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
Máximo Pacheco-Gómez, Judge
Oliver Jackman, Judge
Alirio Abreu-Burelli, Judge
Sergio García-Ramírez, Judge
Carlos Vicente de Roux-Rengifo, Judge;
also present:
Manuel E. Ventura-Robles, Secretary, and
Víctor M. Rodríguez-Rescia, Deputy Secretary ad
interim,
pursuant to articles 29, 55 and
56 of the Rules of Procedure of the Inter-American Court of Human Rights (hereinafter
"the Court", "the Inter-American Court" or "the Tribunal"),
in relation to Article 63(1) of the American Convention on Human Rights (hereinafter
"the Convention" or the "American Convention") and in
compliance with the Judgment of September 17, 1997, enters the following judgment
on reparations in the case brought by the Inter-American
Commission on Human Rights (hereinafter "the Commission" or "the
Inter-American Commission") against the Republic of Peru (hereinafter
"Peru" or "the State".)
i
1. Under the terms of articles 62 and 63(1) of the Convention, the Court
has jurisdiction to decide on the payment of reparations and costs in the
instant case, inasmuch as Peru ratified the American Convention on July 28,
1978, and recognized the Court’s contentious jurisdiction on January 21, 1981.
ii
2. The Inter-American Commission on Human Rights brought the instant Case
to the Court by application dated January 12, 1995, attached to which was
Report No. 20/94 of September 26, 1994. The Case originated with a complaint (No. 11,154) against Perú, received
at the Secretariat of the Commission on May 6, 1993.
3. On September 17, 1997, the Court passed Judgment on the merits of the
Case, the operative part of which declares that:
[…]
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.
[…]
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.
[…]
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.
[…]
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.
[…]
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.
[…]
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.
4. On October 20, 1997, Peru reported that on October 16 of that year
it had released Ms. María Elena Loayza-Tamayo (hereinafter “the victim”),
in compliance with the Judgment issued by the Court on September 17, 1997.
The victim appeared before the Court, in person, at a public hearing
held on June 9, 1998 and with that confirmed the fact that she had been released
by the State.
iii
5. In compliance with the Judgment entered on September 17 of that year,
on November 11, 1997 the Inter-American Court decided as follows:
1. To grant the Inter-American Commission on Human
Rights until January 12, 1998 to submit a brief and whatever evidence it might
have in its possession for purposes of determining the compensation and costs
in the instant case.
2. To grant Ms. María Elena Loayza-Tamayo, the victim
in the instant case, and her next of kin or their representatives, until January
12, 1998, to submit a brief and any evidence they may have for purposes of
determining the compensation and costs.
3. To give the State of Peru until March 16, 1998,
to present its observations on the briefs submitted by the Inter-American
Commission on Human Rights, the victim, her next of kin or their representatives,
referred to in the preceding paragraphs.
6. On December 16, 1997, the Inter-American Commission informed the Court
that Mr. Domingo E. Acevedo had been designated as a delegate in the instant
Case, to serve with delegate Oscar Luján-Fappiano. On February 27, 1998, the Commission withdrew
the appointment of attorney Verónica Gómez as its assistant.
7. On December 24, 1997, the Commission petitioned the Court seeking an
extension of the deadline given to file its brief on reparations in the instant
Case. By an order of that same date,
the President of the Court (hereinafter "the President") extended
until January 31, 1998, the deadline established for the victim, her next
of kin or their representatives and the Inter-American Commission to file
their briefs on reparations. The President
also extended the deadline given to the State to present its brief in this
matter until April 6, 1998. On January
21, 1998, the Court confirmed the President’s order.
8. On January 30, 1998, the Inter-American Commission submitted its brief
on reparations in the instant Case. The
victim submitted her reparations brief that same day, and indicated that the
attachments thereto would be forwarded to the Court later. On February 5, 1998, the victim sent those attachments
to the Court, which were then forwarded to the Commission and to the State
on February 9, 1998. The only exception
was a videotape, corresponding to Appendix IV; copies of that tape were made
and then sent to the Commission and to Peru on February 16, 1998.
9. On February 5, 1998, the victim informed the Court that in the instant
proceedings, she would be represented by Ms. Carolina Loayza-Tamayo, and by
Mr. Ariel Dulitzky, Ms.Viviana Krsticevic and Ms. Marcela Matamoros, members
of the Center for Justice and International Law (CEJIL), and by Mr. José Miguel
Vivanco, member of Human Rights Watch/Americas. On June 18, 1998, Ms. Marcela Matamoros informed
the Court that she had resigned as representative of the victim.
