I/A Court H.R., Case of Quispialaya Vilcapoma v. Peru. Preliminary Objections, Merits, Reparations and Costs. Judgment of November 23, 2015. Series C No. 308.

Non official brief

[This summary was developed by the Secretariat of the Inter-American Court of Human Rights. It relates only to the merits and reparations aspects of the judgment. A more detailed, official abstract (in Spanish only) is available on that Court’s website: http://www.corteidh.or.cr/.] 

 

 

Facts – On 26 January 2001, Mr Valdemir Quispialaya Vilcapoma was hit in the forehead and right eye with the butt of his rifle by his military superior during a shooting drill in the course of his military service because he failed to fire the shots correctly. Due to the injury inflicted, Mr Quispialaya lost vision in his right eye and subsequently suffered from depression. The aforementioned actions were rooted in a culture of abuse that existed in Peru, in which physical and psychological violence was used to impose military discipline and authority. Judicial proceedings regarding the aggression were initiated in both the ordinary and military courts. Nevertheless, no one has been convicted for the above acts.

 

Law

(a)     Preliminary objections: The State submitted two preliminary objections regarding the non-exhaustion of domestic remedies. The first preliminary objection was rejected on the grounds that the remedy invoked by the State during the admissibility proceedings was different from the one argued before the Court. The second preliminary objection was, in the view of the Court, an issue related to a reparation measure requested by the victims' representatives, and thus could not be analysed as a preliminary objection. Moreover, the State´s argument was time-barred.

 

(b)     Article 5(1) (right to personal integrity) and (2) (prohibition of torture and cruel, inhuman, or de- grading punishment or treatment) of the American Convention on Human Rights (ACHR) in relation to Article 1(1) thereof and Article 6 of the Inter- American Convention to Prevent and Punish Torture (IACPPT): On the basis of standards set forth by the European Court of Human Rights [citing Chember v. Russia, 7188/03, 3 July 2008, § 50, Information Note 110; Placì v. Italy, 48754/11, 21 January 2014, § 51, Information Note 170; Larissis and Others v. Greece, 23372/94, 24 February 1998, §§ 50-51; and Konstantin Markin v. Russia, 30078/06, 22 March 2012, § 135, Information Note 150] and the UN Human Rights Committee [citing General Comment No. 35, 16 December 2014, UN Doc. CCPR/C/GC/35, paras. 5-6], the Inter-American Court determined that the particular situation under which military service is carried out entails a restriction or limitation to the rights and freedoms of recruits. This does not, however, represent an instance of deprivation of liberty, but rather a situation in which the State is the guarantor and custodian of the individuals under that regime.

 

The Court established, therefore, that the standards set forth in the cases of persons deprived of liberty apply to military personnel in active service and in their barracks, inasmuch as the State holds a special position of guarantor in respect of persons in its custody or subject to a superior-subordinate relationship. Thus, in relation to those persons subject to such special relationship, the Court found that the State has the duty to (i) safeguard the health and welfare of military personnel on active duty; (ii) ensure that the manner and method of training does not exceed the unavoidable level of suffering inherent to military service; and (iii) provide a satisfactory and convincing explanation of any harm to the health of those in military service. Consequently, a presumption exists that the State is responsible for alleged violations of personal integrity of individuals under the authority and control of State agents, such as during military service.

 

When analysing the assault committed against Mr Quispialaya, the Court considered multiple factors, such as the abusive behaviour of the military authority, the violence displayed by the aggressor, the defencelessness of the victim, his reasonable fear, the threats made by the aggressor in order to avoid being denounced, the medical re- ports, and the psychological expert testimony rendered in the present case. For those reasons, the Court established that the attack suffered by Mr Quispialaya represented a violation of Articles 5(1) and 5(2) of the ACHR and of Article 6 of the IACPPT, that prohibit torture and cruel, inhuman, or degrading punishment or treatment.

Conclusion: violation (unanimously).

