crimes of terrorism under Decree Law 25475, [and specify] the violations of due process.”
31.
Bearing in mind the foregoing, the Commission offered the expert opinion of Patricia
Viseur Sellers on “the different forms of sexual violence and their characterization in light of
international human rights law. The expert witness [would] also refer to elements that are
relevant to characterize different forms of sexual violence as acts of torture, as well as
international obligations to investigate and punish the perpetrators in such cases. Finally,
the expert witness [would] testify on the international standards to be considered when
deciding on reparations in cases of sexual violence.” In this regard, the Commission noted
that “[t]he type of sexual violation that occurred to the detriment of the victim in this case
has not been examined by the Court, nor has it been legally defined as such. Therefore, the
Commission considers that it would be useful for the Court to have conceptual elements and
as well as a study of the relevant case-law in international criminal law, in international
human rights law and in comparative law on this matter.” It added that “the expert opinion
[would] also contribute to the Court’s evidentiary analysis of such facts.” The Commission
concluded that “the Court’s decisions on these matters would necessarily influence the
development of inter-American case law and, in that regard, the proposed expert opinion is
related to the inter-American public order.”
32.
The Commission also offered the expert opinion of Stefan Trechsel on “international
standards on matters of criminal due process that are relevant to the analysis of restrictions
to due process, for example, to the possibilities of exercising the right of defense, in the
context of the legal frameworks designed to prosecute and punish terrorism. The expert
witness [would] provide elements to analyze the compatibility of these restrictions with the
American Convention.” The Commission noted that, with regard to trials for terrorismrelated cases in Peru, the Court has not yet examined in detail the “various restrictions on
the right to defense, the violation of the presumption of innocence and the retroactive
application of substantive points of Decree Law 25475]”, including in this case. The
Commission further noted that “this case has the peculiarity that, in determining the
measures of reparation relative to the victim’s procedural situation and the measures of
non-repetition, the Inter-American Court must take into account the amendments
introduced at the domestic level as a consequence of the actions taken by the Constitutional
Court in 2003 and on which the Court did not comment in detail in the case of Lori
Berenson Mejía. The Commission added that “the Court’s decisions on this matter will
contribute to the design of legal frameworks in other States of the region in relation to
terrorism-related crimes, this being an issue [of] particular relevance in the hemisphere,
especially as regards the restriction of procedural guarantees as a consequence of the
nature of the crime.”
33.
The representative considered “important the aspects of public order emphasized in
the expert opinions offered by the Commission.”
34.
For its part, the State noted that there is “a clear and obvious discrepancy in the
object of the proposed expert opinion of [Mrs.] Viseur,” given that “the object of the expert
opinion mentions sexual violence as its frame of reference, whereas the justification for the
expert opinion mentions rape as a frame of reference”, and requested clarification. In that
regard, Peru emphasized that “[t]he Commission insists that Mrs. J was raped, even though
the petitioner herself has denied it in her brief of pleadings, motions and evidence.” The
State indicated that since “the Court […] has heard several cases related to [the issue of
rape …] and a significant body of case-law exists in this regard, the presentation of this
expert opinion is not warranted under the terms stated by the Inter-American Commission.”
35.
Regarding Mr. Trechsel’s expert opinion, the State noted that following several
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