Constitutional Court Case, Judgment of January 31, 2001, Inter-Am Ct. H.R. (Ser. C) No. 71 (2001).


 

 

In the Constitutional Court case,

 

The Inter-American Court of Human Rights (hereinafter “the Court” or “the Inter-American Court”) composed of the following judges:

 

Antônio A. Cançado Trindade, President

Máximo Pacheco Gómez, Vice President

Hernán Salgado Pesantes, Judge

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 judgment in the instant case. 

 

 

I

Introduction of the case

 

1.         On July 2, 1999, in application of 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 before the Court against the Republic of Peru (hereinafter “the State” or “Peru”), arising from petition number 11,760, which the Secretariat of the Commission had received on June 2, 1997. 

 

2.         The Commission stated that the purpose of the application was for the Court to decide whether the State had violated Articles 8(1) and 8(2)(b), c), d) and f) (Right to a Fair Trial), 23(1)(c) (Right to Participate in Government) and 25(1) (Right to Judicial Protection) of the American Convention, in relation to Articles 1(1) (Obligation to Respect Rights) and 2 (Domestic Legal Effects) of the Convention, with regard to Manuel Aguirre Roca, Guillermo Rey Terry and Delia Revoredo Marsano, justices of the Constitutional Court of Peru.  It also requested the Court to require Peru to “make integral and adequate reparation” to the said justices and reinstate them in the exercise of their functions, and arrange for the annulment of the resolutions that dismissed them: Nos. 002-97-CR, 003-97-CR and 004-97-CR of May 28, 1997.  As part of the reparation, the Commission requested that the alleged victims should be compensated for all the salary-related income that they failed to receive from the time of their dismissal until the date of their effective reinstatement, and also receive a payment for moral damages.  Lastly, the Commission requested that Peru should be condemned to pay the “reasonable” expenses and costs incurred by the alleged victims and their lawyers when processing the case in the Peruvian jurisdiction and before the Commission and the Inter-American Court.

 

II

Competence of the Court

 

3.         The Court is competent to hear this case.  Peru has been a State Party to the Convention since July 28, 1978, and recognized the contentious jurisdiction of the Court on January 21, 1981.

 

III

Proceeding before the Commission

 

4.         On May 15, 1997, the Inter-American Commission received a petition signed by 27 deputies of the Congress of Peru, concerning the dismissal of the justices of the Constitutional Court referred to above.  On July 16, 1997, the Commission began processing this petition and forwarded the pertinent parts to the State requesting it to provide any relevant information within 90 days.

 

5.         On October 16, 1997, Peru submitted a report prepared by the National Human Rights Council (Official letter No. 1858-97-JUS/CNDH-SE), in which it requested that the Commission declare the petition inadmissible “inasmuch as the petitioners ha[d] not exhausted domestic remedies.”  On October 21, 1997, the Commission forwarded this report to the petitioners, requesting that they present any comments within 30 days.

 

6.         On January 28, 1998, the Commission convened a public audience for February 25, 1998, during its 98th regular session, in order to hear the parties concerning the admissibility of the petition.

 

7.         On April 30, 1998, the petitioners requested that the Commission find the petition admissible.  That same day, the Commission informed the State of this request.

 

8.         On May 5, 1998, during the 99th special session, the Commission adopted the Admissibility Report on petition No. 35/98, in which it concluded “that since the exceptions provided for in Article 46(2)(c) of the Convention applied in the instant case, it was not necessary for domestic remedies to be exhausted for the Commission to be competent to take up the petition.”   In a note of June 29, 1998, the State replied, stating that, as the Admissibility Report had been issued, “it was unnecessary to make any comment on the allegations made prior to the admissibility decision” and announced that it would submit a report concerning the admissibility of the petition in this case at a later date.  This information was forwarded to the petitioners. 

 

9.         On July 29, 1998, the Commission made itself available to the parties in order to reach a friendly settlement, in accordance with Article 48(1)(f) of the American Convention.  On August 14, 1998, the State responded negatively to the possibility of seeking a friendly settlement, because it deemed that this procedure was not applicable in the instant case.  Finally, in a note of August 17, 1998, the petitioners indicated that the only possible solutions was the reinstatement of the justices whose dismissal was unconstitutional.

 

10.       On December 9, 1998, during its 101st regular session, the Commission adopted Report No. 58/98, which was forwarded to the State on December 14, 1998.  In this report, the Commission concluded that

 

[...] by dismissing Justices Manuel Aguirre Roca, Guillermo Rey Terry and Delia Revoredo Marsano de Mur from the bench of the Constitutional Court, for alleged procedural irregularities in the clarification of the ruling that found that Law No. 26,657 was non-applicable, [...] the State of Peru violated the essential guarantee of the Constitutional Court’s independence and autonomy (Article 25 of the American Convention); the right to a fair trial (Article 8(1) of the Convention) and the guarantee of security in a position in public service (Article 23(c) of the Convention). 

