February 7, 1995
At 10:00 p.m. on April 5, 1992, television stations in Peru
broadcast a recorded message from the President of the Republic,
Alberto Fujimori, wherein he announced to the public that he had
suspended the Constitution, had dissolved the Senate and the House of
Deputies and had taken over legislative powers.
He also declared that the Judiciary, the National Judiciary
Council and the Tribunal of Constitutional Guarantees were in recess.
As President Fujimori was addressing the Nation, hundreds of
soldiers and armored tanks were deployed throughout Lima to take over
the Congress Building, the Palace of Justice and the offices of
several unions and political parties.
The speakers of both houses of Congress, congressmen and
leaders of the opposition political parties were placed under house
This was the setting for the events that prompted the petition
filed by former President Alan García Pérez, alleging violations of
rights protected by the American Convention on Human Rights in his own
case and in the case of his wife and children.
WITH THE COMMISSION
On April 15, 1992, the Inter-American Commission on Human
Rights received a petition that denounced that on April 5 of that
year, Army soldiers under the command of General Nicolás de Bari
Hermoza Ríos had forced their way into the home of former President
Alan García Pérez with "a superior order of arrest against
petitioners further denounced that in the assault on the home of the
former President, rights protected by the American Convention had been
violated. Not only were
Dr. Alan García Pérez' life and personal safety threatened, but his
wife and children were held incommunicado and under house arrest and a
considerable number of private family documents were removed.
On the very day it received the petition, the Inter-American
Commission on Human Rights instituted the processing of the case and
referred the pertinent parts of the petition to the Government of
Peru, asking that it provide additional information on the facts
denounced therein and any other information that would enable the
Commission to determine whether the remedies of domestic law had been
exhausted in the instant case.
By note dated April 18, 1992, the petitioners presented
additional information to expand upon the original facts denounced.
They stated that the wife of Dr. García Pérez had on several
occasions attempted to file a petition of habeas corpus on
behalf of the former president, but that Army soldiers surrounding the
Palace of Justice had denied her entry.
Citing Article 29 of the Commission's Regulations, the
petitioners asked that the Commission adopt precautionary measures to
protect the life and personal freedom of former President García Pérez.
On May 7, 1992, the petitioners supplied new information in
connection with the case being processed with the Commission.
In effect, they reported that via two ministerial decisions,
the Public Prosecutor had been requested to file two criminal
indictments against Dr. Alan García for the crime of illegal
possession of weapons. The
first of the actions was based on the alleged discovery of arms,
munitions and explosives at the offices of the Peruvian Aprista Party,
of which Alan García was Secretary General.
The second was based on the alleged discovery of firearms in
the home of the former president on the night of April 5, when his
residence was stormed by Army soldiers.
For its part, on May 11, 1992, the Government of Peru replied to
the Commission's request, stating that Dr. Alan García was, of his own
volition, in hiding and that his purpose was to create some scandal with
national and international organizations in the hope of obtaining
"some political-partisan advantage from the situation."
Via note of June 2, 1992, the petitioners reported to the
Commission that the Government of Colombia had granted Dr. Alan García
political asylum and that he had thus managed to leave the country and
to escape the political persecution of which he was allegedly the
On June 3, 1992, the Commission forwarded to the parties a
summary of the facts as alleged and of the situation of Dr. Alan García
Pérez, asking that they submit their observations concerning the
The Government of Peru presented its observations on June 29,
1992. It stated that the
information described by the petitioners was a misrepresentation of the
facts since the objective of the Army soldiers had been to protect the
home of former President García.
In two successive presentations, in August and September 1992,
the petitioners denounced to the Commission that, through two
ministerial decisions, the President of the Republic had authorized the
public prosecutor to seek nullification of the Supreme Court decision in
the case of unlawful enrichment brought against former President García
Pérez and to institute another criminal action based on the facts that
had been dismissed previously because there did not exist a legal
typification of the crime. They
also asked the Commission to adopt, pursuant to its Regulations,
precautionary measures to protect the human rights of Dr. Alan García Pérez.
On October 2, 1992, concerned over the difficult situation that
Dr. García Pérez was experiencing, the Commission requested
precautionary measures wherein it asked the Government of Peru to
guarantee respect for the rights of due process in the proceedings
conducted against the former president.
On October 19 and 27, 1992, the Government of Peru presented its
observations concerning the precautionary measures that the Commission
In a number of presentations in the period between December 1992
and October 1993, the petitioners supplied the Commission with
additional information to substantiate their claims that the Government
of Peru had committed human rights violations against former President
Alan García and his family.
For its part, in notes dated January 26, February 2, and March
17, 1993, the Government sent additional information to the Commission,
refuting the petitioners' arguments and requesting that the case be
Based on the information the petitioners supplied to the
Inter-American Commission on Human Rights, the facts denounced as
violations of rights protected by the Inter-American Convention would be
taken by Army soldiers for the purpose of arresting Dr. Alan García
On the night of April 5, 1992, Army soldiers, under the command
of General Nicolás de Bari Hermoza Ríos, who was himself acting on
orders from the President of the Republic and the Commander-in-Chief of
the Armed Forces, surrounded the house of Dr. Alan García Pérez with
war tanks outfitted with cannons, small tanks and armored
troop-carriers. Some one
hundred heavily-armed soldiers surrounded the house and then demanded
the "surrender of Dr. Alan García Pérez who was under arrest on
orders from the Joint Command."
They then attacked the house of Dr. García Pérez with gunfire
and finally broke into the residence.
Inside were the former president, Deputy Jorge del Castillo Gálvez
and six members of the National Police who had been detailed to guard
the former president and his home.
The latter were beaten, disarmed and arrested.
Although Dr. García Pérez managed to escape, Deputy del
Castillo Gálvez was severely beaten by the soldiers.
They put a hood over his head and took him away under arrest.
Also in the house at the time the soldiers burst in were the
former president's four children, all of whom are minors, and the
household staff. They were
told to remain in their rooms and were not allowed to leave.
At the time of these events, the wife of Dr. Alan Pérez was
abroad. When she returned
to Lima the military who had remained at her house tried to prevent her
from entering. However,
with help of the Ambassador of Venezuela, she was finally able to get
into her house. Once there,
she found that it was occupied by soldiers and that her children were
confined to their rooms and denied their freedom.
For the next four days, Mrs. García and her children remained
under house arrest. Once
the soldiers had left, she was not given back the police protection to
which all former presidents are entitled and was thus left utterly
In the search they conducted, Army soldiers had unlawfully seized
private documents belonging to the García family, such as
identification papers, passports, property deeds, tax declarations,
correspondence and all of the original documents from Dr. Alan García's
legal defense in his trial on charges of unlawful enrichment.
Moreover, although it did not have the proper legal warrant, the
Army also searched the offices of the Institute of the External Debt,
which was headed by Alan García, and did material damage and removed
working papers from it. Dr.
García's private secretary was arrested and held incommunicado for five
days in a facility of the Army Intelligence Service.
Finally, the car belonging to Deputy Jorge del Castillo was
severely damaged; the soldiers took from it important documents
pertaining to Dr. García's legal defense.
status of the Judiciary subsequent to the events of April 5, 1992
After April 5, 1992, the Government of Peru declared that the
Judiciary was being reorganized. As
part of that process, a decree was issued removing the justices of the
Supreme Court, the judges of the Tribunal of Constitutional Guarantees
and the members of the National and District Judicial Benches.
Under the same decree, the Attorney General of the Nation, the
Comptroller General of the Republic and 134 people serving as superior
court judges, superior court prosecutors, district court judges,
provincial prosecutors and juvenile court judges were removed from their
Another measure adopted by the Government was to close judges'
chambers and the Office of the Government Attorney for a period of 10
working days, leaving only the examining judges and assigned prosecutors
functioning. Thus, because
of the total paralysis of judicial activities, citizens were unable to
file petitions of amparo and habeas corpus.
This situation affected, in particular, the wife of Dr. Alan García
Pérez, who on several occasions attempted to file a petition of habeas
corpus on behalf of the former president.
Specifically on April 12, she went to the Palace of Justice, in
the company of her children, but her entry was blocked by the Army
soldiers surrounding the building.
The judge of the assigned examining court, with whom Mrs. García
had spoken by phone, offered to come out to receive the petition, but
did not follow through with her offer.
On April 13, Mrs. García went back to the Palace of Justice and
was again stopped by Army soldiers.
On April 14, she was not only denied entrance but the police
threw tear gas, forcing Mrs. García to retreat.
charges brought against former President Alan García for illegal
possession of weapons
On April 14, 1992, the Government of Peru passed Ministerial
Resolution 385-92 IN/DM, published the following day in the El
Peruano official gazette, authorizing the public prosecutor to file
criminal charges against Alan García for the crime of illegal
possession of firearms. The charge was the result of a search conducted by Army
soldiers at the offices of the Aprista Party, of which Dr. Alan García
was Secretary General. There
they allegedly had discovered firearms, munitions and explosives.
The search was done in the presence of a military prosecutor who
had no jurisdiction for raids of this kind.
There was no court order and no civil prosecutor present even
though a civil prosecutor would later sign the search report, thereby
sanctioning the operation conducted.
On April 30 that year, a second Ministerial Resolution, No.
0435-92-IN/DM, was published in the El Peruano.
Dated April 29, that resolution ordered that the Public
Prosecutor institute a second criminal case against Dr. Alan García for
illegal possession of weapons. This
case was based on the alleged discovery of firearms at Alan García's
home on the night his residence was assaulted by army soldiers.
As had happened in the previous case, the search was conducted
without a court order and without the presence of a prosecutor, in
violation of the provisions of the law in effect.
Subsequently, the wife of former President García Pérez
presented the licenses for the firearms seized by the Army.
