Augusto Zuñiga Paz v. Peru, Case 11.149, Report No. 45/01, OEA/Ser.L/V/II.111 Doc. 20 rev. at 373 (2000).
REPORT Nº 45/01
CASE 11.149
AUGUSTO ALEJANDRO ZÚÑIGA PAZ
PERU
March 5, 2001
I.
SUMMARY
1.
On April 1, 1993, the Inter-American Commission on Human Rights
(hereinafter the Commission, the Inter-American Commission,
or the IACHR) received a petition that Mr. Augusto Alejandro
Zuñiga Paz (hereinafter the
petitioner) filed against the Republic of Peru (hereinafter Peru,
the State, or the Peruvian State).
The petition alleged the States failure to investigate and
punish an incident involving the explosion of a letter bomb that the petitioner
received at the headquarters of a nongovernmental organization, namely
the Comisión de Derechos Humanos (COMISEDH) [Human Rights Commission],
on March 15, 1991, which caused the petitioner to lose his left arm. The
petitioner alleged that this constituted a violation by Peru of the right
to life, the right to humane treatment, the right to due process of law
and the right to judicial protection, recognized in Articles 4, 5, 8 and
25, respectively, of the American Convention on Human Rights (hereinafter
the Convention or the American Convention).
The Peruvian State, on the other hand, argued that the case was
inadmissible because it held the State responsible for the allegations
made, even though no such responsibility was established.
The Commission hereby decides to admit the case and continue with
its analysis of the merits.
II.
PROCESSING WITH THE COMMISSION
2.
The Commission opened the case on April 27, 1993, forwarded the
pertinent parts of the petition to the Peruvian State and asked that it
supply information within a period of 90 days.
The State responded on July 6, 1993.
On July 20, 1993, the Commission forwarded the States response
to the petitioner and requested the petitioners comments on that
response within 45 days.
3.
On August 3, 1998, the State sent a communication to the Commission,
which the latter forwarded to the petitioner on August 17, 1998, requesting
his observations within 30 days.
The petitioner presented his observations on October 8, 1998, and
the State responded to those observations on December 4, 1998.
4.
On January 14, 1999, the Commission placed itself at the disposal
of the parties with a view to reaching a friendly settlement.
On January 22, 1999, the petitioner stated that he would be willing
to come to a friendly settlement if the State acknowledged its responsibility
for the events and took action to make adequate reparations.
The State replied on January 27, 1999, and insisted that the case
should be declared inadmissible.
5.
On February 22, 2001, via a communication that Perus Minister
of Justice, Dr. Diego García Sayán delivered personally to the Commission,
in a February 22, 2001 session held with the Commissions full membership
during the IACHRs 110st regular session, Peru announced that it
will acknowledge its responsibility in the instant case.
It added that the grave attempt made on the life of Dr. Zúñiga
Paz, a distinguished defender of human rights, must not go unpunished.
Every measure necessary to ascertain responsibilities will be exhausted
and a proposal will be prepared for moral and financial damages.[1]
III.
POSITION OF THE PARTIES
A.
The petitioners position
6.
The petitioner noted that he was an attorney working as a human
rights defender in Peru. He alleged that on March 15, 1991, he received at his office,
the nongovernmental organization called the Human Rights Commission (COMISEDH),
a manila envelope with the seal of the Secretariat of the Office of the
President of the Republic. The
envelope contained 50 grams of explosives. The petitioner reported that
he lost his left arm in the explosion that went off when he opened the
envelope.
7.
The petitioner reported that he had been receiving repeated threats,
intended to scare him into abandoning his representation in a case involving
the forced disappearance of the student Ernesto Rafael Castillo Páez,
which the Commission and then the Inter-American Court of Human Rights
examined.[2]
8. He pointed out
that a number of public figures blamed the security forces for the attack
on Dr. Zúñiga Paz, given his connection to the investigation into the
case of student Castillo Páez. Another clue was the specifications of the explosive used,
which was one whose circulation was controlled exclusively by the armed
forces.
9. The petitioner
argued that even assuming, for the sake of argument, that the facts recounted
did not constitute sufficient evidence to prove the States responsibility,
the State still had an obligation to conduct an impartial and serious
investigation of the facts denounced.
10.
