Inter-American Court of Human Rights

60Cf. Decision of January 24, 2003, rendered by the First Special Criminal Anticorruption Court submitted as Appendix to State Note No. 7-5-M/393, of November 4, 2003 (record of Appendixes to application, Appendix 40.i, pp. 1467-91, and Appendixs 43(cc), p. 1737).

61 Cf. Official letter No. 03-2003-61-SPE-CSJL of the Special Criminal Chamber of the Supreme Court of Justice in Lima (file with evidence to facilitate adjudication of the case, pp. 4170-2), and submission made by the State on November 20, 2006, in response to the request for evidence to facilitate adjudication of the case (files for the merits of the case, reparation and costs, if any, p. 1090).

62 Cf. Code of Criminal Procedure, Law No. 9024, Section 20 (file with evidence to facilitate adjudication of the case).

63 By decision of the Superior Special Criminal Chamber, case No. 03-2003 was consolidated with cases No. 44-2002 (Pedro Yauri), No. 01-2003 (El Santa), to case No.32-2001 (Barrios Altos) (record of Appendixes to application, Appendix 42(d), p. 1571).

64 Cf. Report No. 001-2006/MP/FPEDCDD.HH of the Provincial Prosecutor’s Office Specialized in Crimes against Human Rights (record of Appendixes to written closing pleadings submitted by the State, page 3790).

65Cf. Official letter No. 396-2006 of the ad hoc Prosecutor’s Office on May 29, 2006, (record of Appendixes to answer to application, p. 3246).

66Cf. Request by the Ad hoc State Attorney General’s Office to materialize a criminal complaint against Vladimiro Montesinos-Torres, Nicolás de-Bari-Hermoza-Ríos and Luis Pérez-Documet on the grounds of the crimes perpetrated at La Cantuta), and official letter No. 396-2006 of the ad hoc Prosecutor’s Office of May 29, 2006 (record of Appendixes to answer to application, p. 3246).

67Cf. Official letter No. 03-2003-61-SPE-CSJL of the Special Criminal Chamber of the Supreme Court of Justice in Lima (file with evidence to facilitate adjudication of the case, pp. 4170-2).

68 Cf. Official letter No. 03-2003-61-SPE-CSJL of November 3, 2006, issued by the First Special Criminal Chamber of the Superior Court of Justice in Lima (file with evidence to facilitate adjudication of the case, p. 4170).

69Cf. Complaint filed by the Ad hoc Prosecutor, Ronald Gamarra, submitted as Appendix to State Note No. 7-5-M/432, dated December 14, 2004 (record of Appendixes to answer to application, Appendix 42.a, pp. 1543-626).

70 Cf. Report No. 69-2004-JUS/CNDH-SE of September 28, 2004 issued by the Executive Secretariat of the Peruvian Council of Human Rights (record of appendixes to the application, appendix 42(a), pp. 1533 to 1540).

71Cf. Official letter No. 008-2004-FPEDDHH-MP-FN of October 20, 2004, submitted as Appendix to State Note No. 7-5-M/432 of December 14, 2004 (record of Appendixes to application, Appendix 42).

72Cf. Report No. 001-2006/MP/FPEDCDD.HH issued by the Provincial Prosecutor’s Office Specialized in Crimes against Human Rights (record of Appendixes to the written closing pleading of the State, pp. 3790-1).

73 Cf. Official letter No. 396-2000 dated May, 29, 2006, of the Ad hoc Prosecutor’s Office (record of Appendixes to answer to application, p. 3245).

74Cf. Official letter No. 423-2005-PROCURADURIA-JUS of July 8, 2005, submitted as Appendix to State Note No. 7-5-M/400 of August 16, 2005 (file of Appendixs to application, Appendix 43(cc)).

75Cf. Official letter No. 570-2006 of August 8, 2006, issued by the ad hoc Prosecutor’s Office (Appendix 2 to the written closing pleadings of the State, pp. 3788-9), and official letter No. 396-2006 of the ad hoc Prosecutor’s Office, dated May 29, 2006 (record of Appendixes to answer to application, p. 3246).

76 Cf. Official letter re: AV-19-2001-SPE-CSJ of October 6, 2006, issued by the Special Criminal Chamber of the Supreme Court of Justice (file with evidence to facilitate adjudication of the case, p. 4173).

