Barrios Altos Case, Judgment of November 30, 2001, Inter-Am Ct. H.R. (Ser. C) No. 87 (2001).
In
the Barrios Altos case,
the
Inter-American Court of Human Rights (hereinafter “the Inter-American Court”
or “the Court”), composed of the following judges
*:
Antônio A. Cançado Trindade, President;
Máximo Pacheco Gómez, Vice-President;
Hernán Salgado Pesantes, Judge;
Alirio Abreu Burelli, Judge;
Sergio García Ramírez, Judge; and
Carlos Vicente de Roux Rengifo, Judge;
also
present:
Manuel E. Ventura Robles, Secretary; and
Pablo Saavedra Alessandri, Deputy Secretary,
pursuant
to articles 29, 55, 56, and 57 of the Rules of Procedure of the Court** (hereinafter “the Rules of Procedure”),
in connection with article 63(1) of the American Convention on Human Rights
(hereinafter “the Convention” or “the American Convention”) and taking into
consideration the provisions of operative paragraphs six and seven of the
judgment of March 14, 2001, delivers the following Judgment.
I
Competence
1. The Court is competent, pursuant to articles
62 and 63(1) of the Convention, to decide on reparations in the instant case.
The State of Peru (hereinafter “the State” or “Peru”) has been a State
party to the American Convention since July 28, 1978, and it recognized the
binding jurisdiction of the Court on January 21, 1981.
II
Background
2. The instant case was filed with the Court by the Inter-American Commission
on Human Rights (hereinafter “the Commission” or “the Inter-American Commission”)
in its application of June 8, 2000.
3. On March 14, 2001 the Court delivered
its judgment on the merits of the case, in which it unanimously:
1. Admit[ted] the recognition of international responsibility
made by the State.
2. Declar[ed], in accordance with the terms of the recognition
of international responsibility made by the State, that the State breached:
a) the right to life protected by article
4 of the American Convention on Human Rights, to the prejudice 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;
b) the right to humane treatment protect
by article 5 of the American Convention on Human Rights, to the prejudice
of Natividad Condorcahuana Chicaña, Felipe León León, Tomás Livias Ortega,
and Alfonso Rodas Alvítez; and
c) the right to fair trial and to judicial protection, enshrined
in articles 8 and 25 of the American Convention on Human Rights, to the prejudice
of 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 to the prejudice of Natividad
Condorcahuana Chicaña, Felipe León León, Tomás Livias Ortega, and Alfonso
Rodas Alvítez, as a consequence of the enactment and enforcement of amnesty
laws Nº 26479 and Nº 26492.
3. Declare[d], in accordance with the terms of the recognition
of responsibility made by the State, that the State breached articles 1(1)
and 2 of the American Convention on Human Rights as a consequence of the enactment
and enforcement of amnesty laws Nº 26479 and Nº 26492 and of the violation
of the articles of the Convention mentioned in operative paragraph 2 of this
Judgment.
4. Declare[d] that amnesty
laws Nº 26479 and Nº 26492 are incompatible with the American Convention on
Human Rights, and therefore are without legal effects.
5. Declare[d] that the State of Peru
must investigate the facts to identify the persons responsible for the human
rights violations which have been mentioned in the instant Judgment, and to
publicly divulge the results of the investigation and punish those responsible.
6. Decide[d] that reparations
[will] be determined by mutual agreement among the respondent State, the Inter-American
Commission and the victims, their next of kin or their duly accredited legal
representatives, within three months from the date when notice of the instant
Judgment is served.
7. Reserve[d] the power to review and
approve the agreement mentioned in the previous operative paragraph and, in
case no agreement were reached, to continue the reparations proceedings.
4. On March 29, May 3, and June 15, 2001
the State submitted reports pertaining to fulfillment of the judgment on the
merits in the instant case.
5. On June 18, 2001 the Embassy of Peru in
Costa Rica sent to the Secretariat of the Court (hereinafter “the Secretariat”)
a copy of Supreme Decree No. 065-2001-PCM of June 2, 2001, which established
the Truth Committee, set up for the purpose of clarifying the facts and responsibilities
for human rights violations between May, 1980 and November, 2000.
6.
On June 20, 2001, pursuant to article 67 of the American Convention
and article 58 of the Rules of Procedure, the Inter-American Commission filed
a request for interpretation of the judgment on the merits.
7.
On September 3, 2001 the Court issued its decision on interpretation
of the judgment on the merits delivered on March 14, 2001, in which it unanimously
ruled:
1. That the request for interpretation
of the judgment of March 14, 2001 in the Barrios Altos Case, filed by the
Inter-American Commission on Human Rights, is admissible.
2. That, given the nature of the violation
resulting from amnesty laws No. 26479 and No. 26492, the judgment on the merits
in the Barrios Altos case has general effects.