 

The Commission also made the following recommendations to the State:

 

[t]hat [...] it make appropriate reparations to the Constitutional Court [j]ustices, Manuel Aguirre Roca, Guillermo Rey Terry and Delia Revoredo Marsano de Mur, by restoring them to their seats on the bench of the Constitutional Court and by compensating them for all income not received since the date of their unlawful removal from the bench.

 

The Commission granted the State a period of two months to adopt the corresponding measures to comply with these recommendations. 

 

11.       In a note of December 15, 1998, the State expressed its concern that the media had published information on the adoption of the report pursuant to Article 50 of the Convention, because the matter should have been maintained “in the strictest confidence.”

 

12.       On February 1, 1999, the petitioners requested the Commission to submit the case to the Inter-American Court.

 

13.       On February 12, 1999, Peru requested an extension of the 60-day period so that it might continue studying the recommendations made in the Commission’s report.  On February 26, 1999, the Commission granted the requested extension and suspended the application of the time periods established in Article 51(1) of the Convention.  On April 14, 1999, the State requested a further extension, to which the Commission also agreed.  During the time granted by the Commission, the State and the petitioners held meetings designed to reach a friendly settlement, with the Commission’s knowledge and in its presence; however, this was not achieved.

 

14.       On June 17, 1999, after formally notifying the parties, the Commission decided to submit the case to the Court under Article 51 of the Convention.

 

 

IV

Proceeding before the Court

 

 

15.       The application was lodged with the Court on July 2, 1999 (supra 2). The Commission appointed Hélio Bicudo and Carlos Ayala Corao as its delegates; Hernando Valencia Villa and Christina Cerna as advisors, and Lourdes Flores Nano, Carlos Chipoco, Manuel Aguirre Roca, Raúl Ferrero Costa, Juan Monroy Gálvez and Valentín Paniagua Corazao as assistants.

 

16.       A preliminary examination of the application found that some annexes were either incomplete or illegible and the names and domiciles of all the petitioners were not included. Consequently, on July 12 and 14, 1999, pursuant to Article 34 of the Court’s Rules of Procedure, the Commission was asked to retransmit them.  On July 15, 16 and 23, 1999, the Commission forwarded part of the requested documentation.

 

17.       In a note of July 12, 1999, the Secretariat of the Court (hereinafter “the Secretariat”) notified the application to the State, and informed it of the periods for answering it, filing preliminary objections and appointing its agents.  It also advised the State that it had the right to appoint an ad hoc Judge.

 

18.       On July 16, 1999, the Peruvian Ambassador to Costa Rica visited the seat of the Court to return the application and the annexes in the instant case.  This official handed the Secretariat a note dated July 15, 1999, signed by the Minister for Foreign Affairs a.i. of Peru, which stated that

 

1. By Legislative Resolution dated July 8, 1999, [...] the Congress of the Republic approved the withdrawal of the recognition of the contentious jurisdiction of the Inter-American Court of Human Rights.

 

2. On July 9, 1999, the Government of the Republic of Peru deposited with the General Secretariat of the Organization of American State (OAS), the instrument wherein it declares that, pursuant to the American Convention on Human Rights, the Republic of Peru is withdrawing the declaration consenting to the optional clause concerning recognition of the contentious jurisdiction of the Inter-American Court of Human Rights[...].

 

3. [...T]he withdrawal of the recognition of the Court’s contentious jurisdiction takes immediate effect as of the date on which the said instrument was deposited with the General Secretariat of the OAS, that is, July 9, 1999, and applies to all cases in which Peru has not answered the application filed with the Court.

 

 

Finally, the State declared in its letter that

 

[...] the notification contained in note CDH-11,760/002, of July 12, 1999, concerns a case in which the Honorable Court is no longer competent to hear the applications filed against the Republic of Peru, under the contentious jurisdiction provided for in the American Convention on Human Rights.

 

On July 19, that year, this letter was forwarded to the Commission and it was asked to submit its comments.

 

19.       On August 27, 1999, the International Human Rights Law Group submitted a brief in the capacity of amicus curiae.  On September 15, 1999, Curtis Francis Doebbler and Alberto Borea Odría submitted briefs in the same capacity.

 

20.       On September 10, 1999, the Commission submitted its comments on the return of the application and its annexes by the State.  In its brief it stated that:

 

            a.           The court asserted jurisdiction to consider the instant case as of July 2, 1999, the date on which the Commission filed the application.  Peru’s purported “withdrawal” of its recognition of the Court’s contentious jurisdiction on July 9, 1999, and its return of the application and its attachments on July 16, 1999, have no effect whatsoever on the Court’s exercise of jurisdiction in the instant case; and

 

            b.           A unilateral action by a State cannot divest an international court of jurisdiction that it has already asserted; the American Convention contains no provision that would make it possible to withdraw recognition of the Court’s contentious jurisdiction, as such a provision would be antithetical to the Convention and have no foundation in law.  Even supposing a State could withdraw its recognition of the Court’s contentious jurisdiction, formal notification would have to be given one year before the withdrawal could take effect, for the sake of legal certainty and continuity.