77 Cf. Supreme Resolution No. 270-2005-JUS of December 23, 2005, (file with evidence to facilitate adjudication of the case, presented by the State, pp. 4181-3).

78Cf. Extradition Treaty between Perú and Chile, dated November 5, 1931 (file with evidence to facilitate adjudication of the case, presented by the State, p. 4178).

79Cf. Official letter No. 570-2006 of August 6 2006, issued by the ad hoc Prosecutor’s Office (record of Appendixes to the written closing pleadings submitted by the State, pp. 3788-9).

80Cf. Official letter No. 570-2006 of August 8, 2006, issued by the ad hoc Prosecutor’s Office (record of Appendixes to the written closing pleadings submitted by the State, pp.s 3788-9).

81 Cf. Official letter No. 771-2006 of November 3, 2006, issued by the ad hoc Prosecutor’s Office (file with evidence to facilitate adjudication of the case, submitted by the State, p. 4177).

82Cf. Case of Gómez Palomino. Judgment of November 22, 2005. Series C No. 136, para. 54.1; Case of Huilca Tecse vs. Perú, Judgment of March 3, 2005, Series C, No. 21, para. 60(9), and Case of Gómez Paquiyauri brothers. Judgment July 8, 2004. Series C No. 110, para. 76.

83 Cf. Report of the Inter-American Commission on Human Rights No. 101/01 in the Case 10.247 and others. Extra-legal Executions and forced disappearance of persons. Perú, October 11, 2001, paras. 163, 164, 170, 172 and 174.; and Report of the Inter-American Commission on Human Rights on the situation of Human Rights in Perú, OEA/Ser.L/V/II.83 Doc.31, March 12, 1993, paras. 8, 9 and 90.

84 Cf. United Nations Human Rights Committed. The question of violations of human rights and fundamental liberties in any part of the world, particularly in colonial countries and territories and dependent areas. Extra-legal, summary or arbitrary executions. Addenda. Report of the Special Relator, Sr. B. W. Ndiaye, on his misión to Perú on May 24 through June 2, 2993, E/CN.4/1994/7/Add.2, November 15, 1993, para. 54.

85 Cf. Supreme resolution No. 241-2000-JUS, granting “additional powers of the Ad hoc Attorney Generals to file relevant legal actions against certain former public official on the grounds of alleged crimes of corruption and other offenses,” and the resolution of Presidency of the Judicial Defense Council No. 016-2001-JUS/CDJE-P, dated July 31, 2001 (record of Appendixes to answer to application, pp. 3221, 3222, 3229 and 3930).

86 The Truth Commission would focus its work on the following facts, provided always that they are attributable to terrorist organizations, to State agents or to paramilitary groups: a) Murder and abduction; b) forced disappearance; c) torture and other severe injuries; d) violation of collective rights of Andean Communities and Communities native to the country; e) Other crimes against and severe violations of the rights of persons. Cf. Final Report of the Truth and Reconciliation Commission, 2003, Section I, Chapter 4, “The Legal Dimension of the Events,” p. 195.

87Cf. Final Report of the Truth and Reconciliation Commission, 2003, Section I, Chapter 4, “The Legal Dimension of the Events,” p. 242.

88 For instance, the complaint filed on January 21, 2003, by the Provincial Specialized Prosecutor’s Office in case No. 03-2003; judgment of Mary 20, 2006, of the National Criminal Chamber in file No. 111-04, in re Ernesto Castillo Páez; judgment of December 9, 2004, of the Peruvian Constitutional Tribunal, as per the Habeas Corpus action filed by Gabriel Orlando Vera-Navarrete, file No. 2798-04-HC/TC. Furthermore, resolution of September 6, 2004, of the “Ad hoc State Prosecutor’s Office for the Cases Montesinos and Fujimori,” pursuant to which a complaint was filed against Vladimiro Montesinos-Torres, Nicolás Hermoza-Ríos and Luis Pérez-Documet with the Provincial Criminal Prosecutor’s Office Specialized in Crimes against Human Rights, stated as follows (record of Appendixes to application, Appendix 42(d):

More than one hundred scheduled, organized and systematic crimes were examined, which —from the scope of the Executive’s incumbency— were perpetrated as part of a policy of terror. Severe offenses that undoubtedly conformed to and were part of an ordinary criminal plan, design or pattern. And this is so because, in fact, the perpetration of hideous and several criminal acts, such as the ones committed in La Cantuta, was the result of criminal concert that implied the creation ad development of the so-called Colina Group, fostered, supported and later protected by Vladimiro Montesinos-Torres and Alberto Fujimori-Fujimori.

