Indice De Temas s9

Inter-American Court of Human Rights

Case of Cesti-Hurtado v. Peru

Judgment of May 31, 2001

(Reparations and Costs)

In the Cesti Hurtado case,

the Inter-American Court of Human Rights, composed of the following judges[*]:

Antônio A. Cançado Trindade, President

Hernán Salgado Pesantes, Judge

Oliver Jackman, Judge

Alirio Abreu Burelli, Judge

Sergio García Ramírez, Judge and

Carlos Vicente de Roux Rengifo, Judge;

also present,

Manuel E. Ventura Robles, Secretary and

Renzo Pomi, Deputy Secretary

in accordance with Articles 29, 55 and 56 of the Rules of Procedure of the Inter-American Court of Human Rights (hereinafter “the Court” or “the Inter-American Court”) in relation to Article 63(1) of the American Convention on Human Rights (hereinafter “the Convention” or “the American Convention”) and in compliance with the judgment of September 29, 1999, delivers this judgment on reparations.

Competence

1. According to Articles 62 and 63(1) of the Convention, the Court is competent to decide on reparations and expenses in the instant case, because the Republic of Peru (hereinafter “the State”, “Peru” or “the State of Peru”) has been a State Party to the American Convention since July 29, 1978, and accepted the contentious jurisdiction of the Court on January 21, 1981.

Background

2. This case was referred to the Court by the Inter-American Commission on Human Rights (hereinafter “the Commission” or “the Inter-American Commission”), in an application dated January 9, 1998, accompanied by Report No. 45/97 of October 16, 1997. It originated in a petition (No. 11.730) against Peru, received by the Secretariat of the Commission on March 7, 1997.

3. On September 29, 1999, the Court delivered judgment on the merits of the case in which it decided unanimously:

1. to rule that the State of Peru violated Articles 7(6) and 25 of the American Convention on Human Rights with regard to Gustavo Adolfo Cesti Hurtado, in the terms established in paragraphs 123 to 133 of this judgment, and to order that the decision of the Chamber of Public Law of Lima on the petition for habeas corpus filed by Gustavo Adolfo Cesti Hurtado, of February 12, 1997, should be complied with;

2. to rule that the State of Peru violated Article 7(1), 2 and 3 of the American Convention on Human Rights with regard to Gustavo Adolfo Cesti Hurtado, in the terms established in paragraphs 140 to 143 of this judgment;

3. to rule that the State of Peru violated Article 8(1) of the American Convention on Human Rights with regard to Gustavo Adolfo Cesti Hurtado, in the terms established in paragraph 151 of this judgment;

4. to rule that, in the instant case, it was not proved that the State of Peru violated Article 8(2) of the American Convention on Human Rights with regard to Gustavo Adolfo Cesti Hurtado, in the terms established in paragraph 152 of this judgment;

5. to rule that, in the instant case, it was not proved that the State of Peru violated Article 5(2) of the American Convention on Human Rights with regard to Gustavo Adolfo Cesti Hurtado, in the terms established in paragraph 160 of this judgment;

6. to rule that the State of Peru violated Articles 1(1) and 2 of the American Convention on Human Rights with regard to Gustavo Adolfo Cesti Hurtado, in the terms established in paragraphs 166 to 170 of this judgment;

7. to rule that in the instant case it was not proved that the State of Peru violated Articles 11 and 21 of the American Convention on Human Rights with regard to Gustavo Adolfo Cesti Hurtado, in the terms established in paragraphs 177, 178 and 183 of this judgment;

8. to rule that the proceeding against Gustavo Adolfo Cesti Hurtado under the military justice system is incompatible with the American Convention on Human Rights and to order the State to annul this action and all the effects that may derive from it;

9. to rule that the State of Peru is obliged to pay fair compensation to Gustavo Adolfo Cesti Hurtado and to indemnify him for any expenses that he may have incurred in steps related to this proceeding, and

10. to order that the reparations stage should be opened and to authorize its President to duly adopt the appropriate measures.

