New IACtHR Judgments Address Length of Criminal Proceedings and Forced Disappearances
Last week, the Inter-American Court of Human Rights issued judgments in two cases, one of which concerned the duration of criminal proceedings against a Peruvian soldier responsible for two civilians’ deaths, and the other the forced disappearance of children during El Salvador’s internal armed conflict. [IACtHR Press Release: Tarazona Arrieta; IACtHR Press Release: Rochac Hernández] The judgments came as the Court finished its 106th Ordinary Period of Sessions, which were held from November 10 to 21 in San José, Costa Rica. [IACtHR Press Release: 106th Ordinary Period of Sessions]
In the case of Tarazona Arrieta and Others v. Peru, the Court unanimously decided that Peru had violated its international obligations by allowing criminal proceedings against a soldier responsible for killing two civilians and injuring a third to continue for an unreasonable period of time. I/A Court H.R., Tarazona Arrieta and Others v. Peru. Preliminary Objections, Merits, Reparations and Costs. Judgment of 15 October 2014. Series C No. 286. In Rochac Hernández and Others v. El Salvador, the Court unanimously found that the forced disappearances of five children, aged nine months to 13 years, violated and continued to violate the human rights of the children and their families. I/A Court H.R., Rochac Hernández and Others v. El Salvador. Merits, Reparations and Costs. Judgment of 14 October 2014. Series C No. 285.
Tarazona Arrieta and Others v. Peru
On August 9, 1994, a military patrol comprising 15 soldiers were inspecting the Ate Vitarte area of Lima, Peru, where suspicious persons were believed to be present, when a shot was heard coming from the direction of a public bus passing through the area. Upon hearing the shot, the head of the patrol took count of the soldiers and noticed that Antonio Evangelista Pinedo, an 18-year-old sergeant in the group, and another soldier, identified in the Court’s decision as “el Cabo J.C.A.L.,” were both missing. I/A Court H.R., Tarazona Arrieta and Others v. Peru. Preliminary Objections, Merits, Reparations and Costs, paras. 30-31.
After a witness reported that he had seen a soldier fire at the bus, wounding two people, the patrol discovered the bodies of civilians Zulema Tarazona Arrieta and Norma Teresa Pérez Chávez, along with an injured third person, Luís Bejarano Laura. The two missing soldiers were at the scene, although both denied firing the shot. The entire patrol was then taken to the National Directorate of Criminal Investigation for the National Police of Peru (PNP) for investigation, which later determined that Evangelista Pinedo had indeed fired the shot. Id. at paras. 32-33.
Investigation and Criminal Proceedings at the National Level
The investigation of the incident was immediately turned over to the homicide division of the PNP, which concluded that the killings had been caused by members of the army. The Chief of the Motorized Infantry Battalion (BIM) also determined that Evangelista Pinedo was directly responsible for disobeying orders and negligence, resulting in the deaths of the two civilians. Evangelista Pinedo subsequently confessed to firing the shot. Id. at paras. 35-38.
On August 31, the Permanent War Council initiated proceedings against Evangelista Pinedo before the Third Military Court in Lima. When the Provincial Prosecutor also filed a case against him before the 27th Criminal Court of Lima, the Military Court asked the Criminal Court to disqualify itself from the case owing to the already-pending proceedings before the Military Court. The Criminal Court declined to abide by this request, classifying the alleged crime as a simple homicide, and issued an arrest warrant. The ensuing criminal investigations, however, were archived in 1995 following the enactment of Amnesty Law No. 26.479, which granted amnesty to all military, police, and civil personnel involved in events arising from or related to efforts to counter terrorism from May 1980 onward. Id. at paras. 38-48.
On January 22, 1996, the petitioners presented their complaint to the Inter-American Commission on Human Rights, which declared the petition admissible on October 10, 2001.
In January 2003, the case was recovered from government archives during the implementation of the Inter-American Court’s judgment in the landmark case of Barrios Altos v. Peru. In that case, the Court declared that the Amnesty Law was incompatible with the American Convention on Human Rights and had no legal effect. Id. at para. 60. Subsequently, in 2008, the National Criminal Court convicted Evangelista Pinedo and sentenced him to six years of imprisonment. The National Criminal Court also awarded civil damages in favor of the three victims. Id. at paras. 79-80; see also I/A Court H.R., Barrios Altos v. Peru. Merits. Judgment of 14 March 2001. Series C No. 75.
When Peru failed to comply with the recommendations in its 2012 merits report, the Inter-American Commission referred the case to the Inter-American Court, on June 3, 2013. See I/A Court H.R., Tarazona Arrieta and Others v. Peru. Judgment of 15 October 2014, para. 2.
The Court’s Judgment on the Merits
The Court found that the one-year period between the opening of the investigation and the archival of the case, the seven-year period during which the case was archived due to the amnesty law, the length of the proceedings once the case was reopened, and the time it took for compensation to be paid all negatively affected the reasonableness of the duration of the judicial process. The Court thereby held that Peru had violated Article 8 (right to a fair trial) of the American Convention, to the detriment of Luís Bejarano Laura, Zulema Tarazona Arrieta’s parents, and Norma Teresa Pérez Chávez’s parents. Id. at para. 122.
The Court also found that Peru had violated Article 2 (domestic legal effects) of the American Convention to the detriment of Luís Bejarano Laura, Zulema Tarazona Arrieta, and Norma Teresa Pérez Chávez’s parents by failing to ensure adequate internal measures to prevent the army’s use of excessive force and to give assistance to those injured or affected by such force. Id. at paras. 153-69.
