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REPORT Nº 1/01 I.
SUMMARY 1.
On November 12, 1998, the Inter-American Commission on Human Rights
(hereinafter “the Commission”, “the Inter-American Commission”, or
“IACHR”) received a petition lodged by Ana Elena Townsend Diez-Canseco,
Congresswoman of the Republic of Peru, Carla Marcos Arteaga, Rossana Cueva
Mejía, Mabel Barreto Quineche, Mónica Vecco Ordóñez, Mariela Balbi
Scarneo, Guillermo Marcial González Arica, Américo Solís Medina, Iván
García Mayer, Eduardo Guzmán Iturbe, Angel Paez Salcedo, Benito María
Portocarrero Grados, César Hildebrandt Pérez Treviño, Enrique Zileri
Gibson, and Jimmy Torres Carrasco (hereinafter “the petitioners”)
against the Republic of Peru (hereinafter “Peru, “the State”, or
“the Peruvian State”) alleging that the National Intelligence Service
of the State (hereinafter “SIN”) was systematically wiretapping the
petitioners, journalists, and opposition politicians, and, furthermore,
that they were the victims of incidents, also carried out by the SIN, in
which they were followed and subjected to forms of intimidation and
coercion, such as espionage
of journalistic activities, harassment and physical injury. The
petitioners argue that such incidents constitute violations by the
Peruvian State of the rights to life, physical integrity, personal
liberty, privacy, and freedom of thought and expression enshrined in
Articles 4, 5, 7, 11, and 13, respectively, of the American Convention on
Human Rights (hereinafter “the Convention” or “the American
Convention”), in accordance with the provisions contained in Articles I,
IV, V, y XXVI of the American Declaration of the Rights and Duties of Man
(hereinafter “the Declaration” or “the American Declaration”). The
Peruvian State argued that the case is inadmissible on grounds of failure
to exhaust the remedies under domestic law. The Commission decides to
admit the case and to proceed to examine the merits of the matter. II.
PROCESSING BY THE COMMISSION 2.
On January 19, 1999, the Commission opened the case, transmitted
the pertinent portions of the complaint to the Peruvian State, and asked
it to provide information within 90 days. The petitioners submitted
additional information on February 8, 1999. On April 26 and September 21,
1999, the State requested an extension of the deadline for replying. On
September 29, 1999 the petitioners informed the Commission that the Center
for Justice and International Law (CEJIL) was to become co-petitioner.
3.
The petitioners furnished additional information on October 5,
1999. The State presented its reply on November 8, 1999. The petitioners
presented comments on the State’s reply on January 6, 2000.
On October 4, 1999 a hearing was held at the request of the
petitioners, at which declarations were taken from the following witnesses
for the petitioners: Congresswoman Ana Elena Townsend, journalists José
Arrieta Mudas and Guillermo González Arica, and former agent of the SIN,
Mrs. Luisa Zanatta Muedas. 4.
On March 6, 2000, a second hearing was held, this time at the
request of the State, at which declarations were received from two
witnesses for the State: Brigadier General Enrique Oliveros Pérez and
retired Army Major Ricardo Anderson Kohatsu. Subsequently both parties
presented several additional written communications. III.
POSITIONS OF THE PARTIES A.
The petitioners 5.
The petitioners allege that in July 1997 they learned that the
National Intelligence Service of the Peruvian State (SIN) was
systematically wiretapping opposition politicians and journalists critical
of the government of Mr. Alberto Fujimori, in order to follow and subject
the journalists to unexpected acts of harassment which entailed:
a) frequent anonymous threats against the life and person of the
journalists so that they would not publicize issues that might
inconvenience the government; b) following and unexpected harassment of
journalists, by means of robbery and theft of equipment;
c) extortion by threats to make public information to which the SIN
was allegedly privy on the private life of journalists who were critical
of or caused inconvenience to the government; and d) following and
physical assault of journalists.
6.
They mention the relationship between the aforesaid wiretapping and
the planned operations of the SIN and the Army Intelligence Service (SIE):
Bermuda Plan, Journalist Operations Plan I, Journalist Operations Plan II,
and the Octavio Plan. In that regard, they say that the objectives of
Journalist Plan I was to avert, detect, uncover and/or repress in a timely
manner any activities involving information exchange, recordings, and
contacts that journalists might undertake in connection with matters
concerning the government or the army; that the aims of Journalist Plan II
were the permanent following and surveillance of targeted journalists; and
that the objectives of the Octavio Plan were to follow and spy on media
executives and journalists.
