By petition submitted to the Inter-American Commission on Human
Rights (hereinafter “the Commission,” “the Inter-American
Commission,” or the “IACHR”) on June 15, 1999, the non-governmental
organizations Estudio para la Defensa de la Mujer (DEMUS), the
Latin American and Caribbean Committee for the Defense of Women’s Rights
(CLADEM), and the Asociación Pro Derechos Humanos (APRODEH), which
later accredited as co-petitioners the Centro Legal para Derechos
Reproductivos y Políticas Públicas (CRLP) and the Center for Justice
and International Law (CEJIL) (hereinafter “the petitioners”), alleged
that the Republic of Peru (hereinafter “Peru,” “the State,” or
“the Peruvian State”) violated the human rights of Mrs. María Mamérita
Mestanza Chávez, on forcefully subjecting her to surgical sterilization,
which ultimately caused her death. The
original petitioners alleged that the facts in this case constitute a
violation by the Peruvian State of the rights to life, humane treatment,
and equality before the law, set forth in Articles 4, 5, 1, and 24 of the
American Convention on Human Rights (hereinafter “the Convention” or
the “American Convention”), as well as violations of Articles 3, 4, 7,
8, and 9 of the Inter-American Convention on the Prevention, Punishment
and Eradication of Violence against Women (hereinafter “Convention of
Belém do Pará”), Articles 3 and 10 of the Additional Protocol to the
American Convention on Human Rights in the area of Economic, Social and
Cultural Rights (hereinafter “Protocol of San Salvador”), and Articles
12 and 14(2) of the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW).
The State argued that the case is inadmissible for failure to
exhaust domestic remedies. The
Commission decides to admit the case with respect to the alleged
violations of Articles 1, 4, 5, and 24 of the American Convention, and
Article 7 of the Convention of Belém do Pará.
PROCESSING BEFORE THE COMMISSION
The Commission received the complaint on June 15, 1999. On July 14,
1999, the IACHR opened the case, forwarded the pertinent parts of the
complaint to the Peruvian State, and requested that it provide information
within 90 days. Peru
requested an extension of this period, which was granted by the IACHR.
Peru answered on January 14, 2000.
The petitioners submitted observations to the State’s answer on
April 12, 2000.
POSITION OF THE PARTIES
Position of the petitioners
Petitioners allege that the case of Mrs. María Mamérita Mestanza
represents one more of a significant number of cases of women affected by
the implementation of a massive, compulsory, and systematic government
policy that emphasized sterilization as a method for quickly modifying the
reproductive behavior of the population, especially of poor, indigenous,
and rural women. In this
respect, they note that the Office of the Human Rights Ombudsman (Defensoría
del Pueblo) received several complaints in this regard, and that from November 1996 to November 1998,
CLADEM documented 243 cases of human rights violations in the surgical
contraception program carried out in Peru.
They note that Mrs. María Mamérita Mestanza, a peasant woman
approximately 33 years of age and mother of seven, was subject to
harassment, dating back to 1996, by the health center for the District of La
Encañada, which is part of the public health system, in an effort to
have her become sterilized. In this context, she and her permanent partner
Jacinto Salazar Suárez received various forms of harassment, which
included several visits in which health staff threatened to denounce her
and Mr. Salazar Suárez to the police, as they were told the government
had adopted a law under which anyone with more than five children had to
pay a fine and would be taken to prison.
They state that ultimately, and under coercion, Mrs. Mestanza’s
consent was obtained to undergo surgery for a tubal ligation. The surgical
procedure was performed on March 27, 1998, at the Regional Hospital at
Cajamarca, without any prior medical exam.
Mrs. Mestanza was discharged the next day, March 28, 1998, when she
still manifested serious anomalies, such as vomiting and intense
headaches. During the next
few days Mr. Jacinto Salazar informed the personnel at the La Encañada
health center as to Mrs. Mestanza’s condition, which was growing worse
with each passing day, and the personnel at the health center said that
these were the after-effects of the operation due to the anesthesia.