[…] the criminal organization that over the last decade controlled the main institutions of the state-power apparatus […] established a clandestine repression system under which parallel or illegal procedures were implemented so as to face those considered to be associated with terrorist organizations or suspected of being members of the Communist Party of Perú (generally known as “Shining Path”) and of the Tupac Amaru Revolutionary Movement (generally known as “MRTA”).

[…] Because of their severity, scale, generalized systematic nature, the still unclear number of fatal victims of the events, together with the set of adversely affected legal rights and interests, such criminal events call for their classification as crimes against humanity (outrageous acts condemned by the civilized word, wrongdoings against the conscience that human beings have today of their own condition), and their perpetrators, as true enemies against human race or enemies common to all mankind.

89 Cf. Final Report of the Truth and Reconciliation Commission, 2003, Section I, Chapter 4, “The Legal Dimension of the Events,” p. 242.

90Cf. Report of the Special Relator in charge of the issue of independence of judges and attorneys, Mr. Param Cumaraswamy. Addition to Report of the Mission in Perú E/CN.4/1998/39/Add.1, February 19, 1998, paras. 17-20).

91 Cf. Final Report of the Truth and Reconciliation Commission, 2003, General Conclusions, Section VIII, paras. 123-31, p. 336.

92 Cf. Final Report of the Truth and Reconciliation Commission, 2003, General Conclusions, Section VIII, paras. 123-31, p. 337.

93 Cf. Report of the Truth and Reconciliation Commission, “The Colina Military Post”, “The Actions of the Congress of the Republic”, “Year 2000: the reopening of proceedings under ordinary civil system”, in the extra-legal executions of university students from La Cantuta (1992) CVRanswer to application (main file, volume II, page 519); written closing pleadings submitted by the State (main file, volume IV, page 892); complaint presented by the Ad hoc Prosecutor, Ronal Gamarra, as Appendix to Note of the State No. 7-5-M-432, December 14, 2004 (record of Appendixes to application, Appendix 42(d), page 1550), and report No. 001-2006/MP/FPEDCDD.HH of the Provincial Prosecutor’s Office Specialized in crimes against human rights, October 10, 2006 (record of Appendixes to final written closing pleadings submitted by the State, Appendix 3, p. 3791).

94 Cf. Case of Goiburú et al., above note 1, para. 66.

95The CVR established that “the authors of the forced disappearance followed certain criteria when selecting victims, in particular, those based on the general profiles used to identify persons who might be members or supporters of subversive organizations [...] On other occasions, the information was processed and lists were prepared, which later served as guides to carry out the detentions. [...] Collective detentions also took place in universities into which the agent entered and asked students for their personal documents, detaining those who did not have them or directly those students whose names appeared on a list of alleged subversive people.” Furthermore, the CVR established that “in more selective raids, intelligence was gathered to prepare lists of people suspected of being part of subversive organizations” (Cf. Final Report of the Comisión de la Verdad y Reconciliación (Truth and Reconciliation Commission of Perú), 2003, Volume VI, chapter 1.2. “Forced disappearance of persons by State agents”, pp. 84, 85 and 89 and chapter 1.3 “Arbitrary executions”, p. 157).

96Cf. Case of Goiburú et al., supra note 1, para. 88; Case of Montero-Aranguren et al. (Detention Center of Catia). Judgment of July 5, 2006. Series C No. 150, paras. 63-66, and Case of the Pueblo Bello Massacre, supra note 3, para. 142.

97 Cf. Case of the Serrano-Cruz Sisters. Judgment of March 1, 2005. Series C No. 120, para. 79; Case of the Gómez-Paquiyauri Brothers, supra note 83, para. 97, and Case of Juan Humberto Sánchez. Judgment of June 7, 2003. Series C No. 99, para. 122.

