Zulema Tarazona Arriate et al v. Peru, Case 11.581, Report No. 83/01, OEA/Ser./L/V/II.114 Doc. 5 rev. at 254 (2001).
ZULEMA TARAZONA ARRIATE, NORMA TERESA PÉREZ CHÁVEZ, AND
LUIS ALBERTO BEJARANO LAURA
October 10, 2001
On January 22, 1996, a petition was filed with the Inter-American
Commission on Human Rights (hereinafter the Commission, the
Inter-American Commission, or the IACHR) by the
Asociación Pro Derechos Humanos
(APRODEH) and by Mr. Víctor Tarazona Hinostroza and Mr. Santiago Pérez Vela
(hereinafter the petitioners) denouncing the Republic of Peru
(hereinafter Peru, "the State, or the Peruvian
State) for the murders of Mrs. Zulema Tarazona Arriate and Mrs. Norma
Teresa Pérez Chávez and for the personal injuries to Mr. Luis Alberto Bejarano
Laura by members of the Peruvian army from the events of August 9, 1994.
The petitioners allege that through those events the Peruvian State violated
the right to life, the right to humane treatment, the right to a fair trial,
and the right to judicial protection enshrined in Articles 4, 5, 8, and
25 of the American Convention on Human Rights (hereinafter the Convention
or the American Convention), as well as its obligation to respect
the rights contained in Article 1(1) of the Convention.
The Peruvian State argued that the petitioners failed to exhaust
The IACHR, in accordance with the provisions of Articles 46 and 47
of the American Convention, decides to admit the petition for the alleged
violations of Articles 1(1), 4, 5, 8, 25, and 2 of the American Convention
and to begin to examine the merits of the case. The Commission also decides
to notify both parties of this decision and to publish and include it in
its annual report to the OAS General Assembly.
PROCESSING BY THE COMMISSION
4. On February 20, 1996, the Commission transmitted the pertinent parts of the complaint to the Peruvian State and requested a reply within 90 days, in keeping with the Rules of Procedure of the Commission in effect at that time. The State replied on July 1, 1996. On October 1, 1996 the petitioners presented observations to the States reply, and on July 18, 1997 they presented additional information. The State presented a written submission on May 21, 1998. On April 26, 1999, the IACHR made itself available to the parties to try to reach a friendly settlement. The State responded on June 25, 1999 and indicated that was refraining from responding to the friendly settlement offer until the Commission had ruled on the admissibility of the case. On September 4, 2000, the petitioners presented additional information. Both parties presented additional documents on different occasions.
POSITION OF THE PARTIES
The petitioners indicate that on August 9, 1994, Mrs. Zulema Tarazona
Arriate, Mrs. Norma Teresa Pérez Chávez, and Mr. Luis Alberto Bejarano Laura
were returning to their respective homes in Chosica aboard a public transportation
vehicle on line 165 (Lima-Chosica route).
They allege that at approximately 8:30 p.m., the vehicle stopped
at km 7.8 of the Central Highway at the La Esperanza
stop (Ate-Vitarte district) for one of the passengers to get off.
They say that when the vehicle continued on its way, two soldiers
from the Peruvian army approached it from behind and tried to stop the vehicle.
They indicate that the driver was not aware of the soldiers presence
and continued on his way.
The petitioners say that one of the soldiers, who they identify as
Antonio Mauricio Evangelista Pinedo, Sergeant Second Class with the Peruvian
Army, then shot directly at the vehicle, killing Mrs. Zulema Tarazona Arriate
and Mrs. Norma Teresa Pérez Chávez and injuring Mr. Luis Alberto Bejarano
Laura. They add that, rather
than helping the victims, the soldiers fled.
The petitioners say that two judicial proceedings were launched in
relation to these events. The
first was in the judicial branch, before the 27th Criminal Court
of Lima, for the offenses of murder and inflicting injury, against Sergeant
Second Class Antonio Mauricio Evangelista Pinedo; the second was against
the same individual in the military courts before the Permanent War Council
of the Armys Second Police Zone for negligent homicide.