10. On March 9, 1998, the President summoned the victim and her next of
kin or their representatives, the Inter-American Commission and Peru to a
public hearing on reparations, to be held at the seat of the Court on June
9, 1998.
11. On March 24, 1998, the State requested that the Court clarify which
of the briefs on reparations, presented by the victim and by the Commission
was to be regarded as the “official petition” in these proceedings.
On March 25, 1998, the Secretariat informed Peru that:
pursuant
to the article [23 of the Rules of Procedure], the Inter-American Commission
of Human Rights and the victim and her representatives presented their briefs
on reparations independently of each other.
Hence, the State of Peru may respond to those briefs and the arguments
they contain however it sees fit.
12. On March 31, 1998, the State requested that the President extend the
deadline set for its observations on the briefs on reparations and make the
new deadline June 6, 1998. On April
2, 1998, the Secretariat informed Peru that the deadline for its brief had
been extended to May 12, 1998.
13. On April 20, 1998, the Secretariat asked the victim, the Commission
and the State to specify how many witnesses and experts they would call at
the public hearing that the Court was to hold on reparations at its seat on
June 9, 1998, and what the purpose of their testimony or expert testimony
would be. Further likewise, following
instructions from the President, the Secretariat requested that, for the sake
of procedural speed and economy, particular consideration be given to the
possibility of presenting some testimonial and expert evidence in the form
of sworn affidavits.
14. On April 28, 1998, the victim presented observations on the testimonial
and expert evidence. She also offered
herself as a witness and explained the purpose of her testimony.
She added that she would submit sworn affidavits from the following
persons: Julio Loayza-Sudario, Adelina Tamayo de Loayza, Gisselle Elena Zambrano-Loayza,
Paul Abelardo Zambrano-Loayza, and Delia Haydée, Carolina Maida, Julio William,
Olga Adelina, Rubén Edilberto and Giovanna Elizabeth, all by the surname Loayza-Tamayo,
and the expert opinion of an unnamed member of the "Fundación de Ayuda
Social de Fieles de las Iglesias Cristianas" (hereinafter "FASIC").
In her brief, the victim also requested that:
a) The government’s brief of reply, the deadline for which [was set to]
expire on May 12, be forwarded to her so that she might present [her] observations
and offer any documentary, testimonial and expert evidence deemed necessary
and pertinent.
b) The deadline for submitting the final list of witnesses and the sworn
affidavits be extended until the content of the Peruvian government’s reply
[was] known by her.
15. On May 5, 1998, the Secretariat informed the victim that:
a) In keeping with the Court’s customary practice,
the State’s brief on reparations [would] be sent to the Inter-American Commission
and to the victim as soon as it [was] presented at this Secretariat.
However, no provision is made for rebuttals and rejoinders at the reparations
stage of the proceedings.
b) Under the Court’s established rules and Article
43 of its Rules of Procedure, any evidence the Parties tender is to be set
forth in the original brief each party submits for each stage of the proceeding.
In the instant case, the victim properly tendered evidence in her brief
on reparations.
c) The note from the Secretariat, dated April 20,
1998, was intended to clarify certain discrepancies in the evidence tendered
by the victim. Accordingly, it does
not constitute another tender of evidence, as its sole purpose was to clarify
the evidence tendered with the original brief.
d) When any party believes there is just cause to
tender an item of evidence at a time other than that already established,
the circumstances must fit those set forth in Article 43 of the Court’s Rules
of Procedure.
For
these reasons, the President has denied your request for an extension of the
deadline for presenting the final list of witnesses and experts. As for your request that a deadline be set for
filing the sworn affidavits that were offered, the President will determine
that deadline and you will be notified accordingly.
16. On May 4, 1998, the Commission named the victim as a witness and specified
the purpose of her testimony.
17. On May 7, 1998, the State presented its observations on the reparations
briefs, and attached documentary evidence thereto.
18. On May 12, 1998, the President summoned the victim to testify during
the public hearing that was scheduled to be held at the seat of the Court
and informed the victim that the “sworn affidavits” and expert report offered
in her brief of April 28, 1998 (supra
14) were to be submitted by no later than May 29, 1998.
19. On May 28, 1998, the victim submitted affidavits that Gisselle Elena
Zambrano-Loayza, Paul Abelardo Zambrano-Loayza, Adelina Tamayo de Loayza,
Julio Loayza-Sudario, Olga Adelina Loayza-Tamayo, Elizabeth Giovanna Loayza-Tamayo
and Carolina Loayza-Tamayo had made under oath and signed in the presence
of a notary. She also presented a second
power of attorney and a number of additional documents, invoking articles
43 and 44 of the Court’s Rules of Procedure (hereinafter “the Rules”) for
her submissions.
