TARAZONA ARRIATE, NORMA TERESA PÉREZ CHÁVEZ, AND
ALBERTO BEJARANO LAURA
On January 22, 1996, a petition was filed with the Inter-American
Commission on Human Rights (hereinafter the “Commission,” the
“Inter-American Commission,” or the “IACHR”) by the Asociación
Pro Derechos Humanos (APRODEH) and by Mr. Víctor Tarazona Hinostroza
and Mr. Santiago Pérez Vela (hereinafter “the petitioners”)
denouncing the Republic of Peru (hereinafter “Peru,” "the
State,” or “the Peruvian State”) for the murders of Mrs. Zulema
Tarazona Arriate and Mrs. Norma Teresa Pérez Chávez and for the personal
injuries to Mr. Luis Alberto Bejarano Laura by members of the Peruvian
army from the events of August 9, 1994. The petitioners allege that
through those events the Peruvian State violated the right to life, the
right to humane treatment, the right to a fair trial, and the right to
judicial protection enshrined in Articles 4, 5, 8, and 25 of the American
Convention on Human Rights (hereinafter “the Convention” or “the
American Convention”), as well as its obligation to respect the rights
contained in Article 1(1) of the Convention.
The Peruvian State argued that the petitioners failed to exhaust
The IACHR, in accordance with the provisions of Articles 46 and 47
of the American Convention, decides to admit the petition for the alleged
violations of Articles 1(1), 4, 5, 8, 25, and 2 of the American Convention
and to begin to examine the merits of the case. The Commission also
decides to notify both parties of this decision and to publish and include
it in its annual report to the OAS General Assembly.
PROCESSING BY THE COMMISSION
4. On February 20, 1996, the Commission transmitted the pertinent parts of the complaint to the Peruvian State and requested a reply within 90 days, in keeping with the Rules of Procedure of the Commission in effect at that time. The State replied on July 1, 1996. On October 1, 1996 the petitioners presented observations to the State’s reply, and on July 18, 1997 they presented additional information. The State presented a written submission on May 21, 1998. On April 26, 1999, the IACHR made itself available to the parties to try to reach a friendly settlement. The State responded on June 25, 1999 and indicated that was refraining from responding to the friendly settlement offer until the Commission had ruled on the admissibility of the case. On September 4, 2000, the petitioners presented additional information. Both parties presented additional documents on different occasions.
POSITION OF THE PARTIES
The petitioners indicate that on August 9, 1994, Mrs. Zulema
Tarazona Arriate, Mrs. Norma Teresa Pérez Chávez, and Mr. Luis Alberto
Bejarano Laura were returning to their respective homes in Chosica aboard
a public transportation vehicle on line 165 (Lima-Chosica route).
They allege that at approximately 8:30 p.m., the vehicle stopped at
km 7.8 of the Central Highway at the “La Esperanza” stop (Ate-Vitarte
district) for one of the passengers to get off.
They say that when the vehicle continued on its way, two soldiers
from the Peruvian army approached it from behind and tried to stop the
vehicle. They indicate that the driver was not aware of the soldiers’
presence and continued on his way.
The petitioners say that one of the soldiers, who they identify as
Antonio Mauricio Evangelista Pinedo, Sergeant Second Class with the
Peruvian Army, then shot directly at the vehicle, killing Mrs. Zulema
Tarazona Arriate and Mrs. Norma Teresa Pérez Chávez and injuring Mr.
Luis Alberto Bejarano Laura. They
add that, rather than helping the victims, the soldiers fled.
The petitioners say that two judicial proceedings were launched in
relation to these events. The
first was in the judicial branch, before the 27th Criminal
Court of Lima, for the offenses of murder and inflicting injury, against
Sergeant Second Class Antonio Mauricio Evangelista Pinedo; the second was
against the same individual in the military courts before the Permanent
War Council of the Army’s Second Police Zone for negligent homicide.