The petitioner added that the investigation being conducted by
the Office of the 19th Provisional Prosecutor for Criminal
Cases had produced sufficient evidence to show that circulation of the
explosive used was controlled by the armed forces.
However, on January 3, 1992, the investigation was transferred
to the Office of Limas 10th Provisional Prosecutor, on
the grounds that the mandate of the 19th Provisional Prosecutor
had ended. A decision of
April 27, 1992 ordered the case provisionally closed.
The petitioner noted that on September 16, 1992, the Office of
the Special Superior Court Prosecutor for Terrorism-related Matters confirmed
the decision to close the case.
B.
The States position
11.
The State argued that the petition was inadmissible because it
contained unfounded allegations as to the authorship of the attack perpetrated
on the petitioner.
12.
It pointed out that having studied the case file on the complaint
filed by the petitioner, it found no reason or evidence to suggest that
the assault made against the petitioner was the work of police or military
troops.
13.
It reported that through Notice No. 2901-D2 DINCOTE, the Anti-Terrorism
Office concluded that an attempt had been made on the life of the petitioner
and that the corresponding investigations were conducted and found that
there was no possible way to locate or identify those responsible.
14.
The State asserted that the competent organs did conduct serious
and responsible investigations to shed full light on the facts, and found
that the forces of law and order (the armed forces and police) were not
responsible for the attempt made on the petitioners life.
15.
On February 22, 2001, the State reported that it would acknowledge
responsibility in the present case and added that the grave attempt
made on the life of Dr. Zúñiga Paz, a distinguished defender of human
rights, must not go unpunished. Every measure necessary to ascertain responsibilities will
be exhausted and a proposal will be prepared for moral and financial damages.
(supra, paragraph 5).
IV. ANALYSIS
16.
The Commission will now examine the requirements established in
the American Convention for a petitions admissibility.
A.
Competence of the Commission ratione
materiae, ratione personae and
ratione temporis
17.
Under Article 44 of the American Convention, the petitioner is
authorized to lodge petitions with the IACHR.
The petition names a natural person as the alleged victim, whose
Convention-recognized rights Peru has undertaken to respect and ensure. The Commission further observes that Peru is a State party
to the American Convention, having ratified it on July 28, 1978.
The Commission therefore has competence ratione
personae to examine the petition.
18.
The Commission has competence ratione
materiae because the facts alleged in the petition could constitute
violations of rights protected by the American Convention.
19.
The Commission has competence ratione
temporis by virtue of the fact that the facts in question were alleged
to have occurred as of March 1991, when Perus obligation to respect
and ensure the rights recognized in the American Convention was already
in force.
B.
The petitions admissibility requirements
1.
Exhaustion of domestic remedies and deadline for filing
20.
Article 46 of the American Convention stipulates that Admission
by the Commission of a petition or communication lodged in accordance
with Articles 44 and 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; b. that the petition or communication
is 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 (
).
21.
As for the exhaustion of the remedies under domestic law, the petition
is alleging that the Public Prosecutors Office learned of the facts
from a complaint filed with the Attorney General on March 19, 1991.
The Attorney General assigned the investigation to the Office of
the 3rd Provisional Criminal Prosecutor.
On June 28, 1991, the Senior Superior Court Prosecutor designated
the Office of the 19th Provisional Criminal Prosecutor for
Lima to continue the inquiry. Later,
on January 3, 1992, the Senior Superior Court Prosecutor decided to hand
the investigation over to the Office of the 10th Provisional
Criminal Prosecutor on the grounds that the mandate of the Office of the
19th Provisional Prosecutor as an ad
hoc prosecutorial office had ended.
On April 27, 1992, the Office of the 10th Provisional
Criminal Prosecutor ordered that the case be temporarily stayed, a decision
confirmed by the Special Superior Court Prosecutor for Terrorism Matters
on September 16 of that year.
22.
For its part, the State did not enter any objection invoking the
rule requiring exhaustion of the remedies under domestic law. Here, the
Inter-American Court has held that the objection asserting
the non-exhaustion of domestic remedies, to be timely,
must be made at an early stage of the proceedings by the State
entitled to make it, lest a waiver of the requirement be presumed.[3]
23.
For these reasons, the Commission concludes that the requirement
concerning exhaustion of remedies under domestic law has been met.
