Cantoral Benavides Case, Judgment of December 3, 2001, Inter-Am Ct. H.R. (Ser. C) No. 88 (2001).
In
the Cantoral Benavides 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;
Máximo
Pacheco Gómez, Vice President;
Hernán
Salgado Pesantes, Judge;
Alirio
Abreu Burelli, Judge;
Sergio
García Ramírez, Judge;
Carlos
Vicente de Roux Rengifo, Judge; and
Fernando
Vidal Ramírez, Judge ad hoc;
also
present,
Manuel
E. Ventura Robles, Secretary, and
Pablo
Saavedra Alessandri, Deputy Secretary,
pursuant
to articles 29, 55, 56(1) and 57 of the Court’s Rules of Procedure (hereinafter
“the Rules of Procedure”)**, in relation to Article 63(1) of the American Convention
on Human Rights (hereinafter “the Convention” or “the American Convention”)
and in consideration of operative paragraphs thirteen and fourteen of the
judgment on the merits that the Court, of August 18, 2000, hereby delivers
the present Judgment on reparations.
I
Competence
1. Under articles 62 and 63(1)
of the Convention, the Court is competent to decide the matter of reparations,
costs and expenses in the present case, since the State of Peru (hereinafter
“the State” or “Peru”) ratified the Convention on July 28, 1978 and accepted
the Court’s contentious jurisdiction on January 21, 1981.
II
Background
2. The Inter-American Commission on Human
Rights (hereinafter “the Commission” or “the Inter-American Commission”) presented
this case to the Court by means of an application filed on August 8, 1996.
On September 20, 1996, the State filed seven preliminary objections,
and on September 3, 1998, the Court issued its judgment on them.[1] Then, on August 18, 2000, the Court delivered
its judgment on the merits of the case, wherein it resolved
unanimously,
1. […] that the State violated, to the detriment of Luis Alberto
Cantoral-Benavides, Article 5(1) and 5(2) of the American Convention on Human
Rights.
unanimously,
2. […] that the State violated, to the detriment of Luis Alberto
Cantoral-Benavides, Article 7(1), 7(2), 7(3), 7(4) and 7(5) of the American
Convention on Human Rights.
unanimously,
3. […] that the State violated, to the detriment of Luis Alberto
Cantoral-Benavides, Article 8(1) of the American Convention on Human Rights.
unanimously,
4. […] that the State violated, to the detriment of Luis Alberto
Cantoral Benavides, Article 8(2) of the American Convention on Human Rights.
unanimously,
5. […] that the State violated, to the detriment of Luis Alberto
Cantoral Benavides, Article 8(2)c), 8(2)d) and 8(2)f) of the American Convention
on Human Rights.
unanimously,
6. […] that the State violated, to the detriment of Luis Alberto
Cantoral-Benavides, Article 8(2)g) and 8(3) of the American Convention on
Human Rights.
by seven votes to one,
7. […] that the State violated, to the detriment of Luis Alberto
Cantoral Benavides, Article 8(5) of the American Convention on Human Rights.
Judge Vidal Ramírez dissenting.
by seven votes to one,
8. […] that the State violated, to the detriment of Luis Alberto
Cantoral Benavides, Article 9 of the American Convention on Human Rights.
Judge Vidal Ramírez dissenting.
unanimously,
9. […] that the State violated, to the detriment of Luis Alberto
Cantoral Benavides, Articles 7(6) and 25(1) of the American Convention on
Human Rights.
unanimously,
10. […] that the State has not fulfilled the general obligations
of Article 1(1) and 2 of the American Convention on Human Rights, in respect
of the violations of the substantive rights identified in the preceding operative
paragraphs of the […] judgment.
unanimously,
11. […] that the State violated, to the
detriment of Luis Alberto Cantoral Benavides, Articles 2, 6 and 8 of the Inter-American
Convention to Prevent and Punish Torture.
unanimously,
12. […] that the State should order an investigation to determine
the persons responsible for the violations of human rights referred to in
[the] judgment, and punish them.
unanimously,
13. […] that the State should make reparations for the injury
caused by the violations.
unanimously,
14. […] to open the reparations stage, to which end it commissions
its President to take such measures as may be necessary.
III
Proceedings in the Reparations
Phase
3. On
September 13, 2000, the President of the Court (hereinafter “the President”),
in furtherance of the Court’s finding in operative paragraph fourteen of the
Judgment on the merits, decided as follows:
1. To grant the representatives
of the victims or, if applicable, their next of kin, a period until November
13, 2000 to present their arguments and available evidences for the purpose
of determining reparations and costs.
2. To instruct the Secretariat
of the Court to transmit all the received briefs and evidences to the Inter-American
Commission on Human Rights, once the period referred to in the above paragraph
has expired.
3. To grant the Inter-American Commission on Human Rights
a one-month period, starting on the date it receives the aforementioned briefs
and evidences, to submit the comments it deems relevant to the subject of
reparations and costs.
4. To instruct the Secretariat of the Court to forward all
the submitted briefs and evidences to the State of Peru, once the period referred
to in the above operative paragraph has expired.
5. To grant the State of Peru a two-month
period, starting on the date it receives the briefs and evidences referred
to in the above operative paragraph, to present its comments and available
evidences with a view to determine reparations and costs in the instant case.
6. To summon the representatives
of the victims or, if applicable, their next of kin, the Inter-American Commission
on Human Rights, and the State of Peru, once the written procedural stage
has concluded, to a public hearing, at a date that shall be informed in due
time.
4. On November 9, 2000, the victim’s representatives
petitioned the Court seeking a forty-day extension on the time period set
by the Court for filing the brief and evidences on reparations. On November 13, 2000, acting on the Court’s
instructions, the Secretariat of the Court (hereinafter “the Secretariat”)
extended the time period until January 5, 2001.
5. On January 5, 2001, the
victim’s representatives submitted their brief on reparations and costs.
6. On February 9, 2001, the
State sent the Court Executive Order No. 062-2001-RE, wherein Francisco Eguiguren
Praeli and Luis Alberto Otárola Peñaranda are designated as agent and alternate
agent, respectively, in the instant case.
7. The Inter-American Commission submitted its brief on reparations and costs in the present case on February 19, 2001.
8. On March 8, 2001, two powers
of attorney were received which Luis Alberto Cantoral Benavides (hereinafter
“Luis Alberto,” “the victim” or “Mr. Cantoral Benavides”) had granted to José
Burneo Labrín of the Fundación Ecuménica para el Desarrollo y la Paz (FEDEPAZ),
Viviana Krsticevic and Juan Carlos Gutiérrez from the Center for Justice and
International Law (CEJIL), and José Miguel Vivanco of Human Rights Watch/Americas,
authorizing these persons to represent him in the proceedings before the Court.
9. On
April 6, 2001, Mrs. Ana Luiza Loureiro de Vasconcellos submitted a psychiatric report on the
therapy the victim had received. On
April 19, the Secretariat informed the victim’s representatives and the Commission
that the Court could not consider that report until such time as one of the
parties filed a formal request to have it added to the body of evidence.
They were, therefore, asked to advise whether they intended to request
that the psychiatric report be added to the evidence.
On April 30 and May 4, 2001, the Commission and the victim’s representatives,
respectively, requested that the report prepared by Mrs. Vasconcellos be added
to the evidence in the case.
10. The State submitted its brief on reparations
and costs on May 15, 2001, which was subsequent to the deadline set (infra,
paragraph 31).
11. On June 19, 2001, the President of the Court
decided to summon the victim’s representatives, the Inter-American Commission
and the State to a public hearing that would be held at the seat of the Court
on September 6, 2001, to hear the testimony of witnesses Luis Alberto Cantoral
Benavides, Gladys Benavides López and Eloy Urso Cantoral Huamaní, and to receive
the report of expert witness Oscar Maldonado Fernández.
