DISSENTING OPINION OF
JUDGE CARLOS VICENTE DE ROUX-RENGIFO
I must dissent from the decision of the Court as to six of the seven preliminary
objections raised by the Peruvian State, because I believe they have a close
relationship with the merits of the case and should have been joined to the merits.
It is well known that for a petition or communication to be admitted by the
Commission, Article 46(1) of the Convention requires,
a. that the remedies under domestic law have been pursued and exhausted
in accordance with generally recognized principles of international law;
b. that the petition or communication be lodged within a period of six months
from the date on which the party alleging violation of his rights was notified
of the final judgment;
There are exceptions to this rule, among which are those set forth in Articles
46(2)(a) and 46(2)(b), which come into effect when "the domestic legislation of the
state concerned does not afford due process of law for the protection of the right or
rights that have allegedly been violated," and when "the party alleging violation of
his rights has been denied access to the remedies under domestic law or has been
prevented from exhausting them."
That being established, it is important to examine the content of the litigation
initiated by the Inter-American Commission before the Court. To this end, I am
going to summarize the arguments of that organ, without prejudging their
truthfulness or validity.
In the application, the Commission asks the Court to declare that the Peruvian
State has violated Articles 5, 7, 8, and 25 of the Convention, and in the statement
of the facts it emphasizes three types of circumstances:
First: the illegal and arbitrary detention to which Luis Alberto CantoralBenavides was subjected;
Second: the totally groundless proceedings to which Luis Alberto CantoralBenavides was subjected in the Exclusive Military Jurisdiction and the civilian
courts from the date of February 6, 1993;
Third: the cruel and degrading treatment with which he was treated by the
agents of DINCOTE.
(Application to the Inter-American Court, pg. 3).
As can be seen, the application of the Commission disputes all the actions and
omissions of the State which began with the detention of Luis Alberto CantoralBenavides and extended to the conclusion of the second criminal proceeding that
which took place in the civilian courts.
The claims of condemnation made in the application are very broad. They lead to
declarations that the following rights have been violated:
A. The right to be heard by an independent and impartial tribunal...
B. The right to the presumption of the innocence of the accused...