Concerning the filing deadline, the Commission notes that nothing
in the case file indicates a failure to comply with Article 46(1)(b) of
the Convention.
2.
Duplication of proceedings and res
judicata
24.
It is the Commissions understanding that the subject matter
of the petition is not pending in another international proceeding for
settlement and is not substantially the same as one previously examined
by the Commission or by another international organization.
Therefore, the requirements set forth in Articles 46(1)(c) and
47(d) have been met.
3.
Characterization of the facts
25.
The Commission considers that the facts alleged, if proven, could
constitute violations of rights recognized in the American Convention
on Human Rights.
26.
In this regard, the Commission is confirming that it is very grateful
for the statement that Peru made on February 22, 2001, to the effect that
it will take responsibility in the present case and that the
grave attempt made on the life of Dr. Zúñiga Paz, a distinguished defender
of human rights, must not go unpunished.
Every measure necessary to ascertain responsibilities will be exhausted
and a proposal will be prepared for moral and financial damages.
(supra, par. 5).
V. CONCLUSIONS
27.
The Commission therefore concludes that it has competence to consider
this case and that the petition is admissible under Articles 46 and 47
of the American Convention. Furthermore,
inasmuch as the State has indicated that it will acknowledge its international
responsibility in the instant case, the Commission decides to reiterate
to both parties its willingness to serve as an organ of conciliation for
a friendly settlement of the present case.
28.
Based on 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 present case admissible with respect to the possible
violations of Articles 1(1), 5, 8 and 25 of the American Convention on
Human Rights.
2.
To reiterate to both parties its willingness to serve as an organ
of conciliation in reaching a friendly settlement.
3.
To notify the parties of this decision.
4.
To publish this decision and include it in the Commissions
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 the fifth day of March in the year 2001. Signed by Claudio Grossman, Chairman; Juan Méndez, First-Vice Chairman; Marta Altolaguirre, Second-Vice Chairman, and Commission members Hélio Bicudo, Robert K. Goldman, Julio Prado Vallejo and Peter Laurie.
[1]
At that time, the IACHR issued a joint press communiqué with the Permanent
Mission of Peru to the OAS to the following effect:
The Inter-American Commission on Human Rights reiterated
its appreciation of the promising measures being taken by the transition
Government headed up by the President of Peru, the Honorable Valentín
Paniagua, by the distinguished members of his cabinet, and by the
Congress of the Republic of Peru, in efforts to redefine and strengthen
the fundamental institutions of the State.
The IACHR added that the present action is one of a group of
highly positive measures that the present Peruvian Government has
taken and reinforces other equally important measures that have been
adopted, such as normalization of the situation of Peru with respect
to the contentious jurisdiction of the Inter-American Court of Human
Rights, Perus recent signing of the Inter-American Convention
on Forced Disappearance of Persons, and the action taken on the recommendations
and precautionary measures requested by the Inter-American Commission.
The IACHR praised and welcomed the Peruvian Governments
plan to propose solutions to a significant number of cases (
).
IACHR and Permanent Mission of Peru to the OAS, Joint Press Communiqué,
February 22, 2001.
[2]
See, for example, Inter-American Court of Human Rights, Castillo Páez Case, Preliminary Objections, Judgment of January 30,
1996.
[3]
IACtHR, Velásquez Rodríguez
Case, Preliminary Objections, Judgment of June 26, 1987, Series
C Nº 1, par. 88; Fairén Garbi
and Solís Corrales Case, Preliminary Objections, Judgment of June
26, 1987, Series C No. 2, par. 87. Godínez
Cruz Case, Preliminary Objections, Judgment of June 26, 1987,
Series C Nº 3, par. 90. IACtHR, Gangaram
Panday Case, Preliminary Objections, Judgment of December 4, 1991,
Series C Nº 12, par.38. IACtHR,
Neira Alegria et al. Case,
Preliminary Objections, Judgment of December 11, 1991, Series
C Nº 13, par.30. IACtHR, Castillo
Páez Case, Preliminary Objections, Judgment of January 30, 1996,
Series C Nº 24, par. 40, and IACtHR, Loayza
Tamayo Case, Preliminary Objections, Judgment of January 31, 1996,
Series C Nº 25, par. 40.