In the
Cesti Hurtado case,
the Inter-American
Court of Human Rights (hereinafter “the Court”, “the Inter-American Court”
or “the Tribunal”), composed of the following judges(*):
Antônio A. Cançado Trindade, President
Máximo Pacheco Gómez, Vice President
Oliver Jackman, Judge
Alirio Abreu Burelli, Judge
Sergio García Ramírez, Judge and
Carlos Vicente de Roux Rengifo, Judge
also present,
Manuel
E. Ventura Robles, Secretary and
Renzo
Pomi, Deputy Secretary;
pursuant
to Articles 29 and 55 of the Rules of Procedure of the Court (hereinafter
“the Rules of Procedure”), delivers the following judgement in the instant
case.
I
1. On January 9, 1998, invoking the provisions
of Articles 50 and 51 of the American Convention on Human Rights (hereinafter
“the Convention” or “the American Convention”), the Inter-American Commission
on Human Rights (hereinafter “the Commission” or “the Inter-American Commission”)
filed an application with the Court against the Republic of Peru (hereinafter
“the State”, “the Peruvian State” or “Peru”), derived from petition No.
11,730, which the Secretariat of the Commission had received on March 7,
1997.
2. The Commission declared that the purpose
of the application is that the Court should decide whether, in the case
of Gustavo Adolfo Cesti Hurtado, the State violated Articles 5.1, 2 and
3 (Right to Humane Treatment); 7.1, 2, 3 and 6 (Right to Personal Liberty);
8. 1 and 2 (Right to a Fair Trial); 11 (Right to Privacy); 21 (Right to
Property); 25.1 and 25.2.a and c (Right to Judicial Protection); and 51.2,
all the foregoing in relation to Article 1 (Obligation to Respect Rights)
and Article 2 (Domestic Legal Effects) of the Convention.
Although the Court had been requested to pronounce judgement on a
possible violation by the State of Article 17 (Rights of the Family), the
Commission did not refer to this point again nor did it provide any arguments,
consequently the Court did not pronounce judgement in this respect.
3. According to the Commission’s submission, as a result of the
violation of the rights indicated, Gustavo Cesti Hurtado was included in
an action under the military justice system, in the course of which he was
arrested, deprived of his liberty and sentenced, despite the existence of
a final decision in a habeas corpus action ordering that the alleged victim
should be separated from the proceedings under the military justice system
and that his freedom should be respected.
4. Furthermore, the Commission requested that the Court should
a. declare that the State violated Article
51.2 of the Convention, by not respecting the recommendations made in Report
No. 45/97 of October 16, 1997;
b. require Peru to punish
those responsible for the violations against the victim;
c. declare that the State
should execute the decision of the Public Law Chamber of Lima of February
12, 1997, and that it should liberate the alleged victim immediately and
unconditionally; and
d. declare the nullity
and the lack of legal effects of the proceeding against the alleged victim
under the Peruvian military justice system, “thus annulling the judgement
and all the interlocutory decisions that
limit [his] personal and property rights”.
5. Lastly, the Commission requested
[t]hat
the Peruvian State should remedy and pay compensation to the victim for
the time that he has been unlawfully detained and for the damage caused
to his personal honor by treating him as a prisoner, for embargoing his
assets, for the remuneration that he has not perceived by being unable to
exercise his right to work while he was unjustly detained and for the anxiety
caused by being obliged to receive medical treatment that he had not chosen
[and that]
the Peruvian
State should be condemned to pay the costs of this action.
II
6. On March 7, 1997, the Secretariat of the Commission received
a complaint made by Carmen Judith Cardó Guarderas in favor of her husband,
Gustavo Adolfo Cesti Hurtado. On
March 10, 1997, the Commission informed the State of the complaint and requested
it to present the corresponding information within 90 days.
7. On April 25, 1997, as a precautionary measure, the Commission
requested Peru to report whether the decision issued in the petition for
a writ of habeas corpus filed by Gustavo Adolfo Cesti Hurtado had been complied
with “in all its parts” and, if so, what measures would be adopted in this
respect. Furthermore, it requested
the State to submit information on the medical attention that Gustavo Adolfo
Cesti Hurtado had received.
8. On July 9, 1997, the State presented “consolidated information”
on the instant case, which, according to the Commission, contained “a summary
of the answers presented in previous communications”.
