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 the exercise
of their rights. It also denies that
the defense attorney or any other lawyer acting on Ms. María Elena Loayza-Tamayo's
behalf either in the military or civil courts, "had been subjected to intimidation or any other
tactics that prevented them from freely practicing their profession."
j. That on February 6, 1993, the date on which Ms. María Elena Loayza-Tamayo
was detained, a state of emergency had been declared in the Department of
Lima and the Constitutional Province of Callao under Supreme Decree 006‑93‑DE‑CCFFAA
of January 19, 1993, for a period of sixty days starting on January 22, 1993.
Further, the constitutional guarantees established in paragraphs 7 (inviolability
of domicile), 9 (free choice of domicile, and freedom of transit within the
national territory), 10 (freedom of unarmed association), and 20(g) (right
to personal liberty and security except, inter
alia, in cases of terrorism) of Article 2 of the 1979 Constitution of
Peru had been suspended.
k. In its closing arguments, Peru maintained that when the Commission
cross-examined the witnesses and experts at the public hearing held on February
5, 1997, it put questions that had no connection with the purpose of the hearing.
The State therefore requested that any statements by the witnesses
and expert opinions unrelated to the purpose for which they were called be
deemed neither to have been asked nor answered. It further argued that Ms.
Loayza-Tamayo's appearance as a witness before the Court was an anomaly inasmuch
as she was a party with a direct interest in the outcome of the case.
The State argued that the testimony of Luis Guzmán-Casas, Luis Alberto
Cantoral-Benavides, Juan Alberto Delgadillo-Castañeda, and Pedro Telmo Vega-Valle,
who were sentenced to prison terms for the crimes of terrorism and treason,
were biased as they had an interest in the outcome of the instant Case.
VIII
39. The Commission submitted copies of a series of documents and statements
concerning cumulative cases against a number of persons, including Ms. María
Elena Loayza-Tamayo, in the military and civil courts, and of reports from
the Office of the Attorney General, judgments, and copies of statements and
declarations. It also submitted official communications from several State
departments, newspaper clippings, two videos, reports from various organizations,
and some Peruvian legal texts.
40. The State produced evidence in the form of numerous documents relating
to the trials in the civil and military authorities, including prosecution
reports, judgments, copies of statements and declarations, official registration
of domicile, and some Peruvian legal texts.
41. In the instant Case the Court evaluates the documents submitted by
the Commission and the State, which, incidentally, were neither refuted nor
contested.
42. The State objected to certain witnesses called by the Commission, for
the reasons set forth in this Judgment (supra, para. 13), and the Court reserved the right to evaluate at
a later date the statements given at this stage of the proceeding, that is,
when it came to render its Judgment on the merits.
The Court observes that the criteria for evaluating evidence in an
international human rights tribunal are endowed with special characteristics.
This Court is not a criminal court; the grounds for objecting to witnesses
do not operate in the same way, so that the investigation into a State's international
liability for human rights violations bestows on the Court greater latitude
to use logic and experience in its evaluation of oral testimony. It should
be noted, in this particular, that the Court has found that
under
the American Convention on Human Rights, it is contradictory to deny a witness
a priori -on the ground that he has been prosecuted or even convicted
in the domestic courts- the opportunity to testify on facts in a case submitted
to the Court, even if that case refers to matters that affect him (Velásquez Rodríguez Case. Judgment of July
29, 1988. Series C No. 4, para. 145).
43. The Court's evaluation of the evidence contained in the statements
of the witnesses challenged by Peru is as follows. The Court considers that the statement given
by Ms. María Elena Loayza-Tamayo, as the alleged victim in this case with
a possible direct interest, should be evaluated in the context of the evidence
as a whole. The Court admits the other
statements only in so far as they relate to the purpose of the investigation
proposed by the Commission, and the expert opinions as they relate to national
or comparative law, without reference to the specific case.
44. In evaluating the evidence, the Court takes cognizance of the State's
observations on terrorism, which leads to an escalation of violence to the
detriment of human rights. However,
the Court cautions that exceptional circumstances cannot be invoked in order
to undermine human rights. None of
the provisions of the American Convention may be interpreted in such a way
as to allow States Parties or any group or person to suppress the enjoyment
or exercise of recognized rights or to restrict them to a greater extent than
is provided therein (Article 29(2). The origin of this precept is to be found as far back as the 1948
Universal Declaration of Human Rights (Article 30).
IX
45. The view of the Court is that the statements and expert opinions received
on Peruvian territory and at the seat of the Court were as follows:
a. Testimony of Juan Alberto Delgadillo-Castañeda
Juan
Alberto Delgadillo-Castañeda, convicted in Peru on a charge of terrorism,
testified as follows: he was accused of belonging to the "Shining Path",
the Communist Party of Peru; he was arrested at his home, taken to DINCOTE
where he was blindfolded, beaten, interrogated and threatened; he was later
taken to an unknown beach together with Ms. Loayza and another detainee by
the name of Delaine; they were questioned, tortured, and physically assaulted;
with his hands tied behind his back, he was placed head-first into the water. He was held incommunicado during his detention; 21 days after he was detained,
he was exhibited to the press wearing "prison stripes", together
with seven men and seven women; he was assigned a court-appointed counsel,
who wore an uniform and Balaclava helmet; he was not allowed to appoint an
attorney of his choosing, and he was taken before the military courts where
the trial lasted three days at the Army Veterinary Hospital; he was acquitted
during the oral proceedings before the military court of appeal. His second
trial, in the civil court system, was held at the office of the Director of
the Penitentiary in Ica, Cachiche. In
the military courts he was forced to corroborate the statement he had made
to the police; he was blindfolded and beaten. With regard to the prison regime,
he testified that they are locked up for twenty-three and a half hours; they
receive visits once a month for half an hour; the medical service is irregular;
they perform small tasks in prison. He
knew María Elena Loayza-Tamayo because they had spent 20 days in detention
together.
b. Testimony of Luis Guzmán-Casas
Luis
Guzmán-Casas, convicted of treason in Peru, testified that he was charged
with terrorism; he was sentenced to 25 years in prison by the military courts;
he was detained on January 6, 1993, without being shown an arrest warrant;
no representative of the Attorney General was present, only three policemen,
who said that they belonged to DINCOTE but showed no identification; they
blindfolded him and took him to DINCOTE, where he was held in a dark cell
for approximately 29 days; he was unable to speak to a Prosecutor because
none was present; approximately twelve days after he arrived at the police
establishment he was seen by a doctor, who merely asked him how he came to
have bruises; he was neither allowed to communicate with his family, nor was
he informed of his right to an attorney; when they interrogated him he was
blindfolded and bound and no lawyer was present; after one or two days he
was brought a paper which he refused to sign; when he asked for an attorney,
he was beaten and transferred to another cell in which he was kept in isolation,
blindfolded and bound; that night he was taken with a man and a woman to the
beach, where he was undressed, beaten, tortured, wrapped in a cloth and placed
in the sea; that same day they were torturing a woman by the name of María,
whom he did not know; he heard the policemen say that she had been raped,
but he did not see anything; he was acquitted on August 11 of the same year
and released on August 25, 1993; on September 12 or 13 he was again apprehended,
and tried in the military courts, where he was convicted; he receives visits
once a month; he is allowed to write to his family, but the letters are censored
by the warden of the block; he has asked for his sentence to be commuted;
he demanded that an attorney be present when he was questioned at DINCOTE;
in the military court he refused to be represented by the court-appointed
attorney assigned to him, who was dressed in military uniform; he did not
take advantage of the Repentance Law.
