By petition lodged with the Inter-American Commission on Human
Rights (hereinafter “the Commission” or “the IACHR”) on April
13, 1998, Mrs. Amelia Villavicencio de Rosadío (hereinafter “the
petitioner”) reported that the Republic of Peru (hereinafter
“Peru,” “the State,” or “the Peruvian State”) violated, to
the detriment of her son, Mr. Jorge Rosadío Villavicencio (hereinafter
“the victim”) the principle of legality, and the rights to personal
liberty, to privacy, and to a fair trial, as enshrined in Articles 9, 7,
11, and 8, respectively, of the American Convention on Human Rights
(hereinafter “the Convention” or “the American Convention”), in
conjunction with Article 1(1) of the Convention.
The violations reported are related to alleged irregularities
committed by the judicial branch in the criminal proceedings against the
victim, in prosecuting him for the crime of possession and trafficking
of narcotics. In addition, also appearing in this case, as
co-petitioner, is Carolina Loayza Tamayo, Esq.
With respect to the admissibility of the petition, the petitioner
argues before the Commission that the relevant domestic remedies have
been exhausted, and that the petition was lodged within the time period
provided for in the Convention, based on when she was notified of the
final decision in the domestic system. In addition, petitioner notes
that she is not asking the IACHR to review this case as if it were on
appeal, but rather, to verify whether her son’s rights under the
Convention were violated.
The State, in turn, has informed the IACHR that it must expressly
declare this petition inadmissible, pursuant to Articles 47 and 48 of
the American Convention, for being manifestly out of order.
After analyzing the arguments of the parties and compliance with
the admissibility requirements provided for in the Convention, the
Commission decided to declare the petition admissible, in keeping with
the provisions of Articles 46 and 47 of the American Convention, with
respect to possible violations of Articles 1(1), 7, 8, and 9, of the
American Convention, and initiate the procedure on the merits.
The Commission also decides to report this decision to the
parties, to publish it, and to include it in its Annual Report to the
OAS General Assembly.
PROCESSING BY THE COMMISSION
On July 14, 1998, the Commission admitted the case, assigning it
number 12.031. The pertinent parts of the complaint were sent to the
Peruvian State, and it was asked to provide information within 90 days. On August 18, 1998, the Commission sent the State the annexes
to the complaint, at its request, and gave it 90 days to submit
observations, counted from when they were received; on October 5, 1998,
the petitioner submitted additional information on the complaint.
By communication of November 13, 1998, the State submitted its
answer brief. On January
18, 1999, the petitioner presented her observations regarding the
On February 22, 1999, the State submitted additional information
with respect to the case. The IACHR sent it to the petitioners, and on
May 21, 1999, the petitioners submitted their observations on the
information remitted by the Government of Peru.
Then, on June 3 and November 3, 1999, the petitioner sent updated
information on the victim’s situation.
On January 3, 2000, the Commission received additional
information submitted by the State, and forwarded it to the petitioner.
Since then, the parties have continued to provide additional information
on the case, and continue to stand by their arguments.
POSITIONS OF THE PARTIES
The petitioner argues that on June 30, 1994, her son Jorge Rosadío
Villavicencio, a Peruvian Army officer, was notified of the 1994 Plan
for Change of Location of the Peruvian Army, by which he was assigned,
as of July 1, 1994, to the post of Chief of the Sión Military Base of
the Fifth Military Region, “Leoncio Prado” detachment, Intelligence
Company Nº 341, based in the city of Tarapoto, department of San Martín.
She states that Mr. Rosadío Villavicencio assumed his post and
his direct superior, (Peruvian Army) Col. Emilio Murgueytio entrusted
him with an intelligence mission in his capacity as Chief of the Sión
Base: to carry out the “Angel” Operations Plan, classified as
“secret,” which involved infiltrating drug trafficking organizations
in order to dismantle them. She alleges that he was told that the effectiveness of the
infiltration he was to carry out depended on him “passing himself off
as a corrupt officer.” This intelligence mission began during the
first part of August 1994.
