Cantoral Benavides Case, Judgment of December 3, 2001, Inter-Am Ct. H.R. (Ser. C) No. 88 (2001).
In
the Cantoral Benavides 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;
Alirio
Abreu Burelli, Judge;
Sergio
García Ramírez, Judge;
Carlos
Vicente de Roux Rengifo, Judge; and
Fernando
Vidal Ramírez, Judge ad hoc;
also
present,
Manuel
E. Ventura Robles, Secretary, and
Pablo
Saavedra Alessandri, Deputy Secretary,
pursuant
to articles 29, 55, 56(1) and 57 of the Court’s Rules of Procedure (hereinafter
“the Rules of Procedure”)**, in relation to Article 63(1) of the American Convention
on Human Rights (hereinafter “the Convention” or “the American Convention”)
and in consideration of operative paragraphs thirteen and fourteen of the
judgment on the merits that the Court, of August 18, 2000, hereby delivers
the present Judgment on reparations.
I
Competence
1. Under articles 62 and 63(1)
of the Convention, the Court is competent to decide the matter of reparations,
costs and expenses in the present case, since the State of Peru (hereinafter
“the State” or “Peru”) ratified the Convention on July 28, 1978 and accepted
the Court’s contentious jurisdiction on January 21, 1981.
II
Background
2. The Inter-American Commission on Human
Rights (hereinafter “the Commission” or “the Inter-American Commission”) presented
this case to the Court by means of an application filed on August 8, 1996.
On September 20, 1996, the State filed seven preliminary objections,
and on September 3, 1998, the Court issued its judgment on them.[1] Then, on August 18, 2000, the Court delivered
its judgment on the merits of the case, wherein it resolved
unanimously,
1. […] that the State violated, to the detriment of Luis Alberto
Cantoral-Benavides, Article 5(1) and 5(2) of the American Convention on Human
Rights.
unanimously,
2. […] that the State violated, to the detriment of Luis Alberto
Cantoral-Benavides, Article 7(1), 7(2), 7(3), 7(4) and 7(5) of the American
Convention on Human Rights.
unanimously,
3. […] that the State violated, to the detriment of Luis Alberto
Cantoral-Benavides, Article 8(1) of the American Convention on Human Rights.
unanimously,
4. […] that the State violated, to the detriment of Luis Alberto
Cantoral Benavides, Article 8(2) of the American Convention on Human Rights.
unanimously,
5. […] that the State violated, to the detriment of Luis Alberto
Cantoral Benavides, Article 8(2)c), 8(2)d) and 8(2)f) of the American Convention
on Human Rights.
unanimously,
6. […] that the State violated, to the detriment of Luis Alberto
Cantoral-Benavides, Article 8(2)g) and 8(3) of the American Convention on
Human Rights.
by seven votes to one,
7. […] that the State violated, to the detriment of Luis Alberto
Cantoral Benavides, Article 8(5) of the American Convention on Human Rights.
Judge Vidal Ramírez dissenting.
by seven votes to one,
8. […] that the State violated, to the detriment of Luis Alberto
Cantoral Benavides, Article 9 of the American Convention on Human Rights.
Judge Vidal Ramírez dissenting.
unanimously,
9. […] that the State violated, to the detriment of Luis Alberto
Cantoral Benavides, Articles 7(6) and 25(1) of the American Convention on
Human Rights.
unanimously,
10. […] that the State has not fulfilled the general obligations
of Article 1(1) and 2 of the American Convention on Human Rights, in respect
of the violations of the substantive rights identified in the preceding operative
paragraphs of the […] judgment.
unanimously,
11. […] that the State violated, to the
detriment of Luis Alberto Cantoral Benavides, Articles 2, 6 and 8 of the Inter-American
Convention to Prevent and Punish Torture.
unanimously,
12. […] that the State should order an investigation to determine
the persons responsible for the violations of human rights referred to in
[the] judgment, and punish them.
unanimously,
13. […] that the State should make reparations for the injury
caused by the violations.
unanimously,
14. […] to open the reparations stage, to which end it commissions
its President to take such measures as may be necessary.
III
Proceedings in the Reparations
Phase
3. On
September 13, 2000, the President of the Court (hereinafter “the President”),
in furtherance of the Court’s finding in operative paragraph fourteen of the
Judgment on the merits, decided as follows:
1. To grant the representatives
of the victims or, if applicable, their next of kin, a period until November
13, 2000 to present their arguments and available evidences for the purpose
of determining reparations and costs.
