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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GE.22-06748
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.