Leoncio Florian López et al v. Peru, Case 11.849, Report No. 65/00, OEA/Ser.L/V/II.111 Doc. 20 rev. at 344 (2000).
LEONCIO FLORIAN LÓPEZ ET AL.
October 3, 2000
By petition submitted to the Inter-American Commission on Human
Rights (hereinafter the Commission, the Inter-American
Commission, or IACHR) on December 1, 1997, and amended
on December 16, 1997, the non-governmental organizations Centro de
Estudios y Acción para la Paz (CEAPAZ), the Instituto
de Defensa Legal (IDL), the Fundación Ecuménica para el Desarrollo
y la Paz (FEDEPAZ), the Asociación Pro Derechos Humanos
(APRODEH), the Grupo de Iniciativa Nacional para los Derechos
del Niño (GIN), and the Center for Justice and International
Law (CEJIL) (hereinafter the petitioners), alleged
that the Republic of Peru (hereinafter Peru, the State,
or the Peruvian State) violated the human rights of youths
Leoncio Florian López (18 years old), Félix Augusto Acuachi Espino (18),
Hans Percy Burgos Castañeda (15), Henry Alejandro Gonzáles Gonzáles (18),
David Wilfredo Carpio Cueva (18), Roberto Carlos Flores Valdivia (18),
César Manuel Huaccha Ramos (17), Mario Antonio Cajavilca de la Cruz (20),
Alex Romero Tirado (20), Jorge Romero Tirado (18), Wilfredo Arroyo Gines
(17), Williams Palomino López (17), Wilson Quispe Rodríguez (18), Elvis
Rodríguez Guillén (18), Juan Carlos Vila Plascencia (18), Roger Suárez
Soto (16), Moisés Ruiz Laguna (17), and Gabino Sánchez Narciso (18), on
taking them, on March 14, 1997, from the Center for Diagnostics and Rehabilitation
of Lima to the Quencoro Maximum Security Prison for Adults at Cuzco, and
subjecting them, once there, to precarious conditions of confinement,
without any possibility of visits given the distance, with very poor diet,
and without any regular medical or psychological assistance.
The petitioners alleged that these events constitute a violation
of the rights of personal liberty, a fair trial, humane treatment, and
measures of protection set forth at Articles 7, 8, 5, and 19 of the American
Convention on Human Rights (hereinafter the Convention or
the American Convention).
The State adduced that the case is inadmissible since the facts
stated do not tend to establish a violation of rights guaranteed by the
American Convention on Human Rights; it later alleged that the case should
be archived since the facts that gave rise to the request do not subsist.
The Commission decides to admit the case and to proceed to analyze
the merits issues.
PROCEEDINGS BEFORE THE COMMISSION
On December 12, 1997, the Commission opened the case, forwarded
the pertinent parts of the complaint to the Peruvian State, and requested
that it provide information within 90 days.
The petitioners submitted additional information on December 16,
1997. Peru answered on March
5, 1998. The petitioners
submitted observations on the States response on January 11, 1999.
The State submitted final comments on March 25, 1999.
Both parties submitted several additional briefs.
POSITION OF THE PARTIES
Position of the petitioners
The petitioners indicate that on March 14, 1997, and due to an
escape attempt, the Executive Committee of the Judiciary ruled that the
presumed victims be transferred from the Youth Center for Diagnostics
and Rehabilitation, located in the city of Lima, to the Quencoro Maximum
Security Prison, located in the city of Cuzco.
They allege that the Quencoro Center for Diagnostics and Rehabilitation
was established at a new locale, in Cuzco, which did not have the infrastructure
needed to carry out the work activities, educational programs, or recreational
activities for adolescents. They
add that the Center did not have a permanent medical service, though nine
of the alleged victims suffered diseases such as bronchial affections,
parasitosis, and acute depression, among others.
They note that the situation of the alleged victims at Quencoro
was characterized by the lack of the rehabilitation function provided
for in the Code on the Minor; deficient food; difficulties in the regime
of visits, since the youths family members generally did not have
the economic resources needed to travel to Cuzco; and conditions of confinement
even worse than those applied to the adult convicts, for these youths,
on average, had only six hours a week in the yard.
