RESOLUTION Nº 13/83
THE MATTER OF VIVIANA GALLARDO AND OTHERS
1. In a
communication dated July 31, 1981, the Secretary of the Inter-American
Court of Human Rights reported to the Commission that the Government of
Costa Rica had presented a case to the Court under the terms of Article
62.3 of the American Convention on Human Rights, and remitted the
resolution of that Court dated July 22, 1981, which, in addition to
other matters, asked the Commission to give its points of view on the
competence of the Court to proceed with the action of the Government of
Costa Rica to have the Court decide whether or not Costa Rican
authorities had violated any of the human rights protected in the Pact
of San Jose in the case submitted to the Court in connection with the
death of Viviana Gallardo and the injuries to her cellmates as a result
of the actions of a member of the Civil Guard while they were detained
in a jail of the same Guard.
2. In a note dated
October 13, 1981, the Inter-American Commission on Human Rights notified
the Court that no communication had been received in connection with the
case of Viviana Gallardo and others, and confirmed that, in its opinion,
no case may be brought to the attention of the Inter-American Court of
Human Rights that fails to fulfill the procedures set out in Articles 48
to 50 of the Convention and, as a consequence, those procedures must be
exhausted before the Court may take up the case.
3. In a
communication dated November 16, 1981, the Inter-American Commission on
Human Rights was informed of Resolution G1 01/81 of the Inter-American
Court of Human Rights dated November 13, 1981, in which the Court
decided unanimously to not hear the case initiated by the Government of
Costa Rica to examine the case of Viviana Gallardo and Others.
Commission was likewise notified of Resolution CD R1 4/81 adopted by the
Court in which it decided to refer the matter to the Commission, in
accordance with the collateral request made by the Government of Costa
Rica to that effect, in the understanding that said referral implied no
decision by the Court on the competence of the Commission.
4. On November 24,
1981, the Inter-American Court of Human Rights sent to the Commission
the individual charges received in connection with the case of Viviana
Gallardo and Others. It also attached to its note other documents
submitted to the Court by Mrs. Vilma Camacho de Gallardo, the mother of
Viviana Gallardo, and a telegram sent by Fernando and Rose Mary de
Salazar, the parents of one of the cellmates of Miss Gallardo.
5. In a note dated
December 23, l981, the Inter-American Commission on Human Rights
transmitted to the Government of Costa Rica the pertinent parts of the
individual communications mentioned in the preceding paragraph, and
asked it to provide all the information it considered appropriate in
connection with the events that gave rise to the appeal to the Court, as
well as any other observations it might consider appropriate in
connection with the aforementioned individual communications.
6. In that same
note, the Commission indicated to the Government of Costa Rica that the
request for information did not imply any decision as to the
admissibility of the petition.
7. In note 820169
of February 15, 1983, the Government of Costa Rica replied to the
Commission and attached to the same note a report on the events that
gave rise to the appeal to the Inter-American Court of Human Rights on
the basis of information procured by staff members of the Office of the
Procurator General of the Republic, and remitted the original letter No.
034-81 of that same office.
8. It also
attached a photocopy of the Inquiry Request presented by the Fourth
Fiscal Agent of San Jose, in representation of the Public Ministry, a
dependent organ of the Supreme Court of Justice, and pointed out that
the legal case being prosecuted against the alleged perpetrator of the
crimes of qualified homicide of Viviana Gallardo, aggravated assault of
Alejandra Bonilla and simple assault of Magaly Salazar was being brought
to trial and that March 2, 1982, had been set for the oral and public
presentation of evidence to the First Superior Criminal Court of San
9. The Government
of Costa Rica communicated the following: "In connection with the
document signed by the mother of Viviana Gallardo, no specific comment
is made because the context of the note makes it clear that the presumed
events to which it refers are attributed to authorities or officials
responsible for the investigation of the facts imputed to Miss Gallardo
Camacho and others, which functions are not the responsibility of
Executive Branch authorities but, by law, the duties of the Judicial
Police, an agency within the sphere of the Supreme Court of
Meeting in its 55th Session held in March, 1982, the
Inter-American Commission on Human Rights conducted a study of the
documents submitted to it for consideration by the Government of Costa
Rica and decided to write to that government once again to request its
observations with respect to the individual communications dealt with in
the note of December 23, 1981, mentioned above.