12. On
July 13, 2001, the victim’s representatives repeated their request that the
expert report prepared by Ana Luiza Loureiro de Vasconcellos be added to the
body of evidence and asked that she be summoned to the public hearing on reparations
so that she might give expert testimony on Luis Alberto’s health and the psychological
treatment he is receiving. On August 1, 2001, the victim’s representatives reiterated their
latest request. For its part, the
Commission offered its view on July 17, 2001, which was that the testimony
of the expert in question at the public hearing on reparations might be helpful
to the Court. The State had no comments
on this subject. On August 27, 2001,
the President of the Court, pursuant to Article 44(1) of the Rules of Procedure,
decided to summon Mrs. Ana Luiza Loureiro de Vasconcellos to appear at the
public hearing as an expert witness.
13. On September 6, 2001, the Court held the
public hearing on reparations.
Appearing before the Court were the following:
For
the victim’s representatives:
José Burneo Labrín;
Viviana Krsticevic; and
María Clara Galvis Patiño.
For the Inter-American Commission on Human Rights:
Domingo E. Acevedo, Delegate.
For the State of Peru:
Luis Alberto Otárola Peñaranda, alternate agent.
As witnesses proposed by the victim’s representatives:
Luis Alberto Cantoral Benavides;
Gladys Benavides López; y
Eloy Urso Cantoral Huamaní.
As
an expert witness proposed by the victim’s representatives:
Oscar
Maldonado Fernández.
Expert witness summoned by the Inter-American Court
of Human Rights (Art. 44(1 )of the Rules of Procedure):
Ana
Luiza Loureiro de Vasconcellos.
14.
On October 1, 2001,
the State submitted a brief affixing a copy of the “Report prepared by the
Committee to Study and Review Legislation Enacted Since April 5, 1992,” which
was introduced at the public hearing on reparations. The following day, by order of the President, the Secretariat set
October 15, 2001, as the deadline for the victim’s representatives and the
Commission to submit any comments they deemed relevant to the document submitted
by the State. On October 15, 2001,
the victim’s representatives submitted their comments. The Commission did not submit comments on the
subject.
15. By order of the President, on October 2, 2001, the Secretariat
set November 2, 2001, as the deadline for the victim’s representatives, the
Commission and the State to submit their written conclusions on reparations.
16.
On October 5, 2001, by order of the President, the Secretariat advised
the victim’s representatives, the Commission and the State that they were
to submit, by no later than October 16, 2001, according to Article 44 of the
Rules of Procedure, the data pertaining to the average salary of an office
worker and professional biologist in Peru for the period from February 6,
1993 to the present. On October 16,
2001, the victim’s representatives and the State submitted the requested documentation
as evidence for the Court to use in arriving at its finding. On October 25 of that year, the State submitted a brief adding more
information. The Commission did not
submit the requested information.
17.
The State submitted its brief containing its conclusions on the matter
of reparations and costs on October 9, 2001.
18. The
Commission submitted its brief of conclusions on reparations and costs in
the instant case on November 1, 2001.
19. The
victim’s representatives tendered their conclusions on reparations and costs
on November 2, 2001.
IV
Evidence
20. Based
on the provisions of articles 43 and 44 of the Rules of Procedure, before
examining the evidence tendered the Court has a number of observations that
apply to this specific case, most of which have been developed in this Court’s
own case law.
21. According to the consistent practice
of the Court, during the reparations phase, at the first occasion granted
to the parties to make a written statement the parties must indicate the evidence
that they will offer. Further, in
exercise of the discretionary authorities it is given under Article 44 of
its Rules of Procedure, the Court may request from the parties any additional
evidence it considers helpful, although the parties are not to construe such
request as an opportunity to elaborate upon or add to their allegations or
tender new evidence on reparations, unless the Court so authorizes.[2]
22. The Court has previously held that its proceedings
are not subject to the same formalities that must be followed in domestic
courts and that when adding certain elements to the body of evidence, particular
attention must be paid to the circumstances of the specific case and the limits
imposed by respect for legal certainty and the equality of the parties. [3]
23. This
practice applies as well to the briefs in which the victim’s representatives
or, when applicable, his/her next of kin, and the Inter-American Commission
formulate the reparations being sought. It
also applies to the State’s reply brief. These are the principal documents at the reparations phase and are,
on the whole, subject to the same formalities as those followed in the brief
tendering evidence. Based on this,
the Court will examine and evaluate all elements in the body of evidence,
according to the principle of sound judicial discretion,[4]
within the legal framework of the case sub
judice.
a) Documentary
evidence
24. The victim’s representatives attached a
copy of 106 documents, compiled into 49 appendices, to the reparations brief
they submitted (supra paragraph
5).[5]
25. Attached to its brief of comments on the
reparations sought, the State tendered copies of two presidential orders from
Peru’s executive branch (infra paragraph
31).[6]
26. On
April 6, 2001, Mrs. Ana Luiza Loureiro de Vasconcellos forwarded to the Court
a psychological report dated February 28, 2001, on the psychotherapy that
Mr. Cantoral Benavides had received (supra
paragraph 9).[7]
27. On
October 1, 2001, the State sent the Court a copy of the “Report prepared by
the Committee to Study and Review Legislation Enacted Since April 5, 1992”
(supra paragraph 14).[8]
28. On
October 16, 2001, the victim’s representatives and the State submitted data
pertaining to the average salaries of office workers and professional biologists
in Peru, as the Court had requested (supra paragraph 16).[9] On October 25, 2001, the State submitted a
brief containing additional information on this point (supra paragraph 16).[10]
B) Testimonial and Expert Evidence
29. At the public hearing held on September
6, 2001, the Court heard the testimony of witnesses Luis Alberto Cantoral
Benavides, the victim in this case; Gladys Benavides López, the victim’s mother;
and Eloy Urso Cantoral Huamaní, the victim’s uncle. The Court also received the expert reports
prepared by psychologists Oscar Maldonado Fernández and Ana Luiza Loureiro
de Vasconcellos.
C) Evidence
ASSESSMENT
30. In
the instant case, the Court acknowledges the evidentiary value of those documents
that the parties duly submitted, that were neither challenged nor disputed,
and whose authenticity was not called into question.
31. On May 15, 2001, the State submitted its
brief of comments on reparations and costs, which the Secretariat had requested
back on February 20, 2001, in keeping with the September 13, 2000 Order of
the President of the Court (supra paragraphs
3 and 10). The deadline for submitting
that brief expired on April 26, 2001. Therefore,
the brief was received 19 days after the deadline. By the standard established by the Court in
its own case law,[11]
the period of time that elapsed cannot be considered reasonable. In the instant case, the delay was not due
to a simple error in computing the due date.
The imperatives of legal security and procedural equality require that
deadlines be met,[12]
unless exceptional circumstances make that impossible. That did not happen in the instant case.
Consequently, because it was time-barred, the Court is not admitting
into evidence the State’s brief of May 15, 2001, and will refrain from addressing
its contents. Therefore, the evidence tendered by the State
with the brief of comments on the requested reparations (supra paragraph 25) is also considered to have been submitted extemporaneously.
32. Concerning
the written psychological report on Mr. Cantoral Benavides, submitted by Ana
Luiza Loureiro de Vasconcellos (supra
paragraph 9); the documents tendered by the victim’s representatives and
the State with reference to the average salaries of office workers and professional
biologists in Peru (supra paragraph
16), and the “Report prepared by the Committee to Study and Review Legislation
Enacted since April 5, 1992,” tendered by the State (supra
paragraph 14), the Court considers them helpful elements within the body of
evidence and adds them to that body of evidence, in accordance with Article
44(1) of the Rules of Procedure.
33. The Court is admitting the
tendered testimonial and expert evidence only to the extent that it is relevant
to the stated purpose of the line of questioning and the opinion.
34. Finally,
it is important to recall that the body of evidence in a case is an indivisible
whole, composed of the pieces of evidence tendered during all phases of the
proceeding.[13]
V
Facts Proven
35. To
determine the reparations measures appropriate in the instant case, the Court’s
reference point will be the facts established as proven in the judgment on
the merits delivered on August 18, 2000.
