Walter Humberto Vasquez Vejarano v. Peru, Case 11.166, Report No. 48/00, OEA/Ser.L/V/II.106 Doc. 3 rev. at 1200 (1999).
WALTER HUMBERTO VÁSQUEZ VEJARANO
April 13, 2000
1. The complaint
which is the subject of this report was presented to the Inter-American Commission
on Human Rights (hereinafter the Commission) on April 26, 1993.
It states that on April 9, 1992,
Alberto Fujimori, President of the Republic of Peru (hereinafter "the
Peruvian State," "the State," or "Peru"), issued
Decree-Law 25.423 (hereinafter the Dismissal Decree) removing Dr. Walter Humberto
Vásquez Vejarano (and twelve other justices),
from their posts as justices or magistrates of Peru's Supreme Court of Justice.
The petitioner alleges that by promulgating and implementing the aforesaid
Decree Law, the Peruvian State violated the rights and guarantees to which
Dr. Walter Humberto Vásquez Vejarano was entitled pursuant to Article 8 (Judicial
Guarantees); Article 9 (the Principle of Legality and Freedom from ex
post facto laws); Article 23 (Right to Participate in Government); and
Article 25 (Judicial Protection) of the American Convention on Human Rights
(hereinafter “the Convention”)
PROCEEDINGS BEFORE THE COMMISSION
Processing of the petition
2. On June 2, 1993,
the Executive Secretariat forwarded the relevant sections of the petition
to the Peruvian State, which gave its response on September 13, 1993.
3. On October 4,
1993, the Secretariat received a second communication from the Peruvian State,
conveying additional background details about the case.
On December 27, 1993, the Secretariat received a communication from
the petitioner rebutting point by point each of the arguments presented by
the State. On June 2, 1994, the Secretariat received a note from the Peruvian
State dated May 31, 1994, responding to the petitioner's arguments.
The petitioner's observations on the State’s June 2nd response
were received on November 17,
4. On August 18,
1995, another communication was received from the State in which it again
alleged that the case was inadmissible.
5. On September
7, 1995, the Peruvian State sent the Commission an official communication
from the Attorney General's Office, dated August 7, 1995, (Report Nº
6. Report Nº 46/97
on the admissibility of this case was approved by the Commission during its
98th regular session and was forwarded to the parties on November 4, 1997.
7. On March 6, 1996,
the Secretariat sent a letter to the parties, offering them the Commission's
services in the interests of seeking a possible friendly settlement.
That proposal was accepted by the petitioner on April 2, 1996.
8. On April 4 1996,
the State requested that the deadline for its decision as to a possible friendly
settlement be extended. The Secretariat accepted that request in a note dated
April 9 and extended the deadline to April 26, 1996.
9. On May 2, 1997,
the Secretariat again sent notes to the Government and to the petitioner,
repeating the Commission's offer to help negotiate a friendly settlement.
The petitioner accepted this offer in a response dated June 16, 1997.
10. On December 2,
1997, the State sent a new note, in which it refused to accept any responsibility
in the case and rejected the Commission's offer to mediate a friendly settlement.
The Commission then apprised the petitioner of that response.
In a letter of January 15, 1998, the petitioner asked the Commission
to resolve the case.
POSITION OF THE PARTIES
Position of the petitioner
11. The petitioner
states that he obtained the position of justice or judge of the Supreme Court
of Peru by means of a competition held by the National Council of Magistrates
and that the results were ratified by the Senate in full compliance with the
country’s 1979 Constitution, which guaranteed continued tenure in that office
until the age of 70 provided his conduct and performance were consistent with
the requirements of the position.
He alleged that his removal from the post of Supreme Court Justice
was an arbitrary act, since there had been no previous proceeding of any sort;
and that his right to due process had been violated.
He notes that on April 27, 1992, President Alberto Fujimori issued
Decree Law 25.454, whereby any amparo proceedings challenging the effects
of the Dismissal Decree was declared inadmissible.
the Decree Law, Dr. Vásquez Vejarano filed an action of amparo on May 26,
1992, to have the Dismissal Decree declared unconstitutional; and accordingly
to be reinstated in the position that he had held before the Decree went into
effect. In other words, that
he be returned to the full exercise of his duties as a Justice of Peru's Supreme
15. He states that
his amparo was declared inadmissible
at all levels of the court system, i.e., the lower court, court of appeals,
and the Supreme Court, pursuant to the aforesaid Decree Law 25,454.
The Dismissal Decree has therefore remained in effect, and any other
domestic remedies available within the Peruvian judicial system have thus
been exhausted—for the simple reasons that no other remedies exist.
16. The petitioner
claims that there was no provision--either in the 1979 Constitution or in
the new 1993 Constitution--for the Magistrates'
Tribunal of Honor, to which the State had argued that the present case could
be presented at the internal level. Also, no such Tribunal existed when his
rights were violated. The sole
appropriate means of defending those rights was through the legal system by
means of the amparo proceedings which Dr. Vásquez Vejarano had tried unsuccessfully.
17. The complaint
alleges that Dr. Vásquez Vejarano has not yet been reinstated in his position
as justice on Peru's Supreme Court.
The State's position
The State maintains that "...it has been pursuing an open policy
for restructuring the Judiciary, starting with the enactment
of Decree-Law 25.418, which instituted--on a provisional basis--the
National Emergency and Reconstruction Government. Its purported, among other
aims, to organize the Judiciary, the Tribunal of Constitutional Guarantees,
the National Magistrates' Council and the Attorney General's Office.
All of those entities were to be turned into democratic institutions
devoted to restoring peace in the country and providing the general public
with access to the proper administration of justice, eradicating for all time
the corruption pervasive in the judicial system, and seeking to prevent the
impunity that then existed for offenses committed by terrorists, drug traffickers,
and organized crime."
19. It argues that
on March 4, 1993, Peru's Supreme Court
denied the amparo presented by Dr. Vásquez Vejarano and
declared the Dismissal Decree valid on grounds that the Constitutional
Law of January 9, 1993, enacted by the Democratic Constitutional Congress,
declared valid all Decree Laws issued since April 5, 1992 (one of them being
the Dismissal Decree). The Government's
argument therefore concludes that President Alberto Fujimori--and, therefore,
the Peruvian State--acted lawfully in issuing the Dismissal Decree.
20. The State goes
on to note that it has created a Magistrates' Tribunal of Honor, thus providing
suitable recourse for reviewing any situation involving members of the Judiciary
who have been removed from their posts.
State of emergency
On April 5, 1992, President Alberto Fujimori, acting pursuant to Decree
Law 25.418 (known as the General Act for the National Emergency and Reconstruction
Government) proceeded to declare a reorganization of the Judicial Branch,
the Attorney General's Office and the Comptroller's General’s Office and proceeded
also to dissolve the National Congress and the National Magistrates' Council.
22. Inasmuch as the
justification given by the State of Peru in this case centers on the alleged
emergency situation in the country, which according to the State provided
the grounds for the Dismissal Decree as part of a series of legal and factual
events taken within that context, the Commission
considered it appropriate to refer first on a preliminary basis to
the legal provisions governing states of emergency in the light of the inter-American
system of human rights.
23. Article 27 of
the Convention establishes that:
In time of war, public danger, or other emergency that threatens the
independence or security of a State Party, it may take measures derogating
from its obligations under the present Convention to the extent and for the
period of time strictly required by the exigencies of the situation, provided
that such measures are not inconsistent with its other obligations under international
law and do not involve discrimination on the ground of race, color, sex, language,
religion, or social origin.
The foregoing provision does not authorize any suspension of the rights
established in: Article 3 (the
Right to Juridical Personality); Article 4 (the Right to Life); Article 5
(the Right to Humane Treatment); Article 6 (Freedom from Slavery); Article
9 (Freedom from Ex Post Facto Laws); Article 12 (Freedom of Conscience and
Religion); Article 17 (Rights of the Family); Article 18 (the Right to a Name);
Article 19 (the Rights of the Child); Article 10 (the Right to Nationality);
and Article 23 (the Right to Participate in Government), or of the judicial
guarantees essential for the protection of such rights.
