ANNUAL REPORT 2009

CHAPTER III

THE PETITION AND CASE SYSTEM 

D.                 Status of compliance with the recommendations of the IACHR

(continuation)

Case 11.565, Report No. 53/01, González Pérez Sisters (Mexico)

648.          In Report No. 53/01, of April 4, 2001, the Commission concluded that the Mexican State had violated, to the detriment of Ms. Delia Pérez de González and her daughters Ana, Beatriz, and Celia González Pérez, the following rights enshrined in the American Convention: the right to personal liberty (Article 7); the right to humane treatment and protection of honor and dignity (Articles 5 and 11); judicial guarantees and judicial protection (Articles 8 and 25); with respect to Celia González Pérez, the rights of the child (Article 19); all those in conjunction with the general obligation to respect and ensure the rights, provided for in Article 1(1) of the Convention.  In addition, it concluded that the State was responsible for violating Article 8 of the Inter-American Convention to Prevent and Punish Torture.

649.          According to the complaint, on June 4, 1994, a group of soldiers detained the González Pérez sisters and their mother Delia Pérez de González, in the state of Chiapas, to question them, and deprived them of their liberty for two hours. The petitioners allege that during that time the three sisters were separated from their mother, beaten, and raped repeatedly by the soldiers; that on June 30, 1994, the complaint was filed with the Federal Public Ministry (Office of the Attorney General, or “PGR” - Procuraduría General de la República) based on a gynecological medical exam, which was corroborated before that institution by the statements by Ana and Beatriz, the two older sisters; that the case was removed to the Office of the Attorney General for Military Justice (“PGJM”: Procuraduría General de Justicia Militar) in September 1994; and that it finally decided to archive the case given their failure to come forward to make statements once again and to undergo expert gynecological exams. The petitioners argue that the State breached its obligation to investigate the facts alleged, punish the persons responsible, and make reparation for the violations.

650.          The Commission made the following recommendations to the State:

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.

651.          The parties held a working meeting at the 131^st Regular Session of the IACHR and agreed to carry out the remaining steps to be taken within the framework of military jurisdiction (drawing a spoken portrait, taking the testimony of one of the victims, and the extension of the statement of the mother of the victims) assuming that afterwards the case would be fully investigated in regular criminal court. As for the State, it pledged to submit its observations to the proposal submitted by the petitioners in July 2001 for integral reparation of damages.

652.          By means of a communication dated November 12, 2009, the Commission requested the parties to provide updated information on compliance with the recommendations.  The State informed, by means of a communication dated November 3, 2009, that it has demonstrated its will and carried out all the measures at its disposal to request the alleged victims and their representatives to collaborate with the investigating authorities in putting light into the facts. The State provided a list of investigation activities. The State expressed that it will deal with the issues related to the reparation of damages once the ongoing criminal procedure is over. Finally, the State requested a recognition to be made of its will and the efforts it has undertaken to comply with the recommendations included in Report No. 79/00.

653.          As for the petitioners, by means of a communication dated December 16, 2009, they indicated that, in compliance with the agreement reached at the working meeting on March 11, 2008, the last three steps were taken on May 21, 2009 in the framework of the military criminal investigation for the purpose of having that authority transfer the investigation to the regular jurisdiction to continue the investigations.

654.          Despite this, they indicated that, once all the steps had been taken, the military authorities did not transfer the preliminary inquiry to Mexico’s regular criminal jurisdiction, thus failing to comply with what had been agreed upon.  On the contrary, they specified that, on November 3 and 27, 2009, the Office of the General Justice Prosecutor of the State of Chiapas notified the victim’s legal representative about two writs regarding the preliminary investigation that continues to be conducted under military jurisdiction in the above-mentioned case, where it is indicated that the Attorney General of the Armed Forces would be proposing that criminal proceedings are not admissible because it had not been proven that any crime had even been committed.

655.          The petitioners claimed that this means there is complete ignorance of the agreements reached by the parties, which provide that the investigation would be transferred to regular jurisdiction, which never did occur.  They added that the representatives do not have the copies of resolutions that were notified and therefore they do not know what they contain exactly and that was the why the Military Attorney General ordered dismissal of the case.

656.          Regarding the obligation of providing adequate reparations to the victims, the petitioners indicated that they had not received any communication from the Mexican State referring to the proposal to provide reparations for damages that it must grant to the victims because of the declaration of international responsibility that the Commission made in the respective report.

657.          Because of the above, the Commission notes that the investigation of the facts remain in the military jurisdiction and concludes that the above-mentioned recommendations are pending compliance with.  As a result, the Commission shall continue to monitor the items that are pending. 

Case 12.130, Report No. 2/06, Miguel Orlando Muñoz Guzmán (Mexico)

658.          In Report No. 2/06 of February 28, 2006, the Commission concluded that the record in the case of Miguel Orlando Muñoz Guzmán did not contain elements that would allow one to attribute international responsibility to the Mexican State for his forced disappearance. Accordingly, it did not find the Mexican State responsible for the violation of the rights to life, humane treatment, or personal liberty, to the detriment of Miguel Orlando Muñoz Guzmán; nor of the right to humane treatment of his next-of-kin.  On the other hand, the IACHR determined in that report that the Mexican State was responsible for the violation of the rights to judicial guarantees and judicial protection contained in Articles 8 and 25 of the American Convention, in connection with Article 1(1) of the same international instrument.

659.          According to the complaint, Mr. Miguel Orlando Muñoz Guzmán, a lieutenant in the Mexican Army, disappeared on May 8, 1993, at the age of 25 years. He was last seen on that date by his comrades of the 26^th Battalion of Ciudad Juárez, state of Chihuahua, Mexico, when we was preparing to go on leave. Lt. Muñoz Guzmán’s family indicates that he was an officer devoted to his career, and therefore they call into question the credibility of the Army’s official version, according to which he deserted and then traveled to the United States.  They explain that to date no serious investigation has been carried out in Mexico to determine his whereabouts or to punish the persons responsible for his forced disappearance. They argue that the irregularities that have surrounded this case have been deliberate, with the intent of covering up the persons responsible. They also mention the fact that the family began to receive anonymous threats, which they attribute to members of the military, from the moment they went to report the facts to the authorities.

660.          The IACHR made the following recommendations to the State:

1.         Conduct a complete, impartial, and effective investigation in the Mexican general jurisdiction to determine the whereabouts of Miguel Orlando Muñoz Guzmán; and, if it were determined that he was a victim of forced disappearance, to sanction all those responsible for such crime.

2.         Provide adequate compensation to the relatives of the family of Miguel Orlando Muñoz Guzmán for the human rights violations established herein.

661.          By means of a communication dated November 12, 2009, the IACHR requested both parties to report on the measures taken to comply with these recommendations. 

662.          By means of a communication dated December 13, 2009, the petitioners mentioned the working meeting on the case, which was held on November 4, 2009 at the headquarters of the IACHR during its 137th Regular Session.  They indicated that, at this meeting, the importance of having the State present an examination of the results of the steps taken in the framework of the criminal investigations, their relevance and the goal that was being aimed at with these steps was stressed.  They indicated that this request was proposed at the above-mentioned meeting since, to date, the State has not provided the investigation plan whereby explanations are provided about the lines of investigation on which the steps to be taken are based.

663.          Regarding this, they specified that, because no adequate information has been provided regarding the progress of the investigations and because the State has only prepared itself to carry out the steps, the authorities of the State of Chihuahua have been approached to work on this matter.  Nevertheless, they indicated that the State continues to fail to comply with the agreements that were drawn up internally in the framework of the working meetings that started in 2008 with the Office of the Deputy Prosecutor for Human Rights and Services to the Victims of Crime of the General Justice Prosecutor’s Office of the State of Chihuahua.

664.          As a result, the petitioners repeated the need to “benefit from a systematization of the steps taken and to be taken in the prior inquiry started by the Office of the General Justice Prosecutor of the State of Chihuahua,” as well as the importance of “reviewing the internal case file at a meeting attended by the petitioners, the Office of the Prosecutor of Chihuahua, and the Foreign Affairs Secretariat of Mexico.

665.          Regarding the recommendation referring to reparations of violations for the benefit of the next-of-kin, the petitioners indicated that, for the purpose of making progress on this item, they have pledged to submit a proposal to the State, about which information shall be provided to the Commission in due time.

666.          The State mentioned that on November 4, 2009, a working meeting took place to follow up to the case in the headquarters of the IACHR. It indicated that in that opportunity, the parties agreed on meeting during 2010 to dialogue on the possible revision and analysis of the file initiated by the Office of the Prosecutor of Chihuahua with regards to the disappearance of lieutenant Miguel Orlando Muñoz Guzman.

667.          Because of the above, the Commission concludes that the State has not complied with the above-mentioned recommendations. As a result, the Commission shall continue to monitor the items that are pending. 

Petition 161-02, Report No. 21/07, Paulina del Carmen Ramírez Jacinto (Mexico)

668.          On March 9, 2007, by Report No. 21/07, the Commission approved a friendly settlement agreement in the case of Paulina del Carmen Ramírez Jacinto. In summary, the petitioners alleged that on July 31, 1999, when Paulina del Carmen Ramírez Jacinto was 14 years old, she was the victim of a rape perpetrated in her home. The act was reported immediately to the Agency of the Public Ministry Specialized in Sexual Crimes and Family Violence. The petitioners alleged that he Public Ministry did not inform Paulina del Carmen Ramírez Jacinto or her mother of the existence of emergency oral contraception, and the rape led to a pregnancy. The petitioners state that under Article 136 of the Criminal Code of Baja California, Paulina del Carmen Ramírez Jacinto had the right to a legal abortion, upon authorization from the Public Ministry, since the rape is one of the exceptions in which abortion is not criminalized. Nonetheless, despite the insistence in performing that procedure to which she had a right, representatives of the Public Ministry and of the hospitals to which Paulina Ramírez Jacinto was referred imposed various administrative and psychological barriers, providing false information on the procedure and its consequences, to the point of influencing her decision. Finally, the interruption of the pregnancy was not performed.