20. On June 8, 1998, Peru presented its observations on the brief submitted
by the victim on April 28 of that year, wherein it reiterated some issues
raised in her reparations brief and objected to some of the documents.
21. On June 9, 1998, the State objected to the plan to take the victim’s
testimony. At a meeting held prior
to the public hearing the Court was to hold later that same day, the President
heard arguments from the State, the victim and the Commission, then dismissed
the State’s objection and decided that the Court would hear the testimony
in question.
22. That same day, the Court held the public hearing on reparations.
There appeared before the Court:
the victim, María Elena Loayza-Tamayo,
who also testified, and her representatives:
Carolina Loayza-Tamayo and
Ariel E. Dulitzky;
for the Inter-American Commission:
Oscar Luján-Fappiano, delegate,
and
Domingo E. Acevedo, delegate;
for the State:
Jennie Vizcarra-Alvizuri, alternate
agent,
Ana Reátegui-Napurí, advisor and
Walter Palomino-Cabezas, advisor.
23. In the course of her testimony, the victim turned over a newspaper
article titled "Niegan Billete
a María Elena Loayza-Tamayo", published in the May 12, 1998 issue
of the Lima newspaper "Ojo".
24. On June 11, 1998, the victim sent the Court several documents concerning
her state of health, receipts for medical expenses and an estimate for dental
work, invoking Article 43 or Article 44, as appropriate, of the Court’s Rules
of Procedure.
25. On July 14, 1998, the State filed an objection to the documentation
that the victim had submitted on June 11 of that year, arguing that the documentation
in question had been submitted extemporaneously.
26. As evidence to help it arrive at a more informed judgment, on July
23, 1998 the Secretariat requested that Peru submit the official exchange
rate between the local currency of Peru and the United States dollar for the
period from 1993 to 1998, as quoted by the Banco Central del Perú. It also requested Peru’s legislation on the
matter of salaries and work bonuses. Via
notes dated August 21 and September 11, 29 and 30, 1998, the State complied
with the Court’s request.
27. On July 30, 1998, Peru petitioned the Court to convene another public
hearing to “elaborate upon the arguments given in support of its observations
[…] concerning the reparations requested in these proceedings.”
In notes dated July 29 and 30, 1998, the victim and the Commission
objected to the request. On July 30, the Secretariat informed the State
that its request had been denied.
28. On August 29, 1998, the Court decided the following:
1. As evidence to help the Court arrive at a more
informed judgment, to request the "Colegio Médico de
Chile" to
commission one or more of its members to issue a medical report on the physical
and psychiatric condition of Ms. María Elena Loayza-Tamayo.
2. As evidence to help the Court arrive at a more
informed judgment, to request the "Colegio Médico del
Perú" to
commission one or more of its members to issue a medical report on the psychiatric
condition of Gisselle Elena Zambrano-Loayza and Paul Abelardo Zambrano-Loayza.
[…]
7. To instruct the Secretariat of the Court that
once received, the reports be forwarded to the victim, the Inter-American
Commission on Human Rights and to the State of Peru.
8. To grant the victim, the Inter-American Commission
on Human Rights and the State of Peru a period of one month to present such
observations as they deem necessary regarding those reports.
[…]
29. On September 11, 1998, Gisselle Elena and Paul Abelardo Zambrano-Loayza
reported that they had contacted the "Colegio Médico de Perú" in
connection with preparation of the report on their psychiatric condition.
They also informed the Court that Ms. Carolina Loayza-Tamayo would
be representing them in the proceedings before the Court.
30. On October 2, 1998, the "Colegio Médico de Chile" reported
that it had commissioned Dr. Roberto von Bennewitz and Dr. Martín Cordero-Allary
to do the physical and psychiatric evaluation of the victim.
31. On October 2, 1998, the "Colegio Médico del Perú" reported
that it had commissioned Dr. René Flores-Agreda, psychiatrist, to evaluate
the psychiatric condition of Gisselle Elena and Paul Abelardo Zambrano-Loayza.
32. On October 7 and 9, 1998, the "Colegio Médico de Chile" presented
the expert report submitted by Dr. Roberto von Bennewitz, a forensic physician,
and the psychiatric report prepared by Dr. Martín Cordero-Allary on the victim’s
state of health. On October 13 of that year, the "Colegio Médico del Perú"
presented the reports prepared by Dr. René Flores-Agreda on the health condition
of Gisselle Elena and Paul Abelardo Zambrano-Loayza. That same day, the reports were forwarded to
the victim, to the Commission and to the State, who were told that under the
Court order, any observations they deemed appropriate were to be submitted
by no later than November 13, 1998.
