Report No. 238 (2020) IACHR. Petition No. 1437-09 (Perú)

• Year: 2020
• Petition Number: 1437-09
• Report Number: 238
• Respondent State: Perú
• Case Type: Admissibility
• Court: Inter-American Comission of Human Rights
• Alleged Victim: Wilbert Elki Meza Majino

REPORT No. 238/20

PETITION 1437-09

REPORT ON ADMISSIBILITY

WILBERT ELKI MEZA MAJINO

PERU

OEA/Ser.L/V/II.

D.. 253

4 September 2020

Original: Spanish

Approved electronically by the Commission on September 4, 2020.

Cite as: IACHR, R. No. 238/20. Petition 1437-09. A.. Wilbert Elki Meza Majino. P.. September 4, 2020.

www.iachr.org

I. INFORMATION ABOUT THE PETITION

Petitioner:	Anibal Florentino Arias and W.E.M.M.
:	Wilbert Elki Meza Majino
Respondent State:	P.1
Rights invoked:	Articles 5 (humane treatment), 7 (personal liberty), 8 (fair trial), 9 (freedom from ex post facto laws), 25 (judicial protection) of the American Convention on Human Rights2 and other international instruments3.

II. PROCEEDINGS BEFORE THE IACHR⁴

Filing of the petition:	November 12, 2009
Additional information received at the stage of initial review	December 11, 2012 and J. 19, 2015
N. of the petition to the State:	September 30, 2016
State's first response:	January 3, 2017
Additional observations from the petitioner:	M. 16, 2017
Additional observations from the State:	December 18, 2019 and J.7., 2020

III. COMPETENCE

Competence Ratione personae:	Y.
Competence Ratione loci:	Y.
Competence Ratione temporis:	Y.
Competence Ratione materiae:	Y., American Convention (instrument deposited on J. 28, 1978) and Inter-American Convention to Prevent and Punish Torture (instrument deposited on M. 28, 1991)

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 5 (humane treatment), 7 (personal liberty), 8 (fair trial), 9 (freedom from ex post facto laws) and 25 (judicial protection) of the American Convention, in relation to its Articles 1.1 (obligation to respect rights) and 2 (domestic legal effects); and Articles 1, 6, and 8 of the Inter-American Convention to Prevent and Punish Torture
Exhaustion of domestic remedies or applicability of an exception to the rule:	Y., in the terms of Section VI
Timeliness of the petition:	Y., in the terms of Section VI

V. FACTS ALLEGED

1. Anibal Florentio Arias and W.E.M.M. (hereinafter “the petitioners”) report alleged violations to the human rights of W.E.M.M. (hereinafter “the alleged victim”). T. allege that he was wrongfully deprived of his liberty, subjected to torture, subjected to criminal proceedings before an authority that did not constitute a lawful judge and deprived of presumption of innocence and the right to counsel. T. also claim that he was sentenced on the grounds of a vague and abstract type of criminal offense that did not meet the criteria of the principle of legality, and that he received a harsher sentence than the one that was applicable to such type of criminal offense at the time when the offense was allegedly committed.

2. The petitioners explain that on August 22, 2002 the alleged victim was at an internet kiosk performing his labor duties as a trader when he was arrested by State agents without a warrant. T. allege that after the arrest, the agents tied the alleged victim’s hands and feet and blindfolded him in order to take him to Ventanilla Beach (Playas de Ventanilla) where he was subjected to physical abuse and physical and psychological torture. The petitioners state that, in order to justify the arbitrary arrest and obtain a million dollars’ reward offered by the State to those who captured terrorist leaders, the alleged victim was accused of being responsible for the logistics and financial matters of the terrorist organization “Shining Path” (Sendero Luminoso). T. explain that the a quo Court of the National Criminal Court passed sentence on the alleged victim convicting him for acts of terrorism against the State and was he sentenced to 20 years of prison.

3. The petitioners claim that the investigation and criminal proceedings that resulted in the alleged victim’s sentence were full of irregularities that represented human rights’ violations, including: that even though the city of Lima was not in state of emergency, the alleged victim was isolated in the jail of P.’s National Counterterrorism Directorate (hereinafter, “DIRCOTE”) where he was tortured and, under these circumstances, evidence was gathered and the victim’s statements were obtained and were not withdrawn later in spite of the objections filed; that he was convicted for a type of criminal offense established by a decree that was not valid for having been issued by a de facto government; that the type of criminal offense for which he was convicted (terrorism by affiliation) did not meet the minimum requirements of the principle of legality for being abstract, vague, open and imprecise; that a decree issued subsequent to the events for which he was charged was retroactively applied and increased the sentence for the offense for which he was convicted from 15 to 20 years of prison; that the right to be tried by a lawful judge was violated given that the proceedings were heard by special terrorism courts different to the ones established in the P.vian system of justice prior to the events that resulted in the sentence; that the sentence was based on a “verification report of communication through the internet” without its authenticity, falseness or falsification of its content having been proven by means of a expert’s report.

4. The petitioners claim that the alleged victim has exhausted all the remedies available in the domestic jurisdiction. T. indicate that a nullity suit was filed against the condemnatory sentence. C., on May 24, 2006 the Second Provisional Criminal Court of the Supreme Court of Justice upheld the sentence. In addition, they indicate that he filed an habeas corpus action against first and second instance authorities claiming that he had been deprived of his liberty based on irregular proceedings, which was deemed groundless by the Second Criminal Court. S., he appealed this decision before the Fifth Court of Free Defendants of the Superior Court of Justice, which upheld the negative decision. F., he filed a constitutional appeal for the Constitutional Court to reconsider his habeas corpus action, which on May 16, 2009 ruled this action to be groundless. He highlights that his complaints with regard to the malignant violation to the principle of ex post facto nature of the criminal law were outlined in the habeas corpus action. He also states that the tortures inflicted upon the alleged victim during his arrest were reported while the criminal proceedings against him were ongoing, first before the Public Ministry’s representative and subsequently before the judicial authorities, which rejected the objections filed and did not apply the principle of audi alteram partem with regard to the evidence. T. also claim that during the proceedings, a recording made when the alleged victim was arrested by the police was submitted, but that it omitted the video of the abuses and assaults committed against him.

5. On the other hand, the State highlights that the petitioners invoke instruments that do not belong to the Inter-American system and that cannot be evaluated and ruled upon by the Commission. It states that the petition should be declared inadmissible on the grounds of Article 46 of the American Convention since the alleged victim failed to exhaust the domestic remedies. It affirms that the alleged victim did not include in the nullity and habeas corpus actions his claims with regard to the alleged specific violation of the principle of legality, actus reus or ex post facto nature in criminal matters and indicates that it is demonstrated in the sentences that resolved these remedies. It highlights that the constitutional process represented an appropriate and effective remedy to resolve these claims and that the domestic courts were deprived from issuing a judgment on the matter. In addition, it claims that the State cannot be held accountable for the inappropriate exercise of the alleged victim’s legal defense during the constitutional process. M., it notes that the proceedings against the alleged victim were brought forward in the context of the State’s fight against the terrorist group Shining Path, which promoted an anti-human rights ideology and was responsible for multiple acts of violence against the civil society. T., the State had the duty and right to defend itself as long as it respected the fundamental rights of its citizens.

6. It also states that the petition should be declared inadmissible on the grounds of Article 47 of the American Convention since the facts alleged do not represent violations of the petitioner’s human rights. It States that the...