c. Testimony of Luis Alberto Cantoral-Benavides
Luis
Alberto Cantoral-Benavides, convicted in Peru for the crime of treason, testified
that he was arbitrarily detained on February 6, 1993, by members of DINCOTE;
the person they were seeking was his brother, who had been denounced by a
repentant terrorist by the name of Angélica Torres; at the time of his detention
and when he signed the act of seizure he was told that a prosecutor was present,
but no one presented himself in that capacity; there he was beaten; he did
not sign the paper presented to him by a member of DINCOTE, in which he was
accused of treason; after he was detained, they went to Ms. Loayza-Tamayo's
home which was pointed out to them by Angélica Torres, who identified Ms.
María Elena Loayza-Tamayo at the time of her detention; they apprehended her
and took them all to DINCOTE, where they were blindfolded and tied up in a
large room; he remained in detention for almost one month until March 4 or
5; he was kept bound and handcuffed; during questioning they were tortured
and subjected to physical and psychological abuse; he was taken to the beach
where he was undressed, wrapped in a cloth and placed head-first in the water;
they threw him onto the sand and twisted his arm, whereupon he fainted; his
brother was also taken to the beach and tortured, and told him that Ms. Loayza-Tamayo
has also been taken to the beach; during the oral proceeding in the civil
courts Ms. Loayza-Tamayo said that she had been taken to the beach and
tortured; the policemen who arrested him were wearing civilian clothes, as
was the prosecutor; the arrest had been led by Captain Zárate, and he could
hear that he was one of the persons who took him to the beach; he was held
incommunicado, and was presented to the press wearing "prison
stripes". He testified that he
was brought before the military courts and that his pretrial statement was
taken at the Navy Veterinary Hospital; the attorneys did not appear because
they had not been notified; the persons there always wore Balaclava helmets,
hoods and spectacles, were armed with "FALS", and wore military
uniform; one of their number was supposedly a court-appointed attorney in
uniform; he was acquitted by the military courts of first, second and third
instances, which ordered his release; his attorneys had been Dr. Iván Bazán
and Dr. Víctor Alvarez; his release was ordered but never effected; his attorney
filed a petition of habeas corpus which was twice rejected; he was then prosecuted
in the civil court; he was examined by a police doctor before he was tortured,
but was not examined afterwards; he did not have an attorney present when
he appeared before the police, in the military court, or in the civil court;
his attorney was present at the military court of second instance; Dr. Washington
Durand was only present when he gave his statement to the police, but was
not allowed to confer with him; in the first military court he was represented
by a court-appointed attorney.
d. Testimony of Pedro Telmo Vega-Valle
Pedro
Telmo Vega-Valle, convicted in Peru for the crime of treason, testified that
he was detained by members of DINCOTE on January 9, 1993, at his home for
his purported links to the terrorist organization "Shining Path";
no representative of the Office of the Attorney General was present; he was
then taken blindfolded to DINCOTE, where he was held for 27 days; he was made
to sign an act of seizure; he was interrogated and taken to the beach with
three other persons; once on the beach, he was undressed on the orders of
an officer in charge, and, still blindfolded, was thrown onto the sand, forced
to lie on a cloth, abused, wrapped in a cloth, and submerged face-up in the
water; he was beaten and lost consciousness; he was taken before the Naval
Military Tribunal; his attorney was present when his statement was taken,
but when they spoke there was an official nearby; he was represented by the
same attorney up to the time he was acquitted by the Special Tribunal of the
Supreme Council of Military Justice and released; he was subsequently rearrested
on the same charge; he had never met Ms. Loayza-Tamayo, as she was detained
after he was; in Cachiche they were beaten with an electrically charged rod
and abused; they complained of this treatment to the Red Cross, but when
this was discovered, they were terrorized by the police; they were only allowed
visits on the third Tuesday of every month; during the first week of August,
he learned that his wife had filed a complaint with the Attorney General and
the Prosecutor of Ica on the ground that he had been abused, beaten and tortured;
the Attorney General told him that this was normal practice, and that it was
the initiation meted out to all new inmates at all prisons.
e. Testimony of María Elena Loayza-Tamayo
María
Elena Loayza-Tamayo testified that she was accused by a repentant terrorist
and arrested on February 6, 1993, at a property she was having built; she
did not live in that building, but usually resided elsewhere with her parents,
sisters and children; the policemen, one of whom presented himself as Captain
Zárate, came in search of a manila envelope and informed her that she was
being arrested on the accusation of a repentant terrorist; she was put in
a car blindfolded and presented with an act of seizure which she refused to
sign; a prosecutor was present and she was taken to DINCOTE, where she was
bound, blindfolded, beaten and abused throughout the day; she was interrogated
by Captain Zárate; the police bound her hands and touched her all over her
body; they abused her and beat her; they took her to the beach together with
other detainees; she was blindfolded and bound; she was beaten, undressed,
and raped through the vagina and rectum, and plunged in the sea; she thought
that she fainted; the policemen continued to beat her on the way to DINCOTE;
every day she was abused and fondled; she saw her sister after fifteen days,
but was unable to speak to her; Captain Zárate was present when she was interrogated
on February 15; a statement was taken from her, in which she denied that she
belonged to any subversive group; Captain Zárate was also in charge of the
squad that arrested her and took her to the beach; she remained at the police
station from February 6 to 26, and was always kept handcuffed and blindfolded;
there were several persons there, and they slept on the floor; on March 3,
1993, she was taken to the establishment where she was currently held; she
had initially been detained at DINCOTE; she thought she had also been at the
Military Veterinary Hospital; the atmosphere there was like a prison, and
they slept on the floor; the military interrogation had taken place there;
she refused to cooperate in the initial interrogation on the ground that her
attorney was not present; on the second day the military prosecutors continued
to question her; she was assigned a court-appointed attorney, and the Judge
and the Naval Military Prosecutor were also present; she was harassed and
tortured, and threatened with the death of her sister and daughter to force
her to make a pretrial statement to ensure her family's safety; she was transferred
to the prison; the interrogation lasted about three days; she was acquitted
by the court of first instance; she never enjoyed the right to legal counsel
or to have her attorney present; when she was tried in the civil courts she
was in detention at Chorrillos Women's Maximum Security Prison; there the
inmates lived in blocks, there was no isolation cell, and all the cells were
the same; after she had been taken to the beach she was examined by a doctor
and told him that her arms were bruised; the only person present for her pretrial
statement at DINCOTE was Captain Zárate, but the prosecutor was not present;
when she made her pretrial statement before the Special Naval Court the persons
there were wearing hoods, and neither Captain Zárate nor her attorney attended;
the attorneys who represented her were Dr. Carolina Loayza-Tamayo and Dr.
