Cesti Hurtado Case, Judgment of May 31, 2001, Inter-Am Ct. H.R. (Ser. C) No. 78 (2001).


In the Cesti Hurtado case,

 

the Inter-American Court of Human Rights, composed of the following judges*:

 

Antônio A. Cançado Trindade, 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

 

in accordance with Articles 29, 55 and 56 of the Rules of Procedure of the Inter-American Court of Human Rights (hereinafter “the Court” or “the Inter-American Court”) in relation to Article 63(1) of the American Convention on Human Rights (hereinafter “the Convention” or “the American Convention”) and in compliance with the judgment of September 29, 1999, delivers this judgment on reparations.

 

 

 

 

 

I

Competence

 

1.         According to Articles 62 and 63(1) of the Convention, the Court is competent to decide on reparations and expenses in the instant case, because the Republic of Peru (hereinafter “the State”, “Peru” or “the State of Peru”) has been a State Party to the American Convention since July 29, 1978, and accepted the contentious jurisdiction of the Court on January 21, 1981.

 

II

Background

 

2.         This case was referred to the Court by the Inter-American Commission on Human Rights (hereinafter “the Commission” or “the Inter-American Commission”), in an application dated January 9, 1998, accompanied by Report No. 45/97 of October 16, 1997.  It originated in a petition (No. 11.730) against Peru, received by the Secretariat of the Commission on March 7, 1997.

 

3.         On September 29, 1999, the Court delivered judgment on the merits of the case in which it decided unanimously:

 

1.             to rule that the State of Peru violated Articles 7(6) and 25 of the American Convention on Human Rights with regard to Gustavo Adolfo Cesti Hurtado, in the terms established in paragraphs 123 to 133 of this judgment, and to order that the decision of the Chamber of Public Law of Lima on the petition for habeas corpus filed by Gustavo Adolfo Cesti Hurtado, of February 12, 1997, should be complied with;

 

2.             to rule that the State of Peru violated Article 7(1), 2 and 3 of the American Convention on Human Rights with regard to Gustavo Adolfo Cesti Hurtado, in the terms established in paragraphs 140 to 143 of this judgment;

 

3.             to rule that the State of Peru violated Article 8(1) of the American Convention on Human Rights with regard to Gustavo Adolfo Cesti Hurtado, in the terms established in paragraph 151 of this judgment;

 

4.             to rule that, in the instant case, it was not proved that the State of Peru violated Article 8(2) of the American Convention on Human Rights with regard to Gustavo Adolfo Cesti Hurtado, in the terms established in paragraph 152 of this judgment;

 

5.             to rule that, in the instant case, it was not proved that the State of Peru violated Article 5(2) of the American Convention on Human Rights with regard to Gustavo Adolfo Cesti Hurtado, in the terms established in paragraph 160 of this judgment;

 

6.             to rule that the State of Peru violated Articles 1(1) and 2 of the American Convention on Human Rights with regard to Gustavo Adolfo Cesti Hurtado, in the terms established in paragraphs 166 to 170 of this judgment;

 

7.             to rule that in the instant case it was not proved that the State of Peru violated Articles 11 and 21 of the American Convention on Human Rights with regard to Gustavo Adolfo Cesti Hurtado, in the terms established in paragraphs 177, 178 and 183 of this judgment;

 

8.             to rule that the proceeding against Gustavo Adolfo Cesti Hurtado under the military justice system is incompatible with the American Convention on Human Rights and to order the State to annul this action and all the effects that may derive from it;

 

9.             to rule that the State of Peru is obliged to pay fair compensation to Gustavo Adolfo Cesti Hurtado and to indemnify him for any expenses that he may have incurred in steps related to this proceeding, and

 

10.           to order that the reparations stage should be opened and to authorize its President to duly adopt the appropriate measures.

 

 

III

Proceeding at the Reparations Stage

 

4.         On January 21, 2000, the President of the Court (hereinafter “the President”), in compliance with the judgment of September 29, 1999, decided:

 

1.             To grant the Inter-American Commission on Human Rights until March 3, 2000, to submit a brief and any evidence it had. for the purpose of determining reparations and costs in the instant case.

