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
Alirio Abreu Burelli, 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
Renzo
Pomi, Deputy Secretary,
pursuant to articles 55 and 57
of the Court’s Rules of Procedure, enters the following judgment.
I Introduction of the Case
1. On July 22, 1997, the Inter-American Commission
on Human Rights (hereinafter “the Commission” or “the Inter-American Commission”)
filed an application against the Republic of Peru (hereinafter “the State”
or “Peru”). The case in question had
originated in a petition (No. 11,319) received at the Commission’s Secretariat
on January 28, 1994. Citing articles
50 and 51 of the American Convention (hereinafter “the Convention” or “the
American Convention”), in its application the Commission submitted the instant
case for a ruling as to whether the following articles of the Convention were
violated when a “faceless” military tribunal tried Mr. Jaime Francisco Sebastián
Castillo Petruzzi, Mrs. María Concepción Pincheira Sáez, Mr. Lautaro Enrique
Mellado Saavedra and Mr. Alejandro Luis Astorga Valdéz, convicted them of
treason under Decree-Law No. 25,659, and sentenced them to life imprisonment:
Article 1(1) (Obligation to Respect Rights); Article 2 (Duty to Undertake
Internal Legislative or Other Measures); Article 5 (Right to Humane Treatment);
Article 8 (Right to a Fair Trial); Article 20 (Right to Nationality); Article
29 (Restrictions Regarding Interpretation), in combination with the Vienna
Convention on Consular Relations, and Article 51(2), all from the American
Convention.
The Commission also requested
that the Court find that “the State must make full restitution” to the alleged
victims for the “grievous material and moral damages they suffered.” It therefore asked the Court to call upon
the State “to order their immediate release and to pay them fair compensation.”
It also requested that the State be ordered to pay “the reasonable
costs and expenses of the [alleged] victims and their next of kin.”
II
Competence
2. Peru
has been a State Party to the American Convention since July 28, 1978, and
recognized the jurisdiction of the Court on January 21, 1981. Therefore, under Article 62(3) of the Convention
the Court has jurisdiction to consider the merits of the instant case.
3. On January 28, 1994, Mrs. Verónica Reyna, Head of the Legal
Department of the Chilean organization Fundación de Ayuda Social de las Iglesias
Cristianas (hereinafter “FASIC”), submitted the first petition in this case.
On June 29, l994, the Commission forwarded the pertinent parts of that
petition to the State with the request that the latter supply information
relevant to the subject of the petition within ninety days.
It also asked that the State provide information concerning the exhaustion
of domestic remedies.
4. On August 26, 1994, a second group of claimants provided new
information on the case and on September 29, 1994, they reiterated their complaint.
On November 18, 1994, that second group of claimants requested that
Mr. Astorga Valdéz’ case be joined with the original case. In a November 22, 1994 telephone conversation,
the Secretariat of the Commission advised the second group that they would
need a power of attorney or authorization from the original claimants in order
to become co-claimants in the case.
5. On September 14, 1994, the State presented information, together
with a copy of Official Document No. 534-S-CSJM of the Superior Court of Military
Justice, dated September 1, 1994. That
report stated the following:
Case No.
078-TP-93-L [against Castillo Petruzzi,
Pincheira Sáez and Mellado Saavedra] was prosecuted before the Military Court
of the Peruvian Air Force [hereinafter “FAP”]. The charge was treason. The court convicted the defendants of the crime
with which they were charged and sentenced them to life imprisonment.
The State added that Peruvian
courts had “jurisdiction over crimes committed within the national territory[,]
as a matter of sovereignty,” and that Peru’s criminal laws applied irrespective
of the nationality or domicile of the author of the crime. It also observed that the criminal conduct
that Decree-Law No. 25,659 classified as treason was aggravated terrorism;
“given the nature of the crime and the manner in which it is perpetrated,
the tribunals that hear such cases must take the necessary security precautions.”
Finally, the State noted that in all proceedings conducted by military
courts, the “principles of due process, the right of appeal (three instances),
judicial control, reasoning of judgments, the prohibition of the use of analogy
in criminal law, and notification of the cause for arrest” were observed and
the detainee was provided with legal counsel.
