Ivcher Bronstein Case, Judgment of February 6, 2001, Inter-Am Ct. H.R. (Ser. C) No. 74 (2001).
In the Ivcher Bronstein 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 its Rules of Procedure
(hereinafter “the Rules of Procedure”), delivers the following judgment:
I
Introduction
of the case
1. On
March 31, 1999, in accordance with the provisions of Articles 50 and 51 of the
American Convention on Human Rights (hereinafter “the American Convention” or
“the Convention”), the Inter-American Commission on Human Rights (hereinafter
“the Inter-American Commission” or “the Commission”) submitted an application
to the Court against the Republic of Peru (hereinafter “the State” or “Peru”),
arising from petition No. 11,762, received by the Secretariat of the Commission
on June 9, 1997.
2. The
Commission submitted this application for the Court to decide whether the State
had violated Articles 8 (Right to a Fair Trial), 13 (Freedom of Thought and
Expression), 20 (Right to Nationality), 21 (Right to Property) and 25 (Judicial
Protection), all of them in relation to Article 1(1) (Obligation to Respect
Rights) of the Convention, with regard to Baruch Ivcher Bronstein (hereinafter
“Mr. Ivcher” or “Mr. Ivcher Bronstein”),
3. According
to the facts described by the Commission, the State arbitrarily deprived Mr.
Ivcher Bronstein, naturalized Peruvian citizen, majority shareholder, Director
and President of Channel 2-Frecuencia
Latina (hereinafter “Channel 2”, “the Channel” or “Frecuencia Latina”) of the Peruvian television network of his
nationality title, in order to remove him from the editorial control of the
said channel and restrict his freedom of expression, which he manifested by
denouncing grave violations of human rights and acts of corruption.
4. The Commission
therefore requested the Court to call on Peru to restore and guarantee to Mr.
Ivcher the enjoyment of all his rights and, in particular that it should:
a. Order that Mr. Ivcher Bronstein’s Peruvian
nationality title be reinstated and that the full and unconditional recognition
of his Peruvian nationality be restored, with all attendant rights and
prerogatives.
b. Order that Mr. Ivcher Bronstein’s enjoyment and
exercise of his right to own shares in Compañía
Latinoamericana de Radiodifusión S.A. be restored along with all his
prerogatives as a shareholder in and administrator of that company.
c. Order that Peru must guarantee Mr. Ivcher
Bronstein’s enjoyment and exercise [of] his right to freedom of expression and,
in particular, that the acts of harassment and persecution against him,
including the acts against his family and his company [should] cease.
d. Order that the Peruvian State must adopt the
necessary legislative and administrative measures to make full reparation and
compensate Mr. Ivcher Bronstein for all the material and moral damages that the
acts of its administrative and judicial organs have caused him.
The Commission also petitioned the Court to order the State to
adopt the necessary legislative and administrative measures to avoid a
recurrence of events of this nature, and to investigate and punish those
responsible for the violations of the fundamental rights of Mr. Ivcher
Bronstein. Lastly, the Commission
requested that the State be ordered to pay the costs and reimburse the expenses
incurred by the alleged victim in litigating this case, in both the domestic
courts and the inter-American system, including reasonable fees for his
representatives.
II
Competence
of the Court
5. The Court is
competent to hear the instant case.
Peru has been a State Party to the American Convention since July 28,
1978, and recognized the obligatory jurisdiction of the Court on January 21,
1981.
III
Procedure
before the Commission
6. On June 9, 1997,
the Peruvian Congressman, Javier Díez Canseco, advised the Commission that Mr.
Ivcher Bronstein might possibly be deprived of his Peruvian nationality. On July 16, 1997, the Dean of the Lima Bar
Association, Vladimir Paz de la Barra, filed a petition with the Commission
alleging that the State had revoked Mr. Ivcher’s Peruvian citizenship.
7. On July 18, 1997,
the Commission opened the case and requested the State to provide the
corresponding information.
8. On August 26,
1997, Mr. Ivcher requested a hearing with the Commission and, based on this
request, the Commission considered him to be the principal petitioner and
victim of the alleged violations.
9. Peru replied to
the Commission on September 12, 1997, and requested that the petition be
declared inadmissible.
10. On October 9, 1997,
during its 97th session, the Commission held a hearing on the
petition’s admissibility.
11. On February 26,
1998, during its 98th session, the Commission held a second hearing
on the admissibility of this case.
12. By a note of May
29, 1998, the Commission made itself available to the parties to try and reach
a friendly settlement and asked them to reply to this offer within 30
days. Following an extension granted at
the request of the State, on July 31, 1998, the latter declared that it did not
consider it appropriate to initiate a friendly settlement procedure.
13. On October 8, 1998,
during its 100th session, the Commission held a hearing on the
merits of the petition.
14. On December 9, 1998, during its 101st
session, the Commission adopted Report No. 94/98, which was transmitted to Peru
on December 18 that year. In this
report, the Commission concluded that:
the Peruvian State
arbitrarily deprived Mr. Ivcher of his Peruvian nationality (in violation of
the provisions of Article 20(3) of the Convention), as a means of suppressing
his freedom of expression (recognized in Article 13 of the Convention), and
also violated his right to property (Article 21 of the Convention) and his
rights to due process (Article 8(1) of the Convention) and to a simple and
prompt recourse to a competent judge or tribunal (Article 25 of the
Convention), in violation of the general obligation of the Peruvian State to
respect the rights and freedoms of each individual in its jurisdiction, arising
from Article 1(1) of the American Convention.
the Commission also recommended the State:
A. To immediately reinstate Baruch Ivcher
Bronstein’s Peruvian nationality title and restore full and unconditional
recognition of his Peruvian nationality, with all the attendant rights and
prerogatives.
B. To immediately desist from the harassment and
persecution of Mr. Ivcher Bronstein, and refrain from any further actions that
violate his freedom of expression.
C. To take the necessary steps to re-establish
Baruch Ivcher Bronstein’s enjoyment and exercise of his right to own shares in
the company and, consequently, restore to him all his prerogatives as a
shareholder in and administrator of the company.
D. To compensate Mr. Ivcher Bronstein for the
material and moral damages that the conduct of the administrative and judicial
organs of the State caused him [,and]
E. To adopt the necessary legislative and
administrative measures to prevent episodes of this kind in the future.
Lastly, the Commission granted the State a period of two months to
adopt measures aimed at fulfilling its recommendations.
15. By a note of March 17, 1999, the State
requested the Commission to grant it a 14-day extension in order to comply with
the recommendations issued by the Commission and indicated that it waived its
right to have that period counted within the period set forth in Article 51(1)
of the Convention.
16. On March 18, 1999,
the Commission acceded to the State’s request and stated that it would grant an
extension until March 31, 1999. It also
stated that the extension would push back the deadline for filing the
application with the Court.
17. When the agreed
date for the State to indicate that it had complied with the recommendations
had elapsed, without it having communicated with the Commission, the Commission
decided to refer the case to the Inter-American Court, under the terms of
Article 51 of the Convention.
IV
Proceeding
before the Court
18. On March 31, 1999,
the Commission filed the application with the Inter-American Court (supra paras. 1, 2, 3 and 4).
19. The Commission
appointed Hélio Bicudo and Claudio Grossman as its delegates; Jorge E. Taiana,
Hernando Valencia Villa, Christina M. Cerna, Ignacio Alvarez and Santiago
Cantón as advisors; and Alberto A. Borea Odría, Elliot Abrams, Viviana
Krsticevic and María Claudia Pulido as assistants.
20. Pursuant to
Article 34 of the Rules of Procedure, on April 20, 1999, the President of the
Court (hereinafter “the President”) requested the Commission to correct certain
problems in the presentation of the application within 20 days. On May 5, 1999, the Commission corrected the
problems.
21. On May 10, 1999,
the Secretariat of the Court (hereinafter “the Secretariat”) transmitted the
application to Peru and informed it about the time limits for answering the
application, filing preliminary objections and appointing it agents. It also informed the State that it had the
right to appoint a ad hoc judge.
22. On May 17, 1999,
the Ambassador of Peru to Costa Rica informed the Court that the Office of the
Minister for Foreign Affairs of Peru had received the application corresponding
to this case on May 12, 1999.
23. On June 8, 1999,
the State appointed Mario Federico Cavagnaro Basile as its agent and Sergio
Tapia Tapia as deputy agent and indicated the address where communications relating
to the case would be officially received.
24. On June 11, 1999,
the State filed a brief in which it indicated the discrepancies that, in its
opinion, existed with regard to the time period for appointing an ad hoc judge, and also requested a reasonable
extension of that period. The extension
was granted until July 11, 1999.
25. On August 4, 1999, the Minister and the
Counselor of Peru’s Embassy in Costa Rica appeared before the Secretariat to
return the application in this case and its attachments. These officials delivered a note to the
Secretariat, dated August 2, 1999, signed by the Minister for Foreign Affairs,
which stated that:
a. By Legislative Resolution
No. 27,152, dated July 8, 1999, [...] the Congress of the Republic approved the
withdrawal of [Peru’s] recognition of the contentious jurisdiction of the
Inter-American Court of Human Rights.
b. On July 9, 1999, the
Government of the Republic of Peru deposited with the General Secretariat of
the Organization of American States (OAS) the instrument wherein it declares
that, in 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 [...].
c. [... T]he withdrawal of
the recognition of the Court’s contentious jurisdiction takes immediate effects
as of the date on which that instrument is deposited with the General
Secretariat of the OAS, in other words, July 9, 1999, and applies to all cases
in which Peru has not answered the application filed with the Court.
Lastly, in the same brief, the State declared that
The notification
contained in note CDH-11.762/002, dated May 10, 1999, concerns a case in which
the Honorable Court is no longer competent to consider the applications filed
against the Republic of Peru, under the contentious jurisdiction provided for
in the American Convention on Human Rights.
26. On August 9, 1999,
the State sent a note to which was attached a copy of the “supreme resolution”
of August 3, 1999, which annulled the appointment of Mario Cavagnaro Basile and
Sergio Tapia Tapia as agent and deputy agent, respectively, in the instant
case.
27. On August 27, 1999,
the International Human Rights Law Group submitted a brief in the capacity of amicus curiae.
28. On September 9, de
1999, Curtis Francis Doebbler submitted a brief in the capacity of amicus curiae.
29. On September 10,
1999, the Commission submitted its observations concerning Peru’s return of the
application and its attachments. In its
brief, the Commission stated that:
a. The Court asserted jurisdiction to consider the
instant case as of March 31, 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 August 4, 1999, by Peru,
have no effect whatever on the Court’s exercise of jurisdiction in the instant
case;
b. A unilateral act of a State cannot divest an
international court of jurisdiction 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 it
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 stability.
Finally,
the Commission petitioned the Court to find that Peru’s return of the
application and its attachments in the Ivcher Bronstein case was legally
ineffectual, to continue to exercise jurisdiction over the instant case and to
convene a public hearing on the merits of the case at the next procedural
opportunity.
30. On September 15,
1999, Alberto A. Borea Odría submitted a brief in the capacity of amicus curiae.
31. On September 24,
1999, the Inter-American Court delivered judgment on its competence, in which
it decided:
1. To declare that:
a. the Inter-American Court of Human Rights is
competent to take up the present case;
b. Peru’s purported withdrawal, with immediate
effect, of the declaration recognizing the contentious jurisdiction of the
Inter-American Court of Human Rights is inadmissible[;]
2. [t]o continue to examine and process the
instant case[;]
3. [t]o commission its President, at the
appropriate time, to convene the State of Peru 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[, and]
4. [t]o notify Peru and the Inter-American
Commission on Human Rights of this judgment.
32. On September 27,
1999, the Minister of Peru’s Embassy in Costa Rica appeared at the seat of the
court to return the judgment on competence to the Secretariat and to deliver a
note from the Embassy, of the same date, indicating the reasons for this
conduct, which were the same as those stated in the State’s briefs of August 4
and 9, 1999 (supra paras. 25 and 26).
33. On September 29,
October 4, and November 1, 1999, Peru sent three notes to the Secretariat with
it comments on the judgment on competence (supra
para. 31).
34. On January 21,
2000, the Secretariat requested the Inter-American Commission to present the
list of the witnesses and experts offered in its application, who would appear
at the public hearing on the merits.
This list was filed by the Commission on February 15, 2000, and
forwarded to the State on February 17, 2000.
35. On February 21,
2000, the State returned the list of the witnesses and experts offered by the
Commission to the Secretariat.
36. On September 13, 2000,
the President summoned the State and the Commission to a public hearing on the
merits, to be held at the seat of the Court as of November 20 that year, in
order to receive the statements of Baruch Ivcher Bronstein, Fernando Viaña
Villa, Rosario Lam Torres, Julio Sotelo Casanova, Vladimir Paz de la Barra,
Javier Díez Canseco Cisneros, Luis Pércovich Roca, Ángel Páez Salcedo, Fernando
Rospigliosi Capurro, Alejandro Miró Quesada Cisneros, Nicolás de Bari Hermoza
Ríos, Vladimiro Montesinos Torres, Víctor Huamán del Solar and Percy Escobar,
the witnesses offered by the Commission and the reports of Gustavo Gorriti
Ellenbogen, Samuel Abad Yupanqui, Beatriz Merino Lucero and Diego García Sayán,
experts also offered by the Commission.
Furthermore, the President informed the parties that immediately after
this evidence had been received, they could present their final oral arguments
on the merits of the case.
37. On September 28,
2000, the Commission informed the Court that, for reasons beyond their control,
the witnesses Javier Díez Canseco Cisneros, Ángel Páez Salcedo and Vladimir Paz
de la Barra, and the experts Beatriz Merino Lucero and Diego García Sayán,
could not appear before the Court, and therefore requested that Enrique
Oliveros Pérez, Luis Iberico Núñez, César Hildebrandt Pérez Treviño and Emilio
Rodríguez Larraín should be summoned to give evidence. The same day, the Commission informed the
Court that the witness Vladimiro Montesinos Torres had been in the Republic of
Panama since September 24 that year and asked it to take the necessary steps
before the State of Panama to ensure his presence at the public hearing on the
merits.
38. The following day,
the Secretariat granted Peru ten days to submit its comments on the
substitution of witnesses and experts requested by the Commission. The comments were never submitted.
39. On October 2, 2000,
the Secretariat requested the Commission to submit information on the measures
it had taken to ensure that the witness, Vladimiro Montesinos, received the summons
to the public hearing on the merits, and this was submitted on October 4 that
year; as a result, the Secretariat subsequently took the necessary steps before
Panama’s diplomatic authorities.
40. On October 12,
2000, the Inter-American Commission requested the Court to summon Leonor La
Rosa Bustamante to give evidence in the public hearing on the merits. The Secretariat granted the State until
October 23, 2000, to submit its comments on that request, but it did not do so.
41. On October 24,
2000, the President annulled the summons of the witnesses Javier Díez Canseco
Cisneros, Ángel Páez Salcedo and Vladimir Paz de la Barra, and the experts
Beatriz Merino Lucero and Diego García Sayán (supra paras. 36 and 37); and summoned Enrique Oliveros Pérez, Luis
Iberico Núñez, César Hildebrandt Pérez Treviño, Emilio Rodríguez Larraín and
Leonor La Rosa Bustamante to give evidence in the public hearing on the merits,
to be held at the seat of the Court on November 20 and 21, 2000.
42. On October 31,
2000, the Inter-American Commission accredited the persons who would represent
it in the public hearing on the merits.
43. On November 13,
2000, the Inter-American Press Association submitted a brief in the capacity of
amicus curiae.
44. On November 20 and
21, 2000, the Court received the statement of the witnesses and expert
witnesses proposed by the Commission at a public hearing.
There appeared before the Court:
for the Inter-American Commission:
Hélio Bicudo, delegate
Claudio Grossman, delegate
Christina M. Cerna, advisor
Santiago Cantón, advisor
Debora Benchoam, advisor
Alberto A. Borea Odría, assistant
Elliot Abrams, assistant
Viviana Krsticevic, assistant, and
María Claudia Pulido, assistant;
as witnesses
proposed by the Inter-American Commission:
Baruch Ivcher
Bronstein
Fernando Viaña
Villa
Luis Carlos
Antonio Iberico Núñez
Julio Genaro
Sotelo Casanova
Rosario Beatriz
Lam Torres
Emilio Rodríguez
Larraín Salinas
Luis Pércovich Roca, and
Fernando Rospigliosi Capurro;
and as an
expert proposed by the Inter-American Commission:
Samuel Abad Yupanqui.
Although they had been summoned, the witnesses Alejandro Miró
Quesada Cisneros, Leonor La Rosa Bustamante, Nicolás de Bari Hermoza Ríos,
Vladimiro Montesinos Torres, Víctor Huamán del Solar, Percy Escobar and Enrique
Oliveros Pérez, and the expert Gustavo Gorriti Ellenbogen, all proposed by the
Commission, did not appear at the public hearing. César Hildebrandt Pérez
Treviño, also proposed by the Commission, informed the Court that he was unable
to appear at the hearing.
Although it had been summoned, the State did not appear (infra para. 78). At the start of the public hearing, the
President read Article 27 of the Court’s Rules of Procedure, which authorizes
the Court to proceed with the hearing, on its own motion, in the absence of one
of the parties (infra para. 79).
45. On
November 29, 2000, on the instructions of the Court, the Secretariat requested
the Commission to submit the documentary evidence justifying the request for
payment of costs and expenses submitted in the application brief by December 13
that year, at the latest. On December
12, 2000, the Commission requested an extension of the period, and, following
the instructions of the President, an extension was granted until January 8,
2001.
46. On December 15,
2000, on the instructions of the President, the Secretariat requested the
parties to file their final written arguments on the case by January 8, 2001,
at the latest.
47. On January 8, 2001,
the Commission submitted its final written arguments. The same day, it submitted its arguments on expenses and costs,
and on January 10, 2001, the attachments thereto were received by the
Secretariat, and were forwarded to the State, requesting it to submit its
comments on them by January 24, 2001, at the latest.
48. Peru did not submit
final written arguments.
49. On January 23,
2001, Peru’s Embassy in Costa Rica forwarded copy of Legislative Resolution No.
27.401 of January 18, 2001, in which a single article establishes the
following:
Legislative
Resolution No. 27.152 is revoked and the Executive Power is instructed to take
the necessary measures to annul any results that the said [l]egislative
[r]esolution may have had; furthermore, the contentious jurisdiction of the
Inter-American Court of Human Rights is fully restored for the State of Peru.
50. On February 1,
2001, submission of the arguments and evidence having concluded, the State
filed its comments on the Commission’s arguments with regard to expenses and
costs.
51. On February 2, 2001,
on the instructions of the Court, the Secretariat requested the Commission to
forward its comments on the State’s brief mentioned in the previous paragraph
and on the “supreme resolution” No. 254-2000-JUS of November 15, 2000, in which
Peru “accept[ed] the recommendations formulated in the Commission’s Report
[No.] 94-98 of December 9, 1998 [...]”.
The comments were submitted on February 5, that year, within the time
limit that had been granted.
V
Provisional
measures adopted in this case
52.
On
November 21, 2000, in accordance with Article 63(2) of the Convention and
article 25 of the Rules of Procedure, the Inter-American Court issued a
decision in which it requested the State:
To adopt, without
delay, any necessary measures to protect the physical and mental health and
moral integrity and the right to judicial guarantees (a fair trial) of Baruch
Ivcher Bronstein, his wife, Neomy Even de Ivcher and his daughters, Dafna
Ivcher Even, Michal Ivcher Even, Tal Ivcher Even and Hadaz Ivcher Even[;]
To adopt, without
delay, any necessary measures to protect the physical and mental health and
moral integrity and the right to judicial guarantees (a fair trial) of Rosario
Lam Torres, Julio Sotelo Casanova, José Arrieta Matos, Emilio Rodríguez Larraín
and Fernando Viaña Villa.
[...]
The Court based this decision on the following consideration,
among others:
That the statements
made by the witnesses and the expert during the public hearing on November 20
and 21, 2000, and the final arguments of the Commission, allow the Court to
establish prima facie the existence
of threats to the rights to personal safety and due process of Baruch Ivcher
Bronstein, the alleged victim in this case, and also those of some members of
his family, certain managers of his companies and other persons related to the
events that gave rise to this case [...]
53. On November 22,
2000, the Commission requested the Court to expand the provisional measures
ordered in order to protect also Menachem Ivcher Bronstein, Ivcher’s brother,
and Roger González, who worked for his companies.
54. By an order dated
November 23, 2000, the Court requested the State to “adopt immediately, any
measures necessary to protect the physical and mental health and moral
integrity and also the right to due process of Menachem Ivcher Bronstein and
Roger González”.
55. On December 1,
2000, the State forwarded to the Court a copy of a note of the Supreme Court of
Justice of Peru, “in which its President, Víctor Castillo Castillo, report[ed]
on the steps taken to comply with the above-mentioned provisional measures”.
56. On January 18,
2001, the Secretariat requested the State to forward its first report on
compliance with the measures ordered by the Court, which should have been
presented by December 5, 2000. At the time
this judgment was adopted, the State had not sent this report.
57. On January 26,
2001, the Commission informed the Court about the situation of the persons
protected by the measures.
VI
Evidence
Documentary Evidence
58. With the
application brief, the Commission submitted 43 attachments, comprising 433
documents1,
eight videos2, and numerous newspaper articles.
59. During the public hearing, the Commission
submitted one video, two books and 34 documents3.
60. The Commission
submitted three annexes on expenses and costs, containing 84 documents4.
61. The Court proceeded
to add five documents to the pool of evidence5.
62. During the public
hearing, held on November 20 and 21, 2000, the Court received the statements of
the witnesses and the report of the expert offered by the Inter-American
Commission. These statements are
summarized below.
Testimonial
Evidence
a) Testimony of
Luis Carlos Antonio Iberico Núñez, Director of the Channel 2 program, Contrapunto, when Baruch Ivcher Bronstein was Chairman of the Board of the
Company
Journalist. He has been a
member of Congress since July 28, 2000.
He began working as a news reporter with Frecuencia Latina on October 1, 1985, then he became a journalist
for the Contrapunto (Counterpoint)
program and, in July 1996, he became the director of this program. On September 19, 1997, he resigned owing to
the judicial and police operation at the Channel that day.
The harassment of the press in Peru began on April 5, 1992, when
Alberto Fujimori carried out the so-called “autogolpe”
(a coup d’etat against himself); subsequently, members of the Army began
monitoring all the media, exercising direct censorship so that they would only
provide information that accorded with the interests of the National Reconstruction
Government.
The investigative journalism conducted by the independent media
was the principal object of such harassment in Peru. Different methods were used, such as campaigns of intimidation,
libel and slander against journalists by the National Intelligence Service (a
unit operated directly by Vladimiro Montesinos) through the Army Intelligence
Service. In the case of Frecuencia Latina, the businessman,
Baruch Ivcher Bronstein, was harassed and he was deprived of his rights, in
order to silence the journalists who worked on that Channel.
Contrapunto basically dealt with national
political topics and had a “rating” of about 20 points in Lima, which amounted
to three million homes throughout Peru.
The following were some of the most noteworthy investigations shown on Contrapunto and their consequences:
In 1996, following the claim that the drug-trafficker, Demetrio
Cháves Peña, was in communication with certain senior military officers who
were collaborating with him in drug-trafficking operations, Alberto Venero held
a meeting with Mr. Ivcher, during which, in the name of Vladimiro Montesinos,
he threatened to reveal the existence of a file implicating him in the sale of
arms to Ecuador.
