order of the ACTING President of the

Inter-american COURT of Human rights[*]

APRIL 16, 2013

CASE OF J. v. PERU[**]

having seen:

  1. The brief of January 4, 2012, in which the Inter-American Commission on Human Rights (hereinafter “the Inter-American Commission” or “the Commission”) submitted to the Inter-American Court of Human Rights (hereinafter “the Inter-American Court” or “the Court”), a case against the Republic of Peru (hereinafter “Peru” or “the State”) and offered two expert opinions.
  1. The communication of January 19, 2012, in which the Commission requested the substitution of one of the expert witnesses offered in its brief submitting the case, given that the expert witness originally offered “would not be available to render [her] expert opinion.”
  1. The brief of May 15, 2012, in which the representative of the alleged victim (hereinafter “the representative”) submitted her brief of pleadings, motions and evidence (hereinafter “brief of pleadings and motions”). In said brief, the representative offered four witness statements and requested the transfer of an expert opinion rendered in the case of the Miguel Castro Castro Prison v. Peru. She also requested access to the Victims’ Legal Assistance Fund of the Inter-American Court (hereinafter “the Assistance Fund” or “the Fund”)[1].
  1. The brief of September 26, 2012, in which the State submitted its brief filing a preliminary objection, its answer to the brief submitting the case and its observations to the brief of pleadings and motions (hereinafter the “answer brief”). In said brief the State offered ten witness statements and four expert opinions.
  1. The Order of October 24, 2012, in which the acting President of the Court (hereinafter “the acting President” or “the acting Presidency”) declared admissible the request of the alleged victim to have access to the Assistance Fund (supra Having Seen 3).
  1. The briefs of November 24 and 25, 2012, in which the Inter-American Commission and the representative submitted, respectively, their observations to the preliminary objection filed by the State.
  1. The notes of November 27, 2012, in which the Secretariat of the Court (hereinafter “the Secretariat ”) following the instructions of the acting President, and in accordance with Article 46(1) of the Court’s Rules of Procedure, called on the State, the representative and the Commission to submit their definitive lists of proposed deponents, and, for reasons of procedural economy, and pursuant to the abovementioned article, to indicate which deponents could render their statements by affidavit and which should be summoned to testify at a public hearing, in order of priority.
  1. The briefs of December 5, 2012, in which the State, the representative and the Commission presented their definitive lists of deponents, indicating those who could render their statements by affidavit and those who should render their statements at a public hearing.
  1. The notes of December 10, 2012, in which the Secretariat of the Court, following the instructions of the acting President, transmitted the definitive lists of deponents to the parties and to the Inter-American Commission, and granted them a period until December 20, 2012 to submit any observations considered pertinent.
  1. The brief of December 20, 2012, in which the State presented its observations to the expert witnesses proposed by the Commission, objections to the witnesses proposed by the representative and objections to the inclusion in the case file of evidence rendered in the case of the Miguel Castro CastroPrisonv. Peru.
  1. The brief of December 20, 2012, in which the representative presented her objections to three witnesses offered by the State, challenged the expert witness proposed by the State, Federico Javier Llaque Moya, and made observations on the relevance of the expert opinions offered by the Commission to the inter-American public order.
  1. The brief of December 20, 2012, in which the Commission stated that it “ha[d] no observations to make to the definitive list of deponents of the representative”, made certain observations regarding two witnesses proposed by the State and requested an opportunity to submit questions to the four expert witnesses offered by Peru.
  1. The note of January 11, 2013, in which the Secretariat, in accordance with Article 48(3) of the Rules and following instructions of the acting President, granted Mr. Federico Javier Llaque Moya, proposed as an expert witness by the State, a period to submit any observations deemed pertinent regarding the challenge made against him by the representative (supra Having Seen 11).
  1. The brief of January 21, 2013, in which Mr. Federico Javier Llaque Moya submitted his observations to the challenge filed against him.

CONSIDERING THAT:

