In the Castillo-Petruzzi et al. Case,
The Inter-American Court of Human Rights (hereinafter
"the Court," "the Inter-American Court," or "the
Tribunal") composed of the following judges:
Hernán Salgado-Pesantes,
President
Antônio A. Cançado Trindade, Vice-President
Máximo Pacheco-Gómez,
Judge
Oliver Jackman, Judge
Sergio García-Ramírez,
Judge
Carlos Vicente de Roux-Rengifo, Judge
Fernando Vidal-Ramírez, Judge ad
hoc;
also present:
Manuel E. Ventura-Robles, Secretary, and
Víctor M. Rodríguez-Rescia,
Interim Deputy Secretary
pursuant to Article 36(6) of the
Rules of Procedure of the Inter-American Court of Human Rights (hereinafter
"the Rules of Procedure"), renders the following judgment on the preliminary
objections interposed by the State of Peru (hereinafter "the State"
or "Peru").
I
INTRODUCTION
OF THE CASE
1.
This case was submitted to the Inter-American Court of Human Rights by
the Inter-American Commission on Human Rights (hereinafter "the Commission"
or "the Inter-American Commission") on July 22, 1997.
It originated with petition No. 11.319 lodged with the Secretariat of
the Commission on January 28, 1994.
II
FACTS AS
SET FORTH IN THE APPLICATION
2.
According to the application, Peru violated the right to nationality
of Jaime Francisco Castillo-Petruzzi, María Concepción Pincheira-Sáez, Lautaro
Enrique Mellado-Saavedra and Alejandro Astorga-Valdéz by trying and convicting
them of the crime of “treason against the fatherland,” pursuant to Decree-law
25,659, although they are not Peruvians. The
Commission also asserted that these persons were not tried by a competent, independent,
and impartial judge or court in violation of their right to a fair trial, because
they were all tried, convicted, and sentenced to life imprisonment in Peru by
a "faceless" tribunal under military jurisdiction.
The Commission supports that statement,
inter alia, with the following facts:
a. On October
15, 1993, the alleged victims were detained by members of the National Anti-Terrorism
Bureau.
b. On November
20, 1993, the investigative judge decided to open an investigation against
the alleged victims.
c.
On January 7, 1994, the Special Military Investigative Judge of the Peruvian
Air Force rejected "the jurisdictional
objection made by the accused Jaime Francisco Castillo-Petruzzi, María Concepción
Pincheira-Sáez, and Lautaro Mellado-Saavedra, and upheld the jurisdictional
objection made by the accused Alejandro Astorga-Valdéz."
The first three accused were convicted as "perpetrators of the crime
of treason against the fatherland, with a sentence of life imprisonment without
parole, continuous solitary confinement for the first year of the sentence and
then forced labor." In the case
of Astorga-Valdéz, the court ruled that "this Court does not have jurisdiction
to rule on his criminal conduct."
d.
On March 14, 1994, the military court of the second instance upheld the
Judgment of January 7, 1994, rendered by the Special Military Court of the Peruvian
Air Force.
e.
On May 3, 1994, the Special Military Supreme Court rejected the motion
to annul the Resolution of March 14, 1994, and
upheld the January 7, 1994 Judgment, rejecting as without merit the jurisdictional
objection made by Mr. Castillo-Petruzzi, Ms. Pincheira-Sáez, and Mr. Mellado-Saavedra.
The Court also held that "the part of the judgment that upheld the jurisdictional
objection made by Alejandro Luis Astorga-Valdéz was annulled" and refused
to hear the case on finding him responsible for
the crime of terrorism [...] for which reason it
denied the present motion and modified the judgment of the first instance, rejecting
the jurisdictional objection made by Alejandro Luis Astorga-Valdéz and condemning
him to life imprisonment as the perpetrator of the crime of treason against
the fatherland.
III
PROCEEDINGS
BEFORE THE COMMISSION
3.
On January 28, 1994, Verónica Reyna, Chief of the Legal Department of
the Chilean organization Fundación de Ayuda Social de las Iglesias Cristianas
(hereinafter "FASIC") submitted the first complaint in this case. On June 29, 1994, the Commission transmitted
the pertinent parts of the complaint to the State and requested that it provide
information within two months about the events reported in the complaint. The Commission also requested information concerning
the exhaustion of domestic remedies.
4.
On August 26, 1994, a second group of complainants provided new information
on the case, and on November 18, 1994, they added the case of Alejandro Astorga-Valdéz.