In
1997, the program showed a report about the Secret Service agent, Leonor La
Rosa, who was in the Military Hospital as he had been severely tortured, and
also about the assassination and mutilation of the agent, Mariela Barreto; the
following day, unidentified military helicopters started to fly low over the
roof of the manufacturing plant of Productos
Paraíso del Perú S.A. (hereinafter “Productos
Paraíso del Perú”), owned by Mr. Ivcher.
All these news reports were then dealt with by the Congress of the
Republic and had international repercussions.
Another means of harassment used was the campaign to discredit Mr.
Ivcher Bronstein in the magazines Si
and Genet, both strongly influenced
by the Army.
Finally, following the report that the Intelligence Service was
recording the telephone calls of certain well-known people, the “directorial
resolution” which suspended Mr. Ivcher’s Peruvian nationality title was
published in the official gazette, El
Peruano. As a result, on September
19, the Police Force, directed by a “rather questionable” judge, intervened the
Channel, in order to hand over its administration to Samuel and Mendel Winter
Zuzunaga (hereinafter the “Winter brothers” or the “minority
shareholders”). Subsequently, the news
line changed totally and, at all times, it defended the Government and the Army.
b) Testimony of
Baruch Ivcher Bronstein, alleged victim in the case
He arrived in Peru in July 1970 to work for a “small factory
called Productos Paraíso del Perú”
for two years, together with his brother and some business partners. In 1983, he began taking the steps necessary
to obtain Peruvian nationality, which he received at the end of 1984. Prior to 1996, he had never been convicted
in either a civil or a criminal proceeding, either within or outside Peru.
In 1985, he acquired between 11% and 12% of the shares of Channel
2. In 1986, he obtained 49.53% of the shares and, in 1992, 53.95%, “which is
what he [has] today”. The Channel
changed completely and became one of those with top ratings.
Between December 1995 and February or March 1996, an investigation
unit was created and the program Contrapunto
was restructured. This program
denounced the case of the “drug ‘plane” and broadcast declarations against Mr.
Montesinos of a drug-trafficker, known as “Vaticano”;
as a result, the tanks and soldiers that had been guarding the Channel since it
had suffered a terrorist attack in 1992, were withdrawn. Furthermore, the following day, Alberto
Venero visited his offices and said that he had slandered the Army. Mr. Venero also reminded him that he was a
naturalized Peruvian and had shares in a mattress factory in Ecuador (at that
time, there was much talk of the conflict between Peru and Ecuador). Lastly, Mr. Venero insinuated that he should
be very careful, which he took to be a direct threat.
Subsequently, the Channel began to promote the Contrapunto programs on Mr. Montesinos,
called “Vladimiro I and II”. At that time, Mr. Venero telephoned him and
invited him to lunch with Mr. Montesinos, a meeting that never took place.
These programs were broadcast on September 29, 1996. After this, an Army Intelligence Service, agent, known as “Besitos” told him that they were
investigating his connection with the Ecuadorian army, mentioned that he was a
naturalized Israeli and warned him that he should take care because there were
those who wanted to kill him.
In January 1997, Mr. Pandolfi, Prime Minister of Peru, and Mr. Joy
Way, Deputy, visited his office and offered him the equivalent of 19 million
dollars, in soles, in exchange for meeting every Friday to decide which
investigations would be transmitted on Contrapunto
on Sunday, and which would not.
On April 7, 1997, the day after Contrapunto had denounced the cases of the Army Intelligence
agents, Leonor La Rosa and Mariela Barreto, Peruvian Army helicopters began to
fly over the Productos Paraíso del Perú
factory, very close to the roof, and this went on for months. When a complaint was made, the Prime
Minister advised that the helicopters were carrying out training flights;
however, helicopters had never before flown over the factory.
Documents exist that refer to the Government’s concern about the
existence of investigative journalism teams outside its control. Those concerning the Octavio II, IV, V and
XIII plans refer to several television channels. The names of journalists from the Contrapunto program appear in them and Mr. Ivcher was mentioned as
“a person who was extremely dangerous for national security.”
The Octavio Plan was initiated on May 23, 1997, and affected the
witness’s reputation, owing to publications in magazines that had been bankrupt
and began to use State money. The newspaper, El Mañanero informed that he was an Israeli, not a Peruvian.
On July 13, 1997, the same day that Contrapunto gave information about 197 recordings of telephone
conversations of journalists, politicians and, in particular, the former
presidential candidate, Javier Pérez de Cuellar, the official gazette, El Peruano, published the resolution
that took away his nationality. He was
never notified of this, or given the opportunity to be represented by a lawyer.
There are approximately 20 or 30 lawsuits against him, and he, his
wife, Neomy Even de Ivcher (hereinafter “Mrs. Ivcher” or “Mr. Ivcher’s wife”),
and his daughter, Michal, are liable to a possible total of over 110 years of
prison. His wife won a civil suit that
allowed her to convene the shareholders on November 8, 1998, and organize the
board of Compañía Latinoamericana de
Radiodifusión S.A. (hereinafter “the Company”); however, the following day,
she was criminally charged with misrepresentation. He has not been allowed to appoint lawyers for his defense in any
of the proceedings against him; to the contrary, he has been assigned lawyers de oficio.
The Productos Paraíso del
Perú factory has also been harassed, so that some of the personnel,
particularly the managers, are in hiding in Peru or exiled in the United
States. Its clients have also been
harassed so that they would denounce him, and a criminal proceeding was filed
against one of them who refused to sign the charge; this could involve a
conviction of 10 or 12 years. Rosario
Lam, Imports Manager of Productos Paraíso
del Perú, was imprisoned for 271 days to try and force her to file a
complaint against him. “[T]wo judgments
[…] in the same case” were delivered against Julio Sotelo, the Channel’s former
General Manager and the only person holding his power of attorney in Peru, “one
sentencing him [to] four years [and the other to] four years
conditionally”. Like Rosario Lam, they
were not allowed to sleep at night while they were in prison; it was a
“psychological war”. They tried to stop
Emilio Rodríguez Larraín, his wife and daughter’s lawyer, through intimidation
and he now risked six years in prison.
Lastly, on July 11, 1997, the newspaper Expreso published a declaration of Army General Guido Guevara
Guerra, President of the Supreme Council of Military Justice, in which he
stated that Mr. Ivcher could lose his Peruvian nationality because he had
endangered national security by broadcasting information that discredited the
Army. The following September 19, they
took the channel away from.
c) Testimony of Fernando Viaña
Villa, Press Director General of Channel 2, when Baruch Ivcher Bronstein was
Chairman of the Board
Journalist. He worked as
Press Director General in Frecuencia
Latina from March 1, 1996, until September 19, 1997. Among other functions, he managed the press
area of Contrapunto, he had input
into the editorial line of the channel (when Mr. Ivcher went abroad, he handled
this element) and he controlled the investigation unit, which worked for the
whole journalistic area of the channel, but most investigations were destined
for Contrapunto.
He indicated that Contrapunto
was launched in 1989 and was very popular with television viewers, because it
had a rating of 20 or 25 points, which was equal to “almost half the
televisions that were turned on.” It
had a political content, which is why there were those who wished to silence
it, since, in view of its popularity, it was an obstacle for President
Fujimori’s re-election plans for 2000.
On September 1, 1996, Contrapunto
denounced the commercial relationship between members of the Army and
drug-traffickers, among them one known as “Vaticano”,
by broadcasting some tapes. As a
result, the armored military cars that had guarded the channel since the
terrorist attack of July 5, 1992, were withdrawn and, the following day, the
Peruvian Navy denied the information in a communiqué. On September 8, Contrapunto
aired a special feature where they explained the significance of the fact that
such communiqués, which provided evidence of corruption, had not been
investigated, and it also broadcast two features on Mr. Montesinos. As of September 2, 1996, this resulted in
Mr. Ivcher being harassed by Alberto Venero, Vladimiro Montesinos’s emissary,
who informed him that what he had done could prejudice his investments and
continued residence in Peru. In the
same way, as of that date, no official guest visited the channel to be
interviewed, even Ministers who had done so regularly in the past. Following the special features on
Intelligence agents La Rosa and Barreto on April 6, 1997, Army helicopters
began to fly over the channel and the Productos
Paraíso del Perú factory, during the morning, afternoon and night and none
of them bore an identification number.
Also, the Venevisión channel, “triangulated” with Mr. Montesinos,
offered to buy Channel 2 from Mr. Ivcher for more than US$50.000.000,00 (fifty
million United States dollars).
Frecuencia Latina could not be pressured, because Mr.
Ivcher always paid his taxes and could not be bribed, since the channel earned
profits each year; thus, the only way to remove Mr. Ivcher was through the
minority shareholders. In July and
August 1996, the Winter brothers held various meetings with Intelligence
officers. On May 24, 1997, following an
Army communiqué against Mr. Ivcher, he drafted a communiqué to be signed by the
journalists. Samuel Winter, Vice
President of Channel 2, asked him for a copy. The following week, the Winter brothers signed a document stating
that they had no knowledge of the editorial line of the channel, which was
obviously untrue. Finally, when the
Winter brothers took over the channel on September 19, 1996, the editorial line
of Contrapunto changed completely.
He had not been harassed.
d) Testimony of Julio Genaro Sotelo
Casanova, former Manager of the Company, who made the arrangements for Baruch
Ivcher Bronstein to obtain Peruvian nationality
He began working as as Executive Manager of Productos Paraíso del Perú in October 1977; then he came to work
with Channel 2 as General Manager; later, he ceased working for Mr. Ivcher.
As of January 1983, he participated fully in the Mr. Ivcher’s
naturalization procedure. On September
17, 1984, he deposited all the documents required to obtain Peruvian
nationality with the Ministry of Foreign Affairs. Following an extensive internal process, this Ministry issued the
“supreme resolution” signed by the President of the Republic, Fernando
Belaúnde. Subsequently, Mr. Ivcher had
to renounce his Israeli nationality, and he did this before the public notary,
Luis Vargas, in a public instrument dated December 6, 1984. Based on this evidence, his nationality
title, numbered 0644, was issued. The
public instrument is kept by the notary, who is responsible for recording it in
his books.
For the 10 years following the issue of Mr. Ivcher’s nationality
title, it was never questioned. Then
the Government stated that the public instrument was dated July 1990, which was
false, because that date corresponded to a request for a copy and not that of
the original instrument, which dates from 1984.
He was no longer working with Mr. Ivcher when the problems
regarding the nationality title started, because it was claimed that the
naturalization file did not exist and that the copies had been lost. Nevertheless, he knew that Mr. Ivcher was
not allowed to defend himself and was not notified of the revocation of his
nationality title; a simple “directorial resolution” was issued that annulled
his nationality title.
In 1998, the copies of the file were found in the files of
Interpol, Peru, on page 302 of book G, but the Police Force denied that they
existed. When the copies were found,
they were forwarded to various well-known people and institutions and the
Government was urged to annul the prejudicial administrative resolution,
without the need for an administrative or judicial proceeding, since the
“directorial resolution” which revoked the nationality title, was of a lower
rank than the “supreme resolution” which granted it. There was no reply.
He was included in a criminal proceeding for company
administration fraud, general misrepresentation and public misdemeanor. The judge, the prosecutor and the assistant
prosecutor were the same as those who intervened in all the proceedings
involving Mr. Ivcher. Also, witnesses
with their faces covered were heard at all the proceedings. The judgment was never read to him, for
health reasons, and he was given a conditional four-year sentence. During the proceeding, he did not know what
he was charged with and his defense counsel did not have access to the
file. There were briefs in the file,
submitted by the authorities themselves, which the judge did not take into
consideration. Furthermore, he could
not prove his innocence because he did not have access to the Channel 2
documents or to those of the tax authorities and, although he had filed
judicial proceedings against SUNAT so that they would be delivered to him, the
results had been negative.
While listening to the judgment being read, he was arrested, and
was imprisoned for 45 days and, while he was in the San Jorge prison, National
Intelligence Service agents entered his cell and lit up his face with a lamp,
but as people began “to make a racket”, they ran off.
The Peruvian justice system instituted a criminal proceeding
against him to create a “large pair of pincers” that would not let Ivcher
Bronstein and his family act to defend their rights.
e) Testimony of
Luis Percovich Roca, former Minister for Foreign Affairs of Peru, who issued
Baruch Ivcher Bronstein’s nationality title
He was President of the Chamber of Deputies and the Congress of
the Republic and, subsequently, Minister of Fisheries, of the Interior, and for
Foreign Affairs, and President of the Council of Ministers.
“He sign[ed] the “supreme resolution” [which granted nationality
to Mr. Ivcher] when it had been signed by the President of the Republic”,
recording that the respective official procedures had been verified by all the
relevant officials. He identified as
his the signature on the document submitted to him, which corresponded to the
said certificate. The naturalization
process followed by Mr. Ivcher Bronstein complied with all the requirements
established in Article 91 of the 1979 Constitution, Law No. 9168 on
naturalization, “Supreme Decree” No. 402 of the Ministry of Foreign Affairs and
the directives for the process. He also
fulfilled the requirement of renouncing his Israeli nationality.
There was never any legal action or observation that questioned
the granting of the nationality title or that requested its annulment; those
proceedings were filed 13 years later.
Accordingly, the way in which the certificate was annulled is not legal
because a “supreme resolution” cannot be annulled by a lower-ranking legal
decision. Furthermore, the legislation
does not establish any means of annulling nationalization; it only stipulates
the official procedures required to obtain nationality. He had never heard of this type of case.
f) Testimony of
Rosario Beatriz Lam Torres, Head of Imports, Productos Paraíso del Perú
She
began to work for Productos Paraíso del
Perú on August 17, 1987, as secretary to the presidency and the board,
until July 1993, when she became of Head of Imports.
Different types of harassment occurred. With regard to Productos
del Paraíso del Perú, pressure was put on the customs authorities as of
1997. Under Peruvian law, 10 per cent
of imports must be physically appraised, but all the factory’s imports were
physically assessed. Police and Army
helicopters flew very low over the factory for about three months. They also received threatening telephone
calls, visits from strange people, and once an incendiary artifact, which they
were able to control, was thrown at the building. Finally, the factory was charged with the crime of defrauding the
customs and tax authorities. On a personal
level, she received threatening telephone calls, she was frequently followed by
people in cars with dark windows and the telephones in her house were
tapped. Then she was charged with
customs and tax offenses, for which she was detained from February 6 to
November 17, 1998. She was sentenced to
four years with parole; then, on appeal, the sentence was reduced to three
years with parole. During the
proceeding, she had several lawyers, but none of the evidence that she offered
was accepted; the court only evaluated the evidence submitted by the
Intelligence Service, which consisted of photocopies of documents that had been
adulterated; they never showed the originals.
She was often pressured by the judge and the prosecutor, and also
at the offices of the Treasury Police Force, who wanted to charge Mr. Ivcher
with having committed those crimes and of having altered invoices in order to
increase their value and pay more taxes, which he would then deduct from his
income tax. When she was in the prison,
she was the only person imprisoned for that crime; no one had ever been imprisoned
for it. She suffered a series of
physical ailments owing to the conditions to which she was submitted and the
pressures exercised on her in prison.
When she was in prison, police arrived with balaclava helmets and
flashlights at about 2 a.m. or 3 a.m., they shone the flashlights on her face
and did not let her sleep, they also did this when she was in the clinic.
g) Testimony of Emilio Rodríguez Larraín
Salinas, lawyer for Baruch Ivcher Bronstein’s wife and daughter, and Director
of the Company when Mr. Ivcher was Chairman of the Board
Lawyer and advisor to various companies; he was the lawyer for Mr.
Ivcher’s wife and daughter, Michal, and he assisted them during several
proceedings. He was a Director of the
Company from 1996 until September 19, 1997, when the administration was handed
over to the minority shareholders.
During the time he was a Director, the Winter brothers never
expressed any disagreement with the Channel’s editorial line, and at meetings,
they appeared to have a good relationship with Mr. Ivcher and his family. It was a surprise when they came to an
agreement with the Commander General of the Army, on May 23, 1997, and stated
that they had no input into the editorial line of Channel 2. Since then, the Winter brothers adopted a
hostile attitude towards Mr. Ivcher and the company directors.
On July 11, 1997, the Winter brothers filed the first action for
amparo and, two days later, the resolution that deprived Mr. Ivcher Bronstein
of his nationality was published in the official gazette, El Peruano. There were
elements in the text of the former that coincided with the contents of the
resolution. The complaint was filed
against Mr. Ivcher, but the precautionary measure requested also included Mrs.
Ivcher’s property, owing to the existing joint ownership through marriage. Although she had not even been summoned to
the proceeding, she appeared before the Public Law Chamber of the Superior
Court of Lima on August 27, 1997, to request the annulment of the
proceeding. The president of the
Chamber attempted to bar her report, affirming that Mrs. Ivcher was not a party
to the proceeding, but as the media were present at the hearing, the witness
told the president that she would make a complaint against him for restricting
her right to defense; consequently, after consulting other members of the
Chamber, he authorized her to submit her report.
The action for amparo filed by the Winter brothers was admitted
immediately, but the proceedings to recognize Mrs. Ivcher’s right were delayed
by for between eight months and two and a half - almost three - years.
On September 12, the request for annulment was declared without
merit, and it was indicated that at no time had Mrs. Ivcher’s rights been
affected and the only intention of the action for amparo and the precautionary
measure was to safeguard the Winter brothers’ rights. Consequently, on September 26, he filed a petition for a
“recovery injunction” (interdicto [de]
recobrar), because his clients were being divested of the ownership of
their shares. Also, on December 1,
1997, he organized the convocation of a shareholders’ meeting and, finally, on
October 7, 1998, the trial judge ordered that this meeting should be held in
November that year; Mrs. Ivcher would represent the shares owned jointly
through marriage.
On October 19, 1997, after Mrs. Ivcher’s right had been recognized
in the civil sphere, criminal proceedings were instituted against Mr. and Mrs.
Ivcher and their daughter, Michal, Sotelo and Otto Cabello, for crimes relating
to the authenticity of documents and their adulteration. Subsequently, Mr. Ivcher’s daughter, under
his sponsorship, filed a petition “contesting the agreement” (impugnacion de acuerdo), which was
allowed on November 2, 1998, and on November 18 that year, the preliminary
criminal investigation was expanded and Michal was included. There appeared to be a clear relation of
cause and effect between the two events.
The
foregoing meant that neither Mrs. Ivcher nor her daughter, Michal, could enter
Peruvian territory. Therefore, it was
not possible to convene the shareholders’ meeting and there was no one to
represent the shares owned jointly through marriage.
The Winter brothers filed an action for amparo against the judges
who had decided in favor of Mrs. Ivcher and her daughter, Michal, requesting
that their mandates should be annulled; this is prohibited by Article 139 of
Peru’s Constitution, which establishes that no one may intervene in a case
which is pending before a jurisdictional organ, or contest decisions that have
the authority of res judicata.
He was also aware that during the shareholders’ meeting of
November or December 1999, which was not convened publicly and did not include
Mr. Ivcher, the minority shareholders, disregarding the necessary quorum for
commencing meetings and voting established in Peru’s General Company Law,
increased the equity capital, which meant that the percentage of share capital
held jointly through marriage was reduced from approximately 53% to 38%. As a result, Mr. Ivcher Bronstein held a
minority of the shares. In his opinion,
this agreement is null and contrary to the law.
There are two criminal charges against him, because he had been a
Director of the Company. As a result,
he was prohibited from leaving the country for a year, his property could be
subject to “eventual” embargos and the prosecutor’s charge requested a
five-year term of imprisonment. He
could suffer wrongful conviction, as in the case of Rosario Lam and Julio
Sotelo. He had never been involved in
criminal proceedings previously.
All the above-mentioned criminal proceedings were instituted
through charges filed by the Winter brothers and Remigio Morales Bermúdez,
another minority shareholder of the Company.
h) Testimony
of Fernando Rospigliosi Capurro, sociologist and journalist
He published a book entitled “El
Arte del Engaño: Las Relaciones entre los Militares y la Prensa” (The Art
of Deceit: Relations between members of the Army and the Press) on the
situation of Peru in recent years.
Since the 1992 coup, he has received telephone calls with death
threats, faxes where his name appeared on lists of people who, supposedly, were
going to be assassinated and, ultimately, threats via e-mail. There had also been slander, libel and
threat campaigns in anonymous letters and in the sensationalist press,
manipulated by the Intelligence Services, where he was accused of being a
traitor to his country, a terrorist and a criminal. All this was related to his publications, which regularly
referred to military issues, the intelligence services, cases of corruption and
human rights violations. For example,
the same day that he published articles on the Colina Group, a death squadron,
he received a telephone call with a death threat.
The threats generally came from the Armed Forces Intelligence
Services. There was a period when they
sent faxes to various journalists and television programs that usually
investigated military topics. The fax
number from which they had been sent appeared on one of them; following a
journalistic investigation, it was determined that it belonged to a company
owned by Colonel Rubén Wong. Even though this evidence existed, neither the
Office of the Prosecutor nor any other body brought the corresponding judicial
action. Starting on March 27, 1998, and
for the following eight months, the journalists, Angel Páez, head of the
investigation unit of the newspaper La
República, José Arrieta, who had been head of the investigation unit of Frecuencia Latina, and he himself, who
had been the editor of security matters for the weekly magazine, Caretas, and a columnist of La República, were accused of being
traitors to their country and terrorists, because they had allegedly attacked
the Armed Forces and Mr. Montesinos.
They obtained favorable decisions from “two of the few honest judges of
the Judiciary.” Judge Greta Minaya
signed the decision on May 10, and it was published on the following day, May
11. On May 12, she was transferred to
another post without any reason. The
other judge issued a similar decision, signed her report on May 12, published
it the same day, and on May 13 was also transferred.
With regard to the campaign to discredit him, the sensationalist
press was direct influenced by the Armed Forces. It was proved that several headlines had been sent, via fax, to
one of these sensationalist newspapers from the office of Mr. Bresañe, who was
in charge of public relations for Army Headquarters. The same headlines appeared simultaneously in the newspapers,
which made it evident where they had come from. Furthermore, a group of workers
from El Chato resigned and denounced,
with evidence, that the owner of this newspaper had received almost US$6.000,00
(six thousand U.S. dollars) for each headline he published; these was sent to
the newspaper, which then had to invent the corresponding news article. The
idea was to exhibit these newspapers like posters at the sales points.
Another method used was the publication of an apocryphal
newspaper, entitled República. To do
this, they copied the typography and logotype of the newspaper La República and began to give away
copies in which they attacked the journalists and owner of the original
paper. Investigations conducted by a
State institution showed that this newspaper was edited and distributed through
two sensationalist newspapers involved in the campaign. Despite having identified the source, no
prosecutorial or judicial investigation was ever conducted, even though
publishing an apocryphal newspaper is a crime.
It was well known that there was considerable interest in
controlling the television. To do this,
economic pressure was put on the companies. The Office of the Superintendent of
Tax Administration was particularly strict with those who criticized the
Government, and extremely liberal with those who did not. The State was the most important source of
publicity in 1999 and the first half of 2000, owing to the crisis and the
recession, but it was used for political purposes and to put pressure on the
media; those who favored the Government were given privileged information and
the media that was critical did not even receive information that should be
public.