 

Finally, the Commission petitioned the Court to find that Peru’s return of the application in the Constitutional Court case and its attachments had no legal effects and to continue to exercise jurisdiction over the instant case. 

 

21.       On September 24, 1999, the Court delivered judgment on its competence, and resolved, unanimously:

 

1. To declare that:

 

a. The Inter-American Court of Human Rights is competent to take up the present case;

 

b. The State’s purported withdrawal of the declaration recognizing the contentious jurisdiction of the Inter-American Court of Human Rights is inadmissible.

 

2. To continue to examine and adjudicate the instant case.

 

3. To commission its President, at the appropriate time, to convene the State and the Inter-American Commission on Human Rights to a public hearing on the merits of the case, to be held at the seat of the Inter-American Court of Human Rights.

 

4. To notify Peru and the Inter-American Commission on Human Rights.

 

22.       On September 27 and 29 and October 4, 1999, the State forwarded notes in which it expressed its position with regard to the judgment on competence delivered by the Court.  On September 27, 1999, the First Secretary (Ministro) of Peru’s Embassy in Costa Rica came to the seat of the Court to return the judgment on competence.  He also delivered a note to the Secretariat dated September 29, 1999, which stated:

 

1. The ‘judgments on competence’ delivered by the Court and notified on September 27, 1999, are not established procedurally in any of the instruments in force in the inter-American system for the protection of human rights.

 

2. By Note [... RE (GAB) Nº 6/24 of July 15, 1999,] the State of Peru returned the notifications [in the Constitutional Court case] and informed the Court that it had deposited before the General Secretariat of the Organization of American States (OAS), the instrument wherein it communicated the decision of the Government and Congress to withdraw recognition of the contentious jurisdiction of the Inter-American Court of Human Rights.

 

3. The Court is not competent to make any declaration on the legal validity of the Government of Peru’s decision to withdraw from its contentious jurisdiction.  The withdrawal of the recognition of the contentious jurisdiction of the Court is a freely taken, unilateral decision of the State of Peru that does not allow any interpretation or qualification.

 

4. In the light of the previous arguments and, since the State of Peru is not subject to the contentious jurisdiction of the Court in the cases referred to [in] Note CDH/S-1014, we do not consider this to be a notification, since the State of Peru is not a party to the said proceedings.

 

[...]

 

23.       On August 29 and September 6, 2000, the Secretariat requested the Commission to forward the list of witnesses and experts that it would offer during the public hearing on the merits of the case.  On September 11, 2000, the Commission submitted the list.

 

24.       By an Order of September 13, 2000, the President of the Court (hereinafter “the President”) convened the Inter-American Commission and the State to a public hearing to be held at the seat of the Court on November 22, 2000, in order to receive the statements of the witnesses and the experts offered by the Commission and also the final oral arguments of the parties on the merits of the case.  The same day, the Secretariat sent the Commission the summonses for the witnesses who were convened.  On October 19, 2000, the Commission transmitted three notification records and advised that the records concerning the presence of the four other witnesses “w[ould] be sent as soon as [they had been] received.” On October 20 and 30 and November 1, 2000, the witnesses Díez Canseco Cisneros, Revoredo Marsano, Bernales Ballesteros and Díaz Valverde, respectively confirmed that they would attend the public hearing.

 

25.       On November 22, 2000, the Court held the public hearing on merits and received the statements of the witness and the experts proposed by the Commission on the facts that are the subject of the application.  The Court also heard the Commission’s final oral arguments on merits.

 

There appeared before the Court:

 

For the Inter-American Commission on Human Rights:

 

Hélio Bicudo, delegate

Carlos Ayala Corao, delegate

Christina Cerna, adviser

Lourdes Flores Nano, adviser, and

Manuel Aguirre Roca, assistant;

 

witness proposed by the Commission:

 

            Delia Revoredo Marsano;

 

experts proposed by the Commission:

 

            Jorge Avendaño Valdéz, and

            Mario Pasco Cosmópolis.

 

The following witnesses and experts did not appear:

 

Ricardo Nugent López Chaves

Luis Guillermo Díaz Valverde

Javier Díez Canseco Cisneros

Fernando Olivera Vega

Guillermo Rey Terry, and

Enrique Bernales Ballesteros.

 

Although the State had been convened it did not appear (infra 58-62).  At the beginning of the public hearing, the President read Article 27 of the Court’s Rules of Procedure, which authorize the Court to proceed with the case, on its own motion, when a party fails to appear (infra  59).

