REPORT Nº 5/96
March 1, 1996
On October 17, 1991, the Inter-American Commission on Human Rights
(hereinafter the Commission) received a petition reporting violation of the
human rights of Fernando Mejía Egocheaga and of his wife Raquel Martín de Mejía.
This petition requested that Peru be declared responsible for violation
of the following rights recognized in the American Convention on Human Rights
(hereinafter the Convention):
In regard to Fernando Mejía, right to personal liberty (Article 7),
right to humane treatment (Article 5), and right to life (Article 4), all in
connection with Article 1(1) of the Convention.
In regard to Raquel Mejía, right to humane treatment and right to
privacy (Article 11), both in connection with Article 1(1) of the Convention.
In regard to both petitioners, the right of everyone to an effective
domestic remedy that protects him against acts that violate his fundamental
rights (Article 25).
Fernando Mejía Egocheaga and his wife Raquel were living in Oxapampa, in
the Department of Pasco, at the time the events reported to the Commission took
Dr. Mejía Egocheaga was a lawyer, journalist and political activist.
At the time of his death he was President of the Oxapampa Bar Association
and also Chairman of the Provincial Committee of Izquierda Unida (United Left),
a Peruvian political party. He was
also a member of the Peruvian Journalists' Association and worked as a
journalist on the paper "Campanaria Oxapampa", which he had founded
and of which he was editor. As a
lawyer, Dr. Mejía Egocheaga concentrated mainly on defending the rights to land
of the most disadvantaged groups in Peru. Between
1982 and 1986 he was legal adviser to the "Pichis Palcazu" special
project, a rural development initiative launched under the auspices of the
Presidency of the Republic. In 1986
he represented the indigenous peoples of the Amuesha Community in a land
conflict with the Catholic Church. In
his political activity, Dr. Mejía Egocheaga planned to run for mayor of
Oxapampa and later possibly to make a bid for a seat in Congress.
Mrs. Raquel Martín de Mejía was a teacher and worked as principal of a
school for the handicapped in Oxapampa. She
is presently living in Sweden, where she obtained political asylum in 1989.
In June 1989 some soldiers were killed by Sendero Luminoso (Shining Path)
terrorists in Posuzo, a town not far from Oxapampa. A few days afterwards, about 100 military personnel from the
"Batallón Nueve de Diciembre", based in Huancayo, were helicoptered
into Oxapampa to conduct counterinsurgency operations in the region.
These soldiers were billeted in the local Municipal Library.
According to the information provided by the petitioners to the
Commission, the facts reported as violations of human rights protected by the
Convention are stated to be those described in the following:
In the night of June 15, 1989, Oxapampa residents saw a yellow pickup
truck belonging to the "Pichis Palcazu" government project parked in
front of the bar. In it were Julio
Arias Dorregaray, Subprefect of Oxapampa, Army officers and four soldiers.
A witness who was there reported hearing Mr. Arias Dorregaray say to his
companions: "it's time to go
look for the lawyer".
The same night, at 10:05 p.m., a number of military personnel with their
faces covered by ski masks and carrying submachine guns violently entered the
home of Professor Aladino Melgarejo, who was the Secretary General of the
Sindicato Unico de Trabajadores de la Educación Peruana (SUTEP--Peruvian
Education Workers' Union) in Oxapampa and a member of Izquierda Unida.
The soldiers made him leave the house, beat him and finally pushed him
into a government-owned yellow pickup truck used for the "Pichis Palcazu"
special project. The abduction of Professor Melgarejo was witnessed by his
wife, Haydeé Verde, by his sister-in-law, Mrs. Nancy Verde de Nano and by the
latter's husband, Mr. Hugo Nano.
According to the petitioners, the Army personnel in charge of the
operation ordered Professor Melgarejo to drive them to the home of Dr. Fernando
At 11:15 that night (June 15), a group of persons with their faces
covered by ski masks and carrying submachine guns suddenly turned up at the Mejías'
home and demanded to see Dr. Fernando Mejía Egocheaga. When he opened the door,
six individuals wearing military uniforms went in and one of them struck Dr. Mejía
with his weapon; then the one in charge of the operation ordered him into a
yellow government-owned pickup. The events described were witnessed by his wife,
Raquel Martín de Mejía.
That same night, about 15 minutes after the above-described events, a
group of between six and ten military personnel with their faces concealed by
black ski masks showed up at the Mejías' house again. One of them--the one who had been in charge of the abduction
of Fernando Mejía--went into the house, apparently to ask Mrs. Mejía for her
husband's identity documents.
While she was looking for them he followed her into the room and told her
she was also considered a subversive. He
then showed her a list containing a number of names and said that they were
people who were members of the Movimiento Revolucionario Tupac Amaru
(MRTA--Tupac Amaru Revolutionary Movement).
When Mrs. Mejía moved closer to read it, he covered it so that she could
only see two names: those of
Fernando Mejía and Aladino Melgarejo.
Mrs. Mejía tried to explain to him that neither she nor her husband
belonged to any subversive movements; however, without listening to her he began
to spray himself with her perfumes and finally raped her. He then took her outside the house to see the man who had
denounced her husband; this man was lying face down in the back of the same
pickup that had been used to abduct Fernando Mejía. Finally, the individual who had abused her sexually got into
the pickup and drove off.
About twenty minutes later the same person returned to the Mejías' home,
apparently with the intention of telling Mrs. Mejía that her husband might
possibly be taken to Lima by helicopter the next day.
He then dragged her into the room and raped her again.
Raquel Mejía spent the rest of the night in a state of terror that the
one who had assaulted her would come back and fearing for her safety and for her
The next morning Mrs. Mejía went to the police station in Oxapampa to
report the disappearance of her husband. The
duty corporal told her that a person could not be reported as missing until
after four days had elapsed. The
station chief then suggested that she ask for information at the offices of the
Republican Police, where she went and was advised to go to the Municipal Library
where the troops of the "Batallón Nueve de Diciembre" had been
billeted since their arrival in Oxampapa some days earlier.
When she got to the Municipal Library she saw a large number of soldiers
lined up in front of the building and noted that they were wearing the same
uniforms as the men who had abducted her husband and the man who had abused her
Also there was Professor Melgarejo's wife Haydeé, accompanied by a local
lawyer, trying to find out about the disappearance of her husband.
The two women talked with some soldiers who told them they were members
of the "Batallón Nueve de Diciembre" and said that their commander
was known as "Chito". Another
soldier then came up and abruptly ordered them to go away.
Mrs. Mejía recognized him as one of her husband's abductors.
Raquel Mejía and Haydeé Verde requested the assistance of the Mayor of
Oxapampa, Mr. Eduardo Koch Muller, and of the Provincial Prosecutor of Oxapampa,
Dr. Abraham Lino Obregón, but neither of them did anything to help the two
As a last resort, Mrs. Mejía went to the Bar Association, where Dr.
Lora, a lawyer belonging to the association, prepared petitions for protection
of civil rights and habeas corpus, which were immediately lodged with the
examining magistrate, Dr. Johnny Macetas. Despite
having received and sealed them, Dr. Macetas stated that he was busy with other
cases and did not have time to investigate the disappearance of Fernando Mejía
On June 16, 1989, members of the Permanent Congressional Commission sent
a letter to the Minister of the Interior requesting information concerning
Fernando Mejía and asking that he be freed. The Minister of the Interior never
responded to that letter.
On June 17, César Barrera Bazán, a Member of Congress and a friend of
Professor Melgarejo, went to Oxapampa to investigate the disappearances. The
Army troops there refused to cooperate or to provide any information as to the
fate of Mejía and Melgarejo.
In the morning of June 18, Raquel Mejía learned that Professor
Melgarejo's body had been found on the bank of the Santa Clara River with
another half-buried body alongside it.
Raquel Mejía, together with the acting judge and the secretary of the
court with responsibility for the case, then went to the place in question and
found there, at the foot of the column supporting the bridge, the beheaded
corpse of Aladino Melgarejo and, alongside it, the body of her husband, Dr.
Fernando Mejía. The latter showed
clear signs of torture, cuts in the legs and arms and an open wound in the head
apparently caused by a bullet. He
had been severely beaten and the body was extensively swollen.
The body was taken to the municipal hospital where the requisite autopsy
was performed. This confirmed that
Fernando Mejía had been severely tortured and had died from a bullet in the
head. It was also determined that he had died between 48 and 72 hours earlier.
On June 20, 1989, Raquel Mejía filed a deposition with the local police
concerning the abduction and subsequent killing of her husband. Then, accompanied by Deputy César Barrera Bazán, she moved
her husband's body from Oxapampa to Lima for burial there.
At the request of APRODEH (Asociación Pro Derechos
Humanos‑‑Human Rights Association) and of Raquel Mejía, on June 21,
1989, the Provincial Prosecutor of Oxapampa, Dr. Lino Obregón, ordered the
local police to investigate the homicides of Fernando Mejía and Aladino
On June 22, 1989, Dr. Lino Obregón inspected the area where the bodies
of Mejía and Melgarejo had been found and discovered cartridges from bullets
similar to those used by the Peruvian Army. He then immediately asked the
Military Political Chief of the region to identify the officers of the
"Batallón Nueve de Diciembre".
On three occasions, between June 28 and 30, 1989, Raquel Mejía received
anonymous phone calls threatening her with death if she persisted with the
investigation of the homicide of her husband.
On July 11, 1989, APRODEH and Raquel Mejía filed a criminal charge with
the Office of the Attorney General of the Republic in respect of the crimes of
homicide and abuse of authority against Fernando Mejía and Aladino Melgarejo,
requesting that the Attorney General's office as the authority responsible for
initiating criminal action would take the necessary steps to clear up the cases.
Two days later, the Office of the Attorney General forwarded the
documents to Dr. Ramón Pinto Bastidas, Provincial Prosecutor of the Senior
Prosecutor's Office in Junín, who ordered the Provincial Prosecutor in Oxapampa
to investigate the homicides and submit an opinion to the investigating judge
for the case.
Because she feared for her safety, Raquel Mejía left Peru in August
1989, going first to the United States and then to Sweden, where she was granted
In November 1989, the Oxapampa Provincial Prosecutor, for reasons that
are unknown, transferred jurisdiction for investigating the abduction and
subsequent homicide of Fernando Mejía and Aladino Melgarejo to the Technical
Police in La Merced, a city 200 km from Oxapampa.