669.          According to the friendly settlement agreement, the State undertook as follows:

ONE: The Government of Baja California shall hand over, on March 4, 2006, as consequential damages covering the legal expenses incurred in processing the case and the medical expenses incurred by Paulina del Carmen Ramírez Jacinto and I. R. J. (sic) as a result of the incident, the amount of $60,000 (sixty thousand pesos).

TWO: Paulina del Carmen Ramírez Jacinto acknowledges that the Government of Baja California gave to her, in June and August 2001, as assistance for maintenance expenses and assistance with spending on necessities and school supplies, the amount of $114,000 (one hundred and fourteen thousand pesos).

THREE: Paulina del Carmen Ramírez Jacinto acknowledges that the Government of Baja California gave to her, in June 2001, as support for housing expenses, the amount of $220,000 (two hundred and twenty thousand pesos).

FOUR: Both Paulina del Carmen Ramírez Jacinto and I. R. J. (sic) shall be provided with health services by the Social Services and Security Institute of the Government and Municipal Workers of Baja California State (ISSSTECALI), in which they are both enrolled as of March 13, 2006. For this purpose, the head of ISSSTECALI’s Department of Enrollments and Entitlements shall be the agent of record on behalf of the Government of Baja California.

Said health services shall be given to Paulina del Carmen Ramírez Jacinto and to I. R. J. (sic) on a continuous and permanent basis until I. R. J. (sic) reaches adult age or, should I. R. J. (sic) decide to pursue higher or university studies, until he concludes his higher education.

FIVE: Psychological care for I. R. J. (sic) and Paulina Ramírez Jacinto shall be provided by the specialists of the Mental Health Center of the Baja California State Health Secretariat. For this purpose, they shall be assigned an account executive and they may avail themselves of those services whenever needed at any time following the signature of this agreement.

The account executive to be appointed on March 13, 2006, shall be the head of the Psychology Department of the Mental Health Center, who shall receive them at the premises of that Center (Calle 11 & Río Papaloapan S/N, Fraccionamiento Viña Verde, in Mexicali, Baja California).

SIX: The Government of Baja California shall provide I. R. J., at the start of each academic year, with school supplies, enrollment fees, and text books up to and including the high school level. For this purpose, it will grant, in coupons, at the start of each school year, the amount of $5,290 (five thousand two hundred and ninety pesos), through the offices of the State Secretariat for Education and Social Welfare.

The school supplies to be given to I. R. J. (sic) are those set out in the “List of school supplies” (Annex 1) and any others added to that list over time by the State Secretariat for Education and Social Welfare.

In order for these items to be provided on a timely basis, Paulina del Carmen Ramírez Jacinto shall report to the offices of the relevant school level section in the two weeks prior to the start of the corresponding school year, so she can be given the aforesaid amount.

The Government of Baja California agrees to provide I. R. J. (sic), should he decide to continue with higher or university studies following the conclusion of his high school or vocational education, with the corresponding studies at a public institution. The support shall consist of enrollment fees, transportation, and academic supplies for as long as he continues to obtain passing grades in his studies. This support shall increase over time in accordance with the needs of I. R. J. (sic) and taking into consideration the inflation index published by the Bank of Mexico.

SEVEN: On January 15, 2006, the Government of Baja California handed over, as a one-off presentation, a computer and printer.

EIGHT: On March 4 the Government of Baja California will hand over the sum of $20,000.00 (twenty thousand pesos) through the State Social Development Secretariat’s Productive Projects program, to help Paulina del Carmen Ramírez Jacinto in setting up a microenterprise. In implementing this project, she will receive direct assistance from the aforesaid Productive Projects office.

These advisory services shall be provided by the productive projects director of the Social Development Secretariat, at its premises located on the second floor of the executive branch building (Calzada Independencia No. 994, Civic and Commercial Center, Mexicali, Baja California). This assistance shall be provided in three-hour sessions over four weeks (for a total of four sessions) and shall commence once this agreement has been signed.

NINE: The Government of Baja California shall deliver to Paulina Ramírez on March 31, 2006, the sum of $265,000 (two hundred and sixty-five thousand pesos) as a one-off payment for moral damages.

TEN: The Government of Baja California offered a Public Acknowledgement of Responsibility in accordance with the terms set out in the documents attached to this agreement, published in the local newspapers La Voz de la Frontera and La Crónica on December 30, 2005, (Annex 2) as well as in the Official Gazette of the State of Baja California on February 10, 2006 (Annex 3).

ELEVEN: The Government of Baja California, through the Directorate of Legislative Studies and Projects, shall submit to and promote before the State Congress the legislative proposals submitted by the petitioners and agreed on with the state government.

For this purpose a working committee was set up, comprising both parties; this committee is currently working on a final proposal, which is to be presented no later than the last day of April, 2006. Once the legislative proposal agreed on by the parties has been made available, it will be submitted to the Baja California State Congress on May 16, 2006 (Annex 4; draft under analysis by the parties).

As regards the proposed amendment of Article 79 of the Regulations of the Organic Law of the Office of the Attorney General for Justice and the proposed circular from the Health Secretariat, the Government of the State of Baja California agrees, within the confines of its competence and powers, to begin the corresponding legal formalities as requested by the petitioners during the first half of April 2006 (Annexes 5 and 6).

Additionally, the local government agrees to schedule the training courses to be conducted by the petitioners, as agreed on at the technical analysis meeting held in Mexicali, Baja California, on January 12, 2006.

TWELVE: The Mexican State, through the Health Secretariat, agrees to:

1.         Conduct a national survey, involving state representation, to assess the enforcement of Official Mexican Standard NOM 190-SSA1-1999 regarding medical assistance in cases of domestic violence, and to measure progress with the implementation of the National Program for the Prevention and Attention of Domestic, Sexual, and Violence against Women.

2.         Update the aforesaid Official Standard, to expand its goals and scope and to expressly include sexual violence occurring outside the family context. To this end, the petitioners shall be given the preliminary draft of the amendments to the Standard, so they can present whatever comments they deem relevant to the National Consultative Committee for Standardization and Disease Control and Prevention.

3.         Draw up and deliver a circular from the federal Health Secretariat to the state health services and other sector agencies, in order to strengthen their commitment toward ending violations of the right of women to the legal termination of a pregnancy, to be sent out no later than the second half of March 2006.

4.         Through the National Center for Gender Equality and Reproductive Health, conduct a review of books, indexed scientific articles, postgraduate theses, and documented governmental and civil society reports dealing with abortion in Mexico, in order to prepare an analysis of the information that exists and detect shortcomings in that information, to be delivered to the petitioners in November 2006.

670.          On March 11, 2008, a working meeting was held with the parties. At that meeting the parties agreed that the following points needed follow-up in relation to the friendly settlement agreement:

-           School Support: The sum already set in the agreement shall be paid, for which the government of the State shall develop a mechanism to ensure it is handed over on a timely basis, which will be within 30 days of the beginning of the school year.

-           Legislative Reform: The State will seek to foster lobbying of the new local congress to encourage the amendment of Article 136 of the local Criminal Code, Article 20 (f, XI) of the Code of Criminal Procedure, and add 22 bis and 22 bis 1 of the health law.

-           Training: The State will seek to take initiatives with the appropriate offices to hold training courses, after receiving a proposal from the petitioners.

-           Circular: The State will seek, with the appropriate offices, to see to it that the local circular is published in the official gazette of the State. Both parties undertake to continue a dialogue on this point of the agreement.

-           Productive Project: The State shall inform the petitioners on implementation of this point, and a copy of the permit will be given to them. The State will take up anew the commitment to give the technical training course for the productive project.

671.          By means of a communication dated November 12, 2009, the Commission requested the parties to provide updated information. 

672.          By means of a communication dated October 9, 2009, the State reiterated full compliance with the friendly settlement agreement with regard to school support.

673.          Regarding promotion of the legislative reform agreed upon in the eleventh item of the friendly settlement agreement, the presentation of institutional letters constitutes a conclusive action in this aspect.  Indeed, the State pointed out that these official letters are the institutional communication mechanism that authorities have at their disposal to provide evidence of their orders, instructions, recommendations, information, petitions, or positions on issues of interest.  By virtue of the above, the State considered that it had completely complied with the present item of the agreement. 

674.          Regarding training, the State indicated that the petitioners had not contacted the state authorities of Baja California for the purpose of agreeing upon a timetable for providing courses.  As for the State, it asserted that it does not require publication of the circular issued by the Health Secretary on October 4, 2006 in the states official gazette. It pointed out that the above stems from the fact that the contents of the above-mentioned circular envisages provisions previously found in legal frameworks already in force and which were duly published for their entry into force.  The State added that this circular does not provide additional rights or guarantees for women with respect to nonpunishable abortion cases and that it does not generate rights and obligations for the medical staff that might be different from the legal provisions. The State considers that this point of the agreement has totally been complied with.

