Case of espinoza gonzáles V. Peru judgment of november 20, 2014



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INTER-AMERICAN COURT OF HUMAN RIGHTS*

CASE OF ESPINOZA GONZÁLES v. PERU

JUDGMENT OF NOVEMBER 20, 2014
(Preliminary objections, merits, reparations and costs)
In the case of Espinoza Gonzáles v. Peru,
the Inter-American Court of Human Rights (hereinafter “the Inter-American Court” or “the Court”), composed of the following judges:
Humberto Antonio Sierra Porto, President

Roberto F. Caldas, Vice President

Manuel E. Ventura Robles, Judge

Eduardo Vio Grossi, Judge, and

Eduardo Ferrer Mac-Gregor Poisot, Judge;
also present,
Pablo Saavedra Alessandri, Secretary, and

Emilia Segares Rodríguez, Deputy Secretary,


pursuant to Articles 62(3) and 63(1) of the American Convention on Human Rights (hereinafter also “the American Convention” or “the Convention”) and Articles 31, 32, 42, 65 and 67 of the Rules of Procedure of the Court (hereinafter “the Rules of Procedure”), delivers this Judgment structured as follows:
TABLE OF CONTENTS


I
INTRODUCTION OF THE CASE AND PURPOSE OF THE DISPUTE 5


II
PROCEEDINGS BEFORE THE COURT 6


III 7

COMPETENCE 7

IV 7

PRELIMINARY OBJECTIONS 7

Preliminary objection of lack of competence ratione materiae with regard to Article 7 of the Convention of Belém do Pará 7

A.1. Arguments of the parties and of the Commission 7

A.2. Considerations of the Court 8

Preliminary objection of lack of competence ratione temporis with regard to Article 7 of the Convention of Belém do Pará 8

B.1. Arguments of the parties and of the Commission 8

B.2. Considerations of the Court 9

V 9

PRELIMINARY CONSIDERATIONS 9

A) Determination of the presumed victims in this case 10

A.1. Arguments of the Commission and of the parties 10

A.2. Considerations of the Court 10

Factual framework of the case 10

B.1. Arguments of the Commission and of the parties 10

B.2. Considerations of the Court 11



VI 11

EVIDENCE 11

A) Documentary, testimonial and expert evidence 11

Admission of the evidence 12

Assessment of the evidence 13

VII 13

FACTS 13

A) Context in which the facts of the case occurred 13

A.1. The conflict in Peru 14

A.2. The states of emergency, the anti-terrorism laws, and also the coup d’état of April 5, 1992 15

A.3. The practice of detentions, torture, and cruel, inhuman and degrading treatment at the time of the facts 16

A.4. The practice of rape and other forms of sexual violence against women at the time of the facts 18

A.5 Conclusions 19



B) The proven facts concerning Gladys Carol Espinoza Gonzáles 20

B.1. The arrest of Gladys Carol Espinoza Gonzáles and the time she spent at the headquarters of the DIVISE and the DINCOTE 20

B.2. The transfer to different prisons and her continuing incarceration 22

B.3. The alleged acts of violence, in particular sexual violence, perpetrated against Gladys Espinoza 23



B.4. Investigation into the alleged acts of violence, in particular sexual violence, perpetrated against Gladys Carol Espinoza Gonzáles (Third Supra-provincial Criminal Prosecutor, Case file No. 08-2012) 23

