In
the Loayza Tamayo Case,
the
Inter-American Court of Human Rights, composed of the following judges:
Hernán
Salgado-Pesantes, President;
Antônio
A. Cançado Trindade, Vice President;
Héctor
Fix-Zamudio, Judge;
Alejandro
Montiel-Argüello, Judge;
Máximo
Pacheco-Gómez, Judge;
Oliver
Jackman, Judge; and
Alirio
Abreu-Burelli, Judge;
also
present:
Manuel
E. Ventura-Robles, Secretary; and
Víctor
M. Rodríguez-Rescia, Interim Deputy Secretary,
pursuant
to Articles 29 and 55 of the Rules of Procedure of the Inter-American Court
of Human Rights (hereinafter "the Court" or "the Inter-American
Court"), delivers the following Judgment in the instant Case.
I
1. On January 12, 1995, the Inter-American Commission on Human Rights
(hereinafter "the Commission" or "the Inter-American Commission")
submitted to the Inter-American Court a Case against the Republic of Peru
(hereinafter "the State" or "Peru") which originated in
a petition (No. 11.154). In its petition, the Commission invoked Articles
50 and 51 of the American Convention on Human Rights (hereinafter "the
Convention" or "the American Convention") and Articles 26 et
seq. of the Rules of Procedure of the Court that were then in force
[1]
. The Commission submitted this case for a ruling on whether
the following articles of the Convention were violated:
7 (Right to Personal Liberty), 5 (Right to Humane Treatment), 8 (Right
to a Fair Trial) and 25 (Right to Judicial Protection),
all these in relation to Article 1(1) of the Convention for the alleged
"unlawful deprivation of liberty, torture, cruel,
inhuman or degrading treatment, violation of the judicial guarantees, and
double jeopardy to María Elena Loayza-Tamayo for the same cause, in violation
of the Convention," and of Article 51(2) of the Convention for refusing
"to comply with the recommendations
formulated by the Commission." It also asked the Court to declare that Peru "must pay full compensation to María Elena Loayza-Tamayo for the grave
damage -material and moral- she has suffered and, consequently, [to] instruct the Peruvian State to order her immediate
release and make her appropriate reparation" and to pay the costs
incurred in processing the Case.
II
2. The Court is competent to hear the instant Case. Peru ratified the Convention on July 28, 1978,
and recognized the jurisdiction of the Court on January 21, 1981.
III
3. The facts set out in the application are summarized in the following
paragraphs:
a. On February 6, 1993, Ms. María Elena Loayza-Tamayo, a Peruvian citizen
and a professor at the Universidad San Martín de Porres, was arrested together
with a relative, Mr. Ladislao Alberto Huamán-Loayza, by officers of the National
Counter-Terrorism Bureau (hereinafter "DINCOTE") of the Peruvian
National Police Force, at a property on Mitobamba Street, Block D, Lot 18,
Los Naranjos Estate, Los Olivos District, Lima, Peru.
Under the Ley de Arrepentimiento (Repentance Law)
enacted through Decree-Law No. 25.499, Angélica Torres-García, alias "Mirtha,"
captured on February 5, 1993, denounced Ms. María Elena Loayza-Tamayo.
The application also indicates that the Peruvian State, failing to
observe the verification procedure required by that law and its regulations,
arrested Ms. Loayza-Tamayo the following day without an arrest warrant issued
by the competent judicial authority, as an alleged collaborator of the subversive
group "Shining Path".
b. Ms. María Elena Loayza-Tamayo was detained by DINCOTE from February
6 to 26, 1993, and was not taken before the Special Naval Court, in violation
of Article 12(c) of Decree-Law No. 25.475 (crime of terrorism).
She was held incommunicado in the DINCOTE offices for
ten days and subjected to torture, cruel and degrading treatment and unlawful
pressure, for example, "torture,
... threats of drowning on the beach at night and rape to [which] she was subjected by members of DINCOTE," in an effort to force her to incriminate
herself and admit that she was a member of the Peruvian Communist Party -Shining
Path- (hereinafter "PCP‑SL"). However, Ms. María Elena Loayza-Tamayo claimed
that she was innocent, denied membership in the PCP‑SL, and, in fact,
"criticized its methods: the violence
and the human rights violations committed by that subversive group."
c. During the ten days in which she was held incommunicado, Ms. Loayza-Tamayo was allowed
no contact with her family or attorney, nor were they informed of her arrest.
Her family learned of her arrest through an anonymous telephone call
on February 8, 1993. No protective remedy could be filed on her behalf
because Decree-Law No. 25.659 (Treason) prohibited the filing of "a petition of habeas corpus when the acts in question concern the crime
of terrorism."
d. On February 26, 1993, Ms. María Elena Loayza-Tamayo was exhibited to
the press in "prison stripes," and accused of the crime of treason.
