REPORT
Nº 30/00 I.
SUMMARY
1.
On November 12, 1998, during its on-site visit to Peru, the
Inter-American Commission on Human Rights (hereinafter “the
Commission” or “the IACHR”) received a petition from Mr. Orlando
Barreto Peña (hereinafter “Mr. Barreto” or “the petitioner”)
alleging that the Republic of Peru (hereinafter “Peru,” “the
State,” or “the Peruvian State”) had violated the right to
personal liberty, the right to judicial guarantees, the right to humane
treatment and the right to life, recognized in Articles 7, 8, 5 and 4,
respectively, of the American Convention on Human Rights (hereinafter
“the Convention” or “the American Convention”) when State
security agents unlawfully detained his daughter, Mariela Barreto
Riofano--an agent for the Army Intelligence Service (SIE)--, tortured
and killed her and then dismembered her body.
The Peruvian State alleged that the case was inadmissible on the
grounds that the remedies under domestic law had not been exhausted and
that the subject of the petition was pending settlement in another
international proceeding. Without prejudging the substance of the case, the Commission
considers that the exception to exhaustion of domestic remedies due to
unwarranted delay in rendering a final judgment applies in the instant
case and it finds that there is no duplication of procedures.
It therefore decides to admit the case, to move on to an
examination of its merits, and to place itself at the disposal of the
parties with a view to reaching a friendly settlement on the basis of
respect for the human rights recognized in the Convention. II. PROCEEDING WITH THE
COMMISSION
2. The Commission opened the case on
January 27, 1999, forwarded the pertinent parts of the petition to the
Peruvian State and requested that it provide information within 90 days.
The Asociación Pro
Derechos Humanos “APRODEH”, a non-governmental organization,
became a co-petitioner in the case once the case had been opened.
Peru sent its reply on May 11, 1999.
Thereafter, both parties filed a number of briefs with the
Commission. III.
POSITION OF THE PARTIES
A.
The petitioner 3. The petitioner stated that,
according to family members, Ms. Barreto was last seen alive early on
the morning of March 22, 1997. At
the time, she was leaving her home in Lima, on her way to arrange a
blood type certificate for her daughter, a newborn at the time. 4. He maintained that on March 25,
1997, an article appeared in the newspaper “La
República” titled “Young Woman Tortured and Dismembered.”
The article reported that the remains of a woman had been
discovered some 25 kilometers along the road to Canta.
According to the article, the body had been dismembered. Both
arms “had been cut off at the shoulder”; the head was detached from
the trunk of the body, as were the hands and feet, which were missing. The newspaper also reported that “the body had multiple
lesions in the neck area, along both sides of the abdomen and on one of
the legs, indicating that the victim had been physically tortured.”
The investigations ordered by the Fourth Criminal Provincial
Prosecutor’s Office for Lima’s Northern Cone and the identification
by the petitioner and by Mr. Elmer Valdivieso Nuñez, who was living
with Ms. Barreto at the time, determined that the remains were
definitely those of Ms. Barreto. 5. The petitioner stated that on
Sunday, April 6, 1997, the television programs “Contrapunto,”
carried on Lima’s Channel 2, and “La
Revista Dominical,” carried by América Televisión, Lima’s
Channel 4, both reported that the authors of the murder were
“suspected to be members of the Army Intelligence Service (SIE).”
The petitioner also linked his daughter’s death to the torture
of another SIE agent, Leonor La Rosa Bustamante, who accused members of
the SIE of being both the direct and indirect authors of Ms. Barreto’s
murder. In the
petitioner’s opinion, the method and brutality used in his
daughter’s case and in the case of agent La Rosa Bustamante had
characteristics and patterns in common, indicating that the perpetrators
in both cases were the same: the SIE agents. 6. As evidence pointing to the SIE
agent’s alleged involvement in his daughter’s murder, the petitioner
sent a copy of a statement given by Mrs. Luisa Zanatta, former SIE
agent, on March 16, 1998. In that statement, former agent Zanatta maintained that Ms.
Barreto had told her that she, Ms. Barreto, had told the weekly magazine
“Si” where the bodies of
the nine university students and one professor from the Universidad Nacional “Enrique Guzmán y Valle” (located in La
Cantuta, Lima) killed on July 18, 1992, were hidden. The ten victims had been killed by military agents in the
“Colina Group.” The
petitioner claimed that his daughter was murdered because she had given
journalists information about what happened at La Cantuta (and
information about the location of the victims’ bodies). 7. The petitioner maintained that
the remedies under domestic law had been exhausted with the decision
ordering that the case be closed, issued by the Office of the Fourth
Criminal Provincial Prosecutor of the Superior Court of Lima’s
Northern Cone on February 25, 1998, and a decision of the First Criminal
Superior Court Prosecutor for the Northern Cone, dated June 22, 1998,
which found the appeal filed against the first decision to be unfounded. B.
