REPORT Nº 48/08
MIREY TRUEBA ARCINIEGA
July 24, 2008
August 2, 2001, the Inter-American Commission on Human Rights
(hereinafter “the Commission,” “the Inter-American Commission,” or “the
IACHR”) received a petition lodged by the Commission for Solidarity and
the Defense of Human Rights (COSYDDHAC) and the Center for Justice and
International Law (CEJIL) (hereinafter “the petitioners”) alleging the
international responsibility of the United Mexican States (hereinafter
“Mexico,” “the State,” or “the Mexican State”) in the extrajudicial
execution of Mirey Trueba Arciniega, aged 20, at the hands of members of
its armed forces, in the village of Baborigame, Guadalupe y Calvo
municipality, Chihuahua, Mexico, on August 22, 1998.
claim that the Mexican State is responsible for violating the rights
enshrined in Articles 4 (right to life), 8 (right to a fair trial,) and
25 (judicial protection) of the American Convention on Human Rights
(hereinafter “the Convention” or “the American Convention”), in
conjunction with violating the obligation set out in Article 1(1)
thereof (obligation to respect rights), with respect to Mirey Trueba
Arciniega and his family.
acknowledges that Mirey Trueba Arciniega’s death was caused by a member
of the army on active service. It claims, however, that the crime
occurred through misadventure: in other words, unintentionally. It also
claims that the individual responsible for Mirey Trueba’s killing was
prosecuted and convicted, and that the IACHR should therefore not review
the proceedings before its domestic courts. It also claims it has given
the victim’s family compensation for the harm inflicted on them, and has
therefore complied with its obligations under the American Convention.
In this report, the
Commission concludes that the petition is admissible with respect to the
violation of Mr. Mirey Trueba Arciniega’s right to life, a fair trial,
and judicial protection, set out respectively in Articles 4, 8, and 25
of the American Convention; it also rules it admissible as regards
Article 1(1) of that same international instrument, in accordance with
the requirements established in Articles 46 and 47 thereof.
In keeping with the
principle of iurit novit curia, the Commission will examine in
the stage on merits if a possible violation exists of Articles 2 and 5
of the American Convention, as regards the duty to adopt domestic legal
provisions and the right to humane treatment, respectively. The
Commission also decides to make this report public and include it in its
Annual Report to the OAS General Assembly.
PROCESSING BY THE COMMISSION
events that occurred on August 22, 1998, were brought to the attention
of the IACHR in a petition dated August 2, 2001. On August 31, 2001, the
IACHR began to process the petition and forwarded the information to the
State, giving it a period of two months in which to submit its comments,
in compliance with Article 30.2 of its Rules of Procedure.
a communication dated November 7, 2001, the State requested an extension
of the deadline for submitting its comments, which was duly granted by
the IACHR. By means of a communication dated December 6, 2001, received
at the Executive Secretariat of the IACHR on December 7, 2001, the State
submitted its comments, which were then forwarded to the petitioners. On
January 29, 2002, the petitioners submitted their comments, which were
then relayed to the State. In a communication of May 24, 2002, received
at the IACHR Executive Secretariat on May 28, 2002, the State reported
that it had no further comments regarding this complaint, following
which the IACHR duly transmitted that information to the petitioners.
October 28, 2002, the Executive Secretariat received from the State
updated information on the case and on the agreement reached by the
authorities and the victim’s next-of-kin on September 17, 2002,
which it then forwarded to the petitioners. In that agreement, the
State, through the Secretariat of National Defense, admitted that Mirey
Trueba’s death was probably caused by a soldier belonging to that same
Secretariat of National Defense, for which reason it granted
compensation to the family for the moral and material damages inflicted
in the amount of 117,822.00 Mexican pesos.
means of a letter dated December 10, 2002, the petitioners expressed
their willingness to work toward a friendly settlement agreement. On
December 30, 2002, the IACHR forwarded the petitioners’ letter to the
State, noting its decision to make itself available to the parties with
a view to reaching a friendly settlement. During the processing of the
petition, however, no such agreement materialized.