She was then taken to the former Army Veterinary Hospital -later converted
into a "holding-station"-where she remained until March 3 of that
year when she was transferred to the Chorrillos Women's Maximum Security Prison.
e. María Elena Loayza-Tamayo was prosecuted before the military jurisdiction
on the charge of treason. Police Report No. 049‑DIVICOTE 3‑DINCOTE
was established, charging her with that crime on February 25, 1993.
She was later brought before the Special Naval Court for trial.
The Special Naval Court, composed of faceless military judges, acquitted
her in its judgment of March 5, 1993. She
was subsequently convicted by the Special Naval Court Martial in its judgment
of April 2, 1993. The Special Tribunal
of the Supreme Council of Military Justice, in its judgment of August 11,
1993, rejected a petition seeking nullification of the sentence, acquitted
her of treason and ordered the case file to be remitted to the civil courts
so that she could be tried for the crime of terrorism.
The Assistant Special Attorney General filed with the Full Chamber
of the Special Supreme Military Tribunal a petition for special review of
that sentence, which culminated in a judgment upholding her acquittal on September
24, 1993.
f. Ms. María Elena Loayza-Tamayo continued in detention for the period
between the judgment of the Special Tribunal of the Supreme Council of Military
Justice issued on August 11, 1993, and the detention order issued by the civil
courts on October 8, 1993, although during that period "her
judicial position was that of an acquitted detainee who had been neither tried
nor convicted."
g. Ms. María Elena Loayza-Tamayo was tried in various instances of the
civil courts for the crime of terrorism: the Forty-third Criminal Court of
Lima bound her over for trial on October 8, 1993. Ms. Loayza filed a res judicata objection based
on the principle of non bis in idem.
On October 10, 1994, the "faceless
special tribunal of the civil courts" dismissed
her objection and sentenced her to 20 years' imprisonment on the basis of
the same cause.
h. Subsequent to the filing of its application, the Commission informed
the Court that a writ seeking nullification of that judgment was filed with
the Supreme Court of Justice and was dismissed on October 6, 1995.
Ms. María Elena Loayza-Tamayo remained in prison throughout the proceedings
in both the military and the civil courts.
IV
4. The following paragraphs contain the Court's summary of the file submitted
to it by the Commission on the proceeding before it:
a. On May 6, 1993, the Commission received the complaint against the detention
of Ms. María Elena Loayza-Tamayo and transmitted it to the State six days
later. On August 23, 1993, the Commission
received the State's answer, together with documentation concerning the case,
and the information that the Office of the Attorney General had initiated
criminal proceedings against Ms. María Elena Loayza-Tamayo in the military
courts, pursuant to Decree-Law No. 25.659 (Treason Law).
b. On July 13, 1994, to the Commission's request of November 17, 1993,
Peru responded that "file 41-93 was before the Fortieth [rectius: Forty-third] Criminal Court of Lima, against María Elena
Loayza-Tamayo for the crime of terrorism, and that the file had been remitted
to the President of the Superior Court of Lima ... for initiation of the oral
proceedings."
c. At the request of one of the petitioners, on September 16, 1994, a
public hearing was held at the seat of the Commission.
d. On September 26, 1994, the Commission approved
Report No. 20/94, in the final part of which it decided:
1.
To declare that the Peruvian State is responsible for the violations,
against María Elena Loayza, of the rights to Personal Liberty, Humane Treatment
and Judicial Protection enshrined in Articles 7, 5 and 25 of the American
Convention on Human Rights.
2.
To recommend to the Peruvian State that, on the basis of the Commission's
analysis of the events and of the law, it immediately release María Elena
Loayza-Tamayo once it has received notification of this Report.
3.
To recommend to the Peruvian State that it pay compensation to the
plaintiff in the instant case, for the damage caused as a result of her unlawful
deprivation of liberty from February 6, 1993, until such time as it orders
her release.
4.
To inform the Government of Peru that it is not at liberty to publish
this Report.
5.
To request that the Government of Peru inform the Inter-American Commission
on Human Rights, within thirty days, of any measures it has taken in the instant
case, in accordance with the recommendations contained in paragraphs 2 and
3 above.
e. On October 13, 1994, Report No. 20/94 was transmitted to Peru by the
Commission. The State replied that
it was unable to concur with the Commission's analysis, findings and recommendations,
and attached a brief prepared by a Task Force composed of government officials,
indicating that:
[d]omestic
remedies have not been exhausted inasmuch as María Elena Loayza-Tamayo's legal
situation should be defined at the end of the judicial proceeding for the
CRIME OF TERRORISM in the civil court system [and that] the recommendations
made by the ICHR [Inter-American Commission] would involve deciding on a case
still pending in the Peruvian justice administration.
