M. Z. v. Bolivia, Case 12.350, Report No. 73/01, OEA/Ser./L/V/II.114 Doc. 5 rev. at 121 (2001).
REPORT No. 73/01
October 10, 2001
On November 22, 2000, the Inter-American Commission on Human Rights
(hereinafter the Inter-American Commission or the IACHR)
received a complaint submitted by the Oficina Jurídica para la Mujer,
the Latin American and Caribbean Committee for the Defense of Womens
Rights (CLADEM), and the Center for Justice and International Law (CEJIL)
(the petitioners) against the Bolivian State (the State),
alleging the violation of the rights and judicial guarantees of MZ.
The petitioner argues that the facts alleged constitute violations
of several provisions of the American Convention on Human Rights (hereinafter
the American Convention), in particular, the duty of the states
to respect and ensure the rights (Article 1(1)), the right to a fair trial
(Article 8(1)), and the right to judicial protection (Article 25); as well
as Article 7 of the Inter-American Convention on the Prevention, Punishment
and Eradication of Violence Against Women.
According to the petition, the alleged victim MZ was raped on October
2, 1994. Accordingly, she turned to the criminal justice system of the Bolivian
State, to have her assailant, Jorge Carlos Aguilar, investigated and punished.
The scant punishment imposed by the trial judge led her to appeal the
decision, to seek a harsher punishment for the perpetrator, one proportional
to the harm caused. Yet the judges
who ruled on the appeal adopted the arbitrary and discriminatory decision
to acquit him, leaving the rape of which MZ was the victim in impunity.
The State considers that the Executive cannot respond to the complaint
filed against Bolivia by MZ, since doing so would attack the independence
of the judiciary; that the complaint is inadmissible since it was filed after
the six-month period established in Article 38 of the previous the Rules of
Procedure of the Commission, in force at the time of the complaint, and in
Article 46 of the American Convention, had lapsed; that the weighing of the
evidence by the judges during the domestic proceedings in Bolivia was done
in the exercise of their jurisdiction, in keeping with the statutes and case-law
of Bolivia, and with respect for the criteria of prudent judgment and healthy
criticism; and that MZ had access to all the remedies provided for in Bolivian
Without prejudging on the merits of the case, in this report the IACHR
concludes that the case is admissible, as it meets the requirements set forth
in Articles 46 and 47 of the American Convention.
Accordingly, the Inter-American Commission decides to notify the parties
of this decision and to continue analyzing the merits with respect to the
alleged violations of Articles 1(1), 8(1), and 25 of the American Convention,
and Article 7 of the Convention of Belém do Pará.
II. PROCESSING OF THE CASE BEFORE
THE INTER-AMERICAN COMMISSION
The petition was received on November 22, 2000, and forwarded to the
Bolivian State on December 14, 2000, as petition number 12.350.
The State presented its observations on March 16, 2001, which were
forwarded to the petitioners on March 21, 2001.
The petitioners requested a 30-day extension to respond to and make
observations on the Bolivian States response.
On April 17, 2001, the Commission granted the petitioner a 60-day extension.
On June 15, 2001, CEJIL requested a 20-day extension; the IACHR granted
a 30-day extension on June 18, 2001.
The petitioners submitted observations on the States response
and additional information on July 19, 2001, which were forwarded to the Bolivian
State on August 8, 2001; it was given 30 days to respond.
On September 11, 2001, the State requested an extension for its submission. The IACHR granted it 30 days from September 14, 2001.
POSITIONS OF THE PARTIES REGARDING ADMISSIBILITY
The petitioners allege that in the early morning hours of October 2,
1994, MZ, 30 years old, of Dutch nationality, single, was attacked and raped
at her home by Jorge Carlos Aguilar, the son of the owners of the house she
rented. The surprise nature of
the attack was such that the victim was initially paralyzed by the terror
and physical strength of the assailant, plus the death threats and the motions
he made suggesting he was about to pull out a weapon; she then put up resistance,
wounding her assailant on the eyebrow with a blunt object.
At the crack of dawn, taking advantage of her assailants carelessness,
the victim was able to flee in search of help.
The family that occupied the main apartment in the building let her
use the telephone, whereupon she called and sought the help of her friends
GB and KF, who accompanied her to report the incident and seek medical care.
Personnel specialized in criminology came to the crime scene, collected
evidence for processing in the laboratory, and took photographs.
The investigation by the Judicial Police led to the conclusion that
MZ was the victim of the crimes of rape and unlawful entry, and pointed to
Jorge Carlos Aguilar as the possible perpetrator; he could not be located
that day, despite the efforts of the Technical Judicial Police and INTERPOL.
The accused was declared to be contumacious and in contempt.