She also clarified that one of the weapons seized was an old
"Pukuna" rifle that had been a gift from the General Commander
of the Army and another rifle that had been a gift from the Government
of Nicaragua, both at the time when Dr. Alan García Pérez was
President of the Republic. They were in their cartridge holders at the time, unloaded
and in plain view, in an area of the house.
case for unlawful enrichment
Once the new constitutional president, Alberto Fujimori, was in
office, a congressional inquiry was instituted against Alan García.
As a result of that inquiry, impeachment proceedings were
conducted for the alleged crime of unlawful enrichment.
Those proceedings ended on October 19, 1991, with Senate
Resolution No. 1189-91, which declared the case "admissible".
With that, the accused was suspended from his office as Senator
for life, under the provisions of Article 184 of the Constitution,
making him "subject to prosecution."
The impeachment case was based on the following charges against
the former president:
a. a lack
of proportion in his assets during his time in public office, as there
was an unjustified increase in his assets;
of an even greater gap between income and expenditures by reason of the
possible existence of bank accounts abroad;
of his direct involvement in the decision to invest reserves of the
Central Bank of Peru in the BCCI, transactions that would have involved
of his direct involvement in reducing the purchase of Mirage aircraft,
under the Jupiter I, Jupiter II and Jupiter III contracts, which may
have been coupled with a sale of aircraft manufactured for Peru but sold
to third parties, which would have generated personal profits for Dr.
When the impeachment file was sent to the Attorney General of the
Nation, the latter instituted criminal proceedings before the Second
Chamber of the Supreme Court, for the crime of unlawful enrichment, with
the State as the aggrieved party. The
Attorney General based that decision on item a) of the articles of
impeachment, in other words the undue increase in Dr. García Pérez'
assets during his time in public office.
Items b), c) and d) of the articles of impeachment were dismissed
since the pertinent criminal law had been changed under the new Code,
where indications are defined as "signs, presumptions,
circumstances revealing something that is hidden or instrumental in
uncovering actual proof, but not inherent in the nature of the criminal
offense of unlawful enrichment."
Hence, the Attorney General concluded that the facts contained in
points b), c) and d) of the Impeachment were suspicions that were not
part of what constitutes the crime and did not corroborate guilt.
Once the Criminal Section of the Supreme Court had received the
case, the Examining Justice (charged with investigating the allegations)
was appointed. After
examining the terms of the case, he ruled under Article 77 of the Code
of Criminal Procedure that no pre-trial hearing should be held, and
ordered that the case be filed permanently.
When the decision of the Examining Justice was appealed, the case
was presented to the Special Correctional Tribunal of the Supreme Court,
which upheld the denial of the request to open preliminary proceedings.
Both the Public Prosecutor and the Supreme Prosecutor for Civil
Matters filed petitions requesting that the decision be vacated based on
procedural violations (recurso de nulidad), but their petitions were
denied. The Office of the
Attorney General and the Office of the State's Attorney then filed an
appeal (recurso de queja) with the First Criminal Chamber of the Supreme
Court. On January 29, 1992,
the First Criminal Chamber of the Supreme Court declared both petitions
Thus, the original decision taken by the Examining Justice became
res judicata once the petitions to vacate the original decision and the
appeal were denied.
However, since the measures adopted by President Fujimori
starting on April 5, 1992, attempts had been made to reopen that case
and another new criminal case has been instituted based on the articles
of impeachment that were originally dismissed by the Attorney General on
the grounds that they did not constitute crimes.
In effect, on July 15, 1992, the Public Prosecutor designated by
President Fujimori filed a petition with the Criminal Chamber of the
Supreme Court to have the decision by the Examining Justice nullified,
particularly that part of the decision that refused to allow preliminary
proceedings to be instituted against former President Alan García.
Through a Supreme Resolution dated September 11, 1992, the
Government of Peru designated and authorized the Public Prosecutor to
"institute, prosecute, and finalize ... the legal and judicial
proceedings against the former president..." for the matters
contained in the Senate resolution that authorized prosecution of Alan
García and that were originally dismissed by the former Attorney
General of the Nation.
Once the complaint was formally entered, the provisional Attorney
General of the Nation instituted the corresponding criminal proceeding.
Once the Supreme Court Examining Justice was designated, he
submitted his decision on September 23, 1992, ordering that preliminary
proceedings be instituted against Dr. Alan García for the crime of
On November 23, 1992, the Supreme Court' Special Correctional
Tribunal voided any action taken on the basis of the decision -adopted
by this Tribunal's previous members- denying the initiation of
preliminary proceedings against Alan García. On March 17, 1993, the
Supreme Court' Special Criminal Chamber voided the decision denying the
institution of preliminary proceedings and ordered the opening of these
immunity and the right to impeachment proceedings
At the end of his term as President of the Nation, on July 28,
1990, Dr. Alan García Pérez became a Senator for life, under the terms
of the 1979 Constitution.
Under Resolution No. 1189-91 the Senate decided to adopt the
articles of impeachment against the former president and, as a
consequence, decided to lift his congressional immunity so that he might
be prosecuted in accordance with the law.
Once the judicial inquiry process ended with the Supreme Court's
final ruling confirming the refusal of the order to institute a
preliminary inquiry against former President Alan García Pérez, the
Officers of the Senate officially restored his congressional privileges
on March 20, 1992. Thus,
the former president once again enjoyed Congressional immunity and, with
it, all the rights that the Constitution and laws of Peru accord to
Senators for life.
However, his status as a Senator for life and the immunities that
go with that were not acknowledged in the new proceedings instituted
In effect, even though Article 176 of the 1979 Peruvian
Constitution, which was in force until December 31, 1993, provides that
senators and deputies may neither be tried nor arrested without the
prior authorization of the Chamber of which they are a member, since
April 5, 1992 two criminal proceedings have been instituted against Dr.
Alan García based on the alleged commission of the crime of illegal
possession of weapons. In
neither case was proper Senate authorization sought.
Moreover, in the new criminal case brought against the former
president for the crime of unlawful enrichment, there was no
constitutional impeachment proceeding beforehand, as required under
articles 183 and 184 of the 1979 Constitution, in effect at the time.
OF THE PARTIES
of the Government
of remedies under domestic law
The Government of Peru alleged that in the instant case, the
remedies under domestic law had not been exhausted and hence, in keeping
with the provisions of Article 46.1.a of the Convention, the petition
should be ruled inadmissible.
The Government also noted that the handling of the unlawful
enrichment case had not been completed in the local court and thus,
before proceeding to examining the conduct of the Peruvian state, the
Commission should wait for the final outcome of the remedies under
As regards the other alleged violations, particularly violations
of personal liberty, right to privacy, and violations relating to the
alleged illegal handling of two counts of illegal possession of
firearms, the Government furnished no observation whatsoever.
of the case
The Government of Peru refuted the facts denounced by the
petitioners, that there was no order to forcibly arrest Dr. García Pérez
on the night of April 5, 1992. Quite
the contrary, the order that the Army soldiers received was to stand
guard over the residence of the former president to prevent any possible
disturbance of law and order. However,
because of the evidence that there were arms and men bearing arms within
the residence of Dr. García Pérez, "in order to prevent any
criminal attempts, elements of the forces of law and order seized the
weapons and explosives inside that residence and took the necessary
precautions to protect the individuals from any danger."
Moreover, the Government of Peru denied that there had been any
violation of the residence of the former president or that the children
and wife of Dr. Alan García had been held incommunicado for four days. It stated that "the forces of law and order remained in
the immediate vicinity in order to provide the residence with the
necessary security and to prevent any attempt capable of being used or
magnified to the detriment of the forces of law and order or the
The Government of Peru argued that the impeachment proceedings
that resulted in Senate Resolution No. 1189-91 declaring that there were
grounds to prosecute former president Alan García Pérez for the
commission of unlawful enrichment, with the state as the aggrieved
party, had properly substantiated that the former president did indeed
have undeclared foreign bank accounts; that he had been instrumental in
the decisions to invest the reserves of the Central Bank of Peru in the
BCCI, transactions that would have involved bribes; and that he had
participated in the decision to reduce the number of Mirage aircraft
that Peru purchased from the Government of France under the Jupiter I,
II and III contracts, transactions from which the former president would
have profited financially. However,
the Government alleged, when the articles of impeachment were sent to
the Office of the Public Prosecutor, the former Attorney General of the
Nation, Dr. Pedro Méndez Jurado, did not include any of the alleged
facts in the case against the former president before the Criminal
Chamber of the Supreme Court. Hence,
the Government reasoned, the former Attorney General failed to comply,
first of all, with the binding order to "prosecute" Alan García,
once the Senate declared that there were grounds for prosecution
(Article 184 of the 1979 Constitution) and, secondly, with his
obligation to "bring all ...civil and criminal actions... against
the President of the Republic, senators and deputies ... once the Senate
has declared that there are grounds for prosecution" (Article 66,
paragraph 2, of the Organic Law of the Attorney General's Office).
And so, both the Public Prosecutor and the Attorney General of
the Nation brought a new criminal case against former President Alan
García on the grounds that Article 184 of the 1979 Constitution of Peru
does not empower the judiciary to decide whether or not to institute a
legal inquiry. Quite the contrary, the constitutional mandate is imperative;
in other words, once the Senate has declared that there are grounds for
prosecution, the Judiciary must institute the inquiry.
Moreover, it argued, the function of the Attorney General under
Article 66, paragraph 2 of the Organic Law of the Attorney General's
Office, which is to prosecute high-ranking public officials, must be
carried out. Hence, because
of the way the two laws function, inasmuch as the Senate authorized
proceedings, the Attorney General of the Nation was obliged to institute
the proper criminal prosecution and the Judiciary was obliged to
institute the examining phase. The
purpose of the examining phase is to investigate the alleged crimes
being charged and determine whether the accused is in any way
implicated. Hence, the
inquiry into the case in no way signifies that the Judiciary is
convicting the accused before any trial is even held.