They indicate that on June 20, 1995 the Supreme Council of Military
Justice, applying amnesty laws Nº 26479 and 26492, enacted by the
Peruvian Congress on June 14 and 28, 1995, respectively, granted the
defendant amnesty, decided to take no further action in the case, and
ordered the release of the defendant.
They add that on September 11, 1995, the 27th Criminal
Court of Lima definitively tabled the case it was hearing, in response to
a res judicata exception filed based on the aforementioned decision
handed down on June 20, 1995 by the Supreme Council of Military Justice.
Regarding the State’s allegation that the petitioners failed to
exhaust domestic remedies because they did not take judicial action to
seek compensation for the victims or their family members for the events
that occurred, the petitioners cite that their petition is centered on the
failure to investigate and punish the person responsible for violating the
victims’ rights to life and to humane treatment, among others.
They add that, without detriment to the foregoing, the victims’
relatives became parties to the criminal case to seek civil compensation,
in accordance with the provisions of Article 92 of the Peruvian Penal Code
and the provisions of Articles 54 seq. of the Code of Criminal Procedure,
but that their action was frustrated when the case was tabled as a result
of the amnesty laws. Finally,
they indicate that those laws prevent any type of investigation into the
alleged events with a view to obtaining civil reparations.
In its initial reply on July 1, 1996, the State neither expressly
accepted nor contradicted the petitioners’ allegations. The State’s
reply read as follows:
Permanent Mission of Peru presents its compliments to the honorable
Executive Secretariat of the Inter-American Commission on Human Rights
regarding case Nº 11.581. It is attaching to this note a copy of the main
decisions handed down by the judiciary against citizen Evangelista Pinedo
Antonio, prosecuted for the negligent homicide of Zulema Tarazona Arriarte
et al. (File
Nº 431-94-EDT). This
information was remitted by the National Human Rights Council through
communication Nº 405-96-JUS/CNDH of June 10 of this year.
In a letter dated May 21, 1998, Peru stated the following:
Peruvian State reiterates the points expressed in its reply to the
pertinent parts of the complaint, i.e. that the petitioners have not
exhausted domestic remedies, and specifically have not sought
compensation, which is a necessary step for persons who wish to obtain
civil reparations for damages, as provided for in Article 1969 of the
Civil Code of Peru.
It adds that the Peruvian Constitutional Court interpreted Law Nº
26479 (Amnesty Law) as follows: “regarding the right to civil
reparations, Article 58 of the Code of Military Justice stipulates that
amnesty and pardons do not affect legal actions to seek civil reparations.
As a result, persons who feel they were injured in events for which
amnesty has been granted can exercise their rights to due civil
reparations against the perpetrators of those offenses or against the
State, as is its duty stemming from its residual liability (…). If some
injured parties do not obtain these reparations, they can make their claim
before the competent authorities.”
Finally, its letter submitted to the Inter-American Commission on
May 21, 1998 states that:
the reasons given, which corroborate the arguments contained in its
previous reply, the Peruvian State requests that the Inter-American
Commission on Human Rights proceed with the examination of the case,
pursuant to Article 35(a) of the Commission’s Rules of Procedure, and
find inadmissible Case Nº 11.581-Zulema Tarazona Arriate et
al., referred to in the Peruvian reports pursuant to Article 47(a),
consistent with Article 46(1)(a) of the American Convention on Human
Rights and Articles 32(d), 37(1) and 41(a) in the aforementioned Rules of
The Commission will now examine the admissibility requirements for
petitions set forth in the American Convention.
Competence ratione personae,
ratione loci, ratione temporis, and ratione
materiae of the Commission
The petitioners are authorized to present complaints to the IACHR
under Article 44 of the American Convention.
The petition indicates that the alleged victims were individuals
and that Peru undertook to respect and guarantee the rights of those
individuals enshrined in the American Convention.
The Commission notes that Peru has been a State Party to the
American Convention since July 28, 1978, when it deposited the respective
instrument of ratification. The Commission therefore has competence ratione
personae to examine the petition.
The Commission has competence ratione
loci to hear the petition, because it alleges the violation of rights
protected under the American Convention that might have occurred in the
territory of a State Party to the Convention.
