RESOLUTION Nº 1/91
REPORT Nº 29/91

                                                           PERU

 HAVING SEEN: 

             1.     Report Nº 29/91 adopted by the Inter-American Commission on Human Rights on February 20, 1991 referring to cases 10.264, 10.206, 10.276 and 10.446. 

             2.     That on May 27, 1991, the Government of Peru filed a brief wherein it "requests that the Commission comply with its Regulations and the Pact of San José and therefore decide not to take the case to the Inter-American Court of Human Rights without first weighing the observations made in the present note and making the appropriate procedural corrections."  In that note, the Government of Peru stated that "In accordance with the express provisions of Article 34, paragraphs 7 and 8 of the Commission's Regulations, once the reply was received from the petitioners, the Commission should have transmitted the pertinent parts thereof and its attachments to the Government of Peru for its final observations.  None of the the petitioners' replies to the Government's notes were transmitted to the Government.  Hence, by violating that procedural requirement, the Commission has denied the Peruvian State its right to self defense." 

CONSIDERING: 

             1.     That the request from the Government of Peru constitutes a petition to suspend the proceedings; 

             2.     That while the Government of Peru raised this matter in the note in question, it did not say what injury had been caused by this procedural omission; 

             3.     That in response to its express request and to honor justice, the Commission resolved to consider the objection and therefore transmitted the petitioners' replies as requested by the Government under the provisions of Article 34.8 of the Commission's Regulations; 

             4.     That in its reply dated September 4, 1991, the Government of Peru  made no reference to the petitioners' replies, 

             5.     That the Commission also examined Report 29/91 and has found that adjustments must be made in Section II thereof, which are included in the version of that Report attached hereto.

                         THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, 

RESOLVES: 

             1.     To reject the argument of the Government of Peru that the report is invalid. 

             2.     To confirm the conclusions and recommendations contained under point 48 of Report 29/91 and to transmit it to the Government of Peru so that it might respond as it sees fit within a period of 90 days. 

             3.     To send the instant case to the Inter-American Court of Human Rights.

REPLY OF THE GOVERNMENT OF PERU TO THE INTER-AMERICAN
COMMISSION ON HUMAN RIGHTS 

Ref. Cases Nos. 10.206, 10.264 10.276 and 10.446 

             In connection with your note of June 20, 1991, received on July 10 of this year, the Government of Peru, respectful of its international commit­ments, transmits the present communication within the preestablished time limit: 

             The inter-American system for the protection of human rights estab­lishes the legal procedures that the Inter-American Commission on Human Rights must follow in its investigation of complaints.  As a signer and ratifier of the American Convention on Human Rights, and recog­nizing the competence of the hemispheric agencies in this area, the Peruvian Govern­ment demands of the Commission strict compliance with the procedural rules that guaran­tee the right of parties to the most comprehensive and unre­stric­ted defense. 

             According to Article 61 of the American Convention on Human Rights, in order for the Court to hear a case, it must necessarily have first been investigated by the Commission, and investigation is thus a stage that must go before.  It follows from this that a decision to submit a case to the Court shall first have been thoroughly examined in fullest conformity with the procedural framework that governs the actions of the Inter-American Commission on Human Rights, especially when it is considered that, once it has filed its suit, the Commission's legal status is transformed, de facto and de jure, from that of a general investigative agency, impartial both to governments and to petitioners, into that of opponent of the respondent government.  In other words, upon the mere filing of a complaint it be­comes the procedural adversary of the government, which implies the liter­al impos­­si­bility of reverting to its original status. 

             Notwithstanding the good intentions shown by the Inter-American Com­mis­sion on Human Rights in withdrawing cases Nos. 10.206, 10.264, 10.276 and 10.446 from the jurisdiction of the Inter-American Court of Human Rights in order to rectify the procedural omissions pointed out by the Peruvian government in its note of May 27 of this year, the Commission has not made clear which new procedures could be followed for a possi­ble reexa­mination of the case and which conclusions reached in it, considering that neither the Conven­tion nor the current Rules of Procedure provide any war­rant for its present decision. 