 

26.       During the public hearing held on November 22, 2000, the Commission submitted a certified copy of the congressional Legislative Resolution No. 007-2000-CR, date November 17, 2000, signed by Valentín Paniagua Corazao, President of the Congress of the Republic, and several newspaper clippings (infra 38).

 

27.       On November 29, 2000, on the instructions of the Court, the Secretariat requested the Commission to present evidence and arguments on the expenses and costs incurred during the domestic proceeding and before the inter-American system.  On December 4 and 12, 2000, the Commission requested extensions, which were granted by the President, until January 8, 2001.  The Commission submitted the requested document within the agreed period (infra 41).  It was forwarded to the State, which was granted until January 24, 2001, to submit it comments.  At the time this judgment was delivered, the State had not forwarded its arguments in this respect.

 

28.       On December 8, 2000, the President granted until January 5, 2001, for the submission of final arguments.  This period was extended until January 10, 2001.  On January 10, 2001, the Commission submitted its final arguments.  At the time this judgment was delivered, the State has not forwarded its arguments.

 

29.       On December 8, 2000, the Secretariat requested the Commission to forward the original file that it had prepared.  On January 2, 2001, the Commission indicated that, according to article 73 of its Regulations, “only certified copies of the items in the file that [are] consider[ed] pertinent” may be sent.  On January 12, 2001, on the instructions of the President, the Secretariat requested the Commission to forward some of the document from the said file and indicated that the Court would be informed of its letter of January 2, 2001, for the pertinent effects.  On January 19 and 29, 2001, the Commission forwarded some of the requested documentation.

 

30.       On December 12, 2000, the Commission sent a brief containing the technical opinion of Enrique Bernales Ballesteros. The following day, the Secretariat forwarded this document to the State so that it could submit it comments by January 8, 2001, at the latest.  At the time this judgment was delivered, the State had not forwarded any document.

 

31.       On January 22, 2001, the Embassy of Peru in Costa Rica forwarded a copy of Legislative Resolution No. 27,401 of January 18, 2001, and the single clause states:

 

Legislative Resolution No. 27152 is revoked and the Executive is authorized to execute all actions necessary to annul the results that may have arisen from this Legislative Resolution, fully re-establishing the contentious jurisdiction of the Inter-American Court of Human Rights for the State of Peru.

 

V

Urgent and provisional measures

 

32.       On April 3, 2000, pursuant to the provisions of Article 63(2) of the American Convention and Article 25 of the Rules of Procedure, Delia Revoredo Marsano requested the Court to adopt provisional measures in favor of herself and her husband, Jaime Mur Campoverde. To justify her request, she informed the Court that:

 

a.           During the proceeding she heard as a member of her country’s Constitutional Court to examine the action on the unconstitutionality of a law interpreting the Constitution of the State that would allow the incumbent President of Peru to be a candidate for a third consecutive presidential mandate, three of the seven acting justices, who maintained that the “interpretation law” was unconstitutional were dismissed and suffered “many kinds of intimidation: bribes, threats, harassment.”

 

b.           As she herself could not be prosecuted or convicted owing to her constitutional immunity, the attacks focused on her husband, and a proceeding for the alleged contraband of a vehicle, which had been filed was reopened.  During this period, their property was attacked and their telephones intercepted, and there was also interference in her husband’s business activities. 

 

c.           Following her dismissal as a justice of the Constitutional Court, she was appointed Dean of the Lima Bar Association and President of the Board of Deans of the Peru Bar Associations and was commissioned by civil society organizations to submit a petition to the Inter-American Commission on Human Rights concerning the interference of the Executive in the constitutional functions of other State organs.  As a result, she was told that her husband would be convicted “and that he would be arrested” and, she therefore went into exile with him.

 

d.           Following declarations by the President of Peru in which he referred negatively to the honor of the Murs, they decided to give up their exile and return to Peru.

 

e.           As a result of a recent public statement signed by her and other citizens in order to form a Front for the Defense of Democracy, the following events occurred: a criminal proceeding was reopened with the intention of preventing her from leaving the country, she was required to pay a surety of 20,000 soles and the public registry offices were requested to provide a list of her property so that it could be embargoed; moreover, one of her husband’s companies lost an arbitration proceeding; both the latter and the appeals that were filed were processed irregularly in order to prejudice them.

 

f.           All these acts against her had a twofold purpose: on the one hand, to deprive her of her freedom and her property, and, on the other, to prevent her from being reinstated to the Constitutional Court, due to legal impediment.

 

g.           The Government used problems of a family or a business nature to impose arbitrary legal sanctions through judges or prosecutors, which threaten the honor and freedom of the persons involved.

 

As a result, she requested that:

 

a. While the proceeding on the reinstatement of the [j]ustices of the Constitutional Court is being heard, the State of Peru abstain from [harassing her] directly or [harassing her] husband, using its control over the judges and courts and manipulating them.

