Inter-American Court of Human Rights
XI General Duty to Adopt Domestic Law Measures
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XI General Duty to Adopt Domestic Law Measures (Article 2 of the American Convention) 162. Argument by the Commission
163. Argument by the Representatives
164. Arguments of the State
Considerations by the Court 165. In view of the nature of this case and the specific dispute between the parties with relation to the State's obligations pursuant to Article 2 of the Convention, the Court deems it fit to analyze said Article separately in the following section. 166. Article 2 of the Convention provides that: Where the exercise of any of the rights or freedoms referred to in Article 1 is not already ensured by legislative or other provisions, the States Parties undertake to adopt, in accordance with their constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to those rights or freedoms. 167. Firstly, regard should be had to the fact that the Court has already examined the content and scope of amnesty laws No. 26,479 and No. 26,492 in the case of Barrios Altos v. Perú. In the judgment on the merits of March 14, 2001, it held that the laws "run counter to the American Convention [...] and, consequently, have no legal effects.”135 The Court interpreted the Judgment on the Merits passed in that case to mean that “the enactment of a law that overtly conflicts with the obligations undertaken by a State Party to the Convention constitutes per se a violation of the Convention and gives rise to the State's international liability [and], given the nature of the violation represented by amnesty laws No. 26,479 and No. 26,492, the mandates of the judgment on the merits in the case of Barrios Altos have general effects.”136 168. By the same token, the Court has recently reiterated that the adopting and applying laws specifically granting amnesty for crimes against humanity is contrary to the Convention. In the case of Almonacid Arellano et al. v. Chile, the Court held that […] States cannot neglect their duty to investigate, identify and punish those persons responsible for crimes against humanity by enforcing amnesty laws or any other similar domestic provisions. Consequently, crimes against humanity are crimes which cannot be susceptible of amnesty.137 169. The Court notes that the parties expressly agree with the fact that the amnesty laws run counter to the American Convention, since the Court has already declared, with general effects, Perú's violation of the Convention in passing said laws and the effectiveness of the laws as such in the case of Barrios Altos. Therefore, the Court notes that the dispute existing between the Inter-American Commission and the States and the representatives in relation with the State's duties pursuant to Article 2 of the Convention, is centered around the determination of whether said laws still have effects in the light of the Court's pronouncement in the above-mentioned case. In addition, on the assumption that the laws continue in force, it must be decided whether that would constitute a violation of the Convention by the State, or, provided the laws do not continue in force, whether their mere existence constitutes a violation of the Convention, and whether the State should consequently adopt further measures of domestic law in that regard. 170. In relation with the general duty set out in Article 2 of the Convention, the Court has repeatedly held that This principle is universally valid and has been characterized in case law as an evident principle ("principe allant de soi"; Exchange of Greek and Turkish populations, avis consultatif, 1925, C.P.J.I., Series B, No. 10, p. 20).138 171. This principle is contained in Article 2 of the Convention, which sets forth the general duty of each State Party to adjust its domestic law to the provisions thereof to guarantee the rights enshrined therein,139 which implies that the domestic law measures must be effective pursuant to the effet utile principle.140 172. Certainly, Article 2 of the Convention fails to define which measures are appropriate to adjust the domestic law to it; obviously, this is so because it depends on the nature of the rule requiring adjustment and the circumstances of each specific case. Therefore, the Court has interpreted that such adjustment implies adopting two sets of measures, to wit: (i) repealing rules and practices of any nature involving violations to the guarantees provided for in the Convention or disregarding the rights enshrined therein or hamper the exercise of such rights, and (ii) issuing rules and developing practices aimed at effectively observing said guarantees.141 The Court takes the view that the first set of duties is breached while the rule or practice running counter to the Convention remains part of the legal system,142 and is therefore satisfied by modifying,143 repealing, or otherwise annulling,144 or amending,145 such rules or practices, as appropriate. 