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j.
Paraguay
The
Case of the Juvenile Correction Facility [Centro
de Reeducación de Menores]
298.
On May 20, 2002, pursuant to
Article 51 of the American Convention on Human Rights, the Commission
submitted for consideration by the Court the case of Elvio Epifanio
Acosta Ocampos and others (“Panchito López” Juvenile Correction
Facility)
299.
As
a result of the allegedly inhuman prison conditions, there were three
fires leading to the death of the following: Elvio Epifanio Acosta
Ocampos, Marcos Antonio Giménez, Diego Walter Valdez, Sergio Daniel
Vega Figueredo, Sergio David Poletti Domínguez, Mario Alvarez Pérez,
Juan Alcides Román Barrios, Antonio Damián Escobar Morinigo, Carlos
Raúl De la Cruz y Benito Augusto Adorno. Also wounded were: Abel
Achar Acuña, José Milicades Cañete, Ever Ramón Molinas Zárate,
Arsenio Joel Barrios Báez, Alfredo Duarte Ramos, Sergio Vincent
Navarro Moraez, Raúl Esteban Portillo, Ismael Méndez Aranda, Pedro
Iván Peña, Osvaldo Daniel Sosa, Walter Javier Riveros Rojas, Osmar
López Verón, Miguel Coronel, Cesar Ojeda, Heriberto Zaráte,
Franciso Noé Andrada, Jorge Daniel Toledo, Pablo Emmanuel Rojas,
Sixto González Franco, Francisco Ramón Adorno, Antonio Delgado,
Claudio Coronel Quiroga, Clemente Luis Escobar González, Julio César
García, José Amado Jara Fernando, Alberto David Martínez, Miguel
Angel Martínez, Osvaldo Espínola Mora, Hugo Antonio Quintana Vera,
Juan Carlos Vivero Zarza, Eduardo Vera, Ulises Zelaya Florez, Hugo
Olmedo, Rafael Aquino Acuña, Nelson Rodríguez, Demetrio Silguero,
Aristides Ramón Ortiz B. and Carlos Raúl Romero Giacomo.
300.
Given those circumstances,
the Commission asked the Court to declare the Paraguayan State guilty
of violating the right to humane treatment, to personal liberty, to a
fair trial, to judicial protection, and to the measures of protection
for children enshrined in Articles 5, 7, 8, 25, and 19 of the American
Convention, respectively, all of them in conjunction with Article 1(1)
of that Convention, to the detriment of all the children and
adolescents confined to the “Panchito López” Institute between
August 1996 and July 2001. In respect of the aforementioned persons
who died in the fires, the Commission requested that the Court declare
the State guilty of violating not only the abovementioned rights, but
also the right to life enshrined in Article 4 of the Convention.
301.
The Commission further
requested that the Court declare the obligation of the State of
Paraguay to ensure that the alleged victims and their next-of-kin were
able to exercise the rights that had been violated and to assume all
the financial and nonfinancial acts of reparation described in the
petition. The latter
include, especially, amending domestic legislation on the imprisonment
of children and adolescents so that it conforms to international
standards in this regard; keeping children and adolescents separate
from the adult prison population; a review of all legal actions
against children who had been imprisoned in the “Panchito López”
Institute; the investigation, trial, and punishment of those
responsible for the alleged violations; compensation for the moral and
material prejudice suffered by the victims and their next-of-kin; and
the establishment of a reparation fund for all children imprisoned in
that detention center.
The
Ricardo Canese Case
302.
On June 12, 2002, the
Inter-American Commission on Human Rights filed a complaint against
the Republic of Paraguay (Case 12.032), regarding the sentence and
restrictions on travel abroad imposed on Mr. Ricardo Canese, as a
result of demonstrations that occurred when he was a presidential
candidate. According to the petition lodged by the Inter-American
Commission, Mr. Canese was convicted on March 22, 1994 because, in
August 1992 when Mr. Juan Carlos Wasmosy announced that he was running
for President, the alleged victim (also a presidential candidate)
questioned his alleged ties to former dictator Alfredo Stroessner,
saying that, through Consorcio Empresarial Paraguayo–CONEMPA,
Wasmosy had been Stroessner’s “straw man” in the Itaipú
hydrolelectric dam project. The Commission indicated that, as a result
of these statements and of a suit brought by the partners in CONEMPA,
who had not been named in the statements, Mr. Canese was tried and
subsequently convicted.