33. On November 13, 1998, Peru submitted its observations on the reports
in question and challenged their probative value. It also requested that the Court appoint suitable
experts for the opinions ordered by the Court in its decision of August 29,
1998.
34. Neither the victim nor the Commission presented any observations on
the expert reports submitted.
iv
35. The State alleged an irregularity in connection with the filing of
the victim’s brief on reparations, because:
how
could it be that a 32-page brief was sent by fax from Washington, D.C., in
the United States, to San José, Republic of Costa Rica, seat of the Honorable
Court, at the same hour (21:55 or 19:53, January 30, 1998)? The Government of Peru wants and demands a reasonable explanation
of this irregularity and of why the Court did not reject in limine the extemporaneous filing of [the] evidentiary materials.
36. The Court does not consider it necessary to address this argument at
length. The Court’s Secretariat has
stated that the document in question was submitted on January 30, which is
sufficient for the Court to flatly dismiss the State’s contention of a purported
irregularity with this filing.
v
37. Article 43 of the Rules of Procedure of the Court provides that:
[i]tems
of evidence tendered by the parties shall be admissible only if previous notification
thereof is contained in the application and in the reply thereto […]
Should any of the parties allege force majeure, serious impediment or the
emergence of supervening events as grounds for producing an item of evidence,
the Court may, in that particular instance, admit such evidence at a time
other than those indicated above, provided that the opposing party is guaranteed
the right of defense.
38. The Court has previously held that its proceedings are not bound by
the same formalities that bind domestic courts in their proceedings.
It has been the consistent case law of the Court that some latitude
is permissible in receiving evidence and that when certain elements are added
to the body of evidence, particular attention must be given to the circumstances
of the case in question, with due regard for the conditions necessary to preserve
the principle of legal certainty and the balanced procedural rights of the
parties.
39. This practice also applies to the briefs containing the reparations
claims and to the State’s brief commenting on the reparations brief, which
are the principal documents at this stage and that in general are subject
to the same formalities as the application and reply on the merits insofar
as evidence is concerned. Here it is
important to recall the Court’s finding that:
the
procedural system is a means of attaining justice and that the latter cannot
be sacrificed for the sake of mere formalities.
Keeping within certain timely and reasonable limits, some omissions
or delays in complying with procedure may be excused, provided that a suitable
balance between justice and legal certainty is preserved (Cayara Case, Preliminary Objections, Judgment of February 3, 1993.
Series C No. 14, para. 42).
40. Therefore, the Court will address the evidentiary aspects of the instant
case within the legal framework thus described.
documentary
evidence
41. At the time she submitted her reparations brief, the victim stated
that its appendices would be forthcoming. On February 5, 1998, she presented the following documents as evidence:
a) Documents pertaining to the victim’s domicile
(cf. certification of domicile issued by the
Banco de la Nación; certification of domicile issued by the National Police
Ministry of the Interior of Perú, and made out in the name of María Elena
Loayza-Tamayo, Appendix I);
b) Birth certificates of the victim, her children and her siblings, and
her parent’s marriage certificate
(cf. birth certificates for Gisselle Elena
Zambrano-Loayza, Paul Abelardo Zambrano-Loayza and María Elena Loayza-Tamayo, Appendix II; civil marriage certificate
for Julio Loayza-Sudario and Adelina Tamayo-Trujillo; birth certificates for
Delia Haydée Loayza-Tamayo, Carolina Maida Loayza-Tamayo, William Julio Loayza-Tamayo,
Olga Adelina Loayza-Tamayo, Elizabeth Giovanna Loayza-Tamayo and Rubén Edilberto
Loayza-Tamayo, Appendix III);
c) Curriculum vitae and personal background of the victim
(cf. curriculum vitae of María Elena Loayza-Tamayo;
certificate attesting to the good character of María Elena Loayza-Tamayo,
issued by the Director, Office of the Deputy Director, OBE Advisory Services,
Asociación de Padres de Familia [Parents’ Association] of the Colegio “José
Gabriel Condorcanqui” [José Gabriel Condorcanqui High School], November 23,
1993; certification of employment and good character in the name of María