 

2.             To grant Gustavo Adolfo Cesti Hurtado, the victim in this case, or his legal representative, until March 3, 2000, to submit a brief and any evidence he had, for the purpose of determining reparations and costs in the instant case.

 

3.             To instruct the Secretariat of the Court to remit all the briefs and evidence submitted to the State of Peru, once the period mentioned in the previous operative paragraphs has expired.

 

4.             To grant the State of Peru a period of six weeks, from the date on which it receives the briefs and the evidence referred to in operative paragraphs 1 and 2, to submit its comments and any evidence it had, for the purpose of determining reparations and costs in the instant case.

 

5.             To summon Gustavo Adolfo Cesti Hurtado, the victim in this case, or his legal representative, and also the Inter-American Commission on Human Rights and the State of Peru to a public hearing at a date that will be announced in due course, once the written stage of the proceeding has been completed.

 

5.         On March 1, 2000, the Inter-American Commission submitted its brief on reparations and expenses

 

6.         On March 2, 2000, Gustavo Adolfo Cesti Hurtado (hereinafter “Mr. Cesti” or “the victim”) submitted his brief and certain documentary evidence relating to reparations, in 14 annexes (infra 24).

 

7.         On March 20, 2000, the President summoned Mr. Cesti or his legal representative, Peru and the Inter-American Commission to a public hearing on reparations, to be held at the seat of the Court on June 16 that year.

 

8.         On April 7, 2000, the Secretariat of the Court (hereinafter “the Secretariat”) advised Mr. Cesti, the Inter-American Commission and the State that the Forty-eighth Regular Session of the Inter-American Court had been suspended, and that the public hearing on reparations programmed for that session (supra 7) would be convened again, in due course.

 

9.         On April 13, 2000, the State requested the President to extend the period established for formulating its comments on the briefs on reparations submitted by the victim and the Inter-American Commission.  The following day, on the instructions of the President, the Secretariat advised Peru that the period for submitting its brief had been extended until May 3, 2000.

 

10.       On May 4, 2000, the State commented on the briefs on reparations submitted by the victim and the Inter-American Commission.

 

11.       On June 12, 2000, the President summoned Mr. Cesti or his legal representative, the Inter-American Commission and Peru to a pubic hearing on reparations to be held at the seat of the Court on August 10, 2000.

 

12.       On June 20, 2000, Mr. Cesti commented on the brief on reparations submitted by the State.

 

13.       On August 10, 2000, the Court held a public hearing on reparations.

 

There appeared before the Court:

 

Gustavo Adolfo Cesti Hurtado;

 

for the Inter-American Commission:

 

Oscar Luján Fappiano

Alberto Borea Odría, and

Christina M. Cerna;

 

for the State:

 

Jorge Hawie Soret, and

Rolando Eyzaguirre.

 

14.       On September 11, 2000, the victim submitted written comments on the arguments made by the State during the public hearing on reparations.

 

15.       On November 6, 2000, the State informed the Court that “the Supreme Council of Military Justice ha[d] complied with the decisions of the judgment [on merits]” and attached a copy of the decision of the Plenary of the Supreme Council of Military Justice of September 14, 2000, which established that “the orders issued against [Mr. Cesti] that restricted his freedom and embargoed his property are suspended.”

 

16.       On February 9, 2001, the State informed the Court that it had appointed Patricio Marcial Rubio Correa and Iván Arturo Bazán Chacón as its agent and deputy agent, respectively, in this case, and on February 16 that year, it indicated the place where any notifications would be officially received.

 

17.       On April 26, 2001, the victim submitted a brief with observations on the reparations in the instant case and attached certain documentary evidence in six annexes (infra 27 and 29).

 

IV

Evidence

 

18.       Article 43 of the Rules of Procedure of the Inter-American Court (hereinafter “the Rules of Procedure”) establishes that:

 

Items of evidence tendered by the parties shall be admissible only if previous notification thereof is contained in the application and in the reply thereto [...].  Should any of the parties allege force majeure, serious impediment or the emergence of supervening events as grounds for producing an item of evidence, the Court may, in that particular instance, admit such evidence at a time other than those indicated above, provided that the opposing parties are guaranteed the right of defense.

