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Ivcher Bronstein & Constitutional Tribunal

Published online by Cambridge University Press:  30 March 2017

Karen C. Sokol
Karen C. Sokol*
Affiliation:
Vinson & Elkins LLP
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Type
International Decisions
Information
American Journal of International Law , Volume 95 , Issue 1 , January 2001 , pp. 178 - 185
Copyright
Copyright © American Society of International Law 2001

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References

1 American Convention on Human Rights, opened for signature Nov. 22, 1969, 1144 UNTS 123 [hereinafter American Convention]. The Convention and all of the Inter-American Commission on Human Rights (Commission) materials cited in this case report are obtainable at the Commission’s Web site, <http://www.cidh.oas.org>.

2 Among other things, the jueces sin rostro are concealed by screens. See Jeanine Bucherer, Case Report: Castillo Petruzzi, 95 AJIL 171, 173 n.13 (2001) for a UN special rapporteur’s description of trials before such judges.

3 See Castillo Petruzzi, Merits, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 52, para. 1 (1999) <http://corteidhoea.nu.or.cr/ci/PUBLICAC/SERIE_C/C_52_ESP.HTM> (a military court tried and convicted four Chilean citizens of treason and sentenced them to life imprisonment); Cesti Hurtado, Merits, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 56, paras. 65, 77-80 (1999) <http://corteidh-oea.nu.or.cr/ci/PUBLICAC/SERIE_C/C_56_ESP.HTM> (in defiance of a civil court’s order to release a retired military officer, a military court tried and convicted him of “crimes of disobedience against the duty and dignity of the service, negligence and fraud” and sentenced him to seven years’ imprisonment); Loayza Tamayo, Merits, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 33, para. 3(f)-(g) (1997) <http://corteidh-oea.nu.or.cr/ci/PUBLICAC/SERIE_C/C_33_ESP.HTM(inSpanish)or<http://corteidhoea.nu.or.cr/ci/PUBUCAT/SERffiS_C/C_33_ENG.HTM> (in English) (a university professor was prosecuted for, and acquitted of, treason in a military court, and then convicted and sentenced to 20 years in prison by the “faceless special tribunal of the civil courts” (emphasis omitted)). The decisions (series C) of the Inter-American Court of Human Rights (Court) are available online (in Spanish) at <http://corteidh-oea.nu.or.cr/ci/PUBLICAC/]NDICES/SERIE_C.HTM>. Loayza Tamayo (Merits) is die only Court decision discussed or cited in this case report that is at present generally available in English. The translations of the other decisions were obtained directly from the secretary of the Court and are on file with the author.

4 Loayza Tamayo, para. 19 (ordering Peru to release a university professor who had been sentenced by a civilian court, but only after extensive proceedings before military courts).

5 Castillo Petruzzi, paras. 221-22, 226.13-.14 (finding that the military trials of four Chilean civilians violated several rights guaranteed under the American Convention, and ordering Peru to nullify the military courts’ judgments, retry the Chileans in civilian courts in compliance with the rights guaranteed by die Convention, and “adopt appropriate measures to amend the domestic laws that place civilians under the jurisdiction of the military courts”); Loayza Tamayo, Reparations, Judgment, Inter.-Am. Ct. H.R. (ser. C) No. 42, para. 192.3, 192.5 (1998) <http://corteidh-oea.nu.or.cr/ci/PUBLICAC/SERIE_C/C_42_ESP.HTM> (ordering Peru to nullify the judgment and to “adopt the internal legal measures necessary to adapt [the emergency decrees] to the [American Convention] “). In Cesti Hurtado, paras. 151,199.1-.8, although the Court did not order reform of domestic legislation, it held that a retired military officer “could not be judged by military courts,” and ordered Peru to “annul” the military trial and “any effects that may derive from it.” For a more detailed discussion of Castillo Petruzzi, see Bucherer, supra note 2. In discussing these three cases, one commentator notes that “ [no] other international human rights court has ever before undertaken, on its own, to mandate such potentially provocative relief, let alone in so politically sensitive a context, and against so hard-line a regime as that of Peruvian President Alberto Fujimori.” Douglass Cassel, Peru Withdraws from the Court: Will the Inter-American Human Rights System Meet the Challenge? 20 Hum. Rts. L.J. 167 (1999).

6 See Ivcher Bronstein, Jurisdiction, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 54, para. 28 (1999) <http://corteidh-oea.nu.or.cr/ci/PUBLICAC/SERIE_C/C_54_ESP.HTM> (referring to OAS Secretary General Usar Gaviria’s report that Peru deposited its instrument of withdrawal with him on July 9, 1999); Constitutional Tribunal, Jurisdiction Judgment, Inter-Am. Ct. H.R. (ser. C) No. 55, para. 27 (1999) <http://corteidh-oea.nu.or.cr/ci/PUBLICAC/SERIE_C/C_55_ESP.HTM> (same).