This is not possible, since under Peru's current Political Constitution,
no authority may arrogate that power. It
is for the Judicial Branch to rule on María Elena Loayza-Tamayo's legal situation
through the proper criminal process.
f. On January 12, 1995, the Commission, not having reached agreement with
the Government, submitted this case for the consideration and decision of
the Court.
V
5. The application which the Commission filed with the Court on January
12, 1995, was notified to the State by the Secretariat of the Court (hereinafter
"the Secretariat"), together with its attachments, on February 9,
1995, and was received by the latter on February 13. The Commission appointed Oscar Luján-Fappiano
as its Delegate, and Edith Márquez-Rodríguez and Domingo E. Acevedo as its
Attorneys. It also appointed the following
persons to act as their assistants, representing the plaintiff as petitioners
before the Commission: Juan Méndez, José Miguel Vivanco, Carolina Loayza,
Viviana Krsticevic, Verónica Gómez, and Ariel E. Dulitzky.
Mr. Méndez subsequently withdrew as the representative of the plaintiff
by note of September 16, 1996.
6. On March 23, 1995, the State informed the Court that it had appointed
Mario Cavagnaro-Basile as its Agent, and on the following day, it communicated
its appointment of Iván Paredes-Yataco as its Alternate Agent.
7. On March 24, 1995, Peru filed a preliminary objection of "non-exhaustion
of domestic remedies."
8. On May 5, 1995, the State submitted its answer to the application,
in which it "denie[d] and
challenge[d] it in all its parts." It
further requested the Court to declare it entirely groundless, and filed objections
to some of the witnesses.
9. By Order of May 17, 1995, the Court declared inadmissible the State's
request for suspension of the proceeding on the merits of the matter until
such time as the preliminary objection filed had been disposed of (supra,
para. 7). It further decided to continue processing the
case.
10. On July 11, 1995, and January 9, 1996, in response to the Secretariat's
request of May 20, 1995, the State submitted the documentation concerning
the Case against Ms. María Elena Loayza-Tamayo in the domestic courts.
11. In a brief of December 29, 1995, the Commission submitted a copy of
the judgment of October 6 of that year, issued by the Supreme Court of Justice,
upholding the conviction of Ms. María Elena Loayza-Tamayo et al for the crime of terrorism. On January 22, 1996, the State asked the Court
to dismiss that brief and deemed it not to have been presented. On January 30 of that year, the President of
the Court (hereinafter "the President") communicated that the brief
would be evaluated in due course.
12. By Judgment of January 31, 1996, the Court unanimously decided to dismiss
the preliminary objection of non-exhaustion of domestic remedies lodged by
Peru and to proceed with the consideration of the merits in the case (Loayza
Tamayo Case, Preliminary Objections, Judgment of January 31, 1996. Series
C No. 25, Operative paragraphs 1 and 2).
13. On March 4, 1996, the Commission submitted the list of the following
witnesses to be summoned by the Court to appear at the public hearings on
the merits: Luis Guzmán-Casas, Luis Alberto Cantoral-Benavides, María Elena
Loayza-Tamayo, María de la Cruz-Pari, Juan Alberto Delgadillo, Enrique Pineda-Gonzáles,
Santiago Felipe Agüero-Obregón, Pedro Telmo Vega-Valle, Iván Bazán-Chacón,
and Víctor Alvarez. On April 24, 1996, Peru submitted a brief in which it upheld the
objections filed in the answer to the application, concerning the first six
witnesses, and objected to the remainder, with the exception of the last,
on the ground that they had been convicted, some of the crime of terrorism,
and others of treason, and to Mr. Bazán-Chacón because he was a defense attorney
for the convicted prisoner Pedro Telmo Vega-Valle. The Commission also proposed the following experts: Nigel Rodley, Julio Maier, Carlos Arslanian,
and Héctor Faúndez. It further pointed
out that some of the witnesses were imprisoned in various Peruvian penitentiaries,
and requested that if they were unable to appear at the seat of the Court,
the proceedings should be held at the various penal establishments.
14. On July 2, 1996, the Court decided to dismiss the objections filed
by the State against the aforementioned witnesses (supra, para. 13) and reserved the right
to evaluate their statements at a later date.
It also authorized the President to order the pertinent measures to
ensure that the witnesses and experts proposed by the Commission could deliver
their statements and opinions.
15. On October 11, 1996, the President, after informing the State, decided
to appoint as expert Dr. Eduardo Ferrero-Costa to lead the interrogation in
Peru of a number of witnesses imprisoned in different Peruvian jails.
Those statements would be heard in the presence of the Agent of the
State and the Delegate of the Commission.