III
Proceeding
during the reparations stage
8. On May 14, 2001 the Court delivered its
judgment on the merits, in which, among others (supra par. 3), it
6. Rule[d] that reparations
w[ould] be determined by mutual agreement among the respondent State, the
Inter-American Commission and the victims, their next of kin or their duly
accredited legal representatives, within three months from the date when notice
of the instant Judgment is served.
7. Reserve[d] the power to review and
approve the agreement mentioned in the previous operative paragraph and, in
case no agreement were reached, to continue the reparations proceedings.
9.
On June 15 and 19, 2001 the State and Sofía
Macher, Executive Secretary of the Coordinadora
Nacional de Derechos Humanos (CNDDHH), acting as representative of the
victims and their next of kin, respectively, requested of the Court a 30 day
extension of the term set in operative paragraph six of the March 14, 2001
judgment, so as to reach an agreement on reparations in the instant case. The Secretariat, following instructions by
the President of the Court (hereinafter “the President”) informed them that
because that term had been set by means of a judgment, the request could only
be heard and decided by the same Court which delivered that judgment.
10.
On July 26, 2001 Peru sent a copy of the “Writ of commitment of the
High-level Commission for the Barrios Altos case” and of the “Agreement on
comprehensive reparation to the victims and next of kin of the victims in
the Barrios Altos case”, and reported that “given the imminent change of Government,
the Parties have agreed to postpone the formal signing of the agreement until
the new authorities have taken office”[1].
11.
On September 17, 2001 the State sent the formally signed “Agreement
on comprehensive reparation to the victims and next of kin of the victims
in the Barrios Altos case” (hereinafter “the agreement” or “the agreement
on reparations”), attaching 4 appendices.
Said agreement had been signed on August 22, 2001.
12. On October 11, 2001 the
Secretariat, following instructions by the President, requested that the State,
the Commission and the representatives of the victims and their next of kin
submit appendices A and B of the agreement, referred to in articles six and
seven of the agreement; it also requested clarification on the reason why
a check was not issued to Norma Haydé Quispe Valle, mentioned as beneficiary
of victim Lucio Quispe Huanaco, but rather to another daughter of the victim,
Sonia Martha Quispe Valle, and that they state the name of the victim with
respect to whom the following persons -to whom checks were made out- are beneficiaries
of reparations: Clotilde Portella Blas, Celestina Alejandro Cristóbal, Gregoria
Medina Caurino, Elías Cirilo Rosales Medina (or Caurino), and Gladys Sonia
Rubina Arquiñigo. October 19, 2001
was set as the deadline to submit that information.
13. On October 17, 2001 the
Fundación Ecuménica para el Desarrollo y la
Paz (FEDEPAZ), on behalf of the victims and their next of kin, sent a
brief to which it attached appendix B and a copy of the official letter SA-DVM.N˚
1538-2001, which is part of appendix A of the agreement on reparations. In that brief it also stated the names of the
next of kin of victim Lucio Quispe Huanaco who have been proposed as beneficiaries
of the reparations, and clarified that “[t]he check with an advance on the
economic reparation for Norma Haydee was issued to her sister, Sonia Martha,
upon a request by the former, in view of the fact that Norma Quispe has traveled
abroad”. FEDEPAZ likewise reported
that it had omitted stating as next of kin of victim Alejandro Rosales Alejandro, his wife, Gregoria
Medina Caurino, and his son, Elías Cirilo Rosales Caurino (or Medina).
They also pointed out that “Clotilde Portella Blas as legal guardian
for Rocío Rosales Capillo, received and cashed the check on her behalf”.
Furthermore, they stated that they had omitted listing as beneficiaries
of victim Nelly María Rubina Arquiñigo “her sister Gladis Sonia Rubina Arquiñigo
and her aunt Virgilia Arquiñigo Huerta”. Finally, FEDEPAZ reported that “[t]he identity of the persons proposed
as beneficiaries of each of the victims represented by [that organization]
was submitted at the appropriate time to the High-level Commission established
by the Government through the Coordinadora Nacional de Derechos Humanos”.
14. On October 19, 2001 the
Inter-American Commission did not submit the information requested by the
Secretariat (supra par. 13), but
rather stated only that said information would be provided directly by the
applicant.
15. That same day the Coordinadora Nacional de Derechos Humanos (CNDDHH),
on behalf of the victims and their relatives, issued a communiqué to which
it attached four appendices, including appendix B and a copy of official letter
SA-DVM.N˚ 1538-2001 which is part of appendix A of the “Agreement on
comprehensive reparation to the victims and next of kin of the victims in
the Barrios Altos case”. In that brief
they stated that “the next of kin of victim Lucio Quispe Huanaco who have
been proposed include, among others, his daughters Norma Haydee Quispe Valle
and Sonia Martha Quispe Valle”, and they explained that Norma Haydee Quispe
Valle “authorized and requested that the check with an advance on the economic
reparation due to her be issued to her sister Sonia Martha Quispe”.