 

 

19.       Article 44 of the Rules of Procedure indicates that, at any stage of the case, the Court may:

 

1.             Obtain, on is own motion, any evidence it considers helpful. In particular, it may hear as a witness, expert witness, or in any other capacity, any person whose evidence, statement or opinion it deems to be relevant.

 

2.             Request the parties to provide any evidence within their reach or any explanation or statement that, in its opinion, may be useful.

 

3.             Request any entity, office, organ or authority of its choice to obtain information, express an opinion, or deliver a report or pronouncement on any given point.  The documents may not be published without the authorization of the Court.

 

[...]

 

20.       According to the consistent practice of the Court, during the reparations stage, the parties must indicate the evidence that they will offer at the first occasion granted to them to make a written statement.  Moreover, the exercise of the Court’s discretional powers stipulated in Article 44 of its Rules of Procedure, allows it to request the parties to provide additional elements of evidence to help it to make a more informed decision; however, this does not grant the parties another opportunity to expand or complete their arguments or offer new evidence on reparations, unless the Court so allows.

 

21.       The Court has previously indicated that the proceedings before it are not subject to the same formalities as domestic proceedings and that, when incorporating determined elements into the body of evidence, particular attention must be paid to the circumstances of the specific case and to the limits imposed by respect for legal certainty and the procedural equality of the parties[1].  In its jurisprudence, the Court has sustained that it has the authority to evaluate the evidence within the limits of sound judicial discretion; and has always avoided making a rigid determination of the amount of evidence required to support a judgment[2].

 

22.       This practice extends to the briefs in which the victim and the Inter-American Commission formulate their claims for reparations and to the State’s answering brief, which are the principle documents at this stage and, in general, entail the same formalities with regard to the offer of evidence as the application.

 

23.       On this basis, the Court will proceed to examine and evaluate all the elements that make up the body of evidence, according to the rules of sound judicial discretion[3], within the legal framework of the instant case.

 

24.       Regarding the evidence, when Mr. Cesti submitted his brief on reparations, he attached a series of documents in 14 annexes[4] (supra 6).

25.       Neither the Inter-American Commission nor the State submitted any evidence with their briefs on reparations.

 

26.       On November 6, 2000, the State submitted a copy of the decision of the Plenary of the Supreme Council of Military Justice of September 14, 2000 (supra 15).

 

27.       On April 26, 2001, the victim submitted comments on reparations and attached six annexes[5] (supra 17).

 

28.       In the instant case, the Court admits the value as evidence of those documents that were submitted by the parties at the appropriate time, that were not contested or opposed, and the authenticity of which was not questioned[6].

 

29.       With regard to the decision of the Plenary of the Supreme Council of Military Justice of September 14, 2000, although this was not submitted at the appropriate procedural moment (supra 15 and 26), the Court observes that this evidence refers to a supervening event and this reason justifies its tardy presentation, so that it is in order to admit it to the body of evidence.  The same may be said of the evidence submitted by the victim on April 26, 2001 (supra 17 and 27).

 

 

V

Obligation to Make Reparation

 

30.       In the tenth operative paragraph of the judgment on merits of September 29, 1999, the Court decided to open the reparations stage and authorized the President to adopt the corresponding procedural measures.

 

31.       With regard to reparations, Article 63(1) of the American Convention is applicable and it establishes:

 

If the Court finds that there has been a violation of a right or freedom protected by this Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that was violated.  It shall also rule, if appropriate, that the consequences of the measure or situation that constituted the breach of such right or freedom be remedied and that fair compensation be paid to the injured party (the original is not underlined).

 

32.    In its consistent jurisprudence, this Court has reiterated that it is a principle of international law that any violation of an international obligation that has produced damage entails the obligation to make adequate reparation[7].

 

33.    Reparation of the damage resulting from the violation of an international obligation requires, whenever possible, the full restitution (restitutio in integrum), which consists in the re-establishment of the previous situation.  If this is not possible, as in the instant case, the international court must determine a series of measures to guarantee the violated rights and order payment of compensation for the damage caused[8].

 

34.       The respondent State may not invoke provisions of domestic law in order to modify or fail to comply with the obligation to make reparation – all aspects of which (scope, nature, methods and determination of the beneficiaries) are regulated by international law[9].