In their first communication they reported that on January 6, 1994, the
defense attorneys of the alleged victims were notified that they had two hours
to consult the case file and prepare the defense, and that the judgment would
be read the following day. On September
29, 1994, this group of petitioners reiterated their complaint.
On November 22, 1994, the Secretariat of the Commission informed that
group by telephone that it needed to have a power-of-attorney or an authorization
from the initial petitioners in order to be included as co-petitioners in the
case.
5. On September
14, 1994, the State provided information, accompanied by a copy of Official
Document No. 534-S-CSJM from the Superior Council of Military Justice dated
September 1, 1994. In that report it
was stated that:
Case No 078-TP-93-L [against Castillo-Petruzzi,
Pincheira-Sáez, and Mellado-Saavedra] for the crime of Treason Against the Fatherland
was tried before the Military Court of the Air Force of Peru, which convicted
them of the commission of the illegal criminal act charged and sentenced them
to life in prison.
Moreover, the State added that the
Peruvian Courts "exercise jurisdiction over crimes committed within Peruvian
national territory as an expression of sovereignty," and that the criminal
law of Peru is binding independent of the perpetrator’s nationality and domicile. The State also specified that the type of crime
denominated as treason against the fatherland in Law 25,659 identifies an aggravated
act of terrorism, which "in view of its nature and the way it is carried
out, requires courts that have the necessary assurances of security."
Finally, the State maintained that in all proceedings that come before
the military courts, the courts observe "the rules of due process, the
right to appeal to a higher court (three appeals), judicial oversight, rationale
for the decisions, inapplicability by analogy of criminal law, and inform the
defendant of the charges against him" and provide the defendant with legal
assistance. On September 23, 1994, the Commission transmitted
a copy of Peru’s response to the petitioners.
6. On November
8, 1994, the original petitioners submitted their observations to the State’s
answer. In their observations they requested
that "the January complaint be expanded to include Alejandro Astorga-Valdéz,"
who had not been listed as a victim in the original complaint.
In reference to his case, they provided that
[i]n the ruling of the first instance,
the military judge upheld the objection made by the defense regarding lack of
jurisdiction.
The Superior Military Prosecutor,
issued a report expressing his opinion in favor of confirmation of the judgment
including the objection of Astorga-Valdéz.
The ruling of the second instance of the Special Military Court of the Peruvian
Air Force, upheld the judgment of the first instance with an order that the
documentation on the case of
Astorga-Valdéz to be remitted to the regular
court.
Nevertheless, when the motion
for annulment was interposed on behalf of those who were condemned to life imprisonment,
his file was also forwarded to the Supreme Council of Military Justice.
This Council modified the judgment of the first instance and condemned Astorga-
Valdéz to life imprisonment as the perpetrator of the crime of treason against
the Fatherland of the Peruvian State.
The Commission admitted the request pursuant to Article
30 of its Regulations.
7.
On December 14, 1994, the second petitioners in the case submitted a
notarized power-of-attorney, executed by the family members of the alleged victims,
to the president of the Chilean Commission on Human Rights, Jaime Castillo-Velasco
and to Carlos Margotta-Trincado.
8.
On January 31, 1995, the Commission received from the petitioners a report
of the Human Rights Commission of the Chilean Parties of Democratic Reconciliation
(hereinafter "the Chilean delegation"), in which it was stated that
this commission attempted to make a visit in
loco to the Chilean citizens imprisoned in Peru. According to this report, "the Peruvian Government prohibited
the Chilean delegation from meeting with the Chilean prisoners, even though
the delegation was able to visit the Yanamayo Prison [...] where the petitioners
are now held." This report was forwarded
to the State on March 20, 1995.
9.
On March 8, 1995, the Commission received additional information from
the Peruvian State with respect to the "legal status" of the case
of Jaime Castillo-Petruzzi, María Concepción Pincheira-Sáez, and Lautaro Mellado-Saavedra
which established that
[b]y means of official Document No.
09-FG/CSJM, dated February 15, 1995, the General Prosecutor of the Supreme Council
of Military Justice, Major General Enrique Quiroga-Carmona of the Peruvian Air
Force, stated that [Jaime Castillo-Petruzzi, María Concepción Pincheira-Sáez,
and Lautaro Mellado-Saavedra] were sentenced to life in prison.
He stated that Jaime Castillo-Petruzzi had filed, through his attorney,
Dr. Grimaldo Achaui Loayza, a motion for annulment of the final judgment of
conviction, which had been rejected on September 14, 1994, by a ruling
of the Special Supreme Military Tribunal.
