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CCPR/C/134/D/3664/2019

Armando García Mendoza, on behalf of his v. Peru

UNO-Menschenrechtsausschuss (CCPR) · 2022-03-14 · en UN

Decision on merits; Subjects: CIVIL AND POLITICAL RIGHTS, PERU; [CCPR: UNO-Pakt II, Internationaler Pakt über bürgerliche und politische Rechte; Pacte international relatif aux droits civils et politiques; Patto II]

Volltext (verifizierbarer Originaltext)

GE.22-06748 (E) 290722 290722

Human Rights Committee

Views adopted by the Committee under article 5 (4) of

the Optional Protocol, concerning communication No.

3664/2019*, **

Communication submitted by:

Armando García Mendoza, on behalf of his

deceased brother, Emiliano García Mendoza, and

Julia Gutiérrez Julca, on behalf of her deceased

husband, Rubén Pariona Camposano

(represented by the Coordinadora Nacional de

Derechos Humanos [National Coordinator of

Human Rights])

Alleged victims:

Emiliano García Mendoza and Rubén Pariona

Camposano

State party:

Peru

Date of communication:

27 March 2019 (initial submission)

Document references:

Decision taken pursuant to rule 92 of the

Committee’s rules of procedure, transmitted to

the State party on 14 November 2019 (not issued

in document form)

Date of adoption of Views:

14 March 2022

Subject matter:

Extrajudicial executions during a demonstration

Procedural issues:

Exhaustion of local remedies

Substantive issues:

Right to an effective remedy; right to life; right

of peaceful assembly

Articles of the Covenant:

2 (3), 6 (1) and 21

Articles of the Optional Protocol:

5 (2) (b)

* Adopted by the Committee at its 134th session (28 February–25 March 2022).

** The following members of the Committee participated in the examination of the communication:

Tania María Abdo Rocholl, Wafaa Ashraf Moharram Bassim, Yadh Ben Achour, Arif Bulkan,

Mahjoub El Haiba, Furuya Shuichi, Carlos Gómez Martínez, Marcia V.J. Kran, Duncan Laki

Muhumuza, Photini Pazartzis, Vasilka Sancin, José Manuel Santos Pais, Soh Changrok, Kobauyah

Tchamdja Kpatcha, Hélène Tigroudja, Imeru Tamerat Yigezu and Gentian Zyberi.

United Nations

CCPR/C/134/D/3664/2019

International Covenant on

Civil and Political Rights

Distr.: General

30 May 2022

English

Original: Spanish

CCPR/C/134/D/3664/2019

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GE.22-06748

1.

The authors of the communication are Armando García Mendoza, a Peruvian citizen

born on 15 July 1967, and Julia Gutiérrez Julca, a Peruvian citizen born on 26 June 1980.

They are acting, respectively, on behalf of the brother of Mr. García Mendoza, Emiliano

García Mendoza, and the husband of Ms. Gutiérrez Julca, Rubén Pariona Camposano, both

of whom died during a demonstration. They claim that the State party has violated their rights

under article 6 (1) of the Covenant, read alone and in conjunction with articles 2 (3), and 21.

The Optional Protocol entered into force for the State party on 3 January 1981. The authors

are represented by counsel.

Facts as submitted by the authors

2.1

The Junta Nacional de Regantes, a national irrigation users’ association, called a

nationwide agrarian strike on 18 and 19 February 2008. At a general meeting attended by

provincial and district leaders, it was agreed that the demonstration would be peaceful. In

Ayacucho, the district governor granted the permit for the demonstration.

2.2

On 18 February 2008, some 3,500 demonstrators marched through the streets of the

city of Huamanga, in the department of Ayacucho, from 8 a.m. to 1 p.m.

2.3

On 19 February 2008, Mr. García Mendoza and Mr. Pariona Camposano, along with

around 700 others, took part in a demonstration in Huamanga. The demonstrators reached

the street Vía Libertadores at the second entrance to the Ayacucho gas station (on the Lima-

Huamanga road), where 12 police officers were stationed to keep order. The police officer in

charge ordered the arrest of a demonstrator.1 The demonstrators reacted to the arrest being

made, and the officer in charge threw a tear-gas canister into the crowd to disperse it. When

the demonstrators dispersed, two shots were heard and Mr. García Mendoza, 44, and Mr.

Pariona Camposano, 29, fell to the ground with wounds to the head that were bleeding

profusely. Both died instantly.2 The forensic report showed that their injuries had been caused

by firearm projectiles consistent with metal pellets.

Investigation by the public prosecutor’s office

2.4

Following the events, the Huamanga provincial prosecutor on duty ordered that an

investigation be opened.

2.5

On 1 April 2008, the Huamanga provincial prosecutor filed criminal charges in the

First Criminal Court of Huamanga against police officer Carlos Alberto Rodríguez Huamaní

for the alleged offence of aggravated homicide in connection with the deaths of Mr. García

Mendoza and Mr. Pariona Camposano, as sufficient evidence had been found during the

preliminary inquiry to link him to both deaths. In particular, the prosecutor noted that the

accused acknowledged having fired shots in the direction of where the victims had fallen,3

and since only two shots were heard during the demonstration, just before the two campesinos

died, the shots that the officer acknowledged firing were probably the ones that killed Mr.