303.
The Commission added that
currently Mr. Ricardo Canese had been sentenced to two months in
prison and a fine for libel and had been denied the right to leave the
country freely. In its
petition the Commission asked that the Court declare the Republic of
Paraguay in violation of Articles 13 (Freedom of Thought and
Expression), 8 (Right to a Fair Trial), 9 (Freedom from Ex Post Facto
Laws), and 22 (Freedom of Movement and Residence), all of them in
conjunction with Article 1(1) (Obligation to Respect Rights) of the
American Convention on Human Rights, and that, pursuant to Article 63
of that same international convention, it declare that the Paraguayan
State was obliged to make reparation to Mr. Ricardo Canese, with such
reparation including both “financial compensation and nonfinancial
acts of compensation commensurate with the damage inflicted and right
that had been violated.”
304.
In its petition, the
Commission requested that the Court order the State, as acts of
reparation: a) to annul the criminal proceedings brought against
Ricardo Canese “for his having exercised his freedom of expression”;
to expunge any legal effects they may have caused, in other words, to
erase any reference to the punishment imposed in all criminal records
and to annul any other “eventual” legal consequence; and to lift
the permanent ban on leaving the country; b) to ensure that all State
authorities comply thoroughly and fully with the amendments to
domestic legislation regarding torts against another’s honor
contained in the 1998 Criminal Code, in accordance with the
international standards governing this field; and especially that it
be established that “the expression of
views on matters of public interest should not and may not be
penalized”; c) to refrain from making excessive use of measures
restricting bail and converting them into an advance punishment that
has no place in law; d) to apologize publicly for “the violations of
human rights it had committed” and to “publish the judgment
rendered in due course by the Court”; e) to ensure that, in cases in
which it is permissible, by international standards, to take someone
to court for torts against someone else’s honor and permissible to
restrict certain rights to guarantee the defendant’s presence in
court, such measures are commensurate and appropriate, and above all
involve procedures that do not compromise rights either indefinitely
or for an excessive length of time; f) to pay an amount, established
in fairness by the Court “for violations suffered for eight years,
beginning with the first instance judgment, taking into account the
possible loss of income resulting from the restriction on his right to
leave the country and the time spent defending his case before
Paraguayan courts and in the inter-American system”; g) to pay an
amount, established in fairness by the Court, for moral prejudice,
whereby the calculation should take into account “the suffering
caused by years of proceedings and the deprivation they involved”;
and h) to make the aforementioned acts of reparation directly to Mr.
Canese.
305.
Finally, the Commission asked
the Court to order the Paraguayan State to pay the domestic legal
costs incurred in the domestic remedies pursued by the alleged victim,
those incurred at the international level in the processing of the
case by the Inter-American Commission, and those that may be incurred
as a result of the processing of this petition by the Inter-American
Court.
k. Peru
The
Cesti Hurtado Case
306.
On March 25, 2002, the
Commission presented to the Court its observations regarding the
communication from Mr. Cesti Hurtado, dated March 9, 2002, regarding
execution of the judgment
[…] of the Court of May 31, 2001 in the Cesti Hurtado vs. Peru case.
The Commission reported that only the release of Mr. Cesti had
materialized.
307.
The State submitted to the
Court a brief dated November 28, 2002, acknowledging that as of that
date a payment of US$65,000.00 was still pending.
On May 31, 2001, the Court issued a reparation judgment,
ordering the payment of US$65,000 within six months.
The
Cantoral Benavides
Case
308.
In a communication dated
October 9, 2002, which was received on October 28 of that year, the
Court asked the Commission to present a report on the status of
compliance with the reparation judgment.
