Report No. 207 (2019) IACHR. Petition No. 1377-08 (Perú)

• Petition Number: 1377-08
• Report Number: 207
• Respondent State: Perú
• Case Type: Admissibility
• Court: Inter-American Comission of Human Rights
• Alleged Victim: Eleazar Sinclair Soldevilla Magallanes

REPORT No. 207/19

PETITION 1377-08

REPORT ON ADMISSIBILITY

ELEAZAR SINCLAIR SOLDEVILLA MAGALLANES

PERU

OEA/Ser.L/V/II.

D.. 229

6 December 2019

Original: Spanish

Approved by the Commission on December 6, 2019.

Cite as: IACHR, Report No. 207/19, Petition 1377-08. In/Admissibility. Eleazar Sinclair Soldevilla Magallanes. December 6, 2019.

www.cidh.org

I. INFORMATION ABOUT THE PETITION

Petitioner:	Eleazar Sinclair Soldevilla Magallanes
:	Eleazar Sinclair Soldevilla Magallanes
Respondent S.:	Peru1
Rights invoked:	Articles 7 (personal liberty), 8 (fair trial), 11 (privacy), 24 (equal protection) and 25 (judicial protection) of the American Convention on Human Rights2 in conjunction with Article 1.1 (obligation to respect rights) of the same instrument

II. PROCEEDINGS BEFORE THE IACHR³

Filing of the petition:	December 1, 2008
N. of the petition to the S.:	October 27, 2014
S.’s first response:	J. 26, 2015
Additional observations from the petitioner:	December 19, 20154
Additional observations from the S.:	J. 16, 2016

III. COMPETENCE

Competence Ratione personae:	Yes
Competence Ratione loci:	Yes
Competence Ratione temporis:	Yes
Competence Ratione materiae:	Yes, American Convention (deposit of instrument of ratification on July 28, 1978)

IV. DUPLICATION OF PROCEDURES AND INTERNATIONAL RES JUDICATA, COLORABLE CLAIM, EXHAUSTION OF DOMESTIC REMEDIES AND TIMELINESS OF THE PETITION

Duplication of procedures and International res judicata:	No
Rights declared admissible	Articles 8 (fair trial), 9 (freedom from Ex Post Facto laws), 25 (judicial protection) and 26 (progressive development) of the American Convention
Exhaustion of domestic remedies or applicability of an exception to the rule:	Yes, in the terms of Section VI
Timeliness of the petition:	Yes, on December 1, 2008

V. FACTS ALLEGED

1. The petitioner, a policeman, alleges that he was arrested and tried for the offense of illegal drug trafficking on the basis of false evidence fabricated by the police, and that this accusation also served as a basis for dismissing him from his position for the alleged commission of gross misconduct. He indicates that he was acquitted in the criminal proceedings, and that he filed an amparo to reverse his dismissal. H., he points out that the Peruvian S. has violated his human rights because – in addition to his illegal detention and dismissal – it delayed the resolution of his amparo claim and denied payment of compensation despite having twice acknowledged that the administrative disciplinary proceedings had failed to satisfy due process.

2. With respect to his detention and criminal proceedings, he indicates that he was arrested on J. 10, 1998, without an arrest warrant and without being caught in flagrante and that he was detained and held incommunicado. He asserts that the arresting police officers falsified a document alleging that the petitioner had been armed when arrested at the scene of the alleged events, and in the presence of a prosecutor. He claims that they also falsified the signature of the prosecutor allegedly present at his detention. He indicates that due to the forged document and another report -prepared on J. 21, 1998, by one of the police officers who detained him- the prosecution mistakenly filed charges against the petitioner for the offense of illegal drug trafficking. The Specialized Court on Illegal Drug Trafficking of Maynas (hereinafter "the TID Court"), ordered an investigation be opened against him coupled with a detention order. The petitioner was taken to the Iquitos Prison on J. 22, 1998. He argues that subsequently, the TID Court found irregularities in the decisions initiating the proceedings, and, on March 27, 1998, sent a copy of them to the prosecutor's office for an investigation into the forgery of signatures. On April 3, 1998, the petitioner was released unconditionally. On March 27, 2000, the Maynas Superior Criminal Drug Court acquitted the petitioner of the crime of illegal drug trafficking.

