Order of the Inter-American Court of Human Rights of November 25, 2005 Case of García-Asto and Ramírez-Rojas v. Peru (Preliminary Objection, Merits, Reparations and Costs) In the Case of García-Asto and Ramírez-Rojas, The Inter-American Court of Human Rights (hereinafter “the Inter-American Court,” “the Court” or “the Tribunal”), composed of the following judges:* Sergio García-Ramírez, President; Alirio Abreu-Burelli, Vice-President; Oliver Jackman, Judge; Antônio A. Cançado Trindade, Judge; Cecilia Medina-Quiroga, Judge; Manuel E. Ventura-Robles, Judge, and Jorge Santistevan de Noriega, Judge ad hoc; Also present, Pablo Saavedra-Alessandri, Secretary; and Emilia Segares-Rodríguez, Deputy Secretary, Pursuant to Articles 62(3) and 63(1) of the American Convention on Human Rights (hereinafter “the Convention” or “the American Convention”) and Articles 29, 31, 53(2), 55, 56, and 58 of the Rules of Procedure of the Court (hereinafter “the Rules of Procedure”), delivers the following Judgment. I INTRODUCTION OF THE CASE 1. On June 22, 2004, the Inter-American Commission on Human Rights (hereinafter “the Commission” or “the Inter-American Commission”) filed before the Court an application against the State of Peru (hereinafter “the State” or “Peru”) * Judge Diego García-Sayán, a Peruvian national, excused himself from hearing this case, pursuant to Articles 19(2) of the Statute of the Court and 19 of the Rules of Procedure. 2 originating in petition Nos. 12.413 and 12.423, received at the Secretariat of the Commission on November 9 and 12, 1998, in the cases of Wilson García-Asto and Urcesino Ramírez-Rojas, respectively. On August 14, 2003, the Commission ordered joinder of the cases into case file No. 12.413. 2. The Commission filed the application pursuant to Article 61 of the American Convention, for the Court to determine whether the State had committed the alleged violations of human rights to the detriment of Wilson García-Asto and Urcesino Ramírez-Rojas, as embodied in Articles 7(2), 7(3), 7(4), 7(5), and 7(6) (Right to Personal Liberty); 8(1), 8(2), 8(2)(f), and 8(5) (Right to Fair Trial) and 9 (Rule of freedom from ex post facto laws) of the American Convention, in relation to Article 1(1) (Obligation to Respect Rights) of said treaty, allegedly committed “in the context of [the] criminal proceeding[s] brought against them […] for the crime of terrorism.” Moreover, the Commission requested the Court to declare that the State had violated the obligation established in Article 2 (Duty to Adopt Domestic Provisions) of the Convention “for having adopted legal rules in violation of the American Convention and for having failed to fully adapt said rules to the rights and freedoms established in [said treaty] in relation to the crime of terrorism.” 3. The Commission stated in the application that Wilson García-Asto and Urcesino Ramírez-Rojas were detained in 1995 and 1991, respectively, by the Peruvian National Police (hereinafter “PNP” or the “National Police”) without an arrest warrant and without being in flagrante delicto. The suspects were held incommunicado and the investigation, prosecution, and trial were conducted by “faceless” prosecutors and judges under the provisions of Decree-Law No. 25.475 of May 5, 1992, and with serious restrictions and restraints to exercise their right to defense. The Commission stated that the alleged victims, in light of illegally obtained evidence and unduly weighed and assessed evidentiary items offered by the defense, were sentenced to twenty and twenty-five years’ imprisonment, respectively, as alleged "perpetrators of the crime of terrorism.” Wilson García-Asto was convicted of the crime of “terrorism” under Articles 4 and 5 of Decree-Law No. 25.475 by judgment delivered on April 18, 1996, and affirmed on July 14, 1997. Urcesino Ramírez-Rojas was convicted of the crime of “terrorism” under Articles 319 and 320 of the Criminal Code of 1991 by judgment delivered on September 30, 1994, and affirmed on August 24, 1999. 4. Furthermore, the Commission referred to judgment of January 3, 2003 delivered by the Constitutional Court of Peru on the constitutionality and unconstitutionality of certain provisions of antiterrorist laws in force in Peru. Pursuant to the foregoing, the Commission asserted that the State issued Legislative Decrees Nos. 921 to 927 in February 2003, vacating the condemnatory judgments, the prosecution's case and certain aspects of the proceedings instituted against Wilson García-Asto and Urcesino Ramírez-Rojas. Nevertheless, the Commission considered that some of the violations committed in the first trial still persisted in the new proceedings and stated that, even though the State had amended antiterrorist laws as from 2003, in the instant case said amendments “ha[d] not redressed the violations suffered by the [alleged] victims, but rather ha[d] made them to prevail.” Moreover, the Commission pointed out in the application that “Wilson García-Asto and Urcesino Ramírez-Rojas ha[d] been held in custody since their detention, that is, for nine and thirteen years, respectively.” 