 

(c)      Articles 8(1) (right to a fair trial) and 25 (right to judicial protection) in relation to Article 1(1) (obligation to respect rights) of the ACHR and Articles 1, 6 and 8 of the IACPPT: Furthermore, the Court considered that the aforementioned facts should have been investigated and, eventually, tried and punished in a criminal proceeding before ordinary courts. Accordingly, the Court found that the ruling of the Permanent Criminal Chamber of Peru’s Supreme Court violated the competent court principle by preventing the investigation and trial by ordinary courts and retaining the case before military jurisdiction between 2002 and 2007. The Court found this to represent an undue expansion of the military justice system and thus a violation of Article 8(1) of the ACHR.

 

Regarding the intervention of ordinary tribunals, the Court found a series of shortcomings in their proceedings. The ordinary courts did not investigate the facts in a diligent and effective manner, nor did they analyse the evidence forwarded by a military judge. The investigating authorities were also negligent in finding witnesses, among other failings. Additionally, the Court found that the State took an unreasonable amount of time to conduct the investigation. Considering the above, the Court concluded that the State violated the rights to a fair trial and to judicial protection established in Articles 8(1) and 25 of the ACHR, as well as the obligations established in Articles 1, 6 and 8 of the IACPPT.

 

With regard to the situation of harassment and threats against the applicant, the Court found that the investigation conducted by the State was ineffective, and thus amounted to a violation of the right to judicial protection established in Article 25(1) of the ACHR.

Conclusion: violation (unanimously).

 

(d)     Article 5 (right to personal integrity) in relation to Article 1(1) (obligation to respect rights) of the ACHR: The Court took notice of the close relation- ship between Ms. Victoria Vilcapoma Taquia, the applicant´s mother, and her son, the suffering she went through due to the consequences of the as- sault, as well as the threats and harassment that both endured. Therefore, the Court concluded that the State was responsible for the violation of Article 5(1) of the ACHR, to the detriment of Ms Victoria Vilcapoma Taquia.

Conclusion: violation (unanimously).

 

(e)     Article 2 (domestic legal effects) of the ACHR in relation to Article 6 of the IACPPT: Regarding the duty to adopt domestic measures, the Court considered that Article 6 of the IACPPT deals with torture and other cruel, inhuman or degrading treatment or punishment in a different way, which is demonstrated by the different duties imposed by the Convention in each circumstance. Article 6, paragraph 2, sets out the obligation to adopt domestic legislation so that acts of torture constitute a punishable offence within a State’s jurisdiction. In relation to cruel, inhuman or degrading treatment or punishment, the IACPPT establishes a duty to adopt measures to prevent and punish these acts, but it does not set forth the obligation to adopt domestic criminal legislation. In that sense, the Court considered that the prevention and prosecution of cruel, inhuman and degrading treatment could have been achieved in the present case through the use of other appropriate criminal of- fences already in the Criminal Code (for example, serious physical injury).

 

Additionally, the Court noted that, although the crime of torture is reserved for cases of extreme significance, this does not imply that a case of physical injury is less serious in Peru given that the punishment established in its domestic legislation for such offence is as severe as the one set out for cases of torture. Therefore, the Court considered that the crime of serious physical injury did not violate per se the obligation to prevent and sanction other cruel, inhuman or degrading treatment or punishment. For those reasons, the Court did not find the State responsible for the violation of Article 2 of the ACHR or Article 6 of the IACPPT.

Conclusion: no violation (unanimously).

 

(f)      Reparations: The Inter-American Court established that the judgment constituted per se a form of reparation and ordered, inter alia, that the State: (i) continue and conclude, within a reasonable time, the investigation into the violation of Mr Quispialaya’s personal integrity and, if applicable, punish those responsible; (ii) guarantee regular and unexpected visits by independent, autonomous, and competent authorities to military barracks where military service is performed in order to monitor the conditions under which military service is carried out and the fulfilment of the rights of the recruits; (iii) issue a disability discharge certificate to Mr Quispialaya due to the injuries suffered during his military service; (iv) immediately provide Mr Quispialaya with the benefits linked to a disability pension; (v) ensure access for Mr Quispialaya to education programmes of a technical or professional nature; and (vi) pay pecuniary and non-pecuniary damages, as well as costs and expenses.