means of a letter dated February 10, 2003, received at the IACHR
Executive Secretariat on February 11, 2003, the State asked the
Commission to ratify the agreement signed by the victim’s family and the
Secretariat of National Defense (SEDENA); that letter was then duly
forwarded to the petitioners. On May 2, 2003, the petitioners informed
the Executive Secretariat of the IACHR that they disagreed with the
State’s request that the agreement be ratified because, in their
opinion, it obeys national parameters alone and not the international
standards developed by the Inter-American Court of Human Rights.
a communication of August 23, 2004, received at the IACHR Executive
Secretariat on August 24, 2004, the State submitted its comments on the
petitioners’ note. On December 20, 2004, the petitioners submitted
additional information and asked the IACHR to proceed with the report on
admissibility; this was conveyed to the State, along with a one month
period in which to return its comments. On February 3, 2005, the State
asked the IACHR for a 15-day extension, on account of the fact that it
was gathering details from the authorities involved.
means of a letter dated July 14, 2006, received at the Executive
Secretariat on July 17, 2006, the State sent its comments on the
petitioners’ submission; those were then forwarded to the petitioners on
August 21, 2006, along with a one month deadline in which to submit
September 21, 2006, the Secretariat of the IACHR received a
communication from Tomás Trueba Loera, the father of the alleged victim,
stating his interest in continuing with the proceedings before the
that same date, the petitioners and Tomás Trueba Loera sent the IACHR
further comments on the State’s communication. The Inter-American
Commission, on April 12, 2007, forwarded the petitioners’ additional
comments to the State.
POSITIONS OF THE PARTIES
petitioners state that on August 22, 1998, Mirey Trueba, Vidal Trueba,
and Jorge Jiménez were driving in a pick-up truck through the streets of
Baborigame, Guadalupe y Calvo municipality, in the state of Chihuahua,
when they were stopped by members of the Mexican Army. They allege that
Mirey Trueba, aged 20, was very frightened and that when they had parked
he got out of the truck and started running, whereupon, for no reason
whatsoever, Lt. Col. (Infantry) Luis Raúl Morales Rodríguez fired 11
shots at him, one of which hit him in the left femoral artery.
They claim that Vidal Trueba and Jorge Jiménez attempted to assist Mirey
Trueba, but the soldiers did not permit them to do so and one of them
struck Jiménez in the face and ribs with a rifle, threatened their
lives, and accused them of being drug dealers.
petitioners claim that Mirey was losing blood, and so Vidal Trueba asked
the soldiers to allow him to go seek medical assistance at the local
clinic. After they gave him permission to do so they agreed that the
soldiers would then take him to the medical facility. They state that
according to the statements of the doctor on duty, Efren Royval, Capt.
Raúl Ruiz Gómez asked him to go to the scene of the incident to provide
assistance to Mirey Trueba. The doctor reportedly asked that the wounded
man be brought to the unit due to the large number of patients that he
had. After waiting for 30 minutes, Jorge Jimenez, Vidal Trueba, Capt.
Raúl Ruiz, and four other soldiers arrived without the wounded man,
saying that he would arrive shortly. They say that after 40 or 50
minutes, upon noting his failure to arrive, the local clinic doctor and
Capt. Raúl Ruiz Gómez went to find and assist him at the scene of the
incident. However, the military vehicles that surrounded the site denied
them access, by which time the body of Mirey Trueba had been abandoned
for almost three hours without proper attention. The petitioners draw
attention to the fact that when the ambulance arrived, Capt. (1st Class)
Job Edilberto García Espinosa lifted up Mirey Trueba and found him
unarmed. Based on the foregoing, the petitioners claim that Mirey
Trueba bled to death for want of immediate medical assistance after he
was wounded, in which condition he remained for more than three hours.