             In consideration of the situation presented and the procedure sugges­ted by the Inter-Ameri­can Commission on Human Rights, it is incumbent on the Peruvian Government to raise the following points and objections:

                                                              I 

             The communication of the Inter-American Commission on Human Rights suggests that the Peruvian Government asked it to reconsider the case.  This is untrue, for Peru has never made any such request in re­gard to the case itself or to the decision to place it before the Inter-American Court.  The possibility of reconsidering a report already submitted is not provided for in either the American Convention on Human Rights or in the Regulations of the Commission when the State concerned — in this instance Peru — is a party to the Convention and has recognized the competence of the Inter-American Court of Human Rights, let alone when the case has already been submitted to the jurisdiction of the Court. 

             The Peruvian Government did express to the Commission the advisabi­li­ty of not submitting the case to the Court in view of the serious proce­dural omissions committed in the preparation of Report No. 29/91, which also hap­pen to jus­ti­fy the plenary's decision, among others, to submit the cases together.  In other words, the decision to reconsider the case was taken unilaterally, and has no place in the procedural rules in effect. 

                                                             II 

             In its note of May 27, 1991, the Peruvian Government made five proce­dural observations on the handling of the CAYARA case by the Inter-American Commission on Human Rights.  However, the note of June 20 mentions only one of them: the failure to comply with the express provisions of Ar­ti­cle 34.8 of the Commission's Regulations. 

             The Peruvian Government noted the absence of a preliminary report, which would have avoided the hurried submittal of the case on such a shaky pro­­cedural basis and the incorrect manner in which the Peruvian Government has been dealt with.  It cited the ill-advised decision to accept belatedly the inclusion of one of the petitioners, the impropriety of combining the cases, and the receipt, after expiration of the applicable time limits, of the replies to the notes of the Peruvian Govern­ment.  Accordingly, in its note of June 20, 1991, the Commission ought to have not only responded to these points, but also have set forth transparently and specifically the mechanisms best suited for the future handling of the cases. 

                                                             III 

             Paragraphs 7 and 8 in Article 34 of the Regulations of the Inter-Ameri­can Commission on Human Rights prescribe that the reply of the re­spondent government shall be made known to the petitioner(s) for REJOIN­DER(S) within thirty (30) days.  This was all done in the present case, though the rejoinders were received after that time limit.  These rejoinders and their accompanying evidence should have been transmitted to the Peruvian Government for SURREJOINDERS or final observations, but this was not done.  This abridgement of Peru's right of defense not only preju­­diced a member State of the Organization of American States and a Party to the Ameri­can Convention on Human Right, which has recognized the competence of the Inter-American Court of Human Rights, but led the plenary of the Com­mission into error by depriving it of the sources of evidence necessi­tated by the magnitude of the conclusions of Report No. 29/91, which it approved in its 79th Session. 

             To enable it to rectify errors and comply with the rules of procedure con­tained in Article 34 of its Regulations, the Inter-American Commission on Human Rights requires the Peruvian Government to present its final ob­ser­va­tions within sixty (60) days.  However, the replies of the petitioners were made past their own deadlines.  It is hence improper to require ONE REJOINDER TO THREE REPLIES in one oper­a­tion and at an inconvenient time, especially when the entire procedure has been completed with a final report. 

                                                             IV 

             1.  The rules of procedure contained in the Regulations of the Inter-American Commission on Human Rights set out a procedure for obligatory com­pliance, that is, it endows the process with the means and mechanisms for its execution from beginning to end.  The guidelines having been laid down, and there are sta­ges and junctures clearly demarcated by procedural time limits, which ensures legality in the conduct of the process. 