9. On September 12, 1997, the Commission made itself available
to the parties to seek a friendly settlement and requested them to respond
within 15 days. The State did not
reply to this proposal.
10. On October 16, 1997, during its 97th session, the
Commission approved Report No. 45/97, which was transmitted to the State
on October 30 that year. In this
Report, the Commission concluded that
1. [t]he Peruvian State is responsible for
violating the right to personal freedom of Gustavo Adolfo Cesti Hurtado
who is detained in the military prison of Simón Bolívar barracks in Lima;
this right is protected by Article 7.1 of the American Convention[;]
2. [t]he Peruvian State is responsible for
violating the right to due process of Gustavo Adolfo Cesti Hurtado, by submitting
him to a tribunal that was not competent to decide on his rights and by
depriving him of his personal freedom; these rights are embodied in Articles
8.1, and 7.6 of the Convention, respectively [;]
3. [t]he Peruvian State is responsible for
violating the right to privacy of Gustavo Adolfo Cesti Hurtado, by resolving
that he was guilty of committing a crime as the result of an illegal process,
right which is embodied in Article 11 of the Convention[;]
4. [t]he Peruvian State is responsible for
the failure to comply with the content of the habeas corpus decision issued
by the Public Law Chamber of Lima in favor of Gustavo Adolfo Cesti Hurtado,
in an unappealable and final instance, thus violating his right that the
decisions in his favor of the simple and prompt recourses to which he has
a right, as established in Article 25.1 and 25.2.a and 25.2.c of the American
Convention on Human Rights, should be executed [;]
5. [t]he Peruvian State is responsible for
violating the right embodied in Article 21 of the Convention, against Gustavo
Adolfo Cesti Hurtado[; and that]
6. [t]he Peruvian State has not allowed Gustavo
Adolfo Cesti Hurtado to receive appropriate medical treatment, which is
incompatible with Article 5 of the Convention.
Furthermore, in the aforementioned
Report, the Commission made the following recommendations to the State:
1. [that it should execute] immediately the
habeas corpus decision issued by the Public Law Chamber of Lima on February
12, 1997, in favor of Gustavo Adolfo Cesti Hurtado and, consequently, that
[it should order] his liberty, leave without effect the proceeding initiated
against Gustavo Adolfo Cesti Hurtado under the military justice system and
the conclusions reached by this proceeding [; and]
2. [that it should compensate] Gustavo Adolfo
Cesti Hurtado for the consequences of the wrongful detention, the irregular
proceeding and the questioning of his honor to which he was submitted.
The Commission granted Peru a
period of one month to comply with these recommendations.
11. On November 25, 1997, the State rejected the Report of the Commission
and requested that the case should be definitively filed.
12. On December 22, 1997, the Commission decided to submit the case to
the Court.
III
13. The Commission presented the application to the Court on January
9, 1998. In it, it appointed Oscar
Luján Fappiano as its delegate, and Jorge E. Taiana, Executive Secretary,
and Christina M. Cerna as its lawyers, with Alberto Borea Odría as their
assistant.
14. On January 19, 1998, the Secretariat of the Court (hereinafter
“the Secretariat”) informed the Commission that, following preliminary examination
of the application, the President of the Court (hereinafter “the President”)
had decided that it was not possible to proceed to notify the State since
some of the documents that appeared on the list of evidence had not been
submitted to the Court. The President granted the Commission a period of
20 days to correct this defect, pursuant to the provisions of Article 34
of the Rules of Procedure. On January
21, 1998, the Commission complied with the requirement of the President.
15. The State was notified of the application on January 22, 1998.
At this time, the annexes to the application were forwarded to the
State, with the sole exception of the two videotapes, corresponding to annexes
“B 51” and “B 54”, which were forwarded on February 11 that year.
16. Pursuant to Article 35.1.e of the Rules of Procedure, the application
was notified to the alleged victim in the instant case.
17. On February 20, 1998, Peru informed the Court that it had appointed
David Pezúa Vivanco as ad hoc Judge;
he subsequently resigned from this office (infra
24).
18. On March 20, 1998, the State appointed Jorge Hawie Soret as its
agent in the instant case and submitted the following preliminary objections:
(1) the remedies under domestic
jurisdiction had not been exhausted when the [Commission] agreed to process
the petition of the alleged victim; and inappropriate legal action [;]
(2) incompetence and jurisdiction[;]
(3) res judicata[; and]
(4) lack of a previous claim before
the Commission.