 

35.       As the Court has indicated, Article 63(1) of the American Convention codifies a rule of common law that is one of the fundamental principles of contemporary international law on State responsibility[10]. When an unlawful act occurs that may be attributed to a State, the international responsibility of the latter is immediately engaged for the violation of an international law, with the resulting obligation to make reparation and to ensure that the consequences of the violation cease[11].

 

36.       As the word indicates, reparation consists in the measures that are intended to eliminate the effects of the violations that were committed.  Their nature and amount depend on the damage caused at both the pecuniary and the non-pecuniary level.  Reparations are not supposed to enrich or impoverish the victim or his heirs[12].

 

37.    The reparations established in this judgment must be consistent with the violations found in the judgment on merits delivered by the Court on September 29, 1999 (supra 3).

 

 

VI

Beneficiaries

 

38.       In the instant case, Gustavo Adolfo Cesti Hurtado is evidently the victim.  In its judgment of September 29, 1999, the Court declared that the State violated several of his rights embodied in the Convention (supra 3); therefore, he merits the compensation that the Court determines in his favor.

 

39.       However, in his brief of March 2, 2000, Mr. Cesti also requested the Court to compensate his wife, children, mother-in-law and father for non-pecuniary damage, as they had been affected by the violations of his fundamental rights for more than three years.

 

40.       The Court recognizes that the violations that have been established must have produced prejudices of various kinds within the victim’s household and, consequently, his nearest next of kin may have the right to receive compensation, provided this is in relation to the violations that were declared in the judgment on merits and provided that it complies with the requirements established in the jurisprudence of this Court.

 

VII

Proven Facts

 

41.       To determine the measures of reparation that are in order in this case, the Court will base itself on the facts that were considered proven in its judgment of September 29, 1999.  Moreover, as it has been indicated, the victim and the State have contributed new evidence to the file that is relevant for determining the measures of reparation.  The Court has examined this evidence and the arguments of the parties and declares the following facts proven in relation to Mr. Cesti:

 

            a)         he was 45 years of age at the time of his detention[13];

 

            b)         at the time of his detention, he was the general manager and legal representative of the insurance company, Top Security Asesores and Corredores de Seguros Sociedad Anónima (hereinafter “Top Security” or “the company”[14];

 

            c)         while he was detained, he suffered health problems of a psychological and cardiological nature, for which he received medical treatment during his detention[15];

 

            d)         he was liberated on November 11, 1999[16];

 

            e)         he incurred a series of expenses for the professional fees of his representatives who prepared, filed and processed his case before the Peruvian authorities and the inter-American system[17];

            f)          his lawyers and other persons close to Mr. Cesti also incurred expenses, in particular, with regard to travel to Costa Rica and the United States[18];

 

            g)         his family employed private security services[19].

 

 

VIII

Reparations

 

A)  pecuniary  damage

 

42.       At the time of his detention, Mr. Cesti indicated that he was the legal representative and general manager of the family company, “Top Security”, which was well known in Peru; the shareholders were his wife, his daughter and his father.  He indicated that this company was fourth among more than 300 similar companies in the ranking drawn up by the Superintendency of Banks and Insurance and first in tax payments.  He stated that, during the three years prior to his detention, the company had billed, on average, more than US$ 2,000,000.00 (two million United States dollars) a year.  Lastly, he declared that, when he was detained, the Superintendency of Banks and Insurance decided that, as he was imprisoned, he could no longer fulfill his functions as legal representative of the company, an essential requirements for its operation and, therefore, the company’s operations had to be suspended, a situation which continued until the date of the brief on reparations.

 

43.       Based on the foregoing, Mr. Cesti requested the Court to order the following compensation for  pecuniary damage:

 

            a)         US$ 6,000,000.00 (six million United States dollars) for the loss of earnings caused directly by the termination of the company’s activities;

 

            b)         US$ 106,405.63 (one hundred and six thousand four hundred and five United States dollars and sixty-three cents) for the total expenses of security systems and personnel employed to provide surveillance services for the movements of the Cesti family, their homes and the company, Top Security, owing to the constant threats, thefts to remove information from the offices, the placing of a listening device in the office of Carmen Cardó de Cesti and threats with military weapons from moving vehicles;