García Mendoza and Mr. Pariona Camposano. The prosecutor asked that the accused be

sentenced to 30 years’ imprisonment and be required to pay 100,000 nuevos soles4 to the

authors.

Investigation by the Multiparty Congressional Commission of Inquiry

2.6

As the matter was one of national interest, while the judicial proceedings were under

way, the Congress of the Republic set up a multiparty commission of inquiry to help establish

the facts; study the guidance given by the Ministry of the Interior to the National Police on

1 The officer’s statement, which appears in the judgment handed down by the court of first instance on

30 October 2013, indicates that the arrest that had been ordered was of a demonstrator who had been

rousing the crowd.

2 According to autopsy report No. 0036-2008, Mr. García Mendoza suffered a serious brain injury and

fractures of the cranial vault and base of the skull and died as a result of the impact of three firearm

projectiles that had entered the right occipital parietal region and become lodged in the encephalic

mass. According to autopsy report No. 0037-2008, Mr. Pariona Camposano’s head showed signs of

ballistic impact from an object that had pierced the cranial vault.

3 He was carrying a Savage 12-gauge shotgun bearing serial number E090267.

4 US$ 36,000 at the exchange rate on that date.

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how to prevent disturbances and maintain and restore order; and identify the individuals who

had taken part in the events and the likely culprits.

2.7

On 15 January 2009, the Multiparty Congressional Commission of Inquiry released

its final report on how and under what circumstances campesinos had died at the hands of

the police during the agrarian strike. The Commission noted that the claim of the Ministry of

the Interior and the Police that one of the demonstrators was carrying a home-made firearm

cannot be considered credible, as after almost a year, that person has still not been identified.

However, there is in fact a police officer who has admitted to firing shots at the moment when

the two campesinos died, who was located to the rear of the demonstrators. The officer was

standing in a hunter’s stance 25 meters away and fired on the demonstrators in the direction

of where the two campesino community members were shot dead. In addition, the suspect

did not make the shotgun available to the forensic department of the Peruvian National Police,

even though there was an order for him to do so; rather, he brought the weapon into the

storeroom after it had already been cleaned. As a result, the ballistics report concluded that

the weapon bore no signs of having been fired, even though Rodríguez himself acknowledges

that he fired the weapon. The Commission also found that the cartridge was fired from the

Savage 12-gauge shotgun bearing serial number E090267 – the very weapon that Rodríguez

Huamaní was carrying.5 In the Commission’s view, there is a contradiction between the

reports to Congress of the Minister of the Interior, which indicate that lead pellets are

incompatible with weapons used by the National Police, and the ballistics report, which

indicates that the projectiles that caused the deaths, lead pellets, are compatible with the

shotgun used by the police officer.6

2.8

The Commission’s final report finds, first, that the two deaths amount to extrajudicial

executions, for although police officers who are authorized to use force may respond to

unlawful acts of aggression, their response must be consistent with the principles of

immediacy and proportionality. Consequently, if the police do not comply with those

principles in responding to a threat, their use of force becomes illegitimate and

disproportionate and violates the right to life.7 In the case at hand, “the deceased did not

present a danger to the police officer’s personal safety or to the safety of others. They had

their backs turned to the police officer who fired the shot ... which would mean that the use

of force was disproportionate, resulting in extrajudicial executions.”8 The report further

concludes that the officials in charge failed in their duties to safeguard the lives of citizens

during a police operation and to supervise their subordinates.9

2.9

On the basis of the foregoing, the report of the Multiparty Congressional Commission

of Inquiry concluded that the Ministry of the Interior and the Director of Police bore

institutional responsibility for failing to remedy operations on the ground when they were

revealed to be flawed and to infringe on fundamental rights and for failing to effectively

oversee the police officers in charge. 10 It also found that the local directorates bore

responsibility because they had acted negligently in adapting the National Plan, preparing the

regional plans, supervising police officers in charge of operations, investigating incidents and

punishing those responsible.11

2.10

The investigation conducted by the Office of the Inspector-General of the National

Police revealed that eight members of the police force were administratively liable for their

conduct and subject to disciplinary penalties: a general for not exercising oversight because

he had failed to supervise the order of operations; two majors for failing, as group leaders, to

review and inspect beforehand the personnel assigned and for allowing some police officers

5 Congress of the Republic of Peru, Final report of the Multiparty Congressional Commission of

Inquiry that investigated how and under what circumstances four campesinos died as a result of the

most recent indefinite agrarian strike that began on 18 February 2008, pp. 91–93.

6 Ballistics Report No. 04/08.

7 Congress of the Republic of Peru, Final report of the Multiparty Congressional Commission of

Inquiry that investigated how and under what circumstances four campesinos died as a result of the

most recent indefinite agrarian strike that began on 18 February 2008, p. 52.

