HAVING SEEN:
1. The
Judgment on reparations of September 14, 1996, of the Inter-American Court
of Human Rights (hereinafter "the Court") in the El Amparo Case.
2. The
brief of February 11, 1997, addressed to the Court by the Inter-American Commission
on Human Rights (hereinafter "the Commission"), endorsing the request
of the representatives of the victims’ relatives, and transmitted to the Court
by the Secretariat of the Commission on December 12, 1996, seeking the Court’s
"interpretation" or clarification
in accordance with Article 67 of the American Convention on Human Rights (hereinafter
"the Convention" or "the American Convention") of "the
reparation order handed down by the Honourable Court on September 14, 1996."
3. The
final part of that brief, quoted by the Commission, referring to the content
of paragraphs 57 and 58, of the Judgment on Reparations which stated that
Article 54 of the Military Code of Justice had not been applied in that case.
4. The
briefs submitted by the Commission in the El Amparo case showing that, by
and large, Article 54 of the Code of Military Justice had been applied by
the President of the Republic of Venezuela, Carlos Andrés Pérez.
CONSIDERING:
1. That
the transparency of this Tribunal's proceedings 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 may not be challenged by
merely formal considerations.
2. That
in its application before the Court, the Commission stated that the President
of the Republic of Venezuela, Carlos Andrés Pérez, had decreed that no pre-trial
investigation should be initiated against Army Major Ricardo Pérez Gutiérrez,
who had served as judge of the first instance in the El Amparo case in 1989,
inasmuch as no copy of the order of the President of the Republic of Venezuela,
alluded to, had been submitted to the Court. However, it should be noted that
the proceedings state that, following Major Ricardo Pérez Gutiérrez’s dismissal
and the nullification of his rulings, the case continued in the normal way.
3. That
the petitioners quote a number of sentences contained in the briefs presented
by the Government of Venezuela, or delivered at the public hearing by its
agents, and infer from them that the Government’s recognition of the application
of Article 54 of the Code of Military Justice in the El Amparo Case. The Court
considers that these incidental sentences do not have the effect attributed
to them by the petitioners since the
Court repeatedly claimed that it is not the mere existence of Article 54 of
the Code of Military Justice that should be taken into account, but rather
its application in exceptional circumstances. Moreover, from the beginning
of the case before the Commission, the Government of Venezuela stated in writing
on August 8, 1990, that "the Chief
of State has not intervened directly or indirectly in the Case in question
[El Amparo], although he was empowered to do so by the Code of Military Justice.
On the contrary, the President of the Republic has expressed his desire for
the investigations to proceed without hindrance with a view to ascertaining
the facts and punishing those responsible." Hence, far from admitting
the fact of agreement or recognition with regard to the application of Article
54 of the Code of Military Justice, the Government expressly denied it.
4. That
no reference was made to Judge Pérez Gutiérrez nor President Carlos Andrés
Pérez in the briefs submitted by the Commission, the Government or the victims'
representatives during the reparations phase. Instead, it was requested that
the Code of Military Justice be reformed as one of the reparation measures
on behalf of the victims. Only at the public hearing of January 27, 1996,
did one of the victims' representatives state that President Carlos Andrés
Pérez had "ordered cessation of
the judgment against Ricardo Pérez Gutiérrez, the judge who had fabricated
evidence to protect the officials involved", without submitting any
evidence or explaining how this fact had influenced the El Amparo proceedings.
5. That,
in view of the foregoing, the Court must conclude that the alleged application
of the Code of Military Justice by the President of the Republic of Venezuela,
Carlos Andrés Pérez, occurred, according to the original petitioners, "[in]
the actions by Judge Ricardo Pérez Gutiérrez",
in other words, in a Case other than the El Amparo Case, neither joined to
it nor submitted to the Court, so that given the lack of submissions and evidence
to the contrary, the aforementioned Judgment of September 14, 1996, duly stated
that the power granted to the President of the Republic of Venezuela in Article
54 of the Code of Military Justice, "had not been applied in the instant case"
and that "[the] military authorities
initiated and continued proceedings against those responsible in the El Amparo
Case and that the President of the Republic had never ordered the cessation
or dismissal of the proceedings."
NOW, THEREFORE:
THE INTER-AMERICAN
COURT OF HUMAN RIGHTS,
in exercise of the powers conferred to it by Article 29
of its Rules of Procedure,
DECIDES:
By five votes to one,
To declare that the Judgment on Reparations in the El Amparo
Case of September 14, 1996, is strictly based on the events of the proceedings,
it having been established that Article 54 of the Code of Military Justice
has not been applied in these proceedings.
Judge Cançado Trindade informed the Court of his Dissenting
Opinion, and Judge Montiel-Argüello of his Concurring Opinion.
Hector Fix-Zamudio
President
Hernán Salgado-Pesantes
Alejandro Montiel-Argüello
Máximo Pacheco-Gómez
Alirio Abreu-Burelli
Antônio A. Cançado Trindade
Manuel E. Ventura-Robles
Secretary