Using these arguments, the Government of Peru alleged that this
criminal action brought by the Attorney General of the Nation against
former President Alan García was based on articles of the Constitution
and the provisions of the Statute of the Office of the Attorney General,
which require that a criminal case be filed against the high-ranking
official, in this case a Senator, and that the examining phase be
instituted when the Senate, after hearing the articles of impeachment
prepared by the Chamber of Deputies, declares that there are grounds for
prosecution under the terms prescribed by law.
As for the question of res judicata, the Government of
Peru, in a writ from the Attorney General of the Nation, states that the
principle of res judicata "is not applicable in the instant
case, since res judicata exists when an adversarial proceeding
before a judge or court has resulted in a ruling that is final and thus
not subject to appeal except in the very exceptional cases where review
is permissible." Hence, the Government contends, there are two prerequisites
for res judicata: the existence of an adversarial proceeding and
the culmination of that proceeding in the form of a final sentence.
As for the first point, the Government contends that the decision
handed down by the former Supreme Court Examining Justice denying the
request to institute proceedings against Dr. Alan García Pérez
"does not constitute res judicata" inasmuch as it was
not the result of a "court inquiry into the merits of the facts
duly [alleged] by the National Congress in the preliminary hearing
conducted in accordance with articles 183 and 184 of the National
The Government further asserts that criminal charges must be
dismissed in the proceeding itself when, because it has become obvious
that no crime has been committed or that the accused is not the guilty
party, the proceeding is terminated with effects analogous to an
acquittal. Hence, the Government argues, a dismissal, whether without
prejudice or permanent, must be the outcome of a legal proceeding; in
other words, it must come once the examining phase has already started
and never before it. The
Government argues that the principle of res judicata was not
violated in the case of former President Alan García because the ruling
that disallowed the institution of an inquiry was not a definitive stay
of proceedings inasmuch as it was not the outcome of a proceeding
("court inquiry into the merits of the facts duly [alleged]").
The Government of Peru also asserts that there is no "new
trial" against Alan García but rather an "amplification"
of the first trial, since the facts involved are the very ones that were
the basis of the articles of impeachment and that the former Attorney
General of the Nation subsequently failed to include in the indictment
presented before the Criminal Chamber of the Supreme Court.
of the petitioners
of remedies under domestic law
The petitioners alleged that they were really hindered in their
efforts to seek remedy under the domestic law as there was absolutely no
judicial activity on the days after April 5, 1992.
In their statements to the Commission, the petitioners in fact
claimed that on several occasions Dr. Alan García Pérez's wife
attempted to file a habeas corpus petition on behalf of the
former President. Those
attempts were frustrated by Army soldiers stationed at the Palace of
Justice who not only prevented her from entering, but also prevented her
from making any contact with the judges on duty.
They also stated that, as soon as judicial activity resumed, the
appeals filed locally to protect the rights of Dr. Alan García proved
to be totally ineffective insofar as they were repeatedly dismissed with
insubstantial arguments or based on purely procedural considerations.
Finally, the petitioners claimed in all of their statements that
since April 5, 1992, decisions by the Executive Branch have continued to
interfere with the Judiciary in Peru.
Apart from replacing judges by decree, the Executive Branch has
also influenced decisions handed down by the courts.
The petitioners repeatedly stated that Peru has failed to
guarantee its citizens the right to a hearing by an independent and
Using the aforementioned reasoning, they asked the Commission
that, invoking the exemptions provided for in Article 46.2 in terms of
exhausting local remedies, it should rule the case admissible and then
consider its merits.
of the case
Firstly, the petitioners emphasized that nowhere in its various
presentations does the Government deny the charges of human rights
violations committed against former President Alan García, his wife and
children. Quite the
contrary, it justifies the measures taken by the Army and then simply
discusses the existence or nonexistence of res judicata and
double jeopardy in the cases being prosecuted against former President
Alan García Pérez for the crime of unlawful enrichment.
The petitioners argue that under Peruvian law, res judicata
does not come about solely by virtue of a court ruling.
Indeed, under Article 2, subparagraph 20 LL of the 1979 Peruvian
Constitution, "amnesty, pardon, permanent dismissals and
prescriptions are to have the effect of an adjudicated matter."
The petitioners further point out that under Article 233.2 of the
Constitution, one of the guarantees of the administration of justice is
that "decisions that have acquired the authority of res judicata
must be enforced."
The petitioners also assert that if the basis of a decision is
the very basis that can be used to substantiate an acquittal and if that
decision is reviewed by successive courts and ends up being adopted or
confirmed by any one of them that has the jurisdiction and competence to
order acquittal or to convict, then res judicata applies.
Thus, once a decision ordering that a criminal case be filed
because the facts alleged are not codified as criminal offenses is
upheld on appeal, it becomes final and has the authority of res
The case prosecuted against Dr. Alan García for the crime of
unlawful enrichment ended with a ruling or order from the Supreme Court
Examining Justice to the effect that no inquiry was to be instituted
because the facts alleged did not have sufficient merit and were not
codified as offenses under criminal law.
That decision was confirmed by the Special Correctional Tribunal
of the Supreme Court. When an appeal was filed to have that decision vacated, the
appeal was considered legally unfounded.
When an appeal was filed, it was declared unsubstantiated by the
First Criminal Chamber of the Supreme Court.
Given those facts, the petitioners argue, the ruling ordering
that an inquiry not be instituted became res judicata.
The foregoing notwithstanding, the petitioners allege, on
September 11, 1992, by decision of the Council of Ministers, the Public
Prosecutor was authorized to request the Attorney General of the Nation
to institute a new criminal action against former President Alan García
for the crime of unlawful enrichment, thereby violating the principle of
The petitioners further contend that the principle of res
judicata was violated by the Supreme Court decision to nullify the
Supreme Court Examining Justice's decision against instituting an
inquiry, a decision that was confirmed by the Supreme Court itself with
its previous membership.
The petitioners reason that once that case was reopened and since
a new criminal action was instituted, there are in effect two cases in
progress against Dr. Alan García, based on the same facts and accusing
him of the same crime.
Finally, the petitioners argue that instituting a new trial
against the former president, without impeachment proceedings being
conducted in accordance with the provisions of articles 183 and 184 of
the 1979 Constitution, contravened the proper proceedings before the
previously established competent court, that is to say the rule that
prohibits removal of a case from its legally pre-established
Competence of the Commission and the formal requirements of
The Inter-American Commission on Human Rights is competent to
take up the instant case as it concerns violations of human rights
recognized in articles 7, 8, 11, 19 and 25 of the American Convention on
The present petition satisfies the formal requirements of
admissibility stipulated in Article 46 of the Convention and in Articles
32, 37, 38 and 39 of the Commission's Regulations.
In effect, the petition contains the data of the petitioner, a
description of the facts alleged to be violations of human rights
protected by the Convention, the identity of the government alleged to
be responsible for the alleged violation, and exact information on the
resources used in the domestic jurisdiction.
The complaint is not pending settlement in any other procedure
under an international governmental organization and does not
essentially duplicate a petition pending or already examined and settled
by the Commission.
As to the proceedings set forth in article 48 1.f of the
Convention, neither the Government nor the petitioners expressed their
willingness to reach a friendly solution in the present case.
Article 46.1.a of the Convention states that for a petition or
communication submitted to the Commission under Article 44 or 45 of the
Convention to be admissible, the remedies under domestic law must have
been pursued and exhausted in accordance with generally recognized
principles of international law.
The Inter-American Court of Human Rights has stated that
"the rule of prior exhaustion of domestic remedies allows the State
to resolve the problem under its internal law.
Before being confronted with an international
However, this right of the State to resolve an alleged human
rights violations using its own remedies and within its own courts
implies an obligation to provide those remedies in accordance with
generally recognized principles of international law.
Accordingly, the Inter-American Court has also stated that
"the rule of prior exhaustion of domestic remedies under the
international law of human rights has certain implications that are
present in the Convention. Under
the Convention, States Parties have an obligation to provide effective
judicial remedies to victims of human rights violations (Article 25),
remedies that must be substantiated in accordance with the rules of due
process of law (Article 8.1), all in keeping with the general obligation
... to guarantee the free and full exercise of the rights recognized by
the Convention to all persons subject to their jurisdiction (Art.
Thus, the rule requiring exhaustion of domestic remedies
presupposes that a State is not only obliged to offer effective judicial
remedies but also to guarantee that those remedies can be used in
respect of the provisions of due process.
This is because the very effectiveness of the remedies largely
depends on the fact that the proper guarantees will be observed when
those remedies are processed.
Article 46.2 of the Convention states that the requirement of
exhaustion of the remedies under domestic law shall not apply when the
following conditions obtain:
domestic legislation of the state concerned does not afford due process
of law for the protection of the right or rights that have allegedly
party alleging violation of his rights has been denied access to the
remedies under domestic law or has been prevented from exhausting them;
has been unwarranted delay in rendering a final judgement under the
In the instant case, two of the exceptions to the provision
requiring exhaustion of domestic remedies apply, namely: the exception
under subparagraph 2.a, i.e., that domestic legislation does not afford
due process of law for the protection of the rights allegedly violated;
and the exception in subparagraph 2.b, i.e., that the party alleging the
violation has been denied access to the remedies under domestic law or
has been prevented from exhausting them.
of the remedies afforded under domestic law
of access to remedies under domestic law
Dr. Alan García reported to the Commission that Army soldiers
broke into his house to arrest him and that this, in his opinion,
constituted a threat to his right to freedom insofar as his arrest was
not carried out in accordance with the constitutional procedures.
On several occasions his wife attempted to file a habeas
corpus on behalf of the former president, but her efforts were
frustrated by Army soldiers stationed at the Palace of Justice who
prevented her from entering and prevented her from making any contact
with the judges on duty.
In the Convention, where one of the rights protected under it is
violated, the state under whose jurisdiction the presumed violation
takes place is responsible for ensuring the victims a simple and prompt
redress to their claims.