8 Ibid., p. 53.

9 Ibid.

10 Ibid., pp. 89–90.

11 Ibid., p. 90.

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to take their personal firearms with them; another major for not having followed the

demonstration, for which only 12 police officers had been assigned to provide protection; a

non-commissioned officer for having thrown a tear-gas canister without due diligence in the

performance of his police duties; two non-commissioned officers for carrying their personal

firearms; and police officer Carlos Alberto Rodríguez Huamaní for having lied in his

statement to the Office of the Inspector-General, in which he stated that he had not fired his

weapon, and later indicating to the homicide division and a representative of the Public

Prosecution Service that he had indeed used the weapon.12

2.11

The Commission of Inquiry stated that, although the Office of the Inspector-General

of the National Police carries out important work in investigating and punishing disciplinary

violations committed by police personnel and ensuring that any police personnel who commit

offences are tried in accordance with the law, it is noteworthy that the wrongful acts of the

police officers in question were classified legally as very minor offences, indicating that the

Office of the Inspector-General of the National Police is covering up for and protecting some

bad police officers.13

2.12

On the basis of all the foregoing elements, the Commission of Inquiry recommended

that the Public Prosecution Service “broaden the investigations to examine whether senior

officers of the Ayacucho police region were complicit by omission in the homicides, through

their failure to make appropriate use of mechanisms to supervise their subordinates”, and that

the Office of the Inspector-General and the Administrative Disciplinary Tribunal of the

Peruvian National Police “reclassify the disciplinary violations committed by various police

officers ... to reflect their true scope, as the violations in question involved the deaths of four

individuals and are therefore not minor”.14

Criminal proceedings

2.13

The authors claim that, in spite of the conclusions reached in the report of the

Multiparty Congressional Commission of Inquiry, the judicial investigations into the two

homicides were not carried out properly and led to judicial decisions that have allowed them

to go unpunished. In its judgment of 30 October 2013, the Criminal Appeals Division of the

High Court of Ayacucho acquitted the defendant, stating that although the autopsies

established the cause of death, it had been impossible to establish, either at the oral hearings

or through other judicial means, that the defendant was responsible, given that, according to

the report of the ballistics expert, his weapon bore no signs of having been fired.15 The

judgment also notes that the presumption of innocence is recognized in the Constitution and

can be overridden only by objective evidence, not suppositions.16 As convictions must be

based on sufficient evidence that clearly and unquestionably demonstrates the defendant’s

guilt, in the absence of such evidence, the defendant must be acquitted.17

2.14

Although the prosecutor’s office did not challenge the judgment, the authors did. On

7 June 2016, the Transitional Criminal Division of the Supreme Court of Justice upheld the

acquittal, despite stating that the police response was disproportionate, as there were too few

external factors to warrant it, and that the circumstances instead highlighted the

reprehensibility of the police officers’ conduct, as shots were fired at close range,

exponentially increasing their deadliness. In the view of the Transitional Criminal Division,

because of the shortcomings in the preliminary investigation, there was little evidence to

decisively and unquestionably link the acquitted defendant to the act of firing the shots. It

therefore described the prosecutor’s case as “strictly pro forma” and concluded that, given

the lack of evidence to establish beyond a reasonable doubt that the defendant had committed

the offence of aggravated homicide, it was found that there was insufficient evidence of guilt

to convict the defendant.18

12 Ibid., p. 51.

13 Ibid., p. 90.

14 Ibid., p. 97.

15 Judgment of 30 October 2013, pp. 30–31.

16 Ibid., p. 36.

17 Ibid., pp. 37–38.

18 Judgment of 7 June 2016, p. 7.

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2.15

The authors argue that, although it was established that the two deceased men had

been shot when their backs were turned (see para. 2.16 below), and although the police

officers’ lack of training – corroborated by the Ombudsman’s Office – had resulted in the

unnecessary use of tear gas, which made the situation more chaotic (see para. 2.17 below),

repeated negligence in the conduct of the investigations had significantly affected the

outcome of the trial (see paras. 2.18–2.20 below).

2.16

The investigation established that the shots were fired from a distance of

approximately 25 metres when Mr. García Mendoza and Mr. Pariona Camposano had their

backs turned.19 In the authors’ view, the use of lethal force against persons who were fleeing,

and therefore posed no danger to the life or physical integrity of the police officers, was

unjustified.

2.17

The authors also argue that the police officers were not adequately equipped for or

trained in crowd control, that the impact that an order to arrest a demonstrator without

compelling reasons would have on the crowd had not been properly assessed and that, while

the protest was peaceful, the use of tear gas made the situation chaotic, which led to the two

homicides. The police officers’ lack of training was corroborated by the Ombudsman’s

Office in its report No. 156, which states that “many of the coordination problems that the

various departments responsible for operations to restore public order have are reflected in

those operations”, and that “the Office’s review of the curriculum taught in National Police

academies for officers and non-commissioned officers has shown that issues relating to social

conflicts, violence and the use of force are treated superficially. In addition, the police

academies face logistical challenges … in providing practical training for future police

officers. Later, when the police officers are carrying out their duties, the shortcomings are

exacerbated because of the lack of a decentralized training plan and the frequent rotation of

the members of crowd-control units.”20

2.18

The authors claim that, despite all the evidence regarding the liability of the police,

the outcome of the judicial proceedings was affected by the negligence in the conduct of the

investigations. For example, even though the prosecutor had ordered the regional police chief

to have all the police officers who had participated in the operation turn in their weapons to

the forensics department, police officer Carlos Alberto Rodríguez Huamaní turned in his

weapon to the police armoury, not to the forensics department, and was not investigated for

his failure to comply with the order. Tests subsequently conducted on the weapon indicated

that it “bore no signs of having been fired”,21 which seems implausible given that the police

officer himself indicated that he had fired two shots. The test results can be explained by the

fact that the weapon had been cleaned before it reached the forensics department, as noted

by the Multiparty Congressional Commission of Inquiry (see para. 2.7). Furthermore, when

police officers use their weapons, they must file a report requesting that the weapon be taken

out of service and replaced, which he also failed to do. Nor did he return the cartridges, nor

was he asked by the authorities for an ammunition use report, which would have been useful

in determining which ammunition he had used during the operation and whether it was

consistent with the wounds to the victims’ skulls.

