4
unanimously,
6.
That the State of Peru is obliged to pay fair compensation to the victim and her
next of kin and to reimburse them for any expenses they may have incurred in their
representations before the Peruvian authorities in connection with this process, for
which purpose the corresponding proceeding remains open.
Judge Montiel-Argüello informed the Court of his Dissenting Opinion, and Judge Cançado
Trindade and Judge Jackman of their Joint Concurring Opinion, both of which are
attached to this judgment.
12.
The Court summarizes the arguments and requests submitted by the State in
its request for interpretation as follows:
a.
that the operative part of the judgment does not contain any
pronouncement on the exhaustion of domestic remedies, since only a brief
and incomplete mention is made on the subject in paragraphs 47 and 48, nor
did the Court, in the judgment on preliminary objections rendered in this
case, put forward any basis for its rejection of the non-exhaustion of domestic
remedies. Peru submitted other arguments connected with above-mentioned
preliminary objection and declared the entire proceeding before the
Commission and the Court to be null and void. For these reasons, it requested
the Court to deliver a specific ruling on the non-exhaustion of domestic
remedies;
b.
that Article 7 of the Convention had not been violated to the detriment
of Ms. María Elena Loayza-Tamayo and that the judgment did not specify
which of the seven subparagraphs of that article had been violated; that in
the judgment the Court admitted that Supreme Decree 006-93-DE/CCFFAA of
January 19, 1993, extending the state of emergency in the Province of Lima
and in the Constitutional Province of Callao was in force on February 6, 1993,
the date on which Ms. Loayza-Tamayo was arrested and that her detention
was effected in accordance with the requirements of Article 27 of the
Convention and of the Constitution and laws of Peru. The State further stated
that the Court did not study the validity of the declaration of the state of
emergency, within the requirements of the aforementioned Article 27;
c.
that Ms. María Elena Loayza-Tamayo was serving a 20-year prison
sentence; that in this case, under Peruvian legislation, the fulfillment of that
sentence could only be interrupted when it had been served or by the
granting of a pardon; that, for this reason, the Court's order to release
Ms. Loayza-Tamayo was out of order and illegal; that the Court's order was
complied with even thought the Supreme Court of Justice of Lima, by decision
of October 14, 1997, expressed its disagreement with the tenor and scope of
the judgment of the Inter-American Court, with particular regard to operative
paragraphs four and five, inasmuch as, in its view, the Peruvian jurisdictional
organs did not violate Article 8(4) of the Convention which concerns the
principle of res judicata or double jeopardy. Nor did the judgment specify
whether the decision to order the release was a dismissal of the case, a
supranational judicial pardon, or a supranational review. It added that, in a
note of May 20, 1995, the President of the Court (hereinafter "the President")
pointed out, after consultation of the Permanent Commission, that the Court
was not empowered to, nor should it, intervene directly in the taking of