Durand and Ugarte Case, Judgment of December 3, 2001, Inter-Am Ct. H.R. (Ser. C) No. 89 (2001).
In the Durand and Ugarte 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 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 eight and nine of the Judgment
of August 16, 2000, delivers the following Judgment.
I
Competence
1. Under articles 62 and 63(1) of the Convention, the Court is
competent to hear the petition seeking reparations in the instant case. The State of Peru (hereinafter “the State”
or “Peru”) has been a State Party to the Convention since July 28, 1978, and
accepted the contentious jurisdiction
of the Court on January 21, 1981.
II
Background
2. The Inter-American Commission on Human
Rights (hereinafter “the Commission” or “the Inter-American Commission”) submitted
the instant case by application dated August 8, 1996. On September 20, 1996, the State filed seven
preliminary objections. The Court
delivered its judgment on those preliminary objections on May 28, 1999[1]
and its judgment on the merits of the case on August 16, 2000. There, the Court:
unanimously,
1. declare[d] that the
State violated, to the detriment of Nolberto Durand Ugarte and Gabriel Pablo
Ugarte Rivera, Article 4(1) of the American Convention on Human Rights.
by six votes against one,
2. declare[d] it ha[d] not been proven that the State violated, to the detriment of
Nolberto Durand Ugarte and Gabriel Pablo Ugarte Rivera, Article 5(2)
of the American Convention on Human Rights.
Judge Carlos Vicente de Roux Rengifo
disagrees.
unanimously,
3. declare[d] that the State violated,
to the detriment of Nolberto Durand Ugarte and Gabriel Pablo Ugarte Rivera,
Article 7(1) and 7(5) of the American Convention on Human Rights.
unanimously,
4. declare[d] that the State violated, to the detriment of
Nolberto Durand Ugarte and Gabriel Pablo Ugarte Rivera, Articles 7(6) and 25(1) of the American Convention
on Human Rights.
unanimously,
5. declare[d] that the State violated, to the detriment of
Nolberto Durand Ugarte and Gabriel Pablo Ugarte Rivera, as well as their relatives,
Articles 8(1) and 25(1) of the American Convention on Human Rights.
unanimously,
6. declare[d] that the State has failed to comply with the
general obligations of Articles 1(1) and 2 of the American Convention on Human
Rights regarding the violations of the substantive rights included in the
above decisions in th[at] judgment.
unanimously,
7. decide[d] that the State [was] compelled to make every
possible effort to locate and identify the victims’ mortal remains and deliver
them to their relatives, as well as to investigate the facts and process and
sanction the liable parties.
unanimously,
8. decide[d] that the State must compensate damages caused
by the violations.
unanimously,
9. decide[d] to open the stage of reparations; therefore,
it entrust[ed] its President with adopting timely necessary measures.
III
Proceedings in the reparations
phase
3. On
September 13, 2000, in furtherance of the Court’s decision in operative paragraph
nine of its judgment on the merits, the President of the Court (hereinafter
“the President”) decided as follows:
1. To grant the representatives of the victims or, if appropriate,
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 victims’ next of kin petitioned the Court
seeking a 40-day extension on the time period the Court set for submission
of the reparations brief.
5. Following the President’s instructions,
on November 13, 2000, the Secretariat extended the time period given to the
representatives of the victims’ next of kin to January 5, 2001.
6. The representatives of the victims’ next of kin filed their
reparations brief on January 5, 2001. With it they provided a power of attorney
wherein the victims’ next of kin named María Claudia
Pulido and Viviana Krsticevic, from the Center for Justice and International
Law (hereinafter “CEJIL”), and Ronald Gamarra Herrera, from the Instituto
de Defensa Legal [Legal Defense Institute] (hereinafter “IDL”), granting them
general powers to represent them in proceedings before the Inter-American
Court.
7. On February 9, 2001, the State informed the Court that Mr.
Patricio Marcial Rubio Correa had been designated as agent for this case.