They also reported that they had omitted listing as next of kin of
victim Alejandro Rosales Alejandro, his mother, Celestina Alejandro Cristóbal,
his wife, Gregoria Medina Caurino, and his son, Elías Cirilo Rosales Caurino
(or Medina), that “Clotilde Portella Blas as legal guardian for Rocío Rosales
Capillo, received and cashed the check on her behalf”, and that they had omitted
listing as beneficiaries of the reparations pertaining to victim Nelly María
Rubina Arquiñigo “her sister Gladis Sonia Rubina Arquiñigo and her aunt Virgilia
Arquiñigo Huerta”.
16. On October 20, 2001 the
State sent a brief to which it attached appendices A and B of the agreement.
The State also listed the names of the next of kin of victim Lucio
Quispe Huanaco who had been proposed as beneficiaries of the reparations;
explained that “upon a request by Miss Norma Haydee Quispe [V]alle the check
with an advance on the reparation was issued, in accordance with her request,
to her sister Sonia Martha Quispe Valle”;
the State pointed out that Gregoria Medina Caurino and Elías Cirilo
Rosales Caurino (or Medina) are beneficiaries of reparations pertaining to
victim Alejandro Rosales Alejandro, and that “Clotilde Portella Blas as legal
tutor for Rocío Rosales Capillo, received and cashed the check on her behalf”;
the State explained that they had omitted listing as beneficiaries of the
reparations pertaining to victim Nelly María Rubina Arquiñigo “her sister
Gladis Sonia Rubina Arquiñigo and her aunt Virgilia Arquiñigo Huerta”.
17. On November 27, 2001 the
Secretariat, following instructions by the Court, informed the Commission
that it followed from the various briefs submitted to the Court that the Commission
did not appear at the subscription and signing of the agreement, nor did it
send it to the Court. Therefore, in
view of the provisions of article nine of the agreement, the Court requested
that the Commission inform the Court, within 48 hours, whether it was compliant
with what had been agreed by the State, the victims, their next of kin and
their representatives, and pointed out that, if it did not receive an answer
within the term stated, the Court would understand that the Commission was
in compliance with the agreement on reparations.
18. On November 28, 2001 the
Commission filed a brief in which it stated to the Court its compliance with
the agreement and requested its “confirmation […] in the judgment on reparations”.
IV
Duty to make
reparations
agreement
on reparations
19. Article 63(1) of the American Convention is applicable
to the matter of reparations, where it reads:
1. 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
(not underlined in the original text).
20. Article 56 of the Rules of Procedure
establishes that:
1. When no specific ruling
on reparations has been made in the judgment on the merits, the Court shall
set the time and determine the procedure for the deferred decision thereon.
2. If the Court is informed that the parties to the case have
reached an agreement in regard to the execution of the judgment on the merits,
it shall verify the fairness of the agreement and rule accordingly.
21. In operative paragraph six of the March
14, 2001 judgment on the merits of the case (supra pars. 3 and 8), the Court ruled that reparations would be determined
by mutual agreement among the respondent State, the Inter-American Commission
and the victims, their next of kin or their duly accredited legal representatives,
within three months from the date when notice of the judgment was served.
In this context, on September 17, 2001 Peru sent the agreement formally
signed in Lima, Peru, on August 22, 2001.
22.
In the judgment on the merits (supra
par. 3, 8, and 21), the Court granted a term for the parts to agree on reparations.
The agreement on reparations occurred after that term.
However, taking into account that there is no controversy on the reparations,
the Court decides to examine the aforementioned agreement.
23.
In light of the above, the Court is to assess whether the agreement
on reparations is fully compatible with the relevant provisions of the American
Convention, and verify whether it guarantees payment of just compensation
to the victims and, where appropriate, to their next of kin, and if it repairs
the consequences of the situation resulting from the violation of their human
rights.
24. This
Court has repeatedly stated in its case law that it is a principle of international
law that any violation of an international obligation which has caused damage
carries with it the duty to make adequate reparation for it[2].
25. Reparation
for damage caused by a breach of an international obligation requires, whenever
possible, full restitution (restitutio
in integrum), which consists of reestablishing the previous situation. If that were not possible, the international
court must order that steps be taken to guarantee the rights infringed, redress
the consequences of the infringements, and determine payment of indemnification
as compensation for damage caused[3].
V
beneficiaries
of the reparations
26.
As regards the beneficiaries of the reparations, article three of the
agreement states that they will be the surviving victims, that is: Natividad
Condorcahuana Chicaña, Felipe León León, Tomás Livias Ortega and Alfonso Rodas
Alvítez (or Albitres, Albites, or Alvitrez), and that in the case of deceased
victims the beneficiaries of the reparations will be their legal heirs, “in
accordance with the terms set forth in the respective Declarations of Heirship
granted in conformity with relevant legal procedures”.