98 Cf. Case of Myrna Mack-Chang. Judgment of November 25, 2003. Series C No. 101, paras. 180 and 181.

99 Cf. Case of Servellón-García et al., supra note 1, paras. 140 and 155; Case of López-Álvarez. Judgment of February 1, 2006. Series C No. 141, para. 99, and Case of Blanco-Romero et al. Judgment of November 28, 2005. Series C No. 138, para. 66.

100 Cf. Case of Goiburú et al., supra note 1, para. 89; Case of the Mapiripán Massacre, supra note 2, para. 238, and Case of the Gómez-Paquiyauri Brothers, supra note 83, para. 130.

101 Cf. Case of Goiburú et al., supra note 1, para. 89; Case of the Ituango Massacress, supra note 8, paras. 399 to 401, and Case of the Pueblo Bello Massacre, supra note 3, paras. 265 to 273.

102 Cf. Case of Goiburú et al., supra note 1, para. 88; Case of Gómez-Palomino, supra note 83, para. 92, and Case of the Serrano-Cruz Sisters. Preliminary Objections. Judgment of November 23, 2004. Series C No. 118, para. 100 to 106.

103 Cf. Case of Bámaca-Velásquez. Judgment of November 25, 2000. Series C No. 70, para. 180. Cf., also, Case of Durand and Ugarte. Judgment August 16, 2000. Series C No. 68, para. 79.

104Cf., Among others, Universal Declaration of Human Rights, Article 6; International Covenant on Civil and Political Rights, Article 16; American Declaration of the Rights and Duties of Man, Article XVII, and African Charter on Human and Peoples' Rights, Article 5.

105Cf. Case of Bámaca-Velásquez, supra note 104, para. 179, quoted in Case of the Girls Yean and Bosico. Judgment of September 8, 2005. Series C No. 130, para. 176, and Case of Sawhoyamaxa Indigenous Community. Judgment of March 29, 2006. Series C No. 146, para. 188.

106 Cf. Case of Goiburú et al., supra note 1, para. 97; Case of the Ituango Massacress, supra note 8, para. 340, and Case of Gómez-Palomino, supra note 83, para. 61.

107 Cf. Case of Goiburú et al., supra note 1, para. 96; Case of Gómez-Palomino, supra note 83, para. 60, and Case of the Mapiripán Massacre, supra note 2, paras. 144 and 146.

108Cf. Case of Goiburú et al., supra note 1, para. 101; Case of the Ituango Massacress, supra note 8, para. 385, and Case of the Pueblo Bello Massacre, supra note 3, para. 158.

109Cf. Case of Goiburú et al., supra note 1, para. 101; Case of 19 Tradesmen. Judgment of July 5, 2004. Series C No. 109, para. 267, and Case of Trujillo-Oroza. Reparations (Art. 63(1) American Convention on Human Rights). Judgment of February 27, 2002. Series C No. 92, para. 114.

110 Cf. Case of Goiburú et al., supra note 1, para. 103.

111 Cf. Final Report of the Truth and Reconciliation Commission, 2003, Volume III, Chapter 2.6, “Action of the judiciary during the internal armed conflict”, p. 265. In this connection, the United Nations Special Rapporteur on the question of the independence of judges and lawyers has expressed his concern that, as a result of the restructuring of the Judiciary, the Executive Branch and high-ranking authorities of the Judiciary summarily removed from office judges and prosecutors in all court tiers and their place “[n]ew judges were appointed on a provisional basis, without prior assessment of their qualifications, by the same commission set up for the removal of the previous magistrates. As a result, by the end of 1993, more than 60 per cent of the judicial posts were occupied by magistrates who had been appointed provisionally).” (Cf. Report from the Special Rapporteur on the question of independence of judges and lawyers, Mr. Param Cumaraswamy. Addendum to the Report of the mission to Perú. E/CN.4/1998/39/Add.1, February 19, 1998, paragraphs 17–20).

112 Cf. Final Report of the Comisión for Truth and Reconciliation, 2003, Volume VII, 2.22, “Extra-judicial executions of university students from La Cantuta (1992)”, pp. 241 to 245.

113Cf. Case of Almonacid Arellano et al., supra note 6, para. 169, and Case of the Constitucional Court. Judgment of January 31, 2001. Series C No. 71, para. 77.