In the present phase of the proceedings, the parties have tendered
new pieces of evidence for the purpose of demonstrating the presence of other
factors relevant to determining the proper measures of reparation in this
case. The Court has examined that evidence and the
parties’ arguments, and declares the following facts proven:
a)
Luis Alberto Cantoral
Benavides was born on March 21, 1972. At
the time of his detention he was 20 years old and a biology student at Peru’s
Universidad Nacional de San Marcos. He
did informal teaching from time to time to earn money;[14]
b)
Luis Alberto Cantoral
Benavides was detained on February 6, 1993, and released on June 25, 1997,
which means that he was incarcerated for four years, four months and nineteen
days. He was pardoned on June 24,
1997, by executive order N. 078-97-JUS. Luis
Alberto Cantoral Benavides left Peru because of fear and a sense of insecurity,
and is afraid to return there. He
has lived in Brazil since June 1998;[15]
c)
The victim’s mother
is Gladys Benavides López, and his brothers are José Antonio, Luis Fernando
and Isaac Alonso, all by the surname Cantoral Benavides. His father, Isaac Cantoral Huamaní, died on December 29, 1975;[16]
d)
During his incarceration
and as a result of the torture and cruel, inhuman and degrading punishing
he endured, Luis Alberto Cantoral suffered from psychiatric and physical disorders.
The family paid the expenses necessitated to treat these disorders;[17]
e)
As a result of
the facts that prompted this case, Luis Alberto Cantoral Benavides has had
–and still has- physical and psychiatric
health problems;[18]
f)
Luis Alberto Cantoral
Benavides received psychiatric treatment under a special program run by the
National Coordinator of Human Rights [Coordinadora Nacional de Derechos Humanos]
(CNDDHH) in Lima, Peru. He has also
received psychotherapy in Brazil;[19]
g)
Mrs. Gladys Benavides
López, the victim’s mother, suffered pecuniary and non-pecuniary damages caused
by the facts of the case,[20]
and suffered from various ailments requiring physical and psychiatric care;
she herself had to defray the expense
of her medications;[21]
h)
Luis Alberto Cantoral
Benavides’ brothers suffered pecuniary and non-pecuniary damages caused by
the events of this case;[22]
and
i) The
victim’s family incurred a variety of expenses as a result of the administrative
and judicial procedures they pursued under Peruvian law. The Fundación Ecuménica para el Desarrollo
y la Paz (FEDEPAZ), the Center for Justice and International Law (CEJIL) and
Human Rights Watch/Americas undertook representation of the victim[23]
and brought the case to the inter-American human rights system, incurring
certain expenses in the process.[24]
VI
Beneficiaries
36. The
Court will now determine which persons are to be regarded as an “injured party”
within the meaning of Article 63(1) of the American Convention. Inasmuch as the Convention violations that
the Court established in its judgment of August 18, 2000, were committed to
the detriment of Luis Alberto Cantoral Benavides, he must be regarded as an
“injured party” and as such is entitled to the reparations established by
the Court in the present case.
37. That
Gladys Benavides López and Luis Fernando, Isaac Alonso and José Antonio Cantoral
Benavides are beneficiaries is not in dispute. Mrs. Benavides López must be regarded as a
beneficiary inasmuch as she is the victim’s mother. The jurisprudence constante
of this Court[25]
has been that a victim’s parent suffering can be presumed and must be compensated.
Luis Fernando, Isaac Alonso and José Antonio Cantoral Benavides are
Luis Alberto Cantoral Benavides’ brothers and as such were not indifferent
to his sufferings.[26]
38. The
Court also notes that in the instant case, there is proof that the events
that befell Luis Alberto Cantoral Benavides caused his mother and his three
brothers damages of various kinds and to varying degrees of intensity, thus
making them titulaires of the right to compensation.
VII
Obligation to Make Reparation
39. In operative paragraph 13 of its August
18, 2000 judgment on the merits, the Court decided that the State must make
reparation for the injury caused by the violations of the Convention in the
instant case. In this Judgment, the
Court will determine what reparation the Peruvian State must make pursuant
to Article 63(1) of the American Convention.
40. The
Court has held that Article 63(1) of the American Convention embodies a rule
of customary law that is one of the basic principles of contemporary international
law as regards the responsibility of States.
When an unlawful act imputable to a State occurs, that State immediately
becomes responsible in law for violation of an international norm, which carries
with it the obligation to make reparation and to put an end to the consequences
of the violation.[27]
41. Reparation
for damages caused by a violation of an international obligation requires,
whenever possible, full restitution (restitutio
in integrum), which is to reinstate the situation that existed prior to
the commission of the violation. If,
as in the instant case, full restitution is not possible, an international
court must order a series of measures that will safeguard the violated rights,
redress the consequences that the violations engendered, and order payment
of compensation for the damages caused.[28] This obligation to make reparation is governed
by international law in all its aspects (scope, nature, modalities, and determination
of beneficiaries), none of which the respondent State may alter or decline
to perform by relying on the provisions of its own domestic laws.[29]
42. As
the term implies, reparations are measures intended to erase the effects of
the violations committed. Their nature
and their amount depend on the damage caused, at both the pecuniary and non-pecuniary
levels. Reparations are not meant
to enrich or impoverish the victim or his heirs.[30] Hence, the reparations ordered in this Judgment
must be proportionate to the violations that were established in the Judgment
on the merits that the Court delivered on August 18, 2000 (supra paragraph 2).
VIII
Reparations
A) Pecuniary
damages
Arguments
of the victim’s representatives
43. The victim’s representatives requested that
the State compensate Luis Alberto Cantoral Benavides and his next of kin.
They argued as follows:
a) one
factor that must be considered when estimating the lost earnings (lucrum cessans) is that Luis Alberto was
a student whose studies to become a biologist were cut short. The victim would have completed his university
studies in 1996 and could have been working as a biologist by 1997. Based on a reasonable estimate of what a professional
starting out could earn, his lost earnings could be calculated to be US$300.00
(three hundred dollars of United States of America) per month.
He lost that income for the four-year period from the time of his graduation
to the present, which totals US$14,400.00[31] (fourteen
thousand four hundred dollars of United States of America), plus the interest
under the law;
b) The
damnum emergens in the instant case
must include the monies and personal effects lost during the house search
conducted of the victim’s residence,[32] the victim’s monthly expenses for the
duration of his incarceration to purchase food,[33]
personal hygiene and grooming aids,[34]
medications,[35] clothing and
shoes,[36] bimonthly
expenses for the purchase of materials for crafts,[37]
and the travel expenses the victim’s family incurred to visit him at the Cachiche
and Miguel Castro Castro prisons.[38] The family’s monthly visits with the victim,
on Fridays, meant that each time they visited they lost a day of work, since
Friday is a work day;
c) They
also seek rehabilitation of Luis Alberto’s physical and mental health, given
the effects of his prolonged incarceration and of the torture and mistreatment
he endured. They are also seeking
medical and psychological treatment for his next of kin;
d) Mrs. Gladys Benavides López incurred numerous
medical expenses as a result of the ailments the events in this case caused
her;
e) The
victim’s mother borrowed money from relatives in order to support her children
during Luis Alberto’s incarceration and was forced to move from Nazca, where
she was living, to Ica and then Lima. She
had a small business selling prepared foods, and was able to support the family
that way. However, she had to shut
down her small business when her two sons were detained;[39]
and
f) The
State must pay the amounts requested amounts plus the accrued legal interest
thereon.[40]
The Commission’s
arguments
44.
The Commission, for its part, argued the following:
a) The
lucrum cessans is all the income
the victim could have earned starting in 1997, the year after receiving his
biology degree, had he not been detained and incarcerated by the State; the
Commission’s view was that the amount sought by the victim’s representatives
was a “reasonable estimate of these damages”;
b) In the case of damnum emergens, defined as the damage directly caused by the events
of the case, the Commission refers to the sums[41]
requested by the victim’s representatives, which it believes is a reasonable
assessment of the expenses the members of the victim’s family incurred since
February 1993.