173. Furthermore, as regards the scope of the State’s international liability in that regard, the Court has recently stated that: […] The observance by State agents or officials of a law which violates the Convention gives rise to the international liability of such State, as contemplated in International Human Rights Law, in the sense that every State is internationally responsible for the acts or omissions of any of its powers or bodies for the violation of internationally protected rights, pursuant to Article 1(1) of the American Convention. […] The Court is aware that domestic judges and courts are bound to respect the rule of law, and therefore, they are bound to apply the provisions in force within the legal system. But when a State has ratified an international treaty such as the American Convention, its judges, as part of the State, are also bound by such Convention. This forces them to see that all the effects of the provisions embodied in the Convention are not adversely affected by the enforcement of laws which are contrary to its purpose and that do not have any legal effects since their inception. In other words, the Judiciary must exercise a sort of "consistency control" between the domestic legal provisions which are applied to specific cases and the American Convention on Human Rights. To perform this task, the Judiciary has to take into account not only the treaty, but also the interpretation thereof made by the Inter-American Court, which is the ultimate interpreter of the American Convention.146 174. In line with this view, the remaining dispute must be understood as part of the first set of measures that must be adopted to adjust the domestic law to the Convention. In order to better understand the issue, it must be noted that the Court has found that, in Perú, the self-amnesty laws are ab initio incompatible with the Convention; that is, their mere enactment “constitutes per se a violation to the Convention” since it “overtly conflicts with the duties undertaken by any State Party” to such treaty. Such is the rationale behind the Court’s pronouncement with general effects in the case of Barrios Altos. That is why its application by a state organ in a specific case, through subsequent statutory instruments or through its enforcement by state officers, constitutes a violation to the Convention. 175. That being said, now the State's actions and practices must be analyzed together in order to assess compliance with the general duty imposed by Article 2 on the State. Therefore, it is appropriate to establish whether the amnesty laws have continued “to obstruct the investigation of the grounds on which this case is based or the identification and punishment of those responsible” or whether they have or may still have “the same or a similar impact with regard to other cases that have occurred in Perú.”147 176. The Court finds that, during the proceeding of the instant case in the Inter-American system, the Commission initially recommended in the Report on the merits No. 95/05 that the State should “repeal" the laws. Later, in filing its application, since it considered that the State had failed to guarantee the “nullity and ineffectiveness” of the laws, it requested the Court to direct the State to adopt measures aimed at ensuring that they are “rendered ineffective.” Finally, in its oral and written arguments, the Commission requested that said laws be “repealed” or “ruled out of the legal system” through “an official instrument of equal or higher hierarchy.” Even though such qualifications might have hampered the State’s potential definition of the precise content of the domestic law measure to adopt, the Court notes that the Commission has not determined events or situations that evidence the alleged continued effects of the amnesty laws, nor has it specified the manner in which the threat to apply them might materialize in the future. 177. Likewise, expert witness Abad Yupanqui stated that: [e]ven though Laws No. 26,479 and No. 26,492 have not been repealed by the Congress, they have no legal effect whatsoever […]; therefore, no judicial authority may apply them, since they run counter not only to the Constitution but also to the American Convention on Human Rights and the precedents of the Constitutional Court, which has acknowledged the existence of the right to know the truth. […] If the Congress repealed the amnesty laws, it would imply an express acknowledgement of their effectiveness, which would be at odds with the assertion that said laws have no legal effects whatsoever. Regard must be had to the fact that the repeal ceases the effectiveness of a law without retroactive effects.148 178. In this connection, the Court has acquainted itself with decisions of both general and particular scope, reiterating the inapplicability and inefficiency of the amnesty laws. 179. Among the general decisions is Attorney General’s Office’s Resolution No. 815-2005-MP-FN of April 20, 2005, ordering that “all prosecutors of all instances who have intervened before the courts that heard the cases in which the amnesty laws (No. 26,479 and No. 26,492) were applied [shall] request the corresponding Trial or Appellate Court to enforce supra-national judgments,” pursuant to Section 151 of the Judiciary’s Organic Law. Reference to those judgments is precisely to this Court’s decision in the case of Barrios Altos. 