27.
The agreement also states that it was not possible to establish who
are the beneficiaries of reparations for the following victims: Tito Ricardo
Ramírez Alberto, Odar Mender (or Méndez) Sifuentes Nuñez, and Benedicta Yanque
Churo. In light of this, article ten of the aforementioned agreement provided
that “[t]he parties will use their resources to locate the legal heirs of
the deceased” aforementioned victims, and that “[t]he agreement will remain
open for signature by them once they are found”.
28. Furthermore, the agreement
states that it will also consider as beneficiaries “[t]hose persons who, in
addition to those listed [...], are declared as beneficiaries by the judgment
of approval of this agreement delivered by the Inter-American Court of Human
Rights” (infra pars. 29 and 30).
*
* *
29. The Court confirms the agreement and considers
as beneficiaries of the reparations the surviving victims and the heirs of
the deceased victims. Based on the various information provided by the parties,
the Court concludes that the following persons must be considered beneficiaries
of the reparations, without prejudice to any other person who may prove his
or her right as heir -in the case of the deceased victims-:
|
Victim |
Beneficiaries of
the reparations |
|
Victims of the violation of article 4 (Right to Life) |
Heirs of deceased victims |
|
1. Placentina Marcela Chumbipuma Aguirre |
a) Luis Angel Tolentino Chumbipuma (son) b) Alfredo Roberto Tolentino Chumbipuma (son) c) Rocío Victoria Obando Chumbipuma (daughter) |
|
2. Luis Alberto Díaz
Astovilca |
a) Caterin Díaz Ayarquispe (daughter) b) Virginia Ayarquispe Larico (common-law spouse) c) María Astolvilca Tito de Díaz (mother) d) Albino Díaz Flores (father) |
|
3. Octavio Benigno Huamanyauri Nolazco |
a) Félix Huamanyauri Nolazco (brother) |
|
4. Luis Antonio León Borja |
a)Luis Alvaro León Flores (son) b) Elizabeth Raquel Flores Huamán (common-law spouse) c) Estela Borja Rojas (mother) d) Fausto León Ramírez (father) |
|
5. Filomeno León
León |
a) Severina Léon Luca (mother)
* Bernabé León León was mentioned
as proxy for Severina Léon Luca; however, in addition to the check made
out to her, the State gave a check made out to Bernabé León León. * The State also made out a
check to Melania León León without stating in what capacity. |
|
6. Máximo León
León |
a) Maribel León Lunazco (daughter) b) Sully León Lunazco (son) c) Martín León Lunazco (son) d) Eugenia Lunazco Andrade (wife) |
|
7. Lucio Quispe Huanaco |
a) Norma Haydé Quispe Valle (daughter) b) Sonia Martha Quispe Valle (daughter) c) Walter Raúl Quispe Condori (son) d) Juan Fidel Quispe Condori (son) e) Amalia Condori Lara (wife) f) Crisosta Valle Chacmana (common-law spouse) |
|
8. Tito Ricardo Ramírez Alberto |
* The beneficiaries of the reparations have not been found.
See paragraphs 27, 31 and 32 of this Judgment. |
|
9. Teobaldo Ríos Lira |
a) Isabel Estelita Ríos Pérez (niece) |
|
10. Manuel Isaías Ríos Pérez |
a)Cristina Ríos Rojas (daughter) b)Ingrid Elizabeth Ríos Rojas (daughter) c) Rosa Rojas Borda (wife) |
|
11. Javier Manuel Ríos Rojas |
a) Rosa Rojas Borda (mother) |
|
12. Alejandro Rosales Alejandro |
a) Giovanna Rosales Capillo (daughter) b) Rocío Rosales Capillo (daughter) c) Elías Cirilo Rosales Medina (or Caurino) (son) d) Gregoria Medina Caurino (wife) e) Celestina Alejandro Cristóbal (mother) |
|
13. Nelly María Rubina
Arquiñigo |
a) Leonarda Arquiñigo Huerta (mother) b) Gladys Sonia Rubina Arquiñigo (sister) c) Virgilia Arquiñigo Huerta
(aunt) |
|
14. Odar Mender (or Méndez) Sifuentes Nuñez |
* The beneficiaries of the reparations have not been found.