675.          With respect to the production project, the State indicated that the Government of the State of Baja California has at all times shown willingness to support Ms. Paulina del Carmen Ramírez Jacinto in formalizing her business, as well as the land where she is currently operating, and pledged to the interested party to exonerate her from paying for State procedures and to even cover the corresponding payment to the municipal authority for the issuance of the land-use permit.  It also indicated that Ms. Paulina del Carmen Ramírez Jacinto had not appeared at the training course that she was invited to take, claiming that, as she did not have the land-use permit, she could not trust that her business would operated. 

676.          It indicated that it has complied with the agreement, in addition to the amendment of NOM-190-SSA1-1999, "Medical assistance in cases of domestic violence,” which was amended as NOM-046-SSA2-2005 "Prevention and attention of domestic and sexual violence and violence against women." It specified that this norm was published in the Official Register of the Federation on April 16, 2009.

677.          The State finalized its presentation, repeating its willingness and commitment to comply with the agreements reached with Ms. Paulina del Carmen Ramírez Jacinto.

678.          As for the petitioners, by means of a communication dated December 14, 2009, they reported on school support, indicating that although to date school support had been provided, in previous years it was not provided on time.  Therefore, they indicated that it is a matter of concern that the mechanism to ensure its future compliance has not as yet been developed.  They indicated that this mechanism is also aimed at preventing Paulina from depending on the good will of those who are responsible for providing this school support and at confirming full compliance with an international commitment.

679.          Regarding legislative reform, the petitioners reported that the commitment to submit the respective bills of reform was fulfilled on September 5, 2006, although the obligation to promote it remained unmet.  The petitioners claimed that the State has partially and insufficiently complied with this item, as the lobbying that was promised was missing, and that after the constitutional reform it is urgent that legislative reforms be adopted as well, to thus ensure that, at least in cases such as rape, women can gain access to abortions practiced in safe conditions and in the framework of the law.

680.          With respect to training, the petitioners pointed out that they hope to deal with this matter in the future using a practical approach with the IACHR in the context of a working meeting.  Moreover, the petitioners reported that, to comply with the terms of the friendly settlement agreement and to effectively guarantee that the events suffered by Paulina Ramírez would not be repeated, it is indispensable for the State to take action so that the circular of Baja California issued by the Health Secretariat of this state shall be published quickly in the official gazette of the state of Baja California.

681.          Regarding the obligation of the State to update NOM-190-SSA1-1999 "Medical assistance in case of domestic violence," although it is certain that it was amended and published in April 2009 as NOM-046-SSA2-2005 "Prevention and attention of domestic and sexual violence and violence against Women,” there were certain matters of concern.  Indeed, it was pointed out that, although the norm was updated, the approved version includes substantial changes that, in the case of rape, would make an abortion, “instead of an obligation and a right, a mere possibility which, according to the language of the regulation, could be construed as an action to be decided by medical staff.”

682.          With respect to the production project, the petitioners reported on the procedures with the Government of the state of Baja California, indicating that there was no willingness or support from those who had the obligation to facilitate these procedures.  They specified that, although it involves the jurisdiction of two levels of government that are different and independent, this does not prevent the Government from interceding in the competent bodies to sensitize them about Paulina’s needs.

683.          The Commission concludes that the State has complied partially with the aforementioned recommendations. As a result, the Commission shall continue to monitor the items that are pending.

Case 11.381, Report No. 100/01, Milton García Fajardo (Nicaragua)

684.          In Report No. 100/01 of October 11 2001, the Commission concluded that the Nicaraguan State: (a) violated, 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, the right to humane treatment, contained in Article 5 of the American Convention on Human Rights; and (b) violated, to the detriment of Milton García Fajardo and the 141 workers who are included in this complaint, the rights to judicial guarantees and judicial protection, and economic, social, and cultural rights, protected by Articles 8, 25, and 26 of that international instrument, in relation to the general obligation to respect and ensure the rights, provided for in Article 1(1) of the same Convention.

685.          According to the complaint, on May 26, 1993, the customs workers went on strike after having sought unsuccessfully to negotiate, through the Ministry of Labor, a set of petitions that demanded, among other things, the nominal reclassification of the particular and common positions at the General Bureau of Customs, labor stability, and 20 percent indexing of salaries in keeping with the devaluation. The Ministry of Labor resolved, on May 27, 1993, to declare the strike illegal, arguing that Article 227 of the Labor Code did not permit the exercise of that right for public service workers or workers whose activity is in the collective interest. The petitioners also alleged that the Police made disproportionate use of force during the strike held by the workers on June 9 and 10, 1993.

686.          The Commission made the following recommendations to the State:

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.

687.          On November 12, 2009, the Commission requested the State and the petitioners to provide information about the status of compliance with the recommendations.

688.          On December 15, 2009, the State reported that it was impossible to comply with the first recommendation because, by virtue of domestic legislation, the statute of limitations for the crime had come into force, which prevented the corresponding investigations from being conducted.  Concretely, he indicated that the domestic legal provisions regarding the statute of limitations in criminal proceedings are a previously established legal norm that is currently in force, setting limits for the investigation, prosecution and criminal proceedings, and as long as these provisions are not amended or reformed, they constitute an objective legal obstacle to compliance with this recommendation. In this regard, it repeated that compliance with this recommendation was not possible and requested the IACHR to declare that compliance had been completed.

689.          In addition, the State pointed out, regarding compliance with the agreements reached with most of the former Customs employees, that these agreements are in the process of being fulfilled to the extent that it is feasible in the country and indicated that, to date, it had proceeded to reinstate 43 former employees and that there is full willingness to continue this process.  Regarding the payment of reparations, it indicated that the State acted to the extent of its financial capacity to provide a positive response to the petitioners.  Finally, regarding the proposal submitted by the petitioner Alfredo Barberena regarding the six victims who did not sign the reparations agreement with the State, it indicated that it does not have the capacity to take up new and different agreements, and because of this the agreement signed on June 7, 2007 is available for those who wish to adhere to it, without privileges or preferential treatment, in line with Nicaragua’s economic reality.

690.          As for the petitioners, in 2009, they reported that the State had not investigated or punished those responsible for injuries to the victims.  As for reparations, they reported that the State had not fulfilled the commitments made with the victims who signed the agreement, because they have only paid part of the amount that was pledged and have not recognized social security quota payments, nor have they reinstated most of the employees into the public sector.  They also reiterated the need for the State to sign a reparation agreement with the victims who had not participated in the agreement of 2007, on the basis of international human rights standards referring to reparation.

691.          The IACHR appreciates the agreement signed between the State and most of the victims in 2007.  Nevertheless, it once again urges the State to present the parameters used to calculate the compensation figures stemming from this agreement.  Regarding the investigation to determine the criminal liability of all the perpetrators of the injuries that were caused to the detriment of the victims, the IACHR reminded the State of its obligation to investigate and punish those responsible for the human rights violations.

692.          The Commission concludes that the State has complied partially with the aforementioned recommendations. As a result, the Commission shall continue to monitor the items that are pending.

Case 11.506, Report No. 77/02, Waldemar Gerónimo Pinheiro and José Víctor Dos Santos (Paraguay)

693.          In Report No. 77/02 of December 27, 2002, the Commission concluded that the Paraguayan State: (a) had violated, with respect to Waldemar Gerónimo Pinheiro and José Víctor Dos Santos, the rights to personal liberty and judicial guarantees, enshrined at Articles 7 and 8 of the American Convention, with respect to the facts subsequent to August 24, 1989; and (b) had violated, with respect to Waldemar Gerónimo Pinheiro and José Víctor Dos Santos, the rights of protection from arbitrary arrest and to due process established by Articles XXV and XXVI of the American Declaration on the Rights and Duties of Man for the events that occurred prior to August 24, 1989.

694.          The IACHR made the following recommendations to the State:

1.         Make full reparation to Mr. Waldemar Gerónimo Pinheiro, which includes appropriate compensation.

2.         Make full reparation to Mr. José Víctor Dos Santos, which includes appropriate compensation.

3.         Such reparation should be commensurate with the harm done, which implies that compensation should be greater for Mr. José Víctor Dos Santos, given that he spent eight years in prison, with no legal justification for his detention.

4.         Order an investigation to determine who was responsible for the violations ascertained by the Commission and punish them.

5.         Take the necessary steps to prevent such violations from recurring.

695.          On November 13, 2009, the Commission requested the parties to provide updated information; nevertheless, at the close of the present Annual Report, the parties had not submitted any information regarding compliance with the above-mentioned recommendations of the IACHR.  Because of this, the Commission concludes that compliance with the recommendations continues to be pending. As a result, the Commission shall continue to monitor its compliance.

Case 11.800, Report No. 110/00, César Cabrejos Bernuy (Peru)

696.          In its Report No. 110/00 of December 4, 2000, the IACHR concluded that the Peruvian State had continuously breached the judgment of the Supreme Court of Peru of July 5, 1992, which ordered the reinstatement of Mr. Cesar Cabrejos Bernuy to his position as colonel in the National Police of Peru, and that thereby it had violated, to the detriment of Mr. Cabrejos Bernuy, the right to judicial protection enshrined in Article 25 of the American Convention and the generic duty of the State to respect and ensure the rights of persons under its jurisdiction enshrined in Article 1(1) of the Convention.

697.          The Commission made the following recommendations to the 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.