The actions of the Judiciary also had an intimidating effect on
the other owners of media, who were
frightened when one of them was deprived of the ownership of his medium.
Such cases occurred systematically and not in isolation. The plan for the 1989 coup, which did not
happen until 1992, stated that it was necessary to coordinate “self-censorship
and the permitted frame of reference [at the time of the coup], with those
responsible for the media, entrepreneurs and promoters.” The Octavio Plan, the Bermuda Plan and the
Narval Plan had been executed since December 1996. One of the results of the complaints about these plans in the
press was the search for those who had “leaked” information to the press. The most obvious consequences were the
torture of Intelligence agent Leonor La Rosa and the dismembering of agent
Mariela Barreto. These were concrete, not theoretical, plans to apply a policy
of control over the media. There were
various other examples, similar to those mentioned above.
From the moment the Intelligence Service, which was the apparatus
that controlled these actions, began to disintegrate, the situation of freedom
of expression began to improve in Peru.
There has been an opening up.
However, it is evident that there is still considerable influence over
information policies.
Expert
report of Samuel Abad Yupanqui, Professor of Constitutional Law of the
Pontifical Catholic University of Peru and Defense Counsel of the Peruvian
Office of the Ombudsman, specialized in constitutional matters
When Mr. Ivcher Bronstein was granted nationality in 1984, Law No.
9148 was in force, and Article 4 established that nationality was granted
through a “supreme resolution”, but only becomes effective when the nationality
title is acquired, after the original nationality has been renounced in a
public deed. Once the said resolution
has been decreed, the Migration and Naturalization Directorate cannot refuse to
issue the title.
Mr. Ivcher was deprived of his nationality through “Directorial
Resolution” No. 117 of 1997, published in the official gazette El Peruano of July 13, 1997. In Peru, there had never before been a case
of a nationality title being cancelled.
The said “directorial resolution” was an administrative act that
rescinded Mr. Ivcher’s Peruvian nationality title, based on three
elements. First, a report prepared by
a department of the Ministry of the Interior, which concluded that the file on
the adquisition of nationality procedure did not exist in the archives of the
Ministry of Foreign Affairs, or in those of any other organ of the public
administration. Second, the finding
that the legal document where the original nationality was renounced
corresponded to 1990, and that, therefore, there was a lack of consistency
between this fact and the acquisition of nationality six years previously. Third, that the renunciation had not been established
before the competent authorities of the country of origin. Consequently, it was considered that Mr.
Ivcher had not respected the provisions that were in force and had failed to
comply with essential steps of the legal procedure, and this resulted in the
invalidity of the nationality title and deprived it of legal effect. The causes established in article 12 of the
Regulation to the Nationality Law were never expressly invoked.
The acquisition of Peruvian nationality is regulated by three provisions
of the Constitution in force.
Nationality is recognized as a fundamental right. Article 52 states that Peruvians by birth
are those born in the territory of the Republic, and by consanguinity, those
born to a Peruvian father or mother.
Nationality by option also exists; this occurs when someone who is not
Peruvian marries a Peruvian national.
Finally, nationality may be acquired by naturalization.
Article 53 of the Constitution stipulates that nationality can
only be lost by express renunciation before the Peruvian authorities. The Constitution states that the legislation
should establish the form of acquiring or recovering nationality.
Nationality Law, No. 26,574, of January 11, 1996, is currently in
force. This determines the competent
organ for granting or canceling nationality, the procedure and the
requirements. This law also has a
regulation that details the requirements for acquiring nationality and
establishes how it is lost. Nationality
can only be lost by express renunciation before the Migration Directorate or on
the grounds established in article 12 of the regulation to the Nationality
Law. These include public interest and
national interest and also acts that could affect national security. According to Supreme Decree No. 00497 of May
25, 1997, the fact that national security is affected constitutes a reason for
cancellation, but this is not reflected in the Constitution, which only
mentions loss due to renunciation before the Peruvian authorities. Similarly, article 15 of the regulation
indicates that the President of the Republic may cancel naturalization, without
stating the cause, when national security so requires, a very broad and general
concept, that could make the right to nationality meaningless.
The expansion of the grounds for losing nationality contained in
the said regulation is unconstitutional.
Since the above-mentioned supreme decree “does not withstand
constitutional examination”, petitions to have it annulled were filed through
popular action, but were rejected by the Public Law Chamber.
Mr. Ivcher acquired Peruvian nationality through a “supreme
resolution”, and the decision that annulled his nationality title was a
“directorial resolution”. Within the
structure of the Peruvian legal system there are differences between these
administrative acts. The “supreme
resolution”, issued by the Minister and signed by the President of the
Republic, ranks highest; it is followed by the “ministerial resolution” and
then the “deputy ministerial resolution”, and lastly, the “directorial
resolution”. Consequently, a
“directorial resolution” cannot disregard what has been established in a
“supreme resolution”. If it does, it
becomes an invalid legal act.
In Peru, administrative acts are regulated by the Administrative Procedures
Law, articles 109 and 110 of which establish the possibility of declaring de oficio that an act is invalid when it
suffers from a presumption of invalidity, but also establishes a period of six
months to do so. In this case, the
annulment decision was blatantly outside this period, because 13 years had
elapsed and also, if it had been executed within the legal period, a superior
official should have declared the invalidity.
The consequences of the loss of an administrative file may be
considered from two angles: first, if the file is being processed and second,
if it has already been closed. In the
latter case, there is an administrative act that enjoys the presumption of
legality and right of execution and all the other classic presumptions that
administrative law recognizes; therefore, reconstructing it cannot generate any
great consequences. The Administrative
Procedures Law establishes sanctions for the loss of files, although none were
ordered in this case.
On April 24, 1998, the Constitutional Court concluded that the
complaint filed by Mr. Ivcher was inadmissible, because the administrative
remedies had not been exhausted. The
“directorial resolution” that annulled the nationality title was the way to
annul an administrative act and, in accordance with the law, when an
administrative act is annulled, the administrative remedy is exhausted.
On June 24, 1997, Resolution No. 399 of the Judiciary’s Executive
Committee was published; it granted the Constitutional and Social Chamber of
the Supreme Court the power to remove and appoint the judges of the public law
chambers. This meant that, as of that
time, jurisprudence was absolutely questionable, because there was no guarantee
of effective legal protection. Owing to these appointments, the right to a
natural judge was affected, because some of the competencies of the different
courts were altered. In this context,
it is important to remember that the resolution that annulled Mr. Ivcher’s
nationality title was dated July 13, 1997.
The Office of the Ombudsman published a report in which it
concluded that the “directorial resolution” was null de jure, because it contradicted the Constitution and affected the
right to nationality, inasmuch as there had not been any renunciation;
therefore, it violated the principle of legality and generated legal
uncertainty. This report was
transmitted to the Ministry of the Interior, but had no effect other than
providing information on the antecedents to the case.
Moreover, the precautionary measure issued in favor of the Winter
brothers granted them the administration of Channel 2, and, thereby, gave
greater weight to the case. There was a
legal excess, because, basically, the precautionary measure constituted a judgment.
The legal provision that reserves the ownership of shares in
television companies to nationals appears in Legislative Decree No. 702, in the
context of the 1979 Constitution.
Today, the 1993 Constitution is based on another conception; its article
63, places the investments and properties of foreigners and nationals in the
same conditions. However, the previous
norm subsists, because it has been recognized by a judgment of the Supreme
Court, issued as a result of a popular action.
This is not coherent with the Constitution in force.
VII
evidence
ASSESSMENT
63. Before examining
the evidence it has received, the Court will define its general criteria for
the evaluation of evidence and will make some observations that are applicable
to this specific case, most of which have been developed previously in the
Court’s jurisprudence.
64. Article 43 of the
Rules of Procedure of the Court stipulates that
[i]tems of evidence
tendered by the parties shall be admissible only if previous notification
thereof is contained in the application and in the reply thereto [...]. Should
any of the parties allege force majeure, serious impediment or the emergence of
supervening events as grounds for producing an item of evidence, the Court may,
in that particular instance, admit such evidence at a time other than those
indicated above, provided that the opposing party is guaranteed the right of
defense.
65. In an international
tribunal such as the Court, the purpose of which is the protection of human
rights, the procedure has special characteristics that distinguish it from
proceedings under domestic law. The
former is less formal and more flexible than the latter, although this does not
mean that it fails to ensure legal certainty and procedural fairness between
the parties6.
66. As the Court has
also indicated, determining a State’s international responsibility for the
violation of human rights requires greater flexibility in evaluating the
evidence provided to the Court, in accordance with the rules of logic and based
on experience7.
67. Regarding the
procedures for offering evidence, the Court has said that
the procedural system
is a means of carrying out justice and […] this cannot be sacrificed in favor
of mere formalities. Within certain
limits of time and reason, certain omissions or delays in the observance of the
procedures, may be exempted, if an adequate balance between justice and legal
certainty is maintained8.
68. In this case, the
State did not present any evidence for the defense at the procedural
opportunities indicated in article 43 of the Rules of Procedure. In that respect, the Court considers, as it
has in other cases, that, in principle, it is possible to presume that the
facts set out in the application about which the State has kept silent are
true, provided that conclusions consistent with such facts may be inferred from
them9.
69. Based on the
foregoing, the Court will proceed to examine and evaluate all the elements that
comprise the pool of evidence in this case, in accordance with the rule of
sound criticism, which will allow the judges to appraise and establish the
truth of the alleged facts10.
70. In particular, with
regard to the various newspaper articles contributed by the Commission, the
Court reiterates that, although they may not be considered documentary
evidence, they are important for two reasons: they corroborate the information
offered in some of the evidentiary elements and confirm that the facts referred
to are public and generally known11. Therefore, the Court adds those articles to
the pool of evidence as an appropriate instrument for verifying the truth of
the facts of the case, in conjunction with the other elements contributed.
71. The
documents provided by the Commission during the public hearing were presented
after the statutory time limit had elapsed.
The Court has maintained that the exception established in Article 43 of
the Rules of Procedure is applicable only in the case when the proponent
alleges force majeure, grave impediment or supervening events12.
However, although the Commission did not demonstrate such circumstances
in this case, the Court admits them, in application of the provisions of
Article 44(1) of the Rules of Procedure, as it considers that they are useful
for the evaluation of the facts.
72. The 1993
Constitution of Peru, promulgated on December 29, 1993, Decree-law 26.111 (Law
on General Norms of Administrative Procedure), “Supreme Resolution” No.
254-2000-JUS of November 15, 2000 (Accepting the recommendations formulated in
report 94/98 issued by the Inter-American Commission on Human Rights),
“Ministerial Resolution” No. 1432-2000-IN
of November 7, 2000 (Annulling R.D. No. 117-97-IN-050100000000, which canceled
the Peruvian nationality title), Legislative Resolution No. 27401 of January
18, 2001 (repealing Legislative Resolution No. 27152) (supra para. 61) and the evidence contributed by the Commission on
expenses and costs are considered useful in order to decide on the instant case
and, therefore, are added to the pool of evidence, in accordance with the
provisions of Article 44(1) of the Rules of Procedure (supra para. 60).
73. Regarding the
documentary evidence contributed by the Commission, the Court accords probative
value to the documents submitted in the application and at the public hearing
that were not contested or challenged, or their authenticity doubted.
74. With regard to the
testimonies given in this case, the Court admits them only to the extent that
they agree with the purpose of the interrogation proposed by the Commission,
and it admits Samuel Abad Yupanqui’s expert report, with regard to his
knowledge of constitutional issues relating to nationality and due legal
process.
75. As for Mr. Ivcher
Bronstein’s declaration, since he is the alleged victim and has a direct
interest in this case, the Court believes that his statements cannot be
evaluated on their own, but rather in the context of all the evidence in the
proceeding. However, Mr. Ivcher’s
declarations should be considered to have a special value, to the extent that
they may provide greater information on certain facts and alleged violations
committed against him13. Therefore, the statement referred to is
incorporated into the pool of evidence with the above-mentioned considerations.
VIII
Proven
Facts
76. From examining the
documents, the statements of the witnesses, the report of the expert and the
evidence provided by the Inter-American Commission during the proceedings, the
Court considers that the following facts have been proved:
a) Baruch
Ivcher Bronstein, of Israeli origin, was granted Peruvian nationality through
“Supreme Resolution” No. 0649/RE of November 27, 1984, issued by the President
of the Republic of Peru and also signed by the President of the Council of
Ministers and the Minister for Foreign Affairs14;
b) on
December 6, 1984, Mr. Ivcher Bronstein renounced his Israeli nationality15;
c) on
December 7, 1984, the Minister for Foreign Affairs of Peru issued Mr. Ivcher
nationality title No. 00464416;
d) Mr.
Ivcher exercised rights that arise from Peruvian nationality during approximately
13 years17;
e) Peruvian
legislation in force in 1997 established that, it was necessary to be a
Peruvian national in order to own companies with licenses for television
channels in Peru18;
f) in
1986, Mr. Ivcher was the majority shareholder in the Company, which operated
Peruvian television’s Channel 219.
g) as
of 1992, Mr. Ivcher owned 53,95% of the Company’s shares, and the Winter
brothers, owned 46%20;
h) in
1997, Mr. Ivcher Bronstein was a Director and Chairman of the Board of the
Company and was authorized to take decision of an editorial nature with regard
to Channel 2’s programming21;
i) in
its program, Contrapunto, Channel 2
broadcast the following investigative reports of national interest:
i.1 on
April 6, 1997, it denounced the alleged torture of agent Leonor La Rosa by
members of the Army Intelligence Service and the alleged assassination of agent
Mariela Barreto Riofano22;
i.2 on
April 13, 1997, it denounced the extremely high revenues that it was alleged
that Vladimiro Montesinos Torres, advisor to the Peruvian Intelligence Service
had obtained23;
j) as
a result of the investigative reports broadcast on the program, Contrapunto, Mr. Ivcher was subjected to
threatening actions, including: the visit to the Channel 2 offices of members
of the Treasury Police Force Directorate and other persons, who recommended
that he change the editorial line24;
flights of alleged army helicopters over the installations of his factory, Productos Paraíso del Perú25;
and the opening of a proceeding against him by the National Directorate of
Fiscal Police on May 23, 199726;
k) on
May 23, 1997, the Armed Forces Joint Command issued official communiqué No. 002-97-CCFFAA, denouncing Mr. Ivcher for
conducting a defamatory campaign of libel with the aim of slandering the Armed
Forces27;
l) the
same day, May 23, 1997, the Peruvian Executive issued Supreme Decree No.
004-97-IN, which regulated Nationality Law No. 26574, and established the
possibility of canceling the nationality of naturalized Peruvians28;
m) this
supreme decree was contested twice, by:
m.1)j an
action for amparo filed by Mr. Ivcher’s lawyer, in a brief of May 31, 1997,
before the Public Law Chamber of first instance against the Ministry of the
Interior, requesting that articles 12
and 15 of the Regulation
to Nationality Law No. 26574 should be
declared inapplicable29. This
action for amparo was declared inadmissible on June 18, 1997; Mr. Ivcher
appealed this decision30. The appeal was filed before the
Temporary Commercial Public Law Chamber of second instance, which on November
7, 1997, declared the nullity of the preceding actions, owing to an error in
the notification of the defendant31. Returned to the first instance on February
20, 1998, Judge Percy Escobar again declared that the said action for amparo
was inadmissible 32; and
m.2)
two petition for popular action filed on June 3, 1997: one submitted by
César Raúl Rodríguez Rabanal, Julio S. Cotler Dolberg, Luis Fernando de la Flor
Arbulú and Alberto Alfonso Borea Odría before the Public Law Chamber of first
instance against the State, requesting that the general effects of articles 12,
13, 15 and 27 of the supreme decree that regulated Nationality Law No. 2657433 be declared inadmissible; and another
filed by Fernando Viaña Villa, Luis Iberico Núñez and Iván García Mayer against
the Ministry of the Interior, requesting that articles 12 and 15 of the said
decree be declared unconstitutional34.
The two complaints were joined35, and
on January 30, 1998, they were declared inadmissible36;
n) the
composition and attributions of several judicial tribunals were modified:
n.1) on
June 17, 1997, the Judiciary’s Executive Committee modified the composition of
the Constitutional and Social Chamber of the Supreme Court of Justice of Peru,
through Administrative Resolution No. 393-CME-PJ37;
n.2) on
June 23, 1997, the Judiciary’s Executive Committee granted the Constitutional
and Social Chamber of the Supreme Court of Justice of Peru the power to create,
on a “[t]emporary” basis, higher and temporary public law chambers, and also to
“appoint and/or ratify” the members38;
and
n.3) on
June 25, 1997, the Constitutional and Social Chamber of the Supreme Court of
Justice of Peru created temporary commercial public law and administrative law
chambers and courts in the Lima Judicial District; removed the member judges
who were experts in public law from their positions and, in their place,
appointed new magistrates and judges, including Percy Escobar as judge of the
First Temporary Commercial Public Law Court39;
ñ) prior
to June 1977, Percy Escobar worked as a court secretary and a criminal judge
and had received several disciplinary sanctions in the exercise of his
functions40;
o) the
week prior to July 13, 1997, Channel 2 announced that on that day it would
present an investigative report on the unlawful recording of telephone
conversations involving candidates of opposition parties, judges and
journalists, among others. This program
was transmitted on the said date41;
p) on
July 10, 1997, the Director General of the National Police Force submitted the
conclusions of Report No. 003-97-IN/05010, issued the same day by the Migration
and Naturalization Directorate, according to which the file that supported Mr.
Ivcher’s nationality title had not been found in the Directorate’s archives and
there was no evidence that he had renounced his Israeli nationality42;
q) on
July 11, 1997, “Directorial Resolution” No. 117-97-IN-050100000000, signed by
the Director General of Migration and Naturalization was issued, annulling the
Peruvian nationality title of December 7, 1984, issued to Mr. Ivcher
Bronstein. This resolution was
published on July 13 that year in the official gazette El Peruano43;
r) The Migration and Naturalization Directorate did
not contact Mr. Ivcher before issuing the “directorial resolution” which
annulled his nationality title, so that he could submit his opinion or any
evidence he might possess44;
s) the
following legal remedies were filed concerning the administration of the
Company:
s.1) action
for amparo filed by the minority shareholders before the First Temporary
Commercial Public Law Court (first instance) on July 11, 1997, to annul the Mr.
Ivcher’s purchase of the Company’s shares45;
s.2) brief
‘modifying’ this action for amparo by the minority shareholders of July 14,
1997, and, on the same day, submission of a request for amparo against Mr.
Ivcher, the Ministry of the Interior and the Ministry of Transport,
Communications, Housing and Construction, so that they would order the protection
of the property rights of the Company that corresponded to the said
shareholders46. On September 5, 1997, the court of first
instance declared the request for amparo admissible47.
s.3) request
for precautionary measures filed by the minority shareholders before the First
Temporary Commercial Public Law Court (first instance) on July 14, 1997, in
order to suspend Mr. Ivcher from exercising his rights as majority shareholder
of the Company and to suspend his appointment as a director and chairman of the
company, to convene judicially an extraordinary shareholders’ meeting to elect
a new board, and to prohibit the transfer of his shares48. On August 1, 1997, Judge Percy
Escobar granted this measure and also revoked the Mr. Ivcher’s appointment as a
director and granted the claimants the provisional administration of the
Company, until the appointment of a new board49;
s.4) request
for the annulment of all previous judicial acts in the precautionary
proceedings, filed by Mrs. Ivcher before the Temporary Commercial Public Law
Chamber (second instance) on August 28, 199750. On September 12, 1997, this Chamber declared
the “appearance” inadmissible and the annulment unfounded51.
t) the
following recourses were filed against “Directorial Resolution” No.
117-97-IN-050100000000, which annulled Mr. Ivcher’s nationality title:
t.1) action
for amparo filed by Mr. Ivcher’s lawyer on July 14, 1997, before the First
Temporary Commercial Public Law Court (first instance) against the Director
General of Migration and Naturalization and the public attorney responsible for
judicial affairs of the Ministry of the Interior, requesting that the
“directorial resolution” be declared null52.
On August 14, 1997, Judge Percy Escobar declared the action for amparo
inadmissible53. This decision was appealed and on October
24, 1997, the Temporary Commercial Public Law Chamber (second instance)
declared that all the judicial acts in this process were null and void, owing
to an error in the notification of the complaint, and returned the case file to
the first instance54. There, on November 12, 1997, Judge Percy
Escobar once again declared that the request for amparo was inadmissible55.
This judgment was appealed and the case file was again raised to the
second instance, where the judgment that had been appealed was confirmed on
December 22, 199756. Lastly, on April 24, 1998, the
Constitutional Court confirmed that judgment57;
t.2) request
for precautionary measures before the First Temporary Commercial Public Law
Court (first instance), filed on
July 14, 1997, in order to suspend the effects of the “directorial resolution”
until the conclusion of the amparo process58. On August 15, 1997, Judge Percy Escobar,
head of this Court, declared the request for precautionary measures inadmissible59.
This decision was appealed and on September 11, 1997, the Temporary
Commercial Public Law Chamber (second instance) declared that all the judicial
acts in the process were null and void, owing to an error in the notification
of the complaint and returned the case file to the first instance60.
Subsequently, on October 16, 1997, Judge Percy Escobar again declared
the request for precautionary measures inadmissible61;
u) on
September 19, 1997, the Winter brothers assumed control of Channel 262;
v) after
the Winter brothers assumed control of Channel 2, the journalists who worked on
the program Contrapunto were
prohibited from entering the Channel63
and the program’s editorial line was modified64;
w) on
September 26, 1997, a general meeting of the Company’s shareholders was held,
attended by the Winter brothers and Remigio Morales Bermúdez Pedraglio, all of
them minority shareholders, at which the members of the board were removed and
new members were elected65;
x) Mr.
Ivcher’s wife filed various civil proceedings in order to obtain recognition of
her rights as co-owner of her husband’s shares in the Company. These proceedings were unfruitful66;
y) Mr.
Ivcher Bronstein, his family, lawyers, managers and clients of his companies
were the subject of criminal complaints67
and other acts of intimidation68.
z) on
November 7, 2000, the State annulled the “directorial resolution” that annulled
Mr. Ivcher’s nationality title69;
aa) on
November 15, 2000, Peru agreed to comply with the recommendations formulated in
Report No. 94/98 of the Inter-American Commission70; and
bb) the
Inter-American Commission submitted elements to justify the expenses and costs
of processing this case and the Court retained the right to evaluate them71.
IX
Prior
considerations on merits
77. Having defined the proven facts that it
considers relevant, the Court must examine the Inter-American Commission’s
arguments, in order to decide whether or not the proven facts engage the
State’s international responsibility, owing to the alleged violation of the
American Convention, and determine the legal consequences of the alleged
violations, if it is determined that the case has the pertinent merits. However, the Court believes that it should
first examine the arguments submitted by the Commission concerning the State’s
failure to appear in the instant case.
