Pedro Pablo López González et al v. Peru, Case 11,031, Report No. 111/00, OEA/Ser.L/V/II.111 Doc. 20 rev. at 1129 (2000).
REPORT
Nº 111/00
CASE 11.031
PEDRO PABLO LÓPEZ GONZÁLEZ, DENIS ATILIO CASTILLO CHÁVEZ,
GILMER RAMIRO LEÓN VELÁSQUEZ, JESÚS MANFREDO NORIEGA RÍOS,
ROBERTO BARRIENTOS VELÁSQUEZ, CARLOS ALBERTO BARRIENTOS VELÁSQUEZ,
CARLOS MARTÍN TARAZONA MORE AND JORGE LUIS TARAZONA MORE
PERU
December 4, 2000
I.
SUMMARY
1.
By petition submitted to the Inter-American Commission on Human
Rights (hereinafter the Commission) by the non-governmental
organization Asociación Pro Derechos Humanos (APRODEH) on May 11,
1992, and also signed by Messrs. Hipólito López González and Alejandro
Castillo Vega, it was alleged that the Republic of Peru (hereinafter Peru,
the State, or the Peruvian State) violated the
human rights of Messrs. Pedro Pablo López González, Denis Atilio Castillo
Chávez, Gilmer Ramiro León Velásquez, Jesús Manfredo Noriega Ríos, Roberto
Barrientos Velásquez, Carlos Alberto Barrientos Velásquez, Carlos Martín
Tarazona More, and Jorge Luis Tarazona More, when they were detained on
May 2, 1992, by members of the Police and Navy of Peru, and then disappeared.
The State alleges that Messrs. López González, Castillo Chávez,
León Velásquez, Noriega Ríos, Barrientos Velásquez, and Tarazona More
were not detained by police or military forces.
The Commission concludes that Peru violated Articles 7, 5, 4, 3,
and 25 of the Convention, in conjunction with the provisions of Article
1(1), to the detriment of the above-mentioned persons, and makes the pertinent
recommendations to the Peruvian State.
II.
PROCESSING BEFORE THE COMMISSION
2.
On July 6, 1992, the Commission opened the case, forwarded the
pertinent parts of the complaint to the Peruvian State, and asked that
it provide information within 90 days.
The State answered on September 21, 1992.
The petitioners submitted observations to the States response
on January 25, 1993. Both
parties submitted additional information on several occasions.
On May 26, 1999, both parties were asked to provide the Commission
with updated information on the case, and the Commission made itself available
to them to try to reach a friendly settlement.
On July 26, 1999, the State indicated, among other considerations,
that it did not consider it advisable to begin to pursue a friendly settlement.
Accordingly, the Commission considered that the possibility of
friendly settlement had been exhausted.
III.
POSITIONS OF THE PARTIES
A.
The petitioner
3.
Petitioners note that on May 2, 1992, at approximately 1:30 a.m.,
members of the National Police and Navy of Peru entered the human settlements
of La Huaca, Javier Heraud, and
San Carlos, located in the district and province of
Santa, department of Ancash. Petitioners
further state that those persons, who were traveling in four pick-up trucks
without tags, were wearing black sweaters, olive green pants, and boots,
and were armed with machine guns.
Petitioner adds that those persons searched the homes of several
residents.
4.
Petitioners indicate that those armed individuals violently entered
the home of Mr. Pedro Pablo López González, who was domiciled in the human
settlement of La Huaca, and forced him and his wife to lie down
on the floor. They add that immediately thereafter Mr. López González was
bound and removed from his home, barefoot and in his undergarments.
5.
Petitioners state that Mr. Denis Atilio Castillo Chávez was at
his home, also located at the human settlement of La Huaca.
They note that the persons in question entered the home of Mr.
Castillo Chávez and beat his sister, a mentally retarded 13-year-old girl.
They also state that Mr. Castillo Chávez came forth to defend his
sister, and at that moment was detained by those persons and removed from
his home.
6.
They further indicate that Mr. Gilmer Ramiro León Velásquez was
detained at the human settlement of La Huaca when he was returning
to his home on bicycle; he was thrown to the ground, beaten, and placed
on one of the pick-up trucks.
7.
Petitioners argue that the armed men violently entered the home
of Mr. Jesús Manfredo Noriega Ríos, located in the human settlement known
as Javier Heraud, and kept his wife and children from
leaving their rooms or turning on the lights.
The armed men then painted slogans on the front of the house that
read, for example, Long live the armed struggle and PCP,
and then left, taking Mr. Noriega Ríos with them.
8.
The petition alleges that the armed men entered the domicile of
brothers Roberto and Carlos Alberto Barrientos Velásquez, located in the
human settlement known as San Carlos, and threw them
to the ground along with their mother and sister. After searching the
house and inquiring about another brother, Edwin Barrientos Velásquez,
they left, taking with them brothers Roberto and Carlos Alberto.
Before leaving, they painted slogans on the front of the house
that said Long live the armed struggle and PCP,
among other things.
9.
The petition notes that approximately 15 of the armed individuals
violently entered the home of brothers Carlos Martín and Jorge Luis Tarazona
More, also located in the San Carlos human settlement,
and proceeded to take them away, in the presence of their families.
Previously, the armed individuals took their money, documents,
and other goods, and painted the front of the house in a manner similar
to that described in the previous paragraph.
10.
