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.
When States appear before the Court, they do so not as defendants in a
criminal proceeding, since the Court does not impose punishment on those
responsible for violating human rights.
Its function is to protect the victims and to determine the reparation
of the damages caused by the States responsible for such actions[7]. To this end:
The sole requirement is to
demonstrate that the State authorities supported or tolerated infringement of
the rights recognized in the Convention.
Moreover, the State’s international responsibility is also at issue when
it does not take the necessary steps under its domestic law[8].
48. It
is worth emphasizing that the State did not submit any evidence for the defense
at the procedural opportunities indicated in Article 43 of the Rules of
Procedure. In this respect, the Court
considers, as it has in other cases, that when the State does not provide a
specific reply to the application, it is presumed that the facts about which it
remains silent are true, provided that consistent conclusions about them can be
inferred from the evidence presented[9].
49. Based
on the above-mentioned considerations, the Court will proceed to examine and
evaluate all the elements that comprise the evidence in this case, applying the
rule of sound criticism that enables judges to arrive at a decision as to the
truth of the alleged facts[10].
*
* *
50. The
technical opinion that Mr. Bernales Ballesteros provided to the Commission was
not challenged by the State; therefore, this Court, pursuant to the powers
granted it by article 44 of its Rules of Procedure, considers it useful and
incorporates it into the probative material as documentary evidence.
51. The
documentation that the Commission submitted during the public hearing on merits
included documents about supervening events dated after the application[11]
and, based on Article 43 of its Rules of Procedure, the Court decides to
incorporate them into the probative evidence.
52. All
but two of the newspaper clippings submitted by the Commission with its
arguments on expenses and costs had already been submitted during the public
hearing on merits (supra 38);
accordingly, it is not necessary to include them in the probative evidence.
53. Furthermore,
this Court has considered that, even though they are not really documentary
evidence, the newspaper clippings submitted by the Commission (supra 37, 38 and 41) can be evaluated
when they deal with well-known or public facts or statements made by State
officials, or when they corroborate the contents of other documents or
testimonies received during the proceeding[12]. Therefore, the Court adds them to the
probative material as an appropriate means of verifying the truth of the facts
of the case, in conjunction with the other evidence.
54. The
documents submitted by the Commission during the merits stage were not
contested or challenged, nor were any questions raised about their
authenticity; therefore, the Court considers them to be valid.
55. The 1979 and 1993 Constitutions of Peru,
the rules of procedure of the Congress of the Republic of Peru, published in
the official gazette, El Peruano, on
May 30, 1998 (supra 40), Law No.
26,301 promulgated on April 18, 1994, and published in the official gazette, El Peruano, on May 3, 1994, Law No.
26,430 published in the official gazette, El
Peruano, on January 7, 1995, Law No. 23,506 (Habeas Corpus and Amparo Law),
published in the official gazette, El
Peruano, on December 8, 1982, and the evidence on expenses and costs
submitted by the Commission are considered useful for deciding the instant case
and are added to the probative evidence, pursuant to the provisions of Article
44(1) of the Rules of Procedure.
VIII
proven facts
56. The
Court now proceeds to consider and present in chronological order the relevant
facts that it considers proven and which result from examining the actions of
the State and the Inter-American Commission, and also the documentary, testimonial
and expert evidence submitted in this case.
56.1) Alberto
Fujimori was elected President of Peru for a five-year mandate on July 28,
1990, in accordance with Peru’s 1979 Constitution. Article 205 of this Constitution does not allow immediate presidential
re-election. On April 5, 1992,
President Fujimori dissolved Congress and the Constitutional Guarantees Court
and dismissed many of the judges of the Supreme Court of Justice. On October 31, 1993, the new Constitution of
Peru was adopted by a referendum, and it was promulgated on December 29,
1993. Article 112 of the new
Constitution establishes: “The presidential mandate is five years. The President may be re-elected immediately
for an additional period. Once a
minimum of another constitutional period has passed, a former president may run
for the presidency, subject to the same conditions;”[13]
56.2) When
the 1995 General Elections were announced, President Fujimori registered his
candidacy and this was contested; therefore, by Resolution No. 172-94-JNE of
October 26, 1994, the National Elections Board, exercising its powers as final,
definitive and non-appealable instance in electoral matters, stated that, in
the 1995 electoral race, President Fujimori was exercising his right to
re-election embodied in article 112 of the 1993 Constitution[14];
56.3) On
June 15 and 16, 1996, the new Constitutional Court was appointed. This Court,
described as “autonomous and independent”, was composed of the following seven
members: Ricardo Nugent (President), Guillermo Rey Terry, Manuel Aguirre Roca,
Luis Guillermo Díaz Valverde, Delia Revoredo Marsano, Francisco Javier Acosta
Sánchez and José García Marcelo[15];
56.4) On
August 23, 1996, Law No. 26,657 or the Law on the Authentic Interpretation of
Article 112 of the Constitution was enacted.
This Law interpreted the said article by establishing that presidential
re-election “was related to and conditioned by the presidential mandates
initiated after the date on which the said constitutional text had been
promulgated.” The Law concluded by
affirming that “the presidential periods initiated before the Constitution came
into force are not taken into account in the calculation;”[16]
56.5) On
August 29, 1996, the Lima Bar Association filed suit with the Constitutional
Court challenging the constitutionality of Law No. 26,657, arguing that it
violated article 112 of the Constitution.
The Court admitted this suit on September 23, 1996[17];
56.6) On
November 20, 1996, the case was heard in a public hearing in the presence of the
seven justices of the Constitutional Court. On December 27, 1996, the working
paper on the issue was discussed, and adopted by five votes in favor and two
against; this was noted in the official record. The draft judgment stated that the law was non-applicable rather
than unconstitutional, in application of the “oversight authority”. In this respect, article 4 of the
Constitutional Court’s statute establishes that six votes in favor are required
in order to decide petitions on unconstitutionality. The same evening, the media informed that the Court had discussed
the case[18];
56.7) The
draft prepared by Justice Rey Terry, which had been discussed on December 27,
1996, was removed by Justice García Marcelo.
The latter claimed that he had found it on the meeting table in Justice
Rey Terry’s folder and “that the document was proof of a scheme designed to
thwart the President’s re-election”[19];
56.8) On
December 28, 1996, Justices García Marcelo and Acosta Sánchez sent a letter to
the President of the Constitutional Court concerning alleged irregularities
committed by the other justices when adopting the decision on the
non-applicability of Law No. 26,657[20];
56.9) The
following days saw the start of a campaign of harassment against the justices
who had signed this judgment[21];
56.10) On January 2, 1997, Justices Nugent
and Díaz Valverde “requested another vote”.
On January 3, 1997, during the vote, they abstained from voting,
alleging that they had already expressed their opinions in their university
department, and withdrew their signatures.
Two other justices, Mr. Acosta Sánchez and Mr. García Marcelo, reserved
their opinions. Justices Aguirre Roca,
Rey Terry and Revoredo Marsano voted, as they had previously, that Law No.
26,657 was non-applicable[22];
56.11) By
a note of January 14, 1997, 40 members of Congress from the majority party sent
a note to the Constitutional Court in which they requested that, in accordance
with the provisions of Law No. 26,301 that regulate the Action seeking
Compliance (Acción de Cumplimiento),
it declare “the action brought by the Lima Bar Association challenging the
constitutionality of Law No. 26,657 to be either founded or unfounded (supra 56.5), and expressly [... rule] on
its constitutionality” without making “any ‘declaration’ on non-applicability
as that would seriously imperil fundamental and political rights recognized in
the Constitution. It would also
constitute an abuse of power, since the Constitutional Court would be assuming powers
that its own statute does not confer upon it”.
