b.       To 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 individual cases[22] 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.[23]

          Moreover,

          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.[24]

          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 harm...

          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 reported".[25]

          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.[26]

          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.[27]

          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.[28]

          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.[29]

          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.[30]

          c.       To presume that the Peruvian Government had no grounds for instituting criminal proceedings against Raquel Mejía charging her with committing the crime of terrorism

          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,[31] 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 out..."

          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 established."

          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 "faceless court".

          2.            Questions raised

          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 establish:

          1.          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).

          2.          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).

          3.          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 1(1).

          3.       Analysis

          a.       The 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[32] of the Fourth Geneva Convention of 1949 concerning the protection due to civilians in times of war explicitly prohibits sexual abuse.[33]   Article 147[34] of that Convention which lists acts considered as "serious offenses" or "war crimes" includes rape in that it constitutes "torture or inhuman treatment".[35]  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.[36]

          Moreover, Article 76[37] of Additional Protocol I to the 1949 Geneva Conventions expressly prohibits rape or other types of sexual abuse.  Article 85(4), [38] 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. [39]

          In the case of noninternational conflicts, both Article 3[40] common to the four Geneva Conventions and Article 4(2) [41] 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.[42]  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.[43]

          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.[44]

          In the context of international human rights law, the American Convention on Human Rights stipulates in its Article 5 that:

          1.       Every person has the right to have his physical, mental and moral integrity respected.

          2.       No one shall be subjected to torture or to cruel, inhuman or degrading punishment or treatment...

          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.[45]

          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.[46]

          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 person;

          2.  it must be committed with a purpose;

          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.[47]  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.[48]  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."[49]

          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.[50] 

          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 provided."[51]

          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.[52]

          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 jurisdiction.[53]  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).[54]

          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).

          b.       The 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:

          Article 25

          1.       Everyone 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...

          2.       The 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.

          Article 8

          1.       Every 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 established. [55]

          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..."[56] 

          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 as follows:

          [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)).[57]

          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 compensation.

          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 appropriate penalties..."

          Purposeful investigation, in the Commission's view, implies that the competent State authority "will develop the possibilities of judicial remedy",[58] 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.[59]  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.[60]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.[61]

          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' procedural legislation.

          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.[62]

          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.[63]

          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.[64]

          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.

          c.       The 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 follows:

          The following rules shall be observed for the preliminary investigation and proceedings in respect of the crimes of terrorism to which this Decree-Law refers:

          a.       Once 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 officials.

          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.[65]  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.[66]  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 his guilt.

          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 judicial guarantees.[67]  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. [68]

          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.[69]

          In this connection, paragraphs 1 and 2 of Article 8 specify that:

          1.       Every 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...

          2.       Every 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 objective elements.[70]  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.[71] 

          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.[72] 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.[73]

          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.[74]

          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 it... [75]

          Therefore:

          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.[76]

          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 guilty.

          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 Human Rights.

          VI.      CONCLUSIONS

          The Commission, on the basis of the considerations analyzed in this report, formulates the following conclusions:

          1.          In application of Articles 47 of the Convention and 39 of its Regulations:

          a.          it declares the petitions concerning the human rights violations suffered by Fernando Mejía inadmissible;

          b.          it declares the petitions concerning the human rights violations suffered by Raquel Mejía admissible.

          2.          In regard to the petitions considered admissible it concludes that:

          a.          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 1(1)).

          b.          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)).

          c.          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.

          d.          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)).

          VII.          RECOMMENDATIONS

          Therefore, the Commission, in consideration of its analysis and of the law, hereby agrees:

          1.          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.

          2.          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.

          3.          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.

          4.          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.

          5.          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.

          6.          To publish this Report in the Annual Report to the General Assembly.