Nicolás de Piérola.
f. Testimony of Víctor Alvarez-Pérez
Víctor
Alvarez-Pérez, defense attorney for witness Mr. Cantoral-Benavides, testified
that he felt fear in his professional task as the attorney for a co-defendant
in the case against María Elena Loayza-Tamayo; one reason was that the crime
of collaboration in terrorism was governed by law and he could be charged
with that crime or the crime of activities against the public administration;
a number of lawyers had been prosecuted on charges of terrorism; another reason
for his fear was that he had been investigated along with other lawyers, having
appeared on a secret list of persons allegedly suspected of unlawful practice
of the profession, comprising for the most part lawyers who were human rights
activists, including Carolina Loayza. He testified that he had received several
threats. The police arbitrarily and unlawfully decided
in which courts a detainee should be tried, without the legal authority to
do so; counter-insurgency legislation extended the military jurisdiction to
civil proceedings. He declared that
the military proceeding was irregular and the military judges faceless, wearing
hoods and military uniforms; they had no legal training, and could not be
recused. The military hearing took
place in a barracks on the Las Palmas military base, and was only one phase
of the judicial investigation, which was followed by an appeal to the Special
Naval Court Martial, which reviewed the judgment of the court, thence to the
Special Military Supreme Council also for review of the judgment; any representations
had to be made within ten days of being bound over for trial, before a court
of faceless military judges. The law
did not allow persons who took part in arrests to testify, and the only evidence
permitted were documents attesting to the person's honor.
Arrests of persons accused of terrorism were carried out with great
violence by policemen, and a prosecutor who played virtually no role because
he did not identify himself as such and did nothing to ensure that the detainee's
rights were respected; nor were the detainees informed of the charges against
them or the guarantees to which they were entitled.
Habeas corpus was prohibited in cases of terrorism.
He went on to say that María Elena Loayza-Tamayo had been detained
on the accusation of a repentant terrorist, whom no one had ever been able
to question; Ms. Loayza was accused of being a "Shining Path" leader
code-named "Rita"; a curious fact is that more than one "comadre
Rita" subsequently appeared in other case files, which was contradictory
inasmuch as the aliases of the leaders were never the same; the only evidence
against them was that they were, often falsely, denounced by repentant terrorists,
so that the accusers could reap the benefits of the Ley de Arrepentimiento (Law Repentant),
including that of keeping the repentant's identity secret, thus restricting
the defendant's right of defense. He
further testified that the detainees were held incommunicado, and that María Elena Loayza-Tamayo was tortured and
raped; many persons had been taken to the beach to be tortured by drunken
policemen; what is more, the detainees did not report their torture because
they were afraid, and because of the possibility of availing themselves of
the Amnesty Law; the crime of torture was not codified in Peruvian legislation;
the only complaint that could be brought was that of injury or abuse of authority.
He said that the defense had been obstructed, inasmuch as access to
the case file needed to be sought in writing; only 15 minutes were allowed
for a meeting with the defendant and those meetings never took place in private.
María Elena Loayza-Tamayo was acquitted of the crime of treason, but
was never released; she had been brought before the civil courts, where she
was subjected to a second trial for the same acts, and convicted after she
had been acquitted by the military court. In the civil court the judges sat
behind a dark glass and were not visible, and their voices were distorted;
they could not be recused because this was not permitted by Peruvian legislation
and because the identity of the judges was unknown. The normal procedure comprised
a pretrial phase, after which the judge and the prosecutor handed down a decision
which was then referred to the Criminal Chamber of the Supreme Court, where
the oral proceeding took place; in that court neither the judge nor the prosecutor
wore hoods. In conclusion, the witness
told the Court that a state of emergency had existed in Peru since the upsurge
of political violence, but that a group of basic rights were still protected;
however, the counter-insurgency legislation did not permit petitions of habeas
corpus during a state of emergency.
g. Testimony of Iván Arturo Bazán-Chacón
Iván
Bazán-Chacón, defense attorney for witness Pedro Telmo Vega-Valle, testified
that in 1992 a political process had taken place in Peru; it was known as
the National Reconstruction Process, and in it President Alberto Fujimori
had dissolved Congress, reorganized the Judiciary and the Ministry of the
Interior, dissolved the Tribunal of Constitutional Guarantees and the National
Council of the Judiciary, and initiated a period of emission of legislation
by means of decree-laws, on account of the grave political and social problem
caused by the escalation of the violence and the destruction inflicted by
subversive elements; the list of crimes was expanded to include the new crime
of treason; the military jurisdiction was also expanded and authorized to
prosecute civilians on charges of treason, imposing restrictions on the right
of defense, and keeping secret the identity of the military judges and the
prosecutors and clerks of the Superior Tribunals of the civil court system. Regarding the right of defense, he explained
that persons investigated or prosecuted on a charge of terrorism or treason
were labeled, and that this also extended to their attorneys. He reported that in 1993, several lawyers had
been prosecuted and that in the early months of that year Decree-Law No. 25.475
(crime of terrorism) was enacted and prohibited a lawyer from defending more
than one person on trial on a charge of terrorism. He further testified that access to the case
files had to be applied for in writing and was subject to a notified decision;
in the case of his client, Mr. Pedro Telmo Vega, the case file consisted
of nine volumes, and he was granted only seven hours in which to examine it,
so that he could hardly apprise himself of all the judicial proceedings. The
witness testified that Decree-Law No. 25.475 (crime of terrorism) stipulates
that a person convicted of that crime must spend one year in continuous solitary
confinement, which involved receiving no visits from his relatives and not
being allowed to confer with his attorneys. He said that Ms. Loayza-Tamayo had the right to be visited by her
attorney once a week for a limited time; Ms. Loayza-Tamayo received a visit
from her defense attorney once a week on Tuesdays; contact was made using
a booth, and lasted fifteen minutes; any communication the attorney wished
to deliver had first to be censored by the person in charge; detainees had
no access to newspapers or magazines; visits -only allowed to close relatives-
were permitted once a month and lasted thirty minutes. Ms. Loayza-Tamayo has two sons and the regime
of visits for minors was thirty minutes every three months, which meant that
she could only see them for a total of two hours each year. The witness testified that these visits were
all made without any physical contact. He did not enjoy full guarantees to
act, and that although he had not himself been directly harassed or intimidated,
his colleagues had been, some having even been prosecuted on charges of terrorism.
He hoped that nothing would happen to him on his return to the country.
He knew that persons detained in connection with the Loayza Tamayo
case had been tortured; they apparently received no medical care since the
forensic doctor performed only a very superficial examination; he knew of
no case in which members of the security forces accused of torturing detainees
had been punished or investigated. He
said that in Peru there was no autonomous codification of the crime of torture,
and that complaints could only be filed for injuries and abuse of authority. He referred to the enactment in 1995 of the
Amnesty Law which allowed them to go unpunished, inasmuch as it ordered the
discontinuance of all judicial proceedings and administrative or legal investigations
of events connected with the fight against subversion. On the topic of Ms. Loayza-Tamayo's incarceration,
the witness testified that she was transferred from Block A to Block C, where
she was subjected to a regime in which those indicted on charges of terrorism
were obliged to remain in their cells for twenty-three and a half hours and
were only allowed into the courtyard for half an hour, unlike the regime in
Block A, where there was greater flexibility and some tasks could be performed.
