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...CONTINUATION
CASE
11.625, Report Nº 4/01, María Eugenia Morales de Sierra (Guatemala)
197. In
Report Nº 4/01 of January 19, 2001, the IACHR made the following
recommendations to the Guatemalan State:
1. Adapt the pertinent
provisions of the Civil Code to balance the legal recognition of the
reciprocal duties of women and men in marriage and take the legislative
and other measures necessary to amend Article 317 of the Civil Code so
as to bring national law into conformity with the norms of the American
Convention and give full effect to the rights and freedoms guaranteed to
María Eugenia Morales de Sierra therein.
2. Redress and adequately
compensate María Eugenia Morales de Sierra for the harm done by the
violations established in this Report.
198. On
November 4, 2005, the IACHR asked the State and the petitioners to
supply updated information concerning compliance with the
recommendations made in Report Nº 4/01. On December 2, 2005, the
petitioners reported on implementation of the reparations claims they
had filed on March 5, 2004 and which the State had purportedly agreed to
in the course of various working meetings. In their note the
petitioners explained that the legislature had not yet amended Article
317 of the Civil Code, even though proposals had been introduced by the
women’s movement and by the victim in the present case herself. As for
the measures intended to ensure women’s enjoyment of their human rights,
the petitioners asserted that the State had suggested that a foundation
be set up to further that process and had pledged to facilitate its
establishment; to provide the seed money or initial capital required by
law for organizations of this type; and to secure suitable premises so
that the foundation could begin its work. According to the petitioners,
these commitments have not been honored. The petitioners further
reported that the State had not yet complied with the other
reparations-related claims that they filed in March of 2004.
199. On
January 18, 2006, the State reported that steps were still being taken
to push for amendment of Article 317 of the Civil Code. In its note it
stated that on November 10, 2005, the Advisory Body of the General
Secretariat of the Office of the President of the Republic did a legal
analysis of the preliminary draft bill intended to amend said Article
317 and concluded that before the President could send the bill to
Congress, it would have to be cleared by the Presidential Secretariat
for Women’s Affairs and by the Ministry of Interior. The State gave
assurances that it would request legal opinions from the corresponding
offices and reiterated its intention to comply with the IACHR’s
recommendations. It also reported on the measures being taken to comply
with the recommendation that the State redress and adequately compensate
the victim for the harm done. In the note the State pointed out that
because no premises could be found that suited the victim’s requirements
for the foundation, in December 2005 a new proposal was introduced
whereby the State pledged to pay a sum of money to form the foundation,
set it up and launch its operations. It went on to add that this was
one of a number of reparations commitments undertaken by the State, and
that it would immediately inform the Commission as soon as an agreement
was concluded with the petitioners.
200.
On
march 8, 2006 the IACHR received a copy of an “Agreement of specific
compliance with the recommendations of the Inter-American Commission on
Human Rights regarding case 11.625 of María Eugenia Morales Aceña de
Sierra”, which was subscribed on December 16, 2005 between the
petitioner and the State of Guatemala. The object of the Agreement of
Compliance is to comply with the recommendations of the IACHR as stated
in the Report 86-98.
201. In
the Agreement of Compliance, the State agrees to advocate before the
Commission for the Minor and the Family, the Commission for the Woman
and the Commission for Human Rights of the National Congress, in order
to advance an initiative for a law which pretends to modify article 317
of the Civil Code. Regarding the economic reparation of the victim, Ms.
María Eugenia Morales Aceña expresses that her fight is in order to
dignify the woman and therefore she has no personal economic interest,
thus she renounces expressly to any economic reparation as recommended
by the IACHR. Also, in order to comply with the recommendation of
adopting other types of measures in order to give full effect to the
rights and liberties of the petitioner, the State of Guatemala agreed to
carry on a series of actions and the inform annually to the IACHR about
its compliance.
202. The
Commission values the actions carried out by the State of Guatemala in
order to comply with its recommendations as stated in the report 86/98.
Also, it values the efforts of the victim and its representatives in
order to achieve an agreement of compliance. The Commission will
continue to observe this important process of compliance with its
recommendations in order to follow up the pending agreements.
CASE 9207, Report Nº 58/01, Oscar Manuel Gramajo López (Guatemala)
203. The
Commission made the following recommendations to the Guatemalan State in
Report N° 58/01, dated April 4, 2001:
a. Conduct and impartial and effective investigation of the facts
reported to determine the circumstances and fate of Mr. Oscar Manuel Gramajo López, which would establish the identity of those responsible
for his disappearance and punish them in accordance with due process of
law.
b. Adopt measures for full reparation of the violations
determined, including: steps to locate the remains of Mr. Oscar Manuel Gramajo López; the necessary arrangements to accommodate the family’s
wishes in respect of his final resting place; and proper and timely
reparations for the victim’s family.
204. At
the Commission’s behest, on December 5, 2005 the State reported that it
had been unable to contact the petitioners for purposes of concluding a
reparations agreement that complied with the recommendations made in
Report N° 58/01. The Commission expects the State to continue to try to
locate the victim’s next of kin, so as to fully compensate them for
their loss.
CASE 10.626 Remigio Domingo Morales and Rafael Sánchez; CASE 10,627
Pedro
Tau Cac; CASE 11,198(A) José María Ixcaya Pixtay et al.; CASE
10,799 Catalino
Chochoy et al.; CASE 10,751 Juan Galicia Hernández et al.,
and CASE 10,901
Antulio Delgado, Report Nº 59/01, Remigio Domingo Morales et al.
(Guatemala)
205. In
Report Nº 59/01, dated April 7, 2001, the IACHR concluded that the
Guatemalan State was responsible for violating the following rights: (1)
the right to life recognized in Article 4 of the American convention, in
the cases of Remigio Domingo Morales, Rafael Sánchez, Pedro Tau Cac,
José María Ixcaya Pictay, José Vicente García, Mateo Sarat Ixcoy,
Celestino Julaj Vicente, Miguel Calel, Pedro Raguez, Pablo Ajiataz,
Manuel Ajiataz Chivalán, Catrino Chanchavac Larios, Miguel Tiu Imul,
Camilo Ajquí Gimon and Juan Tzunux Us; (2) the right to personal liberty
recognized in Article 7 of the American Convention, in the cases of
Remigio Domingo Morales, Rafael Sánchez, Pedro Tau Cac and Camilo Ajqui
Gimon; (3) the right to humane treatment recognized in Article 5 of the
American Convention and Articles 1, 6 and 8 of the Inter-American
Convention to Prevent and Punish Torture, in the cases of Remigio
Domingo Morales, Rafael Sánchez, Pedro Tau Cac and Camilo Ajqui Gimon,
victims of extrajudicial execution, and the right to respect for one’s
physical integrity, also recognized in Article 5 of the American
Convention, in the cases of Catalino Chochoy, José Corino, Abelino
Baycaj, Antulio Delgado, Juan Galicia Hernández, Andrés Abelino Galicia
Gutierrez and Orlando Adelso Galicia Gutiérrez, victims of attempted
extrajudicial execution; (4) the rights of the child recognized in
Article 19 of the American Convention, in the cases of minors Rafael
Sánchez and Andrés Abelicio Galicia Gutiérrez; (5) the right to judicial
guarantees and to judicial protection, recognized in Articles 8 and 25
of the American Convention, respectively, in the case of all the victims
of extrajudicial and attempted extrajudicial execution; (6) in all these
cases the State is also responsible for failing to honor its obligation
under Article 1.1 of the American Convention, which is the duty to
respect and ensure the rights and freedoms that the Convention
protects. Based on the analysis and conclusions set forth in the
report, the Commission made the following recommendations to the State:
1. That it conduct a thorough, impartial and effective
investigation to determine the circumstances of the extrajudicial
executions and attempted extrajudicial executions of each victim and the
attendant violations, and punish those responsible.
2. That it take the necessary
measures so that the next of kin of the victims of the extrajudicial
executions might receive adequate and prompt compensation for the
violations herein established.
3. That it take the necessary measures so that the victims of the
attempted extrajudicial executions might receive adequate and prompt
compensation for the violations herein established.
4. That it effectively prevent a
resurgence and reorganization of the Civil Patrols.
5. That in Guatemala the principles established in the United Nations
“Declaration on the right and responsibility of individuals, groups and
institutions to promote and protect universally recognized human rights
and fundamental freedoms” be promoted and that the necessary measures be
taken to ensure that the right of those who work to secure respect for
fundamental rights is respected and that their life and personal
integrity are protected.
206. In
a note dated March 2, 2001, the Guatemalan State reported on the
situation José María Ixcaya Pixtay, Remigio Domingo Morales, Rafael
Sánchez, Catarino Chochoy and Abelino Bayjac, four of the 22 victims
referenced in the report. The information that the State supplied on
that occasion was generic in nature and made no reference to the steps
taken to compensate the victims.
207. The
following summarizes the measures taken to comply with the
recommendations made in each of the cases joined in Report Nº 59/01.
CASE 10.626 Remigio Domingo Morales and Rafael Sánchez
CASE 10.627 Pedro Tiu Cac
209. On
February 18, 2005, the Human Rights Legal Action Center (Centro para la
Acción Legal en Derechos Humanos – CALDH), representing the victim’s
next of kin, signed an “Agreement on Compliance with the
Recommendations” with the Guatemalan State to formally document the
State’s obligations with regard to compliance with the recommendations
made by the IACHR in the report on the merits No. 59/01 and to establish
an implementation process.
210. In
the agreement, the Guatemalan State acknowledged, without prejudice to
the attendant individual criminal liabilities established, its own
institutional responsibility for violation of the right to life, the
right to personal liberty, the right to humane treatment, the right to
judicial guarantees and the right to judicial protection, and for
failing to abide by its obligation to respect and ensure the rights
protected under the American Convention, to the detriment of Pedro Tiu
Cac. The State also admitted that the period from 1990 to 1992 was
marked by systematic violations, by agents of the State, of the right to
life in the form of forced executions and of the right to have one’s
physical integrity respected.
211. As
for investigation, prosecution and punishment of the responsible
parties, the State pledged to press for the necessary measures with the
Public Prosecutor’s Office, to have a responsible investigation
conducted into the facts denounced. As for reparations, the State
acknowledged that its acceptance of international responsibility for the
violations of the victim’s human rights carried with it a duty to pay a
just compensation to the petitioners, in conformity with the standards
established in domestic and international law. The State also pledged
to publicly acknowledge its criminal responsibility for violations of
Pedro Tiu Cac’s human rights and, in a public ceremony, to ask
forgiveness of his next of kin. The State also pledged to take the
necessary steps to honor the victim’s memory.
212.
On December 9,
2005, CALDH, representing the victim’s next of kin, and the State
entered into a separate agreement on the economic compensation owed as
reparations. The Commission was informed that in late December 2005,
the State paid the victim’s next of kin the economic compensation agreed
upon.
213. The
Commission appreciates the measures taken by the State of Guatemala to
comply with the recommendations made in Report N° 59/01, Merits,
concerning the human rights violations committed against Pedro Tiu Cac.
The Commission is also grateful for the efforts made by the victim’s
next of kin and their representatives, who have for years been engaged
in a quest for justice both in the domestic courts and in the
inter-American system for the protection of human rights. Finally, the
Commission will continue to monitor this important process of complying
with its recommendations, to follow any points of the agreement that are
still pending.
CASE 11.198(A) José María Ixcaya Pixtay et al.
214.
On February 18,
2005, the Human Rights Legal Action Center (Centro para la Acción
Legal en Derechos Humanos – CALDH), representing the victims’ next
of kin, concluded an agreement with the Guatemalan State on terms for
the State’s compliance with the recommendations made by the IACHR. The
purpose of the agreement was to formally spell out the State’s
obligations vis-à-vis compliance with the recommendations made by the
Commission in Report No. 59/01, Merits, and to set up an implementation
process.
215. In
that agreement, the Guatemalan State acknowledged, without prejudice to
the attendant individual criminal liabilities established, its own
institutional responsibility for violation of the right to life, the
right to personal liberty, the right to humane treatment, the right to
judicial guarantees and the right to judicial protection, and for
failure to abide by its obligation to respect and ensure the rights
protected under the American Convention, to the detriment of
María Ixcaya Pictay, José Vicente García, Mateo Sarat Ixcoy, Celestino
Julaj Vicente, Miguel Calel, Pedro Raguez, Pablo Ajiataz, Manuel Ajiataz
Chivalan, Catrino Chanchavac Larios, Miguel Tau Imul, Camilo Ajquí Gimon
and Juan Tzunux Us. The State also admitted that the period from 1990
to 1992 was marked by systematic violations, by agents of the State, of
the right to life in the form of forced executions, and of the right to
have one’s physical integrity respected.