180. So far as particular decisions by Peruvian criminal courts are concerned, the judgment in the case of Barrios Altos has been one of the grounds upon which to dismiss “amnesty defenses,”149 "statute of limitations defenses"150, “double jeopardy defenses”151 or the opening of new criminal investigations152 based on the ineffectiveness of the amnesty laws. 181. In addition, in the amparo proceedings instituted by Santiago Martín Rivas in order to reverse the resolutions issued by the Appellate Court of the Consejo Supremo de Justicia Militar (Supreme Council of Military Justice), which, pursuant to the judgment in the case of Barrios Altos, ordered that investigations continue, Perú's Constitutional Court held that the State’s duty to investigate the events and punish those responsible for the violation of the human rights recognized in the Judgment of the Inter-American Court of Human Rights involves not only the nullity of those proceedings in which amnesty laws No. 26,479 and No. 26,492 have been applied, once such laws have been declared devoid of effects, but also all practices aimed at impeding investigation of and punishment for the violation of the rights to life and personal integrity, including orders for dismissal of the criminal case such as those issued in favor of the petitioner.153 182. In addition, the previous section has discussed some decisions of the Constitutional Court in which, based on the Court’s judgment in the case of Barrios Altos, it denied petitions for writs of amparo [protection of constitutional guarantees and rights] filed by former military officers investigated or convicted for the events in the instant case who sought to rely on the non bis in idem principle (supra para. 151 and 154). 183. Furthermore, the Court notes that there are internal rules regulating the effect of international decisions and their incorporation into the Peruvian legal system. The Court notes that there are rules in Perú that allow for the incorporation of international decisions into the domestic legal system, and authorizing justice administrators to apply and enforce them. Thus, Law No. 27,775, "Regulating the procedure for enforcing Judgments issued by Supranational Tribunals,” is an important instrument in this regard. Furthermore, Section 115 of the Code of Constitutional Procedure154 provides that: Decisions from judicial bodies to whose jurisdiction the Peruvian State has submitted need not be recognized, reviewed or examined to be valid and effective. Such decisions are remitted by the Ministry of Foreign Affairs to the President of the Judiciary, who in turn refers them to the court of final recourse in that matter and directs the competent judge to enforce it pursuant to Law No. 27,775, regulating the procedure for enforcing judgments issued by supranational courts. Section V of the Preliminary Chapter of the Code of Constitutional Procedure, dealing with the interpretation of Constitutional Rights, provides that: [t]he content and scope of the constitutional rights protected by the proceedings regulated in this Code must be interpreted in a manner consistent with the Universal Declaration of Human Rights, human rights treaties, and decisions adopted by the international human rights courts created under the treaties to which Perú is a party. 184. Furthermore, the Peruvian Constitutional Court has recognized the value of the judgments issued by international courts whose jurisdiction Perú has acknowledged. Thus, in considering the petition for a writ of habeas corpus filed by Gabriel Orlando Vera Navarrete,155 the Constitutional Court held that: […] not only are human rights clearly rooted in the constitution, but they are also based on and developed by International Law. The imperative mandate derived from interpretation in matters of human rights therefore implies that all official activity must consider the direct application of rules embodied in international human rights treaties and in the decisions of the international bodies to which Perú has submitted. 185. In other cases, the Constitutional Court has analyzed the binding effects of the Inter-American Court’s decision thus:156 […] The binding force of the [Inter-American Court’s] decisions is not confined to their operative parts (which indeed affect only the State which is a party to a case), but it also involves the rationale or ratio decidendi for such decisions. In addition, under the CDFT (Fourth Final and Transitory Provision) of the Constitution and Section V of the Preliminary Chapter of the [Code of Constitutional Procedure], the judgment is binding to that extent for the entire national government, even in those cases in which the Peruvian State has not been a party to the case. In effect, the [Inter-American Court's] power to interpret and apply the Convention under Article 62(3) thereof, together with the mandate contained in the CDFT (Fourth Final and Transitory Provision) of the Constitution, makes the interpretation of the Convention in every court case binding for all organs of government including, naturally, this Court. […] The constitutional nature of such binding force, directly derived from the CDFT (Fourth Final and Transitory Provision) of the Constitution, has a twofold aim in each specific case: (a) to repair, since interpreting the fundamental right violated in the light of the Court’s decisions increases the possibility of protecting it adequately and efficiently; and (b) to prevent, since observing it avoids the dramatic institutional consequences brought by the [Inter-American Court’s] disfavourable judgments, which unfortunately our State has got far too many times. It is the duty of this Court, and generally of the entire government, to prevent such a negative thing from happening again. 