Yet days prior to the conclusion of the period for collecting evidence,
he appeared before the judge to give his deposition. On May 26, 1996, Jorge
Carlos Aguilar was formally indicted, as there were sufficient indicia pointing
to him as the perpetrator of the crime of rape. Once the oral phase of the trial began, the accused Jorge Carlos
Aguilar was summonsed to make his confession.
Once this phase had concluded, the prosecutor asked that a guilty verdict
be returned for the crimes of rape and unlawful entry (allanamiento
Finally, the Third Criminal Judge of Cochabamba found that Jorge Carlos
Aguilar was the perpetrator of the crime of rape, since there was clear and
convincing evidence against him, and he was sentenced to serve five years
Both parties appealed the judgment.
At this procedural stage, Jorge Carlos Aguilar, convicted, presented
a letter under the heading written statement (declaración
escrita) in which he gave a third version of the facts, asserting
that it was MZ who sexually assaulted him, in contrast to what she had argued
throughout the trial.
On October 13, 1997, the Second Criminal Chamber of the Superior Court
for the District of Cochabamba, recognized by the Supreme Court of Justice,
issued the orders (auto de Vista)
in which it absolved Jorge Carlos Aguilar of guilt and reversed the sentence
imposed on him for the crime of rape.
A motion for cassation was filed against this judgment on October 22,
1997, alleging errors of fact and law in the weighing of the evidence, which
was declared UNFOUNDED by the Second Criminal Chamber of the Supreme Court
of Justice on April 25, 2000.
In the document presenting observations to the response by the Bolivian
State, the petitioners state: The Executive branch of Bolivia should
address the complaint put before the Inter-American Commission on Human Rights,
since it represents, internationally, all the branches of government and organs
of the State, which are bound by the international obligations acquired by
The petitioners allege that the complaint was submitted within the
six-month period established by Article 46(1)(b) of the American Convention.
In terms of other admissibility requirements, they state as follows:
The Inter-American Commission on Human Rights is competent
to hear this case because the appellate and cassation procedures pursued by
the Bolivian jurisdiction are violative of due process and other rights enshrined
in the American Convention on Human Rights and the Inter-American Convention
on the Prevention, Punishment and Eradication of Violence Against Women, Convention
of Belém do Pará.
Bolivian State violated MZs right to obtain a reasoned decision (Article
8(1)). The judicial decision
is arbitrary, because it is contrary to the evidence and is not adequately
also violated her right to an impartial judge in the determination of her
rights, lacking gender prejudice, who would not discriminate against her (Article
8(1) in conjunction with Articles 1(1) of 24 of the American Convention and
Article 7 of the Convention of Belém do Pará).
The Bolivian State alleges that in the case of MZ, the highest courts
of Bolivia ruled on her petitions, and the Supreme Court of Justice handed
down the Supreme Order of April 25, 2000 in the case pursued by MZ for the
crime of rape; this ruling constitutes national case-law for criminal law
matters, which makes it impossible for the Executive branch to be able to
respond to the complaint filed by MZ before the IACHR.
The State is of the view that if the Commission were to correct the
alleged irregularities reported by the petitioner, not only would it be assailing
the principles of juridical security and judicial independence, but that it
would turn the Commission into a review body, which is not consistent with
The Bolivian State understands that the complaint was presented by
the petitioners on December 7, 2000, and that the final decision of the Supreme
Court of Justice was reported on May 29, 2000 to MZ, as appears from the record.
Therefore, in this case, as of May 29, 2000, she had the legal period
of six months, i.e. until November 29, 2000, to submit her petition to the
IACHR, as provided for by Article 46(1)(b) of the American Convention, consistent
with Article 38(1) of the Regulations of the IACHR in force at that time;
yet petitioners did not comply with this rule, for based on the information
reported to the Bolivian State, the petitioners submitted the complaint on
December 7, 2000, through case 12.350, i.e. six months and eight days after
the Supreme Court decision, in violation of the legal time period.
The Bolivian State considers that the weighing of the evidence by the
judges during the development of the whole proceeding in the domestic courts
of Bolivia was in keeping with the statutes and case-law, and with respect
for the criteria of prudent judgment and healthy criticism, as provided by
Article 135 of the Code of Criminal Procedure:
All means of evidence brought forth shall be weighed as a whole
by a judicial organ in the use of its prudent judgment and in keeping with
the rules of healthy criticism, setting forth, necessarily, the reasoning
on which that legal assessment is based.
With the complaint filed by MZ against Jorge Carlos Aguilar, the complainant
has used all remedies available to her under Bolivian legislation, and at
no point in the proceedings pursued by MZ has she not been allowed, in the
use of her rights, to have access to the domestic remedies, nor has she been
hindered from exhausting them.
Competence ratione personae,
ratione materiae, ratione temporis and ratione
loci of the Inter-American Commission
The petitioners are authorized by Article 44 of the American Convention
to present complaints to the IACHR.