III

Proceeding at the Reparations Stage

4. On January 21, 2000, the President of the Court (hereinafter “the President”), in compliance with the judgment of September 29, 1999, decided:

1. To grant the Inter-American Commission on Human Rights until March 3, 2000, to submit a brief and any evidence it had. for the purpose of determining reparations and costs in the instant case.

2. To grant Gustavo Adolfo Cesti Hurtado, the victim in this case, or his legal representative, until March 3, 2000, to submit a brief and any evidence he had, for the purpose of determining reparations and costs in the instant case.

3. To instruct the Secretariat of the Court to remit all the briefs and evidence submitted to the State of Peru, once the period mentioned in the previous operative paragraphs has expired.

4. To grant the State of Peru a period of six weeks, from the date on which it receives the briefs and the evidence referred to in operative paragraphs 1 and 2, to submit its comments and any evidence it had, for the purpose of determining reparations and costs in the instant case.

5. To summon Gustavo Adolfo Cesti Hurtado, the victim in this case, or his legal representative, and also the Inter-American Commission on Human Rights and the State of Peru to a public hearing at a date that will be announced in due course, once the written stage of the proceeding has been completed.

5. On March 1, 2000, the Inter-American Commission submitted its brief on reparations and expenses

6. On March 2, 2000, Gustavo Adolfo Cesti Hurtado (hereinafter “Mr. Cesti” or “the victim”) submitted his brief and certain documentary evidence relating to reparations, in 14 annexes (infra 24).

7. On March 20, 2000, the President summoned Mr. Cesti or his legal representative, Peru and the Inter-American Commission to a public hearing on reparations, to be held at the seat of the Court on June 16 that year.

8. On April 7, 2000, the Secretariat of the Court (hereinafter “the Secretariat”) advised Mr. Cesti, the Inter-American Commission and the State that the Forty-eighth Regular Session of the Inter-American Court had been suspended, and that the public hearing on reparations programmed for that session (supra 7) would be convened again, in due course.

9. On April 13, 2000, the State requested the President to extend the period established for formulating its comments on the briefs on reparations submitted by the victim and the Inter-American Commission. The following day, on the instructions of the President, the Secretariat advised Peru that the period for submitting its brief had been extended until May 3, 2000.

10. On May 4, 2000, the State commented on the briefs on reparations submitted by the victim and the Inter-American Commission.

11. On June 12, 2000, the President summoned Mr. Cesti or his legal representative, the Inter-American Commission and Peru to a pubic hearing on reparations to be held at the seat of the Court on August 10, 2000.

12. On June 20, 2000, Mr. Cesti commented on the brief on reparations submitted by the State.

13. On August 10, 2000, the Court held a public hearing on reparations.

There appeared before the Court:

Gustavo Adolfo Cesti Hurtado;

for the Inter-American Commission:

Oscar Luján Fappiano

Alberto Borea Odría, and

Christina M. Cerna;

for the State:

Jorge Hawie Soret, and

Rolando Eyzaguirre.

14. On September 11, 2000, the victim submitted written comments on the arguments made by the State during the public hearing on reparations.

15. On November 6, 2000, the State informed the Court that “the Supreme Council of Military Justice ha[d] complied with the decisions of the judgment [on merits]” and attached a copy of the decision of the Plenary of the Supreme Council of Military Justice of September 14, 2000, which established that “the orders issued against [Mr. Cesti] that restricted his freedom and embargoed his property are suspended.”

16. On February 9, 2001, the State informed the Court that it had appointed Patricio Marcial Rubio Correa and Iván Arturo Bazán Chacón as its agent and deputy agent, respectively, in this case, and on February 16 that year, it indicated the place where any notifications would be officially received.

17. On April 26, 2001, the victim submitted a brief with observations on the reparations in the instant case and attached certain documentary evidence in six annexes (infra 27 and 29).