186. Under the domestic law rules and court decisions analyzed, this Court’s decisions have immediate and binding force and, therefore, the judgment issued in the case of Barrios Altos is fully incorporated into the domestic legal system. If that Judgment was conclusive that it had general effects, such declaration makes it ipso jure part of Perú's domestic law, which is reflected in the fact that such Judgment has been applied and interpreted by state organs. 187. The ab initio incompatibility of the amnesty laws with the Convention has generally materialized in Perú ever since it was pronounced by the Court in the judgment rendered in the case of Barrios Altos; that is, the State has suppressed any effects that such laws could have had. In effect, in monitoring compliance with the Judgment ordering Reparations in the case of Barrios Altos,157 in its Order of September 22, 2005, the Court [...] [found] that Perú [had] complied with: […] (b) the enforcement of the Court’s mandate in its interpretation of Judgment on the Merits of September 3, 2001 in the instant case "concerning the meaning and scope of the declaration of ineffectiveness of Laws No. 26,479 and [No] 26,492” (operative paragraph 5(a)) of the Judgment ordering Reparations of November 30, 2001). 188. In the instant case, the Court notes that the Supreme Final Judgment of June 16, 1995 of the CSJM (Supreme Council of Military Justice) constituted an act of application of the amnesty laws and was effective until the same tribunal declared the nullity of such act through Supreme Final Judgment of October 16, 2001, consistent with domestic laws and the Inter-American Court’s decision in the case of Barrios Altos (supra para. 80(60) and 80(63)). Such act of application of the amnesty laws was performed by the CSJM with the aim to leave unpunished those it had initially investigated and convicted in one of the military criminal prosecutions and for some time it obstructed the investigation, trial and punishment of the alleged authors of the events, and it meant that the State breached its guarantee obligations, to the detriment of the victims’ relatives. In addition, the parties have failed to provide information showing that ever since the passing of the Court's Judgment in the case of Barrios Altos and the CSJM's decision, the amnesty laws have been applied in the criminal investigations and prosecutions opened as from 2001, or that the laws have prevented further investigations or prosecutions from being conducted in relation with the events in the instant case or other cases in Perú. 189. Based on the foregoing, the Court concludes that, during the time in which the amnesty laws were applied in the instant case (supra para. 80(58) to 80(62) and 188), the State breached its obligation to adjust its domestic law to the Convention pursuant to Article 2 thereof, in relation with Articles 4, 5, 7, 8.1, 25 and 1(1) of the Convention, to the detriment of the victims’ relatives. In addition, the Court is not satisfied that the State has ever since breached the obligations set forth in Article 2 of the Convention by adopting appropriate measures to eliminate the effects that at some times the amnesty laws —which were declared incompatible ab initio with the Convention in the case of Barrios Altos— might have had. However, as discussed earlier (supra paras. 167 and 169), such decision had general effects. Therefore, such "laws" have not been capable of having effects, nor will it have them in the future. XII REPARATIONS (Application of Article 63(1) of the American Convention) Arguments of the Commission 190. As to the beneficiaries, in its Application the Commission stated that “generally, the persons entitled to [the] compensation are those directly injured by the facts constituting the breach under analysis.” In this regard, it stated that, considering the nature of the case at hand, the beneficiaries of such reparations as may be awarded by the Court as a result of the human rights violations committed by the State in the instant case are Hugo Muñoz-Sánchez, his wife, two daughters, three sons, one sister and one brother; Dora Oyague-Fierro, her mother and father, two sisters, two brothers and an aunt; Marcelino Rosales-Cárdenas, his mother, one sister and one brother; Bertila Lozano-Torres, her mother and father, one sister and three brothers; Luis Enrique Ortiz-Perea, his mother and father and five sisters; Armando Richard Amaro-Cóndor, his mother and father, two sisters and four brothers; Robert Edgar Teodoro-Espinoza, his mother and father; Heráclides Pablo-Meza, his mother and father, two sisters, one brother and an aunt; and Juan Gabriel Mariños-Figueroa, his mother and father, four sisters and two brothers. 191. On the subject of pecuniary damage, the Commission noted that the next of kin of the alleged victims were required to be compensated for consequential damages, as they have made, and continue to make, significant monetary efforts in their quest to see justice done at the local level, and possibly to overcome the physical, psychological and moral trauma inflicted upon them by the State’s actions. The Commission further stated that the alleged victims should be granted compensation for lost earnings. Accordingly, the Commission requested that the Court set, in fairness and by virtue of its broad authority in this regard, the amount of compensation for consequential damages and lost earnings. 