In a communication dated May 6, 1982, the Government of Costa
Rica presented its observations about the communications submitted by
Fernando and Rose Mary Salazar.
On July 1, 1982, the Commission once again requested the
Government of Costa Rica to reply to the allegations presented by Mrs.
Vilma de Gallardo and expressed its desire to be informed of the results
of the criminal proceedings involving the person of Corporal José
Manuel Bolaños Quesada for the crimes of qualified homocide and
aggravated assault. It also informed the Government of Costa Rica that
the requests for information did not necessarily imply any decision by
the Commission regarding the admissibility of the matter.
In a note dated August 24, 1982, the Government of Costa Rica
replied to the request of the Commission in which it attached two
certifications, duly authenticated, of the verdicts handed down in the
case against José Manuel Bolaños for the crimes of qualified homicide,
aggravated assault and simple assault of Viviana Gallardo, Alejandra
Bonilla and Magaly Salazar Nasser. It also reported that the 18-year
prison sentence imposed on Mr. Bolaños was currently being served at
the Regional Social Adaptation Center of Perez Zeledón.
The Government of Costa Rica also reported in the note mentioned
in the preceding paragraph the request it made to the Director of
Judicial Investigations to conduct an investigation into the possible
torture of Viviana Gallardo during the first days of her detention, that
it had followed up on the findings of this investigation and that there
had been no injury of that type. Finally, the government presented its
observations in connection with other aspects of the individual
communications that had been transmitted to it by the Inter-American
Commission on Human Rights.
The Commission considered it opportune to address Mrs. Vilma
Camacho de Gallardo, mother of the victim, for the purpose of securing
her observations to the reply provided by the Government of Costa Rica.
To that end, a note dated September 13, 1982, requested such information
from Mrs. Gallardo.
In a letter received by the Commission on November 29, 1982, Mrs.
Gallardo replied to the Commission and made her observations to the
government's reply known, but did not present any new facts that would
alter the information furnished by the Government of Costa Rica.
1. Article 48,
paragraph 1, clause c) of the American Convention on Human Rights
relating to the procedure established for the processing of individual
communications notes that the Commission may declare the petition or
communication inadmissible or out of order on the basis of information
or evidence subsequently received.
2. Article 32,
clauses b) and c) of the Regulations of the Commission state that it is
necessary in advance to decide on other questions related to the
admissibility of the petition or its manifest inadmissibility based on
the record or submission of the parties and whether grounds for the
petition exist or subsist, and if not, to order the filed closed.
3. From the
evidence subsequently received by the Commission, in particular, the
replies submitted to it for consideration by the Government of Costa
Rica; the study of letter Nº 034-81 from the Office of the Procurator
General of the Nation; the formal inquiry request presented by the
fiscal agent of San Jose; the sentences handed down in the case against
José Manuel Bolaños for the crimes of qualified homicide, aggravated
assault and simple assault of Viviana Gallardo, Alejandra Bonilla Leiva
and Magaly Salazar Nasser; and the investigation conducted by the
Director of Judicial Investigations, it is clear that the Government of
Costa Rica has acted in conformity with current legal provisions and
punished with full force of law the person responsible for the acts
4. In view of the
foregoing, the petition advanced is manifestly out of order since the
grounds that led to its introduction no longer subsist, as required by
Article 48, paragraph 1, clause c) of the Pact of San Jose and Articles
32 b) and c) of the Regulations of the Inter-American Commission on
institutional system for the protection of human rights established in
the Convention for the processing of petitions or communications, within
the limits set for it, and to which the states parties have voluntarily
agreed to abide, operates, except in cases specifically provided for in
the Convention itself, in lieu of the domestic legal system, in
accordance with generally recognized principles of international law.
1. To declare
inadmissible the petition made in the present matter, under the terms of
Article 48, paragraph 1, clause c), of the American Convention on Human
2. To communicate
this resolution to the Government of Costa Rica and to the
Inter-American Court of Human Rights.
3. To close the
file on this matter, as provided for in Article 32 (c) of the
Regulations of the Inter-American Commission on Human Rights.
4. To include this
resolution in its Annual Report to the General Assembly in accordance
with the terms of Article 59.(g) of the Regulations of the Commission.
Dr. Luis Demetrio Tinoco, a member of the Commission disqualified
himself from this case