216. As
for investigation, prosecution and punishment of the responsible
parties, the State pledged to press for the necessary measures with the
Public Prosecutor’s Office, to have a responsible investigation
conducted into the facts denounced. As for reparations, the State
acknowledged that its acceptance of international responsibility for the
violations of the victims’ human rights carried with it a duty to pay a
just compensation to the petitioners, in conformity with the standards
established in domestic and international law. The State also pledged
to publicly acknowledge its criminal responsibility for violations of
the victims’ human rights, to ask forgiveness of their next of kin in a
public ceremony, and to take the appropriate steps to honor the victims’
memory.
217. On
October 5, 2005, the State informed the Commission that at the request
of the petitioners, the ceremony to make formal apologies to the next of
kin of José María
Ixcaya Pictay was a private one, held on July 14, 2005. The President
of COPREDEH was present representing the State and delivered to the
victim’s next of kin a letter signed by the Vice President of the
Republic containing a message of support and sympathy for the family.
In its note, the State reported that in response to a request from the
victim’s next of kin, the commemorative plaque to honor the victim’s
memory was unveiled on July 14, 2005, in Sololá. The State also
reported that the visit to the next of kin of the other victims was
still pending.
218. On
December 9, 2005, CALDH, representing the victims’ next of kin, signed a
separate agreement with the State on the economic compensation to be
paid as reparations. The Commission was informed that in late December
2005, the State paid the victims’ next of kin the compensation agreed
upon. However, the sums for the heirs of the deceased beneficiaries
will not be paid until those heirs submit the legal papers documenting
that they are in fact the deceased victims’ heirs.
219. The
Commission appreciates the steps that the Guatemalan State has taken to
comply with the recommendations made in Report 59/01, Merits, concerning
the human rights violations committed against the victims in case
11,198(A). The Commission is also grateful for the efforts made by the
victims’ next of kin and their representatives, who for years have
pursued justice in the domestic legal system and in the inter-American
system for the protection of human rights. Finally, the Commission will
continue to monitor this important process of complying with its
recommendations, to follow up on those points of the agreement that are
still pending.
CASE 10.799, Catalino Chochoy et al., Case 10.751, Juan Galicia
Hernández et al.
and CASE
10.901, Antulio Delgado
220. The
Commission has no information concerning any measures taken to comply
with the recommendations made in these cases.
CASE
9111, Report Nº 60/01, Ileana del Rosario Solares Castillo et al.
(Guatemala)
221. In
Report Nº 60/01, dated April 4, 2001, the IACHR made the following
recommendations to the State of Guatemala:
a. Conduct an impartial and effective investigation into the facts
of this complaint to determine the whereabouts and condition of Ileana
del Rosario Solares Castillo, María Ana López Rodríguez, and Luz Leticia
Hernández, to identify the persons responsible for their disappearance,
and to punish them in accordance with the rules of due legal process.
b. Take steps to make full amends for the proven violations,
including measures to locate the remains of Ileana del Rosario Solares
Castillo, María Ana López Rodríguez, and Luz Leticia Hernández, the
arrangements necessary to fulfill their families’ wishes regarding the
final resting place of their remains, and adequate and timely
compensation for the victims’ relatives.
222. Responding
to the Commission’s request, on December 5, 2005 the State reported that
it had been unable to contact the petitioners to conclude a reparations
agreement that fulfilled the recommendations made in Report N° 60/01.
The Commission expects the State to continue to try to locate the
victims’ next of kin, so as to fully compensate them for their loss.
CASE 11.382, Report Nº 57/02, The Workers on the Finca “La Exacta”
(Guatemala)
223. In
Report Nº 57/02, dated October 21, 2002, the IACHR made the following
recommendations to the Guatemalan State:
1. That
it begin a prompt, impartial and effective investigation of the events
that took place on August 24, 1994 to be able to detail, in an official
report, the circumstances of and responsibility for the use of excessive
force on that date.
2. That
it take the necessary steps to subject the persons responsible for the
acts of August 24, 1994 to the appropriate judicial proceedings, which
should be based on a full and effective investigation of the case.
3. That
it make reparations for the consequences of the violations of the rights
listed, including the payment of fair compensation to the victims or
their families.
4. That it take
the necessary measures to ensure that violations of the type that took
place in this case do not recur in future.
224. In
response to a request from the Commission, on December 7, 2005 the State
reported that the petitioners continued to negotiate for purchase of
land on which to live. The State went on to say that once that process
was concluded, a decision would be made on how to implement the other
points agreed upon. The State also reported that it would send official
messages to the Ministry of Labor and Social Security and to the Public
Prosecutor’s Office to request information concerning the measures that
each was taking in connection with this case.
225. In
the 2004 annual report, the Commission stated that it appreciated the
information supplied by the Guatemalan State in connection with the
partial payment of the economic reparations agreed upon with the
petitioners and encouraged it to continue to comply with the other
points of that agreement. On the matter of justice, the Commission
stated that it would be monitoring the procedural results of the
measures taken by the Public Prosecutor’s Office in this case. The
Commission reiterates that it continues to await information reporting
full compliance with the recommendations made in Report Nº 57/02.
CASE 11.312, Report Nº 66/03, Emilio Tec Pop (Guatemala)
226. The
background on this case is as follows: early on the morning of January
31, 1994, as 16-year old Emilio Tec Pop was making his way from the
municipality of El Estor in the department of Isabal, to Cobán, capital
of the department of Alta Verapaz, he was detained by persons unknown.
On March 3 of that year, 32 days later, the authorities from the
military post at El Estor handed over the young man to his family. The
Human Rights Legal Action Center - CALDH (hereinafter “the petitioners”)
asserted that the minor had been held against his will and physically
and mentally mistreated during those 32 days. They alleged that the
soldiers had threatened Emilio with death, had beaten him and had jabbed
him in the hands with a knife.
227. On
June 16, 2003, the State signed a Friendly Settlement Agreement where it
acknowledged its institutional responsibility for the events that
transpired. It also pledged to pay compensation and to take steps to
put the investigation of the facts on a new course and thus be able to
prosecute and punish the individuals responsible.
228. Report
N° 66/03, Friendly Settlement, dated October 10, 2006, states that
according to the petitioners, some terms of the agreement had yet to be
implemented, namely: the State had not yet delivered to Mr. Emilio Tec
Pop an appropriate quantity of grain staple seed, as stipulated in the
proposal, and had not yet investigated the facts and punished those
responsible for the violations of the victim’s Convention-recognized
rights.
229. In
order to monitor compliance with the remaining points, on November 4,
2005 the Commission asked the petitioners and the State to report on the
matter. On December 4, 2005, the petitioners reported that the
commitments made were still pending and added that they did not know Mr.
Tec Pop’s new address. For its part, on January 17, 2006 the State
reported that while the Ministry of Agriculture, Livestock and Food had
been instructed to see that the commitment to deliver an appropriate
quantity of grain staple seed to Mr. Tec Pop was implemented,
information supplied by the petitioner’s legal representatives had
revealed that no one was certain where the petitioner was now living.
In its note the State also addressed the commitment to investigate the
facts and punish those responsible, and reported that official letters
had been sent to the Supreme Court and to the Public Prosecutor’s Office
requesting that they report on the measures taken and the status of
proceedings into the unlawful detention of Mr. Emilio Tec Pop on January
31, 1994. The Public Prosecutor’s Office and the Supreme Court reported
that case 52-94 with the Office of the Justice of the Peace of El Estor
had been moved to the Izabal Criminal Court of First Instance, docketed
as case 325-94, and was being handled by the Izabal Prosecutor’s Office;
someone had been accused, and the preliminary investigation was
underway.
230. The
Inter-American Commission has followed the development of this friendly
settlement process closely and greatly appreciates the efforts that the
parties have made to reach it. The Commission will continue to follow
up and monitor those points of the friendly settlement agreement that
are still pending.
CASE 11.766, Report Nº 67/03, Irma Flaquer (Guatemala)
231. The
background to this case is as follows: journalist Irma Flaquer Azurdia
was kidnapped on October 16, 1980, as she was driving in Guatemala City,
accompanied by her son Fernando Valle Flaquer. Fernando Valle Flaquer
was injured in the incident, and later died at the San Juan de Dios
General Hospital. Since then, the whereabouts of Irma Flaquer have been
unknown.
232. In
Report Nº 67/03, Friendly Settlement, dated October 10, 2003, the
Commission stated that it had been informed that the petitioners –the
Inter-American Press Association or IAPA- were satisfied that the great
majority of the points of the agreement had been implemented. However,
three points were still pending: (1) establishment of a scholarship for
the study of journalism; (2) creation of a university chair on the
history of journalism; and (3) the writing of a letter to family members
asking for forgiveness.
233. To
monitor fulfillment of the points still pending, on November 4, 2005 the
Commission asked the petitioners and the State to report on the matter.
In a note to the Commission, dated November 14, 2005, the petitioners
reiterated their satisfaction with the agreement reached with the
Guatemalan Government in the case of journalist Irma Flaquer. In their
note the petitioners stated that the friendly settlement agreement
consisted of twelve points, only one of which was not fully complied
with, namely the letter to the next of kin asking forgiveness.
234. For
its part, the State reported on implementation of each point in the
agreement on December 7, 2005. Concerning the letters asking
forgiveness of the victim’s next of kin, the State noted that in every
one of the friendly settlement agreements signed with the petitioners
the State had acknowledge its institutional responsibility for the
events that transpired.
235. The
Commission once again underscores how very much it appreciates the
efforts made by the parties to arrive at this friendly settlement and
the willingness that the State has shown to comply with the commitments
it made to the petitioners. The Commission trusts that the State will
shortly be sending letters to the next of kin of journalist Irma Flaquer
Azurdia asking their forgiveness, as it pledged it would in the friendly
settlement agreement.
CASE 11.197, Report
Nº 68/03, Community of San Vicente de Los Cimientos
(Guatemala)
236. On
August 24, 1993, the Human Rights Legal Action Center (CLADH) and the
Runujel Junam Council of Ethnic Communities (CERJ) (hereinafter “the
petitioners”), representing 233 indigenous families, lodged a petition
with the Commission. There they alleged that during the armed conflict,
the area known as Los Cimientos -located in El Chajul, Quiché
department, and home to 672 indigenous families who were the owners of
that tract- was invaded by the Guatemalan Army, which established a
barracks there. Threatened with shelling and in the wake of the murder
of two of its members, the people of Los Cimientos were forced to flee
their land in February 1982, abandoning their livestock and their corn,
bean, and coffee crops. One month after the exodus, a number of
families returned to the place, only to find that their homes had been
burned down and their belongings stolen. The Los Cimientos community
was forced off its land again in 1994. On June 25, 2001, the
community’s lands –of which it was the legal owner- were violently taken
from them by neighbors and others, apparently with the Government’s
support.
237. The
parties signed a friendly settlement agreement in Guatemala City on
September 11, 2002. The Commission approved the terms of that agreement
on October 10, 2003.
238. To
monitor compliance with the points of the agreement that are still
pending, on November 4, 2005 the Commission asked the petitioners and
the State to report on the matter. On November 30, 2005, the
petitioners informed the Commission that parts of points 4 and 8 were
still pending, while point 11 of the agreement was completely pending.
As for point 4, the petitioners asserted that the physical and mental
health care, food, drinking water, electricity and drainage promised to
the Community were pending issues; as for point 8, the petitioners
stated that the mobile health unit would have to continue to provide
health care services until such time as a formal health facility was
established. Lastly, the petitioners reported that the promotion
committee that was to take charge of monitoring the progress of the
legal proceedings instituted against the individuals involved in the
June 25, 2001 violence against the owners of the Los Cimientos and
Xetzununchaj fincas had not been formed.
239. In
a note dated November 17, 2005, the State reported that while most
points in the agreement had been implemented, the commitment undertaken
on September 11, 2002, by the individual landowners, land holders and
assignees of the fincas comprising the Los Cimientos community,
who had pledged to cede their rights of ownership, tenancy and
inheritance to the Land Fund, in keeping with Article 8(h) of the Land
Fund Act, Decree No. 24-99, was still pending. As for the petitioners’
claim regarding health care, the State asserted that a number of medical
day clinics had been staged to provide health care to the people. The
State reported that formation of the promotion committee was still
pending.