698.          First, in relation to implementation of the recommendations, it should be recalled that with the communication of December 3, 2003, the Peruvian State reported that by Supreme Resolutions Nos. 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 given recognition for the time of service computed from the time he was retired, i.e. from March 26, 1997 until July 10, 2001.

699.          By communication of October 31, 2008, the IACHR asked both parties to submit up-to-date information on the implementation of the above-noted recommendations. The IACHR did not receive any response from the parties within the time set.[47]

700.          On November 10, 2009, the Commission requested both parties to provide updated information on progress in the process of implementing the recommendations. 

701.          By means of note 7-5-M/826 received on December 14, 2009, with annexes, the State indicated, in accordance with ruling No. 19627-09-DIRPEN-PNP/UNIASJUR of October 30, 2009, that it had complied with the three recommendations specified in report 110/00 of December 4, 2000.  Nevertheless, it did not explain what the reparations for moral and material injury which it supposedly granted to the victim consisted of.

702.          At the time of drafting the present chapter, the petitioner had not provided any information on the status of the implementation of the recommendations.

703.          As a result, the IACHR does not have enough elements to judge whether the State has totally complied with the recommendations contained in the report or not. Therefore, the Commission shall continue to monitor its compliance.

Case 11.031, Report No. 111/00, Pedro Pablo López González et al. (Peru)

704.          In Report No. 111/00 of December 4, 2000, the IACHR concluded that the Peruvian State: (a) through members of the National Police and the Navy of Peru detained Messrs. 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 on May 2, 1992, in the human settlements of “La Huaca,” “Javier Heraud,” and “San Carlos,” located in the district and province of Santa, department of Ancash, and that subsequently it proceeded to disappear them; (b) that accordingly it was responsible for the forced disappearance of the victims identified above, thereby violating the right to liberty (Article 7), the right to humane treatment (Article 5), the right to life (Article 4), the right to juridical personality (Article 3), and the right to an effective judicial remedy (Article 25) enshrined in the American Convention on Human Rights; and (c) that it had breached the general obligation to respect and ensure these rights enshrined in the Convention, in the terms of Article 1(1) of that Convention.

705.          The Commission 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.

706.          By communication of October 31, 2008, the IACHR asked both parties to submit up-to-date information on implementation of the above-noted recommendations. The IACHR not receive information from the State within the time set.[48]

707.          By communication of December 5, 2008, the petitioners submitted follow-up information.  Specifically, with respect to the first recommendation of the IACHR, the petitioners reported that in prosecuting the persons allegedly responsible for the disappearance of Pedro López González and the other victims from “El Santa,” the State has been taking investigative actions with respect to the persons allegedly responsible for the facts. Nonetheless, they indicated that five years after the beginning of the criminal proceeding and three years since the beginning of the oral trial, to date not all of the persons responsible for these facts have been sanctioned, which translates into a violation of the right of the victims’ next-of-kin to know the circumstances in which their loved once disappeared. They noted that in effect, the Second Special Criminal Court opened a criminal proceeding on February 14, 2003, against 27 persons for the crimes against life, the body, and health – aggravated homicide and against liberty, in the form of aggravated kidnapping to the detriment of the victims, and that the oral trial began on August 15, 2005, yet to date it has not concluded with the issuance of a conviction or an acquittal.

708.          They indicated, nonetheless, that seven of those indicted confessed; one, upon early termination of the process, accepting the charges brought against him, has been sentenced to six years in prison and the payment of a monetary sum as civil reparation; and four of those indicted signed effective cooperation agreements with the Public Ministry, which were eventually approved. They also note that the sanctions imposed on some of those responsible have come about as a result of their initiative, in order to get the benefits of effective cooperation, which at the end of the day may have translated into the impossibility of identifying the whereabouts of the victims’ remains given that they had not given that information when accessing the benefit. 

709.          As for the recommendation to consider without effect any internal, legislative, or other measure that tends to impede the investigation, prosecution, and punishment of the persons responsible for the victims’ forced disappearance, the petitioners reported that by virtue of the judgments issued by the Inter-American Court in the Barrios Altos case, the Peruvian State has not considered the amnesty laws to be an obstacle to the prosecution and sanction of the persons responsible for the forced disappearance of the victims in this case. They also noted that said situation motivated pronouncements from the Peruvian Constitutional Court on the lack of effect of those provisions. They indicated that notwithstanding the foregoing, recently two proposed laws (No. 2844/2008-CR and No. 2848/2008-CR) were drawn up whose eventual approval could constitute a step backwards in the implementation of this recommendation. They indicated, in this respect, that such proposed laws have been presented to the Congress of the Republic on November 6, 2008, proposing that amnesty and pardon be granted, respectively, for members of the Armed Forces and National Police who have participated in actions related to human rights violations.

710.          With respect to the adoption of the measures necessary for the victims’ next-of-kin to receive adequate and timely reparation, the petitioners reported that while the Peruvian State has designed a program of reparations, supplement by the approval of Law No. 28592 “Law of the Comprehensive Plan of Reparations” and its regulation, to date measures are pending adoption for making the payment of individual compensation to the victims’ next-of-kin as well as non-monetary reparations, specifically, reparations in respect of housing. With respect to the housing benefit they indicated that the Peruvian State adjudicated to the Ministry of Justice a piece of land located in Huapicha, in order to give a lot to the next-of-kin of the 200 victims included in section (c) and (d) of the Joint Press Release, with respect to which the State continues undertaking actions for clearing title and preparing that piece of land for the purpose of adjudicating title to the lots. Nonetheless, to date other lots have yet to be located for the victims’ next-of-kin who have not been included in the list of beneficiaries of the land located in Huachipa. Finally, with respect to the health benefit they indicated that the Executive Secretariat of the High-level Multisectoral Commission (CMAN) communicated to APRODEH that the list of beneficiaries was submitted to the Integrated Health System (SIS) so that it can be submitted to the country’s health centers, so the persons included in those lists can affiliate with them.

711.          On November 10, 2009, the Commission requested both parties to provided updated information on progress in implementing the recommendations.  At the time of the drafting of the present chapter, the State had not responded to this request for information.

712.          By means of a communication dated December 10, 2009, the petitioners indicated that, to date, no ruling in the criminal proceedings in the domestic system had been issued with respect to the disappearances of “El Santa” and that it had not been possible either to locate the remains of the victims.

713.          They reported in addition that projects Nos. 2844/2008-CR and 2848/2008-CR to grant amnesty and pardon, respectively, to the members of the Police Force charged with participating in the violation of human rights continue to be examined by the Justice and Human Rights Commission of Congress.

714.          They finally pointed out that, to date, the measures for compliance with the non-monetary reparations for the next-of-kin of the victims are still pending.

715.          Based on the above-mentioned, the IACHR concludes that the State has partially complied with the recommendations set forth in the report. As a result, the Commission shall continue to monitor the items that are pending. 

Case 11.099, Report No. 112/00, Yone Cruz Ocalio (Peru)

716.          In Report No. 112/00 of December 4, 2000, the IACHR concluded that the Peruvian State: (a) through members of the National Police detained Mr. Yone Cruz Ocalio on February 24, 1991, at the agricultural station of Tulumayo, Aucayacu, province of Leoncio Prado, department of Huánuco, Peru, from where they were taken to the Military Base of Tulumayo, and subsequently proceeded to disappear him; (b) that as a consequence it was responsible for the forced disappearance of Mr. Yone Cruz Ocalio; (c) that it therefore violated the right to liberty (Article 7), the right to humane treatment (Article 5), the right to life (Article 4), the right to juridical personality (Article 3), and the right to an effective judicial remedy (Article 25) enshrined in the American Convention on Human Rights; and (d) that it breached its general obligation to respect and ensure these rights enshrined in the Convention, in the terms of Article 1(1) of that instrument.

717.          The Commission made the following recommendations to the 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.

718.          By communication of October 31, 2008, the IACHR asked both parties to provide up-to-date information on implementation of the above-noted recommendations.  The IACHR did not receive any response from the petitioners within the time set.

719.          The State, by communication of December 5, 2008, reported, regarding the investigation into the facts, that by resolution of October 25, 2002, the Specialized Prosecutor on Forced Disappearances, Extrajudicial Executions, and Exhumation of Clandestine Mass Graves ruled to remove to the Mixed Provincial Prosecutor’s Office of Aucayacu the matters in the records that include, as persons injured, Yone Cruz Ocalio, among others. It indicated that by Resolution of the Mixed Provincial Prosecutor’s Office of Leoncio Prado-Aucayacu of August 9, 2004, the Prosecutor considered that it was pertinent to gather more information regarding the alleged commission of the crime of kidnapping of Mr. Cruz Ocalio and ruled to “expand the prosecutorial investigation and that consequently the matter is forwarded to the local Police Station of the Peruvian National Police to perform the following investigative steps: first, that it take a statement from the injured party; second, that it take the statement from the person investigated … with respect to his alleged participation in the facts investigated; and that other investigative steps be taken as deemed useful for clarifying the facts.”