Evidence

18. Article 43 of the Rules of Procedure of the Inter-American Court (hereinafter “the Rules of Procedure”) establishes that:

Items of evidence tendered by the parties shall be admissible only if previous notification thereof is contained in the application and in the reply thereto [...]. Should any of the parties allege force majeure, serious impediment or the emergence of supervening events as grounds for producing an item of evidence, the Court may, in that particular instance, admit such evidence at a time other than those indicated above, provided that the opposing parties are guaranteed the right of defense.

19. Article 44 of the Rules of Procedure indicates that, at any stage of the case, the Court may:

1. Obtain, on is own motion, any evidence it considers helpful. In particular, it may hear as a witness, expert witness, or in any other capacity, any person whose evidence, statement or opinion it deems to be relevant.

2. Request the parties to provide any evidence within their reach or any explanation or statement that, in its opinion, may be useful.

3. Request any entity, office, organ or authority of its choice to obtain information, express an opinion, or deliver a report or pronouncement on any given point. The documents may not be published without the authorization of the Court.

[...]

20. According to the consistent practice of the Court, during the reparations stage, the parties must indicate the evidence that they will offer at the first occasion granted to them to make a written statement. Moreover, the exercise of the Court’s discretional powers stipulated in Article 44 of its Rules of Procedure, allows it to request the parties to provide additional elements of evidence to help it to make a more informed decision; however, this does not grant the parties another opportunity to expand or complete their arguments or offer new evidence on reparations, unless the Court so allows.

21. The Court has previously indicated that the proceedings before it are not subject to the same formalities as domestic proceedings and that, when incorporating determined elements into the body of evidence, particular attention must be paid to the circumstances of the specific case and to the limits imposed by respect for legal certainty and the procedural equality of the parties[1]. In its jurisprudence, the Court has sustained that it has the authority to evaluate the evidence within the limits of sound judicial discretion; and has always avoided making a rigid determination of the amount of evidence required to support a judgment[2].

22. This practice extends to the briefs in which the victim and the Inter-American Commission formulate their claims for reparations and to the State’s answering brief, which are the principle documents at this stage and, in general, entail the same formalities with regard to the offer of evidence as the application.

23. On this basis, the Court will proceed to examine and evaluate all the elements that make up the body of evidence, according to the rules of sound judicial discretion[3], within the legal framework of the instant case.

24. Regarding the evidence, when Mr. Cesti submitted his brief on reparations, he attached a series of documents in 14 annexes[4] (supra 6).

25. Neither the Inter-American Commission nor the State submitted any evidence with their briefs on reparations.

26. On November 6, 2000, the State submitted a copy of the decision of the Plenary of the Supreme Council of Military Justice of September 14, 2000 (supra 15).

27. On April 26, 2001, the victim submitted comments on reparations and attached six annexes[5] (supra 17).

28. In the instant case, the Court admits the value as evidence of those documents that were submitted by the parties at the appropriate time, that were not contested or opposed, and the authenticity of which was not questioned[6].

29. With regard to the decision of the Plenary of the Supreme Council of Military Justice of September 14, 2000, although this was not submitted at the appropriate procedural moment (supra 15 and 26), the Court observes that this evidence refers to a supervening event and this reason justifies its tardy presentation, so that it is in order to admit it to the body of evidence. The same may be said of the evidence submitted by the victim on April 26, 2001 (supra 17 and 27).

Obligation to Make Reparation

30. In the tenth operative paragraph of the judgment on merits of September 29, 1999, the Court decided to open the reparations stage and authorized the President to adopt the corresponding procedural measures.

31. With regard to reparations, Article 63(1) of the American Convention is applicable and it establishes:

If the Court finds that there has been a violation of a right or freedom protected by this 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 measure or situation that constituted the breach of such right or freedom be remedied and that fair compensation be paid to the injured party (the original is not underlined).