Elena Loayza-Tamayo, issued by the Director of the “C.E. José Gabriel Condorcanqui”,
U.S.E. 07-Rímac, November 24, 1993; certification issued by the Director of
the National School of Dramatic Arts, December 15, 1993; memorandum from the
head of the Humanities Department to María Elena Loayza-Tamayo, dated June
2, 1988; certification issued by the Director of the Universidad de San Martín
de Porres concerning María Elena Loayza-Tamayo, April 24, 1989; note from
the Universidad de San Martín de Porres, addressed to María Elena Loayza-Tamayo,
January 14, 1990; circular RNC. 271-91-DEA-FCA-USMP, from the Director of
the School of Management to María Elena Loayza-Tamayo, dated December 11,
1991; Decision No. 058-92-FCS-SMP of the Universidad de San Martín de Porres,
August 12, 1992; certification issued by the Office of the University Personnel
Management Office, for María Elena Loayza-Tamayo, January 3, 1994; certification
of María Elena Loayza-Tamayo’s employment, issued by the Chief of the Office
of Personnel and Services of the University of San Martín de Porres, January
5, 1994; certification issued by the Director of the Chorrillos Maximum Security
Women’s Prison, September 11, 1997; degree of “Licenciada” in Education in
Social Historical Sciences, awarded to María Elena Loayza-Tamayo, March 26,
1985; degree of “Licenciada” in Social
Work, awarded to María Elena Loayza-Tamayo, July 11, 1991; certification from
the National Center of Health-Related Educational Technology concerning María
Elena Loayza-Tamayo, Seminar Workshop
on “Didactics as Applied to Instruction in Health Sciences”, April 15, 1988;
certification from the Ministry of Health concerning María Elena Loayza-Tamayo,
May 7, 1987, Seminar Workshop on “Public Health-Sex Education and Family Planning;”
record of the Ministry of Health for María Elena Loayza-Tamayo, April 22,
1987. Participation in the “First Aid
Training Program” course; certification issued by the Office of the Director
of the Lima-South Departmental Health Unit for María Elena Loayza-Tamayo,
May 7, 1987; letter from Data Processing, Health, Medicine and Agriculture
Projects, addressed to María Elena Loayza-Tamayo, September 4, 1987; degree
of “Bachiller” in Social Work, awarded to María Elena Loayza-Tamayo by the
Universidad de San Martín de Porres on June 22, 1990; and degree of “Bachiller”
in Education, awarded to María Elena Loayza-Tamayo by the Universidad de San
Martín de Porres, September 6, 1982, Appendix XXIV; certification issued by
the Academic Director of the School of Law of the Universidad Mayor de San
Marcos concerning María Elena Loayza-Tamayo, December 17, 1997; and registration
reports for María Elena Loayza-Tamayo at the Universidad Nacional Mayor de
San Marcos, School of Law, December 16, 1997, Appendix XXV);
d) Documents pertaining to the victim’s employment history
(cf. listing of employment records for María
Elena Loayza-Tamayo as of February 6, 1996; certification issued by the Director
of the Colegio Nacional “José Gabriel Condorcanqui”, November 19, 1997; certification
issued by the Director of the National School of Dramatic Arts, February 15,
1993; certification issued by the head of the Academic Department of the School
of Administrative Sciences of the Universidad de San Martín de Porres, March
3, 1993, and certification issued by the Academic Dean of Education and Humanities
of the Universidad de San Martín de Porres, February 24, 1993, Appendix XIV);
e) Documents pertaining to the victim’s earnings
(cf. earnings statement for María Elena Loayza-Tamayo,
January 25, 1993; earnings statement for María Elena Loayza-Tamayo, November
13, 1997, Appendix XII; tabulation of earnings of María Elena Loayza-Tamayo
as of the date of her detention, February 6, 1993; vouchers from the Ministry
of Education made out in the name of María Elena Loayza-Tamayo, from January
1993, September 1992, December 1992; a monthly pay slip from the Universidad
de San Martín de Porres made out in the name of María Elena Loayza-Tamayo,
February 1, 1993; and a certification from the Instituto Nacional de Cultura
[National Institute of Culture], dated December 19, 1997, Appendix XIII);
f) Documents pertaining to the victim’s current employment status
(cf. resolution No. 0805, July 10, 1996, from
the Office of the Director of the Educational Services Unit USE 07 -- Rímac,
Appendix VII; official memorandum No. 314-97/DCN”JGC”, dated November 10,
1997, from Aquiles L. Reynoso Lázaro, CH “José Condorcanqui”, to Francisco
Javier Herrera Tuesta, Director of the Section II Program of the U.S.E.02;
request to the Director of the Educational Services Unit U.S.E. 02-Rímac,
from María Elena Loayza-Tamayo, dated November 21, 1997; and Resolution No.