On September 23, 1994, the Commission forwarded a copy of the State’s
answer to the claimants.
6. On November 18, 1994, the original claimants
presented their observations on the State’s answer. There they requested that the “January complaint
be expanded to include Alejandro Astorga Valdéz,” who was not named as a victim
in the original petition. They maintained
that in Mr. Astorga Valdéz’ case, the courts of first and second instance
had agreed to a motion to dismiss for lack of jurisdiction. When the highest court granted a motion to
nullify the lower courts’ rulings, however, Mr. Astorga Valdéz was convicted
and sentenced to life imprisonment.
7. Under Article 30 of its Regulations, the
Commission agreed to expand the original complaint.
8. On
December 14, 1994, the second set of claimants submitted a notarized power
of attorney, executed by the alleged victims’ next of kin to the president
of the Chilean Human Rights Commission, Mr. Jaime Castillo Velasco, and to
Mr. Carlos Margotta Trincado.
9. On January 31, 1995, the Commission received from the claimants
a report of the Human Rights Commission of the Chilean Parties of Democratic
Reconciliation, which noted that the Commission in question had attempted,
without success, to visit the Chilean citizens in prison in Peru.
This report was sent to the State on March 20, 1995.
10. On March 8, 1995, the Commission received document No. 09-FG/CSJM,
dated February 15 of that year, wherein the Prosecutor General of the Supreme
Court of Military Justice reported that the alleged victims had been sentenced
to life imprisonment. The document also stated that Mr. Castillo Petruzzi’s defense attorney
had filed a motion to have his conviction overturned, which the Special Tribunal
of the Supreme Court of Military Justice dismissed as unfounded. This information was conveyed to the claimants
on March 16, 1995.
11. By note of June 6, 1995, the State presented documents No. 316-95
of June 2, 1995, and No. 222-95-MP-FN-FEDPDH-DH-V of April 18, 1995, concerning
a request for verification of the four alleged victims’ health and legal status.
Additional information was supplied on November 7, 1995, to the effect
that Mrs. María Concepción Pincheira Sáez had been convicted of treason and
sentenced to life imprisonment and that “she was counseled by Dr. Castañeda
throughout the proceedings.” That communication added that the prisoner
“reports health problems and harassment by inmates.” This information was sent to the claimants on November 30, 1995.
12. On June 14, 1996, the claimants asked the Commission to adopt
precautionary measures for the alleged victims in anticipation of their possible
transfer to an “uninhabitable” prison. The Commission asked the State to supply information on this matter,
since the order from the Special Tribunal of the Supreme Court of Military
Justice had been that their sentence of life imprisonment was to be served
at the Yanamayo Prison in Puno. By
note of July 16, 1996, the State reported that “there was no order of any
kind to transfer the Chilean prisoners” to another prison facility.
13. On November 19, 1996, the Commission informed the State that
at its 93rd session, it had determined that Case No. 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, the State rejected the proposed friendly settlement, based on the
fact that the alleged victims had been “tried, convicted, and sentenced in
accordance with Decree-Law 25,659 and Decree-Law 25,708, which regulate the
crime and corresponding procedure in cases of treason. It also pointed out that the rules of due process
and the principle of territoriality established in Article 1 of the Peruvian
Criminal Code had been observed.
14. On December 17, 1996, the Commission received a report from Peru’s
Supreme Court of Military Justice wherein it asserted that Peruvian courts
had jurisdiction in the cases prosecuted against the alleged victims, since
the crimes with which they were charged were committed on Peruvian soil and
that “the territoriality of criminal law is independent of the nationality
of the perpetrator.” The State went
on to point out that in the alleged victims’ cases, the rules of due process,
right of appeal, judicial control, and the grounds for the judgments were
observed.
15. On December 18, 1996, the claimants asked the Commission to take
precautionary measures to protect the alleged victims’ physical safety, given
the situation that developed when members of the Tupac Amaru Revolutionary
Movement (hereinafter the “MRTA”), the group with which the alleged victims
had allegedly been associated, “took numerous people hostage at the residence
of the Japanese Ambassador in Peru.”
16. On March 11, 1997, the Commission approved Report 17/97, the
final part of which reads as follows:
[...]
86.