On January 30, 1990, the Huancayo Permanent Military Court declared
itself competent concerning the case and ordered the civil criminal judge in
Oxapampa to halt any action on it. However, the military court did not draw up
any charges or make any sort of investigation aimed at clearing up the matter.
One year later, in January 1991, the Head Provincial Prosecutor of
Oxapampa filed a formal charge with the local criminal judge against Julio Arias
Dorregaray, the former subprefect of the locality, and against unidentified
members of the "Batallón Nueve de Diciembre" to the effect that they
had committed the crime of homicide against Fernando Mejía and Aladino
Melgarejo. Dorregaray fled from Oxapampa and his present whereabouts are
On two occasions, on May 6 and July 2, 1991, the Oxapampa criminal judge
requested the Military Political Chief of Mantaro‑Junín, General Luis Pérez,
to identify the officers who took part in the "antisubversive
campaign" in Oxapampa between June 13 and 17, 1989.
According to the petitioners, the Army never responded to these requests.
The criminal court handling the case extended the investigation period to
August 26, 1991 in order to ascertain the occurrence of the crimes detailed in
the charge. According to the
petitioners, the court has not taken any further action since then.
As a last resort, the petitioners reported that the Peruvian Government
had published a list of Peruvians living abroad that included Raquel Mejía
and had described those named in the list as subversives.
The persons listed were in fact accused of supporting Sendero Luminoso
(Shining Path) from their places of residence.
The Government was accordingly calling for their extradition; if they did
not return to Peru, the Government stated it would revoke their nationality.
In the particular case of Raquel Mejía, the list claimed that she was a
member of an organization called "Movimiento Popular", from which she
supported Sendero Luminoso. The Government had consequently filed criminal
charges against her under the antiterrorist legislation in effect in Peru.
After being formally charged, Mrs. Mejía could be brought before a
The petitioners allege that the charges against Raquel Mejía are
absolutely unfounded. In support of
their arguments, the petitioners attach copies of the opinions of the Lima
Provincial Prosecutor and of the Senior Prosecutor for Terrorism which show
there is no evidence to substantiate the charges against Raquel Mejía.
PROCESSING OF THE PETITION BEFORE THE COMMISSION
On January 25, 1992, the Commission began its consideration of the case
and forwarded the pertinent parts of the petition to the Peruvian Government
requesting additional information from it concerning the events reported,
especially any other data that would enable the Commission to assess whether
local remedies had been exhausted.
By memorandum of July 21, 1992, the Commission repeated its request for
additional information to the Peruvian Government, observing that it was
presuming the facts reported to be true, in accordance with the provisions of
Article 42 of its Regulations.
On August 28, 1992, the Peruvian Government responded to the Commission's
request for information by stating that the present petition was a reiteration
of Case 10,466 in which Peru had already been condemned for violation of the
human rights of Fernando Mejía and Aladino Melgarejo. It accordingly requested that the petition be declared
On December 17, 1992, the petitioners submitted their comments on the
Government's reply, observing that the present petition was not a reiteration
of Case 10.466 because it did not include a detailed statement of the events
that occurred and of the violations of human rights to which Raquel Martín de
Mejía had been subjected or the violation of the obligation to provide
effective domestic remedies. On the
grounds of these arguments they requested the Commission to dismiss the Peruvian
Government's claims and declare the petition admissible.
On May 11, 1993, the petitioners submitted additional information to the
effect that the Peruvian Government had published a list of approximately 50
Peruvians resident abroad that included Raquel Mejía.
The persons on the list were stated to be subversives and, consequently,
criminal proceedings had been instituted against them for alleged commission of
acts of terrorism.
In its comments on the additional information submitted by the
petitioners, the Peruvian Government repeated the arguments set forth in its
reply of August 28, 1992, and requested that the case be declared inadmissible.
Pursuant to Article 50 of the American Convention, at its 90th regular
session the Commission approved Report 25/95 and forwarded it to the Peruvian
Government via a note dated November 22, 1995.
The Commission asked that within 60 days, the Peruvian Government inform
the Commission of the action it had taken on the recommendations contained in
the Report. The Government did not
reply within the stipulated time period.
OBSERVATIONS OF THE PARTIES
Position of the Government
The Government observed that the present petition was a repetition of
Case 10.466 in which the Commission had condemned the Peruvian State for
violation of the human rights of Fernando Mejía Egocheaga and Aladino Ponce
Melgarejo. It added that the report
in question had been published in the Commission's Annual Report for the period
May 1990 ‑ February 1991.
Based on this argument, the Peruvian Government requested the Commission
to declare the present case inadmissible in accordance with Article 39(1)(b) of
The Government failed to refute the petitioners' allegations as to the
alleged repeated violation of Mrs. Raquel Martín de Mejía, the alleged failure
to perform the obligation set forth in Article 1(1) of the Convention and to
provide an effective remedy and judicial protection as referred to in Article 25
of the Convention. The Peruvian
Government moreover also failed to present any argument in connection with the
existence of criminal proceedings instituted against Mrs. Raquel Martín de Mejía
on grounds of alleged commission of the crime of terrorism.
Position of the petitioners
Regarding admissibility of the case, the petitioners note that a petition
in favor of Fernando Mejía and Aladino Melgarejo was in fact submitted to the
Commission on September 25, 1989. However, they point out that Mrs. Mejía, her
lawyer and the human rights organizations that were helping her never gave their
consent to the submission of said petition.
They add that since the Peruvian Government did not respond to the
Commission's requests for information, the Commission, on the basis of Article
42 of its Regulations, presumed that the facts reported were correct and in its
83/90 Report declared the Peruvian State responsible.
The petitioners consider that the case should be declared admissible for
Article 44 of the Convention must not be interpreted in such a way as to
prevent victims of human rights violations from making a full presentation of
the questions of fact and law underlying their case, especially when a petition
filed earlier was submitted without their consent or, in case of death, without
the consent of their surviving relatives and when the report prepared by the
Commission is based on presumptions that do not include a detailed account of
the events that took place and of the persons responsible for them.
The present petition sets out human rights violations that were not
considered in Case 10.466. In point of fact, the petitioners note that the
Report 83/90 does not include violation of the right to an effective remedy in
connection with Fernando Mejía Egocheaga nor the violations of the rights to
humane treatment, privacy and an effective domestic remedy of Raquel Mejía.
For the reasons set forth, the petitioners request the Commission to
reject the arguments used by the Peruvian Government and to declare the case
Regarding the alleged human rights violations, the petitioners request
the Commission to declare Peru's international responsibility for the violation
of the rights to personal liberty (Article 7), to humane treatment (Article 5)
and to life (Article 4) of Fernando Mejía, in connection with the obligation
assumed under Article 1(1), all of which rights are protected by the American
Convention on Human Rights. They
further call upon the Commission to establish that the repeated sexual abuse to
which Raquel Martín de Mejía was subjected violated the provisions of Articles
5 (right to humane treatment) and 11 (right to privacy) in connection with
Article 1(1) of the said international Convention and that Peru is
Finally, the petitioners allege that the Peruvian State failed to respect
and guarantee the right of Fernando and Raquel Mejía to an effective domestic
recourse for protection against acts that violated their fundamental rights
(Articles 1 and 25 of the Convention).
The petitioners base the Peruvian State's international responsibility
for violation of human rights protected by the American Convention on the
The existence of proof by witnesses and circumstantial evidence that
demonstrate the involvement of members of the Peruvian Army in commission of the
crimes denounced. These proofs also indicate that the crimes in question were
not committed by guerrillas.
The facts reported fit in perfectly with the pattern of abuses committed
by the Peruvian military and their modus operandi in previous situations.
The petitioners indicate that the following pieces of evidence serve to
fully demonstrate the responsibility of members of the Peruvian Army in the
abduction, torture and death of Fernando Mejía and in the repeated violation of
his wife Raquel Martín de Mejía:
Members of the "Batallón Nueve de Diciembre" arrived in
Oxapampa a few days before the events denounced took place, for the purpose of
carrying out an antisubversive campaign. They were in that city on the night
that Fernando Mejía was abducted and Raquel Mejía was
raped more than once. They
were in the area where the bodies of Mejía and Melgarejo were found.
Raquel Mejía identified the vehicle that was used in the abduction of
her husband as a yellow pickup truck belonging to the Government that was
normally used for the activities of the "Pichis Palcazu" special
project. This truck was seen on the
night of the abductions in front of the Oxapampa bar with military personnel in
the back. Both Hugo Nano and his wife Nancy Verde, who were there when
Professor Melgarejo was abducted, recognized that the yellow pickup belonged to
the government project. In addition, the way in which the two men were abducted
and the similarity of their abductors indicate that the disappearances were part
of a coordinated plan in which the same government‑owned vehicle was
The FAL 7.62‑mm cartridges found near the bodies of Mejía and
Melgarejo link the Peruvian military with the commission of the crimes in
question. These are the type of
bullets normally fired by assault rifles used by the Peruvian Army.
The men who abducted Fernando Mejía and the one who repeatedly raped his
wife Raquel were wearing military uniforms. Although they kept their faces
concealed with ski masks, at no time did these men attempt to hide that they
belonged to the Peruvian Army. When
Raquel Mejía went to the Municipal Library the next day she observed that the
uniform worn by the soldiers billeted there was the same as that worn by the men
who forced their way into her house, abducted her husband and sexually abused
The abductors operated at night with total impunity. They moved around in
a large group of over six persons, openly seized Fernando Mejía and put him in
a truck that was parked in a public street without hiding their presence or
their actions. The individual who sexually abused Raquel Mejía forced his way
into her house on two occasions, accompanied each time by a number of soldiers.
Only Army personnel could have acted with such freedom and impunity in
those days, especially bearing in mind that there was a sizable military
presence in Oxapampa then.
Secondly, the petitioners point out that the abduction and subsequent
homicide of Fernando Mejía and the repeated sexual abuse to which Raquel Mejía
was subjected are consistent with the modus operandi of Peruvian Army personnel
in the commission of other serious human rights crimes. The general characteristics of the methods employed are as
the abductions are carried out at night in the victims' own homes;
the persons heading up the operations usually abduct more than one person
at a time. In this case, Fernando Mejía and Aladino Melgarejo were taken on the
same night, with only minutes between the two abductions;
the abductors wear military uniforms with ski masks to conceal their
the victims are taken, tortured and finally executed without any trial or
As their concluding point, the petitioners note that the Peruvian
Government has published a list of Peruvians living abroad that includes
Raquel Mejía, and has classified the persons on the list as subversives.