 

b. Specifically, the judicial proceeding filed against [her] before the Fifteenth Court for Crimes included in Administrative Resolution No. 744-CME-PJ -Exp. No. 1607-2000, for the alleged crimes of misappropriation, fraud and misuse of public documents, be suspended until the proceeding for [her] reinstatement as a Constitutional Justice has been decided.

 

c. Delia Revoredo de Mur and Jaime Mur Campoverde be guaranteed [the] right to judicial protection of their patrimonial interests, and their company, Corporación de Productos Alimenticios Nacionales PYC S.A. be allowed the legal remedy of appeal against an adverse arbitration award. 

 

33.       In an order of April 7, 2000, the President of the Court requested the State to adopt any necessary measures to ensure the physical safety and mental and moral integrity of Delia Revoredo Marsano, “so that the provisional measures that the Court m[ight] order for her c[ould] have the pertinent effect”.

 

34.       On April 20, 2000, the Commission requested the Court to “[r]atify the [urgent] measures ordered by the President of the Court on April 7, 2000, for Delia Revoredo Marsano de Mur.” The State did not submit the reports requested in the President’s order.

 

35.       By an order of August 14, 2000, the Court adopted provisional measures, which ratified the President’s order of April 7, 2000, and requested the State to maintain the necessary measures to protected the physical safety, and mental and moral integrity of Delia Revoredo Marsano.  It also requested the State to report on the protection measures that it had adopted by September 14, 2000, at the latest.  Lastly, it requested Peru to investigate the facts and report every two months on the provisional measures taken, and the Inter-American Commission to forward its comments on those reports within six weeks of receiving them.

 

36.       When this judgment was delivered, the State had not submitted the reports requested by the Court’s order of August 14, 2000. However, on September 21, 2000, the Commission submitted a report on the situation of Delia Revoredo Marsano.

 

 

VI

Evidence

 

a) documentary evidence

 

37.       The Commissioned submitted four files containing copies of 190 documents as attachments to the application brief[1].

38.       During the public hearing on merits held at the seat of the Court on November 22, 2000 (supra 26), the Commission handed over three documents on the reinstatement of the justices of the Constitutional Court and a file with 22 newspaper articles[2].

 

39.       On December 12, 2000, the Commission forwarded a brief accompanied by the technical opinion of Bernales Ballesteros to the Court (supra 30).

 

*

*          *

 

40.       During the public hearing on merits, the Court requested the expert, Jorge Avendaño Valdéz, to provide a copy of the Regulations of the Congress of Peru, published on May 30, 1998, in the official gazette, El Peruano (supra 25).

 

41.       The Commission forwarded 41 attachments corresponding to 81 documents with the brief on costs and expenses that the Court had requested[3] (supra  27).

*

*          *

 

42.       At the public hearing on November 22, 2000, the Court received the reports of the experts and the testimony of the witness offered by the Inter-American Commission.  These statements are summarized below. 

 

b) testimonial evidence

 

            Testimony of Delia Revoredo Marsano, Justice of the Constitutional Court

 

The Lima Bar Association filed suit challenging the constitutionality of Law 26,657 or the Authentic Interpretation of Article 112 of the Constitution (hereinafter “Interpretation Law”).  This action followed the normal procedure; in other words, the President delivered the file to the full Constitutional Court so that it could be examined by one of the justices (the rapporteur), who in this case was Justice Guillermo Rey Terry. After examining the file, the Constitutional Court agreed to hear the suit on unconstitutionality on September 23, 1996, and on December 27 that year, Justice Rey Terry submitted his working paper on the merits of the issue to the full Court. 

 

The working paper stated that the Interpretation Law was not a law for general application, but referred to the specific case of President Fujimori, who had been President before and after the entry into force of the 1993 Constitution.  Accordingly, if he ran for a third presidential mandate, he would violate the provisions of Article 112 of the Constitution.  In Justice Rey Terry’s working paper, the Constitutional Court, using its oversight authority, declared that this norm was not applicable to President Fujimori and, consequently, prohibited him from presenting his candidacy for the 2000 elections. It indicated that five of the justices were “convinced that it was unconstitutional” with erga omnes effects; however, they could not state this because, according to the Court’s statute, the votes of six of the seven justices who composed the Constitutional Court were needed in order to declare a law unconstitutional.  They therefore opted to declare that the law was non-applicable, which only required a decision by a simple majority and had effect in the specific case.  Either declaration - that the law was unconstitutional or that it was non-applicable - would have had the same effect in the concrete case; that is, President Fujimori would be unable to run for a third term; thus the essence of the Constitution would be protected.

 

On December 27, 1996, the Court adopted this working paper by five votes to two.  Justices García Marcelo and Acosta Sánchez, who were not in agreement, resolved to deliver their individual opinions, with the respective reasoning, as soon as possible, so that the judgment could be published and notified.

