REPORT No. 164/11
PETITION 490-01
ADMISSIBILITY
FREDDY BILL CORDERO PALOMINO
PERU
November 2, 2011
I. SUMMARY
1. On July 27th, 2001, the Inter-American Commission of Human Rights (henceforth “the Inter-American Commission” or the “IACHR”) received a petition that Freddy Bill Cordero Palomino (henceforth “the alleged victim” or “the petitioner”) lodged on his own behalf, in which he alleged that the Republic of Peru (henceforth “Peru,” “the State” or “the Peruvian State”) had violated the rights enshrined in Articles 1(1), 2, 5, 7, 8, 9, 11, 13, 24 and 25 of the American Convention on Human Rights (henceforth “the American Convention” or “the Convention”). The petitioner alleged that he was arrested and tried under decree laws relating to terrorism, enacted as from May 1992 during the government of Alberto Fujimori. He stated that these decrees, as well as the ensuing criminal proceedings, are in breach of dispositions of the American Convention. The alleged victim asserted that he was arrested without court order, and remained in solitary confinement for several days. He indicated that he was tortured and subjected to inhuman conditions of imprisonment. The petitioner also stated that he was subjected to two criminal proceedings, in which he was accused of the same facts. He stated that he was finally acquitted in one of the proceedings, while in the second proceeding he was sentenced to 20 years of prison, by means of a trial that had not observed the due process guarantees.
2. The State said that it has corrected the irregularities in the proceedings followed in the military court by judges with secret identity during the nineties. It said that the alleged victim was condemned by competent courts and within a trial that observed the due process guarantees. It maintained that the petition was lodged to the IACHR when a final ruling by internal judicial authorities was still pending regarding a plea of res judicata and statute of limitations filed by Mr. Freddy Bill Cordero Palomino. The State indicated that while the alleged victim lodged a claim for tortures committed by DINCOTE members in October, 1998, investigations related to the Judicial Power determined that there are no evidences to prove the responsibility of those accused. Finally, it stated that the petition does not allege facts that tend to establish a violation of the Convention, and requested that the IACHR declare it inadmissible by virtue of Article 47 of the above-mentioned instrument.
3. After examining the position of the parties, in light of the admissibility requirements set forth in Articles 46 and 47 of the Convention, the Commission concluded that it is competent to consider the petition and that the latter is admissible with respect to the alleged violation of the rights enshrined in Articles 5, 7, 9, 8 and 25 of the American Convention, in relation to Articles 1(1) and 2 of the same instrument; and in Articles 1, 6 and 8 of the Inter-American Convention to Prevent and Punish Torture. On the other hand, the IACHR declared inadmissible the alleged violation of the rights set out in Articles 11, 13 and 24 of the Convention. The Commission decided to notify the parties of this Admissibility Report, make it public and include it in its Annual Report to be submitted in the OAS General Assembly.
II. PROCEEDINGS BEFORE THE COMMISSION
4. The initial petition was received on July 27, 2001, and registered with the number 490-01. The petitioner submitted additional information on October 20, 2009. Such documentation was sent to the State on September 7, 2010, giving it two months to submit its response, pursuant to the IACHR Rules of Procedure.
5. The State submitted an answer on December 3, 2010, and sent additional information on March 8 and June 7, 2011. The petitioner submitted additional observations on May 5 and on October 7, 2011. On October 28, 2011, the State requested an extension to submit observations on the applicant’s communication dated October 7, 2011. On November 2, 2011, the IACHR rejected the request for an extension presented by the Peruvian State.
III. POSITION OF THE PARTIES
Preliminary Question
6. During the proceedings of this claim, the petitioner and the State described two proceedings for the crime of terrorism imputed to Mr. Cordero Palomino, which resulted in final judgments in 2000. Until early 2003, criminal proceedings for such crime were based on decree laws promulgated by the then President Alberto Fujimori. Before describing the position of the parties, the IACHR deems it is necessary to refer to the regulatory framework in which the alleged facts would have occurred.
Antiterrorist legislation in force from May 1992 to January 2003
7. Decree Law No. 25475, dealing with different forms of the crime of terrorism, was enacted in May 1992. In August of that year, Decree Law No. 25659 was enacted, criminalizing the offense of high treason and giving the military justice system jurisdiction over the prosecution of that crime. Those decrees, along with decrees Nos. 25708, 25744, 25880, and other complementary provisions, equipped the Peruvian legal system with exceptional procedures for investigating, examining, and prosecuting individuals accused of terrorism or high treason.
