CCPR/C/46/D/263/1987

Communication No. 263/1987, M. Gonzбlez del Rнo v. Peru

(views adopted on 28 October 1992, forty-sixth session)

Submitted by:

Miguel Gonzбlez del Rнo

Alleged victim:

The author

State party concerned:

Peru

Date of communication:

19 October 1987

Date of decision on admissibility: 6 November 1990

The Human Rights Committee, established under article 28 of the

International Covenant on Civil and Political Rights,

Meeting on 28 October 1992,

Having concluded its consideration of communication No. 263/1987,

submitted to the Human Rights Committee by Mr. Miguel Gonzбlez del Rнo under

the Optional Protocol to the International Covenant on Civil and Political

Rights,

Having taken into account all written information made available to it

by the author of the communication and noting with concern that no

information whatever has been received from the State party

Adopts its views under article 5, paragraph 4, of the Optional Protocol.

1.

The author of the communication is Miguel Gonzбlez del Rнo, a

naturalized Peruvian citizen of Spanish origin, at present residing in Lima,

Peru. He claims to be a victim of violations by Peru of articles 9,

paragraphs 1 and 4, 12, 14, paragraphs 1 and 2, 17 and 26 of the

International Covenant on Civil and Political Rights.

Facts as submitted

2.1 From 10 February 1982 to 28 December 1984, the author served as

Director-General of the penitentiary system of the Peruvian Government. By

Resolution No. 072-85/CG of 20 March 1985, the Comptroller General of Peru

accused the author and several other high officials of illegal appropriation

of government funds, in connection with purchases of goods and the award of

contracts for the construction of additional penitentiaries. With

retroactive effect, Mr. Gonzбlez' resignation, tendered on 28 December 1984,

was transformed into a dismissal.

2.2 The author contends that a libelous press campaign against him and the

other accused in the case, including the former Minister of Justice,

Enrique Elнas Laroza, accompanied the 1986 presidential elections in Peru.

In spite of this campaign, led by papers loyal to the Government, Mr. Elнas

Laroza was elected deputy. Because of his parliamentary immunity, Mr. Elнas

Laroza, the principal target of the Comptroller General's report, was not

subjected to arrest or detention, although a congressional investigation as

to the charges that could be filed against the former Minister was initiated.

He notes that

the lower officials, including himself, have been subjected to detention or

threats of detention.

2.3 The author filed an action for amparo before the Vigйsimo Juzgado Civil

of Lima to suspend the Resolution of the Comptroller General. The judge

granted the suspension and the Comptroller appealed, claiming that an action

of amparo was premature and that the author should first exhaust available

administrative remedies. The Court, however, ruled that in the circumstances

it was not necessary to take the matter before the administrative tribunals,

and as to the merits of the case, that the right of defence of the author and

the other accused had been violated, since they had been ordered by the

Comptroller General to make payments without proper determination of the sum

or opportunity to study the books and compare the figures. The Court further

decided that the Comptroller General did not have the authority to dismiss

the author, nor to give retroactive effect to his resolutions. On appeal,

however, the Superior Court of Lima reversed this finding, and the Supreme

Court confirmed. The author then filed for amparo with the Constitutional

Court (Tribunal de Garantнas Constitucionales) alleging abuse of power by the

Comptroller General, breach of the constitutional rights of defence and

denial of access to documentation for the defence. By judgement of 15

September 1986, the Constitutional Court decided in the author's favour,

ordering the suspension of the Comptroller's Resolution, and declaring the

dismissal order to be unconstitutional. The author complains that although

the Constitutional Court referred the case back to the Supreme Court for

appropriate action, none had been taken as of March 1992, five and a half

years later, despite repeated requests from the author.

2.4 In spite of the judgment of the Constitutional Court, the Comptroller's

Office initiated criminal proceedings for fraud against the author; Mr.

Gonzбlez applied for habeas corpus with the criminal court of Lima on 20

November 1986, against the examining magistrate No. 43; his action was

dismissed on 27 November 1986. The author appealed the following day; the

Tenth Criminal Tribunal (Dйcimo Tribunal Correccional de Lima) dismissed the

appeal on 5 December 1986.