In Raquel Mejía's case, the list names her as a member of an
organization known as "Movimiento Popular", from which she is alleged
to support Sendero Luminoso. On these grounds the Government has instituted
criminal proceedings against her for alleged commission of the crime of
terrorism. After the formal charge,
Mrs. Mejía can be tried before a Faceless Court.
The petitioners allege that the charges against Raquel Mejía are
absolutely unfounded since there is no evidence that demonstrates her criminal
Competence of the Commission and formal requirements for admissibility
The Inter‑American Commission on Human Rights is competent to
consider this case since it is a matter of violations of human rights recognized
in the American Convention on Human Rights in its Articles 4, 5, 7, 11, 1 and
As regards formal compliance with the formal requirements for
admissibility, the present petition meets the conditions laid down in Article
46(c) and (d) of the American Convention and in Article 32 of the Commission's
Regulations. However, for a
petition to be considered admissible it must also satisfy the conditions
contained in Articles 46(a) and (b) and 47 of the Convention and 37, 38 and 39
of the Commission's Regulations.
Duplication of proceedings
The Peruvian Government has pointed out in its observations that the
present case constitutes a repetition of another petition brought before the
Commission earlier and which the Commission covered in its Report 83/90 that was
published in its Annual Report for the year 1990‑1991.
Article 47 of the American Convention reads as follows:
The Commission shall consider inadmissible any petition or communication
submitted under Articles 44 or 45 if:
d. the petition or communication is
substantially the same as one previously studied by the Commission or by another
Similarly, Article 39 of the Commission's Regulations stipulates that:
1. The Commission shall not consider
a petition in cases where the subject of the petition:
b. essentially duplicates a petition
pending or already examined and settled by the Commission or by another
governmental international organization of which the State concerned is a
Article 47 of the Convention and Article 39 of the Regulations adopt the
principle of res judicata in the context of the conditions for admissibility of
a petition. This principle means
that no State can be submitted afresh to scrutiny by the Commission in the case
of petitions that have already been examined by it or when they are subject to
another international human rights protection body.
Other international instruments such as the Additional Protocol of the
Civil and Political Rights Covenant and the European Convention on Human Rights
set similar conditions for admissibility. In
this connection, the Human Rights Committee, for instance, has pointed out that
the said principle must be considered a limit to the admissibility of petitions
that include "the same petition concerning the same individual submitted by
the same or by any other with capacity to act...before the international
Case 10.466 was initiated as a consequence of an individual petition that
denounced the following facts:
On June 15, 1989, in Oxapampa, Department of Cerro de Pasco, Army
personnel arrested, tortured and killed Messrs. Fernando Mejía Egocheaga... and
Aladino Melgarejo.. [O]n June 18 their bodies were found near the Santa Clara
River, in Oxapampa. The bodies showed evident signs of cruel tortures and
numerous wounds caused by bullets and piercing and cutting weapons...
The Commission repeatedly requested additional information from the
Peruvian Government on the facts that prompted the petition. In 1990, after the
Government had failed to respond to the communications sent by the Commission,
the latter adopted Report 83/90, assuming the truth of the facts reported in the
petition and establishing the Peruvian State's responsibility for violation of
the right to personal liberty (Article 7) and of the right to life (Article 4).
The Commission further declared that:
...the Peruvian Government has not met its obligations concerning the
human rights and guarantees required by Article 1(1) of the American
In the concluding part of Report 83/90, the Commission made the following
recommendations to the Peruvian State:
an exhaustive, quick and impartial investigation of the facts denounced, in
order to identify those responsible and bring them to justice so that they may
receive the punishments such serious conduct calls for.
the necessary measures to prevent the commission of similar acts in the future.
the consequences of the situation brought about by the violation of the rights
stated and pay fair compensation to the injured parties.
As recounted, through Report 83/90 the Commission pronounced on the human
rights violations which Dr. Fernando Mejía Egocheaga suffered, establishing the
Peruvian State's liability for the commission of said violations.
Accordingly, in application of the principle laid down in Article 47 of
the Convention and 39 of the Regulations, the Commission is not competent to
examine these questions raised anew in the petition under study.
The petitioners have stated that the Commission must pronounce on the
violations suffered by Dr. Mejía because Case 10,466 was brought before it
without the knowledge and consent of his family and Report
83/90‑‑prepared in accordance with Article 42 of the Commission's
Regulations‑‑lacked a full statement of the questions of fact and
law underlying it.
Article 44 of the Convention and Article 26(1) of the Commission's
Regulations specify, in similar terms, that "any person or group of
persons, or any nongovernmental entity legally recognized in one or more member
states of the Organization, may lodge petitions with the Commission containing
denunciations or complaints of violation of this Convention by a State
In this connection it has been interpreted that unlike what is laid down
in other human rights protection systems, whether regional or universal, the
inter‑American system makes a distinction between a petitioner and a
This distinction derives from the broad language used in the
above‑mentioned articles according to which, on the one hand,
nongovernmental organizations or groups of persons are considered to be
petitioners, and on the other, no connection at all is required between the
victim and the nongovernmental organization, group of persons or individual who
submits the petition.
It can therefore be concluded that active legitimation in the case of petitions
to the Commission is characterized by breadth of definitions and flexibility.
As a corollary, it must also be noted that the victim's consent to a
petition is not a requirement either.
The Commission has stated in this respect that:
...a person who denounces an act that is in violation of human rights to
the Inter‑American Commission on Human Rights does not require
authorization from the victim...
On the basis of the foregoing, the Commission has to reject the first
argument presented by the petitioners.
Concerning the second of said arguments, with regard to the disappearance
and subsequent death of Fernando Mejía, the petition submitted by the
petitioners does not add, in general terms, elements different from those
considered by the Commission in Report 83/90 in connection with Case 10.466.
The fact is that both petitions set out the manner in which the victim
was abducted by Army personnel and the subsequent finding of his body bearing
evident signs of torture.
For these reasons, the Commission must also reject the second of the
arguments brought forward by the petitioners as grounds for reconsideration of
the human rights violations suffered by Dr. Fernando Mejía.
The principle set forth in Articles 47 of the Convention and 39(1) of the
Commission's Regulations, however, must be interpreted restrictively and only
in relation to those assumptions in which the petition is limited to "the
same petition concerning the same individual".
This means that its application does not extend to alleged human rights
violations concerning which the Commission or another similar organization has
not yet given its opinion, even when they are included in a petition that also
contains other questions that by their nature are inadmissible.
The present petition includes, besides the violations of Fernando Mejía's
human rights, alleged violations of Convention‑protected rights of his
wife, Mrs. Raquel Martín de Mejía. Regarding
the latter, contrary to the Peruvian Government's assertion, the Commission is
competent to pronounce on this occasion.
Accordingly, and as regards the admissibility requirement stipulated in
Articles 47 of the Convention and 39(1) of the Regulations, the Commission
considers that it lacks competence to reassess the human rights violations
suffered by Fernando Mejía. It does not, however, consider itself blocked from
pronouncing on the alleged violation of Articles 25 (right to effective domestic
recourse), 5 (right to humane treatment), 11 (right to privacy) and 8 (right to
due process), in respect of Raquel Martín de Mejía.
Exhaustion of local remedies
Article 46(1)(a) of the Convention specifies that for a petition or
communication submitted to the Commission in accordance with Articles 44 or 45
of the Convention to be admissible, the remedies under domestic law must have
been pursued and exhausted in accordance with generally recognized principles of
The Inter‑American Court of Human Rights, concerning the exhaustion
of domestic remedies rule has stated that:
Generally recognized principles of international law indicate, in the
first place, that this is a rule whose invocation may be expressly or tacitly
renounce by a State entitled to invoke it, a point that has already been
recognized by the Court on an earlier occasion (see Viviana Gallardo et al.
case, Decision of November 13, 1981, No. G 101/81.
Series A para 26). Secondly, the exception of nonexhaustion of domestic
remedies, to be timely, must be filed in the initial stages of the proceedings;
if this is not done, tacit renunciation of use of same by the State concerned
can be presumed.
On applying these principles to the present case, the Commission observes
that the Peruvian State omitted to file the exception to exhaustion of domestic
remedies. The fact is that after
January 25, 1992, when the Commission began the processing of the petition, the
Peruvian State had various opportunities to indicate whether the petitioners had
met the said admissibility requirement. This being so, the Commission assumes
that the Peruvian State renounced filing of the exception and accordingly
concludes that it is not obliged to give a ruling on this question.
Considerations on the substance of the case
Presumption of facts
The Peruvian State had various opportunities to provide information to
the Commission concerning the facts denounced. However, in all its
communications it limited itself to maintaining the inadmissibility of the case
without in any instance discussing the detailed arguments submitted to the
Commission by the petitioners, and which were transmitted by the Commission to
the Government in due form, in compliance with the rules of its Regulations.
Article 42 of the Commission's Regulations specifies that:
The facts reported in the petition whose pertinent parts have been
transmitted to the government of the State in reference shall be presumed to be
true if, during the maximum period set by the Commission under the provisions of
Article 34, paragraph 5, the government has not provided the pertinent
information, as long as other evidence does not lead to a different conclusion.
Reaffirming the provisions of the said article, the Inter‑American
Court of Human Rights has stated that: "... the silence of the accused or
elusive or ambiguous answers on its part may be interpreted as an acknowledgment
of the truth of the allegations, so long as the contrary is not indicated by the
record or is not compelled as a matter of law."
Accordingly the presumption of acceptance of the facts of a petition
derives not only from the assumption that a State which fails to appear before
an international organ whose competence it recognizes accepts such facts, but
also from the tacit message conveyed when, having appeared, said State does not
provide the information required or its responses are evasive and/or
The principles of general international law under which a State cannot
evade the jurisdiction of an international agency that it has accepted, have
been incorporated into the Statute of the International Court of Justice,
Article 53 of which reads:
one of the parties does not appear before the Court, or abstains from defending
its case, the other party may request the Court to decide in its favor.
handing down its decision, the Court must ensure not only that it possesses
jurisdiction in accordance with the provisions of Articles 36 and 37, but also
that the petition is well founded in terms of facts and law.
According to the above article, the ICJ must seek to preserve the
interests of the parties in dispute. Within
the sphere of the American Convention, however, Article 42 of the Regulations
must be interpreted in light of the basic purpose of the Convention, i.e.
protection of human rights.