They also said that the Constitutional Court should rule within the
period of 30 working days established in article 34 of Law No. 26,435, which,
they claimed had expired on January 10, 1997. This letter was rejected by the
Constitutional Court, considering that it constituted an “extremely serious
attack against the jurisdictional autonomy of [the] Court” and an act of
pressure[23];
56.12)
On January 15, 1997, Justice Delia Revoredo Marsano denounced before members of
Congress that jurisdictional and administrative documents had been removed from
her office on January 12 and 13 that year, and also from the offices of
Justices Luis Díaz Valverde, Manuel Aguirre Roca and Guillermo Rey Terry.
Regarding the latter, she indicated that the draft judgment on case No.
002-96/I-TC, concerning the unconstitutionality of Law No. 26,657, had been
removed. Lastly, she mentioned other actions that constituted acts of
intimidation against members of the Constitutional Court[24];
56.13) The
working paper was again discussed and voted on January 16, 1997 (supra 56.7), and became a final judgment
by three votes in favor of non-applicability and four abstentions. This judgment declared “Interpretation Law
No. 26,657 NON-APPLICABLE, by unanimity of the votes emitted, with the
abstentions indicated, in exercise of its oversight authority, in the specific
case of the incumbent President’s candidacy for the office of President in the
year 2000.” The judgment was only
signed by Justices Aguirre Roca, Rey Terry and Revoredo Marsano. On January 17,
1997, the judgment was published in the official gazette, El Peruano. Owing to
typographical errors, it was published again the following day. However, the
date that appears in the judgment is January 3, 1997[25];
56.14)
On January 16, 1997, a “judgment” declaring the complaint unfounded was
delivered, signed by Justices Acosta Sánchez and García Marcelo, “as the
special majority of six concurring votes established in article 4 of Law No.
26,435, which are required to declare Law No. 26,657 unconstitutional had not
been attained, because four [j]ustices of this Court ha[d] abstained from
submitting an opinion on the merits of the disputed issue”. According to a
press communiqué issued by the President of the Constitutional Court, this
judgment lacked “legal value and effect”[26];
56.15) On
January 20, 1997, the Lima Bar Association requested a clarification of the
judgment of January 16, 1997 (supra
56.13). The following day, the three justices who had signed this judgment
decided that, “[a]s there is nothing in the judgment to clarify, the request is
inadmissible.” On March 14, 1997, the
Court in plenary agreed that clarifications of judgments should only be
provided by those who had signed the judgment and “exclude those who had not
signed it” and ratified “expressly the procedure used for the clarification
requested by the Lima Bar Association, in File No. 002-96-I/TC”[27];
56.16) On
February 27, 1997, pursuant to article 97 of the Constitution, Congress decided
to set up a committee to investigate the alleged acts of harassment and
pressure against the Constitutional Court, based on the complaints formulated
by Justice Revoredo Marsano (supra
56.12). The committee, chaired by Martha Hildebrandt, was composed of seven
members of Congress. The congressional
decision requiring the creation of the committee indicated that “[t]he
investigations conducted by the [I]nvestigation [C]ommittee should not examine
the judgments pronounced by the Constitutional Court” and granted it 30 working
days to submit the corresponding report.
This period was later extended by 30 days[28];
56.17) In
March 1997, the Investigation Committee requested
the members of the Constitutional Court to provide a written report on the
events. By official letter No. 100-97-P/TC
of March 19, 1997, the President of the Court advised that the removal of the
draft from Justice Revoredo’s advisor had been investigated and that “it ha[d]
not been possible to identify the author or authors of the alleged removal”;
that Justice García Marcelo had received a vote of censure for removing the
draft and, lastly, that Justice Revoredo had informed the plenum of the threats
against her[29];
56.18) On
March 21 and 31 and April 4 and 18, 1997, the Investigation Committee heard the
testimony of Justices Revoredo Marsano, Aguirre Roca, Rey Terry and Nugent,
respectively, concerning the complaints made by Justice Revoredo. After Justices García Marcelo and Acosta
Sánchez had made the accusations against them, the investigation changed
direction and it was decided to investigate the alleged irregularities that had
occurred within the Constitutional Court when the clarification ruling on
presidential re-election was delivered.
Despite this change, Justices Roca, Rey Terry and Revoredo Marsano were
not allowed to cross-examine witnesses or submit any defense regarding the
allegations[30];
56.19) On
May 5, 1997, the congressional Investigation Committee submitted a
constitutional charge against Justices Aguirre Roca, Rey Terry and Revoredo
Marsano to the Congressional Permanent Commission, accusing them of violating
the Constitution by submitting a working paper as “if it was a judgment that
had already been discussed and adopted by the full Constitutional Court” and
also for delivering a ruling on the petition for clarification filed by the
Lima Bar Association in the name of the Constitutional Court. Lastly, it indicated that Justice Nugent had
acted unlawfully by “justifying the constitutional violation” and not convening
the full Constitutional Court to resolve the said petition for clarification[31];
56.20) On
May 6, 1997, the Congressional Permanent Commission appointed a Sub-Committee
“responsible for reporting on the constitutional charge against the justices of
the Constitutional Court” (hereinafter the “Evaluation Sub-Committee”) to
examine the request for articles of impeachment. This was composed of three
congressmen, one of whom resigned. The
same day, this Sub-Committee asked the justices to submit a report on the facts
under investigation within 48 hours and advised them that they could appear
before the Sub-Committee to submit the pertinent defense. On May 8, the
justices sent their reply indicating that “the deadline granted them for these
effects was very short”; they also put on record that they did not recognize
the competence of the Sub-Committee and, through the media, declared that they
would therefore not appear before it.
Lastly, they indicated that this was a “reprisal for their ruling on the
Presidential Re-election Law” and that they had not been given the right to
defend themselves[32];
56.21) On
May 8, 12 and 14, 1997, the periods granted by the Sub-Committee for the
justices to submit their reports and statements, and the extensions that had
been granted, expired. On May 9, 1997,
the justices, Manuel Aguirre Roca, Guillermo Rey Terry and Delia Revoredo
Marsano forwarded to the Sub-Committee the official record of March 14, 1997,
which confirmed that they had express authority to deliver the clarification
decision about which they had been charged (supra
56.15). On May 14, 1997, the same justices informed the Sub-Committee about
irregularities in the impeachment proceeding and appointed Valentín Paniagua
Corazao, Raúl Ferrero Costa and Juan Monroy Gálvez as their defense counsel[33];
56.22) On
May 14, 1997, the Evaluation Sub-Committee submitted its report to the
Congressional Permanent Committee, recommending it to proceed with an
impeachment proceeding[34];
56.23) On
May 19, 1997, the President of Congress convened Justices Aguirre Roca, Rey
Terry, Revoredo Marsano and Nugent to a private hearing on the following May 23[35];
56.24) On
May 23, 1997, the Congressional Permanent Commission adopted by a majority “the
report of the [Evaluation S]ub-committee and [proposed] to the plenum that one
of the three sanctions established in article 100 of the Constitution should be
applied”; in the presence of the full Congress, it also appointed three
congressmen to constitute the Impeachment Sub-Committee; Manuel Aguirre Roca’s
defense counsel intervened before the plenum; lastly, Justice Aguirre Roca
filed a recourse before the Permanent Commission[36];
56.25) On
May 28, 1997, the Impeachment Sub-Committee presented the articles of
impeachment to the full Congress, and the defense counsel submitted their
arguments. The same day, the plenary
decided, by legislative resolutions Nos. 002-97-CR, 003-97-CR and 004-97-CR, to
dismiss the Constitutional Court justices, Manuel Aguirre Roca, Guillermo Rey
Terry and Delia Revoredo Marsano, respectively, for delivering the decision on
clarification requested by the Lima Bar Association[37];
56.26) On June 5, 1997 Justice
Manuel Aguirre Roca requested the President of Congress to notify him of the
dismissal decision against him; the following day, the President forwarded this
communication to him[38];
56.27) On
July 25, 1997, Justice Manuel Aguirre Roca, and on August 1, 1997, Justices
Guillermo Rey Terry and Delia Revoredo Marsano, filed applications for amparo
against the dismissal decisions (supra
56.25). On February 9, 1998, in second
instance, the Temporary Commercial Public Law Chamber of the Lima Superior
Court of Justice declared these amparo remedies groundless. Meanwhile, the Constitutional Court
confirmed the decisions on July 10 and 16, 1998, in each of the remedies and
both decisions were published on September 25, 1998[39];
56.28) As
a result of her participation in the facts of this case, Delia Revoredo Marsano
was harassed by the Peruvian authorities[40];
56.29) On
December 30, 1997, the Constitutional and Social Chamber of the Supreme Court
of Justice, responded to an application for amparo filed by Congresswoman
Martha Gladys Chávez indicating that the Constitutional Court should not have
applied the oversight authority and establishing that the Law on the Authentic
Interpretation of Article 112 of the Constitution was in force[41];
56.30) On
November 17, 2000, Congress annulled the dismissal decisions (supra 56.25) and reinstated Mr. Aguirre
Roca, Mr. Rey Terry and Mrs. Revoredo Marsano as justices of the Constitutional
Court[42];
and
56.31) As
a result of their dismissal, the three justices of the Constitutional Court
failed to receive their salaries and incurred expenses and costs in litigating
the various internal and international proceedings[43].