That by trying Jaime Francisco Castillo Petruzzi, María Concepción
Pincheira Saéz, Lautaro Enrique Mellado Saavedra and Alejandro Astorga [Valdéz]
under Decree-Laws Nos. 25,475 and 25,659, the State of Peru violated the judicial
guarantees recognized in Article 8(1) of the American Convention on Human
Rights […] and the rights to nationality and to judicial protection recognized,
respectively, in articles 20 and 25, all in conjunction with Article 1(1)
of the Convention.
87.
That the crime of treason classified under Peru’s legal system, 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.
The Commission therefore resolved [to recommend]
that the State of Peru:
88.
Nullify the proceedings conducted in the military courts against Jaime
Castillo Petruzzi, Lautaro Mellado Saavedra, María Concepción Pincheira Sáez
and Alejandro Astorga [Valdéz] on charges of treason, and order that they
be given a new trial in the regular court system, with full guarantees of
due process, and
89.
Pursuant to Article 50 of the Convention, the Commission requests that
the Peruvian Government inform the Commission within two months of any measures
it has taken in the instant case in furtherance of the recommendations contained
in the present report, which is confidential in nature and should not be published.
17. Report 17/97 was transmitted to the State on April 24, 1997,
with the request that within two months, it inform the Commission of the measures
adopted in this regard.
18. After having requested and received an extension until July 8,
1997, the State presented a report wherein it took issue with the Commission’s
findings and asserted the lawfulness of its actions.
19. The Commission decided to submit this case to the Court on June
27, 1997.
IV
20. The Court will now describe the
course of the proceedings in the instant case, highlighting the most significant
developments in the process.
21. When the application
was filed with the Court on July 22, 1997 (supra 1), the Commission named Messrs. Oscar Luján Fappiano, Carlos
Ayala Corao and Claudio Grossman as its delegates; Ms. Christina M. Cerna
as attorney, and Verónica Reyna, Nelson Caucoto, Jaime Castillo Velasco and
Enrique Correa as assistants. In accordance
with Article 22.2 of the Rules of Procedure, it also advised the Court that
the first two assistants had been among the original claimants, while that
latter two had been attorneys for the alleged victims. On August 4, 1997, the Commission referred
to the Court a power of attorney authorizing Mr. Jaime Castillo Velasco and
Mr. Carlos Eduardo Margotta Trincado to represent alleged victims Castillo
Petruzzi, Astorga Valdéz and Mellado Saavedra.
On August 27, 1997, the Commission sent the Court a power of attorney
that the next of kin of the alleged victims had executed to Ms. Verónica Reyna
Morales and Mr. Nelson Caucoto Pereira. On
September 26, 1997, the Commission submitted a power of attorney executed
to Mr. Enrique Correa to allow him to represent the alleged victims.
22. By note of July 31, 1997, after a preliminary examination of
the application by the President of the Court (hereinafter “the President”),
the Secretariat of the Court (hereinafter “the Secretariat”) notified the
State of the application and advised it that it had the following time limits: four months to present its answer to the application,
one month to appoint an agent and alternate agent, and two months to file
preliminary objections. These time
periods were to begin as of the date of notification of the application.
By a communication of that same date, the State was invited to designate
a judge ad hoc.
23. By communications of August 26 and 28, 1997, the Commission submitted
a corrected version of the Spanish text of the application, and noted that
it contained “corrections of minor errors, above all in style and [that it]
should replace the earlier version […] submitted to the Court on July 22,
1997.” The corrected version was sent
to the State on September 2 of that year.
24. On September 3, 1997, the State advised the Court that Mr. Fernando
Vidal Ramírez had been appointed judge ad hoc.
25. On
September 5, 1997, the State designated Mr. Mario Cavagnaro Basile as its
agent, and Mr. Walter Palomino Cabezas as its alternate agent.
26. On September 22, 1997, the State asked the Court to indicate
which of the two versions of the application –the new version (supra 23) or the version submitted on July
22 of that year- should be considered “as valid”.
27. On September 24, 1997, the Secretariat,
following the President’s instructions, informed the State that in view of
its request for clarification and to ensure the “transparency of the process,”
the President had decided to suspend the time limits given to answer the application
and to interpose preliminary objections, until such time as the Commission
had presented the clarifications -requested that same day- of the corrections
made to the original text of the application.