8. The decrees that made up what was known as the “antiterrorist legislation” had the stated purpose of reining in the escalation of targeted killings against officers of the judiciary, elected officials, and members of the security forces, as well as of disappearances, bombings, kidnappings and other indiscriminate acts of violence against the civilian population in different regions of Peru, attributed to outlawed insurgent groups.
9. Among other changes, these decrees allowed the holding of suspects incommunicado for specified lengths of time,[1] holding closed hearings, solitary confinement during the first year of prison terms,[2] and summary deadlines for presenting charges and issuing judgments in the case of the crime of high treason.[3] In addition, these decrees denied suspects the assistance of a legal representative prior to their first statement to an agent of the Public Prosecution Service[4] and restricted the attorney’s participation in the criminal proceedings, disallowed the recusal of judges or other judicial officers,[5] established concealed identities for judges and prosecutors (“faceless courts”),[6] prevented the summoning, as witnesses, of state agents who had participated in preparing the police arrest report.[7]
10. As for their provisions of material law, these decrees allowed for the possibility of applying more than one criminal offense to actions of a similar or identical nature; they did not differentiate between different levels of mens rea;[8] and they only indicated minimum prison terms, without setting maximum penalties.[9]
11. On May 12, 1992, the Executive Branch of Government passed Decree-Law 25499, also called the Repentance Law, which regulated the reduction, exemption, remission or mitigation of imprisonment sentences for persons charged or convicted for the crime of terrorism who provided information leading to the capture of chiefs, heads, leaders or principal members of terrorist organizations.[10] By means of Supreme Decree No. 015-93-JUS of May 8, 1993, the Executive Branch adopted the Regulations for the Repentance Law, which provided, among other measures, the secrecy or change of identity for the repentant persons making the statement.[11] The Repentance Law expired on October 31, 1994.[12]
Antiterrorist legislation in force as of January 2003
12. Between January and February 2003, Peru adopted a new legislative framework on terrorism. As explained later in the summary of the position of the parties, the State indicated that the irregularities committed in the trials for terrorism and high treason during the nineties were corrected with the adoption of such new legal framework.
13. On January 3, 2003, the Constitutional Court of Peru declared that many provisions of decree laws on terrorism, enacted during the government of Alberto Fujimori, are unconstitutional[13]. This decision annulled the provisions that prevented the recusal of judges and the summoning, as witnesses, of agents involved in the police arrest report; and the provisions that allowed civilians to be tried by military courts. At the same time, absolute incommunicado detention and solitary confinement during the first year of sentence were also ruled unconstitutional. With regard to the legal definition of terrorism, the Constitutional Court upheld the legality of Article 2 of Decree Law No. 25475, but ruled that it would apply solely to willful acts, and established interpretative guidelines for the subsumption of an action classified as a criminal offense.
A. The petitioner’s position
14. He stated that on October 13, 1998, he was arrested by members of the Peruvian National Police dressed as civilians, without court order against him and without any evident situation of flagrante delicto. He said that he was taken to the facilities of the National Directorate Against Terrorism (DINCOTE), where he was isolated for 15 days and subjected to tortures and mistreatments for self-incrimination of the crime of terrorism. He stated that members of such police division undressed and blindfolded him and tied his hands to hit sensible parts of his body. He said that at the end of October 1998, he was transferred to the Maximum Security Prison Miguel Castro Castro, where he stayed twenty-two hours a day in an isolated chamber, with poor sanitation conditions and with access to visits for two hours per month, restricted to close relatives. He added that in 2002 he was transferred, without justification, to the Maximum Security Prison of Challapalca, facility located at more than 4.500 meters above sea level.
15. The petitioner said that DINCOTE members forced him to sign a police arrest report with false information and that a representative of the Public Ministry and his counsel for the defense only stayed a few minutes to ratify the information produced by the police. He also said that during his police declaration, on October 26, 1998, he didn’t have the assistance of a lawyer or the presence of a prosecutor.
