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.