8. The Inter-American Commission submitted its brief on reparations in the present case on February 10, 2001.
9. On April 17, 2001, the State petitioned the Court seeking an
extension for presentation of its observations on the reparations briefs. On instructions from the President, that very
day the Secretariat extended the time period given to the State, making the
new deadline April 25, 2001.
10. On April 25, 2001, the State presented its observations on the
briefs filed by the Inter-American Commission and the representatives of the
victims’ next of kin.
11. On April 26, 2001, the President of the Court summoned the representatives
of the victims’ next of kin, the Inter-American Commission and the State to
a public hearing to be held at the seat of the Court on May 25, 2001, to hear
the conclusions regarding reparations in the present case.
12. On May 9, 2001, the victims’ next of kin
filed a new brief wherein they informed the Court that they were appointing
CEJIL’s Viviana Krsticevic and the IDL’s Degnis Robert Meza Rivera to represent
them.
13. On May 25, 2001, the Court held a public
hearing on reparations.
There
appeared:
For the State of Peru:
Patricio Marcial Rubio Correa, agent;
Fernando Rojas, Ambassador of Peru
in Costa Rica, and
Jorge Lázaro, Minister with the Embassy
of Peru in San José, Costa Rica.
For the Inter-American Commission on Human Rights:
Domingo
E. Acevedo, Delegate.
For the victims’ next of kin:
Viviana Krsticevic; and
Degnis Robert Meza Rivera.
14. At the public hearing, the State informed the Court that it was in the process of preparing a “reparations proposal” for the victims’ next of kin, one befitting their circumstances and the events for which the State incurred responsibility. It went on to say that it did not yet have that proposal ready, but would complete it in the coming weeks, whereupon it would submit it to the representatives of the victims’ next of kin and to the Court.
15. On May 25, 2001, the representatives of the victims’ next of
kin filed a brief wherein they stated their position on the request the State
made during the public hearing seeking an extension on the period for submitting
a reparations proposal. They reasoned
that “inasmuch as the State would not be able to comply [with the commitment]
to come up with a proposal within the time frame specified by the victims’
representatives, and given the serious differences still separating the parties
on the question of monetary reparations and measures of satisfaction, any
postponement of the reparations decision would be ill-advised.”
They therefore asked the Court for a swift finding on the matter of
reparations.
16. On August 22 and November 5, 2001, the State
furnished information concerning the progress made toward fulfillment of the
judgment on the merits delivered in the instant case and on the measures taken
to fulfill the commitment the State had made at the public hearing to submit
a reparations proposal.
17. On
November 26, 2001, the State forwarded to the Court the “Agreement for full
reparations to the next of kin of the victims in the Durand and Ugarte case”
(hereinafter “the agreement” or “the reparations agreement”), which the State,
the victims’ next of kin and their representatives had signed in Lima, Peru
that very day.
18. Following instructions from
the Court, on November 28, 2001, the Secretariat informed the Inter-American
Commission that from the document sent to the Court, it appeared that the
Commission had neither signed the agreement nor participated in its transmission
to the Court. Given the terms of clause
eleven of the agreement, the Court requested the Commission’s view on the
agreement. The Court also indicated
that if no response were forthcoming within 48 hours, it would assume that
the Commission was in agreement with the reparations settlement.
19. On
November 30, 2001, the Commission filed a brief wherein it informed the Court
that it concurred with the reparations agreement concluded between the State,
the victims’ next of kin and their representatives.
IV
Obligation
to make reparations
Reparations
Agreement
20. The
applicable norm in the matter of reparations is Article 63(1) of the American
Convention, which reads as follows:
If the Court finds that there has
been a violation of a right or freedom protected by the 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. (emphasis added).
21. article 56 of the Rules of Procedure reads as follows:
1. When no
specific ruling on reparations has been made in the judgment on the merits,
the Court shall set the time and determine the procedure for the deferred
decision thereon.