2273 from the Office of the Director of the Educational Services Unit No.
02 Rímac-Independencia-San Martín de Porres,
December 17, 1997, Appendix XXVI; request for reinstatement at the “José Gabriel
Condorcanqui” Educational Center, dated October 27, 1997, addressed to the
Director of the Educational Services Unit 02 Rímac; request for reinstatement
on the teaching staff of the School of Dramatic Arts, dated November 27, 1997;
request for reinstatement on the teaching staff of the Universidad de San
Martín de Porres, dated December 3, 1998; request for reinstatement on the
teaching staff of the School of Management of the Universidad de San Martín
de Porres, November 26, 1997, Appendix VIII; and request for reinstatement
on the teaching staff of the School of Education of the Universidad de San
Martín de Porres, dated November 27, 1997, Appendix IX);
g) Documents concerning the victim’s physical and psychological condition
from 1993 to 1997
(cf. listing of medical reports for María Elena
Loayza-Tamayo from 1993 to 1997, issued by physicians at the Chorrillos Maximum
Security Women’s Prison; official memorandum no. 718-D-EP-msm/CH, dated December
7, 1993, addressed to Carolina Loayza-Tamayo; medical report no. 024-93-USP-EPRCEMCH,
dated November 30, 1993, addressed to the Director of the Chorrillos Maximum
Security Women’s Prison; official memorandum No. 374-D-EP-MSM/CH, dated July
31, 1996, to Carolina Loayza-Tamayo; official memorandum No. 194-USP-EPMSMCH-96,
dated July 25, 1996, to the Director of the Chorrillos Maximum Security
Women’s Prison; official memorandum No. 418-D-EP-MSM/CH dated September 16,
1996, to Carolina Loayza-Tamayo; official memorandum No. 247-96-USP-EPMAMCH,
dated September 9, 1996, to Peruvian National Police Colonel Enrique Castillo
León, Director of the Chorrillos Maximum Security Women’s Prison; report No.
02-97-EPMSMCH.- Serv.Ps., to Peruvian National Police Colonel Enrique Castillo
León; December 17, 1997 request from María Elena Loayza-Tamayo to the Director
of the “Arzobispo Loayza” National General Hospital; copy of a hospital services
card for the “Arzobispo Loayza” National General Hospital, in the name of
María Elena Loayza-Tamayo; certification of medical attention received, for
the date on which María Elena Loayza-Tamayo was examined at the “Arzobispo
Loayza” National General Hospital; medical report of the “Arzobispo Loayza”
National General Hospital, dated January 5, 1998, on the clinical history
of María Elena Loayza-Tamayo, Appendix X; note dated January 9, 1998, from
María Elena Loayza-Tamayo to the Director of the National Institute of Prisons;
August 28, 1997 request from Carolina Loayza-Tamayo to the Director of the
National Institute of Prisons; and a note from Carolina Loayza-Tamayo dated
June 10, 1997, to the Director of the National Institute of Prisons, Appendix
XI);
h) Documents pertaining to the victim’s present state of health
(cf. medical-psychiatric evaluation of María
Elena Loayza-Tamayo, prepared by Dr. Shirley Lilliana Llerena Mora, January
24, 1998, Appendix XXXVIII; letter No. 671-97-D-CMP, dated December 22, 1997,
from the "Colegio Médico del Perú" to Carolina Loayza-Tamayo, and letter No.