The IACHR has competence ratione
temporis because the obligation to observe and guarantee the rights
enshrined in the American Convention was already in effect in the State on
the date of the events alleged in the petition.
Finally, the Commission has competence ratione
materiae, because the petition denounces violations of human rights
protected under the American Convention.
Exhaustion of local remedies
The Commission observes that the petition deals with the murder of
two persons and the injuries caused to a third, attributed to an agent of
the Peruvian state. The
parties agree that two investigations were launched into the events
denounced, one in regular criminal courts, and the other in the military
courts. The same member of
the Peruvian army was charged in the two cases, both of which were
dismissed as a result of the amnesty laws.
The Peruvian State has not disputed the petitioners’ allegations
regarding the start and end of the civil and military proceedings for the
denounced events. Nonetheless, Peru alleges that the petition is
inadmissible because the petitioners failed to exhaust domestic remedies
to seek compensation for the victims or their relatives.
To decide on the exception opposed by the State, the Commission
must establish which domestic remedies must be exhausted in relation to
the events alleged in the petition under study.
In this regard, the Inter-American Court has indicated that only
adequate remedies for the violations allegedly committed must be exhausted
and clarified that:
domestic remedies are those which are suitable to address an infringement
of a legal right. A number of remedies exist in the legal system of every
country, but not all are applicable in every circumstance. If a remedy is
not adequate in a specific case, it obviously need not be exhausted.
The Inter-American Commission has indicated that whenever a
prosecutable offense is committed, the State has the obligation to promote
and advance the criminal proceedings through to the end
and that, in these cases, this is the ideal way to clarify events, judge
those responsible, and establish the corresponding criminal sanctions, as
well as allow for other modes of pecuniary reparations.
This interpretation is consistent with the Inter-American Court of
Human Rights’ explanation of Article 1(1) of the American Convention on
Human Rights, in which it states that “[t]he States 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, without any discrimination for
reasons of race, color, sex, language, religion, political or other
opinion, national or social origin, economic status, birth, or any other
social condition.” In this regard, the Inter-American Court explained
that the aforementioned obligation to guarantee the free and full exercise
of the human rights mentioned in the Article mentioned above implies
the duty of the States Parties to organize the governmental apparatus and,
in general, all the structures through which public power is exercised, so
that they are capable of juridically ensuring the free and full enjoyment
of human rights. As a consequence of this obligation, the States must
prevent, investigate and punish any violation of the rights recognized by
the Convention and, moreover, if possible attempt to restore the right
violated and provide compensation as warranted for damages resulting from
States’ international obligation to compensate victims of human
rights violations committed by their agents is therefore one of its
direct, main responsibilities, i.e. it is a direct responsibility of the
State and does not require that victims first take personal action against
those agents, regardless of the content of domestic provisions on the
In situations like the one in the petition under study, which
denounces the murder of two persons and injuries to a third, the domestic
remedies that must be taken into
account for the purposes of determining the petition’s admissibility are
those related to investigating and punishing the perpetrators.
The Commission considers that the events alleged by the petitioners
in the complaint under examination involve the alleged violation of basic
rights such as the right to life and humane treatment, which in domestic
law are prosecutable offenses. Therefore,
it is the homicide and injury trial in the civil jurisdiction of the 27th
Criminal Court of Lima against Antonio Mauricio Evangelista Pinedo,
Sergeant Second Class of the Peruvian Army, that must be considered to
determine whether or not domestic remedies were exhausted here.
Those judicial proceedings concluded with a ruling on September 11,
1995, through the 27th Criminal Court of Lima, deciding to
definitively table the trial. The IACHR therefore feels that domestic
remedies were exhausted.
As a result, the Commission rejects the State’s argument that
domestic remedies were not exhausted in seeking compensation for the
Deadline for presentation
The Commission observes that the decision that exhausted domestic
remedies, as explained above, was handed down on September 11, 1995, while
the complaint was lodged on February 20, 1996.