3 5. Lastly, the Commission requested the Court that, under Article 63(1) of the Convention, order the State to adopt various pecuniary and non pecuniary reparation measures, and pay the costs and expenses arising from the proceeding of the instant case before the domestic courts and the Inter-American System for the Protection of Human Rights. II COMPETENCE 6. The Court has jurisdiction to hear the instant case pursuant to Articles 62 and 63(1) of the American Convention, as Peru has been a State Party to the Convention since July 28, 1978 and accepted the contentious jurisdiction of the Court on January 21, 1981. III PROCEEDING BEFORE THE COMMISSION 7. On November 9, 1998, Celia Asto-Urbano, Wilson García-Asto’s mother, filed a petition against the State of Peru before the Inter-American Commission, which was later supplemented by briefs of May 24, 1999; September 8, 1999; and October 29, 1999. On April 30, 2002, the Commission, in accordance with its Rules of Procedure, processed the application under No. 482/1998 VL and requested the State to furnish any pertinent information. 8. On November 12, 1998, Pedro Ramírez-Rojas, Urcesino Ramírez-Rojas’ brother, filed a petition against the State of Peru before the Inter-American Commission, which was later supplemented by brief of May 18, 2001. On August 28, 2002 the Commission processed the application under No. 479/1998 VL and requested the State to furnish any pertinent information. 9. On April 4, 2002 the Commission, at the request of Wilson García-Asto’s mother, Celia Asto-Urbano, adopted precautionary measures on behalf of her son and requested the State to take measures so that Mr. García-Asto undergo a medical examination and, in the event of an unfavorable diagnosis, he be provided with medical treatment. 10. On January 9, 2003, the Commission ordered that the case of Wilson García- Asto be opened under number 12.413 and admissibility issues be addressed during the discussions and the judgment on the merits. 11. On July 08, 2003, the Commission ordered that the case of Urcesino Ramírez- Rojas be opened under number 12.423 and admissibility issues be addressed during the discussions and the judgment on the merits. 4 12. On August 14, 2003, the Commission ordered the joinder of the cases of Wilson García-Asto and Urcesino Ramírez-Rojas into case file No. 12.413. 13. On March 11, 2004, the Inter-American Commission approved Report on admissibility and merits No. 27/04. In said report, the Commission concluded that it had “jurisdiction to hear the instant case and that the petition [was] admissible.” Furthermore, it considered that the State should adopt the following recommendations: 1. According to the provisions of its domestic legislation, to adopt all such measures as may be necessary to redress in full the violations of the human rights of Wilson García-Asto and Urcesino Ramírez-Rojas as described in the […] report, in particular, to deliver a new judgment in full compliance with the rule of freedom from ex post facto laws, that cannot be in any way violated by discretionary and flexible judicial interpretations of criminal laws, and with due process and fair trial rules. 2. To adopt all such measures as may be necessary to amend Decree-Law No. 25.475 in order to bring its provisions in line with the American Convention on Human Rights. 14. On March 22, 2004, the Commission sent the report on admissibility and merits to the State, granting it a term of two months to inform about the measures adopted in compliance with the recommendations set forth therein. The State failed to submit an answer thereto. 15. On June 20, 2004, as a result of the State’s failure to comply with the recommendations included in the report approved under Article 50 of the Convention, the Commission decided to submit the case to the Court. IV PROCEEDING BEFORE THE COURT 16. On June 22, 2004, the Inter-American Commission filed an application before the Court (supra para. 1), attaching documentary evidence thereto, and offering to submit testimonies of witnesses and expert witnesses as further evidence. The Commission appointed Freddy Gutiérrez, Florentín Meléndez, and Santiago Canton as delegates, and Ariel Dulitzky, Pedro E. Díaz, Manuela Cuvi, and Lilly Ching as legal counsels. 17. On August 5, 2004, in compliance with Article 35(1)(e) of the Rules of Procedure, the Secretariat of the Court (hereinafter “the Secretariat”), after a preliminary examination of the application by the President of the Court (hereinafter “the President”), served said application and the appendixes thereto on the representatives of the alleged victims and their next of kin (hereinafter “the representatives”) and notified them of the term within which they were to submit a brief with their requests, arguments, and evidence (hereinafter “brief of requests and arguments”).