28. On
October 1, 1997, the State filed ten preliminary objections under Article
31 of the Rules of Procedure.
29. On October 6, 1997, the Commission submitted a “list of corrections
made [...] to the application” of July 22, 1997 (supra 1 and 23). The next day, the Secretariat asked the State
to present its observations to the Commission’s clarifications by no later
than October 13, 1997. Those observations
were never received.
30. By order of October 15, 1997, the President decided that the
original text of the application submitted to the Court on July 22, 1997,
was the version that the parties should consider valid, incorporating those
corrections that the Commission had submitted on October 6, 1997. He also ordered that processing of the case
was to continue and that the time period for answering the application was
to resume. The new deadline would
be December 27 of that year.
31. On November 21, 1997, the Commission submitted its written comments
on the State’s preliminary objections and requested that the Court dismiss
them.
32. On December 12, 1997, the State requested an extension of the
deadline it was given to submit its answer to the application, and that the
new deadline be January 5, 1998. On
instructions from the President, on December 15, 1997, the Secretariat informed
the State that
the time
period to file the answer to the application cannot 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.
33. On January
5, 1998, the State presented its response to the application and there asked
the Court to declare the application unfounded in all its parts. It denied the alleged violations imputed to
it. In its response to the application,
the State made reference to the terrorist violence that had disrupted life
in Peru since it first appeared in 1980 with the so- called Sendero Luminoso,
and then continued with the MRTA, the group to which, the State alleged, the
four Chilean citizens belonged.
34. On January 19, 1998, the State “challenged” a document annexed
to the Commission’s observations on the State’s preliminary objections, which
document had certified FASIC’s legal capacity; in the State’s communication,
the organization is referred to as the Fundación de Ayuda Social de Fieles
de las Iglesias Cristianas.
35. On January 22, 1998, the Commission submitted a copy of the documentation
that FASIC had sent to it concerning that foundation’s legal capacity.
36. In a brief of March 17, 1998, the State asserted that the documents
referred to in the preceding paragraph merely confirmed its doubts as to the
legal status of the claimant foundation. It also “challenged” one of the powers of attorney.
37. In its brief of preliminary objections and in its answer to the
application, the State had requested that the Commission show all the proceedings
in this case. On March 19, 1998, the
Secretariat informed the State that, as per the latter’s request, the Commission
had duly supplied the pertinent parts of its case file and that those papers
were in the Court’s possession.
38. That same day, acting on the President’s instructions, the Secretariat
requested from the State an authenticated copy of the laws and regulations
cited in the proceedings conducted in the Peruvian courts against the alleged
victims in this case, and for the complete court records of those legal proceedings.
39. On April 14, 1998, the State informed the Court that the laws
the latter had requested had been submitted as evidence in the Loayza Tamayo
Case. It therefore asked that the
Court kindly indicate which records of the court proceedings conducted in
the cases of the alleged victims would be needed, since the files “contain
an enormous number of documents concerning persons other than those named
in this application.”
40. On April 27, 1998, the Commission reiterated its request for
submission of the “laws and other regulatory decrees relevant to the proceedings
carried out by the Peruvian courts against Jaime Francisco Castillo Petruzzi
et al., and all relevant parts of
the court records in these cases.” The
Commission objected to the use of the documents submitted in the Loayza Tamayo
case containing the laws and regulations cited in that case, arguing that
they were completely different case files. On July 7, 1998, the Secretariat, on instructions
from the Court, asked that the State submit the pertinent parts of the court
record of the proceedings in Peru against Jaime Francisco Castillo Petruzzi
et al. and informed both parties
that the laws and decrees submitted for the Loayza Tamayo Case would be added
to the Court’s file on this case.[1]
41. The Secretariat also asked the Commission
“to indicate whether any other law was cited in the case.” Those requests were repeated on September 30,
1998, at which time the Commission and the State were given until October
30, 1998 to comply with the Court’s request.