This information was transmitted to the petitioners
on March 16, 1995.
10.
By note of June 6, 1995, through Official Document No. 316-95 of June
2, 1995, Peru reported on the health and legal status of three of the alleged
victims. Peru stated that
the Superior Prosecutor of Puno,
had been requested by means of [official
document no.] 223-95 MP-FN-FEDPDH-DH-V dated April 18, 1995, to verify the state
of health of [Jaime Castillo-Petruzzi and Lautaro Mellado-Saavedra], and to
report on their present legal situation. By mean of [official document no.] 09-FG-CSJM,
dated February 15, 1995, the General Prosecutor of the Supreme Council of Military
Justice communicated that they had been sentenced to life imprisonment [.]
He also added that
[b]y means of [official document
no.] 222-95-MP-FN-FEDPDH-DH-V, dated April 18, 1995, the Director of the Maximum
Security Criminal Establishment of Women-Chorrillos was asked for information
on the legal situation and the state of health of certain prisoners [among whom
was María Concepción Pincheira-Sáez.] He stated that this information was not
obtained on this occasion.
This information was supplemented
on November 7, 1995, to provide that María Concepción Pincheira-Sáez had been
sentenced to life imprisonment for the crime of treason against the fatherland
and that she had been counseled during the entire proceeding by Dr. Castañeda. It referred to health problems and harassment
on the part of the prisoners. Said information
was sent to the petitioners on November 30, 1995.
11.
On June 14, 1996, the petitioners asked the Commission to adopt precautionary
measures on behalf of the alleged victims, as a result of the possibility that
they would be transferred to an "uninhabitable" prison. The Commission requested that the Peruvian State
provide information on this matter. By
means of a note of July 16, 1996, the State reported that there was "no
order of any kind to transfer the Chilean prisoners" to another penitentiary,
in accordance with the final judgment handed down by the Supreme Special Military
Court, which ordered that the sentence of life imprisonment should be served
at the Maximum Security Prison at Yanamayo in Puno.
12.
On November 19, 1996, the Commission communicated to the State that at
its 93rd Regular Session the Commission had determined that Case 11.319 was
admissible, and that the Commission was at the disposition of the parties to
arrive at a friendly settlement. On February
6, 1997, Peru refused the proposal of a friendly settlement, on the grounds
that the alleged victims were tried, convicted, and sentenced pursuant to the
provisions of Decree-law 25.659 and Decree-Law 25.708, which regulate the crime
and corresponding procedure in cases of treason against the fatherland. Peru also asserted that it had observed the
rules of due process and adhered to the principle of territoriality set forth
in Article 1 of the Peruvian Criminal Code.
13.
On December 17, 1996, the Commission received a report from the Supreme
Court of Military Justice of Peru, in which it asserted that the Peruvian courts
have jurisdiction in the cases of the alleged victims, since the crimes of which
they are accused were committed in the jurisdiction of Peru, and because "the
territoriality of criminal law is independent of the nationality of the perpetrator."
Moreover, the State maintained that in the aforementioned cases it had
observed the principles of due process, the right to appeal, judicial oversight,
and rationale for the judgments.
14.
On December 18, 1996, the petitioners requested that the Commission adopt
precautionary measures to protect the physical integrity of the alleged victims,
in consideration of the circumstances resulting from the seizure at the Japanese
Embassy in Peru by members of the Revolutionary Movement Tupac Amaru (MRTA),
a group with which the alleged victims had been associated.
15. On March
11, 1997, the Commission approved Report 17/97, in the final part of which
it stated
[...]
86. That the State of Peru, on trying Jaime Francisco Castillo-Petruzzi,
María Concepción Pincheira-Sáez, Lautaro Enrique Mellado-Saavedra and Alejandro
Astorga-Váldez, pursuant to Decree-Laws No. 25,475 and 25,659, has violated
the judicial guarantees set forth in Article 8(1) of the American Convention
on Human Rights [hereinafter "the Convention or the American Convention"] and the rights to a nationality and
to the judicial protections recognized respectively by Articles 20 and 25, all
in conjunction with Article 1(1) of the Convention.
87. That the crime of treason against the fatherland which is governed
by the legal order of Peru violates universally accepted principles of international
law, of legality, due process, judicial
guarantees, right to a defense, and the right to be heard by impartial and independent
courts; and in consequence
The Commission resolved [to recommend] that the State
of Peru:
88.