The right to personal freedom is among the rights enshrined in
the Convention. Article 7
stipulates that no one shall be deprived of his physical liberty, except
for the reasons and under the conditions established beforehand by the
Constitution of the State Party concerned or by laws enacted in
accordance with it. In order to challenge the legality of his arrest, any
person deprived of his personal freedom has the right to a judge who
shall hand down a decision on the matter.
In States Parties whose laws "provide that anyone who
believes himself to be threatened with deprivation of his liberty is
entitled to recourse to a competent court in order that it may decide on
the lawfulness of such threat...," the said article states that
"...this remedy may not be restricted or abolished..."
Thus, based on the interpretation of the rules of the Convention
plus the jurisprudence established by the Court, the Commission can
conclude that where a deprivation of freedom, or a threat of deprivation
of freedom, occurs --in states whose laws so provide-- all persons
should enjoy prompt and effective remedy to challenge the legality of a
Amparo and habeas
corpus are simple and prompt legal remedies to protect victims of
human rights violations. In
the view of the Inter-American Court of Human Rights, both remedies are
indispensable constitutional guarantees designed to ensure that the
rights and freedoms protected by the Convention are respected.
In the instant case of Peru, a prompt and effective legal
recourse to challenge the legality of a deprivation or threat of
deprivation of freedom is the habeas corpus.
Article 295 of the Constitution of Peru (1979) in fact stipulates
An action or omission by any authority, official or person who
undermines or threatens individual liberty is ground for an action of
The obligation to guarantee access to prompt and effective remedy
is not only applicable in times of political stability but during states
of emergency as well.
Under the provisions of Article 27.2 of the Convention both
remedies --namely, amparo and habeas corpus-- are, in
essence, indispensable judicial remedies.
They cannot be suspended, not even during a state of emergency.
The Inter-American Court interprets the guarantees provided for
in the aforementioned article as ...serving to protect, ensure, and
uphold entitlement to or exercise of a right...
These guarantees are hence ...the most suitable measures for the
rights and freedoms [protected by the Convention] to be effective under
all circumstances..., in other words, even in cases where, based on a
real need, a State Party declares a state of emergency.
It is the position of the Inter-American Court that even if the
right to personal freedom --or threat to personal freedom where states
provide for habeas corpus as a suitable means for remedy-- is a right
that may be suspended under a state of emergency, a habeas corpus
remedy cannot be derogated as it is what a court may use to assess the
legality of the decision by the Executive Branch to arrest an individual
and the judicial authority can thus prevent the adoption of measures
that would be contrary to the protection of the rights of persons under
Applying the arguments advanced hitherto, the Commission is led
to conclude that by denying Dr. García Pérez access to a simple and
prompt remedy to prevent violation of his rights, the Government of Peru
has failed to honor its obligations under the Convention.
As such under the provisions of the Convention, and as the
Inter-American Court understands those provisions, not even if the
Government were to claim that there was a state of emergency would a
suspension of indispensable guarantees such as habeas corpus be
to exhaust legal remedies locally
Except for provincial Judges and public prosecuting attorneys who
were on duty, judicial activity at the national level was suspended for
ten working days --a situation which, as stated earlier, denied the
petitioners recourse under domestic law on the days immediately
following the events of April 5, 1992.
When judicial activity resumed, however, the petitioners filed
several appeals challenging the two criminal charges brought against Dr.
Alan García allegedly for unlawful possession and use of firearms,
munitions, and material used exclusively by the Armed Forces and the
State Police, with the State as the aggrieved party.
On May 11, 1992, Mrs. Pilar Nores de García filed an appeal with
the 42nd District Attorney's Office of Lima, seeking to have the
criminal charges dropped as they were based on evidence obtained
illegally. She also
sought to invoke Article 176 of the 1979 Constitution, under which Dr.
García could not be prosecuted without authorization from the Chamber
to which he belonged, as he was a senator for life.
Dr. Ana María Santiago, the prosecutor in charge, raised the
matter for consultation with Attorney General Dr. Blanca Nélida Colán
Maguiño who then issued a ruling which classified the acts as
"common crime" and ordered that the charges be pursued.
Her ruling was based on the following arguments:
Once the charges were brought and the case opened, Dr. Alan García
filed a prior issue as he did not meet the requirement for deprivation
of rights under article 176 of the National Constitution of 1979. The Examining Court and the Second Criminal Chamber of
Lima ruled that there were no grounds for prior issue. The petitioners filed another appeal with the Supreme Court
seeking to annul that judgment, and that was also dismissed. The judgments were based, in general, on the fact that the
offense with which he is charged --possession of firearms-- did not meet
the criteria of article 183 of the Constitution, as it was not treated
as an offense committed by the accused in the exercise of his functions
as President or Senator for Life.
The petitioners filed various other appeals challenging the
institution of new criminal proceedings against Alan García --for the
alleged offense of unlawful enrichment-- without following the
procedures provided for in articles 183 and 184 of the Constitution,
namely the impeachment proceedings.
On October 19, 1992 in fact, Dr. García Perez's parents filed a habeas
corpus writ in which they pointed out that since his congressional
immunity had been reinstated, the relevant impeachment procedures would
have to be followed to prosecute a crime committed in the exercise of
his functions as President. The petitioners based the admission of the action of
guarantee upon the provisions of article 12.17 of Law 23503 (habeas
corpus and amparo):
Individual freedom is undermined or threatened and as a result
gives rise to the habeas corpus, expressly as follows:
The corresponding procedure is followed in handling an indictment
or arrest of persons referred to in article 183 of the Constitution.
The judge presiding over the prosecution of the action, in
handing down his ruling on November 3, 1992, stated that:
...from the examination of the act committed and comparing it
with the documents presented, it is determined:
[Alan García] regained (his) [congressional] immunity after the
pronouncement from the First Criminal Chamber of the Supreme Court...
it was so understood by the Senate when its Officers... decided to fully
restore him to that Branch of the Congress as a Senator for Life...
Eight: that ... the corresponding impeachment procedures
had to be followed as it was a case of indictment of a person recognized
under article 183 of the Constitution and referred to in article 12.17
of the Law on Habeas Corpus and Constitutional Protection...
Recognition of the obligation to follow impeachment procedures
notwithstanding, the Judge ruled the action without grounds, invoking
article 16 of Law 25398 which states that no habeas corpus action
can be brought where judicial investigation is underway against a
petitioner or when petitioner is being tried for the actions that
originated the writ.
After the appeal was filed on December 2, 1992, the Eighth
Criminal Chamber declared the sentence from the a quo
court null and void as there were obvious contradictions between the
preamble and the operative section of the sentence.
When the sentence was referred back to the court of first
instance, the examining judge handed down a new sentence on December 29,
1992, declaring the action without grounds.
That decision was based, in general terms, upon the following
Dr. Alan García's reinstatement was approved by the Officers of the
Senate but was not officially published.
Although the internal regulations of the Senate sets forth no
process for reinstatement of a Senator facing impeachment and charges
under the Constitution, likewise, the rule requiring an absolute
majority of the votes to determine that there "are grounds"
for a case and to publish the findings in the official journal, should
light of article 16 of Law 23598, there are no grounds for habeas
corpus action where an accused faces proceedings or is on trial for
acts which give rise to the guarantee action.
After the decision was appealed, the Eight Criminal Chamber of
Lima upheld the a quo decision on January 27, 1993 based on
arguments similar to those brought by the court of first instance.
The Chamber stated also that:
...the afore-mentioned right of the accused to impeachment
proceedings ... became inapplicable and impossible to honor in real
terms as the Basic Law of the Emergency and National Reconstruction
Government was in force at the time the complaint was filed and the
warrant issued. Said law
was the same one which was used to suspend the Congress...
In challenging this decision, the petitioners filed an appeal for
annulment with the Supreme Court, and that was ruled inadmissible
...because a case is underway against the person on whose behalf
the guarantee action is being filed and he is on trial for the acts
which gave rise to the case in the first place.
The Inter-American Court has stated that "a remedy must be
... effective, that is, capable of producing the result for which it was
devised. A remedy can
become ineffective if it is subject to procedural requirements that
render it inapplicable; if it in fact has no grounds on which to make
the authorities accountable; ... or if it is not applied
it states that "...when it is proven that the appeals are thrown
out... on insubstantial grounds... resorting to them becomes a senseless
In the opinion of the Commission, the appeals filed by Dr. Alan
García under the domestic law were, for all practical purposes,
The arguments presented by the Attorney General stating that the
provisions of the Constitution which, according to Dr. Alan García,
were suspended as they were contrary to the purposes and objectives of
Decree Law No. 25418 [Basic Law of the Emergency and National
Reconstruction Government, April 5, 1992] generally show that in the
ensuing transition period following April 5, 1992, the petitioner was
unable to have recourse to protect his rights through the various courts
that provided local jurisdiction.
If in fact the Attorney General, the highest judicial authority
who is responsible, in that capacity, for safeguarding law and order,
citizens' rights, the independence of the judicial organs, and the
proper administration of justice, was of the opinion that the
petitioner's constitutional rights were violated as extra-constitutional
rules were applied, then the prospects for obtaining redress were, in
The decisions handed down by the different organs of the
Judiciary concerning the previous issue filed by the petitioner
concerning the unlawful firearms possession and concerning the habeas
corpus appeal filed for impeachment proceedings to be followed in
the unlawful enrichment case help to strengthen the foregoing argument.
As stated, Dr. Alan García claimed that the procedures provided
for under article 176 of the 1979 Constitution were followed --that is,
the Senate gave authorization for the judicial proceedings to be
instituted against him. Both
the prosecuting judge and the Second Criminal Chamber of Lima in its
capacity as appeals court, based their dismissal of the previous issue
on the fact that under the provisions of article 183 of the
Constitution, the possession of arms was not a crime committed in
office, as further borne out by the Supreme Court when it threw out the
appeal filed by the petitioner to annul the a quo decision.