114 Section 23 of Decree-Law No. 23,201 of July 19, 1980, “updating and adjusting the Charter of the Military Courts to the new Political Constitution” provides that: “The President and members of the Tribunals shall be appointed by Supreme Resolution, approved by the Head of the appropriate Ministry.” In addition, Article 31 of the Charter of the Military Coruts sets forth that: “[…] Permanent Judges shall be appointed by the Executive Power.” Additionally, Section 32 provides that “Permanent Magistrates conducting Preliminary Proceedings shall sit in each Court District when necessary to meet the requirements of the service. Their number shall be fixed yearly by the Executivy Power upon the proposal of the Consejo Supremo de Justicia Militar (Supreme Military Justice Tribunal)..”

115 For instance, Section 6 of Decree-Law No. 23,201 of July 19, 1980, “updating and adjusting the Charter of the Military Courts to the new Political Constitution” as amended by Law No. 26,677 of October 22, 1996, which establishes that the Consejo Supremo de Justicia Militar (Supreme Military Justice Tribunal) is composed of General Officers and Admirals in active duty. Moreover, Section 12 of Decree-Law No. 23,201 sets forth that: “The Supreme Military Justice Tribunal shall: […] (15) Appoint to perform judicial duties the Officer in active duty who is legally apt for the Armed Forces and for the Police Forces in the event of absence or indisposition of the incumbent.” In addition, Section 22 of Law No. 26,677 sets forth: “In each Court District there shall be a War Council composed [...] of a Colonel or Ship Captain, who shall preside over it; two Members with a rank of Lieutenant Colonel, Frigate Captain or Commander of the Peruvian Air Force in active duty.” Perú’s Constitutional Court, through judgment of June 9, 2004 (File No. 0023-2003-AT/TC. Ombudsman's office), declared sections 6, 22 and 31 of the Charter of the Military Courts unconstitutional.

116 Section III of the Preliminary Chapter of Decree-Law No. 23,201 of July 19, 1980, i.e. "Charter of the Military Justice" sets forth that: "Military Justice is autonomous and in performing their duties its members do not report to any administrative authority, but to the judicial bodies of the highest hierarchy..” Pursuant to Section 15 of Decree-Law No. 23,201, "War Councils and Higher Courts of Justice of the Police Armed Forces are Permanent Tribunals under the authority of the Supreme Military Justice Tribunal" […]..”

117 Cf. Case of Durand and Ugarte, supra note 104, para. 125.

118Cf Case of Almonacid-Arellano et al., supra note 6, para. 131; Case of the Pueblo Bello Massacre, supra note 3, para. 189, and Case of Palamara-Iribarne. Judgment of November 22, 2005. Series C No. 135, para. 167.

119 Cf. Case of Almonacid-Arellano et al., supra note 6, para. 131; Case of Palamara-Iribarne, supra note 119, para. 143 and Case of 19 Tradesmen, supra note 110, para. 167.

120 Cf. Judgment of the Constitucional Court, File No. 4587-2004-AA/TC, in the Case of Santiago Martín Rivas, of November 29, 2005, para. 81(b), 82 and 83.

121 Cf. Case of the “Mapiripan Massacre”, supra note 2, para. 216; Case of the Serrano-Cruz Sisters, supra note 98, para. 66, and Case of 19 Tradesmen, supra note 110, para. 188.

122 Cf. Case of Vargas-Areco, supra note 1, para. 102; Case of Ximenes-Lopes, supra note 6, para. 196, and Case of García-Asto and Ramírez-Rojas. Judgment of November 25, 2005. Series C No. 137, para. 166. Similarly, cf. European Court of Human Rights. Wimmer v. Germany, no. 60534/00, § 23, 24 May 2005; Panchenko v. Russia, no. 45100/98 § 129, 8 February 2005, and Todorov v. Bulgaria, no. 39832/98, § 45, 18 January 2005.

123 Cf. Case of the Pueblo Bello Massacre, supra note 3, para. 171 and Case of the “Mapiripan Massacre”, supra note 2, para. 214. Similarly, Case of García-Asto and Ramírez-Rojas, supra note 123, para. 167.

124 Cf. Case of Barrios Altos. Judgment of March 14, 2001. Series C No. 75. Para. 41.