103
repair it adequately.276 To this end, the Court has based itself on Article 63(1) of the
American Convention, according to which:
If the Court finds that there has been a violation of a right or freedom protected by this
Convention, the Court shall rule that the injured party be ensured the enjoyment of his
right or freedom that was violated.
It shall also rule, if appropriate, that the
consequences of the measure or situation that constituted the breach of such right or
freedom be remedied and that fair compensation be paid to the injured party.
231. The responsible State may not invoke provisions of domestic law to modify or
fail to comply with its obligation to provide reparation, all aspects of which (scope,
nature, methods and determination of the beneficiaries) are regulated by
international law.277
*
*
*
232.
It is evident that the proceeding against Lori Berenson in the military
jurisdiction was conducted on the basis of legislation that was incompatible with the
American Convention, thereby violating the right to due process embodied in the
Convention.
233. As has been said above (supra para. 222), the provisions contained in the
emergency legislation adopted by the State to deal with the phenomenon of
terrorism, in particular Decree Law No. 25,659, and the procedure regulated in
Decree Law No. 25,475, which were enforced in the case of Lori Berenson during the
military trial, violated Article 2 of the American Convention. The fact that these
decrees had been promulgated and were in force in Peru when the facts occurred
meant that, at the time of the trial, the State had not taken adequate measures in
domestic legislation to give effect to the rights embodied in the Convention, even
though the State had ratified the American Convention.
234. The Court notes that some provisions of Decree Law No. 25,475 have been
reformed and that Decree Law No. 25,659 was declared unconstitutional in the
judgment delivered by the Constitutional Court on January 3, 2003 (supra para.
88(7)). Furthermore, the Executive issued Legislative Decrees No. 921 of January
17, 2003, No. 922 of February 11, 2003, and Nos. 923 to 927 of February 19, 2003,
which, among other provisions, contained the jurisprudential criteria set out in the
said judgment (supra para. 88(8)). In this regard, the Court assesses and
underscores the efforts made by the State in its recent legislative reforms, because
these denote significant progress on the matter.
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235. As regards the other forms of reparation, the Court deems that, taking into
account the findings of this judgment with regard to the military and the civil trials,
and in accordance with international case law, this judgment constitutes per se a
276
Cf. Case of Tibi, supra note 3, para. 222; Case of the “Juvenile Reeducation Institute”, supra note
3, para. 257; and Case of Ricardo Canese, supra note 3, para. 192.
277
Cf. Case of Tibi, supra note 3, para. 224; Case of the “Juvenile Reeducation Institute”, supra note
3, para. 259; and Case of Ricardo Canese, supra note 3, para. 194.
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