7. They say the
wiretapping was carried out using equipment with enormous scope and the
capacity to listen in on the telephones of 200 people, whose conversations
were recorded and immediately transcribed. They add that
telecommunications experts agree that wiretapping on such a scale requires
very sophisticated and costly equipment, of the kind that the SIN
purchased from a foreign company.
8. They adduce
that starting in mid-July 1997, several members of the team of reporters
working for journalist Cesar Hildebrand were assaulted and beaten up in
locations where only the SIN, through wiretapping, could have known the
whereabouts of those journalists. The petitioners further adduce that
letters were sent by fax to their editorial offices threatening their
disappearance or murder; and they add that one such fax was traced to a
commercial fax service owned by an army lieutenant and member of the SIN. 9.
The petitioners add that Mrs. Luisa Zanatta, a former SIN agent,
described how the aforesaid wiretapping activities were carried out, the
buildings where they took place, the persons involved, and the persons
targeted by this practice, adding that the wiretapping was carried out by
the Department of Special Operations of the SIE, and that this
intelligence service gave an account of the conversations recorded to the
SIN, in the person of Vladimiro Montesinos. 10.
The petitioners say that agents of the SIN delivered to the
journalist Rossana Cueva of Contrapunto, a program formerly broadcast by the Canal
2 television network, several tapes containing recorded conversations
of various journalists and politicians, including conversations of the
petitioners themselves. They add that they corroborated the tapes with the
journalist and recognized conversations that they had had in July 1997 on
telephones in their homes and places of work and on cellular telephones,
and that subsequently the wiretapping was made public and became headline
news nationwide. 11.
The petitioners say that on July 13, 1997, after the wiretapping
allegations were made public, the Public Ministry [Ministerio Público]
appointed an ad hoc government prosecutor, Víctor Hugo Salvatierra, to
open a criminal investigation into the events connected with the
wiretapping. The petitioners add that as a result of the aforesaid
investigation, the Public Ministry concluded that it “had inspected the
facilities at the headquarters of the National Intelligence Service,
without finding any evidence to suggest that this organization had carried
out the wiretapping.” In this connection the petitioners say that the
investigation conducted by the ad hoc prosecutor was a mere formality;
that the forenamed prosecutor was appointed by the Supreme Court
Prosecutor, who took her orders from the government and was under the
control of the political authorities; and that the investigation did not
contribute in any way to the punishment of the culprits but was intended,
rather, to vindicate the offenders at the SIN. 12.
The petitioners say that on July 15, 1997 they filed for a writ of amparo
before the Public Law Court against the head of the SIN, in order that
they cease the wiretapping. In that connection they held that the
wiretapping violated their constitutional rights to secrecy and
inviolability of communications, to personal and family privacy, to
physical integrity and personal security, to life, to freedom of labor,
and to freedom of expression. They add that the writ of amparo
was declared to be without merit on August 8, 1997, which was upheld on
appeal on November 7, 1997 by the Provisional Public Law Chamber. The
petitioners say that on November 27, 1997, they filed an extraordinary
appeal with the Constitutional Court, which, in a judgment published in
the Official Gazette El Peruano on
May 29, 1998, declared the writ of amparo unfounded on the grounds of “failure to identify the
violator(s) of the constitutional rights invoked, notwithstanding that the
violations of the invoked constitutional rights had been proven.”
The petitioners hold that the remedies under domestic law were
exhausted with the aforesaid judgment of the Constitutional Court. 13.
They argue that they accessed an illusory formal legal system of
constitutional guarantees, that exists in appearance only but that in
practice was set up in order not to function properly and to conceal the
progressive dismantling of the country’s democratic institutions. The
petitioners said that in practice the citizenry has no real possibility of
recourse to any judicial organ for upholding constitutional guarantees or
fundamental rights when the offender is a representative of the State.
They add that, given the illusory nature of the system of constitutional
guarantees in Peru, in reality there existed no due process of law for
protection of fundamental rights, for which reason they had to pursue the
ineffective remedies under domestic law, in order, then, to invoke before
the IACHR the exception to the requirement of exhaustion of the national
jurisdiction due to the inexistence of due process of law in Peru. 14.
The petitioners say that the news of the wiretapping was brought to
the attention of the public by the television program Contrapunto
on the Canal 2 network, and the
matter became a national scandal. They add that in the face of general
disapproval and demands for investigation and punishment, the ruling
party, which had a majority in the Congress, on August 27, 1997 instructed
the Committee on National Defense and Internal Order to carry out an
investigation of the allegations. The petitioners say that on May 27,
1999, the Congress adopted a report in that connection, which was conveyed
to the Prosecutor General’s office, and which concluded that there was
no proof of eavesdropping. 15.