2. If the Court is informed that the parties to the case have
reached an agreement in regard to the execution of the judgment on the merits,
it shall verify the fairness of the agreement and rule accordingly.
22.
The agreement reached among the State, the victims’ next of kin and
their representatives was submitted to the Court at that point in the reparations
phase when all the formalities and procedures prior to pronouncement of judgment
had been completed. Because the issue
of reparations is not in dispute, the Court has decided to examine the reparations
agreement concluded.
23.
It is the Court’s function to evaluate whether the reparations agreement
is in keeping with the pertinent provisions of the American Convention and
verify whether payment of a just compensation to the victims’ next of kin
is guaranteed and whether the various consequences of the human rights violations
committed in the instant case are redressed.
24. This Court
has repeatedly cited the principle of international law that applies to this
subject, which is that any violation of an international obligation carries
with it the obligation to make adequate reparation.[2]
25.
Reparation of the
damage caused by the violation of an international obligation requires, whenever
possible, full restitution (restitutio
in integrum), which is to reinstate the situation that existed prior to
commission of the violation. If full
restitution is not feasible, an international court can order the adoption
of measures to guarantee the violated rights and redress the effects that
the violations have had, including payment of compensation for the damages
caused.[3]
V
Beneficiaries
of the Reparations
26.
Clause three of the agreement stipulates that the beneficiaries of
the reparations shall be Virginia Bonifacia Ugarte Rivera de Durand and Nolberto
Durand Vargas, parents of Nolberto Durand Ugarte and sister and brother-in-law,
respectively, of Gabriel Pablo Ugarte Rivera.
The agreement also stipulates that no other natural or juridical person
may claim direct or indirect benefits under the agreement.
*
* *
27.
The Court notes that the identity of the persons named as beneficiaries
is not in contention. The designation
of these persons as beneficiaries is consistent with the Court’s case law.[4] The Court, therefore, endorses the agreement
in this regard. These persons are
the designated beneficiaries on two counts: as legal heirs of their deceased
next of kin, and as the victims of the violation of articles 8(1) and 25(1)
of the Convention, as declared in the judgment on the merits. The Court believes that on both these counts,
Virginia Bonifacia Ugarte Rivera de Durand and Nolberto Durand Vargas must
be regarded as the beneficiaries of the reparations in the instant case.
VI
Pecuniary
Reparations
28. In
the reparations agreement, under the heading of “Economic compensation,” the
State pledges to pay the sum of US$125,000.00 (one hundred twenty-five thousand
United States dollars) to Virginia Bonifacia Ugarte Rivera de Durand and Nolberto
Durand Vargas. The agreement also
stipulates that the amount shall “constitute the single payment that the State
will make, either directly or indirectly, to the beneficiaries of the compensation
owed as a result of the judgment of August 16, 2000,” delivered by the Inter-American
Court. It also states that with the
signing of the agreement, “the victims’ legal heirs and their representatives
expressly waive any right to bring judicial or extrajudicial action against
the State seeking an additional sum.” Moreover, under the agreement Peru reserves
the right to bring its own action against those convicted of the material
facts in the instant case, in order to recover the monies it has paid in damages,
all in accordance with the applicable law.
29. As to the manner of payment,
under clause seven of the agreement the parties thereto agree that the State
will begin the steps necessary to effect partial payment within the current
fiscal year; should no payment be possible in this fiscal year, it will incorporate
the amount specified in the pecuniary damages clause, into the General Budget
of the Republic for Fiscal Year 2002. Payment shall be effected during the second quarter of that fiscal
year, in accordance with the corresponding budgetary appropriation, and shall
be made directly and jointly to both beneficiaries of the reparations.
30. That very same clause of the agreement stipulates
that the specified sum (supra paragraph 29) shall not be subject to any existing
or future tax.