720.          In addition, the State indicated that the Provincial Prosecutor of the Office of the Specialized Prosecutor against Terrorism and Crimes against Humanity for the Judicial District of Huánuco presented report No 010-2006-MP-FPECTy LH-TM related to the case of Mr. Yone Cruz Ocalio. That report notes that in the investigation pursuant to the Resolution of August 22, 2008, by which it was decided to expand the investigations in said prosecutorial office, the Provincial Prosecutor of the Mixed Prosecutorial Office of Aucayacu was asked to send a certified copy of the criminal complaint. In addition, it is noted that the Prosecutor of the Mixed Prosecutorial Office of Aucayacu sent a certified copy of Case File 39-2008 against the accused … for the alleged crime against the life, body, and health to the detriment of Mozombique Quiñones et al., accordingly that case file is still pending an evaluation by the Office of the Specialized Prosecutor against Terrorism and Crimes against Humanity of the Judicial District of Huánuco considering that “they are tomes of 750 and 397 folios, respectively, and due to the number of injured parties, in addition to the excessive workload of the prosecutor’s office.”

721.          As for implementation of the recommendations, it should be recalled that the Government of Peru, in relation to the second recommendation, has repeatedly indicated that there is a practice in its institutions, based on the judgment of the Inter-American Court in the Barrios Altos case, that amnesties cannot be validly raised in opposition to investigations undertaken to identify and subsequently sanction persons responsible for human rights violations. In this sense, the Peruvian State has indicated that the solution to the procedural obstacle posed by amnesty laws was duly established by that judgment of the Inter-American Court, which by disposition of that Court is of general scope for any case in which such laws have been applied. In that Report No. 210-2008-JUS/CNDH-SE/CESAPI, the State noted that no consideration has been given to derogating the amnesty laws since it would be tantamount to implicit recognition of its effect in time, and therefore would be applicable based on the criminal justice principle of benign retroactivity.

722.          On November 10, 2009, the Commission requested both parties to provide updated information on progress in implementing the recommendations. At the time of the drafting of the present chapter, none of the parties had responded to this request for information.

723.          Based on the above-mentioned, the IACHR concludes that the State has partially complied with the recommendations set forth in the report. As a result, the Commission shall continue to monitor the items that are pending. 

Cases 10.247 et al., Report No. 101/01, Luis Miguel Pasache Vidal et al. (Peru)

724.          In Report No. 101/01 of October 11, 2001, the IACHR concluded that the Peruvian State was responsible for: (a) violation of the right to life and to judicial guarantees and judicial protection enshrined at Articles 4, 8, and 25 of the American Convention; (b) the violation of the right to personal liberty established in Article 7 of the American Convention; (c) the violation of the right to humane treatment enshrined in Article 5 of the American Convention, and of its duty to prevent and punish torture established in Articles 1, 6, and 8 of the Inter-American Convention to Prevent and Punish Torture; (d) the violation of the right to recognition of juridical personality enshrined in Article 3 of the Convention; and (e) the violation of the rights of the child established at Article 19 of the American Convention. All of these violations were found to the detriment of the persons indicated in the report.

725.          The Commission 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.

726.          By communication of October 31, 2008, the IACHR asked both parties to submit up-to-date information on the implementation of the above-noted recommendations.

727.          By communication of December 5, 2008, the State submitted report No. 211-2008 JUS/CNDH-SE/CESAPI with respect to case No 10,247 - Luis Pasache Vidal et al., indicating that it would send in supplemental information in relation to the other persons injured in report No. 101/01.[49]  In particular, the state reported that the Office of the Second Supra-provincial Criminal Prosecutor of Lima formalized a complaint and an amended complaint lodged against the accused … for aggravated homicide and kidnapping to the detriment of Luis Miguel Pasache Vidal.  In effect, it is indicated that by complaint No. 211-2002 of December 18, 2007, it is noted with respect to the death of Mr. Pasache Vidal and Mr. Sócrates Javier Porta Solano that, in view of the indicia, and the version of a witness, the alleged perpetrators of the above-noted deaths had been members of the self-styled “Comando Rodrigo Franco,” accordingly said action was necessarily carried out with the knowledge and approval of the accused … in his capacity as the head of the group. Finally, it is indicated that there are indicia suggesting that the way in which those persons were executed suggests that it was done with “unnecessary suffering,” as the autopsy by the medical examiner indicates that Mr. Pasache Vidal had hematomas that show that he was submerged in the sea, which caused his death.

728.          It should be recalled that the Government of Peru, in relation to the first recommendation, has on several occasions noted that there is a practice on the part of its institution, based on the judgments of the Inter-American Court of Human Rights in the Barrios Altos case, to the effect that amnesties cannot be validly raised in opposition to the investigations undertaken to identify and punish the persons responsible for human rights violations. In this sense, the Peruvian State considers that the solution to the procedural obstacle posed by the amnesty laws was duly established by those judgments of the Inter-American Court, which by disposition of that Court are of general scope over any case in which the laws in question have been applied. Therefore, it has not considered derogating those laws.

729.          By communication of December 5, 2008, the petitioners submitted information with respect to the status of the investigations in relation to a series of cases encompassed in report No 101/01.  The representatives of the victims included in Case No. 10,247 – Luis Pasache Vidal et al. – indicated that the Fourth Supra-provincial Criminal Court, by resolution of May 28, 2008, ordered that a criminal proceeding be opened against two accused as alleged immediate perpetrators and against one accused as a mediate perpetrator of the crime of kidnapping and aggravated homicide (with great cruelty) considered crimes against humanity to the detriment of Luis Pasache Vidal.  In relation to Case No. 11,680, whose victim is Mr. Moisés Carbajal Quispe, they indicate that the Second Transitory Criminal Chamber of the Supreme Court ruled that there was no nullity in the judgment of January 31, 2008, in the grounds for absolution of the accused of the indictment, for crime against the life, body, and health, in the modality of aggravated homicide, to the detriment of Moisés Carbajal Quispe, it being found that the matter is still in the investigative phase. As for Case No. 11,132, whose victim is Ms. Edith Galván Montero, it was reported that on February 17, 2008, the Office of the Fourth Supra-provincial Criminal Prosecutor notified APRODEH of the issuance of the resolution of January 7, 2008, by which it was resolved that the proceedings should be archived definitively, on the grounds, among others, “that despite all the investigative steps taken and evidence produced in this investigation there has been no determination of the real existence of the unlawful act investigated, and obviously the alleged perpetrators have not been individually identified.”  Nonetheless, they report that on September 22, 2008, it was ordered to find the complaint remedy (recurso de queja) filed against the resolution of the Office of the Fourth Supra-provincial Criminal Prosecutor to be well-founded, ordering the continuation of the investigations into the forced disappearance of Edith Galván Montero.

730.          As for the recommendation of striking down all internal measures, legislative or otherwise, that tend to impede the investigation, prosecution, and punishment of the persons responsible for the forced disappearance of the victims, the petitioners reported that by virtue of the judgments handed down by the Inter-American Court in the Barrios Altos case, the Peruvian State has not considered the amnesty laws to be an obstacle for prosecuting and punishing the persons responsible for the forced disappearance of the victims in this case, noting, moreover, that this situation had motivated pronouncements by the Peruvian Constitutional Court on the lack of effect of those norms. They also indicated that this notwithstanding, recently two proposed laws were drawn up (No. 2844/2008-CR and No. 2848/2008-CR) whose eventual adoption would constitute a step backwards in implementing this resolution. They indicated, in this respect, that such legislative proposals have been introduced to the Congress of the Republic on November 6, 2008, proposing an amnesty and pardon, respectively, for members of the Armed Forces and National Police who have participated in actions related to human rights violations.

731.          With respect to the adoption of the measures needed for the victims’ next-of-kin to be able to receive adequate and timely reparation, the petitioners reported that while the Peruvian State has designed a reparations program, supplemented by the adoption of Law No. 28592 “Law on the Comprehensive Reparations Plan” and its regulation, no individual compensation has yet to be paid to the next-of-kin of the victims in the case, nor have measures been adopted to implement non-monetary reparations, specifically reparations in housing. With respect to the benefit of housing, they indicated that the Peruvian State adjudicated to the Ministry of Justice the land located in Huapicha, so as to give a lot to the next-of-kin of the victims included in sections (c) and (d) of the Joint Press Release, with respect to which the State continues to take actions to clear title and prepare that land for the purpose of adjudicating title to the lots. Nonetheless, other lots have yet to be located for the next-of-kin of the victims who have not been included in the lost of the beneficiaries of the land located in Huachipa.  They specified that the next-of-kin of the victims in cases Nos. 10,247, 10,472, 10,994, 11,051, 11,057, 11,088, 11,161, 11,292, 10,744, 11,040, 11,132, 10,431, and 11,064 are included in the list of beneficiaries of the land at Huachipa.  The next-of-kin of the victims in cases Nos. 10,805, 10,913, 10,947, 11,035, 11,065, 11,680, 10,564, 11,126, 11,179, and 10,523 are waiting for a piece of land to be located before they will be able to have lots adjudicated to them.

732.          With respect to the health benefit, they noted that the Executive Secretariat of the High-level Multisectoral Commission (CMAN) communicated to APRODEH that the list of beneficiaries was sent to the Integrated Health System (SIS) for it to be forwarded to the country’s health centers, so that the persons in those lists could become affiliates. In addition, the petitioners reported that the Peruvian State ratified the Inter-American Convention on Forced Disappearance of Persons on February 8, 2002.