  1. The offer and admission of evidence, together with the summons of witnesses and expert witnesses, are regulated in Articles 35(1)(f), 40(2)(c), 41(1) (c), 42(2), 46, 47, 48, 50, 57 and 58 of the Rules of the Court.
  1. The Commission offered as evidence two expert opinions and the representative offered four testimonies, while the State offered ten witness statements and four expert opinions, all at the appropriate procedural stage. However, in its definitive list of deponents, the State only confirmed the statements of four witnesses and four expert witnesses, and in addition proposed the statement of Oscar Manuel Arriola Delgado, who had not been included in its answer brief (supra Having Seen 1, 3, 4 and 8).
  1. The Court guaranteed the parties the right of defense in respect of the offers of evidence contained in their briefs submitting the case, of pleadings and motions and the answer brief, as well as in their definitive lists (supra Having Seen 9).
  1. The State objected to the expert opinions offered by the Inter-American Commission, the witness statements offered by the representative and the inclusion of two statements rendered in the case of the Miguel Castro Castro Prisonv. Peru. The representative challenged one of the expert witnesses proposed by the State and presented objections to three witnesses offered by the State; and the Inter-American Commission pointed out a change in the object of a testimony offered by the State, as well as the allegedly time-barred offer of one of the witnesses proposed by the State and reported that it had no observations to make to the definitive list of deponents submitted by the representative.
  1. With regard to the observations presented by the Commission, the acting President emphasizes that the admissibility of a witness statement is a procedural matter that essentially concerns the State and the representative as opposing parties. Consequently, in this case it is not necessary to rule on the Commission’s observations regarding the two testimonies offered by the State.
  1. As to those statements offered by Peru that have not been objected to, the acting President considers it appropriate to obtain this evidence, so that the Court may assess its value at the proper procedural moment, within the context of the existing body of evidence and according to the rules of sound judgment. Therefore, the acting President admits the witness statements of Magda Victoria Atto Mendives and Pablo Talavera Elguera, and the expert opinions of José María Asencio Mellado, Miguel Ángel Soria Fuerte and Eduardo Alcocer Povis, all proposed by the State. The object of these statements and the manner in which they will be received shall be decided the operative section of this Order (infra Operative paras. 1 and 5).
  1. The acting President shall examine the following aspects in particular: a) the request to substitute an expert opinion offered by the Commission ; b) the tacit withdrawal of six witness statements offered by the State in its answer brief ; c) the admissibility of a witness statement offered by the State in its definitive list of deponents; d) objections by the State to the witness statements offered by the representative ; e) objections by the representative to the witness statements offered by the State; f) the challenge made by the representative to an expert witness offered by the State; g) the admissibility of the expert evidence offered by the Inter-American Commission; h) the request by the Commission to submit questions to the four expert witnesses offered by the State; i) the admissibility of transferring an expert opinion rendered in the context of the case of the Miguel Castro Castro Prison v. Peru and thewitness statements submitted as attachments to the brief of pleadings and motions ; j) the manner in which the statements and expert opinions shall be received; k) the application of the Victims’ Assistance Fund; and l) the final oral and written arguments and observations.
  1. Request for substitution of an expert opinion offered by the Commission
  1. In a letter dated January 19, 2013, the Commission requested the substitution of the expert opinion of Mrs. Sofía Macher Batanero, initially offered in its brief submitting the case, for that of Mrs. Patricia Viseur Sellers, under the terms of Article 49 of the Rules of Procedure. In this regard, the Commission stated that Mrs. Macher Batanero had indicated that she “would not be available to render the expert opinion [offered]” (supra Having Seen 1). Neither the State nor the representative presented observations regarding this request.
  1. As to the request to substitute a deponent, according to Article 49 of the Rules the Court may “exceptionally, upon receiving a well-founded request” and “after hearing the opinion of the opposing party” accept the replacement of a deponent, provided that “his or her replacement is identified and always “respecting the object of the testimony or expert opinion originally offered.” Such requirements were observed in this case. Furthermore, the acting President notes that the Commission requested the substitution within the 21-day period established in Article 28 of the Rules to submit the corresponding attachments[2], before notifying the case to the parties. The parties did not raise any objections or make observations in this regard.
  1. The acting President considers that in this case Mrs. Macher Batanero’s inability to appear before the Court, as indicated by the Commission as grounds for its request, is sufficient under the terms of Article 49 of the Rules, bearing in mind the moment when the request was made and the fact that the parties did not object to this request. Therefore, the President admits the substitution requested by the Commission. The admissibility of said statement, given its relevance to the inter-American public order, shall be determined below (infra Considering para. 36).
  1. Tacit withdrawal by the State of six witness statements offered in its answer brief
  1. The acting President notes that, in its answer brief, the State offered as testimonial evidence the statements of Julia Eguía Dávalos, Joe Modica Boada, Luis Castro Sánchez, Eduardo Solís, Víctor Manuel Rodríguez Pérez and Hugo Rivera Roque. However, the State did not confirm this offer in its definitive list of deponents. In this regard, the acting President notes that, according to Article 46(1) of the Rules, the proper procedural moment for the State to confirm or withdraw the offer of statements made in its answer brief is in the definitive list requested by the Court. [3] Therefore, the acting President considers that by not confirming said statements in its definitive list, Peru withdrew them, at the proper procedural stage. Based on the foregoing, the acting President takes cognizance of this withdrawal.