Any State Party availing itself of the right of suspension shall immediately
inform the other States Parties, through the Secretary General of the Organization
of American States, of the provisions the application of which it has suspended,
the reasons that gave rise to the suspension, and the date set for the termination
of such suspension.
24. The Inter-American
Court of Human Rights (hereinafter called the "Court" or "Inter-American
Court"), in its Consultative Opinion Nº 8, established guiding
principles for the declaration of states of emergency: (1) the emergency must
be invoked in order to preserve democracy; and (2) the need for declaring
a state of emergency must be objectively justifiable.
In particular, the Court stated the following:
certain circumstances the suspension of guarantees may be the only way to
deal with emergency situations and, thereby, to preserve the highest values
of a democratic society. The Court cannot, however, ignore the fact that abuses
may result from the application of emergency measures not objectively justified
in the light of the requirements prescribed in Article 27 and the principles
contained in other here relevant international instruments. This has, in fact,
been the experience of our hemisphere. Therefore, given the principles upon
which the inter-American system is founded, the Court must emphasize that
the suspension of guarantees cannot be disassociated from the "effective
exercise of representative democracy" referred to in Article 3 of the
OAS Charter. The soundness of this conclusion gains special validity given
the context of the Convention, whose Preamble reaffirms the intention ( of
the American States ) " to consolidate in this hemisphere, within the
framework of democratic institutions, a system of personal liberty and social
justice based on respect for the essential rights of man." The suspension
of guarantees lacks all legitimacy whenever it is resorted to for the purpose
of undermining the democratic system. That system establishes limits that
may not be transgressed, thus ensuring that certain fundamental human rights
remain permanently protected"
Rationale and requisites for states of emergency
25. According to
Article 27 of the Convention, and the guiding principles set out by the Court,
the Commission has the responsibility to review whether there is a fundamental
rationale and requisites for a State to validly declare a state of emergency:
for representative democracy
26. According to
Article 3(d) of the Bogota Charter (1948), one of the fundamental principles
governing the Organization of American States is the requisite that member
states be politically organized in accordance with the premises of representative
democracy. Accordingly, the preamble
of the Convention reaffirms "the aim of consolidating throughout this
hemisphere, and within the framework of democratic institutions, a regime
of personal freedom and social justice founded on respect for essential human
rights". In the same spirit, Article 29 of the Convention prohibits
any interpretation of its provisions as "precluding other rights or guarantees
that are inherent in the human personality or derived from representative
democracy as a form of government", whereas Articles 15, 16, 22, and
32 also refer to democracy as a basic premise in the political organization
of the States parties.
27. The "Declaration
of Santiago de Chile", adopted in 1959 by the Fifth Consultative Meeting
of Ministers of Foreign Affairs of the OAS member states, was the first, and
thus far only, attempt by an international organization to set forth a number,
inter alia, of the characteristics of the democratic system:
The principle of the Rule of Law must be assured through the separation
of powers and review, by judicial bodies of the State, of the legality of
acts of government.
The governments of the American republics must be the result of free
The perpetuation of power, or its exercise for indeterminate periods
of time and with the manifest purpose of perpetuation, are incompatible with
the effective exercise of democracy.
The governments of the American States must maintain a regime of individual
freedom and social justice founded on respect for the fundamental rights of
individual human beings.
Human rights contemplated in the laws of the American States must be
protected by effective judicial means.
The systematic use of political proscription is contrary to American
Freedom of the press, radio, and television, and freedom of information
and expression in general, are essential conditions for the existence of a
The American States, in order to strengthen the institutions of democracy,
must cooperate with each other, to the extent that their resources permit
and in accordance with their laws, to consolidate and develop their economic
structure, and to provide just and humane living conditions for their peoples.
28. In 1991 the OAS
General Assembly adopted Resolution Nº 1080, concerning the role of the OAS
in consolidating democracy in the region, and instructed the Secretary General
of the Organization to convene immediately a meeting of the Permanent Council
in the event of any sudden or irregular interruption of the democratic process
or of the legitimate exercise of power by a democratically-elected government
in any of the Organization's member states.
The purpose of such meeting could be to determine whether an ad
hoc meeting of the Ministers of Foreign Affairs of the OAS member countries
should be convened, or even a special session of the General Assembly, within
ten days to take the appropriate decisions indicated in the OAS Charter and
international law. In this same
vein, in 1992, the General Assembly approved the Washington Protocol
which entered into force on September 25, 1997,
whereby the OAS member states, for the first time in the history of an international
organization, established the possibility of suspending a member State's participation
in the organization if its democratic government was overthrown by force.
29. Article 9 of
the OAS Charter, as amended by the Washington Protocol, now provides the following:
Member of the Organization whose democratically constituted government has
been overthrown by force may be suspended from the exercise of the right to
participate in the sessions of the General Assembly, the Meeting of Consultation,
the Councils of the Organization and the Specialized Conferences as well as
in the commissions, working groups and any other bodies established.
The power to suspend shall be exercised only when such diplomatic initiatives
undertaken by the Organization for the purpose of promoting the restoration
of representative democracy in the affected Member State have been unsuccessful;
The decision to suspend shall be adopted at a special session of the
General Assembly by an affirmative vote of two-thirds of the Member States;
The suspension shall take effect immediately following its approval by the
The suspension notwithstanding, the Organization shall endeavor to undertake
additional diplomatic initiatives to contribute to the re-establishment of
representative democracy in the affected Member State;
The Member which has been subject to suspension shall continue to fulfill
its obligations to the Organization;
The General Assembly may lift the suspension by a decision adopted
with the approval of two-thirds of the Member States;
The powers referred to in this Article shall be exercised in accordance with
30. Very early in
its history, the Commission recognized the importance of preserving the Rule
of Law and constitutional provisions when states of emergency were declared.
As early as 1968, the Commission held that, as a fundamental requisite,
states of emergency may be declared only in order to preserve democracy:
suspension of constitutional guarantees or a state of siege is compatible
with representative, democratic governance only if declared under the following
There is no restriction on the Rule of Law or on constitutional provisions,
and neither the powers of the branches of government nor the functions of
the comptroller have been altered.
31. The Inter-American
Court has also held that "reference has already been made to the Rule
of Law, representative democracy, and the regime of individual freedom and
it has been observed that they are inherent in the inter-American system,
particularly the provisions for the protection of human rights contained in
32. Based on the
foregoing, observance of the conditions necessary to maintain the political
organization of states in accordance with the principles of representative
democracy constitutes a fundamental requisite or premise for the legitimacy
of a state of emergency.
for declaring a state of emergency
33. According to
the Inter-American Court:
starting point for any legally sound analysis of Article 27 and the function
it performs is the fact that it is a provision for exceptional situations
only. It applies solely “in time of war, public danger, or other emergency
that threatens the independence or security of a State Party”. And even then,
it permits the suspension of certain rights and freedoms only “to the extent
and for the period of time strictly required by the exigencies of the situation.”
Such measures must also not violate the State Party's other international
legal obligations, nor may they involve discrimination on the ground of race,
color, sex, language, religion or social origin.
In accordance with Article 27 of the Convention for an emergency to
be considered real, an extremely grave situation must exist in the country,
such as war, public danger, or other emergency that threatens the independence
or security of the State party. The
Commission has determined that the imposition of a state of emergency "can
be justified only by real threats to public order or the security of the State".
35. Time limitation.
This requisite pertains to the duration of the suspension, which, under
Article 27(1) of the Convention, must only be for a strictly limited time
as required by the exigencies of the situation.
The Commission has stated in this regard that an even more serious
matter is a situation in which a state of emergency is decreed for an indefinite
or prolonged period of time, particularly when sweeping powers are conferred
on the Head of State, including abstention by the Judicial Branch with respect
to measures decreed by the Executive Branch, which in certain cases can amount
to a rejection of the very existence of the Rule of Law.