733.          The petitioners and legal representatives of the victims in case No 11,064, whose victims are Flaviano Sáens Chuquivilca, Edgar Chaguayo Quispe, Miriam Lidia Navarro Concha, Miguel Angel Cieza Galván, Socimo Curasma Sulla, Justiniano Fredy Vicente Rivera, Augusto Galindo Peña, Juana Ñahui Vilcas, Luis Aníbal Naupari Toralva, Alejandro Tunque Lizama, Eugenio Curasma Sulla, María Sánchez Retamozo, Edwin Ramos Calderón, Gladys Espinoza León, Fernando Sáenz Munarris, Hugo Puente Vega, and Peter David Cosme Ureta, reported that the investigations have been under way for more than seven years and to date they have yielded no significant advances. They noted that the prosecutorial office in charge of the case does not have a plan for collecting evidence, and that as it is not a specialized prosecutorial office, it has an excessive workload for it investigates and prosecutes common crimes with an accused in jail, which are given priority, to the detriment of cases such as this one.  As regards Case No. 10,744, whose victim is Arturo Torres Quispe, they indicate that it is a case that has seen no progress in the investigations given that the possible perpetrators have not been identified, and it has been inactive for several years. As for the question of reparations, they indicated that very little progress has been made, and that only some next-of-kin have benefited. They indicate that the greatest difficulties are in health care, given that the beneficiaries in the most remote parts of the country apparently were not registered as affiliates, or not all the beneficiaries are registered, requirements are demanded of them that are not provided for as conditions for securing medical care, they must register in plans that are not the right ones, and they do not receive the corresponding medical exams, although they should be covered by insurance through the Integrated Health Service.  In terms of the housing benefit they indicated that the Ministerial Resolution on adjudication had not been issued, nor had the title been processed for the beneficiaries. As for the education benefit, they indicated that none of the persons represented by CEAS has acceded to this type of reparation. With respect to Case No.10,433 they indicated that more than two years have elapsed and the Forensic Anthropology Team has not issued the respective forensic report, and the DNA tests have not been done of the 55 human remains exhumed at the Jaula cemetery, seriously jeopardizing the investigation and the right to the truth. As for that case and case No. 10,551, they reiterated the difficulties in terms of the reparations in health, housing, and education detailed above.

734.          On November 24, 2009, the Commission received information from the petitioners about the total failure to comply with the Commission’s recommendations for case 11.064, included in the report whose implementation is reviewed in the present section.  Specifically with regard to the situation of the victim Miguel Ángel Cieza Galván, it was reported that the State, despite commitments made in the framework of a working meeting held in 2008 at the Commission’s headquarters, went back on its intention to provide reparations for the victim until the National Reparations Plan starts being applied, which is supposed to be implemented in the course of 2010.

735.          On November 10, 2009, the Commission requested the parties to provide updated information regarding progress in implementing the recommendations.  At the time of drafting the present chapter, the State had not responded to this request for information.

736.          By means of a communication dated December 10, 2009, the petitioners reported that projects No 2844/2008-CR and 2848/2008-CR to grant amnesty and pardon, respectively, to the members of the Police Force charged with participating in the violation of human rights continue to be examined by the Justice and Human Rights Commission of Congress.

737.          Regarding the investigations conducted in domestic jurisdiction, they indicated that in general there is no progress except with the facts of case No. 11.051.  On October 6, 2009, the hearing of evidence against Santiago Martín Rivas and Eudes Najarro Gamboa as the alleged perpetrators of the crime was held, pursuant to Article 108, third paragraph of the Criminal Code.

738.          They pointed out that, in addition, to date, the measures for complying with the program of non-monetary reparations for the next-of-kin of the victims are still pending.

739.          As a result, the IACHR concludes that the State has partially complied with the recommendations set forth in Report No. 101/01. Therefore, the Commission shall continue to monitor the items that are pending. 

Case 12.191, Report No. 71/03, María Mamérita Mestanza (Peru)

740.          On October 10, 2003, by Report No. 71/03, the Commission approved a friendly settlement agreement in the case of María Mamérita Mestanza.

741.          According to the friendly settlement agreement, the State:

1.         Recognized its international responsibility for the violation of Articles 1.1, 4, 5, and 24 of the American Convention on Human Rights, as well as Article 7 of the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women in the harm done to victim María Mamérita Merstanza Chávez.

2.         Promised to undertake a thorough investigation of the facts and apply legal punishments to any person determined to have participated in them, as either planner, perpetrator, accessory, or in other capacity, even if they be civilian or military officials or employees of the government.  Report any ethical violations to the appropriate professional association so that it can apply sanctions to the medical personnel involved in these acts, as provided in its statutes.

3.         Awarded one-time compensation to each of the beneficiaries of ten thousand U.S. dollars ($10,000.00) for reparation of moral injury, which totals eighty thousand U.S. dollars ($80,000.00); and pledge to compensate other damages as established in the agreement.

4.         Awarded a one-time payment to the beneficiaries of seven thousand U.S. dollars ($7,000.00) for psychological rehabilitation treatment they require as a result of the death of María Mamérita Mestanza Chávez, and to give the husband and children of María Mamérita Mestanza Chávez permanent health insurance with the Ministry of Health or other competent entity.

5.         Pledged to give the victim’s children free primary and secondary education in public schools. The victim’s children will receive tuition-free university education for a single degree at state schools, provided they qualify for admission.

6.         Awarded an additional payment of twenty thousand U.S. dollars ($20,000.00) to Mr. Jacinto Salazar Suárez to buy land or a house in the name of the children he had with Ms. María Mamérita Mestanza. 

7.         Pledged to change laws and public policies on reproductive health and family planning, eliminating any discriminatory approach and respecting women’s autonomy.  The Peruvian State also promises to adopt and implement recommendations made by the Ombudsman concerning public policies on reproductive health and family planning, among which are those listed in the agreement.

742.          By communication of November 3, 2008, the IACHR asked both parties to submit up-to-date information on the implementation of the above-noted recommendations.

743.          By communication of December 5, 2008, the State submitted report No. 209-2008-JUS/CNDH-SE/CESAPI with information on the implementation of the clauses of the friendly settlement agreement. As regards the investigation into the facts of this case, the State reported that the Office of the Special Prosecutor for Human Rights issued a resolution on January 16, 2007, by which it removed the proceedings to the Office of the Superior Prosecutor of Cajamarca for the purpose of having indictments handed down against a series of persons allegedly involved in the facts for a series of crimes, among which one can mention the crime against the life, body, and health – unintentional homicide and exposure to danger of a dependent person with an aggravating circumstance – both crimes to the detriment of Ms. María Mamerita Meztanza.  It also indicated that in that resolution it is noted that an exhaustive investigation is in order with respect to the judges (magistrados) involved in processing the original complaint, since the family members had apparently had no timely access to justice, and it was ordered that the matter be archived definitively; as well as the need for an investigation into the conduct of the physicians who performed the autopsy. In addition, the State reported that the Office of the Specialized Provincial Prosecutor for Crimes against Human Rights ordered that the proceedings be joined to complaint No. 18-2002, whose objective is to clarify the aim of the Program for the Application of Voluntary Surgical Contraception nationally, and the alleged commission of crimes against humanity and genocide.

744.          It also indicated that by resolution of September 19, 2007, the summary was prepared of the 25 volumes that constitute the record, and several investigative measures were ordered, and that a Work Plan be drawn up that includes a social study with respect to the impact and repercussions on the family environment caused by the application of contraceptive methods, with special emphasis on tubal ligation and vasectomies.  In this respect, the State indicated that it was requesting information from the Office of the Attorney General.

745.          In addition, it reported that the Permanent Commission on disciplinary measures of the Regional Bureau of Cajamarca, on January 9, 2001, had established that two physicians were disqualified and that on January 18, 2001, one physician-obstetrician, two obstetricians, and one nurse were acquitted.

746.          Subsequently, the State indicated that from the up-to-date information submitted by the Provincial Prosecutor of the Office of the Specialized Prosecutor for Crimes against Human Rights, it appeared that given the complexity and extent of investigation No. 18-2002, the prosecutors who were in charge of that Office ordered, on several occasions, the extension of the deadline so as to continue with the inquiries as needed to fully clarify the facts. In this regard, it indicated that said prosecutorial office is presently engaged in the analysis of the entire investigation to determine whether there was some crime in the application of the Voluntary Surgical Contraception Program (Programa AQV), and if so to identify the persons allegedly responsible.

747.          With respect to the compensations, the State reported that it paid US$ 10,000 in moral damages to each of the eight beneficiaries – the husband of Ms. Mamérita Meztanza and their seven children; that it paid US$ 2,000 as actual damages for each beneficiary, and that a trust fund had been set up for this purpose of the child beneficiaries. In addition, it is indicated that US$ 20,000 was handed over to Ms. Mamérita Meztanza’s husband to purchase a plot of land or house in his children’s name. It is indicated that the purchase of a piece of land was shown.

748.          As for the health benefits, first, as regards the psychological rehabilitation treatment, the State reported that it delivered US$ 7,000 for that treatment, for the beneficiaries, and that by official note of March 5, 2008, sent by the Estudio para la Defensa de la Mujer (DEMUS), the final report of the psychological work was submitted on March 3, 2008.  That report notes that as a result of the treatment, which consisted of 32 sessions from April 2006 to January 2008, greater confidence and relief had been attained for the beneficiaries, among other things. It also reported that all the beneficiaries had been incorporated into the Integral Health System with the appropriate plan that corresponds to the particular circumstances of each of them.

749.          With regard to the educational benefits, particularized information was given with respect to Ms. Mamérita Meztanza Chávez’s seven children.