  1. Admissibility of a witness statement offered by the State in its definitive list of deponents
  1. In its definitive list of deponents, the State offered, for the first time, the witness statement of Oscar Manuel Arriola Delgado. In this regard, the representative noted that said offer was time-barred and, furthermore, that its object concerns “matters that are not the object under consideration in this case.”
  1. The acting President recalls that the proper procedural moment for the State to offer testimonial evidence is in its answer brief.[4] The request to the parties to submit a definitive list of deponents to be summoned to testify, does not represent a new procedural opportunity to offer evidence[5], except in the cases specified in Article 57(2) of the Rules, namely: force majeure, serious impediment or supervening events.[6] In this case, the acting President finds that the State provided no justification in relation to the aforementioned time-barred offer.
  1. Furthermore, the acting President notes that the proposed object of Mr. Arriola Delgado’s statement is related to the object of the joint testimony of three witnesses offered by the State in its answer brief, whose statements were withdrawn by Peru upon not confirming these in its definitive list (supra Considering para. 11). However, the acting President advises that the inclusion of Mr. Oscar Manuel Arriola Delgado in the State’s definitive list does not meet the requirements established for replacing one of the deponents originally offered, under Article 49 of the Rules (supra Considering para. 9). Therefore, in the absence of a valid argument by the State that would justify the extemporaneous presentation of this witness, this acting Presidency considers that the statement of Oscar Manuel Arriola Delgado is inadmissible.
  1. Objections by the State to the witness statements offered by the representative
  1. The representative offered the testimony of J’s sister, who would testify on “the impact that the facts that are the subject matter of these proceedings have had on [J´s] family”; the testimony of J’s partner, who would testify on “how the actions of the Peruvian State in this case have affected [J] and their life project together”; the testimony of Susan Pitt, who would discuss “[J’s] situation as an asylum seeker in the United Kingdom, uprooted from her family, how the actions of the Peruvian State affected her with her renewed arrest in Germany and the way in which the actions of the Peruvian State have affected her life project”,and thetestimony of Martin Rademacher, who would testify on “the situation [J] faced in Germany in the context of her extradition, and [would] discuss aspects of the request for extradition by the Peruvian State relevant to this case, and [would] describe the impact of [J’s] detention on [her] family, resident in Germany.”
  1. The State objected to the four testimonies proposed by the representative for several reasons. First, it indicated that the “Report on Merits No. 76/11 […] only identified Mrs. J as the alleged victim in this case”, and that therefore Mrs. J’s family and partner cannot be considered “as parties whose rights are presumably affected”[7].Secondly, regarding the effects on Mrs. J’s life project, the State held that “chronologically, this is subsequent to the facts of this case”, and, despite this “the petitioner herself was the one who changed or frustrated her life plan by taking the decision to join a terrorist organization, as postulated by the Public Prosecutor’s Office of the Peruvian State.”[8] The State also indicated that the “legal definition of refuge – or of asylum– of [Mrs. J] in the United Kingdom” does not form part of the dispute in this case, nor does “Mrs. J´s extradition process”[9]. Finally, regarding the specific object of Mrs. Pitt’s statement, the State noted that “there is a vagueness in the legal status granted Mrs. [J] by the United Kingdom […]. As Mrs. J has stated in her previous briefs, and as the Inter-American Commission has also indicated, the United Kingdom granted Mrs. [J] the status of a refugee, not an asylum seeker, for which reason this witness statement is not pertinent.”
  1. With respect to the State’s observations, in the first place the acting President points out that the deponents whose statements were proposed by the representative were offered as witnesses and not as alleged victims. In the second place, the acting President recalls that it is up to the Court to examine the facts of the case at the proper procedural stage, and to determine the legal consequences arising from these, after hearing the arguments of the parties and based on an assessment of the evidence presented, according to the rules of sound judgment.[10] Therefore, when the Court requires evidence to be received this does not imply a decision or a prejudgment on the merits of the case. The acting President considers that the State’s observations regarding the determination of the alleged victims, the limits of the object and factual framework of the case or the specification of Mrs. J’s migratory status in the United Kingdom, are all matters on which the acting President does not need to decide at the present procedural stage. These objections concern matters that the parties seek to prove in the present dispute and whose potential value shall be decided in the possible stages of merits and reparations, if applicable. Once this evidence has been examined, Peru will have an opportunity to present any observations it deems necessary regarding its content. Consequently, the acting President considers that the State’s objections to the witness statements offered by the representative are not admissible.
  1. Based on the foregoing and bearing in mind that the statements of J’s sister, J’s partner, Susan Pitt and Martin Rademacher are useful for the analysis of the possible merits of this case, the acting President admits the aforementioned statements, proposed by the representative at the proper procedural moment.