The Inter-American Court of Human Rights (hereinafter the Court or the Inter-American Court) during its XLV Regular Session that is holding at its seat in San José, Costa Rica, from 16 September to 2 October 1999, examined the instrument that the State of Peru (hereinafter Peru or the Peruvian State) presented to the Secretariat of the Organization of American States (OAS) in Washington, D.C. on 9 July 1999, by which the State communicates that it withdraws the declaration of recognition of the facultative clause of submission to the contentious jurisdiction of the Inter-American Court of Human Rights, withdrawal that will produce an immediate effect and will be applied to all cases in which Peru has not answered the application submitted before the Court. Likewise, the Court examined the effect of the said declaration in the Ivcher Bronstein and Tribunal Constitucional Cases, referred in the declaration because Peru, at that time, had not presented the answer to the applications in these Cases. The Court declared the inadmissibility of the Peruvian State's pretension of withdrawing the contentious jurisdiction of the Court, with immediate effects. The Court's Ivcher Bronstein and Tribunal Constitucional decision with regard to the facts and the law is summarized below.
Ivcher Bronstein Case against Peru
The application in this case (No. 11.762), submitted by the Inter-American Commission of Human Rights (hereinafter the Commission or the Inter-American Commission) on 31 March 1999 refers to the alleged violations of human rights against Baruch Ivcher-Bronstein, a Peruvian citizen by naturalization, who was the main shareholder, Director and President of the Board of Directors of Channel 2 of the Peruvian television, which is managed by a company named Compañía Latinoamericana de Radiodifusión, S.A. The application is based, according to the Commission, on the alleged arbitrary revocation, by the State of Peru, of Mr. Ivcher-Bronstein's title of nationality, the acts of deprivation of the editorial control of Channel 2 -'Frecuencia Latina' and the restriction of his freedom of expression, which was exercised through denunciations of human rights violations and corruption.
The Commission requested the Court to determine that the State of Peru violated articles 20 (Right to Nationality), 8 (Right to a Fair Trial), 13 (Freedom of Thought and Expression), 21 (Right to Property) and 25 (Judicial Protection) of the American Convention on Human Rights (hereinafter the Convention or the American Convention) all in relation to article 1(1) of the same.
Tribunal Constitucional Case against Peru
The application in this Case (No. 11.760), submitted by the Inter-American Commission on 2 July 1999 refers to the dismissal of three of the seven justices of Peru's Constitutional Court by a majority of the Peruvian Congress after the Constitutional Court had duly exercised its broad powers for constitutional interpretation by ruling that a law (No. 26.657) was inapplicable in that it allowed the second reelection of the current President of Peru, this contravening Article 112 of the Constitution, which limits presidential mandates to two consecutive five-year periods. The dismissal of the three justices has left the current Constitutional Court in disarray, with only four justices, who are legally incapable of performing one of the Court's basic functions- that of overseeing the constitutionality of laws by means of judicial review- thus leaving the people of Peru defenseless and unprotected.¬
The Commission requested the Court to determine that the State of Peru violated the Right to a Fair Trial (Article 8 (1), (2) (c) (d) (f)), the Right to Participate in Government (Article 23 (1.c)) and the Right to Judicial Protection (Article 25), of the American Convention, to the detriment of the alleged victims. Moreover, the Commission considers that Peru violated Article 1(1) in relation to its obligation to respect the rights and freedoms guaranteed under the Convention, as well as its' obligation, established under Article 2, to adopt such legislative or other measures as may be necessary to give domestic legal effect to the rights and freedoms of all the persons subject to its jurisdiction.
On 24 September 1999 the Inter-American Court issued two Judgments about competence in the Ivcher-Bronstein and Tribunal Constitucional Cases. In the said Judgments the Tribunal established, among others, the following considerations:
The pretended withdrawal by the State of Peru of the declaration of recognition of the contentious jurisdiction of the Court and the legal effects of the said declaration must be resolved by this Tribunal. The Inter-American Court has the inherent power to decide the extent of its jurisdiction.
The jurisdiction of the Court cannot be conditioned to acts other than its own actions. The instruments of acceptance of the facultative clause of the compulsory jurisdiction (Article 62(1) of the Convention) presuppose the recognition, by the States that present it, of the Court's right to decide any dispute concerning its jurisdiction. An objection or any other action submitted by the State with the purpose of imposing the jurisdiction of the Court is innocuous, for in any circumstance the Court retains the compétence de la compétence, for being master of its jurisdiction.
