Background
Request

By letter dated on the 7^th June 2011, the Constitutional Court of Peru requested the Venice Commission an amicus curiae brief on the case Santiago Bryson de la Barra et al. (case No. 1969-2011-PHC/TC) 

Issues at stake

The background to this request is the lodging at the Constitutional Court of Peru of several complaints (and among them, the one introduced by Mr Bryson and others) against the criminal proceedings and sentencing of those related to the facts which happened in June 1986 in the prison “El Frontón”, which ended with the destruction of the so called blue pavilion and more than 100 deaths. 

The case therefore concerns the qualification of crimes against humanity and statutory limitations, as in the specific case, it is discussed whether it is possible to prosecute those crimes taking into account that domestic legislation establishes limitations to prosecution. Three questions were asked to the Commission:

a.      What case-law has been issued on crimes against humanity by other courts and constitutional equivalent bodies?

b.       How have crimes against humanity been defined and established?

c.      Apart from this case-law, what type of facts have been considered as constituting crimes against humanity?

Conclusions

In Europe, experience has been gained especially in the prosecutions of crimes committed during World War II, crimes of communism, and crimes committed by autocratic or totalitarian regimes in other parts of the world but which have arrived before the European courts. The prosecutions have confronted national courts of the European countries, and occasionally also the ECtHR, reviewing many of the national decisions. In the Latin-American experience, dictatorships and so called State terrorism have resulted in forced disappearances, extra-judicial executions, torture, etc. Often, these actions could qualify as crimes against humanity and many countries have had to face their past and try to handle it. The Inter-American Court of Human Rights has built a consistent case-law, holding that crimes against humanity cannot have statutory limitations and the criminal procedural rules on prescriptibility do not apply to them.

All these experiences have resulted in a series of uneasy dilemmas, which can be summarised up as follows:

1. Definition of crimes against humanity. Quite a general consensus exists that the category of crimes against humanity emerged in international law (at the latest) by the mid-20th century. There have been no extensive discussions on the general requirements of crimes against humanity and the concrete offences falling into this category, in national European courts and the ECtHR. The definition of crimes against humanity which has been used by national Latin-American jurisdictions has been the definition contained in the Statute of the International Criminal Court. The case-law indicates a gradual disappearance of the war nexus requirement in the second half of the 20^th century, a hesitation over the general policy requirement and an uncertainty about the notion of civilians. Most prosecutions have involved charges of murder, forced disappearances, extra-judicial killings or deportation, which seem relatively clear.

2. Legality/Nullum crimen sine lege. The prosecution of past crimes is not considered retroactive or in violation of the principle of legality if it is proved that at the time of their commission, those crimes could have been qualified as crimes against humanity under applicable rules of international law. In that case, prosecution and punishment were foreseeable for perpetrators. Past crimes may also be prosecuted under common criminal legislation. Then, the objections mostly arise in respect of the interpretation and application of this legislation and can be addressed by means of natural-law (justice) based arguments.

3. Statutory limitations for crimes against humanity. Crimes against humanity are largely seen as not having statutory limitations. This quality is ascribed to them by virtue of international law, though there is uncertainty as to whether this constitutes an inherent feature of those crimes or has developed gradually by means of treaty or customary rules. Those in favour of the latter view moreover disagree as to whether such a rule/treaty provision only produce effects towards events occurred after its creation/ adoption or whether it can (or even must) be applied to any crimes against humanity irrespective of the date of their commission. The non-applicability of statutory limitations to crimes against humanity (qualified as such or as common crimes), or their suspension for the period in which these crimes could not be prosecuted due to political reasons is also sometimes derived from the principles of objective justice and internal morality of law.

4. Sentences for crimes against humanity. Various countervailing factors play a role in the determination of the severity of sentences to be imposed upon perpetrators of past crimes against humanity. Usually, the decision has to be made on an ad hoc basis, taking into account the concrete circumstances of the individual case. Yet, there is a clear tendency in Europe and in the international criminal courts case-law to distinguish between those who ordered the crimes and those who merely executed them and to impose harsher penalties upon members of the former group.

Text of the amicus curiae brief - Doc. CDL-AD(2011)041