Although under the provisions of article 183 of the Constitution
the firearms possession is not a so-called crime committed in office,
the petitioner is not making a claim on the provisions of this rule.
As seen in the Constitution, both provisions --that is, articles
176 and 183-- are appreciably different.
Article 176 addresses the person who is the subject of the rights
deprivation, in other words, the need for authorization from the
pertinent congressional Chamber before initiating a judicial process
against a Deputy or Senator.
Article 183 and its corollary, article 184, refer, on the other
hand, to a person facing impeachment
--that is, the procedures to be followed for certain senior
officials of the state, such as the President or members of both
Chambers of the Congress, for violations of the Constitution and for
crimes committed in the exercise of their functions.
The decisions arrived at by the different judicial bodies that
heard the previous issue appeal, by arbitrarily failing to consider the
petitioner's claim, corroborated the argument that those bodies were
ineffective in terms of redressing the alleged violation of the rights
of the aggrieved party.
A remedy may be deemed ineffective if, as noted by the
Inter-American Court of Human Rights, it has to meet procedural
requirements which render it inapplicable.
In this respect, the Commission is of the understanding that to
challenge the appropriateness of a habeas corpus action by
claiming it must follow impeachment procedures since a judicial process
is underway, in essence, renders the remedy provided for under article
12.17 of Law 23503 ineffective ab initio.
It is precisely when a process is initiated without the
impeachment procedures that the terms of article 183 are violated, in
essence, and filing a habeas corpus motion is therefore in order.
To understand it otherwise would imply acknowledging that the
Habeas Corpus and Protection Law (23503) establishes an inapplicable
remedy per se.
It is the Commission's opinion that the repeated dismissal of the
habeas corpus appeal on strictly procedural grounds means that,
for practical purposes, the guarantee action provided for under the
internal laws to challenge failure to follow impeachment procedures
through a prompt recourse, would prove ineffective in redressing the
alleged violation of Dr. Alan García's rights.
That decision was upheld by the reasoning advanced by the
Superior Court of Lima which stated that, in any case, the petitioner's
right could not be upheld as the Basic Law of the Emergency and National
Reconstruction Government was in effect. Under this law, inter alia, the Congress was dissolved
and the rights enshrined in the Constitution suspended.
of the exception contained in article 46.2.b
Based on the grounds put forward in sections a and b
above, the Commission is of the understanding that the exception to the
exhaustion of remedies under domestic law contained in article 46.2.b of
the Convention, is applicable to this case and thus exempts the
petitioner from this requirement of admissibility.
absence of due process under the domestic law
Judiciary's lack of impartiality and independence
Article 8.1 of the Convention provides that "every person
has the right to a hearing, with due guarantees ... by a competent,
independent and impartial tribunal ... in the substantiation of any
accusation of a criminal nature made against him..."
The Inter-American Court of Human Rights has stated that Article
8 recognizes "due process of law" and has defined it as the
prerequisites necessary to ensure adequate protection of those persons
whose rights or obligations are pending judicial determination. It has also asserted that "the concept of due process of
law expressed in Article 8 of the Convention should be understood as
applicable ... to all the judicial guarantees... [protected] ... in the
American Convention ..."
The Commission's repeated position has been that "effective
observance of [judicial] guarantees is based on the independence of the
judiciary, which derives from the classic separation of the three
branches of government. This
is the logical consequence of the very concept of human rights.
In effect, to protect the rights of individuals against possible
arbitrary actions of the State, it is essential that one of the branches
have the independence that permits it to judge both the actions of the
executive branch and the constitutionality of the laws enacted and even
the judgments handed down by its own members.
Therefore, the Commission considers that the independence of the
Judiciary is an essential requisite for the practical observance of
human rights in general."
The position taken by the petitioners is confirmed by what the
Inter-American Commission itself stated in its own Special Report on the
Situation of Human Rights in Peru, to the effect that "On April 5,
1992, the Government of Peru declared that the Judiciary, the Office of
the Government Attorney and the Office of the Comptroller General of the
Republic were undergoing reorganization.
Troops of the Security Forces, supported by tanks, occupied the
Palace of Justice and the premises of the other institutions, and barred
entry thereto. On April 6, the President of the Republic announced the
removal of judges and justices; on April 9, Decree Law 25423 removed 13
justices from the Supreme Court; Decree Law 25422 removed the eight
members from the Tribunal of Constitutional Guarantees; and Decree Law
25424 removed members of the National and District Judiciary Councils
... On April 8, through Decree Laws 25419 and 25420, the Comptroller
General of the Republic was removed and the Judicial Office and the
Office of the Government Attorney were suspended for ten working days,
leaving only examining judges and lower-ranking prosecutors.
By Decree Law 25445, of April 23, 1992, 134 individuals were
removed, among them magistrates on the superior courts, chief
prosecutors, judges in the court districts, provincial prosecutors and
minors' court judges in the districts of Lima and Callao.
That Decree Law specifically precluded any possibility that
judges might avail themselves of amparo to have this measure
declared null and void.
The right to be heard by an independent and impartial tribunal
has been examined on a number of occasions by the Commission and by the
European Court of Human Rights. Based
on the jurisprudence established, certain criteria have developed to be
used to determine whether, in a specific case, the independence and
impartiality of the courts have been adversely affected and whether, as
a result, the victim has been denied proper protection of his or her
For example, in the case of Campbell and Fell,
the European Court of Human Rights ruled that in determining whether a
court is independent of the executive, the manner of appointment of its
members and the duration of their terms, the existence of guarantees
against outside pressures must all be considered.
Moreover, the jurisprudence of the Commission and the European
has found that "the irremovability of judges ... must ... be
considered a necessary corollary of their independence."
To evaluate the situation of the Judiciary in Peru, given the
foregoing principles, one must analyze the internal norms that establish
the manner of appointment and removal of magistrates.
As for the appointment of judges, Article 245 of the Peruvian
Constitution stipulates that the President of the Republic shall appoint
judges, who shall be nominated by the National Judiciary Council. The Senate confirms appointments of justices on the Supreme
As for their terms, Article 242 of the Constitution guarantees
that all judges may remain on the bench until they are 70 years of age
and may not be removed.
Finally, articles 183 and 184 provide that members of the Supreme
Court and of the Court of Constitutional Guarantees shall be subject to
impeachment by both legislative chambers in the event of a violation of
the Constitution and for any crime that they commit in the performance
of their functions.
As the petitioners, and the Commission in its report, have
pointed out, the justices of the Peruvian Supreme Court, of the Tribunal
of Constitutional Guarantees and of the Judiciary Council were removed
from their posts by several decrees issued by the Executive Power.
A decision of the Executive Branch also removed another 134
people in judicial posts, among them lower court judges and prosecutors.
Following the massive dismissal of judges, the Executive Branch
proceeded to appoint new judges under several decrees, thereby failing
to comply with the procedures established by the Constitution.
The third criterion that the European Court gives for the
independence and impartiality of the courts is the protection against
external pressures exerted on the judiciary.
The Constitution of Peru assures those guarantees by providing a
system of checks and balances among the various powers in selecting,
designating and removing judges (articles 245, 242, 183 and 184).
However, subsequent to the events of April 5, 1992, the Executive
Branch, by "dissolving" the two Chambers of Congress and
replacing, without any kind of process, a large majority of the judges
in the Judicial Branch, has upset the balance of power created by the
That very situation has, for all practical purposes, eliminated
the separation of powers and as a consequence has focused many functions
in the Executive Branch. That
concentration of powers has had the effect of subjecting "the
Judiciary even more to the dictates of the Executive Branch."
Hence, since the judges were removed without any type of
proceeding and replacements were then appointed solely on the basis of
an Executive decision, it is reasonable to say that in Peru there are no
guarantees to shield the Judiciary from outside pressure.
In that sense, in its Special Report on Peru the Commission
stated "None of the formalities was observed when the members of
the Judiciary were removed from the bench.
Hence, judges who remain in their posts or those who have been
appointed to replace the judges who have been removed from the bench,
are at the mercy of the Executive Branch..."
Given these arguments, the Commission considers that by removing
a significant number of its judges, among them justices of the Supreme
Court and of the Court of Constitutional Guarantees, and by appointing
new judges without, in either of the two cases, observing the
formalities required under the Constitution, the Government of Peru has
seriously compromised the independence and impartiality of the courts
and has thereby failed to guarantee due process of law in its
The nonexistence of due process within the jurisdiction of a
State weakens the efficacy of the remedies provided under domestic law
to protect the rights of individuals.
The Inter-American Court has found that Article 25.1 of the
Convention "incorporates the principle recognized in the
international law of human rights of the effectiveness of procedural
instruments or means designed to guarantee such rights..."
This principle generates an obligation for the States Parties to
the Convention, which is to provide effective judicial means in the
event of a violation of human rights of individuals within its
jurisdiction. Failure to
comply implies a violation of that principle and, therefore, the
offending State incurs international responsibility.
A remedy may not necessarily satisfy the requirements of
exhaustion simply because it is stipulated in a State's constitution or
laws; instead, "it must be truly effective in establishing whether
there has been a violation of human rights and in providing
In that sense, the Inter-American Court has underscored the
"A remedy which proves illusory because of the general
conditions prevailing in the country, or even in the particular
circumstances of a given case, cannot be considered effective.
That could be the case ... when practice has shown its
ineffectiveness: when the judicial power lacks the necessary
independence to render impartial decisions..."
It can be shown, in the specific case of Alan García Pérez,
that because the Peruvian courts were not independent and impartial he
was prevented from having his rights protected under the domestic law of
Peruvian law provides a special procedure for investigating and
judging crimes of which the officials referred to in article 183 of the
Constitution, including the President and members of both chambers of
the Senate, are accused. Under
article 66 of the Statutes of the Attorney General's Office, in fact,
the Attorney General shall institute criminal action against the
President, Deputies, and Senators, where there are grounds for such
action; article 34 of the
Statutes of the Judiciary stipulates that the Criminal Chambers of the
Supreme Court hear the proceedings and rulings on such cases.