The petitioners say that the Prosecutor General received the
aforementioned report on July 8, 1999 and decided to broaden the
investigations originally carried out, but, however, that said
investigations are still continuing.
B.
The State 16.
The State argues that the petition is inadmissible because domestic
remedies were not exhausted. In that respect, it adduces that it would be
necessary first to examine the three different proceedings instituted in
order to clarify the petitioners allegations under domestic jurisdiction:
a) a judicial proceeding entailing the filing of a writ of amparo;
b) a proceeding before the Public Ministry; and c) a third proceeding
before the Congress. 17.
The State mentions that in the matter of the judicial proceeding,
the judgment of the Constitutional Court published on May 29, 1998,
declared the writ of amparo
unfounded “on the grounds of failure to identify the violator of the
constitutional rights invoked, notwithstanding that the violations of the
invoked constitutional rights had been proven.” The State argues that
the decision of the Constitutional Court did not exhaust domestic remedies
because the action remains open and pending, subject to the outcome of the
investigations of the Prosecutor General’s Office. The State adds that
the suitable recourse for the investigation and punishment of the acts and
allegations mentioned in the petition is a criminal proceeding. The State
affirms that although a writ of amparo
is a suitable recourse to safeguard a legally protected interest that has
been violated, it is not, however, an adequate procedure for conducting a
thorough investigation that might enable the identification of the person
responsible for the alleged violation inasmuch as it does not provide for
evidentiary proceedings. 18.
As to the proceeding before the Public Ministry, the State contends
that before the alleged injured parties filed their writ of amparo,
the Executive Committee of the Public Ministry appointed, by Resolution N°
615-97MP-FN-CEMP of July 13, 1997, an ad hoc prosecutor to investigate the
wiretapping allegations disclosed on the television program Contrapunto. The ad hoc prosecutor concluded that there was no
wiretapping equipment in the possession of the intelligence organizations
in Peru, nor evidence of eavesdropping carried out thereby. 19.
In the matter of the proceeding before the Congress, the State
adduced that, in view of the significance of the charges made by the
injured parties, the Congress, on August 27, 1997, decided that the
Committee on National Defense and Internal Order should conduct an
investigation of the eavesdropping. The final report of that Committee was
conveyed to the Prosecutor General’s Office on July 8, 1999, which
ordered that the investigations be broadened. 20.
The State holds that domestic remedies have not been exhausted
inasmuch as the investigation of the Prosecutor General’s Office is
pending conclusion. IV.
ANALYSIS 21.
The Commission proceeds to examine the admissibility requirements
for the petition set forth in the American Convention. A.
The Commission’s competence ratione
materiae, ratione personae, and ratione temporis
22.
The petitioners are entitled to lodge petitions with the IACHR
under Article 44 of the American Convention. The petition cites as alleged
victims individuals on whose behalf Peru undertook to respect and ensure
the rights recognized in the American Convention. Insofar as the State is
concerned, the Commission finds that Peru is a state party to the American
Convention, having ratified said instrument on July 28, 1978. Accordingly,
the Commission has ratione personae competence
to examine the petition.
23.
Furthermore, the Commission has ratione
materiae competence due to the fact that the acts alleged in the
petition could violate rights protected by the American Convention. As
regards the violations claimed by the petitioners of Articles I, IV, V,
and XXVI of the American Declaration, the Commission finds that rights
enshrined in those provisions are also recognized in the American
Convention, and that the petition does not concern a continuing violation
involving acts begun prior to Peru’s ratification of the American
Convention in 1978. In that connection, the Commission has said that
“once the American Convention entered into force (…) the Convention
and not the Declaration became the source of legal norms for application
by the Commission insofar as the petition alleges violations of
substantially identical rights set forth in both instruments and those
claimed violations do not involve a continuing situation.”[1]
Based on the foregoing, the Inter-American Commission will admit the
instant case in respect of claimed violations of the American Convention
(see infra, paragraphs 34 and
35).
24.
The IACHR has ratione
temporis competence inasmuch as the events in question are alleged to
have occurred after July 1997, when the duty to respect and ensure the
rights recognized in the Convention was in force for the Peruvian State. B.
Admissibility requirements for the petition 1.
Exhaustion of domestic remedies
25.