The Commission considers that the petitioner must provide sufficient
information to enable it, firstly, to make the admissibility assessment
referred to in Articles 46 and 47 of the Convention and in the pertinent
articles of its Regulations and secondly, to assess the version of the facts
presented in accordance with the provisions of Article 32 of its Regulations.
As a result, the Commission can only declare inadmissible a petition in
which the Government has omitted to provide information when the petitioner has
manifestly and evidently failed to meet the requirements for admissibility,
unless additional new information provides sufficient evidence to confirm
Regarding the substance of a case brought before the Commission, the
Commission considers that a simple failure to appear on the part of a State or
failure by it to supply information do not in and of themselves transform the
facts denounced into truth. Rather, they need to be analyzed in light of certain
criteria that make it possible to establish whether, in terms of Article 42 of
the Commission's Regulations, there is "other evidence" that might
lead to "a different conclusion" from that presented by the
petitioner. These evaluation
criteria are consistency, credibility and specificity.
The ICJ, regarding the provisions of Article 53 of its Statute, has
specified that in analyzing a matter submitted for its consideration the Court
must assure itself, by whatever means it deems appropriate, that the facts
alleged by the petitioners are well founded.
The Commission considers that in determining, in a concrete case, whether
the facts alleged are well founded, failure to appear on the part of the State
cannot oblige the petitioners to satisfy a standard of proof equivalent to that
which would have been initially required if the State had appeared. If this were
to be so, the petitioner would be in the position of being able to bring
additional proofs and/or to contest the Government's response. As a result, when the State does not appear or omits to
provide information concerning the alleged facts, the Commission, in order to
make a decision must limit itself to the arguments and proofs offered by the
petitioner and other elements available to it that will enable it to decide the
In the present case, since the Peruvian Government has not discussed the
facts presented by the petitioners, the Commission has considered the version
presented by them and, after establishing that it meets the criteria of
consistency, credibility and specificity, has decided:
presume the facts relating to the repeated violation of Raquel Mejía by
Peruvian Army personnel to be true
The petitioners have presented a detailed and consistent version in which
they state the date on which and place in which the events occurred, noting that
the individual responsible was wearing Peruvian Army fatigues and was
accompanied by a large number of soldiers.
Another point alleged is that, at the time the acts denounced occurred,
Raquel Mejía was living in an area under state of emergency legislation.
In such areas the military customarily assume control of the population
and set themselves up as the supreme authority, even above the duly elected and
constituted civil authorities. As a
consequence, they commonly perpetrate numerous human rights violations in these
The credibility of the version presented by the petitioner is
corroborated, in the Commission's views, by various reports of intergovernmental
and nongovernmental bodies that document numerous rapes of women in Peru by
members of the security forces in emergency areas and in which the specific case
of Raquel Mejía is mentioned and described as representative of this situation.
In fact the Special Rapporteur against Torture appointed by the United
Nations Human Rights Commission,
in his report for 1992, noted that in Peru, in the areas under the state of
emergency, military personnel frequently resorted to sexual abuse.
Similarly, in the section on Peru in his 1993 report, he stated that
"...abundant information was also received about the practice of rape and
sexual aggression frequently undergone by women in the context of the security
forces' campaign against the insurgent groups... In the areas under state of
emergency...rape seems to be used as a form of intimidation or punishment
against groups of civilians suspected of collaborating with the insurgent
...Sexual abuse and rape appear... to be customary in the areas under state of
Amnesty International, for its part, has stated that in Peru the military
personnel who operate in conflict areas have broad powers and their actions are
not usually subject to any type of authorization. Back in 1986 Amnesty
International had already received information on different cases of sexual
abuse against women in emergency areas. In this connection, government spokesmen
commented that rapes are to be expected when troops are operating in rural
areas, so criminal proceedings should not be instituted to punish this type of
It is not therefore surprising that women living in areas subject to
emergency legislation report being victims of sexual abuse by soldiers, who
generally act with absolute impunity.
In another report on Peru, Amnesty International denounced the existence of an
extended practice of rapes committed by military personnel in different
incursions into rural communities.
In addition, Human Rights Watch, in a study on sexual abuse against women
in Peru, has reported that rape is a common practice in that country.
Since the start of the counterinsurgency campaign against the armed
groups, rape has become a terrible reality for women.
According to this report, soldiers use sexual abuse as a weapon for
punishing, intimidating, coercing, humiliating and degrading women.
For a woman, living in a certain area implies running the risk of being
raped, commonly for being suspected of belonging to one or the other insurgent
movement. While there are no statistics on the number of rapes attributable to
the security forces, Human Rights Watch reports that local groups say the number
is very high. 
The above‑mentioned report documents more than 40 cases of sexual
abuse against women in Peru between 1989 and 1992.
Among these, the case of Raquel Martín de Mejía is described as a
In addition, the March 11, 1993, number of "Caretas" magazine, in an
article on sexual violence in Peru, includes a detailed description of Mrs. Mejía's
case. This article also states that
in a letter dated March 2, 1993, sent to President Alberto Fujimori of Peru, a
group of 23 United States senators expressed their concern about the rapes
committed by the security forces and the police.
"The case... specifically mentioned by the U.S. senators in their
letter... is that of Raquel Mejía.
Her husband was killed by military personnel, who also raped her, according to
The petitioners have furnished circumstantial evidence that makes it
possible to establish the responsibility of military personnel in the abduction,
torture and killing of Fernando Mejía. They have also established the close
relationship between the human rights violations committed against Dr. Mejía
and the indignities suffered by his wife Raquel.
As the Commission has been informed, at the time the events reported took
place, members of the "Batallón Nueve de Diciembre" were in Oxapampa
conducting a counterinsurgency campaign. Both Professor Melgarejo's family and
Raquel Mejía herself have repeatedly stated that the persons who came to their
homes were wearing military uniforms and had their faces concealed by ski masks.
When Mrs. Mejía went to the Municipal Library the day after the
events, she observed that the uniform of the soldiers billeted there was the
same as that worn by the individuals who forced their way into her house.
In addition, the petitioner and the members of the Melgarejo family have
all reported that the military personnel used a yellow government‑owned
pickup for transportation that was normally assigned to the "Pichis
Palcazu" special project.
Moreover, the FAL 7.62‑mm cartridges found near the bodies of Mejía
and Melgarejo point to the Peruvian Army, since they are the bullets normally
used in the Army's assault rifles.
Finally, as a result of the investigations performed in January 1991 the
Head Provincial Prosecutor of Oxapampa filed a formal charge in the local
criminal court against Julio Arias Dorregaray, the former subprefect of the
locality, and against unidentified members of the "Batallón Nueve de
Diciembre" in respect of commission of the crime of homicide against
Fernando Mejía and Aladino Melgarejo.
The Commission considers that the acts against the husband of Raquel Mejía
are closely connected with the sexual abuse that she underwent since they took
place the same night and were perpetrated by the same individuals.
On these grounds, the circumstantial evidence provided, while not
directly pertaining to the case in question, is sufficient, in the Commission's
view, to presume the responsibility of troops of the Peruvian Army in the
commission of the abuses against Raquel Mejía.
presume the nonexistence of effective domestic recourses that would permit
remedies for the human rights violations suffered by Fernando and Raquel Mejía
The petitioners have provided the Commission with a detailed and concise
version of the judicial remedies pursued to obtain redress for the human rights
violations undergone by Fernando Mejía. The
affirmations made in the petition have been sufficiently documented by submission
of copies of the different legal proceedings instituted. It is important to note
that in Peru the opening of criminal proceedings and of investigations to
clarify commission of a crime of a criminal nature are an exclusive monopoly of
the Government Attorney's office. Private
individuals may only have a limited involvement in the instituting‑-filing
of a petition‑‑and initiating of a criminal trial because Peruvian
criminal procedure does not include provision for a private plaintiff, as found
in other Latin American legislations.
As noted in the petition, the Peruvian State has failed to properly
investigate the abduction and subsequent homicide of Dr. Mejía. Notwithstanding the opening of criminal proceedings by the
Oxapampa Provincial Prosecutor, the chief individual involved had fled the area.
To this circumstance was added the difficulties created by the Army
itself, which refused to identify the officers who took part in the
counterinsurgency actions between June 13 and 17, 1989, in the locality.
The credibility of the petitioners' petition is supported by the
Commission's own assessments, the Commission having repeatedly raised the
problem of impunity in Peru through inclusion of recommendations in reports on
or in its special reports. In this
respect it is apposite to cite certain of the Commission's observations:
One element that has been particularly disturbing to the Commission is
that, up till 1990, no member of the security forces had been tried and punished
for involvement in human rights violations.
The fact that no one had been sanctioned was an indictment not only of
the authors of very serious human rights violations, but also of the Peruvian
State organs charged with enforcing the law.
Not only do those guilty of serious human rights violations go
unpunished, but there are no effective measures taken to defend the rights of
the affected parties.
In cases of human rights violations by National Police and Armed Forces
personnel, the question of competent jurisdiction for trying and punishing those
alleged responsible has frequently been raised. The military courts have always
claimed authority to try military and police personnel, on the grounds that such
acts committed in the performance of their official duties. As a result, there
have been very few cases in which the guilty parties were determined, and even
fewer in which police or military personnel whose guilt has been established by
a military court have actually been punished.
Raquel Mejía informed the Commission that when, on June 20, 1989, she
filed her declaration with the Oxapampa police concerning the abduction and
subsequent homicide of her husband, she did not report the sexual abuse to which
she had been subjected because:
[I was] fearful that the violations committed against my person would
have caused me to be ostracized and exposed me to greater danger or physical
Furthermore, it has been noted that there are not in Peru any effective
domestic remedies through which a victim of sexual abuse by members of the
security forces can obtain an impartial investigation of the events and
punishment of those guilty. This situation is aggravated in the emergency zones
since the exercise of authority in them is under the control of the same
individuals who perpetrate serious human rights violations and because the
military courts assume jurisdiction in cases where a member of the security
forces is the accused party. As a result, in virtually no case are individuals
accused of sexual abuse and other serious human rights violations convicted.
The Commission observes that the reasons given by the petitioner for not
submitting a petition in the domestic courts are supported by different
documents published by intergovernmental bodies and nongovernmental
organizations which expressly note that women who have been victims of sexual
abuse by members of the security forces or police have no means open to them for
obtaining a remedy for the violations of their rights.
