During the conflict between armed groups and government forces that lasted from the 1980s until 2000, the government of Alberto Fujimori issued a law decree on April 6, 1992, ordering “the reorganization of the National Penitentiary Institute (INPE) and put[ting] the National Police of Peru in charge of the control of security at the penitentiaries.” The execution known as “Operative Transfer 1” in the maximum security prison Miguel Castro Castro was conducted under this law decree. Although the official objective of the operation was to transfer the women inmates to another prison, the real objective was to “a premeditated attack” on the prisoners occupying two specific pavilions of the Miguel Castro Prison through the use of snipers, explosives, grenades, gas bombs, and tear gas. The inmates in these pavilions had been accused or sentenced for terrorism crimes or treason. Ultimately, the acts that took place between May 2 and 9, 1992, under “Operative Transfer 1” resulted in the death of at least 42 inmates, injured 182 inmates, and subjected another 322 inmates to a cruel, inhuman, and degrading treatment. Those that survived the attack were subjected to constant physical and psychological mistreatment amounting to torture. These included the wounded and pregnant women. Some wounded inmates that were taken to hospitals died from not receiving medications or medical care. Inmates taken to the Police Sanity Hospital, which included women, were subjected to derogatory treatment, such as being forced to strip off their clothes and remaining nude throughout their time in the hospital and women inmates being subjected to abrupt vaginal “inspection” by hooded people.
The Commission submitted the case before the Court, alleging violations of Articles 4 (right to life) and 5 (right to humane treatment) of the American Convention with respect to “at least 42” inmates that died; the violation of Article 5 (right to humane treatment) with respect to “at least 175” inmates that were injured and of 322 inmates “that having resulted [allegedly] uninjured were submitted to a cruel, inhuman, and degrading treatment;” and for the violation of Articles 8(1) (right to a fair trial) and 25 (right to judicial protection) of the Convention.
The Court found the State of Peru in violation of Art. 4 (right to life) of the American Convention on Human Rights in detriment of the identified dead inmates. The Court also found the State in violation of Art. 5(2) (right to humane treatment) of the American Convention and Arts. 1, 6, and 8 of the Inter-American Convention to Prevent and Punish Torture for acts inflicted on inmates that constituted physical and psychological torture.
The Court recognized the right to life as a fundamental right on which other rights depend and the State’s corresponding duties to “guarantee the conditions required” to ensure the right to life and prevent State agents from violating it. The right to life guarantees that nobody will be arbitrarily deprived of his/her life (negative obligation) and also requires States to adopt the necessary measures to protect and preserve his/her right to life (positive obligation) in accordance with the right to guarantee full and free exercise of all the people under its jurisdiction under Art. 1(1) of the American Convention.
The Court also reiterated that torture and cruel, inhuman and degrading punishment or treatment are strictly prohibited international human rights law and that the State, as guarantor of rights enshrined in the American Convention, is responsible for ensuring adherence to the right to humane treatment of any individual under State custody. The State bears the burden of disproving allegations against State regarding the State’s responsibility to ensure the right to humane treatment. The Court further underscored the State’s duty to guarantee criminal center conditions that respect inmates’ fundamental rights and protect their dignity in accordance to Art. 5 of the American Convention.
With regard to women, the Court stressed the need and importance of adopting a gender analysis by referring to the Convention on the Elimination of Discriminations against Women and the Convention of Belém do Pará. The Court took into account that women were treated differently than men in the violence they suffered. Women were specifically targeted because of their gender, with sexual violence used as a symbolic means of punishment, intimidation, pressure and humiliation.
The Court recognized that the women inmates suffered inhuman treatment, which was more serious for the women who were pregnant. The Court stressed the precarious medical and hygienic conditions for women and the lack of attention to their physiological needs – in particular, the lack of access to feminine pads, prenatal and post-natal care.
The Court further recognized that the treatment of the women while they were detained amounted to sexual violence, as they were consistently deprived of clothing and armed guards constantly watched them. In this regard, the Court recognized that “sexual violence consists of actions with a sexual nature committed with a person without their consent, which besides including the physical invasion of the human body, may include acts that do not imply penetration or even any physical contact whatsoever.” The Court recognized that such acts directly endangered the dignity of these women and found the state liable for violating the right to humane treatment (Article 5(2) of the American Convention).
Furthermore, the Court recognized a vaginal “inspection,” wherein a state agent forced his fingers into one of the victims, constituted sexual rape which amounted to torture. The Court noted that “sexual rape does not necessarily imply a non-consensual sexual vaginal relationship” and “must also be understood as act of vaginal or anal penetration, without the victim’s consent, through the use of other parts of the aggressor’s body or objects, as well as oral penetration with the virile member.” The Court therefore found the state responsible for violations of Article 5(2) of the American Convention, as well as for the violation of Articles 1, 6, and 8 of the Inter-American Convention to Prevent and Punish Torture.