The State’s arguments
45. Given
the circumstance reported in paragraph 31 of this Judgment, the Court is not
including any reference to the arguments contained in the State’s brief of
comments on reparations, because that brief was filed after the deadline had
expired. It will, however, include
the arguments made by the State at the public hearing and its written conclusions
on the matter of reparations.
46. In its arguments on reparations, the State
observed that:
a)
The Court has been
very evenhanded in determining compensation for pecuniary damages; it asked
for a careful analysis of any reparations that may be owed and of the amount
of compensation set, bearing in mind the principles of reasonability and proportionality.
In this case, moreover, the victim does enjoy the right to life and
that fact alone sets it apart from other cases; and
b) For
the Peruvian State, full compliance with a reparation to redress the injury
caused would only be possible if the victim was within the national territory,
since the State has the technical and operational wherewithal to provide the
victim with medical treatment and university instruction through specialized
institutions. However, because Mr.
Cantoral Benavides currently resides in Brazil and “refuses […] to return
to Peru,” the State would be unable to pay for certain expenses and provide
medical treatment in a foreign territory.
The Court’s considerations
47. Based on the information it received in
the present process, the facts considered proven, and its jurisprudence constante, the Court finds that the compensation for
pecuniary damages in the present case should include the items indicated below.
48. In
the matter of lucrum cessans, the
victim’s representatives asked the Court to factor in the salary of a professional
in biology. It is proven fact that
at the time he was detained, Luis Alberto Cantoral Benavides was a biology
student; he was expected to graduate with a degree in biology in 1996; at
the time of his detention he did not have a permanent job, but was doing informal
teaching work that allowed him to earn himself some income from time to time.
Moreover, in his testimony to the Court on September 6, 2001, the victim
stated that:
[he] had practically mapped out [his] life. From the time [he] entered the University, […] [he] was thinking
about graduating, doing a masters degree, a doctorate [.…] [He] studied hard until that problem happened.
Now practically nine years have passed and [he] still ha[s] not accomplished
that goal [….] [He] was excited and wanted to continue and
complete [his] studies [.…] [He] intended to resume [his] studies in biology,
but as a special student at the start. But
to do that [he] had to take a test to be a regular student. [He] ha[d] not managed to do this. [He] tried [to take courses] but always had
to drop out because of financial [problems].
49. Based
on the foregoing, this Court can establish the following:
a) That Luis Alberto Cantoral Benavides should
receive from the State a minimum living wage corresponding to the period of
his detention and incarceration. Payment
of the respective sums of money will compensate the victim for the lost earnings
he would otherwise have received from the occasional teaching work referenced
earlier;
b) That the victim should receive from the
State compensation for the salary that a newly graduated biologist would have
earned in the first years of his career, for the period from the date on which
Luis Alberto Cantoral Benavides was released to the date of the present Judgment.
Payment of the corresponding sums will compensate Mr. Cantoral Benavides
for the income he did not receive.
The lucrum cessans will be figured on the basis
of 12 monthly paychecks per year, plus the corresponding bonuses, in keeping
with Peruvian norms. The value of the resulting amount must be brought
current to its value as of the date of the Judgment.[42]
50. The
lucrum cessans, therefore, totals approximately US$24,000.00 (twenty-four
thousand dollars of United States of America). The Court, in fairness, considers this figure
to be adequate and thus orders its payment as compensation for the corresponding
damages.
51. Based
on the information received, the Court’s case law and the facts proven, the
Court finds that the compensation for pecuniary damages in the instant case
should also include the following:
a)
A sum of money
for the victim’s medical expenses during his incarceration. Because the evidence presented in support of
those expenses is inconclusive, the Court, in fairness, is ordering the sum
of US$1,000.00 (one thousand dollars of United States of America) as compensation
for these medical expenses;
b)
A sum of money
for the victim’s future medical expenses, as the Court finds that there is
sufficient evidence to show that the victim’s disorders began during his incarceration
and that he currently requires psychotherapy (supra paragraph 35 e) and f) ), as shown
by the expert opinions of psychologists Ana Luiza Loureiro de Vasconcellos
and Oscar Maldonado Fernández. In
addition to those reports are the statements made by the victim and his mother,
Gladys Benavides López. Therefore,
the Court, in fairness, is ordering that Luis Alberto Cantoral Benavides be
paid the sum of US$10,000.00 (ten thousand dollars of United States of America)
as compensation for the victim’s future medical expenses;
c)
A sum of money
for the travel expenses that family members, especially the victim’s mother,
incurred to visit Luis Alberto in prison.
In fairness, the Court is ordering a sum of US$500.00 (five hundred
dollars of United States of America) as compensation for travel expenses,
which sum shall be paid to Mrs. Benavides López;
d)
A sum of money
for the medical expenses incurred for Mrs. Gladys Benavides López’ medical
care. The Court believes that the
victim’s mother suffered, and still suffers, from physical and mental ailments
caused by the incarceration and situation of her son Luis Alberto, as the
medical recorded tendered as evidence shows and as she herself testified at
the public hearing, where she said that she has had stomach problems, suffers
from chronic gastritis, arthritis, high cholesterol, nerves and poor vision. Therefore, in fairness, the Court is ordering
the sum of US$1,500.00 (one thousand five hundred dollars of United States
of America) as compensation for the medical expenses incurred by the victim’s
mother;
e)
Medical and psychiatric
treatment for Mrs. Gladys Benavides López, for the physical and mental disorders
caused by the facts of this case; and
f)
A sum of money
to defray the future medical and psychiatric expenses of Luis Fernando Cantoral
Benavides who, as shown in paragraph 105 of the judgment on the merits (supra paragraph 2), was very affected by
the plight of his brother Luis Alberto, so much so that it is reasonable to
assume that he, too, should receive medical and psychological treatment. In fairness, the Court is ordering the sum
of US$3,000 (three thousand dollars of United States of America) as compensation
for this expense.
52.
Based on the foregoing, the Court will order the following
sums as compensation for the pecuniary damages caused by the violations found
in the August 18, 2000 judgment:
Reparation for pecuniary damages |
|||||
|
|
Lost income |
Family travel expenses |
Medical expense already incurred |
Future medical expenses |
Total |
|
Luis Alberto Cantoral Benavides |
US$ 24,000.00 |
|
US$ 1,000.00 |
US$ 10,000.00 |
US$ 35,000.00 |
|
Gladys Benavides López |
|
US$ 500.00 |
US$ 1,500.00 |
|
US$ 2,000.00 |
|
Luis Fernando Cantoral Benavides |
|
|
|
US$ 3,000.00 |
US$ 3,000.00 |
|
TOTAL |
US$
40,000.00 |
||||
B) Non-Pecuniary
Damages
53. The
Court now turns its attention to the detrimental effects caused by the facts
in this case that are not finance- or property related and hence cannot be
measured in terms of monetary value. Non-pecuniary
damages might include the pain and suffering caused to the direct victims
and to their loved ones, discredit to things that are very important for persons,
other adverse consequences that cannot be measured in monetary terms, and
disruption of the lifestyle of the victim or his family.