The U.N. Special Rapporteur against Torture observes in this connection
that "it is reported... that those guilty of [rape and other sexual abuses]
were rarely brought to trial even in those cases where complaints were filed
with competent authorities. The military courts took no action in these cases
and failed to place the accused at the disposal of the civil courts, as they
were required to do by law. This situation of impunity together with other
factors such as the difficulty of submitting evidence or society's attitude to
the victims meant that a large percentage of these cases were never even
Amnesty International has stated that despite the existence of a large
number of cases of sexual violations in emergency areas, to date no member of
the security forces operating in those areas has been tried for rape; neither
have effective investigations been made following complaints submitted by women
who have been victims of sexual abuse by soldiers.
Human Rights Watch, for its part, has observed that despite the
widespread incidence of sexual abuse in Peru, very few police and even fewer
members of the security forces have been tried for this abuse, even in cases
where complaints were filed with the appropriate authorities. On the contrary,
the evidence gathered demonstrates that the police and armed forces protect
those guilty of these violations and grant them promotions, thereby implicitly
tolerating the commission of these crimes.
Human Rights Watch also maintains that it is practically impossible to
prove a charge of rape against a member of the security forces. The emergency legislation specifies that crimes committed in
the "performance of duty" fall under military jurisdiction, in
accordance with the Code of Military Justice. Although sexual abuse is a common
crime‑‑and not one of the so‑called "duty
crimes"‑‑there have been no rape cases in which the ordinary
courts have exercised jurisdiction.
Women who have been raped by members of the security forces do not report
these assaults for two reasons: public humiliation and the perception that those
responsible will never be punished. In addition, they are usually threatened
with reprisals against themselves or their families if they do report them.
Finally, the response given by President Fujimori himself when questioned
about the many sexual abuses perpetrated by military personnel in the emergency
zones is of particular importance:
In cases where women have been raped, I hope investigations are being
carried out. There is a regrettable tradition of impunity in Peru.
presume that the Peruvian Government had no grounds for instituting criminal
proceedings against Raquel Mejía charging her with committing the crime of
The petitioners have submitted to the Commission various pieces of
evidence to the effect that criminal proceedings have been opened against Raquel
Mejía for alleged commission of the crime of terrorism. This evidence includes
a copy of a list published by the Government of various Peruvian nationals
residing abroad and who, allegedly, contribute from their places of residence to
supporting the activities of Sendero Luminoso in Peru. This list, headed
"The Organizations and their Leaders", includes the name of Raquel Mejía
and states that she belongs to an organization called "Movimiento
Popular" through which she collaborates with Sendero Luminoso from Sweden.
In addition, the petitioners have provided the Commission with a copy of
an opinion issued by the Lima Provincial Prosecutor in which the Prosecutor,
besides stating that proceedings have been instituted against Mrs. Mejía and
that a warrant has been issued for her arrest, states that "[r]egarding
those accused of proselytizing in favor of the PCP‑SL,
notwithstanding the large number of people involved and the time that has
elapsed, our Diplomatic Mission has not been able to send us a report on the
activities that the accused have carried out or are presently carrying
Recording those listed, who include Raquel Mejía, the Prosecutor stated:
"... the evidence that would provide the basis for formulation of the
charge has not to date been assembled, which means that their
participation in the events under examination cannot for the moment be
Notwithstanding the Provincial Prosecutor's opinion, the Lima Senior
Prosecutor for Terrorism filed a formal indictment against Raquel Mejía for
belonging to an organization abroad‑‑identified as Movimiento
Popular‑‑that provides support to the Shining Path group. The
indictment charges her with alleged commission of the crime of terrorism against
the State and recommends that she be condemned to 20 years imprisonment plus
payment of a sum of money as civil reparation for the State.
The Commission does not have information on the final verdict in this
case; however, in accordance with the Peruvian antiterrorist legislation, the
accused should in this instance be tried by means of oral proceedings by a
Once the Commission has established the facts of the present petition, it
must proceed to ascertain whether they amount to violations of any of the rights
protected by the American Convention. In particular, the Commission must
Whether the sexual abuses to which Raquel Mejía was subjected constitute
violation of the rights to humane treatment (Article 5) and to privacy (Article
11), in connection with the obligation set forth in Article 1(1).
Whether the impossibility of effective domestic recourse to remedy the
violations of Fernando and Raquel Mejía's human rights constitutes a violation
of the right to due process (Article 8) and to judicial protection (Article 25),
all in connection with the obligation contained in Article 1(1).
Whether the groundless instituting of criminal proceedings for terrorism
in the absence of the accused constitutes a violation of the right to due
process (Article 8), in connection with the obligation contained in Article
repeated sexual abuse to which Raquel Mejía was subjected constitutes a
violation of Article 5 and Article 11 of the American Convention on Human Rights
Current international law establishes that sexual abuse committed by
members of security forces, whether as a result of a deliberate practice
promoted by the State or as a result of failure by the State to prevent the
occurrence of this crime, constitutes a violation of the victims' human
rights, especially the right to physical and mental integrity.
In the context of international humanitarian law, Article 27
of the Fourth Geneva Convention of 1949 concerning the protection due to
civilians in times of war explicitly prohibits sexual abuse.
of that Convention which lists acts considered as "serious offenses"
or "war crimes" includes rape in that it constitutes "torture or
The International Committee of the Red Cross (ICRC) has declared that the
"serious offense" of "deliberately
causing great suffering or seriously harming physical integrity or health"
includes sexual abuse.
Moreover, Article 76 of Additional Protocol I
to the 1949 Geneva Conventions expressly prohibits rape or other types of sexual
abuse. Article 85(4), 
for its part, states that when these practices are based on racial
discrimination they constitute "serious offenses".
As established in the Fourth Convention and Protocol I, any act of rape
committed individually constitutes a war crime. 
In the case of noninternational conflicts, both Article 3
common to the four Geneva Conventions and Article 4(2) 
of Protocol II additional to the Conventions, include the prohibition against
rape and other sexual abuse insofar as they are the outcome of harm deliberately
influenced on a person.
The ICRC has stated that the prohibition laid down in Protocol II
reaffirms and complements the common Article 3 since it was necessary to
strengthen the protection of women, who can be victims of rape, forced
prostitution or other types of abuse.
Article 5 of the Statute of the International Tribunal established for
investigating the serious violations of international humanitarian law committed
in the territory of the former Yugoslavia, considers rape practiced on a
systematic and large scale a crime against humanity.
In the context of international human rights law, the American Convention
on Human Rights stipulates in its Article 5 that:
person has the right to have his physical, mental and moral integrity respected.
one shall be subjected to torture or to cruel, inhuman or degrading punishment
The letter of the Convention does not specify what is to be understood by
torture. However, in the
inter-American sphere, acts constituting torture are established in the
Inter-American Convention to Prevent and Punish Torture, which states:
...torture will be understood to be any act performed intentionally by
which physical and mental pain or suffering is inflicted on a person for
purposes of criminal investigation, as a means of intimidation, as a personal
punishment, as a preventive measure, as a penalty or for any other purpose.
Torture will also be understood to be application to a person of methods
designed to efface the victim's personality or to diminish his physical or
mental capacity, even if they do not cause physical pain or mental anguish.
The following will be guilty of the crime of torture:
a. Public employees or
officials who acting in that capacity order, instigate, induce its commission,
commit it directly or, when in a position to prevent it, do not do so.
b. Persons who, at the
instigation of the public officials or employees referred to in paragraph 1,
order, instigate or induce its commission, commit it directly or are accomplices
in its commission.
Accordingly, for torture to exist three elements have to be combined:
1. it must be an intentional
act through which physical and mental pain and suffering is inflicted on a
2. it must be committed with
3. it must be committed by a
public official or by a private person acting at the instigation of the former.
Regarding the first element, the Commission considers that rape is a
physical and mental abuse that is perpetrated as a result of an act of violence.
The definition of rape contained in Article 170 of the Peruvian Criminal
Code confirms this by using the phrasing "[h]e who, with violence or
serious threat, obliges a person to practice the sex act..."
The Special Rapporteur against Torture has noted that sexual abuse is one
of the various methods of physical torture.
Moreover, rape is considered to be a method of psychological torture
because its objective, in many cases, is not just to humiliate the victim but
also her family or community.
In this connection, the above-mentioned Special Rapporteur has stated
that, particularly in Peru, "...rape would appear to be a weapon used to
punish, intimidate and humiliate."
Rape causes physical and mental suffering in the victim. In addition to the violence suffered at the time it is
committed, the victims are commonly hurt or, in some cases, are even made
pregnant. The fact of being made
the subject of abuse of this nature also causes a psychological trauma that
results, on the one hand, from having been humiliated and victimized, and on the
other, from suffering the condemnation of the members of their community if they
report what has been done to them.
Raquel Mejía was a victim of rape, and in consequence of an act of
violence that cause her "physical and mental pain and suffering".
As she states in her testimony, after having been raped she "was in
a state of shock, sitting there alone in her room".
She was in no hurry to file the appropriate complaint for fear of
suffering "public ostracism". "The
victims of sexual abuse do not report the matter because they feel humiliated.
In addition, no woman wants to publicly announce that she has been raped.
She does not know how her husband will react.
[Moreover], the integrity of the family is at stake, the children might
feel humiliated if they know what has happened to their mother".
The second element establishes that for an act to be torture it must have
been committed intentionally, i.e. to produce a certain result in the victim.
The Inter-American Convention to Prevent and Punish Torture includes,
among other purposes, personal punishment and intimidation.
Raquel Mejía was raped with the aim of punishing her personally and
intimidating her. According to her
testimony, the man who raped her told her that she, too, was wanted as a
subversive, like her husband. He
also told her that her name was on a list of persons connected with terrorism
and, finally, warned her that her friendship with a former official in the
previous government would not serve to protect her.
On the second occasion, before leaving he threatened to come back and
rape her again. Raquel Mejía felt
terrorized not only for her own safety but also for that of her daughter who was
sleeping in another room and for the life of her husband.
The third requirement of the definition of torture is that the act must
have been perpetrated by a public official or by a private individual at the
instigation of the former.
As concluded in the foregoing, the man who raped Raquel Mejía was member
of the security forces who had himself accompanied by a large group of soldiers.