Article 27(1) of the Convention provides that the suspension of guarantees
may be declared only to the extent strictly required by the exigencies of
the situation. This requisite
pertains to the prohibition of unnecessary suspension of certain rights, the
imposition of greater restrictions than are necessary, and the unnecessary
extension of the suspension to areas not affected by the emergency.
to Article 27(1) of the Convention, and consistent with Articles 1 and 24,
the suspension of guarantees may not involve discrimination of any kind against
a person or group of persons.
with other international obligations. The suspension of particular guarantees
must be compatible with the obligations established in other international
instruments ratified by the country.
Under Article 27(3) of the Convention, the other States parties to the Convention
must be notified immediately, through the Secretary-General of the OAS, that
a state of emergency has been declared.
Rights that cannot be suspended
40. Inasmuch as the
mechanism for protecting human rights in the inter-American system has been
conceived for a hemisphere of democratic countries, the proper functioning
of the different branches of government, such as the Judiciary,
is essential in preventing abuses of power by other branches of government.
In determining which right may be suspended during a state of emergency,
the Inter-American Court has affirmed that:
is clear that no right guaranteed in the Convention may be suspended unless
very strict conditions –those laid down in Article 27(1)—are met.
Moreover, even when these conditions are satisfied, Article 27(2) provides
that certain categories of rights may not be suspended under any circumstances.
Hence, rather than adopting a philosophy that favors the suspension
of rights, the Convention establishes
the contrary principle, namely, that all rights are to be guaranteed
and enforced unless very special circumstances justify the suspension of some,
and that some rights may never be suspended, however serious the emergency.
41. The guarantees
that cannot be suspended by the State, however grave the emergency might be,
are found mainly in Article 27(2) of the Convention, and are those contemplated
under Article 3 (Right to Judicial Personality); Article 4 (Right to Life);
Article 5 (Right to Humane Treatment; Article 6 (Freedom from Slavery); Article
9 (Freedom from Ex-post Facto Laws); Article 12 (Freedom of Conscience and
Religion); Article 17 (Rights of the Family); Article 18 (Right to a Name);
Article 19 (Rights of the Child); Article 20 (Right to Nationality); and Article
23 (Right to Participate in Government).
under Article 27(1) of the Convention, the suspension of guarantees must be
consistent with the obligations established in other international instruments
ratified by the country.
43. The Inter-American
Court has affirmed that the suspension of guarantees may not result in the
suspension of the rule of law or legality:
suspension of guarantees also constitutes an emergency
situation, in which it is lawful for a
government to subject rights and freedoms to certain restrictive measures
that, under normal circumstances, would be prohibited or more strictly controlled.
This does not mean, however,
that the suspension of guarantees implies a temporary suspension of the rule
of law, nor does it authorize those in power to act in disregard of the principle
of legality by which they are bound at all times.
When guarantees are suspended, some legal restraints applicable to
the acts of public authorities may differ from those in effect under normal
conditions. These restraints
may not be considered to be non-existent, however,
nor can the government be deemed thereby to have acquired absolute
powers that go beyond the circumstances
justifying the grant of such exceptional legal measures.
The Court has already noted, in this connection, that there exists
an inseparable bond between the principle of legality, democratic institutions
and the rule of law. (The Word
"Laws" in Article 30 of the American Convention on Human
Rights, Advisory Opinion OC-6/86
of May 9, 1986. Series A Nº 6, paragraph. 32).
is the function of the judicial branch to protect legality and the rule of
law during a state of emergency.
44. Following this
reasoning, "in a serious emergency
situation it is lawful to temporarily suspend certain rights and freedoms whose free exercise must, under
normal circumstances, be respected and guaranteed by the State. However, since
not all of these rights and freedoms may be suspended even temporarily, it
is imperative that ` the judicial guarantees essential for (their) protection’
remain in force.”
It is also essential for the judicial branch to be independent, inasmuch
as independence is the fundamental pillar of the Rule of Law and the protection
of human rights. In that regard, the Court has affirmed that recourse to habeas
corpus and the Action of Amparo are judicial guarantees for the protection
of rights that cannot be suspended and that "these judicial remedies
have the character of being essential to ensure the protection of those rights.”
It is the function of the judiciary to protect legality and the rule
of law during a state of emergency.
45. An independent
and impartial judiciary serves as a controlling factor during a state of emergency. According to the Court, habeas
corpus and the Action of Amparo
are two remedies that are essential to maintaining legality during an exceptional
state of emergency. The Court
a system governed by the rule of law it is entirely in order for an autonomous
and independent judicial order to exercise control over the lawfulness of
such measures, by verifying, for example, whether a detention based on the
suspension of personal freedom complies with the legislation authorized by
the state of emergency. In this context, habeas corpus acquires a new dimension of
As stated previously, the right to an independent judiciary set forth
in Articles 8 and 25 of the Convention is essential for the enjoyment of human
rights; it may not be suspended even during a state of emergency; member states
of the OAS and states parties to the Convention are obligated to respect and
guarantee it for every person with their jurisdiction free from any kind of
Guarantees that cannot be suspended
The Inter-American Court of Human Rights has indicated that "guarantees
are designed to protect, to ensure or to assert the entitlement to a right
or the exercise thereof. The States Parties not only have the obligation to
recognize and to respect the rights and freedoms of all persons, they also
have the obligation to protect and ensure the exercise of such rights and
freedoms by means of the respective guarantees (Article 1.1), that is, through
suitable measures that will in all circumstances ensure the effectiveness
of these rights and freedoms.”
apart from the rights mentioned in the preceding paragraph, the final portion
of Article 27(2) of the Convention also prohibits the suspension of judicial
guarantees essential for the protection of rights that cannot be suspended,
because the Court expressed the view that:
it must also be understood that the declaration of a state of emergency--whatever
its breadth or denomination in internal law--cannot entail the suppression
or ineffectiveness of the judicial guarantees that the Convention requires
the States Parties to establish for the protection of the rights not subject
to derogation or suspension by the state of emergency.
49. The Inter-American
Court of Human Rights has maintained that:
judicial guarantees essential for the protection of the human rights not subject
to derogation, according to Article 27(2) of the Convention, are those to
which the Convention expressly refers in Articles 7(6) and 25(1), considered
within the framework and the principles of Article 8, and also those necessary
to the preservation of the rule of law, even during the state of exception
that results from the suspension of guarantees.
50. It should be
noted that in order to reach the conclusion concerning the non-suspendable
character of guarantees for preservation of the Rule of Law, the Court first
analyzed the wording of Article 29(c) of the Convention, and concluded that:
understood, “the guarantees ... derived from representative democracy as a
form of government”, referred to in Article 29(c), imply not only a particular
political system against which it is unlawful to rebel …, but the need that
it be supported by the judicial guarantees essential to ensure the legality
of the measures taken in a state of emergency, in order to preserve the rule
of law... 
51. In conclusion,
on the basis of previous decisions handed down by the Court, the judicial
guarantees that may not be suspended during a state of emergency are habeas
corpus, Amparo, remedies to
preserve the rule of law and, in general, all other judicial procedures that
ordinarily would be appropriate for protecting the full exercise of rights
that may not be suspended under Article 27(2) of the Convention, which even
in a state of emergency, must always be implemented.
Controls over states of emergency
The Commission considers it extremely important to stress that fulfillment
of the premises and requisites for the declaration of states of emergency
should always be subject to the judicial control of national authorities as
well as the competent international organizations.
Internal judicial controls
Acts in connection with a state of emergency, normally performed by
the Executive Branch, do not constitute "political questions" exempt
from judicial review. On the
contrary, such acts by their very nature are subject to judicial review.
The Constitutional Court of Colombia in a judgment rendered on May
affirmed that constitutional provisions concerning states of emergency constitute
a "limit and check on the abuse of discretionary authority".
These provisions confer discretionary authority, in exceptional situations,
and that in the public interest order should be restored, and alternative
courses of action chosen. Through
judicial control, the possibility of controlling the Executive Branch by means
of the Political Charter of the State was affirmed.