240. Again,
the Commission greatly appreciates the efforts the parties have made to
reach this friendly settlement and the readiness to comply demonstrated
by the State in this agreement. The Commission will continue to follow
up and monitor those points of the friendly settlement agreement whose
implementation is still pending.
PETITION 9168, Report Nº 29/04, Jorge Alberto Rosal Paz (Guatemala)
241. On
August 18, 1983, the IACHR received a petition lodged by Ms. Blanca
Vargas de Rosal (hereinafter the “petitioner”) –which was subsequently
supported by the Human Rights Legal Action Center- against the
Guatemalan State for the disappearance of Mr. Jorge Alberto Rosal Paz on
August 12, 1983. According to the petition, Mr. Rosal had been detained
while driving between Teculutan and Guatemala City. To date his
whereabouts remain unknown.
242. The
parties signed a friendly settlement agreement in Guatemala City on
January 9, 2004, the terms of which were approved by the Commission on
March 11, 2004. In that agreement, the State acknowledged its
institutional responsibility arising from its failure to discharge the
obligation imposed by Article 1.1 of the American Convention on Human
Rights, i.e., to respect and ensure the rights recognized in the
Convention; it also acknowledged its institutional responsibility for
violation of Articles 4, 5, 7, 8, 11, 17, 19 and 25 of the
Convention. It also stated that the achievement of the settlement was
informed primarily by the search for truth and the administration of
justice; the dignity of the victim; compensation for the violation of
the victim’s human rights, and strengthening of the regional human
rights system.
243. In
order to follow implementation of the pending points, on November 4,
2005 the Commission asked the petitioners and the State to furnish
information on the matter. In a note to the Commission dated November
4, 2005, Mrs. Blanca Vargas de Rosal informed the Commission that of the
commitments undertaken by the State in the friendly settlement
agreement, the only one it had honored was that of economic
compensation. The commitments related to education, measures honoring
the victim’s memory, property, and investigation and punishment of those
responsible were still pending.
244. On
January 10, 2006, the State reported that some steps had been taken in
connection with the educational commitment. However, in order to fully
comply with this commitment, the State first needed to know what the
university of choice of the scholarship recipients would be. As for the
commitment to pay tribute to the victim, rename the Northeast School of
Agriculture (EANOR) the “Ing. Ag. Jorge Alberto Rosal Paz y Paz” School,
and unveil a commemorative plaque, the State reported that the necessary
measures had been taken. However, the school to be renamed was a
private one and the school’s officials had still not given the State
their consent to rename the school. The State asserted that it had,
nonetheless, demonstrated its willingness to honor its commitment. The
State went on to inform the Commission that the property commitment was
still pending. As for investigation and punishment of the individuals
responsible, the State reported that the case has been transferred to
the Office of the Human Rights Prosecutor.
245. The
Inter-American Commission has closely monitored progress with
implementation of this friendly settlement and greatly appreciates the
efforts the parties made to reach it. The Commission will continue to
monitor and oversee the points of the friendly settlement agreement that
are still pending.
CASE 11.335, Report Nº 78/02 Guy Malary (Haiti)
246. In
Report Nº 78/02 of December 27, 2002, the IACHR made the following
recommendations to the Haitian State:
a) Carry out a full, prompt, impartial, and effective investigation
within the Haitian ordinary criminal jurisdiction in order to establish
the responsibility of the authors of the violation of the right to life
of Mr. Guy Malary and punish all those responsible.
b) Provide full reparation to the next-of-kin of the victim,
inter alia, the payment of just compensation.
c) Adopt the measures necessary to carry out programs targeting
the competent judicial authorities responsible for judicial
investigations and auxiliary proceedings, in order for them to conduct
criminal proceedings in the accordance with international instruments on
human rights.
247. The
parties have not provided the Commission with up-dated information
concerning compliance with the Commission’s recommendations in Report
78/02. Based upon the information available, the Commission considers
that compliance with the Commission’s recommendations is pending.
CASES 11.826, 11.843, 11.846 and 11.847, Report Nº 49/01, Leroy Lamey,
Kevin
Mykoo, Milton Montique and Dalton Daley (Jamaica)
248. In
Report Nº 49/01 dated April 4, 2001 the Commission recommended that the
State:
1. Grant the
victims an effective remedy which included commutation of their death
sentences and compensation;
2. Adopt such
legislative or other measures as may be necessary to ensure that the
death penalty is not imposed in violation of the rights and freedoms
guaranteed under the Convention, including Articles 4, 5 and 8, in
particular that no person is sentenced to death pursuant to a mandatory
sentencing law;
3. Adopt such legislative or other
measures as may be necessary to ensure that the right under Article 4.6
of the Convention to apply for amnesty, pardon or commutation of
sentence is given effect in Jamaica;
4. Adopt such legislative or other
measures as may be necessary to ensure that the victims' rights to
humane treatment under Articles 5.1 and 5.2 of the Convention,
particularly in relation to their conditions of detention, are given
effect in Jamaica;
5. Adopt such legislative or other
measures as may be necessary to ensure that the right to a fair hearing
under Article 8.1 of the Convention and the right to judicial protection
under Article 25 of the Convention are given effect in Jamaica in
relation to recourse to Constitutional Motions.
249. In
a letter dated November 22, 2005, the representatives of Dalton Daley,
Milton Montique and Leroy Lamey informed the Commission that the death
sentences of Messrs. Daley, Montique and Lamey were commuted by Jamaica
to terms of life imprisonment because they were held on death row for
more than five years and that according to the Parole Act of Jamaica,
they will be eligible to apply for parole after serving a period in
excess of seven years but less than ten years from the date of
commutation of their sentences. The representatives also indicated that
as a result of the decision of the Judicial Committee of the Privy
Council in the case of Lambert Watson v. Jamaica [2005] 1 A.C.
472, the mandatory death penalty has been declared unconstitutional in
Jamaica and that the law of Jamaica was revised in light of the
Lambert Watson ruling by way of the Offences Against the Person
(Amendment) Act 2005. Based upon the information available, the
Commission considers that there has been partial compliance with the
Commission’s recommendations.
CASE 12.069,
Report Nº 50/01, Damion Thomas (Jamaica)
250. In
Report Nº 50/01 dated April 4, 2001 the Commission recommended that the
State:
1. Grant the victim an
effective remedy, which included compensation;
2. Conduct thorough and
impartial investigations into the facts of the pertinent incidents
denounced by the Petitioners in order to determine and attribute
responsibility to those accountable for the violations concerned and
undertake appropriate remedial measures;
3. Review its practices
and procedures to ensure that officials involved in the incarceration
and supervision of persons imprisoned in Jamaica are provided with
appropriate training concerning the standards of humane treatment of
such persons, including restrictions on the use of force against such
persons; and
4. Review its practices
and procedures to ensure that complaints made by prisoners concerning
alleged mistreatment by prison officials and other conditions of their
detention are properly investigated and resolved.
251. In
a letter dated December 12, 2005, Mr. Thomas’ representatives indicated
that, based upon information available to them and to the best of their
knowledge, the State of Jamaica had not taken any steps to comply with
the four recommendations contained in the Commission’s Report Nº 50/01.
Based upon the information available, the Commission considers that
compliance with the Commission’s recommendations is pending.
CASE 12.183,
Report Nº 127/01, Joseph Thomas (Jamaica)
252. In
Report Nº 127/01 dated December 3, 2001, the Commission recommended that
the State:
1. Grant the victim an
effective remedy, which included a re-trial in accordance with the due
process protections prescribed under Article 8 of the Convention or,
where a re-trial in compliance with these protections is not possible,
his release, and compensation;
2. Adopt such
legislative or other measures as may be necessary to ensure that the
death penalty is not imposed in contravention of the rights and freedoms
guaranteed under the Convention, including and in particular Articles 4,
5 and 8;
3. Adopt such
legislative or other measures as may be necessary to ensure that the
right under Article 4.6 of the Convention to apply for amnesty, pardon
or commutation of sentence is given effect in Jamaica; and
4. Adopt such
legislative or other measures as may be necessary to ensure that the
conditions of detention in which the victim is held comply with the
standards of humane treatment mandated by Article 5 of the Convention.
253. The
parties have not provided the Commission with up-dated information
concerning compliance with the Commission’s recommendations in Report Nº
127/01. Based upon the information available, the Commission considers
that compliance with the Commission’s recommendations is pending.
CASE 12.275, Report Nº 58/02, Denton Aitken, (Jamaica)
254. In
Report Nº 58/02 dated October 21, 2002, the Commission recommended that
the State:
1. Grant Mr. Aitken an effective remedy which includes
commutation of sentence and compensation.
2. Adopt such
legislative or other measures as may be necessary to ensure that the
death penalty is not imposed in contravention of the rights and freedoms
guaranteed under the Convention, including and in particular Articles 4,
5 and 8.
3. Adopt such
legislative or other measures as may be necessary to ensure that the
right under Article 4.6 of the Convention to apply for amnesty, pardon
or commutation of sentence is given effect in Jamaica.
4. Adopt such legislative or other measures as may be necessary
to ensure that the conditions of detention in which Mr. Aitken is held
comply with the standards of humane treatment mandated by Article 5 of
the Convention.
5. Adopt such
legislative or other measures as may be necessary to ensure that the
right to a fair hearing under Article 8.1 of the Convention and the
right to judicial protection under Article 25 of the Convention are
given effect in Jamaica in relation to recourse to Constitutional
Motions in accordance with the Commission’s analysis in this report.
255. In
a letter dated November 22, 2005, Mr. Aitken’s representatives informed
the Commission that his death sentence was commuted by Jamaica to a term
of life imprisonment because he was held on death row for more than five
years and that according to the Parole Act of Jamaica, he will be
eligible to apply for parole after serving a period in excess of seven
years but less than ten years from the date of commutation of his
sentence. The representatives also indicated that as a result of the
decision of the Judicial Committee of the Privy Council in the case of
Lambert Watson v. Jamaica [2005] 1 A.C. 472, the mandatory death
penalty has been declared unconstitutional in Jamaica and that the law
of Jamaica was revised in light of the Lambert Watson ruling by
way of the Offences Against the Person (Amendment) Act 2005. Based upon
the information available, the Commission considers that there has been
partial compliance with the Commission’s recommendations.
CASE 12.347, Report Nº 76/02, Dave Sewell, (Jamaica)
256. In
Report Nº 76/02 dated December 27, 2003, the Commission made the
following recommendations to the State:
1. Grant Mr. Sewell an
effective remedy which includes commutation of sentence in relation to
the mandatory death sentence imposed upon Mr. Sewell, and compensation
in respect of the remaining violations of Mr. Sewell’s rights under the
American Convention as concluded above.
2. Adopt such
legislative or other measures as may be necessary to ensure that the
death penalty is not imposed in contravention of the rights and freedoms
guaranteed under the Convention, including and in particular Articles 4,
5 and 8.
3. Adopt such
legislative or other measures as may be necessary to ensure that the
conditions of detention in which Mr. Sewell is held comply with the
standards of humane treatment mandated by Article 5 of the Convention.
4. Adopt such legislative or other measures as may be necessary to
ensure that the right to a fair hearing under Article 8.1 of the
Convention and the right to judicial protection under Article 25 of the
Convention are given effect in Jamaica in relation to recourse to
Constitutional Motions in accordance with the Commission’s analysis in
this report.
257. In
a letter dated November 22, 2005, Mr. Sewell’s representatives informed
the Commission that his death sentence was commuted by Jamaica to a term
of life imprisonment because he was held on death row for more than five
years and that according to the Parole Act of Jamaica, he will be
eligible to apply for parole after serving a period in excess of seven
years but less than ten years from the date of commutation of his
sentence. The representatives also indicated that as a result of the
decision of the Judicial Committee of the Privy Council in the case of
Lambert Watson v. Jamaica [2005] 1 A.C. 472, the mandatory death
penalty has been declared unconstitutional in Jamaica and that the law
of Jamaica was revised in light of the Lambert Watson ruling by
way of the Offences Against the Person (Amendment) Act 2005.
Based upon the information available, the Commission considers that
there has been partial compliance with the Commission’s recommendations.