the wake of Mirey Trueba’s death, his father Tomás Trueba Loera filed a
complaint with the deputy agent of the Public Prosecution Service in
Baborigame that same day. The petitioners state that on August 22, 1998,
the Military Prosecution Service began preliminary investigation
5ZM/4998 and, by means of a resolution of August 24, 1998, filed
criminal charges against infantry Lt. Col. Luis Raúl Morales Rodríguez.
petitioners claim that the State did not conduct an effective and
thorough investigation even though the authorities were aware of the
facts based on the complaints received. The foregoing is based on the
fact that, to date, only one person has been prosecuted and punished for
the killing of Mirey Trueba, in spite of the fact that other agents were
present, who struck his companions when they sought to go to his aid
after the shooting occurred, which would make them accomplices.
that regard, the petitioners argue that the State has yet to investigate
or release any findings about Mirey Trueba’s failure to receive
assistance; that is, regarding the time elapsed from the moment he was
seriously injured by the shots fired by the soldier to the time he was
put in an ambulance; or regarding the three hours during which his
companions were prevented from reaching the scene of the incident in
order to assist him.
petitioners further state that the person responsible was investigated,
tried, and punished by the military courts due to the fact that on
August 30, 1998, the Public Prosecution Service declined jurisdiction
in the matter and referred the case to the Military Judge in Mazatlán,
Sinaloa, where criminal proceeding 3979/98 was opened. Lt. Col. Raúl
Morales Rodríguez was sentenced to eight years in prison and barred from
the military for the same period of time. He appealed and on January 19,
2001, the Supreme Military Court reduced his sentence to 1 year, 11
months, and 15 days in prison, on the grounds that it was a case of
homicide from misadventure.
petitioners argue that the soldier responsible for the death of Mirey
Trueba should have been tried in a civilian court, not by the military
courts as was designated, since the latter lacked jurisdiction,
independence, and impartiality, given that the military was trying one
of its own officers. They indicate that when a military court takes up a
matter that belongs in a regular court it violates the principle of
natural jurisdiction and, a fortiori, due process, which, in
turn, is intimately associated with the right of access to justice. For
that reason, they hold that the State infringed Articles 8 and 25 of the
to proportionality of the punishment, the petitioners report that Lt.
Col. Raúl Morales Rodríguez, who was sentenced to eight years in prison
and barred from the military for the same period of time, appealed his
conviction and the Supreme Military Court, on January 19, 2001, reduced
his sentence to 1 year, 11 months, and 15 days in prison, on the grounds
that it was a case of homicide through misadventure. The petitioners
consider that the penalty ultimately imposed on Lt. Col. Raúl Morales
Rodríguez was not commensurate with the crime committed.
also say that a feature of military proceedings is that they are
confidential and closed, which denies victims and their next of kin the
right to know about the progress of investigations as well as the right
to the truth, and, for that reason, both a fair trial and access to
judicial guarantees under the terms of the American Convention were
petitioners further request that the Mexican State adopt such
legislative or other measures as may be necessary to ensure effective
observance of the rights and freedoms enshrined in the Convention, in
order to prevent any authorities, including the military, from
continuing to exceed their powers.
the criminal justice system, the petitioners allege that it guaranteed
neither swift nor prompt justice inasmuch as the victims were denied any
possibility of knowing about the progress or outcome of the trial, given
that Mirey Trueba’s family was not informed of the status of the
proceeding nor, in spite of their efforts, was any contact made with
them for a period of two years and 11 months.
petitioners also hold that the State has denied them access to justice
since it expected the relatives themselves to advance the proceedings.
They say that the State expected them to become third-party plaintiffs
in the proceeding along with the Public Prosecution Service, which was
their right, a situation that apparently did not come about due to the
30 hours distance between the very poor rural farming town where the
family of Mirey Trueba live and the nearest military judge. They say
that, in spite of being financially and materially unable to obtain
access to justice, the relatives of Mirey Trueba decided to grant power
of attorney to COSYDHAC for the necessary purposes in the proceeding.