One of the limits on the discretionary authority of the President of
the Republic to decree states of emergency is, in point of fact, the judicial
control exercised by the Constitutional Court.
54. The Supreme Court
of Justice of Venezuela, in its judgment of March 11, 1993,
ruled on a presidential decree of November 27, 1992, whereby the Executive
suspended certain constitutional guarantees, and held that decrees suspending
guarantees were subject to judicial review to determine their constitutionality,
indicating expressly that apart from the objective or formal review of the
official's authority, the proper use of that authority by the Executive Branch,
adherence to previously established procedures and the legality of the act
itself, the content of the decree suspending guarantees could also itself
be reviewed to determine whether it is reasonable, and whether the circumstances
motivating it truly existed. The
Venezuelan High Court concluded that the fact that it was an act of government
did not confer jurisdictional immunity upon the decree suspending guarantees,
and that the discretionary authority of the Executive Branch refers solely
to its evaluation of the gravity of the circumstances and the advisability
of adopting the measure in question.
55. Although in general
the "margin of appreciation" is left to the states themselves to
determine the need for declaring a state of emergency, inasmuch as they have
direct and immediate knowledge of the factual circumstances in the country,
such margin of appreciation is not unlimited.
The Commission has the duty to evaluate whether the circumstances that
caused the Peruvian government to declare an emergency in April 1992 fit in
with the conventional meaning of the terms “war, public danger”or “other emergency
that threatens the independence or security of the State party”.
The Commission must evaluate for instance whether Peru exceeded “the
limited extent required by the exigencies of the situation”.
Accordingly, the margin of appreciation at the internal level goes
hand in hand with inter-American supervision.
The Commission must properly assess such relevant factors as the nature
of the rights affected by the suspension, the circumstances behind the state
of emergency and its duration.
56. It should also
be noted that other OAS bodies also conduct a review of an international nature.
In response to the measures adopted, on April 5, 1992, the OAS Permanent
Council convened an ad hoc meeting
of the Ministers of Foreign Affairs, in accordance with General Assembly Resolution
AG/RES. 1080 (XXI-0-91), referred to in paragraph 28 above, and in accordance
with the democratic principles upon which the Organization is founded.
This meeting was held in Washington, D.C., on April 13, 1992, and it
was resolved "to make an appeal for the urgent re-establishment of democratic
institutional order in Peru and the cessation of all actions affecting the
exercise of human rights, avoiding the adoption of new measures that might
continue to aggravate the situation".
In the same resolution, the Ministers asked Peru to formally invite
the Commission to visit the country to perform an on-site inspection of its
human rights situation. The Commission
visited Peru from May 17 to 21, 1993.
ANALYSIS OF THE CASE SUBMITTED
Competence and admissibility
The competence of the Commission to hear this case, and the admissibility
of the petition under review, have already
been established in Admissibility Report Nº 46/97 approved
by the Commission during its 97th regular session, and forwarded to the parties
on November 4, 1997.
Context of the events
On April 5, 1992, as noted earlier, President Alberto Fujimori, acting
in accordance with Decree Law 25.418 (General Act for the National Emergency
and Reconstruction Government) declared a "reorganization" of the
Judiciary, the Attorney General's
Office and the Comptroller General's Office and also dissolved the National
Congress and the National Magistrates' Council.
59. Pursuant to that
Decree Law, President Fujimori embarked on what he termed "the organization
of the Judiciary, the Tribunal of Constitutional Guarantees, the National
Magistrates' Council and the Attorney General's Office, in order to turn them
into democratic institutions to restore peace in the country, thus providing
the general public with access to the proper administration of justice, eradicating
for all time the corruption prevailing in the judicial system, and seeking
to prevent impunity for offenses perpetrated by terrorists, drug traffickers,
and organized crime." 
Accordingly, steps were taken to dismember the Judiciary by eliminating
institutions and removing a large number of judges at the national level.
These actions elicited the following observation:
the Peruvian government did not openly abolish the independence of the judiciary,
we believe that the practical effects of these measures, viewed as a whole
within the applicable parameters, have been to seriously erode, if not eliminate,
the institutional independence of the judicial branch.
61. As part of those
actions, and with no other basis than the aforementioned Decree Law, the National
Emergency and Reconstruction Government issued the decree dismissing 13 Supreme
Court justices--Dr. Vásquez Vejarano among them--who had become justices or
magistrates of that Court in accordance with the procedure established in
Article 245 of the Peruvian Constitution of 1979.
According to that provision, Supreme Court justices were appointed
by the President of the Republic, on the recommendation of the National Magistrates'
Council, and their appointment was ratified by the Senate. According to Article
242 of the Constitution, the Peruvian State guaranteed Dr. Vásquez Vejarano’s
tenure in that office until the age of 70, and that he could not be removed
from his post provided his conduct and performance were acceptable and beyond
on April 25, 1992, President Fujimori issued Decree Law 25,447 whereby the
Supreme Court was reorganized, and 13 temporary Justices appointed;
and on April 28, 1992 Decree Law 25.454 was issued, establishing the inadmissibility
of any action of amparo that challenged the legality of the Dismissal Decree.
63. Both parties
agree that Dr. Vásquez Vejarano served as a member of Peru's Supreme Court
of Justice; and that he was removed from that office by the Dismissal Decree.
They further agree that Decree-Law 25.454 deprived the magistrate of
the means of asserting his rights by means of amparo, which was in fact his
only judicial remedy.
The alleged emergency affecting Peru
64. As mentioned
earlier, the Peruvian state has centered its defense in the present case on
an alleged "emergency" in the country, which, it maintains, justified
the measures taken on and after April 5, 1992, including the Dismissal Decree.
The causes invoked by the Peruvian Executive Branch do not represent
a "war, public danger or other emergency" threatening in an imminent
manner the independence or security of that country.
In his "Manifesto"
to the Nation on April 5, 1992, President Fujimori cited what he considered
to be the essential underlying causes for the actions initiated from that
and corruption, and the failure by a number of fundamental institutions, such
as the Legislative and Judicial Branches, to identify with the larger national
interest, are obstructions to government action in pursuit of national reconstruction
President of the Republic, I have directly observed all of these anomalies
and have considered it my responsibility to assume an attitude of exception
in order to streamline this national reconstruction process.
Accordingly, I have decided to take the following extremely important
The Commission is of the view that the corruption and chaos of the
Legislative and Judicial Branches are not sufficient grounds such as "war,
danger, or other emergency threatening the independence or security of the
State", to justify the declaration of a state of emergency, let alone
the performance of acts to eliminate or strip those branches, for all practical
purposes, of their institutional authority, since the alleged cause does not
fulfill the necessary conditions of legitimacy, reality, imminence and exceptional
gravity. The Commission noted,
however, that the solution to a country's institutional problems should be
sought within the parameters of representative democracy and constitutional
order. The Commission reiterates the affirmation by the Inter-American
Court of Human Rights to the effect that the Rule of Law, representative democracy,
and respect for individual freedom are inherent in the inter-American system,
particularly with respect to the protection of human rights under the Convention.
It is apparent to the Commission that the acts in question, which included
the dismemberment of the Peruvian Judiciary as well as the dissolution of
the National Congress, amounted to a flagrant violation of the Rule of Law
by the Peruvian Executive, breaching the most elementary principles of representative
democracy, respect of which is a fundamental for the validity of the state
67. In that sense,
the Commission emphatically reiterates that the suspension of constitutional
guarantees through the declaration of a state of siege or other similar action
is only compatible with a system of representative, democratic government,
if the measures taken do not restrict the Rule of Law or application of the
Constitution, and do not alter the balance of power among the branches of
government or the system of checks and balances.
Based on the foregoing, the Commission concludes that the Executive
used the pretext of a supposed emergency situation to eliminate, in practice,
the Judicial and Legislative Branches, violating democratic institutional
order and the Rule of Law in the country.
69. The Commission
is also of the view that, in taking this course of action, the Peruvian Executive
Branch committed what is known in jurisprudence as "misuse of power".
