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OEA/Ser.L/V/II.98 REPORT
Nº 20/98 CASE
11.762 BARUCH
IVCHER BRONSTEIN PERU March
3, 1998
I.
BACKGROUND
1. Baruch
Ivcher Bronstein, a Peruvian citizen and entrepreneur, was chairman of the board
of directors and majority shareholder of "Frecuencia Latina-Canal 2"
television. He acquired Peruvian
nationality by virtue of a supreme decree, as required under the existing law.
Under both the law in force at the time and the present law, aliens are
not permitted to own a radio or television channel in Peru.
2. In
early 1997, Television Channel 2 devoted several programs in its series "Contrapunto"
to reports of alleged irregularities within the government, the most prominent
being the programs that featured on the case of Army Intelligence Service (Servicio
de Inteligencia del Ejército - SIE) agents Mariela Barreto Riofano and Leonor
La Rosa Bustamante, the first of whom had been tortured and murdered.
The coverage made public the private income tax declarations of Dr.
Vladimiro Montecinos Torres, a presidential advisor and member of the National
Intelligence Service (Servicio de Inteligencia Nacional - SIN); another
important program revealed cases where the intelligence services had tapped the
phones of various Peruvian officials and prominent figures.
3. After
these news stories were aired, a number of congressmen sought a congressional
investigation, whereupon a number of events occurred which Frecuencia Latina
blamed on various agencies of the State, such as irregular investigations of
Frecuencia Latina by officials from the Office of the National Tax
Administration Superintendent, and military helicopter overflights of Mr
Ivcher's businesses at various hours of the day. Frecuencia Latina continued to broadcast its news stories,
which included programs on the operations planned against the media to threaten
journalists and the opponents of the Government, as well as phone tapping of
journalists, politicians and government officials.
4. On
May 23, 1997, the Armed Forces Joint Command released Official Communique No.
002-97 CCFFAA, which mentions Baruch Ivcher and underscores the fact that he was
a naturalized Peruvian citizen. The
press communique accused Baruch Ivcher of using the media to wage a campaign to
slander the Armed Forces by misrepresenting situations, twisting facts and
broadcasting "obviously malicious" commentaries.
It added that slander of that type was unacceptable to the Armed Forces,
which refused to accept the "tendentious and malicious campaign waged,
because it was an abuse of freedom of expression and an attempt to alienate the
public from the Armed Forces."
5. Then,
on May 28, 1997, Supreme Decree No. 004-97-IN was published, which approves the
regulations governing Nationality Act No. 26,574, Article 12 of which states
that "naturalized citizenship shall be canceled ... D.
For acts that could be detrimental to the national security and the
interests of the State." Article
27 states that "Acquired Peruvian citizenship is lost ... "for the
reasons stipulated in Article 12 of the Nationality Act."
According to the petitioners, these Regulations Governing the Nationality
Law ... give the President of the Republic the authority to revoke an
individual's nationality, in flagrant violation of articles 2, paragraph 21, and
53 of the Peruvian Constitution.
II. PETITIONERS
6. On
June 9, 1997, a petition was received at the Commission in which Peruvian
Congressman Javier Díez Canseco alleged facts leading to a reasonable
presumption that the Peruvian State was setting the stage to arbitrarily strip
Peruvian entrepreneur Baruch Ivcher Bronstein, the majority shareholder of
television channel "Frecuencia Latina", of his citizenship, in
violation of Article 20(3) of the American Convention.
7. Later,
on July 17, 1997, the dean of the Lima Bar Association, Mr. Vladimir Paz de la
Barra, filed a complaint on the victim's behalf, alleging that the Peruvian
State had stripped Baruch Ivcher Bronstein of his Peruvian citizenship, thereby
violating Article 20(3) of the American Convention on Human Rights.
8. On
August 26, 1997, Mr. Baruch Ivcher Bronstein, the victim, attached a note
addressed to the Commission wherein he requested a hearing with the Commission
for himself and his attorney, thereby becoming a party to the proceedings
already underway with the Commission.