Declare the annulment of the proceedings undertaken in the Exclusive
Military Jurisdiction for Treason Against the Fatherland against Jaime Francisco
Castillo-Petruzzi, María Concepción Pincheira-Sáez, Lautaro Enrique Mellado-Saavedra
and Alejandro Astorga-Váldez, and order that the trial of these persons be carried
out in a new hearing in the regular courts with full observance of the norms
of legal due process, and
89. The Commission, pursuant to Article 50 of the Convention, requests
that the Peruvian Government inform the Commission within two months of any
measures it has taken in the instant case in accordance with the recommendations
contained in the present report, which is confidential in nature and should
not be published.
16.
On April 24, 1997, Report 17/97 was transmitted to Peru, with the request
that the State inform the Commission of the measures adopted with respect to
it within a period of two months.
17.
After having requested and received an extension until July 8, 1997,
the State presented a report, in which it refuted the conclusions of the Commission
and affirmed the legitimacy of its proceedings.
18. On June
27, 1997 the Commission made the decision to submit the case to the Court.
IV
PROCEEDINGS
BEFORE THE COURT
19.
In submitting the case to the Court on July 22, 1997, the Commission
invoked Article 51(1) of the American Convention and requested that the Court
render a judgment as to whether there were violations of Article 5 (Right to
Humane Treatment), 8 (Right to a Fair Trial), 20 (Right to Nationality), 29
(Restrictions Regarding Interpretation) in conjunction with the Vienna Convention
on Consular Relations; 1(1) (Obligation to Respect Rights) and 51(2) of the
American Convention.
20.
The Inter-American Commission appointed Oscar Luján-Fappiano, Carlos
Ayala-Corao, and Claudio Grossman to act as its delegates, Christina M. Cerna
as its attorney, and Verónica Reyna, Nelson Caucota, Jaime Castillo-Velasco,
and Enrique Correa as its assistants. Pursuant
to Article 22(2) of its Regulations, the Commission also informed the Court
that the first two assistants would act for the original petitioners and the
latter two as representatives of the alleged victims.
21.
By note of July 31, 1997, after a preliminary review of the application
by the President of the Court (hereinafter "the President") the Secretariat
of the Court (hereinafter "the Secretariat"), transmitted the application
to the State and informed the State that it had the following deadlines: four
months in which to submit its answer, one month to appoint an agent and alternate
agent, and two months to interpose preliminary objections.
All terms were to begin from the date of notification of the application. By communication of the same date, the State was invited to designate
a judge ad hoc.
22.
By means of communications of August 26 and 28, 1997, the Commission
submitted a corrected version of the Spanish text of the application, and stated
that it contained "corrections of minor errors, above all in style [and]
should replace the earlier version which had been submitted to the Court on
July 22, 1997." The corrected version
was transmitted to the State on September 2, 1997.
23. On September
3, 1997, Peru informed the Court that it had designated Fernando Vidal-Ramírez
as judge ad hoc.
24. On September
5, 1997, Peru designated Mario Cavagnaro-Basile as its agent and Walter Palomino-Cabezas
as its alternate agent.
25.
On September 22, 1997, the State asked the Court to indicate if it should
"consider as valid" the new version of the application (supra 22) or if, to the contrary, it should
maintain that dated July 22 of the same year.
26.
On September 24, 1997, the Secretariat, following instructions from the
President, informed Peru that in view of the request for clarification of the
State and to insure the "transparency of the process," the President
had decided to suspend the time limits to answer the application and interpose
preliminary objections until the Commission presented clarifications of the
corrections made to the original text of the application.
27. On October
1, 1997, Peru submitted its brief in which it raised the following preliminary
objections.
First Objection
failure to exhaust the domestic remedies
of Peru at the time the Inter-American Commission on Human Rights, pursuant
to Article 37 of its Regulations, admitted for processing the complaint on behalf
of Jaime Francisco Castillo-Petruzzi, María Concepción Pincheira-Sáez, Lautaro
Enrique Mellado-Saavedra and Alejandro Astorga-Valdéz.
Second
Objection
lack of competence of the Inter-American
Commission on Human Rights and the Inter-American Court of Human Rights, first
to consider the petition lodged by the Fundación de Ayuda Social de las Iglesias
Cristianas (FASIC) on behalf of the aforementioned Chilean citizens; and second,
to process this application when the original petition was lodged without establishing
the exhaustion of the domestic remedies of Peru.
Third Objection
lack of a prior demand and of the
exhaustion of the domestic remedies of Peru [with respect to] the alleged violation
[of Article 29 of the Convention in relation to] the Vienna Convention on Consular
Relations.