Under Article 46(1)(a) of the Convention, for the Commission to
find a petition admissible the remedies under domestic law must first have
been exhausted in accordance with generally recognized principles of
international law. However, Article 46(2) of the Convention provides that
said provision shall not apply when: a. the domestic legislation of the state concerned does not afford due process of law for the protection of the right or rights that have allegedly been violated; b. the party alleging violation of
his rights has been denied access to the remedies under domestic law or
has been prevented from exhausting them; or c.
there has been unwarranted delay in rendering a final judgment
under the aforementioned remedies. 26. The Commission
finds that the petitioners, in response to the violations they allegedly
suffered, filed a writ of amparo in order to bring a halt to the claimed violations of their
fundamental rights. The Public Ministry also launched investigations in an
attempt to determine criminal responsibilities, based on the public
denouncement of those acts, which also led to the opening of an
investigation by the Congress of the Republic of Peru. The Commission goes
on now to analyze said proceedings in order to determine if the remedies
under domestic law have been exhausted in the instant case. 27. Insofar as the
investigation carried out by the Congress is concerned, the Commission
finds that said proceeding is not judicial in nature and, therefore, that
the remedies under domestic law were not exhausted by that proceeding. 28. As to the
proceeding relating to the writ of amparo,
the Commission finds that the petitioners brought that action on July 15,
1997, in an attempt to put an immediate stop to the violation of their
fundamental rights. However, the Constitutional Court declared that action
unfounded in its final judgment of May 29, 1998, thereby exhausting the
internal proceeding relating to the petitioners’ attempt to bring an
immediate halt to the claimed violations of their rights. 29.
Regarding the investigations opened by the Public Ministry, the
Commission finds that said investigations could result in an accusation
before a criminal court, which would enable identification of the authors
of the alleged violations as well as the punishment thereof. That said,
the Commission notes that those investigations were initiated in July 1997
by an ad hoc government prosecutor, who concluded that there was no
wiretapping equipment in the possession of the intelligence organizations
in Peru, nor evidence of eavesdropping carried out thereby. Subsequently,
the Public Ministry decided to continue those investigations as a result
of the aforementioned report of the Congress, which was transmitted to the
Prosecutor General’s Office on July 8, 1999. In that connection, the
Commission notes that the above-mentioned Article 46(2)(c) of the American
Convention provides that the requirement of exhaustion of remedies under
domestic law shall not apply when “there has been unwarranted delay in
rendering a final judgment under the aforementioned remedies.” Based on
that provision, and bearing in mind that to date more than three years
have elapsed since the opening of the initial investigations by the Public
Ministry, the Commission finds that the aforementioned exception to the
requirement of exhaustion of domestic remedies is applicable in the
instant case. 2.
Deadline for lodging the petition 30. With respect to
the requirement contained in Article 46(1)(b) of the Convention, under
which the petition or communication
must be lodged within a period of six months from the date on which the
party alleging violation of his rights was notified of the final judgment
that exhausted domestic remedies, the Commission notes, on one hand, that
the petition was lodged on November 12, 1998, within the six-month period
following the judgment of the Constitutional Court of May 29, 1998, which,
however, was not an effective recourse for bringing an end to the claimed
violations, and that, apart from anything else, as mentioned by the
petitioners, these violations were apparently of a continuing nature since
the wiretapping would appear to have continued with time. 31. The Commission
also finds, in connection with the investigations opened by the Public
Ministry, that the aforesaid requirement would not apply since, given that
the exception to the requirement of exhaustion of domestic remedies
provided in Article 46(2)(c) of the Convention is applicable in the terms
set out above, also applicable, under the provisions contained in Article
46(2) of the Convention, is the exception to the above-cited requirement
in respect of the deadline for lodging the petition.
32.
The Commission finds that the subject matter of the petition is not
pending in another international proceeding for settlement, nor is the
petition substantially the same as one previously studied by the
Commission or by another international organization.
Accordingly, the requirements set forth in Articles 46 (1) (c) and
47 (d) have been met.
4.
Nature of the alleged violations 33.
The Commission finds that the allegations, if proven, could
establish violations of the rights recognized in the American Convention
on Human Rights.
34. The Commission
concludes that it is competent to take up the instant case and that the
petition is admissible in accordance with Articles 46 and 47 of the
American Convention. 35. Based on the
factual and legal arguments given above, and without prejudging the merits
of the matter, THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
DECIDES: 1. To declare the
instant case admissible as regards the alleged violation of Articles 5, 7,
11, and 13 of the American Convention on Human Rights. 2. To notify the
parties of this decision. 3. To continue
with its analysis of the merits of the case; and 4. To publish this
decision and to 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 Washington, D.C., on this
the 19th day of January, 2001.
Signed: Hélio Bicudo, Chair; Claudio Grossman, First
Vice-Chairman; Juan Méndez, Second Vice-Chairman; Commission Members
Robert K. Goldman, Peter Laurie, Marta Altolaguirre, and Julio Prado
Vallejo. [ Table of Contents | Previous | Next ]
[1] IACHR, Annual Report 1998, Report N° 38/99 (Argentina), March 11, 1999, para. 13. |