Soon thereafter, on September 25, 1994, Mr. Rosadío
Villavicencio was informed by Memorandum Nº 217/SLP/K-1/20.04 of that
same date that he had been accused of having committed the following
crimes: Illicit drug trafficking (Article 296 of the Criminal Code), in
the regular courts, and, for the following offenses provided for in the
military justice code: offense against the duty and dignity of the
office (Article 200); falsity (Article 299), negligence (Article 238),
offense against the administration of justice (Article 302(4)), abuse of
authority (Article 180(8)(a)), and disobedience (Article 158, also of
the military justice code). Accordingly,
she argues, Mr. Rosadío Villavicencio was subjected to multiple
prosecutions on the same facts, for he is the subject of an
administrative disciplinary proceeding, investigation and prosecution
for offenses set forth in the Military Justice Code, in the military
courts, and in the regular courts for drug trafficking, all stemming
from the same facts.
With respect to the administrative disciplinary proceeding, she
alleges that even though Jorge Rosadío Villavicencio is an officer of
the Peruvian Army, that proceeding was under the Investigative Council
for Subaltern Officers, and that in its session of February 7, 1995, it
decided to have him retired. That
to legalize this decision, the General Command of the Army, by
Resolution Nº 0527 CP/EP/CP-JAPE of March 3, 1995, issued in the city
of Lima, retired him by disciplinary measure effective February 24,
1995; this resolution was handed down when the victim was detained in
San Martín, far from the city of Lima, thus he was physically impeded
from taking action against it, and the resolution retiring him was
applied retroactively, thereby violating due process guarantees.
In relation to the actions taken in the military jurisdiction,
the petitioner notes that the proceedings against the victim began on
January 6, 1997, for allegedly committing offenses proscribed in the
Code of Military Justice. She
notes that the Consejo Superior de Guerra found him guilty as the
“perpetrator and person responsible for criminal negligence,” and
sentenced him to 16 months in prison, by judgment of November 29, 1996.
That resolution was later annulled by the Supreme Court of
Military Justice itself. In the new judgment handed down by the Consejo
Superior de Guerra Permanente of the Sixth Judicial Zone of
the Army, on December 15, 1997, he was found guilty of the offense of
disobedience, offense against the duty and dignity of the office,
falsity, negligence, and abuse of authority.
It was on this judgment that the Supreme Council of Military
Justice later ruled, on June 30, 1998, convicting him of the offense of
disobedience with a maximum sentence of 28 months in prison, of which he
was given notice, upon his request, on January 18, 1999.
She stated in this regard that the offense of disobedience
provided for in Article 158 of the Code of Military Justice provides
that “those who fail to carry out a service order without justified
cause commit disobedience.” The
petitioner argues that there was a “service order”; accordingly, the
acts performed by Mr. Rosadío Villavicencio were performed strictly in
keeping with it.
In relation to the proceedings in the regular courts, the
petitioner indicates that an investigation was opened into both the
victim and the other persons accused along with him of the crime of
illicit narcotics trafficking, with injury to the State.
She states that during the judicial investigation, the statement
by Mr. Rosadío Villavicencio on the so-called “Plan Angel” was
corroborated by the other members of the military accused with him and
by his superior, (Peruvian Army) Col. Emilio Murgueytio, who intervened
as a witnessed. In addition, she alleges that her son invoked the
objection of Nature of the Act, by which he argued the acts of which he
was accused were not criminally justifiable.
She indicates in this respect that Mr. Rosadío Villavicencio
filed a motion for nullity against the guilty verdict.
The Criminal Chamber of the Supreme Court of Justice ruled on the
motion declaring “there not being [nullity] in the judgment in terms
of the verdict, and there being nullity in the penalty imposed and the
reparation established.” In
addition, the Supreme Court increased the prison sentence from six to 15
years, and the payment of the civil reparation, without setting forth
any justification whatsoever. Accordingly, petitioner alleges that this ruling violates the
right to a fair trial enshrined in Article 8 of the American Convention.
Petitioner also asserts that the State violated the principle of
legality enshrined in Article 9 of the Convention, on administratively
sanctioning Mr. Jorge Rosadío Villavicencio while also convicting him
in the military court and the regular criminal court, even though he is
exempt from criminal liability under Peru’s domestic legislation, and
considering the circumstances of the case. For this reason, she alleges
that the deprivation of liberty suffered by the victim is arbitrary, in
violation of Article 7 of the Convention, and consequently in violation
of Article 11 of the same treaty as well, as his good name has been
With respect to the issues of admissibility, petitioner states in
consideration of all the foregoing that she is not seeking to have the
Commission act as a court of review in this case; rather, she seeks its
pronouncement with respect to the State’s responsibility for the
violation of human rights enshrined in the American Convention through
its judicial organs. In relation to the exhaustion of domestic remedies, she
alleges that all pertinent remedies have been pursued.