IX
Prior Considerations
57. Once
the Court has defined the proven facts that it considers relevant, it must
examine the arguments of the Inter-American Commission in order to decide
whether the proven facts engage the State’s international responsibility due to
the alleged violation of the American Convention and, if the case has the
pertinent merits, determine the legal consequences of the alleged
violations. However, prior to this, the
Court believes that it is necessary to examine the Commission’s arguments on some
important issues in the instant case.
*
* *
58. As
we have mentioned above (supra 22,
25, 27, 28 and 30), the State did not file any defense whatsoever, and it did
not appear at the hearings for which it was summonsed. In this respect, the Commission states that:
a) The
Inter-American Court has declared inadmissible Peru’s purported “withdrawal”
from its contentious jurisdiction, by which the State attempted to prevent the
Court from hearing all the cases in which it had not answered the application. Despite that decision, Peru did not respond
to the Commission’s arguments, nor did it attend the hearing in the instant
case. Although the American Convention
does not regulate this possibility, article 27 of the Court’s Rules of
Procedure is clear when it establishes that, should any of the parties fail to
appear, the Court shall, on its own motion, take such measures as may be
necessary to complete consideration of the case;
b) In
view of the absence of a precedent in the inter-American system, the provisions
of article 53(1) and 53(2) of the Statute of the International Court of Justice
may provide guidance; they stipulate that whenever one of the parties does not
appear before the Court or fails to
defend its case, the other party may call on the Court to decide in favor of
its claim; and,
c) Furthermore,
this Court must examine whether the application contains sufficient de facto and de jure grounds to declare it admissible. The State’s failure to appear has less impact on the examination
of the allegations of fact, owing to the iura
novit curia principle and because the Court is not restricted to the legal
arguments of the parties, since clarification of the factual aspects often
depends on the parties’ actions.
*
* *
59. Article
27 of the Court’s Rules of Procedure stipulate:
1. When a party fails to appear in or continue with a case, the Court
shall, on its own motion, take such measures as may be necessaryu to complete
the consideration of the case.
2. When a party enters a case at a later stage of the proceedings, it
shall take up the proceedings at that state.
60. This
Court observes that procedural inactivity does not give rise to a specific
sanction against the parties, nor does it affect the development of the
proceeding; but, it may eventually prejudice them, if they take the decision
not to exercise fully their right to defense or to execute the appropriate
procedural actions that are in their interests, in accordance with the audi alteram partem principle.
61. Regarding
the Commission’s arguments, it is sufficient that the Court has, on its own
motion, taken such measures as are necessary to complete consideration of the
case and has evaluated the arguments and the evidence tendered during the
proceeding, on the basis of which this Court exercises its jurisdictional
functions and delivers a judgment.
62. International
jurisprudence has recognized that the absence of one of the parties at any
stage of the case, does not affect the validity of the judgment[44];
therefore, pursuant to Article 68(1) of the Convention, Peru’s obligation to
comply with this Court’s judgment in this case is in force.
*
* *
63. This
Court also considers that it is appropriate to refer to the figure of the
impeachment proceeding, because of its application in this case and the
requirements established in the American Convention concerning the fundamental
rights of the alleged victims in the case.
Under the rule of law, the impeachment proceeding is a means of controlling
senior officials of both the Executive and other State organs exercised by the
Legislature. However, this control does
not mean that the organ being controlled – in this case the Constitutional
Court – is subordinate to the controlling organ – in this case the Legislature;
but rather that the intention of the latter is that an organ that represents
the people may examine and take decisions on the actions of senior
officials.
X
Violation of Article 8
(right to a fair trial)
The
Commission’s arguments
64. With
regard to Article 8 of the Convention, the Commission alleged that:
a. Constitutional
Court justices in Latin American countries must be guaranteed independence,
autonomy and impartiality. Peru’s legal
system establishes that the Constitutional Court justices, as judges who control
the constitutionality of the laws and, in final instance, examine the actions
to guarantee or protect fundamental rights, must enjoy independence, autonomy
and impartiality in the exercise of their functions;
b. In
the instant case, the independence of the judges must be examined in relation
to the Constitutional Court’s possibility of delivering judgments contrary to
the Executive and the Legislature, and also the role that Congress should play
when it acts as judge in a proceeding to dismiss justices. Any act of the State
that affects this independence and autonomy is contrary to Article 8 of the
Convention;
c. Since
the irremovability of judges is implicitly guaranteed in Article 8(1) of the
Convention, should a judge have to be removed, the decision must be taken
following the procedure established in the Constitution. In addition to
avoiding arbitrariness, this guarantees the independence of the judges before
the other powers of the State and when elections result in political changes. In the instant case, there was “[a] scheme
of the three public powers”, because the initiative to adopt Law No. 26,657,
which establishes the possibility of the Executive remaining in power through
the figure of re-election, was supported by the Legislature, when the party in
power was able to adopt the law and the decision to remove the justices; and
then the Judiciary endorsed that decision when it rejected the petitions for
amparo;
d. The
impeachment proceeding contained in Peru’s Constitution may not be used to
control the exercise of the Constitutional Court’s jurisdiction or to put
pressure on its justices, because that would constitute unlawful interference
in the function of the judges – which is what effectively occurred – and would
impair the democratic system of Government.
The procedure by which Congress dismisses a justice should be of an
exceptional nature, possess the due judicial guarantees and be impartial. In this case, Congress dismissed the
Constitutional Court justices, using an impeachment proceeding, but following a
procedure that differed from the one established in the constitutional
legislation, and violated their right to be judged by a competent, independent,
impartial and previously established judge, as required by the Convention;
e. The
reason for the dismissal of the justices was the alleged irregularity in
processing the requested clarification of the judgment that declared Law No.