Furthermore, the State requested
the Court to rule that the application should be filed.
19. On April 20, 1998, the Commission submitted its observations,
requesting that the Court should reject the preliminary objections that
had been presented “in all of their parts”.
20. On May 29, 1998, the State submitted its reply to the application
in which it refuted the claims of the Commission. Peru declared that the decision issued in the
petition for a writ of habeas corpus, referred to in the application submitted
by the Commission, was illegal, non-executable and null ipso jure, since the alleged victim was
detained and sentenced as the result of an order issued by a competent jurisdictional
body. With regard to the other allegations
of the Commission, the State declared that it had never violated the personal
integrity of the alleged victim, who enjoyed better conditions that other
prisoners in Peru, and that Gustavo Cesti Hurtado was judged under military
jurisdiction because the crimes for which he was found guilty were planned
and executed in military installations, together with other officers on
active service, resulting in the misappropriation of monies belonging to
the military establishment. Moreover,
the State declared that, in the case of Gustavo Cesti Hurtado, the right
to a fair trial and due process, and the rights to privacy and to property
had been respected. Lastly, the
State declared that, in the judgements pronounced in cases against Peru,
the Court had attacked the sovereignty of the country and that the application
presented by the Commission in this case rendered its system of laws invalid
and attempted to destabilize its constitutional institutions.
21. The public hearing on preliminary objections was held at the
seat of the Court on November 24, 1998.
During the hearing, the expert witnesses, Samuel Abad Yupanqui and
Valentín Paniagua Corazao, gave their reports (infra 62). Moreover, subsequent
to the hearing, the Commission presented seven documents on the merits of
the case (infra 54).
22. On November 27, 1998, the State presented copies of 29 documents
on the merits of the case (infra 46).
23. On December 9, 1998, the Court requested
the State to submit an authenticated copy of a judgement of the Peruvian
Constitutional Court on June 19, 1998, regarding a petition for habeas corpus
presented by Carlos Alfredo Villalba Zapata, and also of a report containing
“a detailed description of all the measures taken by the State to comply
with the provisions of the said judgement and their effects in the domestic
sphere”. The Court requested these
documents because it considered that they would be useful for the examination
of the instant case. On January
11, 1999, Peru presented an authenticated copy of the judgement, but did
not present the respective report. On
January 18, 1999, the State forwarded some observations on the aforementioned
judgement to the Court.
24. On December 10, 1998, David Pezúa Vivanco presented his resignation
as ad hoc Judge in this case to
the Court, because it was incompatible with his position as Executive Secretary
of the Executive Committee of the Peruvian Judiciary. In this regard, in a plenary decision on January
19, 1999, the Court resolved
1. [t]o take note of the resignation of David
Pezúa Vivanco from his appointment as ad
hoc Judge in the instant case [; and]
2. [t]o continue hearing the case with its
actual composition.
25. The same day, the Commission submitted its observations on the
29 documents that the State had presented on November 27, 1998, to the Court
(supra 22).
26. On January 27, 1999, the State requested the Court to “rule that
the Government of Peru should proceed to appoint a new ad-hoc Judge”. On January 29, 1999, the Court informed Peru that it should make
this appointment within the following 30 days.
On March 3, 1999, the State appointed José Alberto Bustamante Belaúnde
as ad hoc Judge.
27. On March 22, 1999, the President invited the State and the Commission
to a public hearing to be held at the seat of the Court on May 24, 1999,
in order to hear the declarations of Javier Velásquez Quesquén and Heriberto
Benítez Rivas, witnesses presented by the Inter-American Commission, and
the reports of Percy Catacora Santisteban and Jorge Chávez Lobatón, experts
presented by the State. Moreover,
the President instructed the Secretariat to inform the parties that they
could present their final oral summing up on the merits of the case immediately
after this evidence had been heard.
28. On April 12, 1999, the witness Javier Velásquez Quesquén requested
the Court to excuse him from appearing, since his parliamentary work prevented
him from leaving Peru and on April 19, 1999, the Commission requested that
José Carlos Paredes Rojas should be called to replace him. On April 23, 1999, the President excused Javier
Velásquez Quesquén and summoned José Carlos Paredes Rojas to give testimony
on the facts and causes of the detention of Gustavo Adolfo Cesti Hurtado,
and on the facts relating to non-compliance with habeas corpus.