As noted in the statement of facts, since the Senate ruled that
there were grounds for prosecuting Alan García, the Attorney General
instituted new criminal proceedings for one of the incidents included in
the impeachment, dismissing the other three as they were considered not
to constitute crimes. On learning that the only incident reported was
also not defined as a crime, the Examining Justice decided not to open
that order was appealed, the Chamber of the Supreme Court as the court
of second instance, upheld it. After
the appeal for annulment and following the complaint, based on the
dismissal by the court of first instance, it was declared without
grounds by the Chamber of the Supreme Court acting as the highest court.
Following the events of April 5, 1992 and after the Attorney
General and most of the members of the Supreme Court were dismissed by
decree and their replacements appointed by exclusive Executive Branch
decision, a new criminal action was prosecuted for the crime of unlawful
enrichment and every action taken since the ruling not to reopen the
case already prosecuted for the same crime was ruled null and void.
Using the same evidence, the new Attorney General decided that
the events which her predecessor did not consider as crimes were now in
fact so defined under Peruvian criminal law.
Thus, through a subsequent change of officer, the same body was
ruling twice, in the first instance holding a particular opinion, and
then acting otherwise.
Similarly, the new Supreme Court judges believed that it was a
"wrong" for their predecessors to decide that the appeal for
annulment and the second appeal were unfounded.
In the second ruling, they decided that the decision not to open
proceedings and the decision confirming that were indeed null and void.
The same body thus contradicted its own ruling in relation to the
same case, the same events, and the same irregularities on which its
had issued a previous ruling.
That the majority of the members of the Judiciary were virtually
replaced by exclusive Executive decision, coupled with the way this
situation directly affected the petitioner, in his specific case, lead
the Commission to conclude that, as the courts in Peru were not
independent and impartial, the procedural measures specially designed to
protect the rights of individuals were, for all practical purposes,
ineffective in terms of producing the result for which they had been
This was the position of the Commission in its Special Report on
Peru, where it stated that "... In consequence of the elimination
of the separation of powers [in Peru] the remedies instituted to protect
and guarantee the exercise of rights by individuals have been
Finally, the Commission wishes to point out that in the adoption
of precautionary measures vis-à-vis the particular situation of Dr.
Alan García Pérez, this body requested that the Government of Peru
implement measures to guarantee the petitioner respect for his rights to
have the proper guarantees, in accordance with Article 8.1 of the
Convention, especially the right to be heard by an independent and
However, the Government of Peru failed to comply with the
of the exception under article 46.2.b
Given the foregoing, the Commission considers that the exception
to the requirement concerning exhaustion of domestic remedies provided
in Article 46.2.a applies to the instant case; hence, the petitioner is
exempt from the obligation stipulated in the Convention.
The issues raised in the case under study can be summarized as
as a result of the events that took place on April 5, 1992, the right to
individual freedom and personal security of Dr. Alan García Pérez, his
wife and children and the right to the inviolability of domicile and of
private papers were violated.
in the criminal cases instituted for the crime of illegal possession of
weapons, the necessary guarantees protected by the Convention have been
the institution of the second case for unlawful enrichment and the
nullification of certain procedural acts in the first prosecution for
this crime constitute a violation of the principle of non bis in idem.
the failure to seek the Senate's authorization to prosecute Dr. García
for the crime of illegal possession of weapons and the failure to
conduct the impeachment proceedings prescribed by the Constitution in
the case of the new prosecution instituted for the crime of unlawful
enrichment constitute violations of due process of law.
taken by Army soldiers on April 5, 1992
The petitioners have alleged that the events that took place on
April 5, 1992, when Peruvian Army soldiers surrounded, fired on, and
then burst into the home of Dr. Alan García for purposes of arresting
him, constitute violations of rights protected under Article 7 of the
That article upholds every person's right to personal liberty and
security. In its second
subparagraph, Article 7 provides that no one may be deprived of his
physical liberty except for the reasons and under the conditions
established beforehand by the Constitution or by a law enacted pursuant
In its jurisprudence the European Commission on Human Rights has
held that the words liberty and security must be taken together and
understood to refer to physical liberty.
In the case of X v. the Federal Republic of Germany, the
Commission's finding was that threatening with arbitrary and unjustified
detention can infringe the right to security of person.
Under the terms of Article 7 of the Convention, the legality or
arbitrariness of an arrest must be analyzed on the basis of whether or
not there was observance of the constitution and/or domestic laws
enacted pursuant thereto that prescribe the reasons why an individual
can be deprived of his or her freedom and establish the procedures that
must be carried out in arresting an individual.
In that respect, the 1979 Constitution of Peru stipulated the
following in Article 2:
Every individual has the right to:
Parr. 20. Personal
freedom and security. g) no
one can be arrested without written court order with a reason assigned
by a judge or by the police authorities in a case of "flagrante
delicto...." h) every individual will be informed immediately
and in writing of the cause or reasons of his detention....
As the petitioners have described in their statement of facts,
the manner in which the attempted arrest of former President Alan García
was conducted utterly disregarded the procedural clauses of the
Constitution. These actions
were taken without a court order issued by a competent authority setting
forth the reasons why the attempt to arrest Dr. García was made.
Moreover, the arrest attempt was carried out by Army soldiers who
had no authority to carry out such actions.
The Peruvian Constitution, like the constitutions of other
democratic states, provides that the role of the armed forces is to
guarantee the independence, sovereignty and territorial integrity of the
Republic; they therefore have no authority to arrest civilians.
This point is corroborated by the Armed Forces' Service
stipulate that in the event troops are used to maintain and restore law
and order, they shall confine themselves to discharging their assigned
mission and avoid any improper use of their weapons.
The Armed Forces are to be accompanied by members of the National
Police, who shall make any arrests and detentions that the situation
The Commission considers that arrests must be made by the
authority who is competent under the domestic laws of the State and that
failure to comply with that requirement and failure to observe the
procedures required by international law for making an arrest occur in a
situation wherein "...arrests cease to be arrests per se and become
These arguments, combined with the acts of violence committed by
Army soldiers against former President Garcia --the firing of gunshots
on his residence-- for purposes of arresting him, lead the Commission to
conclude that in the instant case, the former President was threatened
with arbitrary and unlawful arrest and therefore his right to personal
security, which is protected under Article 7 of the American Convention,
was violated by the measures taken by the Peruvian Armed Forces on April
The petitioners have further claimed that the children of former
President García, who are minors, and his wife were also denied their
freedom, as they were held under house arrest by the Army soldiers and
that this, too, was a violation of Article 7 (right to personal liberty)
and Article 19 (rights of the child) of the American Convention on Human
As stated earlier, no one may be deprived of his physical liberty
except for the reasons and under the conditions established by the
constitution or the laws enacted pursuant thereto.
The Peruvian Constitution provided that personal liberty could be
restricted only for the reasons stipulated by the law, that no one could
be arrested without a written court order from a competent judge stating
the reasons for the arrest and that anyone who was arrested must be
brought before a judge within twenty-four hours and informed of the
reasons for his or her arrest.
Based on the cited constitutional clauses, it is the Commission's
understanding that the arrest to which the wife of former President Alan
García was subjected can be described as unlawful and arbitrary
inasmuch as there was no written arrest warrant from a competent judge
stating the reasons for the arrest and inasmuch as she was neither
brought before a competent court authority nor informed of the reasons
for her arrest.
The detention of the children of Dr. Alan García, who are
minors, deserves separate examination.
The petitioners have pointed out that the children were deprived
of their freedom by Army soldiers when the latter entered the home of
the former President in an attempt to arrest him.
Subsequently, that "detention" was prolonged in the
form of the house arrest to which their mother was subjected.
Article 19 of the American Convention requires that States
Parties afford to minors the measures of protection required by their
status as minors.
International instruments to protect the rights of the child
interpret that right to "measures of protection required by one's
condition as a minor" as an affirmative obligation of States to
consider the best interests of the child in all their actions.
The primacy of this concept has been regarded as the duty that
States and society in general have to be particularly vigilant in
protecting the rights of minors.
Given the special protection that the state is required to
provide to children, the Commission finds the measures taken by the
Peruvian Armed Forces that deprived the minor children of Dr. García of
their freedom to be particularly repugnant.
Those acts, for which the Peruvian Government is responsible,
constitute a violation of the obligations that the American Convention
on Human Rights upholds in this regard.
The Commission wishes to point out that there is a special
prohibition in the Convention that proscribes extending punishment to
the family of the person alleged to be guilty of a crime.
And so while the Peruvian Government believes that Dr. García Pérez
should have been arrested for the commission of a criminal offense, the
inability to apprehend him did not justify applying punishments intended
for him to his wife and children instead.
Thirdly, the petitioners have stated that on the night of April
5, 1992, Army soldiers under the command of General Hermoza Ríos
entered the home of Dr. Alan García and unlawfully seized private
family papers, such as identification papers, passports, property deeds,
tax declarations and legal documents used in the defense of the former
President in the case brought against him for the crime of unlawful
Article 11 of the American Convention on Human Rights protects
the right to privacy and stipulates that no one may be the object of
arbitrary or abusive interference in his private life or family.
By explicitly protecting the home and private correspondence of
individuals, this article serves to guarantee that the right to privacy
will be respected. This
protection is consistent with the American Declaration of the Rights and
Duties of Man inasmuch as it upholds the inviolability of domicile and
private papers as guarantees against arbitrary State interference in the
private lives of individuals.
However, the right to privacy is not absolute; quite the
contrary, exercise of this right is routinely restricted by the domestic
laws of States.
The guarantee of the inviolability of the domicile and of private
papers must give way when there is a well-substantiated search warrant
issued by a competent judicial authority, spelling out the reasons for
the measure being adopted and specifying the place to be searched and
the objects that will be seized.