26,657 non-applicable, based on the argument that it was an act that should
have be heard by the full Constitutional Court. This decision was taken both by
the Investigation Committee and by the Impeachment Sub-Committee, despite the
existence of an express mandate that prevented control or review of the
Constitutional Court’s jurisdictional decisions. Consequently, those committees
committed abuse and misuse of power, and violated the principle of the
independence and autonomy of the Constitutional Court embodied in the
Convention and Peru’s Constitution;
f. Congress
infringed criteria on “subjective impartiality” (such as those maintained in
jurisprudence under the European Convention on Human Rights), because various
elements reflected the fact that the majority in Congress had already formed an
opinion on the case. For example, in
the letter of January 14, 1997, 40 members of congress, among them several who
later became members of the investigation and impeachment committees, attempted
to prevent the adoption of the decision that declared Law No. 26,657
non-applicable; in its decision, the Evaluation Sub-Committee did not take into
consideration the official record of March 14, 1997, in which the justices were
expressly authorized by the Constitutional Court to deliver the clarification
judgment; and Justices Acosta Sánchez and García Marcelo were not charged with
violating the Constitution, as a result of the second “judgment” on the
constitutionality of Law No. 26,657 that they drew up and published;
g. The
procedure followed by the congressional Investigation Committee infringed due
process because this Committee was created to examine facts denounced by
Justice Revoredo concerning the removal of the Constitutional Court’s documents
and not to examine the jurisdictional acts of this Court;
h. The Constitution of Peru and the rules of procedure of Congress
establish the rules of due process for handling an impeachment proceeding;
therefore, in accordance with Article 29 of the American Convention, these
rules form part of the series of rights that the victims enjoyed. In this case, the following guarantees of
due process were violated: prior notification of the charge (Article 8(2)(b));
the right to defend oneself personally or
to be assisted by legal counsel of one’s own choosing, and to communicate
freely and privately with one’s counsel (Article 8(2)(d)); the right of the defense to examine witnesses
present in the court and to obtain the appearance, as witnesses, of experts or
other persons who may throw light on the facts (Article 8(2)(f)); the
right to be presumed innocent (Article 8(2)); and the right to have adequate time and means to prepare the defense
(Article 8(2)(c));
i. The
exercise of defense is a right and a guarantee to prevent the arbitrariness of
the State’s organs and includes substantive and procedural aspects. It also includes the following guarantees
for the accused: to be heard before the decision is taken, to participate
effectively throughout the proceeding, to offer and produce evidence, to obtain
well-founded decisions and prompt notifications in accordance with the law and
access to the information in the case file, the possibility of contesting
probative elements, legal counsel and the opportunity to appeal the decision;
j. The
European Court has established that the guarantees contained in Article 6(1) of
the European Convention on Human Rights are applicable to proceedings where
fundamental human rights and duties or obligations are determined; it has also
established that, even when the State is exercising discretionary powers, the
right to file arguments subsists, because such powers must always be exercised
in accordance with the law. The
guarantees of due process specific to judicial proceedings have expanded to the
sphere of any proceeding or process that affects human rights;
k. When
a State exercises discretionary powers, it must act in accordance with the law,
following criteria of simplicity, fairness and proportionality, and must always
respect due process. In particular,
proceedings to sanction authorities must be entirely regulated by and pursuant
to due process. To the contrary, in the
impeachment proceeding we are examining, “the facts were examined arbitrarily
and the law applied in a discriminatory fashion”, which violated the right to
defense of the victims; and
l. Due
process is a right in itself, but it also has an instrumental nature since it
allows the enjoyment of other rights; consequently, violation of due process is
more serious, because it guarantees respect for substantive rights and the
control of arbitrariness in the exercise of power.
The State’s
arguments
65. Peru
did not submit any arguments on this matter, since it did not appear before the
Court in the case sub judice (supra 58-62).
*
* *
The
Court’s considerations
66. Article
8(1) and 8(2) of the American Convention establish that:
1. Every person has
the right to a hearing, with due guarantees and within a reasonable time, by a
competent, independent, and impartial tribunal, previously established by law,
in the substantiation of any accusation of a criminal nature made against him
or for the determination of his rights and obligations of a civil, labor,
fiscal, or any other nature.
2. Every person
accused of a criminal offense has the right to be presumed innocent so long as
his guilt has not been proven according to law. During the proceedings, every person is entitled, with full
equality, to the following minimum guarantees:
a. the
right of the accused to be assisted without charge by a translator or
interpreter, if he does not understand or does not speak the language of the tribunal
or court;
b. prior
notification in detail to the accused of the charges against him;
c. adequate
time and means for the preparation of his defense;
d. the
right of the accused to defend himself personally or to be assisted by legal
counsel of his own choosing, and to communicate freely and privately with his
counsel;
e. the
inalienable right to be assisted by counsel provided by the state, paid or not
as the domestic law provides, if the accused does not defend himself personally
or engage his own counsel within the time period established by law;
f. the
right of the defense to examine witnesses present in the court and to obtain
the appearance, as witnesses, of experts or other persons who may throw light
on the facts;
g. the
right not to be compelled to be a witness against himself or to plead guilty;
and
h. the
right to appeal the judgment to a higher court.
67. As
has been established in this case, the dismissal of the three alleged victims
was the result of the application of a sanction by the Legislature, in the
context of an impeachment proceeding (supra
56(25)).
68. Respect
for human rights constitutes a limit to a State’s activity, and this is true
for any organ or official in a situation of power, due to its official nature,
with regard to other persons.
Consequently, any form of exercising public power that violates the
rights recognized in the Convention is unlawful. This is even more important when the State exercises its power to
sanction, because this not only presumes that the authorities act with total
respect for the legal system, but it also involves granting the minimum
guarantees of due process to all persons who are subject to its jurisdiction,
as established in the Convention.
69. Although
Article 8 of the American Convention is entitled “Judicial Guarantees” [in the
Spanish version - “Right to a Fair Trial” in the English version], its
application is not strictly limited to judicial remedies, “but rather the
procedural requirements that should be observed in order to be able to speak of
effective and appropriate judicial guarantees[45]”
so that a person may defend himself adequately in the face of any kind of act
of the State that affects his rights.
70. The
Court has already established that, although this article does not establish
minimum guarantees in matters relating to the determination of rights and
obligations of a civil, labor, fiscal or any other nature, the full range of
minimum guarantees stipulated in the second paragraph of this article are also
applicable in those areas and, therefore, in this type of matter, the
individual also has the overall right to the due process applicable in criminal
matters[46].
71. Although
the jurisdictional function belongs, in particular, to the Judiciary under the
separation of powers that exists in the rule of law, other public organs or
authorities may exercise functions of the same type[47]. In other words, when the Convention refers
to the right of everyone to be heard by a competent judge or court to
“determine his rights”, this expression refers to any public authority, whether
administrative, legislative or judicial, which, through its decisions
determines individual rights and obligations.
For that reason, this Court considers that any State organ that
exercises functions of a materially jurisdictional nature has the obligation to
adopt decisions that are in consonance with the guarantees of due legal process
in the terms of Article 8 of the American Convention.
72. With
regard to the independence that constitutional justices should enjoy, it is
enough to emphasize that both Article 201 of Peru’s current Constitution and
Article 1 of the statute of the Constitutional Court establish that the latter,
as the supervisory organ of the Constitution, shall be autonomous and independent.
73. This
Court considers that one of the principal purposes of the separation of public
powers is to guarantee the independence of judges and, to this end, the
different political systems have conceived strict procedures for both their
appointment and removal. The United
Nations Basic Principles on the Independence of the Judiciary[48],
establish that:
The independence of the judiciary
shall be guaranteed by the State and enshrined in the Constitution or the laws
of the country. It is the duty of all
governmental or other institutions to respect and observe the independence of
the judiciary[49].
