Mariela Barreto Riofano v. Peru, Case 12.095, Report Nº 30/00, OEA/Ser.L/V/II.106 Doc. 3 rev. at 270 (1999).

REPORT Nº 30/00

CASE 12.095
MARIELA BARRETO RIOFANO
PERU
February 23, 2000 

I.         SUMMARY 

1.       On November 12, 1998, during its on-site visit to Peru, the Inter-American Commission on Human Rights (hereinafter “the Commission” or “the IACHR”) received a petition from Mr. Orlando Barreto Peña (hereinafter “Mr. Barreto” or “the petitioner”) alleging that the Republic of Peru (hereinafter “Peru,” “the State,” or “the Peruvian State”) had violated the right to personal liberty, the right to judicial guarantees, the right to humane treatment and the right to life, recognized in Articles 7, 8, 5 and 4, respectively, of the American Convention on Human Rights (hereinafter “the Convention” or “the American Convention”) when State security agents unlawfully detained his daughter, Mariela Barreto Riofano--an agent for the Army Intelligence Service (SIE)--, tortured and killed her and then dismembered her body.  The Peruvian State alleged that the case was inadmissible on the grounds that the remedies under domestic law had not been exhausted and that the subject of the petition was pending settlement in another international proceeding.  Without prejudging the substance of the case, the Commission considers that the exception to exhaustion of domestic remedies due to unwarranted delay in rendering a final judgment applies in the instant case and it finds that there is no duplication of procedures.  It therefore decides to admit the case, to move on to an examination of its merits, and to place itself at the disposal of the parties with a view to reaching a friendly settlement on the basis of respect for the human rights recognized in the Convention. 

II.        PROCEEDING WITH THE COMMISSION 

2.       The Commission opened the case on January 27, 1999, forwarded the pertinent parts of the petition to the Peruvian State and requested that it provide information within 90 days.  The Asociación Pro Derechos Humanos “APRODEH”, a non-governmental organization, became a co-petitioner in the case once the case had been opened.  Peru sent its reply on May 11, 1999.  Thereafter, both parties filed a number of briefs with the Commission. 

III.      POSITION OF THE PARTIES 

A.                 The petitioner 

3.       The petitioner stated that, according to family members, Ms. Barreto was last seen alive early on the morning of March 22, 1997.  At the time, she was leaving her home in Lima, on her way to arrange a blood type certificate for her daughter, a newborn at the time. 

4.       He maintained that on March 25, 1997, an article appeared in the newspaper “La República” titled “Young Woman Tortured and Dismembered.”  The article reported that the remains of a woman had been discovered some 25 kilometers along the road to Canta.  According to the article, the body had been dismembered. Both arms “had been cut off at the shoulder”; the head was detached from the trunk of the body, as were the hands and feet, which were missing.  The newspaper also reported that “the body had multiple lesions in the neck area, along both sides of the abdomen and on one of the legs, indicating that the victim had been physically tortured.”  The investigations ordered by the Fourth Criminal Provincial Prosecutor’s Office for Lima’s Northern Cone and the identification by the petitioner and by Mr. Elmer Valdivieso Nuñez, who was living with Ms. Barreto at the time, determined that the remains were definitely those of Ms. Barreto. 

5.       The petitioner stated that on Sunday, April 6, 1997, the television programs “Contrapunto,” carried on Lima’s Channel 2, and “La Revista Dominical,” carried by América Televisión, Lima’s Channel 4, both reported that the authors of the murder were “suspected to be members of the Army Intelligence Service (SIE).”  The petitioner also linked his daughter’s death to the torture of another SIE agent, Leonor La Rosa Bustamante, who accused members of the SIE of being both the direct and indirect authors of Ms. Barreto’s murder.  In the petitioner’s opinion, the method and brutality used in his daughter’s case and in the case of agent La Rosa Bustamante had characteristics and patterns in common, indicating that the perpetrators in both cases were the same: the SIE agents. 

6.       As evidence pointing to the SIE agent’s alleged involvement in his daughter’s murder, the petitioner sent a copy of a statement given by Mrs. Luisa Zanatta, former SIE agent, on March 16, 1998.  In that statement, former agent Zanatta maintained that Ms. Barreto had told her that she, Ms. Barreto, had told the weekly magazine “Si” where the bodies of the nine university students and one professor from the Universidad Nacional “Enrique Guzmán y Valle” (located in La Cantuta, Lima) killed on July 18, 1992, were hidden.  The ten victims had been killed by military agents in the “Colina Group.”  The petitioner claimed that his daughter was murdered because she had given journalists information about what happened at La Cantuta (and information about the location of the victims’ bodies). 