2. To instruct the Secretariat
of the Court to transmit all the received briefs and evidences to the Inter-American
Commission on Human Rights, once the period referred to in the above paragraph
has expired.
3. To grant the Inter-American Commission on Human Rights
a one-month period, starting on the date it receives the aforementioned briefs
and evidences, to submit the comments it deems relevant to the subject of
reparations and costs.
4. To instruct the Secretariat of the Court to forward all
the submitted briefs and evidences to the State of Peru, once the period referred
to in the above operative paragraph has expired.
5. To grant the State of Peru a two-month
period, starting on the date it receives the briefs and evidences referred
to in the above operative paragraph, to present its comments and available
evidences with a view to determine reparations and costs in the instant case.
6. To summon the representatives
of the victims or, if applicable, their next of kin, the Inter-American Commission
on Human Rights, and the State of Peru, once the written procedural stage
has concluded, to a public hearing, at a date that shall be informed in due
time.
4. On November 9, 2000, the victim’s representatives
petitioned the Court seeking a forty-day extension on the time period set
by the Court for filing the brief and evidences on reparations. On November 13, 2000, acting on the Court’s
instructions, the Secretariat of the Court (hereinafter “the Secretariat”)
extended the time period until January 5, 2001.
5. On January 5, 2001, the
victim’s representatives submitted their brief on reparations and costs.
6. On February 9, 2001, the
State sent the Court Executive Order No. 062-2001-RE, wherein Francisco Eguiguren
Praeli and Luis Alberto Otárola Peñaranda are designated as agent and alternate
agent, respectively, in the instant case.
7. The Inter-American Commission submitted its brief on reparations and costs in the present case on February 19, 2001.
8. On March 8, 2001, two powers
of attorney were received which Luis Alberto Cantoral Benavides (hereinafter
“Luis Alberto,” “the victim” or “Mr. Cantoral Benavides”) had granted to José
Burneo Labrín of the Fundación Ecuménica para el Desarrollo y la Paz (FEDEPAZ),
Viviana Krsticevic and Juan Carlos Gutiérrez from the Center for Justice and
International Law (CEJIL), and José Miguel Vivanco of Human Rights Watch/Americas,
authorizing these persons to represent him in the proceedings before the Court.
9. On
April 6, 2001, Mrs. Ana Luiza Loureiro de Vasconcellos submitted a psychiatric report on the
therapy the victim had received. On
April 19, the Secretariat informed the victim’s representatives and the Commission
that the Court could not consider that report until such time as one of the
parties filed a formal request to have it added to the body of evidence.
They were, therefore, asked to advise whether they intended to request
that the psychiatric report be added to the evidence.
On April 30 and May 4, 2001, the Commission and the victim’s representatives,
respectively, requested that the report prepared by Mrs. Vasconcellos be added
to the evidence in the case.
10. The State submitted its brief on reparations
and costs on May 15, 2001, which was subsequent to the deadline set (infra,
paragraph 31).
11. On June 19, 2001, the President of the Court
decided to summon the victim’s representatives, the Inter-American Commission
and the State to a public hearing that would be held at the seat of the Court
on September 6, 2001, to hear the testimony of witnesses Luis Alberto Cantoral
Benavides, Gladys Benavides López and Eloy Urso Cantoral Huamaní, and to receive
the report of expert witness Oscar Maldonado Fernández.
12. On
July 13, 2001, the victim’s representatives repeated their request that the
expert report prepared by Ana Luiza Loureiro de Vasconcellos be added to the
body of evidence and asked that she be summoned to the public hearing on reparations
so that she might give expert testimony on Luis Alberto’s health and the psychological
treatment he is receiving. On August 1, 2001, the victim’s representatives reiterated their
latest request. For its part, the
Commission offered its view on July 17, 2001, which was that the testimony
of the expert in question at the public hearing on reparations might be helpful
to the Court. The State had no comments
on this subject. On August 27, 2001,
the President of the Court, pursuant to Article 44(1) of the Rules of Procedure,
decided to summon Mrs. Ana Luiza Loureiro de Vasconcellos to appear at the
public hearing as an expert witness.
13. On September 6, 2001, the Court held the
public hearing on reparations.
Appearing before the Court were the following:
For
the victim’s representatives:
José Burneo Labrín;
Viviana Krsticevic; and
María Clara Galvis Patiño.
For the Inter-American Commission on Human Rights:
Domingo E. Acevedo, Delegate.
For the State of Peru:
Luis Alberto Otárola Peñaranda, alternate agent.
As witnesses proposed by the victim’s representatives:
Luis Alberto Cantoral Benavides;
Gladys Benavides López; y
Eloy Urso Cantoral Huamaní.