After analyzing the contents of the judgment on reparation in
the instant case and the reports submitted by the State and by the
representatives of the victims, the Commission concluded in its report
to the Court of November 8, 2002 that the Peruvian State had not fully
complied within the specified six-month period with all obligations
imposed in the judgment of the Inter-American Court of December 3,
2001. On December 13,
2002, the Court notified the Commission that it had sent the Peruvian
State a note, asking it to submit by June 16, 2003 a report on the
status of compliance with the judgment on reparation, which will be
forwarded to the representatives and next of kin of the victims and to
the Commission, who will be given two months to present their
observations.
The
Durand and Ugarte Case
309.
In a communication dated
October 9, 2002, the Court asked the Commission to present a report on
the status of compliance with the judgment on reparation.
After analyzing the contents of the judgment on reparation in
the instant case and the reports submitted by the State and by the
representatives of the victims, the Commission concluded in its report
to the Court of November 8, 2002 that the Peruvian State had not fully
and promptly complied with the obligations entered into in the
agreement signed with the next of kin of the victims and their
representatives. In a decision dated November 27, 2002, the Court
again ordered the Peruvian State to:
1.
Proceed to investigate, try, and punish those responsible for
what had happened.
2.
Continue taking every possible step to locate and identify the
remains of Nolberto Durand Ugarte and Gabriel Pablo Ugarte Rivera and
to hand them over to their next-of-kin, as ordered in operative item
(d) of the judgment on reparation.
The
Castillo Páez Case
310.
In
a communication of the Court Secretariat, sent at the behest of the
full Court, the parties were requested to report on fulfillment of the
judgment on reparation by January 7, 2002.
In a brief on the observations, dated January 11, 2002, the
Commission reported on fulfillment of the compensation obligation and
other steps taken. The Commission determined that, in its opinion,
some of the persons involved had not been included in the
investigation, such as two members of the Peruvian National Police,
who falsified and then removed the register of detainees at the San
Juan de Miraflores police precinct, to which Mr. Castillo Páez was
taken.
311.
In
a decision on November 27, 2002, the Inter-American Court again
ordered the Peruvian State to:
1.
Take all necessary steps to apply and ensure prompt fulfillment
of the judgment on reparation rendered on November 27, 1998 by the
Inter-American Court of Human Rights in the Castillo Páez case,
pursuant to Article 68.1 of the American Convention on Human Rights.
The Loayza Tamayo Case
312.
In a brief dated August 17,
2001, the Commission presented its observations on the reports
submitted by the State, indicating that it agreed that Ms. Loayza
could not be reinstated as a teacher unless she returned to Peru but
that the wages she had lost could be deposited or paid to a person
with power of attorney granted by Ms. Loayza. The Commission added
that it had no information on steps taken by the State in respect of
Decree-Laws 25.475 y 25.659, regarding the investigation into the
facts and identification and punishment of those responsible, or on
the adoption of provisions under domestic law to comply with that
obligation.
313.
In its decision of November
27, 2002 assessing compliance with the judgment on the merits of the
case rendered on September 17, 1997 and the judgment on reparation
rendered on November 27, 1998, the Inter-American Court pointed out:
1.
That the State is obliged to take all necessary steps to apply
and ensure prompt fulfillment of the judgment on reparation rendered
on November 27, 1998 by the Inter-American Court of Human Rights in
the Loayza Tamayo case, pursuant to Article 68.1 of the American
Convention on Human Rights.
The
Neira Alegría Case
314.
In assessing compliance with the
judgment on the merits of the case rendered on January 19, 1995 and
the judgment on reparation rendered on September 19, 1996, the
Inter-American Court pointed out in its decision of November 28, 2002
that:
1.
That the State is obliged to take all necessary steps to apply
and ensure prompt fulfillment of the judgment on reparation rendered
on September 19, 1996 by the Inter-American Court of Human Rights in
the case of Neira Alegría and others, pursuant to Article 68.1 of the
American Convention on Human Rights.
The
Barrios Altos Case
315.
On April 29, 2002 a public
ceremony was held in the auditorium of the Ministry of Justice, in
which victims and next of kin of the victims in the Barrios Altos case
were given approximately US$3,000,000 in financial compensation, as
ordered by the Court as part of the operative items established in the
judgment rendered on November 30, 2001.
316.
