-7constituted rape, in the terms set forth in the judgment;11 (iii) the ill-treatment on
which the State must initiate an investigation is not limited to the act of sexual
violence, but Peru must take into account all the ill-treatment suffered by Ms. J. at the
time of her detention, taking into account what was established in the judgment (supra
para 19), and (iv) within the domestic investigations, the State must take into account
the other considerations and determinations of the Court regarding the ill-treatment
suffered by Ms. J., its seriousness and effects.12
B. The legal effects of the violation of rights mentioned in paragraph 227
of the judgment
Arguments of the Commission and the parties
22. The representative indicated that in paragraph 227, the Court recognized that
“the December 27, 1993, decision of the “faceless” Supreme Court did not constitute a
conviction, it did impair the rights of Ms. J.” The representative asked this Court for
“clarification [on the] manner [in which] said violation of the rights of Ms. J. […] were
'erased' […], in accordance with the principle contained in Article 63 of the American
Convention, restoring their right, as if the violation had not occurred.” It requested
clarification “if it was the intention of [the] judgment to give legal effect to said
December 27, 1993, judgment (which has been declared in violation of the American
Convention), during the period from December 27, 1993 to February 19, 2003” when
“Legislative Decree 926 […] annulled said judgement in Peru” and “if this were not the
case, what would be the legal consequence that would erase the effects that its
existence had on the rights of J.”
23.
The State it argued that the representative's request is inadmissible, insofar as
“it is an attempt to obtain a substantial alteration of the content of the judgment and
broaden the scope of the reparation measures ordered by the Court.” It indicated that
the Court “ordered various measures aimed at repairing the damage caused to Ms. J”
and that the representative forgets that the full restitution of rights is ordered
“whenever possible” because otherwise the Court determines the measures that it
considers adequate to repair the damages that the infractions produced.
24. The Commission indicated that despite the fact that the Court “established that
said decision violated both the guarantee of the presumption of innocence and the
guarantee of reasoning,” “the reparations section does not state the specific
consequence of the legal conclusions of the […] Court on the December 27, 1993,
decision.” It indicated that “throughout the proceedings, there has been no clarity as
to whether the basis of these proceedings against Ms. J. is said decision,” but that it
understands that, according to the considerations of this Court, “the act that supports
the State's punitive claim at present would be the Supreme Court of Justice-s
Regarding the first two points mentioned supra, the Court expressly indicated in its judgment that
“[t]he Court understands that rape is a form of sexual violence” and “based on the statements of the
presumed victim in the file of this case, it is not possible to determine whether the said sexual violence also
constituted rape as described above.” Case of J. v. Peru Preliminary Exception, Fund, Repairs and Costs,
supra, paras. 359 and 360.
11
In this regard, for example, the Court considered that “the sexual violence perpetrated by a State
agent of which Ms. J. was a victim and while she was being arrested is a serious and reprehensible act,
taking into account the vulnerability of the victim and the abuse of power deployed by the agent. Regarding
Article 5 of the Convention, the Court considers that the said act was both physically and emotionally
degrading and humiliating, so that it could have had severe psychological consequences for the presumed
victim.” Case of J. v. Peru Preliminary Objection, Merits, Reparations and Costs, supra, para. 361.
12