*
* *
78. As we have said
previously (supra para. 44), the
State did not submit any defense nor did it attend the hearings to which it was
summonsed72. In this respect the Commission stated that:
a) the
Inter-American Court declared that Peru’s purported “withdrawal” of the
contentious jurisdiction, by which it tried to prevent this Court from hearing
all the cases in which the State had not answered the application, was
inadmissible; despite this decision,
Peru did not answer the Commission’s arguments and it did not attend the
hearing of the instant case. Although
the American Convention does not regulate this possibility, Article 27 of the
Rules of Procedure is clear when it establishes that, should a party fail to
appear, the Court shall, on its own motion, complete the consideration of the
case;
b) faced
with the inexistence of a precedent in the inter-American system, we can take
into consideration the provisions of article 53(1) and 53(2) of the Statute of
the International Court of Justice, which provides that whenever one of the
parties does not appear before the Court or cannot defend its case, “the other
party may request [the Court] to decide in favor of its application” and the
jurisdictional organ must evaluate if this has sufficient grounds, de jure and de facto, in order to
declare it admissible; and
c) in
order to decide if an application has legal merits, the Court is not restricted
to the arguments of the parties, and the absence of one of them has fewer
repercussions for the resolution of the case.
Since the Court knows the law and is not restricted to the legal
arguments of the parties, the State’s failure to appear does not affect the
Court’s capacity to determine the legal merits of the application. In this hypothesis, it would be more
difficult to decide if the application is admissible with regard to the facts,
because the definition of these may depend on the parties. However, in the case sub judice neither the facts nor the law are contested.
*
* *
79. Article 27 of the
Rules of Procedure of the Court establish that
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
necessary 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 stage.
80. This Court observes
that the appearance of the parties to the proceeding is a procedural duty and
not a legal obligation, because the failure of the parties to take part in the
proceedings does not result in any precise sanction against this omission, nor
does it affect the evolution of the proceeding, but rather it could produce a prejudice
for the party that decides not to exercise fully his right to defend himself or
to perform the procedural actions that are in his interest, in accordance with
the principle audi alteram partem73.
81. With regard to the
arguments presented by the Commission, it is sufficient to say that the Court
has brought the case to a completion, on its own motion, and has evaluated the
pool of evidence and the arguments submitted during the proceedings and, on
this basis, the Court exercises its jurisdictional functions and delivers
judgment74.
82. As has been
recognized in international jurisprudence, the absence of one party at any
state of the case does not affect the validity of the judgment75, so that, pursuant to Article 68(1) of
the Convention, Peru’s obligation to comply with the decision of this Court in
the instant case is in force76.
X
Violation
of Article 20
(Right
to Nationality)
The Commission’s arguments
83. With regard to
Article 20 of the Convention, The Commission argues that:
a) in
“Supreme Resolution” No. 0649-RE, of November 27, 1984, the President of Peru
resolved: a) to grant Peruvian
nationality to Mr. Ivcher; b) to record this in the respective register; and c)
to issue him the corresponding nationality title, once he had renounced his
original nationality in a public instrument;
b) on
December 6, 1984, Mr. Ivcher Bronstein renounced his Israeli nationality in a
document drawn up before a public notary and, the following day, after having
officially received the document with the renunciation of Israeli nationality,
the Minister for Foreign Affairs of Peru issued him the nationality title,
which was also signed by the Minister Counselor Director of Nationalization and
the Deputy Minister and Secretary General;
c) according
to Articles 20 and 29(b) of the American Convention and articles 2(21) and 53
of Peru’s Constitution, no authority has the power to deprive a Peruvian of
nationality. According to the domestic
law of Peru, Peruvian nationality may only be lost by a voluntary act of
express renouncement. Therefore, any
procedure that deprives a Peruvian citizen of his nationality is arbitrary;
d) Mr.
Ivcher Bronstein never renounced his Peruvian nationality, but his nationality
title was revoked and, in consequence, he was deprived of the administration of
Channel 2 and all his fundamental rights as a Peruvian citizen;
e) the
effects of the annulment of the nationality title are similar to those of the
loss of nationality; the most important of those effects occurred on August 1,
1997, when, based on the above-mentioned annulment, Judge Percy Escobar granted
the precautionary measures requested by the minority shareholders (supra para. 76.s.3), thus violating
other “rights embodied in the American Convention: the right to property and the right to freedom of expression”;
and
f) the
penalty that Peru considered imposing on Mr. Ivcher Bronstein arose from an
“act of the State itself”, because the reason invoked for the annulment of the
nationality title was that the nationalization file, which it is the State’s
obligation to conserve, had not been found in the official archives; the loss
could not produce consequences for Mr. Ivcher Bronstein.
The State’s arguments
84. Peru did not submit
any argument on this point, because it did not appear before the Court in the
case sub judice (supra para. 78).
*
* *
The considerations of the Court
85. Article 20 of the
American Convention establishes that:
1. Every person has the right to a nationality.
2. Every person has
the right to the nationality of the State in whose territory he was born, if he
does not have the right to any other nationality.
3. No one shall be arbitrarily deprived of his
nationality or of the right to change it.
86. The right to
nationality is recognized by international law. This Court considers that it is a right of the individual and has
stated that
[n]ationality is an
inherent right of all human beings. Not
only is nationality the basic requirement for the exercise of political rights,
it also has an important bearing on the individual’s legal capacity77.
87. With regard to Article 20 of the
Convention, the Court has established that this includes two aspects:
[t]he right to a
nationality provides the individual with a minimum measure of legal protection
in international relations, through the link his nationality establishes
between him and the State in question;
and second, the protection therein accorded the individual against the
arbitrary deprivation of his nationality, without which he would be deprived
for all practical purposes of all his political rights as well as of those
civil rights that are tied to the nationality of the individual78.
88. Although it
has traditionally been accepted that the determination and regulation of
nationality are the competence of each State, as this Court has stated, the
evolution in this matter shows that international law imposes certain limits on
a State’s discretionality and that, in the regulation of nationality, it is not
only the competence of States, but also the requirements of the integral
protection of human rights that intervene79.
89. Peru’s domestic
legislation recognizes the right to nationality. Thus, according to Article 2(21) of the Peruvian Constitution,
“[e]very person has the right [...] to his nationality. No one may be deprived of it”. In the same way, Article 53 of the
Constitution provides that “Peruvian nationality is not lost, unless it is
expressly renounced before the Peruvian authorities”.
90. The Court observes
that it has been proved that Mr. Ivcher was an Israeli citizen until 1984, and
that, subsequently, he acquired Peruvian citizenship by naturalization (supra para. 76.a). It should be recalled that both the American
Convention and Peru’s domestic legislation recognize the right to nationality
without making a distinction about the way in which it was acquired, either by
birth, naturalization or some other means established in the law of the
respective State.
91. In this regard, the
Court has declared that
[n]ationality can be
deemed to be the political and legal bond that links a person to a given state
and binds him to it with ties of loyalty and fidelity, entitling him to
diplomatic protection from that State.
In different ways, most States have offered individuals who did not
originally possess their nationality the opportunity to acquire it at a later
date, usually, through a declaration of intention made after complying with
certain conditions. In these cases,
nationality no longer depends on the fortuity of birth in a given territory or
on parents having that nationality; it is based on a voluntary act aimed at
establishing a relationship with a given political society, its culture, its
way of life and its values80.
92. The International
Court of Justice has also referred to this issue:
Requesting and
obtaining [naturalization] is not a common act in the life of an
individual. It entails the rupture of a
relation of fidelity and the establishment of another relation of fidelity. It
entails far-reaching consequences and a profound change in the destiny of the
persons who obtains it81.
93. In this case, it is
proved that Mr. Ivcher Bronstein acquired the title of Peruvian nationality on
December 7, 1984, after he had renounced his Israeli nationality (supra para. 76.b and c). This act linked both Mr. Ivcher and his
family to the political society, the culture, the way of life and the values of
Peru.
94. It has also been
proved that on July 11, 1997, “Directorial Resolution” No.
117-97-IN-050100000000, signed by the Director General of Migration and
Naturalization, annulled this nationality title, stating that there had been
“substantial omissions that invalidate[d] it [ipso jure], because the required, prior renunciation of his
nationality before the competent Peruvian authorities had not been confirmed,
and it had not been confirmed in writing that he had done so before his country
of origin”82.
95. From the foregoing,
it is evident that Mr. Ivcher did not expressly renounce his nationality, which
is the only way of losing it, according to the Peruvian Constitution, but was
deprived of it when his nationality title, without which he was unable to
exercise his rights as a Peruvian national, was annulled. Moreover, the procedure used to annul the
nationality title did not comply with the provisions of domestic legislation,
because, according to Article 110 of Peru’s Law on General Norms of
Administrative Procedures, a nationality title may only be annulled within the
six months following the date on which it was acquired (infra para. 109). Since this certificate was annulled in July
1997, 13 years after it had been granted, the State failed to comply with the
provisions of its domestic legislation and arbitrarily deprived Mr. Ivcher of
his nationality, violating Article 20(3) of the Convention.
96. Furthermore,
the authorities who annulled Mr. Ivcher’s nationality title did not have
competence. As it has been established
(supra para. 76.a), Mr. Ivcher Bronstein acquired Peruvian nationality through a
“supreme resolution” of the President, and his nationality title was signed by
the Minister for Foreign Affairs; however, he lost his nationality as the
result of a “‘directorial resolution’ of the Migration and Naturalization
Directorate”, which is undoubtedly of a lower rank than the authority that
granted the corresponding right (supra para.
76.q), and, consequently, could not
deprive the act of a superior of its effects.
Once again, this demonstrates the arbitrary character of the revocation
of Mr. Ivcher’s nationality, in violation of Article 20(3) de the American
Convention.
97. In view of the
foregoing, the Court concludes that the State violated the right to nationality
embodied in Article 20(1) and 20(3) of the American Convention, with regard to
Baruch Ivcher Bronstein.
XI
Violation of
Article 8
(Judicial
Guarantees)
The Commission’s arguments
98. With regard to
Article 8 of the Convention, the Commission alleges that:
a) the right to due process or the
“right to a procedural defense” is a guarantee applicable to all types of
judicial or administrative procedures that involve the determination of a right
and is fundamental to the rule of law;
b) in administrative and judicial
procedures where an individual’s rights and obligations are determined, a series
of specific guarantees are applicable with regard to his right to defense for
the protection of those rights;
c) Mr. Ivcher’s was deprived of his
nationality title arbitrarily. When the
resolution that annulled this title was issued, Mr. Ivcher was never summonsed,
he did not received any prior detailed communication on the matter being
examined by the authorities, with information on the corresponding charges, he
was not informed that the nationalization file had been mislaid, he was not
asked to submit copies in order to reconstruct it, nor was he allowed to
present witnesses to support his position; in brief, he was not allowed to
exercise the right of defense;
d) the act by which Mr. Ivcher was
deprived of his nationality title was time-barred, because the corresponding
resolution was issued when more than 13 years had elapsed since the title had
been granted, even though Peruvian legislation establishes that the public
administration’s authority to annul its resolutions extinguishes after six months,
calculated from the time those resolutions are adopted;
e) by modifying the composition of the
courts of law (supra para. 76.n), the
principle of the natural judge (juez
natural) was also altered and judges of questionable independence and
impartiality were appointed;
f) the different actions that Mr.
Ivcher filed in order to defend his rights were slow and ineffective, in
contrast to the promptness and effectiveness with which the actions filed by
the minority shareholders of the Company were processed; and
g) the administrative act annulling Mr.
Ivcher’s nationality title was issued by the Migration and Naturalization
Directorate, a body that was incompetent to do this, because the nationality
title had been issued by the Minister of Foreign Affairs of Peru, and only the
President of the Republic, as his superior in rank, was empowered to annul the
said administrative act by a “supreme resolution”.
The State’s arguments
99. Peru did not submit
any arguments on this issue, since it did not appear before the Court in the
case sub judice (supra para. 78).
*
* *
Considerations of the Court
100. 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 and 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 o
the charges against him;
c. Adequate time and means for the preparation o
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 this 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 in a higher
court.
A. Administrative procedure
101. As we have
established, the Migration and Naturalization Directorate, an administrative
body, was the authority that issued the “directorial resolution” that annulled
Mr. Ivcher Bronstein’s nationality title.
Consequently, the Court deems that, in the context of the administrative
procedure, it is pertinent to consider how Article 8 of the American Convention
applies to the facts of this case.
102. Although
Article 8 of the American Convention is entitled “Right to a Fair Trial”, its
application is not limited strictly to judicial remedies, “but to a series of
requirements that must be observed by the procedural bodies83” so that a person may defend himself
adequately against any act of the State that could affect his rights84.
103. The Court has
established that, although this article does not stipulate minimum guarantees
in matters which concern the determination of the rights and obligations of a
civil, labor, fiscal or any other nature, the minimum guarantees established in
paragraph 2 of the article should also apply to those categories and,
therefore, in that respect, a person has the right to due process in the terms
recognized for criminal matters, to the extent that it is applicable to the
respective procedure85.
104. Based on the
foregoing, the Court believes that both the jurisdictional organs and those of
any other nature that exercise functions of a substantially jurisdictional
nature have the obligation to adopt just decisions based on full respect for
the guarantee of due process established in Article 8 of the American
Convention86.
105. In this respect,
although Article 8(1) of the Convention alludes to the right of every person to
a hearing by a “competent tribunal” for the “determination of his rights”, this
article is also applicable in situations in which a public rather than a
judicial authority issues resolutions that affect the determination of such
rights87.
106. In this specific
case, there are sufficient elements to affirm that, during the administrative
proceedings that were conducted in order to prepare Report No. 003-97-IN/05010
(supra para. 76.p), the Migration and Naturalization Directorate did not inform Mr.
Ivcher that his nationalization file could not be found in the institution’s
archives, nor was he asked to present copies in order to reconstruct it; he was
not told about the charges of which he was accused, that is, that he had
adulterated this file and not complied with the requirement of renouncing his
Israeli nationality, and, lastly, he was not allowed to present witnesses to
support his position.
107. Despite the
foregoing, this Directorate issued the “directorial resolution” which annulled
Mr. Ivcher’s nationality title. This was the culmination of a process that, as
we have indicated, was conducted with the exclusive presence of the public
authorities, in particular the Migration and Naturalization Directorate, and
during which, Mr. Ivcher was prevented from intervening, fully informed, in all
the stages, despite being the person whose rights were being determined.
108. The Court also
emphasizes that Mr. Ivcher Bronstein acquired Peruvian nationality by a
“supreme resolution’’, and his nationality title was signed by the Minister for
Foreign Affairs; however, as indicated in the previous section (supra para. 76.q), Mr. Ivcher lost his
nationality as the result of a “directorial resolution”, which was undoubtedly
of lesser rank than the one granting him the corresponding right.
109. Lastly, the
authority that annulled Mr. Ivcher’s nationality title was not competent. This incompetence arises not only because of
its subordinate nature with regard to the authority that issued the
certificate, but from the text of the Peruvian legislation. Thus, article 110
of the single amended text of the Law of General Norms of Administrative
Procedures establishes that:
The annulment [...]
shall be declared by an official of a higher rank than the one that issued the
resolution to be annulled. In the case
of a supreme resolution, the annulment shall also be declared by a supreme
resolution.
110. These considerations
are sufficient, in the opinion of the Court, to declare that the procedure
conducted by the Migration and Naturalization Directorate did not meet the
conditions of due process required by Article 8(1) and 8(2) of the Convention.
B. Judicial procedure
111. In order to defend
his rights, Mr. Ivcher filed various recourses before the Peruvian courts of
law. On this point, the Court will
proceed to consider the application of Article 8 of the American Convention to
the facts of the instant case in the context of the judicial procedure.
112. One of the basic
principles about the independence of the judiciary is that every person has the right to a hearing by an
ordinary court, under the procedures established by law88.
Those courts must be competent, independent and impartial, according to
Article 8(1) of the American Convention89.
113. In the instant case,
it has been established that: a) a few weeks before the “directorial
resolution” that annulled Mr. Ivcher’s nationality title was issued, the
Judiciary’s Executive Committee modified the composition of the Constitutional
and Social Chamber of the Supreme Court of Justice (supra para. 76.n.1); b)
on June 23, 1997, the said Committee adopted a norm giving this Chamber the
power to create, on a “[t]emporary basis” superior chambers and courts of
public law, and also to “appoint and/or ratify” their members, which
effectively occurred two days later (supra
para. 76.n.2 and 3); c) the First
Temporary Commercial Public Law Court was established and Percy Escobar, who
had previously been a court secretary and criminal judge, was appointed as the
judge of this court (supra para.
76.n.3); and d) Judge Escobar heard
several of the recourses filed by Mr. Ivcher in defense of his rights as a
shareholder of the Company, and also those filed by the Winter brothers (supra para. 76.s.3 and 76.t).
114. The Court considers
that, by creating temporary public
law chambers and courts and appointing judges to them at the time that the
facts of the case sub judice
occurred, the State did not guarantee to Mr. Ivcher Bronstein the right to be
heard by judges or courts “previously established by law”, as stipulated in
Article 8(1) of the American Convention.
115. The foregoing leads
this Court to indicate that those judges did not meet the standards of
competence, impartiality and independence required by Article 8(1) of the
Convention.
116. Consequently,
the Court concludes that the State violated the right to a fair trial embodied
in Article 8(1) and 8(2) of the American Convention, with regard to Baruch
Ivcher Bronstein.
XII
Violation of
Article 21
(Right to
Private Property)
The Commission’s arguments
117. With regard to
Article 21 of the Convention, the Commission alleges that:
a) the right to property embodied in
the Convention guarantees the free exercise of the attributes of this,
understood to be the right to dispose of it in any legal way, possess it, use
it and prevent any other person interfering in the enjoyment of that
right:
b) the right to property includes all
of a person’s patrimonial rights, that is, those that affect both tangible and
intangible property of any value;
c) although Mr. Ivcher was not formally
deprived of his right to the property of the shares of the Company, in
practice, the rights that conferred the ownership of the actions on him were
suspended through judicial decisions and, therefore, he was arbitrarily deprived
of the exercise of the fundamental rights that such ownership implied;
d) for a shareholder of a commercial
company, the right to sell his shares and to participate in company decisions
by exercising his vote at shareholders’ meetings, and also to receive legally
and statutorily agreed dividends, are fundamental attributes of the right to
property;
e) the Peruvian authorities have not
only prevented Mr. Ivcher from exercising the ownership of the shares, but also
his wife, whose nationality was not in discussion;
f) the decision to deprive Mr. Ivcher
of his nationality and, subsequently, to prevent him and his family from
exercising their rights to property, are the result of the deliberate effort to
suppress his freedom of expression; and
g) the minority shareholders, exceeding
the administrative authority of the Company, proceeded to increase its share
capital in secret, without consulting Mr. Ivcher and without the quorum
established in the Company’s by-laws; in this way, they intended to become the
owners of 60% of the shares of the Company, so that they could take any
decision without requiring the agreement of Mr. Ivcher, who became a minority
shareholder.
The State’s arguments
118. Peru did not submit
any arguments on this issue, since it did not appear before the Court in the
case sub judice (supra para. 78).
*
* *
119. Article 21 of the American Convention
establishes that:
1. Everyone has the right to the use and enjoyment
of his property. The law may
subordinate such use and enjoyment to the interest of society.
2. No one shall be deprived of his property except
upon payment of just compensation, for reasons of public utility or social
interest, and in the cases and according to the forms established by law.
3. Usury and other form of exploitation of man by
man shall be prohibited by law.
120. Article 21 of the
American Convention recognizes the right to private property. In this respect, it establishes: a) that
[e]veryone has the right to the use and enjoyment of his property”; b) that
such use and enjoyment may be subordinated, by law, to “social interest”; c)
that a person may be deprived of his property for reasons of “public utility or
social interest and in the cases and according to the forms established by
law”; and d) that this deprivation shall be upon payment of just compensation.
121. Therefore,
the Court must evaluate whether the State deprived Mr. Ivcher of his property
and interfered in some way in his legitimate right to its “use and enjoyment”.
122. “Property”
may be defined as those material objects that may be appropriated, and also any
right that may form part of a person’s patrimony; this concept includes all
movable and immovable property, corporal and incorporeal elements, and any
other intangible object of any value.
123. From Mr. Ivcher’s
testimony, it may be concluded that, in 1985, he owned shares in the Company
and that, in 1986, they represented 49,53% of the capital. By 1992, his
participation amounted to 53,95%, and he was therefore the Company’s majority
shareholder. Obviously, this
participation in the share capital could be evaluated and formed part of its
owner’s patrimony from the moment of its acquisition; as such, that
participation constituted a property over which Mr. Ivcher had the right to use
and enjoyment.
124. To determine whether
Mr. Ivcher was deprived of his property, the Court should not restrict itself
to evaluating whether a formal dispossession or expropriation took place, but
should look beyond mere appearances and establish the real situation behind the
situation that was denounced90.
125. It has been proved
that in July 1997, Mr. Ivcher’s nationality title was annulled. Based on this act and, pursuant to the
legislation that required that owners of telecommunications media companies
should be of Peruvian nationality, in August 1997, Judge Percy Escobar: a) ordered a precautionary measure that
suspended the exercise of Mr. Ivcher’s rights as majority shareholder and
chairman of the Company and revoked his appointment as a director the Company;
b) ordered that an extraordinary general meeting of the shareholders of the
Company should be judicially convened in order to elect a new board and prevent
the transfer of Mr. Ivcher’s shares, and c) granted the minority shareholders
provisional administration of the Company until a new board was appointed (supra para. 76.s.3).
126. The consequences of
the precautionary measure ordered were immediate and evident: they prevented
Mr. Ivcher Bronstein from acting as director and chairman of the Company, so
that he could not continue directing the editorial line of Channel 2; he was
also deprived of the possibility of taking part in board meetings, where the
minority shareholders took important decisions, such as removing the members of
the board, including Mr. Ivcher, appointing new members and even increasing the
Company’s capital; finally, he could not transfer his shares, receive dividends
from them and exercise the other rights that corresponded to him as a
shareholder of the Company.
127. The International
Court of Justice has made a distinction between the rights of a company’s
shareholders from those of the company itself, indicating that domestic
legislation grants shareholders specific direct rights, such as receiving the
agreed dividends, attending and voting at general meetings and receiving part
of the assets of the company when selling their shares91.
This Court observes that the said precautionary measure obstructed Mr.
Ivcher’s use and enjoyment of such rights; also, when his wife, as co-owner of
her husband’s shares, tried to enforce those rights, the measures she took were
ineffective. Consequently, the Court
concludes that Mr. Ivcher was deprived of his property, in violation of the provisions
of Article 21(2) of the Convention.
128. The Court must now
determine whether the above-mentioned deprivation was in accordance with the
American Convention. In order for the
deprivation of the property of a person to be compatible with the right to
property embodied in the Convention, it should be based on reasons of public
utility or social interest, subject to the payment of just compensation, and be
restricted to the cases and according to the forms established by law.
129. In the instant case,
there is no evidence or argument to confirm that the precautionary measure
ordered by Judge Percy Escobar was based on reasons of public utility or social
interest; to the contrary, the proven facts in this case coincide to show the
State’s determination to deprive Mr. Ivcher of the control of Channel 2, by
suspending his rights as a shareholder of the Company that owned it.