31. Finally, clause seven of
the agreement also stipulates that “[o]nce the period for payment […] has
expired, the State shall be in default and shall be required to pay the interest
set by the Banco Central de Reserva to compensate for obligations in default.”
*
* *
32. The Court is endorsing the
terms of the agreement as regards the pecuniary compensation agreed upon as
one form of compensation for the damages caused, and considers that they constitute
a positive step on Peru’s part toward good faith compliance with its obligations
under international conventions. The
appropriate course of action is for the State to take the necessary steps
to effect payment of a portion of the compensation during the present fiscal
period or, failing that, to pay the full compensation owed in the second quarter
of fiscal year 2002, as the parties agreed.
33. The Court also endorses the terms agreed
upon with regard to the method to be used to pay the pecuniary damages specified
in the agreement, which terms are consistent with the Court’s case law.[5]
34. The Court would add the following stipulation:
if, for any reason, the beneficiaries of the compensation are unable to claim
it in person, the State shall, within six months, place the required amounts
in United States dollars, in a certificate of deposit or account in the name
of the beneficiaries or their legal heirs, with a solvent and secure financial
institution, under the most favorable financial terms that banking law and
practice allow.
VII
Other
forms of Reparation
35.
In addition to pecuniary compensation, the State pledged to make reparations
of other kinds to the victims’ next of kin.
36.
Under clause eight, titled “Health Benefits,” the State undertook to
cover, through the Ministry of Health, the costs associated with the health
services that the corresponding health care centers provide to the beneficiaries,
including the cost of medications. This
obligation will endure for the life of the beneficiaries and take effect as
of the date the agreement is signed.
37. Clause nine of the agreement
–titled “Services for psychological support and interpersonal growth and development”-
provides that “the State will enroll the beneficiaries in any programs currently
being offered under the Emergency Zones’ Resettlement and Development Assistance Plan
-run by the Ministry for the Advancement of Women and Human Development (PROMUDEH)-
whose services the beneficiaries may require.”
38. Under clause ten –titled “Assistance with residential construction”-,
the State, through the Social Assistance Fund [Fondo de Apoyo Social (FONAS)]
of the Materials Stockpile of the Ministry of the Presidency and in accordance
with the provisions of Law 27205 and the rules and procedures established
for that purpose, undertakes to pay a portion of the construction cost of
the residence of the beneficiaries of the reparations, located at Jirón Hanancusco
N. 942, Tahuantinsuyo Sector, Zone Four, Independencia District, Lima.
39. In its second, fourth and fifth clauses,
the agreement spells out other forms of reparations that the State undertakes,
involving measures of satisfaction and guarantees of non-repetition. They are:
a)
publish the Court’s
August 16, 2000 Judgment in the Official Gazette El Peruano and circulate its contents via such other media as deemed
appropriate for that purpose, within the 30 days following the signing of
the agreement;
b)
include in the
executive decree ordering publication of the agreement “a public apology to
the victims for the grievous injuries caused” and confirmation of the State’s
resolve that events of this nature shall never recur;
c)
investigate and
punish those responsible for the events, pursuant to operative paragraph seven
of the Court’s August 16, 2000 Judgment on the merits, and prosecute the investigation
instituted through Lima’s 41st Criminal Prosecutor’s Office into
the murder of 30 persons, among them Nolberto Durand Ugarte and Gabriel Pablo
Ugarte Rivera; and
d)
take concrete measures
to locate and identify the mortal remains of Nolberto Durand Ugarte and Gabriel
Pablo Ugarte Rivera and deliver them to their next of kin, pursuant to operative
paragraph seven of the Court’s August 16, 2000 judgment on the
merits.
*
* *
40. The Court is endorsing those clauses of
the agreement that concern these other forms of reparation as a form of compensation
for the damages caused. With these
reparations, the State is making a positive contribution toward fulfillment
of the obligation to make reparation for the damages caused, pursuant to Article
63(1) of the American Convention. Consequently, the State will honor the services and other benefits
it pledged to provide to the beneficiaries of the reparations in the form
of non-pecuniary damages, and do so within and for the time periods stipulated
in the agreement.