7.       The petitioner maintained that the remedies under domestic law had been exhausted with the decision ordering that the case be closed, issued by the Office of the Fourth Criminal Provincial Prosecutor of the Superior Court of Lima’s Northern Cone on February 25, 1998, and a decision of the First Criminal Superior Court Prosecutor for the Northern Cone, dated June 22, 1998, which found the appeal filed against the first decision to be unfounded. 

B.                 The State 

8.       The State alleged that the remedies under domestic law had not been exhausted.  It said that the “Office of the Fourth Criminal Provincial Prosecutor for Lima’s Northern Cone is currently investigating the death of Mariela Barreto Riofano to ascertain the circumstances, motives and possible authors of her death, which is the proper procedure under domestic law to investigate, prosecute and then punish those responsible in the courts”.  It further stated that “in the instant case, the investigation has not yet been completed.”

9.       It added that “before anyone can be accused of a crime, one must first establish the nexus between the crime and the author, based on minimum, verifiable evidence that can substantiate the hypothesis; mere speculation or conjecture will not suffice.” 

10.     The State asserted that the Fourth Criminal Provincial Prosecutor’s Office had ordered that the case be temporarily closed “because Article 77 of the Code of Criminal Procedure requires that a case be prosecutable in law.”  It added that the July 22, 1998 decision “issued by the First Prosecutor’s Office of the Superior Court of the Northern Cone declaring the petition filed by Orlando Barreto Peña to be unfounded, did not close the case or stop it for a definitive period; instead, it stipulates that once the case is returned to the originating prosecutor’s office, the investigations to identify the author or authors of the murder of Mariela Barreto Riofano are to continue.”  This means, in Peru’s judgment, that “once the author or authors of the murder or accomplices are identified, the Prosecutor may immediately proceed, in keeping with his functions, to file a formal criminal indictment with the Criminal-law Court.”  The State pointed out that the order to have the case provisionally closed notwithstanding, the police authorities continued to conduct the necessary investigations.  The State concluded that it was, therefore, obvious that “the investigation has not been exhausted.” 

11.     The State alleged that on January 25, 1999, the Fourth Criminal Prosecutor’s Office issued another decision ordering “the expansion of the investigation”, as certain steps were still pending.  It mentioned that the “activities of Santiago Enrique Martin Rivas, Luz Iris Chumpitaz Mendoza, Elmer Valdivieso Nuñez, Carlos Eliseo Pichiligue Guevara, Jesús Antonio Sosa Saavedra and Julia Plácida González Pillaca” still had to be checked and statements taken from “Mirtha Zavaleta Meregildo, Menilda Cisneros de Reuna, Ludesimo Aponte Carrión and Sheila Rebaza Ayala.” 

12.     It further contended that “the Special Rapporteur on Extrajudicial Executions of the United Nations Commission on Human Rights is now appraised of the facts set out in the petition.” 

13.     The State asked that the IACHR declare the instant petition inadmissible on the grounds that “the remedies under domestic law have not been exhausted, and inasmuch as the subject of the petition is pending with another international proceeding for settlement, such as the one followed with the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions of the United Nations Commission on Human Rights.” 

IV.       ANALYSIS 

14.     The Commission will now consider the requirements for a petition’s admissibility, as set forth in the American Convention. 

A.       The Commission’s competence ratione materiae, ratione personae and ratione temporis 

15.     Peru ratified the American Convention on July 28, 1978, so that the Commission is competent ratione personae to hear this petition, by express provision of Article 33 of the Convention.  With respect to the petitioner, the Commission notes that both Mr. Orlando Barreto Peña and the Asociación Pro Derechos Humanos (APRODEH), a nongovernmental organization with recognized legal status in Peru, are entitled under Article 44 of the Convention to present petitions to the Commission. In addition, the Commission is competent ratione materiae and ratione temporis, because the petitioner has alleged specific violations of norms established in the Convention by agents of the Peruvian State, and because the events in question appear to have occurred when the obligation to respect and guarantee the rights established in the Convention were already in force for the Peruvian State, which, as mentioned above, deposited the instrument of ratification of the American Convention on July 28, 1978. 

B.        Requirements for the petition’s admissibility 

a.         Exhaustion of the remedies under domestic law 

16.     The IACHR observes that the parties do not dispute the fact that Ms. Barreto’s death occurred sometime between the time she left her home early on the morning of March 22, 1997, and March 25, 1997, when her mortal remains were discovered. 