74. As
for the possibility of removing judges, these Principles stipulate:
A charge or
complaint against a judge in his/her judicial or professional capacity shall be
processed expeditiously and fairly, in accordance with the national law. The judge shall have the right to a fair
hearing. The examination of the matter
at its initial stages shall be kept confidential, unless otherwise requested by
the judge[50].
In other words, the authority
in charge of the procedure to remove a judge must behave impartially in the
procedure established to this end and allow the latter to exercise the right of
defense.
75. This
Court considers that, under the rule of law, the independence of all judges
must be guaranteed and, in particular, that of constitutional judges, owing to
the nature of the matters submitted to their consideration. As the European Court has indicated, the
independence of any judge presumes that there is an appropriate appointment
process[51],
a fixed term in the position[52]
and a guarantee against external pressures[53].
76. In
this respect, Articles 93 and 201 of Peru’s current Constitution (supra 42)(C)(b) and, particularly,
Article 13 of the Constitutional Court’s statute, establish that the members of
this Court “are not subject to mandatory injunctions, nor do they receive
instructions from any authority. They
enjoy inviolability. They do not have
to respond for votes or opinions issued in the exercise of their
responsibilities. They also enjoy
immunity.”
77. Regarding the exercise of the
authority of Congress to conduct impeachment proceedings, which engages the
responsibility of a public official, the Court believes that it should be
recalled that any person subject to a proceeding of any nature before an organ
of the State must be guaranteed that this organ is competent, independent and
impartial and that it acts in accordance with the procedure established by law
for hearing and deciding the case submitted to it.
78. In
the instant case, it has been proved that during the dismissal procedure
conducted by the Congress of Peru the following situations, among others,
occurred: a) 40 members of Congress sent a letter to the Constitutional Court
requesting it to make a pronouncement on whether Law No. 26,657 on presidential
re-election, was unconstitutional; b) some of the members of Congress who sent
this letter then took part in the various committees and sub-committees that
were appointed in the proceeding we are examining; c) the “second judgment”
delivered by Justices García Marcelo and Acosta Sánchez, on January 16, 1997,
was not examined, although it was published irregularly as a separate
pronouncement issued by the Court: and d) despite the express prohibition
established in Article 88 j) of the rules of procedure of Congress, some
members of the Permanent Commission participated in the vote on the
constitutional dismissal. Consequently,
this Court concludes that, during the impeachment proceeding, Congress did not
ensure the dismissed justices the guarantee of impartiality required by Article
8(1) of the American Convention.
79. The
Peruvian Constitution establishes the general right to defense in its Article
2(23) and, specifically, in the case of the dismissal of a justice, its Article
100(2) indicates that “the accused has the right, during this process, to
defend himself with the assistance of a lawyer before the Permanent Commission
and before the full Congress.”
80. As
has been shown, the following actions occurred in the procedure to dismiss the
alleged victims: a) the Investigation Committee was appointed by the full
Congress to clarify Delia Revoredo Marsano’s complaint concerning a possible
removal of documents belonging both to her and to the Court, which was taking
place within the Court, and about threats that she had experienced. The Committee was given the express mandate
that it could not examine any matter related to the exercise of the jurisdictional
function of the Constitutional Court; but, in its report, the Committee ignored
this mandate and indicated that there were irregularities during the adoption
of various jurisdictional acts of that Court, concluding that three of the
justices “’usurped” functions of the full Constitutional Court, with the
consent of the President of that collegiate body; b) following the statements
made by Justices Acosta Sánchez and García Marcelo before the Investigation
Committee, the three justices who are the alleged victims in this case were not
summoned before that Committee again; therefore, the latter drew up its report,
assuming that what the first two justices said was true, without offering the
alleged victims the possibility of exercising their right to present evidence
for the defense; c) on May 7, 1997, once the alleged victims had learned of the
articles of impeachment against them, the Evaluation Sub-Committee granted them
a period of 48 hours to exercise their defense, a period which, at the request
of the justices, was extended until the following May 14, the date on which
this Sub-Committee issued its report and forward it to the Permanent Committee
recommending the impeachment proceeding (supra
56(21) and 56(22)); and d) the decision adopting the dismissal was not
substantiated in any way.
81. This
Court has recently indicated that the guarantees established in Article 8 of
the American Convention presume that the victims should have extensive
possibilities of being heard and acting in the respective proceedings[54]. In the case sub judice, the above-mentioned irregularities occurred (supra 80), and prevented the justices
from having a proceeding that met the minimum guarantees of due process
established in the Convention. Thus, in
this case, the victims’ right to be heard by the organ that delivered the
decision was limited and their right to take part in the proceeding was also
restricted.
82. As
for the modification in the purpose of the inquiry of the Investigation
Committee, it not only contravened the express mandate and the prohibition to
examine the jurisdictional actions of the Constitutional Court established by
Congress, but also its action implied that the rules of internal procedure that
guaranteed the alleged victims’ right to defense were infringed. On this point, Article 88(d)) of the rules
of procedure of Congress establishes that “[t]hose who appear before
Investigation Committees have the right to be informed previously about the
matter that motivates their attendance.
They may attend them with a [l]awyer”. Evidently, when the justices
appeared before the Investigation Committee, their intervention related to the
complaints made by Justice Revoredo and not to the alleged anomalies that
occurred within the Constitutional Court when the decision and clarification on
presidential re-election were adopted; thus the justices could not make their
position known on that issue.
83. The
foregoing resulted in the consequent restriction of the right of the justices
to defend themselves by answering the allegations filed against them. On the one hand, the accused did not have a
complete and timely knowledge of the charges filed against them and their
access to the probative material was limited.
The period granted for exercising their defense was extremely short,
considering that, as all accused persons, they had the right to examine the
case and the evidence[55]. Moreover, the accused justices were not
allowed to cross-question the witnesses whose testimonies formed the basis on
which the members of Congress initiated the impeachment proceeding that ended
with the consequent dismissal[56].
84. According to the criteria that this
Court has established, it is evident that the impeachment proceeding to which
the dismissed justices were submitted did not ensure them guarantees of due
legal process and did not comply with the requirement of the impartiality of
the judge. Moreover, the Court observes
that, in the context of this specific case, the Legislature did not have the
necessary conditions of independence and impartiality to conduct the
impeachment proceeding against the three justices of the Constitutional Court.
85. In
view of the foregoing, the Court considers that the State violated the right to
a fair trial embodied in Article 8 of the American Convention, with regard to
Manuel Aguirre Roca, Guillermo Rey Terry and Delia Revoredo Marsano.
XI
Violation of Article 25
(Judicial protection)
The
Commission’s arguments
86. With
regard to Article 25 of the Convention, the Commission alleged that:
a) The
three justices of the Constitutional Court who were dismissed did not have
access to a “simple and prompt recourse” which would have protected them from
the decision of the Congress of the Republic ordering their dismissal, since it
took three months to process the applications for amparo that they filed; this
did not respect the provisions of Peruvian legislation on time limits and
placed them in a situation of defenselessness; and
b) The
Constitutional Court’s decision to classify the dismissal procedure of the
three justices as a “non-actionable” act, because it was a political matter,
prevented a jurisdictional organ from reviewing the dismissal procedure and its
legality, which meant the denial of the right to effective judicial protection
established in Article 25 of the Convention.
As we can infer from the facts, the dismissed justices filed
applications for amparo against Legislative Resolutions Nos. 002-97-CR,
003-97-CR and 004-97-CR, which were rejected by the instances established to
that end. They also filed an appeal after
execution of judgment before the Constitutional Court, which was also rejected.
The
State’s arguments
87. Peru
did not submit any arguments on this matter, since it did not appear before the
Court in the case sub judice (supra 58-62).
