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The defense of the “peak cases”, “leader cases” or of the so-called “emblematic cases” has as its purpose to denounce human rights violations, sensitize the public opinion, generate a stream of opinion and debate and, at the same time, propose changes in the juridical and social policies in favor of women’s human rights. A case that is considered a “peak case”, “leader case” or “emblematic case”, is that which represents situations of vulnerability of women’s human rights, or patterns of risk, many of them produced in relationships between private individuals, or produced by agents of the State and others produced by the State itself through its policies.

Our institution set itself the following objectives when assuming the defense of these cases: To raise and make evident a social problem that damages women’s human rights; to denounce the violations in the leader cases and in similar situations; to create a social conscience, propitiate the debate and sensitize the public opinion with the purpose of promoting changes in attitude vis-à-vis the violations denounced; to promote the production of new jurisprudence; to demand responses from the State vis-à-vis the situation denounced and, finally, to influence the social and juridical policies to be implemented by the State as guarantees of non-repetition.

In the last few years, our institution has been utilizing as strategy in these cases, performing, on the one hand, the judicial defense in the local environment and, on the other, actions of public impact. Currently, since we could not find a favorable response in the national environment, CLADEM Regional and other organizations, national as well as international, which defend human rights, have started entering complaints against the Peruvian State before the human rights international organisms.

1) M.M.: Sexual rape of a patient by a health-care provider

The case: Petition before the Interamerican Human Rights Commission and Strategic Alliances

On April 23, 1988, the Latin America and Caribbean Committee for the Defense of Women’s Rights (CLADEM), the Center for Reproductive Law and Policy (CRLP) and the Center for Justice and International Law (CEJIL), international organizations engaged in the defense of human rights before the international protection organisms, interposed a complaint before the Interamerican Human Rights Commission, denouncing the violations of the human rights of M.M., acknowledged in international treaties, the irregularities and gender discrimination of M.M. in the administrative and judicial processes, the impunity of the offense and the non-redress and rehabilitation of the victim, the institutional cover-up of the rapist Salmon Horna, the violence against women in the health services and finally the State’s responsibility. This was the first case against the Peruvian State for violations of women’s human rights and for gender discrimination, and one of the few filed before the Interamerican Human Rights Commission in general.

As a consequence of the acceptance by the Peruvian government and the petitioners of the proposal of the Interamerican Human Rights Commission (CIDH) to initiate negotiations for the search of a friendly solution, at the beginning of May 1999, the petitioning organizations requested DEMUS to become the national consulting organization on the national legal framework, the situation of the sexual violence problem in the country and the proposals of legislative modifications and of necessary public policies. This request was based on the fact that this institution has developed a number of researches regarding this problem and from different perspectives. The conclusions of its research are cited in the petition, which evidences the importance of the investigation in the litigation actions in matters of public interest and their incidence in the generation and development of international jurisprudence of human rights.

On March 6, 2000, in the city of Washington an agreement was subscribed in which the Peruvian State acquired a political commitment vis-à-vis all the Peruvians and before the international community, same which implies sanctioning the aggressor, rehabilitating and repairing the damage caused to M.M., on the basis of the acknowledgement of the State’s responsibility for the acts that violated her human rights. In effect, the solution agreement has been “based on the acknowledgement of the State’s responsibility for the acts that violated the human rights of M.M., occurred as a consequence of the acts perpetrated by the doctor Gerardo Salmon Horna when he was assigned to the public health service”. Likewise, it contains commitments for the implementation of legislative, administrative and public policies in the National Police, in the Institute of Legal Medicine, the Public Ministry, the Judiciary, the Public Health Service, Guarantees in the penal process, programs in the educational field, services of integral attention for sexual rape victims in the national environment. Said agreement was subscribed with the intervention of the Interamerican Human Rights Commission, which has the faculties to demand of the State the compliance of the commitments assumed.

IMPACT AND RESPONSE

The case of M.M. constitutes a leader case because it represents the situation of thousands of women and adolescents in the country, who are victims of violations of their human rights, and that when doing a claim for justice, do not find the appropriate response on the part of the State, nor are they able to access the fair redress and the adequate rehabilitation for the damage suffered, whilst many sexual aggressors remain unpunished in the national jurisdiction.

This case also evidences the inefficiency of the internal recourses vis-à-vis the human rights violations and with that, the importance of the utilization of the human rights international protection mechanisms as a fundamental part of a strategy in the women’s human rights’ defense actions and in other defense actions of public interest, for their impact on the social problem, within the juridical framework that exists both in the legal sphere as well as in the jurisprudence sphere, the transcendence for the victim regarding her/his access to justice, to the rehabilitation of the damage suffered, to redress, the impact vis-à-vis the problem of impunity and the sanctions for the aggressor.