2.19

The authors also complain that the ballistics report prepared by experts from the

Institute of Forensic Medicine, a State institution, on four pellets that were extracted from

the victims’ bodies (three from Mr. García Mendoza’s skull and one from Mr. Pariona

Camposano’s) during the first autopsy, was contradictory in stating, on the one hand, that the

pellets found were compatible with the shotgun used by the police officer and therefore could

have been fired from it and, on the other, that they could have been fired from a home-made

19 Forensic report of the Institute of Forensic Medicine of Peru, p. 11, and autopsy report of the Equipo

Peruano de Antropología Forense, p. 9.

20 Republic of Peru, Ombudsman’s Office, decision No. 009-2012/DP, Violencia en los conflictos

sociales, report No. 156 (2012), pp. 6–7. Available at

https://sinia.minam.gob.pe/documentos/informe-defensorial-no-156-violencia-conflictos-

sociales#:~:text=Informe%3A%20Informe%20Defensorial%20N%C2%BA%20156%3A%20Violenc

ia%20en%20los%20conflictos%20sociales.&text=El%20presente%20informe%20tiene%20como,afe

ctaciones%20a%20los%20derechos%20fundamentales.

21 Ballistics expert’s report No. 317/08, Injuries Department of the Homicide Investigation Division of

the Criminal Investigations Directorate of the Peruvian National Police.

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firearm. It thereby introduced the possibility that the deaths could have been caused not by

the police but by a civilian. Indeed, as mentioned in the final report of the Commission of

Inquiry, the argument was advanced that the deaths had been caused by a civilian with a

home-made weapon. To support that argument, the Director of Forensics claimed before

Congress that the projectiles – lead pellets – were not from weapons used by the National

Police. However, two reports – the report of the Multiparty Congressional Commission of

Inquiry and an expert report that the relatives had requested from the Equipo Peruano de

Antropología Forense (Peruvian Team of Forensic Anthropology) – call into question the

theory of a home-made weapon. The expert report of the Equipo Peruano de Antropología

Forense stated that the pellets that were supposedly extracted from the bodies could not have

produced the holes found in the skulls, since their size and shape did not match, at any angle,

the large-diameter injuries to the skulls of both victims (oval in one case and round in the

other).22 The authors therefore believe that the pellets in question could have been placed in

the skulls to tamper with the evidence. The Equipo Peruano de Antropología Forense also

notes that, in addition to the three bullet impacts to Mr. García Mendoza’s head noted in the

first autopsy and the one found in Mr. Pariona Camposano’s head, there was a second bullet

impact in Mr. Pariona Camposano’s neck, exiting his jaw.23

2.20

The authors further claim that the investigations were not exhaustive, as the conduct

of neither the police commanders who planned the operation nor those who carried it out was

examined. In the authors’ view, the lack of investigation of the senior police officials, who

failed to effectively oversee the actions of their subordinates, constitutes another example of

negligence in the investigation, since the report of the Multiparty Congressional Commission

of Inquiry itself indicated that the superiors had wrongfully failed to act and could be found

to have been complicit in the homicides by their omissions. 24 Although the report was

released on 15 January 2009, four years and nine months before the acquittal was handed

down, the police commanders were never included in the investigation.

Complaint

3.1

The authors claim that there has been a violation of article 6 (1) of the Covenant, read

alone and in conjunction with article 2 (3). They recall that article 3 of the Code of Conduct

for Law Enforcement Officials provides that force may be used only when “strictly necessary”

and that the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials,

which are also reflected in the State party’s Police Human Rights Manual,25 establish the

principles of legality, necessity and proportionality. However, in the case at hand, the use of

force by police personnel was neither necessary nor proportional, which means that their

actions were unlawful. The authors claim that both deaths were arbitrary within the meaning

of general comment No. 36 (2019).

3.2

Furthermore, as both homicides have gone entirely unpunished, the authors claim that,

in the present case, there has also been a violation of article 6 of the Covenant read in

conjunction with article 2 (3). In this regard, the authors recall that, while general comment

No. 36 (2019) states that the investigation and the prosecution of those responsible for deaths

are important elements of the duty to protect the right to life, in the present case, the only

defendant was acquitted after an investigation marked by negligence and no police

commander was investigated.

3.3

Lastly, the authors claim a violation of the right of peaceful assembly protected under

article 21 of the Covenant. They recall that, according to the guidelines26 for observing

demonstrations and protests, the right to protest arises from a combination of three essential

safeguards, namely, freedom of expression, freedom of peaceful assembly and freedom of

association. The authors assert that the action taken by the police against the demonstrators

22 Equipo Peruano de Antropología Forense, expert report of 11 March 2009, p. 44.

23 Ibid., p. 45.

24 Congress of the Republic of Peru, Final report of the Multiparty Congressional Commission of

Inquiry that investigated how and under what circumstances four campesinos died as a result of the

most recent indefinite agrarian strike that began on 18 February 2008, p. 93.

