personal liberty in Peru. In other words, CONARE did not consider or assess the possibility that
the circumstances might have changed or that supervening facts had occurred in the lapse of
three years from the moment of the statement on voluntary repatriation and up until the new
request, so that it did not make a serious evaluation of all the circumstances of the applicants at
the time of the request and of the potential danger they could face.
174. The relevant point in this case is that CONARE took a summary decision on the request,
without hearing the applicants by an interview, hearing or other mechanism, without receiving
evidence, without assessing the circumstances of the applicants in February 2001, without
granting them the possibility of contesting, if appropriate, the possible arguments against their
request, and without providing further grounds or reasoning than assuming a “tacit
renunciation” of the refugee status that Bolivia had granted them in 1996. There is also no
record that this decision was duly notified to them, which prevented them from knowing its
contents and, if appropriate, filing an appeal for reconsideration or any other appropriate judicial
remedy to contest the possible violation of due process or the right to seek and to receive
asylum or the principle of non refoulement.
175. Regarding the above, the State argued that “the case reflected the cessation of refugee
status based on the personal decision of the Pacheco Tineo couple”; that the repatriation was
not “induced” and that the decision of CONARE was not a decision on the request for asylum,
but merely a “declaration of cessation”; in other words, on a cause of cessation, for having
voluntarily decided to return to the country of origin, which, it alleged, was subsequently
confirmed by the Constitutional Court.
176. The Court considers that it is not incumbent on it to determine the voluntary nature of
the statement on voluntary repatriation or the elements that constitute a so-called “forced
repatriation,”236 or whether this occurred, because it is not determining the State’s responsibility
based on whether or not it granted certain rights or benefits to the Pacheco Tineo family during
this period.
177. In addition, the Court considers that the State’s arguments are not pertinent, inasmuch
as they are not included in the said minutes of CONARE of February 21, 2001. Moreover, it
cannot be affirmed that it can be presumed that this organ took into account other elements
when deciding the request for refugee status, as the State suggests,237 because it only
corresponds to the Court to rule on the State’s responsibility for the actual acts or omissions of
its authorities and agents, based on the evidence provided. In any case in which a State argues
the application of individual or collective reasons for cessation, due process of law must be
respected. Thus, the foregoing analysis confirms the absence of grounds in the decision of
CONARE, which failed to implement an appropriate proceeding that respected the guarantees of
236
Expert witness Murillo explained that “the concept of forced repatriation in hypothetical cases relates precisely
to the fact that, under some circumstances, a refugee may be compelled or may feel obliged to opt for voluntary
repatriation to the extent that he is unable to satisfy his basic needs [in the host country]. This means, for example,
that even though it is true that voluntary repatriation is an individual right arising from Article 13 of the Universal
Declaration of Human Rights, which must not only be voluntary and take place under safe and dignified conditions. If a
country cannot offer the necessary conditions for a refugee to satisfy his basic needs, for example, for subsistence, a
refugee may feel the need to return to his country of origin. This does not mean that the decision is completely
voluntary, but that the circumstances could influence this decision, and this is what legal doctrine calls a forced
repatriation.” Statement made by expert witness Juan Carlos Murillo before the Inter-American Court during the public
hearing held on March 20, 2013.
237
The State itself accepted that “the international case file does not include other elements reviewed by CONARE
on February 21, 2001,” so that it cannot be “presume[d] that […] it had additional elements that could have influenced”
its decision. Accordingly Court need not evaluate whether the circumstances “had changed substantially” in Peru,
because “the President at the time of the persecution against the couple was no longer in power,” as the State
suggested. Again, CONARE did not refer to these significant elements and, in any case, it was not for the presumed
victims to prove “that their circumstances were different from those of thousands of Peruvians who returned once
Fujimori’s mandate ended.”
58
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