The results obtained transcend the specific case inasmuch as in spite of being an individual case, which could well have limited itself to services referred to redress and rehabilitation of the victim on the one hand and the sanctions for the aggressor on the other, the agreement incorporates as a commitment on the part of the Peruvian State, the implementation of social policies for the prevention and attention to the problem of sexual rape in the country, as well as the installation of services of specialized attention for other victims, under the express acknowledgement of the existence of responsibility on the part of the State.

The Peruvian State has committed itself politically before the country and the international community to perform a number of normative reforms and social policies, on the basis of the proposal presented in the process by the petitioners to prevent the problem, sanction the aggressors and take care of the victims. Said reforms shall be developed in different instances such as the Judiciary, Legal Medicine, and National Police, among others. On the other hand, the commitment of the State to implement specialized attention services for the victims has been clearly established.

ADMINISTRATIVE ACTIONS BEFORE THE MEDICAL SCHOOL OF PERU

On the other hand, as part of the agreement subscribed in the city of Washington, the Ministry for the Promotion of Women and Human Development and the Prime Minister and Minister of Justice, informed the Medical School of Peru about the complaint presented by M.M. before the Interamerican Human Rights Commission, with the purpose that the School impose the corresponding sanctions. CLADEM Peru pushed forward the process as representatives of M.M. in the country and on March 5, by means of Resolution N° 2358-CEN-2001, the Medical School of Peru decided in last instance to suspend in the professional exercise for two years Dr. Gerardo Salmon Horna, who as a result of the investigations undertaken by the Medical School of Lima, has been found responsible of having committed serious ethical infractions against M.M. Said resolution constitutes an important precedent, inasmuch as it is the most serious sanction that the Code of Ethics in force at that time stipulated.

For the due compliance with the Friendly Solution Agreement, by means of Supreme Resolution N° 078-2001-JUS, the Follow-up Commission has been created, made up by representatives of the State and the Petitioners, which has as its goal to verify the compliance of the commitments contained in the agreement, and to propose and perform the follow-up of the normative reforms indicated in the friendly solution proposal of the Petitioners, as well as the implementation of specialized services for the attention of the sexual rape victims in the national territory.

TRANSCENDENCE OF THE UTILIZATION OF THE INTERNATIONAL MECHANISMS AS A FUNDAMENTAL PART OF A STRATEGY IN THE ACTIONS IN DEFENSE OF PUBLIC INTEREST

The experience lived leaves us with interesting lessons and reflections, that lead us to consider that the utilization of the human rights international protection mechanisms is a fundamental part of a strategy in the actions in defense of women’s human rights and in other actions in defense of public interest, for its impact on the social problem, in the existing juridical framework, both in the legal environment as well as in the jurisprudential one, the transcendence for the victim, regarding the access to justice, to the rehabilitation of the damage suffered, to redress, the impact vis-à-vis the problem of impunity, and the sanctions for the aggressor. This is why we consider it fundamental to direct recourses for the entry of cases of public interest and in the formation of professionals for the best handling of the international instruments and processes.

a) One of the key achievements is placing a national social problem of women’s human rights violations in the realm of the international community, starting from an individual case, forcing the responsible State to establish steps, not only vis-à-vis the particular case but rather vis-à-vis the social problem.

b) Another achievement is that of establishing clearly the State’s responsibility by not guaranteeing the enforcement and exercise of human rights, since by the State not responding through its instances, the individual responsibilities of those who acted with its tolerance and complacency, convert it into State responsibility vis-à-vis the international community, which will force the responsible State to demand adequate functioning of its instances and its officers, thus improving the conditions for the other victims.

c) The access to justice, civil redress and rehabilitation of the damage for the victim, also constitute a key achievement, which no doubt will result in benefit of other victims, inasmuch as in this case it is being assumed by the State, which will imply that the latter demand that such measures are complied by the aggressors in the national instance in similar cases, in this way complying with its obligation of guaranteeing the rights and the payment of redress when these are violated.

d) The impact in the social problem through the steps that the State commits to implement to prevent, investigate, sanction and eradicate the social problem is a transcendental achievement, which will imply favorable consequences on the problem and for the victims. As an example, one of the steps proposed is the implementation of integral-attention services for victims of sexual rape throughout the country.

e) The role that the non-government organizations and the persons engaged in the work for the defense of human rights and other public interest actions, acquire larger dimensions by mobilizing the international instances, which in turn mobilize the national instances, achieving its objectives in a more efficient and effective manner.

