Report Nº 29/91 adopted by the Inter-American Commission on Human Rights
on February 20, 1991 referring to cases 10.264, 10.206, 10.276 and 10.446.
That on May 27, 1991, the Government of Peru filed a brief wherein it
"requests that the Commission comply with its Regulations and the Pact of
San José and therefore decide not to take the case to the Inter-American Court
of Human Rights without first weighing the observations made in the present note
and making the appropriate procedural corrections." In that note, the Government of Peru stated that "In
accordance with the express provisions of Article 34, paragraphs 7 and 8 of the
Commission's Regulations, once the reply was received from the petitioners, the
Commission should have transmitted the pertinent parts thereof and its
attachments to the Government of Peru for its final observations.
None of the the petitioners' replies to the Government's notes were
transmitted to the Government. Hence,
by violating that procedural requirement, the Commission has denied the Peruvian
State its right to self defense."
That the request from the Government of Peru constitutes a petition to
suspend the proceedings;
That while the Government of Peru raised this matter in the note in
question, it did not say what injury had been caused by this procedural
That in response to its express request and to honor justice, the
Commission resolved to consider the objection and therefore transmitted the
petitioners' replies as requested by the Government under the provisions of
Article 34.8 of the Commission's Regulations;
That in its reply dated September 4, 1991, the Government of Peru made no reference to the petitioners' replies,
That the Commission also examined Report 29/91 and has found that
adjustments must be made in Section II thereof, which are included in the
version of that Report attached hereto.
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To reject the argument of the Government of Peru that the report is
To confirm the conclusions and recommendations contained under point 48
of Report 29/91 and to transmit it to the Government of Peru so that it might
respond as it sees fit within a period of 90 days.
To send the instant case to the Inter-American Court of Human Rights.
OF THE GOVERNMENT OF PERU TO THE INTER-AMERICAN
Cases Nos. 10.206, 10.264 10.276 and 10.446
connection with your note of June 20, 1991, received on July 10 of this year,
the Government of Peru, respectful of its international commitments, transmits
the present communication within the preestablished time limit:
inter-American system for the protection of human rights establishes the legal
procedures that the Inter-American Commission on Human Rights must follow in its
investigation of complaints. As a
signer and ratifier of the American Convention on Human Rights, and recognizing
the competence of the hemispheric agencies in this area, the Peruvian Government
demands of the Commission strict compliance with the procedural rules that
guarantee the right of parties to the most comprehensive and unrestricted
to Article 61 of the American Convention on Human Rights, in order for the Court
to hear a case, it must necessarily have first been investigated by the
Commission, and investigation is thus a stage that must go before.
It follows from this that a decision to submit a case to the Court shall
first have been thoroughly examined in fullest conformity with the procedural
framework that governs the actions of the Inter-American Commission on Human
Rights, especially when it is considered that, once it has filed its suit, the
Commission's legal status is transformed, de facto and de jure,
from that of a general investigative agency, impartial both to governments and
to petitioners, into that of opponent of the respondent government.
In other words, upon the mere filing of a complaint it becomes the
procedural adversary of the government, which implies the literal impossibility
of reverting to its original status.
the good intentions shown by the Inter-American Commission on Human Rights
in withdrawing cases Nos. 10.206, 10.264, 10.276 and 10.446 from the
jurisdiction of the Inter-American Court of Human Rights in order to rectify the
procedural omissions pointed out by the Peruvian government in its note of May
27 of this year, the Commission has not made clear which new procedures could be
followed for a possible reexamination of the case and which conclusions
reached in it, considering that neither the Convention nor the current Rules
of Procedure provide any warrant for its present decision.
consideration of the situation presented and the procedure suggested by the
Inter-American Commission on Human Rights, it is incumbent on the Peruvian
Government to raise the following points and objections:
communication of the Inter-American Commission on Human Rights suggests that the
Peruvian Government asked it to reconsider the case.
This is untrue, for Peru has never made any such request in regard to
the case itself or to the decision to place it before the Inter-American Court.
The possibility of reconsidering a report already submitted is not
provided for in either the American Convention on Human Rights or in the
Regulations of the Commission when the State concerned — in this instance Peru
— is a party to the Convention and has recognized the competence of the
Inter-American Court of Human Rights, let alone when the case has already been
submitted to the jurisdiction of the Court.
Peruvian Government did express to the Commission the advisability of not
submitting the case to the Court in view of the serious procedural omissions
committed in the preparation of Report No. 29/91, which also happen to justify
the plenary's decision, among others, to submit the cases together.
In other words, the decision to reconsider the case was taken
unilaterally, and has no place in the procedural rules in effect.
its note of May 27, 1991, the Peruvian Government made five procedural
observations on the handling of the CAYARA case by the Inter-American Commission
on Human Rights. However, the note
of June 20 mentions only one of them: the failure to comply with the express
provisions of Article 34.8 of the Commission's Regulations.
Peruvian Government noted the absence of a preliminary report, which would have
avoided the hurried submittal of the case on such a shaky procedural basis
and the incorrect manner in which the Peruvian Government has been dealt with.
It cited the ill-advised decision to accept belatedly the inclusion of
one of the petitioners, the impropriety of combining the cases, and the receipt,
after expiration of the applicable time limits, of the replies to the notes of
the Peruvian Government. Accordingly,
in its note of June 20, 1991, the Commission ought to have not only responded to
these points, but also have set forth transparently and specifically the
mechanisms best suited for the future handling of the cases.
