Emilio and Rafael Gómez v. Peru, Case 11.015, Report No. 44/01, OEA/Ser.L/V/II.111 Doc. 20 rev. at 365 (2000).
REPORT Nº 44/01
EMILIO MOISÉS AND RAFAEL SAMUEL
March 5, 2001
On July 2, 1991, the Inter-American Commission on Human Rights
(hereinafter the Commission, the Inter-American Commission
or the IACHR) received a petition filed by Mrs. Marcelina
Paquiyauri de Gómez, which the Centro de Estudios y Acción para la
Paz (CEAPAZ) [the Center for Studies and Action for Peace] (hereinafter
the petitioners) later elaborated upon.
The petition was filed against the Republic of Peru (hereinafter
Peru, the State or the Peruvian State)
and alleged that on June 21, 1991, Peruvian National Police arbitrarily
detained and murdered young Emilio Moisés and Rafael Samuel Gómez Paquiyauri.
The petitioners contend that the facts in question constitute violations
by the Peruvian State of the rights to life, to humane treatment and to
personal liberty, recognized in Articles 4, 5 and 7 of the American Convention
on Human Rights (hereinafter the Convention or the American
Convention). Peru requested that the case be closed, inasmuch as
those responsible for the deaths of Emilio Moisés and Rafael Samuel Gómez
Paquiyauri had been convicted of aggravated homicide and sentenced to
imprisonment. The State reported that they were also ordered to pay civil
damages to each of the victims legal heirs.
The IACHR therefore decides to admit the case and to continue to
examine its merits.
PROCESSING WITH THE COMMISSION
The Commission opened the case on June 12, 1992, and forwarded
the pertinent parts of the petition to the Peruvian State with the request
that it provide information within 90 days.
The State responded on September 30, 1992.
On November 11, 1992, the Commission sent the States reply
to the petitioners and requested that they send their comments within
On October 21, 1992, the State sent a communication to the Commission,
enclosing a report done by the Ministry of the Interior on this case.
On June 8, 1993, the State sent additional information, and on
December 15, 1993 sent a copy of the conviction handed down by the Callao
Superior Court. It also requested
that the present case be closed.
On October 20, 1994, the State sent additional information, which
was forwarded to the petitioner on November 17, 1994.
On April 28, 1997, the State sent the Commission additional information.
The petitioners presented comments on that additional information
on June 12 and July 23, 1997. On August 20, 1997, the State sent the Commission its observations
on the petitioners most recent communication.
The petitioners responded on November 18, 1997.
On May 1, 2000, the Commission placed itself at the disposal of
the parties with a view to reaching a friendly settlement of the matter.
On June 21, 2000, the State requested an extension of the established
time period. On June 29,
2000, the IACHR granted a 30-day extension effective that date. None of the parties made any statement concerning the Commissions
offer of a friendly settlement.
POSITION OF THE PARTIES
The petitioners position
The petitioners allege that a vehicle carrying securities was stolen
in the Province of Callao on June 21, 1991.
Police immediately launched a search for the assailants.
A Callao Special Services police van was nearing Avenida de
la Marina in the Province of Callao.
Inside were Commander Pedro González (chief of that unit) and four
other police officers. Spotting
a suspicious vehicle, the police immediately gave chase and engaged the
assailants in the vicinity of the Lima-Callao Development.
The brothers Emilio and Rafael Gómez Paquiyauri, ages 14 and 17,
respectively, happened to be passing by, on their way to their mothers
food stand nearby, and were detained in the confusion created by the skirmish.
The petitioners noted that Rafael and Emilio Gómez Paquiyauri were
put in the trunk of patrol car 27-1058, of the 27th command
of the National Police, and taken to an isolated place where they were
brutally interrogated on the assumption that they were criminal subversives.
The Gómez Paquiyauri brothers denied any involvement in the robbery
and the charges against them. They
also said that they were only passing by the place where the clash occurred.
The police beat them with the butts of their machine guns and then
killed them, as Sergeant Antezama later confessed.
He was the only police officer to confess his crime to the Callao
The petitioners report that television cameras captured the detentions
on film. That television
film became the main piece of evidence to the effect that the young brothers
were alive when they were arrested, and strongly suggested that they murdered
while in police custody. When
a television program broadcast the film, the Ministry of the Interior
issued official communiqué No. 06-91 wherein it stated that the facts
would be thoroughly investigated."