f) Likewise, the juridical arguments posed in denouncements and petitions on the problem of women’s human rights violations with a gender focus; the defense of human rights recently acknowledged by the international community such as, for example, the sexual and reproductive rights, integrating them into the “traditional” rights such as the right to physical integrity, constitutes the opportunity that these are collected by the international jurisprudence of human rights, thus transcending the specific cases.

g) The participation of the petitioning organizations by means of this case, implies promoting and consolidating strategic alliances among national and international organizations with different experiences and perspectives, strengthening the work for the defense of women’s human rights and improving the results.

h) The constant public denouncement in the mass media has allowed us to evidence the abuse of the patients by the health-care providers as a frequent problem in the country.

2) MAMERITA MESTANZA (FORCED STERILIZATION AS PART OF A STATE POLICY AND DEATH BY MEDICAL NEGLIGENCE OF A PEASANT WOMAN)

THE CASE AND ITS IMPACT VIS-À-VIS THE EXECUTION OF A STATE POLICY

This case entered the Interamerican Human Rights Commission by petition of CLADEM Regional and two national organizations: Aprodeh and Demus. The organizations have presented the case of Mamerita Mestanza as a leader case, since it represents the serious violations perpetrated by the Peruvian Government in the application of the Family Planning Policy, same that have been demonstrated with several investigations, performed both by CLADEM Regional as well as by the Ombudsman’s Office. The Commission admitted the case and initiated the investigations.

The denouncement before the Interamerican Human Rights Commission is aimed at demonstrating that the case of Mrs. Maria Mamerita Mestanza Chavez is not an isolated case of “medical negligence”, but rather, it is representative of a systematic practice of compulsive surgical contraception, of discriminatory nature, aimed at the women of the urban popular and rural sectors in poverty and extreme poverty situations. Therefore, the Commission must investigate the inadequate application of the National Reproductive Health and Family Planning Program and make the necessary recommendations to the Peruvian State, with the purpose of implementing correctives and indemnifying the victims, as well as taking care of the consequences in the health and life of all the persons that result affected.

In the process it was emphasized that the case of Mrs. Maria Mamerita Mestanza Chavez constituted an emblematic case of a governmental policy, of massive, compulsive and systematic nature, aimed especially at sterilizing in a forced manner the women who live in unfavorable living conditions and women who live in the rural zones.

Furthermore, it was emphasized that the serious irregularities produced in the application of the National Reproductive Health and Family Planning Program implied violations of women’s human rights under the responsibility of the Peruvian State, for not having complied with the obligation of abstaining itself from performing actions that damage the rights acknowledged in the American Convention and the obligation of adopting the necessary steps so that all the persons can effectively enjoy the rights acknowledged in the Convention.

The case has allowed us to develop arguments regarding the “new human rights” acknowledged by the international community in favor of women, integrating them to rights already acknowledged in the American Convention such as the right to health, to the sexual and reproductive rights, to the right to informed consent, integrating them with already acknowledged rights, such as the right to life and to physical integrity.

On March 2, 2001, the “Previous Agreement for a Friendly Solution” was subscribed, which contains the following premises:

a) The formal acknowledgement on the part of the Peruvian State of its international responsibility for the violations of women’s human rights.

b) The creation of a Follow-up Commission constituted by representatives of the State and three representatives of the co-petitioners, with the object of establishing the contents of the friendly solution definitive agreement, which will have as its base the proposals presented by the petitioners, broadening for this the faculties of the Commission created to follow-up on the case of Marina Machaca.

c) The basic premises of the agreement shall be the investigation and sanction for the violation of the human rights of Mamerita Mestanza, steps of material and moral redress, as well as prevention steps to avoid that similar deeds are repeated in the future.

d) It is established that the parties shall present every 90 days a report to the Commission, without prejudice of the stipulations of Article 45 (7) of the CIDH Regulations, according to which, at the time that one of the parties considers that the process is not satisfactory, it may re-enter the case to the Commission, and should the latter find arguments, enter it into the Court.

STRATEGIC ALLIANCES

We have requested the intervention of the Ombudsman’s Office so that by means of an Amicus Curiare, constitutes itself in party, having the latter presented to the Interamerican Human Rights Commission the results of the investigations undertaken by that institution, corroborating the denouncements placed by the petitioning organizations. Likewise, CEJIL and CRLP, two international organisms have integrated themselves as petitioners, with the object of continuing with the alliances that contribute to a better defense of women’s rights in the region before these international instances.