The State compensated the
following survivors: Natividad Condorcahuana Chicaña, Felipe León
León, Tomás Livias Ortega and Alfonso Rodas Alvítez; and the
beneficiaries of the reparation in respect of the following victims
who were killed: Placentina Marcela Chumbipuma Aguirre, Luis Alberto
Díaz Astovilca, Octavio Benigno Huamanyaruri Nolazco, Luis Antonio
León Borja, Vilomeno León León, Lucio Quispe Huanaco, Tito Ricardo
Ramírez Alberto, Teobaldo Ríos Lira, Manuela Isaías Ríos Pérez,
Javier Manuel Ríos Rojas, Alejandro Rosales Alejandro, Nelly María
Rubina Arquñigo, Odar Mender Sifuentes Núñez, Benedicta Yanque
Churo, and Máximo León
León. With regard to
victims Tito Ricardo Ramírez Alberto, Benedicta Yanque Churo, and
Odar Ménder Sifuentes Núñez, the Ministry of Justice proceeded to
publish notices in the largest circulation newspapers calling upon the
general public to help locate their next of kin.
317.
The petitioners point out
that the State has failed to pay compensation to the beneficiaries who
are minors. Their compensation was to have been placed in a trust fund
on the most favorable terms available in Peruvian banking practice.
318.
With respect to nonfinancial
reparation, the State reported that, in the case of health care for
the next of kin of the victims, it had asked the “El Porvenir”
medical center to provide care and medicine free of charge for
Elizabeth Flores Huamán and her underage child. The petitioners
reported that the State had not fulfilled either its educational or
its health care obligations, or the other nonfinancial items of
reparation specified in the judgment.
319.
On
November 22, 2002, the Court issued a Decision on Compliance with the
Judgment in the Barrios Altos case, in which it said it was essential
that the Peruvian State inform the Court regarding:
a) Publication
of an announcement on radio and television indicating that the next of
kin of Odar Mender (o Méndez) Sifuentes Nuñez, Benedicta Yanque
Churo, and Tito Ricardo Ramírez Alberto were being sought so that
they could receive compensation in relation to the facts of this case;
b) Payment
of the compensation owed to the beneficiaries of Odar Mender (o
Méndez) Sifuentes Núñez, Benedicta Yanque Churo, and Tito Ricardo
Ramírez Alberto, who had not been located at the time the judgment on
reparation had been rendered;
c) Payment
of compensation to the following beneficiaries:
i) Luis
Alvaro León Flores, son of victim Luis Antonio León Borja;
ii) Martín
León Lunazco, son of victim Máximo León León;
iii) Norma
Haydé Quispe Valle, daughter of victim Lucio Quispe Huanaco;
iv) Cristina
Ríos Rojas and Ingrid Elizabeth Ríos Rojas, daughters of victim
Manuel Isaías Ríos Pérez; and
v) Rocío
Rosales Capillo, daughter of victim Alejandro Rosales Alejandro;
d) The
deposit of the compensation for underage beneficiaries in “a trust
fund on the most favorable terms available in Peruvian banking
practice,” as stipulated in paragraph 35 of the judgment on
reparation;
e) Whether
the compensations for beneficiaries were paid in the first quarter of
fiscal year 2002, and if not, regarding the payment of penalty
interest as stipulated in paragraph 36 of the judgment on reparation;
f) Fulfillment
of the educational and health care reparation obligations;
g) Fulfillment
of the Court’s instructions in its judgment of interpretation of the
judgment on the merits of this case “regarding the meaning and scope
of the rescission of Laws Nº 26479 and [Nº] 26492”, should the
State have any information additional to that it already conveyed to
the Court;
h) Progress
with incorporating into law “the most appropriate legal definition”
to describe the offense of extrajudicial execution;
i) Progress
with respect to signing and ratifying the International Convention on
the Non-Applicability of Statutes of Limitation to War Crimes and
Crimes against Humanity;
j) Publication
of the judgment of the Court in the Official Gazette El
Peruano and the dissemination of the contents of the judgment in
other media;
k) Inclusion
in the Supreme Resolution ordering publication of the agreement on
reparation of “a public request for forgiveness by the victims for
the grave harm done” and a statement ratifying the determination to
ensure that such acts never occur again; and
l) The
memorial monument that was supposed to be built.