On October 5, 1998, the State sent two volumes containing “certified
copies of the proceedings conducted against Jaime Castillo Petruzzi et al. [...] before the Military Courts
of Peru, for the crime of treason.” For
its part, on October 26, 1998, the Commission indicated that “the State would
be the one to know which laws were applied in these cases.” Accordingly, it again petitioned the Court
to ask the State for the laws and provisions used in the domestic proceedings
and for the records from the military courts.
The following day, the Secretariat informed the Commission that the
court records had been sent to it that day, by special mail, and that the
Commission’s request would be brought to the President’s attention.
42. On
July 14, 1998, the Secretariat, on instructions from the Court, which for
its part was acting at the State’s behest, requested that the Commission remit
the minutes of the meeting where the decision to submit the instant case to
the Court was made, and any other document showing that the alleged victims
were aware of the steps being taken on their behalf with the Commission, regardless
of whether the claimants had powers of attorney from the alleged victims’
next of kin. On July 29, 1998, the
Commission supplied the requested documents, which were forwarded to the State
that same day.
43. On August 24, 1998, the State objected to the minutes of the
Commission’s proceedings on the grounds that they were in English and asked
that it be furnished with a Spanish translation. The next day, the Secretariat sent the State a translation of the
minutes so that it might understand the contents. No reply was received at the Secretariat by the August 28, 1998
deadline that the State was given to present its comments on the minutes. On September 11 of that year, the State asserted
that the minutes of the Commission meeting where the decision to submit the
case to the Court was taken, revealed that it was “a premature decision on
a matter not yet settled; the matter was, in fact, pending because a previously
requested extension had been granted.” Acting on instructions from the President, on September 29, 1998
the Secretariat informed the State that its observations should have been
presented by August 28 of that year at the latest.
As a consequence, the submission it filed on September 11 was extemporaneous
and, moreover, moot since the Court had already delivered its judgment on
the preliminary objections.
44. In
its judgment of September 4, 1998, the Court concurred with the third preliminary
objection, which concerned consular visits, but dismissed all the other preliminary
objections filed by the State. The Court therefore decided to continue its consideration of the
case.[2]
45. By
order of September 8, 1998, the President convened the Inter-American Commission
and the State to a public hearing at the seat of the Court, starting on November
25, for the purpose of hearing the testimony of the witnesses offered by the
Commission. The President also instructed
the Secretariat to advise the parties that they could present their closing
arguments on the merits of the case immediate after that testimony was taken.
46. On November 16, 1998, the State forwarded to the Court the alleged
victims’ immigration records, issued by the Interior Ministry’s Office of
Immigration and Naturalization.
47. On November 17, 1998, the Commission petitioned the Court to
order the State to send a copy of Repentance Declaration B1A 000087 and the
Opinion of the Chief Prosecutor. Although
specifically requested, both documents “were missing from the recently transmitted
court records.” On November 20, 1998, the State indicated that the Opinion
of the Chief Prosecutor was one the pertinent parts of the court record that
had already been sent (supra 41)
and that the Repentance Declaration was not part of the court record.
A copy of that statement was attached to its reply.
48. The public hearing was held at the seat of the Court on November
25, 1998.
There appeared before the Court:
for the Republic of Peru:
Mario
Cavagnaro Basile, Agent;
Walter
Palomino Cabezas, Advisor;
Jorge
Hawie Soret, Advisor;
Sergio
Tapia Tapia, Advisor;
Alberto
Cortez Torres, Advisor; and
for the Inter-American Commission on Human Rights:
Oscar
Luján Fappiano, Delegate;
Claudio
Grossman, Delegate;
Verónica
Gómez, Advisor;
Verónica
Reyna, Assistant;
Nelson
Caucoto, Assistant;
Enrique
Correa, Assistant; and
as witnesses offered by the Inter-American Commission
on Human Rights:
Gloria
Cano;
Grimaldo
Achaui Loaiza; and
Héctor
Salazar Ardiles.
Although summoned by the Court,
the following witnesses offered by the Commission did not appear:
León Carlos
Arslanian;
Teresa
Valdéz Escobar;
María
Angélica Mellado Saavedra;
Sandra
Cecilia Castillo Petruzzi;
Jaime
Castillo Navarrete;
Juana
Ramírez Gonveya; and
Gabriel
Asencio Mansilla.