They indicate that on June 20, 1995 the Supreme Council of Military
Justice, applying amnesty laws Nº 26479 and 26492, enacted by the Peruvian
Congress on June 14 and 28, 1995, respectively, granted the defendant amnesty,
decided to take no further action in the case, and ordered the release of
They add that on September 11, 1995, the 27th Criminal
Court of Lima definitively tabled the case it was hearing, in response to
a res judicata exception filed based on the aforementioned decision
handed down on June 20, 1995 by the Supreme Council of Military Justice.
Regarding the States allegation that the petitioners failed
to exhaust domestic remedies because they did not take judicial action to
seek compensation for the victims or their family members for the events
that occurred, the petitioners cite that their petition is centered on the
failure to investigate and punish the person responsible for violating the
victims rights to life and to humane treatment, among others.
They add that, without detriment to the foregoing, the victims
relatives became parties to the criminal case to seek civil compensation,
in accordance with the provisions of Article 92 of the Peruvian Penal Code
and the provisions of Articles 54 seq. of the Code of Criminal Procedure,
but that their action was frustrated when the case was tabled as a result
of the amnesty laws. Finally,
they indicate that those laws prevent any type of investigation into the
alleged events with a view to obtaining civil reparations.
In its initial reply on July 1, 1996, the State neither expressly
accepted nor contradicted the petitioners allegations. The States
reply read as follows:
Permanent Mission of Peru presents its compliments to the honorable Executive
Secretariat of the Inter-American Commission on Human Rights regarding case
Nº 11.581. It is attaching to this note a copy of the main decisions handed
down by the judiciary against citizen Evangelista Pinedo Antonio, prosecuted
for the negligent homicide of Zulema Tarazona Arriarte et al. (File
Nº 431-94-EDT). This information
was remitted by the National Human Rights Council through communication
Nº 405-96-JUS/CNDH of June 10 of this year.
In a letter dated May 21, 1998, Peru stated the following:
Peruvian State reiterates the points expressed in its reply to the pertinent
parts of the complaint, i.e. that the petitioners have not exhausted domestic
remedies, and specifically have not sought compensation, which is a necessary
step for persons who wish to obtain civil reparations for damages, as provided
for in Article 1969 of the Civil Code of Peru.
It adds that the Peruvian Constitutional Court interpreted Law Nº
26479 (Amnesty Law) as follows: regarding the right to civil reparations,
Article 58 of the Code of Military Justice stipulates that amnesty and pardons
do not affect legal actions to seek civil reparations. As a result, persons
who feel they were injured in events for which amnesty has been granted
can exercise their rights to due civil reparations against the perpetrators
of those offenses or against the State, as is its duty stemming from its
residual liability (
). If some injured parties do not obtain these
reparations, they can make their claim before the competent authorities.
Finally, its letter submitted to the Inter-American Commission on
May 21, 1998 states that:
the reasons given, which corroborate the arguments contained in its previous
reply, the Peruvian State requests that the Inter-American Commission on
Human Rights proceed with the examination of the case, pursuant to Article
35(a) of the Commissions Rules of Procedure, and find inadmissible
Case Nº 11.581-Zulema Tarazona Arriate et
al., referred to in the Peruvian reports pursuant to Article 47(a),
consistent with Article 46(1)(a) of the American Convention on Human Rights
and Articles 32(d), 37(1) and 41(a) in the aforementioned Rules of Procedure.
The Commission will now examine the admissibility requirements for
petitions set forth in the American Convention.
Competence ratione personae,
ratione loci, ratione temporis, and ratione
materiae of the Commission
The petitioners are authorized to present complaints to the IACHR
under Article 44 of the American Convention.
The petition indicates that the alleged victims were individuals
and that Peru undertook to respect and guarantee the rights of those individuals
enshrined in the American Convention.
The Commission notes that Peru has been a State Party to the American
Convention since July 28, 1978, when it deposited the respective instrument
of ratification. The Commission therefore has competence ratione
personae to examine the petition.