25 Ministerial Decision No. 1452-2006-IN of 31 May 2006.

26 See www.ohchr.org/Documents/Publications/Factsheet31.pdf.

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was disproportionate and unnecessary. There were no grounds for restricting or suppressing

the demonstration, there were no signs of rioting warranting the arrest of a demonstrator and

tear gas was used to disperse demonstrators who were protesting peacefully.

State party’s observations on admissibility and the merits

4.1

On 15 April 2021, the State party argued that the communication should be declared

inadmissible for failure to exhaust domestic remedies. It noted that, specifically, the authors

had not applied for the constitutional remedy of amparo with respect to either the judgment

of 30 October 2013 acquitting the accused police officer or that of 7 June 2016 upholding the

judgment at first instance.

4.2

The State party also argues that there has been no violation of article 6 of the Covenant

since the defendant’s guilt was not established. The State party points out that the police

officer, who admitted firing the shots in question, acted in exercise of his right to self-defence.

The State party further asserts that, when fired, pellets only enter soft tissue, do not lead to

bone fractures and are not lethal.

4.3

The State party concludes that there was an adequate investigation, but there was no

evidence to provide a proper and sufficient basis for demonstrating, with objective certainty,

that the accused was criminally liable. Convictions must be based on evidence that is

sufficient to clearly and unquestionably demonstrate the guilt of the accused; given the

absence of such evidence, an acquittal was appropriate. The State party points out that the

presumption of innocence, a principle contained in the Covenant itself, had to be respected,

given the uncertainty as to whether the accused had committed the acts at issue in the criminal

proceedings.

Author’s comments on the State party’s observations

5.1

On 16 August 2021, the authors argued that they were not required to apply for the

constitutional remedy of amparo to exhaust domestic remedies. Indeed, the Peruvian

Constitutional Court had already pointed out that the remedy of amparo does not provide an

additional level of review for ordinary proceedings, as it does not allow for all the findings

made in such proceedings to be reviewed.27 Furthermore, the infringements of the rights to

life and of peaceful assembly have already occurred, and the Code of Constitutional

Procedure states that the remedy of amparo is unavailable if, at the time the application for

it is made, the violation of a constitutional right or the threat of its violation has ceased or

become irreparable. The authors also recall that, according to the Committee’s own

jurisprudence, it is only necessary to exhaust those remedies that have some prospect of

success.28

5.2

The authors also recall that the public prosecutor’s office did not appeal the judgment

at first instance acquitting the defendant. In the face of that office’s inaction, private lawyers

did appeal, and the authors sought to have the State party correct the course of action taken

at first instance. Although the appellate court demonstrated in the grounds for its judgment

that the prosecutor at first instance had conducted an investigation that was not rigorous but

merely pro forma, it upheld the acquittal. In its judgment, the appellate court noted the

“shortcomings in the preliminary investigation”, as a result of which “there was little

evidence to decisively and unquestionably link the acquitted defendant, Rodríguez Huamaní,

to the act of firing the shots; the prosecution’s case in this regard was therefore strictly pro

forma”. It was because of that “lack of evidence to establish beyond a reasonable doubt that

the defendant had committed the offence of aggravated homicide” that it was “found that

there is insufficient evidence of guilt to convict the defendant”. The authors point out that the

foregoing is related to the consideration of the merits (see para. 2.14).

5.3

With regard to the violation of article 6 of the Covenant, the authors note that the State

party’s argument that the police officer acted in self-defence is not addressed in the judgment

of the appellate court. Rather, that judgment stated that “the police response was

27 Judgment of 17 October 2005 in case No. 5374-2005-PA/TC, para. 6. Available at

https://tc.gob.pe/jurisprudencia/2006/05374-2005-AA.pdf.

28 Alba Cabriada v. Spain (CCPR/C/82/D/1101/2002), para. 6.5.

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disproportionate, as there were too few external factors to warrant it” and that “the

circumstances instead highlighted the reprehensibility of the police officers’ conduct, as shots

were fired at close range, exponentially increasing their deadliness” (see para. 2.14).

5.4

The authors also note that, according to general comment No. 36 (2019), the duty to

protect life is carried out through the investigation, prosecution and punishment of persons

responsible for the unlawful deprivation of life, through reparation for victims’ family

members and through an examination of the legal responsibility of the superior officers who

planned and were in command of the operation in question.

5.5

Lastly, the authors point out that they are not challenging the outcome of the

judgments that resulted in the acquittal of the main suspect but rather the serious omissions

that prevented the State party from carrying out an in-depth investigation that would have

made it possible for the violation of the right to life to be punished.

