the amount
and the very items claimed as material damages, cannot be unilaterally set
by only one of the parties and that therefore a judicial proceeding is the
appropriate mechanism set forth in domestic legislation to hear and decide
this issue […]
26. Regarding expenses and costs, it argued
that the Court already ordered their reimbursement and that the amount “includes
professional fees, and no further claims should be made in this regard”.
The State also considered that the process of indemnification may extend
beyond the six-month period mentioned in paragraph 74 of the judgment, since
Mr. Cesti’s opinion that the determination of material damages cannot take
longer than the six months, contradicts the judgment of the Court.
*
* *
Observations of the Court
27. It follows from the pleadings of the parties
that it is suitable for the Court to determine the scope of the State’s obligation
to repair the material damages derived from its violation of the rights of
Mr. Cesti Hurtado, under the terms of the May 31, 2001 judgment.
28. In the relevant paragraphs of the judgment
which this interpretation refers to, the Court decided
41. To determine the measures of reparation which are appropriate
in this case, the Court will have as its basic reference the facts admitted
as proven in its September 29, 1999 judgment. Furthermore, as has been pointed out, the victim
and the State have contributed additional probatory elements which are significant
to determine the reparation measures. The Court has examined other evidentiary elements and the pleadings
of the parties and rules that the following facts have been proven in connection
with Mr. Cesti:
[…]
e) that [Mr. Cesti] incurred a number of expenses for professional
fees of his representatives in the preparation, filing and processing of his
case before the Peruvian authorities and the inter-American system […];
f) that his attorneys and other persons surrounding Mr. Cesti
also incurred expenses, specifically in connection with trips to Costa Rica
and the United States […];
[…]
46. The Court takes note that the victim and the Commission have
expressed that the violations in this case justify reparations to Mr. Cesti
for material damages. However, given
the specificities of this case and the nature of the reparations requested,
this Court considers that they should be established through mechanisms set
forth in domestic legislation. Domestic
courts or specialized national institutions are knowledgeable on the type
of activity carried out by the victim. Given the specificity of the reparations requested as well as the
characteristics of commercial law and of the corporations and commercial operations
involved, the Court believes that said determination should be made by the
abovementioned national institutions rather than by an international human
rights court.
47. Given the above, it is suitable to order the State to indemnify
the victim for material damages caused by the violations declared in the judgment
on the merits, taking into account, under the circumstances of the instant
case, the usual components of material damages; and that, in accordance with
relevant national norms, it set the respective amounts of indemnification,
for the victim to receive them within a reasonable time.
and in operative point one it decided
1. to order that the Peruvian State indemnify
Gustavo Adolfo Cesti Hurtado for material damages caused to him by the violations
declared in the September 29, 1999 judgment on the merits, and that, following
relevant domestic procedures, it set the respective amounts of indemnification,
for him to receive them within a reasonable time, if they were in order.
29. Furthermore,
in operative points 4 and 6 of the judgment on reparations, the Court decided
4. to order the Peruvian State to pay Gustavo Adolfo Cesti
Hurtado, as compensation for the costs and expenses incurred under domestic
jurisdiction and under inter-American jurisdiction, the amount of US$ 20,000
(twenty thousand dollars of the United States of America) or its equivalent
in Peruvian currency, an amount which includes professional fees.
[…]
6. to order the State of Peru to make the payments mentioned
in operative points 2, 3, and 4 within six months from the notice of this
judgment.
30. Article 63(1) of the American Convention
prescribes:
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.
31. The
Court has previously stated that
[the] request for interpretation
of a judgment should not be used as a means to appeal but rather it should
have as its only purpose to clarify the meaning of a ruling when one of the
parties maintains that the text in its operative parts or in its considerations
lacks clarity or precision, provided that such considerations have a bearing
on that operative parts and, therefore, modification or annulment of the respective
judgment cannot be petitioned through a request for interpretation[5].
32. As
can be seen, the judgment on reparations includes precise specifications regarding
various aspects of the reparations to be paid by the Peruvian State:
a) As
regards material damages (supra
10(1), 10(3) and 10(6)), since it delivered its first judgment on reparations
the Court has recognized that violations of protected rights create for the
victim a right to reparation of the consequences caused by the breach, including
payment of indemnification as compensation for material and moral damages.
Thus, to restore insofar as possible the situation that existed before
the violations, the judgment on reparations has decided in the instant case
that the State must provide the necessary conditions for the person concerned
to take steps conducive to obtaining the respective indemnifications for violations
declared in the decision on the merits within
a reasonable time (supra 28,
Operative point 1);
b) Concerning
the amount of compensation for legal costs and expenses (supra 10(2)), the Court already stated clearly in its judgment that
the specific payments ordered include those for professional fees (supra 29, Operative point 4);
c) In connection with economic earnings lost
by Mr. Cesti as a consequence of the violation of his rights as a shareholder
and functionary of the firm Top Security
Asesores y Corredores de Seguros, S.A. (supra 10(3)), including the dividend for
participation as a shareholder, the Court also decided that the parties should
resort to national legislation applicable in this matter[6];
d) The
Court itself stated in paragraphs 46 and 47 of its judgment on the merits
(supra 28) that to fulfill reparation for
material damages to Mr. Cesti (supra 10(4)), the respective petitions
must be made by the interested party before the appropriate national authorities.
It is they, in fact, who must decide whatever is pertinent, under the
relevant Peruvian norms[7].
e) Steps conducive to compensation for material
damages in favor of Mr. Cesti Hurtado must be taken before the Peruvian State
for it, in good faith, to facilitate access of the victim to the relevant
domestic legal procedures. In this
regard, the Peruvian State has the specific obligation to receive, process
and decide those claims as required by law and within a reasonable time.
33. Pursuant
to the above, all reparations applicable to the instant case have been explicitly
dealt with and specified.
VII
34. For the aforementioned reasons,
THE INTER-AMERICAN COURT OF HUMAN RIGHTS
pursuant
to article 67 of the Convention and article 58 of the Rules of Procedure
DECIDES:
unanimously,
1. That the request for interpretation of
the May 31, 2001 judgment in the Cesti Hurtado case, filed by Gustavo Adolfo
Cesti Hurtado, is admissible.
2.
That the request for a public hearing on the request for interpretation
of the judgment on reparations made by Mr. Cesti is not in order.
3. That the State of Peru must set the indemnification
due to Gustavo Adolfo Cesti Hurtado for material damages caused, for which
purpose it must facilitate, in good faith, access by Mr. Cesti to the appropriate
domestic legal procedures for the victim to obtain the aforementioned indemnification,
if it were in order, within a reasonable time.
Done,
in Spanish and English, the Spanish text being authentic, at the seat of the
Court in San Jose, Costa Rica, on November 27, 2001.
Antônio A.
Cançado Trindade
President
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