Finally, the petitioner has reported that the alleged victim is
currently free, under an obligation to justify his activities at the end
of each month, reporting to the judicial authority designated for this
B. The State
The State has not controverted the facts alleged by the
petitioner, and has devoted most of its responses to the Commission to
explaining the judicial proceedings related to this case.
Regarding the proceedings pursued against Mr. Jorge Rosadío
Villavicencio, the State indicates that “in both judicial proceedings,
military and regular, uniform resolutions have been handed down
regarding his legal situation, finding him criminally liable for the
unlawful acts investigated.” It
also states that “administrative liability is determined without
prejudice to criminal or civil liability.”
The State further notes that the crimes for which Rosadío
Villavicencio was tried and convicted are illicit drug trafficking and
crimes against the discipline of the armed institutions, in the modality
of disobedience, which must be investigated and resolved in keeping with
the procedures established in the domestic legal order, which determines
the jurisdiction for each of those punishable forms of conduct, the
regular courts (for the crime of illicit drug trafficking) and the
military courts (for the crime of disobedience).
Accordingly, he was not subjected to double jeopardy.
With respect to the administrative actions, the State indicates
that “by Resolution of the General Army Command Nº 0527
CP/EPICP-JAPE, of March 3, 1999, it was resolved to retire Mr. Rosadío
Villavicencio as a disciplinary measure, on February 24, 1995.”
It adds that said resolution “was not challenged in the
contentious-administrative jurisdiction, consequently it was consented
to.” In addition, the
rules that “contain the duties and rights of public servants also
indicate that public servants are responsible civilly, criminally, and
administratively for compliance with the statutory and administrative
provisions in the performance of public service, without prejudice to
disciplinary sanctions for breaches committed (Article 25 of Legislative
Decree Nº 276), and that public servants shall be administratively
sanctioned for the breach of statutory and administrative provisions in
the performance of their functions, without prejudice to the civil
and/or criminal liabilities they may incur (Article 153 of Supreme
Decree Nº 005-90-PCM).”
As regards the proceedings in the military jurisdiction, the
State argues that case Nº 1594-0648 was opened against Mr. Rosadío
Villavicencio and others, and that he was convicted and sentenced by the
Consejo de Guerra Permanente of the Sixth Judicial Zone of the
Army, on November 29, 1996, to 16 months in prison for the crime of
negligence. It adds that
Mr. Rosadío Villavicencio filed an appeal challenging the verdict,
which was resolved by final judgment of June 30, 1998, by the Supreme
Council of Military Justice, on a motion for review, which held Mr.
Rosadío liable for the crime of disobedience, and sentenced him to 28
months in prison. Later,
the judgment of the Superior Council was annulled by the Supreme Council
of Military Justice. The new judgment of the Consejo de Guerra
Permanente convicted him of the crimes of disobedience, violating
the duty and dignity of his office, falsity and negligence, and abuse of
authority. Later, the Supreme Council, ruling on review by final
judgment of June 30, 1998, convicted him only of disobedience. In this
regard, the State asserts that “there have not been two criminal
proceedings in the military courts, there was a single trial in which
the principles and rights of the judicial function provided for in the
Political Constitution have been applied, such as the right to appeal,
the right to not be punished without judicial process, the right to
reasoned rulings, and the principle of legality, among others.”
24. With respect to the proceedings in the regular jurisdiction, the State points out that the alleged victim, “in the full exercise of his right of defense, pursued the remedies he deemed advisable, such as the objection on grounds of nature of the act, a remedy whose purpose is to void the proceeding, based on the acts in question not being criminally justifiable.” The Criminal Chamber of the Superior Court of San Martín in this case, by judgment of April 17, 1996, duly reasoned and justified, declared that objection to be unfounded, and sentenced Jorge Rosadío to six years imprisonment, and to pay a sum for civil reparations. The record was then forwarded to the Supreme Court on a motion for nullity. The Supreme Court chamber specialized in drug trafficking crimes, by final judgment of June 19, 1997, declared “there is no nullity in the judgment of April 17, 1996, and that there is nullity with respect to the penalty imposed; instead a penalty of 15 years imprisonment is imposed.”