Fourth
Objection
lack of a prior demand and of the
exhaustion of the domestic remedies of
Peru with respect to the claim made in point six of the brief supporting the
application, under which the Court is
to order the Peruvian State to immediately release and compensate Jaime Francisco
Castillo-Petruzzi, María Concepción Pincheira-Sáez, Lautaro Enrique Mellado-Saavedra,
and Alejandro Astorga-Valdéz.
Fifth Objection
lack of status as a legal entity
of the party that, in the name of the Fundación de Ayuda Social de las Iglesias
Cristianas (FASIC), filed petition No. 11,319 with the Inter-American Commission
on Human Rights against the Peruvian State and lack of standing of the aforementioned
foundation.
Sixth Objection
lack of standing of the Fundación
de Ayuda Social de las Iglesias Cristianas (FASIC) and of those who the Commission
referred in points thirteen and fourteen of the application as "another group of complainants" or "a
second group of petitioners" [and sovereignty].
Seventh
Objection
premature decision of the Honorable
Commission to send the present case to the Inter-American Court of Human Rights.
Eighth
Objection
Ambiguity in the manner of submitting
the application.
Ninth Objection
Lapse of the application.
Tenth Objection
Disregard of the principles of sovereignty
and jurisdiction.
As to the first, second, third, fourth,
fifth, sixth, and eighth objections, the State requests that the Court admit
them or reserve its decision until the judgment on the merits of the case. As to the seventh, ninth, and tenth objections,
it requests that they be admitted and that the application be dismissed.
28.
On October 6, 1997, the Commission presented a communication to the Court,
to which it added a "list of corrections made [...] to the application"
of July 22, 1997 (supra 26). The following day the Secretariat, on instructions
from the President, requested that Peru present its comments on the clarifications
made by the Commission by the latest date of October 13, 1997.
These observations were not received.
29. By resolution
of October 15, 1997 the President decided
1. To clarify that the original text of the application submitted to the
Inter-American Court of Human Rights on July 22, 1997, by the Inter-American
Commission on Human Rights, is the document that the parties should consider
valid to prepare their defense and arguments in this case.
2. To incorporate into the original text of the application only the corrections
submitted by the Inter-American Commission on Human Rights in its correspondence
of October 6, 1997.
3. To declare the request of the Commission that the original text of
the application to replaced with the text submitted to the Court on August 26
and August 28, 1997, to be inadmissible.
4. To continue with the processing of the present case and to resume the
time period to answer the application, which will expire on December 27, 1997.
5. To resume the time period to interpose preliminary objections, which
will expire on October 27, 1997, and to request that the State indicate if it
endorses its correspondence of October 1, 1997.
30. On October
17, 1997, the State endorsed its brief on preliminary objections, which had
been filed on October 1, 1997 (supra
27).
31. On October
22, 1997, the Secretariat received a copy of the original file processed by
the Commission.
32.
On November 21, 1997, the Commission filed its written response to the
preliminary objections interposed by Peru in which it requested that the Court
declare the objections to be inadmissible.
33.
On December 12, 1997, Peru requested an extension to file its answer
to the application until January 5, 1998. On
December 15, 1997, the Secretariat, following the instructions of the President,
informed the State that
the time period to file the answer
to the demand can not be extended. Nevertheless,
the Court will be closed as of noon on December 24 of the present year and will
reopen on January 5, 1998, for which reason the Illustrious State of Peru may
take until that date to file its answer.
34. On January
5, 1998, the State submitted the answer to the application, in which it asked
the Court to reject the entire application.
35.
On January 19, 1998, the State requested that the document the Commission
annexed to its arguments on preliminary objections, which established the legal
entity status of FASIC, referred to in that communication as the Fundación de
Ayuda Social de las Iglesias Cristianas "be considered challenged as false."
36. On January
22, 1998, the Commission remitted a copy of the documentation sent by FASIC,
that related to FASIC’s status as a legal entity.
37.
On February 17, 1998, in accordance with the Commission’s February 11
request, the Secretariat asked the State to send various documents relating
to the types of evidence contained in its answer to the application. The State complied with this requirement on March 23, 1998.
38.
By Resolution of March 9, 1998, the President summoned the Inter-American
Commission and Peru to a public hearing to be celebrated at the seat of the
Court on June 8, 1998, to hear their oral
arguments on preliminary objections.
39.
By means of a March 17, 1998 letter, the State maintained that the documents
filed by the Commission on January 22, 1998 (supra
36) did no more than confirm its questions about the petitioning foundation’s
status as a legal entity, and it challenged
one of the documents.