The petitioners report that some days later, on June 25, 1991,
the date on which the complaint surrounding these events was filed with
Callaos 5th Criminal Attorneys Office, the home
of the victims parents was searched and the mother was summoned
to the offices of the Anti-Terrorism Bureau to be deposed.
All this was part of a campaign to harass the victims next
of kin, who were seeking an inquiry into the events and punishment of
those guilty of murdering the above-named youths.
The petitioners report that on November 9, 1993, the Third Criminal
Law Chamber of the Callao Superior Court convicted the material authors
of the crimes. The petitioners
point out that although it was proven that the youths were murdered on
an order dispatched by radio to the police who were holding the youths,
the only persons prosecuted were the five police officers who received
the orders to execute the Gómez Paquiyauri brothers.
The intellectual authors of the crime, i.e., the persons who had
sent radio dispatches ordering that the victims be killednamely
Captain César Augusto Santoyo (a deserter) and Police Major Juan Valdelomar
Quiroz Chávez-went unpunished. The Superior Court Prosecutor and Callaos Third Correctional
Court expressly dropped the case proceedings against them, even though
there was sufficient evidence linking them to the victims deaths.
The petitioners point out that the orders that Captain César Augusto
Santoyo Castro and Peruvian Police Major Juan Valdelomar Quiroz Chávez
radioed were reliably established by the statements made by noncommissioned
offers José Infantes Quiroz and Angel del Rosario Vásquez Chumo, who were
the drivers for the patrolmen who killed the Gómez Paquiyauri brothers. They allege that the fact that both boys were killed at the
same time is evidence that their execution was ordered from above, which
is precisely what the examining magistrate in the case had concluded.
The petitioners allege that the domestic remedies have been ineffective
for purposes of punishment of the intellectual authors responsible for
sending the radio dispatch ordering that the victims be killed.
They also allege that the police and court inquiry were cover-ups
for those who gave the order that the Gómez Paquiyauri brothers be killed
and who have still eluded prosecution.
The petitioners contend that on October 24, 1994, a former noncommissioned
officer sent a letter to the National Human Rights Coordinator to report
the threats that he and his family were receiving because of statements
he had made to the press to the effect that there were intellectual authors
of these crimes who were going unpunished.
The petitioners argue that Peru has failed to compensate the victims
next of kin. They report
that on November 29, 1993, the Third Chamber of the Callao Superior Court
handed down a ruling convicting the material authors of the crimes and
ordering them to pay civil damages in the amount of 20,000 new soles,
to be divided among the victims legal heirs.
Nevertheless, as of November 18, 1997, that compensation had not
They allege that because the authors of the killing were agents
of a State institution, namely the National Police, the State is obligated
to assume responsibility for paying the damages owed to the victims
next of kin.
The States position
The State maintains that the Division for Investigating Homicide,
Assaults and Health-related crimes (DDCV) prepared affidavit N° 281-IC-H-DDCV,
dated June 26, 1991, and expanded affidavit N° 192-IC-H-DDCV, dated July
8, 1991, certifying the deaths of the young boys, ages 14 and 17, and
indicating that the author was identified as a member of the Peruvian
National Police and was incarcerated by order of Callaos 5th
It argues that the authors of the homicide of the Gómez Paquiyauri
brothers were identified as police officers.
Criminal proceedings were instituted against them in the 5th Criminal
Court of the Province of Callao.
Callaos 1st Criminal Chamber handed down a ruling
The State points out that on November 29, 1993, the Third Criminal
Chamber of the Callao Superior Court issued a ruling of second instance
that convicted the guilty parties of the crimes charged, and ordered the
following sentences: 18 years imprisonment for PG Sergeant Second
Class Guillermo Paulino Cornejo Zapata and for PG Sergeant Second Class
Francisco Antezana Santillán; 15 years for PG Corporal Dámaso Alonso Antezana
Liñan; 5 years for SO3 José Angel Infante Quiroz; 6 years for SO3 Angel
del Rosario Vásquez Chumo; and 2
years for Captain PG Hodar Hincháustegui, for the crimes of aggravated
homicide. It also ordered
civil damages of 20,000 new soles for the victims next of kin.