9. Mr. Ivcher, by letter
dated February 27, 1998, addressed to Ambassador Jorge Taiana, the Executive
Secretary of the IACHR, appointed Mr. Ariel Dulitzky, co-Director of the Center
for Justice and International Law (CEJIL), as one of his representatives in this
case.
III. FACTS
10. In 1984,
Mr. Baruch Ivcher Bronstein, an Israeli-born attorney, became a naturalized
Peruvian citizen, certified by nationality document No. 004644, approved by
Supreme Resolution No. 0649-RE of November 27, 1984, and signed by the Minister
of Foreign Affairs.
11. On July
10, 1997, PNP General Fernando Dianderas Ottone, Director General of the
National Police, held a press conference to announce the findings of report No.
003-97-IN-05010 of July 10, 1997, prepared by the General Bureau of Immigration
and Naturalization, to the effect that the file for citizenship document No.
004644, pertaining to Baruch Ivcher B, approved by Supreme Resolution No.
0649-RE of November 27, 1984, signed by the then Minister of Foreign Affairs, in
keeping with Naturalization Act No. 9148, was not to be found at the General
Bureau of Immigration and Naturalization.
12. That
press conference was followed by publication of Directorial Resolution No.
117-97-IN-050100000000 dated July 11, 1997, in the Official Gazette El
Peruano of July 13, 1997. In
that administrative resolution, the Government "revokes" Baruch Ivcher
Bronstein's Peruvian citizenship document because of "substantive omissions
that invalidate it ipso jure, because the proper Peruvian
authorities were not shown proof of his having first renounced his original
nationality nor did he show any document confirming that the authorities of his
country of origin were advised that he was renouncing his citizenship of
birth." The resolution is
signed by PNP Colonel Víctor Hugo Huamán del Solar, Director General of
Immigration and Naturalization.
13. The
preamble of the resolution emphasized the fact that no copy or record was on
file of the original naturalization procedure that Baruch Ivcher B. followed.
It also stressed his failure to formally renounce his citizenship of
birth -Israeli; according to the directorial resolution, the first notarized
evidence of his having renounced his citizenship of birth was dated July 6,
1990, which meant that no such evidence could have been seen at the time he was
granted Peruvian citizenship on December 7, 1984.
14. Baruch
Ivcher B. then applied for a writ of Amparo against Directorial
Resolution No. 117-97-050100000000 (which revoked his citizenship document) with
Lima Superior Court's Public Law
Chamber. The ruling on his petition
seeking to have the resolution nullified, dated August 14, 1997, dismissed it as
being unfounded. An appeal was
filed to challenge the ruling. The
Provisional Public Law Chamber heard the petition and, in a ruling dated October
24, 1997, nullified all proceedings because of a mistake made in the
notification of the action. With
that the case was returned to the lower courts.
Once the case records were returned to the lower court, the latter handed
down a new judgment, dated November 12, 1997, which declared that no cause for
action had been shown. The
petitioner appealed that ruling, again with the Provisional Public Law Chamber,
which in a ruling of December 22, 1997, upheld the lower-court ruling. The petitioner challenged this decision before the
Constitutional Court, which has not yet taken up the case.
It should be added that the Court in question is currently functioning
with only four of its seven members.
15. In the
same filing, the petitioner sought a restraining order to suspend the effects of
the directorial resolution that stripped him of his citizenship.
That petition was denied on August 15, 1997.
When the ruling was appealed, the same Lima Superior Court Public Law
Chamber, in a ruling dated September 11, 1997, nullified all the proceedings
owing to an error in the notification of the defendant.
When the case was returned to the lower court, on October 16, 1997, the
presiding judge, Dr. Percy Escobar, again denied the request for a restraining
order. The appeal on that ruling
was decided by the Provisional Public Law Chamber which, on December 11, 1997,
upheld the lower court's ruling, declaring that the provisional measure
requested was out of order.