On that same day, the President issued another Order in which he summoned
the parties to a public hearing on February 5, 1997, to hear the statements
of the witnesses proposed by the Commission, Mr. Iván Bazán-Chacón and Mr.
Víctor Alvarez, and of the experts Nigel Rodley, Julio Maier, Carlos Arslanian,
and Héctor Faúndez.
16. In a communication of December 13, 1996, which reached the Secretariat
on January 6, 1997, the expert Dr. Eduardo Ferrero-Costa informed the Court
of the development and conclusion of the arrangements for receiving the statements
in Peru, and indicated that he had taken statements from the following witnesses:
Luis Guzmán-Casas, Luis Alberto Cantoral-Benavides, Juan Alberto Delgadillo,
Pedro Telmo Vega-Valle, and María Elena Loayza-Tamayo. He also reported that
Ms. María de la Cruz-Pari had categorically refused and so had not been questioned,
and that the taking of evidence from Mr. Santiago Felipe Agüero-Obregón had
been canceled at the behest of the delegate of the Inter-American Commission.
No statement was taken from Mr. Enrique Pineda-Gonzáles, because the
expert, for health reasons, had been unable to travel to Puno. Subsequently,
the Commission informed the Court by note of April 15, 1997, that it did not
consider it necessary to hear the testimony of Mr. Enrique Pineda-Gonzáles
and Ms. María de la Cruz-Pari. Mr.
Ferrero submitted the record of the proceedings, the tapes containing the
witnesses' statements, and the corresponding transcripts, all of which were
duly transmitted to the parties.
17. On February 5, 1997, the Court held a public hearing on the merits
of the case and heard the parties' closing arguments.
There
appeared before the Court:
for
the State of Peru:
Mario
Cavagnaro-Basile, Agent; and
Mariano
García Godos-McBride, Minister in the Diplomatic Services;
for
the Inter-American Commission on Human Rights:
Oscar
Luján-Fappiano, Delegate;
Domingo
E. Acevedo, Deputy Executive Secretary;
Carolina
Loayza, Assistant;
Viviana
Krsticevic, Assistant;
Ariel
Dulitzky, Assistant; and
Marcela
Matamoros, Assistant.
Witnesses
presented by the Inter-American Commission on Human Rights:
Víctor
Alvarez-Pérez; and
Iván
Bazán-Chacón.
Expert
witnesses presented by the Inter-American Commission on Human Rights:
Julio
Maier;
León
Carlos Arslanian; and
Héctor
Faúndez-Ledezma.
Mr.
Nigel Rodley, one of the experts witnesses presented by the Inter-American
Commission, did not attend this hearing, although he had been summoned by
the Court.
18. On April 21, 1997, Peru presented the brief containing its closing
arguments, and the Commission did so on April 30.
19. On June 23, 1997, the Court, so as better to decide, requested Peru
to furnish it with a number of legal texts, and asked the Commission to dispatch
the communication in which Ms. María Elena Loayza-Tamayo filed the res judicata
objection based on the principle of non bis in idem. On July 16,
1997, the Commission filed a copy of that communication together with a copy
of an explanatory document dated April 14, 1994; the 1993 Political Constitution
of Peru and a publication entitled "Legislación sobre Terrorismo y Pacificación." On August 28, 1997, the State forwarded the
other legal texts requested by the Court.
20. On June 23, 1997, Peru wrote to the Court and informed it that on September
27, 1996, Ms. María Elena Loayza-Tamayo requested a pardon to the ad
hoc Commission created by Law No. 26.655.
21. On August 24, 1995, and May 16, 1996, the "Fundación Ecuménica para el Desarrollo y la
Paz" (FEDEPAZ) and Mr. Nicolás de Piérola-Balta, submitted amici curiae briefs on the principle of
non bis in idem.
22. On September 22, 1995, and August 8, 1996, Peru requested that the
amici curiae presented be declared
inadmissible. The President, through
his communications of September 23, 1995, and September 11, 1996, informed
the State that "documents of this
type are added to the file without being formally incorporated into the record
of the proceedings," and that the Court would evaluate those documents
in due course.
VI
23. On April 19, 1996, the Inter-American Commission remitted to the Secretariat
a copy of a brief that had been sent to Peru concerning Ms. María Elena Loayza-Tamayo's
conditions of detention. In that brief it requested the State, pursuant to Article 29 of its
Regulations, to adopt precautionary measures on behalf of Ms. Loayza. On May 28, 1996, Peru submitted a note to the
Secretariat, in response to the Commission's inquiries concerning the detention
conditions, informing it that Loayza Tamayo had now been convicted by the
Supreme Court of Justice and that she would have to serve her sentence in
the manner and conditions dictated by the laws in force in Peru.