The State 8. The State alleged that the
remedies under domestic law had not been exhausted.
It said that the “Office of the Fourth Criminal Provincial
Prosecutor for Lima’s Northern Cone is currently investigating the
death of Mariela Barreto Riofano to ascertain the circumstances, motives
and possible authors of her death, which is the proper procedure under
domestic law to investigate, prosecute and then punish those responsible
in the courts”. It
further stated that “in the instant case, the investigation has not
yet been completed.” 9. It added that “before anyone
can be accused of a crime, one must first establish the nexus between
the crime and the author, based on minimum, verifiable evidence that can
substantiate the hypothesis; mere speculation or conjecture will not
suffice.” 10. The State asserted that the Fourth Criminal
Provincial Prosecutor’s Office had ordered that the case be
temporarily closed “because Article 77 of the Code of Criminal
Procedure requires that a case be prosecutable in law.”
It added that the July 22, 1998 decision “issued by the First
Prosecutor’s Office of the Superior Court of the Northern Cone
declaring the petition filed by Orlando Barreto Peña to be unfounded,
did not close the case or stop it for a definitive period; instead, it
stipulates that once the case is returned to the originating
prosecutor’s office, the investigations to identify the author or
authors of the murder of Mariela Barreto Riofano are to continue.”
This means, in Peru’s judgment, that “once the author or
authors of the murder or accomplices are identified, the Prosecutor may
immediately proceed, in keeping with his functions, to file a formal
criminal indictment with the Criminal-law Court.”
The State pointed out that the order to have the case
provisionally closed notwithstanding, the police authorities continued
to conduct the necessary investigations.
The State concluded that it was, therefore, obvious that “the
investigation has not been exhausted.” 11. The State alleged that on January 25, 1999,
the Fourth Criminal Prosecutor’s Office issued another decision
ordering “the expansion of the investigation”, as certain steps were
still pending. It mentioned that the “activities of Santiago Enrique
Martin Rivas, Luz Iris Chumpitaz Mendoza, Elmer Valdivieso Nuñez,
Carlos Eliseo Pichiligue Guevara, Jesús Antonio Sosa Saavedra and Julia
Plácida González Pillaca” still had to be checked and statements
taken from “Mirtha Zavaleta Meregildo, Menilda Cisneros de Reuna,
Ludesimo Aponte Carrión and Sheila Rebaza Ayala.” 12. It further contended that “the Special
Rapporteur on Extrajudicial Executions of the United Nations Commission
on Human Rights is now appraised of the facts set out in the
petition.” 13. The State asked that the IACHR declare the
instant petition inadmissible on the grounds that “the remedies under
domestic law have not been exhausted, and inasmuch as the subject of the
petition is pending with another international proceeding for
settlement, such as the one followed with the Special Rapporteur on
Extrajudicial, Summary or Arbitrary Executions of the United Nations
Commission on Human Rights.” IV.
ANALYSIS 14. The Commission will now consider the
requirements for a petition’s admissibility, as set forth in the
American Convention. A.
The
Commission’s competence ratione
materiae, ratione personae and ratione
temporis 15.
Peru ratified the American Convention on July 28, 1978, so that
the Commission is competent ratione personae to hear this petition, by express provision of
Article 33 of the Convention. With
respect to the petitioner, the Commission notes that both Mr. Orlando
Barreto Peña and the Asociación
Pro Derechos Humanos (APRODEH), a nongovernmental organization with
recognized legal status in Peru, are entitled under Article 44 of the
Convention to present petitions to the Commission. In addition, the
Commission is competent ratione
materiae and ratione temporis,
because the petitioner has alleged specific violations of norms
established in the Convention by agents of the Peruvian State, and
because the events in question appear to have occurred when the
obligation to respect and guarantee the rights established in the
Convention were already in force for the Peruvian State, which, as
mentioned above, deposited the instrument of ratification of the
American Convention on July 28, 1978. B.
Requirements for the petition’s admissibility a.
Exhaustion of the remedies under domestic law 16. The IACHR observes that the parties do not
dispute the fact that Ms. Barreto’s death occurred sometime between
the time she left her home early on the morning of March 22, 1997, and
March 25, 1997, when her mortal remains were discovered. 17. On April 10, 1997, the petitioner filed a
criminal complaint for first degree murder, battery, and kidnapping of
Mariela Luz Barreto Riofano, and criminal cover-up. On March 31, 1998,
the Office of the Fourth Criminal Provincial Prosecutor for the Northern
Cone ordered that “the proceedings be temporarily closed.
They lack sufficient merit to bring a criminal action, precisely
because the alleged authors of the crimes are not named; a court of
criminal-law cannot institute the examining phase unless the suspected
perpetrators of a crime are identified.”
