Ana Elena Townsend et al v. Peru, Case 12.085, Report No. 1/01, OEA/Ser.L/V/II.111 Doc. 20 rev. at 379 (2000).
ANA ELENA TOWNSEND DIEZ-CANSECO ET AL.
January 19, 2001
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.
PROCESSING BY THE COMMISSION
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.
The petitioners furnished additional information on October 5, 1999.
The State presented its reply on November 8, 1999. The petitioners presented
comments on the States 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.
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
POSITIONS OF THE PARTIES
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.
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
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.
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
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.
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
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.
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 countrys 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.
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
Generals office, and which concluded that there was no proof of eavesdropping.
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.
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 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 Generals 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.
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.
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 Generals
Office on July 8, 1999, which ordered that the investigations be broadened.
The State holds that domestic remedies have not been exhausted inasmuch
as the investigation of the Prosecutor Generals Office is pending
The Commission proceeds to examine the admissibility requirements
for the petition set forth in the American Convention.
The Commissions competence ratione
materiae, ratione personae, and ratione temporis
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.
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 Perus 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
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).
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.
Admissibility requirements for the petition
Exhaustion of domestic remedies
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
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.
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 Generals 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
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.
3. Duplication of proceedings and res judicata
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.
Nature of the alleged violations
The Commission finds that the allegations, if proven, could establish
violations of the rights recognized in the American Convention on Human
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
35. Based on the
factual and legal arguments given above, and without prejudging the merits
of the matter,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
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.
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.
 IACHR, Annual Report 1998, Report N° 38/99 (Argentina), March 11, 1999, para. 13.