49. That same day, before the close of the public hearing, the State
presented a copy of a videocassette titled “Fifteen Years That Changed Peru’s
History.” The video, shown during
the hearing, concerned the social upheaval and destruction that terrorism
had caused.
50. On December 9, 1988, the Secretariat asked
the Secretary General of the Organization of American States (hereinafter
“the OAS”) to report whether Peru had notified him of any suspension of guarantees
for the period between January 1, 1993 and June 1, 1994, as required under
Article 27(3) of the Convention and, if so, whether the notification indicated
“the provisions whose application had been suspended, the reasons for the
suspension, its territorial scope and the date set for termination of such
suspension.” On December 15, 1998,
the Secretariat reiterated its request. On
January 7, 1999, the Director of the OAS General Secretariat’s Department
of International Law, Mr. Jean-Michel Arrighi, reported that it had not received
any notification of suspension of guarantees for the dates in question. On February 16, 1999, the State took issue
with the content of the communication from the official in question, since
its January 15, 1999 brief had reported that the declaration of the state
of emergency and its extensions were reported to the OAS General Secretariat
and the Executive Secretariat of the Commission.
51. On April 7, 1999, the Secretariat asked the State to clarify
whether the notifications of suspension of guarantees had been sent both to
the Executive Secretariat of the Commission and to the General Secretariat
of the OAS. The Secretariat also asked
that the State kindly furnish the Court with a copy of any direct communication
the State had sent to the OAS General Secretariat.
On April 19, 1999, the State sent its clarification to the effect that
the orders declaring states of emergency “were sent by [its] Permanent Mission to the Executive Secretariat of the Commission
on Human Rights.” It also provided
a copy of a note addressed to the OAS General Secretariat, dated February
24, 1993, concerning the state of emergency declared from April 13, 1992,
to February 24, 1993. On December
9, 1998, the President requested documentation related to the suspension of
guarantees. The State forwarded the
supreme decrees ordering suspension of guarantees between January 1, 1993
and June 1, 1994.
52. On
February 8, 1999, the Secretariat informed the State and the Commission that
March 8, 1999, had been set as the deadline for the final pleadings on the
merits. On February 24, 1999, the
State requested that the deadline in question be extended to April 15. The extension ultimately granted was until
March 19, 1999.
53. Following
instructions from the President, on February 8 and 10, 1999, the Secretariat
requested additional documentary evidence from both the State and the Commission
(paragraph 76). On February 17 and
March 10, the State submitted a portion of the information solicited from
it. On February 17 and 19, 1999, the
Commission requested a 15-day extension to submit the information it had been
asked to provide. Although both requests
were granted, the Commission never submitted the requested information.
54. On
February 9, 1999, the State sent a communication listing a series of international
treaties on the subject of terrorism.
55. The
Inter-American Commission submitted its final pleading on March 8, 1999. There, it maintained that articles 8, 7, 20,
25, 5, 2 and 1.1 of the American Convention on Human Rights, the Convention’s
preamble and the preamble to the Universal Declaration of Human Rights were
all violated in the proceedings that the military courts conducted against
the alleged victims.
56. On March 19, 1999, the State filed its final pleading asserting
that the trials conducted in the domestic courts had proven the alleged victims’
ties to terrorism. It argued that
the alleged victims’ alien status did not shield them from prosecution under
Peruvian criminal law. It added that
inasmuch as the proceedings in which the alleged victims “were tried were
conducted with scrupulous regard for the procedural guarantees established
under Peruvian law, especially those of due process and the right of self
defense,” they should be neither compensated nor released. It said that from 1980 onward, terrorism had
created a very tense situation in Peru that had necessitated successive, government-ordered
states of emergency, all, it said, in accordance with Article 27 of the Convention
and the provisions of its own Constitution. The emergency laws that the government was
compelled to enact became part of the State’s strategy for combating terrorism.
57. On April 26
and May 10, 1999, the State sent information on the alleged victims’ prison
situation and visits.
58. On May 19,
1999, the State sent a copy of a December 1872 ruling of the United States
Supreme Court on the subject of aliens convicted of crimes.
V
59. Article 43 of the Court’s Rules of Procedure
stipulates the following:
Items
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.
