Herrera v Canevaro and Company
| Jurisdicción | Perú |
| Número de expediente | 149 |
| Emisor | Corte Suprema (Perú) |
| Fecha | 25 Mayo 1927 |
Denial of Justice — Equality of Treatment of Citizens and Aliens — Grounds of Impugning Judgments of National Courts.
The Facts.—Cantero Herrera, a Cuban national residing in Lima, Peru, filed suit, on 22 July, 1913, as agent for certain non-resident Cuban citizens, against a Peruvian national named Cesar Saco y Flores, in the Civil Court of Lima, for the partition and distribution of an in-heritance in the estate known as “Huayto.” Later, on 29 September, 1913, the Sociedad Canevaro & Cia, also of Lima, was made a co-defendant as the purchaser of the estate from Saco y Flores, and the Court was asked to declare the sale to it void.
The court of first instance, on 10 January, 1919, decided against Cantero Herrera and his co-plaintiffs on three grounds: (a) That they had shown no right to the distribution prayed for; (b) that the sale by Saco y Flores to Canevaro & Cia was a valid one; and (c) that the action was barred by the statute of limitations. This judgment was affirmed by the Superior Court on 23 September, 1920, and by the Supreme Court on 21 August, 1921.
Nothing further was done by the plaintiffs, but on 28 January, 1927, the Cuban Envoy Extraordinary and Minister Plenipotentiary at Lima addressed a Note to the Foreign Minister of Peru, which impugned generally the above-mentioned judgments, laid particular stress on alleged errors of law on the question of the “prescription” of the action, and concluded by alleging that the judgments were tantamount to a denial of justice to the plaintiffs on the ground that they were contrary to Peruvian law; wherefore he called upon the Government of Peru to acknowledge that there had been a denial of justice and to make due reparation. The matter was referred by the Executive to the Supreme Court.
Held: That the claim, in so far as it is based on denial of justice, must fail.
“Between Peru and Cuba there is no treaty regarding foreigners; but the tenor of our laws and the principles generally accepted, especially those proclaimed in American international law, are sufficient to make the question raised by the diplomatic representative of Cuba doctrinally simple.
“The condition of foreigners in Peru, from the point of view of private rights, is not left entirely to the provisions of international convenience, nor subordinated to the simple fact of reciprocity, since Articles 32 and 33 of our Civil Code pro vide that ‘civil rights are independent of the status of the citizen,’ and that ‘foreigners enjoy in Peru all rights concerning the security of their persons and property and the free administration of the same.’
“Equality between natives and foreigners before the Civil Law implies their equality as to judicial competency and form of proceeding in the same subject-matter; hence, foreigners enjoy in Peru the same rights, means, recourses and guarantees as nationals to sue for and defend their rights; the cautio judicatum solvi (which, as a dilatory objection against the alien plaintiff, transient or without known assets, was allowed under the Code abrogated in 1912) is no longer in force, not withstanding that it is still sanctioned by a legislation of some countries, including that of Cuba. …
“The diplomatic representative of Cuba agrees, as must be true, that the ordinary suit commenced by Cantero Herrera against Saco and Canevaro came to a close with the judgment of the Supreme Court, dated 11 August, 1921. As a result, that judgment has placed a final, absolute and definitive seal upon all questions of a legal and juridical character ventilated in the litigation between the said parties, in conformity with the precepts of the Constitution and the laws of Peru, from whose sovereignty the foreigner litigating in the national jurisdiction cannot abstract himself, and which merely give positive expression to the old classic adage res judicata pro veritate habetur. …
“There is no doubt that nations reciprocally owe one another justice, and are bound to extend it to foreigners having recourse to their tribunals and to give them the opportunity to obtain it in the like measure with nationals; but the good understanding among them, harmonising all interests, has raised to the category of an international law the authority of the thing adjudged, and no self-respecting country will countenance that any other country should impeach the force and legality of an executed judgment, rendered regularly by its authorities, as an emanation of sovereignty.
“It is on this account that, in keeping with our political Constitution, it belongs to the President of the Republic, who represents abroad the national sovereignty, ‘to enforce, obligatorily, the judgments and resolutions of the tribunals and courts’ (Article 121, par. 10); and Article 39 of the same Constitution contains this important provision, which it is timely to mention with respect to a claim growing out of litigation over territorial property: foreigners are, as to their property, in the same condition as Peruvians, and cannot in any case invoke with regard thereto an exceptional situation, nor have recourse to diplomatic claims, …
“It is erroneous to suppose that the conclusion of a proceed ing in which a foreigner has failed, marks the occasion for the transference of the issue to the diplomatic plane. If it were so, the passions accumulated around matters of an entirely private nature would constantly poison the best cemented international relations.
“In the relations of nation to nation, the rule is respect for the sovereignty of friendly powers, typified in the authority of its judges and of its decisions. The exception is the claim based on the motive of denial of justice; but to make such claim conformably with the principles and usages of inter national law, it is necessary that the case be one of the utmost seriousness, that the denial of justice be manifest or notorious, that is, that the hearing which the foreigner claims, or the recourse which he interposes, has been denied him, and in general that the exercise of his rights and rights of action is interfered with contrary to law, or is subjected to unwarranted delays; because all this involves and constitutes an odious exception, a legal infringement which can be established objectively, without offending the jurisdiction of the country, and which compromises the responsibility of the State.1
“Cantero Herrera has not been denied a hearing by our tribunals, nor the interposition of any recourse or means of defence permitted by the law, nor has he been subjected to any objectionable treatment. Neither can he aver, as has been alleged in other cases, that he has been cited before a court lacking jurisdiction, or has been judged without being summoned; being the plaintiff, he has selected the court and the proceeding, and with the most absolute freedom has pleaded at every stage, by word of mouth and in writing, everything he has deemed necessary in support of his right. Of what, then, does he complain? Of not having won the action? It is not on that condition, nor on any other, that the portals of justice are thrown open to the public author ities, to foreigners, or to any one else.”
1 The Court referred here to the Pan-American Conferences held in 1889 at Washington, and in 1901 in Mexico, respectively, although without the attendance of Cuba, whose autonomy had not been as yet established, and to the recommendations approved by them with regard to the status of foreigners.
The Court also referred to Article 5 of a treaty between Peru and the Argentine Republic, of 9 March, 1874, and to Article 6 of a treaty between Spain and Peru, of 18 June, 1898; “Spaniards in Peru, and Peruvians in Spain, shall have no right to diplomatic intervention except in the event of manifest denial of justice, that is, refusal to administer it or negligence in its administration.”