Accordingly, the Commission, having established that the three elements
of the definition of torture are present in the case under consideration,
concludes that the Peruvian State is responsible for violation of Article 5 of
the American Convention.
The petitioners have also asserted that the sexual abuse suffered by
Raquel Mejía violates the provisions of Article 11 of the Convention.
Said article specifies that a State must guarantee everybody protection
of their honor and dignity, within the framework of a broader right, namely the
right to privacy. The relevant
parts of paragraphs 1 and 2 of this article read as follows:
1. Everyone has the right to have
his honor respected and his dignity respected.
2. No one may be the object of
arbitrary or abusive interference with his private life...
The Special Rapporteur against Torture has stated that "Rape is a
particularly base attack against human dignity.
Women are affected in the most sensitive part of their personality and
the long-term effects are perforce extremely harmful, since in the majority of
cases the necessary psychological treatment and care will not and cannot be
The Commission considers that sexual abuse, besides being a violation of
the victim's physical and mental integrity, implies a deliberate outrage to
their dignity. In this respect, it
becomes a question that is included in the concept of "private life".
The European Court of Human Rights has observed that the concept of
private life extends to a person's physical and moral integrity, and
consequently includes his sex life.
For the Commission, therefore, the rapes suffered by Raquel Mejía, in
that they affected both her physical and her moral integrity, including her
personal dignity, constituted a violation of Article 11 of the Convention,
responsibility for which is attributable to the Peruvian State.
Article 1(1) of the Convention states:
The State 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.
The Inter-American Court of Human Rights has interpreted this article as
establishing two obligations for the States Parties to the Convention:
that of respecting the rights and freedoms recognized in it and
that of ensuring their free and full exercise to individuals under their
According to the Court, any form of exercise of public power that
violates the rights protected by the Convention is unlawful.
Thus, when an organ or agent of the public authority violates any of
these rights, this is a violation of the obligation to "respect", and
consequently a violation of Article 1(1).
On the basis of these considerations, the Commission concludes that since
the Peruvian State omitted to respect the rights to humane treatment and to
protection of her honor and dignity of Raquel Mejía, the State is in
violation of the obligation contained in Article 1(1).
impossibility for Raquel Mejía to access domestic recourses for remedying the
violations of her husband's human rights and of her own constitutes a violation
of Article 25 and 8(1), in relation to Article 1(1) of the Convention
Article 25 and 8(1) of the Convention respectively provide as follows:
has the right to simple and prompt recourse, or any other effective recourse, to
a competent court or tribunal for protection against acts that violate his
fundamental rights recognized by the constitution or laws of the state concerned
or by this Convention...
States Parties undertake:
a. to ensure that any person
claiming such remedy shall have his rights determined by the competent authority
provided for by the legal system of the State;
b. to develop the possibilities of
judicial remedy; and
c. to ensure that the competent
authorities shall enforce such remedies when granted.
person has the right to a hearing, with due guarantees and within a reasonable
time, by a competent, independent, and impartial tribunal, previously
established by law, in the substantiation of any accusation of a criminal nature
made against him or for the determination of his rights and obligations of a
civil, labor, fiscal, or any other nature.
The Commission has had opportunity to pronounce on the interpretation of
these articles in previous cases in which the scope of the right to effective
recourse in the context of the provisions of the American Convention was
Concerning Article 1(1), the Commission, citing the Inter-American Court
of Human Rights in the Velásquez Rodríguez case, has stated:
the second obligation of the States Parties is that of
"ensuring" the free and full exercise of the rights recognized in the
Convention to all persons subject to their jurisdiction... Consequently, the
States must prevent, investigate and punish any violation of the rights
recognized by the Convention... The
Court expanded this concept in various subsequent paragraphs of the same
judgment, for example: "The
decisive factor is to determine whether a particular violation of the rights
recognized by the Convention has taken place with the support or the
tolerance of the public authorities or whether the latter have acted in such
a way that the violation has occurred without any prevention or with impunity".
"The State has the juridical duty to prevent, to the extent
it reasonably can, human rights violations, to purposefully investigate
with the means at its disposal, such violations as may be committed within the
sphere of its jurisdiction in order to identify those responsible, apply to
them the appropriate penalties and ensure adequate compensation for the
victim"; "... if the
State apparatus acts in such a way that the violation remains unpunished
and the victim's full rights are not restored to him to the extent possible, it
can be affirmed that the State has failed to perform its duty to ensure free and
full exercise of said rights to all persons under its jurisdiction".
Regarding the obligation to investigate, the Commission notes that this
must be "...for a purpose and be assumed by the State as a specific
juridical duty and not as a simple matter of management of private interests
that depends on the initiative of the victim or his family in bringing suit or
on the provision of evidence by private sources, without the public authority
effectively seeking to establish the truth..."
The obligation contained in Article 1(1) is a necessary corollary of the
right of every individual to recourse to a tribunal to obtain judicial
protection when he believes he has been a victim of violation of any of his
human rights. If this were not so,
the right to obtain effective recourse set forth in Article 25 would be
absolutely without content.
In this connection, the Inter-American Court of Human Rights has observed
[In the terms of the Convention] the States Parties undertake to make
effective judicial recourses available to human rights violations victims
(Article 25), recourses that must be substantiated in accordance with the rules
of due process (Article 8(1)), all within the general obligation on the same
States to ensure the free and full exercise of the rights recognized in the
Convention to all persons under their jurisdiction (Article 1(1)).
The Commission considers that the right to a recourse set forth in
Article 25, interpreted in conjunction with the obligation in Article 1(1) and
the provisions of Article 8(1), must be understood as the right of every
individual to go to a tribunal when any of his rights have been violated
(whether a right protected by the Convention, the constitution or the domestic
laws of the State concerned), to obtain a judicial investigation conducted by a
competent, impartial and independent tribunal that will establish whether or not
a violation has taken place and will set, when appropriate, adequate
In this way, when a human rights violation is the outcome of an act
classified as criminal, the victim is entitled to obtain from the State a
judicial investigation that is conducted "purposefully with the means at
its disposal... in order to identify those responsible [and] apply to them the
Purposeful investigation, in the Commission's view, implies that the
competent State authority "will develop the possibilities of judicial
i.e. that it will undertake the investigation "as a specific juridical duty
and not as a simple matter of management of private interests that depends on
the initiative of the victim or of his family in bringing suit or on the
provision of evidence by private sources, without the public authority
effectively seeking to establish the truth..." Thus, the obligation to investigate purposefully means in
practice that the State will act with due diligence, i.e. with the existing
means at its disposal, and will endeavor to arrive at a decision.
However, when the State has performed its obligation to diligently
investigate the matter, the fact that the investigation does not produce a
positive result or the decision is not favorable to the petitioner does not per
se demonstrate that the latter has not had access to a recourse.According
to Article 25 of the Convention, the right to judicial protection includes the
obligation of the State to guarantee the enforcement of any remedy when granted.
In this way, within the context of the Convention the term
"recourse" must be understood in a broad sense and not be limited to
the meaning that this word has in the legal terminology of the States'
The American Convention requires the States to offer effective recourses
to human rights violations victims. The
formal existence of such recourses is not sufficient to demonstrate their
effectiveness; to be effective, a recourse must be adequate and efficacious.
Adequate means that the function of the recourse in a State's domestic
legal system must be appropriate for protecting the juridical situation
affected. A recourse is efficacious when it is capable of producing the
result for which it was designed.
Whether the existence or not of an effective recourse is established in a
concrete case and taking into consideration the special features of each
legislation, the Commission understands that, in those States where
determination of the civil reparation of injury caused by an unlawful act is
subject to establishment of same in a criminal trial, the instituting of
criminal action and the subsequent furthering of the proceedings by the State is
the adequate recourse required by the victim.
In the case under analysis, the Commission, on the basis of the facts
reported, presumed that Raquel Mejía had not had access to an effective
recourse that would have remedied the human rights violations suffered by her.
As established, Raquel Mejía did not file a complaint with the domestic
courts since practice in Peru is that this type of act involving State agents is
not investigated while moreover those who report them run the risk of reprisals.
The Peruvian State's failure to give the victim access to a judicial
investigation conducted by an independent and impartial tribunal made it, in
practice, materially impossible for her to exercise her right to obtain
compensation. The fact is that, in
Peruvian law, the obtaining of civil compensation for injuries resulting from an
unlawful act in the criminal category is subject to establishment of the crime
by means of criminal proceedings.
For this reason, in the concrete case of Raquel Mejía, the Peruvian
State's failure to guarantee her right to an effective recourse, besides
constituting a violation of her right to judicial protection, also constituted a
violation of her right to go to a tribunal that would determine whether she was
entitled to compensation for injuries suffered as a result of the sexual abuse
to which she was subjected.
The American Convention establishes a distinction between the petitioner
and the victim. While the term
"petitioner" refers to the person with active legitimation to file a
petition with the system, the word "victim" refers to individuals who
have been impacted by violation of their rights. The Commission understands that, in cases where the right to
life is violated, omission by the State to provide effective recourses affects
the family of the dead person and, therefore, makes them into indirect
"victims" of the violation of the right to judicial protection defined
in a broad sense, i.e. including the right to compensation.
The Commission has presumed that the Peruvian State omitted to guarantee
the right to an effective recourse in the case of Fernando Mejía.
In his case, adequate recourse was judicial investigation by the State
through initiation of criminal proceedings and, once the existence of an
unlawful act was established, determination of compensation for the injuries
caused to the victim. While the
pertinent criminal proceedings were instituted, the behavior of the State
organs, namely the Government Attorney's office, the judge assigned to the case
and the Peruvian Armed Forces in delaying or obstructing the investigation,
rendered the recourse inefficacious in practice.
The State's failure to provide for a thorough investigation in the case
of Fernando Mejía affected his wife's right to an effective recourse and,
according to Peruvian law, the fact that the existence of an unlawful act was
not established through criminal proceedings prevented Raquel Mejía's access to
a tribunal to determine whether compensation was due to her.