17.     On April 10, 1997, the petitioner filed a criminal complaint for first degree murder, battery, and kidnapping of Mariela Luz Barreto Riofano, and criminal cover-up. On March 31, 1998, the Office of the Fourth Criminal Provincial Prosecutor for the Northern Cone ordered that “the proceedings be temporarily closed.  They lack sufficient merit to bring a criminal action, precisely because the alleged authors of the crimes are not named; a court of criminal-law cannot institute the examining phase unless the suspected perpetrators of a crime are identified.”  On July 22, 1998, the First Criminal Superior Court Prosecutor “dismissed the appeal” brought by the petitioner against the decision of the lower-court prosecutor’s office to “temporarily close the case.”  Finally, in another decision handed down on January 25, 1999, the Office of the Fourth Criminal Provincial Prosecutor decided “to expand the investigations,” since some of the procedural measures were still pending, such as verification of the activities of certain persons and a statement made by others. 

18.     Under Article 46(2) (c) of the Convention, the remedies under domestic law need not be exhausted when “there is an unwarranted delay in rendering a final judgments under the … remedies.”  As a party to the Convention, it is incumbent upon the State to investigate the facts in order to identify those responsible, which necessarily requires an adequate, exhaustive, serious and thorough investigation conducted within a reasonable time frame.  In Velásquez Rodríguez, the Inter-American Court of Human Rights wrote that: 

The State is obligated to investigate every situation involving a violation of the rights protected by the Convention.  If the State apparatus acts in such a way that the violation goes unpunished and the victim’s full enjoyment of such rights is not restored as soon as possible, the State has failed to comply with its duty to ensure the free and full exercise of those rights to the persons within its jurisdiction […]
 

In certain circumstances, it may be difficult to investigate acts that violate an individual’s rights.  The duty to investigate, like the duty to prevent, is not breached merely because the investigation does not produce a satisfactory result.  Nevertheless, it must be undertaken in a serious manner and not as a mere formality preordained to be ineffective.  An investigation must have an objective and be assumed by the State as its own legal duty, not as a step taken by private interests that depends upon the initiative of the victim or his family or upon their offer of proof, without an effective search for the truth by the government.  This is true regardless of what agent is eventually found responsible for the violation.  Where the acts of private parties that violate the Convention are not serious investigated, those parties are aided in a sense by the government, thereby making the State responsible on the international plane.^[1] 

          19.     In the instant case, the Commission notes that 10 months after the murder of Ms. Barreto the provisional shelving of the investigation, and its possible reopening, were justified and made subject to “identification of the alleged perpetrator” provided that “the criminal action has not prescribed” and that the appeal lodged against that ruling failed to achieve its modification.  Subsequently, on May 11, 1999, the State declared that “the Fourth Criminal Provincial Prosecutor’s Office for Lima’s Northern Cone was investigating the death of Mariela Barreto Riofano with a view to clarifying the circumstances of her death, the motives for it, and the possible perpetrators.” However, since that date, no further information has been provided to the Commission reporting the findings of the renewed investigations by the competent authorities. 

20.     Mindful of the jurisprudence of the Inter-American Court of Human Rights and the jurisprudence of the Inter-American Commission itself, the Commission considers that the almost three year lapse since the murder of Ms. Barreto, without any significant progress in the investigation constitutes an unwarranted delay in the terms of Article 46(2)(c). of the American Convention.  Consequently, and in accordance with that norm, the exception to the requirement to exhaust domestic remedies applies in this case. 

b.         Deadline for presentation 

21.     The requirement stipulated in Article 46(1)(b) of the Convention, whereby the petition is to be lodged within six months of the date on which the party alleging violation of rights was notified of the final judgment that exhausts local remedies, is not applicable in the instant case.  If the condition stipulated in Article 46(2)(c) of the Convention for the exception to the local remedies requirement is present, Article 46(2) also mandates an exception to the requirement regarding the time period for lodging the petition. 

c.         Duplication of procedures 

22.     Under Article 46(1)(c) of the American Convention, one of the admissibility requirements a petition must meet is that the subject “is not pending in another international proceeding for settlement.”^[2]  The State argues that the Commission must declare this petition inadmissible precisely because a complaint on this subject is currently with the Special Rapporteur for Extrajudicial, Summary or Arbitrary Executions of the United Nations Commission on Human Rights. 

