I/A Court H.R., Case of Pollo Rivera et al. v. Peru. Merits, Reparations and Costs. Judgment of October 21, 2016. Series C No. 319.

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 – Between 1992 and 1994 Mr. Luis Williams Pollo Rivera, a physician, was detained on charges of terrorism in the context of the Peruvian armed conflict. He was subjected to acts of torture and other cruel, inhumane and degrading treatment in anti-terrorist police and military facilities. He was then prosecuted in the military courts for the crime of treason and in the ordinary courts for the crime of terrorism. After the military courts declined jurisdiction in favour of the ordinary courts, he was found not guilty. In 2003 he was detained again on charges of collaboration with terrorism with regard to other events. He was prosecuted and convicted in the ordinary courts for the crime of collaboration with terrorism due to an alleged practice of giving medical care to members of the terrorist group Shining Path (Sendero Luminoso). The final judgment issued by the Peruvian Supreme Court of Justice found that Article 321 of the Crim­inal Code was applicable even if medical acts were not expressly listed as acts of collaboration in the relevant provisions. He served a prison sentence but was transferred to a public hospital in 2005 on health grounds. Between 2006 and 2011 he sub­mitted three requests for pardon on humanitarian grounds but these were refused. He died in Febru­ary 2012.

 

Law

 

(a) Article 9 (freedom from ex post facto laws 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 (ACHR) – The respondent State had argued that the applicant, through the provision of medical care to persons allegedly linked to the Shining Path terror­ist organisation, had collaborated and/or was effec­tively part of an “apparatus” of that organisation. In other words, in that historical context, those who performed such medical acts were considered to have a link with the terrorist organisation, to share its purposes or to seek to collaborate with it.

 

In assessing these arguments, the Inter-American Court first reiterated that States have the right and duty to guarantee their own security and that terrorism is a menace to democratic values and to international peace and security. At the same time, it recalled that the prevention and repression of crime must be ensured within the limits and pro­cedures set forth to preserve public safety and full respect of human rights.

 

The classification of an act as an offence required a clear definition of the criminalised act that estab­lished its elements and allowed it to be distin­guished from acts that were either not punishable or that were punishable but not with imprisonment or other punitive measures. The sphere of applica­tion of each offence had to be previously delimited as clearly and precisely as possible, in an explicit, precise, and strict manner. Also, the establishment of its legal effects had to pre-exist the defendant’s acts.

 

Although respect for strict legality had to be observed when defining any criminalised act, law­makers had to be extremely careful when defining offences of a terrorist nature, not only because of the harsher prison sentences and ancillary penal­ties usually attributed to such crimes, but also to avoid any temptation to cover ordinary or political offences with those of terrorism. Also, it was incum­bent upon the judge, when applying criminal law,to strictly abide by the provisions thereof and to be extremely rigorous when assessing the adequacy of the accused person’s conduct to the criminal defini­tion, so as not to punish someone for acts that were not punishable under the legal system.

 

Mr. Pollo Rivera was convicted under Article 321 of the Peruvian Criminal Code 1991, which crimi­nalised collaboration with terrorism. The Supreme Court of Justice’s final judgment in his case affirmed that even though medical acts were not of a crim­inal nature, repeated medical acts allegedly per­formed to provide medical care to members of a terrorist group indicated the physician’s will to cooperate with the criminal organisation. In other words, in the specific circumstances of the case, such acts constituted a crime because the physician knew that he was cooperating with the terrorist group and its actions and so became part of it.

 

The Inter-American Court went on to ascertain whether the definition of the crime in itself or the interpretation by the Peruvian Supreme Court of Justice clashed with the principle of strict legality. It noted that even though the drafting of the pro­vision was not precise enough, it allowed for a valid interpretation of the term “collaboration” under the technical meaning of “participation” or “complicity” in the crime. Consequently, notwithstanding its poor technicity, in so far as it was compatible with a strict interpretation, Article 321 was not to be considered as an infringement of the principle of legality. However, in its interpretation the Supreme Court of Justice opted for the non-technical sense of the use of the language, with a latitude incom­patible with the necessity for a clear delimitation of the prohibited conduct.

 

The Inter-American Court further analysed whether the charges brought against Mr. Pollo Rivera were to be characterised as complicity in the crime of terror­ism. In this respect, it recalled that the prohibition on criminalising medical acts has been recognised by international jurisprudence and declarations by medical associations. It thus held that strict legality was breached by the Peruvian Supreme Court of Justice’s interpretation of the offence. It appeared from the Supreme’ Court’s judgment that in order to avoid prosecution, Mr. Pollo Rivera should have abstained from providing medical care to persons he knew belonged to a criminal organisation. In other words, he should have refrained from acts that were not illegal. That interpretation gave rise to the contradiction of considering medical acts as criminal while at the same time regarding the provision of medical care as non-criminal conduct. In conclusion, the State was responsible for having criminalised the medical act, which was not only legal but also a duty borne by the physician, in vio­lation of Article 9 of the ACHR.

 

Conclusion: violation (unanimously).

 

(b) Reparations – The Inter-American Court estab­lished that the judgment constituted per se a form of reparation and ordered the State: (i) to continue and conclude, with due diligence and in a reasonable time, the ongoing investigation at the national level for the acts of torture and other cruel, inhumane or degrading treatment to which Mr. Pollo Rivera was subjected and, if applicable, to prosecute and sanction those responsible; (ii) to publish the judgment and its official summary; and (iii) to pay compensation in respect of pecuniary and non-pecuniary damages, as well as costs and expenses.