Based upon the information available, the Commission considers that
there has been partial compliance with the Commission’s first, second
and third recommendations.
CASE 12.147, Report Nº 41/04, Whitley Myrie (Jamaica)
258. In
Report Nº 41/04 of October 12, 2004, the IACHR made the following
recommendations to the State of Jamaica:
1. Grant Mr. Myrie an effective remedy, which includes a re-trial
in accordance with the due process protections prescribed under Article
8 of the Convention or, where a re-trial in compliance with these
protections is not possible, his release, and compensation.
2. Adopt such legislative or other measures as may be necessary to
ensure that Mr. Myrie’s conditions of detention comply with
international standards of humane treatment under Article 5 of the
American Convention and other pertinent instruments, as articulated in
the present report.
3. Adopt such legislative or other measures as may be necessary to
ensure that the right to judicial protection under Article 25 of the
Convention and the right to a fair hearing under Article 8.1 of the
Convention are given effect in Jamaica in relation to recourse to
Constitutional Motions.
259. The
parties have not provided the Commission with up-dated information
concerning compliance with the Commission’s recommendations in Report
41/04.
CASE 11.565, Report N° 53/01, González Pérez Sisters (Mexico)
260. On
April 4, 2001, the Inter-American Commission approved Report N° 53/01 on
the referenced case, in which it made the following recommendations:
1. Conduct a full, impartial and effective investigation in the
ordinary criminal jurisdiction of Mexico to determine the responsibility
of all those involved in violating the human rights of
Ana, Beatriz and Celia González Pérez
and Delia Pérez de González.
2. Provide adequate compensation to Ana, Beatriz and Celia González Pérez and to Delia Pérez de González for the human rights
violations established herein.
261.
On October 19,
2005, the IACHR held a working meeting in the presence of both parties
to follow up Report N° 53/01. At that meeting, the Commission confirmed
in the presence of the parties that the recommendations on the complete,
impartial and effective investigation to be conducted in the ordinary
criminal jurisdiction of Mexico to determine the responsibility of all
those involved in human rights violations to the detriment of Ana,
Beatriz and Celia González Pérez and Delia Pérez de González, as well as
the respective compensation, are still pending.
262. On
November 3, 2005, the Inter-American Commission addressed the parties
and asked them for updated information on measures taken to implement
the indicated recommendations.
263. In
its response submitted on December 7, 2005, the petitioners refer to the
working meeting held last October 19 and reiterate their position
regarding “the lack of full implementation by the Mexican State of the
recommendations cited, as well as procedural inaction in the case.” They
also emphasize that the position of the Mexican State at the meeting was
that the investigations “would not grant the compensation due until the
investigations were completed as only the State could conduct the unjust
enrichment action against those responsible for the human rights
violations suffered by the victims.” In addition, during the working
meeting the petitioners indicated their concern for the condition of the
González Pérez sisters and their mother. Upon being questioned by the
Commission on this subject, the State agreed to take steps to provide
humanitarian assistance to the women. The communication from the
petitioners dated December 7 indicates that steps have not been taken to
“grant periodic subsidies as well as the benefit of professional medical
care provided by civilian doctors.”
264. For
its part, the Mexican State answered the request from the IACHR with a
communication dated December 14, 2004, in which it refers to the
meetings held on July 26, 2002, measures taken on December 13, 2002, the
meeting of May 7, 2003, the communication dated August 12, 2003, the
meeting of August 4, 2004, as well as the procedure to expand the
statement made on August 26, 2004. The State does not mention measures
that it took during 2005, but lists various “pending proceedings.”
It indicates that it “will invite the petitioners to a working meeting
for the purpose of determining the time and place for carrying out the
indicated steps, and upon their conclusion, the ministerial authority
will proceed to issue the determination appropriate under the law.”
Finally, regarding the request for humanitarian assistance, the State
indicates that “analysis is being done of the possibility of including
the women in one of the social programs in the area of medical care and
nutrition.”
265. Based
on the information received from both parties, the Inter-American
Commission concludes that implementation of the recommendations in the
case is still pending. The IACHR appreciates the significant efforts
that both parties have made and continue to make to move toward that
objective, but feels it must repeat that this should be done using as
the point of departure the factual and legal conclusions contained in
Report N° 53/01 on the violations suffered by the González Pérez
sisters.
CASE 11.807, Report N° 69/03,
José Alberto Guadarrama García (Mexico)
266.
On October 10, 2003, the Inter-American Commission approved Report N°
69/03 on the referenced case, in which it decided:
1. To approve the friendly settlement agreement signed by the
parties on October 30, 1998, as well as the final friendly settlement
agreement signed on February 27, 2003.
2.
To monitor the points in the agreement that have not been fully
satisfied.
267. The
Inter-American Commission sent a request for information to the parties
on November 3, 2005, specifically with respect to satisfying the point
in the agreement stated in paragraph 3(a), which stated the objective of
capturing José Luis Velásquez Beltrán, one of the perpetrators
responsible for the kidnapping and subsequent extrajudicial execution of
José Alberto Guadarrama García.
268. The
Mexican State responded on December 1, 2005 that “the investigations
conducted by the General Prosecutor’s Office of Morelos (PGJ-MOR) to
apprehend José Luis Velásquez Beltrán, which, of course, remain open,
continue with all actions intended to achieve his capture.” The State
continues with a summary of actions taken since 1997 to find that
person, and reiterates the information provided to the IACHR up to
December 2004. As for more recent activities, the State maintains that
“on March 31, 2005, the Director of Arrests of the PGJ-MOR reported that
since the order to arrest José Luis Velásquez Beltrán was received
(November 10, 1997) personnel under his command have continued to carry
out necessary and relevant actions to achieve his capture.” The State
also mentions that in the last two years, steps have been taken in
collaboration with various state prosecutors’ offices, the Technical
Secretariat of the National Conference for Justice, and the General
Directorate for Extraditions and Legal Assistance in order to support
the search for and capture of Mr. Velásquez Beltrán. These steps are
being taken both within Mexican territory and in the United States.
269. For
their part, on December 5, 2005, the petitioners submitted a
communication in which they also reiterate the content of their previous
communication on follow-up of the referenced recommendations, which had
been reflected in the 2004 Annual Report of the Inter-American
Commission. In addition, they summarize actions taken in the internal
investigation since October 1998 and indicate that “the failure to carry
out the arrest order against José Luis Velásquez Beltrán by the judicial
authorities makes it impossible to initiate the respective criminal
proceedings.” They note that criminal proceeding 4/2000-1 continues in
an “active phase” and that on September 22, 2005 a confrontation was
carried out between Mrs. Elvira García Avelar, mother of José Alberto
Guadarrama García, and one of the accused, as well as an interrogatory
between the parties. The petitioners also maintain that in her earlier
interrogation, Mrs. García Avelar pointed to other persons alleged to be
materially responsible and an alleged intellectual author of the
violations committed against her son, but that “to date none of the
persons indicated has been held or tried for their actions. Finally,
they ask that the IACHR “continue to monitor the implementation of the
friendly settlement for as long as those materially and intellectually
responsible for the crimes committed against José Alberto Guadarrama
García have not been tried and convicted.”
270. The
Inter-American Commission acknowledges the information received from
both parties and appreciates the contributions made by each of them to
finally implement the points in the friendly settlement agreement.
However, the information received indicates that the capture of José
Luis Velásquez Beltrán and the punishment of all those responsible for
the human rights violations against José Alberto Guadarrama García have
not yet been achieved.
Case 11.381, Report N°
100/01, Milton García Fajardo (Nicaragua)
271. On
October 11, 2001, the IACHR approved Report Nº 100/01 on the
above-mentioned case, and made the following recommendations:
1. To conduct a complete, impartial, and effective investigation
to establish the criminal responsibility of the persons who inflicted
the injuries caused to the detriment of
Milton García Fajardo, Cristóbal Ruiz Lazo, Ramón Roa Parajón, Leonel
Arguello Luna, César Chavarría Vargas, Francisco Obregón García, Aníbal
Reyes Pérez, Mario Sánchez Paz, Frank Cortés, Arnoldo José Cardoza,
Leonardo Solis, René Varela and Orlando Vilchez Florez, and to
punish those responsible in accordance with Nicaraguan
law.
2. To adopt the measures necessary to enable the
142 customs workers who lodged this
petition to receive adequate and timely compensation for the
violations of their human rights established herein.
272.
On November 15, 2005, the Commission requested the State and the
petitioners to submit information on the status of compliance with the
recommendations. By letter dated December 21, 2005, the petitioners
responded that the State has failed to comply with the recommendations.
The petitioners request the Commission to require the State to present a
detailed report on its compliance with the recommendations, in
particular, taking into consideration the commitments agreed upon during
the working group meeting that took place on March 3, 2005. By Note
dated February 2, 2006, the State responded that it had initiated
friendly settlement proceedings with the petitioners, and that on
December 5, 2003, the representatives of the workers presented proposals
for payment, both of which involved millions of dollars. The
negotiations continued with new proposals for payment and the
integration of an Inter-institutional Commission to determine the
applicable legislation and amounts. The State requested the Court to
use its good offices and to intercede with the representatives of the
petitioners in order to bring about an economic proposal more in line
with Nicaragua’s real possibilities of payment, considering the
situation of the national economy.
273.
Based on the information presented by both parties and the meetings held
to follow up on Report N° 100/01, the Commission considers that
compliance with the recommendations is still pending.
CASE 11.800, Report N° 110/00, César Cabrejos Bernuy (Peru)
274. In
its Report N° 110/00 of December 4, 2000, the IACHR made the following
recommendations to the Peruvian State.
1. To offer adequate compensation to Mr. César Cabrejos Bernuy,
pursuant to Article 63 of the American Convention, including the moral
aspect as well as the material one, for the violation of his human
rights, and in particular,
2. To carry out the Judicial Order issued by the Constitutional
and Social Chamber of the Supreme Court of Justice on June 5, 1992,
reinstating Mr. César Cabrejos Bernuy in his position as Colonel in the
National Police, paying him his salary and other remuneration owing to
him but not paid since the date of his enforced retirement, and granting
him all other benefits to which he is entitled as a Colonel of the
Police, including, as appropriate, those relating to his pension; or, as
a second resort, to pay him the salary and other remuneration to which
he would be entitled as a Colonel of the National Police, until he is of
legal retirement age, paying also in this case his retroactive salary
from the date of his forced retirement, and granting him all the other
economic benefits to which, as a Colonel of the National Police, he is
entitled, including, as appropriate, those relating to his pension.
3. To conduct a full, impartial, and effective investigation of
the facts, in order to establish responsibilities for the failure to
carry out the ruling of the Supreme Court of Justice of June 5, 1992,
and to pursue such criminal, administrative, and other procedures as
necessary to apply the appropriate punishment to those responsible, as
befits the gravity of the violations in question.
275. As
regards compliance with the recommendations, it should be recalled that
in a communication of December 3, 2003, the Peruvian State reported that
by Supreme Resolutions No. 0716-2001-IN/PNP of July 10, 2001, and
1158-2001IN/PNP of November 13, 2001, it was ordered that Mr. César
Cabrejos Bernuy be reinstated and that his time of service be computed
from when he was retired, i.e. from March 26, 1997, until July 10, 2001.
276. As
for compliance with the other recommendations, the Government of Peru
refrained from providing any information, considering, as it indicated,
that it is awaiting a report from the Human Resources Bureau (Dirección
de Recursos Humanos) of the National Civilian Police.
277. The
petitioners did not submit information on compliance with the
recommendations still pending.
278. In
view of the foregoing, the IACHR considers that it does not have
sufficient information to evaluate the extent of compliance with all the
recommendations contained in the report.
CASE 11.031, Report Nº 111/00, Pedro Pablo López González
et al.
(Peru)
279. In
Report N° 111/00 of December 4, 2000, the IACHR made the following
recommendations to the Peruvian State:
1. That it carry out an exhaustive, impartial, and effective
investigation to determine the circumstances of the forced disappearance
of Pedro Pablo López González, Denis Atilio Castillo Chávez, Gilmer
Ramiro León Velásquez, Jesús Manfredo Noriega Ríos, Roberto and Carlos
Alberto Barrientos Velásquez and Carlos Martín and Jorge Luis Tarazona
More, and that it punish the persons responsible, in keeping with
Peruvian legislation.