See paragraphs 27, 31 and 32 of this Judgment. |
|
15. Benedicta Yanque Churo |
* The beneficiaries of the reparations
have not been found. See paragraphs
27, 31 and 32 of this Judgment. |
|
Victims
of the violation of article 5 (Right to Humane Treatment) |
Surviving victims |
|
16. Natividad Condorcahuana Chicaña |
Natividad Condorcahuana Chicaña |
|
17. Felipe León León |
Felipe León León |
|
18. Tomás Livias Ortega |
Tomás Livias Ortega |
|
19. Alfonso Rodas Alvítez (or Albitres, Albites,
or Alvitrez) |
Alfonso Rodas Alvítez (or Albitres, Albites, or Alvitrez) |
30. As shown in the previous table, the Court
deems that the next of kin of victim Alejandro Rosales Alejandro, that is,
his son, Elías Cirilo Rosales Medina (or Caurino), his wife, Gregoria Medina
Caurino, and his mother, Celestina Alejandro Cristóbal, and the next of kin
of victim Nelly María Rubina Arquiñigo, that is, her sister, Gladys Sonia
Rubina Arquiñigo, and her aunt, Virgilia Arquiñigo Huerta (supra pars. 13, 15 and 16), must be considered beneficiaries of the
reparations pertaining to said victims and receive reparation under the conditions
stated in the agreement.
31. Furthermore, in the case of the unfound
beneficiaries of the reparations pertaining to three of the deceased victims
(supra par. 27), the Court believes it necessary
for the State, in using its resources to locate the heirs of said victims,
to among other steps publish an announcement through a radio broadcaster,
a television broadcaster, and a newspaper, all of them with national coverage,
explaining that the next of kin of Tito Ricardo Ramírez Alberto, Odar Mender
(or Méndez) Sifuentes Nuñez, and Benedicta Yanque Churo, are being sought
to grant them reparation in connection with the facts of the instant case.
Said publication must be made during at least three non-consecutive
days, and within 30 days after notification of this Judgment.
32. Recordings or, where appropriate, copies
of these announcements, as well as a precise indication of the media and dates
when and where they were published, must be submitted to the Court for them
to be considered in the course of overseeing fulfillment of this Judgment.
VI
PECUNIARY
Reparations
33. In the agreement on reparations, under the heading “Economic indemnification”,
the State undertakes to pay US$ 175.000,00 (one hundred and seventy-five thousand
dollars of the United States of America) to each of the victims, with the
exception of Máximo León León, who will be paid an indemnification of US$
250.000,00 (two hundred and fifty thousand dollars of the United States of
America). It also states that said
“amounts are the only direct or indirect payment that the State will undertake
in connection with the beneficiaries” of the reparations and that signing
of the agreement “involves an express waiver by the victims, as well as by
their representatives, of exercising any judicial or extra-judicial action
against the State to charge any additional amount”.
34.
To date, the State has given a check to some of the beneficiaries of
the reparations which, in the opinion of the Court, are a symbolic advance
on the total monetary reparation agreed upon.
The checks given out are for the following beneficiaries and amounts:
Natividad Condorcahuana Chicaña (forS/.7,194.32 -seven
thousand one hundred ninety-four
new soles and thirty-two cents-); Felipe León León (forS/.7,194.32 -seven thousand one
hundred ninety-four new soles and thirty-two cents- and another check for
S/.1,200.22 - one thousand two hundred new soles and twenty-two cents-); Tomás
Livias Ortega (for S/.7,194.32 -seven thousand one hundred ninety-four
new soles and thirty-two cents-); Alfonso Rodas Alvítez (or Albitres, Albites,
or Alvitrez) (for S/.7,194.32 -seven thousand one
hundred ninety-four new soles and thirty-two cents-); for Placentina Marcela
Chumbipuma Aguirre in favor of her two sons Luis Angel Tolentino Chumbipuma
(for S/.2,396.94 -two thousand three hundred ninety-six new soles and ninety-four
cents-), Alfredo Roberto Tolentino Chumbipuma (for S/.2,396.94 -two thousand
three hundred ninety-six new soles and ninety-four cents-), and Rocío Victoria
Obando Chumbipuma (for S/.2,396.94 -two thousand three hundred ninety-six
new soles and ninety-four cents-); for Luis Alberto Díaz Astovilca in favor
of his father Albino Díaz Flores (for S/.1,800.32 - one thousand eight hundred
new soles and thirty-two cents-), his mother María Astolvilca Tito de Díaz
(for S/.1,800.32 - one thousand eight hundred new soles and thirty-two cents-),
and his common-law spouse Virginia Ayarquispe Larico (for S/.3,597.16 -three
thousand five hundred and ninety-seven new soles and sixteen cents-); for
Octavio Benigno Huamanyauri Nolazco in favor of his brother Félix Huamanyauri
Nolazco (for S/.7,194.32 -seven thousand
one hundred ninety- four new soles and thirty-two cents-); for Luis
Antonio León Borja in favor of his common-law spouse Elizabeth Raquel Flores
Huamán (for S/.4,797.38 -four thousand
seven hundred ninety-seven new soles and thirty-eight cents-), his father
