CASE
LAW: Sexual and Reproductive Rights – Chavez v Peru
Inter-American
Commission on Human Rights
REPORT Nº 71/03 [1]
PETITION 12.191
FRIENDLY
SETTLEMENT
MARÍA MAMÉRITA MESTANZA CHÁVEZ
PERU
October 22, 2003
I.
Summary
1. In a
petition lodged with the Inter-American Commission on Human
Rights (hereinafter “the Commission,” “the
Inter-American Commission,” or “the IACHR”)
on June 15, 1999, the nongovernmental organizations Office for
the Defense of Women’s Rights (DEMUS), the Latin American
and Caribbean Committee for the Defense of Women’s Rights
(CLADEM), and the Asociación Pro Derechos Humanos [Association
for Human Rights] (APRODEH), which subsequently accredited as
co-petitioners the Center for Reproductive Law and Policy (CRLP)
and the Center for Justice and International Law (CEJIL), (hereinafter
“the petitioners”), alleged that the Republic of
Peru (hereinafter “Peru”) violated the human rights
of Ms. María Mamérita Mestanza Chávez,
by forced sterilization that ultimately caused her death.
2. The original
petitioners alleged that the facts denounced constitute violation
by the Peruvian State of the rights to life, personal integrity,
and equality before the law, contained in Articles 4, 5, 1,
and 24 of the American Convention on Human Rights (hereinafter
“the Convention” or “the American Convention”),
and violation of Articles 3, 4, 7, 8, and 9 of the Inter-American
Convention on the Prevention, Punishment, and Eradication of
Violence Against Women (hereinafter “the Convention of
Belém do Pará”), Articles 3 and 10 of the
Additional Protocol to the American Convention on Human Rights
in the Area of Economic, Social, and Cultural Rights (hereinafter
“the Protocol of San Salvador.”) and Articles 12
and 14(2) of the Convention on the Elimination of All Forms
of Discrimination Against Women (CEDAW).
3. On February
22, 2001, the Peruvian State signed a joint press release with
the Inter-American Commission on Human Rights, in which it was
agreed to pursue friendly settlement of some cases before the
Commission, including this one, in accordance with Articles
48(1)(f) and 49 of the American Convention on Human Rights.
4. On March
2, 2001, during the 110th session of the Inter-American Commission
on Human Rights, the Peruvian State and the victims’ representatives
signed the Preliminary Agreement for Friendly Settlement with
intervention and approval by the IACHR. The final friendly settlement
was agreed upon on August 26, 2003, when the act setting out
the friendly settlement reached by the parties was signed in
Lima.
5. This
friendly settlement report, pursuant to Article 49 of the Convention
and Article 41.5 of the Commission’s Regulations, presents
a brief summary of the facts alleged by the petitioners, the
friendly solution reached, and agreement for its publication.
II.
Processing with the Commission
6. The Commission
received the claim on June 15, 1999. On July 14, 1999 the IACHR
opened the case, transmitted pertinent parts of the petition
to the Peruvian State, and requested information within 90 days.
Peru asked for additional time to prepare its reply, which was
approved by the IACHR. Peru replied on January 14, 2000. The
petitioners made comments on the State’s reply on April
12, 2000. On October 3, 2000 the Inter-American Commission on
Human Rights approved the Report on Admissibility Nº 66/00.
7. On March
2, 2001, with intervention and approval by the Inter-American
Commission on Human Rights, the parties signed the Preliminary
Agreement for Friendly Settlement, in which the Peruvian State
admitted its international responsibility for the acts alleged
by the petitioners and promised to take the necessary measures
to compensate the victims.
8. On August
26, 2003, in the city of Lima, the representatives of the victims
and the State signed the Agreement for Friendly Settlement,
requesting that the Commission ratify the entire contents.
III.
Facts
9. They
alleged that the case of Ms. María Mamérita Mestanza
is one more among a large number of cases of women affected
by a massive, compulsory, and systematic government policy to
stress sterilization as a means for rapidly altering the reproductive
behavior of the population, especially poor, Indian, and rural
women. They noted that the Ombudsman had received several complaints
on this matter, and that between November 1996 and November
1998 CLADEM had documented 243 cases of human rights violations
through the performance of birth control surgery in Peru.