7 On May 26, 1998, Trinidad and Tobago withdrew from the Court’s jurisdiction by denouncing the American Convention. See American Convention on Human Rights, Pact of San Jose, Costa Rica: Signatures and Current Status of Ratifications, sec. s <http://www.cidh.oas.Org/Básicos/Basic%20Documents/enbas4.htm#a> (lastvisited Dec. 15, 2000) [hereinafter Signatures and Current Status of Ratifications].

8 Ivcher Bronstein, para. 23; Constitutional Tribunal, para. 23.

9 See supra note 6 for full citations.

10 See American Convention, supra note 1, Art. 62(1) (emphasis added):

A State Party may, upon depositing its instrument of ratification or adherence to this Convention, or at any subsequent time, declare that it recognizes as binding, ipso facto, and not requiring special agreement, the jurisdiction of the Court on all matters relating to the interpretation or application of this Convention.

11 Peru ratified the American Convention on July 28, 1978, and accepted the Court’s compulsory jurisdiction on January 21, 1981. See Ivcher Bronstein, para. 30; Constitutional Tribunal, para. 29.

12 See Inter-Am. C.H.R., Admissibility Report No. 20/98, Case 11.762, Baruch Ivcher Bronstein, paras. 1, 10 (March 3, 1998) [hereinafter Ivcher Bronstein Commission Admissibility Report].

13 See Ivcher Bronstein, para. 2(d).

14 See id., para. 2(g); Ivcher Bronstein Commission Admissibility Report, supra note 12, para. 2.

15 See Ivcher Bronstein Commission Admissibility Report, supra note 12, para. 3.

16 See id., para. 12.

17 See Ivcher Bronstein, para. (2) (i). Peruvian law prohibits noncitizens from owning a television or radio station in Peru. See Ivcher Bronstein Commission Admissibility Report, supra note 12, para. 1.

18 See Ivcher Bronstein Commission Admissibility Report, supra note 12, paras. 14-15, 18.

19 Individuals submit to the Commission their petitions alleging violations of the American Convention. After reviewing the case, the Commission may make recommendations to the state. See American Convention, supra note 1, Arts. 44—51. If the state fails to follow the recommendations and has previously made a declaration under Article 62(1) of the Convention, the Commission may submit the case to the Court. See id., Art. 61.

20 See Ivcher Bronstein Commission Admissibility Report, supra note 12, para. 40. A Peruvian legislator and the dean of the Lima Bar Association also filed petitions with the Commission on Ivcher’s behalf. See id., paras. 22-23.

21 See Ivcher Bronstein, paras. 12(A), (C).

22 See id., para. 14. Fujimori’s persecution of Ivcher ultimately drove him and his family into exile in May of 1997. See Chauvin, Lucien, Peruvian Exile Reclaims TV Station, Eager to Restore Press Freedom After 3 Years of Refuge in Miami, Miami Herald, Dec. 6, 2000, at A10.Google Scholar It was not until recently—on December 4,2000—that, as a result of Fujimori’s resignation on November 19 and the caretaker government’s dissolution of the legal proceedings against Ivcher on December 2, Ivcher and his family were able to return to Peru, and Ivcher was able to reclaim ownership of his television station. See id.

23 See Constitución de la República del Perú.Art. 112, obtainable from <http://www.cajpe.org.pe/rij/>.

24 See Ley 26,657 (Aug. 23, 1996) <http://www.cajpe.org.pe/rij/bases/legisla/peru/lh-rijl4.html>.

25 Constitutional Tribunal, para. 2(l). Because two justices abstained, the three constituted a majority. See id.

26 See id., paras. 2(o)-(s).

27 See id., para. 2(u).

28 See id., para. 13.

29 See id., paras. 13,16-17.

30 See id., para. 18.

31 Ivcher Bronstein, para. 23; Constitutional Tribunal, para. 23. Peru used the same language for both briefs.

32 For text of Article 62(1), see supra note 10.

33 See Ivcher Bronstein, para. 30; Constitutional Tribunal, para. 29.

34 See Ivcher Bronstein, para. 32 (“The Inter-American Court, as with any court or tribunal, has the inherent authority to determine the scope of its own competence (compétence de la compétence/Kompetenz-Kompetenz).”); Constitutional Tribunal, para. 31 (same language).

35 See Ivcher Bronstein, para. 35; Constitutional Tribunal, para. 34.

36 See Michael Reisman, W., Has the International Court Exceeded Its Jurisdiction? 80 AJIL 128, 129 (1986)Google Scholar (“[I]t would be absurd to contend that [the International Court of Justice’s competence to determine its jurisdiction] empowers the Court to decide without regard to the law in question.”).

37 See Ivcher Bronstein, para. 40; Constitutional Tribunal, para. 39.

38 See Ivcher Bronstein, paras. 52-53; Constitutional Tribunal, paras. 51-52

39 See Statute of the International Court of Justice, Art. 36(2); Ivcher Bronstein, paras. 52 & n.7,53 & n.8 (citing Nuclear Tests (Austl. v. Fr.), Judgment, 1974 ICJ Rep. 253, 268, para. 46 (Dec. 20), and Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility, Judgment, 1984 ICJ Rep. 392, 418, 420, paras. 59-60, 63 (Nov. 26)); Constitutional Tribunal, paras. 51 & n.7, 52 & n.8 (same).