130. Moreover,
there is no indication that Mr. Ivcher has been compensated for the deprivation
of the enjoyment and use of his property, or that the measure that affected him
was adopted according to the law. It
must also be recalled that, in this judgment, the Court has concluded that the
procedures relating to the restriction of Mr. Ivcher’s rights with regard to
the Company, including the procedure by which Judge Percy Escobar ordered the
precautionary measure, did not satisfy the minimum requirements of due legal
process (supra para. 115). In this
respect, the Court observes that when a procedure is conducted in violation of
the law, the corresponding legal consequences should also be considered
illegal. Consequently, the deprivation
of the use and enjoyment of Mr. Ivcher’s rights relating to his shares in the
Company was inappropriate, and this Court considers that it was arbitrary, and,
therefore, not in accordance with the provisions of Article 21 of the
Convention.
131. In view of the
foregoing, the Court concludes that the State violated the right to private
property established in Article 21(1) and 21(2) of the American Convention,
with regard to Baruch Ivcher Bronstein.
XIII
Violation of
Article 25
(Judicial
Protection)
The Commission’s arguments
132. With regard to
Article 25 of the Convention, the Commission alleges that:
a) the Court has interpreted Article 25
of the Convention in order to guarantee, inter
alia, a simple, prompt and effective recourse for the protection of the
fundamental rights of the person;
b) the domestic recourses filed by Mr.
Ivcher Bronstein to obtain reparation of his rights were ineffective. Such recourses consisted of an action for
amparo against the “directorial resolution” that annulled his nationality
title; a request for a precautionary measure to suspend the effects of this
“directorial resolution”; a recourse against the resolution that admitted the
precautionary measure that gave the administration of Channel 2 to the minority
shareholders, and an action for amparo to question Articles 12 and 13 of the
Regulations to Nationality Law No. 26574; and
c) the violation of Article 25 of the
Convention consists in the absence of a simple and prompt recourse before a
competent tribunal to remedy the situations denounced. The judicial proceedings filed against Mr.
Ivcher left both him and his family defenseless.
The State’s arguments
133. Peru did not submit
any arguments on this issue, since it did not appear before the Court in the
case sub judice (supra para. 78).
*
* *
The considerations of the Court
134. Article 25(1) of the
American Convention establishes that:
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.
135. This Court has reiterated that the right of
everyone to a simple and prompt recourse or any other recourse to a competent
judge or tribunal for protection against acts that violate his fundamental
rights
is one of the basic
pillars, not only of the American Convention but also of the rule of law itself
in a democratic society, within the meaning of the Convention [...]. By attributing functions of protection to
the domestic legislation of the States Parties, Article 25 is closely related
to the general obligation in Article 1(1) of the American Convention92.
136. The
Court has also stated that:
The inexistence of an
effective recourse against the violation of the rights recognized by the
Convention constitutes a transgression of the Convention by the State Party in
which such a situation occurs. In that
respect, it should be emphasized that, for such a recourse to exist, it is not
enough that it is established in the Constitution or in the law or that it
should be formally admissible, but it must be truly appropriate to establish
whether there has been a violation of human rights and to provide everything
necessary to remedy it. Those recourses
that are illusory, owing to the general conditions in the country or to the
particular circumstances of a specific case, shall not be considered effective93.
137. Recourses are
illusory when it is shown that they are ineffective in practice, when the
Judiciary lacks the necessary independence to take an impartial decision, or in
the absence of ways of executing the respective decisions that are delivered.
They are also illusory when justice is denied, when there is an unjustified
delay in the decision and when the alleged victim is impeded from having access
to a judicial recourse94.
138. The Court considers that it has been proved
that Mr. Ivcher Bronstein filed a series of recourses before the domestic
tribunals, principally in order to defend his rights as a Peruvian citizen and
shareholder of the Company.
139. The domestic
tribunals that decided the judicial recourses filed by Mr. Ivcher did not
satisfy the minimum requirements of independence and impartiality that Article
8(1) of the Convention establishes as essential elements of due legal process,
and which would have led to obtaining a decision in accordance with the law.
Consequently, the recourses were not effective (supra para. 115).
140. Likewise, the
general circumstances of this case indicate that the judicial recourses filed
by Mr. Ivcher to defend his shareholder’s rights were not simple and prompt; to
the contrary, as the witness Emilio Rodríguez Larraín declared during the
public hearing, “they were only resolved after a long time”, which contrasts
with the process given to the actions filed by the minority shareholders of the
Company, which were resolved promptly.
141. Lastly, the civil
and criminal complaints filed against both Mr. Ivcher and his family and his
company officials and lawyers, as a result of which the liberty of some of them
was restricted and the permanence in the country of others was discouraged,
reveals a situation of persecution and denial of justice.
142. In view of the
foregoing, the Court concludes that the State violated the right to judicial
protection embodied in Article 25(1) of the Convention, with regard to Baruch
Ivcher Bronstein.
XIV
Violation of
Article 13
(Freedom of
Thought and Expression)
The Commission’s arguments
143. With regard to Article
13 of the Convention, the Commission alleges that:
a) the deprivation of Mr. Ivcher
Bronstein’s nationality title was not the result of a routine review to verify
the status of all the files of naturalized Peruvians; its primary objective was
to violate Mr. Ivcher’s right to freedom of expression;
b) the fact that, under Mr. Ivcher’s
direction, Channel 2 transmitted news reports that were critical of the
Government and that, when he was separated from it, the journalists who
produced those programs were dismissed, thus terminating the transmission of
such news reports, shows that the deprivation of Mr. Ivcher’s nationality, was
a means of reprisal and served to silence investigative journalism;
c) the
Convention embodies the right to disseminate information and ideas artistically
or in any other way, and establishes that the exercise of this right may not be
subject to prior censorship, without engaging subsequent liability, and may not
be the object of restriction by indirect ways and means;
d) Article 13 of the Convention
corresponds to the broad concept of the freedom of expression and autonomy of
the individual; its purpose is to protect and promote access to information,
ideas and expression of all type and, thus, strengthen the operation of pluralist
democracy;
e) freedom of expression allows open
discussion of moral and social values and facilitates political discussion,
which is crucial for democratic values;
f) both the European Court of Human
Rights (hereinafter “the European Court”) and the United Nations Human Rights
Committee have recognized that freedom of expression is not limited to allowing
acceptable ideas and opinions to circulate, but also those that are unpopular
and minority;
g) in a democratic society, the press
has the right to inform freely and to criticize the Government, and the
population has the right to be informed of what is happening around it;
h) in Peru, systematic repressive
practices are carried out, designed to silence investigative journalists who
have denounced irregularities in the conduct of the Government, the Armed
Forces and the National Intelligence Service;
i) the exercise of freedom of
expression in Peru is not protected, in practice, by effective judicial
guarantees that allow the investigation, punishment and reparation of abuses
and crimes against journalists; and
j) the overall evaluation of the
attacks on investigative journalism reveals the existence of a plan designed to
persecute and harass investigative journalists, by the Intelligence Services,
the Security Forces and other State institutions. This is shown by the persistence over time and the similarity of
the campaigns of harassment and persecution, and also the similitude of the
investigation and denunciation activities of the victims.
The State’s arguments
144. Peru did not submit
any arguments on this issue, since it did not appear before the Court in the
case sub judice (supra para. 78).
*
* *
The considerations of the Court
145. Article 13(1), 13(2) and 13(3) of the American
Convention establishes that:
1. Everyone has the right to freedom of thought
and expression. This right includes
freedom to seek, receive and impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing, in print, in the form of
art, or through any other medium of one’s choice.
2. The exercise of the right provided for in the
foregoing paragraph shall not be subject to prior censorship but shall be
subject to subsequent imposition of liability, which shall be expressly
established by law to the extent necessary to ensure:
a. Respect for he rights or reputations of others;
b. The protection of national security, public
order, or public health or morals.
3. The right of expression may not be restricted
by indirect methods or means, such as the abuse of government or private
controls over newsprint, radio broadcasting frequencies, or equipment used in
the dissemination of information, or by any other means tending to impede the
communication and circulation of ideas and opinions.
146. Regarding the content of the right
to freedom of thought and expression, those who are protected by the Convention
have not only the right and freedom to express their own thoughts, but also the
right and freedom to seek, receive and disseminate information and ideas of all
types. Consequently, freedom of
expression has both an individual and a social dimension:
it requires that, on
the one hand, no one may be arbitrarily harmed or impeded from expressing his
own thought and therefore represents a right of each individual; but it also
implies, on the other hand, a
collective right to receive any information and to know the expression of the
thought of others95.
These two dimensions must be guaranteed simultaneously.
147. With regard to the
first dimension of the right embodied in the said article, the individual
right, freedom of expression is not exhausted in the theoretical recognition of
the right to speak or write, but also includes, inseparably, the right to use
any appropriate method to disseminate thought and allow it to reach the
greatest number of persons. In this
respect, the expression and dissemination of thought and information are
indivisible, so that a restriction of the possibilities of dissemination
represents directly, and to the same extent, a limit to the right to free
expression96.
148. Regarding the
second dimension of the right embodied in Article 13 of the Convention, the
social element, we should indicate that freedom of expression is a medium for
the exchange of ideas and information between persons; it includes the right to
try and communicate one’s points of view to others, but it implies also
everyone’s right to know opinions, reports and news. For the ordinary citizen, the right to know about other opinions
and the information that others have is as important as the right to impart
their own97.
149. The Court considers
that both dimensions are of equal importance and should be guaranteed
simultaneously in order to give total effect to the right to freedom of
expression in the terms of Article 13 of the Convention98.
The importance of this right is further underlined if we examine the
role that the media plays in a democratic society, when it is a true instrument
of freedom of expression and not a way of restricting it; consequently, it is
vital that it can gather the most diverse information and opinions.
150. Furthermore,
it is essential that the journalists who work in the media should enjoy the
necessary protection and independence to exercise their functions
comprehensively, because it is they who keep society informed, and this is an
indispensable requirement to enable society to enjoy full freedom.
151. The Court has
understood this by indicating that
the same concept of
public order in a democratic society requires the guarantee of the widest
possible circulation of news, ideas and opinions, as well as the widest access
to information by society as a whole.
Freedom of expression constitutes the primary and basic element of the
public order of a democratic society, which is not conceivable without free
debate and the possibility that dissenting voices be full heard99.
152. The European Court
has also recognized this criterion, when it stated that freedom of expression
constituted one of the essential pillars of democratic society and a
fundamental condition for its progress and the personal development of each
individual. This freedom should not
only be guaranteed with regard to the dissemination of information and ideas
that are received favorably or considered inoffensive or indifferent, but also
with regard to those that offend, are unwelcome or shock the State or any
sector of the population100.
153. According to
the European Court, the foregoing is of particular importance when applied to
the press. It not only implies that it
is the task of the media to transmit information and ideas on matters of public
interest, but also that the public has the right to receive them101.
154. When evaluating an
alleged restriction or limitation to freedom of expression, the Court should
not restrict itself to examining the act in question, but should also examine
this act in the light of the facts of the case as a whole, including the
circumstances and context in which they occurred102. Taking this into consideration, the Court
will examine whether, in the context of the instant case, there was a violation
of Mr. Ivcher Bronstein’s right to freedom of expression.
155. The European Court
has emphasized that Article 10(2) of the European Convention, on freedom of
expression, leaves a very reduced margin to any restriction of political
discussion or discussion of matters of public interest103.
According to this Court,
[...] the acceptable
limits to criticism are broader with regard to the Government that in relation
to the private citizen or even a politician.
In a democratic system, the acts or omissions of the Government should
be subject to rigorous examination, not only by the legislative and judicial
authorities, but also by public opinion104.
156. In the instant case,
it has been established that, in 1997, Mr. Ivcher was the majority shareholder
of the Company, which operated Peruvian television’s Channel 2; moreover, he
was a Director and Chairman of the Board of this Company and was authorized to
take editorial decisions on programming.
In April 1997, in its program Contrapunto,
Channel 2 aired investigative reports of national interest, such as reports on
possible torture committed by members of the Army Intelligence Service against
the agent, Leonor La Rosa, the alleged assassination of the agent, Mariela
Barreto Riofano, and the extremely high revenues that it was alleged that
Vladimiro Montesinos Torres, adviser to the Peruvian Intelligence Service had
obtained.
157. The testimonies of Luis
Carlos Antonio Iberico Núñez, Baruch Ivcher Bronstein and Fernando Viaña Villa
demonstrated the extensive audience that Channel 2 had throughout the country
in 1997. Both Mr. Ivcher and the journalists who worked for Contrapunto were fully entitled to investigate
and disseminate events of public interest such as those denounced between April
and July 1997 in this medium, in the exercise of the right to freedom of
expression protected by Article 13 of the Convention.
158. In the same way, it
has been shown that, as a consequence of the editorial line assumed by Channel
2, Mr. Ivcher was the object of threatening actions of various types. For example, after the emission of one of
the reports mentioned in the previous paragraph, the Armed Forces Joint Command
issued an official communiqué in which it denounced Mr. Ivcher for conducting a
defamatory campaign intended to slander the Armed Forces (supra para. 76.k). Also,
the same day the Armed Forces issued this communiqué, Peru’s Executive Branch
issued a supreme decree regulating the Nationality Law and establishing the
possibility of canceling the nationality of naturalized Peruvians (supra para. 76.l).
159. It has also been
proved that only days after Channel 2 had announced the presentation of a
investigative report on the unlawful recording of the telephone conversations
of opposition candidates, the Director General of the National Police Force
advised that the file in which Mr. Ivcher’s nationality title was processed
could not be found and, that it had not been certified that he had renounced
his Israeli nationality; as a result, it was arranged to annul the said
nationality title by a “directorial resolution”.
160. In view of the
foregoing, on August 1, 1997, Judge Percy Escobar ordered the suspension of the
exercise of Mr. Ivcher’s rights as majority shareholder and president of the
Company and his appointment as a director of the Company was revoked, an
extraordinary shareholders meeting was judicially convened to elect a new Board
and Mr. Ivcher was prohibited from transferring his shares. Moreover, he granted the provisional
administration of the Company to the minority shareholders, until a new Board
was appointed, thus taking the control of Channel 2 away from Mr. Ivcher
Bronstein.
161. The Court has
verified that, after the minority shareholders of the Company assumed its
administration, the journalists who had been working for Contrapunto were prohibited from entering the Channel and the
program’s editorial line was modified (supra
para. 76.v).
162. In the context of
the facts indicated above, this Court observes that the resolution that
annulled Mr. Ivcher’s nationality title constituted an indirect means of
restricting his freedom of expression, as well as that of the journalists who
worked and conducted investigations for Contrapunto
of Peruvian television’s Channel 2.
163. By separating Mr.
Ivcher from the control of Channel 2 and excluding the Contrapunto journalists, the State not only restricted their right
to circulate news, ideas and opinions, but also affected the right of all
Peruvians to receive information, thus limiting their freedom to exercise
political options and develop fully in a democratic society.
164. In view of the
foregoing, the Court concludes that the State violated the right to freedom of
expression embodied in Article 13(1) and 13(3) of the Convention, with regard
to Baruch Ivcher Bronstein.
XV
Non-compliance
with Article 1(1)
(Obligation
to Respect Rights
The Commission’s arguments
165. Regarding
Article 1(1) of the Convention, the Commission alleges that:
a) the Court has stated that it is a
principle of international law that the State should respond for the acts and
omissions of its agents even if they are acting beyond their competence or in
violation of domestic law and that all violations of the rights recognized in
the Convention by official authorities may be attributed to the State; and
b) both the arbitrary deprivation of
Mr. Ivcher Bronstein’s nationality title, and the acts that violated his right
to due legal process, freedom of expression, property and effective legal
ownership constituted an additional violation of the State’s obligation
embodied in Article 1(1) of the Convention.
The State’s arguments
166. Peru did not submit
any arguments on this issue, since it did not appear before the Court in the
case sub judice (supra para. 78).
*
* *
The considerations of the Court
167. Article 1(1) of the Convention establishes
that:
[t]he 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 oar other opinion,
national or social origin, economic status, birth, or any other social
condition.
168. 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 it105 and to organize the public
authorities in order to ensure to all persons subject to its jurisdiction the
free and full exercise of human rights106.
According to the legal norms on state international responsibility applicable
under international human rights law, the act or omission of any public
authority, whatsoever its rank, constitutes an act which may be attributed to
the State and engages its responsibility in the terms of the of the American
Convention107.
169. The Court observes
that, pursuant to what has been established in this judgment, the State
violated Articles 20, 8, 21, 25 and 13 of the American Convention, with regard
to Mr. Ivcher Bronstein, so that it has failed to comply with its general
obligation to respect the rights and freedoms recognized in it and to ensure
their free and full exercise, as stipulated in Article 1(1) of the Convention.
170. Therefore,
the Court concludes that the State failed to comply with the general obligation
of Article 1(1) of the American Convention.
XVI
Application
of Article 63(1)
The Commission’s arguments
171. With regard to
Article 63(1) of the Convention, the Commission requested the Court:
a) to
order Peru to re-establish and guarantee to Mr. Ivcher the integral enjoyment
of his violated rights and, in particular,
a.1) to
order the re-establishment of Mr. Ivcher’s Peruvian nationality title and its
full and unconditional recognition, with all corresponding rights and
attributes;
a.2) to
order the re-establishment of the enjoyment and exercise of Mr. Ivcher’s right
to property over his shares in the Company and to order that he should recover
all his attributes as shareholder and administrator of the Company;
a.3) to
order Peru to ensure to Mr. Ivcher the enjoyment and exercise of his right to
freedom of expression and, in particular, to cease the acts of harassment and
persecution against him and against his family and his company;
a.4) to
order Peru to make reparation and fully compensate Mr. Ivcher for all the
material and moral damage that the actions of the Peruvian administrative and
judicial organs have caused him;
b) to
order Peru to adopt the necessary legislative and administrative measures to
avoid a repetition of acts of the same nature in the future;
c) to
order Peru to investigate and punish those responsible for the violation of Mr.
Ivcher’s fundamental rights; and
d) to
order Peru to pay the costs and reimburse the expenses in which Mr. Ivcher
incurred to litigate this case, both nationally and internationally, as well as
reasonable fees for his representatives.
172. On January 8, 2001,
at the request of the Court (supra
paras. 47 and 60), the Commission
submitted arguments concerning the expenses and costs of this case and attached
the evidentiary documents that it considered justified those expenses. These arguments are summarized below:
a) the
expenses incurred in litigating this case at the national and international
level were assumed by Mr. Ivcher from his personal accounts, and by his
company, Productos Paraíso del Perú. These expenses include professional fees,
office maintenance, payment of telephone services and communications, and
medical attention for Rosario Lam;
b) Productos
Paraíso del Perú incurred expenses of US$3,142,346.00 (three million one hundred
and forty-two thousand three hundred and forty-six United States dollars) and
9,687,498.00 (nine million six hundred and eighty-seven thousand four hundred
and ninety eight) Peruvian soles, which is equal to US$3,104,967.00 (three
million one hundred and four thousand nine hundred and sixty-seven United
States dollars). Mr. Ivcher incurred
expenses US$1,557,513.00 (one million five hundred and fifty-seven thousand
five hundred and thirteen United States dollars). This gives a total amount disbursed by Mr. Ivcher’s company and
from his personal accounts of US$7,804,826.00 (seven million eight hundred and
four thousand eight hundred and twenty-six United States dollars); and
c) the
amounts mentioned do not include the “remaining expenses” that Mr. Ivcher has
had to incur, or the fees corresponding to this case and the actions filed in
Lima, which amount to US$1,000,000.00 (one million United States dollars), or
the fees corresponding to the reparations stage before the Inter-American
Court.
173. In its brief of
February 5, 2001 (supra para. 51),
referring to the State’s position (infra para.
174), the Commission indicated that,
since Peru had not fully complied with its recommendations, it was reiterating
the claims set out in its briefs for the application and final arguments (supra paras. 1 and 47).
The State’s arguments
174. In its brief of
February 1, 2001 (supra para. 50),
Peru expressed its willingness to reach a friendly settlement and to that end,
it will appoint an agent in order to respond to the Commission’s claims.
*
* *
The considerations of the Court
175. Article 63(1) de the
American Convention establishes that
[i]f 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.
176. In the instant case,
the Court has already established that Peru violated Articles 20(1), 20(3),
8(1), 8(2), 21(1), 21(2), 25(1), 13(1) and 13(3) of the American Convention.
177. This Court has constantly
reiterated in its jurisprudence that it is a principle of international law
that all violations of an international obligation that produce a damage entail
the obligation to repair this adequately108.
178. The reparation of
the damage caused by the violation of an international obligation requires full
restitution (restitutio in integrum),
which consists of re-establishing the previous situation and repairing the
consequences of the violation, as well as payment of an indemnity as
compensation for the damage caused109.
179. As a consequence of
the violations to the rights embodied in the Convention indicated in this case,
the Court must rule that the victim be guaranteed the enjoyment of his violated
rights and freedoms. The Court observes
that, in “Supreme Resolution” No. 254-2000-JUS, of November 15, 2000, the State
accepted the recommendations formulated in the Commission’s Report No. 94/98 of
December 9, 1998 (supra para. 76.aa), and that, in “Ministerial Resolution”
No. 1432-2000-IN of November 7, 2000, it declared null and void the
“directorial resolution” annulling Mr. Ivcher’s nationality (supra para. 76.z).
180. Consequently,
the Court considers that the State has already responded to the Commission’s
request concerning the return of Mr. Ivcher’s nationality title and, therefore,
that request is now immaterial.
181. With regard to the
violation of Article 21 of the Convention, the Court believes that the State
should facilitate the conditions so that Mr. Ivcher Bronstein, whose Peruvian
nationality has been restored, may take the necessary steps to recover the use
and enjoyment of his rights as majority shareholder of Compañía Latinoamericana de Radiodifusión S.A., as he was until
August 1, 1997, in the terms of domestic legislation (supra para. 76.s.3). As for the recovery of dividends and other
receipts that would have corresponded to Mr. Ivcher as majority shareholder and
officer of the Company, domestic law should also apply. To that end, the respective petitions should
be submitted to the competent national authorities.
182. With regard to
Article 13 of the Convention, the Court considers that the State should
guarantee Mr. Ivcher the right to seek, investigate and disseminate information
and ideas through Peruvian television’s Channel 2-Frecuencia Latina.
183. In accordance with
extensive international jurisprudence, the Court considers that obtaining a
judgment that protects the victims’ claims is, in itself, a form of
satisfaction110. However, it also believes, particularly
taking into account the acts of persecution suffered by the victim (supra para. 76.y), that an additional
compensation for moral damages should be granted111.
This should be established fairly, on the basis of a prudent appraisal, since
it is not possible to assess it precisely112.
184. Based on the
foregoing, the Court finds that it is fair to grant the victim a compensation
of US$20,000,00 (twenty thousand
United States dollars) for moral damages.
185. Regarding the Commission’s request
to order Peru to adopt the necessary legislative and administrative measures to
avoid a repetition of events of the same nature in the future, it is a well
known public fact that the State has already taken steps to this end (supra note 72), so that the Court finds that it does not need to take a decision
in that regard.
*
* *
186. The Court considers
that States Parties have the obligation to prevent, investigate, identify and
punish the masterminds and accessories to human rights violations113. Based on this obligation, the State
has the obligation to avoid and combat impunity, which has been defined as “the
overall lack of investigation, tracking down, capture, prosecution and
conviction of those responsible for violating the rights protected by the
American Convention114”.
187. Consequently, Peru should
investigate the facts that resulted in the violations established in this
judgment in order to identify and punish those responsible.