The 1979 Constitution of Peru stipulated the inviolability of
domicile and of private papers except when an order has been issued by a
competent judicial authority authorizing the search, explaining its
reasons and, where appropriate, authorizing the seizure of private
papers, while respecting the guarantees stipulated by law.
Based on these concepts, the Commission concludes that the
warrantless search of Dr. García's home and the seizure of private
family papers -actions committed by Peruvian Army soldiers- were
committed in complete disregard of the procedural requirements
stipulated in the Constitution. The
violation of those requirements indicates that the Government of Peru
failed to guarantee to Dr. Alan García and to his family the full
exercise of their right to privacy.
The arguments made by the Government of Peru to the effect that
the Army soldiers surrounded the residence of Dr. García Pérez in
order to protect him are, in themselves, insufficient.
Protection of a private residence does not call for action by
heavily armed soldiers nor for the use of war tanks equipped with
canons, small tanks or armored troop carriers.
prosecution for the crime of illegal possession of weapons
As the petitioners indicated, Dr. Alan García Pérez is charged
in two criminal cases for the illegal possession of weapons, wherein the
only incriminating evidence --firearms, munitions and explosives-- was
unlawfully obtained by searching his private residence, in one case, and
the headquarters of the Aprista Party of which the former President is
Secretary General in the other case.
Article 8.1 of the American Convention provides that every person
has the right to a hearing, with due guarantees, in the substantiation
of any action of a criminal nature made against him.
Similarly, Article 8.2 provides that during proceedings, every
person is entitled, with full equality, to certain minimum guarantees.
The enumeration contained in this clause has been interpreted as
a list of the minimum guarantees, but not an exhaustive list.
Hence, there are other guarantees recognized in the domestic laws
of the State that, although not explicitly included in the text of the
Convention, are equally protected under the broad wording of
subparagraph 1 of Article 8 of the Convention.
The inviolability of domicile is one of the implicit guarantees
of that article. In effect,
inviolability of domicile is more than a guarantee of privacy; it is a
guarantee of due process inasmuch as it establishes what can be seized,
that being incriminating evidence against an individual charged with a
crime. When a search of a
domicile is conducted without observing the proper constitutional
procedures, that guarantee prevents any evidence thus obtained from
being used to arrive at a subsequent court decision.
Thus, in practice it functions as an exclusionary rule, one that
eliminates illegally obtained evidence.
The raison d'être of this guarantee and of the rule excluding
evidence obtained by violating that guarantee has been explained by
Maier as follows:
The justification of the methods used to arrive at the truth
depends upon the observance of juridical rules governing how they can be
validly weighed in the proceedings.
Not all methods are allowed and authorities must compile evidence
according to the discipline imposed by procedural law.
The judicial procedures are not mere formalities; instead, since
they work directly to protect human dignity, they act as a material
The proceedings instituted against Dr. García Pérez for illegal
possession of weapons were based exclusively on unlawfully obtained
evidence. The searches
conducted of his private residence and of the headquarters of the
Aprista Party were effected by means of intimidating tactics by Army
troopers, in total disregard for the procedures stipulated by Peru's
For this reason, the Commission considers that the
"procedural guarantees" protected by the American Convention
were not respected in processing the criminal cases against former
President Alan García.
of a new case for the crime of unlawful enrichment
The petitioners have pointed out that after being acquitted on
the charge of unlawful enrichment, Dr. Alan García has since been the
target of a multiple criminal prosecution.
According to what has been reported, on July 15, 1992, in other
words six months after the Supreme Court's decision confirming the
definitive filing of the case, the Public Prosecutor appointed by
President Fujimori filed a petition with the Criminal Chamber of the
Supreme Court seeking nullification of the ruling that had declared that
there were no grounds for instituting an inquiry against former
President Alan García. Then,
with the authorization of the Council of Ministers, on September 11 of
the same year a new charge was filed for the crime of unlawful
enrichment, based on the same facts and events that had been the basis
for the first case. Based
on the arguments described above, the petitioners denounced that both
the reopening of the case with a time-barred petition for nullification
and the institution of the new trial are violations of the principle of res
Subparagraph 4 of Article 8 of the American Convention upholds
the guarantee of non bis in idem by providing that "an
accused person acquitted by a nonappealable judgment shall not be
subjected to a new trial for the same cause."
Analyzing that subparagraph shows that the underlying elements of
the principle, for the Convention, are as follows:
the accused must have been acquitted;
the acquittal must be a final judgment; and
the new trial must be based on the same cause that prompted the
To apply this principle to the instant case, one must first
analyze the meaning of the concepts "accused person acquitted"
and "nonappealable judgment" under the human rights protection
system established by the American Convention.
The language used by the Convention, i.e., "accused person
acquitted" implies that someone who, having been charged with a
crime, has been exonerated from all criminal responsibility, since he
has been acquitted because his innocence has been demonstrated, because
his guilt has not been proven, or because it has been determined that
the acts of which he is accused are not defined as crimes.
The Commission considers that the expression "nonappealable
judgment" in subparagraph 4 of Article 8 of the Convention should
not be interpreted restrictively, that is, limited to the meaning given
to it by the domestic law of the States.
In this context, "judgment" should be interpreted as
any procedural act that is fundamentally jurisdictional in nature, and
"non-appealable judgment" as expressing the exercise of
jurisdiction that acquires the immutability and incontestability of res
Within the framework of the interpretation given to the text of
subparagraph 4, article 8 of the American Convention, it is to be
determined in this instance whether in this case there was a firm
pronouncement exonerating former-president Alan García from guilt.
Article 77 of the Peruvian Code of Criminal Procedure reads:
Once he receives the complaint, the Examining Judge shall open
the preliminary hearing only if he deems that the act reported
constitutes a crime, that the accused has been pin-pointed as the
alleged perpetrator of the act, and that criminal proceedings have not
been barred by a statute of limitations... If the judge concludes that
no action is to be taken, he shall dismiss the case.
Accordingly, the text of the rule quoted shows that in the event
that one of the required elements is not present, the court shall
declare that preliminary hearings shall not be initiated because the
proceeding is not admissible.
Unlike other bases for dismissing a charge--for procedural
reasons, for example--when the order not to open preliminary hearings is
based on the fact that the acts charged are not defined as criminal, the
ruling establishing that finding may not be overturned.
In fact, in a case where a court rules on one occasion that an
individual cannot be prosecuted by the State because the acts charged
are not defined as a crime, another court, citing the same acts, cannot
hold that they constitute a crime.
Having exhausted the remedies provided for under the law, this
decision shall also be uncontestable, that is, it may not be changed
during the same proceedings or in later proceedings.
In the Alan García case, as was indicated earlier, the Superior
Court Justice -- performing the duties of an examining judge -- ruled
that preliminary hearings should not be initiated, and ordered the case
to be filed permanently because the acts charged were not defined as a
crime. That ruling was
contested by the remedies provided for under the law.
Once those remedies were denied as inadmissible, the procedural
ruling became final because of the principle of res judicata.
While the Convention explicitly refers to the prohibition against
instituting a new trial based on the same facts, from a literal
interpretation of its text, one would have to acknowledge that the
violation of the principle of res judicata by reopening a
proceeding that had already been closed, would not be covered under
Article 8, subparagraph 4. Hence,
there is the possibility that a State Party to the Convention could file
time-barred petitions and thus reinstate the criminal prosecution of an
individual previously acquitted.
But in actual fact, the Commission finds that the protection
accorded under Article 8, subparagraph 4, implicitly includes those
cases in which reopening a case has the effect of reviewing questions of
fact and of law that have come to have the authority of res judicata.
As the petitioners point out, confirmation of the decision not to
reopen the case and to file it permanently took place in January 1992,
via a decision of the Supreme Court to dismiss, as unfounded, the
complaints filed by the Attorney General's Office and the Office of the
State's Attorney to challenge the ruling on the petition to have the
earlier decisions declared null and void.
On July 15, 1992, in other words six months later, the Attorney
General filed a new petition seeking nullification, which the Supreme
Court declared admissible on November 23, 1992.
The Court decided to nullify all rulings as of and including the
one that ordered that no inquiry be instituted and that the case be
Article 295 of the Code of Criminal Procedure of Peru provides
that the petition for nullification must be filed within one day of the
ruling or of notification of the decision being challenged.
In the event that petition is denied, Article 297 of the
Procedural Code provides that a complaint may be filed with the Supreme
Court within 24 hours.
Once both challenges have been filed, the Supreme Court's final
decision will put an end to the proceedings and become res judicata.
Any procedural measure taken on a finalized case will in practice
imply a reopening of that case, save for the remedy of review, where
The arguments lead the Commission to conclude that in the case in
question, the time-barred filing of the petition for nullification and
the decision of the Supreme Court to grant that petition have reopened a
closed case, thereby violating the principle of res judicata.
In the final analysis, it is for the Commission to determine
whether the second trial instituted for the crime of illegal enrichment
is based on the same facts that were the grounds for the first criminal
The impeachment that found grounds for prosecution of Alan García
was based on four facts alleged to constitute the crime of unlawful
enrichment. When the
articles of impeachment were presented to the Attorney General of the
Nation, the latter instituted a criminal case against the former
President based on just one of those articles and eliminated the others
on the grounds that they were suspected of not constituting the crime of
unlawful enrichment and did not prove liability.
The Commission considers the Attorney General's decision to
dismiss criminal proceedings on the grounds that the incidents brought
before it did not objectively constitute a crime since they are not so
defined in any criminal law, as an act that is essentially
jurisdictional in nature and --like all actions taken by the Attorney
General's Office in the proceedings-- once final, cannot be repeated and
is uncontestable, having the effect of res judicata.
Thus, the judicial decision is final, and accordingly it has the
effect of banning future actions being brought based on the same
material facts of the judgment.
In the case under review, as was indicated earlier, the
prosecutor, in his decision, on the one hand dismissed three of the acts
included in the impeachment, and on the other hand, brought criminal
proceedings for the remaining act.