16. At the
same time, on July 11, 1997, Mr. Mendel Winter Zuzunaga and Mr. Samuel Winter
Zuzunaga, minority shareholders in Frecuencia Latina, filed their own petition
of amparo seeking nullification of Mr. Baruch Ivcher B.'s purchase of
shares in that television channel; they argued that because Mr. Ivcher was an
Israeli citizen, he should have been barred from purchasing those shares and
that the purchases should be declared null and void. In the same application, they petitioned the court for a
provisional measure to allow them to take control of the channel's
administration. In the lower court,
the Judge of the First Public Law Chamber acceded to their request on August 1,
1997; his ruling was upheld on September 12, 1997, by Lima Superior Court's
Provisional Public Law Chamber; the result was that Mr. Baruch Ivcher B.'s
appointment as Director of the Latin American Radio Broadcasting Corporation and
as Chairman of the Board of Directors of that body was revoked until the
question of his Peruvian nationality was decided by the competent authority.
17. On
September 19, 1997, the brothers Winter Zuzunaga, minority shareholders in the
television channel, took over its control and immediately barred from the
premises a number of journalists and officials identified as being in Ivcher's
camp. That list was formalized and
certified by Notary Public Manuel Noya de la Piedra.
18. Mr.
Baruch Ivcher filed for a remedy of cassation against the resolution that handed
over control of the channel to the minority shareholders.
That application was denied, thus leaving control of the channel in the
hands of the minority shareholders.
19. For his
part, the victim filed another remedy of amparo challenging articles 12
and 13 of the Regulations governing Nationality Act No. 26.574.
The lower court dismissed his application on the grounds that it was
unfounded. The case was then taken
to the Provisional Public Law Chamber which, on November 12, 1997, nullified the
proceedings because of an error in the notification of the defendant, and sent
the case back to the lower court.
20. For
their part, Frecuencia Latina journalists Fernando Vian Villa et al. and Alberto
Borea Odria et al. filed class action suits challenging articles 12 and 13 of
the Regulations governing the Nationality Act.
21. On
October 23, 1997, the Inter-American Press Association passed a resolution at
its 53rd General Assembly wherein it pointed out that with the silencing of
Television Channel 2 for having reported government violations of human rights,
freedom of press in Peru had been seriously compromised; it therefore resolved
to urge repeal of the resolution that stripped Baruch Ivcher of his Peruvian
citizenship, thereby permitting him, as the channel's majority shareholder, to
remain in control of the channel.
IV. PROCEEDINGS
BEFORE THE COMMISSION
22. On June
9, 1997, the Inter-American Commission on Human Rights (hereinafter the
"Commission") received a petition filed against the Republic of Peru
(hereinafter the "Peruvian State" or the "State") by
Congressman Javier Díez Canseco. There
Congressman Díez Canseco alleged that judging from the events occurring in Peru
at that time, the victim could well be on the verge of being stripped of his
Peruvian citizenship.
23. Later,
on July 16, 1997, the Commission received a second petition filed against the
Peruvian State, this time by the Dean of the Lima Bar Association, Dr. Vladimir
Paz de la Barra, wherein he charged that the Peruvian State had revoked the
Peruvian citizenship given to Baruch Ivcher Bronstein.
The petition was based on Article 53 of the Constitution, which protects
citizenship; Article 6 of Law No. 26.574, which stipulates that naturalization
shall be either approved or canceled, as appropriate, by virtue of a supreme
resolution, the argument being that the directorial resolution was
unconstitutional. This petitioner
added that the violation of the Peruvian legal system was also a serious
violation of Article 20(3) of the American Convention on Human Rights.
24. On July
18, 1997, the Commission instituted proceedings by sending a communication to
the Peruvian State requesting information within 60 days and assigning the case
number 11.762.