10. They
stated that Ms. María Mamérita Mestanza, a rural
woman about 33 years old and mother of seven children, was pressured
to accept sterilization starting in 1996 by the Health Center
of Encañada District. She and her husband Jacinto Salazar
Suárez were subjected to various forms of harassment,
including several visits in which health personnel threatened
to report her and Mr. Salazar Suárez to the police, and
told them that the government had approved a law requiring anyone
who had more than five children to pay a fine and go to jail.
11. They
state that finally, under coercion, Ms. Mestanza agreed to have
tubal ligation surgery. The procedure was performed on March
27, 1988 at the Cajamarca Regional Hospital, without any pre-surgery
medical examination. Ms. Mestanza was released the next day,
March 28, 1988, although she had serious symptoms including
nausea and sharp headaches. In the following days Mr. Jacinto
Salazar reported to personnel of La Encañada Health Center
on Ms. Mestanza’s condition, which worsened daily, and
was told by them that this was due to post-operative effects
of the anesthesia.
12. They
state that Ms. Mestranza Chavez died at home on April 5, 1998,
and that the death certificate specified a “sepsis”
as the direct cause of death and bilateral tubal blockage as
a precedent cause. They report that a few days later a doctor
from the Health Center offered a sum of money to Mr. Jacinto
Salazar in an effort to put an end to the matter.
13. They
indicate that on April 15, 1998 Mr. Jacinto Salazar filed charges
with the Provisional Combined Prosecutor of Baños del
Inca against Martín Ormeño Gutiérrez, Chief
of La Encañada Health Center, in connection with the
death of Ms. Mestanza, for crimes against life, body, and health,
in premeditated homicide (first degree murder). They add that
on May 15, 1998 this Provincial Prosecutor indicted Mr. Ormeño
Gutiérrez and others before the local Provincial Judge,
who on June 4, 1998 ruled that there were insufficient grounds
to prosecute. This decision was confirmed on July 1, 1998 by
the Circuit Criminal Court, so on December 16, 1998 the Provincial
Prosecutor ordered the case dismissed.
IV.
Friendly settlement
14. The
State and the petitioner signed the friendly settlement agreement,
the text of which follows:
First:
Background
Ms. María
Mamérita Mestanza Chávez was forced to undergo
sterilization surgery, which ultimately resulted in her death.
The petitioner organizations allege that her rights to life,
personal integrity, and equality before the law were violated,
in contravention of Articles 4, 5, 1, and 24 of the American
Convention on Human Rights, Articles 3, 4, 7, 8, and 9 of the
Inter-American Convention on the Prevention, Punishment, and
Eradication of Violence Against Women (Convention of Belém
do Pará), Articles 3 and 10 of the Additional Protocol
to the American Convention on Human Rights in the Area of Economic,
Social, and Cultural Rights, and Articles 12 and 14.2 of the
Convention on the Elimination of All Forms of Discrimination
Against Women.
On July
14, 1999 the Inter-American Commission on Human Rights transmitted
the pertinent parts of the complaint to the Peruvian State and
requested information. On October 3, 2000 the IACHR approved
Report No. 66/00 on admissibility, and continued reviewing the
substance of the case, concerning alleged violations of the
American Convention and the Convention of Belém do Pará.
On March
2, 2001 during the 110th regular session of the IACHR a Preliminary
Agreement for Friendly Settlement was reached.
Second: Recognition
The Peruvian
State, aware that protection and total respect for human rights
is the cornerstone for a just, honorable, and democratic society,
in strict compliance with its obligations assumed with the signing
and ratification of the American Convention on Human Rights
and other international human rights instruments to which it
is a party, and aware that any violation of an international
obligation that results in injury brings with it the duty for
adequate reparation, which can most justly be done through compensation
of the victim, investigation of the facts, and administrative,
civil, and criminal penalties for the responsible parties, recognizes
its international responsibility for the violation of Articles
1.1, 4, 5, and 24 of the American Convention on Human Rights,
as well as Article 7 of the Inter-American Convention on the
Prevention, Punishment, and Eradication of Violence Against
women in the harm done to victim María Mamérita
Merstanza Chávez.