40.
On March 19, 1998, the Secretariat, following the instructions of the
President, informed the State that in response to its demand made in both its
brief on preliminary objections and its answer to the application, that the
Commission exhibit all of its proceedings in this case, the Commission had opportunely
sent the pertinent parts of the file processed before it, and they were in the
Court’s possession.
41.
On March 19, 1998, the Secretariat, following the instructions of the
President, asked the State for an authenticated copy of the laws and regulatory
provisions applied in the proceedings before the Peruvian courts against the
alleged victims in this case, and for the complete judicial files of those proceedings.
42.
On April 14, 1998, the State informed the Court that the legal provisions
requested had been submitted as part of the evidentiary file in the Loayza-Tamayo
Case, and requested that the Court inform it of the items it would be necessary
to submit from the judicial files of the alleged victims in this case, since
the files "contain a voluminous amount of documents that relate to many
persons apart from those referred to in this application."
43.
On April 27, 1998, the Commission reiterated its request for the submission
of "the laws and other regulatory decrees relevant to the proceedings carried
out by the Peruvian Courts against Jaime Castillo-Petruzzi et. al., as well
as all the pertinent parts of the judicial files on these cases." Moreover, the Commission opposed the use of
the same documents containing the laws and decrees submitted in the Loayza-Tamayo
Case, arguing that the files were different. On July 7, 1998, the Secretariat, following
the instructions of the Court, requested that the State submit the pertinent
parts of the judicial file of the trial which took place in Peru against Jaime
Francisco Castillo-Petruzzi et. al., and informed both parties that the legal
provisions submitted in the Loayza-Tamayo Case would be integrated into the
file.
44. The public
hearing took place at the seat of the Court on June 8, 1998.
Appearing
for the State of Peru:
Walter Palomino-Cabezas, alternate agent
Ana Reátegui-Napurí, counsel, and
Jennie Vizcarra-Alvizuri, counsel
for the Inter-American Commission on Human Rights:
Oscar Luján-Fappiano, delegate
Christina Cerna, attorney
Verónica Reyna, assistant, and
Nelson Caucota, assistant.
45.
On July 14, 1998, the Secretariat, following instructions of the Court,
requested that the Commission remit the minutes of the session in which it decided
to send the present case to the Court, and any document in which it was recorded
that the alleged victims knew of the motions made on their behalf before the
Commission, notwithstanding the petitioners were rented with power of representations.
On July 29, 1998, the Commission sent the requested documents.
46.
On July 14 and August 3, 1998, the Secretariat, following instructions
of the Court, requested that the State send official document number 521-DIVICOTE-DINCOTE
dated October 19, 1993. The State forwarded
the requested document to the Court which was received by the Secretariat of
the Court on August 7, 1998.
47.
On August 24, 1998, the State objected to the minutes of the Commission
(supra 45), because they were drawn up in
English, and requested that they be sent in Spanish. On August 25, 1998, the Secretariat, following instructions of the
President, sent a translation of the minutes to the State and the Commission,
so that they would both be aware of the content of the translation.
The time period granted for their comments expired on August 28, 1998,
without the Secretariat receiving comments from the parties.
48.
On September 1, 1998, the State reported on certain questions related
to Chilean consular assistance in Peru. This
communication was transmitted to the Commission on September 3, accompanied
by a request that the Commission send to the Court within twenty-four hours
any comments that it deemed pertinent.
V
JURISDICTION
49.
Peru has been a State Party to the American Convention since July 28,
1978, and accepted the contentious jurisdiction of the Court on January 21,
1981. Consequently, the Court is competent, pursuant
to Article 62(3) of the Convention, to consider the preliminary objections submitted
by the State.
VI
PRELIMINARY
CONSIDERATIONS
50.
The objections raised by Peru basically refer to the following procedural
matters: exhaustion of domestic remedies (cfr.
first, second, third, and fourth objections), legal entity status and standing
(cfr. fifth and sixth objections), "premature
decision" to send the case to the Court (cfr. seventh objection), ‘ambiguity in
the manner of submitting the application" (cfr. eighth objection), lapse of the application (cfr. ninth objection) and “sovereignty
and jurisdiction" (cfr. tenth
objection). To avoid unnecessary repetition,
these objections will be examined below under general headings that indicate
the basic subject matter of the objections, with pertinent cross-references,
and an examination in each case of other matters brought up by Peru in its explanation
of the respective objections.