Provisional measures
25. On July
28, 1997, the Commission received a note from the first petitioner and Peruvian
Congressman Javier Díez Canseco, dated July 14, 1997, alleging that events had
transpired at that time which had resulted in a violation of Mr. Baruch Ivcher
B.'s right to citizenship. The note
added information relating to the underlying motives and preambular paragraphs
of the resolution that stripped the victim of his nationality.
The note stated that at a press conference, the Director General of the
National Police purportedly explained that "no record has been found at any
office of the Bureau of Immigration and Naturalization to confirm the existence
of the file that led to Mr. Ivcher's Nationality Document No. 004644",
which was why the Director of the Service issued the resolution in question.
26. In the
same application, the petitioner asked the Commission to "agree to the
appropriate provisional measures", to avoid irreparable harm.
27. On July
30, 1997, the Commission sent a letter to the Peruvian State requesting that,
pursuant to Article 29 of the Commission's Regulations, effective provisional
measures be adopted to restore Peruvian citizenship to Baruch Ivcher Bronstein,
since the latter could be irreparably harmed if stripped of it.
28. On
August 26, 1997, the Commission received a letter dated August 26, 1997, wherein
Mr. Baruch Ivcher Bronstein requested a hearing with the Commission to denounce
the Peruvian State's violation of his rights.
29. On
September 2, 1997, the Peruvian State requested that the Commission extend the
deadline for providing the Commission with information.
The Commission responded by granting a 15-day extension.
30. On
September 12, 1997, the Permanent Representative of Peru provided the Commission
with a report on the case in question, prepared by the National Human Rights
Council. There the Commission was
asked to declare the petition inadmissible by virtue of articles 46 and 47 of
the American Convention on Human Rights and the corresponding articles of the
Commission's Regulations, since at the time a number of proceedings were in
progress in domestic courts; were the Commission to take up the case, it would
be taking over cases now pending in the Peruvian courts, as the remedies under
domestic law had not been exhausted.
31. On
September 18, 1997, the Permanent Representative of Peru sent the Commission a
report prepared by the Council for the Defense of Human Rights, Memorandum No.
1613-97-JUS-/CNDH-SE, where the State addresses the matter of the provisional
measures requested by the Commission via note of July 30, 1997; in that note the
State had been asked to adopt "effective provisional measures to restore
Peruvian citizenship to Mr. Baruch Ivcher B."
32. That
memorandum began by pointing out that the petition was inadmissible on the
grounds that the remedies under domestic law had not been exhausted.
Its response to the Commission's request for provisional measures was
that the principles at issue in regard to the provisional measures were the same
as those at issue in the merits in the case, a case being heard by the domestic
courts at that time. It therefore
asked that the Inter-American Commission on Human Rights, "based on
articles 46(1)(a) and 47(a) of the Convention, articles 35(a) and 37(1) of its
Regulations, and articles 19(a) and 23(1) of its Statute, declare the petition
inadmissible. The Commission cannot
take up a proceeding for provisional or precautionary measures since no organ
other than the Peruvian judiciary may rule on the merits of a case, or its
ancillary issues or provisional measures, as that would constitute interference
in the independence of the judicial organs of the Peruvian State and flagrant
disregard for the maxim of the law that holds that the finding on the merits of
a case will determine the outcome of ancillary issues."
33. The
Peruvian response went on to say that under Article 139 of the Constitution now
in force, no authority could take over cases pending in the courts, or interfere
in the courts' exercise of their functions. Therefore, any pronouncement on the disputed issue or
precautionary measures would constitute interference in the autonomy of the
judicial organs of the State.
34. On
September 19, 1997, the Commission received additional information from
Congressman Javier Díez Canseco where he reported developments in the domestic
proceedings surrounding this case.
Hearing
35. On
October 9, 1997, at the Commission's 97th session, a hearing was held with
representatives of the Peruvian Government and of the petitioners, Mr. Enrique
Elías, attorney for the victim, and the Dean of the Lima Bar Association,
Vladimir Paz de la Barra. The
representatives for the two sides gave their arguments.