On July 22, 1998, the First Criminal Superior Court Prosecutor
“dismissed the appeal” brought by the petitioner against the
decision of the lower-court prosecutor’s office to “temporarily
close the case.” Finally,
in another decision handed down on January 25, 1999, the Office of the
Fourth Criminal Provincial Prosecutor decided “to expand the
investigations,” since some of the procedural measures were still
pending, such as verification of the activities of certain persons and a
statement made by others. 18. Under Article 46(2) (c) of the Convention,
the remedies under domestic law need not be exhausted when “there is
an unwarranted delay in rendering a final judgments under the …
remedies.” As a party to the Convention, it is incumbent upon the State
to investigate the facts in order to identify those responsible, which
necessarily requires an adequate, exhaustive, serious and thorough
investigation conducted within a reasonable time frame.
In Velásquez Rodríguez, the
Inter-American Court of Human Rights wrote that: The
State is obligated to investigate every situation involving a violation
of the rights protected by the Convention.
If the State apparatus acts in such a way that the violation goes
unpunished and the victim’s full enjoyment of such rights is not
restored as soon as possible, the State has failed to comply with its
duty to ensure the free and full exercise of those rights to the persons
within its jurisdiction […] In
certain circumstances, it may be difficult to investigate acts that
violate an individual’s rights. The
duty to investigate, like the duty to prevent, is not breached merely
because the investigation does not produce a satisfactory result. Nevertheless, it must be undertaken in a serious manner and
not as a mere formality preordained to be ineffective. An investigation must have an objective and be assumed by the
State as its own legal duty, not as a step taken by private interests
that depends upon the initiative of the victim or his family or upon
their offer of proof, without an effective search for the truth by the
government. This is true
regardless of what agent is eventually found responsible for the
violation. Where the acts of private parties that violate the Convention
are not serious investigated, those parties are aided in a sense by the
government, thereby making the State responsible on the international
plane.[1]
19. In
the instant case, the Commission notes that 10 months after the murder
of Ms. Barreto the provisional shelving of the investigation, and
its possible reopening, were justified and made subject to
“identification of the alleged perpetrator” provided that “the
criminal action has not prescribed” and that the appeal lodged against
that ruling failed to achieve its modification.
Subsequently, on May 11, 1999, the State declared that “the
Fourth Criminal Provincial Prosecutor’s Office for Lima’s Northern
Cone was investigating the death of Mariela Barreto Riofano with a view
to clarifying the circumstances of her death, the motives for it, and
the possible perpetrators.” However, since that date, no further
information has been provided to the Commission reporting the findings
of the renewed investigations by the competent authorities. 20. Mindful of the jurisprudence of the
Inter-American Court of Human Rights and the jurisprudence of the
Inter-American Commission itself, the Commission considers that the
almost three year lapse since the murder of Ms. Barreto, without any
significant progress in the investigation constitutes an unwarranted
delay in the terms of Article 46(2)(c). of the American Convention.
Consequently, and in accordance with that norm, the exception to
the requirement to exhaust domestic remedies applies in this case. b.
Deadline for presentation 21. The requirement stipulated in Article
46(1)(b) of the Convention, whereby the petition is to be lodged within
six months of the date on which the party alleging violation of rights
was notified of the final judgment that exhausts local remedies, is not
applicable in the instant case. If
the condition stipulated in Article 46(2)(c) of the Convention for the
exception to the local remedies requirement is present, Article 46(2)
also mandates an exception to the requirement regarding the time period
for lodging the petition. c.
Duplication of procedures 22. Under Article 46(1)(c) of the American
Convention, one of the admissibility requirements a petition must meet
is that the subject “is not pending in another international
proceeding for settlement.”[2]
The State argues that the Commission must declare this petition
inadmissible precisely because a complaint on this subject is currently
with the Special Rapporteur for Extrajudicial, Summary or Arbitrary
Executions of the United Nations Commission on Human Rights. 23. In a case somewhat analogous to the instant
case, the Peruvian State asked that the Commission find a petition
inadmissible that involved facts that the Working Group on Enforced or
Involuntary Disappearances of the United Nations Commission on Human
Rights had under consideration at that time.
In that case, the Commission determined that the business of that
Working Group was not the international proceeding contemplated in
Article 46(1)(c) of the Convention, in accord with the provisions of
Article 39(2)(b) of the Commission’s Regulations.[3]
24. The situation under study in the instant
case, which the Commission’s refers to as “duplication of
procedures,” obtains when the matter is pending “settlement” in
some other international organization.
The language of Article 46(1)(c) implies the actual existence of
a mechanism whereby the violation denounced can be effectively resolved
between the petitioner and the authorities of the State or, failing
that, the proceeding instituted can lead to a decision that ends the
litigation and/or gives other bodies jurisdiction.[4] 25. It is fitting to recall that the United
Nations Commission on Human Rights and the UN Economic and Social
Council have established various extra-conventional procedures and
mechanisms that have been entrusted to working groups composed of
independent experts referred to as “special rapporteurs,”
“representatives,” or “experts.”