He said that statistics disseminated by the Special Tribunal of the
Supreme Council of Military Justice on trials for the crime of terrorism showed
that acquittals since 1992 accounted for three percent; he knew of cases in
which innocent persons had been convicted; Ms. Loayza-Tamayo was acquitted
by the military court but was not released, and was later convicted in the
civil courts for the same facts of which the military court had acquitted
her. He said that in the military proceeding
an appeal could be filed against a conviction by the military examining magistrate
with the Military Court Martial, and later with the Special Tribunal of the
Supreme Court of Military Justice, which was the court of last instance.
The judicial investigation in the civil court system did not culminate
in any jurisdictional decision; it was followed by the oral proceeding in
which a special faceless chamber rendered a judgment, which could be examined
by the Supreme Court of Justice through an equally faceless Special court.
h. Expert report of Hector Faúndez-Ledezma
Expert
and university professor Hector Faúndez Ledezma referred to the right to personal
liberty, the ways in which arrests were made and their arbitrariness. He explained the general conditions and principles on which a fair
trial were based, mentioning the principle of non bis in idem and the content of Article 27 of the Convention.
i. Expert opinion of Julio Maier
Expert
and university professor Julio Maier referred to the principle of non
bis in idem, to the principle of innocence, the statement of the accused
as a means of defense, and to the broad interpretation that could be given
to the American Convention.
j. Expert opinion of León Carlos
Arslanian
Expert
León Carlos Arslanian, who was a member of the Commission of International
Jurists on the Administration of Justice in Peru in 1993, referred to the
harassment, tactics of intimidation and threats used by the Intelligence Bureau
of the Ministry of the Interior of Peru against attorneys defending the human
rights of persons accused of terrorism. He
said that, studying Peruvian legislation with other experts and comparing
it to international rules, he had encountered contradictions.
As an example, he cited the fact that a number of decrees described
treason and terrorism in identical terms, making for uncertainty as to which
law was to be applied, and making for arbitrariness.
X
46. The Court deems the following facts to have been proven:
a. That on February 6, 1993, Ms. María Elena Loayza-Tamayo was detained
by members of DINCOTE at a property she owned on Mitobamba Street, Block D,
Lot 18, Los Naranjos Estate, Los Olivos District, Lima, Peru (cf. 1994 Report
of the Task Force of the Government of Peru; Expanded Police Report No. 049-DIVICOTE
3-DINCOTE of February 25, 1993; DINCOTE notification of detention of María
Elena Loayza-Tamayo on February 6, 1993; Report No. 176-93-DEGPNP-EMP-EMG/DIPANDH;
María Elena Loayza-Tamayo's statement to DINCOTE of February 15, 1993; testimony
of María Elena Loayza-Tamayo of December 12, 1996, and that of Luis Alberto
Cantoral-Benavides of December 11, 1996).
b. That when María Elena Loayza-Tamayo was detained, there existed in
the Department of Lima and in the Constitutional Province of Callao a state
of emergency and suspension of the guarantees provided in Article 2(7), (9),
(10), and (20)(g) of the Peruvian Constitution in force at that time (cf.
1979 Political Constitution of Peru, and Supreme Emergency Decree No. 006-93-DE-CCFFAA
of January 19, 1993; and answer to the application).
c. That from February 6 to 26, 1993, Ms. María Elena Loayza-Tamayo was
held in administrative detention at DINCOTE, and was held incommunicado from February 6 to 15 (cf.
1994 Report of the Task Force of the Government of Peru; Expanded Police Report
No. 049-DIVICOTE 3-DINCOTE of February 25, 1993; statement of María Elena
Loayza-Tamayo of February 15, 1993, to DINCOTE; testimony of Juan Alberto
Delgadillo-Castañeda, Luis Guzmán-Casas, and Luis Alberto Cantoral-Benavides
of December 11, 1996; testimony of María Elena Loayza-Tamayo of December 12,
1996; testimony of Víctor Alvarez-Pérez of February 5, 1997, and expert opinion
of León Carlos Arslanian of February 5, 1997; application; answer to the application);
she was unable to exercise her right to file an action for the safeguard of
her personal liberty, or to question the lawfulness or arbitrariness of her
arrest (cf. Decree-Laws No. 25.475 (crime of terrorism), and No. 25.659 (crime
of treason)).
d. That Ms. María Elena Loayza-Tamayo, together with other persons, was
exhibited publicly through the media wearing "prison stripes", and
introduced as a terrorist, although she had been neither tried nor convicted
(cf. Article in the daily newspaper "La República" of Lima, Peru,
entitled, "Fourteen Senderistas who killed eight soldiers and dynamited
two police stations are apprehended," of February 27, 1993, and videotape
produced as evidence by the Commission).
e. That Ms. María Elena Loayza-Tamayo was not allowed to communicate with
her family while she was held incommunicado at DINCOTE, and during that period she was examined
by a doctor, who diagnosed ecchymosis (cf. Testimony of María Elena Loayza-Tamayo
of December 12, 1996; copy of detailed medical certificate No. 5323-L of February
8, 1993; official communication No. 3623-94 MP-FN of November 19, 1994, and
official communication No. 3064-94 MP-FN of November 8, 1994).
f. That Ms. María Elena Loayza-Tamayo was tried -together with other defendants
in a cumulative trial- for the crime of treason in the military courts; that
on February 25, 1993, Police File No. 049‑DIVICOTE 3-DINCOTE was opened
for that crime; that she was subsequently brought for trial before the Special
Naval Court and, by decision of that Court, was released, was held at the
Army Veterinary Hospital from February 27 to March 3, 1993; on March 5, 1993
she was acquitted by the Special Naval Court; on April 2, 1993, she was convicted
by the Special Naval Court Martial; on August 11, 1993, she was acquitted
of the crime of treason by the Special Tribunal of the Supreme Council of
Military Justice, and on September 24, 1993, the Full Chamber of the Special
Supreme Military Tribunal upheld Ms. María Elena Loayza-Tamayo's acquittal;
that the proceedings were summary (cf. Police Report No. 049‑DIVICOTE
3‑DINCOTE of February 25, 1993; judgment of March 5, 1993, of the Special
Naval Court, judgment of April 2, 1993 of the Special Naval Court Martial;
judgment of August 11, 1993, of the Special Tribunal of the Supreme Council
of Military Justice; and judgment of September 24, 1993, of the Full Chamber
of the Special Supreme Military Tribunal).