They claim that at one time the authorities reportedly accepted the
intervention of the representatives as both the Public Prosecution
Service and the competent military judge communicated with them in
connection with information requested on March 16, 1999. However, they
report that when, on May 11, 2000, the representatives requested
information by means of a letter addressed to the Military Prosecution
Service, the latter replied that they should address their request to
the National Human Rights Commission, which agency had reportedly
declared on November 30, 1998 that it lacked jurisdiction in the case.
With that, according to the petitioners, Mirey Trueba’s next of kin were
denied what little participation they had enjoyed until then in the
petitioners also express their willingness to submit to a future
friendly settlement agreement, which would include moral damages, a
public acknowledgement of the State’s responsibility, an effective and
impartial investigation of the incident, and guarantees of
non-repetition; however, no such agreement has yet materialized.
They hold that although the alleged victim’s father received an amount
of money as compensation under the agreement he signed with the
authorities on September 17, 2002, the petitioners note their
disagreement with the State’s request that the Commission ratify that
agreement because, in their opinion, it obeys national parameters alone.
petitioners state that other cases involving military violence against
the residents of Baborigame have come to the attention of the
Inter-American Commission, including the murder of Valentín Carrillo
Saldaña, who was abducted and executed by a platoon of soldiers in 1996.
Accordingly, precedents of violence and abuse against the local
residents exist, as a result of the increased military presence.
The petitioners ask that the IACHR proceed to adopt the report on
State claims that on the day the incident occurred, the army personnel
involved were acting under the Federal Law of Firearms, Explosives, and
Permanent Anti-Drug Trafficking Efforts: in other words, they were on
State claims that preliminary investigation 23/98 and criminal
proceeding 3779/98 indicate that on the day in question, the soldiers
stopped a pick-up truck on the streets of Baborigame, Guadalupe y Calvo
municipality, in the Mexican state of Chihuahua, on August 22, 1998;
that three civilians got out; and that as Mirey Trueba descended from
the vehicle, he apparently dropped a firearm, quickly picked it up
again, and hurried away from the area, shouting, “Don’t follow me or
I’ll shoot,” on account of which infantry Lt. Col. Luis Raúl Morales
Rodríguez discharged his service weapon.
State claims that according to the crime report, Mirey Trueba’s death
was due to an accident, since the soldier’s shots were not aimed at a
target: the lieutenant colonel’s defense counsel adds that as it was
dark, Morales Rodríguez could not see the alleged victim and so fired
without having a specific mark.
medical assistance, the State indicates that when the emergency services
arrived on the scene, Mirey Trueba was taken in an ambulance to the
local clinic in Baborigame, Chihuahua, but died en route.
State notes that the Public Prosecution Service for civil jurisdiction
crimes in the town of Baborigame, Guadalupe y Calvo municipality,
Chihuahua, began preliminary investigation 23/28 on the day of the
incident, finding that Mirey Trueba Arciniega died as a result of the
wound inflicted by Lt. Luis Raúl Morales Rodríguez. Furthermore,
according to the death certificate issued at the local clinic in
Baborigame, his death was caused by a gunshot wound.
State argues that as a result of the investigation, the office of the
Public Prosecution Service in charge decided, based on the evidence
produced by the inquiry, to bring criminal charges against Lt. Col.
(Infantry) Luis Raúl Morales Rodríguez, who was prosecuted and punished
as the person responsible for the homicide of Mirey Trueba. Therefore,
it considers that the investigation was effective.
regard to the criminal proceeding, the State mentions that the Office of
the Chihuahua State Attorney General for Justice surrendered
jurisdiction to the military courts, in accordance with Article 13 of
the Constitution and Article 57 of the Code of Military Justice. The
military judge assigned to the Third Military Region in Mazatlán,
Sinaloa, filed criminal proceeding 3779/98 against infantry Lt. Raúl
Morales Rodríguez who, in a judgment dated September 22, 1998, was
sentenced to 8 years in prison for the murder of Mirey Trueba, as well
as being discharged and barred from the military for the same period of
time. The State argues that that decision was reached promptly and
effectively in accordance with the terms of Article 25 of the American
Convention on Human Rights..