Regarding the alleged violations of articles 4(1) (right to life) and 5(1) (right to humane treatment) of the American Convention to the detriment of the three shooting victims, the Court noted that it was clear from the evidence that Peruvian judicial authorities had effectively investigated, processed, and prosecuted the case and paid compensation to the victims or their families. For that reason, the Court declined to decide these allegations out of respect for the principle of complementarity, which dictates that international courts should only act when national jurisdictions are unable or unwilling to do so themselves. Id. at paras. 135-41.
The Court did not find the State internationally responsible for violating Article 5(1) (right to humane treatment) to the detriment of Luís Bejarano Laura and the families of Zulema Tarazona Arrieta and Norma Teresa Pérez Chávez on the basis that it had declined to issue a finding on whether the victims’ right to life had been violated and because there was insufficient evidence to establish that the duration of the proceedings had caused them further suffering. Id. at paras. 144-49.
In addition to finding that the judgment itself constituted a form of reparation, the Court ordered the State to:
- publish the decision in the State’s official gazette, its official website, and a newspaper of wide national circulation; and
- pay USD $10,000 for costs and expenses to the representatives of the victims and USD $2,030.89 in reimbursement to the Victims’ Legal Assistance Fund.
Id. at “Decides,” paras. 6-10.
Rochac Hernández and Others v. El Salvador
From 1980 to 1991, El Salvador was engaged in an internal armed conflict that ultimately ended with the signing of a United Nations-facilitated peace agreement on January 16, 1992. The peace agreement called for the establishment of a national truth commission tasked with accounting for individual acts and overall patterns of violence inflicted by both State agents and members of the Farabundo Martí National Liberation Front (FMLN) guerrilla group. I/A Court H.R., Rochac Hernández and Others v. El Salvador. Judgment of 14 October 2014, paras. 46-47.
Within the context of the armed conflict, there was a marked pattern of forced disappearances of children, who were taken and illegally detained by members of the armed forces. As of April 2014, there were 926 registered cases of missing children, with 239 being reunited with their families, 96 pending reunion, 54 determined having died, and 537 remaining missing. Id. at para. 49.
In separate incidences in the years from 1981 to 1982, José Adrián Rochac Hernández, age 5; Santos Ernesto Salinas, age 8; Emelinda Lorena Hernández, age 9 months; Manuel Antonio Bonilla, age 10; and Ricardo Abarca Ayala, age 13, were forcibly disappeared. To this date, their fates or whereabouts are unknown. Id. at paras. 52-87.
During a public hearing of the case before the Inter-American Commission of Human Rights on November 6, 2009, El Salvador recognized its international responsibility and issued a formal apology to the children’s families for the State’s earlier denial of the pattern of violence and forced disappearance of children during the armed conflict. Id. at paras. 18-22.
The petitioners submitted their complaint to the Inter-American Commission on Human Rights on September 11, 2003, and it was admitted on October 21, 2006. See IACHR, Report No. 90/06, Petition 731-03, Jose Adrian Rochac Hernandez (El Salvador), 21 October 2006. During a public hearing of the case before the Inter-American Commission of Human Rights on November 6, 2009, El Salvador recognized its international responsibility and issued a formal apology to the children’s families for the State’s earlier denial of the pattern of violence and forced disappearance of children during the armed conflict. I/A Court H.R., Rochac Hernández and Others v. El Salvador. Judgment of 14 October 2014, paras. 18-22. The Commission referred the case to the Inter-American Court on March 21, 2013.
The Court’s Judgment on the Merits
The Court unanimously found that El Salvador was responsible for violating articles 11(2) (right to privacy) and 17 (rights of the family) of the American Convention, to the detriment of the children and their families, by interfering with the family life of the children, illegally detaining them, and preventing them from remaining and establishing relationships with their nuclear families. Id. at paras. 104-17. The Court also found that the State had violated Article 5(1)-(2) (right to humane treatment), to the detriment of the children’s families, by allowing impunity for the perpetrators of the disappearances to persist and thereby causing physical and psychological suffering to the families. Id. at paras. 119-25.
The Court further found that the failure of the State to carry out, without delay, serious, diligent, and exhaustive investigations of the disappearances and to prosecute and punish those responsible constituted a violation of articles 8(1) (right to fair trial) and 25 (right to judicial protection) of the American Convention, to the detriment of the five children. The State also violated Article 7(6) (right to personal liberty) to the detriment of the children and their families by failing to provide effective habeas corpus proceedings to determine the children’s whereabouts. Id. at paras. 141-69.
The Court concluded that the judgment itself constituted a form of reparation and ordered the El Salvador to:
- effectively and diligently continue the open investigations and open any other investigations necessary, with the goal of identifying, prosecuting, and, if appropriate, punishing those responsible for the forced disappearances and any related crimes;
- as soon as possible, carry out a serious search for the whereabouts of the children and, to this end, adopt all adequate measures necessary for the restoration of their identities if they are found alive;
- adopt any relevant and adequate measures to guarantee the operation of justice, provide the Salvadoran society with public, technical, and systematized access to the archives containing useful and relevant information to facilitate research into the causes of human rights violations during the armed conflict;
- provide immediate medical, psychological, and psychiatric care to the victims who want it, or pay for such care;
- publish summaries of the judgment in the State’s official gazette and a newspaper of wide national circulation and publish the whole judgment on the State’s official website;
- implement permanent training programs on human rights for police, prosecutors, judges, and military officials;
- pay compensation for pecuniary and non-pecuniary damages and costs and expenses;
- reimburse the Victims’ Legal Assistance Fund;
- carry out a public act of recognition of responsibility for the facts in this case; and,
- construct a memorial to commemorate the child victims of forced disappearances during the armed conflict.
Id. at “Declares,” paras. 7-17.