Mariela Barreto Riofano v. Peru, Case 12.095, Report Nº 30/00, OEA/Ser.L/V/II.106 Doc. 3 rev. at 270 (1999).
MARIELA BARRETO RIOFANO
February 23, 2000
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.
POSITION OF THE PARTIES
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
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
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.
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.”
14. The Commission will now consider the requirements
for a petition’s admissibility, as set forth in the American Convention.
Commission’s competence ratione materiae,
ratione personae and ratione temporis
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.
Requirements for the petition’s admissibility
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:
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 […]
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.
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.
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.
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.”
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.
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
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.
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.” 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.
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.
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.
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.
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
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.
To notify the parties of this decision.
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
5. To publish this decision and include
it in the Commission’s Annual Report to the OAS General Assembly.
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.
Inter-American Court of Human Rights, Velásquez
Rodríguez Case, Judgment of July 29, 1988, paragraphs 176 and 177.
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.
IACHR, Annual Report 1998, Report Nº 33/98 – Clemente Ayala Torres et
al., Case 10,545 (Mexico), para. 43.
IACHR, Annual Report 1987-1988, Resolution Nº 17/88 – Case 9,503 (Peru),
General Assembly resolution 47/136, December 18, 1992, paragraph four.
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.