3. On the other hand, on J. 9, 1999, the prosecution filed a complaint against the police officers who allegedly fabricated evidence for the offenses of falsifying public documents to the detriment of the S. and the petitioner. On February 22, 1999, the Special Court for Tax and Customs Crimes of Maynas (hereinafter, "TA Court") opened an investigation against the accused. On August 26, 1999, the prosecution submitted indictments charging them with falsifying the signature of a prosecutor to the detriment of the petitioner and formally acknowledging that the prosecutor who had allegedly signed the falsified document confirmed that the signature on the document was not his. On November 30, 1999, the TA Court acquitted the accused on the grounds that there had been no malicious intent or injury caused.

4. With respect to the administrative procedure, the petitioner argues that on J. 30, 1998, the Directorate of Investigations prepared a report, based on the false police documents, accusing him of committing gross misconduct. This report was submitted to the Permanent Investigation Council (hereinafter, "CPI"), which, according to its rules, should have collected his statement at the detention center where he was being held. H., he confirms that the CPI did not visit the jail and did not notify him to attend the hearing of the full session of the CPI. On February 2, 1998, the CPI decided that the petitioner had committed serious misconduct and recommended his compulsory retirement as a disciplinary measure. He reports that prior to this recommendation, the statute of limitations on his compulsory retirement expired due to the inaction of the Ministry of the Interior.

5. He argues that after obtaining his release in April 1998, he appeared before the National Intelligence Service in Lima, and that he placed himself at the disposal of the human resources department, where he returned to work. He states that he became aware of the existence of a draft resolution for his compulsory retirement as disciplinary measure and, on April 21, 1998, filed a motion with the Ministry of the Interior pointing out the existence of unverified evidence demonstrating the illegality of his detention; that police actions were doubtful; and that members of the police had been investigated for offenses of falsifying public documents by forging signatures and statements. He also noted that the legal time limit for the Ministry of the Interior to issue a resolution for his compulsory retirement had already expired. H., he indicates that on J. 5, 1998, the Ministry of the Interior issued a resolution ordering the petitioner’s retirement, a sanction coming into effect on J. 23, 1998. On July 8, 1998, the petitioner filed a motion for reconsideration, subject to resolution by the Ministry of the Interior within a maximum period of 30 days. H. the motion was only rejected on J. 18, 2001.

6. On August 1, 2001, the petitioner filed an amparo claim, on his illegal detention and alleged that: i) during the administrative proceedings, his right to a defense had been violated; ii) a sanction was imposed upon him in violation of the principle of legality and the presumption of innocence; iii) his right to work had been violated; and iv) his right to the protection of honor and dignity had been violated. In his claim, he requested that the Ministry of the Interior’s decisions ordering his retirement be declared inapplicable and that he be reinstated to the active service of the National Police of Peru at his rank of lieutenant. On J. 25, 2004, the 64th Specialized Civil Court of Lima (hereinafter, "64th Civil Court") issued a judgment upholding his claim on the ground that his right of defense and the presumption of innocence had been violated and ordering the petitioner’s reinstatement to his former position. After the P. had filed an appeal, on October 17, 2005, the First Superior Civil Chamber of Lima annulled this decision and remitted the proceedings to the 64th Civil Court.

7. On March 16, 2006, the 64th Civil Court again upheld his claim on the basis that the petitioner's right of defense and presumption of innocence had been violated. In view of the foregoing, it overturned the Ministry of the Interior’s decisions and ordered the reinstatement of the petitioner to his former post. The P.’s Office appealed this decision again, arguing that, in light of legislative changes and a Constitutional Court ruling in November 2005, the amparo motion could no longer be considered as an alternative remedy and, henceforth, it was not an adequate remedy when specific and equally satisfactory remedies for the protection of constitutional rights were available. On July 3, 2006, the First Superior Civil Chamber, taking into account the legislative changes,...