g. That Ms. Loayza-Tamayo remained in detention from September 24, 1993,
the date on which the Full Chamber of the Special Military Tribunal upheld
her acquittal, until October 8 of that year, when she was bound over for trial
in the civil courts (cf. judgment of September 24, 1993, of the Full Chamber
of the Special Supreme Military Tribunal; ruling of the Forty-third Criminal
Court of Lima of October 8, 1993, a closing for trial; testimony of María
Elena Loayza-Tamayo of December 12, 1996; brief containing the Commission's
application; brief containing the State's answer to the application; brief
of closing arguments of the Commission, and the 1994 Report of the Task Force
of the Government of Peru).
h. That Ms. María Elena Loayza-Tamayo was later tried in the civil court
system for the crime of terrorism; that on October 8, 1993, the Forty-third
Criminal Court of Lima initiated the proceedings; that on October 10, 1994,
the faceless Special Tribunal of the civil court system sentenced her to twenty
years in prison, and on October 6, 1995, the Supreme Court of Justice upheld
that sentence (cf. Order of the Forty-third Criminal Court of Lima of October
8, 1993; judgment of October 10, 1994, of the faceless Special Tribunal of
the civil court system, and judgment of October 6, 1995, of the Supreme Court
of Justice).
i. That military justice is also meted out to civilians in Peru; that
Ms. María Elena Loayza-Tamayo was tried in both the military and the civil
court system by "faceless judges"; that it was DINCOTE that classified
as unlawful the acts which were used as grounds in both jurisdictions (cf.
Decree-Laws No. 25.659 (crime of treason) and No. 25.475 (crime of terrorism);
Police Report No. 049-DIVICOTE 3-DINCOTE
of February 25, 1993, and the 1994 Report of the Task Force of the Government
of Peru).
j. That the military court system followed a practice of obstruction of
the right of persons accused of treason to be represented by a lawyer of their
own choosing (cf. Testimony of Juan Alberto Delgadillo-Castañeda, Luis Guzmán-Casas,
and Luis Alberto Cantoral-Benavides of December 11, 1996; of María Elena Loayza-Tamayo
of December 12, 1996; of Víctor Alvarez-Pérez of February 5, 1997; and expert
opinion of León Carlos Arslanian of February 5, 1997; there was no freedom
of choice during the pretrial investigation of Ms. María Elena Loayza-Tamayo
in the military courts; that, however, during the trial on the charge of terrorism
in the civil courts, she was allowed to be represented by the attorney of
her choice; access to the case file was obstructed, as was the right to free
and full exercise of her right of defense (cf. Testimony of María Elena Loayza-Tamayo
of February 15, 1993; testimony of Víctor Alvarez-Pérez and Iván Arturo Bazán-Chacón
of February 5, 1997; expert report of León Carlos Arslanian of February 5,
1997, and Decree-Law No. 25.475 (crime of terrorism)).
k. That Ms. María Elena Loayza-Tamayo has been continuously deprived of
her freedom from February 6, 1993, up to the present (cf. Notification of
detention of María Elena Loayza-Tamayo of February 6, 1993; statements of
María Elena Loayza-Tamayo of December 12, 1996, and of Luis Alberto Cantoral-Benavides
of December 11, 1996; Expanded Police Report No. 049-DIVICOTE 3-DINCOTE; Document
No. 2630-DIVICOTE 3-DINCOTE of June 30, 1993, and the 1994 Report of the Task
Force of the Government of Peru); that she is still incarcerated in Block
"C" of the Chorrillos Women's Maximum Security Prison, where she
is housed in a tiny cell, without natural light, is allowed half an hour's
sunlight each day, is held in continuing isolation and subjected to highly
restrictive regime of visits- even from her children-, which situation was
the subject of provisional measures before this Court (cf. Judgment of October
6, 1995, of the Supreme Court of Justice; Decree-Law No. 25.475 (crime of
terrorism); official communication No. 7-5 M/121 from Peru of April 29, 1996,
and Order of September 13, 1996, of the Inter-American Court).
l. That during the period when Ms. María Elena Loayza-Tamayo was detained
there was a widespread practice in Peru of cruel, inhuman and degrading treatment
during criminal investigations into the crimes of treason and terrorism (cf.
Testimony of Juan Alberto Delgadillo-Castañeda, Luis Guzmán-Casas, Luis Alberto
Cantoral-Benavides, and Pedro Telmo Vega-Valle of December 11, 1996; of María
Elena Loayza-Tamayo of December 12, 1996; of Víctor Alvarez-Pérez and Iván
Arturo Bazán-Chacón of February 5, 1997; expert report of León Carlos Arslanian;
newspaper article entitled "Confesión a Golpes" ("Beaten into
Confession"), and Report of the National Coordinator of Human Rights
on the situation of torture in Peru and other cruel, inhuman or degrading
treatment, January 1993 to September 1994).
XI
47. Before considering the arguments adduced by the parties, the Court
must dispose of Peru's objection of "inadmissibility of the application on the ground of non-exhaustion of
domestic remedies ...," in which it considered that the Court had
"improperly arrogated jurisdiction
to itself."
48. The Court deems that, with that argument, Peru is attempting to reopen,
at the current stage of consideration of the merits of the Case, a question
of admissibility already ruled on by the Court. It therefore dismisses the argument on grounds
of gross impropriety, inasmuch as it deals with a matter already disposed
of in the Judgment of January 31, 1996 (supra, para. 12), which is final and nonappealable.
XII
49. The Court now turns to the arguments and evidence submitted by the
parties, and deems that:
a. The fact that Ms. María Elena Loayza-Tamayo was apprehended on February
6, 1993, by members of DINCOTE at a building located at Mitobamba Street,
Block D, Lot 18, Los Naranjos Estate, Los Olivos District, Lima, Peru, is
not in dispute, nor is the allegation that she was held incommunicado between February 6 and 15,
1993 (supra, para. 46(a) and (c)).
b. It is for this Court to determine whether that detention was carried
out in conformity with Article 7 of the Convention and, if so, whether the
state of emergency and suspension of guarantees imposed in the Department
of Lima and the Constitutional Province of Callao as of January 22, 1993,
is germane to the instant case.
50. Article 27 of the American Convention governs the suspension of guarantees
in time of war, public danger, or other emergency that poses a threat to the
independence or security of a State Party, in which eventuality the latter
must inform the other States Parties, through the Secretary General of the
OAS, "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."
While it is true that personal liberty is not expressly included in
those rights, the suspension of which is, in any event, not authorized, it
is equally true that the Court has found that
writs
of habeas corpus and of "amparo" are among those judicial remedies
that are essential for the protection of various rights whose derogation is
prohibited by Article 27(2) and that serve, moreover, to preserve legality
in a democratic society [and that] the Constitution and legal systems of the
States Parties that authorize, expressly or by implication, the suspension
of the legal remedies of habeas corpus or of "amparo" in emergency
situations cannot be deemed to be compatible with the international obligations
imposed o these States by the Convention
(Habeas Corpus in Emergency Situations) (Arts. 27(2), 25(1) and 7(6) American
Convention on Human Rights), Advisory Opinion OC-8/87 of January 30, 1987.
Series A No. 8, paras. 42 and 43).