*
* *
188. With regard to the
expenses and costs in this case, the Court considers that it is appropriate to
recall, as has been stated on other occasions115,
that it must evaluate prudently the specific scope of the costs, taking into
account not only their justification and the circumstances of the concrete
case, but also the nature of the international jurisdiction for the protection
of human rights and the characteristics of the respective proceeding, which has
its own distinctive character that differs from that of other proceedings of a
national or international nature, and observing the standards established by
this Court in the resolution of other cases.
189. To this effect, the Court considers that it
is fair to grant the victim the amount of US$50,000.00 (fifty thousand United
States dollars) in reimbursement of the costs and expenses incurred in the
domestic and the international jurisdictions.
190. In accordance with
its usual practice, this Court reserves to itself the authority to monitor full
compliance with this judgment. The case
will be closed once the State has fully complied with the provisions of this
judgment.
XVII
Decisions
191. Therefore,
the court,
unanimously,
1. finds that the
State violated the right to nationality embodied in Article 20(1) and 20(3) of
the American Convention on Human Rights with regard to Baruch Ivcher Bronstein.
2. finds that the
State violated the right to a fair trial embodied in Article 8(1) and 8(2) of
the American Convention on Human Rights, with regard to Baruch Ivcher
Bronstein.
3. finds that the
State violated the right to judicial protection embodied in Article 25(1) of the American Convention on Human
Rights, with regard to Baruch Ivcher Bronstein.
4. finds that the
State violated the right to property embodied in Article 21(1) and 21(2) of the
American Convention on Human Rights, with regard to Baruch Ivcher Bronstein.
5. finds that the
State violated the right to freedom of expression embodied in Article 13(1) and
13(3) of the American Convention on Human Rights, with regard to Baruch Ivcher
Bronstein.
6. finds that the
State failed to comply with the general obligation established in Article 1(1)
of the American Convention on Human Rights, in relation to the violations of
the substantive rights indicated in the previous conclusions in this judgment.
7.
finds
that the State should investigate the facts that gave rise to the violations
established in this judgment in order to identify and punish those responsible.
8. finds that the
State should facilitate the conditions to enable Baruch Ivcher Bronstein to
take the necessary steps to recover the use and enjoyment of his rights as
majority shareholder of Compañía
Latinoamericana de Radiodifusión S.A., as he was until August 1, 1997,
under the terms of domestic legislation. With regard to the recovery of
dividends and other amounts that he would have received as majority shareholder
and officer of that company, domestic law should also apply. To this end, the respective claims should be
submitted to the competent national authorities.
9. finds that, in
fairness, the State must pay Baruch Ivcher Bronstein compensation for moral
damages in the amount of US$20,000.00 (twenty thousand United States dollars),
or the equivalent in Peruvian currency at the time the payment is made.
10. finds that, in
fairness, the State must pay Baruch Ivcher Bronstein, in reimbursement of the
costs and expenses arising in the internal and the international jurisdictions,
the sum of US$50,000.00 (fifty thousand United States dollars), or the
equivalent in Peruvian currency at the time payment is made.
11. finds that it shall monitor compliance
with this judgment and only when it has been fulfilled will it consider the
case closed.
Done in San José, Costa Rica, on February 6, 2001, in the Spanish
and English languages, the Spanish text 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
1. Cf. Annex 1: certificate of
Peruvian nationality No. 004644, issued on December 7, 1984, by the
Naturalization Department of the Ministry of Foreign Affairs of the Peruvian
Republic in favor of Baruch Ivcher Bronstein; “Supreme Resolution” No. 0649/RE
issued on November 27, 1984; Annex 2: birth certificates of Baruch Ivcher
Bronstein’s daughters, Dafna, Michal, Tal and Hadaz Ivcher, all born in Peru;
certification of Neomy Even de Ivcher’s Peruvian nationality title No. 0072,
dated October 6, 1989; Annex 3: notarized document No. KR 80397, which attests
to the deed increasing the capital and partially modifying the statutes of
Compañía Latinoamericana de Radiodifusión S.A., dated January 27, 1986; Annex
4: company constitution deed granted for Global Phone International S.A.,
December 13, 1996; registered deed constituting the company Dalkan 2000 S.A.;
notarized document No. 189-190, dated December 23, 1998, certifying that on
September 14, 1998, the capital of Productos Paraíso del Peru S.A. was
increased, the statutes were partially amended., and Mr. Ivcher became chairman
of the Board of Directors; deed of August 15, 1997, for share transfer
(“transferencia de acciones por anticipa de legitima”), by which Mr. Ivcher
ceded his shares to his four daughters; Annex 6: various newspaper articles;
Annex 7: various newspaper articles; Annex 8: decision of April 16, 1997,
summoning Mr. Ivcher to appear as a witness; decision of May 16, 1997, charging
Mr. Ivcher of crimes “Against the Administration of Justice”, against the State
before the Office of the Sitting Provincial Attorney for Criminal Matters;
decision of May 23, 1997, ordering the opening of proceedings against Mr.
Ivcher, his appearance and a provisional attachment of his assets; Annex 9:
official note No. 002-97 CCFFAA of the Armed Forces Joint Command dated May 23,
1997; Annex 10: “Supreme Decree” No. 004-97-IN, of May 23, 1997; Annex 11:
press communiqué of May 28, 1997, of the Armed Forces Joint Command; public
letter of May 28, 1997, signed by the Winter brothers; Annex 12:
“Administrative Decision” 393-CME-PJ of June 17, 1997, published in the
official gazette, El Peruano, on June 18, 1997; “Administrative Decision” No.
399-CME-PJ, delivered by the Judiciary Executive Committee on June 23, 1997,
published in the official gazette, El Peruano, on June 24, 1997; Constitutional
jurisprudence describing File No. 001-96-I/TC and File No. 2919-91-LIMA; Annex
13: “Administrative Decision” No. 001-97-SC and S-CSJ, of June 25, 1997,
published in the official gazette, El Peruano, on June 26, 1997;
“Administrative Decision” No. 002-97-SC and S-CSJ, of June 25, 1997, published
in the official gazette, El Peruano, on June 27, 1997; decision No. 351 of the
Public Law Chamber dated December 13, 1996; decision No. 91 of the Public Law
Chamber dated February 12, 1997; decision of February 26, 1997, annulling the
Public Law Chamber’s decision of February 12, 1997; Annex 15: note No.
922-97-UA/CSJL, of April 2, 1997, issued by the Administrator of the Superior
Court of Justice of Lima, and addressed to Dr. María del Rosario Villaverde,
Magistrate of the Office for the Supervision of the Magistrature of the
Judiciary; note No. 115-96-INV-MRVE-OCME/PJ, of March 31, 1997, issued by the
Office for the Supervision of the Magistrature of the Judiciary addressed to
the President of the Superior Court of Justice of Lima;; note No.
818-97-A/CSJL, undated, although 11/03/97 appears written by hand, addressed to
the persons responsible for controlling attendance; note No. 817-97-A/CSJL, of
March 11, 1997, addressed to Percy Escobar Lino; note No. 816-97-A/CSJL, of
March 11, 1997, addressed to the Judge of the Fourteenth Criminal Court of
Lima; note of March 10, 1996, signed by Juan de la Cruz Aybar, Administrative
Director of the Superior Court of Lima; note INV 335-95, of November 25, 1996, issued
by the Office for the Supervision of the Magistrature, addressed to the
President of the Superior Court of Lima; note INV 335-95, of November 27, 1996,
from the Office for the Supervision of the Magistrature; note No.
6245-96-UA/CSJL, of November 25, 1996, addressed to Percy Escobar Lino, Lima
Criminal Judge; note No. 337-96-UA/CSJL, of October 21, 1996, from the
Management of Resources and Services of the Judiciary addressed to the
Judiciary Personnel Supervisor; note No. P.D. 58-96 of October 7, 1996, issued
by the Office for the Supervision of the Magistrature, addressed to the
President of the Superior Court of Lima; decision I. 335-95, issued on October
7, 1996, by the Office for the Supervision of the Magistrature of the
Judiciary; note P.D. No. 58-96, of October 4, 1996, from the General
Secretariat of the Office for the Supervision of the Magistrature; note No.
4954-96-UA/CSJL, of September 9, 1996, signed by the Administrator of the
Superior Court of Lima, addressed to Percy Escobar Lino; decision of September
6, 1996, issued by the Office for the Supervision of the Magistrature of the
Judiciary, corresponding to File No. 0058-96; note of April 15, 1996, in which
certain disciplinary measures are imposed on Percy Escobar Lino; note Inv.
58-96/JOD/OCMA, of April 3, 1996, issued by the Office for the Supervision of
the Magistrature, addressed to the President of the Superior Court of Justice
of Lima; note No. 6196-95-UA/CSJL of November 1995, issued by the President of
the Superior Court of Justice of Lima and addressed to Rolando Escobar Lino,
Secretary of the 22nd Criminal Court of Lima; note of December 23,
1994, appointing Percy Escobar; note INV. No. 30-93, of October 25, 1995,
signed by Luis E. Serpa Segura, supreme member, addressed to the President of
the Superior Court of Lima; note INV. 30-93, of October 23, 1995, signed by
Luis E. Serpa Segura, supreme member and Medallit Cornejo Jurado of the General
Secretariat of the Office for Supervision of the Magistrature of the Judiciary;
complaint note No. 725-94, of July 5, 1995, issued by the Office for the
Supervision of the Magistrature of the Judiciary; note of July 4, 1995, signed
by the Chief Supreme Member of the Office for the Supervision of the
Magistrature and by the General Secretary of that Office, referring to
complaint note. No. 725-94; decision of May 31, 1995, signed by the Chief
Supreme Member of the Office for the Supervision of the Magistrature and by the
General Secretary of that Office, corresponding to complaint file No. 725-94;
note of March 17, 1995, corresponding to File No. 1096-94, identified by hand
as R: 207, with the indication SS. Garrote Amaya, Anchante Pérez and Hurtado
Herrera; unnumbered decision of December 16, 1994, signed by the judge of the
Thirty-fourth Criminal Court of Lima; note of December 13, 1994, corresponding
to File No. 3574-90, signed by the Judge of the Thirty-fourth Criminal Court of
Lima and by another person whose
signature is illegible; note of December 23, 1994, appointing Percy Escobar
Lino to serve in the Twenty-second Criminal Court, signed by the President of
the Superior Court of Justice of Lima and by the Administrative Secretary of
the Superior Court of Lima; note No. 05-94-34o. JEPL-PJ, of December 19, 1994,
signed by the Judge of the Thirty-fourth Criminal Court of Lima, addressed to
the President of the Superior Court of Justice of Lima; note of December 19,
1994, signed by the Judge of the Thirty-fourth Criminal Court of Lima, making
Percy Escobar Lino available to the office of the President of the Superior
Court of Justice of Lima; note PD No. 692-91, of February 23, 1993, signed by
David Ruelas Terrazas, addressed to the President of the Superior Court of
Justice of Lima; letter of July 5, 1995, signed by Manuel Marul Galvez, addressed
to President of the Superior Court of Lima, with regard to file 3574-90;
certified copy of note PD 692-91, of February 23, 1993, issued by the General
Secretariat of the Office for the Internal Control of the Judiciary; order
related to PD No. 692-91, of September 14, 1992, deciding to impose
disciplinary measures against Percy Escobar Lino; resolution concerning file
1037-96; Annex 16: petition for habeas corpus filed by Baruch Ivcher of May 31,
1997, before the Public Law Chamber; Order No. 7 of June 18, 1997, issued by
the Public Law Chamber; brief of June 8, 1997, in answer to the application,
signed by the Public Attorney responsible for legal affairs of the Ministry of
the Interior; order of the Temporary Commercial Public Law Chamber, of November
7, 1997, regarding case No. 1279-97; Order No. 18, of February 20, 1998, issued
by the First Temporary Commercial Public Law Chamber, regarding File No.
975-97; appeal of March 27, 1998; Annex 17: Petition for popular action
submitted to the Public Law Chamber of the Superior Court of Lima on June 3,
1997; Petition for popular action submitted to the Public Law Chamber of the
Superior Court of Lima on June 3, 1997; order of the Temporary Commercial
Public Law Chamber of January 30, 1998, regarding File No. 1173-97; brief of
April 15, 1998, submitted by Alberto Borea Odría, and addressed to the
Constitutional and Social Chamber of the Supreme Court of Justice; report No.
194-97 dated December 26, 1997, in which the Public Ministry requests that the
joined petitions for popular action should be declared substantiated; report of
May 12, 1998, issued by the Public Ministry; Annex 18: Order of August 21,
1997, of the Forty-second Criminal Court of Lima; Notification of order of
November 7, 1997, regarding File No. 6090-97; Order of January 29, 1998, issued
by Criminal Chamber “C”, corresponding to File No. 6148-97; Annex 19: various
newspaper articles; Annex 20: various newspaper articles; Annex 21:
“Directorial Resolution” No. 117-97-IN-050100000000, of July 11, 1997; Annex
22: Petition for habeas corpus filed on July 11, 1997 by Samuel and Mendel
Winter Zuzunaga, before the First Temporary Commercial Public Law Court; Annex
23: Brief amending the application of July 14, 1997, by the Winter brothers;
brief requesting precautionary measure of suspension filed on July 14, 1997, by
Samuel and Mendel Winter Zuzunaga, before the First Temporary Commercial Public
Law Court of Lima; answer to the application, of July 24, 1997, by the Public
Attorney responsible for legal affairs of the Ministry of Transport,
Communications, Housing and Construction; notification brief of August 1, 1997,
addressed to Baruch Ivcher, referring to order No. 12, of the same date, issued
by the Temporary Commercial Public Law Court, corresponding to the
precautionary measure requested by the Winter brothers; brief requesting
annulment filed by Neomy Even de Ivcher, before the Public Law Chamber of the
Superior Court of Lima, stamped received on August 28, 1997; Order No. 33, of
September 5, 1997, issued by the Temporary Commercial Public Law Court; order
of September 12, 1997, issued by the Temporary Commercial Public Law Chamber;
order of September 12, 1997, issued by the Temporary Commercial Public Law
Chamber, in which the precautionary measure requested by the Winter brothers
was adopted; order of October 27, 1997, issued by the Temporary Commercial
Public Law Chamber; Annex 24: Petition for habeas corpus filed on July 14,
1997, by Juan Armando Lengua-Balbi, representing Baruch Ivcher, before the
First Temporary Commercial Public Law Court; brief requesting precautionary
measures filed on July 14, 1997, by Juan Armando Lengua-Balbii, representing
Baruch Ivcher, before the First Temporary Commercial Public Law Court; Order
No. 5, of August 15, 1997, issued by the First Temporary Commercial Public Law
Court; Order No. 13, of August 14, 1997, issued by the First Temporary
Commercial Public Law Court; order of September 11, 1997, issued by the First
Temporary Commercial Public Law Chamber, regarding case No. 346-97; record of
judicial notification on October 16, 1997, of Order No. 11, issued by el First
Temporary Commercial Public Law Court; order of October 24, 1997, issued by the
Temporary Commercial Public Law Chamber, corresponding to File No. 344-97;
Order No. 20 of November 12, 1997, issued by the First Temporary Commercial
Public Law Court; order of December 22, 1997, issued by the First Temporary
Commercial Public Law Chamber, corresponding to File No. 344-97; notification
of June 11, 1998, issued by the Constitutional Court, addressed to Juan Armando
Lengua-Balbi, with regard to File No. 112-98; judgment of April 24, 1998,
delivered by the Constitutional Court, corresponding to File No. 112-98-AA/TC;
Annex 25: Certified copy of the affidavit made by the notary, Manuel Noya de la
Piedra and several newspaper articles; Annex 26: Certified copy No. 272-97,
issued by the notary Cesar Carpio, corresponding to the minutes of the
Extraordinary General Assembly of shareholders of the Company of September 26,
1997 and several newspaper articles; Annex 27: Request for a hearing addressed
to the President of the Inter-American Court of Human Rights by Mr. Ivcher
Bronstein on August 26, 1997; note of September 10, 1997, from the Executive
Secretary of the Commission to Baruch Ivcher Bronstein; request to the
Inter-American Commission on Human Rights for precautionary measures by Baruch
Ivcher Bronstein, on October 8, 1997; Annex 28: Request for an Recovery
Injunction (“Demanda de Interdicto de Recobrar”) filed by Neomy de Ivcher, before the Judge of Civil Affairs of
Lima, on October 16, 1997; order of January 6, 1998, issued by the First Civil
Chamber of the Superior Court of Justice of Lima; order of April 27, 1998 in
case 640-98; notification issued by the Temporary Civil Chamber of the Supreme
Court of Justice of the Republic, addressed to Mrs. Ivcher, regarding the order
of January 18, 1999; order of January 18, 1999, issued by the Temporary Civil
Chamber of the Supreme Court of Justice, in the case 640-98; Order No. 1, of
October 21, 1997, regarding File No. 58838-97; Annex 29: Brief of application
of November 14, 1997, challenging the resolutions of the Extraordinary General
Assembly of Shareholders, filed before the Judge for Civil Matters of Lima;
notification May 29, 1998, regarding the order of April 20, 1998, issued by la
Third Civil Chamber of the Superior Court of Justice of Lima, regarding Order
No. 767-A; notification of Order No. 9, of June 22, 1998, issued by Civil
Chamber for Abbreviated Proceedings and Hearings of the Superior Court of
Justice of Lima; order of August 12, 1998, regarding complaint No. 132-98;
notification of order of November 6, 1998, issued by the Permanent Civil
Chamber of the Supreme Court of Justice; order of November 6, 1998, regarding
case No. 2499-98; Order No. 1, of December 1, 1997, regarding File No. 64120;
Annex 30: Notification of order of April 6, 1998, issued by the Commercial
Sub-specialized Chamber for Summary and Non-Contentious Proceedings of the
Superior Court of Justice of Lima; Order No. 5, of June 10, 1998, regarding
File No. 64267-1-97; Order No. 9, of June 10, 1998; order of August 14, 1998,
issued by the Commercial Sub-specialized Chamber for Summary and
Non-Contentious Proceedings; Order No. 21, of December 14, 1998, issued by the
Twenty-first Civil Court of Lima; Order No. 22, of January 5, 1999, regarding
File No. 64267-97; Order No. 23, of January 18, 1998, regarding File No.
64267-97; Order No. 5, of January 12, 1998, regarding File No. 64267-97; Annex
31: Brief applying for the convening of an Extraordinary General Assembly of
Shareholders, filed by Neomy de Ivcher on December 1, 1997; brief of January
12, 1998, entitled “Hearing on Reparation, Conciliation and Evidence”; Order
No. 4, of April 15, 1998, issued by the Commercial Court Sub-Specialized in
Summary and Non-Contentious Proceedings; Order No. 13, of June 25, 1998,
regarding File No. 64930-97; brief of October 2, 1998, entitled “Minutes of the
Hearing on Reparation, Conciliation and Evidence”, regarding File No. 64930-97;
Order No. 25, of October 7, 1998, regarding File No. 64930-97; Annex 32: Brief
of the petition for habeas corpus filed by the Winter brothers on September 7,
1998, before the Public Law Chamber of the Superior Court of Lima; order of
October 30, 1998, issued by the First Temporary Commercial Public Law Chamber;
order of November 25, 1998, regarding File No. 1679-98; Order No. 109, of
February 5, 1999, issued by the Temporary Commercial Public Law Chamber; Annex
33: Complaint of February 5, 1998, submitted by the Provincial Prosecutor of
the Office of the Provincial Criminal Prosecutor for taxation and customs
matters; decision to open proceedings (“auto apertorio”) of February 5, 1998, issued by the Criminal Court for Taxation and
Customs Crimes; brief of June 17, 1998, submitted by Hilda Rosa Valladares
Alarcón; decision to open proceedings (“auto apertorio”) of June 19, 1998, issued by the Criminal Court for Taxation and
Customs Crimes; Provisional declaration of the legal representation of the
Office of the National Superintendent of Taxation Administration, made on July
9, 1998; brief requesting annulment of proceedings, filed by Rosario Lam Torres
de Alegre on October 1, 1998, before the First Temporary Criminal Chamber of the
Supreme Court; petition for habeas corpus of December 4, 1998, filed before the
Public Law Chamber of the Superior Court of Lima; Order No. 2, of December 7,
1998, issued by the First Temporary Commercial Public Law Court; Notification
of Order No. 3, of December 10, 1998, addressed to Alberto Borea Odría;
Notification of Order No. 1, of December 11, 1998, issued by the First
Temporary Commercial Public Law Chamber; petition for habeas corpus of January
21, 1999, filed before the Public Law Chamber of the Superior Court of Lima;
Notification of Order No. 1, of January 21, 1999, issued by the First Temporary
Commercial Public Law Court; petition for habeas corpus of February 5, 1999,
filed before the Public Law Chamber of the Superior Court of Lima; Notification
of Order No. 1, of February 5, 1999, issued by the First Temporary Commercial
Public Law Court; Order No. 1, of February 5, 1999, issued by the First
Temporary Commercial Public Law Court; Order of February 17, 1999, issued by
the First Temporary Commercial Public Law Chamber; petition for habeas corpus
of November 12, 1998, filed before the Public Law Chamber; Order No. 1, of
November 18, 1998, issued by the First Temporary Commercial Public Law Court;
Notification of Order No. 3, of December 5, 1993, issued by the First Temporary
Commercial Public Law Court; order of November 26, 1998, issued by the
Temporary Commercial Public Law Chamber; order of December 16, 1998, issued by
the Temporary Commercial Public Law Chamber; brief of July 20, 1998, in which
Baruch Ivcher Bronstein filed prior issues before the Court for Taxation and
Customs matters; stamp legalizing the signature of Mr. Ivcher, issued on July
23, 1998 by the Consular Section of the Peruvian Embassy in Israel; order of
December 11, 1998, issued by the First Temporary Criminal Chamber of the
Supreme Court of Justice; judgment of November 17, 1998, issued by the Superior
Criminal Chamber for Taxation and Customs Crimes of the Supreme Court of
Justice of the Republic; order of November 20, 1998, issued by the First
Temporary Criminal Chamber of the Supreme Court of Justice; Annex 34: decision
to open proceedings (“auto apertorio”) of
October 19, 1998, issued by the
Criminal Court on Taxation and Customs Crimes; complaint submitted on
November 16, 1998, by the Provincial Criminal Prosecutor for Taxation and Customs Crimes; order of
November 18, 1998, issued by the Criminal Court for Taxation and Customs
Crimes; brief of November 25, 1998, filed by Alberto Borea Odría, addressed to
the Court for Taxation and Customs Crimes; arrest warrant issued on November
30, 1998, by the Criminal Court for Taxation and Customs Crimes, addressed to
the National Director of the Judicial Police; order preventing departure from
the country issued on November 30, 1998, by the Criminal Court for Taxation and
Customs Crimes, addressed to the National Director of the Judicial Police
Force; arrest warrant issued on November 30, 1998, by the Criminal Court for
Taxation and Customs Crimes, addressed to the Head of the OCN INTERPOL Lima;
brief of January 22, 1999, filed by Alberto Borea Odría, addressed to the Court
for Taxation and Customs Crimes; Annex 35: Brief of February 3, 1999, filed by
Juan Armando Lengua-Balbi, bringing a complaint before the Inter-American
Commission on Human Rights regarding police and judicial harassment of Mr.
Ivcher’s defense lawyers; judicial notification of December 15, 1998, by the
Criminal Court for Taxation and Customs Crimes; judicial summons No.