60. The Court has held previously that the proceedings
conducted before the Court are not subject to the same formalities required
in domestic courts. Its consistent
case law has been that its criteria for admitting items into evidence are
flexible and the addition of certain elements to the evidence must take particular
account of the circumstances of the case in question and the limitations necessitated
by the need to protect the principles of legal certainty and equality of arms.
61. As for the formalities required in both the
application and the reply as regards the tendering of evidence, the Court
has held that
the procedural
system is a means of attaining justice and … 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.[3]
62. In addition to direct evidence, either in the form of testimony,
opinions of experts or treatises, international tribunals and domestic courts
may base judgments on circumstantial evidence, clues and presumptions, provided
solid conclusions as to the facts can be inferred therefrom. The Court has ruled that:
In the
exercise of its juridical functions and when ascertaining and weighing the
evidence necessary to decide the cases before it, the Court may, in certain
circumstances, make use of both circumstantial evidence and indications or
presumptions on which to base its pronouncements when they lead to consistent
conclusions as regards the facts of the case …[4]
63. The Court will now address the evidentiary aspects
of the instant case given the law and jurisprudence described herein.
documentary evidence
64. With its application the Commission tendered, inter alia, the following documents as
evidence:
a) the alleged victims’ birth certificates;[5]
b) report of the International Commission
of Jurists on the crimes of terrorism and treason in Peru;[6]
c) legislation in effect for prosecuting
the crimes of treason;[7]
d) final judgment of the alleged victims,
May 3, 1994;[8] and
e) report on the visit to Peruvian prisons
by representatives of the Human Rights Commission of the Chilean Parties of
Democratic Reconciliation.[9]
65. The State objected to the inclusion of the
appendix submitted by the Commission containing the report on the visit that
representatives of the Human Rights Commission of the Chilean Parties of Democratic
Reconciliation made to Peru. The State
argued that it was without merit and invalid, inasmuch the report’s allegations
to the effect that the State had failed to comply with the Vienna Convention
on Consular Relations had never been conveyed to the State via the appropriate
diplomatic channels.
66. The Court is ordering that those documents that were neither disputed
nor challenged and those whose authenticity was never in doubt are admitted
into evidence. As regards the document
listed under paragraph 64.e), to which the State objected, the Court reserves
the right to evaluate it and, if it so decides, admit it into evidence.
As to the allegation concerning the alleged violation of the Vienna
Convention on Consular Relations, the Court finds that by now the allegation
and the information to which the State objected are irrelevant and immaterial,
given the Court’s judgment on the preliminary objections.
67. In its answer to the application, the State
submitted the following instruments, among others, as evidence:
a) decisions in the internal proceedings
against the alleged victims;[10]
and
b) documentation
on terrorism in Peru today. [11]
68. The documents presented and referred to in the
preceding paragraph were neither disputed nor challenged, nor was their authenticity
questioned. Therefore, the Court admits
them and orders that they be added to the evidence.
69. On November 16, 1998, when the prescribed time
limit for submitting evidence had already lapsed, the State submitted the
alleged victims’ immigration records.[12]
70. On April 26 and May 10, 1999, the State presented
documents having to do with the isolation of the alleged victims in their
cells and the visits they had received at the Yanamayo Prison since 1998.[13]
71. On May 19, 1999,
the State submitted a copy of a “ruling by the United States Supreme Court,
December 1872” concerning the allegiance that aliens in that country owe.[14]
72. The documents the State submitted on April 26 and May 10, 1999 (supra
70) contain information concerning supervening events, i.e., events that transpired
subsequent to the reply to the application.
Although the State did not point this out at the time it tendered these
items of evidence, the Court believes that the documents should be admitted
into evidence, pursuant to Article 43 of its Rules of Procedure.
The documents tendered by the State on November 16, 1998 (supra
69) and May 19, 1999 concern events that occurred before the deadline for
tendering evidence expired; inasmuch as the State has not argued force majeure, serious impediment or the
emergence of supervening events, the Court finds that they have been tendered
extemporaneously and consequently will not admit them into evidence.
73. On July 7, 1998, to facilitate adjudication of the case, the
Court asked the State to submit all pertinent parts of the court record for
the proceedings conducted in Peru against the alleged victims. On October 5, 1998, the State sent two volumes
containing the documents in question (supra 41).