24. On May 30, 1996, the Inter-American Commission submitted a request
for provisional measures on behalf of Ms. María Elena Loayza-Tamayo, in accordance
with Article 63(2) of the Convention and Article 24(1) of the Rules of Procedure
then in force, in which it asked the Inter-American Court to order the State
to "bring to an end the solitary
confinement and incommunicado detention imposed on María Elena Loayza-Tamayo
on April 9, 1996, and that she be returned to Block 'A' of the Chorrillos Women's Maximum
Security Penitentiary in the conditions in which she had been held prior to
her transfer." The basis
of the Commission's request is summarized below:
a. The Penitentiary in question has three blocks designated "A",
"B" and "C". Block "A" houses inmates categorized as least dangerous,
that is, those who claim to be innocent
and to have no connection with subversive or terrorist groups, and have openly
denounced such groups, as is the case of Ms. María Elena Loayza-Tamayo.
Blocks "B" and "C" house inmates categorized as
highly and moderately dangerous and those who have declared themselves in
favor of the so-called "peace accord". Block "C" also
houses prisoners awaiting classification and those who express their desire
to sever connections with their subversive or terrorist groups, as well as
inmates who do not wish to participate in other daily prison activities.
b. Peru ordered Ms. María Elena Loayza-Tamayo to be transferred to that
prison's maximum danger Block and held in continuous solitary confinement,
which constitutes an arbitrary and unlawful deterioration of her detention
conditions, thereby violating, among other instruments, the American Convention
and the (United Nations) Standard Minimum Rules for the Treatment of Prisoners.
c. When there is an international complaint against a State for violations
of rights guaranteed by the American Convention, that State has the obligation,
in good faith, to refrain from needlessly adopting measures that may adversely
affect the situation of the plaintiff.
d. Peru promulgated Decree-Law No. 25.475 (crime of terrorism) and Supreme
Decision No. 114-92-JUS as part of a counter-insurgency strategy, both of
which establish procedures that are incompatible with the international obligations
contracted by the State.
e. The State's argument that "any deviation" from the agreement of the Penal Technical Council
regarding Ms. María Elena Loayza-Tamayo's conditions of imprisonment would
"put the security system and the
principle of authority at risk" is also unfounded, since Ms. Loayza
was confined in Block "A" and "has never, and will never, constitute a risk to the so-called Security
system."
f. There is a dual sense of urgency about this case: firstly, Peru, through
the measure adopted, has caused irreparable harm to a person who has been
arbitrarily tried and sentenced, in violation of the Convention; secondly,
the physical and mental suffering inflicted on Ms. María Elena Loayza-Tamayo
as a consequence of her confinement in a tiny cell for twenty-three and a
half hours a day, and her incommunicado detention for one year, as well as the severe restrictions
on visits, also constitute cruel and inhuman treatment.
25. On June 12, 1996, the President adopted, on the basis of the Commission's
petition and Articles 63(2) of the Convention and 24(4) of the Rules of Procedure
then in force, urgent measures on behalf of Ms. María Elena Loayza-Tamayo,
and requested that Peru adopt forthwith such measures as were necessary to
effectively ensure her physical, psychological and moral integrity.
He further requested the State to issue a report on the measures taken
so that they could be brought to the attention of the Court at its next session,
saying that he would submit that Order for the Court's consideration and pertinent
effects.
26. On June 24, 1996, Peru submitted the report requested by the President
in his Order of June 12, in which it indicated that Ms. María Elena Loayza-Tamayo
was serving her sentence and
that
at no time have [her] imprisonment conditions deteriorated ... she is regularly
visited by her next-of-kin and attorneys as stipulated in the legislation
in force in Peru, and that claims that she is being held in a different (smaller)
cell from those inhabited by other prisoners are false [...]; that her living
conditions are the same as the rest of the prison population and there is
therefore no danger to her physical, psychological and moral integrity, since
she is imprisoned with other prisoners whose behavior is similar to her own...
27. On July 1, 1996, the Commission presented its comments on the above
brief, reiterating the arguments it adduced in its request of May 30, 1996,
for provisional measures, reporting that Ms. María Elena Loayza-Tamayo
was subjected to a regime of incommunicado
detention in which she is deprived of light and is confined to a tiny cell
for twenty-three and a half hours a day, which facts constitute "in themselves, forms of cruel and inhuman treatment."
The Commission also repeated its request that the Court order Peru "[to]
bring to an end the solitary confinement
and incommunicado detention imposed on María Elena Loayza-Tamayo on April
9, 1996, and that she be returned to Block "A" of the Chorrillos Women's Maximum Security Penitentiary, in the same
conditions in which she had been held prior to her transfer."