When interpreting the Convention in accordance with its object and purpose, the Court must act in such a way that the integrity of the system established in Article 62(1) of the Convention is preserved. It would be inadmissible to subordinate such a system to restrictions unexpectedly added by the defendant States to the terms of their recognition of the contentious jurisdiction of the Tribunal. This would not only affect the efficiency of the said system, but it would also hinder its future progress.
The acceptance of the contentious jurisdiction of the Court becomes an unalterable clause that does not permit restrictions which are not expressly contained in Article 62(1) of the American Convention. Due to the fundamental importance of the said clause for the operation of the system of protection of the Convention, it cannot be at the mercy of restrictions not foreseen, invoked by the States Parties due to reasons of internal order.
There is no norm in the American Convention that empowers States Parties to withdraw their declaration of acceptance of the compulsory jurisdiction of the Court, nor the Peruvian instrument of acceptance of the jurisdiction of the Court of 21 January 1991 establishes such possibility.
An interpretation of the American Convention in good faith according to the ordinary meaning that might be attributed to the terms of the treaty in the context of these, and taking into account their objective and purpose, leads this Court to consider that a State Party of the American Convention can only withdraw from its conventional obligations by observing the dispositions of the same treaty.
Article 29(a) of the American Convention states that no provision of the same shall be interpreted permitting any State Party, group or person, to suppress the exercise of the rights and freedoms recognized by the Convention or to restrict them to a greater enjoyment or extent than is provided in it. An interpretation of the American Convention permitting a State Party to withdraw its recognition of the compulsory jurisdiction of the Tribunal, as it is intended in the present case, would imply the suppression of the exercise of the rights and freedoms recognized by the Convention, would be contrary to its objective and purpose as a treaty of human rights, would deprive all beneficiaries of the Convention of the additional guaranty of protection of such rights by means of the acts of its jurisdictional entity.
For the above-mentioned reasons, the Court considers that Peru's purported withdrawal of the declaration of recognition of the contentious jurisdiction of the Court with immediate effects is inadmissible, as well as any consequences that are intended to derive from the said withdrawal, among them, the return of the application which results irrelevant.
Consequently, in its Judgment about admissibility of the Ivcher Bronstein and the Tribunal Constitucional Cases, the Inter-American Court unanimously decided to:
1. Declare that:
(a) the Inter-American Court of Human Rights is competent to consider the present case;
(b) the purported withdrawal, with immediate effects, by the Peruvian State, of the declaration of recognition of the contentious jurisdiction of the Inter-American Court of Human Rights is inadmissible.
2. Continue with the consideration and the proceedings of the present case.
3. Empower its President to summon on occasion the Peruvian State and the Inter-American Commission of 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.
4. Notify this Judgment to the Peruvian State and the Inter-American Commission of Human Rights.
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The composition of the Court is the following: Antônio A. Cançado Trindade (Brazil), President; Máximo Pacheco-Gómez (Chile), Vice-President; Hernán Salgado-Pesantes (Ecuador); Oliver Jackman (Barbados); Alirio Abreu-Burelli (Venezuela); Sergio García-Ramírez (Mexico) and Carlos Vicente de Roux-Rengifo (Colombia). The Secretary of the Court is Manuel E. Ventura-Robles and the Deputy Secretary, Renzo Pomi.
The Inter-American Court of Human Rights is an autonomous judicial institution of the Organization of American States, formally established in 1979. It is formed by jurists of the highest moral standing and competence in the area of Human Rights.
For further information, please address all requests to:
Manuel E. Ventura-Robles
Secretary, Inter-American Court of Human Rights
P.O. Box 6906-1000
San José, Costa Rica
Telephone: (506) 234-0581, Fax: (506) 234-0584
San José, 27 September 1999.
(*) El contenido de este comunicado es responsabilidad de la Secretaría de la Corte Interamericana de Derechos Humanos. El texto oficial de los documentos reseñados puede obtenerse mediante solicitud escrita dirigida a la Secretaría, en la dirección que se adjunta.
(*) The contents of this release are the responsibility of the Secretariat of the Inter-American Court of Human Rights. The official text of the documents may be obtained by submitting a written request to the Secretariat at the address provided at the end of this document.