*
* *
The Court’s
considerations
88. Article
25 of the American Convention establishes that:
1. Everyone has the
right to simple and prompt recourse, or any other effective recourse, to a
competent court or tribunal for protection against acts that violate his fundamental
rights recognized by the constitution or laws of the state concerned or by this
Convention, even though such violation may have been committed by persons
acting in the course of their official duties.
2. The States
Parties undertake:
a. to
ensure that any person claiming such remedy shall have his rights determined by
the competent authority provided for by the legal system of the state;
b. to
develop the possibilities of judicial remedy; and
c. to
ensure that the competent authorities shall enforce such remedies when granted.
89. This
Court has established that the safeguard of the individual in the face of the
arbitrary exercise of the powers of the State is the primary purpose of the
international protection of human rights.
In this respect, the inexistence of effective domestic remedies places
the victim in a situation of defenselessness.
Article 25(1) of the Convention has established, in broad terms
the obligation of the States to
provide to all persons within their jurisdiction, an effective judicial remedy
to violations of their fundamental rights.
It provides, moreover, for the application of the guarantee recognized
therein not only to the rights contained in the Convention, but also to those recognized
by the Constitution or laws[57].
In view of the foregoing, the absence of an
effective remedy to violations of the rights recognized in the Convention is
itself a violation of the Convention by the State Party[58].
90. In
this perspective, this Court has indicated that, for the State to comply with
the provisions of this article, it is not enough that the recourses exist
formally, but that they must be effective[59];
in other words, the persons must be offered the real possibility of filing a
simple and prompt recourse in the terms of Article 25 of the Convention. This
Court has repeatedly established that the existence of this type of guarantee
“constitutes one of the basic pillars, not only of the American Convention, but
also of the rule of law itself in a democratic society, in the terms of the
Convention.”[60]
91. In
the context of the simple, prompt and effective remedies established in the
provision we are examining, this Court has maintained that the procedural
remedy of amparo has the necessary characteristics for the effective protection
of the fundamental rights[61];
in other words, it is simple and brief. According to the procedure established
for remedies of amparo in Peru’s Habeas Corpus and Amparo Law No. 23,506, this
should be summary and prompt, because it sets peremptory and maximum periods of
20 days for the corresponding courts to deliver their decisions in each of the
two instances that hear this matter. In
this case, the three alleged victims filed their applications for amparo on
July 25 and August 1, 1997, and both were rejected in appeal by the Temporary
Commercial Public Law Chamber of the Lima Superior Court of Justice on February
9, 1998 (supra 56.27); in other
words, more than six months after they were filed. Also, Article 41 of the Constitutional Court’s statute establishes
the possibility of filing an appeal after execution of judgment before the
Constitutional Court against “the decisions of the Supreme Court or the
instance established by law that have denied remedies of habeas corpus, amparo,
habeas data and an action seeking compliance (acción de cumplimiento)” and this must be resolved within a maximum
period of 20 days. Accordingly, the
dismissed justices filed the corresponding appeals after execution of judgment,
and these were decided confirming the decision of the two previous instances on
July 10 and 16, 1998, respectively.
92. It
is also worth underlining that, although the decisions of the Constitutional
Court that we are discussing were adopted on July 10 and 16, 1998, they were
published in the official gazette, El
Peruano, the following September 25 (supra
56.27), even though Article 42 of Law No. 23,506 establishes that “[o]nce
they have been agreed and made executable, all final decision awarded in
applications for [... a]mparo shall be published within the following 15 days
in the official gazette, El Peruano.”
93. In
the light of the criteria that this Court has established on the issue and
considering the concept of reasonable time in judicial proceedings[62],
it may be said that the procedure followed before the various instances that
heard the applications for amparo in this case exceeded the principle of a
reasonable time limit established in the American Convention. In this Court’s opinion, applications for amparo
are illusory and ineffective if, when processing them, there is an
unjustifiable delay in the decision[63]. Peru’s domestic legislation itself adopted
this criterion when it established brief and peremptory time limits for
processing the application for amparo (supra
91) and when it provided, in Article 61 of the Constitutional Court’s statute,
that the Court should conduct its activities “punctually and without delays.”
94. This
Court considers that, since the actions conducted before Congress in the
procedure for the dismissal of the Constitutional Court justices were subject
to legal provisions that should have been precisely observed, they may be the
object of a legal action or recourse on due legal process. This control does not imply an evaluation of
the acts of a strictly political nature that the Constitution attributes to the
Legislature.
95. It
is worth underlining that, when deciding on the applications for amparo filed
by the dismissed justices, the Constitutional Court of Peru itself indicated
that:
The exercise of the power of sanction,
specifically that of the dismissal of senior officials, cannot be openly
evaluated in a jurisdictional seat, because it constitutes an act that is
exclusive to the Congress of the Republic, equivalent to what, in doctrine, is
called non-actionable political questions, [but] it is also true that this
power is not unlimited or absolutely discretionary, but is subject to certain
parameters, one of which, and perhaps the principal one, is that it should be
exercised according to the principle of reasonableness, because it would not be
logical or fair to decide to impose a measure of sanction following a situation
of total uncertainty or lack of substantiation. Accordingly, in cases where an act of a political nature, such as
the one questioned in this application for amparo, manifests an evident
infringement of this principle and, by extension, others such as that of the
democratic rule of law or due material process, it is an unobjectionable fact
that this body can evaluate its coherence in the light of the Constitution.
From
the foregoing, it may be inferred that the Constitutional Court believed that
it was possible to make a judicial review of acts connected to an impeachment
proceeding in order to evaluate whether they had complied with the guarantees
of due legal process. However, it also
considered that, in this case, such guarantees had been respected and,
consequently, the application for amparo was declared unfounded.
96. In
view of the consequences of the instant case, the Court considers that the
failure of the recourses filed against the decision of Congress that dismissed
the Constitutional Court justices was due to an evaluation that was not
strictly juridical. It has been proved
that those who composed the Constitutional Court and heard the application for
amparo of the dismissed justices were the same persons who took part or were
involved in the impeachment proceeding in Congress. Consequently, according to this Court’s criteria and the requirements
on the impartiality of the judge (supra
84 and 85), it can be said that the decision on the amparos in this case did
not meet the requirements of the impartiality of the court that heard
them. Therefore, the recourses filed by
the alleged victims were not able to produce the result for which they had been
envisaged and were condemned to failure.
97. In view of the foregoing, the Court
considers that the State violated the right to judicial protection embodied in
Article 25 of the American Convention, with regard to Manuel Aguirre Roca, Guillermo
Rey Terry and Delia Revoredo Marsano.
XII
Article 23
(Political rights)
The
Commission’s arguments
98. With
regard to Article 23(1)(c), the Commission alleged that:
a) A
person’s right to form part of the Judiciary, in conditions of equality and,
once selected in accordance with the conditions established in the Constitution
and the law, to remain in his functions, is protected in Article 23(1)(c) of
the American Convention. So that the dismissal by the Congress of the Republic
of Peru of three of the justices of the Constitutional Court, in a procedure in
which the formalities established in the Constitution were not respected,
constitutes “a violation, by the State of Peru, of the right to have access in
general conditions of equality to the public functions in their country”; and
b) The
procedure for the dismissal of the justices for elaborating the clarification
decision and the absence of effective judicial recourses for the protection of
their rights “were measures of reprisal of a political nature, adopted by the
Government with the support of the [L]egislature and the consent of the
[J]udiciary.”
The
State’s arguments
99. Peru
did not submit any arguments on this matter, since it did not appear before the
Court in the case sub judice (supra 58-62).
*
* *
The
Court’s considerations
100. Article
23(1)(c) of the American Convention establishes that:
1. Every
citizen shall enjoy the following rights and opportunities:
[...]
c) to have
access, under general conditions of equality, to the public service of his
country.