36. The
petitioners asked the Commission to take immediate action, arguing that this was
one of the exceptions provided for in Article 46 of the Convention.
They pointed out that the court of last resort in the instant case was
having serious operating difficulties, and was either prohibited from or unable
to follow the proper legal procedure, which was to serve as court of last
instance and review this case.
37. Secondly,
the petitioners argued that at the lower-court level something very serious had
transpired, since for a variety of reasons the judge assigned to the court did
not hear the case; instead, an alternate judge was named.
On 15 different occasions the alternate judge had been cited for such
egregious errors and transgressions as loss of case files, unlawful delays in
proceedings, fraudulent notifications and others.
As Secretary of the Court, he was one who would now decide the case at
the lower-court level, which adversely affected due process.
38. This, in
the petitioners' judgment, did not ensure the necessary guarantees of an
independent, impartial and fair court. The
petitioners also pointed out that the three judges presiding over the case in
the court of second instance had thus far managed to drag the proceedings out
for four months. A decision was
handed down nullifying all proceedings in the case on the grounds that the
Director of Immigration supposedly was not properly notified, which was not true
because he was served on time and in the proper manner.
The petitioners are seeking to have the case admitted on the grounds that
guarantees of due process of law do not exist in Peru; they are also asking the
Commission to seek immediate precautionary measures to prevent irreparable harm
from being done to the victim.
39. For its
part, the Government stressed that the facts in the instant case are being
litigated in the domestic courts, so that the Commission should declare the
petition inadmissible on the grounds of a failure to exhaust the remedies under
domestic law.
40. On
October 9, 1997, the victim, Baruch Ivcher Bronstein, attached a brief to the
petition he filed with the Commission against the Peruvian State, alleging that
he had been stripped of his Peruvian nationality in violation of Article 20(3)
of the American Convention; that his right to retain and exercise the privileges
of the right of ownership, protected under Article 21(1) of the Convention, was
violated when his loss of citizenship caused him to lose control over a sizeable
share of his assets; that the right to freedom of the press and freedom of
expression established in Article 13 of the Convention was violated when he was
forced off the board of directors of "Frecuencia Latina Canal 2"
television, and that his right of self-defense, to due process of law and to
judicial protection, established in articles 8 and 25 of the Convention, were
violated when he was arbitrarily stripped of his nationality via an
administrative decision that resulted from an administrative action of which he
was never notified and of which he learned only when the decree stripping him of
his nationality was published. A
series of irregularities in this judicial process and thereafter denied him his
right of self-defense, leaving him with no means to defend himself.
41. The
pertinent parts of the victim's petition and other documents added thereafter
were forwarded to the Peruvian Government as "additional information"
on November 25, 1997; the Government was given 15 days in which to comment.
42. As for
the exhaustion of domestic remedies, the petitioner stated that in the instant
case, "for applications seeking writs of habeas corpus and amparo,
the Peruvian Judiciary has no independent and honest judges who ensure that amparo
is an effective means to defend the constitutional rights invoked."
43. On
October 17, 1997, the Commission received a brief alleging that at the present
time the State's duties and obligations cannot be performed because of a problem
of unrestrainability created by the amendment introduced in the Code of Civil
Procedure with Laws Nos. 26.599 and 26.756. The constitutionality of both these laws was being challenged
in the Constitutional Court. This,
in the victim's judgment, exacerbates his situation; the harm he is suffering is
irreparable because any action seeking to redress the damage caused is
ineffective. Hence, urgent
precautionary measures are needed.
44. In
another brief filed that same date, the victim enclosed a list of background
information on Dr. Percy Escobar, judge on Lima's Provisional Public Law Bench
and who, in the petitioner's judgment, "was appointed to the bench for
political reasons, despite the fact that he did not have the ethical and
professional qualifications for the office"; Dr. Percy was the one who heard the application that Mr.
Ivcher filed in the lower courts seeking a writ of amparo.