They state that the transfer of the youths is a violation of their
right to personal liberty, for it was based on an administrative decision,
not a judicial decision, as required by domestic law, thereby constituting
arbitrary imprisonment. They argue that this transfer also entails a violation of the
youths right to a fair trial, as a punitive measure was applied
to them outside of any judicial process, in which the judge with jurisdiction
was the family judge, at that time, for the Judicial District of Lima.
They add that as a result of the transfer, the youths who had judicial
proceedings pending suffered a violation of the right to be assisted by
counsel; and with the transfer of the persons allegedly implicated in
the escape attempt, they were unable to exercise their right of defense.
They allege that the way in which the transfer occurred; the confinement
in the maximum security prison; and the regime imposed on them there constituted
inhuman treatment, in violation of the youths right to humane treatment.
They add that the youths transfer implied that they were
not receiving rehabilitative treatment and were not adequately separated
from the adults, in violation of the right to measures of protection set
forth in the American Convention.
They note that on March 24, 1997, they filed a habeas corpus action
in relation to the transfer of the youths to the Quencoro Rehabilitation
Center, but that this action was declared inadmissible in the first instance
and on appeal. They add that
once the judgment on appeal was handed down, it was challenged by a motion
for nullity before the Constitutional Court, which on August 22, 1997,
confirmed the inadmissibility of the habeas corpus action.
Position of the State
In its initial answer, the State alleges that the youths were transferred
temporarily, as part of security measures to protect the rest of the prison
population. It notes that
it was a measure ordered by the competent authority, properly exercising
its functions. It adds that
through judicial inspection it was found that the transfer of the youths
included the presence of medical personnel, until they were located in
a pavilion specially designed and adapted for them.
It further argues that according to the foregoing, and pursuant
to Article 47(b) and (c), the case is inadmissible since the facts alleged
do not tend to establish a violation of rights guaranteed by the American
It further adduces, in subsequent communications, that the Quencoro
Youth Rehabilitation Center in Cuzco was deactivated on January 11, 1999,
and that as of March 25, 1999, only two of the youths included in the
original complaint were confined, as a socio-educational
measure, and at a different Rehabilitation Center.
It notes that in consideration thereof, the case should be archived,
pursuant to Article 48(1)(b ) of the American Convention and Article 35(c)
of the Commissions Regulations, as the motives that gave rise to
it no longer subsist.
The Commission will now analyze the admissibility requirements
of a petition, established in the American Convention, and the request
by the State to archive the case.
Competence of the Commission ratione
materiae, ratione personae,
The petitioners are authorized by Article 44 of the American Convention
to present complaints to the IACHR.
The petition indicates that the alleged victims are individuals,
with respect to whom Peru undertook to respect and guarantee the rights
set forth in the American Convention.
As regards the State, the Commission observes that Peru is a state
party to the American Convention, having ratified it on July 28, 1978.
Therefore, the Commission is competent ratione
personae to examine the complaint.
In addition, the Commission is competent ratione
materiae since the facts alleged in the petition could be violative
of rights protected by the American Convention.
The IACHR is also competent ratione
temporis since the facts in question are alleged to have taken place
as of 1997, when the obligation to respect and ensure the rights established
in the American Convention had already entered into force for the Peruvian
Admissibility requirements of the petition
Exhaustion of domestic remedies
Petitioners allege that on March 24, 1997, they filed a habeas
corpus action in relation to the transfer of the youths to the Quencoro
Rehabilitation Center. That
action was declared inadmissible in the first instance and on appeal.
Once the decision on appeal was rendered, it was challenged via
a motion for nullity before the Constitutional Court, which, on August
22, 1997, confirmed the inadmissibility of the habeas corpus action.
For its part, the State has not made any objection related to the
requirement of exhaustion of domestic remedies.
In this respect, the Inter-American Court has noted 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.
For the foregoing reasons, the Commission concludes that the requirement
concerning exhaustion of domestic remedies has been met.