 

The same evening, television’s Channel 4 broadcast the content of the working paper.  From then on, the Constitutional Court justices began to be pressured by politicians and the media, among others, and, in a letter to the Court, 40 members of Congress went so far as to demand that they not make that decision. 

 

On December 28, 1996, the two justices who had said they would give individual opinions stated in a press communiqué that the Constitutional Court had not had quorum, “that the full Court had not been present, that the working paper had not been presented, that it had not been discussed and much less [...] voted on”. The same day, after a discussion on the content of the draft judgment between Justices García Marcelo and Rey Terry, the former acknowledged that he had taken the latter’s working paper and handed it to the police and that the justices who supported the draft would suffer “the consequences of that document.”  As a result of Justice García Marcelo’s conduct, the full Constitutional Court discussed and adopted a vote of censure against him.

 

On January 2, 1997, Justices Nugent and Díaz Valverde requested another vote on the case.  In response, the other justices declared that there was already a tacit agreement and it only remained for the justices with dissenting opinions to incorporate these to the body of the judgment so that it could be notified and published.  However, the majority of the justices, in other words, Nugent, Díaz Valverde, Acosta Sánchez and García Marcelo, voted in favor of conducting another vote, arguing that the case could be reconsidered if it had not been notified or published.

 

During this “second vote”, Justices Nugent and Díaz Valverde withdrew their votes, indicating that they had already expressed their opinions in their university department; Justices Acosta Sánchez and García Marcelo abstained from voting, and the three alleged victims in this case voted as they had before that the Interpretation Law was non-applicable.  According to the Constitutional Court’s statute, a simple majority of the votes emitted is required to declare non-applicability.  Thus, the judgment that declared it impossible for President Fujimori to run for the presidency in 2000 was adopted by the votes in favor of the three victims and with the abstention of the remaining justices.

 

Based on a request by the parliamentary opposition and on the witness’s complaint, the full Congress set up a committee to investigate the removal of the Constitutional Court’s electronic files and documents, and also a series of threats and harassments to which the witness was being subjected.  This Investigation Committee was expressly barred from examining matters related to the jurisdictional work of the Constitutional Court.

 

The three alleged victims in this case were summoned by the Investigation Committee, chaired by Deputy Martha Hildebrandt, and their statements before the Committee related to “the removal of documents from hard disks and [the] complaints” of the witness.  Subsequently, the Committee heard the statement of Justice García Marcelo, who denounced Justices Aguirre Roca, Rey Terry and the witness for “usurping functions [of the] Court”, by emitting the consent of the full Court.  The three alleged victims were not summoned again, and it was Justice Nugent, in a later statement, who tried to explain to the Hildebrandt Committee how the interpretation of a judgment functioned, and also that an agreement of the full Court existed, stating that the justices who interpreted judgments were the same as those who delivered them.  However, the Hildebrandt Committee decided to denounce Justices Aguirre Roca and Rey Terry and the witness, and they were dismissed.

 

Finally, she indicated that she and her husband had been subjected to intimidation and harassment by various agents of the State following the delivery of the judgment on the Interpretation Law and its corresponding clarification.  She indicated that, among other actions, two of their pick-up trucks had been assaulted, their telephones had been intercepted by the National Intelligence Service and two lawsuits against them had been reactivated.  This situation obliged her to request political asylum in Costa Rica, together with her husband, and this was granted to them.

 

c) expert evidence

 

            a.            Expert report of Jorge Avendaño Valdéz, lawyer, former Peruvian Congressman, former Dean of the Faculty of Law of the Catholic University of Peru, former Dean of the Lima Bar Association, on the impeachment proceeding against the justices of the Constitutional Court before the Congress of the Republic

 

Peruvian legislation establishes two procedures for investigating different matters of national interest.  On the one hand, investigation committees are set up for all matters of public interest and, on the other, the Permanent Committee, through the impeachment procedure, is responsible for investigating any violation of the Constitution or alleged offense by any of the senior officials mentioned in article 99 of the Constitution.  The investigation procedure regulated in article 88 of the Rules of Procedure of the Congress was established for cases of public interest and is initiated by an agenda motion submitted by any member or group of members of Congress on any matter of interest to the Nation.  The investigation committee is composed of three to five members and must conduct its activities within the time limit and terms of reference established by Congress.  The plenum, as the highest organ of Congress, appoints members of the investigation committees and has the powers to delimit their work.  Thus, the full Congress indicates the objectives of each specific investigation, the duration and the members, and also establishes the terms of reference.  In this particular case, Congress expressly defined not only the terms of reference, which were to investigate the facts denounced by Justice Revoredo, but it also expressly agreed that the investigations conducted by the investigative committee could not examine the judgments of the Constitutional Court, as the latter is an autonomous, independent organ, specifically appointed by the Constitution to supervise the acts of Congress.  Therefore, if the investigation committee deviated from or exceeded its terms of reference, as in this case, it would invalidate any decisions it made, with absolute nullity, and also the whole subsequent impeachment procedure.