28. By Order of July 2, 1996, the Court adopted provisional measures, ratified
the Order of the President of June 12, and once more called upon the State
to take all the measures necessary for the effective safeguard of Ms. María
Elena Loayza-Tamayo's physical, psychological and moral integrity.
It also called upon Peru to report every two months to the Court on
the measures it has taken, and on the Commission to submit to the Court its
comments on that information not later than one month from the date of its
receipt.
29. The Commission, in its comments of September 12, 1996, reiterated its
request to the Court that it call upon Peru to bring to an end the solitary
confinement imposed on Ms. María Elena Loayza-Tamayo, since her health has
deteriorated, owing to the fact that
she
is subjected to an inhuman and degrading regime, derived from her state of
incommunicado and 23,5 hours of
incarceration per day, from a humid and cold prison, measuring approximately
two by three meters, without direct ventilation, where there are cement slabs,
a letrine and lavatory for hands... The prison cell has no direct light; the light
enters in a narrow and indirect way from the fluorescent lights in the hallways.
She is not allowed to have a radio, newspaper or magazine.
She is only authorize to see the daylight 20 or 30 minutes per day.
In
addition, in a medical document of July 25, 1996, Dr. Julia Ruiz-Camacho,
Chief Physician of Health for the Penitentiary of High Security Chorrillos
certified that after having examined Ms. María Elena Loayza-Tamayo, she found
her suffering from physical and psychological illnesses, among them, a syndrome
of anxious depression.
30. On September 13, 1996, the Court dictated an Order with respect to
the request of the Commission from the former day which considered-taking
into account that the State has not presented the Report requested by the
President in the Order of July 2, 1996 -that the prison conditions of Ms.
María Elena Loayza-Tamayo were aggravating her physical, psychological and
moral health, according to the Commission. Consequently, the Court requested Peru to change
the prison conditions, in particular the conditions of isolation to which
she was subjected, in order to comply with what is established in Article
5 of the American Convention. It also
requested that she be given medical treatment, physical and psychiatric as
soon as possible.
31. On October 11, 1996, the Secretariat reiterated to Peru its request
for the Report on the measures taken, as according to the Order of September
13, 1996, it should have been presented two weeks after the date of the Order.
By writing of October 14, 1996, Peru requested an extension to present
its Report, which was granted until November 1, 1996.
32. By note of October 18, 1996, received in the Secretariat on October
28, 1996, the State informed the Court that Ms. María Elena Loayza-Tamayo
was not in isolation, according to the "Reports of the Governor and Prison Records" and was receiving
visitors. In an attachment to the writing,
it indicated that Ms. Loayza-Tamayo was in perfect physical and mental conditions,
in accordance with the medical and psychological reports. It added that Ms. Loayza-Tamayo was doing jobs
outside her cell and that she was placed in a "two-person cell, unlike the rest of the prison population of this Establishment,
who were in three-person cells for lack of space."
33. On February 3, 1997, the Secretariat requested the Commission to present
its observations in accordance with point 4 of the Order of the Court of September
13, 1996. On March 20, 1997, the Commission
presented a writing with its observations to the report of Peru and indicated
that the situation of Ms. María Elena Loayza-Tamayo
34. By note of April 3, 1997, received at the Secretariat on April 10,
1997, Peru submitted comments on the brief cited in the previous paragraph,
claiming that the situation it reports was false and attempted to misrepresent
Ms. María Elena Loayza-Tamayo's state of health, which was "stable, not to say normal for someone of her
age." It further stated that
it should be borne in mind that she had been convicted and must serve her
prison sentence for the crime of terrorism against the State. She should therefore be subjected to the same
conditions as other convicts and no special treatment could be claimed on
her behalf.
35. On August 1, 1997, the Secretariat asked Peru to send at its earliest
convenience the reports requested through the Order of September 13, 1996,
Peru having thus far submitted only two briefs, those of October 18, 1996,
and April 3, 1997. On August 28 of
that year, Peru submitted some comments on the Court's request, in which it
declared that it had fulfilled the requirement contained in the Order of September
13 by presenting its briefs dated October 14, 18 and 30, 1996. It went on to say that during the interrogation
held in Peru in the presence of Dr. Eduardo Ferrero-Costa, the expert designated
by the Court, Ms. María Elena Loayza-Tamayo, in response to a question from
Mr. Oscar Luján-Fappiano, had said that the inmates "[l]ive together in blocks ... [in which] all the cells are the same," confirming
that there were no cells for solitary confinement.
36. So far, between the submission of that information and the delivery
of this Judgment, the Commission has not submitted its observations to the
Court.
VII
37. In the brief in which it submitted its petition and in its subsequent
communications to the Court, the Commission presented its arguments, which
the Court summarizes as follows:
a. Peru did not respect the right to due process of law, the case having
been improperly processed and the minimum judicial guarantees not observed.