This recognition
was reflected in the Preliminary Agreement for Friendly Settlement
signed between the Peruvian State and the victim’s legal
representatives, with intervention and approval by the Inter-American
Commission on Human Rights, on March 2, 2001 during the 110th
session of the Inter-American Commission on Human Rights. In
that agreement the Peruvian State admitted international responsibility
for the facts described and pledged to take steps for material
and moral reparation of the harm done and to initiate a thorough
investigation and trial of the perpetrators and take steps to
prevent the recurrence of similar incidents in the future.
Third:
Investigation and punishment
The Peruvian
State promises to make a thorough investigation of the facts
and apply legal punishments to any person determined to have
participated in them, as either planner, perpetrator, accessory,
or in other capacity, even if they be civilian or military officials
or employees of the government.
In this regard, the Peruvian State pledges to carry out administrative
and criminal investigations into the attacks on the personal
liberty, life, body, and health of the victim, and to punish:
a.Those
responsible for the acts of pressuring the consent of Ms. María
Mamérita Mestanza Chávez to submit to tubal ligation.
b. The health
personnel who ignored the need for urgent care for Ms. Mestanza
after her surgery.
c. Those
responsible for the death of Ms. María Mamérita
Mestanza Chávez.
d. The doctors
who gave money to the spouse of the deceased woman in an attempt
to cover up the circumstances of her demise.
e. The Investigative
Commission, named by Cajamara Sub-Region IV of the Health Ministry,
which questionably exonerated the health personal from responsibility
for Ms. Mestanza’s death.
Apart from
the administrative and criminal penalties, the Peruvian state
pledges to report any ethical violations to the appropriate
professional association so that it can apply sanctions to the
medical personnel involved in these acts, as provided in its
statutes.
In addition,
the State pledges to conduct administrative and criminal investigations
into the conduct of agents of the Office of Public Prosecution
and the judicial branch who failed to take action to clarify
the facts alleged by Ms. Mamérita Mestanza’s widower.
Fourth:
Indemnification
1.
Beneficiaries of this Agreement
The only
persons recognized by the Peruvian State as beneficiaries of
any indemnification are Jacinto Salazar Suárez, huband
of María Mamérita Mestanza Chávez, and
her children: Pascuala Salazar Mestanza, Maribel Salazar Mestanza,
Alindor Salazar Mestanza, Napoleón Salazar Mestanza,
Amancio Salazar Mestanza, Delia Salazar Mestanza, and Almanzor
Salazar Mestanza.
2.
Monetary compensation
a. Moral
damages
The Peruvian
State awards one-time compensation to each of the beneficiaries
of ten thousand U.S. dollars ($10,000.00) for reparation of
moral injury, which totals eighty thousand U.S. dollars ($80,000.00).
The State
will deposit the amount due the minors in a trust account in
accordance with the best terms available under sound banking
practice. Arrangements will be made jointly with the Salazar
Mestanza family’s legal representatives.
b. Corollary
damages
Injury caused
as a direct consequence of the event giving rise to the claim
consists of expenses incurred by the family as a direct result
of the acts. These expenses were incurred to file and follow-up
criminal charges with the Office of Public Prosecutions for
aggravated homicide of María Mamérita Mestanza,
as well as the costs of Ms. Mestanza’s funeral and burial.
The amount expended for these purposes is two thousand U.S.
dollars ($2,000.00), which the Peruvian State shall pay to the
beneficiaries.
Fifth:
Indemnification from those criminally responsible for the acts
The Agreement
for Peaceful Settlement does not include the beneficiaries’
right to damages from all those responsible for violation of
Ms. María Mamérita Mestanza’s human rights,
as determined by a competent court in accordance with Article
92 of the Peruvian Penal Code, a right which is recognized by
the Peruvian State. This agreement expressly waives any other
claim by the beneficiaries against the Peruvian State as responsible
party, a co-defendant, or in any other capacity.
Sixth:
Right of recovery
The Peruvian
State reserves the right of recovery against all persons found
to be responsible in this case through the definitive sentence
of a competent national tribunal, in accordance with current
domestic law.