1681-IC-DIVPMP, of January 22, 1999, of Emilio Rodríguez Larraín by the
National Directorate of the Judicial Police Force; judicial notification of
November 10, 1998, of Emilio Rodríguez Larraín by the Criminal Court for
Taxation and Customs Crimes; judicial summons of Enrique Elías Laroza by the National
Directorate of the Judicial Police Force; judicial notification of January
1999, of Enrique Elías Laroza by the Criminal Court for Taxation and Customs
Crimes; judicial notification of December 15, 1998, of Enrique Elías Laroza by
the Criminal Court for Taxation and Customs Crimes; judicial notification of
October 19, 1998, of Enrique Elías Laroza by the Criminal Court for Taxation
and Customs Crimes; judicial summons issued by the National Directorate of the
Judicial Police Force; judicial summons issued by the National Directorate of
the Judicial Police Force; judicial notification of November 18, 1998, of
Enrique Elías Laroza by the Criminal Court for Taxation and Customs Crimes;
Letter No. 029/99 ERLS, of February 4, 1999, signed by Emilio Rodríguez
Larraín, addressed to the Director General of the Peruvian National Police
Force; Letter No. 027/99 ERLS, of February 4, 1999, issued by the Rodríguez
Larraín Lawyer’s Office, addressed to the Ombudsman; Letter No. 016/98 ERLS, of
January 26, 1999, signed by Emilio Rodríguez Larraín, addressed to the Dean of
the Lima Bar Association; Note No. 1786-IC-DIVPMP.Sec, of February 8, 1999,
signed by the National Directorate of Support for Justice and Special
Protection, addressed to the Prosecutor of the office of the Prosecutor for
Taxation and Customs Crimes; Judicial notification of February 12, 1999, of
Emilio Rodríguez Larraín by the Criminal Court for Taxation and Customs Crimes;
Annex 36: Certificate of registration contained in Note No. 00169050-98, of January
14, 1998, issued by “Identity, Peruvian Identification System”; List entitled
“List of Electors, 1998 Municipal Elections”, for polling station No. 041344 in
voting district: Inca Garcilaso de la Vega University; Sworn declaration by
Luis Pércovich Roca of November 24, 1997; Letter of July 1, 1998, signed by
Juan Armando Lengua-Balbi, addressed to Prime Minister, Dr. Javier Valle
Riestra; Annex 37: Document entitled “Presentan pruebas irrefutables de
nacionalidad peruana de Baruch Ivcher, Caso Frecuencia Latina-Canal 2”;
Document entitled “A la opinion pública nacional e internacional / El gobierno
debe restituir la nacionalidad peruana a Baruch Ivcher”; Letter of July 21,
1984, signed by Baruch Ivcher, addressed to the President of the Republic of Peru,
Fernando Belaúnde; Sworn declaration by Mr. Ivcher dated July 20, 1984; Letter
of December 29, 1983, signed by Baruch Ivcher, addressed to PIP General,
Director General of Migration of Peru SDG; Police record certificate, No. K
0191432, dated January 4, 1983, issued by the Police Identification Division of
Peru’s Investigative Police Force; Bulletin No. 2 of the Judicial Register of
the Republic of Peru, of April 12, 1983; Note of January 10, 1983, signed by
the First Secretary of the Israeli Embassy in Lima, authenticating the
translation of the attached document; Record No. 1957680 of the Civil Police
Force of Peru, containing personal data and information regarding Mr. Ivcher’s
request, and also the police certificate, dated March 17, 1983; Record No.
400028 of the Civil Police Force of Peru, containing personal data and
information regarding Mr. Ivcher’s request, and also the police certificate,
dated May 19, 1983; Record No. DL 226711 of the Banco de la Nación, date
stamped January 17, 1983, regarding the tax payment of Baruch Ivcher; Record
No. 152225 of the Banco de la Nación, of November 14, 1984, regarding the tax
payment of Baruch Ivcher; Statement No. 000173 of the Banco de la Nación, of
March 17, 1983, regarding the tax payment of Baruch Ivcher (police taxes);
Ivcher marriage certificate, No. A-45452, issued by the Ministry of State
Religions of Israel; Authentication of the translation of documents, issued on
May 29, 1984 by the First Secretary and Consul of the Israeli Embassy in Lima;
Note No. RE-Ln 2-19-c/185, of November 16, 1984, issued by the Ministry of
Foreign Affairs of Peru, addressed to the Director General of Legal Affairs of
the Ministry of Justice; “Birth Registration Certificate No. 275376”, issued by
the “Department of Health” of the “Palestine Government”; Birth Registration
Certificate No. 275376, issued by the Department of Health of the Palestine
Government, with regard to Baruch Ivcher Bronstein; Two receipts for payment,
numbered 42341 and 42340, both of January 14, 1983, issued by the Banco Central
de Reserva; Note No. 3680 DEX-CER, of November 14, 1984, issued by police
department for aliens certifying that Baruch Ivcher has no record; Note No.
IP-2565/84, of November 13, 1984, issued by the Central National Office of INTERPOL-LIMA,
addressed to PIP Colonel, Head of the DEX; Telex No. 25291 ISPOL IL, of October
18, 1984, signed by Eleazar Rodríguez Rodríguez; Letter signed by Bernardo
Batievsky Spack, addressed to the President of the Republic of Peru; Letter of
September 5, 1997, signed by Luis Vargas, addressed to Enrique Elías,
certifying that on December 6, 1984, two certifications of the public deed
whereby Baruch Ivcher renounced his nationality were issued at the same time;
Certification of December 7, 1984, that Baruch Ivcher paid the fees for a
certificate; Letter signed by Carlos Carrillo Quiñones; Letter signed by Máximo
Luis Vargas, addressed to the President of the Republic of Peru; Letter signed
by Luis Gonzalez Posada, addressed to the President of the Republic of Peru;
Letter signed by Jorge Quiroz Castro, addressed to the President of the
Republic of Peru; Letter signed by July G. Sotelo, addressed to the President
of the Republic of Peru; Letter signed by Tulio Loza Bonifaz, addressed to the
President of the Republic of Peru; Letter signed by Fanny Rujman de Even,
addressed to the President of the Republic of Peru; Undated letter, signed by
Luz Casanova Delgado, addressed to the President of the Republic of Peru;
Medical certificate; “Supreme Decree” No. 662, of September 7, 1984, signed by
Dr. Jorge Rubio Escudero; Document with personal information and the address of
Baruch Ivcher; Document entitled “Record of documents”; Deed renouncing Israeli
nationality signed by Baruch Ivcher, whose statement was notarized by Máximo
Luis Vargas H., under No. K.8489 of December 6, 1984; Document entitled
“Naturalization Requirements”; and various newspaper articles; Annex 38: Letter
No. 7-5-M/099, of March 17, 1999, signed by the Peru’s Permanent Representative
to the Organization of American States; and various newspaper articles; Annex
39: Unofficial translation of extracts from the United States State
Department’s Report on the human rights situation in Peru in 1998, issued on
February 26, 1999; Letter of February 3, 1998 from the United States Embassy to
Dr. Armando Lengua-Balbi, containing information on the 1997 State Department’s
report on human rights in Peru; Document entitled “PERU / Tortura y persecucion
politica en Peru”, report of Human Rights Watch/Americas of December 1997. Vol
9, No. 4 (B); Resolution Peru II adopted by the General Assembly of the
Inter-American Press Association held from November 13 to 18, 1998, in Punta
del Este, Uruguay; Document of the Inter-American Press Association, regarding
the meeting in San Juan de Puerto Rico from March 13 to 17, 1998; Annex 40:
“Administrative Decision” No. 744-CME-PJ, of September 22, 1998; Annex 41:
Report of Dr. Jack Bigio Chrem, of October 3, 1997; Legal report of Dr. Jorge
Avendaño Valdez, of September 22, 1997; Annex 42: Document entitled “Lo falso,
la Verdad / Respuesta al Teniente General PNP Juan Fernando Dianderas Ottone,
Director General de la Policia Nacional del Peru, por el Despojo de la
Nacionalizacion Peruana al senor Baruch Ivcher Bronstein”; Annex 43: Document
entitled “Plan de operaciones PERIODISTAS I”, of October 97; Note No. 213/SIE
(1B), de October 1, 1997, addressed to Brigadier General Director of Army
Intelligence, signed by Enrique Oliveros Pérez; and document entitled “Plan de
operaciones PERIODISTAS II”, of October 97.
2 Cf. Annex 5: Videotape made in the Military Hospital of the
complaint by intelligence agent, Leonor La Rosa, broadcast on April 6, 1997, by
Frecuencia Latina-Channel 2’s program “Contrapunto”; Videotape of the earnings
of Vladimiro Montesinos, broadcast on April 13, 1997, by the program,
“Contrapunto”, on Frecuencia Latina-Channel 2; Videotape of the complaint
broadcast by Frecuencia Latina-Channel 2’s program “Contrapunto”, reporting on
the visit of officers Ibañez and Palomino to the channel’s installations;
Videotape of the complaint broadcast by Frecuencia Latina-Channel 2’s program
“Contrapunto”, on the helicopter flights over the installation of the Productos
Paraíso del Peru factory; Videotape of announcements promoting the program
“Contrapunto” on Channel 2; Videotape of the complaint mentioned above,
broadcast on July 13, 1997, by the program “Contrapunto” on Channel 2;
Videotape of Judge Percy Escobar, accompanied by the police, entering the
installations of Channel 2, on July 19, 1997; Videotape with the press
conference called by the Director General of the National Police Force on July
10, 1997.
3 Cf. Videotape entitled “The Ivcher
case-Channel 2”; Memorandum No. 1562/03.02.06.025, of May 16, 1996, addressed
to CISNEROS; Note of June 1996, addressed to CGE “ALDANA”, with reference N/1
032 JUN96 6C.02.37, the subject of which is described as PLAN OCTAVIO
II.IV.V.XIII; Memorandum No. 3302/02.03.01.02.013, of June 12, 1996, addressed
to CISNEROS; Search warrant No. 1536/1A(2B), of June 18, 1996, addressed to
HEAD OF PCIL, referring to “Verification of Information”; Memorandum No.
1818/02.03.05.07.017, of August 25, 1996, addressed to CISNEROS; Note No.
215/SIE(1A), of November 1, 1996, addressed to the Brigadier General, Director
of Army Intelligence (DINTE), regarding Note No. 6613/2/B/02.04.05.07 of
October 29, 1996; Document entitled “P/O “DOS I” - MAR 97”; Note of the
Peruvian Ministry of Defense No. 6121/SIE(1B), of June 1, 1996, addressed to
the Brigadier General, Director of Army Intelligence, reference: “transmitting
P/O DOS II”, signed by Enrique Oliveros Pérez; Note of the Peruvian Ministry of
Defense No. 172/SIE(lA), of September 1, 1997, addressed to the Brigadier
General, Director of Army Intelligence,, signed by Enrique Oliveros Pérez;
Memorandum No. 3630/02.04.06.01.013, of November 12, 1996, addressed to
CISNEROS; Memorandum No. 1214/2B2(R), of November 13, 1996, addressed to MY.
PNP HEAD OF SUPPORT SERVICES; Search warrant No. 1326/2A(1B), of November 15,
1996, addressed to HEAD OF THE PCIL; Memorandum No. 2102/2A(1A), of November
18, 1996, addressed to CISNEROS, Search warrant No. 1313/2A(1B), of November
20, 1996, addressed to HEAD OF THE PCIL; Search warrant No. 3364/2B(1A), of
January 7, 1997, addressed to HEAD OF THE PCIL; Memorandum No. 1615/2D(1B), of
January 15, 1997, addressed to CISNEROS; Memorandum No. 1314/03.02.06.01.022 of
January 12, 1997, addressed to CISNEROS; Note No. 199/SIE(1A) of the Peruvian
Ministry of Defense, of March 3, 1997, addressed to the Brigadier General,
Director of Army Intelligence, signed by Enrique Oliveros Pérez; Official
letter No. 002-97 CCFFAA from the “Armed Forces Joint Command”, of May 23,
1997; Note of the “United States Congress”, of June 17, 1997, addressed to
President Alberto Kenyo Fujimori Fujimori; Document entitled “Más material para
las acusaciones contra Trujillo, la Valladares y el resto de los delincuentes”
- “Piden 10 años de prisión para empresario israelí”; Interpol note of March
31, 2000, addressed to Rafael Escurredo Rodríguez, by the Director of the
Secretary General’s Office; Note of the “United States Department of State” of
December 23, 1999, signed by the Director of the “Office of Andean Affairs”;
book entitled “Situación de la Libertad de Expresión en el Peru / September
1996 - September 2000”. Ombudsman; Document entitled “Violaciones a la Libertad
de Expresión”. It contains a list of examples. Booklet entitled “Separata del
Anuario Iberoamericano de Justicia Constitucional” - No. 3, 1999. Published by
the Centro de Estudios Políticos y Constitucionales de Madrid; book entitled
“El arte del engaño” - “Las relaciones entre los militares y la prensa”, by
Fernando Rospigliosi and various newspaper articles.
4 Cf.
File “SEPTEMBER 1997 - DECEMBER 2000 / Expenses incurred as a result of the
persecution and political harassment of Mr. Baruch Ivcher”, it contains 28
attachments; file: “JANUARY 1999 - DECEMBER 2000 / Special disbursements made
directly by Productos Paraíso del Peru S.A.C. as a result of the persecution
and political harassment of Mr. Baruch Ivcher”, with 40 attachments; file:
“SEPTEMBER 1997 - DECEMBER 1998 / Special disbursements made directly by
Productos Paraíso del Peru S.A.C. as a result of the persecution and political
harassment of Mr. Baruch Ivcher”, with 16 attachments.
5 Cf. The 1993 Peruvian Constitution, enacted on December 29, 1993, the Decree-law No. 26,111 (Law on General Rules of Administrative Procedure) enacted on December 28, 1992, and published on December 30 that year; the “supreme resolution” No. 254-2000-JUS of November 15, 2000 (accepting the recommendations formulated in report 94/98 issued by the Inter-American Commission on Human Rights), the “Ministerial Resolution” No. 1432-200-IN of November 7, 2000 (declaring null the R.D. No. 117-97-IN-050100000000, which annulled the certificate of Peruvian nationality) and the legislative resolution No. 27401 of January 18, 2001 (which revokes legislative resolution No. 27152).
6 Cf. “The Last
Temptation of Christ” case (Olmedo Bustos et al.), Judgment of February 5, 2001. Series C
No. 73, paras. 49 and 51.
7
Cf. “The Last Temptation of Christ” case
(Olmedo Bustos et al.), supra note 6,
para. 50.
8
Cf. Constitutional Court case, supra Judgment of January 31, 2001. Series C No. 71, para 45.
11 Cf. Constitutional
Court case, supra note 8, para. 53.
14 Cf. “Supreme Order” No. 0649/RE issued on November 27, 1984;
Sworn declaration by Luis Pércovich Roca of November 24, 1997; testimony of
July Sotelo Casanova before the Inter-American Court on November 20, 2000; and
testimony of Luis Pércovich Roca before the Inter-American Court on November
20, 2000.
15 Cf. Deed renouncing Israeli nationality signed by Baruch Ivcher
Bronstein, whose testimony was notarized by Máximo Luis Vargas H., under No.
K.8489 on December 6, 1984; Sworn declaration by Luis Pércovich Roca of
November 24, 1997; testimony of July Sotelo before the Inter-American Court on
November 20, 2000; and testimony of Luis Pércovich Roca before the
Inter-American Court on November 20, 2000.
16 Cf. Peruvian nationality title No. 004644, issued on December
7, 1984 by the Department of Nationalization of the Ministry of Foreign Affairs
of the Republic of Peru, in favor of Baruch Ivcher Bronstein; sworn declaration
by Luis Pércovich Roca of November 24, 1997; “Directorial Order” No.
117-97-IN-050100000000, of July 11, 1997, published in the official gazette, El Peruano, entitled “Peruvian
nationality title annulled”; testimony of July Sotelo Casanova before the
Inter-American Court on November 20, 2000; testimony of Luis Pércovich Roca
before the Inter-American Court on November 20, 2000.
17 Cf. Notarized document No. KR 80397,
attesting to the deed increasing the capital and partially modifying the
statutes of Compañía Latinoamericana de
Radiodifusión S.A., of January 27, 1986; notarized document No. 189-190, of
September 14, 1998, in which the capital was increased, the statutes were
partially modified and Mr. Ivcher became chairman of the board of Productos Paraíso del Peru; record of share transfer (transferencia
de acciones por anticipa de legitima) of August 15, 1997, by which
Mr. and Mrs. Ivcher ceded their shares to their four daughters; Certified copy
No. 272-97, issued by the notary, Cesar Carpio, corresponding to the minutes of
the extraordinary meeting of the shareholders of Compañía Latinoamericana de Radiodifusión of September 26, 1997;
testimony of July Sotelo Casanova before the Inter-American Court, on November
20, 2000; and testimony of Luis Pércovich Roca before the Inter-American Court,
on November 20, 2000.
18 Cf. Petition for habeas corpus filed on July 11, 1997, by
Samuel and Mendel Winter Zuzunaga, before the First Temporary Commercial Public
Law Court; and expert report of Samuel Abad Yupanqui before the Inter-American
Court on November 20, 2000.
19 Cf. Notarized document No. KR 80397, of the deed increasing
the capital and partially modifying the statutes of Compañía Latinoamericana de Radiodifusión S.A., of January 27,
1986; testimony of Luis Iberico Núñez before the Inter-American Court, on
November 20, 2000; and testimony of Baruch Ivcher Bronstein before the
Inter-American Court, on November 20, 2000.
20 Cf. Order No. 33 dated September 5, 1997, issued by the First
Temporary Commercial Public Law Court; and testimony of Baruch Ivcher Bronstein
before the Inter-American Court on November 20, 2000.
21 Cf. Notarized document No. KR 80397, of the deed increasing
the capital and partially modifying the statutes of Compañía Latinoamericana de Radiodifusión S.A., of January 27,
1986, recording the minutes of the Extraordinary Shareholders Meeting that
agreed to the new distribution of shares and granted the chairmanship of the
Board to Baruch Ivcher Bronstein; Order No. 12 of August 1, 1997, issued by the
First Temporary Commercial Public Law Court; testimony of Luis Iberico Núñez
before the Inter-American Court on November 20, 2000; testimony of Baruch
Ivcher Bronstein before the Inter-American Court on November 20, 2000;
testimony of Fernando Viaña Villa before the Inter-American Court on November
20, 2000; and testimony of Emilio Rodríguez Larraín before the Inter-American
Court on November 20, 2000.
22 Cf. Videotape of the denunciation by Intelligence Agent
Leonor La Rosa from the Military Hospital, broadcast on April 6, 1997, by
Frecuencia Latina-Channel 2’s program, Contrapunto;
testimony of Luis Iberico Núñez before the Inter-American Court on November 20,
2000; testimony of Baruch Ivcher Bronstein before the Inter-American Court on
November 20, 2000; testimony of Fernando Viaña Villa before the Inter-American
Court on November 20, 2000; Videotape entitled “El caso Ivcher-Canal 2”; and various newspaper articles.
23 Cf. Videotape of the report on the revenues of Vladimiro
Montesinos Torres, broadcast on April 13, 1997, by Frecuencia Latina-Channel
2’s program, Contrapunto; testimony
of Luis Iberico Núñez before the Inter-American Court on November 20, 2000;
testimony of Baruch Ivcher Bronstein before the Inter-American Court on
November 20, 2000; testimony of Fernando Viaña Villa before the Inter-American
Court on November 20, 2000; Videotape entitled “El caso Ivcher-Canal 2”; and several newspaper articles.
24 Cf. Videotape of Frecuencia Latina-Channel 2’s program Contrapunto, recording the visit of
officers Ibañez and Palomino to the installations of this channel; testimony of
Luis Iberico Núñez before the Inter-American Court on November 20, 2000;
testimony of Baruch Ivcher Bronstein before the Inter-American Court on
November 20, 2000; testimony of Fernando Viaña Villa before the Inter-American
Court on November 20, 2000; and Videotape entitled “El caso Ivcher-Canal 2”.
25 Cf. Videotape of the report by Frecuencia Latina-Channel 2’s
program Contrapunto, recording the
flight of the helicopters over the installations of Productos Paraíso del Peru; testimony of Luis Iberico Núñez before
the Inter-American Court on November 20, 2000; testimony of Baruch Ivcher
Bronstein before the Inter-American Court on November 20, 2000; testimony of
Fernando Viaña Villa before the Inter-American Court on November 20, 2000;
testimony of Rosario Lam Torres before the Inter-American Court on November 20,
2000; and Videotape entitled “El caso Ivcher-Canal 2”.
26 Cf. Videotape of the report by Frecuencia Latina-Channel 2’s
program Contrapunto; order of April
16, 1997, where Baruch Ivcher Bronstein is summonsed as a witness; decision of
May 16, 1997, where Baruch Ivcher Bronstein is denounced before the office of
the sitting Provincial Criminal Attorney for committing a crime “Against the
Administration of Justice”, against the State; decision of May 23, 1997,
ordering a proceeding to be opened against Baruch Ivcher Bronstein, his
appearance and a preventive embargo on his property; and Videotape entitled
“El caso Ivcher-Canal 2”, containing the report broadcast by Contrapunto on the different acts of
harassment against Baruch Ivcher
Bronstein, the journalists and freedom of expression.
27 Cf. Official note No. 002-97-CCFFAA, issued on May 23, 1997,
by the Armed Forces Joint Command; testimony of Luis Iberico Núñez before the
Inter-American Court on November 20, 2000; testimony of July Sotelo Casanova
before the Inter-American Court on November 20, 2000; Videotape entitled “El
caso Ivcher-Canal 2”; and several newspaper articles
29 Cf. Application for amparo filed before the Public Law Chamber
by Baruch Ivcher on May 31, 1997.
31 Cf. Order of the First Temporary Commercial Public Law Chamber
of November 7, 1997, in case No. 1279-97.
32 Cf. Order No. 18, of February 20, 1998, issued by the First
Temporary Commercial Public Law Court, referring to File No. 975-97.
33 Cf. Popular action petition filed before the Public Law
Chamber of the Superior Court of Lima on June 3, 1997.
34 Cf. Popular action petition filed before the Public Law
Chamber of the Superior Court of Lima on June 3, 1997.
35 Cf. Report No. 194-97 of December 26, 1997, in which the
Public Ministry requests that the joined public action petitions should be
declared admissible; and order of the First Temporary Commercial Public Law Chamber
of January 30, 1998, regarding file No. 1173-97.
36 Cf. Order of the First Temporary Commercial Public Law Chamber
of January 30, 1998, regarding file No. 1173-97.
37 Cf. Administrative Decision No. 393-CME-PJ of June 17, 1997,
published in the official gazette El
Peruano on June 18 that year.
38 Cf. Administrative Decision No. 399-CME-PJ, issued by the
Executive Committee of the Judiciary on June 23, 1997, published in the
official gazette, El Peruano, on June
24, 1997; Administrative Decision No. 001-97-SC and S-CSJ of June 25, 1997;
published in the official gazette, El
Peruano, on June 26, that year; Administrative Decision No. 002-97-SC and
S-CSJ of June 25, 1997, and also the list of errata, relating to the resolution
published in the official gazette, El
Peruano, on June 27, that year; and expert report of Samuel Abad Yupanqui
before the Inter-American Court on November 20, 2000.
