¿Manos limpias y corazón puro?: La aplicación de la doctrina de manos limpias por parte de la Corte Interamericana de Derechos Humanos
| Autor | Renato Antonio Constantino Caycho |
| Cargo | Docente a tiempo completo del Departamento de Derecho de la Pontificia Universidad Católica del Perú, Perú. |
| Páginas | 13-36 |
13
Renato Antonio Constantino Caycho
Estudios de Derecho, N.o 173 ene-jun 2022, ISSN-L 0120-1867
Doi: 10.17533/udea.esde.v79n173a01
Clean hands and a pure heart?: The application of the clean
hands doctrine by the Inter-American Court of Human Rights
“El de manos limpias y de puro corazón, el que no pone su alma en cosas
vanas ni jura con engaño. Ese obtendrá la bendición del Señor
y la aprobación de Dios, su salvador”.
Salmos, 24: 4-5
“Dante comprende y no perdona; tal es la Paradoja insoluble”
El verdugo piadoso. Jorge Luis Borges
1. Introduction
Situations where critical human rights violations have occurred require truth
justice reparations in the form of indemnizations or other measures and ins-
titutional reforms In transitional justice contexts these measures may arrive at
different times and with different intensities That is the case of Peru From
to Peru was the scene of a noninternational armed conlict Truth and Re-
conciliation Commission of Peru Peruvian Armed Forces fought the armed
movements of Partido Comunista del Perú - Sendero Luminoso (“Shining Path”)
and Movimiento Revolucionario Tupac Amaru (“MRTA”) (Truth and Reconciliation
Commission of Peru II By the end of the conlict more than persons
had died In the transitional justice process that followed the engagement of the
InterAmerican Human Rights System IAHRS especially the InterAmerican
Court of Human Rights IACrtHR has been particularly important since it has
developed or conirmed certain standards regarding truth Olivera Astete
and justice LaPlante However compliance with InterAmerican Courts
decisions is not guaranteed Political stances of the Legislative the Judiciary and
the Executive have a signiicant inluence on how or even if these decisions are
implemented Hillebrecht
In the case of reparations the domestic reparations program in Peru decided
to exclude those who were members of armed groups LaPlante Domestic
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Clean hands and a pure heart?: The application of the clean hands doctrine...
Estudios de Derecho, N.o 173 ene-jun 2 022, ISSN-L 0120-1867
Doi: 10.17533/udea.esde.v79n173a01
reparations were established via the “Integral Reparations Plan” (Plan Integral
de Reparaciones following the Truth and Reconciliation Commissions TRC
recommendations The program aimed to fulill the States obligation to remedy
human rights violation through a series of individual collective and symbolic repa-
ration measures However Perus TRC speciically recommended that reparations
should not be made available to members of subversive groups as persons who
had undertaken violent actions against the State and the rule of law could not be
considered victims Truth and Reconciliation Commission of Peru IX
p Congress followed said recommendation when the Reparations Program
Act was passed in .
This exclusion has been criticized since as the Truth and Reconciliation
Commission itself acknowledges Truth and Reconciliation Commission of Peru
IX p there does not seem to be any rule in International Law that
provides any grounds for excluding certain groups from accessing reparations.
In International Law it goes unchallenged that no one should be excluded from
the possibility of claiming human rights violation in front of a domestic or inter-
national court Likewise when a violation of human rights violation has been
identiied the victim has a right to receive reparations for the violation In the
Inter American System reparations can take multiple forms integral reparations
indemnizations satisfactory measures and nonrepetition assurances González
Napolitano et al In transitional justice contexts this means that everybody
regardless of their participation in hostilities should be able to claim for justice
and reparations LaPlante
In the case of Peru reparations for human rights violations in the context of
armed conlict have been problematic especially regarding victims that have been
members of armed groups As LaPlante stated regarding the Peruvian conte xt when
the IACrtHR issued its decision regarding the Castro Castro case several public
oficers and politicians mentioned that they would not comply with the reparations
decision LaPlante This was because the decision awarded reparations to
former members of armed groups amongst other victims Then President Ollanta
Humala also stated regarding the Cruz Sanchez vs. Peru case, that the State would
not pay one sol to any terrorist while awaiting the Courts decision Redacción
Radio Programas del Perú
The Inter American Court has not explicitly evaluated the exclusion The Court
in had the chance to address the issue in the case of Espinoza Gonzales vs.
Article Exclusions
Members of subversive organizations and persons processed for the crimes of terrorism or gloriication of terrorism
are not considered victims until the deinition of their status before the law and thus are not beneiciaries of the
program established by this law” (Own translation).
Integral Reparations Program Act
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