 

“[I]f the investigative committee presumes that an offense exists, [...] it formulates a complaint which, if this is against any official [such as the members of the Constitutional Court], gives rise to an impeachment proceeding.”  However, the justices of the Constitutional Court were not notified that they would be investigated for alleged irregularities when processing the file on presidential re-election, but rather, after they had made their statements before the Investigation Committee on the facts denounced by Justice Revoredo Marsana, they were only notified of the change in the investigation when it was before the Evaluation Sub-Committee; owing to this, they were unable to exercise their right to defense when faced with the impeachment proceeding.  Moreover, the Investigation Committee submitted its report to the Permanent Committee rather than to the full Congress, as stipulated in the Rules of Procedure; this constitutes an irregularity that could annul the procedure at that stage.  Should the Investigation Committee have concluded that, in addition to the facts denounced by Justice Revoredo Marsana, the members of the Court had committed an alleged error, the Committee could have requested the plenum to consider this and take a decision on expanding its terms of reference.

 

The impeachment proceeding, regulated by article 89 of the rules of procedure of Congress, is initiated by a complaint by any person who has been wronged or any member of Congress against senior officials of the Republic, and these include members of the Constitutional Court. Then, a Special Evaluation Committee is appointed to evaluate the admissibility of the complaint.  If this Committee considers the complaint admissible, it prepares a report for the Congressional Permanent Commission.  Once the possibility is admitted that there could be an impeachment proceeding against any senior official, the Permanent Commission appoints an Investigation Sub-Committee to make the corresponding investigation and prepare a final report.  Although the Sub-Committee should be composed of three members, in the instant case, one member resigned and was not replaced.

 

Subsequently, the Permanent Committee considers the matter and takes a decision on the possibility of initiating an impeachment proceeding before the full Congress.  According to article 99 of the Constitution, an impeachment proceeding may be initiated for two reasons, violation of the Constitution and a crime in the exercise of official functions.  In the instant case, the clarification of the judgment by the three justices “did not constitute either a crime or a violation of the Constitution.”  If the Permanent Committee decides to proceed with the impeachment, as it did in this case, an Impeachment Sub-Committee is appointed who takes the matter to the full Congress, where a discussion is held, with the participation of the officials who are accused and their respective defense counsel.  Finally, a decision is taken, which may consist, as in this case, of removing the impeached justices, pursuant to article 100 of the Constitution.

 

During his term as a member of Congress, he intervened directly in the discussion of this impeachment and stated that, since the election of members of the Constitutional Court required the favorable vote of two-thirds of the members of Congress and based on the application of the principle that establishes that “in law, matters are undone in the same way as they are done”, the same number of votes would be required to remove the justices of the Constitutional Court, a two-thirds majority, which was not obtained in this case.  Moreover, in his opinion, the decision of Congress to remove the justices was not revisable.

 

The application for amparo is not admissible against legal norms or judicial decisions arising from regular proceedings.  Should the legislative decision that removed the justices be considered a legal norm, the application for amparo was not in order.  However, when it adopted this decision, Congress acted with the rank and characteristics of a jurisdictional organ by conducting a proceeding and applying a punishment.  In that case, the application for amparo would have been in order if there had been a violation of due process, which is what certainly happened in this case.  Nevertheless, owing to the political situation in Peru at that time, if any of the members of the Constitutional Court who were removed had filed an application for amparo, it would clearly have been rejected.

 

            b.            Expert report of Mario Pasco Cosmópolis, lawyer, professor at the Catholic University of Peru, former Deputy Minister of Justice, member of the Peruvian Law Academy and member of the Ethics Tribunal of the Peruvian Press Council, on the irregularities in the proceeding to remove the justices of the Constitutional Court

 

The procedure for removing senior officials is regulated in articles 99 and 100 of the Constitution and in the rules of procedure of Congress.  The latter establishes two possibilities: either absolving the official and filing the corresponding accusation, or transferring the case to the courts to evaluate whether a crime has been committed.  The rules of procedure do not go into sufficient detail about an eventual punishment to be applied directly by Congress, and this is established in article 100 of the Constitution.

 

The impeachment proceeding against the three justices of the Constitutional Court was initiated irregularly for two reasons.  First, the proceeding arose from a complaint by one of the justices of the Court with regard to incidents that had occurred within the Court.  However, “the proceeding changed direction and the complainant end[ed] up as the defendant.”   Second, the articles of impeachment did not refer to the judgment delivered by the Court that declared that the re-election law was non-applicable, but to the decision clarifying this judgment, because it was alleged that three justices could not assume to represent the full Court and, therefore, could not deliver a decision, which, in any case, was accessory, since the clarification requested by the Lima Bar Association was not in order, “because there was nothing to clarify.”  He emphasized that the procedures established in the Constitutional Court’s statute form part of and complement the provisions of the Civil Procedural Code.