192. According to the Commission, the Court has suggested that a presumption exists regarding non pecuniary damage suffered by the victims of breaches of human rights. The Commission further argued that, in the case at hand, the next of kin of the alleged victims were, in turn, the victims of intense psychological suffering, distress, uncertainty, sadness and the disruption of their own lives, among other things, owing to the lack of justice for the forced disappearance and the extra-legal execution of their loved ones. Those next of kin have a fair expectation of justice in order to try and have the historical truth of the facts established and the guilty parties punished. Therefore, the Commission requested that, in fairness, the Court set the amount of compensation for non pecuniary damage. 193. As to the measures of satisfaction and guarantees of non-repetition, the Commission requested the Court to order the State:
194. The Commission requested that the Court order the State to pay the legal expenses and costs incurred by the victims’ next of kin in connection with the processing of this case, both at the national level and through the Inter-American system. Arguments of the representatives 195. The representatives echoed most of the arguments set forth in the Commission’s application on the subject of reparations. In addition, they stated, inter alia, that:
196. Lastly, the representatives requested that the Court order the State to reimburse APRODEH for the costs and expenses incurred since 1992, both at the local level and before the Inter-American system, in such amount as the Court may in fairness assess. Also, CEJIL incurred expenses before the Inter-American system over more than seven years, totaling about US$ 29,710.46. Arguments of the State 197. The State has argued that:
The Court’s Assessments 198. Given the State’s acknowledgement of liability (supra paras. 37 to 57), and in line with the arguments on the merits stated in the above chapters, the Court found the State responsible for the violation of Articles 4(1) (Right to Life), 5(1) and 5(2) (Right to Humane Treatment) and 7 (Right to Personal Liberty) of the Convention, in relation to Article 1(1) (Obligation to Respect Rights) thereof, to the detriment of Hugo Muñoz-Sánchez, Dora Oyague-Fierro, Marcelino Rosales-Cárdenas, Bertila Lozano-Torres, Luis Enrique Ortiz-Perea, Armando Richard Amaro-Cóndor, Robert Edgar Teodoro-Espinoza, Heráclides Pablo-Meza, Juan Gabriel Mariños-Figueroa, and Felipe Flores-Chipana (supra para. 116). The State further breached the rights established in Articles 5(1), 8(1) and 25 of the American Convention, in relation to Article 1(1) thereof, to the detriment of the above-named persons’ next of kin (supra paras. 112, 129 and 161). 199. It is a principle of International Law that any breach of an international obligation resulting in harm gives rise to the duty to adequately redress such harm.158 The Court has based its decisions on this issue on Article 63(1) of the American Convention, under which: [i]f the Court finds that there has been a violation of a right or freedom protected by [the] Convention, the Court shall rule that the injured party be ensured the enjoyment of his right of 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. 200. Article 63(1) of the American Convention embodies an accepted tenet that is a fundamental principle of the contemporary International Law on the responsibility of States. The occurrence of a wrongful act that is attributable to a State gives rise to the State’s international liability, and its resulting duty to make reparation for and remove the consequences of the violation.159 The obligation to compensate is governed by International Law and it may be neither modified nor disregarded by the State in reliance upon its domestic law.160 201. The reparation of the damage flowing from a breach of an international obligation calls for, if practicable, full restitution (restitutio in integrum), which consists in restoring a previously-existing situation. If not feasible, the international court will then be required to define a set of measures such that, in addition to ensuring the enjoyment of the rights that were violated, the consequences of those breaches may be remedied and compensation provided for the damage thereby caused.161 In addition, there is also the State’s obligation to adopt affirmative measures to guarantee that no injurious occurrences such as those analyzed in the case at hand will take place in the future.162 202. Reparations are measures aimed at removing the effects of the violations. Their nature and amount are dependent upon the specifics of the violation and the damage inflicted at both the pecuniary and non pecuniary levels. These measures may neither enrich nor impoverish the victim or the victim’s beneficiaries, and they must bear proportion to the breaches declared as such in the Judgment.163 203. In the light of the above criteria and the facts of this case, the Court will now analyze the claims asserted by the Commission and the representatives on the subject of reparations, so as to order the measures of redress. Yüklə 0,88 Mb. Dostları ilə paylaş:
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