2. That it void any domestic measure, legislative or otherwise,
that tends to impede the investigation, prosecution, and punishment of
the persons responsible for the detention and forced disappearance of
Pedro Pablo López González, Denis Atilio Castillo Chávez, Gilmer Ramiro
León Velásquez, Jesús Manfredo Noriega Ríos, Roberto and Carlos Alberto
Barrientos Velásquez and Carlos Martín and Jorge Luis Tarazona More.
Accordingly, the State should nullify Laws 26.479 and 26.492.
3. That it adopt the measures required for the family members of
Pedro Pablo López González, Denis Atilio Castillo Chávez, Gilmer Ramiro
León Velásquez, Jesús Manfredo Noriega Ríos, Roberto and Carlos Alberto
Barrientos Velásquez and Carlos Martín and Jorge Luis Tarazona More to
receive adequate and timely reparation for the violations established.
280. In
a communication of December 5, 2005, the State reported that on May 11,
2005, the Principal Superior Prosecutor of the Office of the First
Specialized Superior Prosecutor of the Public Ministry handed down an
indictment (acusación sustancial) against Vladimiro Montesinos
Torres, Nicolás Hermosa Ríos, Juan Nolberto Rivero Lazo, Julio Rolando
Salazar Monroe, Alberto Segundo Pinto Cárdenas, Víctor Silva Mendoza or
Víctor Raúl Silva Mendoza, and Federico Augusto Navarro Pérez, as the
masterminds in the crimes of aggravated kidnapping and aggravated
homicide (homicidio calificado) to the detriment of Jesús
Manfredo Noriega Ríos, Carlos Martín Tarazona More, Jorge Luis Tarazona
More, Roberto Barrientos Velásquez, Carlos Barrientos Velásquez, Dennis
Atilio Castillo Chávez, Federico Coquis Vásquez, and Pedro Pablo López
Gonzalez.
In addition, an indictment was handed down against Santiago Enrique
Martin Rivas, Carlos Eliseo Pichilingue Guevara, Julio Chuqui Aguirre,
Jesús Antonio Sosa Saavedra, Pedro Guillermo Suppo, Jorge Enrique Ortiz
Mantas, Carlos Luis Caballero Zegarra Ballón, Angel Arturo Pino Díaz
Sánchez, Gabriel Orlando Vera Navarrete, Hugo Coral Goycochea, Nelson
Rogelio Carvajal García, José Alarcón Gonzáles, José Alarcón González,
Rolando Javier Meneses Montes de Oca, Wilmer Yarleque Ordinola, Angel
Sauni Pomaya, Hercules Gomez Casanova, and Estela Cárdenas Díaz, as
perpetrators of the crimes of aggravated kidnapping and aggravated
homicide to the detriment of the victims indicated above.
281. According
to the information provided by the State, the Principal Specialized
Superior Prosecutor from the Public Ministry asked that the accused
perpetrators of those crimes against humanity be given prison sentences
ranging from 25 to 35 years.
282. The
State also indicated that by Resolution No. 70 of July 13, 2005, the
First Special Chamber of the Supreme Court of Justice of Lima declared
that there were grounds for moving on to the oral proceeding against the
accused, and set August 17, 2005 as the first day of the public hearing.
The State indicated that in those proceedings the objections raised by
13 of the accused invoking the statute of limitations were ruled
inadmissible.
283. Finally,
the State reported on the anticipated judgment (sentencia anticipada)
handed down in the case against Julio Chuqui Aguirre by Special Criminal
Chamber “A” of the Supreme Court of Justice of Lima, which imposed a
six-year prison sentence as a penalty.
284. The
State provided the IACHR with a copy of all the judicial proceedings to
which it made reference in its report.
285. In
this respect, the petitioners indicated that, in effect, the case
processed in file 28-20021, has since August 2005 been in the oral trial
stage, as an indictment was handed down against 23 defendants accused of
being part of the Colina group. They reported that four of the
defendants have yet to be arrested, and are being tried in absentia, two
are under house arrest, one signed an order to appear, and the others
have been subjected to preventive detention.
286. As
regards the anticipated judgment handed down against Julio Chuqui
Aguirre, who accepted the charges filed by the Office of the Attorney
General, they expressed their disagreement with both the penalty imposed
and the amount of 5,000 new soles (US$ 1,470) as civil reparations for
each of the victims. Nonetheless, they explain that given that Peru’s
legislation doesn’t allow the victims to challenge the penalty imposed
on the accused, they proceeded to challenge the amount of the
compensation, without a final resolution having issued in this respect.
287. Finally,
they indicated that as of that moment the remains of the disappeared had
not been recovered.
288. As
regards the second recommendation, i.e., to void any domestic measures,
legislative or otherwise, aimed at impeding the investigation,
prosecution, and punishment of the persons responsible for these acts,
the State noted that it has been making the necessary efforts. In
particular, it announced that by Resolution of the Office of the
Attorney General No. 8154-2005-MP-FN of April 18, 2005, published in the
official gazette “El Peruano” of April 20, 2005, in which is it provided
“that the Prosecutors of all instances that have been involved before
the judicial organs that took cognizance of proceedings in which the
[amnesty] Laws Nos. 26,479 and 26,492 should ask the corresponding
Chamber or Court to execute supranational judgments,” that is, those
proffered by the Inter-American Court of Human Rights in the Barrios
Altos case.
289. In
addition, the State makes reference to the case-law of the
Constitutional Court ratifying the duty of the state to act to ensure
that grave human rights violations not remain in impunity, in
particular, in the case of the forced disappearance of persons.
290. Finally,
as regards the third recommendation on reparation for damages caused the
victims’ next-of-kin, the State reported that it has been following up
through the High-level Multisectoral Commission, which is entrusted with
keeping tabs on the State’s actions and policies in the areas of peace,
collective reparation, and national reconciliation. As for health care,
the State indicated that it submitted to a list of beneficiaries of
Supreme Decree No. 005-2002-JUS of February 28, 2002, which include the
next-of-kin of the victims included in Report No. 111/00 of the IACHR,
to the Ministry of Health, to make sure they are served by the
Comprehensive Health System (SIS: Sistema Integral de Salud). In
education, the State indicated that they have been taking initiatives
before the National Institute of Scholarships and Educational Loans (INABEC:
Instituto Nacional de Becas y Crédito Educativo) to address the demands
for fellowships for the beneficiaries, but that to date those demands
have been addressed only partially. The State does not indicate how. In
the area of housing, it reported that the land located in Huachipa
–transfer of property rights to the Ministry of Justice having been
approved by Supreme Resolution No. 003-2003/SBN-GO-JAD of January 31,
2003 for building housing for the beneficiaries -- is in the process of
administrative regularization, i.e. the issuance of titles prior to the
stage of urban development.
291. In
this regard, the petitioners informed the IACHR that while case No.
11,031 is included in the joint communication signed by the Peruvian
State and the Commission in February 2001, to date reparation has not
been made to the next-of-kin.
292. As
for the recommendation regarding the investigation and justice, the
IACHR values the advances in the criminal procedure, in particular the
indictment handed down against both the direct perpetrators and the
masterminds of these grave incidents. The Commission will monitor the
trial, and awaits the results of the judicial activity in this case.
293. As
regards compliance with the only recommendation, the Commission
considers that while steps have been taken to implement the commitments
assumed by the State in the area of health care, housing, and education,
specific advances cannot be seen. The Commission urges the State to
fully comply with the obligations contracted, especially those related
to medical care, fellowships, land-titling, and housing construction, as
well as all other individual reparations with which direct reparation is
made to the victims and their next-of-kin.
294. In
view of the foregoing, the IACHR considers that in terms of justice,
there has been major progress in carrying out the recommendations. Even
so, one observes that the recommendations have not been fully carried
out, thus compliance continues to be characterized as partial.
CASE 11.099, Report N° 112/00, Yone Cruz Ocalio (Peru)
295. In
Report N° 112/00 of December 4, 2000, the IACHR made the following
recommendations to the Peruvian State:
1. That it carry out an exhaustive, impartial, and effective
investigation to determine the circumstances of the forced disappearance
of Mr. Yone Cruz Ocalio, and that it punish the persons responsible, in
keeping with Peruvian legislation.
2. That it void any domestic measure, legislative or otherwise,
that tends to impede the investigation, prosecution, and punishment of
the persons responsible for the detention and forced disappearance of Mr.Yone Cruz Ocalio. Accordingly, the State should nullify Laws 26.479
and 26.492.
3. That it adopt the measures required for the family members of
Mr. Yone Cruz Ocalio to receive adequate and timely reparation for the
violations established herein.
296.
In a communication of January 24, 2006, the Peruvian State submitted
information on compliance with the foregoing recommendations. As regards
the first recommendation, the State reported that on February 15, 2005,
the Office of the Mixed Provincial Prosecutor of Leoncio Prado-Aucayuca
issued a Prosecutorial Resolution by which it was resolved to archive
the investigation provisionally, thus, in its view, there were not
sufficient grounds to implicate the police elements who were
investigated in the inquiries.
297.
The petitioners did not submit information.
298.
As regards the recommendation to derogate the amnesty laws, the State
adduces that there is a practice on the part of its institutions,
grounded in the judgments of the Inter-American Court of Human Rights in
the Barrios Altos case, geared to ensuring that the amnesties
cannot be validly invoked to oppose the investigations being undertaken
to identify and subsequently sanction those responsible for human rights
violations. The Peruvian State considers that the solution to the
procedural obstacles posed by the amnesty laws was duly established by
those judgments of the Inter-American Court, which by provision of that
Court are general in scope as to any case in which the laws in question
have been applied. Therefore, it has not considered derogating those
laws. The State argues that their derogation would represent a breakdown
in the strategy for fighting impunity, in addition to recognizing as
res judicata the resolutions that applied those laws, and therefore
open up the possibility of persons placed on trial invoking the
principle of non bis in idem.
299.
With respect to the third recommendation, the State noted that Case
11.099 is included in part the press communiqué signed on February 22,
2001. Accordingly, it notes that through the Executive Secretariat of
the High-level Multisectoral Commission, entrusted with follow-up of the
actions and policies of the State in the areas of peace, collective
reparations, and national reconciliation, has been fostering compliance
with the recommendations contained in the Final Report of the Commission
created by Supreme Decree No. 005-2002-JUS, which refers to the
comprehensive program of non-monetary reparations in the areas of health
care, education, and housing for the next-of-kin of the victims in the
cases referred to in that press communiqué.
300.
The Commission considers that the provisional archiving of the
investigation by the Office of the Mixed Provincial Prosecutor of
Leoncio Prado-Aucayuca represents backsliding in compliance of the
recommendation to investigate and punish the persons responsible for the
disappearance of Mr. Yone Cruz Ocalio.
301.
As regards adequate reparation for the victim’s next-of-kin in the
context of carrying out the commitments assumed by the State in the
press communiqué of February 2001, the Commission considers that while
steps have been taken to implement the commitments assumed by the State
in respect of health care, housing, and education, no specific advances
are observed. The Commission urges the State to fully carry out the
obligations contracted, especially those related to medical care,
fellowships, land-titling, and housing construction, as well as all
other individual reparations with which direct reparation is made to the
victims and their next-of-kin.
302.
In view of the foregoing, the IACHR considers that to date the State has
partially carried out the recommendations contained in the Report.
CASE 10.247 et
al., Report N° 101/01, Luis Miguel Pasache Vidal et al.
(Peru)
303. In Report N° 101/01 of October 11, 2001, the IACHR made the following
recommendations to the Peruvian State:
1. Void any judicial decision, internal measure, legislative or
otherwise, that tends to impede the investigation, prosecution, and
punishment of the persons responsible for the summary executions and
forced disappearance of the victims indicated at paragraph 252. In
this regard, the State should also repeal Laws Nº 26.479 and 26.492.
2. Carry out a complete, impartial, and effective investigation to
determine the circumstances of the extrajudicial executions and forced
disappearances of the victims and to punish the persons responsible
pursuant to Peruvian legislation.
3. Adopt the measures necessary for the victim’s families to
receive adequate and timely compensation for the violations established
herein.
4. Accede to the Inter-American
Convention on Forced Disappearance of Persons.
304.