Seventh:
Tax exemption, compliance, and late penalty
The damages
awarded by the Peruvian State shall not be subject to payment
of any present or future tax, assessment, or fee, and shall
be paid no later than six months after the Inter-American Commission
on Human Rights has sent notification of this agreement’s
ratification, after which the State shall pay the maximum late
fee and interest required or permitted by domestic legislation.
Eighth:
Medical payments
The Peruvian
State promises to make a one-time payment to the beneficiaries
of seven thousand U.S. dollars ($7,000.00) for psychological
rehabilitation treatment they require as a result of the death
of María Mamérita Mestanza Chávez. That
sum shall be paid in trust to a public or private institution,
designated as the trustee, which will administer the resources
spent on providing psychological care needed by the beneficiaries.
The institution will be chosen jointly by the State and representatives
of the Salazar Mestanza family, with support from the National
Human Rights Coordination, DEMUS, APRODEH, and the Archbishop
of Cajamarca. Expenses for legal establishment of the trust
shall be paid by the Peruvian State.
In addition, the Peruvian State promises to give the husband
and children of María Mamérita Mestanza Chávez
permanent health insurance with the Ministry of Health or other
competent entity. The surviving spouse’s health insurance
will be permanent, as will that of the children until they have
their own public and/or private coverage.
Ninth:
Education payments
The Peruvian
State promises to give the victim’s children free primary
and secondary education in public schools. The victim’s
children will receive tuition-free university education for
a single degree at state schools, provided they qualify for
admission.
Tenth:
Other payments
The Peruvian
State agrees to make an additional payment of twenty thousand
U.S. dollars ($20,000.00) to Mr. Jacinto Salazar Suárez
to buy land or a house in the name of the children he had with
Ms. María Mamérita Mestanza. Within one year of
the date of this agreement Mr. Salazar Suárez must register
the purchase by delivering the deed to the Executive Secretariat
of the National Human Rights Council of the Ministry of Justice.
Furthermore, Mr. Salazar Suárez agrees not to sell or
lease the property purchased until the youngest of his children
is of legal age, unless authorized by the court.
Peru’s
National Coordinator of Human Rights will be responsible for
the necessary follow-up to ensure compliance with the provisions
of this clause.
Eleventh:
Changes in laws and public policies on reproductive helath and
family planning
The Peruvian
State pledges to change laws and public policies on reproductive
health and family planning, eliminating any discriminatory approach
and respecting women’s autonomy.
The Peruvian
State also promises to adopt and implement recommendations made
by the Ombudsman concerning public policies on reproductive
health and family planning, among which are the following:
a.Penalties
for human rights violators and reparation for victims
1) Conduct
a judicial review of all criminal cases on violations of human
rights committed in the execution of the National Program of
Reproductive Health and Family Planning, to break out and duly
punish the perpetrators, requiring them to pay the appropriate
civil damages, including the State if it is determined to have
some responsibility for the acts that gave rise to the criminal
cases.
2) Review
the administrative proceedings initiated by the victims and/or
their family members, linked to the cases in the previous paragraph,
which are pending or have concluded concerning denunciations
of human rights violations.
b. Methods
for monitoring and guaranteeing respect for human rights of
health service clients
1) Adopt
drastic measures against those responsible for the deficient
pre-surgery evaluation of women who undergo sterilization, including
health professionals in some of the country’s health centers.
Although the rules of the Family Planning Program require this
evaluation, it is not being done.
2) Continuously
conduct training courses for health personnel in reproductive
rights, violence against women, domestic violence, human rights,
and gender equity, in coordination with civil society organizations
that specialize in these topics.
3) Adopt
the necessary administrative measures so that that rules established
for ensuring respect for the right of informed consent are scrupulously
followed by health personnel.
4) Guarantee
that the centers that offer sterilization surgery have proper
conditions required by standards of the Family Planning Program.
5) Take
strict measures to ensure that the compulsory reflection period
of 72 hours is faithfully and universally honored.
6) Take
drastic action against those responsible for forced sterilization
without consent.