7 and 8 in Article 34 of the Regulations of the Inter-American Commission on
Human Rights prescribe that the reply of the respondent government shall be
made known to the petitioner(s) for REJOINDER(S) within thirty (30) days.
This was all done in the present case, though the rejoinders were
received after that time limit. These
rejoinders and their accompanying evidence should have been transmitted to the
Peruvian Government for SURREJOINDERS or final observations, but this was not
done. This abridgement of Peru's
right of defense not only prejudiced a member State of the Organization of
American States and a Party to the American Convention on Human Right, which
has recognized the competence of the Inter-American Court of Human Rights, but
led the plenary of the Commission into error by depriving it of the sources of
evidence necessitated by the magnitude of the conclusions of Report No. 29/91,
which it approved in its 79th Session.
enable it to rectify errors and comply with the rules of procedure contained
in Article 34 of its Regulations, the Inter-American Commission on Human Rights
requires the Peruvian Government to present its final observations within
sixty (60) days. However, the
replies of the petitioners were made past their own deadlines.
It is hence improper to require ONE REJOINDER TO THREE REPLIES in one
operation and at an inconvenient time, especially when the entire procedure
has been completed with a final report.
The rules of procedure contained in the Regulations of the Inter-American
Commission on Human Rights set out a procedure for obligatory compliance, that
is, it endows the process with the means and mechanisms for its execution from
beginning to end. The guidelines
having been laid down, and there are stages and junctures clearly demarcated
by procedural time limits, which ensures legality in the conduct of the process.
May 8 and 10, 1990, the Peruvian Government presented to the Commission two
(2) notes that were replied to by the petitioners on July 18, 1990, sixty-eight
(68) days later, which violated the mandatory time limit of thirty (30) days
imposed in Article 34.7 of the Commission's Regulations; in other words, the
time limit having expired, no reply could be received.
However, in its note of June 20, 1991, the Commission gave the Peruvian
Government a time limit for its rejoinder and insisted on accepting the
replies of the petitioners as valid.
In that note of June 20, 1991, the Inter-American Commission on Human
Rights expressed its intention of adhering strictly to the terms of Article 34.8
of its Regulations. However, it
failed to include the complete reports — one of the majority and the other
of the minority — of the Commission appointed by the Senate of the Republic of
Peru, which were presented together by the two petitioners in their note of
reply of July 18, 1990. Against
this it could be argued that the Peruvian Government is able to obtain those
documents for itself, which is in principle true, but the official channel for
the receipt and transmission of evidence is the Inter-American Commission and,
moreover, this seemingly excessive formality guarantees access to the same
means of proof to all parties.
Peruvian Government does not question the honesty of the petitioners despite
the inelegant terms in which they have couched their replies, but the only way
to guarantee that the proofs offered are identical with the original documents
of the Senate of the Republic is by comparison, which could only have taken
place if the Commission, complying strictly with its own Regulations, had
received in good time and forwarded the documents presented with the replies.
follows from this that the four combined cases continue to suffer from the same
neither the American Convention, the Regulations of the Commission nor the
Rules of Procedure of the Court allow the possibility of WITHDRAWING a case once
it has been submitted to the jurisdiction of the latter.
The case having been withdrawn, what took place de jure and de
facto was a formal DISCONTINUANCE in the terms of Article 42 of the Court's
Rules of Procedure in force at the time the suit was brought on May 30, 1991.
Since this discontinuance, referred to by the Commission as a withdrawal,
was at the request of the complainant alone, before the litigation began but
after the proceeding had already been set in motion, the consent of the Peruvian
Government as respondent was not required.
Rules of Procedure of the International Court of Justice at The Hague, to whose
final judgments the Inter-American Court has resorted, provides in Articles 88
and 89 that if a proceeding has been opened by a unilateral complaint, the
claimant may withdraw unilaterally so long as the respondent has not yet taken
any action in the proceeding. If, however, litigation has already commenced, the consent of
respondent is required for discontinuance of the case.
is apparent that so-called withdrawal is not a juridically acceptable
procedural option. The filing of a
complaint with the Inter-American Court of Human Rights sets the proceeding in
motion, and the only avenue for unilaterally preventing its prosecution is
withdrawal before litigation begins, that is, before the Government has been
notified of the complaint.
the showing of the Inter-American Commission on Human Rights, the CAYARA case
could again be submitted to the Inter-American Court of Human Rights once the
Peruvian Government has presented its final observations.
The Peruvian Government does not agree that this could be done because,
the case having been unilaterally withdrawn from the Court by action of the Commission,
the legal time limit of ninety (90) days provided for such resubmittal in
Article 51 of the American Convention on Human Rights has already expired.
conclusion, the Peruvian Government demands that, before entertaining any
additional consideration, the Inter-American Commission on Human Rights define
and spell out clearly a feasible procedure which, without overstepping the
general bounds of the inter-American legal system for the protection of human
rights, will afford adequate guarantees to the Peruvian Government and not
detract from the treatment that is due to it as a member State of the
Organization of American States and a Party to the American Convention on Human
keeping with the foregoing and to set forth its views and procedural arguments
on the processing of the four combined cases and the examination of future
possibilities, the Peruvian Government requests a confidential hearing with
the IACHR under Article 67 of its Regulations so that its representative may
make an oral presentation to the Commission in its second session of 1991.