29. On May 19, 1999, the witness, José Carlos Paredes Rojas, requested
the Court to excuse him from appearing, because his work as a journalist
in Peru prevented him from attending the public hearing on the merits of
the case.
30. On May 24, 1999, the Court held a public hearing to receive the
declarations of the witnesses and the expert presented by the parties.
There appear before the Court
for the State of Peru:
Jorge Hawie Soret, Agent;
Walter Palomino Cabezas, Advisor;
Sergio Tapia Tapia, Advisor; and
Raúl Talledo, Advisor.
for the Inter-American Commission:
Oscar Luján Fappiano, Delegate;
Christina Cerna, Lawyer; and
Alberto Borea Odría, Advisor.
witness presented by the Inter-American
Commission:
Heriberto
Benítez Rivas;
witness presented by the State:
Percy
Catacora Santisteban;
and as an expert presented by
the State:
Jorge
Chávez Lobatón.
31. Percy Catacora Santisteban and Jorge Chávez Lobatón were presented
by the Peruvian State to declare as experts. However, on May 24, 1999, the Court adopted
a decision resolving that Percy Catacora Santisteban would declare as a
witness.
32. On July 13, 1999, within the established period, the Commission
submitted its written summing up.
33. On September 9, 1999, the State submitted its summing up. As this presentation was manifestly time-barred
(the time limit expired on July 11, 1999), the Court abstained from considering
it.
34. On August 12, 1999, the ad
hoc Judge for the case, José Alberto Bustamante Belaúnde, withdrew from
this appointment “due to the irreversible incompatibility that [he found] between the normal, fluid and irrecusable
exercise of this appointment and [his] publicly known position with regard
to the decision of the Peruvian Government to withdraw from the contentious
jurisdiction of the Court” [1]
[2].
IV
35. On July 17, 1997, prior to presenting the application, the Inter-American
Commission submitted to the Court a request for the adoption of provisional
measures in the instant case, invoking Article 63.2 of the Convention and
Article 25 of the Rules of Procedure. In this document, the Commission requests the Court that
it [should]
order the Illustrious Government of Peru to comply with the judgement of
the Public Law Chamber of the Superior Court of Justice of Lima in the habeas
corpus action, without prejudice to the investigation being continued before
the competent judicial organ in order to determine any criminal responsibility
on the part of Gustavo Cesti Hurtado.
36. In a decision issued on July 29, 1997, the
President requested the State to adopt “without delay, any measures [that
may be] necessary to ensure the physical, mental and moral safety of Gustavo
Cesti Hurtado, so that any provisional measures that the Court might take,
if appropriate, [may] have the relevant effects”.
37. On September 11, 1997, the Court ratified the resolution of its
President of July 29, 1997, based on the following consideration, among
others
[t]hat the facts and circumstances raised by the Commission
imply that there is a direct link between the Commission’s request for Gustavo
Cesti Hurtado’s release, in compliance with the order of habeas corpus issued
by the Public Law Chamber of the Superior Court of Lima, and the substance
of the merits of the case laid before the Inter-American Commission, and
that it is for the Commission [to decide] at this stage. To accept the application of the Commission
as it is submitted, would mean that the Court could advance criteria on
the merits of a case that is not yet before it.
Furthermore, the Court requested
the State to maintain the measures necessary to ensure the physical, mental
and moral safety of Gustavo Cesti Hurtado.
38. On January 9, 1998, the same day that the application in the
instant case was submitted to the Court (supra
1 and 13), the Commission presented a second request to the Court for
the adoption of provisional measures with regard to Gustavo Cesti Hurtado.
39. On January 21, 1998, the Court issued a decision in which it
declared that, in order to decide on the applications of the Commission,
it would require additional information to that which it then possessed. Moreover, it requested the State to maintain
the provisional measures to ensure the personal safety of Gustavo Cesti
Hurtado.
40. At the date of the deliberations on this judgement, the State
had presented nine reports on the provisional measures adopted and the Commission
had presented its observations on eight of these.
41. The Court is competent to hear the instant case. 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.
VI
Documentary evidence
42.