7) Implement
a mechanism or channels for efficient and expeditious receipt
and processing of denunciations of violation of human rights
in the health establishments, in order to prevent or redress
injury caused.
Twelfth:
Legal Basis
This agreement
is signed in accordance with the provisions of Articles 1, 2,
and 48.1.f of the American Convention on Human Rights and Article
41 of the Regulations of the Inter-American commission on Human
Rights; on Articles 2 (paragraphs 1 and 24, point 8), 44, 55,
205 and fourth final provision of Peru’s Constitution;
and on the provisions of Articles 1205, 1306, 1969, and 1981
of the Civil Code of Peru.
Thirteenth:
Interpretation
The meaning
and scope of this agreement will be interpreted in accordance
with Article 29 and 30 of the American Convention on Human Rights
as applicable, and the principle of good faith. In case of doubt
or disagreement between the parties on the content of this agreement,
the Inter-American Commission on Human Rights shall resolve
the interpretation. It shall also be responsible for monitoring
the agreement’s compliance; the parties shall report to
it every three months on the status of compliance.
Fourteenth:
Homologation
The parties
hereto agree to refer this Agreement for Friendly Settlement
to the Inter-American Commission on Human Rights for confirmation
and ratification of all aspects.
Fifteenth:
Acceptance
The parties
signing this agreement express their free and voluntary acceptance
of and concurrence with each and every one of its clauses, stating
for the record that it resolves the dispute and any claim regarding
the international responsibility of the Peruvian State for violation
of the human rights of Ms. María Mamérita Mestanza
Chávez.
Signed with
three copies in the City of Lima this twenty-sixth day of August
of the year two thousand three.
V.
Determination of Compatibility and Compliance
15. The
IACHR reiterates that as provided in Articles 48.1.f and 49
of the Convention, this procedure is intended for “reaching
a friendly settlement of the matter on the basis of respect
for the human rights recognized in the Convention.”[GDM1]
Agreement to follow this procedure reflects the State’s
good will to comply with the purposes and objectives of the
Convention by virtue of the pacta sunt servanda principle, according
to which states must show good faith in honoring obligations
assumed in treaties. It also wishes to reiterate that the friendly
settlement procedure contemplated in the Convention permits
settlement of individual cases without recourse to litigation,
and has demonstrated in the case of several countries that it
is an important tool for solution that can be used by both parties.
16. The
Inter-American Commission has closely followed development of
the friendly settlement reached in this case. The Commission
greatly appreciates the effort shown by both parties to reach
a solution that is compatible with the objective and purpose
of the Convention. As the Commission has said repeatedly, protection
and promotion of women’s rights is a priority for our
hemisphere, in order that women may attain the full and effective
enjoyment of their basic rights, especially equality, nondiscrimination,
and living free from gender-based violence.
VI.
Conclusions
17. On the
basis of the preceding considerations, and by virtue of the
proceeding envisioned in Articles 48.1.f and 49 of the American
Convention, the Commission wishes to reiterate its deep appreciation
for the parties’ efforts and its satisfaction with the
friendly settlement agreement reached in this case in keeping
with the objective and purpose of the American Convention.
18. Taking
into account the considerations and conclusions expressed in
this report,
THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
DECIDES:
1. To approve
the terms of the Agreement for Friendly Settlement signed by
the parties on August 26, 2003.
2. To continue
following up and monitoring each and every point of the friendly
settlement, and in this context to remind the parties of their
obligation to submit reports to the IACHR every three months
on compliance with this agreement.
3. To publish
this report and include it in its annual report to the OAS General
Assembly.
Done and
signed at the headquarters of the Inter-American Commission
on Human Rights in the city of Washington, D.C., on the 22nd
day of the month of October, 2003. (Signed): José Zalaquett,
President; Clare K. Roberts, First Vice-President; Susana Villarán,
Second Vice-President; Robert K. Goldman and Julio Prado Vallejo,
Commissioners.
Note:
[1] Pursuant to the provisions of Article 17(2)(a) of the
Commission’s Regulations, Commissioner Susana Villarán,
of Peruvian nationality, did not participate in the consideration
or decision of this case.