It frequently happens that the various types of non-pecuniary damages
have no specific monetary equivalent. To
make full restitution to the victims in such cases, only two types of compensation
are possible. First, through payment of a sum of money or
delivery of goods and services of appreciable cash value, which the Court
determines in reasonable exercise of its judicial authority and on the basis
of equity. Second, through the performance
of acts or works that are public in scope and impact and that serve to restore
a victim’s reputation, good name, and dignity, consolidate his debts or convey
a message officially denouncing the human rights violations in question and
pledging to make efforts to ensure that such violations will not recur.[43]
Arguments
of the victim’s representatives
54. The
victim’s representatives pointed out that:
a) It
is a proven fact that Luis Alberto Cantoral Benavides was deprived of his
freedom for four years, four months and nineteen days. During his detention
and incarceration, he was paraded before the press in prison stripes, held
incommunicado, tortured, and subjected to cruel, inhuman and degrading punishment
and treatment. When Luis Alberto was
released, he was forced to move to Brazil to protect his freedom and personal
safety. He has had difficulties adjusting
there. As a consequence of the events
of this case, the victim now suffers from various mental disorders;
b) Luis
Alberto’s family –his mother and brothers Luis Fernando, Isaac Alonso and
José Antonio, all surname Cantoral Benavides- suffered from his absence and
shared in his pain and suffering because of the manner in which the events
transpired, the conditions of his incarceration and the nature of the charges
against him –treason and terrorism-, the humiliating treatment they received
when they visited the victim and the way in which they were stigmatized by
neighbors, acquaintances, the authorities and a sector of the press. Some family members were themselves the target
of State persecution;
c) Gladys
Benavides López, the mother of the victim, personally undertook the job of
securing her son Luis Alberto’s release and had to deal with the conditions
under which her sons were being held. For
her this was a form of mental abuse and entailed physical trauma as well,
such as the vaginal inspections that she sometimes had to undergo when visiting
Luis Alberto and Luis Fernando in prison, as she told the Court at the public
hearing. During the time her son Luis
Alberto was incarcerated, the regimen of visits was restricted. During the visits that were allowed she was
not permitted to have any type of affectionate physical contact with him. Her physical and mental health has been gravely
affected. Mrs. Benavides López was
never able to learn the identity of those responsible for the facts in this
case, as the corresponding authorities refrained from investigating and punishing
the crimes. In accordance with the
jurisprudence constante of the Court,
she is entitled to be compensated for this pain and suffering;
d) Luis
Fernando Cantoral Benavides, the victim’s brother, suffered a fate similar
to that of Luis Alberto. At present
he is a refugee in Bolivia, living in forced exile, separated from his family
and in desperate economic and social straits;
e) Isaac
Alonso Cantoral Benavides, the victim’s brother, saw his life changed, as
his family life was torn apart. He
suffered from depression and isolation, dropped out of school for a time and
has suffered the social consequences of the stigmatization. He has also been
the target of attacks, both before and after Luis Alberto’s release;
f)
José Antonio Cantoral
Benavides, the victim’s brother, now lives in Bolivia;
g) The
victim’s representatives contend that equity demands that compensation for
the pain and suffering caused to the victim during the 1,599 days of his imprisonment
and the terrible aftereffects that persist even to this day be set at the
sum of US$80,000.00 (eighty thousand dollars of United States of America),
and the compensation for the pain and suffering caused to his next of kin
at US$40,000.00 (forty thousand dollars of United States of America). These were the amounts requested by the victim’s
representatives in their reparations brief. However, in their brief of conclusions regarding reparations, once
again invoking the principle of equity, they request the sum of US$80,000.00
(eighty thousand dollars of United States of America) for Luis Alberto Cantoral
Benavides and the sum of US$40,000.00 (forty thousand dollars of United States
of America) for each of his next of kin;
h) The following persons should be considered
as beneficiaries of the compensation paid for moral damages:
h.i) Luis
Alberto Cantoral Benavides, victim;
h.ii) Gladys
Benavides López, mother;
h.iii) Luis
Fernando Cantoral Benavides, brother;
h.iv) Isaac
Alonso Cantoral Benavides, brother; and
h.v) José
Antonio Cantoral Benavides, brother, and
i) At
age 20, Luis Alberto, at the time a biology student at the Universidad Mayor
de San Marcos, watched in frustration and anguish as every personal and professional
opportunity he had was ruined and his life plan was destroyed.
The claim seeking reparation for the loss of options caused by that
wrongful act is admissible. Any rebuilding of the victim’s life plan hinges
on his professional education, which the State must ensure without requiring
that Luis Alberto return to Peru for his education, as he is unable to do
so in his current mental state. Consequently,
they are requesting the same figure they requested as compensation for moral
damages, which is US$80,000.00 (eighty thousand dollars of United States of
America), to compensate Luis Alberto for the loss of his life plan.
Given the victim’s youth and potential, that figure would be sufficient
to enable him to study and live in Brazil.
The amount was not arrived at on the basis of an equity-informed assessment;
instead, it was based on a more objective criterion, arrived at by calculating
a series of specific expenses related to the victim’s academic relocation
and his psychological rehabilitation. The
figure used to make the calculation was an approximate estimate of what is
needed to live in Brazil (US$700.00 –seven hundred dollars of United States
of America- or US$800.00 –eight hundred dollars of United States of America-
per month), plus the cost of his studies (US$400.00 –four hundred dollars
of United States of America- per month), and social security (US$200 –two
hundred dollars of United States of America- per month).
When multiplied by 12 months, the total is US$15,600.00 (fifteen thousand
six hundred dollars of United States of America).
This figure, when multiplied by five years, is approximately US$80,000.00
(eighty thousand dollars of United States of America).
The Commission’s
arguments
55. The
Commission pointed out that:
a) All
members of the Cantoral Benavides family were adversely affected and suffered
directly from Luis Alberto’s absence, because of his arbitrary detention and
the conditions of his incarceration. They
also experienced the humiliating treatment every time they visited the victim
in prison; some members of the family were also unlawfully persecuted by the
Peruvian State;
b) The
suffering caused by the cruel, inhuman and degrading treatment that agents
of the Peruvian State unjustly inflicted upon the victim caused him irreversible
harm;
c) the
moral pain and suffering caused to Mr. Cantoral Benavides and his family can
only be redressed through payment of a monetary compensation, determined on
the basis of the principle of equity. The
Commission is in agreement with the statements and requests made by the victim’s
representatives in this regard; and
d)
The compensation
that the victim’s representatives are seeking for the injury to Luis Alberto
Cantoral Benavides’ life plan is a legitimate request.
The State’s
arguments[44]
56. At
the public hearing, the State requested that when estimating the reparations
relating to the victim’s interrupted studies and career, the harm to his life
plan, moral damages and the indirect and consequential damages (damnum emergens), the Court rely on its
just and judicious case-law, which is based on the principles of reasonability
and proportionality. The State understands
the victim’s unwillingness to return to Peru, as he is studying and receiving
psychotherapy in Brazil. However,
it believes that there is no legal or factual impediment to prevent Luis Alberto
Cantoral Benavides from returning to his country, where the State could guarantee
his safety and provide him health services and schooling in specialized institutions.
The Court’s
comments
57. The
jurisprudence constante of this
Court, like that of other courts, is that a condemnatory judgment can itself
be a form of reparation for non-pecuniary damages.[45] However, given the serious circumstances of
the present case, the terrible suffering that the respective events caused
the victim and that, in one form or another, brought pain and suffering upon
his family as well, the changes forced upon the lives of the victim and his
family, and the other non-material or non-pecuniary consequences thrust upon
them all, the Court is ordering payment of compensation for non-pecuniary
damages, based on the principle of equity.[46]
58. The
victim’s representatives have made reference to various forms of non-pecuniary
damages: the physical and mental suffering endured by the victim; the destruction
of his life plan; the disintegration of the family, and the pain and suffering
that the victim’s mother and brothers endured.
59. The
Court observes that the prison conditions that Luis Alberto Cantoral Benavides
had to endure were hostile and restrictive; he was tortured and subjected
to various forms of cruel, inhuman and degrading treatment, which caused him
severe physical pain and mental suffering.
The proceedings conducted in the case prosecuted against him did not
meet the requirements of due process (arbitrary detention, parading the victim
before the press in prison garb, lack of judicial guarantees and judicial
protection). Moreover, the circumstances
surrounding his torture have never been investigated. In paragraph 104 of the Judgment on the merits
that the Court delivered on August 18, 2000, it states the following:
Considering the circumstances of the case, and the context in which the
facts took place, this Tribunal considers, beyond a reasonable doubt, that
at least some of the acts of aggression examined in this case can be classified
as physical and psychological torture. The
Court also considers that said acts were planned and inflicted deliberately
upon Mr. Cantoral Benavides for at least two purposes. Prior to his conviction, the purpose was to
wear down his psychological resistance and force him to incriminate himself
or to confess to certain illegal activities.
After he was convicted, the purpose was to subject him to other types
of punishment, in addition to imprisonment.