They adduce that Mrs. Mestanza Chávez finally died at home, on
April 5, 1998, and that the death certificate indicated a sepsis as a the
direct cause of death and bilateral tubal blockage as the antecedent
cause. They reported that
days later a physician from the health center offered Mr. Jacinto Salazar
a sum of money to consider the problem over and done with.
They indicate that on April 15, 1998, Mr. Jacinto Salazar denounced
Martín Ormeño Gutiérrez, Chief of the La Encañada health
center, to the Mixed Provisional Prosecutor for Baños del Inca in
relation to the death of Mrs. Mestanza, for crimes against her life, body,
and health, constituting the offense of manslaughter. They add that on May 15, 1998, that Provincial Prosecutor
formally presented criminal charges against Mr. Ormeño Gutiérrez and
other persons, to the Provincial Judge, who on June 4, 1998, declared that
there were no grounds for opening an investigation.
That decision was confirmed on July 1, 1998, by the Specialized
Chamber for Criminal Matters, pursuant to which the Provincial Prosecutor
ordered the case closed on December 16, 1998.
Position of the State
The State argues that the Ministry of Health investigated the
facts, and that its investigation resulted in “inadequate counseling”
for Mrs. Mestanza and a failure to monitor after the surgery, all as the
result of a voluntary surgical operation.
It notes that as a result of this report the physicians, nurses,
and anesthetists who participated in the surgery on Mrs. Mestanza, and the
directors of the health center and Coordinators of the Reproductive Health
Programs, were found to be administratively liable.
The State adds that the case was then studied by the Office of the
Inspector General for health, and also by the Mixed Court of Baños del
Inca, in the city of Cajamarca, and by the Specialized Chamber of the
Superior Court of Justice, which decided to halt the investigation that
was begun pursuant to the criminal complaint presented by Mr. Salazar Suárez
to the Criminal Provincial Prosecutor of Baños del Inca on April
15, 1998. With the foregoing, and pursuant to Peruvian legislation, the
State indicated that the decision to not open the investigation became res
The State further adduces that the action brought by Mr. Salazar
was aimed at defining the individual liability of agents in acts of
medical negligence and its purpose was not to make a determination
regarding what the petitioners described as “forced sterilization.”
Because of this, it requested that the case be declared inadmissible,
since domestic remedies were not exhausted with respect to the surgical
procedure which the victim allegedly did not freely choose, and with
respect to the harassment and discriminatory acts denounced by the
The Commission now analyzes the admissibility requirements for a
petition set forth in the American Convention.
A. Competence of the Commission ratione materiae, ratione personae
The petitioners are authorized by Article 44 of the American
Convention and Article 12 of the Convention of Belém do Pará to present
complaints to the IACHR. The
petition sets forth as the alleged victim an individual with respect to
whom Peru undertook to respect and ensure the rights enshrined in the
American Convention and in the Convention of Belém do Pará.
As regards the State, the Commission observes that Peru is a state
party to the American Convention, having ratified it on July 28, 1978, and
of the Convention of Belém do Pará, having ratified it on October 18,
1995. Accordingly, the
Commission is competent ratione
personae to examine the complaint.
In addition, the Commission is competent ratione
materiae since the facts alleged in the petition could be violations
of rights protected by the American Convention and by the Convention of
Belém do Pará, at Article 7.
The IACHR is also competent ratione
temporis, as the facts in question allegedly occurred in 1996, when
the obligation to respect and ensure the rights established in the
American Convention and in the Convention of Belém do Pará was already
in force for the Peruvian State.
Admissibility requirements of the petition
Exhaustion of domestic remedies
The petitioners and the State agree that on April 15, 1998, Mr.
Jacinto Salazar lodged a complaint with the Mixed Provisional Prosecutor
of Baños del Inca against Martín Ormeño Gutiérrez, Chief of the
health center at La Encañada in relation to the death of Mrs.
