María Mamérita Mestanza Chavez v. Peru, Case 12.191, Report No. 66/00, OEA/Ser.L/V/II.111 Doc. 20 rev. at 350 (2000).
MARIA MAMÉRITA MESTANZA CHÁVEZ
October 3, 2000
By petition submitted to the Inter-American Commission on Human
Rights (hereinafter the Commission, the Inter-American
Commission, or the IACHR) on June 15, 1999, the non-governmental
organizations Estudio para la Defensa de la Mujer (DEMUS), the
Latin American and Caribbean Committee for the Defense of Womens
Rights (CLADEM), and the Asociación Pro Derechos Humanos (APRODEH),
which later accredited as co-petitioners the Centro Legal para Derechos
Reproductivos y Políticas Públicas (CRLP) 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 Mrs. María Mamérita Mestanza Chávez, on forcefully subjecting her to
surgical sterilization, which ultimately caused her death.
The original petitioners alleged that the facts in this case constitute
a violation by the Peruvian State of the rights to life, humane treatment,
and equality before the law, set forth in Articles 4, 5, 1, and 24 of
the American Convention on Human Rights (hereinafter the Convention
or the American Convention), as well as violations of Articles
3, 4, 7, 8, and 9 of the Inter-American Convention on the Prevention,
Punishment and Eradication of Violence against Women (hereinafter Convention
of Belém do Pará), Articles 3 and 10 of the Additional Protocol
to the American Convention on Human Rights in the area of Economic, Social
and Cultural Rights (hereinafter Protocol of San Salvador),
and Articles 12 and 14(2) of the Convention on the Elimination of All
Forms of Discrimination Against Women (CEDAW).
The State argued that the case is inadmissible for failure to exhaust
domestic remedies. The Commission
decides to admit the case with respect to the alleged violations of Articles
1, 4, 5, and 24 of the American Convention, and Article 7 of the Convention
of Belém do Pará.
PROCESSING BEFORE THE COMMISSION
The Commission received the complaint on June 15, 1999. On July
14, 1999, the IACHR opened the case, forwarded the pertinent parts of
the complaint to the Peruvian State, and requested that it provide information
within 90 days. Peru requested
an extension of this period, which was granted by the IACHR.
Peru answered on January 14, 2000.
The petitioners submitted observations to the States answer
on April 12, 2000.
POSITION OF THE PARTIES
Position of the petitioners
Petitioners allege that the case of Mrs. María Mamérita Mestanza
represents one more of a significant number of cases of women affected
by the implementation of a massive, compulsory, and systematic government
policy that emphasized sterilization as a method for quickly modifying
the reproductive behavior of the population, especially of poor, indigenous,
and rural women. In this
respect, they note that the Office of the Human Rights Ombudsman (Defensoría
del Pueblo) received several complaints in this regard, and that from November 1996 to November 1998, CLADEM
documented 243 cases of human rights violations in the surgical contraception
program carried out in Peru.
They note that Mrs. María Mamérita Mestanza, a peasant woman approximately
33 years of age and mother of seven, was subject to harassment, dating
back to 1996, by the health center for the District of La Encañada,
which is part of the public health system, in an effort to have her become
sterilized. In this context, she and her permanent partner Jacinto Salazar
Suárez received various forms of harassment, which included several visits
in which health staff threatened to denounce her and Mr. Salazar Suárez
to the police, as they were told the government had adopted a law under
which anyone with more than five children had to pay a fine and would
be taken to prison.
They state that ultimately, and under coercion, Mrs. Mestanzas
consent was obtained to undergo surgery for a tubal ligation. The surgical
procedure was performed on March 27, 1998, at the Regional Hospital at
Cajamarca, without any prior medical exam.
Mrs. Mestanza was discharged the next day, March 28, 1998, when
she still manifested serious anomalies, such as vomiting and intense headaches.
During the next few days Mr. Jacinto Salazar informed the personnel
at the La Encañada health center as to Mrs. Mestanzas condition,
which was growing worse with each passing day, and the personnel at the
health center said that these were the after-effects of the operation
due to the anesthesia.
They adduce that Mrs. Mestanza Chávez finally died at home, on
April 5, 1998, and that the death certificate indicated a sepsis as a
the direct cause of death and bilateral tubal blockage as the antecedent
cause. They reported that
days later a physician from the health center offered Mr. Jacinto Salazar
a sum of money to consider the problem over and done with.
They indicate that on April 15, 1998, Mr. Jacinto Salazar denounced
Martín Ormeño Gutiérrez, Chief of the La Encañada health center,
to the Mixed Provisional Prosecutor for Baños del Inca in relation
to the death of Mrs. Mestanza, for crimes against her life, body, and
health, constituting the offense of manslaughter. They add that on May 15, 1998, that Provincial Prosecutor formally
presented criminal charges against Mr. Ormeño Gutiérrez and other persons,
to the Provincial Judge, who on June 4, 1998, declared that there were
no grounds for opening an investigation.
That decision was confirmed on July 1, 1998, by the Specialized
Chamber for Criminal Matters, pursuant to which the Provincial Prosecutor
ordered the case closed on December 16, 1998.
Position of the State
The State argues that the Ministry of Health investigated the facts,
and that its investigation resulted in inadequate counseling
for Mrs. Mestanza and a failure to monitor after the surgery, all as the
result of a voluntary surgical operation.
It notes that as a result of this report the physicians, nurses,
and anesthetists who participated in the surgery on Mrs. Mestanza, and
the directors of the health center and Coordinators of the Reproductive
Health Programs, were found to be administratively liable.