101-97-CDDHH, dated December 19, 1997, from the "Colegio Médico del Perú",
Human Rights Committee, to Francisco Sánchez Moreno-Ramos, Appendix XXXVI);
i) Documents pertaining to expenses incurred for food, toiletries and
articles of personal hygiene, materials for handicrafts, medicines, and clothing
for the victim during her incarceration
(cf. chart of monthly expenses for groceries
delivered to María Elena Loayza-Tamayo at the Chorrillos Maximum Security
Women’s Prison and receipts from various establishments, Appendix XV; chart
of toiletries and articles of personal hygiene delivered monthly to María
Elena Loayza-Tamayo at the Chorrillos Maximum Security Women’s Prison, Appendix
XVI; photographs of some of the handicrafts made by María Elena Loayza-Tamayo,
Appendix XVII; chart depicting the quarterly expenditures and table of one-time
outlays for materials that María Elena Loayza-Tamayo used for the handicrafts
she made at the Chorrillos Maximum Security Women’s Prison, and receipts from
various establishments where the materials for the handicrafts done by María
Elena Loayza-Tamayo were purchased, Appendix XVIII; chart of medications prescribed
for María Elena Loayza-Tamayo while she was at the Chorrillos Maximum Security
Women’s Prison; medical prescriptions and receipts for medications purchased
for María Elena Loayza-Tamayo from 1996 to 1997, Appendix XIX; chart illustrating
annual expenditures for clothing, sleepwear, bedding, shoes and the like,
for María Elena Loayza-Tamayo while she was at the Chorrillos Maximum Security
Women’s Prison, and receipts for articles of clothing purchased for María
Elena Loayza-Tamayo, Appendix XX);
j) Chart of transportation expenses incurred by the victim’s next of kin
to visit her and deliver groceries to her at the Chorrillos Maximum Security
Women’s Prison
(cf. chart of transportation expenses to visit
and deliver supplies to María Elena Loayza-Tamayo and a photocopy of the June
25, 1997 issue of the “El Peruano” official journal containing Supreme Decree
No. 005-97-JUS, headlined “Regulations governing the living arrangements and
gradual rehabilitation system for inmates prosecuted for and/or convicted
of the crime of terrorism and/or treason);
k) A video
(cf. video, Appendix IV);
l) Documents pertaining to the construction of the victim’s residence
(cf. repayment voucher No. 0551-93, Banco de Materiales
loan contract No. 024612/342430, dated May 19, 1992, Appendix XXVII);
m) Documents related to the educational and medical expenses of the victim’s
children
(cf. list of expenses for the education of
Paul Zambrano-Loayza, from 1993 to 1997, and document from the “San Basilio”
Coeducational Private School certifying the courses taken by Paul Zambrano-Loayza,
Appendix V; chart of expenses for the education of Gisselle Elena Loayza-Tamayo
from 1994 to 1997; receipts from the Universidad de Lima made out to Gisselle
Elena Zambrano-Loayza and dated April 30, May 30, and September 28, 1994;
certificate from the Universidad de Lima, made out to Gisselle Elena Zambrano-Loayza;
five receipts from the Universidad de Lima; a letter from Carolina Loayza-Tamayo
to the Director of Personnel of the Universidad de Lima, September 23, 1995,
and the high school record of Gisselle Zambrano-Loayza, Appendix VI; chart
of medical expenses of the children of María Elena Loayza-Tamayo and receipts
from Gisselle Zambrano-Loayza and Paul Zambrano-Loayza for medical expenses);
n) Documents pertaining to the representations before the Peruvian authorities
and the inter-American system on the victim’s behalf
(cf. chart of remedies filed with the Peruvian
judicial and non-judicial authorities, with the inter-American system and
with other international organizations recognized by Peru; photocopy of Supreme
Decree No. 135-96 EF, titled “Substitution of Several Articles of the Regulations
Governing the Special Income Tax System,” published in the December 31, 1996
issue of the “El Peruano” official journal, Appendix XXVIII; Chart of Minimum
Representation Fees suggested by the Lima Bar Association and receipt for
Carolina Loayza-Tamayo’s purchase of the table, December 11, 1997, Appendix
XXIX; expenses for photocopying documents that Carolina Loayza-Tamayo presented
on the victim’s behalf in various proceedings, and photocopying receipts,
Appendix XXX; chart of expenditures for telephone calls and telephone bills
received from the Compañía Peruana de Teléfonos, S.A., and from Telefonía
del Perú, Appendix XXXI; chart of expenses incurred for mailing correspondence
and postage receipts, Appendix XXXII; chart of expenses for sending the petition
and application for the Loayza Tamayo Case by fax and receipts for fax transmission
of the petition and application in the Loayza Tamayo Case, Appendix XXXIII;
costs of the courier services to send the correspondence involved in processing
the petition and application in the Loayza Tamayo Case and receipts for courier-sent
correspondence for processing the petition and application in the Loayza Tamayo
case, Appendix XXXIV; and invoices for airfares for travel by Carolina Loayza-Tamayo,
Appendix XXXV);
o) Documents pertaining to the work of Ms. Carolina Loayza-Tamayo
(cf. letter from Dr. Oscar de la Puente-Raygada,
Chairman of the Cabinet and Minister of Foreign Affairs, dated October 1,
1992, addressed to the Public Prosecutor; letter from Dr. Oscar de la Puente-Raygada,
Chairman of the Cabinet and Minister of Foreign Affairs, dated February 2,
1993, addressed to the Minister of State in the Office of Economics and Finance,
Appendix XXII; a resolution dated January 25, 1993, from the Ministry of Foreign
Affairs; Supreme Resolution No. 148-92-JUS, September 25, 1992; memorandum
dated February 2, 1993, from Carolina Loayza-Tamayo to the Minister’s Office,
and a memorandum from Carolina Loayza-Tamayo, dated January 25, 1993, to the
Minister, Appendix XXIII); and
p) Documents pertaining to the exchange rate between the local currency
of Peru and the United States dollar
(cf. information comparing the exchange rate (new soles
per United States dollar, Appendix XXVII).