Fausto León Ramírez (for S/.1,200.22 - one thousand two hundred new soles
and twenty-two cents-), and his mother Estela Borja Rojas (for S/.1,200.22
- one thousand two hundred new soles and twenty-two cents-); for Filomeno
León León in favor of his mother Severina León Luca (for S/.3,597.16 - three
thousand five hundred ninety- seven new soles and sixteen cents-),
of Melania León León, without stating in what capacity (for S/.1,200.22 -
one thousand two hundred new soles and twenty-two cents-), and of Bernabé
León León, proxy for Severina León Luca, (for S/.1,200.22 - one thousand two
hundred new soles and twenty-two cents-); for Máximo León León in favor of
his wife Eugenia Lunazco Andrade (for S/.7,194.32 -seven thousand one hundred and ninety-four new soles and thirty-two
cents-); for Lucio Quispe Huanaco in favor of his wife Amalia Condori Lara
(for S/.1,200.22 - one thousand two hundred new soles and twenty-two cents-),
his sons Walter Raúl Quispe Condori (for S/.1,200.22 - one thousand two hundred
new soles and twenty-two cents-), Juan Fidel Quispe Condori (for S/.1,200.22
- one thousand two hundred new soles and twenty-two cents-), Norma Haydé Quispe
Valle, made out and given with her authorization to Sonia Martha Quispe Valle
(for S/.1,200.22 - one thousand two hundred new soles and twenty-two cents-),
and Sonia Martha Quispe Valle (for S/.1,200.22 - one thousand two hundred
new soles and twenty-two cents-), and his common-law spouse Crisosta Valle
Chacmana (for S/.1,200.22 - one thousand two hundred new soles and twenty-two
cents-); for Teobaldo Ríos Lira in favor of his niece Isabel Estelita Ríos
Pérez (for S/.7,194.32 -seven thousand one hundred and ninety-four new soles and thirty-two cents-);
for Manuel Isaías Ríos Pérez in favor of his wife Rosa Rojas Borda (for S/.7,194.32
-seven thousand one hundred and ninety-four
new soles and thirty-two cents-); for Javier Manuel Ríos Rojas in favor of
his mother Rosa Rojas Borda (for S/.7,194.32 -seven thousand one
hundred and ninety-four new soles and thirty-two cents-); for Alejandro Rosales
Alejandro in favor of his children Giovanna Rosales Capillo (for S/.1,437.47
- one thousand four hundred and thirty-seven new soles and forty-seven cents-),
Rocío Rosales Capillo, made out and given to her legal guardian Clotilde Portella
Blas (for S/.1,437.47 - one thousand four hundred and thirty-seven new soles
and forty-seven cents-) and Elías Cirilo Rosales Medina (or Caurino) (for
S/.1,437.47 - one thousand four hundred and thirty-seven new soles and forty-seven
cents), his mother Celestina Alejandro Cristóbal (for S/.1,437.47 - one thousand
four hundred thirty-seven new soles and forty-seven cents-), his wife Gregoria
Medina Caurino (for S/.1,437.47 - one thousand four hundred and thirty-seven
new soles and forty-seven cents-); and for Nelly María Rubina Arquiñigo in
favor of her mother Leonarda Arquiñigo Huerta (for S/.2,941.23 - two thousand
nine hundred forty-one new soles and twenty-three cents-), her sister Gladys
Sonia Rubina Arquiñigo (for S/.2,941.23 -two thousand nine hundred and forty-one
new soles and twenty-three cents-), and her aunt Virgilia Arquiñigo Huerta
(for S/.1,311.86 - one thousand three hundred eleven new soles and eighty-six
cents).
35.
As regards the manner of payment, article five of the agreement establishes
that Peru will begin to take the appropriate steps to include the respective
amount for monetary indemnification in the General Budget of the Republic
for fiscal year 2002, and will make the payment in the course of the first
quarter of that fiscal year. It further
states that the payment will be made directly to the surviving victims and
directly to each of the beneficiaries of the reparations, “in the proportions
set forth in the respective Declaration of Heirship” and that, in the case
of reparations to minors, the State will deposit the indemnification in a
“trust fund under the most favorable conditions according to Peruvian banking
practices”.
36.
Furthermore, the agreement states that the State will be in arrears
if at the end of that term it has not paid the indemnification, “having to
pay the compensatory and moratory interest rate set forth and established
by the Central Reserve Bank”.
37.
According to the provisions of article five of the agreement, the monetary
indemnification will be exempt from all taxes whether currently existing or
decreed in the future.
*
* *
38. The Court confirms the monetary
reparation included in the agreement on reparations, as a form of compensation
for the damage caused, and it believes that such reparation is a positive
step by Peru to fulfill in good faith its international convention obligations.
Therefore, the Court deems that the State must adopt all necessary
measures to make all payments for monetary reparations during the first quarter
of fiscal year 2002, as agreed among the parties.
39. The Court also confirms the terms mentioned
in connection with the manner of fulfillment of the reparations proposed in
the agreement on reparations, as it deems them to be in accordance with its
case law[4].