Subsequently, after he filed an appeal, Lt. Morales Rodríguez’s sentence
was reduced to 1 year, 11 months, and 15 days in prison, in a judgment
handed down by the Supreme Military Tribunal on January 19, 2001,
which left intact the possibility for anyone so legitimately entitled to
institute civil proceedings in accordance with Article 436 of the Code
of Military Justice. The State argues that the next of kin did not
attempt an action for amparo or any other appeal, which meant
that this judgment acquired the force of res judicata.
to proportionality of the penalty, the Supreme Military Court decided to
reduce the sentence on the grounds that infantry Lt. Col. Luis Raúl
Morales Rodríguez took the life of Mirey Trueba Arciniega through
misadventure (accidentally), in that he was unaware of the adverse
circumstances surrounding his action: in other words, he did not
carefully consider the consequences that his actions could bring about.
It stated that because it was dark, Lt. Col. Morales could not see Mirey
Trueba and so did not fire directly at him; but rather fired shots that
were not aimed at a specific target. Nevertheless, his imprudent and
rash behavior caused the injury to Mirey Trueba’s left leg and his
subsequent death. The State further indicates that the family did not
file for amparo constitutional relief or any other remedy against
the resolution that decided the appeal filed with the Supreme Military
Court, which means that the judgment was upheld as res judicata.
respect to the hearings, the State claims that the proceedings in the
military court were open to the public, announced by general orders from
the garrison, and notified to the corresponding authorities for all
and so the military court acted with transparency.
the State says that the next of kin did not exercise their right to
register as third-party plaintiffs in the proceeding as they failed to
notify the investigating authorities so that they might be recognized as
such. The State holds that in spite of that, on March 18, 1999, the
family was notified of the filing of the criminal case and the crime for
which criminal proceedings were being instituted against Lt. Col.
and that the Military Attorney General’s Office informed the
representatives of COSYDDHHAC at a meeting on October 3, 2000, of the
status of the criminal proceeding brought against the person accused of
the killing of Mirey Trueba Arciniega. Based on the foregoing, the
State maintains that the petitioners’ claim that the victim’s
next-of-kin were unable to register as third-party plaintiffs alongside
the Military Prosecution Service in the proceeding because of the
distance between Baborigame, Chihuahua, and the city of Mazatlán,
Sinaloa, is not attributable to the State because there is no record of
these persons having indicated that there was any impediment to their
appearance at the place where the trial of the accused took place. In
that connection, the State argues that the petitioners’ allegation of
unwarranted delay is false inasmuch as they omitted basic procedures
that would have given them standing to act as third-party plaintiffs
under the terms of the Constitution and laws, given that it is up to the
recognized third-party plaintiff to initiate the necessary steps, and it
is not incumbent upon the authorities to locate them in order to inform
them. The State adds that in the instant petition COSYDDHAC is not a
third-party plaintiff. Therefore, they argue that legal due process was
observed and that the domestic remedies were available to the
petitioners, who, nonetheless, failed to use them.
to the petitioners’ argument that the next of kin received no
information on the case and that they were prevented access to the
remedies under domestic law, the State claims that to be untrue, since,
according to the State, on November 13, 1998, the National Human Rights
Commission closed the investigation and notified Mr. Tomás Trueba Loera
that it lacked jurisdiction to take up the case as the alleged culprit
was being tried by a military tribunal. That Commission also advised
the complainants to register as third-party plaintiffs with the Public
Prosecution Service in order to determine reparations for the damages
State says that in order to identify viable alternatives for resolving
the matter and to create the conditions necessary for it to redress the
harm inflicted, an agreement was signed on September 17, 2002, by the
victim’s father, José Tomás Trueba, and the authorities.