320.
The
State likewise considers that the Peruvian State should submit its
report on the points mentioned in the foregoing paragraph by no later
than April 7, 2003. The representatives of the victims and the victims’ next of
kin, and the Inter-American Commission shall present their
observations on that report within two months of receiving it.
The Court shall review overall compliance with its judgment on
reparation once it has received the report and the observations
regarding the aforementioned steps.
The
Constitutional Tribunal Case
321.
Pursuant to judgment of the
Inter-American Court of January 31, 2001, the Peruvian Congress
reinstated the three magistrates dismissed from the Constitutional
Court. The Peruvian State also compensated Manuel Aguirre Roca,
Guillermo Rey Terry and Delia Revoredo Marsano for legal costs and
fees. Still pending is payment of wages lost and other benefits owed
to the three magistrates under domestic law. Also pending are the
nonfinancial reparations stipulated in the judgment of January 31,
2001.
The
Baruch Ivcher Case
322.
In April 2002, the petitioner
notified the Court of his position regarding the failure of the State
to fulfill the judgment of the Inter-American Court.
323.
The State reported that
Ministerial Resolution Nº 267-2002-JUS, published in the Official
Gazette El Peruano on July 27, 2002, authorized the Attorney General to
accept and organize arbitration proceedings regarding the judgment of
the Inter-American Court of Human Rights in case IACHR Nº 11.762
Baruch Ivcher. Mr. Ivcher
named Dr. Jorge Santistevan de Noriega as arbitrator and communicated
this decision in a letter dated November 5, 2002.
The
Castillo Petruzzi Case
324.
The Peruvian State reported
that it had acknowledged the nullity of the legal proceedings against
the four Chilean citizens and that it had asked the Supreme Council of
Military Justice to annul its ruling on June 11, 1999 that the
judgment of the Inter-American Court could not be carried out.
325.
As regards fulfillment of the
judgment in the Castillo Petruzzi et al. case, on May 14, 2001
the Full Court of the Supreme Council of Military annulled the
military law proceedings against Castillo Petruzzi and the others,
reinstating the action brought against them in the ordinary legal
system.
326.
Criminal proceedings in the
ordinary legal system against Messrs. Jaime Francisco Castillo
Petruzzi, Maria Concepción Pincheira Sáez, Lautaro Enrique Mellado
Saavedra and Alejandro Luis Astorga Valdez, are under way in the
Division for Terrorism, Criminal Organizations, and Bands. The
decision (“Auto Superior de Enjuiciamiento”) to initiate
oral proceedings has been issued.
However, for reasons of force majeure, an indefinite strike by
administrative and technical staff in the Judiciary, has delayed the
start of that stage in the judicial proceedings.
The strike lasted unto November 26, 2002. On January 30, 2003,
the Higher Court for Counterterrorism (“Sala Superior
Antiterrorista”) began the trial against the four victims.
The
Torres Benvenuto et al. Case
327.
On December 4, 2001, pursuant
to Article 51 of the American Convention on Human Rights, the
Inter-American Commission submitted the Torres Benvenuto et al.
vs. Peru case (Nº 12.034) for consideration by the Court in respect
of the “modification made by the Peruvian State to the pension
system governing payments to Messrs. Carlos Torres Benvenuto, Javier
Mujica Ruiz-Huidobro, Guillermo Alvarez Hernández, Reymert Bartra
Vásquez, and Maximiliano Gamarra Ferreira in accordance with Peruvian
legislation up to 1992 and of failure to comply with judgments of the
Supreme Court of Justice of Peru and of the Peruvian Constitutional
Tribunal ordering that they be paid a pension calculated in the manner
established by law when they began to receive payments under a
specific pension system.”
328.
It was also indicated that
“that modification constituted for the pensioners a violation of the
right to judicial protection, the right to property, and the right to
progressive development with respect to economic, social, and cultural
standards, established in Articles 25, 21, and 26 of the American
Convention, in conjunction with the obligations established in
Articles 1.1 and 2 of the same Convention.”