60. It
is obvious to the Court that the facts of this case dramatically altered the
course that Luis Alberto Cantoral Benavides’ life would otherwise have taken.
The pain and suffering that those events inflicted upon him prevented
the victim from fulfilling his vocation, aspirations and potential, particularly
with regard to his preparation for his chosen career and his work as a professional. All this was highly detrimental to his “life
project.”[47]
61. In
determining the non-pecuniary damages for the victim’s immediate next of kin,
the Court is weighing the following considerations:
a)
In the case of
Mrs. Gladys Benavides López, the Court’s
jurisprudence constante is that in the
case of a victim’s parents, moral damages need not be shown.[48] Moreover, in the instant case it is clear that
the victim’s mother personally undertook the responsibility of securing the
release of her son Luis Alberto. Aware
as she was of the conditions of her son’s incarceration, her mental torment
can be presumed. She suffered physical
ailments as well. She was humiliated,
harassed and intimidated. She was
forced to endure vaginal inspections on some of the visits she made to her
son’s prison. During those visits,
she was denied any affectionate physical contact with her son. Often the visits to the detention and incarceration
centers were restricted. Her family
broke apart: her sons Luis Alberto, Luis Fernando and José Antonio had to
leave the country because of the situation in Peru at the time and the circumstances
they had experienced. She also suffered
from a variety of health problems caused by the events in
this case;
b)
In the case of
Luis Fernando Cantoral Benavides, the victim’s twin brother who went with
him when he was detained and was also detained and incarcerated for similar
reasons experienced his brother’s suffering firsthand.
As a consequence of the events in this case, he, too, had to leave
the country and lives apart from his family.
Given these facts, the Court reiterates that in the case of siblings,
the intensity of the bond and affective relationship between them has to be
considered.[49] Hence, given the circumstances of the case,
Luis Fernando Cantoral Benavides must also be compensated for non-pecuniary
damages;
c)
Isaac Alonso Cantoral
Benavides was being followed and constantly harassed by unknown persons.
As his mother testified at the public hearing, Isaac Alonso has had
psychological problems, because he was alone when his brothers were exhibited
to the press.
He took it hard. He left that night. He was walking around alone. When family went to see him, he didn’t want
to talk, he was crying. He [was] traumatize[d]
and did not want to continue his studies. He [had] to be put into psychotherapy. Little by little he recovered and is now back
to his studies.
His family environment
changed and his family was torn apart. The trauma that Isaac Alonso experienced clearly demonstrates the
affective bond that exists between him and his brother Luis Alberto, and how
the situation affected him. Given the foregoing, he, too, must be compensated
for non-pecuniary damages;
d) José
Antonio Cantoral Benavides was also affected by the difficulty his family
was experiencing and by the incarceration of his brothers, felt a sense of
insecurity and was afraid that he, too, would be taken into custody. He left the country and now lives in Bolivia.
While there is no reliable evidence proving the non-pecuniary damages
he suffered, it is reasonable to presume that he, like his mother and other
brothers, could not be indifferent to what happened to his brother and to
his family, and therefore must be compensated for non-pecuniary damages.[50]
62. Considering
the various heads of damages that the victim’s representatives are claiming
and with which the Commission is in agreement, the Court is ordering, as pertinent
and responsive to the specifics of the case and based on the principle of
equity, compensation of non-pecuniary damages to the victim and his next of
kin as itemized below:
|
Reparations
for non-pecuniary damages
|
|
|
Victim
and next of kin |
Amount |
|
Luis
Alberto Cantoral Benavides(victim) |
US$60,000.00 |
|
Gladys Benavides López (mother) |
US$40,000.00 |
|
Luis Fernando Cantoral Benavides (brother) |
US$20,000.00 |
|
Isaac Alonso Cantoral Benavides (brother) |
US$ 5,000.00 |
|
José Antonio Cantoral Benavides (brother) |
US$ 3,000.00 |
|
TOTAL US$ 128,000.00 |
|
63. The
terms of the compensation for the injury to the victim’s “life plan” will
be described in a later section of this Judgment (infra paragraph 80).
IX
Other Forms of Reparation
Arguments
of the victim’s representatives
64. As
measures of restitution, the victim’s representatives requested that:
a) The
Supreme Court judgment convicting the victim be nullified, in order to restore
to him his good name and honor, since the pardon is a political –not jurisdictional-
remedy;
b) The
police, criminal and court records be expunged in order to facilitate the
victim’s re-assimilation into society and the work force; under Law No. 2699476,
this should have been done ex officio.
FEDEPAZ has made several requests to this effect, but without result;
and
c) Decree-Laws
25,475 and 25,659, on the crimes of terrorism and treason, be amended, as
they have breached principles and rights recognized in the 1993 Constitution
and the American Convention. This
was the finding in the “Report prepared by the Commission to Study and Review
Legislation Enacted since April 5, 1992.”
The application of those laws to the present case violated the victim’s
rights. Consequently, the victim’s
representatives are requesting that Peru adopt legislative or such other measures
as may be necessary to adapt its domestic laws on terrorism to the Convention,
pursuant to Articles 1 and 2 thereof, thereby ensuring the rights and freedoms
recognized in the Convention and guaranteeing that such violations will not
recur. They are asking the Court to
apply its jurisprudence in the Barrios
Altos Case and find that those provisions of Amnesty Laws 25,475 and 25,659
that violate rights recognized in the American Convention have no legal effect
vis-à-vis the present case or other similar
cases where the provisions of those laws have been applied.
65. The
victim’s representatives also requested the following measures of satisfaction
and guarantees of non-recurrence:
a) That
in Peru’s five major newspapers, including the Official Gazette, and in prestigious
international newspapers, the State publish communiqués containing an acknowledgment
of responsibility, a declaration that the victim was innocent, an apology
to the victim and his next of kin and the State’s pledge that events such
as those that occurred in the present case will never occur again in Peru;
b) That,
at least once, the State publish the text of the judgments on the merits and
on reparations in the official gazette and in various mass communications
media, and
c) That
the State effectively investigate and punish the material and intellectual
authors of these crimes and the accessories after the fact.
The Commission’s
arguments
66. The
Commission, for its part, stated that:
a) It concurs with the arguments of the victim’s
representatives with regard to the two heads of damages indicated below:
a.i) “moral
reparations, or public apologies, and reinstatement of the good name” of the
victim and his next of kin; and
a.ii) effective
prosecution and punishment, both within government and through the courts,
of the material and intellectual authors and accessories after the fact. To that end, the Court should require that
the State remove any legal or other obstacles that may stand in the way.
b) The
Commission endorses the arguments made by the victim’s representatives to
the effect that the State has an obligation to adopt the measures necessary
to prevent these violations from recurring in the future, and
c) In
the case of the anti-terrorism laws, the Court should follow the precedent
it established in the Barrios Altos
Case concerning amnesty laws, since the State must adapt its domestic
laws to the Convention, to comply with its obligations under Articles 1, 2
and 63(1) thereof.
The State’s
arguments[51]
67. At
the public hearing on reparations, the State articulated its position on this
matter:
a)
It is completely dedicated to respecting, observing and executing
the Court’s decisions, fully recognizes the legal authority of the Court’s
August 18, 2000 judgment on the merits and the Judgment on reparations in
the present case, and will execute both judgments to the fullest;
b)
It shares the position taken by the victim’s representatives
to the effect that the pecuniary reparation is but one aspect that must be
considered for full reparation. The
State has undertaken a commitment to take action on the following essential
matters: economic reparations, the quest for justice, restoring the victim’s
good name, as well as educational and health services for victims, and strengthening
and promoting the inter-American system of human rights; and
c)
The State is concerned by a number of amnesty-related provisions,
particularly Laws 26,479 and 26,492, which curtail due process of law and
effective court protection, and could be an impediment to full execution of
the Court’s finding ordering investigation and punishment of the responsible
parties. The State also referenced
the “Report prepared by the Committee to Study and Review Legislation Enacted
since April 5, 1992,” which specifically examines Decree Laws 25,475 and 25,659
and points out that these laws could adversely affect substantive rights,
especially those recognized in human rights conventions and the jurisprudence
of the Inter-American Court.