In that agreement the Secretariat of National Defense states that Mirey
Trueba Arciniega’s death was probably caused by a soldier belonging to
that same Secretariat and, consequently, it compensated the family for
the moral and material damages inflicted in the amount of 117,822.00
Mexican pesos, and it further states that José Tomás Trueba Loera
accepted and received that amount as redress for the moral and material
The agreement also stipulates that José Tomás Trueba shall not pursue
any present or future civil or administrative action. Thus, the State
claims that it thereby reached a settlement with the victim’s
next-of-kin and asks that the IACHR ratify the agreement since, in this
case, it has been shown that the incident was investigated and the
perpetrator was tried and punished.
State claims it has met the obligation of ensuring the free and full
exercise of the rights enshrined the American Convention, per Article
1(1) thereof, in that it has complied with its duty of prevention by
enacting legal, political, administrative, and cultural provisions that
promote respect of the right to life.
of the Commission
ratione personae, ratione loci, ratione temporis
petitioners have standing under Article 44 of the American Convention to
lodge petitions on behalf of the alleged victim, with respect to whom
the Mexican State had agreed to respect and ensure the rights enshrined
in the American Convention. Mexico has been a party to the American
Convention since March 24, 1981, the date on which it deposited the
corresponding instrument of ratification. The Commission therefore has
competence ratione personae to examine the complaint.
the Commission has competence ratione loci to examine the
petition, since it alleges violations of rights protected by the
American Convention occurring under the jurisdiction of the State. The
Commission has competence ratione temporis to study the claim
since the obligation to respect and ensure the rights protected by the
American Convention was already in force for the State on the date on
which the incidents described in the petition allegedly occurred.
the Commission has competence ratione materiae to examine this
case, since the petition describes possible violations of human rights
protected by the American Convention.
requirements of the petition
of domestic remedies
46.1.a of the American Convention states that for a complaint lodged
with the Inter-American Commission in compliance with Article 44 of the
Convention to be admissible, the remedies available under domestic law
must have first been pursued and exhausted in accordance with generally
recognized principles of international law. However, Article 46.2
provides that this requirement shall not apply when:
(a) the domestic legislation of the state concerned does not afford
due process of law for the protection of the right or rights that have
allegedly been violated;
(b) the party alleging violation of his rights has been denied
access to the remedies under domestic law or has been prevented from
exhausting them; or,
(c) there has been unwarranted delay in rendering a final judgment
under the aforementioned remedies.
this connection, the Inter-American Court has maintained that
petitioners must only exhaust those remedies that are “appropriate” for
redressing the alleged violation. It should be noted that the function
of those remedies within the domestic legal system must be suitable for
addressing an infringement of a legal right.
the instant case, the petitioners claim that with the transfer of the
case from civilian to military jurisdiction the domestic law of the
State failed to afford legal due process to protect the abridged rights
and that there was a denial of justice as the State sought to make
progress in the proceeding dependent on the initiative of the victim’s
next of kin and, in spite of their being impoverished rural farmers, to
make it necessary for them to travel to the nearest military court 30
hours away to register as third-party plaintiffs with the Public
Prosecution Service if they wanted to receive information. Based on the
foregoing, the petitioners consider that they are exempt from the
requirement to exhaust domestic remedies, in keeping with the exceptions
set forth at Article 46 (a) and (b).
its part, the State maintains that the petitioners’ complaint must be
ruled inadmissible since Mirey Trueba’s family filed no remedies
whatsoever against the resolution that decided the appeal lodged before
the Supreme Military Court whereby infantry Lt. Col. Luis Raúl Morales
Rodríguez’s sentence was reduced, with which the judgment became
finalized as res judicata. The State claims that the petitioners
seek the review of decisions reached by the domestic courts: in other
words, for the IACHR to serve as a fourth instance.