23.     In a case somewhat analogous to the instant case, the Peruvian State asked that the Commission find a petition inadmissible that involved facts that the Working Group on Enforced or Involuntary Disappearances of the United Nations Commission on Human Rights had under consideration at that time.  In that case, the Commission determined that the business of that Working Group was not the international proceeding contemplated in Article 46(1)(c) of the Convention, in accord with the provisions of Article 39(2)(b) of the Commission’s Regulations.^[3]  

24.     The situation under study in the instant case, which the Commission’s refers to as “duplication of procedures,” obtains when the matter is pending “settlement” in some other international organization.  The language of Article 46(1)(c) implies the actual existence of a mechanism whereby the violation denounced can be effectively resolved between the petitioner and the authorities of the State or, failing that, the proceeding instituted can lead to a decision that ends the litigation and/or gives other bodies jurisdiction.^[4] 

25.     It is fitting to recall that the United Nations Commission on Human Rights and the UN Economic and Social Council have established various extra-conventional procedures and mechanisms that have been entrusted to working groups composed of independent experts referred to as “special rapporteurs,” “representatives,” or “experts.”  The mandates given to these mechanisms and procedures are either to examine and monitor the human rights situation in specific countries or territories (the so-called country mechanisms or mandates), or major phenomena of human rights violations at the global level (the thematic mechanisms or mandates), and to “publicly report” on those situations.  Taken collectively, those procedures and mechanisms are called “Special Procedures of the Commission on Human Rights,” their purpose being to institute constructive dialogue with the governments and in the end “recommend” to them possible solutions to the situations posed.^[5] 

26.     The United Nations Commission on Human Rights’ Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions was created by a decision 1992/242 of the Economic and Social Council, on July 20, 1992.  Initially slated for three years, the Special Rapporteur was to “consider questions related to summary or arbitrary executions.”^[6]  Thereafter, United Nations General Assembly resolution 47/136, adopted on December 18, 1992, at the 92nd plenary session, reaffirmed the Special Rapporteur’s competence in the area of summary or arbitrary executions.  That resolution made reference to specific authorities conferred upon the Special Rapporteur for Extrajudicial, Summary or Arbitrary Executions, urging it to promote “exchanges of views between Governments and those who provide reliable information to the Special Rapporteur.”  According to these resolutions, the Special Rapporteur is unequivocally a recognized international instance to which individual petitioners can and do turn. Nevertheless, one cannot infer from this that the Special Rapporteur is one of the appropriate instances for arriving at the “settlement” to which Article 46(1)(c) of the American Convention refers.  It is, instead, a mechanism that makes it possible to bring to international attention a specific situation in which fundamental rights have been ignored.^[7] 

27.     Therefore, in the instant case, Peru’s allegation of the inadmissibility of the request is unfounded, as there is no duplication of procedures in the sense of Article 46(1)(c) of the American Convention. 

d.         Characterization of the facts 

28.     The Commission considers that the facts alleged, if proved true, are violations of rights recognized in the American Convention on Human Rights. 

e.         Res judicata 

29.     The petition does not duplicate any petition either pending or already examined and settled by the Commission or by another international organization.  Therefore, the requirement stipulated in Article 47(d) is also met. 

IV.       CONCLUSIONS 

30.     The Commission concludes that it is competent to hear this case and that the petition is admissible under articles 46 and 47 of the American Convention. 

31.     Based on the these arguments of fact and of law, and without prejudging the merits of the case, 

THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, 

DECIDES: 

          1.       To declare the instant case admissible with respect to the alleged violations of the rights to personal liberty, judicial guarantees, humane treatment, and the right to life enshrined in Articles 7, 8, 5, and 4, respectively of the American Convention on Human Rights. 

2.       To notify the parties of this decision. 

3.       To continue its analysis of the merits of the petition. 

4.       To place itself at the disposal of the parties with a view to reaching a friendly settlement based on respect for the human rights recognized in the American Convention, and to invite the parties to indicate whether they would be amenable to attempting a friendly settlement, and 

5.       To publish this decision and include it in the Commission’s Annual Report to the OAS General Assembly. 

Done and signed at the headquarters of the Inter-American Commission on Human Rights, in the city of Washington, D.C., on the 23^rd day of the month of February, 2000. (Signed):  Hélio Bicudo, Chairman; Claudio Grossman, First Vice-Chairman; Juan Mendez, Second Vice-Chairman; Commissioners: Marta Altolaguirre, Robert K. Goldman, Peter Laurie and Julio Prado Vallejo.