750.          In addition, the State presented information on implementation of the eleventh clause of the friendly settlement agreement with regard to public policies on reproductive health and family planning. On this occasion, the State reported that in July 2004 the National Health Strategy for Sexual and Reproductive Health was established; that the technical standard for family planning was updated that indicates that any complication attributable to and verified to result from the use of contraceptives provided by the establishments of the Ministry of Health should be reported as soon as it is detected, and that all deaths and grave medical problems attributable directly to the use of contraceptive methods will be investigated to determine their causes; that in the context of the Health Strategy for Sexual and Reproductive Health workshops were programmed for professionals involved in reproductive health care for updating on contraceptive methods; that a total of 565 obstetricians, 30 physician obstetricians, 46 general physicians, and five nurses were trained; that educational materials on sexual and reproductive health have been given to the health services of the regions, nationwide; that in 2006, a series of workshops was scheduled on managing gender-based violence, directed to physicians, psychologists, and obstetricians from different regions of the country; that meetings were held to raise awareness for 410 members of the National Police of Lima, and for 69 members of the police forces in Arequipa, La Libertad, and Ucayali; that a Diplomate on Violence was carried out; that it was established that in cases of voluntary contraception the period of reflection will be 72 hours, and that state institutions and NGOs should exercise citizen oversight of the family planning services, among others.

751.          The petitioners indicated that with respect to the investigation into the facts, the State, through the Office of the Specialized Prosecutor for Human Rights, initiated the investigations into this case on March 9, 2004, and note that four years have gone by without any official complaint being lodged against the persons allegedly responsible, thus they indicate that that this is evidence of sluggishness in the investigations. In addition, they indicated that the prosecutor responsible for the investigations presented his resignation to the Public Ministry in December 2007, and that in May 2008 the Office of the Attorney General appointed a new prosecutor in charge, thus that office had no prosecutor designated to it for five months, which seriously affected the development of the investigation. In addition, the petitioners indicated that the State had not taken any state action with a view to going forward in the administrative and criminal investigations into the action of the representatives of the Public Ministry and the Judicial Branch who failed to take measures aimed at clarifying the facts alleged by the widower of Ms. Mamérita Meztanza. They noted that there is only a resolution from the prosecutorial office in charge, of November 24, 2004, which states that based on the functional conduct of the judges involved, one should begin an exhaustive investigation, but that since that resolution was adopted no steps have been taken in that direction. In summary, they indicated that to date, more than 10 years after the facts, and five years since the friendly settlement agreement was signed, there is no criminal or administrative sanction against the perpetrators of the facts of this case.

752.          The petitioner also reported that the State has been making payment of monetary reparations to the victim’s family to pay the amount for purchasing a plot of land. As regards the health benefits, they reported that the State had made payment of the sum of US$ 7,000 for the psychological rehabilitation treatment, which was administered and monitored by DEMUS until it was concluded in March 2008, when the National Council on Human Rights was given a final report on its results.

753.          As for the educational benefits, the petitioners indicated that on February 28, 2007, at the request of the National Council on Human Rights, a report was submitted on the beneficiaries’ educational requirements, which was reiterated and updated on March 5, 2008.  The reports indicate that three of the beneficiaries have difficulties accessing secondary education due to the fact that there is no secondary school in their locality. In addition, they stated that the youngest daughter displayed great interest in continuing her higher education studies, and that therefore the State should guarantee her access to a scholarship for higher education. They indicated that the older daughters in the family receive literacy classes through the municipality of Encañada, which sends trainers to the zone, yet there are no centers for alternative education in the locality or the surrounding areas for them to be able to conclude their studies on the weekends.

754.          With respect to legislative changes and changes in public policy, the petitioners make reference to the permanent training the State provided health personnel in reproductive rights, violence against women, and gender equity, indicating that they do not have information as to whether the State is actually carrying out those trainings. With respect to “the adoption of drastic measures against those responsible for unconsented forced sterilizations,” the petitioners argue that the State must bring its domestic legislation into line with the Rome Statute, incorporating the crime of forced sterilization, yet they note that the State has not made any progress in that regards.

755.          On November 4, 2009, in the framework of the Commission’s 137th Regular Session, a working meeting was held, during which the petitioners reported that, on May 26, 2009, the District Attorney’s Office decided to dismiss the investigation in the domestic jurisdiction on the basis of the statute of limitations for the crime of culpable homicide and the absence of a criminal category for the crime of coercion. The Attorney General’s Office also considered that the case “did not constitute a severe violation of human rights that would justify the application of the principle of waiving the statute of limitations,” as this principle is applicable only for crimes against humanity.  Therefore, the crimes against the life, body and health of Ms. Mestanza are subject to the statute of limitations.

756.          Regarding administrative investigations conducted in Cajamarca, the petitioners reported that, to date, there are only two resolutions against the alleged responsible parties and that, nevertheless, these officers continue working in public health institutions and have not been dismissed.

757.          As for the State, it indicated its willingness to hold once again the working group meetings to ensure follow-up of this and other cases of women in the same situation. It considered that the Attorney General’s Office is encountering problems in the investigation and that the current work system is not adequate.  It stressed that the case of Ms. Mestanza is representative of involuntary contraceptive surgeries in Peru, which encompass a known universe of 2,074 injured parties.

758.          It added that, in its opinion, the investigation was exhaustive, regardless of the outcome leading to its dismissal because of the statute of limitations. It indicated that, in this regard, the Organizational Law of the District Attorney’s Office grants powers to the attorney generals to act on the basis of their own judgment. It also indicated that, in this case, the resolution to dismiss the case because of the statue of limitations is not viewed as res judicata and that it is possible to start a new investigation, extracting the case from investigation file 18/2002 to which it was added and which includes, in addition to that of Ms. Mestanza, 199 other victims.  It asserted that, before the end of the year, a resolution would be issued by the Attorney General’s Office regarding the case of Ms. Mestanza.

759.          After the working meeting, the Chair of the Commission and Rapporteur for the Rights of Women sent the State a communication requesting information from the Attorney General’s Office about the unit of this institution in charge of the case of Ms. Mestanza; the measures adopted for allocating the human and financial resources needed to guarantee due investigation of the facts; as well as the measures available to fulfill the commitment to punish those responsible by means of the corresponding criminal, civil, administrative and disciplinary measures.  It also requested the State to report on the real possibility of continuing the criminal investigation after the preliminary resolution to apply the statute of limitations for the crimes and on the status of the proceedings for the complaint filed, which is currently being processed against the resolution to dismiss the case on the basis of the statue of limitations and which is supported by the petitioners.

760.          At the time of the drafting of the present chapter, the State’s reply to the communication referred to in the preceding paragraph had not been received.

761.          As a result of the information that was presented, the Commission concludes that the friendly settlement agreement has been partially complied with. Therefore, the Commission shall continue to monitor the items that are pending. 

Case 12.078, Report No. 31/04, Ricardo Semoza Di Carlo (Peru)

762.          On March 11, 2004, by Report No. 31/04, the Commission approved a friendly settlement agreement in the case of Ricardo Semoza Di Carlo.

763.          According to the friendly settlement agreement, the State:

1.         Acknowledged its responsibility for violation of Articles 1(1) and 25 of the American Convention on Human Rights, to the detriment of Ricardo Semoza di Carlo.

2.         Granted the following benefits to the petitioner as compensation: a)  recognition of the time that he was arbitrarily separated from the institution; b) immediate reinstatement in the Superior School of the National Police of Peru (ESUPOL); c) regularization of pension rights, as of the date of his reinstatement, taking into account the new calculation of his time in service; d) refund of the officers’ retirement insurance (FOSEROF, AMOF etc.); and e) a public ceremony will be held.

3.         Pledged to undertake an exhaustive investigation of the facts and will prosecute any person found to have participated in the deeds of this case, for which an Ad Hoc Commission will be established by the Office of International Affairs and the Legal Advisory Services of the Ministry of the Interior.

764.          By communication received on December 13, 2007, the petitioner reported that even though the State recognized the time of service during which he was separated from active duty as “real, effective, and uninterrupted,” a series of benefits that derive from that recognition have yet to be implemented. Specifically, Mr. Semoza Di Carlo indicated on that occasion that repayment for fuel has not been made; with the regularization of his pension payments; with the regularization of his contributions to the Officers Retirement Insurance Fund; with the holding of the ceremony of reparation; and with the investigation and punishment of the persons responsible for failure to carry out the judicial orders handed down to protect his rights that had been violated. Finally, the petitioner mentioned that the failure to carry out the agreement in those respects indicated have caused moral injury to him personally and to his family, as well as actual damages and lost profit.

765.          On November 10, 2009, the Commission requested both parties to provide updated information on the progress in fulfilling the commitments made by the State as a result of the friendly settlement agreement.  At the time of the drafting of the present chapter, the petitioner had not responded to the request for information.

766.          The State, by means of note 7-5-M/828 received on December 14, 2009, pointed out that, as a result of Directorate Resolution No. 735-2006-DIRREHUM-PNP of January 20, 2006, Major Semoza’s real and effective time of service in the Police Force was recognized and, as a result, his renewable retirement pay equivalent to the rank immediately above his own was granted; as of October 2005 the victim was granted a nonpensionable fuel subsidy; and, on February 8, 2006, the Commissioner of Surquillo ordered that the petitioner be notified to schedule the ceremony of public apologies, which according to the State the petitioner refused.

767.          Furthermore, the State indicated that it was waiting for updated information from the Ministry of the Interior about the investigation of the facts and the punishment of those responsible.  At the time of the drafting of the present report, this information had not been provided to the Commission.

768.          Because of this, the IACHR concludes that the friendly settlement agreement has been partially complied with.  As a result, the Commission shall continue to monitor the items that are pending. 