The Court’s
comments
68. Under
operative paragraph twelve of the judgment the Court delivered on the merits
on August 18, 2000, the State is to order an investigation to determine the
persons responsible for the violations of human rights referred to in [the]
judgment, and punish them. Hence,
it understands that the reparations the State must undertake necessarily include
effective investigation of the events and punishment of all those responsible.
69. This
Court has made repeated reference to the right of victims and their next of
kin to know the fate of the victims[52]
and the identity of the State agents responsible for the events. “Whenever there has been a human rights violation,
the State has a duty to investigate the facts and punish those responsible,
[…] and this obligation must be complied with seriously and not as a mere
formality”.[53] This Court has also held that the State “is
obliged to combat [impunity] by all available legal means, because [impunity]
encourages the chronic repetition of human rights violations and the total
defenselessness of the victims and their next of kin.”[54] A State that allows human rights violations
to go unpunished is also failing to comply with its general duty to guarantee
the free and full exercise of the rights to persons subject to its jurisdiction.[55]
70. The
Court, therefore, reiterates that the State has an obligation to investigate
the events that constituted violations of the American Convention in the present
case, in order to identify those responsible and punish them.
71.
As it has in the past, this Court points out that the general obligation
that the State undertakes under Article 2 of the American Convention implies
the adoption of measures on two fronts, to wit:
On the one hand, the suppression of rules
and practices of any kind that entail the violation of the guarantees set
forth in the Convention. On the other,
the issuance of rules and the development of practices leading to the effective
observance of said guarantees.[56]
72. The “Report of the Committee to Study and
Review Legislation Enacted since April 5, 1992,” [57]
a committee created on December 4, 2000, states the following:
The anti-terrorist laws and laws regulating the special
terrorism issue repeatedly violate basic, constitutionally protected rights
and principles. These laws also violate
international human rights treaties to which Peru is party. Those principles and rights are directly related
to due process, the principle of legality, socialization of those convicted
and respect for the independence of the Administration of Justice.
73. It bears repeating that in light of the
general obligations established in Articles 1(1) and 2 of the American Convention,
States Parties are obliged to take all measures to ensure that no one is deprived
of judicial protection and the exercise of the right to a simple and effective
recourse, in the terms of Articles 8 and 25 of the Convention.[58] Accordingly,
States Parties to the Convention that adopt laws that disregard those guarantees
are violating those articles of the Convention.
74. In
the judgment on the merits in the present case, the Court held that “the provisions
contained in the emergency legislation adopted by the State to combat terrorism,
and in particular Decree Laws No. 25,475 and 25,659,” violate Article 2 of
the Convention. Based on that decision,
in the present reparations phase (supra paragraph 64 c)) the victim’s representatives requested that
the State be ordered to adopt the domestic legal measures necessary to adapt
its anti-terrorism laws to the Convention and that the Court declare that
these decree laws have no legal effects.
75. Luis
Alberto Cantoral Benavides was prosecuted under Decrees Laws Nos. 25,475 and
25,659, convicted and sentenced to 20 years in prison for the crime of terrorism,
in a judgment of October 6, 1995, delivered by Peru’s Supreme Court.
He was pardoned under Executive Order No. 078-97-JUS of June 24, 1997,
whose consideranda stated the following in this regard:
[…]
That under Law No.
26,655 an Ad Hoc Committee was created
to evaluate, qualify and propose to the President of the Republic, as an exceptional
measure, the granting of presidential pardons to those who stand convicted
of crimes of terrorism and treason based on evidence so flimsy that the Committee
may reasonably presume that the persons in question may have had no link to
terrorist elements, activities or organizations, and
That inasmuch as the application of Luis Alberto Cantoral Benavides
falls within the scope of Article 1 of Law No. 26,655, the members of that
Ad Hoc Committee have unanimously recommended that Luis Alberto Cantoral
Benavides be granted a pardon.
76.
The Court is aware that Decree Laws Nos. 25,475 and 25,659 have been amended.
However, the Court need not examine the nature of the amendment to
establish whether the new provisions conform to the American Convention, since,
as will be shown in the following paragraphs, neither those Decree Laws nor
the laws amending them in any way affect the juridical situation of Mr. Cantoral
Benavides.
77.
It is self-evident to this Court that the verdict of conviction that the Supreme
Court delivered against Mr. Cantoral Benavides and the other decisions adopted
in the proceedings to which he was subjected, were rendered on the basis of
a law that was not compatible with the American Convention and that in the conduct
of the respective proceedings the rights to judicial protection and to due
process of law, recognized in the Convention, were violated. Consequently, in this Judgment on reparations,
this Court must order that the State nullify, in accordance with its domestic
law, the conviction that the Peruvian Supreme Court delivered against Luis
Alberto Cantoral Benavides.
78.
Accordingly, the State shall nullify all judicial or administrative,
criminal or police proceedings against Luis Alberto Cantoral Benavides in
connection with the events of the present case and shall expunge the corresponding
records.
79. As
for the measures of satisfaction and the guarantees of non-recurrence that
the victim’s representatives and the Commission are seeking, the Court believes
that the judgment itself is a form of reparation. The foregoing notwithstanding, the Court considers that as a measure
of satisfaction, the Peruvian State must publish, at least once, in both the
Official Gazette and another newspaper of nationwide circulation, the operative
paragraphs of the judgment delivered on the merits on August 18, 2000.
80. The
best way to restore Luis Alberto Cantoral Benavides’ life plan is for the
State to provide him with a fellowship for advanced or university studies,
to cover the costs of a degree preparing him for the profession of his choosing,
and his living expenses for the duration of those studies, at a learning institution
of recognized academic excellence, which the victim and the State select by
mutual agreement.
81. Finally,
the Court is ordering that the Peruvian State make a public apology to admit
its responsibility in this case and to prevent a recurrence of events such
as those that occurred in the present case.
X
Costs and Expenses
The arguments
of the victim’s representatives
82. The
victim’s representatives pointed out that:
a)
They have made
various representations before the domestic courts, all of which involved
outlays. These representations necessitated
preparation of briefs, the filing of motions and appeals, travel by family
members and the victim’s attorneys, among other persons, to various government
offices, and photocopies; preparation and submission of communications addressed
to the executive and legislative branches of government, to the Office of
the Public Prosecutor, directors of prison institutions and the media.
Representations were also made to the Ad Hoc Committee that granted Luis Alberto Cantoral Benavides a pardon;[59]
b) They
have made various representations before the inter-American human rights system,
which also involved expenses that must be reimbursed. They have made trips, prepared briefs and participated
in the public hearings conducted by the organs of that system, among others,
and
c) They
estimate that the State must reimburse them the sum of US$8,000.00 (eight
thousand dollars of United States of America) in costs and expenses.
The Commission’s
arguments
83. The
Commission, for its part, noted that the Court should order the State to pay
the expenses that the victim’s family members have incurred to bring the case
before domestic authorities and the organs of the inter-American human rights
system, based on the statements made by the representatives of Luis Alberto
Cantoral Benavides.
The State’s
arguments[60]
84. In
its conclusions on reparations, the State requested that when determining
the amount for the expenses and costs incurred by the victim’s representatives,
the Court consider whether those expenses have been properly verified, the
circumstances of the specific case, and the principles of equity and reasonability.
The Court’s
comments
85. Costs and expenses should be understood
within the concept of reparation established in Article 63(1) of the American
Convention, because the actions taken by the victim or victims, their heirs
or representatives to have access to international justice implies disbursements
and commitments of a financial nature which should be compensated when delivering
the judgment of condemnation. For
this reason, the Court considers that the costs referred to in Article 55(1)
h) of the Rules of Procedure also include the various necessary and reasonable
expenses that the victim or victims incurred in order to have access to the
inter-American system for the protection of human rights, and these expenses
include the fees of those who provide legal assistance. Consequently, the Court must assess prudently
the scope of the costs and expenses, bearing in mind the particular circumstances
of the 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 national or international proceedings.[61]
86. This
Court has already indicated that the concept of costs includes both those
corresponding to the stage of access to justice at the national level and
those that refer to justice at the international level, before the two instances:
the Commission and the Court.[62]
87. To
this end, the Court considers that, in reimbursement of the expenses and costs
generated in the domestic jurisdiction and in the inter-American jurisdiction,
it is fair to recognize to the victim and his representatives -the Fundación
Ecuménica para el Desarrollo y la Paz (FEDEPAZ), the Center for Justice and
International Law (CEJIL) and Human Rights Watch/Americas-, the sum of US$8.000,00
(eight thousand dollars of United States of America).