...the 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 (Judicial Guarantees in
States of Emergency (Arts. 27(2), 25 and 8 American Convention on Human Rights),
Advisory Opinion OC-9/87 of October 6, 1987. Series A No. 9, para. 38).
51. Article 6 of Decree-Law No. 25.659 (crime of treason) provides that
[a]t
no stage of the police investigation and the criminal proceedings may detainees
implicated or prosecuted for the crime of terrorism, and covered by Decree-Law
No. 25.474, file Guarantee Remedies, or petitions against the provisions of
the present Decree-Law.
The
Court notes in its file on the case before it that the police notified Ms.
María Elena Loayza-Tamayo on February 6, 1993, that she was being apprehended
in connection with "the crime of terrorism."
The
State has argued that while Ms. María Elena Loayza-Tamayo lacked access to
the remedy of habeas corpus, she could have sought other remedies, which,
nonetheless, Peru did not specify.
52. The Court considers that, pursuant to Article 6 of Decree-Law No. 25.659
(crime of treason), Ms. María Elena Loayza-Tamayo did not have the right to
file a petition for any guarantee to safeguard her personal liberty or challenge
the lawfulness of her detention (supra, para. 46(c)), irrespective of whether guarantees had or had
not been suspended.
53. While Ms. María Elena Loayza-Tamayo was held incommunicado and during her subsequent
trial, she was unable to avail herself of guarantee remedies, which, in the
view of this Court, may not be suspended.
54. With all the more reason, this Court deems it unlawful that Ms. María
Elena Loayza-Tamayo was kept in detention after the final judgment handed
down by the military court on September 24, 1993, and until the order was
issued for her to be bound over for trial was issued in the civil courts on
October 8 of that year. The trial proceedings show that Article 6 of Decree-Law
No. 25.659 (crime of treason) was also applied during that period.
55. The Court therefore finds that Peru violated Ms. María Elena Loayza-Tamayo's
right to personal liberty and the guarantee of judicial protection enshrined,
respectively, in Articles 7 and 25 of the American Convention.
XIII
56. The Inter-American Commission claimed that Peru violated Ms. María
Elena Loayza-Tamayo's right to humane treatment, in breach of Article 5 of
the Convention.
57. The violation of the right to physical and psychological integrity
of persons is a category of violation that has several gradations and embraces
treatment ranging from torture to other types of humiliation or cruel, inhuman
or degrading treatment with varying degrees of physical and psychological
effects caused by endogenous and exogenous factors which must be proven in
each specific situation. The European
Court of Human Rights has declared that, even in the absence of physical injuries,
psychological and moral suffering, accompanied by psychic disturbance during
questioning, may be deemed inhuman treatment. The degrading aspect is characterized
by the fear, anxiety and inferiority induced for the purpose of humiliating
and degrading the victim and breaking his physical and moral resistance (cf.
Eur. Cour H.R., Case of Ireland v. the
United Kingdom, judgment of 18 January 1978, Series A no. 25, para. 167).
That situation is exacerbated by the vulnerability of a person who
is unlawfully detained (cf. Eur. Court HR, Ribitsch v. Austria judgment
of 4 December 1995, Series A no. 336, para. 36). Any use of force that is not strictly necessary to ensure proper
behavior on the part of the detainee constitutes an assault on the dignity
of the person (cf. Ibid., para.
38), in violation of Article 5 of the American Convention. The exigencies of the investigation and the undeniable difficulties
encountered in the anti-terrorist struggle must not be allowed to restrict
the protection of a person's right to physical integrity.
58. Although the Commission contended in its application that the victim
was raped during her detention, after examination of the file and, given the
nature of this fact, the accusation could not be substantiated. However, the other facts alleged, such as incommunicado detention, being exhibited
through the media wearing a degrading garment, solitary confinement in a tiny
cell with no natural light, blows and maltreatment, including total immersion
in water, intimidation with threats of further violence, a restrictive visiting
schedule (supra, para. 46 c., d.,
e., k. and l.), all constitute forms of cruel, inhuman or degrading treatment
in the terms of Article 5(2) of the American Convention. A study of the arguments and evidence proffered shows grave and convergent acts that were not refuted by the
State and give reason to believe that cruel, inhuman and degrading treatment
was meted out in the instant case of Ms. María Elena Loayza-Tamayo, in violation
of her right to humane treatment enshrined in Article 5 of the American Convention.
XIV
59. The Commission claimed that in the trials conducted in the military
criminal courts for the crime of treason and in the civil courts for the crime
of terrorism, against Ms. María Elena Loayza-Tamayo, the Peruvian State violated
the following rights and guarantees of due process enshrined in the American
Convention: Right to a hearing by an Independent and Impartial Tribunal (Article
8(1)); Right to be Presumed Innocent (Article 8(1) and 8(2)); Right to Full
Equality during the proceedings (Article 8(2)); Right to Defend Oneself (Article
8(2)(d)); Right not to be Compelled to be a Witness Against Oneself and not
to be Subject to Coercion of any Kind (Articles 8(2)(g) and 8(3)); and the
Judicial Guarantee not to be subjected to Double Jeopardy (Article 8(4)).
60. The Court deems it unnecessary to rule on the Commission's argument
that the military tribunals that tried Ms. María Elena Loayza-Tamayo lacked
independence and impartiality, requirements embodied in Article 8(1) of the
Convention as prerequisites of due process, inasmuch as Ms. María Elena Loayza-Tamayo
was acquitted by that military court and, therefore, the possible failure
to meet those requirements did not cause her legal injury in that regard,
irrespective of the other violations which will be examined in the following
paragraphs of this Judgment.
61. First and foremost, in applying Decree-Laws No. 25.659 (crime of treason)
and No. 25.475 (crime of terrorism) enacted by the State, Peru's military
courts violated Article 8(1) of the Convention with regard to the requirement
to be tried by a competent court. Indeed, in rendering a final judgment acquitting the defendant Ms.
María Elena Loayza-Tamayo of the crime of treason, the military court lacked
jurisdiction to keep her in detention, let alone to declare in the verdict
of acquittal of last instance, that "there being evidence of the commission of the crime of terrorism, it orders
the case file to be remitted to the civil courts, and the defendant to be
placed in the custody of the competent authority." In so doing, the military tribunal acted ultra vires, usurped jurisdiction, and
arrogated to itself the powers of the regular judicial organs, inasmuch as
Decree-Law No. 25.475 (crime of terrorism) stipulates that the aforesaid crime
is to be investigated by the National Police and the Ministry of the Interior,
and tried in the civil courts. Further, the regular judicial authorities were
the only organs with the power to order the detention and imprisonment of
the persons accused. As may be seen
from the foregoing, the aforementioned Decree-Laws No. 25.659 (crime of treason)
and No. 25.475 (crime of terrorism) separated the jurisdiction of the military
and civil courts, assigning the crime of treason to the former, and the crime
of terrorism to the latter.
62. Secondly, Ms. María Elena Loayza-Tamayo was tried and convicted by
application of an exceptional procedure in which it is obvious that the fundamental
rights embodied in the concept of due process were greatly restricted.