The Commission has noted, to quote an eminent legal expert, that:
of power occurs when an administrative agent acting within its purview and
in accordance with the formalities required by law, uses its power in cases,
for motives, and for purposes distinct from those envisioned in conferring
this power upon it. Misuse of
power is an abuse of office, an abuse of the law.
An administrative act may have been performed by the official with
authority to perform it and with all appearances of regularity, but still,
the action this official had the discretionary right to perform, stricto
sensu, may be tainted with illegality if the perpetrator of this action
has used his powers for a purpose distinct from that envisaged when those
powers were conferred upon him, or to use the wording found in case law, for
a purpose distinct from the general interest or the good of the service.
the invocation by the Executive Branch of a supposed emergency situation,
which in reality did not exist, as a pretext for eliminating the independence
of the Judicial and Legislative Branches, in order to subject them to the
Executive Branch, constitutes a usurpation or misuse of power.
The Inter-American Court has held that
it is improper to suspend guarantees without complying with the conditions
referred to in the preceding paragraph, it follows that the specific measures
applicable to the rights or freedoms that have been suspended may also not
violate these general principles. Such violation would occur, for example,
if the measures taken infringed the legal regime of the state of emergency,
if they lasted longer than the time limit specified, if they were manifestly
irrational, unnecessary or disproportionate, or if, in adopting them, there
was a misuse or abuse of power.
71. The Commission
considers it important to highlight, by way of illustration, that in a case
similar to the present one, in which Greek military officials invoked a state
of emergency to contend with the supposed danger of communism, a crisis of
constitutional government and a crisis in public order threatening the life
of the nation as reasons for a public emergency, the European Commission on
Human Rights, basing itself on Article 15 of the European Convention on Human
Rights, similar in content to Article 27 of our Convention, rejected the government's
allegation inasmuch as there was no evidence of any real situation threatening
the life of the Greek nation and military officials did not have the right
to invoke a state of emergency to destroy Greek democracy, but exclusively
to preserve it.
The Commission also notes that the aforesaid Decree Law 25,418 of April
6, 1992, whereby the National Emergency and Reconstruction Government was
created, and the judiciary, the Attorney General’s Office, and the Comptroller
General’s Office were reorganized and the National Congress and the National
Council of Magistrates dissolved, far from suspending the guarantees established
in the Convention, expressly declared (Article 6) that the “National Emergency
and Reconstruction Government ratifies and respects the Treaties, Agreements,
Conventions, Accords, Contracts, and other international commitments in force,
entered into by the Peruvian State”.
Consequently, the Peruvian State certainly did not notify the other
member countries of the OAS through the Secretary General that certain guarantees
established in the Convention had been suspended and that Peru therefore had
not fulfilled the formal requirement for declaring a state of emergency.
73. As noted earlier,
the Commission now turns its attention to analyzing the violations against
rights established in the Convention that the petitioner accuses the Peruvian
State of having committed:
The right to judicial guarantees
Article 8 of the American Convention on Human Rights
establishes the following:
Every person has the right to a hearing, with due guarantees and within
a reasonable time, by a competent, independent and impartial tribunal, previously
established by law, in the substantiation of any accusation of a criminal
nature made against him or for the determination of his rights and obligations
of a civil, labor, fiscal or any other nature.
75. As established
in Article 242 of the Peruvian Constitution of 1979--the one in effect in
1992, the State guaranteed that Supreme Court Justices would remain in service
until they reached seventy years of age, and that they could not be removed
from their posts so long as their conduct and qualifications were appropriate
for the performance of their duties.
In addition, Article 248 of the Peruvian Constitution established that
"The dismissal of the judges calls for a resolution, subject to administrative
proceedings,” while Article 249 thereof stated that:
National Council of Magistrates hears accusations concerning the performance
of Supreme Court Justices; assesses them; and forwards them to the Solicitor
General’s Office if an offense is presumed; and to the Supreme Court itself
for the application of disciplinary measures.
With regard to the immovability of the magistrates, the Commission
has affirmed in the past, in a case concerning Argentina, but whose reasoning
is perfectly applicable to the present case, that:
Argentine constitutional system--like that of other democracies--upholds the
principle of the irremovability of judges. This system creates stability on
the bench; if a judge is to be removed, then such removal must be done in
strict accordance with the procedure established in the Constitution, as a
safeguard of the democratic system of government and the rule of law. The
principle is based on the very special nature of the function of the courts
and to guarantee the independence of the Judiciary vis-à-vis the other branches
of government and political-electoral changes.
The provisions cited above make it clear that the Dismissal Decree
violated Dr. Vásquez Vejarano's right to due process, since it was not issued
in accordance with any stated procedure.
Such absolute absence of procedural action implied that
Dr. Vásquez Vejarano was not accused of any charge; no charges of misconduct
or any other failings were brought against him; he did not have his day in
court, nor was he granted time to present evidence or prepare his defense.
He had no access to the contents of a possible file or record; he was not
judged by his natural judge, nor was he given the right to be judged by an
impartial and independent entity.
The Commission has also established that "The removal of magistrates
by order of the competent body and in accordance with established constitutional
procedure is one thing, but the "dismissal of a magistrate" by an
illegitimate authority without competence, with utter disregard for the procedure
prescribed by the Constitution, is quite another.”
79. The Commission
reiterates the extreme importance of the Judicial Branch-- not only its formal
existence, but also its effective independence and impartiality in accordance
with the right to the judicial guarantees established in Article 8 of the
Convention--for the preservation of democracy and the Rule of Law, and the
effective protection of human rights.
In its 1993 Report on Peru, the Commission affirmed that:
IACHR must point out that the procedure followed by the Government subsequent
to April 5, 1992, seriously affects the independence of the Judiciary. Any
reform needed to correct corruption and inefficiency, should have been carried
out in such a way that the basic rules of due process and the complete separation
of powers were fully respected.
the Commission's Chairman told the high-ranking authorities of the Peruvian
Government, it would have been preferable to continue the cases under way
against magistrates who were being investigated and, after guaranteeing their
right to self defense, to have adopted the appropriate decision, rather than
the other course of action that was chosen, which was to dismiss them first
and then analyze requests for reconsideration later.
80. Based on the
foregoing considerations, the Commission concludes that the removal of Justice
Vásquez Vejarano, together with 12 other Justices of the Supreme Court, took
place outside of the procedures established to that effect and without the
most basic guarantees of due process; and it constituted a violation by the
Peruvian State of the right to due process established in Article 8 of the
Convention. More importantly,
this violated the right to due process and the right of all other people of
Peru to an independent and impartial judiciary.
This violation is particularly grave in that the Court has indicated
the need for “the active involvement of an independent and impartial judicial
body having the power to pass on the lawfulness of measures adopted in a state
To invoke a state of emergency in order to destroy the independence
of the judiciary is a violation of the Rule of Law, and renders defenseless
the victims of illegal acts perpetrated against them.
The right to judicial protection
81. Article 25 of
the Convention establishes the following:
Everyone has the right to simple and prompt recourse, or any other
effective recourse, to a competent court or
tribunal for protection against acts that violate the fundamental rights
recognized by the constitution or laws of the state concerned or by the Convention,
even though such violation may have been committed by persons acting in the
course of their official duties.
82. The petitioner
alleges that Decree Law 25,454--which established the inadmissibility of the
amparo as a means of challenging the effects produced by the Dismissal Decree
that Peru denied Dr. Vásquez Vejarano access to a simple and prompt remedy
that would have protected him from the act of removal, which--as has already
been established--violated his right to the judicial guarantees contemplated
in Article 25 of the Convention and in flagrant violation of the case law
of the Inter-American Court, which has held, on this point, that "the
suspension of (...) habeas corpus or of amparo
in emergency situations cannot be deemed to be compatible with the international
obligations imposed on these States by the Convention."