As
an expert witness proposed by the victim’s representatives:
Oscar
Maldonado Fernández.
Expert witness summoned by the Inter-American Court
of Human Rights (Art. 44(1 )of the Rules of Procedure):
Ana
Luiza Loureiro de Vasconcellos.
14.
On October 1, 2001,
the State submitted a brief affixing a copy of the “Report prepared by the
Committee to Study and Review Legislation Enacted Since April 5, 1992,” which
was introduced at the public hearing on reparations. The following day, by order of the President, the Secretariat set
October 15, 2001, as the deadline for the victim’s representatives and the
Commission to submit any comments they deemed relevant to the document submitted
by the State. On October 15, 2001,
the victim’s representatives submitted their comments. The Commission did not submit comments on the
subject.
15. By order of the President, on October 2, 2001, the Secretariat
set November 2, 2001, as the deadline for the victim’s representatives, the
Commission and the State to submit their written conclusions on reparations.
16.
On October 5, 2001, by order of the President, the Secretariat advised
the victim’s representatives, the Commission and the State that they were
to submit, by no later than October 16, 2001, according to Article 44 of the
Rules of Procedure, the data pertaining to the average salary of an office
worker and professional biologist in Peru for the period from February 6,
1993 to the present. On October 16,
2001, the victim’s representatives and the State submitted the requested documentation
as evidence for the Court to use in arriving at its finding. On October 25 of that year, the State submitted a brief adding more
information. The Commission did not
submit the requested information.
17.
The State submitted its brief containing its conclusions on the matter
of reparations and costs on October 9, 2001.
18. The
Commission submitted its brief of conclusions on reparations and costs in
the instant case on November 1, 2001.
19. The
victim’s representatives tendered their conclusions on reparations and costs
on November 2, 2001.
IV
Evidence
20. Based
on the provisions of articles 43 and 44 of the Rules of Procedure, before
examining the evidence tendered the Court has a number of observations that
apply to this specific case, most of which have been developed in this Court’s
own case law.
21. According to the consistent practice
of the Court, during the reparations phase, at the first occasion granted
to the parties to make a written statement the parties must indicate the evidence
that they will offer. Further, in
exercise of the discretionary authorities it is given under Article 44 of
its Rules of Procedure, the Court may request from the parties any additional
evidence it considers helpful, although the parties are not to construe such
request as an opportunity to elaborate upon or add to their allegations or
tender new evidence on reparations, unless the Court so authorizes.[2]
22. The Court has previously held that its proceedings
are not subject to the same formalities that must be followed in domestic
courts and that when adding certain elements to the body of evidence, particular
attention must be paid to the circumstances of the specific case and the limits
imposed by respect for legal certainty and the equality of the parties. [3]
23. This
practice applies as well to the briefs in which the victim’s representatives
or, when applicable, his/her next of kin, and the Inter-American Commission
formulate the reparations being sought. It
also applies to the State’s reply brief. These are the principal documents at the reparations phase and are,
on the whole, subject to the same formalities as those followed in the brief
tendering evidence. Based on this,
the Court will examine and evaluate all elements in the body of evidence,
according to the principle of sound judicial discretion,[4]
within the legal framework of the case sub
judice.
a) Documentary
evidence
24. The victim’s representatives attached a
copy of 106 documents, compiled into 49 appendices, to the reparations brief
they submitted (supra paragraph
5).[5]
25. Attached to its brief of comments on the
reparations sought, the State tendered copies of two presidential orders from
Peru’s executive branch (infra paragraph
31).[6]
26. On
April 6, 2001, Mrs. Ana Luiza Loureiro de Vasconcellos forwarded to the Court
a psychological report dated February 28, 2001, on the psychotherapy that
Mr. Cantoral Benavides had received (supra
paragraph 9).[7]
27. On
October 1, 2001, the State sent the Court a copy of the “Report prepared by
the Committee to Study and Review Legislation Enacted Since April 5, 1992”
(supra paragraph 14).[8]
28. On
October 16, 2001, the victim’s representatives and the State submitted data
pertaining to the average salaries of office workers and professional biologists
in Peru, as the Court had requested (supra paragraph 16).[9] On October 25, 2001, the State submitted a
brief containing additional information on this point (supra paragraph 16).[10]
B) Testimonial and Expert Evidence
29. At the public hearing held on September
6, 2001, the Court heard the testimony of witnesses Luis Alberto Cantoral
Benavides, the victim in this case; Gladys Benavides López, the victim’s mother;
and Eloy Urso Cantoral Huamaní, the victim’s uncle. The Court also received the expert reports
prepared by psychologists Oscar Maldonado Fernández and Ana Luiza Loureiro
de Vasconcellos.