The Commission has competence ratione
loci to hear the petition, because it alleges the violation of rights
protected under the American Convention that might have occurred in the
territory of a State Party to the Convention.
The IACHR has competence ratione
temporis because the obligation to observe and guarantee the rights
enshrined in the American Convention was already in effect in the State
on the date of the events alleged in the petition.
Finally, the Commission has competence ratione
materiae, because the petition denounces violations of human rights
protected under the American Convention.
Exhaustion of local remedies
The Commission observes that the petition deals with the murder of
two persons and the injuries caused to a third, attributed to an agent of
the Peruvian state. The parties
agree that two investigations were launched into the events denounced, one
in regular criminal courts, and the other in the military courts.
The same member of the Peruvian army was charged in the two cases,
both of which were dismissed as a result of the amnesty laws.
The Peruvian State has not disputed the petitioners allegations
regarding the start and end of the civil and military proceedings for the
denounced events. Nonetheless, Peru alleges that the petition is inadmissible
because the petitioners failed to exhaust domestic remedies to seek compensation
for the victims or their relatives.
To decide on the exception opposed by the State, the Commission must
establish which domestic remedies must be exhausted in relation to the events
alleged in the petition under study.
In this regard, the Inter-American Court has indicated that only
adequate remedies for the violations allegedly committed must be exhausted
and clarified that:
domestic remedies are those which are suitable to address an infringement
of a legal right. A number of remedies exist in the legal system of every
country, but not all are applicable in every circumstance. If a remedy is
not adequate in a specific case, it obviously need not be exhausted.
The Inter-American Commission has indicated that whenever a prosecutable
offense is committed, the State has the obligation to promote and advance
the criminal proceedings through to the end
and that, in these cases, this is the ideal way to clarify events, judge
those responsible, and establish the corresponding criminal sanctions, as
well as allow for other modes of pecuniary reparations.
This interpretation is consistent with the Inter-American Court of
Human Rights explanation of Article 1(1) of the American Convention
on Human Rights, in which it states that [t]he States Parties to this
Convention undertake to respect the rights and freedoms recognized herein
and to ensure to all persons subject to their jurisdiction the free and
full exercise of those rights and freedoms, without any discrimination for
reasons of race, color, sex, language, religion, political or other opinion,
national or social origin, economic status, birth, or any other social condition.
In this regard, the Inter-American Court explained that the aforementioned
obligation to guarantee the free and full exercise of the human rights mentioned
in the Article mentioned above implies the duty of the States Parties
to organize the governmental apparatus and, in general, all the structures
through which public power is exercised, so that they are capable of juridically
ensuring the free and full enjoyment of human rights. As a consequence of
this obligation, the States must 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.
States international obligation to compensate victims of human
rights violations committed by their agents is therefore one of its direct,
main responsibilities, i.e. it is a direct responsibility of the State and
does not require that victims first take personal action against those agents,
regardless of the content of domestic provisions on the matter.
In situations like the one in the petition under study, which denounces
the murder of two persons and injuries to a third, the domestic remedies
that must be taken into
account for the purposes of determining the petitions admissibility
are those related to investigating and punishing the perpetrators.
The Commission considers that the events alleged by the petitioners
in the complaint under examination involve the alleged violation of basic
rights such as the right to life and humane treatment, which in domestic
law are prosecutable offenses. Therefore,
it is the homicide and injury trial in the civil jurisdiction of the 27th
Criminal Court of Lima against Antonio Mauricio Evangelista Pinedo, Sergeant
Second Class of the Peruvian Army, that must be considered to determine
whether or not domestic remedies were exhausted here.
Those judicial proceedings concluded with a ruling on September 11,
1995, through the 27th Criminal Court of Lima, deciding to definitively
table the trial. The IACHR therefore feels that domestic remedies were exhausted.
As a result, the Commission rejects the States argument that
domestic remedies were not exhausted in seeking compensation for the events
Deadline for presentation
The Commission observes that the decision that exhausted domestic
remedies, as explained above, was handed down on September 11, 1995, while
the complaint was lodged on February 20, 1996.