State party’s additional observations

6.1

On 18 October 2021, the State party reiterated its position regarding the failure to

exhaust domestic remedies, stressing that the constitutional remedy of amparo provides a

constitutional safeguard against acts or omissions of any authority, government official or

other person that violate or threaten fundamental rights. Article 4 of the Code of

Constitutional Procedure states that “the remedy of amparo is available with respect to final

judicial rulings that clearly undermine the effective protection of procedural guarantees”. In

short, the remedy of amparo can be invoked to challenge judicial rulings in relation to each

and every one of the fundamental rights recognized, whether expressly or implicitly, in the

Constitution. Thus, if the remedy of amparo had been pursued, it would have been possible

to verify whether minimum guarantees, such as the rights to have unimpeded access to the

justice system, to mount a defence, to give evidence, to obtain a reasoned decision based on

the law, to appeal and to have one’s case heard within a reasonable time period and by a

competent, independent, impartial judge, had been respected. Judicial proceedings that take

place without such guarantees being observed are deemed irregular and must be corrected by

the Constitutional Court.

6.2

Regarding admissibility, the State party asks the Committee to find, as it has

previously done, that when it comes to authors’ claims concerning procedural violations at

the stage of investigation and trial, “it is generally for States parties’ courts to evaluate the

facts and the evidence in a particular case, and to interpret domestic law, unless it can be

ascertained that the evaluation was clearly arbitrary or amounted to a denial of justice, or that

the court failed in its duty to maintain independence and impartiality”, and that if it cannot

be concluded that the courts evaluated the evidence arbitrarily or in a manner that amounted

to a denial of justice, then the Committee must declare the communication insufficiently

substantiated and therefore inadmissible under article 2 of the Optional Protocol.29

6.3

With respect to the merits, the State party reiterates that it has not violated the right to

life, as the courts found the accused not guilty following judicial proceedings in which due

process guarantees and the presumption of innocence were respected. The State party also

notes that it respects its citizens’ rights to personal integrity and to life and, for that reason,

has implemented domestic protection mechanisms.

Issues and proceedings before the Committee

Consideration of admissibility

7.1

Before considering any claim contained in a communication, the Committee must

decide, in accordance with rule 97 of its rules of procedure, whether the communication is

admissible under the Optional Protocol.

7.2

The Committee has ascertained, as required under article 5 (2) (a) of the Optional

Protocol, that the same matter is not being examined under another procedure of international

investigation or settlement.

29 S. Sh. v. Kazakhstan (CCPR/C/119/D/2842/2016), paras. 4.4–4.6.

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7.3

The Committee notes the State party’s argument that the communication should be

declared inadmissible for failure to exhaust domestic remedies, under article 5 (2) (b) of the

Optional Protocol, because the authors did not apply for the constitutional remedy of amparo

with respect to either the judgment at first instance or the appellate judgment upholding it,

both of which acquitted the accused.

7.4

The Committee also notes the authors’ argument that they were not required to apply

for the constitutional remedy of amparo to exhaust domestic remedies, since the Peruvian

Constitutional Court had already pointed out that the remedy of amparo does not provide an

additional level of review for ordinary proceedings and that the Code of Constitutional

Procedure states that the remedy of amparo is unavailable if, at the time the application for

it is made, the violation of the right or the threat of its violation has ceased or become

irreparable, as in the case at hand. The authors also recall that, according to the Committee’s

own jurisprudence, it is only necessary to exhaust those remedies that have some prospect of

success.

7.5

The Committee recalls that the purpose of requiring that domestic remedies be

exhausted is to give States parties the opportunity to perform their duty to protect and

guarantee Covenant rights.30 The Committee also recalls that, in keeping with article 5 (2) (b)

of the Optional Protocol, the authors need only make use of avenues that offer them a

reasonable prospect of redress,31 that relate to the alleged violation and that offer redress that

would be proportionate to the harm done. While the Committee notes that, as stated by the

Inter-American Court of Human Rights, “the writs of habeas corpus and of ‘amparo’ are

among those judicial remedies that are essential for the protection of various rights … and

that serve, moreover, to preserve legality in a democratic society”,32 in the present case, the

Committee also notes that the State party has not sufficiently responded to the authors’

specific argument that the remedy of amparo as regulated in the State party’s legislation is

unavailable once the violation has become irreparable, as is the case in the present

communication, where the deaths of Mr. García Mendoza and Mr. Pariona Camposano are

irreversible. In this respect, the Committee notes that the authors’ complaint relates to the

recognition of the violation of their relatives’ right to life. The authors did not apply to the

domestic courts – and did not apply to the Committee – for any reparation measures for the

violation of their own rights. The Committee also notes that article 1 of the Peruvian Code

of Constitutional Procedure provides that the remedy of amparo is designed to protect

constitutional rights and restore the situation to what it was before the violation or threat of

violation of a constitutional right.33 The Committee notes that, in the State party, the main

purpose of the remedy of amparo is therefore the restitution of violated rights and it aims at

the cessation of the harmful acts and the restoration of the situation that existed prior to the

violation, and that when restitution is impossible because the violation has become

irreparable (as is the case with the violation of the right to life, for example), amparo rulings

may, in the case that a responsible party has been identified, request the opening of an

investigation and grant compensation for the harm caused.34 In the present case, nonetheless,

the Committee notes that the alleged violation of the right to life has become irreparable, and

that an amparo ruling could not have served to identify the responsible party due to the

“shortcomings in the preliminary investigation” which resulted in “insufficient evidence”

(see paras. 2.14 and 5.2). The Committee further notes that, in any event, an amparo appeal

against the judicial decisions acquitting the accused police officer (as proposed by the State

party) would not have addressed the broader institutional responsibility pointed out by the

report of the Multiparty Congressional Commission of Inquiry in 2009, when the State party

was recommended to “broaden the investigations to examine whether senior officers were

complicit by omission in the homicides” and to “reclassify the disciplinary violations

committed by various police officers to reflect their true scope, as the violations in question

30 Settled jurisprudence since the Committee adopted its Views in T.K. v. France, communication No.

220/1987, para. 8.3.