VIII 31

MERITS 31

VIII.1. RIGHT TO PERSONAL LIBERTY, IN RELATION TO THE OBLIGATION TO RESPECT AND ENSURE RIGHTS 32

A) Arguments of the parties and of the Commission 32

a) Violation of the constitutional norms in force at the time of the facts and of the guarantees established in Article 7(2) and 7(3) of the Convention, because Gladys Espinoza was arrested by agents of the Abduction Investigation Division (DIVISE) in the absence of a court order and without any evidence to indicate that she was in flagrante delicto. During the public hearing, the Commission argued that, as in the Case of J. v. Peru, the State had “raised the issue of [a state of] emergency for the first time” before the Court; thus, while the petition was being processed, it was unaware that the State’s justification for the way in which the arrest had been carried out was a state of emergency. It also indicated that this gave rise to the possibility of a situation of estoppel, because the Commission had adopted a substantive and procedural position in the Merits Report, based on the fact that the State’s arguments had made no reference to a state of emergency. It also argued that, when the State cites a state of emergency, it has the burden of proving why it was necessary to apply the restrictions that were in force under the state of emergency, and it has not done so in this case. Consequently, the Commission considered that the restrictions concerning the ability to make an arrest without a court order and in the absence of a situation of in flagrante delicto, and for longer than provided for by law should be analyzed in detail and individually in keeping with the specific case, and should not be dismissed owing to the generic existence of a state of emergency. It also indicated that the generic citing of “permanent flagrante delicto” should be considered exceptional and respect the guarantees required in cases of detention. It also stressed that the State had not presented any kind of documentary evidence to support its argument, but rather based itself on documents prepared after the victim’s arrest. Lastly, in its final written observations, the Commission considered that the victim’s arrest was unlawful. 32

a) The State had violated Article 7(2) of the Convention to the detriment of Gladys Espinoza, because her detention was incompatible with the laws that regulated the deprivation of liberty, or with the exceptional requirements and purpose of emergency laws. They argued that the emergency laws and the actions of the State agents did not comply with the requirements of exceptionality and the need for supervision established by Article 27 of the Convention. Specifically, they indicated that Gladys Espinoza was arrested without a court order and in the absence of evidence that she was in flagrante delicto, and the DIVISE agents, who used violence and blows and threats, demonstrated clearly the absence of the guarantees of legal protection that are the purpose of Article 7(2) of the Convention. They indicated that although, at that time, the well-known “emergency laws” permitted the arrest of those suspected of the crime of treason without a prior court order, the suspension of any of the guarantees established by Article 7 of the Convention must always be exceptional and must be maintained only to the extent required by, and for the time strictly limited to, the exigencies of the situation. They also indicated that the concept of flagrante delicto was not included in the criminal procedural norms of Peru until 2003, with the enactment of Law 27,934 which regulated flagrante delicto for the first time; consequently, the requirement that the reasons for, and the conditions of, the deprivation of liberty be established by domestic law as specifically as possible was violated. Furthermore, they noted that the way in which the arrest was made, without a court order or any record, was indicative of the clandestine nature of the operation and the intention of the State agents to prevent an examination of how the emergency laws were applied in the case of Gladys Espinoza. Added to this, the unlawfulness of the detention was revealed by the fact that the presumed victim remained deprived of liberty for 80 days without access to a judge to review the lawfulness of her detention, and without observing even the basic legal requirements. 33

b) The State had violated Article 7(4) of the Convention to the detriment of the presumed victim by failing to advise her promptly of the reasons for her detention and the charges against her, and for having prevented access to this information by her family members and lawyers who could have helped her obtain prompt access to measures of legal protection. 34

c) The State had violated Article 7(5) of the Convention, because Gladys Espinoza was kept incommunicado, without her family being informed of her whereabouts or being able to visit her until more than 20 days after her arrest. Also, the presumed victim remained detained on police premises and without access to a judge for 80 days, from April 17 to June 24, 1993, when she was transferred to the Chorillos Maximum Security Women’s Prison. Her first appearance before a judge took place on June 24, 1993, before the Special Military Court of the Judicial District of the Peruvian Air Force; in other words, before a military judge. In addition, they argued that, since the presumed victim’s detention was unlawful and arbitrary from the onset, the time that she remained detained was manifestly unreasonable under the Convention. Lastly, the representatives agreed with the Commission regarding the alleged violation of Article 7(6) of the Convention. 34