             On May 8 and 10, 1990, the Peruvian Government presented to the Com­mis­sion two (2) notes that were replied to by the petitioners on July 18, 1990, sixty-eight (68) days later, which violated the mandatory time limit of thirty (30) days imposed in Article 34.7 of the Com­mission's Regula­tions; in other words, the time limit having expired, no reply could be received.  However, in its note of June 20, 1991, the Commission gave the Peruvian Government a time limit for its rejoinder and insisted on accept­ing the replies of the petitioners as valid. 

             2.  In that note of June 20, 1991, the Inter-American Commission on Human Rights expressed its intention of adhering strictly to the terms of Article 34.8 of its Regulations.  However, it failed to include the com­plete reports — one of the majority and the other of the minority — of the Commission appointed by the Senate of the Republic of Peru, which were pre­sented together by the two petitioners in their note of reply of July 18, 1990.  Against this it could be argued that the Peruvian Government is able to obtain those documents for itself, which is in principle true, but the official channel for the receipt and transmission of evidence is the Inter-American Commission and, moreover, this seemingly excessive formality gua­rantees access to the same means of proof to all parties. 

             The Peruvian Government does not question the honesty of the peti­tioners despite the inelegant terms in which they have couched their replies, but the only way to guarantee that the proofs offered are identi­cal with the original documents of the Senate of the Republic is by compa­rison, which could only have taken place if the Commission, complying strictly with its own Regulations, had received in good time and forwarded the documents presented with the replies. 

             It follows from this that the four combined cases continue to suffer from the same procedural defect. 

                                                              V 

             Moreover, neither the American Convention, the Regulations of the Com­mission nor the Rules of Procedure of the Court allow the possibility of WITHDRAWING a case once it has been submitted to the jurisdiction of the latter.  The case having been withdrawn, what took place de jure and de facto was a formal DISCONTINUANCE in the terms of Article 42 of the Court's Rules of Procedure in force at the time the suit was brought on May 30, 1991.  Since this discontinuance, referred to by the Commission as a with­drawal, was at the request of the complainant alone, before the litigation began but after the proceeding had already been set in motion, the consent of the Peruvian Government as respondent was not required. 

             The Rules of Procedure of the International Court of Justice at The Hague, to whose final judgments the Inter-American Court has resorted, pro­vides in Articles 88 and 89 that if a proceeding has been opened by a uni­la­teral complaint, the claimant may withdraw unilaterally so long as the re­spondent has not yet taken any action in the proceeding.  If, however, litigation has already commenced, the consent of respondent is re­quired for discontinuance of the case. 

             It is apparent that so-called withdrawal is not a juridically accept­able procedural option.  The filing of a complaint with the Inter-American Court of Human Rights sets the proceeding in motion, and the only avenue for unilaterally preventing its prosecution is withdrawal before liti­gation begins, that is, before the Government has been notified of the com­plaint. 

             On the showing of the Inter-American Commission on Human Rights, the CAYARA case could again be submitted to the Inter-American Court of Human Rights once the Peruvian Government has presented its final observations.  The Peruvian Government does not agree that this could be done because, the case having been unilaterally withdrawn from the Court by action of the Com­mission, the legal time limit of ninety (90) days provided for such resub­mittal in Article 51 of the American Convention on Human Rights has already expired. 

             In conclusion, the Peruvian Government demands that, before enter­tain­ing any additional consideration, the Inter-American Commission on Human Rights define and spell out clearly a feasible procedure which, without overstepping the general bounds of the inter-American legal system for the protection of human rights, will afford adequate guarantees to the Peruvian Government and not detract from the treatment that is due to it as a member State of the Organization of American States and a Party to the American Convention on Human Rights.

              In keeping with the foregoing and to set forth its views and procedur­al arguments on the processing of the four combined cases and the examina­tion of future possibilities, the Peruvian Government requests a con­fiden­tial hearing with the IACHR under Article 67 of its Regu­la­tions so that its representative may make an oral presentation to the Com­mission in its second session of 1991.  

                                     LIMA, PERU 

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