31 Colamarco Patiño v. Panama (CCPR/C/52/D/437/1990), para. 5.2.

32 Habeas corpus in emergency situations (arts. 27 (2), 25 (1) and 7 (6), American Convention on

Human Rights). Advisory Opinion OC-8/87 of 30 January 1987. Series A No. 8, para. 42.

33 See also the Habeas Corpus and Amparo Act (No. 23.506), art. 1.

34 Ibid., art. 11.

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involved the deaths of four persons and are therefore not minor” (see paras. 2.9 and 2.12). In

the light of all the above, the Committee considers that an amparo remedy would not have

been effective in the specific circumstances of the present case and therefore concludes that

it is not precluded by article 5 (2) (b) of the Optional Protocol from examining the

communication.

7.6

As all admissibility requirements have been met and the authors’ complaints under

article 6 of the Covenant, read alone and in conjunction with article 2 (3), and article 21 have

been sufficiently substantiated for the purposes of admissibility, the Committee declares the

communication admissible and proceeds with its consideration of the merits.

Consideration of the merits

8.1

The Committee has considered the communication in the light of all the information

submitted to it by the parties, in accordance with article 5 (1) of the Optional Protocol.

8.2

The Committee notes the authors’ argument that the facts of the present case constitute

a violation of article 6 (1) of the Covenant because, while any use of force must be consistent

with the principles of legality, necessity and proportionality, the use of force in the present

case was not, with the result that the two killings were arbitrary executions. The Committee

notes that the authors have indicated that two shots were heard just before Mr. García

Mendoza and Mr. Pariona Camposano fell to the ground and died as a result of the impact of

firearm projectiles that, according to the findings of the forensic report of the Institute of

Forensic Medicine (see para. 2.16), came from behind, meaning that the victims had their

backs turned and did not represent a danger to the police officers; that the accused police

officer admitted having fired, in the direction of where the victims fell, the only two shots

heard during the demonstration; that the Office of the Inspector-General of the National

Police found that eight police officers were administratively liable and subject to disciplinary

penalties, including the accused police officer, who faced such liability for having lied at first,

stating that he had not fired his weapon, and then later saying that he had indeed done so;

that, according to the ballistics report, the projectiles that caused the deaths are compatible

with the shotgun used by the accused police officer; that even the Transitional Criminal

Division of the Supreme Court has said that the police response was “disproportionate” and

reprehensible; that the Ombudsman’s Office has acknowledged that police officers are not

adequately trained in crowd control; and that the Multiparty Congressional Commission of

Inquiry also concluded that the Ministry of the Interior and the Director of Police bore

institutional responsibility for not having effectively overseen the police officers.

8.3

The Committee also notes the authors’ additional claim that there has been a violation

of article 6 of the Covenant read in conjunction with article 2 (3) since the two homicides

have gone unpunished, with the only defendant being acquitted after an investigation marked

by negligence that prevented the violation of the right to life from being punished, in spite of

all the elements mentioned above. According to the authors, the suspect did not initially make

his weapon available to the forensics department as ordered by the public prosecutor’s office,

bringing it in instead after it had already been cleaned, and was not investigated for his failure

to comply with the order. As a result, the ballistics report concluded that the weapon showed

no signs of having been used, even though the suspect himself had stated otherwise. Similarly,

the suspect did not file a report requesting that his weapon be taken out of service and

replaced after he had used it, even though that was the procedure to follow. He also did not

return the remaining cartridges and was not asked for an ammunition use report, which would

have been useful in determining which ammunition he had used during the operation and

whether it was consistent with the wounds to the victims’ skulls. The authors also claim that

the investigations were not exhaustive, as the legal responsibility of superiors was not

examined, even though the Multiparty Congressional Commission of Inquiry had

recommended that the Public Prosecution Service broaden its investigations and consider

whether senior officers had been complicit by their omissions. In short, as recognized by the

Transitional Criminal Division of the Supreme Court, there were shortcomings in the

investigation that led to the two killings remaining unpunished.

8.4

The Committee also notes the State party’s argument that, after a proper investigation,

it had not been established that the accused, who acted in exercise of his right to self-defence,

was criminally liable. The State party points out that convictions must be based on a sufficient

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body of evidence that clearly and unquestionably demonstrates the defendant’s guilt and that,

in the absence of such evidence, the defendant must be acquitted, in keeping with the

presumption of innocence.

8.5

The Committee recalls that, according to general comment No. 36 (2019), the use of

potentially lethal force for law enforcement purposes is an extreme measure that should be

resorted to only when strictly necessary in order to protect life or prevent serious injury from

an imminent threat (see para. 12). Force may be used only when less dangerous means are

not practicable and only to the minimum extent necessary, which means that firearms should

never be used for the sole purpose of dispersing an assembly.35 In addition, any use of force

must be in line with the fundamental principles of legality, necessity, proportionality,

precaution, non-discrimination and responsibility, and indiscriminate fire into a crowd is

never allowed. 36 Consequently, live ammunition may be directed only at people who

represent an imminent threat of death or serious injury to law enforcement officials or

bystanders.