The Commission also requested in its petition that the Court
order the State to ensure that the alleged victims and their next of
kin could exercise their allegedly violated rights and consequently
guarantee “the payment owed by the State to the alleged victims and
their next of kin in the amount of the shortfall in their pensions
since November 1992 in addition to payment of their proper pension in
future.” The Commission further requested that the Court order the
State to repeal and retroactively annul the legal effects of Article 5
of Decree-Law N˚ 25792 of October 23, 1992, which, according to
the Commission, “constituted an unwarranted downgrading of the level
of entitlement to social security achieved by Messrs. Torres
Benvenuto, Mujica Ruiz Huidoboro, Álvarez Hernández, Bartra Vásquez
and Gamarra Ferreyra”, that, in its opinion, was incompatible with
the American Convention on Human Rights.
329.
Further, the Commission asked
the Court to order the State to investigate those responsible for the
alleged violations of human rights referred to in the petition and to
pay the domestic legal costs of processing the alleged victims’
court cases as well as the costs incurred abroad in processing the
case before the Inter-American Commission and the Inter-American
Court.
330.
Starting at 10 a.m. on
September 3 and 4, 2002, a public hearing was held to take cognizance
of the arguments of the representatives of the alleged victims, the
Inter-American Commission on Human Rights, and the Peruvian State on
the merits of the case and possible reparation in the instant case.
Statements were also taken from the witnesses and expert witnesses
proposed by the Inter-American Commission and from the representatives
of the alleged victims. At this stage in the proceedings, the State
did not testify or present expert witness testimony.
The
Lori Berenson Case
331.
On July 19, 2002, the
Inter-American Commission on Human Rights submitted to the Court the
petition regarding the case of Lori Helene Berenson vs. the Peruvian
State (Nº 11.876). According
to the Commission, that petition refers to “violations of the human
rights of Ms. Lori Helene Berenson Mejía in the context of both a
trial to which she was subjected under the military legal system and
another trial in the ordinary criminal law system, and on account of
the inhumane conditions of her imprisonment in the Yanamayo
penitentiary.” According to the account of the facts of the case in the
Commission’s petition, Ms. Lori Helene Berenson Mejía, a citizen of
the United States, was arrested in Lima, Peru on November 30, 1995 and
arraigned for “treason against the fatherland (“traición a la
patria”) under the military legal system. In those proceedings,
according to the information received, the provisions of Decree Law
Nº 25.659 were applied, under which the alleged victim was tried by
“faceless judges” and subject to restrictions on her right of
defense. On March 12,
1996 Ms. Lori Berenson was sentenced to life in prison on the charge
of having committed treason. After
Ms. Berenson filed an appeal for exceptional review of a fully
executed judgment, the Supreme Council of Military Justice ruled that
Ms. Lori Berenson “was not a leader of the aforementioned terrorist
organization; that being so, the criminal conduct of the petitioner
did not fit the hypotheses contained in the Decree Law [Nº 25659],
governing treason. According to the information provided by the
Commission, in its judgment of August 18, 2000 that Court annulled the
final judgment (“ejecutoria suprema”) of March 12, 1996.
The Commission’s account went on to say that, following this
judgment, copies of the file were forwarded to the ordinary criminal
law system, where a new trial against Ms. Berenson began on August 28,
2000, which ended with a judgment sentencing her, as a collaborator
with terrorists under Article 4.a and b of Decree Law 25475, to 20
years in prison. That
judgment was ratified by the Peruvian Supreme Court on February 13,
2002. Finally, the Commission pointed out that Ms. Berenson was
held in the Yanamayo prison from January 17, 1996 to October 7, 1998,
during which time, according to the Commission’s brief, she was
subjected to “inhumane prison conditions.”
In the Commission’s opinion, those circumstances constituted
violation “to the detriment of Ms. Berenson of the rights to a fair
trial, freedom from ex post facto laws, and humane treatment,
enshrined in Articles 8, 9, and 5 of the American Convention,
respectively, all of them in conjunction with the obligation of the
Peruvian State under Article 1(1) to respect and ensure the full
exercise of the rights enshrined in the Convention.” In addition,
the Commission stated in its petition that “the laws used to try and
convict Ms. Berenson involved a violation by the Peruvian State of its
duty to adopt provisions under domestic law pursuant to Article 2 of
the American Convention.”