42. The State objected to the inclusion of the appendices filed by the
victim using arguments that concerned admissibility and probative value.
In the case of the admissibility arguments, it alleged that the appendices
to the victim’s reparations brief were not presented within the time limit
established by the Court, which had expired on January 31, 1998; this, it
argued, "[would] vitiate their merit or value as evidence. "
43. The Court notes that its practice has always been to allow the initial
submission of applications to be done by fax or telex (Article 26 of the Rules
of Procedure), with the original documents and their appendices submitted
within a reasonable time period thereafter. The Court decides what constitutes a reasonable time period on a
case-by-case basis (Paniagua Morales
et al. Case, Preliminary Objections, Judgment of January 25, 1996. Series
C No. 23, para. 34).
44. The victim submitted the appendices six days after the body of the
brief, and five days after the specified deadline. In keeping with the spirit and purpose of the
American Convention, this five-day delay could not possibly invalidate information
pertinent to determining what the reparations should be, especially when one
considers that particular care was taken to ensure procedural balance.
At the time the extension was granted on March 31, 1998, the President
specified that the victim and the Commission had two months and 25 calendar
days in which to present their arguments and evidence, and granted the State
the same amount of time to present its observations and evidence.
45. Thus, Peru had the same amount of time to conduct a study and prepare
its arguments on the reparations briefs and their appendices. Hence, the argument made by the State that the
delay in filing the appendices to the victim’s brief was prejudicial to the
State is inadmissible.
46. Given the foregoing, the Court is admitting the appendices to the victim’s
reparations brief.
47. The State also questioned the evidentiary value of some of the receipts
presented by the victim, which did not show the names and surnames of the
persons who incurred the respective expenses.
Here, Perú alluded specifically to appendices XV, XVI, XVIII, XIX (slips
no. 09119, 4275, 09402 and 117748), XX, XXI, XXX, XXXII, XXXIII and the chart contained in appendix XXVIII.
48. When it examined the appendices being contested, the Court found that
in some cases the victim had presented charts of estimated costs (cf. appendices XV, XVI, XVIII, XIX, XX, XXI, XXX, XXXII
and XXXIII),
apparently prepared as a reference aid. In
some cases, the figures given were supported by receipts and vouchers; in
other cases the amounts shown were described by the victim herself as “estimates”
and approximate figures for certain undocumented outlays. Moreover, the charts submitted as Appendix XXVIII
are an organized layout of representations alleged to have been made by victim’s
counsel before Peruvian and international authorities, including the organs
of the inter-American system.
49. The Court finds that the charts in question do not constitute evidence.
They are documents that illustrate the victim’s claims and supplement
the reparations brief. For that reason they will not be added to the
body of evidence in the instant Case.
50. The Court is compelled to point out that certain discrepancies noted
detract from the value of these tables, even as reference aids. For example, there are mathematical errors in
the figures shown on some of the chart
(cf. list of
expenses for the education of Paul Zambrano-Loayza, Appendix V; chart
of expenses for the education of Gisselle Zambrano-Loayza, Appendix VI; chart
of toiletries and articles of personal hygiene delivered monthly to the Chorrillos
Maximum Security Women’s Prison for María Elena Loayza, Appendix XVI; chart
of one-time outlays for materials that María Elena Loayza used for the handicrafts
she made at the Chorrillos Maximum Security Women’s Prison, Appendix XVIII;
chart of medications prescribed for María Elena Loayza-Tamayo while she was
at the Chorrillos Maximum Security Women’s Prison, Appendix XIX; chart of
expenses for photocopying documents that Carolina Loayza-Tamayo, the victim’s
sister and attorney, presented on the victim’s behalf in various proceedings,
Appendix XXX; chart of expenses for international telephone calls made from
the telephone installed in the home of the victim’s attorney and sister, Appendix
XXXI; list of expenses for mailed correspondence, Appendix XXXII; chart of
fax-transmission expenses for sending the petition and application in the
Loayza Tamayo Case, Appendix XXXIII);