Ms. María Elena Loayza-Tamayo was tried both in the military and civil
court systems by "faceless judges" who were neither independent nor impartial." Also, Ms. Loayza was charged with treason, governed
by Decree-Law No. 25.659, which provides that persons accused of that crime
must be tried in the military courts, thereby submitting civilians to trial
by a military court, which is a special jurisdiction. That this regulation "patently fails to observe the guarantees of
due process and the right to be tried by a competent civil court". The Commission also claimed that the
defense "became a mere spectator
to the proceedings. The case was based
on evidence obtained through coercion, intimidation tactics used against the
defense counsel, obstruction of counsel's access to the case file, grossly
tardy notifications, etc".
b. The principle of "full procedural equality" or parity was also violated, as was
the right to be presumed innocent. Further, it was the National Police, DINCOTE,
that defined the crime which allegedly had occurred, and that DINCOTE has
the faculty to decide which jurisdictions and courts are competent to try
a case. According to the Commission,
this resulted in Ms. María Elena Loayza-Tamayo being tried for the same
acts in different courts for the same cause, with the consequent violation
of the principle of non bis in idem. Certain facts which were not proven by the military
jurisdiction were attributed to Ms. Loayza-Tamayo. The Commission also alleges that Ms. María Elena
Loayza-Tamayo's second trial in the civil courts on the charge of terrorism
was based on allegations founded on the very same facts.
c. In its brief of closing arguments the Commission drew attention to
the inconsistency of Peru's claim that Ms. María Elena Loayza-Tamayo's detention
"was not the result of Angélica
Torres-García's false accusations. Moreover,
since she is not a 'repentant' terrorist, there was no need to go through
the verification process required under the Ley de Arrepentimiento
(Law of Repentance)," while it had claimed the opposite in Police Report
No. 049-DIVICOTE 3-DINCOTE and other documents.
d. That the faceless Special Tribunal of the civil jurisdiction, through
its Judgment of October 10, 1994, convicted Ms. María Elena Loayza-Tamayo
of the crime of terrorism for sheltering two persons whom the faceless tribunal
described as Shining Path "elements", and not because terrorist
propaganda had been found in the property in which she was arrested.
The Commission further contended that it was untrue that "the policemen who entered the building found
'sufficient evidence' for María Elena Loayza-Tamayo to be charged
with 'the crime of terrorism'", and that had such been the case, there
would be no reason to prosecute her on a charge of treason in three different
branches of the military court system.
e. Regarding the argument adduced by the State at the public hearing held
on September 23, 1995, that Ms. María Elena Loayza-Tamayo had every opportunity
to file an action of guarantee "to claim her release on the ground that she had been acquitted of the
charge of treason," the Commission considered it to constitute a
clear admission of unlawful deprivation of liberty.
At the same time, it averred that such a guarantee could not be invoked
because Decree-Law No. 25.659 (relating to treason) impeded her access to
the remedy of "amparo"
or habeas corpus at that time.
f. With regard to the claim of double jeopardy, the Commission believes
it to be false that when the Special Supreme Military Tribunal of the Supreme
Court of Military Justice and the Full Chamber of the Special Supreme Military
Tribunal handed down the judgments of August 11 and September 24, 1993, respectively,
what they did was to renounce jurisdiction, as this was the
"procedural formula employed by military justice;"
and that, on the contrary, the military jurisdiction made full use of its
competence when it analyzed and ruled on questions of merit. According to
the Commission, Ms. María Elena Loayza-Tamayo was therefore acquitted three
times and convicted once.
g. Finally, the Commission holds the view that the action of an attorney
for a defendant may not be used "in a malicious and unfounded attempt to link the defense counsel to unlawful
activities imputed to her client." It therefore requested the
Court to "compensate" Ms. María Elena Loayza-Tamayo's defense
attorney for DINCOTE's intimidation tactics and false accusations.
38. In its answer to the application and in its closing arguments, Peru
expressed its views, which the Court summarizes as follows:
a. In its answer to the application, Peru expressed the view that in the
consideration of the facts and arguments on which the Commission's application
was based, account should be taken, first and foremost, of Article 233, paragraph
1, of the 1979 Political Constitution of Peru, which was in force until it
was superseded by the 1993 Constitution, and which stipulated
that
the arbitration courts and the military courts were exceptions to the principle
of unity and exclusiveness of the jurisdictional function of the Peruvian
Judiciary, a concept which was later enshrined in the current Constitution.... Consequently, ... for a better understanding, in referring to the
intervention of military judges, the term Military Justice or, in any event,
Military Jurisdiction sh[ould be] used.
b. With regard to the procedural aspects, Peru claimed that for the inter-American
system of human rights to function, it was necessary for domestic remedies
to be filed and exhausted, although exceptions to that rule do exist.