In annex to the written complaint, the Commission presented
copies of documents relating to:
a. the identity and activities
of Gustavo Cesti Hurtado[3];
b. the criminal
complaint against Gustavo Cesti Hurtado[4];
c. the arrest
and detention of Gustavo Cesti Hurtado[5];
d. the proceeding to which Gustavo
Cesti Hurtado was submitted before the military court[6];
e. the medical treatment and
health of Gustavo Cesti Hurtado[7];
f. the judgement pronounced
by the military court against Gustavo Cesti Hurtado[8];
g. the petition for habeas corpus
filed by Gustavo Cesti Hurtado before the Public Law Chamber of the Supreme
Court of Justice of Lima[9];
h. the effects
of the decision in the habeas corpus action filed by Gustavo Cesti Hurtado[10];
i. the out-of-court steps taken
by Gustavo Cesti Hurtado, members of his family and other persons[11];
j. the complaint against the
members of the Supreme Council of Military Justice, made by the Thirtieth Criminal Court of Lima[12];
k. the complaint against Miguel
Aljovín Swayne, Prosecutor General, made by the Supreme Council of Military
Justice[13];
l. the complaint against the
judges, Sergio Salas Villalobos, Juan Castillo Vásquez and Elizabeth Roxana
MacRae Thays, made by the Prosecutor General of the Supreme Council of Military
Justice[14];
m. general information on the
Peruvian Judiciary[15];
n. Peruvian legislation of relevance
in the instant case[16];
o. general information on the
Peruvian military justice system[17];
and
p. the proceedings of the case
before the Inter-American Commission[18].
43. The documents presented by the Commission were not disputed or questioned,
nor was their authenticity put in doubt, therefore the Court accepts them
as valid.
44. In contesting the application, Peru presented copies of three
documents on:
a. the complaint against the
members of the Supreme Council of Military Justice[19];
and
b. the complaint against the
members of the Pubic Law Chamber of the Supreme Court of Justice of Lima[20].
45. The documents listed, presented by the State, were not contested nor
objected to, neither was their authenticity put in doubt, so that the Court
accepts them as valid.
46. On November 27, 1998, the State presented copies of 29 documents,
which, it said, were related to matters of competence in the instant case[21].
47. Article 43 of the Rules of Procedure establishes 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
and, where appropriate, in the communication setting out the preliminary
objections and in the answer 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.
This provision confers an exceptional
character on the possibility of admitting items of evidence at times other
than those indicated. This exception
would be applicable only should the applicant allege force majeure, serious impediment or supervening
events.
48. During the public hearing on preliminary objections, the State
declared that it would submit to the Court copies of “repeated jurisprudence”
on the subject matter of the instant case.
However, neither on that occasion, nor in its presentation brief
of November 17, 1998 (supra 46),
did the State make any statement on the reasons for the extemporaneous presentation
of these items of evidence. Therefore,
the Court will consider whether the circumstances that determined the late
presentation can be considered exceptional in order to justify their admission
and whether the evidence offered is related to the subject matter of the
application in this case, based on the available elements.
49. The Court examined the 29 documents presented by the State.
Of these, 28 correspond to judicial decisions, while the twenty-ninth
is a copy of the Peruvian Code of Military Justice.
50. With regard to the judicial decisions, the Court has verified
that, without exception, they were issued before the date on which Peru
presented its reply to the application.
Furthermore, of these documents, the only ones that are relevant
to the subject matter of this case are the first and the fourth[22]. However, the Court has verified that the Commission
had added copies of these documents to the file as annexes to its application
(supra 42 and 25), and they have already been added to the
pool of evidence in the case;
consequently, it is unnecessary to incorporate them for a second time.
51. The other documents presented by the State do not refer to facts
that will be examined by the Court in the Cesti Hurtado case, according
to the text of the corresponding application.
Indeed, although the State declared that they are “photocopies of
contradictory decisions of the Public Law Chamber, signed by the same judges
[who declared the petition for a writ of habeas corpus filed by Gustavo
Cesti Hurtado with merit]”, the Court has verified that, with the exception
of the first and fourth document that have already been mentioned, twelve
of the documents are not judicial decisions.
The remaining fourteen documents are copies of judicial decisions,
none of which were issued by the Public Law Chamber.
52. In this respect, the exceptional circumstances
that would justify the late presentation of this documentation have not
been demonstrated, so that it would be inappropriate to admit it.