2.5 Undeterred, the author filed an action for nullity of his indictment

(recurso de nulidad); on 12 December 1986, the court referred the matter to

the Supreme Court. On 23 December 1986, the Second Criminal Chamber of the

Supreme Court confirmed the validity of the indictment. Against this

decision, the author filed an "extraordinary appeal for cassation" (recurso

extraordinario de casaciуn) with the Constitutional Court. On 20 March 1987,

the Constitutional Tribunal held, in a split decision (four judges against

two), that it could not compel the Supreme Court to execute the

Constitutional Court's decision of 15 September 1986, since the author had

not been subjected to detention and the Tribunal's earlier decision could not

be invoked in the context of the request for amparo filed against examining

magistrate No. 43.

2.6 With respect to the criminal action for fraud and embezzlement of public

funds pending against the author, the Twelfth Criminal Tribunal of Lima

(Duodйcimo Tribunal Correccional de Lima) decided, on 9 December 1988 and

upon the advice of the Chief criminal prosecutor of Peru, to file the case

and suspend the arrest order against the author, as the preliminary

investigations had failed to reveal any evidence of fraud committed by him.

2.7 The author states that this decision notwithstanding, another parallel

criminal matter remains pending since 1985, and although investigations have

not resulted in any formal indictment, an order for his arrest remains

pending, with the result that he cannot leave Peruvian territory. This,

according to the author, is where matters currently stand. In a letter dated

20 September 1990, he states that the Supreme Court has "buried" his file for

years, and that, upon inquiry with the Court's president, he was allegedly

told that the proceedings would "be delayed to the maximum possible extent"

while he [the Court's president] was in charge, since the matter was a

political one and he would not like the press to question the final decision,

which would obviously be adopted in Mr. Gonzбlez' favour ("... que el caso

iba a ser retardado al mбximo mientras йl estuviera a cargo, puesto que

tratбndose de un asunto polнtico no querнa que la prensa cuestionara el fallo

final, obviamente a mi favor."). The author contends that the Supreme Court

has no interest in admitting that its position is legally untenable, and that

this explains its inaction.

Complaint

3.1 The author complains that he has not been reinstated as a public

official, although he has been cleared of the charges against him by the

decision of the Constitutional Tribunal and the decision of the Twelfth

Criminal Court suspending the proceedings against him. He further alleges

that his reputation and honour will be tainted as long as the Supreme Court

fails to implement the decision of the Constitutional Court of 15 September

1986.

3.2 The author further complains that as one arrest warrant against him

remains pending, his freedom of movement is restricted, in that he is

prevented from leaving the territory of Peru.

3.3 It is further claimed that the proceedings against the author have been

neither fair nor impartial, in violation of article 14, paragraph 1, as may

be seen from the politically motivated statements of magistrates and judges

involved in his case (see statement referred to in paragraph 2.7 above).

3.4 Finally, the author contends that he is a victim of discrimination and

unequal treatment, because in a case very similar to his own, concerning a

former Minister, the Attorney-General allegedly declared that it would not be

possible to accuse lower-level officials as long as the legal issues

concerning this former minister had not been solved. The author contends

that his treatment constitutes discrimination based on his foreign origin and

on his political opinions.

Issues and proceedings before the Committee

4.1 By decision of 15 March 1988, the Committee's Working Group transmitted

the communication to the State party, requesting it, under rule 91 of the

rules of procedure, to provide information and observations on the

admissibility of the communication. On 19 July 1988, the State party

requested an extension of the deadline for its submission, but despite two

reminders addressed to it, no information was received.

4.2 During its fortieth session in November 1990, the Committee considered

the admissibility of the communication. With respect to the requirement of

exhaustion of domestic remedies, it concluded that there were no effective

remedies available to the author in the circumstances of his case which he

should have pursued. It further noted that the implementation of the

Constitutional Court's decision of 15 September 1986 had been unreasonably

prolonged within the meaning of article 5, paragraph 2 (b), of the Optional

Protocol.

4.3 On 6 November 1990, the Committee declared the communication admissible.

It requested the State party to clarify exactly what charges had been brought

against the author and to forward all relevant court orders and decisions in

the case. It further asked the State party to clarify the powers of the

Constitutional Court and to explain whether and in which way the

Constitutional Court's decision of 15 September 1986 had been implemented.

After a reminder addressed to it on 29 July 1991, the State party requested,

by note of 1 October 1991, an extension of the deadline for its submission

under article 4, paragraph 2, of the Optional Protocol until 29 January 1992.