Petition 185-02, Report No. 107-05, Roger Herminio Salas Gamboa (Peru)

769.          On December 28, 2005, by Report No. 107/05, the Commission approved a friendly settlement agreement in the petition regarding Roger Herminio Salas Gamboa.

770.          According to the friendly settlement agreement, the State:

1. Considers that it is lawful, and an obligation of the State, for the National Council of the Judiciary to reinstate the title of full member of the Supreme Court of Justice of the Republic for Mr. Róger  Herminio Salas Gamboa, so that he may resume his duties.

2. Pledged to recognize the time not worked for the purposes of the calculating the labor benefits that he stopped receiving.

3. Recognized the petitioner’s right to the payment of comprehensive compensation.

4. Pledges to hold a Ceremony to Restore Reputation for Mr. Róger Herminio Salas Gamboa within three months of the signing of this Agreement.

771.          By communication of November 3, 2008, the IACHR asked both parties to submit up-to-date information on implementation of the above-noted friendly settlement agreement.

772.          By communication of December 4, 2008, the State reported that on December 16, 2005, the then-minister of justice, Alejandro Tudela, signed, with Mr. Roger Herminio Salas Gamboa, a friendly settlement agreement, and that on that same occasion Mr. Salas Gamboa publicly apologized. With respect to regaining the title as member of the Supreme Court, it was indicated that on January 15, 2006, National Judicial Council resolution No. 021-2006-CNM, by which the title of full member of the Supreme Court of Justice of the Republic was being restored to Mr. Gamboa, was published in the official gazette. In addition, it noted that on January 5, 2006, Dr. Salas Gamboa was paid the sum of S/68.440.00 (new soles, national currency) as economic reparation. Finally, the State reported that in April 2008 the petitioner had stepped down as a member of the Supreme Court and asked that this case be archived.

773.          The petitioner, for his part, indicated that despite the time elapsed, the State still owned him a sum of money as a result of the friendly settlement agreement that was signed.

774.          In 2009, on repeated occasions, the petitioner reported to the Commission that the Peruvian State had failed to comply with pending aspects of the friendly settlement agreement.

775.          On November 10, 2009, the Commission requested both parties to provide updated information on the progress being made in complying with the commitments made by the State as a result of the friendly settlement agreement.  At the time of drafting the present chapter, the State had not responded to this request for information.

776.          As a result, the IACHR concludes that the friendly settlement agreement has been partially complied with. As a result, the Commission shall continue to monitor the items that are pending. 

Petition 711-01 et al., Report No. 50/06, Miguel Grimaldo Castañeda Sánchez et al. (Peru); Petition 33-03 et al., Report No. 109/06, Héctor Núñez Julia et al. (Peru); Petition 732-01 et al., Report No. 20/07 Eulogio Miguel Melgarejo et al.; Petition 758-01 et al., Report No. 71/07 Hernán Atilio Aguirre Moreno et al.; Petition 494-04 (Peru)

777.          On March 15, 2006, by Report No. 50/06, the Commission approved the terms of the friendly settlement agreements of December 22, 2005, January 6, 2006, and February 8, 2006 signed by the Peruvian State and a group of unratified judges, who were petitioners in petition No 711-01 and others.  On October 21, 2006, by Report No. 109/06, the Commission approved the terms of the friendly settlement agreements of June 26 and July 24, 2006, signed by the Peruvian State and a group of unratified judges, petitioners in petition No. 33-03 and others. On March 9, 2007, by Report No. 20/07, the Commission approved the terms of the friendly settlement agreements of October 13 and November 23, 2006, signed by the Peruvian State and a group of unratified judges who were petitioners in petition No. 732-01 and others. On July 27, 2007, by Report No. 71/07, the Commission approved the terms of the friendly settlement agreement of January 7, 2007, signed by the Peruvian state and a group of unratified judges, petitioners in petition No. 758-01 and others. On March 13, 2008, by Report No. 71/07, the Commission approved the terms of the friendly settlement agreement of April 24, 2007, signed by the Peruvian State and one unratified judge, the petitioner in petition No. 494-04.  

778.          According to the text of the friendly settlement agreements included in the above-mentioned reports, the State:

1.         Pledged to restore the corresponding title and facilitate the reinstatement of the judicial officials.

2.         Pledged to recognize the period of service not worked in calculating duration of service, retirement, and other applicable employment benefits under Peruvian law.

3.         Agreed to make compensation.

4.         Will conduct a new evaluation and reconfirmation process under the purview of the National Council of the Magistracy for the judicial officials included in the instant agreement.

5.         Pledged to hold a Public Reparations Ceremony for the reinstated judicial officials.

779.          By communications of November 3, 2008, the IACHR asked both parties to provide up-to-date information on the implementation of the friendly settlement agreements contained in the above-mentioned reports.

780.          By communication of December 18, 2008, the State reported that on December 9, 2008, a ceremony was held as a form of public reparation in the auditorium of the Ministry of Justice in honor of the 79 judges included in Reports Nos. 50/06 and 109/06, for the purpose of carrying out its international obligations acquired in the context of the inter-American system for the protection of human rights. In addition, the State noted that the ceremony included the presence of high-level state officials, such as the President of the Council of Ministers – in representation of the Peruvian President – the Minister of Justice, the President of the National Judicial Council, and the Executive Secretary of the National Council on Human Rights, among others; and with the presence of civil society and the group of 79 judges included in the reports of the IACHR referred to above.

781.          On November 10, 2009, the Commission requested the parties to provide updated information on the progress made in complying with the commitments made by the State by virtue of the friendly settlement agreements.  At the time of the drafting of the present chapter, the State had not responded to this request for information.

782.          Some of the petitioners included in the reports that are the subject of the present section submitted information in response to the request made by the IACHR by means of a communication referred to in the preceding paragraph and also submitted information at their own initiative regarding this on different occasions in 2009.  As a rule, the unratified judges included in the friendly settlement agreements pointed out the failure to totally comply with these agreements and requested the IACHR to repeat their request to the State to comply fully with the agreements that were signed. The petitioners indicated that the State had not complied with the payment of the compensation in the amount of US$5,000.00 (five thousand U.S. dollars), which includes expenses and costs stemming from national and international proceedings.  As for the petitioners, some of them who had been reinstated pointed out that the new processes for ratification of judges would be taking place without abiding by the respective international standards, especially without observance of the procedural guarantee of the plurality of instances.  Various petitioners indicated that the ceremony of public apologies had not been held.  A petitioner reported that he had not been reinstated, that his rank had not been restored, and that the corresponding compensation had not been paid.  Furthermore, another judge specified that he had been told that the agreement in his case could not be implemented because he could not be reinstated because of age limitations; in response to which he pointed out that, in view of these circumstances, his request was based on the recognition of his years of service so that they would proceed to recognize his retirement rights and the corresponding labor rights, which had not been complied with.

783.          In response to the information submitted by the parties, the IACHR concludes that the friendly agreements included in the reference reports have been partially complied with and, as a result, the Commission shall continue to monitor the items that are pending. 

784.          It must be reiterated that the Commission cannot neglect to note and appreciate that the State has stated on several occasions its international responsibility for the violation of human rights of the persons who were the subject of the process of ratification conducted by the National Judicial Council in the conditions indicated in the approved reports, that the State has signed several friendly settlement agreements with a large number of individual victims, that many unratified judges who signed these agreements have been reinstated and that, in 2008, a ceremony of public apologies was held for 79 judges.  Despite the above and in conformity with information received by the IACHR, the clauses of the friendly settlement agreements signed up to now have not been fully complied with.  As a result, the IACHR repeats its request to the State to make all relevant and possible efforts to guarantee full compliance with the agreements for the specific characteristics of each case.

Petition 494-04, Report No. 20/08, Romeo Edgardo Vargas Romero (Peru)

785.          On March 13, 2008, by means of Report No. 20/08, the Commission approved a friendly settlement agreement in the request of Romeo Edgardo Vargas Romero.

786.          According to the friendly settlement agreement:

The National Judicial Council will restore his title within fifteen (15) days following the approval of the instant Friendly Settlement Agreement by the Inter-American Commission on Human Rights.

The Judiciary or the Office of the Attorney General, in the cases, respectively, of judges or prosecutors, will order the reinstatement of the judge to his original position within the fifteen days following restoration of his title. Should his original position not be available, at the judge’s request, he shall be reinstated in a vacant position of the same level in the same Judicial District, or in another one.  In this case, the judge will have the first option to return to his original position at the time a vacancy appears.

The Peruvian State undertakes the commitment to recognize as days of service the time spent removed from his position, counted from the date of the decision on non-confirmation, for purposes of calculating time served, retirement, and other work benefits granted by Peruvian law.  Should it be necessary, in order to comply with this Friendly Settlement agreement, to relocate judges to another Judicial District, their years of work shall be recognized for all legal effects in their new seats.  

The Peruvian State agrees to pay petitioners who abide by this Friendly Settlement a total indemnity of US$5,000.00 (five thousand United States dollars), which includes expenses and costs related to national and international processing of his petition.

The representative of the Peruvian State undertakes the commitment to hold a ceremony of public apology in favor of the reinstated judges.

787.          On November 10, 2009, the Commission requested both parties to provide updated information on progress in the process of complying with the commitments made by the State by virtue of the friendly settlement agreement.  At the time of drafting the present chapter, none of the parties had responded to the request for information. As a result, the Commission shall continue to monitor the items that are pending. 

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