The State also notes that Peruvian legislation allows for a dual
process for public servants: the administrative proceeding for breach of
the disciplinary rules, during the performance of one’s functions, and
proceedings for civil liability in the criminal court.
The State concludes that it can be established that Mr. Jorge
Rosadío Villavicencio “has been tried and convicted by the competent
authorities of the Peruvian jurisdiction, in the context of the
procedures provided for by the applicable criminal legislation and
criminal procedure, in the military courts, with respect to the crimes
committed in the performance of his military function, and by the
regular courts, for the crime of illicit drug trafficking. In addition,
he was subjected to a disciplinary administrative proceeding, in keeping
with the military procedures. It adds that “said proceedings have been
carried out with full observance of the principles and rights of the
jurisdictional function, and observing the guarantees of due process, as
Mr. Rosadío Villavicencio had the unrestricted right to defense, making
use of the remedies provided by our criminal and procedural order; the
right to appeal has been respected, the judicial resolutions have been
duly reasoned and justified. Therefore,
in both judicial proceedings, military and regular, uniform resolutions
have been handed down with respect to his legal situation that concluded
he was criminally liable for the unlawful acts investigated, accordingly
the respective judgments of liability were handed down.”
In terms of the principle of legality, the State argues that the
Peruvian judicial organs have tried and convicted Mr. Rosadío
Villavicencio for acts criminalized by Peru’s criminal law at the time
he committed them. With respect to the right to liberty, the State
indicates that the alleged victim has been deprived of liberty for
having been tried and convicted of criminal conduct for which that is
the penalty, and in all instances and jurisdictions it has been
uniformly so, as his criminal liability was demonstrated. Therefore,
there is no basis for characterizing his detention as arbitrary. For the
same reason, it points out, the allegation that his honor was not
respected and his dignity not recognized makes no sense.
In consideration of all the foregoing, the State argues that the
petition is manifestly inadmissible. The State indicates that what the
petitioner seeks is for the Commission to act as a court of review with
respect to the proceedings and decisions of the Peruvian courts, and
that it is not competent to do so, arguing that for the IACHR “to make
a new assessment of the evidence and facts that gave rise to the
prosecution and verdict is simply inadmissible.”
A. The Commission’s competence
The petitioner is authorized by Article 44 of the American
Convention to lodge complaints with the IACHR.
The petition indicates as the alleged victim an individual person
with respect to whom Peru undertook to respect and ensure the rights
enshrined in the American Convention. As regards the State, the
Commission notes that Peru has been a party to the American Convention
since September 5, 1984, when it deposited its instrument of
the Commission is competent ratione
personae to examine the petition.
The Commission is competent ratione
loci to examine the petition, insofar as it alleges violations of
rights protected in the American Convention said to have taken place in
the territory of a State party to that treaty.
In addition, the IACHR is competent ratione
temporis insofar as the obligation to respect and ensure the rights
protected in the American Convention was already in force for the State
on the date when the facts alleged in the petition are said to have
occurred. Finally, the Commission is competent ratione materiae since the petition alleges violations of human
rights protected by the American Convention.
OTHER ADMISSIBILITY REQUIREMENTS
Exhaustion of domestic remedies
In terms of this aspect of admissibility, the Commission observes
that in the processing of this matter, at no time did the State invoke
the objection of failure to exhaust domestic remedies with respect to
the domestic proceedings against Mr. Jorge Rosadío Villavicencio.
The IACHR must determine whether the State tacitly waived this
The Inter-American Court of Human Rights has noted that: “the
objection asserting the non-exhaustion of domestic remedies, to be
timely, must be made at an early stage of the proceedings by the State
entitled to make it, lest a waiver of the requirement be presumed..”
Accordingly, the IACHR establishes in respect of the instant case
that the Peruvian State has not invoked the objection of failure to
exhaust domestic remedies, and therefore it tacitly waived it, for
having failed to invoke it expressly and in timely fashion in any of the
communications sent to the Commission. The Commission considers that the requirement set forth at
Article 46(1)(a) of the American Convention has been met.
