Report No. 27 (2016) IACHR. Petition No. 30-04 (Perú)

• Year: 2016
• Petition Number: 30-04
• Report Number: 27
• Respondent State: Perú
• Case Type: Inadmissibility
• Court: Inter-American Comission of Human Rights
• Alleged Victim: Luis Alexsander Santillán Hermoza

REPORT No. 27/16

PETITION 30-04

REPORT ON INADMISSIBILITY

LUIS ALEXSANDER SANTILLÁN HERMOZA

PERU

OEA/Ser.L/V/II.157

Doc. 31

15 A. 2016

Original: Spanish

Approved by the Commission at its session No. 2065 held on A. 15, 2014
157th Regular Period of Sessions

Cite as: IACHR, Report No. 27/16, Petition 30-04. I.. Luis Alexsander Santillán Hermoza. Perú. A. 15, 2016.

www.cidh.org

REPORT No. 27/16¹

PETITION 30-04

INADMISSIBILITY

LUIS ALEXSANDER SANTILLÁN HERMOZA

PERU

APRIL 15, 2016

I. SUMMARY

1. On January 14, 2004, the Inter-American Commission on Human Rights (hereinafter, the “Inter-American Commission,” the “Commission,” or “the IACHR”) received a petition initially lodged by Luis Alexsander Santillán Hermoza (hereinafter “the petitioner”) against Peru (hereinafter, "Peru" or “the S.”). In lodging the petition, the petitioner represented himself,² and mainly alleged violations of due process and lack of judicial protection, claiming that he had been arbitrarily convicted of raping his underage daughter.

2. The petitioner maintains that in 1997 he was sentenced to four years' conditional imprisonment for the crime of raping his daughter, who, at the time the offense was committed, was 16 years old. He alleges that, following an appeal against the judgment, the court had handed down a final judgment of four years' imprisonment, without evidence being produced in the proceedings to show that he was guilty beyond any doubt. He alleges that, despite his having produced new evidence in the course of an appeal for a review of the judgment, that appeal had been rejected without substantiation of the reasons for rejection and an appeal for annulment of that resolution had been denied. The petitioner mentions that he had been forced to go into hiding to avoid incarceration, give up his job, and loses access to his home since his daughter had moved into the home he owned, which, prior to the warrant for his arrest, he alone had occupied. B. on the above, he alleges violations of his rights to personal liberty, a fair trial (due guarantees), honor, dignity, work, property, freedom of movement and residence, and equality before the law.

3. The S., for its part, points out that the petition is inadmissible because it does not allege facts that constitute violations of rights recognized in the American Convention on Human Rights (hereinafter "American Convention" or "Convention"), but rather seeks to have the IACHR acts as a "fourth instance." It also argues that the exception that the petition was filed extemporaneously applies to this case. As regards the alleged violation of the right to work, the S. argues that this is not a matter over which the IACHR has competence.

4. Without prejudging the merits of the complaint, after analyzing the positions of the parties and pursuant to the requirements set forth in Articles 46 and 47 of the American Convention, the Commission has decided to declare the petition inadmissible. The Commission has further decided to notify the parties of this decision, and to publish it and include it in its Annual Report to the OAS General Assembly.

II. PROCESSING BY THE IACHR

5. The IACHR received the petition on January 14, 2004. W. processing this petition, and pursuant to Article 26 of its Rules of Procedure in force at the time, the IACHR requested the petitioning party to provide information in a note dated J. 12, 2006 and received a reply dated August 18, 2006. Information was again requested on December 4, 2006. Additional information was sought from the petitioner on May 16, 2008. The petitioner answered the request for information on J. 14, 2008. On J. 15, 2011, the IACHR transmitted a copy of pertinent parts to the S., granting it two months to submit its observations, in accordance with Article 30.3 of its Rules of Procedure in force at that time. The IACHR received the response of the S. on August 16, 2011, and forwarded it to the petitioner.

6. The petitioner presented additional comments on J. 20, 2012. For its part, the S. presented its additional observations on September 26, 2012. These communications were duly shared with the other party.