That in the instant case, both the Commission and the Inter-American
Court "have assumed undue jurisdiction"
in that at the time the petition was filed Ms. María Elena Loayza-Tamayo's
trial was still pending and she had not been notified of a final ruling. In
its closing arguments, the State insisted that "the application was inadmissible on the ground
of non-exhaustion of domestic remedies."
c. The State also argued that the Commission did not observe due process
of law since it failed to inform Peru that it had admitted the complaint,
as it is required to do by Article 48 of the Convention and that during the
public hearing held on February 5, 1997, the Commission conceded that the
decision on admissibility was made on the final report.
d. According to the answer to the application, Ms. María Elena Loayza-Tamayo
was apprehended on the accusation of a repentant terrorist.
However, Peru, in the same brief, claimed that the arrest had not been
the result of Angélica Torres-García's accusation, who was not a repentant
terrorist, and for that reason it had not undertaken the verification procedure
required by the Ley de Arrepentimiento ("Law of Repentance"),
inasmuch as the detention
was
carried out in response to actions by the National Intelligence Bureau, which
learned that Ms. María Elena Loayza-Tamayo was a member of the terrorist organization
"Shining Path", a claim corroborated by Angélica Torres-García,
who was arrested on a warrant for the crime of Treason and claimed to be familiar
with the Loayza-Tamayo domicile.
e. Ms. María Elena Loayza-Tamayo was detained and held incommunicado under Article 2(20)(i) of
the 1979 Political Constitution of Peru and that, pursuant to Article 2 of
Decree-Law No. 25.744 of September 27, 1992, the National Police had the authority
to carry out preventive arrests of persons purportedly implicated, for a period
of fifteen days extendible for a further fifteen days under the Decree.
To the allegation that Ms. María Elena Loayza-Tamayo was kept in detention
after the Special Tribunal of the Supreme Council of Military Justice had
acquitted her through its judgment of August 11, 1993, the State responded
that a petition for special review had been filed against that judgment; the
trial was therefore still in progress and no final judgment has been rendered.
It was only on September 24, 1993, that the Full Chamber of the Special
Military Supreme Tribunal maintained that judgment, making it final; more
than fifteen calendar days had not elapsed "between
the date of the review petition and the date on which the process before the
civil jurisdiction was initiated (by means of the auto apertorio de instrucción);
in other words, the provision of the Political Constitution was not breached."
The State therefore denied that Ms. Loayza-Tamayo's
arrest and subsequent trial constituted a violation of her liberty and her
right to humane treatment.
f. During her interrogation by DINCOTE on February 15, 1993, Ms. María
Elena Loayza-Tamayo "did not in any of her replies claim that she had been tortured [or]
raped," and in the medical
examination she underwent "showing
that she was treated" for injuries resulting from sexual abuse, for
which reason the State refuted the allegations contained in the application
The State also denied that Ms. María Elena Loayza-Tamayo had been
g. The prosecution of persons accused of the crimes of terrorism and treason
is governed by Decree-Laws No. 25.475 (crime of terrorism) and No. 25,659
(crime of treason) respectively. Trials for the former crime are the province
of the civil courts, and for the latter that of Military Justice. Treason is not aggravated terrorism, but draws
"specific criminal actions [from
the former] and incorporates them into
the new crime, which cannot be interpreted as constituting the same unlawful
criminal act." Also, when the Special Supreme Military Tribunal
delivered
its judgment of August 11, 1993, it was simply ruling that the acts imputed
to María Elena Loayza-Tamayo did not constitute the crime of Treason, but
the crime of terrorism ... and [the] term acquittal used by the Military Justice
... is the procedural formula employed by the Military Justice when it deems
that acts imputed to a particular person are not provided for in D.L. 25.659
and its extensions, but in Decree-Law 25.475.
h. It claimed that the trial was conducted lawfully and that both the
military and the civil courts were independent and impartial, as were the
"faceless judges who tried María
Elena Loayza-Tamayo" in those courts. In its closing arguments the State also contended that Ms. María
Elena Loayza-Tamayo was not tried twice for the same acts and sentenced in
two trials, inasmuch as the Military Justice relinquished competence to hear
the case against her for treason, and referred the case for trial by the civil
or civil courts.
i. As to the claim that Ms. María Elena Loayza-Tamayo's attorney was not informed of the charges against her, the State claimed that the attorney and the defendant repeatedly submitted observations on the facts and processing of the case -paragraphs 15, 34 and 37 of the application- which suggests that they were perfectly aware of the proceeding and were not impeded in