Enclosed was a copy of Memorandum No. 922-97-UA/csjl, to which was
attached a full record of the disciplinary measures ordered against Judge Percy
Escobar.
45. On October 20, 1997, Mr. Ivcher presented a memorandum to the
Commission, to which he attached a notarized document dated December 6, 1984,
which was issued on July 6, 1990, in which Baruch Ivcher's renunciation of his
Israeli nationality is made official, as well as an explanation provided by the
Notary Public, Dr. Máximo L. Vargas, who twice provided testimony about the
above mentioned public document.
46. Later,
in filings dated November 19 and December 3, 1997, and January 6, January 29 and
February 11, 1998, the victim provided additional information and stood by the
arguments made previously in connection with the admissibility of the case.
47. For its
part, in notes dated December 2, 1997, January 15, 1998, January 16, 1998 and
January 27, 1998, the Peruvian State provided additional information to
reinforce its argument that the case was inadmissible because not all remedies
before the Peruvian courts had been exhausted.
48. On February 26, 1998, during the Commission's 98th period of
sessions, the Commission held a second admissibility hearing on this case. At
this hearing, information was provided that a final internal remedy was pending
before the Peruvian courts, presented on January 16, 1998 by Baruch Ivcher
before the Constitutional Court, against the judgment of the court of appeals
which had denied the writ of amparo. Also,
it was added that pursuant to its governing law, the Constitutional Court has a
time period of 20 days within which to decide a writ of amparo presented to it.[1]
V. ADMISSIBILITY
49. The
three petitions satisfy the formal requirements established in Article 46 of the
Convention for admissibility. The
petitions were filed within the time frame stipulated in Article 46(b) of the
Convention and Article 38 of the Commission's Regulations, and were filed with
the Commission within the 6-month period stipulated in the American Convention.
It is worthwhile noting that the victim was the last to file a petition,
and he is now regarded as the principal petitioner.
50. In
keeping with Article 46(c) of the Convention and Article 39 of the Commission's
Regulations, in the Commission's knowledge the subject of this petition is not
pending with any other international body for settlement.
51. The
Peruvian State raised a preliminary objection arguing the petitioner's failure
to exhaust the remedies under domestic law, pointing out that the facts in the
instant case were being litigated in several actions now before the domestic
courts, which meant that the remedies under domestic law had not been exhausted.
52. The
petitioner argued that in the instant case, the exception allowed in Convention
Article 46(2) to the rules requiring exhaustion of the remedies under domestic
law applied because in Peru there was no effective remedy to protect the
violated rights or due process of law to ensure the independence and
impartiality that a court must have when hearing a case, which is a violation of
Articles 25 and 8 of the Convention. It
was also alleged that there had been an unwarranted delay in ruling on the
remedies invoked, especially the ruling by the Provisional Public Law Chamber in
case No. 246-97, dated September 11, 1997; that case was the appeal challenging
the earlier decision that denied the precautionary measure sought in the action
seeking a writ of amparo against the decision that stripped Mr. Baruch
Ivcher B. of his nationality. That
September 11 ruling vacated all proceedings conducted theretofore.
53. Thus
far, seven months after the directorial resolution stripping Mr. Baruch Ivcher
of his nationality was issued, the victim has not yet obtained a final judgment
settling his nationality status once and for all.
On three different occasions, the appellate court has nullified all
proceedings in his case and returned the case to the lower court, thus delaying
and complicating his case. At the
same time, the very same court has already handed down definitive rulings on the
Winter brothers' cases, in their favor, thus taking away the victim's control of
the administration of the television channel through application of Directorial
Resolution No. 11-97-IN-050100000000. In other words, both the lower court and the appellate court
have treated Baruch Ivcher Bronstein as a de facto alien and declared him
to be an alien.
54. Throughout
the proceedings, especially at the hearing held at the 97th session, the State
failed to demonstrate that the Peruvian legal system had simple, efficient and
effective remedies for the victim's situation.