16. According to Mr. Cordero Palomino, a first process was started for the crime of terrorism, after which he was convicted to 20 years of prison, by means of resolution of the Supreme Court of Justice on July 24, 2000. However, in a second process started due to the same crime and with the same accusations, he was acquitted by means of final decision on December 7, 2000. It was indicated that while in both processes there are police statements of witnesses who incriminate him, many of them took their statements back during oral judgment, alleging that their statements before the DINCOTE were obtained by means of torture. He said that he was convicted pursuant to Decree Law No. 25475, although facts imposed by the Public Ministry in its indictment would have occurred before the entrance into force of such decree, in May 1992.
17. The petitioner said that he lodged a remedy for constitutional protection (amparo suit) in July 2001 and a plea of res judicata and statute of limitations on November 15, 2005 against the conviction of July 24, 2000, where he indicated that the principle of congruence had been violated. He also stated that such remedies were declared groundless by the National Criminal Chamber on April 26, 2007. According to the information submitted, the Supreme Court decreased the sentence imposed to the alleged victim from 20 to 17 years of prison.
18. Mr. Cordero Palomino said that he submitted a petition for habeas corpus on September 6, 2007 before the Sixteenth Criminal Court of Lima, for the alleged violation of the right to individual freedom and fair trial. In communication received by the IACHR on October 20, 2009, the petitioner declared that such remedy needed a final decision by the Constitutional Court, and that it had not submitted any updated information.
19. The petitioner said that on November 13, 2008, he submitted a second petition for habeas corpus before the Fifty-Seventh Criminal Court of Lima, for violation of the principle of legality and prohibition of ex post facto laws. He indicated that this petition was declared groundless by the Court or the Fourth Special Criminal Court for Processes with Defendants in the Prison of Lima. He highlighted that despite having appealed to the decision of such Criminal Court, it did not receive the record of notification and, consequently, it ordered the archiving of the case, preventing Mr. Cordero Palomino from appealing to the Constitutional Court.
20. According to what was declared, the alleged facts of torture occurred in the DINCOTE facilities in October 1998 and the prison conditions to which he was exposed caused him cervical injuries, spondylosis, nasal bone injury, prostatitis, hepatic pains, among other affections that would prevent Mr. Cordero Palomino from carrying out physical activities. It was said that despite his physical condition, the prison authorities would have hindered his treatment, discontinued hospital care and delayed his authorization from six to eight months.
21. Regarding the alleged acts of torture, Mr. Cordero Palomino pointed out that on August 17, 1999, he presented a charge against several DINCOTE members. According to the information submitted, the Provincial Public Prosecutor Office of Lima accepted the charge and requested eight years of imprisonment among other accessory penalties to the defendants. Such information indicates that the 30º Criminal Court of Lima and the National Criminal Chamber decided to acquit the policemen charged. There is no information on the case-file on the existence of additional investigations.
22. Finally, the petitioner indicated that Peru is responsible for violating the rights enshrined in Articles 1(1), 2, 5, 7, 9, 11, 13, 24 and 25 of the American Convention and in Articles 1, 6 and 8 of the Inter-American Convention to Prevent and Punish Torture.
B. Position of the State
23. The State indicated that when the IACHR notified the petition, in September 2010, it had already redressed the irregularities committed during the trials followed in the military court and by judges with secret identity. It argued that the Commission cannot rule on aspects ruled by the national judges within the framework of their competences and subjected to due process, even if that results unfavorably for the interests of the alleged victim. It said that the disagreement with the results obtained in national seat cannot be object of analysis by a supranational body that is subsidiary and complementary to the internal system. It added that Mr. Cordero Palomino was judged by competent courts, having access to all remedies foreseen in the applicable legislation and within a fair trial.
24. The State raised a preliminary objection of lack of exhaustion of domestic remedies, declaring that the alleged victim lodged his petition on July 27, 2001, while the criminal proceeding concluded with the resolution of the Transitory Criminal Chamber of the Supreme Court on April 26, 2007. It highlighted that after the initial petition, Mr. Cordero Palomino presented a series of new pleadings. With this regard, the State indicated that “to evaluate the admissibility, as well as the results and grounds of the juridical controversy raised by the petitioner, such pleadings should be analyzed specifically in relation to the first writ of the petition that describes the facts that are part of the claim…” Peru added that its submissions to this international body “will emphasize the first writ of the petitioner and will not accept new facts or additions included in further communications.”