On the basis of the analysis made above, the Commission concludes that
the Peruvian State, in not offering effective recourses to Raquel Mejía in both
the case of the homicide of her husband and in connection with the violations of
her own rights, constituted violation of the rights set forth in Articles 1(1),
8(1) and 25 of the Convention.
groundless instituting of criminal proceedings for terrorism against Raquel Mejía
constitutes a violation of the right to due process (Article 8), in conjunction
with the obligation contained in Article 1(1)
Raquel Mejía has been tried for the alleged commission of the crime of
terrorism under the provisions of Decree-Law No. 25.475 that establishes the
penalty for the crimes of terrorism and the procedures for preliminary and full
investigation and trial proceedings in respect of such crimes:
Article 13 of this Decree-Law, insofar as it concerns us, reads as
The following rules shall be observed for the preliminary investigation
and proceedings in respect of the crimes of terrorism to which this Decree-Law
the charge has been filed by the Government Attorney's office, the detainees
shall be placed at the disposition of the Criminal Judge, who shall issue the
order to open the investigation with warrant of arrest, within 24 hours,
with adoption of the necessary security measures... Likewise, prior
questions, prejudicial issues, exceptions and any other related matters are to
be resolved in the judgment.
d. Upon completion of the preliminary investigation the dossier shall be
forwarded to the President of the respective court, who will forward the
findings to the Chief Senior Prosecutor who, in his turn, shall assign the
Senior Prosecutor who is to draw up the indictment...
e. Once the documents with
the indictment are returned, the President of the Superior Court shall appoint
the members of the Special Court to hear the case, who shall include the
Judicial District members, on a rotating and secret basis, under liability.
h. In terrorism cases, no
challenges will be permitted against the judges assigned or other justice
On the basis of the above-cited article, once a petition has been filed
the judge must order opening of proceedings and the arrest of the accused
individual. In this way, a person
is obligatorily brought before the court and even placed under arrest without
establishing whether there is sufficient evidence of the existence of a crime
and of the individual's guilt in the commission of it.
The individual is further prevented from introducing a prior question,
for example questioning the actual existence of the crime or asserting the
absence of criminal liability on the part of the accused.
According to Article 13, these exceptions will be resolved in the final
judgment, i.e. after the hearing of the case has been completed.
Upon completion of the preliminary investigation, the judge must
forward the dossier to the Superior Court, even when there is no evidence of the
accused's guilt; once the Senior Prosecutor has been appointed, he must
draw up an indictment, without needing to establish whether there are grounds
for proceeding with the case. As a
result, application of this Decree-Law in practice can mean that an individual
can be deprived of liberty or made subject to criminal proceedings even if at
any stage in such proceedings it is established that there is not evidence of
Article 8 of the American Convention sets the requirements to be met in
the various stages of proceedings to be able to speak of true and appropriate
The Inter-American Court of Human Rights has observed that:
[Article 8] recognizes the so-called "due legal process", which
encompasses the conditions to be met in order to ensure adequate defense of
those whose rights and obligations are under judicial consideration. 
This Article includes different rights and guarantees flowing from a
common juridical asset or good and which considered as a whole constitute a
single right not specifically defined but whose unequivocal purpose is
definitely to ensure the right of everyone to a fair trial.
In this connection, paragraphs 1 and 2 of Article 8 specify that:
person has the right to a hearing, with due guarantees... by a competent,
independent and impartial tribunal... in the substantiation of any accusation of
a criminal nature made against him...
person accused of a criminal offense has the right to be presumed innocent so
long as his guilt has not been proven...
Impartiality presumes that the court or judge do not have preconceived
opinions about the case sub judice and, in particular, do not presume the
accused to be guilty. For the
European Court, the impartiality of the judge is made up of subjective and
His subjective impartiality in the specific case is presumed as long as
there is no evidence to the contrary. Objective impartiality, on the other hand,
requires that the tribunal or judge offer sufficient guarantees to remove any
doubt as to their impartiality in the case.
The principle of innocence constructs a presumption in favor of a person
accused of an offense, according to which he is considered innocent as long as
his criminal liability is established by a firm judgment. As a result, in order to establish the criminal liability of
an accused person the State has to prove his guilt beyond all reasonable doubt.
The presumption of innocence is related, in the first place, to the
spirit and attitude of the judge who has to investigate the criminal charge.
He must approach the case without prejudices and under no circumstances
must he presume the accused guilty.
On the contrary, his task is to construct an accused's criminal liability on the
basis of assessment of the evidence on hand.
In this context, another elementary concept of criminal processal law,
the objective of which is to preserve the principle of innocence, is the burden
of proof. In criminal proceedings,
the onus probandi does not lie with the accused; on the contrary, it is
the State that has to demonstrate the accused's guilt.
Modern doctrine accordingly maintains that "the accused does not
need to prove his innocence, which has already been constructed by the
presumption protecting him, but rather the accuser has to fully construct his
position, leading to certainty that a punishable act was committed.
The essential thing is therefore that the judge who hears the case is
free of any prejudice concerning the accused's guilt and affords him the benefit
of the doubt, i.e. does not condemn him until he is certain or convinced of his
criminal liability, so that all reasonable doubt that the accused might be
innocent is removed.
The Inter-American Court of Human Rights has stated that:
There are many ways in which a State can violate...
the Convention. In this
latter case, it can do so.... by enacting provisions that are inconsistent with
the requirements of its obligations under the Convention.
Accordingly, when there is a law that is contrary to the Convention,
according to the Court:
The Commission is competent, under... Articles 41 and 42 of the
Convention, to qualify any domestic legislation of a State Party as in violation
of the obligations said State Party has assumed in ratifying or acceding to
As a consequence of such qualification, the Commission can recommend to
the State that it repeal or amend the legislation in question and for this
purpose it is sufficient that said legislation has come to its knowledge by
whatever means, whether or not it has been applied in a concrete case.
This qualification and recommendation can be made by the Commission
directly to the State (Article 41(b)) or in the reports referred to in Articles
49 and 50 of the Convention.
The Commission, based on the power granted it by Articles 41 and 42 of
the Convention and in accordance with the interpretation of same by the Court,
observes that Article 13 of Decree-Law 25.475 is incompatible with the
obligations assumed by the Peruvian State on ratifying the Convention.
The fact is that, pursuant to Article 8 of the Convention, it has
recognized the right of everyone accused of an offense to a fair trial. This right includes, inter alia, the right to be heard by an
impartial tribunal and to be presumed innocent until legally proved to be
For the Commission, Article 13 of Decree-Law 25.475, regardless of its
application in a particular case, does not guarantee the right to a fair trial.
In the first place, it reserves the burden of proof and creates, in
practice, a presumption of guilt that places on the accused the burden of
proving his innocence. The decree
in fact requires the investigating magistrate to institute criminal proceedings
and arrest the accused on the basis of the existence of a petition alone and
requires him to forward the case to the Superior Court, without ascertaining in
either case whether there is sufficient evidence to warrant proceeding with it;
it further prevents the accused from defending himself by recourse to prior
questions, even ones that would apparently demonstrate that he is not guilty or
that no offense was committed and, finally it generates an obligation for the
Senior Prosecutor to indict the accused, even when there is not sufficient
evidence for such a step.
Secondly, Article 13 does not guarantee the impartiality of the court.
In establishing the legal obligation to open proceedings and indict, the
decree places the tribunal in the position of considering the accused guilty,
even before assessing the evidence at hand.
The Commission accordingly observes that Article 13 of Decree-Law 25.475,
by omitting to guarantee free and full exercise of the right to a fair trial
contained in Article 8 of the Convention is incompatible with the obligation set
forth in Article 1(1) of same.
In the case of Raquel Mejía, the application of this law in the
proceedings constitutes, in the Commission's opinion, a violation of her right
to be heard by an impartial tribunal and to be presumed innocent. The fact is that, as is evident from the evidence produced,
once she was accused of alleged commission of the crime of terrorism, the
examining magistrate opened the case and issued a warrant for her arrest.
Once the preliminary investigation was completed, he forwarded the
dossier to the Lima Provincial Prosecutor who, despite stating that, Raquel Mejía
"...the indications that would warrant formulation of the indictment have
not been proven to date, which means that her participation in the events
investigated cannot be established for the moment..." forwarded the case to
the Superior Court. That Court
proceeded to appoint the Supreme Prosecutor who, in compliance with the
provisions of Article 13 of Decree-Law 25.475, charged Raquel Mejía with the
crime of terrorism and asked for the penalty of 20 years imprisonment, without
even considering whether there was any evidence of the criminal liability.
In Report 25/95, to which the Peruvian State did not reply within the 60
days given to it by the Commission, the latter concluded that the Peruvian State
had violated its obligation to respect and guarantee the fundamental rights and
freedoms, an obligation which implies the duty to investigate abuses of those
rights and freedoms and to punish those responsible, and the right to judicial
protection, provided for in Articles 1 and 25 of the American Convention on
The Commission, on the basis of the considerations analyzed in this
report, formulates the following conclusions:
In application of Articles 47 of the Convention and 39 of its
it declares the petitions concerning the human rights violations suffered
by Fernando Mejía inadmissible;
it declares the petitions concerning the human rights violations suffered
by Raquel Mejía admissible.
In regard to the petitions considered admissible it concludes that:
the Peruvian State is responsible for the violation of the right to
humane treatment (Article 5) and the right to protection of honor and dignity
(Article 11) of Raquel Mejía and of the general obligation to respect and
guarantee the exercise of these rights contained in the Convention (Article
the Peruvian State is responsible for the violation of the right to an
effective recourse (Article 25), the right to due process (Article 8) and of the
general obligation to respect and guarantee the exercise of these rights
contained in the Convention (Article 1(1)).
Article 13 of Decree-Law 25.475 is incompatible with the right to a fair
trial protected by Article 8 of the Convention and, in consequence, constitutes
a violation of the general obligation contained in Article 1(1) of same.
the application of the said article in the specific case of Raquel Mejía
constitutes a violation of her right to presumption of innocence and to be heard
by an impartial tribunal (Article 8(1) and (2)).
Therefore, the Commission, in consideration of its analysis and of the
law, hereby agrees:
To declare that the Peruvian State is responsible for violating the right
to humane treatment, the right to protection of one's honor and dignity, the
right to a fair trial and the right to judicial protection guaranteed,
respectively, in Articles 5, 11, 8 and 25 of the American Convention, and its
general obligation to respect and guarantee the exercise of those rights, under
Article 1.1 of the Convention.
To recommend to the Peruvian State that it conduct a thorough, rapid and
impartial investigation into the events in the kidnapping, torture and
subsequent murder of Fernando Mejía, in order to identify those responsible
and, where appropriate, impose the appropriate punishment.