Those proceedings do not meet the criteria of a fair trial, since the
presumption of innocence was not observed; the defendants were not allowed
to challenge or examine the evidence; the defense attorney's power was curtailed
in that he could not communicate freely with his client or intervene in all
stages of the proceeding in full possession of the facts. The fact that Ms.
María Elena Loayza-Tamayo was convicted in the civil courts on evidence allegedly
obtained in the military courts -even though the latter lacked jurisdiction‑
militated against her on two occasions in the civil courts.
63. Peru, by means of the military courts, breached Article 8(2) of the
Convention, in which the principle of innocence is embodied, by accusing Ms.
María Elena Loayza-Tamayo of a different crime to the one for which she was
prosecuted and convicted, without having jurisdiction to do so, since, in
any event, as indicated above (supra,
para. 61) that charge could only be brought by the competent civil courts.
64. The Commission contends that Ms. María Elena Loayza-Tamayo was coerced
into testifying against herself and admitting that she had participated in
the acts for which she was charged. There is no such evidence on the record,
for which reason the Court deems that there is no proven violation of Article
8(2)(g) and 8(3) of the American Convention.
65. The Commission requested reparation for Ms. Carolina Loayza-Tamayo,
defense counsel for Ms. María Elena Loayza-Tamayo, for the alleged intimidation
tactics and false accusations to which she was subjected by DINCOTE.
The Court observes that the aforesaid attorney was not listed as a
victim in the report submitted to the State by the Commission, in accordance
with Article 50 of the Convention, and therefore deems the request to be inadmissible.
XV
66. With regard to the Commission's complaint of the violation of the judicial
guarantee that prohibits double jeopardy, to the detriment of Ms. María Elena
Loayza-Tamayo, the Court observes that the principle of non bis in idem is established in Article
8(4) of the Convention in the following terms:
...
4.
An accused person acquitted by a nonappealable judgment shall not be
subjected to a new trial for the same cause.
This
principle is intended to protect the rights of individuals who have been tried
for specific facts from being subjected to a new trial for the same cause. Unlike the formula used by other international human rights protection
instruments (for example, the United Nations International Covenant on Civil
and Political Rights, Article 14(7), which refers to the same "crime"), the American Convention uses
the expression "the same cause,"
which is a much broader term in the victim's favor.
67. In the instant Case, the Court observes that Ms. María Elena Loayza-Tamayo
was tried in the military criminal courts for the crime of treason, which
is closely linked to the crime of terrorism, as may be seen from a comparative
reading of Article 2(a), (b) and (c) of Decree-Law No. 25.659 (crime of treason)
and Articles 2 and 4 of Decree-Law No. 25.475 (crime of terrorism.)
68. Both Decree-Laws refer to actions not strictly defined, so that they
may be interpreted similarly within both crimes, in the view of the Ministry
of the Interior and the corresponding judges and, as in the case under consideration,
of the "Police (DINCOTE) itself."
Consequently, the aforementioned Decree-Laws are contrary to Article
8(4) of the American Convention in this regard.
69. The Special Naval Court, in its judgment of March 5, 1993, which remained
in force after all the available appeals had been exhausted, acquitted Ms. María
Elena Loayza-Tamayo of the crime of treason, specifying that since
"there
is evidence and signs in the records that suggest liability ... for the crime
of terrorism, an unlawful activity codified in Decree Law Number twenty-five
thousand four hundred and seventy-five, it is appropriate that a certified
copy of all the police and judicial files be remitted to the Provincial Prosecutor
... so that the appropriate authority may take cognizance of them and act
in accordance with their legal powers...."
70. The Court does not accept the State's argument that the judgment of
March 5, 1993, "merely finds that
the acts attributed to Ms. María Elena Loayza-Tamayo do not constitute the
crime of treason, but that of terrorism, [since] the term acquittal used by the Military Justice
... is not used with its usual meaning ...". In the aforementioned
judgment, which concluded a case in which others were also involved, the Tribunal,
in referring to some of them, used the phrase "relinquished jurisdiction to consider the case
in regard to .... "If the judicial intention had been to restrict
its ruling to a matter of no jurisdiction, it would have used the same term
when referring to Ms. María Elena Loayza-Tamayo. It did not do so, but used the term "acquittal" instead.
71. The Commission submitted copies of several judgments rendered by the
military tribunals to demonstrate that, when that jurisdiction deems itself
to lack jurisdiction to hear a similar case, it uses the juridical concept
of "relinquishment." In one such case, the Special Naval Court Martial
decided "[its r]elinquishment ...
in favor of the civil courts, and that the proceedings should be remitted
to the District Attorney in charge, inasmuch as they constitute facts relating
to the crime of Terrorism, so that it may rule according to its jurisdiction;
and they returned them."
72. The Court observes that the Special Naval Examining Magistrate, in
acquitting Ms. María Elena Loayza-Tamayo and other defendants, handed down
a judgment using the usual procedure, when he said
Administering
Justice on behalf of the Nation, weighing objectively the evidence for and
against, in exercise of the authority conferred in Article One of Decree-Law
twenty-five thousand seven hundred and eight, and Article One of Decree-Law
twenty-five thousand seven hundred and twenty-five, in accordance with the
Constitutional Law of the sixth of January nineteen hundred and ninety-three.
He
also ruled the request concerning "the
payment of civil reparation inadmissible," such reparation being
proper only when a person is acquitted, and not when the court deems itself
to lack jurisdiction.
73. Accordingly, in the firm judgments rendered by the military and civil
tribunals in relation to Ms. María Elena Loayza-Tamayo, the grounds for her
acquittal and her subsequent conviction were not specified, and can only be
determined from the police files and the corresponding charges.
74. Before the military courts, the aforementioned facts were imprecisely
stated in Expanded Police Report No. 049-DIVICOTE 3-DINCOTE of February 25,
1993; more specifically, in the part relating to the charge brought by the
Military Prosecutor in the Special Naval Court on March 4 of that year, Ms.
María Elena Loayza-Tamayo was accused of
[being
a member] of the Departamento de Socorro Popular [People's
Assistance Department] of the Peruvian Communist Party Shining Path, and a
member of the 'Leadership Cell,' and was in charge of elaborating the plans
for each campaign or given period, and plan, supervise, control and provide
logistical support to the detachments and troops that carry out the various
terrorist acts.
...
It
was also decided that María Elena Loayza-Tamayo, alias 'Rita' [is an author]
of the crime of Treason and is covered under Decree-Law No. 25.659 for the
following reasons:
-
For having carried out activities for the Communist Party of Peru-Shining
Path terrorist organization, using firearms and explosive devices.
-
For being a member of the leadership of the PCP-SL terrorist organization:
"Communist," "Political Command," "Military Command,"
"Activist," "Combatants," all designations corroborated
in her statements, acts of recognition, and documents seized.
-
For belonging to a group dedicated to "annihilating" various
persons and as such responsible for selecting targets and planning and executing
those actions ....