332.
The Commission requested that
the Court conclude and declare that the Peruvian State is guilty of
these violations and that “it has an international obligation to
make reparation to Ms. Lori Berenson for violations of her human
rights by the Peruvian State, in the person of its agents.”
Accordingly, the Commission requested that the Court order the
Peruvian State “to adopt immediately, in accordance with domestic
law, all measures needed to put an end to the violation of Ms. Lori
Berenson’s human rights […] and, specifically, to ensure Ms.
Berenson’s freedom to exercise the human rights that were violated.”
As regards material and moral prejudice, the Commission
indicated in its petition that “the [alleged] victim would submit
claims in accordance with Article 63 of the American Convention and
Articles 23 and related articles of the Rules of Procedure of the
Court.”
333.
To prevent a recurrence of
such cases, the Commission also asked the Court to order the State “to
take the necessary steps to amend Decree Laws 25475 y 25659 in such a
way as to make them compatible with the American Convention on Human
Rights.” Finally, the Commission asked the Court to order the State
to pay admissible domestic legal costs as well as costs incurred
abroad in processing the case before the Inter-American Commission and
the Inter-American Court.
334.
For its part, on July 22,
2002, the Peruvian State submitted a “petition regarding Report
36/02 of the Inter-American Commission on Human Rights--the Lori
Berenson Mejía Case,” in which Ms. Lori Berenson Mejía was “sentenced
by the ordinary legal system in Peru to 20 years in prison for
collaborating with terrorists, in a judgment handed down on June 20,
2001, ratified as res judicata
in a judgment by the Supreme Court on February 13, 2002. In addition,
the judgment imposed a fine of S/. 100,000.00.”
335.
In its brief the State
requested that the Court declare: a) that the Peruvian State proceeded
in accordance with the standards established in the Convention and in
the legal precedents set by the Court, when it annulled the sentences
imposed on Ms. Lori Berenson Mejía under military law; b) that the
Peruvian State proceeded in accordance with the standards established
in the Convention and in the legal precedents set by the Court, when
it acknowledged that Ms. Lori Berenson Mejía should be tried by the
ordinary courts; c) that there are no grounds based on the Convention
or on legal precedents set by the Court to conclude, as the
Inter-American Commission does in Report 36/02, that Ms. Lori Berenson
Mejía’s human rights were violated during the proceedings under
ordinary law; d) that the Peruvian State proceeded in accordance with
the standards established in the Convention and in the legal
precedents set by the Court, when, on August 31, 2000, it altered the
prison conditions of Lori Berenson Mejía by transferring her from the
Socabaya pentitentiary in Arequipa to the Women’s Prison in
Chorillos, Lima; and e) that the Peruvian State proceeded in
accordance with the standards established in the Convention and in the
legal precedents set by the Court, when, on December 21, 2001, it
transferred Ms. Lori Berenson Mejía, following her conviction, to the
Huancariz penitentiary in Cajamarca. In its brief, the State pointed
out that it “is not contesting with the Court the issue of Ms. Lori
Berenson Mejía’s trial under military law for an especially grace
act of terrorism (terrorismo agravado) [nor] the issue of compensation that the
Commission has calculated in [Ms.] Berenson’s favor.” The State
maintained that it “based its demand on Articles 1, 2, 5, 8, 9,
51(1), and 61 of the Convention and Articles 26, 32, and 33 of the
Rules of Procedure of the Court.” Finally, the State argued on the
factual and legal grounds set forth in its brief that “as of August
24, 2000, the human rights of [Ms.] Berenson Mejía under Articles 5,
8, and 9 of the Convention have not been and are not being
violated."
336. The Court reviewed the petition presented by the Inter-American Commission and the brief presented by the Peruvian State and, on September 6, 2002, issued a Decision in which it resolved:
1. To admit the petition
presented by the Inter-American Commission on Human Rights regarding
the Lori Berenson case.
2. To admit the brief sent by
the Peruvian State for processing in the same channels being used for
the petition presented by the Inter-American Commission on Human
Rights.
The
Castillo Páez Case
337.