With respect to the first recommendation, i.e. to void any internal
legislative or other measure aimed at impeding the investigation,
prosecution, and punishment of persons responsible for the facts, in a
communication of January 24, 2006, the State indicated that there is a
practice on the part of its institutions, based on judgments of the
Inter-American Court of Human Rights proffered in the Barrios Altos
case, to the effect that amnesties cannot validly be used to oppose
investigations undertaken to identify and then punish those responsible
for human rights violations. The Peruvian State is of the view that the
solution to the procedural obstacle represented by the amnesty laws was
duly established by those judgments of the Inter-American Court, which,
by provision of that Court, are general in scope and refer to any case
to which the laws in question have been applied. Therefore, it has not
considered derogating those laws. The State argues that their derogation
would represent a breakdown of the strategy for fighting impunity, in
addition to recognizing as res judicata those resolutions that
applied those laws, and thereby open up the possibility of persons
prosecuted invoking the principle of non bis in idem.
305.
Second, as regards the recommendation to investigate and punish the
persons responsible, the Peruvian State considers that the competent
authorities are undertaking the respective investigations to identify
and therefore punish the persons responsible for the forced
disappearances of persons included in the cases covered in Report N°
101/01. Following is a summary of the updated information provided by
the State with respect to each of these cases:
1. Case 10.247, Vidal Miguel Pasache: At present the
investigation is being undertaken by the Office of the Second
Supra-provincial Prosecutor of Lima, which by Resolution of November 15,
2005, ordered several procedures. It is indicated that information was
gathered during the investigation undertaken by the former Office of the
Prosecutor on Forced Disappearances, Extrajudicial Executions, and
Clandestine Graves.
2. Case 10.431, Víctor Tineo Sandoval: An investigation is being
undertaken by the Office of the Supra-provincial Prosecutor of Ayacucho.
The case is in the prosecutorial investigation. The State’s report
included as an annex Report 26-MP-FPSCCDTYCLH-A of November 22, 2005,
which describes the documents received by that prosecutorial office, the
documents requested, and six statements received.
3. Case 10.472, Walter Munaylla: An investigation is being
undertaken by the Office of the Supra-provincial Prosecutor of Ayacucho.
The case is in the prosecutorial investigation. The State’s report
included as an annex Report 26-MP-FPSCCDTYCLH-A of November 22, 2005,
which describes the documents received by that prosecutorial office, the
documents requested, and three statements received.
4. Case 10.564, Luis Alberto Sangama Panalfo and one other: In
an investigation by the Office of the Third Criminal Provincial
Prosecutor of Coronel Portillo. The case is in the preliminary
investigative stage. The case of Lucio Escobal Petrel was removed to the
Office of the Attorney General of Tingo María – Leoncio Prado.
5. Case 10.744, Arturo Torres Quispe: An investigation is being
undertaken by the Office of the Supra-provincial Prosecutor of Ayacucho.
The case is in the prosecutorial investigation. The State’s report
included as an annex Report 26-MP-FPSCCDTYCLH-A of November 22, 2005,
which describes the documents received by that prosecutorial office, the
documents requested, and one statement received. The information
requested is aimed at determining the names of the persons who held
positions of authority and were part of the Civil Defense Committee in
Duraznopata in Huanta, and to identify the names of the victims’
next-of-kin.
6. Case 10.805, Adelmo Loli Mauricio Nilton et al.: At present
the investigation is in the Office of the Second Criminal Provincial
Prosecutor of Huaraz. According to the information that the IACHR had,
investigations are being carried out to establish the location of a mass
grave in a place called Minas de Chinchis in Raján Ocros. However, the
Peruvian Government indicated that it was awaiting updated information
that has been requested of the competent authority.
7. Case 10.878, Marcelo Javier Ipanaque et al.: At
present the investigation is in the Office of the Fifth Specialized
Prosecutor for Crimes of Corruption of Public Officials and against
Human Rights. The case remains under investigation.
8. Case 10.947, Guillermo Marín Gallegos et al.: In the
investigation before the Office of the Mixed Provincial Prosecutor of
Leoncio Prado. The case is in the stage of prosecutorial investigation.
9. Case 11.035, León Cajacuri Roca: Being investigated before
the Office of the Third Provincial Prosecutor of Huancayo. The case is
in the prosecutorial office for evidentiary procedures, without the
persons responsible having been identified to date.
10. Case 11.051, Adrián Medina Puma: The investigation is with the
Office of the Fifth Specialized Prosecutor for Crimes of Corruption of
Public Officials and against Human Rights. It is reported that the
investigation has made notable progress in identifying those allegedly
responsible. Nonetheless, the State did not indicated what this progress
entailed.
11. Case 11.088, Amadeo Inca Ñaupa et al.: The
investigation is before the Office of the Deputy Prosecutor of Ayacucho.
The case is in the prosecutorial investigative stage. Previously,
information had been received on the excavation of a mass grave with
human remains, receipt and handing over of corpses. In its last report,
the State indicates that interrogatories were forwarded to the Office of
the Specialized Prosecutor for Forced Disappearances of Lima, to receive
statements from 14 members of the military; it describes the documents
received; and the names of 26 persons from whom statements have been
taken.
12. Case 11.126, César Teobaldo Vílchez Simeón: The case is in the
trial phase before the Third Criminal Court of Huancayo. The Office of
the Third Provincial Prosecutor of Huancayo has jurisdiction over the
case.
13. Case 11.161, Pascual Chipana Huaylla et al.: An
investigation is being undertaken by the Office of the Supra-provincial
Prosecutor of Ayacucho. The case is in prosecutorial investigation.
The State’s report includes as an annex Report 26-MP-FPSCCDTYCLH-A of
November 22, 2005, which describes the documents received by that
Prosecutorial Office, the documents requested, and 18 statements taken.
14. Case 11.179, León Esteban Romero et al.: The
investigation is entrusted to the Office of the Third Criminal
Provincial Prosecutor of Huancayo. By resolution of April 16, 2002, it
was ordered that the investigation be opened and that evidence be taken;
nonetheless, to date the persons responsible have not been identified.
15. Case 11.200, Camilo Núñez Quispe and one other: An
investigation is being carried out by the Office of the Third Criminal
Provincial Prosecutor of Huancayo. By resolution of October 30, 2001,
the investigation was opened and it was ordered that evidence be taken
aimed at clarifying the facts. To date the persons allegedly
responsible have not been identified.
16. Case 11.292, Jessica Rosa Chávez Ruíz et al.
The case is in the trial stage before the First Criminal
Chamber of the Superior Court of Justice of La Libertad. The State had
previously reported on the indication of the date and time for the
public hearing in the proceeding against Daniel Felipe Sánchez et al.,
for the crime of aggravated homicide (homicidio en agravio) of
Jessica Chávez Ruíz. Nonetheless, its latest report makes no reference
to that judicial proceeding.
17. Case 11.680, Moisés Carvajal Quispe. The case is in the trial
stage before the Seceond Criminal Court of Abancay for the crime of
aggravated homicide (homicidio calificado) against the chiefs of
the military base of Santa Rosa and Abancay, José Delgado Bejarano and
José Miguel Méndez Canales. Arrest warrants have not issued for anyone
else. In its latest report the State does not refer to the development
or results of that proceeding.
18. Case 11.064, Cosme Ureta Meter. The investigation is entrusted
to the Office of the Third Criminal Provincial Prosecutor of Huancayo.
By Resolution of April 16, 2002, it was ordered that the investigation
be opened and it was ordered that evidence be taken. Nonetheless, to
date the persons responsible have not been identified.
19. Case 11.066, Ricardo Salazar Ruiz. The case was made formal
before the Superior Court of San Martín. At present the case is before
the Mixed-jurisdiction Judge of the Province of El Dorado. No
information is provided on the development or outcome of the proceeding.
20. Case 11.057, Rafael Ventocilla Rojas et al.
Office of the Fifth Specialized Prosecutor for Crimes of
Corruption of Public Officials and against Human Rights. The case
remains under investigation.
21. Case 10.913, Juan Hualla Choquehuanca. At present the case is
before the office of the Second Criminal Provincial Prosecutor of Puno,
in the investigative stage. A copy of file No. 3173 against Peruvian
Army Col. José Alfaro Flores and Peruvian Army Major Manuel Delgado
Giovanni was requested of the War Justice Council (Consejo de Justicia
de Guerra) of the Third Judicial Zone of Arequipa; to date it has not
been officially received.
22. Case 10.914, Teodoro Lorenzo Alvarado. The Office of the
Specialized Provincial Prosecutor for Forced Disappearances,
Extrajudicial Executions and Exhumation of Clandestine Graves referred
the case to the Office of the Superior Senior Prosecutor (Fiscalía
Superior Decana) of Arequipa, for it to designate the prosecutorial
unit to handle the case.
23. Case 11.040, Percy Borja Gaspar. The case is in the trial
stage before the Second Criminal Chamber of Huancayo against Julio
Cantarín Clemenia and one other for the crimes of kidnapping, violation
of the domicile, and robbery. No information is provided on the
development or outcome of the proceeding.
24. Case 11.132, Edith Galván Montero. The case is in the
investigative stage in the office of the Fifth Specialized Prosecutor
for Crimes of Corruption of Public Officials and against Human Rights.
306.
The petitioners indicate that as regards Case 10.247, the Office of the
Second Supra-provincial Prosecutor announced the rescheduling of
evidentiary procedures that had not yet been carried out. Nonetheless,
to date no judicial proceeding whatsoever has been initiated against the
persons responsible. The petitioners consider that the investigation by
the prosecutorial authorities has been deficient and not very serious
307.
As regards the third recommendation, on economic reparation, the State
indicates that one should bear in mind that the victims of forced
disappearances, and of arbitrary, summary, or extrajudicial executions
have the right to adequate compensation for the violation or breach
committed. Nonetheless, the State refrains from reporting how it is
going to enforce the right of the victims’ next-of-kin to economic
compensation.
308.
Finally, as regards the fourth recommendation, the State notes that by
Legislative Resolution No. 27,622, published in the official gazette “El
Peruano” on January 7, 2002, Peru approved the Inter-American Convention
on Forced Disappearance of Persons; that it ratified it by Supreme
Decree No. 010-2002-RE, published in the official gazette “El Peruano”
on January 23, 2002; and that it deposited it on February 13, 2002.
309.
As regards the report submitted by the State, the Commission values the
information provided and observes, first, that of the 24 cases included
in Report N° 101/01, only five are in the trial stage, and in none of
these cases has a judgment issued. The remaining 19 cases are in the
prosecutorial investigation stage. The Commission notes that in these
cases, despite the evidentiary procedures ordered and executed by the
competent authorities, there have been no significant advances in
identifying the perpetrators of these acts. In addition, in these
investigations the Ministry of Defense continues to refuse to allow
access to documentation that has to do with the facts investigated, or
to provide the real names of the members of the military involved in the
acts, which encumbers the work of the investigative entity.
310.
As regards the third recommendation, the IACHR observes that the
victims’ next-of-kin have yet to receive adequate compensation. The
fourth recommendation was fully carried out by the State.
311.
In view of the foregoing, the IACHR considers that to date there has
been only partial compliance with the recommendations contained in
Report N° 101/01.
CASE
12.035, Report N° 75/02(bis), Pablo Ignacio Livia Robles (Peru)
312.
On December 13, 2002, the IACHR approved Report 75/02(bis), which
considered the friendly settlement reached between the petitioner and
the Peruvian State, and it made the following recommendations:
1. To approve the terms of the
friendly settlement agreement that the parties signed on July 25, 2002.
2. To continue to monitor and supervise each and every point of
the friendly settlement agreement; accordingly, to remind the parties of
their obligation to report to the IACHR every three months on the
performance of this friendly settlement.
3. To make the present report public and include it in the
Commission’s annual report to the OAS General Assembly.
313.
It should be recalled that in view of the information provided by the
petitioner to the IACHR on computing his years of service, by
communication of January 4, 2004, the State indicated that by
resolutions of January 17 and February 19, 2003, not only had Mr. Pablo
Livia Robles been reinstated, but that the years in which has was
unemployed were added to the computation of his years of service. That
the third clause of the friendly settlement agreement included paying
the victim twenty thousand U.S. dollars (US$ 20,000.00) as compensation,
which includes material harm, moral injury, and lost earnings, as a
lump-sum compensation, which also includes remuneration not received by
the petitioner due to the years not worked.
314.
In this respect, in a noted received at the Executive Secretariat of the
IACHR on October 14, 2005, the petitioner adduced that as a result of
the illegal separation from his position for a period of eight years, he
does not meet the requirements demanded by the Peruvian administration
for the position of Principal Superior Prosecutor for Criminal Matters
of Lima.