53. The remaining document, a copy of the Peruvian Code of Military Justice
[23]
is considered useful to decide the instant case; therefore,
it is added to the pool of evidence, pursuant to the provisions of Article
44.1 of the Rules of Procedure.
54. On November 24, 1998, after the public hearing on preliminary
objections, the Inter-American Commission presented copies of seven documents[24].
55. The Commission presented the first six documents because they
had been offered to the Court by the expert, Samuel Abad Yupanqui, when
he gave his expert report (infra
62). The Court has verified that these six cases
are volumes or articles published subsequent to the application, which are
of interest for examining the declarations of the expert. Accordingly, it is pertinent to add them to
the pool of evidence in the case.
56. The seventh document mentioned is simply a copy of a judgement.
The Court subsequently requested the State to present an authenticated
copy of the same document (supra 23), and Peru complied with this
request (infra 57). It is therefore unnecessary to add the copy
presented by the Commission to the pool of evidence.
57. On January 11, 1999, at the request of the Court, the State presented
an authenticated copy of the judgement pronounced by the Constitutional
Court, on June 19, 1998, in the petition for habeas corpus filed by Carlos
Alfredo Villalba Zapata (supra 23)[25].
58. The Commission did not contest the document presented by the
State, nor was its authenticity doubted, so that it is appropriate to rule
that it should be incorporated into the pool of evidence in the case.
59. The declarations of the witnesses, Benítez Rivas and Catacora
Santisteban, were not contested during the proceedings and, accordingly,
the Court added them to the pool of evidence in the case. In continuation, the Court summarizes these declarations.
a. Testimony
of Heriberto Benítez Rivas, Chairman of the Human Rights Committee of the
Bar Association of Lima
Heriberto
Benítez is a lawyer by profession and Chairman of the Human Rights Committee
of the Bar Association of Lima. As is the case of almost all the Bar Associations
in Peru, the organization to which he belongs is familiar with the Cesti
Hurtado case. The Committee he chairs
issued an opinion in which it asserted that, as habeas corpus had not been
respected, Gustavo Cesti Hurtado was arbitrarily detained. This opinion was elevated to the Board of Directors
of the Bar Association of Lima, the highest authority of the Association,
which approved it unanimously, so that it constituted an institutional opinion,
which all lawyers were obliged to accept.
The witness declared that the Executive Commission on Human Rights of
the Bar Association of Lima had communicated with the Supreme Court of Justice
of Peru, with the Office of the Public Defender and with human rights organizations
concerned by the situation of Gustavo Cesti Hurtado. It has also addressed
the Supreme Council of Military Justice, requesting it to comply with the
habeas corpus, but it has never obtained an answer.
It had
also resorted to the following international organizations seeking support
to ensure compliance with the writ of habeas corpus: United Nations agencies;
Amnesty International; the International Union of Lawyers; the European
Parliament; the Human Rights Committee of the Mexican Chamber of Deputies;
other Bar Associations, such as those of Guatemala and Puerto Rico; and
organizations such as CODEHUCA, Americas Watch, Washington Law, Washington
Office, etc.
The witness
declared that the Bar Association had found it “extremely difficult…, to
communicate personally [with Gustavo Cesti Hurtado] in order to get a real
feeling of what he has been suffering”.
He mentioned that he had not been allowed to enter the Simón Bolívar
Barracks, where Gustavo Cesti Hurtado was imprisoned. The witness was only able to speak with him for 10 to 15 minutes
on one occasion, after which it was not possible to speak with him again.
With regard to habeas corpus, the witness declared as
follows:
a decision
already exists that meets all legal requirements, pronounced by a judge
with general jurisdiction, it has even been published in the official gazette
‘El Peruano’ but, to date, there has been resistance to comply with
this constitutional action of habeas corpus and I insist that this situation
is of considerable concern to Peruvian lawyers. This judgement should have been complied with
already, and this non-compliance has given rise, not only to the responsibility
of the judges who applied resistance, but it has even signified that a totally
irregular process has subsequently been initiated, which violates constitutional
and procedural guarantees and which has caused a person to be deprived of
his liberty up until now.
b. Testimony
of Percy Catacora Santisteban, Major General in the Peruvian Air Force
Percy
Catacora Santisteban is a lawyer and a Major General in the Peruvian Air
Force.