101. As
we have already established in this judgment (supra 78 and 80), there were a series of irregularities in the
impeachment proceeding against the justices of the Constitutional Court. These
irregularities prevented the exercise of defense before an impartial organ and
resulted in a consequent violation of due process, as a result of which the
three justices were dismissed. These
justices were unable to have access to a simple, prompt and effective recourse
for the restitution of the rights violated (supra
93-97). This situation prevented the justices from remaining in their
functions under the conditions established in Article 23(1)(c) of the American
Convention.
102. Moreover,
in this case, the Congress of Peru annulled its decisions dismissing the three
justices of the Constitutional Court on November 17, 2000, which implies an
absence of the legal conditions that would have substantiated the dismissal (supra 56.30).
103. The
Court considers that the facts described in the case sub judice should not be considered a violation of Article 23 of
the Convention (political rights). The three justices who were dismissed had
had access, under general conditions of
equality, to the public service of their country; in this case, questions have
arisen that imply the violation of other provisions of the Convention:
Articles 8 and 25, that establish the right of the victims to obtain judicial
protection, in accordance with due legal process.
104. Therefore,
it should be considered that this matter was resolved with the facts
established in previous sections in relation to the right to a fair trial and
judicial protection.
XIII
Non-compliance with Article 1(1)
(obligation to respect rights)
The
Commission’s arguments
105. Regarding
Article 1(1) of the Convention, the Commission argued that:
a) According
to the rules of international law and the Court’s jurisprudence, the acts or
omissions of any public authority engage the responsibility of the State with
regard to the articles of the Convention, and the State is obliged to identify
those responsible for acts or omissions and impose the pertinent sanctions; and
b) In
the case sub judice, both the
Judiciary and the Constitutional Court, as public authorities, were “obliged to
guarantee due process and to adopt the necessary measures to make effective the
rights of the three [j]ustices who had been dismissed.”
The
State’s arguments
106. Peru
did not submit any arguments on this matter, since it did not appear before the
Court in the case sub judice (supra 58-62).
*
* *
The
Court’s considerations
107. Article
1(1) of the Convention establishes that:
The States Parties to this Convention undertake
to respect the rights and freedoms recognized herein and to ensure to all persons
subject to their jurisdiction the free and full exercise of those rights and
freedoms, without any discrimination for reasons of race, color, sex, language,
religion, political or other opinion, national or social origin, economic
status, birth, or any other social condition.
108. The
Commission abstained from formulating arguments and allegations with regard to
Article 2 of the Convention, although it had mentioned this violation in its
application; its arguments were limited to Article 1(1) of the Convention. The Court will restrict itself to examining
Peru’s alleged failure to comply with Article 1(1) of the Convention.
109. Based
on Article 1(1) of the American Convention, this Court has already established
that the State is obliged to respect the rights and freedoms recognized in it[64]
and to organize the public authorities in order to guarantee to everyone
subject to its jurisdiction the free and full exercise of human rights[65]. According to the rules of State
international responsibility applicable to international human rights law, the
act or omission of any public authority, whatsoever its rank, is an act which
may be attributed to the State, and engages its responsibility in the terms
established in the American Convention itself[66].
110. The Court
observes that, in accordance with the facts established in this judgment, the
State violated Articles 8 and 25 of the American Convention with regard to
Manuel Aguirre Roca, Guillermo Rey Terry and Delia Revoredo Marsano, so we may
conclude that it has failed to comply with its general obligation to respect
the rights and freedoms recognized therein and to guarantee their free and full
exercise, as established in Article 1(1) of the Convention.
111. In order to establish whether the State’s
conduct in this case was adapted to the American Convention, this Court
considers that it is appropriate to recall that the preamble to the Convention
reaffirms the intention of the American States to “consolidate in [the]
hemisphere, within the framework of democratic institutions, a system of
personal liberty and social justice based on respect for the essential rights
[and obligations] of man.” This requirement is adapted to the norm of
interpretation embodied in Article 29(c) of the Convention. The facts of the
instant case diverge from these requirements of the Convention.
112. As we have shown, the Constitutional Court
was dismantled and disqualified from exercising its jurisdiction appropriately,
particularly with regard to controlling constitutionality, since article 4 of
that Court’s statute requires the vote in favor of six of the seven member
justices in order to declare that a law is unconstitutional. The Constitutional Court is one of the
democratic institutions that guarantee the rule of law. The dismissal of the justices and the
omission by Congress to appoint substitutes, violated erga omnes the possibility of exercising the control of
constitutionality and the consequent examination of whether the State’s conduct
was in harmony with the Constitution.
113. Accordingly, the Court concludes
that the State has failed to comply with the general obligation in Article 1(1)
of the American Convention on Human Rights.
XIV
Application
of Article 63(1)
The
Commission’s arguments
114. In
its application brief (supra 15), the
Commission requested the Court to condemn the State to make integral and
appropriate reparations to Manuel Aguirre Roca, Guillermo Rey Terry and Delia
Revoredo Marsano, and to this end to “reinstate them in the exercise of their
functions” and compensate them for salary and related benefits not received
since the date they were dismissed and until their effective
reinstatement. It also requested the
Court to order Peru to pay for the moral damages and prejudice suffered “in
relation to the honor and reputation, life and safety of the [j]ustices.”
Furthermore, it requested that the State be condemned to pay the reasonable
costs and expenses in which the victims incurred in the different proceedings,
in both the domestic sphere and before the inter-American system.
115. In
reply to the Court’s request (supra
27), on January 8, 2001, the Commission submitted a brief with its arguments on
the expenses and costs in this case and attached the evidentiary documents
that, in its opinion, substantiated them.
These arguments are summarized below.
a. With
regard to Delia Revoredo Marsano:
i. In order
to suppress its “political adversaries”, the Government of Peru had the
practice of reviving closed judicial proceedings and manipulating them, and
this occurred with two matters concerning Mrs. Revoredo Marsano because of her
actions as a Constitutional Court justice relating to the facts of the instant
case. Accordingly, and to defend
themselves from the “political harassment, through judicial channels” that they
were experiencing, she and her husband were obliged to employ lawyers and,
later, to abandon Peru, seeking political asylum; and
ii. During
the asylum, they had expenses that arose from employing people to represent
their companies and administer their property in Peru; they employed lawyers in
Costa Rica and in the United States to prepare a “political complaint-report”,
submitted to the Inter-American Commission in order to file a proceeding for
slander in the State of Nevada in the United States; and lastly, they paid for
accommodation in Costa Rica and the United States and incurred expenses for air
travel to Washington D.C., Nevada and Costa Rica, all of which amounted to
US$958,406.62 (nine hundred and fifty-eight thousand four hundred and six
United States dollars and sixty-two cents).
b. With
regard to Manuel Aguirre Roca:
i. From April
1997 to November 2000, the period during which he was separated from his
functions as a Constitutional Court justice, he incurred expenses for
secretarial services and arising from the use of an office where he worked on
various domestic proceedings related to the facts of this case and from
covering much of the territory of Peru offering talks and presentations,
together with Justices Revoredo Marsano and Rey Terry. These expenses totaled US$50,400.00 (fifty
thousand four hundred United States dollars); and
ii. In 1999
and 2000, he traveled twice to San José, Costa Rica, in order to collaborate
with the Inter-American Commission in the preparation of this case before the
Inter-American Court; in this regard, he paid travel, accommodation and
alimentation expenses amounting to US$3,200.00 (three thousand two hundred
United States dollars).
c. With
regard to Guillermo Rey Terry:
He employed the services of a lawyer to provide
advisory services in the domestic proceeding to obtain “recognition of his
right to collect remuneration for the time that he was separated from his
functions”; this generated expenses amounting to US$31,213.45 (thirty-one thousand
two hundred and thirteen United States dollars and forty-five cents).
