Ivcher Brontein Case, Judgment of September 4, 2001, Inter-Am Ct. H.R. (Ser. C) No. 84 (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;
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
Pablo Saavedra Alessandri, Deputy Secretary;
pursuant to Article 67 of the American Convention
on Human Rights (hereinafter “the Convention” or “the American Convention”)
and Article 58 of the Court’s Rules of Procedure[1]
(hereinafter “the Rules of Procedure), decides the following request filed
by the Inter-American Commission on Human Rights (hereinafter “the Commission”
or “the Inter-American Commission”) on May 4, 2001, and by Baruch Ivcher Bronstein
(hereinafter “Mr. Ivcher” or “Mr. Ivcher Bronstein”) on May 8, 2001, seeking
interpretation of the judgment delivered by the Court on February 6, 2001,
in the Ivcher Bronstein Case (hereinafter “the judgment on the merits”) against
the State of Peru (hereinafter “the State,” “the Peruvian State,” or “Per
I
Competence
and Composition of the Court
1. Article 67 of the Convention provides
that:
[T]he judgment
of the Court shall be final and not subject to appeal. In case of disagreement as to the meaning or
scope of the judgment, the Court shall interpret it at the request of any
of the parties, provided the request is made within ninety days from the date
of notification of the judgment.
Under that article, the Court is competent to interpret
its own judgments. When considering
a request for interpretation, the Court shall be composed, whenever possible,
of the same judges who delivered the judgment whose interpretation is being
sought (Article 58(3) of the Rules of Procedure). In this instance, the Court is composed of
the same judges who delivered the judgment on the merits, whose interpretation
has been requested by the Inter-American Commission and by Mr. Ivcher Bronstein.
II
Introduction
of the requests for interpretation
2. On May 4 and 8, 2001, the Inter-American
Commission and Mr. Ivcher, respectively, each filed a request for interpretation
of the judgment on the merits, pursuant to Article 67 of the American Convention.
3.
By note of June 1, 2001, the Secretariat of the Court (hereinafter
“the Secretariat”) forwarded to Peru a copy of the requests for interpretation
and, in accordance with Article 58(2) of the Rules of Procedure, invited it
to present whatever comments it deemed relevant by no later than July 1, 2001.
4. On July 2, 2001, the State presented its
written comments on the request for interpretation, which it supplemented
via a brief dated July 3, 2001.
III
Purpose of
the requests for interpretation
5. In its request for interpretation, the
Commission asked the Court to stipulate “that the liability of the Peruvian
State encompasses all elements that constitute reparations under international
law[,] [which are] material and moral damages, other forms of non-pecuniary
reparations, and the costs and expenses incurred in the domestic and international
jurisdictions.” For his part, Mr.
Ivcher Bronstein asked the Court “to interpret the reparations obligations
arising from the judgment […] and the procedure that must be followed for
a just compensation that constitutes restitutio in integrum for the damages caused [...]”.
6. Both requests for interpretation were
based on the fact that on April 16, 2001, Peru sent Mr. Ivcher a note to the
following effect:
As to the comment in your note concerning
payment of compensation as reparations for any material damages caused as
a result of the violation of your rights, I have made inquiries and coordinated
with the State authorities concerned. I have been told that from the findings of in the judgment delivered
by the Inter-American Court, it is the Peruvian Government’s understanding
that the only payments ordered are those to compensate for moral damages and
reimburse court costs. It is the Government’s
interpretation of the judgment that no additional compensation of any kind
is either recognized or contemplated. The Government, therefore, does not share your
interpretation of the Court’s judgment, to the effect that an obligation of
this type is ordered.
7. As the preceding paragraphs show, the
clarification sought in both requests for interpretation concerned the scope
of the reparations the Court awarded in its judgment on the merits, in particular
the matter of reparations for material damages. As the purpose of both requests is the same, this Court will decide
them jointly.
IV
Admissibility
8. Under Article 67 of the Convention, the
request for interpretation must be filed “within ninety days from the date
of notification of the judgment.” The
Court has established that the parties were given notice of the judgment on
the merits in this case on February 9, 2001.
The requests for interpretation were, therefore, presented within the
required time limit (supra 2).
9. The State’s comments were received at
the Secretariat of the Court on July 2 and 3, 2001, by which time the deadline
the Court had set for that purpose had already passed. They were, therefore, submitted extemporaneously. Applying the criterion of reasonableness and
timeliness, the Court is nonetheless admitting the written comments, inasmuch
as they were received at the Secretariat one and two days alter the deadline,
respectively (supra 3 and 4), a
delay that does not tilt the balance that the Court must keep between the
protection of human rights and the principle of legal certainty and justice.[2]
10. Concerning judgments of interpretation,
the Court has held that
[t]he transparency of this Court
is enhanced by clarification, when it so deems appropriate, of the content
and scope of its Judgments, thereby dissipating any doubts about them and
that they not be challenged by merely formal considerations.[3]
11. The Court must now turn its attention to
the question of whether the issues that the request for interpretation raises
meet the standard set in the applicable rules.[4] Article 58 of the Rules of Procedure provides
that:
[t]he request for interpretation,
referred to in Article 67 of the Convention, may be made in connection with
judgments on the merits or on reparations and shall be filed with the Secretariat.
It shall state with precision the issues relating to the meaning or
scope of the judgment of which the interpretation is requested.
12. The requests for interpretation filed by
the Commission and by Mr. Ivcher are based on the fact that there is a difference
of opinion as to the whether the reparation ordered by the Court in its judgment
on the merits includes “reparation for material damages.”