a) Regarding the arrest, it affirmed that it had respected the constitutional norms in force at the time of the events, as well as the rights established in Articles 7(2) and 7(3), in relation to Article 1(1), of the Convention. It indicated that, when Gladys Espinoza was arrested, the Department of Lima and the Constitutional Province of Callao were under emergency rule; in other words, they had been declared in a state of emergency, decreed on March 23, 1993. According to Peru, under the state of emergency “the constitutional guarantees established in article 2, paragraphs 7 (inviolability of the home), 9 (freedom of movement in national territory), 10 (freedom of association), and 20(g) (arrest without a court order or by the judicial authorities in flagrante delicto) of the Constitution.” It also indicated that the arrest was in keeping with the provisions of Article 7 of the Convention, and that the state of emergency and suspension of guarantees was extremely relevant in this case. On this point, it rejected the Commission’s argument concerning a situation of estoppel related to the allegation of a state of emergency, because the State “has not changed its position, but ha[d] merely presented an additional and complementary argument on the same facts to strengthen its position.” Furthermore, in its answering brief, the State argued that Gladys Espinoza had been arrested by DIVISE agents, with sufficient evidence that there was a situation of flagrante delicto, as the result of police surveillance and intelligence work and for an ongoing offense, terrorism. Also, in its final written arguments, although it repeated that the arrest was made in a situation of flagrante delicto, it explained that it had presented the argument of a state of emergency in its answering brief, and that it had not varied its position. Thus, it maintained that, at the time of the presumed victim’s arrest, an individual could be deprived of liberty without the existence of a court order or flagrante delicto provided that the principles of reasonableness and proportionality were respected and that, “there should be no discussion as to whether or not flagrante delicto existed,” recalling that the terrorist group carried out abductions as part of its activities, and this fact relates to the purpose of the suspension of guarantees. 34

b) Regarding the force and violence of the arrest, in its final written arguments, the State recalled that, during police operations against terrorist organizations, it was reasonable that the arrest could be resisted and, consequently, that there could be a skirmish between the agents and the persons arrested, without this leading to the conclusion that an act of violence entailing an arbitrary detention had occurred. In addition, the State asserted that it had not violated Article 7(4) of the Convention, because the presumed victim had been informed promptly of the reasons for her detention, and explained that the notification of arrest of April 18, 1993, had expressly informed her of the reasons for her detention. Furthermore, in the police statement made by the presumed victim on May 7, 1993, she had indicated that she agreed that she had been informed in writing of the reasons for her detention. The State also argued that, when an arrest is made in flagrante delicto, the requirement of a written notification is an accessory measure because the person arrested knows the reasons for the intervention by the authorities. Regarding the Commission’s argument that the police record of the arrest was not shown to the presumed victim, the State indicated that it was common practice that those arrested for terrorism refused to sign the arrest records, especially when, as a result of the operations, they were found in possession of terrorist material. 34

c) Regarding Article 7(3) and 7(5), the State indicated that it had complied with the provisions of Article 7(5) of the Convention, and that the arrest of the presumed victim had not been arbitrary according to Article 7(3) of this instrument. In this regard, it affirmed that, following her arrest, the presumed victim had been brought before a judicial authority on May 17, 1993, and not on June 24, 1993, so that the allegation of the Commission and the representatives that she had been brought before a judge 80 days after being arrested was not true. 34

d) Lastly, the State argued that the Court’s ruling on the incompatibility of Decree Law No. 25,659 with the Convention was unnecessary, since that norm had been annulled more than 20 years ago and that it had already been analyzed in previous cases heard by the Court against the Peruvian State, adding that, on its own initiative, the State had taken note of the error committed, and had rectified it. 34

B) Considerations of the Court 35

a) Article 7(2) of the American Convention (right not to be deprived of liberty unlawfully) in relation to Article 1(1) of this instrument, in which it will analyze the alleged unlawfulness of the arrest because it was made without a court order and without grounds for flagrante delicto, as well as because of the alleged absence of an adequate record of the arrest; 35

b) Article 7(4) of the American Convention (right to be informed of the reasons for the detention) in relation to Article 1(1) of this instrument, in which it will analyze the alleged absence of information on the reasons for the detention and notification of the charges; 35

c) Article 7(5) and 7(3) of the American Convention (right to judicial control of the detention and right not to be deprived of liberty arbitrarily) in relation to Article 1(1) of this instrument, in which it will analyze the alleged absence of judicial control of the detention, and 35

d) Article 7(6) of the American Convention (right to recourse to a competent judge or court for a decision on the lawfulness of the arrest or detention) in relation to Article 1(1) of this instrument, in which it will analyze the alleged impossibility of exercising the remedy of habeas corpus. 35

