Case Summary and Outcome

The Supreme Court of Peru remanded and declared null and void the order acquitting Daniel Belizario Urresti Elera for the murder of journalist Hugo Bustíos Saavedra and the attempted murder of journalist Eduardo Yeny Rojas Arce. The case concerned two journalists, Bustíos and Rojas, who during their journalistic coverage in 1998, were attacked by soldiers dressed as civilians. During the incident, Bustíos was seriously wounded, however, Rojas managed to escape. While escaping Rojas witnessed one of the attackers detonating an explosive device above Bustíos’s body causing his body to explode. The Court observed that the lower court did not adequately weigh the elements of the trial, since it omitted to evaluate, or did not adequately evaluate, important evidence for the process. 

Facts

On November 24, 1988, journalist Hugo Bustíos Saavedra went to the “Castrotampa” barracks in Huanta  (Ayacucho), Peru, together with his colleague Eduardo Yeny Rojas Arce, in order to request permission to interview Victor Fernando La Vera Hernández, military and political chief, and to ask for authorization to cover a story about a recent murder committed by “Sendero Luminoso”. While giving permission, Army Commander Javier Landa Dupont spoke with Bustíos for a couple of minutes and asked the journalist about possible links between him and the “Sendero Luminoso” leader called “Sabino”, who had been captured.

On the same day, the two journalists went to Erapata by motorcycle. On their way, some individuals from military personnel in civilian clothes, began to fire on the journalists. Bustíos and Rojas stated that they were journalists, but the attackers did not stop firing. After being wounded, Bustíos fell off the motorcycle and asked Rojas to run away. While running, Rojas saw one of the attackers detonate an explosive above Bustíos’s body.

Before the incident, based on the reference to the terrorist criminal “Sabino”, the military political chief of Huanta, officer La Vera, was informed that Bustíos Saavedra was an alleged collaborator of the terrorist group “Sendero Luminoso”. Daniel Belizario Urresti Elera (the Defendant), as a member of the General Staff of the Counter-Subversive Base of Castropampa, ordered his subordinates to kill the journalist.

The Prosecutor’s Office charged Daniel, a Peruvian retired army general and former Minister of Interior, as perpetrator-by-means for the “murder with great cruelty and by explosion”, also considered a crime against humanity, of Bustíos and attempted murder of Rojas. Subsequently, a complementary accusation was issued when the testimony of Ysabel Rodríguez Chipana was received at the oral trial before the National Criminal Court of Peru. The witness stated that she saw Daniel at the scene of the murder. On October 4, 2018, the National Criminal Court of Peru, based on the evidence and testimonies, acquitted Daniel (‘Impugned Order’).

The Superior Prosecutor and Bustíos’s representative appealed the Impugned Order (‘solicitud de nulidad’) and claimed to declare it null and void. Both the Prosecutor’s Office and Bustíos’s representative contended the significance of applying the notion of crime against humanity, which was omitted in the Impugned Order. Furthermore, they also questioned the evaluation of the testimonial and documentary evidence made during the trial, particularly concerning the decisive testimonies of Ysabel Rodríguez Chipana, Amador Armando Vidal Samberto, and Edgardo Nicolás Montoya Contreras, asserting that the right to prove and the right to due process were violated. 

Decision Overview

On October 4, 2018, a five-judge bench of the Supreme Court of Peru delivered the decision. The primary question before the Court was to determine whether the Impugned Order was null and void.

The Court studied the configuration and normative scope of crimes against humanity and their application to the specific case, and also reviewed the grounds for the request for annulment. The Court referred to Article 7(1) of the Statute of the International Criminal Court to examine the trajectory of the concept of “crime against humanity”. The Court observed that the murder of Bustíos Saavedra as well as the attempted murder of Rojas Arce “fully meets the objective and subjective requirements that identify crimes against humanity.” [para. 13]

The Court reasoned that the crimes were carried out by State agents during a period of strong State repression. Further, it noted that the punishable conducts transcend the isolated, unpremeditated, and individual sphere by being committed within the framework of a generalized and systematic State policy of elimination of alleged terrorists. The Court went ahead to note that the allegation of  Bustíos Saavedra and Rojas Arce had been part of the criminal organization “Sendero Luminoso” was not proved during the trial, thus, the defense can be exercised.

When examining the procedural claims for the nullity of the judgment, the Court recognizes multiple errors in the evaluation of decisive evidence for the proceeding. The Court noted that the National Criminal Court did not take into consideration the testimony of Abilio Arroyo Espinoza, a journalist who stated that he had interviewed Amador Armando Vidal Sambeto, and Edgardo Nicolás Montoya Contrerar, who specified Daniel’s intervention. Moreover, the Impugned Order did not take into account the documentary evidence including the e-mails exchanged, and the photographs taken by these witnesses.  

The Court noted that, in addition, the National Criminal Court did not evaluate the testimonies of  Sambento and Contreras in conformity with Court’s jurisprudence and doctrine. Correspondingly, the Court observed that the Impugned Order undermined the reliability of Ysabel Rodriguez’s testimony due to the alleged “subjective incredibility” and it neglected to distinguish her testimony from other witnesses. Furthermore, the Court pointed out that the Impugned Order did not consider the documentary evidence relevant to the process and declarations of specialists in military matters. The Court declared the Impugned Order null & void and concluded that the National Criminal Court did not fully weigh all the evidentiary elements.   

The Supreme Court directed for a new oral trial to consider the evidence and testimonies which were omitted or improperly evaluated in the Impugned Order.