Commission notes that the record shows that the Military Prosecution
Service began preliminary investigation 5ZM/499 on August 22, 1998, and
that, in a decision dated August 24, 1998, that same service filed
criminal charges against Lt. Col. (Infantry) Luis Raúl Morales Rodríguez.
On August 30, 1998, the Public Prosecution Service declined jurisdiction
in the matter and transferred the case file to the military court in
Mazatlán, Sinaloa, which then opened criminal proceeding 3979/98. On
September 2, 1998, the National Human Rights Commission opened case Fed.
032/98 and decided on November 30, 1998, that it lacked jurisdiction in
the matter since the alleged perpetrator was being tried by a military
tribunal and that the family should register as third-party plaintiffs
in the proceeding. Lt. Col. Morales Rodríguez was tried by a court
martial and, on September 22, 1998, sentenced by a military judge
attached to the 3rd Military Region to eight years in prison and
exclusion from any position in the Army for the same period. The
convicted man appealed the decision and, on January 19, 2001, the
Supreme Military Court reduced his sentence to 1 year, 11 months, and 15
days in prison, ruling that it was a case of homicide through
misadventure. In other words, in the case at hand the regular justice
system did not consider itself competent and therefore transferred the
case to the military courts, which investigated, tried, and convicted
the member of the armed forces who caused Mirey Trueba’s death.
regard to the use of military courts to try members of the armed forces
suspected of offenses, the Commission has on repeated occasions noted
that the military justice system is not a suitable venue for examining
alleged violations of human rights committed by members of the security
Similarly, the Inter-American Court has ruled that military justice is
an adequate forum only for trying members of the military for crimes or
misdemeanors which by their very nature infringe legal interests
particular to the military order.
For that reason, and in determining the admissibility of this complaint,
the Commission notes that the military justice system was used to
investigate the death of Mirey Trueba, a civilian, and to prosecute and
punish a member of the army. In that regard, it finds that the instant
case constitutes an alleged lack of access to a suitable and independent
judicial remedy to investigate, prosecute, and punish the person
responsible for the death of the victim and, therefore, gives rise to
the exception provided at Article 46(2)(b) of the American Convention.
the invocation of Article 46.2’s exceptions to the prior exhaustion rule
bears an intimate relation with the possible violation of certain rights
protected by the Convention, such as the guarantee of access to justice.
However, by its very nature and purpose, Article 46.2 is a provision
with autonomous content vis-à-vis the Convention’s substantive precepts.
Consequently, whether or not the Convention’s exceptions to the rule
requiring the prior exhaustion of domestic remedies are applicable in
the case at hand must be decided prior to and in isolation from the
analysis of the merits of the case, and that is because it depends on a
standard of appreciation that is different from the one used to
determine whether or not Articles 8 and 25 of the Convention have been
It should be noted that the causes and effects that have prevented the
exhaustion of domestic remedies in the case at hand will be analyzed, as
appropriate, in the Commission’s report on the merits of the dispute, in
determining whether or not the American Convention was in fact violated.
lodging a petition
the terms of Article 46.1.b of the Convention, for a petition to be
admitted it must have been lodged within a period of six months
following the date on which the complainant was notified of the final
judgment at the national level. The six-month rule guarantees certainty
and legal stability once a decision has been adopted.
IACHR has ruled on the applicability of exceptions to the exhaustion of
domestic remedies rule under Article 46.2.b of the American Convention.
In this regard, Article 32 of the Commission’s Rules of Procedure states
that in cases in which the exceptions to the requirement of prior
exhaustion of domestic remedies are applicable, petitions must be
presented within what the Commission considers a reasonable period of
that regard, bearing in mind that the criminal proceeding conducted by
the military tribunal did not constitute a suitable remedy and that the
petition was lodged on August 2, 2001, that is, seven months after the
final judgment issued by that organ was made public on January 19, 2001,
the Commission believes that the petition under review was lodged within
a reasonable time.