-
For having consistently demonstrated that she has been ideologically
schooled and occupies an important position within the terrorist organization
by steadfastly denying her association with it or admitting to as little as
possible in order to pretend to be what she is not and prove her alibi in
order to avoid being held criminally accountable, which is typical of the
members of that organization and reveals their cynicism and fanaticism about
preserving their "golden rule" (secrecy and not informing), thus
adhering to the tenets of their doctrine.
-
It has been established that the properties on which meetings were
held to plan, coordinate, pass along instructions from above, evaluate actions,
render accounts, and for political ideological indoctrination are the following:
-
The building owned by María Elena Loayza-Tamayo, alias 'Rita,' where
Nataly Mercedes Salas-Morales, alias 'Cristina,' and Vilma Ulda-Antaurco,
alias 'Mónica' lived clandestinely...
75. The accused was bound over for trial by the Forty-third Criminal Court
of Lima on October 8, 1993, on the basis of the same Expanded Police Report.
The pertinent part of that order maintained that
The
same order required DINCOTE to remit the documents, police statements, and
attachments to the aforementioned police report, including the statements
by Ms. María Elena Loayza-Tamayo, the notification of her arrest, her civil
record, the official documentation concerning her domicile, and the documents
seized there.
76. The Court deems that in the instant case, Ms. María Elena Loayza-Tamayo
was acquitted of the crime of treason in the military jurisdiction, not only
because of the technical acceptation of the word "acquittal," but
also because the military court, instead of declaring itself to lack jurisdiction,
took cognizance of the facts, circumstances and evidence relating to the alleged
acts, evaluated them, and ruled to acquit her.
77. In the light of the foregoing, the Court finds that the Peruvian State
violated Article 8(4) of the American Convention with Ms. María Elena
Loayza-Tamayo's trial in the civil jurisdiction for the same facts of which
she had been acquitted in the military jurisdiction.
XVI
78. The Commission requested the Court to find that the State violated
Article 51(2) of the Convention by refusing to "comply with the recommendations made by the
Commission."
79. The Court has previously stated that, in accordance with the stipulation
regarding interpretation contained in Article 31(1) of the Vienna Convention
on the Law of Treaties, the term "recommendations" used by the American Convention, should be interpreted
to conform to its ordinary meaning (Caballero Delgado and Santana Case, Judgment of December 8, 1995.
Series C No. 22, para. 67, and Genie
Lacayo Case, Judgment of January 29, 1997. Series C No. 30, para. 93).
80. However, in accordance with the principle of good faith, embodied in
the aforesaid Article 31(1) of the Vienna Convention, if a State signs and
ratifies an international treaty, especially one concerning human rights,
such as the American Convention, it has the obligation to make every effort
to apply with the recommendations of a protection organ such as the Inter-American
Commission, which is, indeed, one of the principal organs of the Organization
of American States, whose function is "to promote the observance and defense of human rights" in the
hemisphere (OAS Charter, Articles 52 and 111).
81. Likewise, Article 33 of the American Convention states that the Inter-American
Commission is, as the Court, competent "with respect to matters relating to the fulfillment
of the commitments made by the State Parties", which means that by
ratifying said Convention, States Parties engage themselves to apply the recommendations
made by the Commission in its reports.
82. With respect to this matter, the Court is of the opinion that it cannot
decide whether article 51(2) of the Convention was violated or not in a case
which, like the present one, has been submitted before the Court, because
the report established in the above-mentioned Article does not exist.
XVII
83. In its application, the Commission requested that the Court order Peru
to repair "in full María Elena
Loayza-Tamayo for the grave harm --material and moral-- suffered by her"
and to order her "immediate release"
Article
63(1) of the American Convention reads as follows:
[i]f
the Court finds that there has been a violation of a right or freedom protected
by this Convention, the Court shall rule that the injured party by insured
the enjoyment of his right or freedom that was violated.
It shall also rule, if appropriate, that the consequences of the measure
or situation that constituted the breach of such right or freedom be remedied
and that fair compensation be paid to the injured party.
84. As a consequence of the violation of the rights enshrined in the Convention,
particularly the prohibition of double jeopardy, to the detriment of Ms. María
Elena Loayza-Tamayo, and pursuant to the aforementioned article, the Court
considers that the State of Peru must, in accordance with its domestic legislation,
order the release of Ms. María Elena Loayza-Tamayo within a reasonable time.
85. With respect to other reparations, the Court will require sufficient
information and evidence, for which purpose its orders that the appropriate
stage of the procedure be initiated, and, to this end, commissions its President
to adopt in due course such measures as may be necessary.
XVIII
NOW, THEREFORE,
THE COURT,
DECIDES:
unanimously,
1. That the State of Peru violated, to the detriment of María Elena Loayza-Tamayo,
the Right to Personal Liberty recognized in Article 7 of the American Convention
on Human Rights, in relation to Articles 25 and 1(1) thereof.
unanimously,
2. That the State of Peru violated, to the detriment of María Elena Loayza-Tamayo,
the right to Humane Treatment recognized in Article 5 of the American Convention
on Human Rights, in relation to Article 1(1) thereof.
unanimously,
3. That the State of Peru violated, to the detriment of María Elena Loayza-Tamayo,
the Judicial guarantees established in Article 8(1) and (2) of the American
Convention on Human Rights, in relation to Articles 25 and 1(1) thereof, on
the terms set forth in this Judgment.
by
six votes to one,
4. That the State of Peru violated, to the detriment of María Elena Loayza-Tamayo,
the Judicial Guarantees established in Article 8(4) of the American Convention
on Human Rights, in relation to Article 1(1) thereof.
Judge
Alejandro Montiel-Argüello dissenting.
by
six votes to one,
5. To order the State of Peru to release María Elena Loayza-Tamayo within
a reasonable time, on the terms set forth in paragraph 84 of this Judgment.
Judge
Alejandro Montiel-Argüello dissenting.
unanimously,
6. That the State of Peru is obliged to pay fair compensation to the victim
and her next-of-kin and to reimburse them for any expenses they may have incurred
in their representations before the Peruvian authorities in connection with
this process, for which purpose the corresponding proceeding remains open.
Judge
Montiel-Argüello informed the Court of his Dissenting Opinion, and Judge Cançado
and Judge Jackman of their Joint Concurring Opinion, both of which are attached
to this Judgment.
Done
in Spanish and English, the Spanish text being authentic, in San Jose, Costa
Rica, on this seventeenth day of September, 1997.
Hernán
Salgado-Pesantes
President
Antônio A. Cançado Trindade
Héctor Fix-Zamudio
Alejandro Montiel-Argüello
Máximo Pacheco-Gómez
Oliver
Jackman Alirio Abreu-Burelli
Manuel
E. Ventura-Robles
Secretary
Read
at a public session at the seat of the Court in San Jose, Costa Rica, on this
twentieth day of November, 1997.
So
ordered,
Hernán
Salgado-Pesantes
President
Manuel
E. Ventura-Robles
Secretary
[1]
Rules of Procedure
approved by the Court at its XXIII Regular Session, held from January 9
to 18, 1991, amended on January 25, 1993, and July 16, 1993.