 

In any case, the clarification decision delivered by some of the members of the Constitutional Court did not violate provisions of Peru’s constitutional legislation, since the decision declaring that the re-election law was non-applicable was signed by only three justices, so that if the content required clarification, the only persons who could be called on to clarify it were the justices who signed it. However, this is merely logical reasoning, since this presumption is not established in Peruvian legislation, although it exists in other legislations, such as that of Germany.  Furthermore, it was not taken into consideration that Constitutional Court justices enjoy the same prerogatives as members of Congress and cannot be held responsible before any authority or court for the opinions that they emit in the exercise of their functions.

 

During the dismissal procedure, several constitutional provisions were violated.  The first relates to the failure of Congress to substantiate its decision ordering the dismissal of the three justices, since, by taking this decision, Congress exercised a function of a jurisdictional nature and, thus, in accordance with article 139(5) of the Constitution, the decision should have been substantiated.  Even supposing the accusations had been integrated into its decision, Congress should have analyzed the accusations, as part of the substantiation.   The reasons for the alleged constitutional violation were not even set out in the articles of impeachment and therefore there were irregularities in the substantiation of the decision.

 

First, articles 99 and 100 of the Constitution stipulate that a person may only be dismissed for two reasons: due to a crime or a violation of the Constitution.  In this case, the articles of impeachment expressly established that it was a constitutional violation and not a crime.  Accordingly, the reason for the impeachment was that three justices of the Constitutional Court usurped certain functions by allegedly assuming to represent the full Court; however, although this could be a criminal act, it is not a constitutional violation.  Consequently, there was no cause for the dismissal procedure, since no crime had been committed and there had been no constitutional violation, or at least the articles of impeachment never indicated in what it consisted.

 

Second, irregularities arose from the application of criminal legislation by analogy.  The alleged usurpation of functions was classified as a constitutional violation, and a criminal figure was used to convert it into a constitutional violation.  However, the Constitution expressly prohibits the analogical application of a criminal norm.

 

Third, the justices were deprived of the right to defend themselves, because they were not notified of the content of the complaint at the appropriate time, they were not allowed to question the witnesses and they were not allowed to exercise any type of defense during the proceeding, but only before the plenum and by arguments, rather than by evidence.

 

These acts also violated constitutional provisions, such as article 139(5), 139(9) and 139(10), article 2(24), which establishes the principle of nullum crimen sine lege, and article 93, consistent with article 201, which establishes that the Constitutional Court justices may not be held responsible for any declarations that they make in the exercise of their functions.

 

Furthermore, during the dismissal procedure, international human rights instruments engaging Peru’s responsibility were violated.  The absence of due process violated the American Convention, particularly Article 8(2) concerning the defendant’s minimum guarantees; prior notification of the charge, the right to be heard with the due guarantees and within a reasonable period of time, by a competent judge or court, adequate time and means to prepare the defense and the right to question witnesses.  In addition, Article 26 of the 1948 American Declaration on the Rights and Duties of Man was violated.

 

Moreover, the Civil Procedural Code establishes the remedy of the party (recurso de parte) as a recourse; therefore, if a violation had occurred, the party, which was Congress itself, should have acted within the procedure, filing the pertinent remedy.  Even if there had been a violation, if no remedy was exercised, the violation is validated, which means that it was not in order to issue articles of impeachment based on the clarification decision.

 

The justices who had been dismissed could have filed an action for amparo in Peru against the decisions of Congress, because in this case the latter acted just like any other authority.  However, this would have been inappropriate because the Constitutional Court itself was the final instance with regard to amparo, so that, in the final analysis, this action would have been decided by the Court from which they had been removed and which, in consequence, was composed of only four justices at the time.

 

VII

evidence ASSESSMENT

 

43.       Article 43 of the Court’s Rules of Procedure establishes that:

 

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, providing that the opposing party is guaranteed the right of defense.

 

44.       Before examining the evidence it has received, the Court will define the general criteria for evaluation of evidence and will make some observations that are applicable to this specific case, most of which have been developed in the Court’s jurisprudence.

 

45.       With regard to the formalities required when tendering evidence, the Court has stated that:   

 

The procedural system is a means of exercising justice and [...] cannot be sacrificed for the sake of mere formalities.  Keeping within certain timely and reasonable limits, some omission or delays in complying with procedure may be excused, provided that a suitable balance between justice and legal certainty is preserved[4].

 

46.       In an international tribunal such as the Court, whose aim is the protection of human rights, the proceeding has its own characteristics that differentiate it from the domestic process.  The former is less formal and more flexible than the latter, which does not imply that it fails to ensure legal certainty and procedural balance to the parties[5].  This grants the Court greater latitude to use logic and experience in evaluating the evidence rendered to it on the pertinent facts[6].

 

47.       It must also be remembered that the international protection of human rights should not be confused with criminal justice.