On January 11, 2002, the
Commission and representatives of the victim wrote to the Court to
report on the status of compliance with the compensation obligation
and other measures taken. The Commission determined that, in its
opinion, some of the persons involved had not been included in the
investigation, such as two members of the Peruvian National Police,
who falsified and then removed the register of detainees at the San
Juan de Miraflores police precinct, to which Mr. Castillo Páez was
taken.
338.
In its monitoring of overall
compliance with the judgment on reparation, the Court ascertained that
the State paid the compensation and interest owed to the victim’s
next of kin in accordance with operative items 1, 4, and 5 of the
judgment on reparation. The Court also acknowledged that the State
provided information on the steps needed “to expedite the criminal
proceedings in order to investigate the facts and punish those
responsible for the arrest-disappearance of Ernesto Rafael Castillo
Páez.”
339.
As
the Court recognizes, the State should report on progress made in the
investigations in Peru into the conduct of several persons involved in
the kidnapping and subsequent disappearance of Ernesto Rafael Castillo
Páez by the Peruvian National Police and thereby comply with
operative item 2 of the judgment on reparation. The Court will review
overall compliance with the judgment on reparation once it has
received the report by the State and the observations of the parties
to the case.
340.
That
being so, the Court ruled in a Decision on November 27, 2002, that:
1.
The State is under the obligation to take all necessary
measures to ensure effective and prompt compliance with the judgment
on reparation of November 27, 1998 rendered by the Inter-American
Court of Human Rights in the Castillo Páez case, in accordance with
Article 68.1 of the American Convention on Human Rights.
The
Neira Alegría et al. Case
341.
In
its monitoring of overall compliance with the judgment on reparation,
the Court ascertained that the State paid the compensation and
interest owed to the families of the victims in accordance with
operative items 1, 2, and 3 of the judgment. However, it appears from
the documentation provided by the Commission and the representatives
of the victims that the State has not fulfilled its obligation to “locate
and identify the remains of the victims and to hand them over to their
families,” as stipulated in operative item 4 of the judgment on
reparation.
342.
The
Court considers it appropriate that the State report to the Court on
steps taken subsequent to the rendering of the judgment on reparation
in the instance case in respect of the State’s obligation to “locate
and identify the remains of the victims and to hand them over to their
families.”
343.
Accordingly, on November 28,
2002, the Court issued the following Decision:
1.
That the State is obliged to adopt all measures required to
comply effectively and promptly with the judgment on reparation
rendered on September 19, 1996 by the Inter-American Court of Human
Rights in the Neira Alegría et al. in accordance with Article 68.1 of
the American Convention on Human Rights.
The
Gómez Paquiyauri bothers Case
344.
On February 5, 2002, pursuant to
Article 51 of the American Convention on Human Rights, the Commission
submitted the case entitled “Brothers Emilio Moises and Rafael
Samuel Gómez Paquiyauri vs. Peru (Nº 11.016)” to the consideration
of the Court. That
petition relates to the arbitrary arrest and assassination of minors
Emilio Moisés and Rafael Samuel Gómez Paquiyauri by the Peruvian
National Police in 1991.
345.
The Commission argued that for
those killings, the Peruvian State is guilty of violation of the right
to judicial protection, a fair trial, life, humane treatment, personal
liberty, and the special measures of protection referred to under “Rights
of the Child,” guaranteed in Articles 25, 8, 4, 7, 5, and 19 of the
American Convention, all of them in conjunction with Article 1(1). of
that Convention regarding the obligation of the Peruvian State to
respect and ensure the full exercise of the rights enshrined in the
Convention. The Commission also averred that, in connection with the
aforementioned deeds, Peru violated Articles 1, 6, and 8 of the
Inter-American Convention to Prevent and Punish Torture.
346.
The Inter-American Commission on
Human Rights asked the Court to order the Peruvian State to make
financial and nonfinancial reparation, including investigation into
those responsible for the violations of human rights indicated in the
petition, compensation for the next of kin on account of moral
prejudice, damages and losses, as well as payment of the domestic
legal costs of the judicial proceedings pursued by the alleged
victims, together with the legal costs incurred abroad in processing
the case before the Inter-American Commission and Court.
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