40 Ivcher Bronstein, para. 53 (quoting Military and Paramilitary Activities in and Against Nicaragua, supra note 39, at 420, para. 63); Constitutional Tribunal, para. 52 (same).

41 Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 1155 UNTS 331 [hereinafter Vienna Convention].

42 Ivcher Bronstein, para. 52; Constitutional Tribunal, para. 51.

43 Ivcher Bronstein, para. 52 (quoting Vienna Convention, supra note 41, Art. 56(2)); Constitutional Tribunal, para. 51 (same).

44 Ivcher Bronstein, para. 43 (quoting Effect of Reservations on the Entry into Force of the American Convention (Arts. 74 and 75), Advisory Opinion OC-2/82, Inter-Am. Ct H.R., para. 29 (1982), reprinted in 22ILM 37 (1983)); Constitutional Tribunal, para. 42 (same). The advisory opinions of the Court are available online at <http://corteidh-oea.nu.or.cr/PUBLICAT/INDICES/SERIES_A.HTM>.

45 Ivcher Bronstein, para. 47; Constitutional Tribunal, para. 46.

46 Ivcher Bronstein, para. 37; Constitutional Tribunal, para. 36; see also Ivcher Bronstein, para. 46 (asserting that the optional clause is “of particular importance to the operation of the system of protection embodied in the American Convention” (emphasis added)); Constitutional Tribunal, para. 45 (same).

47 Three out of 24 states that are parties to the American Convention have not accepted the Court’s compulsory jurisdiction: Dominica, Grenada, and Jamaica. See Signatures and Current Status of Ratifications, supra note 7.

48 Ivcher Bronstein, para. 46 (emphasis added); Constitutional Tribunal, para. 45 (same).

49 See Ivcher Bronstein, para. 46; Constitutional Tribunal, para. 45.

50 Article 78 of the American Convention, supra note 1, provides: “The States Parties may denounce this Convention at the expiration of a five-year period from the date of its entry into force and by means of notice given one year in advance.”

51 See Ivcher Bronstein, paras. 40, 51; Constitutional Tribunal, paras. 39, 50.

52 The question under the Optional Clause of the ICJ Statute is the legal effect of a particular purported withdrawal of jurisdiction, not the permissibility of withdrawals in principle. See, e.g., Military and Paramilitary Activities in and Against Nicaragua, supra note 39; Fisheries Jurisdiction (Spain v. Can.), Jurisdiction Judgment, 1998 ICJ Rep. 432 (Dec. 4). All UN members are party to the ICJ Statute. See UN Charter Art. 93, para. 1.

53 Ivcher Bronstein, para. 38 (quoting Vienna Convention, supra note 41, Art. 31(1)); Constitutional Tribunal, para. 37 (same). For the Court’s description of the “object and purpose” of the American Convention, see supra text accompanying note 44.

54 Ivcher Bronstein, para. 40; Constitutional Tribunal, para. 39.

55 Ivcher Bronstein, para. 48 (emphasis added); Constitutional Tribunal, para. 47 (same).

56 See, e.g., Loizidou v. Turkey, Preliminary Objections, Judgment, 310 Eur. Ct H.R. (ser. A) at para. 71 (1995) (noting that the need to interpret the European Convention on Human Rights “in the light of present-day conditions ... is not confined to the substantive provisions of the Convention, but also applies to those provisions, such as Articles 25 and 46, which govern the operation of the Convention’s enforcement machinery” (citation omitted)).

57 See Ivcher Bronstein, para. 37 (“[States parties’ obligation to] guarantee compliance with [the American Convention’s] provisions and its effects within their own domestic laws... applies not only to the substantive provisions of human rights treaties (in other words, the clauses on the protected rights), but also to the procedural provisions, such as the one concerning recognition of the Tribunal’s contentious jurisdiction”); Constitutional Tribunal, para. 36 (same).

58 See American Convention, supra note 1, Art. 1, which provides:

The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.

59 See, e.g., Fisheries Jurisdiction, supra note 52, para. 56 (“Whether or not States accept the jurisdiction of the Court, they remain in all cases responsible for acts attributable to them that violated the rights of other States. Any resultant disputes are required to be resolved by peaceful means, the choice of which . . . is left to the parties.”).

60 Ivcher Bronstein, para. 48; Constitutional Tribunal, para. 47.

61 That assumption led the ICJ to reject the argument that reservations to the Genocide Convention were impermissible. See Reservations to the Convention on Prevention and Punishment of the Crime of Genocide, Advisory Opinion, 1951 ICJ Rep. 15, 21-22 (May 28). Along similar lines, the “right to life” provision of the American Convention does not require abolition of the death penalty, but rather limits its application to “the most serious crimes” and prohibits “extend [ing the penalty] to crimes to which it does not presently apply.” American Convention, supra note 1, Art. 4(2). The provision further mandates that “[t]he death penalty shall not be reestablished in states that have abolished it.” Id., Art. 4(3).

62 Barbados deposited its Article 62 declaration on June 4, 2000. See Signatures and Current Status of Ratifications, supra note 7.