Time period for lodging a petition
In the petition under consideration, the IACHR has established
that the Peruvian State tacitly waived its right to invoke the objection
of failure to exhaust domestic remedies, thus the requirement of Article
46(1)(b) of the American Convention does not apply.
35. Nonetheless, the Convention’s requirements of exhaustion of domestic remedies and submission within six months of the judgment exhausting domestic remedies are independent. Therefore, the Inter-American Commission must determine whether the petition under consideration was submitted within a reasonable time. The Commission observes that the petition alleges a multiple prosecution by way of judicial, administrative, and military proceedings for the same facts, against the alleged victim. In this context, and without prejudging on those arguments, to determine whether the complaint has been lodged in timely fashion, one must consider two aspects, the date of submission of the petition, and current status of the domestic proceedings. As of the date of submission, the proceeding in the military jurisdiction was ongoing; accordingly, the IACHR considers that the petition was submitted within a reasonable time.
Duplication of proceedings and res
There is no evidence that the subject matter of this petition is
pending before any other procedure for international settlement, or that
it is substantially the same as one already examined by the Commission
or any other international organization.
Characterization of the facts alleged
The Commission considers that the petitioner’s presentation
refers to facts that tend to establish violations of rights enshrined in
Articles 7, 8, and 9 of the American Convention, as well as the
obligation to respect the rights, set forth in Article 1(1) thereof.
The Commission also considers that the petitioner did not specify
the alleged violation of Article 9 of the Convention.
There are, therefore, no grounds for declaring the petition
admissible, as it does not set out facts that could be characterized as
a violation of that Article.
Based on the arguments of fact and law set forth above, and
without prejudging on the merits,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare admissible the allegations contained in the instant
case regarding violations of Articles 1(1), 7, 8, and 9 of the American
Convention by the Peruvian State to the detriment of Mr. Jorge Rosadío
To notify the parties of this decision.
To continue analyzing the merits.
To place itself at the disposal of the parties in order to reach
a solution grounded in respect for the rights enshrined in the American
Convention, and to invite the parties to state their views on such a
To publish this decision and include it in its Annual Report to
the OAS General Assembly.
Done and signed at the headquarters of the Inter-American
Commission on Human Rights, in the city of Washington, D.C., on
twentieth day of February 20, 2003. (Signed): Juan E. Méndez,
President; Marta Altolaguirre, First Vice-President; José Zalaquett,
Second Vice-President; Commissioners Robert Goldman, Julio Prado
Vallejo, and Clare K. Roberts.
In keeping with Article 17(2) of the Commission’s Rules of
Procedure, Commissioner Susana Villarán, of Peruvian nationality,
did not participate in the discussion or decision of this matter.
Article 5 of the Code of Criminal Procedure establishes: “Against
a criminal action, one may invoke the objections of nature of
proceeding, nature of act....
of nature of proceeding may be invoked when the accusation is
substantiated in a manner distinct from what is proper in a criminal
objection of nature of act may be invoked when the conduct denounced
does not constitute a crime or is not criminally justiciable.
objections may be invoked at any stage of the process, and may be
resolved by the judge sua
sponte. If the
objection of nature of proceeding is declared to be well-founded,
the proceeding will be regularized in keeping with the applicable
procedure. If any of the other objections are declared to be
well-founded, the proceeding shall be considered to have concluded,
and the case will be archived with prejudice.”
The trial judge declared the objection of nature of the act
unfounded, and found Mr. Jorge Rosadío Villavicencio guilty of the
crime of illicit drug trafficking, by judgment of April 17, 1996,
sentencing him to six years in prison and the payment of civil
reparations to the State. The petitioner indicates that the judgment
was based exclusively on the testimony of the superior, and that the
declaration according to which the objection of nature of the act
was unfounded, was not explained or justified.
I/A Court H.R., Velásquez
Rodríguez Case, Preliminary Objections, Judgment of June 26,
1987, Series C Nº 1, para. 88; Godínez
Cruz Case, Preliminary Objections, Judgment of June 26, 1987,
Series C Nº 3, para. 90; Fairén
Garbi and Solís Corrales Case, Preliminary Objections, Judgment
of June 26, 1987, Series C No. 2, para. 87; Loayza
Tamayo Case, Preliminary Objections, Judgment of January 31,
1996, Series C Nº 25, para. 40.