The mandates given to these mechanisms and procedures are either
to examine and monitor the human rights situation in specific countries
or territories (the so-called country mechanisms or mandates), or major
phenomena of human rights violations at the global level (the thematic
mechanisms or mandates), and to “publicly report” on those
situations. Taken
collectively, those procedures and mechanisms are called “Special
Procedures of the Commission on Human Rights,” their purpose being to
institute constructive dialogue with the governments and in the end
“recommend” to them possible solutions to the situations posed.[5] 26. The United Nations Commission on Human
Rights’ Special Rapporteur on Extrajudicial, Summary and Arbitrary
Executions was created by a decision 1992/242 of the Economic and Social
Council, on July 20, 1992. Initially
slated for three years, the Special Rapporteur was to “consider
questions related to summary or arbitrary executions.”[6] Thereafter,
United Nations General Assembly resolution 47/136, adopted on December
18, 1992, at the 92nd plenary session, reaffirmed the Special
Rapporteur’s competence in the area of summary or arbitrary
executions. That resolution
made reference to specific authorities conferred upon the Special
Rapporteur for Extrajudicial, Summary or Arbitrary Executions, urging it
to promote “exchanges of views between Governments and those who
provide reliable information to the Special Rapporteur.”
According to these resolutions, the Special Rapporteur is
unequivocally a recognized international instance to which individual
petitioners can and do turn. Nevertheless, one cannot infer from this
that the Special Rapporteur is one of the appropriate instances for
arriving at the “settlement” to which Article 46(1)(c) of the
American Convention refers. It is, instead, a mechanism that makes it possible to bring
to international attention a specific situation in which fundamental
rights have been ignored.[7] 27. Therefore, in the instant case, Peru’s
allegation of the inadmissibility of the request is unfounded, as there
is no duplication of procedures in the sense of Article 46(1)(c) of the
American Convention. d.
Characterization of the facts 28. The Commission considers that the facts
alleged, if proved true, are violations of rights recognized in the
American Convention on Human Rights. e.
Res judicata 29.
The petition does not duplicate any petition either pending or
already examined and settled by the Commission or by another
international organization. Therefore,
the requirement stipulated in Article 47(d) is also met. IV.
CONCLUSIONS
30. The Commission concludes that it is competent
to hear this case and that the petition is admissible under articles 46
and 47 of the American Convention. 31. Based on the these arguments of fact and of
law, and without prejudging the merits of the case, THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, DECIDES:
1.
To declare the instant case admissible with respect to the
alleged violations of the rights to personal liberty, judicial
guarantees, humane treatment, and the right to life enshrined in
Articles 7, 8, 5, and 4, respectively of the American Convention on
Human Rights. 2.
To notify the parties of this decision. 3.
To continue its analysis of the merits of the petition. 4. To place itself at the disposal
of the parties with a view to reaching a friendly settlement based on
respect for the human rights recognized in the American Convention, and
to invite the parties to indicate whether they would be amenable to
attempting a friendly settlement, and 5. To publish this decision and
include it in the Commission’s 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 the 23rd day of
the month of February, 2000. (Signed): Hélio
Bicudo, Chairman; Claudio Grossman, First Vice-Chairman; Juan Mendez,
Second Vice-Chairman; Commissioners: Marta Altolaguirre, Robert K.
Goldman, Peter Laurie and Julio Prado Vallejo. [1]
Inter-American Court of Human Rights, Velásquez
Rodríguez Case, Judgment of July 29, 1988, paragraphs 176 and
177. [2]
The IACHR’s interpretation is that the requirement refers to an
organization that is competent to adopt decisions on the specific
facts contained in the petition, and measures to effectively settle
the dispute in question. See IACHR, Annual
Report 1987-1988, No. 88, Case 9502
(Peru), paragraph F of the preamble. [3]
IACHR, Annual Report 1998, Report Nº 33/98 – Clemente Ayala
Torres et al., Case 10,545
(Mexico), para. 43. [4]
IACHR, Annual Report 1987-1988, Resolution Nº 17/88 – Case 9,503
(Peru), para. e. [5]
See,
United Nations High Commissioner for Human Rights, “Special
Rapporteurs, Independent Experts (Non-conventional mechanisms)”,
published on its Web site at http://www.unhchr.ch. [6]
See,
General Assembly resolution 47/136, December 18, 1992, paragraph
four. [7]
On various aspects of duplication of procedures, see: IACHR, 1998
Annual Report, Report Nº 96/98, Peter Blaine, Case 11.827
(Jamaica). That report contains several quotations from
international human rights organizations regarding duplication of
procedures.
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