The
State’s arguments
116. Peru
did not submit any arguments on this matter, since it did not appear before the
Court in the case sub judice (supra 58-62).
*
* *
The
Court’s considerations
117. Article 63(1) of the American Convention
established that:
If the Court finds that there has been a
violation of a right or freedom protected by this Convention, the Court shall
rule that the injured party be ensured the enjoyment of his right or freedom
that was violated. It shall also rule,
if appropriate, that the consequences of the measure or situation that
constituted the breach of such right or freedom be remedied and that fair
compensation be paid to the injured party.
118. In
its jurisprudence, this Court has reiterated that it is a principle of
international law that any violation of an international obligation that
produces a damage entails the obligation to repair it appropriately[67].
119. The
reparation of the damage caused by the violation of an international obligation
requires full restitution (restitutio in integrum), which consists in re-establishing the previous
situation, and repairing the consequences of the violation, and also payment of
compensation for the damages caused.
120. As a result of the indicated violations of
the rights embodied in the Convention in this case, the Court must rule that
the victims are ensured the enjoyment of their violated rights and
freedoms. The Court observes that on
November 17, 2000, the Congress of the Republic of Peru ordered that the
justices should be reinstated in their respective functions (supra 26 and 56.30), and this has
already been done. However, this Court
considers that the State must also compensate the said justices for the
salaries and benefits that they failed to receive (supra 56.31). It also considers that they must be compensated for
the costs and expenses that they incurred owing to the measures taken to
litigate the case before the legal system, in both the internal and the
international jurisdiction.
121. Referring to material damages in the
case of surviving victims, this Court has stated that, among other factors, the
calculation of compensation should take into account the time they did not work[68]. The Court considers that this criterion is
applicable in the instant case[69]
and, to this end, orders that the State should pay the amounts corresponding to
the arrears of salary and other work-related benefits that correspond to the
dismissed justices under its legislation.
The State must also compensate the officials for any other damage that
they may duly justify and which is a consequence of the violations declared in
this judgment. Following the pertinent
national procedures, the State must proceed to establish the respective
compensatory amounts, so that the victims may receive them as soon as possible.
122. In
accordance with consistent international jurisprudence, the Court considers
that the fact that the victims obtain a favorable judgment, as the culmination
of a proceeding that supports their claims, is, in itself, a form of
satisfaction[70]. The case sub
judice involves justices of a high court of constitutional justice who were
dismissed. The case file confirms that
the justices were reinstated in their functions on November 17, 2000 (supra 26 and 56.30), by a resolution of
Congress, that is, by the very organ that had removed them from their
functions. This resolution was published in the official gazette, El Peruano. The Court considers that these facts constitute per se a moral reparation; and this
judgment entails a similar moral reparation.
*
* *
123. As
this Court has indicated, the American Convention guarantees everyone access to
justice to enforce their rights, and the States Parties have the obligation to
prevent, investigate, identify and punish the masterminds and accessories of
human rights violations[71].
Based on this obligation, the State has the duty to avoid and combat impunity,
which has been defined as “the total lack of investigation, capture,
prosecution, trial and conviction of those responsible for violations of the
rights protected by the American Convention.”[72]
124. Consequently,
the State has the obligation to investigate the facts that gave rise to the
violations confirmed in this judgment, and must order a real and effective
investigation in order to identify and punish those responsible for the
violations.
*
* *
125. Concerning the reimbursement of
costs and expenses, this Court must evaluate their scope with prudence; they
includes the expenses for the steps taken by the victims before the authorities
in the domestic jurisdiction and also those that arose in the course of the
proceeding before the inter-American system.
This evaluation may be made based on the principle of fairness and
taking into account the expenses indicated by the parties, provided that the quantum is reasonable[73].
126. To
this end, the Court considers that, in reimbursement of the costs and expenses
generated in the internal and the international jurisdictions, it is fair to
grant the victims the following amounts: Manuel Aguirre Roca, US$25,000.00
(twenty-five thousand United States dollars) or the equivalent in Peruvian
money when the payment is made; Guillermo Rey Terry, US$25,000.00 (twenty-five
thousand United States dollars) or the equivalent in Peruvian money when the
payment is made; and Delia Revoredo Marsano, US$35,000.00 (twenty-five thousand
United States dollars) or the equivalent in Peruvian money when the payment is
made.
127. With regard to the items established in
paragraph 126, these should be agreed on and paid as soon as possible, in
accordance with the applicable Peruvian law.
128. In order to comply with this judgment, the
State must pay the compensations established in favor of Manuel Aguirre Roca,
Guillermo Rey Terry and Delia Revoredo Marsano, within six months of
notification. When it disburses the
compensations granted in this judgment, the State must pay the amounts in
relation to the actual value of the salaries that they failed to receive over
the corresponding period (salaries in arrears). Finally, if, for any reason, it is not possible for the
beneficiaries to receive the compensations within the indicated six-month
period, the State must deposit the said amounts in an account or deposit
certificate in a solvent financial institution under the most favorable
conditions. If, after ten years, the
compensation has not been claimed, the amount will be returned to the State of
Peru, with the interest earned.
129. In
accordance with its consistent practice, this Court reserves the authority to
supervise complete compliance with this judgment. The proceeding will be closed once the State has fully complied
with the provisions of the judgment.
XV
Operative Paragraphs
130. Therefore
the court,
unanimously,
1. finds
that the State violated the right to a fair trial embodied in Article 8 of the
American Convention on Human Rights, with regard to Manuel Aguirre Roca,
Guillermo Rey Terry and Delia Revoredo Marsano.
2. finds
that the State violated the right to judicial protection embodied in Article 25
of the American Convention on Human Rights, with regard to Manuel Aguirre Roca,
Guillermo Rey Terry and Delia Revoredo Marsano.
3. finds
that the State failed to comply with the general obligation of Article 1(1) of
the American Convention on Human Rights, with regard to the violation of the
substantive rights indicated in the previous operative paragraphs of this
judgment.
4. decides
that the State must order an investigation to determine the persons responsible
for the human rights violations referred to in this judgment and also publish
the results of this investigation and punish those responsible.
5. decides
that the State must pay the amounts corresponding to the arrears of salary and
other benefits that, by law, correspond to Manuel Aguirre Roca, Guillermo Rey
Terry and Delia Revoredo Marsano, in the terms of paragraphs 121 and 128 of
this judgment.
6. decides
that, in fairness, the State must reimburse the victims in the instant case,
for costs and expenses, in the way and under the terms set out in paragraphs
126 and 128 of this judgment, the following amounts: Manuel Aguirre Roca,
US$25,000.00 (twenty-five thousand United States dollars) or the equivalent in
Peruvian money when the payment is made; Guillermo Rey Terry, US$25,000.00
(twenty-five thousand United States dollars) or the equivalent in Peruvian
money when the payment is made; and Delia Revoredo Marsano, US$35,000.00
(thirty-five thousand United States dollars) or the equivalent in Peruvian
money when the payment is made.
7. decides
that it will monitor that this judgment is complied with and only then will it
close the case.
Done at San Jose, Costa Rica, on January 31, 2001,
in the Spanish and English languages, the Spanish version being authentic.
Antônio A.
Cançado Trindade
President
Máximo
Pacheco-Gómez Hernán
Salgado-Pesantes
Oliver Jackman Alirio Abreu-Burelli
Sergio
García-Ramírez Carlos Vicente de
Roux-Rengifo
Manuel E. Ventura-Robles
Secretary
So ordered,
Antônio A.
Cançado Trindade
President
Manuel E.
Ventura-Robles
Secretary