13. Given the foregoing, the Court observes
that the request for interpretation complies with the terms of Article 67
of the Convention and Article 58 of the Rules of Procedure and thus declares
it admissible. Accordingly, the Court
will proceed to interpret those aspects of its judgment on whose meaning and
scope there is disagreement.
V
Scope of the
Reparations
Arguments
of the Commission and of Mr. Ivcher
14. The
Commission made reference to the Peruvian State’s interpretation to the effect
that the reparation ordered by this Court for Mr. Ivcher would not include
compensation that would constitute restitutio
in integrum for the damages caused
by the violation of which he was victim.
15. For
his part, Mr. Ivcher stated that in the judgment on the merits, the Court
established the reparations owed to the victim in the form of moral damages
and court costs and expenses, and did not fix a figure for compensation of
material damages (supra 5).
The State’s
arguments
16. In
its brief of July 2, 2001, Peru argued that the judgment on the merits was
clear in the sense that it did not contain any mandate ordering or requiring
payment of compensation for material damages.
In the operative part of the judgment, the only payments ordered were
moral damages and reimbursement of court costs and expenses.
The Stated added the following:
While the judgment (paragraph 178)
rightly stipulates that the reparation of the damage caused by the violation
of an international obligation requires full restitution (restitutio in integrum), the content and
scope of such restitution cannot be left open-ended or imprecise. The judgment must spell out precisely what
indemnity is to be paid as compensation for the damages caused. It is clear from the operative part of the
judgment that payment of moral damages and reimbursement of court costs and
expenses are the only pecuniary reparations considered.
[…]
Consequently, it must be clearly
established that the Government of Peru acknowledges and condemns the serious
abuses that Mr. Baruch Ivcher suffered under the previous authoritarian regime.
It is endeavoring to contribute to the full reinstatement and redress
of his rights. However, it is of the opinion that a claim seeking compensation
for material damages, in addition to those already ordered by the Court in
the form of moral damages and reimbursement of court costs and expenses, is
not contemplated in either the preamble or operative part of the Court’s judgment,
and hence can hardly be ordered by way of an interpretation, especially inasmuch
as […] the text of the judgment contains
observations from which one can infer that such a claim had already been examined
and discarded by the Court.
*
* *
The Court’s observations
17. Given
the arguments made by the parties, the Court is to clarify whether, under
the terms of its February 6, 2001 judgment, the reparations owed by the State
include material damages resulting from the violation of Mr. Ivcher’s rights.
18. Article 63(1) of the American Convention
reads as follows:
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 measures or situation
that constituted the breach of such right or freedom be remedied and that
fair compensation be paid to the injured party.
19. The
Court has previously held that
[the] request or petition
for interpretation of a judgment may not be used as a means of challenging
it, but must be made for the sole purpose of working out the meaning of the
decision when one of the parties maintains that the text of its operative
paragraphs or its consideranda is
unclear or imprecise, provided those consideranda
affect that operative paragraph. Hence,
a request for interpretation may not be used to seek amendment or nullification
of the judgment in question.[5]
20. In
the pertinent operative paragraphs of the judgment whose interpretation is
sought, the Court
7. [...] finds that the State must 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 must 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 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.
21. Thus,
the judgment on the merits is very clear on the various reparations that the
Peruvian State owes:
a)
In the case of
moral damages and court costs and expenses, the judgment orders specific amounts,
quantified in United States dollars or the equivalent in Peruvian currency;
b)
As for identification
and punishment of those responsible, the judgment orders that the State is
to investigate the facts that violated Mr. Ivcher’s rights, in order to identify
and punish those responsible for those violations;
c)
As restitution
to restore, insofar as possible, the situation as it was before the violations
were committed, the judgment orders that the State shall facilitate the conditions
to enable Mr. Ivcher to take the necessary measures to recover the use and
enjoyment of his rights as majority shareholder in the Compañía Latinoamericana de Radiodifusión,
S.A, as he had been up until August
1, 1997, under the terms of domestic law, and
d)
The judgment further
orders that domestic law should be applied for recovery of the earnings that
Mr. Ivcher was denied as a consequence of the violation of his rights as a
shareholder in and officer of that firm, including any dividends he is owed
as a company shareholder.
In its judgment, the Court specifies that to comply
with the clauses of the judgment that in this paragraph are listed as c) and
d), the respective petitions must be filed with the competent national authorities.
It is the national authorities who must decide the matter in accordance
with the applicable Peruvian laws.
The Court has thus clearly set out all the reparations
applicable to the instant case and has stipulated where measures must be taken
directly with the Peruvian State so that it, in accordance with its own laws,
will settle Mr. Ivcher’s claims seeking material damages. The State has a clear-cut obligation to fulfill:
to receive, act upon and settle those claims in accordance with the
law.
VI
22. Now, therefore,
THE INTER-AMERICAN COURT OF HUMAN RIGHTS,
pursuant
to Article 67 of the Convention and Article 58 of the Rules of Procedure,
DecideS:
unanimously,
1. That the requests filed by the Inter-American
Commission on Human Rights and Mr. Baruch Ivcher Bronstein seeking interpretation
of the Judgment of February 6, 2001 in the Ivcher Bronstein Case are admissible.
2.
That to determine any compensation owed for the material damages caused
to Mr. Ivcher, the pertinent provisions of Peruvian law are to be followed,
and the necessary claims are to be filed with the national authorities competent
to settle those claims.
Done
in Spanish and English, the Spanish text being authentic, at the seat of the
Court in San José, Costa Rica, September 4, 2001.
Antônio A.
Cançado Trindade
President
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