III. POSITIONS OF THE PARTIES

1. Position of the Petitioner

7. A written complaint filed on January 14, 2004 alleges that on October 30, 1997, the alleged victim was sentenced by the Criminal Court for Lima's "Northern Cone" to four years' conditional imprisonment for raping his daughter, who at the time of the offense was 16 years old. After hearing an appeal against the judgment, on A. 13, 1998, the Northern Cone Criminal Division had confirmed it and established that the petitioner had to serve an actual four-year prison term (prisión efectiva). The petitioner alleges that during the proceedings no proof beyond a doubt of his criminal liability had been shown no evidence that the crime had actually taken place because the victim had told the police that she had first been raped by Juan La Torre, the brother of his partner, and later on, before the judge, she had said she had had consensual sexual relations with that persons. The petitioner added that there were contradictions in the versions given by the alleged victim, which indicated the false nature of the facts of which he stood accused.

8. From the documentation submitted and the account of the facts, it transpires that the petitioner filed an appeal for annulment, which was dismissed by the Superior Court of Justice of Lima on J. 19, 1998. S., he filed another appeal against the denial of his appeal for annulment before the Supreme Court. He alleges that in those proceedings the Chief Prosecutor for Criminal Cases had issued a legal opinion on December 16, 1998 in which he stated that in the decision challenged by the appellant the evidence had not been properly examined nor had due importance been attached to the contradictions in the victim's statements to the police and in her testimony, so that he considered the complaint well founded. The petitioner alleges that, on May 18, 1999, the former First Criminal Division of the Supreme Court handed down a judgment in which, without substantiation and ignoring the contradictions pointed out by the Chief Prosecutor, he declared the complaint baseless.

9. He says that he filed an extraordinary appeal for a review of the criminal proceedings with the Supreme Court based on five "new facts or evidence" that had not been considered in the two convictions.³. On October 3, 2002, the Supreme Court declared the appeal inadmissible. The petitioner argues that that resolution contained no express arguments of fact or law and therefore failed to comply with the duty to provide substantiation. He cites a report in which the judgment does not mention the considerations therein and states that that report is not attached to the judgment. The petitioner filed an appeal for annulment of this resolution in writs filed on November 28, 2002 and September 29, 2003. The petitioner mentioned that by the time his complaint was submitted, more than 14 months had elapsed without the matter being resolved, so that on January 7, 2004 he had filed a request for reiteration of the appeal for annulment.

10. In addition, in his complaint, the petitioner indicates that he has been living in hiding for more than four years and had to give being on active service in the P. navy, which for him constituted serious economic and moral damage. For all of the above, he alleges violation of the rights to personal liberty, judicial guarantees, presumption of innocence, and judicial protection.

11. Written documents submitted later on indicate that on M. 11, 2008, the Criminal Division of the Supreme Court declared the request for annulment inadmissible, on the grounds that there is a report sustaining and materially substantiating the resolution that rejected the extraordinary appeal for review, so that there were no defects or irregularities that might affect the validity or effectiveness of said resolution. Regarding this decision, the petitioner again alleges that the arguments of fact and law that that report should contain are not transcribed, nor the date thereof, nor the name of the Chief Prosecutor who issued it.

12. In light of the above, it is argued that the alleged victim was condemned in a final judgment to four years in prison without valid proof, without the evidence presented in the proceedings being properly examined and compared, and without an examination of the contradictions in which the alleged rape victim incurred in her statements. On the assumption that he would suffer emotional and psychological harm the petitioner had had to flee arrest. For all the above reasons, the petitioner alleges violation of his rights to personal liberty, judicial guarantees, honor and dignity, and the right to work because, in order to avoid being arrested because of an arbitrary conviction, he had had to renounce being a member of the P. Navy on active duty, give up his right to property since had had to leave his home (which to this day is still occupied by the alleged rape victim). He also alleges violation of his right to freedom of movement and residence and to equality before the law, since, in other proceedings, the Criminal Division had followed the principle that one is innocent unless proven guilty (presumption of innocence) by acquitting the accused in similar...