To recommend to the Peruvian State that it conduct a thorough, rapid and
impartial investigation of the sexual abuse of which Raquel Mejía was the
victim, in order to identify the perpetrators so that they may be be punished in
accordance with the law, and that it pay the injured party a fair compensation.
To recommend to the Peruvian State that it abolish or amend Article 13 of
Decree Law 25.475, so that it guarantees everyone's right to a fair trial.
To recommend to the Peruvian State that it drop the criminal proceedings
against Raquel Mejía for the alleged crime of terrorism, inasmuch as it has
failed to guarantee her right to a fair trial.
To publish this Report in the Annual Report to the General Assembly.
REPORT Nº 3/96
REPORT TO CONCLUDE CASE 9213
(Disabled Peoples International)
March 1, 1996
This case arose out of a petition filed by Disabled Peoples'
International (D.P.I.) et al., on November 5, 1983.
It alleged that on Monday, October 24, 1983, the Richmond Hill Insane
Asylum in Grenada was bombed by United States' military aircraft. The United States Government sought to have the petition
declared inadmissible because it was filed on behalf of "unnamed, and
unnumbered residents" who were not identified.
The representatives of the DPI traveled to Grenada on December 17-21,
1988, to identify the victims. The
petitioners later identified by name, sixteen persons killed, six injured and
amended the petition to include these names.
At its 69th period of Sessions the Commission declared the petition
admissible HAVING FOUND THAT:
Domestic remedies were not provided by the legislation of Grenada or the
United States; given the ad hoc nature of the U.S. Compensation program, the
evident failure of the U.S. Government to contact these incapacitated victims,
and the unwillingness of the U.S. Government to compensate these victims
subsequent to the expiration of the ad hoc compensation program, lead the
Commission to conclude that the domestic remedies could not be invoked and
exhausted so as to render the provision of Article 37(2)(a) applicable.
On February 6, 1991, the Commission requested permission to conduct an
on-site visit to Grenada in order to investigate the allegations raised in the
petition. On March 25, 1991, then
Prime Minister of Grenada, the Honorable Nicholas A. Brathwaite, responded to
the Commission's request by indicating that the request had been considered and
that he gave instructions to the relevant agencies to investigate and advise him
on a convenient date for the visit.
2. On September 12, 1991, the
Commission requested information from the Ambassador of Grenada with regard to
the status of the Prime Minister's response.
None was received.
On January 26, 1995, the petitioners informed the Commission that the
issues which necessitated the filing of the petition have now been settled.
A new hospital was built in 1987 to replace the one which was destroyed
in 1983 and emergency and other repairs were completed in 1994. They understood that residents of the new facility and the
individual petitioners were paid satisfactory compensation and have been
provided with clothing, food, care and services meeting minimum international
standards of care. The funding was
provided by United States Agency for International Development (USAID). For its
part "the United States' Government considers it important to note for the
record its longstanding position that its actions were entirely in conformance
with the law of armed conflict, and that therefore the U.S had no legal
liability for any damages claimed. For
these reasons, the U.S categorically rejects as inaccurate and misleading
petitioners' statement as an alleged settlement of this case and compensation
paid in this matter."
The Commission examined the case at its 88th period of sessions and
requested clarification from the petitioners concerning their request to
withdraw the case for consideration.
On March 28, 1995, the Commission received a letter from the petitioners
of the same date, requesting that it close this case for the reasons outlined
Given these representations a decision on the merits of this case need
not be reached.
THE INTER-AMERICAN COMMISSION
ON HUMAN RIGHTS,
expresses its satisfaction at the disposition reached in this matter.
This case be closed.
This Report be published.
 Inter‑American Court of Human Rights, Restrictions
to the Death Penalty (Arts. 54(2) and 4(4) of the American Convention on
Human Rights, Consultative Opinion C‑3/83 of September 8, 1983, Series
A, No. 3 para. 50.
 These criteria were set implicitly by the
Inter‑American Court of Human Rights in the Velásquez Rodríguez
case. Examination of consistency is the logical and rational exercise of
scrutinizing the basic information provided by the petitioner in order to
establish that there is no contradiction between the facts and/or the
evidence submitted. The credibility of the facts is determined by assessing
the (continue) (Continuation) version
submitted, including its consistency and specificity, in the evaluation of
the proofs submitted and taking into account public or well‑known
facts and other information that the Commission considers pertinent.
Specificity, for its part, is deduced as a corollary of the preceding two
 Citing the reports on the Practice of Human Rights in
different countries published by the U.S. Department of State in 1990 and
1991. The 1990 report refers to
reliable information documenting sexual abuses committed by military
personnel in Peru. It further
notes that the number of rapes committed by the security forces in the
emergency zones is so large that it can be stated to be common practice,
supported‑‑or at least winked at‑‑by the military
chiefs. The report for 1991 also indicates that cases are continuing of
sexual abuses by the security forces in the emergency zones.
 In 1988, the Commission adopted fourteen individual
cases in which the Peruvian State's responsibility for serious human rights
violations was established. In 1989 it adopted two such cases, and in 1990
and 1991 fifty‑one, and then a further five in the course of 1992 and
 Article 27, insofar as it concerns us, reads:
Protected persons are entitled, in all circumstances, to respect for
their persons, their honour, their family rights, their religious
convictions and practices, and their manners and customs.
They shall at all times be humanely treated, and shall be protected
especially against all acts of violence or threats, thereof and against
insults and public curiosity. Women shall be especially protected against any attack on
their honour, in particular, against rape, enforced prostitution or any form
of indecent assault...
 Article 147 reads:
Serious offenses are those that involve one or more of the following
acts, "if committed against persons or property protected by the
present Convention: ... torture or inhuman treatment, including ...
wilfully fact of causing great suffering or serious injury to body or health
 Article 76, entitled "Protection of Women",
specifies that: 1.
Women shall be afforded special respect and protected in particular
against rape, forced prostitution and any other form of indecent assault.
 Article 85(4) states that: ... The following acts will be considered serious offenses
under the present Protocol when committed intentionally and in violation of
the Conventions or the Protocol: ...
(c) The practices of apartheid and other inhuman and degrading
practices, based on racial discrimination, that entail an outrage against
Attacks against life and bodily integrity, especially homicide in all its
forms, mutilations, cruel treatment, torture and ordeals; ... (c) Attacks
against personal dignity ..."
 Article 4(2) of Protocol II, for its part, states:
1. All persons who are
not participating directly in the hostilities, or have ceased to participate
in them, whether or not deprived of their liberty, shall be entitled to
respect of their persons, their honor, their religious convictions and
practices.... 2. The following
shall be prohibited at all times and in all places with respect to the
persons referred to in paragraph 1:
Attacks against the life, health and physical and mental integrity of
persons, in particular homicide and cruel treatments such as torture... ....
(e) Attacks against personal
dignity, especially humiliating and degrading treatment, rape, forced
prostitution and any form of indecent assault;
 ICRC Commentary on the Additional Protocols of 8
June, 1977 to the Geneva Conventions of 12 August 1949, Yves Sandoz,
Christophe Swinarski, Bruno Zimmerman, eds. (Geneva:
Martinus Nijhoff Publishers, 1987) 1375. Quoted in D. Thomas and R. Ralph, idem supra, Note 30,
 United Nations:
Secretary General Report on aspects of establishing an international
tribunal for the prosecutions of persons responsible for serious violations
of International Humanitarian Law committed in the territory of the former
Yugoslavia, 32 I.L.M., 1159, 1173, 1174 (1993).
 Article 3 of the Peruvian Code of Criminal Procedure
specifies that: When in the
course of civil proceedings reasonable indications are brought to light of
commission of a crime calling for official prosecution, the judge shall
inform the representative of the Government Attorney's office so that the
pertinent criminal proceedings may be instituted.
In this case, the judge shall suspend the civil proceedings, if he
considers that the criminal judgment may influence the decision to be handed
down in the civil case.
 Article 8 of the Convention provides, in this
connection, that "Every person has the right to a hearing... by a
competent tribunal... for the determination of his rights... of a civil ...
 Article 77 of the Code of Criminal Procedure specifies
that: Once the petition is
received, the examining magistrate shall only open the investigation
if the alleged perpetrator has been identified and criminal action is not
time-barred. The case record
shall specify the reasons and bases...
 According to Article 5 of the Peruvian Code of Criminal
Procedure, this exception is classified as "of Nature of Action"
and applies when "the act denounced does not constitute a crime or is
not actionable under criminal law".
 Inter-Am. Ct. of H.R. Judicial Guarantees in States of
Emergency (Article 27(2), 25 and 8 of the American Convention on Human
Rights), Consultative Opinion O-C9/87 of October 6, 1987, Series A Nº 9,
 See European Court of Human Rights, Golder Case,
Judgment of February 21, 1975, Series A, No. 18, para. 28, in regard to
Article 6 of the European Convention on Human Rights, which contains
substantially the same rights and guarantees as Article 8 of the American
 On this point the European Court has developed extensive
case law. By way of examples,
see Piersack Case, Judgment of October 1, 1982, Series A, No. 53 and De
Cubber Case, Judgment of October 26, 1984, Series A, Nº 86.
 Maier, Julio B.J., El derecho procesal penal
argentino, Buenos Aires, Editorial Hammurabi, 1989, p. 271.
Also in this connection, the European Commission on Human Rights has
pointed out that the burden of proof, in the context of a criminal case,
lies with the Government Attorney's office and the existence of doubt
benefits the accused. See Human
Rights Commission, Austria v. Italy, Report of March 30, 1963, Y.B.
of the European Convention on H.R., Vol. VI, p. 782.
 Inter-Am. Ct. of H.R., Certain powers of the
Inter-American Commission on Human Rights (Arts. 41, 42, 46, 47, 50 and 51
of the American Convention on Human Rights), Consultative Opinion OC-13/93
of July 16, 1993, Series A, No. 13, para. 26.
 Inter-Am. Ct. of H.R., International responsibility for
enactment and application of laws that violate the Convention (Articles 1
and 2 of the American Convention on Human Rights), Consultative Opinion
OC-14/94 of December 9, 1994, para. 39.
Commission President Dean Claudio Grossman and Member Professor
Robert K. Goldman, did not participate in the consideration and voting on
this report, in accordance with Article 19 of the Regulations of the
 This decision was published in the Commission's Annual
Report, 1986-1987, OEA/Ser.L/V/II.71, Doc. 9 rev.1, 22 September 1987,
198-207, and its Yearbook of 1987 at 328-345.