Those petitions indicate as victims individual persons with respect
to whom Bolivia undertook to respect and ensure the rights enshrined in the
Convention. As regards the State,
the Commission observes that Bolivia is a state party to the American Convention,
having ratified it July 19, 1979. In addition, the IACHR observes that as
regards the passive competence ratione
personae, it is a general principle of international law that the state
must answer for the acts of all its organs, including those of its judiciary.
Accordingly, the Commission has competence ratione personae to hear this petition.
The Commission has competence ratione
loci to hear this petition because it alleges violations of the American
Convention within the territory of a state party to said treaty.
The Commission has competence ratione
temporis insofar as the facts alleged in the petition occurred when the
obligation to respect and ensure the rights established in the Convention
were already in force for the State.
As regards the allegations of possible violations of the Convention
of Belém do Pará, the Commission observes that Bolivia ratified that Convention
on December 5, 1994. The rape of the victim occurred on October 2, 1994, prior to
Bolivias ratification. Consequently, the Commission lacks competence
ratione temporis to consider these
facts. Even so, the Commission
does have competence ratione temporis
to apply the Convention of Belém do Pará to consider facts that occurred after
Bolivias ratification of that Convention, relating to the alleged denial
Finally, the Commission has competence ratione
materiae because the petition alleges violations of human rights protected
in the American Convention. With
respect to petitioners allegations regarding violations of Article 7
of the Convention of Belém do Pará, the Commission observes that according
to Article 12 of the Convention of Belém do Pará, one can present petitions
to the IACHR alleging violations of Article 7 of that Convention by a state
party, and the Commission shall consider them, in keeping with the procedural
rules and requirements for the presentation and consideration of petitions
stipulated in the American Convention on Human Rights and in the Statute and
Rules of Procedure of the Inter-American Commission on Human Rights.
The Inter-American Commission can use Articles 3 and 6 of the Convention
to interpret other provisions applicable in light of Article 29 of the American
Convention. Accordingly, the
IACHR is competent ratione materiae
to apply the Convention of Belém do Pará.
Other admissibility requirements
Exhaustion of domestic remedies
With the filing of the motion for cassation before the Supreme Court
of Justice, and its resolution by the Supreme Order of April 25, 2000, denying
it as without foundation, and reported to the parties on May 29, 2000, all
domestic remedies available under Bolivian law were exhausted.
Time for presentation
The State argues that petitioners failed to meet the six-month requirement
established in Article 46(1)(b) of the American Convention, as it alleges
that the complaint was submitted on December 7, 2000.
The IACHR observes that the communication has an intake stamp and that
it was received at the Executive Secretariat on November 22, 2000.
Bearing in mind that the judgment that exhausted domestic remedies
was reported on May 29, 2000, the Commission considers that the six-month
term for submitting the petition has been met.
As regards the note of December 7, 2000, it was the second submission
by petitioners, in which they attached reference documents.
Duplication of procedures and res
The record in this case does not contain any information that might
lead to a determination that this matter is pending before any other international
organization or that it has been decided previously by the Inter-American
Commission. Accordingly, the
IACHR concludes that the exceptions provided for at Article 46(1)(d) and Article
47(d) of the American Convention do not apply.
Characterization of the facts alleged
The IACHR considers that the facts alleged, if true, would tend to
establish violations of the rights guaranteed in Articles 1(1), 8(1), and
25 of the American Convention, and Article 7 of the Convention of Belém do
The petitioners do not allege mere errors of fact or law.
To the contrary, they argue that the judicial proceeding considered
as a whole, and the conduct of the judicial authorities, constitute due process
The Inter-American Commission concludes that it is competent to hear
this case on the merits, and that the petition is admissible in keeping with
Articles 46 and 47 of the American Convention.
Based on the foregoing arguments of fact and law, and without prejudging
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare this case admissible with respect to the alleged violations
of the rights protected in Article 1(1), 8(1), and 25 of the American Convention
and Article 7 of the Convention of Belém do Pará.
To notify the parties of this decision.
To continue analyzing the merits issues.
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., October 10, 2001. (Signed): Claudio
Grossman, President; Juan Méndez, First Vice-President; Marta Altolaguirre,
Second Vice-President; Robert K. Goldman, Peter Laurie, Julio Prado Vallejo,
Hélio Bicudo, Commissioners.
The identity of the alleged victim and of the persons close to
her who assisted her are being kept confidential at her express request,
and in keeping with the practice of the Inter-American Commission in the
case of complaints alleging facts such as those described in this case,
whose publication may have a detrimental impact on the privacy of persons
(see, e.g., Annual Report of
the IACHR 1996, Report Nº 38/96, Case 10.506, X and Y, Argentina; Annual
Report of the IACHR, Report Nº 53/01, Case 11.565, Ana, Beatriz, and Celia
González Pérez, Mexico).
Communication from the petitioners dated July 19, 2001.