315.
In consideration of the information available and the terms of the
agreement, the IACHR considered that the Peruvian State has complied
with what is established in the friendly settlement agreement that is
the subject of the report in question. Nonetheless, and by virtue of its
statement in a the communication of January 17, 2004, the Commission
urges the Peruvian Government to uphold the computation of his years of
service for Mr. Pablo Ignacio Livia, without interruption, before the
competent authorities for all labor-related purposes.
CASE
11.149, Report N° 70/03, Augusto Alejandro Zúñiga Paz (Peru)
316.
On October 10, 2003, the IACHR approved Report 70/03, which considered
the friendly settlement reached by the petitioners and the Peruvian
State, and made the following recommendations:
1. To approve the terms of the
friendly settlement agreement that the parties signed in February 2002.
2. To continue to monitor and supervise each and every point of
the friendly settlement agreement, and accordingly to remind the parties
of their obligation to report to the IACHR every three months on the
performance of this friendly settlement.
3. To make the present report
public and include it in the Commission’s annual report to the OAS
General Assembly.
317.
The Peruvian State
informed the IACHR in timely fashion of compliance with the fourth
clause of the friendly settlement agreement on economic compensation.
According to the information and documentation provided by the State, on
February 20, 2004, the Vice-Minister of Justice delivered to Mr. Augusto
Zúñiga Paz a check in the amount of US$ 60,000, as reparation for the
damages caused to him.
CASE
12.191, Report N° 71/03, María Mamerita Mestanza (Peru)
318.
On October 10, 2003, the IACHR approved Report 71/03, which considered
the friendly settlement reached between the petitioners and the Peruvian
State and made the following recommendations:
1. To approve the terms of the Agreement for Friendly Settlement
signed by the parties on August 26, 2003.
2. To continue following up and monitoring each and every point
of the friendly settlement, and in this context to remind the parties of
their obligation to submit reports to the IACHR every three months on
compliance with this agreement.
3. To publish this report and include it in its annual report to
the OAS General Assembly.
319.
By note of December 5, 2005, the State submitted a report on the third
clause of the friendly settlement agreement regarding investigation into
the facts. In its report, the Peruvian State notes that the Office of
the Specialized Provincial Prosecutor for Crimes of Corruption of Public
Officials and against Human Rights, of the Public Ministry, indicated
that in the investigation into Case 12.191, supplemental information and
documentation has yet to be collected to determine the specific
identities of the health personnel involved in implementing the
Voluntary Surgical Contraception Program in the rural community of
Caserío Sorogón Alto, La Encañada, Cajamarca, as well as third persons
who, from the positions they hold, allegedly failed to take the
appropriate actions in relation to the death of María Mamerita Mestanza.
In addition, that the Office of the Specialized Prosecutor has requested
information from the Ministry of Health to provide information and
submit certified copies of documentation in its files regarding the
actions taken around the death of María Mamérita Mestanza.
320.
In
addition, according to the State’s report, the Office of the Specialized
Prosecutor said that the investigation is related to Complaint No.
18-2002, which specifically investigates the organization and
application of the Voluntary Surgical Contraception Program carried out
nationwide during the administration of former President Alberto
Fujimori.
321.
Finally, the State indicated that administrative and judicial
proceedings have been instituted with respect to the personnel involved
in cases of forced sterilization.
322.
In a communication of February 15, 2006, the petitioners submitted a
brief of observations on the information from the State regarding the
investigation being carried out by the Office of the Specialized
Provincial Prosecutor for Crimes of Corruption of Public Officials and
against Human Rights. In their brief, the petitioners adduce that the
investigative activity of the State cannot be characterized as complete
and effective. They argue, first, that the State’s report does not
describe any investigations into the health staff who were involved in
carrying out the Voluntary Surgical Contraception Program, nor into the
responsibility of the members of the Investigative Commission appointed
by Subregion IV Cajamarca of the Ministry of Health, which questionably
concluded that there was no liability of the health staff who attended
to Ms. Mestanza, according to the terms of the third clause of the
friendly settlement agreement. In addition, they argue that the
investigation is not being effective, considering that almost two years
have passed since the formal initiation of the investigation (March 9,
2004), and almost eight years since Ms. Mestanza’s death (April 8,
1998), and to date no criminal complaint has been formally lodged before
the Judiciary in the case of María Mamérita Mestanza.
323.
With regard to the State’s information regarding the initiation of
administrative and judicial proceedings, the petitioners stated that
they only know of the investigation being carried out by the Specialized
Provincial Prosecutor, and of the investigation that was carried out by
the Subcommittee of the Congress. They state that they do not know of
nor have they been informed of the existence of administrative
proceedings investigating the facts that are the subject matter of the
friendly settlement agreement in Report 71/03 of the Illustrious
Commission.
324.
As regards compliance with the fourth clause of the friendly settlement
agreement, in a brief of February 9, 2006, the State reported that the
establishment of the trust on behalf of the minors Napoleón, Amancio,
María Delia, and Almanzor Salazar Mestanza was formalized. With respect
to Alindor Salazar Mestanza, the State reported that he could not be
included in the trust fund, considering that on December 28, 2005, the
date of the signing of the agreement establishing the trust, by the
Banco de la Nación and the Ministry of Justice, he had already reached
majority. Accordingly, the State announced that the beneficiary Alindor
Salazar Mestanza will be paid an amount of compensation by means of a
check in his name, upon presentation of his identification document.
325.
In view of the information available and the terms of the agreement, the
IACHR considers that the Peruvian State has not carried out the terms of
the third clause of the friendly settlement agreement contained in
Report N° 71/03.
326.
The Commission values the efforts made by the State to pay compensation
for the harm caused to the children of Ms. María Mamerita Mestanza. In
particular, the establishment of a trust to carry out the international
obligations of the Peruvian State in cases involving human rights
violations that have been brought before international mechanisms.
327.
Based on the information provided by the parties, the Commission
considers that there has been partial fulfillment of the friendly
settlement agreement signed on August 26, 2003.
CASE
12.078, Report N° 31/04, Ricardo Semoza Di Carlo (Peru)
328.
On March 11, 2004, the IACHR adopted Report 31/04, which considered the
friendly settlement achieved between the petitioners and the Peruvian
State, and made the following recommendations:
1. To approve the terms of the friendly settlement agreement that
the parties signed on October 23, 2003.
2. To continue to monitor and supervise each and every point of
the friendly settlement agreement; accordingly, to remind the parties of
their obligation to report to the IACHR every three months on the
performance of this friendly settlement.
3. To make the present report public and include it in the
Commission’s Annual Report to the OAS General Assembly.
329.
In a communication of October 11, 2005, the Peruvian Government informed
the IACHR that information requested of the Human Resources Bureau of
the Ministry of Interior regarding execution of the clauses in the
friendly settlement agreement with Ricardo Semoza Di Carlo was still
pending.
330.
In the note
received on December 5, 2005, at the Executive Secretariat of the IACHR,
the petitioner stated that even though the State had recognized the time
of service in which he was arbitrarily separated from the National
Police of Peru, it has not complied in terms of reimbursement for fuel;
nor reimbursement for the difference between his salary and that of a
major, which was to be done as of October 1,
1997, by statutory mandate; nor the regularization of his payments to
the Officers Security Fund; nor the holding of a ceremony to make
amends; nor, finally, the investigation and punishment of the persons
responsible for breach of the judicial orders handed down to protect the
rights of Ricardo Semoza Di Carlo.
331.
Based on the information available, and the terms of the agreement, the
IACHR considers that the Peruvian State has carried out in part the
friendly settlement agreement that is set forth in Report No. 31/04.
CASE 9903, Report
Nº 51/01, Rafael Ferrer-Mazorra et al. (United States)
332.
In
Report Nº 51/01 dated April 4, 2001 the Commission recommended that the
State:
1. Convene reviews as soon as is
practicable in respect of all of the Petitioners who remained in the
State’s custody, to ascertain the legality of their detentions in
accordance with the applicable norms of the American Declaration, in
particular Articles I, II, XVII, XVIII and XXV of the Declaration as
informed by the Commission’s analysis in the report; and
2. Review its laws, procedures and
practices to ensure that all aliens who are detained under the authority
and control of the State, including aliens who are considered
“excludable” under the State’s immigration laws, are afforded full
protection of all of the rights established in the American Declaration,
including in particular Articles I, II, XVII, XVIII and XXV of the
Declaration as informed by the Commission’s analysis in its report.
333.
In a
communication dated December 15, 2005, the State informed the Commission
that it disagreed with and declined the Commission’s recommendations and
denied any violations of the American Declaration of the Rights and
Duties of Man based upon the State’s previous responses in the case,
which have been posted on the Commission’s web site at
www.cidh.org.
By letter dated December 27, 2005, the Petitioners advised the
Commission that they had no information regarding the compliance by the
United States with Report 51/01. Based upon the information available,
the Commission considers that compliance with the Commission’s
recommendations is pending.
CASE 12.243,
Report Nº 52/01, Juan Raul Garza (United States)
334.
In
Report Nº 52/01 dated April 4, 2001 the Commission recommended that the
State:
1. Provide Mr. Garza with an
effective remedy, which included commutation of sentence; and
2. Review its laws, procedures and
practices to ensure that persons who are accused of capital crimes are
tried and, if convicted, sentenced in accordance with the rights
established in the American Declaration, including Articles I, XVIII and
XXVI of the Declaration, and in particular by prohibiting the
introduction of evidence of unadjudicated crimes during the sentencing
phase of capital trials.
335.
In a
letter dated November 19, 2005, the Petitioners indicated in respect of
the Commission’s first recommendation that Mr. Garza had been executed,
and that they were not aware of any action taken by the United States in
respect of the Commission’s second recommendation. In a communication
dated December 15, 2005, the State indicated that it disagreed with and
declined the Commission’s recommendations and denied any violations of
the American Declaration of the Rights and Duties of Man based upon the
State’s previous responses in the case, which have been posted on the
Commission’s web site at
www.cidh.org.
Based upon the information available, the Commission considers that
compliance with the Commission’s recommendations is pending.
CASE 11.753, Report
Nº 52/02 Ramón Martinez Villareal, (United States)
336.
In Report Nº 52/02 dated October 10, 2002, the IACHR made the following
recommendations:
1. Provide Mr. Martinez Villareal with an effective remedy,
which includes a re-trial in accordance with the due process and fair
trial protections prescribed under Articles XVIII and XXVI of the
American Declaration or, where a re-trial in compliance with these
protections is not possible, Mr. Martinez Villareal’s release.
2. Review its laws,
procedures and practices to ensure that foreign nationals who are
arrested or committed to prison or to custody pending trial or are
detained in any other manner in the United States are informed without
delay of their right to consular assistance and that, with his or her
concurrence, the appropriate consulate is informed without delay of the
foreign national’s circumstances, in accordance with the due process and
fair trial protections enshrined in Articles XVIII and XXVI of the
American Declaration.
337.
In a note dated December 15, 2005, the State informed the Commission
that on August 5, 2003, the Arizona Court of Appeals directed the
Superior Court of Pinal County and the Hon. Boyd T. Johnson, Judge, to
conduct a competency hearing for Mr. Martinez Villareal prior to
re-sentencing. It also indicated that the sentences of death were
vacated, and on September 14, 2005, the Superior Court found Mr.
Martinez Villareal incompetent to be re-sentenced and subsequently
ordered that he be remanded to the State of Arizona for commencement of
commitment proceedings and that he remained in state custody pending the
initiation of those proceedings. By letter dated January 13, 2006, Mr.
