The IACHR found a violation of the requirements of the ACHR in relation to the applicant.

Заголовок: The IACHR found a violation of the requirements of the ACHR in relation to the applicant. Сведения: 2020-06-29 04:43:19

The ruling of the Inter-American Court of Human Rights of November 23, 2015 in the case of Quispialaya Vilcapoma v. Peru (Series C, No. 308).

The applicant was assisted in preparing a complaint to the Inter-American Commission on Human Rights (Washington, USA).

Subsequently, the Inter-American Commission on Human Rights referred the applicant's complaint to the Inter-American Court of Human Rights (San Jose, Costa Rica) for consideration. Then the complaint was communicated to Peru.

The case has successfully examined a complaint of ill-treatment during military service and an ineffective investigation.
Abuse during military service and ineffective investigation.


Circumstances of the case


On January 26, 2001, the commander hit Valdemir Kispialai Vilkapoma in the forehead and right eye with the butt of his rifle during rifle exercises, since he could not shoot correctly. Due to the injury, Kispialaya lost his sight in his right eye and subsequently suffered from depression. The above actions were due to the practice of abuse that existed in Peru, where physical and psychological violence was used to maintain military discipline and authority. The trial of the attack was initiated in the courts of general jurisdiction and the military courts. However, no one was convicted of these actions.


QUESTIONS OF LAW


(a) Preliminary objections. The State has submitted two preliminary objections to the failure to exhaust domestic remedies. The first objection was dismissed on the ground that the remedy relied on by the State in the admissibility proceedings was different from that referred to in the Inter-American Court. The second preliminary objection was that, in the opinion of the Inter-American Court, the issue related to the reparation measure requested by the representatives of the victims and, therefore, could not be analyzed as a preliminary objection. In addition, the statute of limitations has expired with respect to the State's argument.

(b) Articles 5 (1) (right to security of person) and 5 (2) (prohibition of torture and cruel, inhuman or degrading punishment or treatment) of the American Convention on Human Rights (hereinafter ACHR) in conjunction with article 1 (1 ) of the same Convention and article 6 of the Inter-American Convention for the Prevention and Punishment of Torture (hereinafter - IACPPT). On the basis of standards established by the European Court of Justice (see Judgment of the European Court of Justice in the case of Chamber against the Russian Federation (Chember v. Russia) of 3 July 2008, complaint No. 7188/03, § 50, "European Case Law Newsletter" Human Rights Court "N 110, Court of Justice" Placì v. Italy) judgment of 21 January 2014, application no. 48754/11, § 51, "European Court of Human Rights case law newsletter person "N 170, the European Court of Justice in the case" Larissis and Others v. Greece "(Larissis and Others v. Greece) of February 24, 1998, application N 23372/94, §§ 50 - 51, and the European Court of Justice in the case Konstantin Markin v. Russia, dated March 22, 2012, complaint N 30078/06, § 135, Newsletter on the case-law of the European Court of Human Rights N 150) and the UN Committee on Human Rights human (general comment N 35, December 16, 2014, UN Doc. CCPR / C / GC / 35, §§ 5-6), the Inter-American Court has determined that the particular situation in which military service takes place entails restrictions on the rights and freedoms of recruits. However, this is not an example of imprisonment, but a situation in which the state is the guarantor and defender of persons under this regime.

Based on this, the Inter-American Court concluded that the standards set for persons deprived of their liberty are applicable to servicemen who are in active military service in the barracks, since the state has a special guarantor position with respect to persons under its control or under the influence of relations between the boss and subordinates. Thus, in relation to persons subject to such a special relationship, the Inter-American Court has indicated that the state is obliged (i) to ensure the health and well-being of military service members, (ii) to ensure that the method and method of training does not go beyond the inevitable level of suffering inherent military service, and (iii) provide a satisfactory and convincing explanation of the harm done to the health of those in military service. Consequently, there is a presumption that the state is responsible for alleged violations of the personal integrity of persons under the authority and control of state representatives, as in military service. Analyzing the attack on Kispialai, the Inter-American Court examined many factors, such as the abusive behavior of the military authorities, the violence shown by the attacker, the defenselessness of the victim, his legitimate fear, threats made by the attacker to avoid conviction, medical documents, and explanations of a psychologist, available in the present case. For these reasons, the Inter-American Court found that the attack on Kispialai constituted a violation of Articles 5 (1) and 5 (2) of the ACHR and Article 6 of the IACPPT, which prohibit torture and cruel, inhuman or degrading punishment or treatment.