Mestanza, for crimes against the life, the body, and health, constituting
manslaughter. On May 15,
1998, that Provincial Prosecutor filed formal criminal charges against Mr.
Ormeño Gutiérrez and other persons before the local Provincial Judge,
who on June 4, 1998, declared that there were no grounds for opening the
investigation. That decision
was confirmed on July 1, 1998, by the Specialized Chamber for Criminal
Matters; consequently, the Provincial Prosecutor ordered the case archived
The petitioners argue that domestic remedies were exhausted with
the foregoing decision. The State adduces that the December 16, 1998 decision is
final and res judicata, but that
it did not constitute exhaustion of domestic remedies, since it was aimed
at determining liabilities for the possible negligent homicide of Mrs.
Mestanza, but not in relation to the alleged forced sterilization of Mrs.
Mestanza nor the alleged acts of harassment and discrimination against
The Commission observes that the domestic remedy exhausted by Mr.
Jacinto Salazar was adequate, at least in theory, to seek to obtain
justice in the specific case, through criminal sanction of the Chief of
the health center where the facts occurred that later caused the death of
Mrs. Mestanza. Furthermore,
the State has not shown what other domestic remedies should have been
exhausted. In this respect,
the Inter-American Court of Human Rights has established that a State that
alleges non-exhaustion must indicate the domestic remedies that must be
exhausted, and must show they are effective.
For the reasons set forth above, the Commission concludes that the
requirement concerning exhaustion of domestic remedies has been met.
Time period for presentation
The requirement set forth at Article 46(1)(b) of the Convention,
according to which the petition must be presented within six months of the
victim receiving notification of the final decision that has exhausted
domestic remedies, has been met in this case, since domestic remedies were
exhausted on December 16, 1998; and even though the date of notice of that
decision does not appear in the record, the petition was filed with the
IACHR on June 15, 1999, before six months had run since the date of the
Duplication of procedures and res judicata
The Commission understands that the subject matter of the petition
is not pending before any other international procedure for settlement,
nor does it deal with the same subject matter as a petition already
examined by this or any other international organization.
Accordingly, the requirements established at Articles 46(1)(c) and
47(d) are also satisfied.
Characterization of the facts
The Commission considers that the presentation by the petitioners
states facts which, if true, tend to establish a violation of rights
guaranteed in the American Convention and the Convention of Belém do Pará.
The Commission considers that it is competent to hear this case,
and that the petition is admissible, under Articles 46 and 47 of the
American Convention, in the terms set forth above.
Based on the foregoing arguments of fact and law, and without
prejudging on the merits,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare this case admissible, in relation to the violations
alleged of Articles 1, 4, 5, and 24 of the American Convention, and
Article 7 of the Convention of Belém do Pará.
To notify the petitioners and the State of this decision.
To proceed to analyze the merits issues.
To publish this decision and include it in its Annual Report for
the OAS General Assembly.
Done and signed by the Inter-American
Commission on Human Rights in Washington, D.C., on October 3, 2000.
(Signed): Hélio Bicudo, Chairman; Juan E. Méndez, Second Vice-
Chairman; Members: Marta Altolaguirre, Robert K.
Goldman, Peter Laurie, and Julio Prado Vallejo.
Defensoría del Pueblo, Informe sobre la Aplicación
de la Anticoncepción Quirúrgica Voluntaria:
los casos investigados por la Defensoría del Pueblo,
Lima, January 1998.
Inter-American Court of Human Rights, Case of Velásquez Rodríguez,
Preliminary Objections, Judgment of June 26, 1987. Series C No. 1,
para. 88; Case of Fairén Garbi and Solís Corrales, Preliminary
Objections, Judgment of June 26, 1987. Series C No. 2, para. 87; and
Case of Godínez Cruz, Preliminary Objections, Judgment of June 26,
1987. Series C No. 3, para. 90.