39 Cf. Administrative Decision No. 001-97-SC and S-CSJ, of June 25
1997, published in the official gazette “El
Peruano” the same day; Administrative Decision No. 002-97-SC and S-CSJ, of
June 25, 1997; expert report of Samuel Abad Yupanqui before the Inter-American
Court on November 20, 2000; and several newspaper articles.
40 Cf. Note No. 816-97-A/CSJL, of March 11, 1997, addressed to the
judge of the Fourteenth Criminal Court of Lima; note No. 6245-96-UA/CSJL, of
November 25, 1996, addressed to Percy Escobar Lino, Lima Criminal Judge; Order
No. I 335-95, issued on October 7, 1996, by the Office for the Supervision of
the Magistrature of the Judiciary; note No. 6196-95-UA/CSJL, of an illegible
day in November 1995, issued by the President of the Superior Court of Justice
of Lima, addressed to Rolando Escobar Lino, Secretary of the Twenty-second
Criminal Court of Lima; note of December 23, 1994, appointing Percy Escobar;
complaint note No. 725-94, of July 5, 1995, by the Office for the Supervision
of the Magistrature of the Judiciary; note of December 23, 1994, appointing
Percy Escobar Lino to serve on the Twenty-second Criminal Court, signed by the
President of the Superior Court of Justice of Lima and by the Secretary for
Administrative Matters of the Superior Court of Lima; note No. 05-94-34º
JEPL-PJ, of December 19, 1994, signed by the judge of the Thirty-fourth Criminal
Court of Lima, addressed to President of the Superior Court of Justice of Lima;
note of December 19, 1994, signed by the judge of the Thirty-fourth Criminal
Court of Lima, making Percy Escobar
Lino available to the Office of the President of the Superior Court of Justice
of Lima; Order referring to PD No. 692-91, of September 14, 1992, containing
the decision to impose a disciplinary measure on Percy Escobar Lino; Order
referring to File No. 1037-96; and several newspaper articles.
41 Cf. Videotape of announcements promoting the Channel 2 program
Contrapunto; videotape of the report
mentioned above, transmitted on July 13, 1997, by the Channel 2 program Contrapunto; testimony of Luis Iberico
Núñez before the Inter-American Court on November 20, 2000; testimony of Baruch
Ivcher Bronstein before the Inter-American Court on November 20, 2000; and
several newspaper articles
42 Cf. Videotape containing the press conference convened by the
Director General of the National Police Fore on July 10, 1997; testimony of
July Sotelo Casanova before the Inter-American Court on November 20, 2000;
“Directorial Order” No. 117-97-IN-050100000000, of July 11, 1997, entitled
“Dejan sin efecto legal titulo de nacionalidad peruana”, published in the
official gazette, El Peruano; and
several newspaper articles
43 Cf. “Directorial Order” No. 117-97-IN-050100000000, of July 11,
1997, entitled “Dejan sin efecto legal titulo de nacionalidad peruana”,
published in the official gazette El
Peruano; testimony of Luis Iberico Núñez before the Inter-American Court on
November 20, 2000; testimony of July Sotelo Casanova before the Inter-American
Court on November 20, 2000; testimony of Emilio Rodríguez Larraín before the
Inter-American Court on November 20, 2000; and, various newspaper articles.
44 Cf. Testimony of Baruch Ivcher Bronstein before the
Inter-American Court on November 20, 2000; and testimony of July Sotelo
Casanova before the Inter-American Court on November 20, 2000.
45 Cf. Request for amparo filed on July 11, 1997, by Samuel and
Mendel Winter Zuzunaga, before the First Temporary Commercial Public Law Court
and testimony of Emilio Rodriguez Larrain before the Inter-American Court on
November 20, 2000.
46 Cf. Brief modifying the petition filed on July 14, 1997 by Samuel
and Mendel Winter Zuzunaga, before the First Temporary Commercial Public Law
Court.
47 Cf. Order No. 33 of September 5, 1997, issued by the First
Temporary Commercial Public Law Court; and order of October 27, 1997, issued by
the First Temporary Commercial Public Law Chamber.
48 Cf. Brief requesting a precautionary measure filed on July 14,
1997, by Samuel and Mendel Winter Zuzunaga, before the First Temporary
Commercial Public Law Court de Lima; and testimony of Emilio Rodríguez Larraín
before the Inter-American Court on November 20, 2000.
50 Cf. Brief requesting annulment filed by Neomy Even de Ivcher,
before the Public Law Court of the Superior Court of Lima, on August 28, 1997;
and testimony of Emilio Rodríguez Larraín before the Inter-American Court on
November 20, 2000.
51 Cf. Order of September
12, 1997, issued by the First Temporary Commercial Public Law Chamber; and
testimony of Emilio Rodríguez Larraín before the Inter-American Court on
November 20, 2000.
52 Cf. Petition for habeas corpus filed before the First
Temporary Commercial Public Law Court on July 14, 1997, by Juan Armando
Lengua-Balbi, representing Baruch Ivcher Bronstein.
53 Cf. Order No. 13 of August 14, 1997,
issued by the First Temporary Commercial Public Law Court.
54 Cf. Order of October 24, 1997, issued by the First Temporary
Commercial Public Law Chamber, corresponding to File No. 344-97.
55 Cf. Order No. 20 of November 12, 1997, issued by the First
Temporary Commercial Public Law Court, corresponding to File No. 1221-97.
56 Cf. Order of December 22, 1997, issued by the First Temporary
Commercial Public Law Chamber, corresponding to File No. 344-97.
57 Cf. Notification of June 11, 1998, issued by the
Constitutional Court, addressed to Juan Armando Lengua-Balbi, with regard to
File No. 112-98; and judgment of April 24, 1998, issued by the Constitutional
Court, corresponding to File No. 112-98-AA/TC.
58 Cf. Brief requesting precautionary measures filed before the
First Temporary Commercial Public Law Court on July 14, 1997, by Juan Armando
Lengua-Balbi, representing Baruch Ivcher Bronstein.
60 Cf. Order of September 11, 1997, issued by the First Temporary
Commercial Public Law Chamber, with regard to case No. 346-97.
61 Cf. Judicial notice of resolution No. 11, dated October 16,
1997, issued by the First Temporary Commercial Public Law Court.
62 Cf. Videotape of the entry of Judge Percy Escobar, assisted by
the police, into the installations of Channel 2, on July 19, 1997; testimony of
Luis Iberico Núñez before the Inter-American Court on November 20, 2000; testimony
of Baruch Ivcher Bronstein before the Inter-American Court on November 20,
2000; testimony of Fernando Viaña Villa before the Inter-American Court on
November 20, 2000; testimony of Emilio Rodríguez Larraín before the
Inter-American Court on November 20, 2000; and numerous newspaper articles.
63 Cf. Certified copy of the certification made by the notary,
Manuel Noya de la Piedra; and newspaper article.
64 Cf. Testimony of Luis Iberico Núñez before the Inter-American
Court on November 20, 2000; and testimony of Fernando Viaña Villa before the
Inter-American Court on November 20, 2000.
65 Cf. Certified copy No. 272-97, corresponding to the minutes of
the extraordinary shareholders meeting of Compañía
Latinoamericana de Radiodifusión S.A,
held on September 26, 1997; testimony of Emilio Rodríguez Larraín before the
Inter-American Court on November 20, 2000; and numerous newspaper articles.
66 Cf. Brief requesting annulment filed by Neomy Even de Ivcher,
before the Pubic Law Chamber of the Superior Court of Lima, with a stamped
receipt dated August 28, 1997; petition for a recovery injunction (Interdicto de Recobrar) filed by Neomy
Even de Ivcher, before the Lima civil judge, on October 16, 1997; petition
contesting the agreements of the extraordinary general shareholders meeting,
filed before the Lima civil judge by Neomy Even de Ivcher on November 14, 1997;
petition for the convocation of a extraordinary general shareholders meeting,
filed before the Lima civil judge, by Neomy Even de Ivcher, with a stamped
receipt dated December 1, 1997; testimony of Baruch Ivcher Bronstein before the
Inter-American Court on November 20, 2000; and testimony of Emilio Rodríguez
Larraín before the Inter-American Court on November 20, 2000.
67 Cf. Videotape of the trial for defrauding the customs
authorities of income, held in absentia
of Baruch Ivcher Bronstein; order of May 16, 1997, where it was decided to
denounce Baruch Ivcher Bronstein before the office of the sitting Provincial
Criminal Attorney for committing a crime “Against the Administration of
Justice”, against the State; petition with an illegible number of February 5,
1998, signed by the Provincial Attorney of the office of the Criminal
Provincial Attorney for Taxation and Customs Crimes; decision to open File No.
98-0030 (auto de apertorio) of
February 5, 1998, issued by the Criminal Court for Taxation and Customs Crimes;
request for measures to the Criminal Court for Taxation and Customs Crimes, by
the Provincial Criminal Prosecutor, of July 17, 1998; decision to open File No.
98-0030-0101JT01 of June 19, 1998, issued by the Criminal Court for Taxation
and Customs Crimes; decision to open File No. 2269-98-SDTA of October 19, 1998,
issued by the Criminal Court for Taxation and Customs Crimes; petition presented
on November 16, 1998, by the Provincial Prosecutor of the office of the
Provincial Criminal Prosecutor for Taxation and Customs Crimes, formulating a
criminal accusation against Michal Ivcher Even and expanding the accusation
against Baruch Ivcher Bronstein, Neomy Even de Ivcher and Alberto José Cabello
Ortega; decision to open File No. 2269-98 of November 18, 1998, issued by the
Criminal Court for Taxation and Customs Crimes, in which a preventive embargo
against the property of the defendants was ordered; order of arrest issued on
November 30, 1998, by the Criminal Court for Taxation and Customs Crimes,
against Baruch Ivcher Bronstein, Neomy Even de Ivcher and Michal Ivcher Even,
addressed to the National Director of the Judicial Police Force; order
preventing Baruch Ivcher Bronstein, Neomy Even de Ivcher and Michal Ivcher Even
from leaving the country, issued on November 30, 1998, by the Criminal Court
for Taxation and Customs Crimes, and addressed to the National Director of the
Judicial Police Force; order of capture issued against Baruch Ivcher, Neomy de
Ivcher and Michal Ivcher Even, issued on November 30, 1998, by the Criminal
Court for Taxation and Customs Crimes, addressed to the Head of the OCN
INTERPOL Lima; judicial notification of November 9, 1998 by the Secretary of
the Taxation and Customs Crimes Court with regard to the summons issued to
Emilio Rodríguez Larraín; judicial summons with illegible number and date,
addressed to Enrique Elías Laroza by the National Directorate of the Judicial
Police Force; testimony of Baruch Ivcher Bronstein before the Inter-American
Court on November 20, 2000; testimony of July Sotelo Casanova before the
Inter-American Court on November 20, 2000; testimony of Rosario Lam Torres
before the Inter-American Court on November 20, 2000; testimony of Emilio
Rodríguez Larraín before the Inter-American Court on November 20, 2000; and
newspaper article.
68 Cf. Videotape of the report broadcast by Channel 2’s Contrapunto, concerning threats to and
harassment of journalists; testimony of
Luis Iberico Núñez before the Inter-American Court on November 20, 2000;
testimony of Baruch Ivcher Bronstein before the Inter-American Court on
November 20, 2000; testimony of July Sotelo Casanova before the Inter-American
Court on November 20, 2000; testimony of Rosario Lam Torres before the
Inter-American Court on November 20, 2000; testimony of Fernando Rospigliosi
Capurro before the Inter-American Court on November 21, 2000; Videotape
entitled “El caso Ivcher-Canal 2”,
containing the denunciation broadcast by Contrapunto
about different acts harassing Baruch Ivcher Bronstein, journalists and freedom
of expression.
69 Cf. “Ministerial Resolution” No. 1432-2000-IN, adopted on
November 7, 2000, published in the official gazette, El Peruano, on November 8 that year, headed: R.D. No.
117-97-IN-050100000000, which revoked the Peruvian nationality title, is
annulled.
70 Cf. “Supreme Resolution” No. 254-2000-JUS, adopted on
November 15, 2000, published in the official gazette El Peruano, on November 16 that year headed: The recommendations
formulated in Report 94-98 issued by the Inter-American Commission on Human
Rights are accepted.
71 Cf. File: “SEPTEMBER 1997-DECEMBER 2000 / Expenses incurred
owing to the political persecution and harassment of Mr. Baruch Ivcher”, containing 28 attachments; file:
“JANUARY 1999- DECEMBER 2000 / Extraordinary expenses incurred directly by Productos Paraíso del Peru S.A.C. owing
to the political persecution and harassment of Mr. Baruch Ivcher”, containing
40 attachments; file: “SEPTEMBER 1997-DECEMBER 1998 / Extraordinary expenses
incurred directly by Productos Paraíso
del Peru S.A.C. owing to the political persecution and harassment of Mr.
Baruch Ivcher”, containing 16 attachments.
72 In the brief of February 1, 2001 (supra para. 49) the State indicated that the Congress of the
Republic recently adopted Legislative Order No. 27,401, establishing that the
Executive was carrying out all the necessary actions to annul the results
deriving from the “purported withdrawal” of the contentious jurisdiction of the
Court by the previous Government. It also indicated that it considered that it
was particularly important to promote a policy of rapprochement and
collaboration with the inter-American human rights system and, insofar as this
case was concerned, to initiate discussions leading to a friendly settlement,
in the framework of the commitment assumed by the present Government, expressed
in “Supreme Order” No. 254-2000-JUS, which allowed Mr. Ivcher to recover the
ownership and administration of the Company.
73 Cf. Constitutional
Court case, supra note 8, para. 60.
75 Cf. Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Merits, Judgment, I.C.J. Reports 1986, p. 23,
para. 27. See also, Cf., inter alia, Fisheries Jurisdiction (United
Kingdom v. Iceland), Jurisdiction of the Court, Judgment, I.C.J. Reports 1973, p.
7, para. 12; Fisheries Jurisdiction (United
Kingdom v. Iceland), Merits, Judgment, I.C.J. Reports 1974, p. 9, para. 17;
Nuclear Tests (Australia v. France),
Judgment of 20 December 1974, I.C.J. Reports 1974, p. 257, para. 15; Aegean Sea Continental Shelf, Judgment,
I.C.J. Reports 1978, p. 7, para. 15; and United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J.
Reports 1980, p. 18, para. 33.
77 Cf. Proposed
Amendments to the Naturalization Provisions of the Constitution of Costa Rica. Advisory Opinion OC-4/84 of January 19, 1984. Series A No.
4, para. 32.
78 Cf. Castillo
Petruzzi et al. case. Judgment of May 30,
1999. Series C No. 52, para. 100; and Proposed
Amendments to the Naturalization Provisions of the Constitution of Costa Rica,
supra note 77, para. 34.
80 Cf. Proposed
Amendments to the Naturalization Provisions of the Constitution of Costa Rica, supra note 77,
para. 35.
82 Cf. Simple copy of the “Directorial Order” No.
117-97-IN-050100000000, of July 11, 1997, headed: Peruvian nationality title
annulled, published in the official gazette El
Peruano.
83 Cf. Judicial
Guarantees in States of Emergency
(Articles 27(2), 25 and 8 American Convention on Human Rights). Advisory
Opinion OC-9/87 of October 6, 1987. Series A No. 9, para. 27
85 Cf. Constitutional Court
case, supra note 8, para. 70; and
Exceptions to the Exhaustion of Domestic
Remedies (Articles 46(1), 46(2)(a) and 46(2)(b), American Convention on
Human Rights). Advisory Opinion OC-11/90 of August 10, 1990. Series A No. 11,
para. 28.
87 Cf. Constitucional
Tribunal case, supra note 8, para. 71.
88 Cf. Basic Principles on the Independence of the Judiciary,
adopted by the Seventh Congress of the United Nations on the Prevention of
Crime and the Treatment of the Offender, held in Milan, from 26 August to 6
September 1985, and confirmed by the General Assembly in resolutions 40/32 of
29 November 1985 and 40/146 of 13 December 1985; see also Constitutional Court case,
supra note 8, para. 73; and Castillo Petruzzi et al. case, supra
note 78, para. 129.
90 Cf. Eur. Court H.R.,
Case of Belvedere Alberghiera S.R.L. v. Italy, Judgment of 30 May, 2000,
para. 53.
91 Cf. Barcelona
Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970, p. 36, para. 47.
92 Cf. Constitutional
Court case, supra note 8, para. 90; Bámaca Velásquez case. Judgment of
November 25, 2000. Series C No. 70, para. 191; Cantoral Benavides case, supra
note 13, para. 163; Durand and Ugarte
case. Judgment of August 16, 2000. Series C No. 68, para. 101; Villagrán Morales et al. (the “Street
Children” case). Judgment of November 19, 1999. Series C No. 63, para. 234; Cesti Hurtado case, supra note 12, para. 121; Castillo Petruzzi et
al. case, supra note 78, para. 184;
Paniagua Morales et al. case. Judgment of March 8, 1998. Series D No. 37,
para. 164; Blake case. Judgment of
January 24, 1998. Series C No. 36, para. 102; Suárez Rosero case. Judgment of November 12, 1997. Series C No. 35,
para. 65; and Castillo Páez case. Judgment
of November 3, 1997. Series C No. 34, paras. 82 and 83.
93 Cf. Constitutional
Court case, supra note 8, para. 89; and Judicial Guarantees in States of Emergency (Articles 27(2), 25 and
8, American Convention on Human Rights), supra
note 83, para. 23.
94 Cf. Judicial Guarantees
in States of Emergency (Articles 27(2), 25 and 8 American Convention on
Human Rights), supra note 83, para.
24.
95 Cf. Compulsory Membership
in an Association Prescribed by Law for the Practice of Journalism
(Articles13 and 29, American Convention on Human Rights). Advisory Opinion
OC-5/85 of November 13, 1985. Series A No. 5, para. 30; and “The Last Temptation of Christ” case (Olmedo
Bustos et al.), supra note 6, para. 64
99 Cf. Compulsory
Membership in an Association Prescribed by Law for the Practice of Journalism
(Articles 13 and 29 American Convention on Human Rights), supra note 95, para. 69.
100 Cf. “The Last
Temptation of Christ” case (Olmedo Bustos et al.) , supra note 6,
para. 69; Eur. Court H.R., Handyside case, judgment of 7 December 1976, Series A
No. 24, para. 49; Eur. Court H.R.,
The Sunday Times case, judgment of 26 April 1979, Series A No. 30, paras.
59 and 65; Eur. Court H.R., Barthold
judgment of 25 March 1985, Series A no. 90, para. 55; Eur. Court H.R., Lingens, judgment of 8 July 1986, Series A No. 103, para.
41; Eur. Court H.R Müller and Others
judgment of 24 May 1988, Series A No. 133, para. 33; and Eur. Court HR, Otto-Preminger-Institut v.
Austria judgment of 20 September 1994, Series A No. 295-A, para. 49.
102 Cf. Compulsory
Membership in an Association Prescribed by Law for the Practice of Journalism
(Articles 13 and 29 American Convention on Human Rights), supra note 95, para. 42;
Eur. Court H.R., Müller and Others judgment of 24 May 1988, Series A No.
133, para. 32; and Eur. Court H.R., case
of Sürek and Özdemir v. Turkey, judgment of 8 July 1999, para. 57 (iii).
103 Cf. Eur. Court H.R.,
case of Sürek and Özdemir v. Turkey, supra note 102, para. 60.
105 Cf. Constitutional
Court case, supra note 8, para. 109.
108 Cf. Constitutional
Court case, supra note 8, para. 118; Suárez Rosero case. Reparations (Article
63(1) American Convention on Human Rights). Judgment of January 20, 1999.
Series C No. 44, para. 40. See also,
Factory at Chorzów, Jurisdiction, Judgment No. 8, 1927, P.C.I.J., Series A, No. 9, p. 21; and Factory at Chorzów, Merits, Judgment No.
13, 1928, P.C.I.J., Series A, No. 17,
p. 29; Reparation for Injuries Suffered
in the Service of the United Nations, Advisory Opinion, I.C.J. Reports 1949, p. 184.
110 Cf. “The Last Temptation
of Christ” case (Olmedo Bustos et al.), supra
note 6, para. 99; Constitutional Court
case, supra note 8, para. 122; Blake
case. Reparations (Article 63(1) American Convention on Human Rights).
Judgment of January 22, 1999. Series C No. 48, para. 55; Suárez Rosero case. Reparations, supra note
108, para. 72; Castillo Páez case. Reparations (Article 63(1) American Convention on
Human Rights). Judgment of November 27, 1998. Series C No. 43, para. 84; Neira Alegría et al case. Reparations (Article 63(1) American Convention on Human Rights). Judgment of
September 19, 1996. Series C No. 29, para. 56; and El Amparo case. Reparations (Article 63(1) American Convention on
Human Rights). Judgment of September 14, 1996. Series C No. 28, para. 62.
111 Cf. Blake case.
Reparations, supra note 110, para. 55; Castillo Páez case. Reparations supra note 110, para. 84; and El Amparo case. Reparations, supra
note 110, para. 35; and Cf., inter
alia, Cour eur. D. H, arrêt Kruslin
24 April 1990, Series A no. 176-A, p. 25, para. 39; Cour eur. D. H., arrêt McCallun of 30 August 1990, Series A no. 183, p.
17, para. 37; Cour eur. D. H, arrêt
Wassink du 27 septembre 1990, Series A no. 185-A, p. 15, para. 41; Cour eur. D. H., arrêt Koendjbiharie du 25
octobre 1990, Series A no. 185-B, p. 42, para. 34; Cour eur. D. H, arrêt Darby du 23 octobre 1990, Series A no. 187,
p. 14, para. 40; Cour eur. D. H., arrêt
Lala c. Pays-Bas du 22 septembre 1994, Series A No. 297-A, p. 15, para. 38; Cour eur. D. H, arrêt Pelladoah c. Pays-Bas
du 22 septembre 1994, série A no. 297-B, p. 26, para. 44; Cour eur. D. H., arrêt Kroon et autres c.
Pays-Bas du 27 octobre 1994, série A no. 297-C, p. 59, para. 45; Cour eur. D. H, arrêt Boner c. Royaume-Uni
du 28 octobre 1994, série A no. 300-B, p. 76, para. 46; and Cour eur. D. H, arrêt Ruiz Torija c.
Espagne du 9 décembre 1994, série A no. 303-A, p. 13, para. 33.
112 Cf. inter alia, Loayza Tamayo case.
Reparations (Article 63(1), American Convention on Human Rights). Judgment
of November 27, 1998. Series C No. 42, para. 139; Caballero Delgado and Santana case. Reparations (Article 63(1),
American Convention on Human Rights). Judgment of January 29, 1997. Series C
No. 31, para. 50; Castillo Páez case, Reparations, supra note
110, para. 84; Neira Alegría et al. case.
Reparations, supra note 110,
para. 58; and El Amparo case,
Reparations, supra note 110, para. 50; and, inter alia, Eur Court H.R.,
Kenmache v. France (Article 50) judgment of 2 November 1993, Series A No.
270-B, p. 16, para. 11.
113 Cf.
Constitutional Court, supra note 8, para. 123; and Blake case. Reparations, supra note 110, para. 65.