Duplication of international proceedings and res judicata
46.1.c stipulates that the admissibility of a petition is dependent on
the matter not being “pending in another international proceeding for
settlement”; likewise, Article 47.d of the Convention provides that the
Commission shall admit no petition that “is substantially the same as
one previously studied by the Commission or by another international
organization.” Nothing in the case file indicates that the subject
matter of the petition is pending in another international settlement
proceeding or that it is substantially the same as one previously
examined by this Commission or by another international body.
Consequently, the requirements set out in those articles have been met.
of the alleged facts
Commission notes that under the agreement signed on September 17, 2002
by the State and the father of Mirey Trueba, the latter received a sum
of money in compensation. In keeping with the consistent and firmly
established jurisprudence of the Inter-American Court of Human Rights
with respect to the nature and the scope of the obligation to offer
is necessary to consider not only pecuniary damages arising from the
violation, but to weigh as a whole all those injuries of multiple
characteristics which, consequently, should be repaired by means of
different measures specific to the nature and extent of the injury.
The Court also considers that it is necessary to add any positive
measures the State must adopt to ensure that the harmful acts, such as
those that occurred in this case, are not repeated.
By the same token, in the judgments in the Mapiripán, Pueblo Bello and
La Rochela Massacres versus Colombia, the Court deemed that
comprehensive reparation of the violation of a right protected by the
Convention cannot be restricted to payment of compensation to the next
of kin of the victim. In keeping with this precedent, in the event of
finding the State responsible for a violation of human rights, the
Commission must consider pecuniary elements sufficient to repair both
material and moral injuries sustained, as well as non-pecuniary
elements, measures of satisfaction and guarantees of non-repetition that
comprehensively repair the consequences of the violations. In that
regard, the Commission finds that the delivery of a sum of money to the
father of Mirey Trueba in acknowledgement of the State's responsibility
could be regarded as partial reparation of the damage caused by the
State, since it is not sufficient or effective reparation for all the
harm caused; in other words, comprehensive reparation remains pending.
Based on the foregoing, the IACHR decides to declare the petition
admissible in spite of the existence of the aforesaid agreement.
Commission believes that it is not appropriate at this stage of the
proceedings to determine whether or not the alleged violations actually
occurred, as that is to be addressed during the analysis of the merits
of the case. However, the Commission considers that the allegations, if
proven, would tend to establish violations of Articles 2, 4, 5, 8, and
25 of the American Convention, in conjunction with Article 1(1) thereof,
and that the case is admissible in accordance with the requirements set
forth in Articles 46 and 47 of the American Convention.
keeping with the principle of iurit novit curia, the Commission
will examine in the stage on merits if a possible violation exists of
Articles 2 and 5 of the American Convention as regards the duty to adopt
domestic legal provisions and the right to humane treatment,
respectively, given that those articles are implied in the description
of the facts alleged in the petition, though not explicitly invoked by
Commission concludes that the case is admissible and that it has
competence to examine the petitioners’ claim regarding the alleged
violation of Articles 4, 8, and 25 of the American Convention, all in
connection with the obligations arising from Articles 1(1) thereof.
light of the foregoing arguments of fact and law, and without prejudging
the merits of the case,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
declare this petition admissible as regards the alleged violation of the
rights enshrined in Articles 2, 4, 5, 8, and 25 of the American
Convention, all in conjunction with the obligations arising from Article
convey this report to the petitioners and to the State.
continue with its analysis of the merits of the case.
publish this decision and to include it in its Annual Report to the
General Assembly of the OAS.
Done and signed in the city of Washington, D.C., on the 24th
day of the month of July, 2008. (Signed: Paolo G. Carozza,
Chairman; Luz Patricia Mejía Guerrero, First Vice-Chairwoman; Felipe
González, Second Vice-Chairman; Sir Clare K. Roberts, Paulo
Sérgio Pinheiro, Florentín Meléndez,
and Víctor E. Abramovich, members of the Commission).