RESOLUTION


The case has violated the requirements of the Convention (adopted unanimously).

(c) Articles 8 (1) (right to a fair trial) and 25 (right to legal defense) in conjunction with Article 1 (1) (obligation to respect rights) of the ACHR and Articles 1, 6 and 8 of the IACPPT. In addition, the Inter-American Court concluded that the above facts should have been investigated and subsequently convicted and punished in criminal proceedings in courts of general jurisdiction. Accordingly, the Inter-American Court found that the decision of the Permanent Court of Criminal Cases of the Supreme Court of Peru violated the principle of a competent court, hindering the investigation and consideration of the case by the courts of general jurisdiction and retaining the military jurisdiction of the case in 2002-2007. The Inter-American Court considered this an unjustified extension of the military justice system, which led to a violation of the requirements of Article 8 (1) of the ACHR.

With regard to the interference of courts of general jurisdiction, the Inter-American Court pointed out a number of shortcomings in their activities. The courts did not examine the facts diligently and effectively, nor did they analyze the evidence transmitted by the military judge. In particular, the investigating authorities also showed negligence in identifying witnesses. In addition, the Inter-American Court decided that the state spent an unreasonable amount of time to conduct an investigation. Subject to the foregoing, the Inter-American Court concluded that the state violated the rights to a fair trial and to the judicial protection provided for in Articles 8 (1) and 25 of the ACHR, as well as the obligations set forth in Articles 1, 6 and 8 of the IACPPT.

As regards intimidation and threats against the applicant, the Inter-American Court concluded that the investigation conducted by the state was ineffective, which amounted to a violation of the right to judicial protection established by Article 25 (1) of the ACHR.


RESOLUTION


The case has violated the requirements of the Convention (adopted unanimously).

(d) Section 5 (right to security of person) in conjunction with section 1 (1) (obligation to respect rights) ACHR. The Inter-American court took into account the close relationship between Victoria Vilcapoma Takia, the applicant’s mother, and her son, the suffering she experienced due to the consequences of the attack, as well as the threats and intimidation. The Inter-American Court concluded that the state was liable for violation of Article 5 (1) of the ACHR for damage caused to Victoria Vilcapome Takia.


RESOLUTION


The case has violated the requirements of the Convention (adopted unanimously).

(e) Article 2 (domestic legal consequences) of the ACHR in conjunction with Article 6 of the IACPPT. With regard to the obligation to take domestic measures, the Inter-American Court ruled that Article 6 of the IACPPT deals with torture and other cruel, inhuman or degrading treatment or punishment in any other way, which confirms the various obligations imposed by the Convention under different circumstances. Article 6, paragraph 2, of the ACHR establishes the obligation to enact national legislation that makes torture a criminal offense in the jurisdiction of the state. With regard to cruel, inhuman or degrading treatment or punishment, it establishes the obligation to take measures to prevent and punish such measures, but does not establish the obligation to adopt appropriate domestic criminal law. In this sense, the Inter-American Court concluded that the prevention and prosecution of cruel, inhuman or degrading treatment or punishment could be achieved in the present case through the use of other appropriate criminal offenses already provided for in the Criminal Code (for example, grievous bodily harm). In addition, the Inter-American Court noted that, although a crime such as torture is provided for cases of special significance, this does not imply that the case of personal injury is less severe in Peru, since the punishment established in domestic law for such a crime is equally severe as established for torture. Based on this, the Inter-American Court concluded that a crime of grievous bodily harm does not in itself violate the obligation to prevent and punish other cruel, inhuman or degrading treatment or punishment. For this reason, the Inter-American Court did not hold the state liable for violation of the requirements of Article 2 of the ACHR or Article 6 of the IACPPT.


RESOLUTION


In the case, the requirements of the Convention were not violated (adopted unanimously).

(g) Compensation. The Inter-American Court ruled that this ruling is in itself a form of compensation and, in particular, ordered the state to (i) continue and complete within a reasonable time an investigation into the violation of Kispialai’s personal integrity and, if applicable, punish those responsible, (ii) ensure regular and unforeseen visits by independent, autonomous and competent authorities to military barracks where military service takes place, to monitor the conditions of its passage and exercise the rights of draftees, (iii) issue a certificate of disability to Kispialae in connection with injuries sustained in the military service, (iv) immediately provide Kispialae disability pension benefits, publish a decree and an official extract from it, (iv) make a public apology, (v) ensure Kispialai’s access to educational programs of a technical or professional nature, and (vi) pay compensation for material and non-pecuniary damage, as well as legal costs and expenses.

 

 

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