REPORT Nº 5/96

CASE 10.970

PERU

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):

          1.          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.

          2.          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.

          3.          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).

          I.            BACKGROUND

          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 place.

          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.

          II.            FACTS REPORTED

          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 Mejía Egocheaga.

          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 husband's life.

          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 sexually.

          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 women.

          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 Egocheaga.

          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 Melgarejo.

          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 political asylum.

          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 unknown.

          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 "faceless court".

          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.

          III.            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 inadmissible.

          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.

          IV.            OBSERVATIONS OF THE PARTIES

          A.            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 its Regulations.

          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.

          B.            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 two reasons:

          1.          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.

          2.          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 admissible.

          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 internationally responsible.

          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 following points:

          1.          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.

          2.          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:

          a.          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.

          b.          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 used.

          c.          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.

          d.          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 her.

          e.          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 follows:

          a.          the abductions are carried out at night in the victims' own homes;

          b.          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;

          c.          the abductors wear military uniforms with ski masks to conceal their features;

          d.          the victims are taken, tortured and finally executed without any trial or due process.

          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 liability.

          V.            GENERAL CONSIDERATIONS

          A.         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 25.

          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.

          1.            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 inter­national organization.  

          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 member.

          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 organ".[1]

          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 Convention...

          In the concluding part of Report 83/90, the Commission made the following recommendations to the Peruvian State:

          a.       Make 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.

          b.       Adopt the necessary measures to prevent the commission of similar acts in the future.

          c.       Redress 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 Party".

          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 victim.[2]  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.[3] 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.[4]  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...[5]

          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.

          2.            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 international law.

          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.[6]

          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.

          B.            Considerations on the substance of the case

          1.            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."[7]

          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 ambiguous.

          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:

          1.       When 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.

          2.       Before 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.[8]

          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 admissibility.

          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.[9]

          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.[10]

          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 matter.

          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:

          a.       To 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 areas.

          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,[11] in his report for 1992, noted that in Peru, in the areas under the state of emergency, military personnel frequently resorted to sexual abuse.[12]  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 groups..."[13] ...Sexual abuse and rape appear... to be customary in the areas under state of emergency."[14]

          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 abuse.[15]  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.[16] 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.[17]

          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.[18]  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. [19]

          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 classic instance.[20] 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 her report".[21]

          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.

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