25. Regarding the alleged retroactive application of Decree Law No. 25475, it argued that Freddy Bill Cordero Palomino was convicted for the crime of belonging to a terrorist organization, which has permanent character. It highlighted that internal authorities declared groundless the remedies of habeas corpus submitted by the alleged victim for the violation of the right to defense and other judicial guarantees.
26. With regard to the alleged violation of the ne bis in idem principle, the State indicated that in its resolution of July 6, 2006, the National Criminal Chamber concluded that the facts exposed in the criminal proceeding with final decision of September 7, 2000 “are not object of investigation in this process [with final decision of July 24, 2000]; and thus, the plea of res judicata lodged by petitioner Freddy Bill should be declared groundless…”
27. With regard to the alleged facts of torture to the detriment of Mr. Cordero Palomino, the State said that “they were investigated at the national level, file N.º 07-2004, by means of which no responsibility was found in those facts denounced by Mr. Cordero Palomino…” Regarding the health situation of the alleged victim, it said that according to the information provided by the National Penitentiary Institute, Mr. Cordero Palomino “does not present an active condition of prostatitis or pyleonephritis; and that he [receives] health care on a periodic basis and that there is no evidence of signs of gastric or neurological pathologies, or others, and that an emergency evacuation due to a serious condition that could have put his life at risk was far from necessary.”
28. Finally, Peru indicated that the facts described by the petitioner do not violate the rights protected under the American Convention. Therefore, it requested the IACHR to declare the complaint inadmissible, by virtue of Article 47(b) of such instrument.
IV. ANALYSIS OF COMPETENCE AND ADMISSIBILITY
A. Competence of the Commission ratione personae, ratione loci, ratione temporis, and ratione materiae
29. The petitioners are entitled, under Article 44 of the Convention, to file complaints. The alleged victim is an individual who was under the jurisdiction of the Peruvian State on the date of the alleged incidents. In addition, Peru ratified the American Convention on July 28, 1978. Consequently, the Commission has competence ratione personae to examine the petition.
30. The Commission has competence ratione loci to hear the petition, in that it describes violations of rights protected by the American Convention that allegedly took place within the territory of a state party thereto.
31. In addition, the Commission has competence ratione temporis, since the general obligation of respecting and ensuring the rights protected by the American Convention was already in force for the State on the date on which the incidents described in the petition allegedly occurred.
32. Finally, the Commission is competent ratione materiae, as the petition alleges the violation of the American Convention and sets out facts which, if proved, may constitute a violation of the American Convention to Prevent and Punish Torture, whose instrument of ratification was deposited by Peru on March 28, 1991.
B. Exhaustion of remedies under domestic law
33. Article 46(1)(a) of the American Convention provides that, for admission of a petition lodged with the Inter-American Commission in accordance with Article 44 of the Convention, remedies under domestic law must have been pursued and exhausted in accordance with generally recognized principles of international law. This requirement is aimed at enabling national authorities to be apprised of the alleged violation of a protected right and, if appropriate, to have the opportunity to settle the matter before it is heard by an international body.
34. The State alleged that the petition was lodged when a final opinion was pending by the internal courts on a plea of res judicata and statute of limitation presented by Mr. Freddy Bill Cordero. In this regard, the claim does not meet the requirement of prior exhaustion of remedies under domestic law. Likewise, it said that the petitioner’s pleadings should limit to the facts described in his first communication dated July 27, 2001. As to these allegations, the IACHR reiterates its doctrine according to which the analysis of the requirements provided in Articles 46 and 47 of the American Convention is performed in the light of the situation in effect at the time a decision is issued regarding the admissibility or inadmissibility of the petition.[14]
35. The petition alleges acts of torture and other violations to the integrity of Mr. Freddy Bill Cordero Palomino, presumably committed by DINCOTE agents in October 1998. The available information indicates that such alleged facts were denounced to the Provincial Public Prosecutor Office of Lima on August 17, 1999, and that the policemen accused were acquitted.