C) Evidence
ASSESSMENT
30. In
the instant case, the Court acknowledges the evidentiary value of those documents
that the parties duly submitted, that were neither challenged nor disputed,
and whose authenticity was not called into question.
31. On May 15, 2001, the State submitted its
brief of comments on reparations and costs, which the Secretariat had requested
back on February 20, 2001, in keeping with the September 13, 2000 Order of
the President of the Court (supra paragraphs
3 and 10). The deadline for submitting
that brief expired on April 26, 2001. Therefore,
the brief was received 19 days after the deadline. By the standard established by the Court in
its own case law,[11]
the period of time that elapsed cannot be considered reasonable. In the instant case, the delay was not due
to a simple error in computing the due date.
The imperatives of legal security and procedural equality require that
deadlines be met,[12]
unless exceptional circumstances make that impossible. That did not happen in the instant case.
Consequently, because it was time-barred, the Court is not admitting
into evidence the State’s brief of May 15, 2001, and will refrain from addressing
its contents. Therefore, the evidence tendered by the State
with the brief of comments on the requested reparations (supra paragraph 25) is also considered to have been submitted extemporaneously.
32. Concerning
the written psychological report on Mr. Cantoral Benavides, submitted by Ana
Luiza Loureiro de Vasconcellos (supra
paragraph 9); the documents tendered by the victim’s representatives and
the State with reference to the average salaries of office workers and professional
biologists in Peru (supra paragraph
16), and the “Report prepared by the Committee to Study and Review Legislation
Enacted since April 5, 1992,” tendered by the State (supra
paragraph 14), the Court considers them helpful elements within the body of
evidence and adds them to that body of evidence, in accordance with Article
44(1) of the Rules of Procedure.
33. The Court is admitting the
tendered testimonial and expert evidence only to the extent that it is relevant
to the stated purpose of the line of questioning and the opinion.
34. Finally,
it is important to recall that the body of evidence in a case is an indivisible
whole, composed of the pieces of evidence tendered during all phases of the
proceeding.[13]
V
Facts Proven
35. To
determine the reparations measures appropriate in the instant case, the Court’s
reference point will be the facts established as proven in the judgment on
the merits delivered on August 18, 2000.
In the present phase of the proceedings, the parties have tendered
new pieces of evidence for the purpose of demonstrating the presence of other
factors relevant to determining the proper measures of reparation in this
case. The Court has examined that evidence and the
parties’ arguments, and declares the following facts proven:
a)
Luis Alberto Cantoral
Benavides was born on March 21, 1972. At
the time of his detention he was 20 years old and a biology student at Peru’s
Universidad Nacional de San Marcos. He
did informal teaching from time to time to earn money;[14]
b)
Luis Alberto Cantoral
Benavides was detained on February 6, 1993, and released on June 25, 1997,
which means that he was incarcerated for four years, four months and nineteen
days. He was pardoned on June 24,
1997, by executive order N. 078-97-JUS. Luis
Alberto Cantoral Benavides left Peru because of fear and a sense of insecurity,
and is afraid to return there. He
has lived in Brazil since June 1998;[15]
c)
The victim’s mother
is Gladys Benavides López, and his brothers are José Antonio, Luis Fernando
and Isaac Alonso, all by the surname Cantoral Benavides. His father, Isaac Cantoral Huamaní, died on December 29, 1975;[16]
d)
During his incarceration
and as a result of the torture and cruel, inhuman and degrading punishing
he endured, Luis Alberto Cantoral suffered from psychiatric and physical disorders.
The family paid the expenses necessitated to treat these disorders;[17]
e)
As a result of
the facts that prompted this case, Luis Alberto Cantoral Benavides has had
–and still has- physical and psychiatric
health problems;[18]
f)
Luis Alberto Cantoral
Benavides received psychiatric treatment under a special program run by the
National Coordinator of Human Rights [Coordinadora Nacional de Derechos Humanos]
(CNDDHH) in Lima, Peru. He has also
received psychotherapy in Brazil;[19]
g)
Mrs. Gladys Benavides
López, the victim’s mother, suffered pecuniary and non-pecuniary damages caused
by the facts of the case,[20]
and suffered from various ailments requiring physical and psychiatric care;
she herself had to defray the expense
of her medications;[21]
h) Luis Alberto Cantoral Benavides’ brothers suffered