Time period for submission
As regards the requirement set forth at Article 46(1)(b) of the
Convention, according to which the petition must be submitted within six
months from notification to the victim of the final decision that exhausted
domestic remedies, it has been met in this case since the judgment of
the Constitutional Court that concluded the judicial process was reported
on October 9, 1997, and the petition was submitted to the IACHR on December
Duplicity of procedures and res
The Commission understands that the subject matter of the petition
is not pending before any other international body for settlement, nor
does it reproduce a petition already examined by this or any other international
the requirements of Articles 46(1)(c) and 47(d) are found to have been
Characterization of the facts
In the first stages of the proceedings before the IACHR, the State,
as mentioned supra, indicated
that the transfer of the youths was done as a temporary measure, and that
it was done in the context of security measures to protect the rest of
the prison population. It
added that it was a measure ordered by the competent authority and in
the full exercise of its functions, and that through judicial inspection
it was found that the transfer of the youths was done with the presence
of medical personnel, until their placement in a pavilion specially designed
and adapted for them. In
view of the foregoing, Peru asked that the case be declared inadmissible,
for failing to tend to establish a violation of the rights protected in
the Convention. The Commission
decides to address this issue when analyzing the merits, as it considers
that the petitioners presentation refers prima facie to facts which, if true, tend to establish a violation
of rights guaranteed in the Convention.
Request to archive the case
With respect to the request to archive the case, made by the State
in the subsequent stages of proceedings before the IACHR, based on the
grounds that the motives that gave rise to it no longer subsist, since
the youths are free or outside of the Quencoro Rehabilitation Center at
Cuzco, the Commission observes that, as the Inter-American Court of Human
Rights has established, the obligation to guarantee to all persons under
their jurisdiction the free and full exercise of the rights recognized
in the Convention, provided for at Article 1(1) of the American Convention,
means that the States
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
In this respect, from the parties arguments it does not appear
that there has been an investigation into and punishment of the human
rights violations alleged in this case, nor does it appear that any reparation
has been made for the possible damages that said violations, if they occurred,
may have caused. Therefore,
the Inter-American Commission does not have a basis at this stage in the
proceeding to archive the case based on the argument that the reasons
that gave rise to it no longer subsist.
The Commission considers that it is competent to hear this case
and that the petition is admissible, under Articles 46 and 47 of the American
Convention, in the terms set forth above.
Based on the arguments of fact and of law set forth above, and
without prejudging on the merits,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare this case admissible with respect to the alleged violations
of Articles 7, 8, 5, and 19 of the American Convention.
2. To give notice
of this decision to the petitioners and to the State.
3. To continue to
analyze the merits of the case.
4. To publish this
decision and include it in its Annual Report to the OAS General Assembly.
Done and signed by the Inter-American Commission on Human Rights in Washington,
D.C., on October 3, 2000. (Signed):
Hélio Bicudo, Chairman; Juan E. Méndez, Second Vice- Chairman; Members:
Marta Altolaguirre, Robert K. Goldman,
Peter Laurie, and Julio Prado Vallejo.
Inter-American Court of Human Rights, Case of Velásquez Rodríguez,
Preliminary Objections, Judgment of June 26, 1987, Series C No. 1,
para. 88; Case of Fairén Garbi and Solís Corrales, Preliminary Objections,
Judgment of June 26, 1987, Series C No. 2, para. 87; Case of Godínez
Cruz, Preliminary Objections, Judgment of June 26, 1987, Series C
No. 3, para. 90; Inter-American Court of Human Rights, Case of Gangaram
Panday, Preliminary Objections, Judgment of December 4, 1991, Series
C No. 12, para. 38; Inter-American Court of Human Rights, Case of
Neira Alegría et al., Preliminary Objections, Judgment of December
11, 1991, Series C No. 13, para. 30; Inter-American Court of Human
Rights, Case of Castillo Páez, Preliminary Objections, Judgment of
January 30, 1996, Series C No. 24, para. 40; and Inter-American Court
of Human Rights, Case of Loayza Tamayo, Preliminary Objections, Judgment
of January 31, 1996, Series C No. 25, para. 40.
Inter-American Court of Human Rights, Case of Velásquez Rodríguez,
Judgment of July 29, 1988, para. 166.