The Commission emphasizes that, notwithstanding the existence of Decree
Law 25.454, cited in the preceding paragraph, on May 26 of 1992, Dr. Vásquez
Vejarano presented a writ of amparo requesting that
the Dismissal Decree be declared inapplicable and that he therefore be reinstated
in the position which he held before the Decree entered into effect--in other
words, to the full exercise of his functions as a Justice of Peru's Supreme
Court. His amparo, however, was declared inadmissible, based
precisely on the provision of the said Decree Law 25,454 which declared
the action of amparo inadmissible for challenging the effects of the Dismissal Decree.
The Commission has maintained that:
the first place, the logic of every judicial remedy--including that of Article
25--indicates that the deciding body must specifically establish the truth
or error of the claimant’s allegation. The claimant resorts to the judicial
body alleging the truth of a violation of his rights, and the body in question,
after a proceeding involving evidence and discussion of the allegation, must
decide whether the claim is valid or unfounded. Otherwise the judicial remedy
would become inconclusive.
the second place, in addition to being inconclusive, the judicial remedy would
be patently ineffective. This is because, by not allowing recognition of the
violation of rights, in the event such violation had been confirmed, it would
not be apt for protecting the individual whose right had been impaired or
for providing him suitable redress.
right to effective judicial protection provided for in Article 25 is not exhausted
by free access to judicial recourse. The intervening body must reach a reasoned
conclusion on the claim’s merits, establishing the appropriateness or inappropriateness
of the legal claim that, precisely, gives rise to the judicial recourse. Moreover,
that final decision is the basis for and origin of the right to legal recourse
recognized by the American Convention in Article 25, which must also be covered
by indispensable individual guarantees and state obligations (Articles 8 and
85. The Commission
has established in the case of the Argentine government’s de
facto removal of a magistrate from office without legal procedure that
the political question doctrine did not apply when it was invoked by a
government that was not constitutional because the doctrine is premised on
the separation of constitutional powers. The Commission concluded therefore
that on the basis of that doctrine the State had unduly deprived the petitioner
of his right to have a decision on the merits of his claim.
In view of the foregoing, the Commission notes that the decisions dismissing
Dr. Vásquez writ of amparo were
not based on the merits of the matter, in other words on the inapplicability
of the Dismissal Decree, because of its allegedly unconstitutional nature,
and on reinstating the former incumbent to his position but declared it inadmissible
on the basis of the Decree Law in question that declared the Remedy of Amparo inadmissible to challenge the Dismissal Decree.
87. The State, for
its part, has alleged that by creating the Magistrates' Tribunal of Honor,
it had provided a suitable procedure for challenging the situation in question.
88. The Commission
was given an opportunity to examine both the procedure and the structure of
that body in connection with the analysis of the admissibility of this case.
In the report, the Commission concluded that the procedure was neither
adequate nor effective, and did not meet the minimal requirements of due process,
in terms of procedure, and its decision.
Accordingly, it did not represent a remedy of the kind required by
Article 25 of the Convention.
89. Moreover, the
above mentioned procedure of the Magistrates' Tribunal of Honor was clearly
political, inasmuch as, when the Tribunal issued its ruling, the decision
was sent to the Democratically Elected and Constitutional Congress, in plenary
session, for a vote. In that
respect, it must be noted that the right to the judicial protection contemplated
in Article 25 of the Convention means that legal recourse must be brought
before, and decided upon by, a judicial body--not a political body.
The Inter-American Court of Human Rights has established that:
guarantees must be not only essential but also judicial.
The expression “judicial” can only refer to those judicial remedies
that are truly capable of protecting those rights.
Implicit in this conception is the active involvement of an independent
and impartial judicial body having the power to pass on the lawfulness of
measures adopted in a state of emergency.
On this point, the Commission would like to recall the opinion of the
Inter-American Court of Human Rights concerning the States' compliance with
the binding obligation contained in Article 25 of the Convention. The Court noted in that context that “…for such a remedy to
exist, it is not sufficient that it be provided for by the Constitution or
by law or that it be formally recognized, but rather it must be truly effective
in establishing whether there has been a violation of human rights and in
providing redress. A remedy which proves illusory because of the general conditions
prevailing in the country, or even in the particular circumstances of a given
case, cannot be considered effective. That could be the case, for example,
when practice has shown its ineffectiveness: when the Judicial Power lacks
the necessary independence to render impartial decisions or the means to carry
out its judgments…”. 
91. In view of foregoing,
the Commission considers that the only prompt and simple recourse available
to Dr. Vásquez Vejarano for challenging the effects of the Dismissal Decree
was indeed the Action of Amparo.
For that reason, the Commission concludes that by eliminating the possibility
of using such remedy based on removing the possibility of obtaining judgements
on the merits, the Peruvian State flagrantly violated the guarantee established
in Article 25 of the American Convention.
92. Article 23 of
the Convention provides the following:
Every citizen shall enjoy the following rights and opportunities:
to take part in the conduct of public affairs, directly or through
freely chosen representatives;
to vote and to be elected in genuine periodic elections, which shall
be by universal and equal suffrage and by secret ballot that guarantees the
free expression of the will of the voters; and
to have access, under general conditions of equality, to the public
service of his country.
The law may regulate the exercise of the rights and opportunities referred
to in the preceding paragraph only on the basis of age, nationality, residence,
language, education, civil and mental capacity, or sentencing by a competent
court in criminal proceedings.
93. The Commission
has already analyzed the matter of political rights, and has affirmed that:
participation by citizens in government, which is protected by Article 20
of the Declaration (similar in content to Article 23 of the Convention) forms
the basis and underpinning of democracy, which cannot exist without it, because
the right to govern rests with the people, who alone are empowered to decide
their own and immediate destiny and to designate their legitimate representatives.
the form of political life, nor institutional changes, nor the exercise of
power, nor the control of that exercise can be effective without representative
right to political participation allows for a great variety of forms of government.
There are many constitutional alternatives in terms of the degree of
centralization of state powers or elections and the separation of powers among
the organs responsible for the exercise of those powers.
Nonetheless, a democratic structure is an essential element for the
establishment of a political society where human rights can be fully realized.
The Commission is of the view that the right to form part of the Judiciary
of a State Party to the Convention, under conditions of equality, is a right
protected by the aforesaid Article 23(1)(c).
This means that any person meeting the pre-established conditions for
such an office, such as age, nationality, professional qualifications, etc.,
is entitled, on conditions of equality, to be appointed to such office, inasmuch
as no-one can be discriminated against in the selection process by reason
of race, color, sex, language, religion, political or other views, national
or social origin, economic status, birth, or any other social condition.
95. On the matter
of the appointment and removal of judges, the Commission has also stated that:
systems recognize the so-called "delegated powers" of the branches
of government that is a product of their classic three-way separation. The
appointment and removal of magistrates by the Legislature, under the conditions
stipulated in the Constitution, is one of those powers
system creates stability on the bench; if a judge is to be removed, then such
removal must be done in strict accordance with the procedure established in
the Constitution, as a safeguard of the democratic system of government and
the rule of law. The principle is based on the very special nature of the
function of the courts and to guarantee the independence of the Judiciary
vis-à-vis the other branches of government and political-electoral changes.
Similarly, in the case known as the "Jueces
de Chiriqui", concerning the dismissal of several Panamanian judges,
the Commission affirmed that "the importance of these acts is augmented
by the need for all states to maintain an independent judiciary that is able
to provide guarantees ensuring the enjoyment of the rights as established
in the Convention",
and determined that such events constituted a violation of the right to have
access, under general conditions of equality, to the public service of one's
country, established in Article 23(a)(c) of the Convention.
Based on the foregoing, the Commission concludes that the removal of
Dr. Vásquez Vejarano from his position as Justice on the Supreme Court of
Peru--the supreme Peruvian judicial authority--without regard to the requisites
and procedures legally established to that effect, constituted a violation
by the Peruvian State of Dr. Vásquez Vejarano’s right to have access, under
general conditions of equality, to the public service of his country as set
out in Article 23(1)(c) of the Convention.