B.1. Article 7(2) of the American Convention (right not to be deprived of liberty unlawfully) in relation to Article 1(1) of this instrument 35

B.2. Article 7(4) of the American Convention (right to be informed of the reasons for the detention), in relation to Article 1(1) of this instrument 40

B.3. Article 7(5) and 7(3) of the American Convention (right to judicial control of the detention and right not to be deprived of liberty arbitrarily), in relation to Article 1(1) of this instrument 41

B.4. Article 7(6) of the American Convention (right to recourse to a competent judge or court for a decision on the lawfulness of the arrest or detention), in relation to Article 1(1) of this instrument 43

B.5. Conclusion 43



VIII.2. RIGHT TO HUMANE TREATMENT AND TO PRIVACY, AND OBLIGATION TO PREVENT AND PUNISH TORTURE 44

A) General standards relating to personal integrity and the torture of detainees 44

B) The detention of Gladys Espinoza and the events that took place on the premises of the DIVISE and DINCOTE in April and May 1993 45

B.1. Arguments of the Commission and of the parties 45

B.2. Considerations of the Court 47

C) Detention conditions of Gladys Carol Espinoza Gonzáles in the Yanamayo Maximum Security Prison of Puno and the incident that occurred on August 5, 1999 61

C.1. Arguments of the Commission and of the parties 61

C.2. Considerations of the Court 61

A) Arguments of the parties and of the Commission 65

B) Considerations of the Court 65

B.1. The discriminatory practice of sexual violence and rape 67



VIII.4. RIGHTS TO JUDICIAL GUARANTEES AND TO JUDICIAL PROTECTION 68

A) Arguments of the Commission and of the parties 68

B) Considerations of the Court 70

B.1. The failure to investigate between 1993 and 2012 the events that occurred on the premises of the DIVISE and the DINCOTE in 1993 and the incident that took place in the Yanamayo Prison in 1999 72

B.2. The investigation opened in 2012 83

VIII.5. RIGHT TO PERSONAL INTEGRITY OF THE VICTIM’S NEXT OF KIN, IN RELATION TO THE OBLIGATION TO RESPECT AND TO ENSURE RIGHTS 84

A) Arguments of the parties and of the Commission 84

B) Considerations of the Court 85

IX 86

REPARATIONS 86

A) Injured party 87

B) Obligation to investigate the facts that gave rise to the violations and to identify, prosecute and punish, as appropriate, those responsible 87

C) Measures of rehabilitation and satisfaction, and guarantees of non-repetition 88

C.1. Rehabilitation 88

89

C.2. Satisfaction 89



C.3. Guarantees of non-repetition 90

C.4. Other measures requested 92



D) Compensation 92

E) Costs and expenses 93

F) Reimbursement of the expenses to the Victims’ Legal Assistance Fund 94

G) Method of complying with the payments ordered 94



Каталог: docs -> casos -> articulos
docs -> Міністэрства адукацыі Рэспублікі Беларусь Установа адукацыі “Гомельскі дзяржаўны універсітэт
docs -> Установа адукацыі “Гомельскі дзяржаўны тэхнічны ўніверсітэт
docs -> Установа адукацыі “Гомельскі дзяржаўны універсітэт імя Францыска Скарыны” зацвярджаю
docs -> Гомельскi дзяржаўны Ўнiверсiтэт iмя францыска скарыны
docs -> Міністэрства адукацыі Рэспублікі Беларусь
docs -> Анатацыя на кнігу “Deja vu bis” Івана Штэйнера
docs -> Структурна-граматычны аналіз гадонімаў гомельшчыны
articulos -> Corte interamericana de derechos humanos


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