 

            c)         US$ 15,690.69 (fifteen thousand six hundred and ninety United States dollars and sixty-nine cents) spent on announcements in the national and foreign press in order to try and lessen the damage to Mr. Cesti;

 

            d)         US$ 4,000,000.00 (four million United States dollars) for consequential damage in order to return the company, Top Security, to its former position of prestige and confidence;

 

            e)         US$ 43,907.21 (forty-three thousand nine hundred and seven United States dollars and twenty-one cents) for consequential damage, as a result of the interruption of an insurance program of the company, Top Security, known as “Mi Seguro” (My Insurance), which had to be suspended due to the problems that arose;

 

            f)          US$ 1,070,000.00 (one million seventy thousand United States dollars) for the total financial damage caused by the embargo decreed on his assets (property and savings), which his wife co-owned.  This amount includes US$ 360,000.00 (three hundred and sixty thousand United States dollars) for the embargo of US$ 400,000.00 (four hundred thousand United States dollars) during three years, plus US$ 710,000.00 (seven hundred and ten thousand United States dollars) for the embargo on his property.  This property consisted of a residence and a chalet in an exclusive zone of Lima, an apartment in the best commercial zone of this city and a parking space, the overall commercial value of which amounts to US$ 900,000.00 (nine hundred thousand United States dollars) approximately; and

 

            g)         US$ 67,316.48 (sixty-seven thousand three hundred and sixteen United States dollars and forty-eight cents) for additional damage because, owing to the embargoes ordered on his assets, the company went into arrears in its payments to the Superintendency of Tax Administration, so that this institution withdrew the benefit of the special system of fractioning tax payments.

 

44.       The Commission considered that Peru should make reparation to Mr. Cesti for the damage of an irreversible nature that he suffered as a result of the violation of his rights, by paying an adequate indemnity.  In this respect, the Commission requested the Court to compensate the victim for loss of earnings, consisting in the remuneration that he ceased to receive as an officer of the company, from the time of his detention and until his effective reincorporation; for the earnings that he had ceased to receive as a “shareholder” of the company, due to the termination of activities; and for the income and interest that he had ceased to receive because he could not dispose of his property owing to the embargo on his assets. The Commission also requested the Court to order compensation for the consequential damage resulting from the fact that he could not dispose of his embargoed assets and for the expenses in order to reinstate Top Security in its previous position. The Commission cited the estimates and amounts that the victim had requested and also the evidence that he had submitted.

 

45.       Finally, Peru declared that the claims for pecuniary damage were not in order because:

 

            a)         the fact that Mr. Cesti was absent from the administration of the company could not result in  pecuniary damage, as a direct consequence, since the company could have continued offering its services with another legal representative and even with Mr. Cesti’s participation and advice;

 

            b)         the company’s financial statements did not show that it had an annual income of US$ 2,000,000.00 (two million United States dollars);

 

            c)         the amount requested to compensate the expense of providing security to Mr. Cesti’s family and assets was not included in the judgment on merits, and it had not been requested in the domestic jurisdiction;

 

            d)         the expenses occasioned by the publication of newspaper announcements were made “motu proprio”;

 

            e)         the level of trust that a company attains is a result of the importance of the body corporate, unrelated to those who are on the board of directors, and the “Mi Seguro” program could have continued, so that its suspension did not constitute consequential damage; 

 

            f)          the embargoes that were decreed were executed as part of a right that corresponds to any jurisdictional instance, as a precautionary measure to ensure the execution of a subsequent result of the proceeding, and should not be considered pecuniary damage; and

 

            g)         the tax debt to the Office of the National Tax Administration Superintendency was in existence before Mr. Cesti was detained and could have been paid, taking into account the annual income that Mr. Cesti “said he received”; also, this debt arose from how the company, Top Security was managed, and, therefore, bore no relation to Mr. Cesti’s imprisonment.

 

46.       The Court takes note of the statements by the victim and the Commission that the violations that occurred in the instant case justify making reparation to Mr. Cesti for pecuniary damage.  However, in view of the particularities of this case and the nature of the reparations requested, this Court considers that they should be determined by the mechanisms established in the domestic laws.  The internal courts or the specialized national institutions have specific knowledge of the branch of activity to which the victim was dedicated.  Taking into consideration the specificity of the reparations requested and also the characteristics of commercial and company law and the commercial operations involved, the Court considers that this determination corresponds to the said national institutions rather than to an international human rights tribunal.