Principle of legality and freedom from ex
post facto laws
Article 9 of the Convention establishes the following precept:
one shall be convicted of any act or omission that did not constitute a criminal
offense, under the applicable law, at the time it was committed.
A heavier penalty shall not be imposed than the one that was applicable
at the time the criminal offense was committed.
If subsequent to the commission of the offense the law provides for
the imposition of a lighter punishment, the guilty person shall benefit therefrom.
The provisions of Article 9 may be construed to be analogous to similar
legal situations. For instance,
Article 29(c) of the Convention provides that no Article of the Convention
may be interpreted to exclude other rights and guarantees that are inherent
to the individual or that are derived from a democratic form of government.
More importantly, the right to the principle of legality and freedom
from ex post facto laws covered
in Article 9 of the Convention is particularly important in the sense that
Article 27(c) of the Convention states expressly that this right may not be
suspended even if the country is in a state of emergency.
On this basis, the right guaranteed in Article 9 applies to any type
of sanction adversely affecting the rights of the individual since their ultimate
aim is to provide security to the individual
in the sense of knowing what kind of behavior is legal and what kind
is not so that the legal consequences of his actions can be anticipated.
In this case, Dr. Vásquez was removed from office without having engaged
in inappropriate conduct inconsistent with his position, which pursuant to
Article 242(2) of the Peruvian Constitution were the only grounds for which
he could be dismissed. Accordingly, he was not removed on legitimate ground
provided for in the law and therefore the action constituted a violation on
the part of the Peruvian State against Dr. Vásquez of his right to the principles
of legality and freedom from ex post
facto laws as provided in Article 9 of the Convention.
Right to equal protection under the law
101. Although the
petitioner did not denounce the contested actions as a violation of the right
to equality before the law, the Commission, by virtue of the authorities vested
in it, has endeavored to determine whether such a violation has occurred,
inasmuch as it considers that certain aspects of the contested actions could
lead to such a conclusion.
102. In this regard,
Article 24 of the Convention provides the following:
persons are equal before the law. Consequently, they are entitled, without
discrimination, to equal protection of the law.
103. Similarly, Article
1 of the Convention provides that:
The States Parties to this Convention undertake to respect the rights
and freedoms recognized herein and to ensure to all persons subject to their
jurisdiction the free and full exercise of those rights and freedoms, without
any discrimination for reasons of race, color, sex, language, religion, political
or other opinion, national or social origin, economic status, birth, or any
other social condition.
104. Based on an interpretation
of the two Articles reproduced above, any person subject to the jurisdiction
of a State Party to the Convention, has the right to equal protection before
the law, without any discrimination whatever by reason of race, color, sex,
language, religion, political or other views, national or social origin, economic
status, birth, or any other social condition.
105. According to
Article 295 of the Peruvian Constitution of 1979, which was in force in 1992,
the Action of Amparo is intended to protect the constitutional rights of all
inhabitants of Peru against the violations or threats of any authority, official,
In this case, the aforementioned Decree Law 25.454 provided that the
Action of Amparo directly or indirectly
challenging the application of the Dismissal Decree or Decree Laws Nos. 25.442
and 25.446 was invalid.
Accordingly, a de facto situation was created in which all the inhabitants of Peru
had access to the Action of Amparo
for the protection of their constitutional rights except the 147 magistrates,
judges, and prosecutors, who had been removed from office by the aforementioned
decree laws. This created an
evident situation of inequality for these 147 persons with respect to all
other inhabitants of Peru, and also amounted to discriminatory treatment,
inasmuch as 13 of the 25 justices on the Court were dismissed.
107. In this regard,
the Inter-American Court of Human Rights has affirmed the following:
no discrimination exists if the difference in treatment has a legitimate purpose
and if it does not lead to situations which are contrary to justice, to reason
or to the nature of things. It follows that there would be no discrimination
in differences in treatment of individuals by a state when the classifications
selected are based on substantial factual differences and there exists a reasonable
relationship of proportionality between these differences and the aims of
the legal rule under review. These aims may not be unjust or unreasonable,
that is, they may not be arbitrary, capricious, despotic or in conflict with
the essential oneness and dignity of humankind.
As evident in the opinion of the Court, while it is indeed possible
for differences to exist as to the State's treatment of an individual, such
differences must be based on legitimate grounds, that is to say, based on
reason, justice, or the nature of the situation.
However, in the present case, the Commission finds no legitimate reason
for depriving Dr. Vásquez Vejarano, together with the other 12 Justices, of
recourse to the Action of Amparo
as a means of defending their constitutional rights.
the Commission concludes that the Peruvian State, in issuing the aforementioned
Decree Law 25.454, which established the inadmissibility of Actions of Amparo
for the purpose of contesting the application of the aforementioned Decree
Laws, violated, to the detriment of Dr. Vásquez Vejarano, the right under
Article 24 of the Convention to be treated equally and to receive equal and
non-discriminatory protection under the law.
ACTIONS SUBSEQUENT TO REPORT 57/98
The Commission approved Report 57/98 (Article 50) on the present case
on December 9, 1998 at its 101st session. The Report, together with the Commission’s recommendations,
were forwarded to the State of Peru on December 21, 1998, and the State was
granted a period of two months, from the date on which the Report was sent,
in which to comply with the Commission’s recommendations .
On February 26, 1999, at the request of the parties, the Commission
granted a period of three months reckoned from February 18, 1999, for the
parties to discuss the remuneration referred to in recommendation 2 in paragraph
113 below. During and after the
deadline, the parties failed to reach agreement on this matter.
Furthermore, the Peruvian State has not demonstrated that it has fulfilled
the recommendations made by the Commission in Report 57/98.
The Commission reiterates the following conclusions reached in the
Based on the reasons outlined above, the Commission concludes that
when the Peruvian State removed Dr. Walter Humberto Vásquez Vejarano from
his post as a judge on the country's Supreme Court, and subsequently issued
Decree Law 25.454, thus depriving him of the right to challenge the Dismissal
Decree, the State violated the following rights protected by the American
Convention, to the detriment of Dr. Vásquez Vejarano:
the right to due process (Article 8), political rights (Article 23),
the right to the principle of legality and freedom from ex post facto laws
(Article 9), the right to equality before the law (Article 24), and right
to judicial protection (Article 25); all of which are violations that run
counter to the State’s inherent duty to respect and guarantee the rights of
all persons subject to its jurisdiction (Article 1(1).
113. Based on the
foregoing analysis and conclusions,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS REITERATES THE FOLLOWING RECOMMENDATIONS
TO THE STATE OF PERU:
1. To provide appropriate
compensation to Dr. Vásquez for moral and material damages sustained as a
result of the violations of his human rights, and in particular,
2. To reinstate
Dr. Vásquez to his position as Justice of the Supreme Court of Peru and pay
him back salary and other remuneration since the date of his removal from
office, and grant him all other benefits to which he is entitled as a Justice
of the Supreme Court including if appropriate his pension, or alternatively
to pay Dr. Vásquez Vejarano all salary and other remuneration to which he
would be entitled as a Justice of the Supreme Court until the age of 70, to
which age the Peruvian Constitution provided guarantees of irremovability
from office, and to pay him as well back salary not received since the date
on which he was removed from office and to grant him all other financial benefits
to which he is entitled as a Justice of the Supreme Court, including if appropriate
in the present case pension benefits.
On March 1, 2000, the Commission transmitted Report 17/00--the text
of which precedes--to the Peruvian State and to the petitioner, according
to Article 51(2) of the Convention, and granted Peru an additional period
to comply with the recommendations set above. On April 3, 2000 the State forwarded
the Commission a note and did not exposed any action taken towards the compliance
of the recommendations made by the Commission.
According to the above considerations, and to Articles 51(3) of the
American Convention and 48 of the Commission’s regulations, the Commission
decides to reiterate the conclusion and the recommendations set forth in chapters
VII and VIII; to make public the present report and to include it in its Annual
Report to the OAS General Assembly. The Commission, according to the norms
contained in the instruments which govern its mandate, will continue evaluating
the measures adopted by the Peruvian State in respect to the above recommendations,
until they have been complied with by the Peruvian State.
