44
3.
Everyone has the right to the protection of the law against such interference or
attacks.
177. The Court considers that a judicial proceeding does not constitute, in itself, an
unlawful attack on the honor or dignity of a person. The proceeding serves to
resolve a dispute, even though it may indirectly cause annoyance to those who are
subject to the prosecution. Moreover, it is almost inevitable that this should be so;
to the contrary, the practice of contested lawsuits would be totally excluded.
Furthermore, the punishment applied at the end of such a proceeding is not designed
to harm those personal values, in other words, it does not attempt to discredit the
person convicted, as occurs in the case of infamous punishment, which specifically
suspends this intention. Accordingly, the Court considers that, in the instant case, it
has not been proved that the Peruvian State violated, per se, Article 11.
178. Moreover, the Court considers that any effects on the honor and good
reputation of Gustavo Cesti Hurtado that might result from his detention, prosecution
and conviction by the military justice system, would derive from the violation of
Articles 7, 8 and 25 of the Convention, which have already been allowed by the
Court in this judgment. These effects could be considered in the reparations stage.
XV
ON ARTICLE 21
179. The Commission maintained that the State violated the right to property of
the victim, because the embargo on his property was not a consequence of due
process neither was it ordered by a competent and impartial judge. Moreover, the
Commission stated that, by keeping the victim imprisoned, Peru had violated his
“right to work”, which resulted in indirect damages.
180. In this regard, Peru alleged that the right to property of Gustavo Cesti
Hurtado “has never been violated” and that the arguments of the Commission were
not “corroborated” by the facts of the case. Likewise, it made some observations on
the fact that neither did the payment to which the victim was condemned constitute
a violation of the right to property.
181. Furthermore, the State alleged that it had not unduly embargoed, confiscated
or expropriated the assets of Gustavo Cesti Hurtado, it had not ordered that he
should cease to receive his remuneration’s and that “it had only made effective the
precautionary measures designed to ensure compliance with a possible order of
compensation or of reparation, as occurred in the… criminal proceeding”.
182.
Article 21 of the Convention establishes that
1.
Everyone has the right to the use and enjoyment of his property. The law may
subordinate such use and enjoyment to the interest of society.
2.
No one shall be deprived of his property except upon payment of just
compensation, for reasons of public utility or social interest, and in the cases and
according to the forms established by law.
3.
Usury and any other form of exploitation of man by man shall be prohibited by
law.
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