Therefore, the requirement established in Article 46(1)(b) of the
American Convention has been met.
Duplication of proceedings and res judicata
The Commission understands that the matter in the petition is not
pending in another international proceeding
for settlement and is not substantially the same as a petition previously
examined by this or another international organization.
Therefore, the requirements established in Articles 46(1)(c) and
47(d) of the American Convention have been met.
Characterization of the events
34. The Commission considers that the petition
refers to events that, if confirmed, could constitute a violation of the
rights to life, humane treatment, a fair trial, and judicial protection
enshrined in Articles 4, 5, 8, and 25 of the American Convention, as well
as the obligation to observe the rights contained in Article 1(1) of the
Convention. The Commission also observes that the criminal proceedings under
domestic law were tabled based on amnesty laws Nº 26479
and 25492. In exercise of its authority stemming from the principle of iura
novit curia, the Commission decides of its own initiative to study whether
or not the denounced events could be a violation by the Peruvian State of
the provisions of Article 2 of the American Convention.
35. The Commission concludes that it is competent
to hear this petition and that it is admissible, in keeping with Articles
46 and 47 of the American Convention.
Based on the foregoing de facto and de jure arguments
and without prejudging the merits of the case,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
1. To declare the petition admissible
as regards the alleged violations of Articles 1(1), 4, 5, 8, 25, and 2 of
the American Convention on Human Rights.
To notify the parties of this decision.
3. To begin to examine the merits
of the case.
To publish this decision and include it in the annual report of the
Commission to the OAS General Assembly.
and signed at the headquarters of the Inter-American Commission on Human
Rights in Washington, D.C., on
October 10, 2001. Signed by Claudio Grossman, President; Juan Méndez, First
Vice-President; Marta Altolaguirre, Second Vice-President; and Commissioners
Hélio Bicudo, Robert K. Goldman, Peter Laurie, and Julio Prado Vallejo.
Inter-American Court of Human Rights, Velásquez Rodríguez Case, Judgment
of July 29, 1988, paragraph 63.
See, for example, IACHR, 1997 Annual Report, Report Nº 52/97 - Arges
Sequeira Mangas, Case 11.218, (Nicaragua), paragraphs 96 and 97.
Inter-American Court of Human Rights, Velásquez Rodríguez Case, Judgment
of July 29, 1988, para. 166.
Notwithstanding, in the petition under study, the alleged victims were
plaintiffs in the aforementioned criminal suit before the 27th
Criminal Court of Lima, in accordance with the provisions of the Penal
Code and Code of Criminal Procedure of Peru; however, they were not
able to obtain any reparations because the case was tabled. In this
regard, Article 92 of the Penal Code of Peru stipulates that civil
reparations are determined at the same time as the punishment,
while Articles 54 and 57 of the Code of Criminal Procedure state that:
the injured party, ancestors or descendants, spouse, collateral
kinsmen, and related family once removed
can become plaintiffs
offer the evidence they deem appropriate to clarify the offense
In cases where it has been argued to the Commission that a given administrative-contentious
remedy available under the domestic law of another State Party to the
American Convention must be exhausted as part of the domestic remedies,
the IACHR has repeatedly indicated that: As regards exhaustion
of the contentious-administrative jurisdiction, the Commission has already
indicated that this type of proceeding is exclusively a mechanism for
supervising the administrative activity of the State aimed at obtaining
compensation for damages caused by the abuse of authority. In general,
this process is not an adequate mechanism, on its own, to make reparation
for human rights violations; consequently, it is not necessary for it
to be exhausted when, as in this case, there is another means for securing
both reparation for the harm done and the prosecution and punishment
demanded. IACHR, 2000 Annual Report, Report Nº 57/00 La
Granja, Ituango, Case 12.050
(Colombia) para. 41. See also: IACHR, 1995 Annual Report, Report
Nº 15/95, para. 71; 1999 Annual Report, Report Nº 61/99, para. 51; and
1997 Annual Report, Report Nº 5/98, para. 63.