According
to the witness, the concept of the independence of military justice consists
in a series of “principles and rights of the jurisdictional function [such
as] the unity and exclusivity of the jurisdictional function. There is not, nor can there be, any independent jurisdiction, except
for the military and arbitrational jurisdiction”. Military justice is completely independent,
so that interference from other organs, be they judicial or administrative,
is not allowed. Since the military
justice system is independent, the officials who work in it are also autonomous
and independent. Article 192 of
the Code of Military Justice sanctions whosoever attempts or aspires to
direct or determine the conduct of a military proceeding or of a military
judge.
Percy Catacora defined the autonomy of military justice as follows: “the
judicial official does not depend on other outside higher, political, administrative
instances… there can be no… interference because, to the contrary, if the
authorities do not respect the autonomy of jurisdictional institutions,
the Nation’s legal system is harmed”. The habeas corpus granting Gustavo
Cesti Hurtado his liberty and lifting his impediment to travel abroad implied
manifest interference in the autonomy and independence of the military justice
system.
With regard
to res judicata, he stated that
for this figure to exist in a military procedure, all that is required is
a jurisdictional decision by military judges, without the participation
of the judge of general jurisdiction through the consultation mechanism. Under the military justice system, final judgements
are not consulted with any outside body and even less with the ordinary
jurisdiction. They become enforceable when they are appealed or reviewed
before the Supreme Council of Military Justice. In the military justice
system, a final judgement may be annulled by the court itself, but only
in specific circumstances and with special requirements, through an extraordinary
appeal for review of final judgement.
The witness stated that he was familiar with the Cesti Hurtado case, as
he had been involved in it as a member of the Court-Martial. In his opinion, the habeas corpus violated
the principles of independence and autonomy of the military justice system.
Basically, this recourse related to a jurisdictional dispute and
the Supreme Court of the Republic was the technical organ that settled jurisdictional
conflicts. In this respect, he mentioned that doctor Elcira
Vásquez, who was in charge of the Supervisory Office for Judges of the Supreme
Court, penalized members because they had exceeded their responsibilities.
Furthermore, she mentioned that “a petition for habeas corpus is
not in order when a preliminary investigation has been opened against the
petitioner”, that is, when a judicial action is under way.
The witness declared that the officials of the military justice system
could not carry out the order in the habeas corpus decision since, if they
had done so, they would have suffered a series of consequences, such as
being sanctioned or even indicted under the military justice system. In these circumstances, Gustavo Cesti Hurtado
had various simple and prompt recourses, such as: if the defendant did not
acknowledge his guilt and denied his legal relationship with the facts,
he could offer a sufficient provisional guarantee to obtain release on bail;
he could have filed a plea as to the jurisdiction of the court before the
judge or tribunal that was considered incompetent and, lastly, he could
have taken steps in the ordinary jurisdiction to initiate a jurisdictional
dispute by requesting that proceedings should be opened and filing a jurisdictional
dispute. Gustavo Cesti Hurtado could not request release
on bail because he was subject to an embargo, but he could have taken advantage
of the guarantees mentioned above. If
he had obtained release on bail he could have contested the jurisdiction.
The witness
stated that Peruvian military justice applies the Constitution, the laws
of Peru, international treaties, and the Geneva Convention and its protocols.
Furthermore, it applies the United Nations International Covenant
on Civil and Political Rights, whenever it benefits the administration of
military justice. Military justice is subordinate to the constitutional order to defend
sovereignty, territory and territorial integrity, and to ensure discipline.
Military
judges are nominated by the superior officers and are appointed by Supreme
Decision; this means that they are appointed by the President of the Republic,
who is the Commander in Chief of the Armed Forces.
The witness declared that Gustavo Cesti Hurtado was a retired member of the armed forces, which is the situation of an officer who is not on active duty or in reserve, but definitively separated from the service. He mentioned that he is aware of Article 12 of the Law on Military Status, which establishes that only officers on active duty or in reserve are subject to the Code of Military Justice, and that this law does not consider that retired officers fall within this jurisdiction. However, he stated that this law is clearly administrative in nature, basing his reply on the following arguments: “both officers on active duty and officers in reserve are subject to the Code of Military Justice and to the Investigation Councils, and the Investigation Councils are administrative bodies that prosecute officers for misdemeanors or crimes and, if the fact has been proved, they make a recommendation