The State reports that in the hearing held to sentence all those
convicted, an appeal was filed to vacate the sentences of incarceration.
On October 17, 1994, the Supreme Courts Criminal Law Transitory
Chamber declared that the petition seeking to have the sentences nullified
was denied, and upheld the sentence of imprisonment for those convicted.
The State reports that through memorandum No. 268-97-IN-CNDDHH/SP,
dated May 8, 1997, the Ministry of the Interior reported that the persons
convicted of the murder of the young Gómez Paquiyauri brothers had been
serving their sentences and that on November 10, 1995, Guillermo Paulino
Cornejo Zapata and Francisco Antezano Santillán had been paroled; Dámaso
Antezama Liñan was paroled on May 1, 1995 and Angel del Rosario Vásquez
Chumo on November 22, 1994. All
the paroles were done by order of the proper authorities and pursuant
to the provisions of the Sentencing Code.
The State asserts that Peru investigated the facts denounced, using
the mechanisms of domestic law, which successfully identify, prosecuted
and punished the authors and ordered payment of damages to the victims
next of kin. Payment of those
damages must be effected in accordance with the procedures established
under the domestic legal system.
The Commission will now examine the requirements for a petitions
admissibility, as established in the American Convention.
Competence of the Commission
ratione materiae, ratione personae and ratione temporis
The petitioners are authorized to file petitions with the Commission
under Article 44 of the American Convention.
The alleged victims named in the petition are individual natural
persons whose Convention-recognized rights Peru undertook to respect and
ensure. With regard to the
State, the Commission notes that Peru is a State party to the American
Convention, which it ratified on July 28, 1978. Hence, the Commission
has competence ratione personae
to examine the petition.
The Commission also has competence ratione materiae by reason of the fact that the allegations made in
the petition could constitute violations of rights protected by the American
The IACHR has competence ratione
temporis by virtue of the fact that the facts in question allegedly
occurred as of June 1991, when the obligation to respect and ensure the
rights recognized in the American Convention was already binding upon
Admissibility requirements for the petition
Exhaustion of the remedies under domestic law
The Commission notes that the petition in this case, dated July
2, 1991, was filed before the remedies under domestic law had been exhausted. That fact, however, does not preclude the admissibility of
the petition at this stage in the process.
The IACHR has pointed out that the requirements for a petitions
admissibility must be examined at the time the Commission decides the
question of admissibility. Article
46 of the Convention states that Admission by the Commission of
a petition or communication lodged in accordance with Articles 44 or 45
shall be subject to the following requirements: a) that the remedies under
domestic law have been pursued and exhausted in accordance with generally
recognized principles of international law.
The decision as to the admissibility of a petition is not made
at the time the petition is filed.
Under Article 33 of the Commissions Regulations, for example,
the Commission may ask the petitioner to complete the requirements omitted
in a petition when the Commission considers that the petition is inadmissible
To declare a case inadmissible because the remedies under domestic
law have not been exhausted at the time of filing, even when by the time
the Commission rules on admissibility those resources have already been
exhausted, would imply a decision based solely on the formalities of the
law, which is totally at odds with the protection of the human rights
recognized in the Convention. The
alleged victims could be left without any means of defense.
Even if a new petition on the same facts were presented, the Commission
would in all likelihood be unable to examine the case if by that time
the six-month period provided for in Article 46(1)(b) of the Convention
had expired. The Inter-American Court of Human Rights has ruled that It
is generally accepted that the procedural system is a means of attaining
justice and that the latter cannot be sacrificed for the sake of mere
The Commission is confirming that the situation that must be considered
to establish whether the domestic remedies have been exhausted is the
situation at the time the issue of admissibility is decided.
Consequently, the Commission considers that with the ruling handed
down by the Criminal Transitory Chamber of the Supreme Court on October
17, 1994, the rule contained in Article 46(1)(a) of the American Convention
requiring exhaustion of domestic remedies is satisfied.
In the instant case, the petition was lodged before the ruling
of the Supreme Courts Criminal Transitory Chamber on October 17,
1994. Therefore, the requirement
established in Article 46(1)(b) of the American Convention is met.
Duplication of proceedings and res
It is the Commissions understanding that the subject of the
petition is not pending in another international proceeding for settlement.
Nor is it substantially the same as one previously studied by the
Commission or by another international organization.