Done and signed at the headquarters of the Inter-American Commission on Human Rights in Washington, DC., on the 13 day of April 2000. Signed by Hélio Bicudo, Chairman; Claudio Grossman, First Vice-Chairman; Juan Méndez, Second Vice-Chairman; Commissioners: Marta Altolaguirre, Robert K. Goldman, Peter Laurie, and Julio Prado Vallejo.
IACHR, Annual Report, 1997.
Article 242 of the 1979 Peruvian Constitution provides that: "The
State shall ensure that judicial magistrates enjoy: "1. Their independence.
They are subject only to the Constitution and the law. 2. They
shall continue to serve in that position until the age of 70, and they
may not be removed from office as long as their conduct in the position
is acceptable and beyond reproach.
Magistrates shall not be promoted or transferred without their
Inter-American Court of Human Rights, Habeas Corpus in Emergency
Situations (Articles 27(2),
25(1), and 7(6) of the American Convention on Human Rights), Advisory
Opinion OC-8/87 of January 30, 1987.
Series A, Nº 8.
Paragraph 20 (emphasis added).
The Declaration of Santiago can be found in: General Secretariat of the
Organization of American States, Inter-American System: Treaties, Conventions,
and Other Documents. Washington, D.C., 1981, Vol. 1.
OAS, Official Documents, OEA/Ser.A/2 Add.3 (SEPF), Series on Treaties
1-E Rev. (1995).
The Washington Protocol was ratified by Peru on September 20, 1996.
IACHR. "Resolution concerning the Protection of Human Rights following
the Suspension of Constitutional Guarantees or the Declaration of States
of Siege". In, "Report
on the 18th Session". Washington,
July 1968, page 47.
Inter-American Court of Human Rights, Judicial Guarantees in States of
Emergency (Articles 27(2), 25,
and 8 of the American Convention on Human Rights), Advisory Opinion OC-9/87
of October 6, 1987. Series
A Nº 9. See also
the same Court's rulings on: (1) Compulsory Membership in an Association
Prescribed by law for the Practice of Journalism (Arts.13 and 29 of the
American Convention on Human Rights), Advisory Opinion OC-5/85 of November
13, 1985. Series A Nº
5, para. 66; and (2) the word "laws" in Article
30 of the American Convention on Human Rights, Advisory Opinion OC-6/86
of May 9, 1986. Series A
Nº 6, para. 30, 32, and 34.
Inter-American Court of Human Rights, Habeas Corpus in Emergency Situations
sop. cit. para. 19.
IACHR, Annual Report 1980-1981, page 11.
Inter-American Court of Human Rights, Habeas Corpus in Emergency Situations
op. cit., para. 21.
Idem, para. 24.
Idem, para. 27.
Idem., para. 40.
Idem, para. 25.
Idem, para. 38 (emphasis added).
Which states: "No provision of this Convention shall be interpreted
as:...c. precluding other rights or guarantees that are inherent in the
human personality or derived from representative democracy as a form of
Inter-American Court of Human Rights, Judicial Guarantees in States of
Emergency...op. cit., para. 37.
Cited in: Report Nº 30/97 (Argentina), Case Nº 10.087,
approved on September 30, 1997.
IACHR, Annual Report 1997 (to be published).
"El control jurisdiccional
de los estados de excepcion", Professor Carlos Ayala Corao, published
in "Coleccion de Estudios
Nº 4: Los estados de excepcion en Chile", Corporación
Nacional de Reparacion y Rerconciliacion, Santiago de Chile, 1997,
cited in: IACHR, Report Nº 30/97 (Argentina), op. cit.
IACHR, Report Nº 30/97 (Argentina), op. cit., para.
Cited in: Report Nº 30/97 (Argentina), Case Nº 10.087,
approved on September 30, 1997.
IACHR, Annual Report 1997.
See IACHR Annual Report, 1993.
The Government’s response to the petitioner’s complaint, Note Nº
7-5-M/321, presented to the Commission on October 4, 1993.
International Commission of Jurists. Report on the Administration of
Justice in Peru. Institute of Legal Defense. Lima, 1994.
The provisional Justices do not enjoy the rights of permanence and immovability
from their positions. Their
appointment, tenure in the position, and dismissal are discretionary,
and they may therefore be removed from their positions at any time, without
any preliminary procedure.
"Manifesto a la Nacion del
5 de abril de 1992", published in the journal "el
Peruano" on April 6, 1992, and reproduced in: Centro Peruano de Estudios Internacionales (CEPEI), Proceso
de Retorno a la Institucionalidad Democratica en Peru".
Eduardo Ferrero Acosta, ed. Lima, 1992. Pages 129 to 135.
Inter-American Court of Human Rights, Judicial Guarantees in States of
Emergency...op. cit., para. 35.
Resolution on the Protection of Human Rights under the Suspension of Constitutional
Guarantees or State of Siege". op. cit. page 47.
Alibery, Le controle jurisdictionnel
de l'Administration, Paris, 1926, p. 236, cited in IACHR, the General
Gallardo case. Report Nº
43/96 (Mexico) of October 15, 1996, ICHR, Annual Report 1996, page 613,
Inter-American Court of Human Rights, Habeas corpus in Emergency Situations
op. cit. para. 39.
European Commission on Human Rights. The case of Greece. Yearbook of
the European Convention on Human Rights, 1969.
As noted earlier, Article 27(3) of the Convention provides that any State that avails
itself of the right to suspend the righst established therein must inform
the other States parties to the Convention immediatley through the Secretary
General of the OAS of the rights that have been suspended, the reasons
for suspending such rights, and the date on which the suspension of such
rights will end.
IACHR, Report Nº l30/97 (Argentina). op. cit. para.
Idem, para. 58.
IACHR, Report on the Human Rights Sicuation in Peru. 1993. OEA/SER.L/II.83
Doc. 31. paragraphs 61 and 62.
Inter-American Court of Human Rights, Habeas corpus under suspension of
guarantees....op. cit. para. 30.
That Decree Law stated textually:
AArticle Two: The Action of Amparo designed to impugn, directly
or indirectly, the effects produced by the application of Decree Laws
Nos. 25,423, 25,442 y 25,446".
Inter-American Court of Human Rights, Habeas corpus in Emergency Situations
…op. cit. par. 43.
CIDH, Report 30/97 (Argentina). Op
cit paragraphs 71, 73, and 74.
In accordance with that doctrine, the judiciary shall abstain from certain
acts when that decision presupposes a highly political ruling
that come exclusively within the purview of the executive or legislative
branches of the State. CIDH. Report 30/97 (Argentina). op cit. paragraph 44.
IACHR, Report 30/97 (Argentina), op.
See the decision on admissibility in Report Nº 46/97, Case
11.166, which was approved at the 97th Regular Session. Paragraphs 41, 42, 43 and 44, give details of the inadequate
and ineffectual procedure before the Tribunal of Honor of the Magistrature.
Inter-American Court of Human Rights Habeas in Emergency Situations ...op.
cit. para. 30.
Inter-American Court of Human Rights. Advisory Opinion 4/87, dated October 6, 1987. Paragraph 24.
IACHR. Doctrine of the Inter-American Commission on Human Rights (1971-1981),
in Ten Years of Activities 1971-1981. Washington, D.C., 1982, page
Report Nº 30/97 (Argentina). op. cit. paras. 41 and
Report Nº 28/94 (Panama), Case 10.026, IACHR, Annual Report
1994. para 30.
By means of Decree Law 25.442, of April 22, 1992, the removal of a Supreme
Court justice was nullified and two other justices from the same Court
were removed. By means of
Decree Law 25.446, of April 25, 1992, 133 judges and prosecutors were
 Inter-American Court of Human Rights, Proposed Amendment to the Naturalization Provisions of the Constitution of Costa Rica, Advisory Opinion OC-4/84 of January 19, 1984. Series A Nº 4. Para. 57.