VII
EXHAUSTION
OF DOMESTIC REMEDIES
First Objection
51. The first
objection interposed by the State refers to the
failure to exhaust the domestic remedies
of Peru at the time the Inter-American Commission on Human Rights, pursuant
to Article 37 of its Regulations, admitted for processing the complaint on behalf
of Jaime Francisco Castillo-Petruzzi, María Concepción Pincheira-Sáez, Lautaro
Enrique Mellado-Saavedra, and Alejandro Astorga-Valdéz.
52. The Court
summarizes in the following terms the arguments of the State and the Commission
as to this objection:
a.
The State asserted that the Inter-American Commission received and initiated
the processing of the January 28, 1994 complaint when a proceeding in Peru was
pending against the alleged victims. On
May 3, 1994, the Special Military Supreme Court of the Supreme Council of Military
Justice convicted the alleged victims of “the commission of the above-mentioned
criminal act. The complaint filed by
Verónica Reyna, Chief of the Legal Department of FASIC, concerned three of the
alleged victims; the fourth alleged victim, Alejandro Astorga-Valdéz, was added
subsequently. In the public hearing Peru
stated that the Commission informed it of the complaint on June 29, 1994.
The State maintained that the Commission did not comply with the requirements
of Articles 46(1)(a) and 47(a) of the Convention, Article 37 of its Regulations,
and Articles 18 and 19 a. of its Statute.
b.
The Commission asserted that the complaint was transmitted to Peru on
June 29, 1994, after the Supreme Council of Military Justice issued the conviction
on May 3, 1994. It added that, in its
judgment, it would not have been necessary to exhaust domestic remedies, given
that Decree-Laws No. 25,659 and 25,708 the corresponding procedural norms, and
their application in a concrete case, do not provide "the fundamental guarantees
of due process" for the crime of treason against the fatherland.
During the public hearing, the Commission pointed out that its argument
was grounded in the exception to the rule of the exhaustion of domestic remedies
(Article 46(2) of the Convention) and stated that this issue had not been raised
before it in a timely manner.
53.
As to this first objection raised by the State, the Court will not consider
the assessments of the parties as to the conformity of the nature of the proceedings
against the alleged victims with the principles of legal due process set forth
in the Convention. Taking into account
the nature of this matter, the Court considers that its analysis should be reserved
for the decision on the merits.
54.
The Court points out that if the Commission did receive the complaint
in this case while the criminal proceeding was pending a final judgment before
the military court of the last instance, the mere filing of it did not amount
to the Commission’s commencement of the
processing of the matter. Strictly speaking,
the receipt of the complaint, which derives from an act of the complainant,
should not be confused with its admission and processing, which are accomplished
by specific acts of the Commission itself, such as the decision to admit the
complaint and, when appropriate, the notification of the State.
55.
It must be noted that in this case the processing began several months
after the complaint was lodged, when there was already a final judgment from
the organ of final instance in the military jurisdiction.
It was only then, by means of a notification on June 29, 1994, that the
Commission informed Peru that the complaint had been submitted and required
its observations concerning it, so that the State could provide that which it
believed to be relevant in its defense.
56.
The Court also indicates that the State did not allege the failure to
exhaust domestic remedies before the Commission.
By not doing so, it waived a means of defense that the Convention established
in its favor and made a tacit admission of the non-existence of such remedies
or their timely exhaustion, as has been stated in proceedings before organs
of international jurisdiction (such as the European Court which has maintained
that objections to inadmissibility should be raised at the initial stage of
the proceedings before the Commission, unless it proves impossible to interpose
them at the appropriate time for reasons that cannot be attributed to the Government),
(cfr. Eur. Court H.R., Artico judgment
of 13 May 1980, Series A No 37, paras. 24 et seq; Eur.
Court H.R., judgment of Foti and others of 10 December 1982, Series A No.
56, paras. 46 et seq; Eur. Court H.R., Corigliano judgment of
10 December 1982, Series A No. 57, paras. 31 et seq; Eur. Court H.R., Bozano judgment of 18 December 1986, Series A No.
111, para. 44; Eur. Court H.R., Ciulla case decision of 23 March 1988, Series A No.
148, paras. 28 et seq., and Eur. Court
H.R., de Jong, Baljet and van den Brick judgment of 22 May 1984, Series
A No 77, paras. 35 et seq). and this Court has stated in earlier judgments.
(In the Matter of Viviana Gallardo et.
al. No. G 101/81. Series A, para 26; Velásquez Rodríguez Case, Preliminary Objections, Judgment of June
26, 1987. Series C No. 1, para. 88, 89; Fairén
Garbi and Solís Corrales Case, Preliminary Objections, Judgment of June
26, 1987. Series C No. 2, para. 87, 88; Godínez
Cruz Case, Preliminary Objections, Judgment of June 26, 1987. Series C No.