During the proceedings, neither the petitioner nor the government
have indicated whether the prosecutor's decision to dismiss the case was
appealed to a higher court. For
that reason, the Commission must assume that, since the prosecutor's
decision was not appealed, it was consented to, and accordingly became
Therefore, based on the foregoing, the Commission concludes that
the prosecutor's decision, which dismissed three of the initial charges
because they do not constitute crimes, became final and concluded the
State's criminal proceedings for the acts that were set forth in the
judgment. Initiation of a new criminal prosecution based on the same
charges brought previously violates the principle prohibiting multiple
criminal prosecutions, and accordingly, subparagraph 4, article 8 of the
and privileges of Dr. García Pérez
The petitioners have alleged that because former President García
Pérez is a Senator for life, the Constitution gives him certain
privileges and immunities inherent in his office, privileges and
immunities that were not respected when prosecuting the cases for
illegal possession of weapons or in the substantiation of the new trial
for the crime of unlawful enrichment.
For this reason, the petitioners contend that Dr. García has not
been guaranteed the right to a competent court previously established by
law contravening in this sense the right to due process of law protected
under Article 8 of the American Convention.
To rule on the issue in dispute, it is necessary first of all to
establish whether, at the time the proceedings for the cases mentioned
earlier, Dr. Alan García was in fact a Senator for life, and if he was,
to determine what immunities and privileges the Constitution accords the
members of both Houses of Congress.
On this point, petitioners have indicated that, after the Supreme
Court ruled that preliminary hearings were inadmissible, Dr. Alan García
requested that he be reinstated in the Senate, and the Senate Executive
Committee granted his request in an official communication dated March
20, 1992, of which he was duly notified.
As support for their arguments, petitioners submit the ruling
handed down in a habeas corpus proceeding filed by the parents of Dr.
Alan García contesting the noncompliance with the impeachment
requirement in the case of the second trial for unlawful enrichment.
In its decision on the matter concerning us, the court points out
that Alan García "...recovered that privilege when the First
Criminal Section of the Supreme Court handed down a ruling ... the
decision ... that held that instituting preliminary hearings was
inadmissible..." and that "...the Senate of the Republic so
understood when ...it accorded him full reinstatement to the
In view of the Government's failure to contest the issue and
based on the evidence submitted by the petitioners, the Commission
considers that indeed after the proceedings of the first trial for
illegal enrichment were concluded, Dr. Alan García was reinstated to
his position as Senator for life.
Article 8 of the Convention provides that anyone has the right to
be heard by a competent judge or court.
The restrictions regarding interpretation of the Convention
contained in Article 29 stipulate that no provision thereof shall be
interpreted as restricting the enjoyment or exercise of any right or
freedom recognized by virtue of the laws of any State Party.
As for the principle of the natural judge, the Constitution of
Peru established the following in Article 2, subparagraph 20.l):
"No person may be removed from a predetermined jurisdiction
by law or subjected to procedures different from those previously
Moreover, articles 176, 183 and 184 of the Constitution
stipulated as follows:
"Senators and Deputies ... cannot be prosecuted or arrested
without previous authorization of the Chamber to which they
"The Chamber of Deputies has the power to impeach before the
Senate, the President of the Republic... for violating the Constitution
and for any crime which they may commit in the exercise of their
functions, even though they may no longer hold these positions."
"The Senate declares if there are grounds or not to find him
guilty on the basis of the charges made by the Chamber of
Two different types of immunities and privileges are provided for
in the articles cited above. In
effect, while Article 176 concerns the immunity from arrest and
prosecution that members of Congress enjoy, articles 183 and 184 concern
the procedure through which certain high-ranking state officials must be
charged--in this case, a former President and now Senator for life--for
violations of the Constitution or for crimes committed in office.
The cases instituted against Alan García for the crime of
illegal possession of weapons were not for crimes committed while in
office and therefore should be prosecuted in accordance with the
requirements of Article 176 of the 1979 Constitution; in other words,
the judge hearing the cases should have first requested the Senate's
authorization before instituting proceedings. Failure to observe this
requirement was a violation of a constitutional principle that anyone is
entitled to be tried solely in accordance with the procedures the law
The right to be tried according to the legally established
procedures is one of the most elementary rights of due process of law
and the obligation to respect that right is upheld in Article 8 of the
The constitutional provisions mentioned earlier govern a special
procedure, called impeachment, which must be used to process charges
against certain high-ranking State officials, among them the President
and the members of both houses of Congress, for violations of the
Constitutions or for crimes committed in the exercise of their
As indicated in the Statement of Facts, this procedure was used
in the case of Alan García when, after his term in office was over, he
was charged with the crime of illegal enrichment at State expense.
The petitioners argued that, since Dr. Alan García recovered his
position as Senator for life, in order to bring a second criminal case
against the former President, impeachment proceedings
have been instituted first. Using
this argument, the petitioners allege that the due process of law
protected under Article 8 of the Convention has not been guaranteed.
The Commission considers that, because Dr. Alan García is a
Senator for life, he was covered by the provisions of Article 183 of the
Constitution, and therefore, the Peruvian Government should institute
impeachment proceedings before bringing any criminal action based on the
commission of a crime in the performance of his duties as President of
Putting forth its argument, the Government of Peru sought to
justify the failure to proceed in accordance with the provisions of
articles 176, 183 and 184 of the 1979 Constitution.
The Government noted, in this regard, that the Congress of the
Republic was "temporarily adjourned" and that the provisions
of the Constitution did not apply because "under decree law 25418
(Basic Law of the de facto Government), the articles of the
Constitution [were] suspended...,"
Furthermore, the Government of Peru has stated that impeachment
proceedings were not necessary as that had already been pursued.
It decided to suspend Dr. Alan García as a Senator for life and
ruled that "there were grounds for a case to be brought"
against the former President. Insofar
as the ruling of the Senate was a compulsory "mandate" which
both the Attorney General and the Examining Prosector failed to carry
out in the first place, the new charges and the declaration of a new
case opened were supposed to be pursuant to the mandate prescribed under
The argument put forward by the Government conflicts with the
conduct of the Senate itself which reinstated the petitioner to it.
This is what the Commission must deal with. Through its own acts, this organ conceded that the
investigations into the events included in the impeachment were, in
effect, already concluded by pronouncement from the Attorney General or
by ruling from the Criminal Chamber of the Supreme Court.
No argument from the Government of Peru can therefore justify its
failure to have the Senate carry out its mandate since, as was pointed
out, this organ clearly knew otherwise.
Accordingly, as the impeachment proceedings in the case of
persons covered by article 183 of the Constitution is a prior
requirement for trial as set forth in the Constitution, the omission of
which compromises due process of law, the Commission concludes that in
the instant case, article 8 of the American Convention has been
Before setting forth its final conclusions, the Commission wishes
to reiterate that violations of the human rights protected by the
American Convention that are the result of acts or omissions
attributable to any organ of the State, generate international
responsibilities for that State. The
notion that only organs responsible for international affairs of a
government can compromise its international responsibility is erroneous,
because other government organs that perform purely domestic duties can
have occasion to apply and therefore violate rules of international law.
Although the Judicial Branch is independent from the Executive
Branch, it is not independent from the State.
Therefore, any ruling handed down by a domestic court that
violates human rights protected by the American Convention, so long as
it is issued by a government organ comparable to the legislature or the
executive branch, generates international responsibilities directly
ascribable to the State party to the Convention.
Finally, the Inter-American Commission on Human Rights, based on
the considerations analyzed in this report and in light of the
observations submitted by the Government of Peru on Preliminary Report
15/94, sets forth the following conclusions:
Government of Peru is responsible for violating the right of personal
freedom and security and the right to privacy in the case of Dr. Alan
García Pérez, his wife and their children and the latter's right to
special protection (articles 7, 11 and 19 of the American Convention) by
virtue of the events that took place in April 5, 1992.
Government of Peru is responsible for violating the right to judicial
guarantees and the right to due process of law of Dr. García Pérez
(Article 8 of the Convention) because two cases were conducted on the
basis of illegally obtained evidence, because a second criminal case was
instituted based on the same material facts that had been the basis of
the original criminal action, and because it failed to prosecute him in
accordance with the procedures established by law for instituting a
criminal action against a Senator.
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
the Government of Peru take into consideration the Commission's analysis
of the facts and of the law and that based on that analysis, it take the
necessary measures to reestablish the status quo ante, by
restoring to Dr. Alan García Pérez his rights that were violated.
the Government of Peru make reparations for the consequences of
violating the human rights of Dr. Alan García Pérez, his wife and
publish this report pursuant to Article 48 of the Commission's
Regulations and Article 53.1 of the Convention, because the Government
of Peru did not adopt measures to correct the situation denounced within
the time period.
A. Cancado Trindade, "A aplicação da regra do esgotamento
dos recursos internos no sistema interamericano de proteção dos
direitos humanos", Derechos Humanos en las Américas,
Washington, IACHR, 1984, p. 217.
Inter-American Court of Human Rights, Habeas Corpus under
suspension of guarantees (articles 27.2, 25.1 and 7.6 of the
American Convention on Human Rights)), Consultative Opinion OC-8/87
of January 30, 1987.
Articles 176, 183 and 184 of the Peruvian Constitution read
as follows: Article
176: Senators and
Deputies... cannot be prosecuted or arrested without previous
authorization of the Chamber to which they belong...
183: The Chamber of Deputies has the
power to impeach before the Senate, the President of the Republic,
members of both Chambers..., for violating the Constitution and for
any crime which they may commit in the exercise of their functions,
even though they may no longer hold these positions.
Inter-American Court of Human Rights, Judicial Guarantees in
States of Emergency (Articles 27.2, 25 and 8 of the American
Convention on Human Rights), Advisory Opinion OC-9/87, of October 6,
1987. Series A, No. 9,