40. Nevertheless, the Court deems it appropriate
to add that, if for any reason it were not possible for the beneficiaries
of the indemnifications to appear so as to receive them, the State must deposit
those monies in their name or that of their heirs to a certificate of deposit
or account at a solvent Peruvian banking institution, in United States dollars
or their equivalent in Peruvian currency, within six months time, and under
the most favorable financial conditions allowed by banking practices and the
law. If after five years the indemnification
has not been claimed, the capital and interest earned will be distributed
pro rata among the beneficiaries of the reparations.
VII
Other
Forms of reparation
41. In addition to monetary reparation, the
State undertook a commitment to grant the victims and, where appropriate,
their next of kin, other reparations.
42.
According to the provisions of article six -under the heading “Health
benefits”- and in appendix A of the agreement, Peru undertook to cover, through
the Ministry of Health, the health service expenses of the beneficiaries of
the reparations, granting them free care at the respective health center according
to their place of residence and at the respective specialized institute or
hospital of referral, in the areas of out-patient consultation, diagnostic
support procedures, medicine, specialized care, diagnostic procedures, hospitalization,
surgery, childbirth, traumatological rehabilitation, and mental health. This article entered into force at the time
the agreement was signed.
43.
Furthermore, according to the provisions of article seven -under the
heading “Educational benefits”- and in appendix B of the agreement, starting
at the time the agreement was signed, the Ministry of Education of Peru must
grant the beneficiaries of the reparations the following educational benefits:
a) Granting
of scholarships by the Instituto Nacional de Becas y Crédito Educativo to
study in Academies, Institutes and Centros de Ocupación Ocupacional (sic).
“The general requirements needed to request a scholarship can be adapted
to the reality [of the] group of beneficiaries” of the reparations;
b) “In
cases in which support from SENATI is required when there are persons interested
in continuing their studies, the Ministry of Education can provide support
through the National Directorate of Secondary and Higher Technological Education,
as it is a member of the Directorate”;
c) Granting
of educational materials: “the Ministry
of Education, through the National Directorate of Primary and Secondary Education
[will] grant workbooks for Logic/Mathematics and Comprehensive Communication
subjects from 1st to 6th grade of Primary Education”;
d) To
take steps to obtain donations of official textbooks for students in primary
and secondary education. In “subsequent
years” such donations can be sought “through the Publishers who offer official
textbooks to the Ministry of Education”; and
e) Support
in uniforms, classwork material and others (“donations or other support requested
can be channeled through the commercial firms or institutions linked to this
sector”)
44. On the other hand, articles two and eight
of the agreement set forth other reparation measures that the State undertakes
to carry out:
a) to abide by the decision of the Court
in the ruling on interpretation of the judgment on the merits “regarding the
meaning and scope of the declaration of ineffectiveness of Laws Nº 26479 and
[Nº]26492”[5];
b) to
initiate the procedure to include “the most suitable juridical classification”
to define the crime of extra-judicial executions, within thirty days after
the agreement was signed;
c) to
initiate “the procedure to sign and promote the ratification of the International
Convention on the Non-applicability of Statutory Limitations to War Crimes
and Crimes against Humanity, [...] within 30 days from the date the agreement
is signed”;
d) to
publish the judgment of the Court in the official gazette Diario Oficial El
Peruano, and to disseminate its content through other media “deemed appropriate
for that purpose, within 30 days from the date the agreement is signed”;
e) to
include in the Supreme Resolution, by means of which the agreement is published,
“a public expression of apology to the victims for the grave damages caused”
and ratification of willingness to not allow this type of events to occur
again; and
f) to
erect a memorial monument. The place
will be agreed among the parties in coordination with the Metropolitan Municipality
of Lima, and the “monument will be in place within 60 days of the signing
of the agreement.”
*
* *
45. The Court confirms the agreement on these
other forms of reparation agreed among the parties as modes of compensation
for the damages caused. Said reparations
are a positive contribution of Peru to fulfillment of the obligation to make
reparation, pursuant to article 63(1) of the Convention. Therefore, the State must fulfill, in favor
of the beneficiaries of the reparations, all the benefits which it undertook
to provide, within the terms set forth in the agreement.
VIII
Homologation
and
Monitoring
of compliance
46. In accordance with the aforementioned considerations,
the Court confirms the “Agreement on comprehensive reparation to the victims
and the next of kin of victims in the Barrios Altos case”, reached by the
State and the victims, their next of kin and their legal representatives,
as it is in conformity with the American Convention on Human Rates and it
contributes to the attainment of its object and purpose.
47. To fulfill that agreement, the State must
adopt the aforementioned measures of reparation, within the terms and under
the conditions set forth in it, and in accordance with the ruling of the Court
in the instant Judgment.
48. Insofar as the agreement has been confirmed
by the Judgment of the Court, any controversy or difference which may arise
will be decided by the Court.