Villareal’s representatives informed the Commission that the United
States government has made no attempt to retry Mr. Martinez Villareal,
had not made progress in remedying the due process and fair trial
violations outlined by the Commission and has not freed Mr. Martinez
Villareal, and therefore has failed to comply with any part of the
Commission’s first recommendation. With respect to the Commission’s
second recommendation, Mr. Martinez Villareal’s representatives informed
the Commission that in its March 31, 2004 decision in the Case
Concerning Avena and Other Mexican Nationals (Mexico v. United States),
the International Court of Justice found that the United States had
violated its obligation under Article 36 of the Vienna Convention on
Consular Relations with regard to 51 Mexican Nationals when it failed to
inform them of their right to consular assistance, that the proper
remedy for this action was the review and reconsideration of the
convictions and sentences of the 51 Mexican nationals involved, and that
during the proceedings the United States undertook the commitment to
ensure the implementation of specific measures adopted in performance of
its obligations under Article 36, which the ICJ regarded as sufficient
to meet the Mexican Government’s request for guarantees of
non-repetition. Also according to Mr. Martinez Villareal’s
representatives, on March 23, 2005, the U.S. Supreme Court denied a writ
of certiorari in respect of a request by one of the 51 Mexican
Nationals, Jose Medellin, for review of his federal habeas claim denied
by the lower courts which raised the question of whether a U.S. federal
court is bound by the decision of the ICJ ordering the reconsideration
of a case without regard for the procedural default doctrine and
whether a federal court should give effect, as a matter of judicial
comity and uniform treaty interpretation to the ICJ judgment. Mr.
Martinez Villareal’s representatives state that the U.S. Supreme Court
decided not to resolve these questions after Mr. Medellin filed a state
habeas claim in the Texas Court of Criminal Appeals relying in part on a
memorandum issued by President George W. Bush which stated that the
United States would discharge its international responsibilities under
the ICJ judgment with respect to the 51 Mexican nationals addressed in
that decision. Mr. Martinez Villareal’s representatives indicate these
internal proceedings demonstrate that the issue of whether the right to
consular notification is guarantee to all foreign nationals in the
United States is still unsettled and that this implied that the United
States has failed to comply with the Commission’s second recommendation.
Based upon the information available, the Commission considers that
there has been partial compliance with the Commission’s recommendations.
CASE 12.285,
Report Nº 62/02, Michael Domingues (United States)
338.
In Report Nº 62/02 dated October 22, 2002, the IACHR made the following
recommendations:
1. Provide Michael Domingues with
an effective remedy, which includes commutation of sentence.
2. Review its laws, procedures and
practices to ensure that capital punishment is not imposed upon persons
who, at the time their crime was committed, were under 18 years of age.
339.
In a
letter dated December 20, 2005, Mr. Domingues’ representatives informed
the Commission that the findings of the Commission in Report 62/02 were
presented to Nevada authorities who refused to take any action to comply
with the findings, but that subsequently the United States Supreme Court
issued its decision in Roper v. Simmons, 543 U.S. 551 (2005) which ruled
that a sentence of death imposed on an individual who is less that the
age of 18 at the time of the crime was forbidden by the Eight Amendment
prohibition against cruel and unusual punishment. Mr. Domingues’
representatives also indicated that in compliance with this decision,
the previously imposed death sentence against Michael Domingues was
commuted to life without the possibility of parole. In a communication
dated December 28, 2005, the State similarly indicated that in the
recent U.S. Supreme Court decision Roper v. Simmons, 125 S. Ct. 1183,
the Court held that the application of the death sentence to individuals
who were younger than eighteen years of age when they commit a capital
crime is unconstitutional under the Eighth and Fourteenth Amendments to
the U.S. Constitution. Based upon the information available, the
Commission considers that there has been full compliance with the
Commission’s recommendations.
CASE 11.140,
Report Nº 75/02 Mary and Carrie Dann (United States)
340.
In Report Nº 75/02 dated December 27, 2002, the IACHR made the following
recommendations:
1. Provide Mary and Carrie Dann with an effective remedy, which
includes adopting the legislative or other measures necessary to ensure
respect for the Danns’ right to property in accordance with Articles II,
XVIII and XXIII of the American Declaration in connection with their
claims to property rights in the Western Shoshone ancestral lands.
2. Review its laws,
procedures and practices to ensure that the property rights of
indigenous persons are determined in accordance with the rights
established in the American Declaration, including Articles II, XVIII
and XXIII of the Declaration.
341.
In a letter dated December 14, 2005, the Petitioners informed the
Commission that the United States had failed to comply with the
Commission’s recommendations in this case and that over the past year,
the failure had compounded its previous human rights violations and
caused additional harm to the petitioner Carrie Dann and other Western
Shoshone people. In particular, the Petitioners stated that the United
states had continued its efforts to implement the Western Shoshone
Distribution Act that would pay the Western Shoshone approximately $0.15
per acre, without interest, for the taking of their lands, and that in
May 2005, the Department of Interior, through its Bureau of Indian
Affairs, published a proposed rule on how to distribute the judgment
fund to individual Western Shoshone, through a process that fails to
apply to Indian tribes important constitutional rights to property that
are applicable to every one else in the United States. The petitioners
also state that many Western Shoshone, including Carrie Dann, are
continuing to organize against the payment, insisting that no payment
should be made until Western Shoshone land claims have been fully
resolved through fair an honorable proceedings. In addition, the
Petitioners claim that continued efforts are underway to privatize the
Western Shoshones’ traditional homeland for mining purposes through a
pending Budget Reconciliation Bill, which was recently passed in the
U.S. House of Representatives and was still pending in the U.S. Senate.
According to the Petitioners, the United States currently classifies
approximately 90% of Western Shoshone traditional lands as federal lands
and therefore that a vast majority of that land would potentially be
opened up for private sale to mining companies. Further, the Petitioners
state that the United States is continuing to take actions that inflict
poverty and desperation upon the Western Shoshone people, in part
through renewed demands for the payment of exorbitant trespass damages
and fines by the Department of Treasury and a private collection agency.
The Petitioners state that these matters were compounded by the
unexpected death of Mary Dann in April of 2005 following which a private
collection agency contracted by the U.S. Department of Treasury began
sending demands for payment to Mary and Carrie Dann’s niece, Sally
Smales, harassing her by telephone and threatening to seize her personal
bank accounts. The Petitioners also claimed that the State has continued
to aggressively expand the environmentally damaging activities of
extractive industries and other developments in the lands at issue in
the Dann case. These are said to include expanded open-pit gold mining
that exploits and pollutes ground water with toxic cyanide, new
geothermal leases to provide electricity for private developers and
mining interests, and nuclear waster disposal and other nuclear issues
stemming to a large extent from the United States’ plan to store 77,000
tons of nuclear waste from across the United States in Yucca Mountain, a
site traditionally significant to the Western Shoshone people and which
sits on an active earthquake zone and an aquifer that provide water to
many Nevada residents. Finally, the Petitioners state that at the United
Nations Working Group on the draft Declaration on the Rights of
Indigenous Peoples, the United States has taken steps to articulate a
right of property to indigenous peoples over land that they hold by
aboriginal title in such a way that would preserve the government’s
right under United States law to confiscate aboriginal Indian lands and
resources without due process or compensation. In a communication dated
January 18, 2006, the State informed the Commission that it disagreed
with and declined the Commission’s recommendations in Report 75/02 based
upon the State’s prior filings in the case, including the prior Response
of the United States posted on the Commission’s website (www.cidh.org/resp.eng.htm).
Based upon the information available, the Commission considers that
compliance with the Commission’s recommendations is pending.
CASE 11.193,
Report Nº 97/03, Shaka Sankofa (United States)
342.
In Report Nº 97/03 dated December 29, 2003, the Commission made the
following recommendations to the State:
1. Provide the next-of-kin of Shaka Sankofa with an effective
remedy, which includes compensation.
2. Review its laws, procedures and practices to ensure that
violations similar to those in Mr. Sankofa’s case do not occur in future
capital proceedings.
3. Review its laws, procedures and
practices to ensure that capital punishment is not imposed upon persons
who, at the time his or her crime was committed, were under 18 years of
age.
343
In a
note dated December 15, 2005, the State indicated that in the recent
U.S. Supreme Court decision Roper v. Simmons, 125 S. Ct. 1183, the Court
held that the application of the death sentence to individuals who were
younger than eighteen years of age when they commit a capital crime is
unconstitutional. In a further recommendation dated December 15, 2005,
the State informed the Commission that it disagreed with and declined
the Commission’s recommendations and denied any violations of the
American Declaration of the Rights and Duties of Man based upon the
State’s previous responses in the case. Based upon the information
available, the Commission considers that there has been partial
compliance with the Commission’s recommendations.
CASE 11.204,
Report Nº 98/03, Statehood Solidarity Committee (United States)
344.
In Report Nº 98/03 dated December 29, 2003, the Commission made the
following recommendations to the State:
119.
Provide the Petitioners with an effective remedy, which includes
adopting the legislative or other measures
necessary to guarantee to the Petitioners the effective right to participate,
directly or through freely chosen representatives and in general conditions of
equality, in their national legislature.
345.
In a
letter dated December 7, 2005, the Petitioners informed the Commission
that the State had failed to comply with the Commission’s
recommendations. By note dated December 15, 2005, the State indicated
that it disagreed with and declined the Commission’s recommendations and
denied any violations of the American Declaration of the Rights and
Duties of Man based upon the State’s previous responses in the case.
Based upon the information available, the Commission considers that
compliance with the Commission’s recommendations is pending.
CASE 11.331,
Report Nº 99/03, Cesar Fierro (United States)
346.
In Report Nº 99/03 dated December 29, 2003, the Commission made the
following recommendations to the State:
1. Provide Mr. Fierro with an effective remedy, which includes a
re-trial in accordance with the due process and fair trial protections
prescribed under Articles XVIII and XXVI of the American Declaration or,
where a re-trial in compliance with these protections is not possible,
Mr. Fierro’s release.
2. Review its laws, procedures and practices to ensure that
foreign nationals who are arrested or committed to prison or to custody
pending trial or are detained in any other manner in the United States
are informed without delay of their right to consular assistance and
that, with his or her concurrence, the appropriate consulate is informed
without delay of the foreign national’s circumstances, in accordance
with the due process and fair trial protections enshrined in Articles
XVIII and XXVI of the American Declaration.
347.
In a note dated December 9, 2005, the Petitioners informed the
Commission that the State had not complied with the Commission’s
recommendations, as Mr. Fierro remained in death row in Texas and the
United States has done nothing to provide for a re-trial or release or
any remedy. The Petitioners also indicated that the State has taken no
steps since the Commission’s report to ensure that local authorities
understand and comply with the obligations to inform foreign nationals
about their right to consular access and have failed to inform the U.S.
courts of their obligation to provide redress to foreign nationals who
were not informed of their right of consular access but who were
convicted of criminal charges. In a note dated January 11, 2006, the
State informed the Commission that it disagreed with and declined the
recommendations of the Commission and continued to deny any violation of
the American Declaration of the Rights and Duties of Man based upon its
prior responses in the case. Based upon the information available, the
Commission considers that compliance with the Commission’s
recommendations is pending.
CASE 12.240,
Report Nº 100/03, Douglas Christopher Thomas (United States)
348.
In Report Nº 100/03 dated December 29, 2003, the Commission made the
following recommendations to the State:
1. Provide the next-of-kin of Douglas Christopher Thomas with an
effective remedy, which includes compensation.
2. Review its laws, procedures and
practices to ensure that capital punishment is not imposed upon persons
who, at the time his or her crime was committed, were under 18 years of
age.
349.
In a
letter dated December 3, 2004, the Petitioner noted that Mr. Thomas had
been executed on January 10, 2000 and indicated that he knew of no
action taken by the United States to address or acknowledge the
recommendations of the Commission. In a note dated December 15, 2005,
the State indicated that it disagreed with and declined the Commission’s
recommendations and denied any violations of the American Declaration of
the Rights and Duties of Man based upon the State’s prior filings in the
case. Based upon the information available and the State’s additional
observations dated December 15, 2005 in relation to the recommendation
in Case 12.285 (Michael Domingues), the Commission considers that there
has been partial compliance with the Commission’s recommendations.
CASE 12.412,
Report Nº 101/03, Napoleon Beazley (United States)
350.
In Report Nº 101/03 dated December 29, 2003, the Commission made the
following recommendations to the State:
1. Provide the next-of-kin of Napoleon Beazley with an effective
remedy, which includes compensation.
2. Review its laws, procedures and
practices to ensure that capital punishment is not imposed upon persons
who, at the time his or her crime was committed, were under 18 years of
age.
351.
In a
note dated December 15, 2005, the State indicated that it disagreed with
and declined the Commission’s recommendations and denied any violations
of the American Declaration of the Rights and Duties of Man based upon
the State’s prior filings in the case. Based upon the information
available and the State’s additional observations dated December 15,
2005 in relation to the recommendation in Case 12.285 (Michael Domingues),
the Commission considers that there has been partial compliance with the
Commission’s recommendations.
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