VIII
HOMOLOGATION
and monitoring of compliance
41. Based on the foregoing considerations,
the Court is approving the “Agreement for full reparations to the next of kin of the victims
in the Durand and Ugarte case,” concluded among the State, the victims’ next
of kin and their representatives and viewed favorably by the Inter-American
Commission and inasmuch as it conforms to the American Convention and serves
to accomplish the object and purpose of the case sub judice
42. To comply with that agreement,
the State is to take the aforesaid reparations measures within the time periods
and under the terms agreed upon, and in accordance with the Court’s ruling
in the present judgment.
43. The Court reserves the authority
to supervise for full compliance of the present Judgment. The case will be closed once the State has
fully complied with the Judgement.
44. Inasmuch as the Court has endorsed the agreement in this Judgment,
it will settle any problem as to its interpretation, or controversy or difference
of opinion that may arise.
IX
Operative
Paragraphs
45. Now therefore,
THE COURT
DECIDES:
unanimously,
1.
That it endorses, in the terms spelled out in this Judgment, the reparations
agreement that the State and the victims’ next of kin and their legal representatives
concluded on November 26, 2001.
2. That the State shall pay the sum of US$125,000.00
(one hundred twenty-five thousand United States dollars) to Virginia Bonifacia
Ugarte Rivera de Durand and Nolberto Durand Vargas, parents of Nolberto Durand
Ugarte and sister and brother-in-law, respectively, of Gabriel Pablo Ugarte
Rivera. To that end, it shall adopt
the measures necessary to pay a portion of the compensation during the course
of this fiscal year or, failing that, make full payment of the pecuniary damages
during the second quarter of fiscal year 2002, pursuant to paragraphs 32,
33 and 34 of the present Judgment. The sum will be divided and disbursed in equal shares to the beneficiaries.
3.
That the State shall provide to the beneficiaries of the reparations
with health services, psychological support, interpersonal development services
and assistance with construction of a residence, as detailed in paragraphs
36, 37, 38 and 40 of this Judgment.
4.
That pursuant to
paragraphs 39 and 40 of the present Judgment, the State shall make the following
non-pecuniary reparations:
a)
publish the Court’s
August 16, 2000 Judgment in the Official Gazette El Peruano and circulate its contents via such other media as deemed
appropriate for that purpose, within the 30 days following the signing of
the agreement;
b)
include in the
executive decree ordering publication of the agreement, “a public apology
to the victims for the grievous injuries caused” and confirmation of the State’s
resolve that events of this nature shall never recur;
c)
investigate and
punish those responsible for the events, pursuant to operative paragraph seven
of the Court’s August 16, 2000 Judgment on the merits, and prosecute the investigation
instituted through Lima’s 41st Criminal Prosecutor’s Office for
the murder of 30 persons, among them Nolberto Durand Ugarte and Gabriel Pablo
Ugarte Rivera; and
d)
take concrete measures
to locate and identify the mortal remains of Nolberto Durand Ugarte and Gabriel
Pablo Ugarte Rivera and deliver them to their next of kin, pursuant to operative
paragraph seven of the Court’s August 16, 2000 Judgment on the
merits.
5. That within six months of the date of notification of the present
Judgment, the State shall submit to the Inter-American Court of Human Rights
a report on performance of its reparations obligations.
6. That the Court will monitor compliance with the obligations
established in the present Judgment and will close this case once the State
has fully complied with the Judgment.
Done
at San José, Costa Rica, on December 3, 2001, in Spanish and English, the
Spanish text being authentic.
Antônio A.
Cançado Trindade
President
Máximo Pacheco-Gómez
Hernán Salgado-Pesantes
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