Practice Relating to Rule 150. Reparation
Peru’s Law Creating the Comprehensive Reparations Plan (2005) states:
The purpose of the present law is to create the legal framework for the Comprehensive Reparations Plan – CRP for victims of the violence that took place between May 1980 and November 2000 in accordance with the conclusions and recommendations in the report of the Truth and Reconciliation Commission.
The Law also states:
For purposes of the present law, beneficiary is the victim, relatives of the victims or groups who … were subjected to a violation of their human rights on an individual basis and those who experienced harm to the social fabric [of their community] by being subjected to a violation of their collective rights[. They] … shall benefit from the Comprehensive Reparations Plan recommended by the Truth and Reconciliation Commission.
The Law further states:
For purposes of the present law, victims are considered to be persons or groups of persons who have experienced acts or omissions that constitute human rights violations such as enforced disappearance, kidnapping, extrajudicial execution, murder, forced displacement, arbitrary detention, forced recruitment, torture, rape or killings, as well as the relatives of persons who died or disappeared within the timeframe stipulated by Article 1 of the present law.
Peru’s Regulations to the Law Creating the Comprehensive Reparations Plan (2006) state:
are actions taken by the State for the benefit of the victims of the process of violence mentioned in Article 3 of the Law [Creating the Comprehensive Reparations Plan] in order to explicitly recognize them as victims. [Such actions have the objective] of providing the victims with access to justice, restitution of their rights, the resolution of after-effects of human rights violations as well as material and moral reparation, be it specific or symbolic, for the harm suffered.
The Regulations also provide:
State action regarding reparations shall be based on concurrent and specific actions carried out by State entities and shall be aimed at promoting programmes of reparations that allow victims of the process of violence to obtain restitution for the rights violations they experienced during the internal armed conflict.
The Regulations further states:
The determination and allocation of reparations for victims and beneficiaries under any reparations programme for victims and beneficiaries shall be carried out in a way that treats persons in the same situation equally and proportionately and that treats differently persons in different situations.
The Regulations also states:
The determination and allocation of reparations under any reparations programme for victims and beneficiaries shall be carried out without any distinction, exclusion, restriction or preference of any nature that would have the objective or consequence of annulling or discrediting the acknowledgment, allocation and enjoyment of the reparations in conditions of equality.
The Regulations further states:
The Comprehensive Reparations Plan … has the following objectives:
d) To provide reparation and/or compensate for the human, social, moral, material, and economic harm caused by the process of violence to the affected persons, families, indigenous communities and populations.
The Regulations also states:
Victims shall be considered to be any persons or groups of persons who during the process of violence suffered from acts or omissions that violated international human rights law, such as:
a) extrajudicial execution,
c) enforced disappearance,
g) forced displacement,
h) arbitrary detention,
i) forced recruitment,
j) violation of due process.
In 2009, in the Fujimori case, the Special Criminal Chamber of Peru’s Supreme Court of Justice was called upon to decide whether a former Peruvian president incurred criminal and civil liability for acts committed in 1991 and 1992 in the context of anti-terror operations, including the abduction of two individuals (the so-called SIE Basement Case) and the murder and injury of numerous individuals in Barrios Altos and at the so-called La Cantuta university in Lima. All of these acts were carried out by State officials whilst [the accused] was president. The Court held:
[T]o the extent that the acts before us qualify as “… gross violations of international human rights law and serious violations of international humanitarian law constituting crimes under international law, …” as identified in the fourth principle [of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of IHL (2005)], the provisions of the [aforementioned] Basic Principles and Guidelines are applicable before domestic courts.
In 2004, in its fourth periodic report to the Committee against Torture, Peru stated:
120. The TRC [Truth and Reconciliation Commission] laid down the duty and right to compensate the victims of violence in the following terms:
According to international human rights law, the responsibility of the State arises when the latter fails to fulfil its primary obligation to respect and ensure respect for internally recognized human rights. This obligation includes … the duty to provide compensation for victims.
121. Insofar as, according to the TRC, the Peruvian State has the duty to offer due compensation to all victims of violence, including torture victims, the TRC recommended a Comprehensive Plan for Reparations, the general objective of which is: “to repair and compensate the violation of human rights as well as social, moral and material losses or damage suffered by victims as a result of internal armed conflict.” This plan makes provision for various types of reparations …
Comprehensive Plan for Reparations includes torture victims:
Generally speaking, the TRC considers that victims include … all persons or groups of persons who for the purposes of or on account of the internal armed conflict which the country underwent between May 1980 and November 2000 have been subjected to any acts or omissions that violate the rules of international human rights law, such as: enforced disappearance, abduction, extrajudicial execution, assassination, enforced displacement, arbitrary arrest and violation of due process, enforced recruitment, torture, rape, and wounds, injuries or death inflicted in the course of attacks that violate international humanitarian law.
123. In order to follow up the TRC’s recommendations and to coordinate the implementation of public policies specifically aimed at the fulfilment of peace, reconciliation and collective reparation goals, the High Level Multisectoral Committee was set up with responsibility for monitoring State actions and policies in the areas of peace, collective reparation and national reconciliation. Within one year of the issue of the TRC’s final report, the High Level Committee found that a number of steps had been taken to achieve collective reparations, including the following: approval of the Framework Programme of State Action in the Area of Peace, Reparation and National Reconciliation; the Supreme Decree extending the benefits of comprehensive health insurance to the victims of internal conflict suffering from mental health problems; and the Ministerial Decision setting up a list of victims’ organizations.
[Emphasis in original; footnotes in original omitted]