74. At the Commission’s request, on November 18,
1998, the President asked the State to submit Repentance Declaration B1A 000087,
which Peru submitted on November 20, 1998.
76. To
facilitate the Court’s adjudication of the case, on February 8 and 10, 1999,
the President requested documents from both the State and the Commission. The following information was requested from
the State:
a) Notes
Nos. 7-5-M/211,7-5-M/019, 7-5-M/082, 7-5-M/144, 7-5-M/207 and 7-5-M/242-A,
of July 12, 1993, January 24, March 28, July 19 and August 23, 1994, respectively,
concerning the declarations of states of emergency and their extensions;
b) Law
24,150 and Decree 749, both of which were mentioned in the supreme decrees
that declared and extended states of emergency in various places in Peru between
January 1, 1993 and June 1, 1994; and
c) Information
and/or laws on the state of emergency declared from September 22 to November
17, 1993, in the department of Lima and the constitutional province of Callao.
The following was requested of the Commission:
a) any information and/or legislation
the Inter-American Commission on Human Rights might have in its possession
concerning the state of emergency declared in the department of Lima and the
constitutional province of Callao between September 22 and November 17, 1993;
and
b) that it inform the Secretariat
in regard to receipt of notes Nos. 7-5-M/211, 7-5-M/019, 7-5-M/082, 7-5-M/144,
7-5-M/207 and 7-5-M/242-A, dated July 12, 1993, January 24, March 28, July
19 and August 23, 1994, at the Executive Secretariat of the Inter-American
Commission on Human Rights. These
notes were referenced in the Peruvian Government’s brief of January 7, 1999,
forwarded to the Commission on January 25 of that year (CDH/11-319/211).
77. On
February 17 and March 10, 1999, the State tendered part of the information
requested.[16]
78. On January 7, 1999, the Director of the OAS
General Secretariat’s Department of International Law, Mr. Jean-Michael Arrighi,
reported that no notification had been received from Peru concerning suspension
of guarantees in the period from January 1, 1993 to June 1, 1994.
On February 16, 1999, the State took issue with the content of that
communication (supra 50).
79. In the instant case, the Court is evaluating documents submitted by the Commission and the State that were neither disputed nor challenged by either party. The document that the State challenged, which the Court had ordered to facilitate adjudication of the case (supra 50), exercising its authority under Article 44 of its Rules of Procedure, is a document issued by a representative of the OAS General Secretariat, which is an appropriate body to speak to the matter about which it was consulted. The Court therefore orders that the document be admitted into evidence in the instant case. [17]
Testimony
80. In its application, the Commission offered the following persons
as witnesses: Héctor Salazar Ardiles, León Carlos Arslanian, Teresa Valdéz
Escobar, María Angélica Mellado Saavedra, Sandra Cecilia Castillo Petruzzi,
Jaime Castillo Navarrete, Juana Ramírez Gonveya, Gloria Cano, Grimaldo Achaui
Loaiza and Gabriel Asencio Mansilla.
81. The State offered no witnesses. In its answer to the application, however, the State challenged
witnesses Teresa Valdéz Escobar, María Angélica Mellado Saavedra, Sandra Cecilia
Castillo Petruzzi, Jaime Castillo Navarrete and Juana Ramírez Gonveya, arguing
that they would be “unable to offer any valid testimony on juridical aspects
of the legal proceedings, as they are neither legal experts nor attorneys”
and are, in fact, relatives of the alleged victims.
Peru also
challenged witnesses Gloria Cano and Grimaldo Achaui on the grounds that “they
are not only the attorneys representing the Chilean citizens, but also members
of private organizations that have various cases pending against Peru with
the Inter-American Commission on Human Rights and other organs of the United Nations.” It argued that any statements they might make “would be patently
biased and partial, because that would serve their immediate interests against
the Peruvian State.”
82. At the public hearing, the State reiterated its objections to
the witnesses presented. It also asserted
that witness Salazar Ardiless was
a “hearsay witness” whose testimony was legally “worthless.”
83. As to the objections to the Commission’s witnesses, the Court reserves the right to evaluate their testimony when it delivers its judgment on the