Therefore, the requirement established in Article 46(1)(b) of the
American Convention has been met.
Duplication of proceedings and res judicata
The Commission understands that the matter in the petition is not
pending in another international
proceeding for settlement and is not substantially the same as a
petition previously examined by this or another international
organization. Therefore, the
requirements established in Articles 46(1)(c) and 47(d) of the American
Convention have been met.
Characterization of the events
34. The Commission considers that the petition
refers to events that, if confirmed, could constitute a violation of the
rights to life, humane treatment, a fair trial, and judicial protection
enshrined in Articles 4, 5, 8, and 25 of the American Convention, as well
as the obligation to observe the rights contained in Article 1(1) of the
Convention. The Commission also observes that the criminal proceedings
under domestic law were tabled based on amnesty laws Nº 26479
and 25492. In exercise of its authority stemming from the principle of iura
novit curia, the Commission decides of its own initiative to study
whether or not the denounced events could be a violation by the Peruvian
State of the provisions of Article 2 of the American Convention.
35. The Commission concludes that it is competent
to hear this petition and that it is admissible, in keeping with Articles
46 and 47 of the American Convention.
Based on the foregoing de facto and de jure
arguments and without prejudging the merits of the case,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
1. To declare the petition
admissible as regards the alleged violations of Articles 1(1), 4, 5, 8,
25, and 2 of the American Convention on Human Rights.
To notify the parties of this decision.
3. To begin to examine the merits of
To publish this decision and include it in the annual report of the
Commission to the OAS General Assembly.
and signed at the headquarters of the Inter-American Commission on Human
Rights in Washington, D.C., on
October 10, 2001. Signed by Claudio Grossman, President; Juan Méndez,
First Vice-President; Marta Altolaguirre, Second Vice-President; and
Commissioners Hélio Bicudo, Robert K. Goldman, Peter Laurie, and Julio
Inter-American Court of Human Rights, Velásquez Rodríguez Case,
Judgment of July 29, 1988, paragraph 63.
See, for example, IACHR, 1997 Annual Report, Report Nº 52/97 - Arges
Sequeira Mangas, Case 11.218, (Nicaragua), paragraphs 96 and 97.
Inter-American Court of Human Rights, Velásquez Rodríguez Case,
Judgment of July 29, 1988, para. 166.
Notwithstanding, in the petition under study, the alleged victims were
plaintiffs in the aforementioned criminal suit before the 27th
Criminal Court of Lima, in accordance with the provisions of the Penal
Code and Code of Criminal Procedure of Peru; however, they were not
able to obtain any reparations because the case was tabled. In this
regard, Article 92 of the Penal Code of Peru stipulates that “civil
reparations are determined at the same time as the punishment,”
while Articles 54 and 57 of the Code of Criminal Procedure state that:
“the injured party, ancestors or descendants, spouse, collateral
kinsmen, and related family once removed… can become plaintiffs
[and]…offer the evidence they deem appropriate to clarify the
In cases where it has been argued to the Commission that a given
administrative-contentious remedy available under the domestic law of
another State Party to the American Convention must be exhausted as
part of the domestic remedies, the IACHR has repeatedly indicated
that: “As regards exhaustion of the contentious-administrative
jurisdiction, the Commission has already indicated that this type of
proceeding is exclusively a mechanism for supervising the
administrative activity of the State aimed at obtaining compensation
for damages caused by the abuse of authority. In general, this process
is not an adequate mechanism, on its own, to make reparation for human
rights violations; consequently, it is not necessary for it to be
exhausted when, as in this case, there is another means for securing
both reparation for the harm done and the prosecution and punishment
demanded.” IACHR, 2000 Annual Report, Report Nº 57/00 – La Granja,
Ituango, Case 12.050
(Colombia) para. 41. See also: IACHR, 1995 Annual Report,
Report Nº 15/95, para. 71; 1999 Annual Report, Report Nº 61/99, para.
51; and 1997 Annual Report, Report Nº 5/98, para. 63.