49. Finally, and in accordance
with its usual practice, the Court reserves the authority to monitor integral
compliance with the instant Judgment. The
case will be closed once the State has faithfully complied with the provisions
of this decision.
IX
Operative
Paragraphs
50. Therefore,
THE COURT,
DECIDES:
unanimously,
1.
To approve, under the terms of this Judgment, the agreement on reparations
signed on August 22, 2001 by the State of Peru and the victims, their next
of kin and their representatives.
2. That the State of Peru must pay:
a) US$175.000,00
(one hundred and seventy-five thousand dollars of the United States of America)
to each of the following surviving victims: Natividad Condorcahuana Chicaña,
Felipe León León, Tomás Livias Ortega, and Alfonso Rodas Alvítez (or Albitres,
Albites or Alvitrez);
b) US$175.000,00
(one hundred and seventy-five thousand dollars of the United States of America)
to the beneficiaries of the reparations pertaining to each of the following
deceased victims (supra par. 29): Placentina Marcela Chumbipuma Aguirre,
Luis Alberto Díaz Astovilca, Octavio Benigno Huamanyauri Nolazco, Luis Antonio
León Borja, Filomeno 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
(or Méndez) Sifuentes Nuñez, and Benedicta Yanque Churo; and
c) US$250.000,00
(two hundred and fifty thousand dollars of the United States of America) to
the beneficiaries of the reparations pertaining to the deceased victim Máximo
León León.
The
State of Peru must make all the respective payments for these reparations
during the first quarter of fiscal year 2002, in accordance with the provisions
set forth in paragraphs 35 to 40 of this Judgment.
3. That the State of Peru must grant the
beneficiaries of the reparations their healthcare expenses, granting them
free care at the respective health care center according to their place of
residence and at the respective specialized institute or hospital of referral,
in the areas of out-patient consultation, diagnostic support procedures, medicine,
specialized care, diagnostic procedures, hospitalization, surgery, childbirth,
traumatological rehabilitation, and mental health, in accordance with the
provisions set forth in paragraphs 42 and 45 of this Judgment.
4.
That the State of Peru must provide the beneficiaries of the reparations
the following educational benefits, in accordance with the provisions set
forth in paragraphs 43 and 45 of this Judgment:
a) scholarships
through the Instituto Nacional de Becas y Crédito Educativo to study in Academies,
Institutes and Centros de Ocupación Ocupacional (sic) and support to beneficiaries interested
in furthering their education, “through the National Directorate of Secondary
and Higher Technological Education”; and
b) educational
materials; official textbooks for students in primary and secondary schooling;
uniforms; classwork materials, and others.
5. That the State of Peru must make the following
non-monetary reparations, pursuant to the provisions set forth in paragraphs
44 and 45 of this Judgment:
a) to
apply the ruling of the court in its judgment on interpretation of the judgment
on the merits “regarding the meaning and scope of the declaration of ineffectiveness
of Laws Nº 26479 and [Nº]26492”;
b) to
initiate the procedure to include “the most suitable legal classification”
to define the crime of extra-judicial executions, within 30 days of the date
the agreement was signed”;
c) to
initiate “the procedure to sign and promote ratification of the International
Convention on the Non-applicability of Statutory Limitations to War Crimes
and Crimes against Humanity, [...] within 30 days of the date the agreement
was signed”;
d) to
publish the judgment of the Court in the official gazette Diario Oficial El
Peruano, and to disseminate its content through other media “deemed appropriate
for that purpose, within 30 days from the date the agreement was signed”;
e) to
include in the Supreme Resolution ordering publication of the agreement, “a
public expression of apology to the victims for the grave damages caused”
and ratification of willingness to not allow this type of events to occur
again; and
f) to
erect a memorial monument within 60 days of the date the agreement was signed.
6. To require that the State publish through a radio broadcaster,
a television broadcaster, and a newspaper, all of them with national coverage,
an announcement stating that the next of kin of Tito Ricardo Ramírez Alberto,
Odar Mender (or Méndez) Sifuentes Nuñez, and Benedicta Yanque Churo, are being
sought to grant them reparation in connection with the facts in the instant
case. Said publication must be made
for at least 3 non-consecutive days, within 30 days after notice of this Judgment
is served, according to the provisions of paragraphs 31 and 32 of the latter.
7. That the State of Peru must submit to the Inter-American Court
of Human Rights a report on fulfillment of the reparations within six months
time from the date that notice of this Judgment is served.
8. That it will monitor fulfillment of the obligations set forth
in this Judgment and it will only close the instant case once the State of
Peru has faithfully complied with the provisions set forth in this Judgment.
Judge García Ramírez informed
the Court of his Concurring Opinion, which accompanies this Judgment.
Done
in the Spanish and English languages, the text in Spanish being authentic,
in San Jose, Costa Rica, on November 30, 2001.
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