55. Mr.
Baruch Ivcher Bronstein's present situation is extremely disturbing, as he
appears to have suffered virtually irreparable damage.
While the Government maintains that he is an undocumented Peruvian, the
courts of first and second instance have handed over control of Frecuencia
Latina Canal 2 television to minority shareholders, even though Mr. Ivcher is
its majority shareholder and was its chairman.
As these court rulings were premised on the fact that Mr. Ivcher was not
a Peruvian citizen and because, under the present law, no alien may own a
television channel, the channel's administration is no longer in Mr. Ivcher's
hands.
56. As a
consequence of the foregoing, even if Mr. Ivcher were to win the cases brought
in the domestic courts, the damages he has already sustained are of enormous
magnitude and would be very difficult to redress in full.
These damages are aggravated day by day and require a simple and
effective remedy. For that reason, the Commission, without prejudging the facts
but applying the maxim that requires it to opt for the interpretation of the law
that best protects human rights, agreed to seek precautionary measures for Mr.
Ivcher. These measures were
requested by letter dated July 30, 1997.
57. In that
note the Government was asked to take the precautionary measures needed to
prevent the victim from being stripped of his nationality, so that he might be
regarded as a citizen in the legal action he has brought, thereby avoiding
irreparable harm to him.
58. The
Peruvian State replied to the Commission by stating that the case was being
heard by the courts and that under the Constitution no authority may seize
itself of matters already being heard by the courts.
Peruvian domestic law provided adequate tools to protect those rights,
such as amparo, and that in fact the victim had requested a similar
precautionary measure, which was being decided by the courts.
59. The
Government's refusal and the judicial system's delay in ruling on this case,
place the petitioner in a defenseless situation and have thus far been
ineffective in avoiding harm to the victim, although eventually everything might
well be settled and any wrong done by the regular courts might eventually be
fully righted. That could happen with the ruling to be handed down by the
Constitutional Court.
60. The
Peruvian State has not taken any precautionary measure to maintain the victim's status
quo until such time as the merits of the case are settled in the national
courts. Peru's lower courts have
refused Mr. Ivcher's application seeking precautionary measures; when that
ruling was appealed, the Superior Court declared all proceedings conducted thus
far to be null and void which, the petitioner argues, has delayed the
proceedings by approximately four months. The
conclusion drawn from these facts is that the domestic remedies have been
neither swift nor effective in preventing harm of such severity.
This harm becomes greater with the passage of time, given the nature of
the rights involved, since the victim has been severed from his employment as
chairman of Frecuencia Latina Channel 2 television.
The fact that harm has materialized in the interim, before the domestic
courts handed down a final ruling on the applications filed seeking writs of amparo,
demonstrates how slow and ineffective the remedies in this case have been, and
gives the Commission grounds to declare the case admissible.
61. As for
the passive legitimation, because Peru is a State party to the American
Convention, having ratified it on July 28, 1978, the Commission is competent to
take up the present case.
VI. CONCLUSIONS
62. The
Commission concludes that the petition satisfies the admissibility requirements
established in Article 46 of the American Convention.
63. As for
the Peruvian State's objections asserting that the remedies under domestic law
have not been exhausted, no credible evidence has been shown during the
proceedings, especially during the hearings before the Commission in October
1997 and February 1998, to demonstrate that effective domestic remedies do
exist. Therefore, the Commission
considers that in the instant case, the exceptions established in article 46(2)
(a), and (c) of the American Convention on Human Rights apply; hence, the
remedies under domestic law need not be exhausted for the Commission to take up
the petition.
64. The
foregoing notwithstanding, the Commission might eventually declare the petition
inadmissible if, when examining the merits of the case, it finds some change in
circumstances, which includes the possibility of full reparations to the victim.
65. Hence,
the Commission declares the instant case admissible although it will re-visit
the issues in greater depth when examining the merits of the case. 66. To publish the present admissibility report in its Annual Report to the OAS General Assembly.
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