No submission has been received.

4.4 The Committee notes with concern the lack of any co-operation on the

part of the State party, both in respect of the admissibility and the

substance of the author's allegations. It is implicit in rule 91 of the

rules of procedure and article 4, paragraph 2, of the Optional Protocol, that

a State party to the Covenant investigate in good faith all the allegations

of violations of the Covenant made against it and in particular against its

judicial authorities, and to furnish the Committee with detailed information

about the measures, if any, taken to remedy the situation. In the

circumstances, due weight must be given to the author's allegations, to the

extent that they have been substantiated.

5.1 As to the alleged violation of article 9, paragraphs 1 and 4, the

Committee notes that the material before it does not reveal that, although a

warrant for the author's arrest was issued, Mr. Gonzбlez del Rнo has in fact

been subjected to either arrest or detention, or that he was at any time

confined to a specific, circumscribed location or was restricted in his

movements on the State party's territory. Accordingly, the Committee is of

the view that the claim under article 9 has not been substantiated.

5.2 The Committee has noted the author's claim that he was not treated

equally before the Peruvian courts, and that the State party has not refuted

his specific allegation that some of the judges involved in the case had

referred to its political implications (see para. 2.7 above) and justified

the courts' inaction or the delays in the judicial proceedings on this

ground. The Committee recalls that the right to be tried by an independent

and impartial tribunal is an absolute right that may suffer no exception. It

considers that the Supreme Court's position in the author's case was, and

remains, incompatible with this requirement. The Committee is further of the

view that the delays in the workings of the judicial system in respect of the

author since 1985 violate his right, under article 14, paragraph 1, to a fair

trial. In this connection, the Committee observes that no decision at first

instance in this case had been reached by the autumn of 1992.

5.3 Article 12, paragraph 2, protects an individual's right to leave any

country, including his own. The author claims that because of the arrest

warrant still pending, he is prevented from leaving Peruvian territory.

Pursuant to paragraph 3 of article 12, the right to leave any country may be

restricted, primarily, on grounds of national security and public order

(ordre public). The Committee considers that pending judicial proceedings

may justify restrictions on an individual's right to leave his country. But

where the judicial proceedings are unduly delayed, a constraint upon the

right to leave the country is thus not justified. In this case, the

restriction on Mr. Gonzбlez' freedom to leave Peru has been in force for

seven years, and the date of its termination remains uncertain. The

Committee considers that this situation violates the author's rights under

article 12, paragraph 2; in this context, it observes that the violation of

the author's rights under article 12 may be linked to the violation of his

right, under article 14, to a fair trial.

5.4 On the other hand, the Committee does not find that the author's right,

under article 14, paragraph 2, to be presumed innocent until proved guilty

according to law was violated. Whereas the remarks attributed to judges

involved in the case may have served to justify delays or inaction in the

judicial proceedings, they cannot be deemed to encompass a pre-determined

judgement on the author's innocence or guilt.

5.5 Finally, the Committee considers that what the author refers to as a

libelous and defamatory press campaign against him, allegedly constituting an

unlawful attack on his honour and reputation, does not raise issues under

article 17 of the Covenant. On the basis of the information before the

Committee, the articles published in 1986 and 1987 about the author's alleged

involvement in fraudulent procurement policies in various local and national

newspapers cannot be attributed to the State party's authorities; this is so

even if the newspapers cited by the author were supportive of the government

then in force. Moreover, the Committee notes that it does not appear that

the author instituted proceedings against those he considered responsible for

the defamation.

6.

The Human Rights Committee, acting under article 5, paragraph 4, of the

Optional Protocol to the International Covenant on Civil and Political

Rights, is of the view that the facts before it disclose violations of

articles 12, paragraph 2, and 14, paragraph 1, of the Covenant.

7.

The Committee is of the view that Mr. Gonzбlez del Rнo is entitled,

under article 2, paragraph 3 (a), of the Covenant, to an effective remedy,

including the implementation of the decision of 15 September 1986, delivered

in his favour by the Constitutional Court. The State party is under an

obligation to ensure that similar violations do not occur in the future.

8.

The Committee would wish to receive information, within ninety days, on

any relevant measures taken by the State party in respect of the Committee's

views.

[Done in English, French, Russian and Spanish, the English text being the

original version.]