36. The Commission’s established precedents indicate that whenever a publicly actionable offense is committed, the State has the obligation of bringing and pursuing criminal proceedings and that, in such cases, that is the suitable channel to clear up incidents, prosecute the guilty, and impose the applicable criminal punishments, in addition to enabling other forms of reparation. The petitioners’ allegations of torture and other supposed violations of humane treatment point to criminal actions under domestic law that must be investigated and prosecuted on an ex officio basis by the judicial authorities, and consequently that procedure is the adequate remedy for the petitions addressed in this report.[15]
37. Although the Peruvian government stated that the alleged tortures and violations against the personal integrity of Mr. Cordero Palomino were carefully investigated, it did not provide specific information or copy of the measures adopted in the internal investigations. Likewise, the government did not inform on additional measures taken to clarify the facts reported by the alleged victim and, if so, to punish those responsible. The IACHR observes that the pleadings of the parties coincide in the fact that on August 17, 1999, Mr. Cordero Palomino denounced the alleged facts of torture occurred in October, 1998, before the Provincial Public Prosecutor Office of Lima. Taking into account that until this stage of the proceedings, the parties have not provided specific information or copy of judicial decisions regarding the claim of August 17, 1999, and considering the lack of information regarding the clarification and sanction of the facts denounced by means of an effective remedy, the IACHR considers that the requirement provided in Article 46(1)(a) of the Convention regarding the aspects of the petition described in paragraph 35 has been met.
38. Besides the alleged violations of the personal integrity, the petition suggests that other provisions of the American Convention were violated on account of the arrest and criminal proceedings against the alleged victim. The available information indicates that such proceedings resulted in resolutions of the Supreme Court of Justice issued on July 24, 2000 and on December 7, 2000. Likewise, this information indicates that against the resolution dated July 24, 2000, the alleged victim lodged a plea of res judicata and statute of limitations, which was declared groundless by final decision on April 26, 2007. In this regard, the IACHR concludes that the requirement provided in Article 46(1)(a) of the Convention is satisfied.
C. Deadline for presentation of the petition
39. Article 46(1)(b) of the Convention provides that, in order for a petition to be declared admissible, it must have been presented within six months from the date on which the interested party was notified of the final decision that exhausted domestic remedies.
40. With regards to the alleged violations of the Convention resulting from the criminal processes imputed to Mr. Cordero Palomino, according to paragraph 38 supra, the domestic remedies were exhausted with Supreme Court ruling of April 26, 2007, after the claim was submitted to the Commission. Regarding the aspect of the petition described in above paragraph 35, the available information indicates that the claim lodged by Mr. Cordero Palomino against DINCOTE members on August 17, 1999 resulted in resolutions issued by the 30º Criminal Court of Lima and by the National Criminal Chamber, after the submission of the petition in casu. In this regard, the IACHR considers that the requirement set forth in Article 46(1)(b) of the Convention is related to the exhaustion of domestic remedies and, therefore, satisfied.
D. Duplication of procedures and international res judicata
41. Article 46(1)(c) of the Convention provides that the admissibility of a petition must meet the requirement that the subject of the petition “is not pending in another international proceeding for settlement”; and Article 47(d) of the Convention stipulates that the Commission shall consider inadmissible any petition or communication if it is substantially the same as one previously studied by the Commission or by another international organization. The parties have not put forward the existence of any of these two circumstances, nor can they be inferred from the case file.
E. Characterization of the alleged facts
42. For the purposes of admissibility, the Commission must decide whether or not the petition states facts that tend to establish a violation of rights as stipulated in Article 47(b) of the American Convention and whether or not the petition is “manifestly groundless” or “obviously out of order,” according to subparagraph c) of the same article. The rule governing evaluation of these particulars is different from the one required to decide on the merits of a complaint. The Commission must conduct a prima facie evaluation to examine whether the complaint substantiates the apparent or potential violation of a right guaranteed by the Convention and not to establish the existence of a violation. This review is a summary analysis that does not involve any prejudgment or advanced opinion on the merits of the case.
43. Neither the American Convention nor the IACHR Rules of Procedure require a petitioner to identify the specific rights allegedly violated by the State in the matter brought before the Commission, although petitioners may do so. It is for the Commission, based on the system's jurisprudence, to determine in its admissibility report which provisions of the relevant Inter-American instruments are applicable and could be found to have been violated if the alleged facts are proven by sufficient elements.
