The ruling of the Inter-American Court of Human Rights of October 21, 2016 in the case of Polo Rivera and Others v. Peru (Series C, No. 319).
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 about freedom from retrospective application of the law and non-criminalization of medical actions.
Freedom from retrospective application of legislation and non-criminalization of medical actions.
Circumstances of the case
From 1992 to 1994, physician Luis Williams Polo Rivera was detained on terrorism charges in the context of the armed conflict in Peru. He was subjected to torture and other cruel, inhuman and degrading treatment in anti-terrorist police and military bodies. He was then prosecuted in the military courts for treason and in the courts of general jurisdiction for terrorism. After military courts renounced jurisdiction in favor of general courts, he was found not guilty. In 2003, he was again remanded in custody on charges of aiding terrorism in connection with other events. He was found guilty by the courts of general jurisdiction on this charge as a result of the alleged provision of medical assistance to members of the Shining Path terrorist organization.
The final sentence imposed by the Supreme Court of Peru found that section 321 of the Penal Code was applicable even though medical assistance was not explicitly mentioned as an act of aiding in the relevant rules. The applicant was serving a term of imprisonment, but in 2005 he was transferred to a public hospital. From 2006 to 2011, he sent three petitions for clemency on humanitarian grounds, but they were rejected. He died in February 2012.
QUESTIONS OF LAW
(a) Article 9 (exemption from laws ex post facto or “principle of legality”) in relation to Article 1 (1) (obligation to respect and ensure rights without discrimination) of the American Convention on Human Rights (hereinafter - ACHR). The respondent Government submitted that the applicant, as a result of providing medical assistance to persons allegedly associated with the Shining Path terrorist organization, collaborated and / or was an effective part of the organization’s “apparatus”. In other words, in this historical context, those who carried out such medical actions were considered to be associated with a terrorist organization, sharing its goals or trying to cooperate with it.
In assessing these arguments, the Inter-American Court of Human Rights first recalled that states have the right and obligation to guarantee their own security and that terrorism constitutes a threat to democratic values and international peace and security. At the same time, he recalled that the prevention and suppression of crimes should be ensured within the framework of the restrictions and procedures established to maintain public safety and respect for human rights. The classification of an act as a crime requires a clear definition of a criminalized act indicating its elements and allowing it to be distinguished from actions that are not punishable or punishable without the use of deprivation of liberty or other punitive measures. The scope of each crime should be determined in advance as clearly and precisely as possible, directly and strictly. The determination of legal consequences must also precede the actions of the accused.
Although strict criminal law is required when defining any criminal act, lawmakers should be especially careful when defining terrorist crimes, not only because of the more severe sanctions in the form of imprisonment and additional penalties that usually accompany such crimes, but also to avoid any temptation to attribute terrorism ordinary or political crimes. In addition, the judge, applying the criminal law, must strictly observe its provisions and be extremely accurate in assessing the adequacy of the defendant’s behavior to the criminal definition, so as not to punish anyone for actions that were not punishable in accordance with the legal system.
Polo Rivera was convicted under article 321 of the Peruvian Criminal Code of 1991, which criminalized cooperation with terrorists. The final verdict of the Supreme Court in his case confirmed that even though medical assistance was not criminal in nature, repeated medical actions allegedly committed to provide medical assistance to members of the criminal group indicated a doctor’s desire to cooperate with the criminal organization. In other words, under special circumstances, such actions constituted a crime, because the doctor knew that he was cooperating with a terrorist group and its members, and therefore became a part of it.
The Inter-American Court of Human Rights further ascertained whether the definition of a crime in itself or its interpretation by the Supreme Court of Peru contradicted the principle of strict law. He noted that even if the wording of the norm was not accurate enough, it allowed a legitimate interpretation of the term “cooperation” in accordance with the technical meaning of “participation” or “involvement” in a crime. Consequently, despite the lack of technicality, how compatible it is with strict interpretation, article 321 of the Criminal Code should not be considered a violation of the principle of legality. However, in its interpretation, the Peruvian Supreme Court chose the non-technical meaning of using the language with a breadth incompatible with a clear definition of prohibited behavior.
The Inter-American Court of Human Rights also analyzed whether the charges against Polo Rivera should have qualified as involvement in the crime of terrorism. In this regard, he recalled that the prohibition of the criminalization of medical actions is recognized by international practice and the declarations of medical associations. Accordingly, he indicated that the interpretation of the offense by the Supreme Court of Peru violated this strict law. It follows from the verdict of the Supreme Court that, in order to avoid persecution, Polo Rivera should refrain from providing medical assistance to persons who, according to his information, belonged to a criminal organization. In other words, he had to refrain from actions that were not illegal. This interpretation led to a contradiction of the qualification of medical actions as criminal, while the provision of medical care was not illegal behavior. In conclusion, the state was responsible for criminalizing medical action, which was not only legal, but even a doctor’s duty, in violation of article 9 of the ACHR.
The case has violated the requirements of the Convention (adopted unanimously).
(b) Compensation. The Inter-American Court of Human Rights found that the decision itself constituted a form of compensation, and ordered the state to: (i) continue and complete with due diligence and within a reasonable time the ongoing investigation at the domestic level of acts of torture and other cruel, inhuman and degrading treatment, suffered by Polo Rivera, (ii) publish the decision and its official summary, and (iii) pay compensation for pecuniary and non-pecuniary damage, as well as legal costs and expenses.