8.6

In addition, States parties are expected to take all necessary measures to prevent

arbitrary deprivation of life by their law enforcement officials, including through procedures

designed to ensure that law enforcement actions are adequately planned. The plan should

detail the instructions and equipment for and the deployment of all relevant officials and

units.37 In particular, only law enforcement officials trained on the relevant human rights

standards should be deployed to police assemblies.38 According to paragraphs 2.7, 2.8 and

2.10 above, these measures do not appear to have been implemented. Furthermore, all

operations of law enforcement officials should comply with the Code of Conduct for Law

Enforcement Officials and the Basic Principles on the Use of Force and Firearms by Law

Enforcement Officials, and law enforcement officials should undergo appropriate training

designed to inculcate these standards so as to ensure, in all circumstances, the fullest respect

for the right to life.39

8.7

Furthermore, the Committee recalls that, since deprivation of life by the authorities of

the State is a matter of the utmost gravity, the duty to protect the right to life also requires

States parties to investigate and prosecute potential cases of unlawful deprivation of life,

punish perpetrators and provide full reparation.40 The Committee recalls that States have an

obligation to investigate effectively, impartially and in a timely manner any allegation or

reasonable suspicion of unlawful use of force or other violations by law enforcement officials,

in the context of assemblies, and that both intentional and negligent action or inaction can

amount to a violation of human rights. 41 Investigations and prosecutions of potentially

unlawful deprivations of life should be undertaken in accordance with relevant international

standards, including the Minnesota Protocol on the Investigation of Potentially Unlawful

Death, and must be aimed at ensuring that those responsible are brought to justice.42 In

particular, investigations should explore the legal responsibility of superior officials with

regard to violations of the right to life committed by their subordinates,43 and there must be

an investigation whenever live fire has been used against demonstrators.44

8.8

The Committee notes that Mr. García Mendoza and Mr. Pariona Camposano died

during a demonstration because of head wounds caused by bullets that had entered at the

neck and exited the jaw; that the prosecutor filed criminal charges against a police officer for

the alleged offence of aggravated homicide, seeking a sentence of 30 years’ imprisonment;

35 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, principle 9.

36 A/HRC/26/36, para. 75.

37 Human Rights Committee, general comment No. 37 (2020), para. 76.

38 Ibid., para. 80.

39 Human Rights Committee, general comment No. 36 (2019), para. 13.

40 Ibid., para. 19.

41 Human Rights Committee, general comment No. 37 (2020), para. 90.

42 Human Rights Committee, general comment No. 36 (2019), para. 27. See also Sathasivam et al. v. Sri

Lanka (CCPR/C/93/D/1436/2005), para. 6.4; Amirov and Amirova v. Russian Federation

(CCPR/C/95/D/1447/2006), para. 11.2.

43 General comment No. 36 (2019), para. 27.

44 Ibid., para. 29. See also Umetaliev et al. v. Kyrgyzstan (CCPR/C/94/D/1275/2004), para. 9.4; Olmedo

v. Paraguay (CCPR/C/104/D/1828/2008), para. 7.5.

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and that the police officer was acquitted because of a lack of evidence, stemming mainly

from the fact that the investigation was marked by negligence, as acknowledged by the State

party’s own judicial authorities.

8.9

In the light of the foregoing, the Committee considers that the investigations

conducted do not appear to have been exhaustive and were ineffective in identifying those

responsible for the deaths of Mr. García Mendoza and Mr. Pariona Camposano and concludes

that the facts before it disclose a violation of article 6, read alone and in conjunction with

article 2 (3) of the Covenant.

8.10

Having reached this conclusion, and in the light of the evidence contained in

paragraphs 8.5 to 8.8 above, the Committee is of the view that the facts before it disclose that

the use of force failed to meet the requirements of necessity and proportionality and, therefore,

amount to a violation of the right of Mr. García Mendoza and Mr. Pariona Camposano to

peaceful assembly established under article 21 of the Covenant.

9.

The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that

the information before it discloses a violation by the State party of article 6 (1) of the

Covenant, read alone and in conjunction with article 2 (3), and article 21.

10.

Pursuant to article 2 (3) (a) of the Covenant, the State party is under an obligation to

provide the author with an effective remedy. This requires it to provide full reparation to

persons whose rights have been violated. Accordingly, the State party should, inter alia, (a)

conduct a thorough and effective investigation into the events leading to the deaths of Mr.

García Mendoza and Mr. Pariona Camposano and, if liability is established, impose criminal

and administrative penalties on all persons responsible; and (b) provide adequate

compensation to the authors for the harm they have suffered. The State party is also under an

obligation to take steps to prevent similar violations from occurring in the future.

11.

Bearing in mind that, by becoming a party to the Optional Protocol, the State party

has recognized the competence of the Committee to determine whether there has been a

violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has

undertaken to ensure to all individuals within its territory and subject to its jurisdiction the

rights recognized in the Covenant and to provide an effective and enforceable remedy when

it has been determined that a violation has occurred, the Committee wishes to receive from

the State party, within 180 days, information about the measures taken to give effect to the

present Views. The State party is also requested to publish the present Views and to have

them widely disseminated in the official languages of the State party.