3, para. 90, 91; Fairén Garbi and Solís
Corrales Case, Judgment of March 15, 1989. Series C No. 6, para. 109; Neira Alegría et al., Preliminary Objections,
Judgment of December 11, 1991. Series C No. 13, para. 30; Gangaram Panday Case, Judgment
of January 21, 1994. Series C No. 16, para. 38 and 40; Castillo Páez Case, Preliminary Objections,
Judgment of January 30, 1996. Series C No. 24, para. 40; Loayza Tamayo Case, Preliminary Objections, Judgment of January 31,
1996. Serie C No. 25, para 40; in addition to the aforementioned judgments,
as to the opportunity to present defenses, the Court has expressed its opinion
in Caballero Delgado and Santana Case, Preliminary
Objections, Judgment of January 21, 1994. Serie C No. 17, para. 60).
57. Consequently,
the Court deems this preliminary objection to be inadmissible.
Second
Objection
58. The second
objection raised by the State concerns the lack
of competence of the Inter-American Commission on Human Rights and the Inter-American
Court of Human Rights first, to consider the petition lodged by the Fundación
de Ayuda Social de las Iglesias Cristianas (FASIC) on behalf of the aforementioned
Chilean citizens; and second, to process this application when the original
petition was lodged without establishing the exhaustion of the domestic remedies
of Peru.
59. The Court
summarizes as follows the positions of the State and the Commission with respect
to this objection:
a.
The State asserted that the Commission received and initiated the processing
of the complaint when the criminal proceeding was still ongoing against the
alleged victims. It declared that the
Commission is authorized to consider a matter when domestic resources have been
exhausted and that the non-fulfilment of that norm "results in the incompetence
of the Commission and [...] determines that the Court also lacks the competence
to exercise jurisdiction and to render a valid decision on the merits of the
disputed question." The State emphasized
that the alleged victims or their attorneys could have filed writs of habeas
corpus or of amparo but did not do so.
b.
The
Commission pointed out that the second objection merely repeats the first. It observed that in October of 1993, due to
the circumstances of the proceedings and the
applicability of Article 6 of Decree-Law No. 25.659 "the alleged victims were not permitted
the option of filing a writ of habeas corpus or of amparo." Moreover, the Commission asserted that even
though the aforementioned Decree-Law was modified on November 25, 1993, by Decree-Law
No. 26.248, which allowed for the filing of a writ of habeas corpus in cases
of treason against the fatherland, this legal modification "came about
long after the final, ultimate, and executed judgment rendered in the exclusive
military jurisdiction; as a result of which the remedy was ineffective for reasons
of untimeliness.
It also pointed out that this motion could not be filed, since it concerned
the same events for which the prisoners
had been tried. Likewise, the Commission
stressed that the State had not demonstrated the effectiveness of that remedy
for the release of persons tried before" a "faceless" military
court.
60.
The principal issue raised in the second objection, the failure of the
timely exhaustion of domestic remedies, has been examined with regard to the
first objection (supra 53 to 56),
and for that reason the Court does not consider it necessary to repeat the same
observations already stated.
61.
In its explanation of the second objection, the State referred specifically
to the remedies of habeas corpus and amparo.
In previous decisions, the Court has maintained that habeas corpus is,
in fact, the appropriate remedy to combat violations of the right to personal
liberty (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. 35 and 42).
62.
In this matter, it is important to remember that Article 6(4) of Decree-Law
No. 26,248 of November 12, 1993, which modified Decree-Law No. 25.659 on this
point, as applied to the alleged victims provides that “writs of habeas corpus
based on the same facts or grounds, the subject of a proceeding that is under
way, or a proceeding that is already resolved, are not admissible.” As regards amparo, Decree-Law 25.569 excluded
access to that guarantee, and it has not been proved that there has been a modification
of the aforementioned legislation which would authorize the use of that remedy.
It is appropriate to remember that in the Loayza-Tamayo Case this Court
determined that persons accused and tried, pursuant to the provisions
of the aforementioned Decree-Law No. 25.659, did not have access to the right
of petition for any guarantee to safeguard personal liberty. (Loayza-Tamayo Case, Judgment of September
17, 1997. Serie C No. 33, para. 52).
63.
Moreover, on proposing the objection that is now examined, the State
did not explore the applicability of habeas corpus and amparo in this case,