XI
Method
of Compliance
Arguments of the victim’s representatives
88. In their reparations brief, the victim’s
representatives stated that the Court should oversee fulfillment of the present
Judgment, particularly as regards the investigation and punishment of those
responsible for the violations.
Arguments of the Commission
89. The Commission had not comments in this
regard.
The State’s arguments[63]
90. In its brief of conclusions, the State expressed
its willingness to abide by the decisions of the Court and to recognize the
“legality and executability” of the judgment on the merits that the Court
delivered on August 18, 2000, and of the present Judgment on reparations.
However, it told the Court that it would have difficulty complying
with the Judgment on reparations, because Mr. Cantoral Benavides is living
in Brazil and “the only way the Peruvian State can fully comply with a reparation
intended to remedy the damage caused would be if the petitioner were living
within the national territory.”
The Court’s comments
91. To comply with the present Judgment, the
State will be required to pay compensatory damages, costs and expenses and
adopt the other measures ordered, within six months of the date of this Judgment’s
notification.
92. The payment of the compensations ordered
for the victim and his next of kin, as applicable, will be made directly to
them. Should any one of them die,
the payment will be made to his/her heirs.
93. The payments ordered for reimbursement of
expenses and costs incurred as a result of the representations made by the
victim’s representatives in the domestic courts and in international proceedings
with the inter-American system for the protection of human rights, will be
made to those representatives (supra
paragraph 35 i)).
94. If for any reason it is not possible for
the beneficiaries of the compensation to receive it within the indicated six-month
period, the State must deposit the amounts in question in an account or certificate
of deposit in the beneficiaries’ names, with a solvent and secure Peruvian
financial institution, either in dollars of United States of America or its
equivalent in Peru’s local currency, under the most favorable financial terms
that banking law and practice permit. If at the end of ten years the compensation has not been claimed,
the sum shall be returned, with interest, to the State.
95. The
State may comply with its obligations by making payment in dollars of United States of America or the equivalent in Peru’s local currency,
at the exchange rate between the two currencies in force in the New York,
United States, market the day before the payment.
96. The
payments ordered in the present Judgment shall be exempt from any existing
or future taxes or levies.
97. Should
the State default on its obligation, it will pay interest on the balance owed,
at the banking interest rate in effect in Peru for overdue payments.
98. In
keeping with its consistent practice, the Court reserves the right to monitor
full compliance with this Judgment. The
case will be closed once the State has fully complied with its provisions.
XII
Operative Paragraphs
99. Now,
therefore,
THE COURT
DECIDES:
unanimously,
1.
that the State shall pay the following in pecuniary damages:
a) to Luis Alberto Cantoral Benavides, in
the form and under the conditions stipulated in paragraphs 49, 50, 51 a) and
b) and 52 of this Judgment, the sum of US$35,000.00 (thirty-five thousand
dollars of United States of America) or the equivalent in Peruvian currency.
b) to Gladys Benavides López, in the form
and under the conditions stipulated in paragraphs 51 c) and d) and 52 of this
Judgment, the sum of US$ 2,000.00 (two thousand dollars
of
United States of America) or the equivalent in Peruvian currency.
c) to Luis Fernando Cantoral Benavides, in
the form and under the conditions stipulated in paragraphs 51 f) and 52 of this Judgment, the sum of US$
3,000.00 (three thousand dollars of United States
of America) or the equivalent in Peruvian currency.
2. that
the State shall pay the following in non-pecuniary damages:
a) to Luis Alberto Cantoral Benavides, in
the form and under the conditions stipulated in paragraph 62 of this Judgment,
the sum of US$60,000.00 (sixty thousand dollars
of United States
of America) or the equivalent in Peruvian currency.
b) to
Gladys Benavides López, in the form and under the conditions stipulated in
paragraph 62 of this Judgment, the sum of US$40,000.00 (forty thousand dollars
of United States of America) or the equivalent in Peruvian currency.
c) to
Luis Fernando Cantoral Benavides, in the form and under the conditions stipulated
in paragraph 62 of this Judgment, the sum of US$20,000.00 (twenty thousand
dollars of United States of America) or the equivalent in Peruvian currency.
d) to
Isaac Alonso Cantoral Benavides, in the form and under the conditions stipulated
in paragraph 62 of this Judgment, the sum of US$ 5,000.00 (five thousand dollars
of United States of America) or the equivalent in Peruvian currency.
e) to
José Antonio Cantoral Benavides, in the form and under the conditions stipulated
in paragraph 62 of this Judgment, the sum of US$3,000.00 (three thousand dollars
of United States of America) or the equivalent in Peruvian currency.
3. that the State shall pay the victim’s
representatives the sum of US$ 8,000.00 (eight thousand dollars of United
States of America) or the equivalent in Peruvian currency in costs and expenses,
in the form and under the conditions stipulated in paragraph 87 of this Judgment.
4. that
through the procedures dictated by its domestic laws, the State shall reverse
the verdict of conviction that the Peruvian Supreme Court delivered against
Luis Alberto Cantoral Benavides, pursuant to the provisions of paragraph 77
of this Judgment.
5. that the State shall nullify any court,
government, criminal or police proceedings there may be against Luis Alberto
Cantoral Benavides in connection with the events in this case and shall expunge
the corresponding records, pursuant to the provisions of paragraph 78 of this
Judgment.
6. that
the State shall provide Luis Alberto Cantoral Benavides with a fellowship
to pursue advanced or university studies, in order to defray the costs of
the professional degree that the victim elects to pursue, as well as his living
expenses for the duration of the victim’s studies, at a center of recognized
academic excellence selected by mutual agreement between the victim or his
representatives and the State, in furtherance of paragraph 80 of this Judgment.
7. that
the State must publish, at least one time, in the Official Gazette and another
newspaper with nationwide circulation, the operative part of the judgment
the Court delivered on the merits on August 18, 2000, and make a public apology
acknowledging its responsibility in this case, in order to prevent a repetition
of these events, in furtherance of paragraphs 79 and 81 of the present Judgment.
8. that
the State is to provide medical treatment and psychotherapy to Mrs. Gladys
Benavides López, in Peru, in furtherance of paragraph 51 e) of the present
Judgment.
9. that
the State is to investigate the facts of the present case and identify and
punish the responsible parties, in furtherance of paragraph 70 of the present
Judgment.
10. that
the State is to perform the reparation measures ordered in the present Judgment
within six months of the date of its notification.
11. that
the payments ordered in the present Judgment shall be exempt from existing
or future taxes or levies.
12. that
effective the date of notification of the present Judgment, the State shall
submit a report to the Inter-American Court of Human Rights every six months
on the measures taken to comply with it.
13. that
the Court will monitor compliance with this judgment and will close the present
case once the State has fully complied with it.
Judge Cançado Trindade informed the Court of his
Concurring Opinion, which will be attached to this Judgment.
Done
in Spanish and English, the Spanish being authentic, in San José, Costa Rica,
December 3, 2001.
Antônio A.
Cançado Trindade
President
Máximo Pacheco-Gómez Hernán Salgado-Pesantes
Alirio Abreu-Burelli
Sergio García-Ramírez
Carlos Vicente de Roux-Rengifo Fernando
Vidal-Ramírez
Judge ad hoc
Manuel E. Ventura-Robles
Secretary
So ordered,
Antônio A.
Cançado Trindade
President
Manuel E.
Ventura-Robles
Secretary