47.       In view of the foregoing, it is appropriate to order the State to compensate the victim for the pecuniary damage that the violations declared in the judgment on merits caused him, taking into account, within the circumstances of the instant case, the elements that normally constitute pecuniary damage; and that it is appropriate to establish the corresponding compensatory amounts, following the pertinent national norms, so that the victim will receive them within a reasonable period.

 

 

B)  Non-pecuniary damage

 

48.       The victim indicated that the three years of “undue, distressing and cruel detention, together with the permanent uncertainty and tension that the fact that [...] the motives for his liberation [were] not explained [... had] generate[d in him]” caused him to live “with the anguish of uncertainty based on the arbitrariness of the proceedings against him”, all of which had caused very severe psychological damage from which he has still not recovered.  He therefore requested the sum of US$ 20,000,000.00 (twenty million United States dollars) for non-pecuniary damage.  In the same way, he indicated that his family had been constantly harassed, threatened and humiliated, and attempts had been made on their lives during recent years and, accordingly, he requested the following amounts:

 

·                    US$ 2,000,000.00 (two million United States dollars) for his wife, Carmen Cardó Guarderas de Cesti;

·                    US$ 1,000,000.00 (one million United States dollars) for his daughter, Margarita del Carmen Cesti Cardó de Lama;

·                    US$ 1,000,000.00 (one million United States dollars) for his son, Gustavo Guillermo Cesti Cardó;

·                    US$ 500,000.00 (five hundred thousand United States dollars) for his mother-in-law, Judith Guarderas Cardó de Cardó; and

·                    US$ 500,000.00 (five hundred thousand United States dollars) for his father, Gustavo Aurelio Cesti Ackermann.

 

49.       The Inter-American Commission considered that the deprivation of freedom, disregarding a habeas corpus judgment that ordered the victim’s liberation, the prison sentence, the embargo on his assets and the publicity given to the case, affected the Mr. Cesti’s “feelings”; it also declared that this situation was aggravated owing to the type of work that he performed, because, in insurance activities, trust is an essential factor in the relationship between the insurer and the person insured.  Therefore, it requested a compensation, to be determined by the Court.

 

50.       With regard to non-pecuniary and psychological damage, Peru remarked that this claim was not admissible, because a detention could not be described as undue if it was executed on the basis of a warrant and, also, if the effects of the detention on Mr. Cesti were merely due to an omission on his part, since he failed to demand and process a request for release on bail.

 

51.       Based on extensive international jurisprudence, the Court considers that obtaining a judgment that supports the victim’s claims is, in itself, a form of reparation[20].  However, it also believes that it is pertinent to grant him an additional compensation for non-pecuniary damage, taking into account the circumstances of the instant case[21].  This should be determined on the basis of equity and prudent evaluation, since it is not possible to assess it precisely[22].

 

52.       In this respect, the Court considers it necessary to evaluate the violations that were declared in the judgment on merits in the instant case and the repercussions that these had on the victim and, observing the standards established by this Court in the resolution of other cases, to determine a reasonable and appropriate amount for non-pecuniary damage in favor of Mr. Cesti, as reparation for the harm caused him.

 

53.       Based on the previous considerations, the Court believes that it is fair to grant the victim a compensation of US$ 25,000.00 (twenty-five thousand United States dollars) for non-pecuniary damage.

 

54.       With regard to Mr., Cesti’s request that this Court order the State to provide reparations to his next of kin, this Court has already verified the existence of grave violations against the victim and must presume that they had consequences on his wife and his children, who were not only separated from Mr. Cesti and understood and shared his distress, but also, there are indications that they were harassed and threatened, as a result of which the Court had to order provisional measures in their favor.  The Court considers that these presumptions have not been disproved by the State and, therefore, it is pertinent to designate Mr. Cesti’s wife, Carmen Cardó Guarderas de Cesti, and his children, Margarita del Carmen Cesti Cardó de Lama and Gustavo Guillermo Cesti Cardó, beneficiaries of a reparation.