44. Taking into account the elements of fact brought by the parties, the IACHR considers that the circumstances in which the alleged victim was arrested in October, 1998 and the alleged acts of torture by DINCOTE agents could establish a violation of the rights enshrined in Articles 5 and 7 of the American Convention, in agreement with Article 1(1) of the same instrument; and of the rights enshrined in Articles 1, 6 and 8 of the Inter-American Convention to Prevent and Punish Torture; all of which to the detriment of Freddy Bill Cordero Palomino. Furthermore, the IACHR considers that the impact of the incidents described in this paragraph, as well as the alleged isolation at the DINCOTE facilities and the alleged restrictions on visits during the confinement of Mr. Freddy Bill Cordero, tend to establish a violation of the right enshrined in Article 5(1) of the Convention to the detriment of his relatives.
45. In relation to the allegations about the criminal trials undertaken against the alleged victim, as well as submissions of incompatibility of the legislative framework applied with the American Convention, the IACHR considers that, should they be proved, they could constitute colorable claims on the violation of the rights enshrined in Articles 9, 8, and 25 in relation to Articles 1(1) and 2 of that Treat, all to the prejudice of Freddy Bill Cordero Palomino.
46. In relation to the alleged violation of the rights enshrined in Articles 11, 13 and 24 of the American Convention, the IACHR considers that the petitioners have not submitted sufficient elements to indicate a potential breach of such provisions.
47. Finally, since it is not evident that the petitioner’s claim is groundless or out of order, the Commission concludes that it satisfies the requirements laid down in Articles 47(b) and (c) of the American Convention.
V. CONCLUSIONS
48. Based on the considerations of fact and law set forth above, and without prejudice to the merits of the case, the Inter-American Commission concludes that the petition satisfies the requirements for admissibility set out in Articles 46 and 47 of the American Convention, and therefore
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
DECIDES:
1. To declare the petition admissible with regard to Articles 4, 5, 7, 9, 8 and 25 of the American Convention, in connection with the obligations established in Articles 1(1) and 2 of the same instrument, and with regard to Articles 1, 6, and 8 of the Inter-American Convention to Prevent and Punish Torture.
2. To declare inadmissible the alleged violation of the rights enshrined in Articles 11, 13 and 24 of the American Convention, in keeping with Article 47(b) of said treaty.
3. To notify this decision to the State and to the petitioner.
4. To make this report public, and publish it in it’s Annual Report to the General Assembly of the Organization of American States.
Done and signed in the city of Washington, D.C., on the 2nd day of November 2011. (Signed): Dinah Shelton, President; José de Jesús Orozco Henríquez, First Vice-President; Felipe González, Luz Patricia Mejía Guerrero and María Silvia Guillén, Commissioners.
Notes________________________
[1] Decree Law No. 25475, Art. 12(d).
[2] Decree Law No. 25475, Art. 20.
[3] Investigations, prosecutions, and sentencing for high treason were governed by Decree Laws Nos. 25708 and 25744.
[4] The right to the assistance of freely chosen defense counsel from the very onset of criminal proceedings was later established by Article 2 of Law No. 26447.
[5] Decree Law No. 25475, Art. 13(h).
[6] With the enactment of Law 26671 on October 12, 1996, faceless judges and prosecutors were abolished.
[7] Decree Law No. 25744, Art. 2.
[8] Decree Law No. 25475, Art. 2.
[9] Decree Law No. 25475, Art. 3.
[10] Decree Law No. 25499, Articles 1.II.a and 1.III.
[11] Supreme Decree No. 015-93-JUS, Articles 8.a and 36.
[12] The Repentance Law was repealed by Law 26345 of August 30, 1994.
[13] Resolution of the Constitutional Court on January 3, 2003, File N.º 010-2002-AI/TC, action of unconstitutionality lodged by Marcelino Tineo Silva and other citizens.
[14] IACHR, Report No. 108/10, Petition 744-98 and others, Orestes Auberto Urriola Gonz[ales and others (Peru), August 26, 2010, para. 54, Report No. 2/08, Petition 506-05, José Rodríguez Dañín (Bolivia), March 6, 2008, para. 56 and Report No. 20/05, Petition 714-00, Rafael Correa Díaz (Peru), February 25, 2005, para. 32.
[15] IACHR, Report No. 99/09, Petition 12.335, Colombia, Gustavo Giraldo Villamizar Durán, October 29, 2009,
para. 33.