Thus, the requirements stipulated in Articles 46(1(c) and 47(d)
Characterization of the facts
The Commission considers that the petitioners brief concerns
facts that if true could constitute a violation of rights guaranteed under
In effect, the Commission observes that the petitioners argue that
the intellectual authors of the crimes denounced were never prosecuted.
The petitioners contend that even though it was shown that the
orders came from superiors, the only persons prosecuted were the five
police offers who received the orders to execute the Gómez Paquiyauri
brothers. The intellectual
authors of the crime, who radioed the orders to execute the victims, have
never been brought to justice, even through there is sufficient evidence
linking them to the homicides.
The Commission notes in this regard that Article 1 of the American
Convention on Human Rights establishes the obligation of States parties
to respect the rights and freedoms recognized therein to all persons subject
to their jurisdiction and to ensure to them the free and full exercise
of those rights and freedoms. Because
of the obligation to ensure the free and full exercise of the rights and
freedoms recognized in the Convention, States are obligated to prevent,
investigate and punish any violation of the rights recognized by the Convention
and, moreover, if possible attempt to restore the right violated and provide
compensation as warranted for damages resulting from the violation.
The obligation to investigate and punish any action that involves
a violation of the rights recognized by the Convention requires that the
intellectual authors of human rights violations be punished as well.
Furthermore, on the matter of civil damages in the deaths of the
young Emilio Moisés and Rafael Samuel Gómez Paquiyauri, the IACHR notes
that on November 29, 1993, the Third Chamber of the Callao Superior Court
handed down a ruling convicting the material authors of the crimes and
ordering them to pay the victims legal heirs a total of 20,000 new
soles in the form of civil damages.
The Commission will give its finding on this matter in the report
on the merits, where it will examine the petitioners allegation
to the effect that the convicted police officers have not paid those civil
damages and arguing that the State is responsible for payment.
The Commission further observes that the petition concerns the
alleged extrajudicial execution of a 17-year old youth and a 14-year old
boy. Exercising its authorities
by virtue of the principle iura
novit curia, at its own initiative the Commission is deciding to study
whether the facts denounced might constitute a violation by Peru of the
provisions of Article 19 of the American Convention. Exercising that same authority and at its own initiative, the
Commission also decides to study whether the facts denounced could constitute
a violation by Peru of Articles 8 and 25 of the American Convention since,
as previously noted, there have been problems or omissions in the investigation
into the intellectual authors of the extrajudicial executions denounced
in the instant case.
The Commission concludes that it is competent to take cognizance
of this case and that the petition is admissible under Articles 46 and
47 of the American Convention.
Based on the foregoing arguments of fact and of law, and without
prejudging the merits of the case,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare that the present case is admissible with respect to
the possible violations of Articles 1(1), 4, 5, 7, 8, 19 and 25 of the
American Convention on Human Rights.
To notify the parties of this decision.
To continue the analysis of the merits of the case.
To publish this decision and 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 the city of Washington, D.C., on the fifth day of March in the year 2001. (Signed) Claudio Grossman, Chairman; Juan Méndez, First-Vice Chairman; Marta Altolaguirre, Second Vice-Chair, and Commission members Hélio Bicudo, Robert K. Goldman, Julio Prado Vallejo and Peter Laurie.
IACHR, Report N° 52/00, Dismissed
Congressional Employees, Cases 11.830 and 12.038, paragraphs
IACtHR, Cayara Case,
Preliminary Objections, Judgment of February 3, 1993, par. 42.
IACtHR, Velásquez Rodríguez Case, Judgement of July 29, 1988, Series
C No. 4, par.166.
See IACHR, Report N° 42/99, Hugo Muñoz Sánchez, Bertila Lozano Torres,
Dora Oyaque Fierro, Luis Enrique Ortiz Perea, Armando Richard Amaro
Condor, Robert Edgar Teodoro Espinoza, Heráclides Pablo Meza, Felipe
Flores Chipana, Marcelino Rosales Cárdenas and Juan Gabriel Mariños
Figueroa (La Cantuta), Case 11.045 (Peru) paragraphs 34-38.
See also IACtHR, Constitutional Court Case, judgment of September
29, 1999. Series C No. 71, para.123, and IACtHR, Blake Case, Reparations,
Judgment of January 22, 1999, Series C No. 48, par. 65.