The State adds that the case was then studied by the Office of
the Inspector General for health, and also by the Mixed Court of Baños
del Inca, in the city of Cajamarca, and by the Specialized Chamber
of the Superior Court of Justice, which decided to halt the investigation
that was begun pursuant to the criminal complaint presented by Mr. Salazar
Suárez to the Criminal Provincial Prosecutor of Baños del Inca
on April 15, 1998. With the foregoing, and pursuant to Peruvian legislation,
the State indicated that the decision to not open the investigation became
The State further adduces that the action brought by Mr. Salazar
was aimed at defining the individual liability of agents in acts of medical
negligence and its purpose was not to make a determination regarding what
the petitioners described as forced sterilization. Because
of this, it requested that the case be declared inadmissible, since domestic
remedies were not exhausted with respect to the surgical procedure which
the victim allegedly did not freely choose, and with respect to the harassment
and discriminatory acts denounced by the petitioners.
The Commission now analyzes the admissibility requirements for
a petition set forth in the American Convention.
A. Competence of the Commission ratione materiae, ratione personae
The petitioners are authorized by Article 44 of the American Convention
and Article 12 of the Convention of Belém do Pará to present complaints
to the IACHR. The petition
sets forth as the alleged victim an individual with respect to whom Peru
undertook to respect and ensure the rights enshrined in the American Convention
and in the Convention of Belém do Pará.
As regards the State, the Commission observes that Peru is a state
party to the American Convention, having ratified it on July 28, 1978,
and of the Convention of Belém do Pará, having ratified it on October
18, 1995. Accordingly, 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 violations
of rights protected by the American Convention and by the Convention of
Belém do Pará, at Article 7.
The IACHR is also competent ratione
temporis, as the facts in question allegedly occurred in 1996, when
the obligation to respect and ensure the rights established in the American
Convention and in the Convention of Belém do Pará was already in force
for the Peruvian State.
Admissibility requirements of the petition
Exhaustion of domestic remedies
The petitioners and the State agree that on April 15, 1998, Mr.
Jacinto Salazar lodged a complaint with the Mixed Provisional Prosecutor
of Baños del Inca against Martín Ormeño Gutiérrez, Chief of the
health center at La Encañada in relation to the death of Mrs. Mestanza,
for crimes against the life, the body, and health, constituting manslaughter.
On May 15, 1998, that Provincial Prosecutor filed formal criminal
charges against Mr. Ormeño Gutiérrez and other persons before the local
Provincial Judge, who on June 4, 1998, declared that there were no grounds
for opening the investigation. That
decision was confirmed on July 1, 1998, by the Specialized Chamber for
Criminal Matters; consequently, the Provincial Prosecutor ordered the
case archived with prejudice.
The petitioners argue that domestic remedies were exhausted with
the foregoing decision. The State adduces that the December 16, 1998 decision is final
and res judicata, but that it
did not constitute exhaustion of domestic remedies, since it was aimed
at determining liabilities for the possible negligent homicide of Mrs.
Mestanza, but not in relation to the alleged forced sterilization of Mrs.
Mestanza nor the alleged acts of harassment and discrimination against
The Commission observes that the domestic remedy exhausted by Mr.
Jacinto Salazar was adequate, at least in theory, to seek to obtain justice
in the specific case, through criminal sanction of the Chief of the health
center where the facts occurred that later caused the death of Mrs. Mestanza.
Furthermore, the State has not shown what other domestic remedies
should have been exhausted. In
this respect, the Inter-American Court of Human Rights has established
that a State that alleges non-exhaustion must indicate the domestic remedies
that must be exhausted, and must show they are effective.
For the reasons set forth above, the Commission concludes that
the requirement concerning exhaustion of domestic remedies has been met.
Time period for presentation
The requirement set forth at Article 46(1)(b) of the Convention,
according to which the petition must be presented within six months of
the victim receiving notification of the final decision that has exhausted
domestic remedies, has been met in this case, since domestic remedies
were exhausted on December 16, 1998; and even though the date of notice
of that decision does not appear in the record, the petition was filed
with the IACHR on June 15, 1999, before six months had run since the date
of the decision.
Duplication of procedures and res judicata
The Commission understands that the subject matter of the petition
is not pending before any other international procedure for settlement,
nor does it deal with the same subject matter as a petition already examined
by this or any other international organization.
Accordingly, the requirements established at Articles 46(1)(c)
and 47(d) are also satisfied.
Characterization of the facts
The Commission considers that the presentation by the petitioners
states facts which, if true, tend to establish a violation of rights guaranteed
in the American Convention and the Convention of Belém do Pará.
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 foregoing arguments of fact and law, and without prejudging
on the merits,
THE INTER-AMERICAN COMMISSION
ON HUMAN RIGHTS,
To declare this case admissible, in relation to the violations
alleged of Articles 1, 4, 5, and 24 of the American Convention, and Article
7 of the Convention of Belém do Pará.
To notify the petitioners and the State of this decision.
To proceed to analyze the merits issues.
To publish this decision and include it in its Annual Report for
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.
Defensoría del Pueblo, Informe sobre la Aplicación
de la Anticoncepción Quirúrgica Voluntaria:
los casos investigados por la Defensoría del Pueblo,
Lima, January 1998.
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; and Case of Godínez
Cruz, Preliminary Objections, Judgment of June 26, 1987. Series C
No. 3, para. 90.