Petitioners state that relatives of the victims who went to the
city of Chimbote saw personnel from the Peruvian Navy at the tunnel known
as Coishco who were keeping watch there, apparently
to offer protection for the exit of the armed individuals who carried
out the detentions.
11.
They indicate that both the National Police and the Peruvian Navy
denied having detained the individuals in question, and that even though
they went before the Office of the Attorney General and authorities of
the Judiciary, such efforts offered no results with respect to the whereabouts
of those persons. Petitioner
attaches the testimony of the following eyewitnesses:
Mrs. Maximina González Méndez, Mrs. Paula Peregrina Flores de Dionicio,
Mrs. Cruz Velásquez León de Barrientos, Mrs. Hormecinda Velásquez viuda
de León, Mrs. Agustina Moreno Estrada, Mrs. Margot Nancy Reyes Sáenz,
Mr. Alejandro Castillo Vega, and Mr. Germán Domingo Quispe Moreno.
12.
Petitioners note that in a complaint lodged with the Office of
the Attorney General the family members of the persons detained stated
that Peruvian National Police Major Percy del Carpio and police agent
Juan Molina Castro were aware of the existence of a list of persons, among
them the victims, who were going to be kidnapped.
They add that the National Police refused to receive the complaint
on the facts described.
13.
The petition indicates that as a result of the complaints lodged,
some of the family members of the persons disappeared were accused by
the National Police in Chimbote of being involved in terrorist activities,
including Maribel and Edwin Barrientos Velásquez, siblings of Roberto
and Carlos Alberto Barrientos Velásquez; and Nancy Margot Reyes Sáenz,
the wife of Carlos Tarazona More.
14.
On November 12, 1998, the petitioner stated that on August 31,
1995, the Office of the Fourth Mixed Provincial Prosecutor of Lima determined
to archive definitively the investigation it was carrying out with respect
to the facts alleged, based on the amnesty laws, numbers 26.479 and 26.492.
In that resolution, which the petitioner alleged was confirmed
on November 7, 1995, by the Superior Prosecutor, the above-noted prosecutorial
office indicated that:
...
based on the evidence collected it has been determined that the alleged
perpetrators of said criminal act are likely members of the armed forces
and National Police of Peru....
The Congress has promulgated Law 26,479, which grants amnesty to
the members of the Military and Police ... who have committed acts such
as those alleged in this case ... accordingly, it is counterproductive
to continue this investigation.
B.
The State
15.
The State answered on September 21, 1992, and alleged that according
to the information in the hands of the National Police of Peru, the National
Police had no responsibility in the detentions of the persons referred
to in this case.
16.
On August 5, 1993, the State informed the Commission that the Ministry
of Interior reported the following:
In
this respect, it is reported that the family members of the aggrieved
were given notice to ratify their complaint against the authorities who,
according to them, are responsible for the facts.
In addition, it is communicated that to date it has not been possible
to determine the whereabouts of the citizens supposedly detained and disappeared
on May 2 of last year in the early morning hours in the district of Santa,
department of Ancash; nor has it been possible to identify the perpetrators.
It is important to note that in addition to the pertinent steps
of the investigation, complementary steps have been taken by the authorities
of the police headquarters and the office of the deputy prefect, with
the presence of the chief of the office of human rights, Mr. César Velezmoro,
to be able to compile new evidence so as to make it possible to clarify
the facts fully.
17.
On October 28, 1993, Peru attached a copy of Judgment No. 64-92
from the First Investigative Court of Santa, Chimbote, which declared
unfounded the writ of habeas corpus
filed in relation to the disappearances in this case against the Chief
of the Fourth Sub-region of Chimbote of the National Police, Col. Carlos
Edwin Zapata Santín, and against the commander of the Chimbote Naval Base,
Frigate Capt. Mario Salmón Villarán.
18.
On September 11, 1995, the State moved to archive the case, and
alleged, in so doing, that the petitioner had not taken any steps in the
case since 1993.
19. On January 11, 1999, the State moved to have the complaint declared inadmissible, based on the argument that domestic remedies had not been exhausted as of the time when the complaint was presented. This argument was ratified by the State on July 26, 1999, when it also set forth several considerations on the phenomenon of disappearances in Peru.
IV. ANALYSIS
A.
Considerations on Admissibility
20.
The Commission now analyzes the admissibility requirements of a
petition established in the American Convention.
a.
Subject-matter jurisdiction, personal jurisdiction, and jurisdiction
based on time and place of the events
21.
The allegations in this case describe facts that would be violative
of several rights recognized and enshrined in the American Convention
that took place within the territorial jurisdiction of Peru when the obligation
to respect and guarantee the rights established therein were in force
for the State.[1]
Therefore, the IACHR has subject-matter jurisdiction, personal
jurisdiction, and jurisdiction based on when and where the alleged violations
took place, so as to be able to take cognizance of the merits in the case.
b. Exhaustion
of domestic remedies
22.
The fact that the first stages of the process, i.e., within the
first 90 days that it was given to provide information about the facts
alleged, the State did not present any objection on grounds of failure
to exhaust domestic remedies, will be sufficient for the Commission to
consider the requirement established at Article 46(1)(a) of the Convention
to have been met.
23.
The Commission recently decided, together, a group of 35 cases
that involved 67 persons disappeared in various departments of Peru during
the period from 1989 to 1993, and analyzed in detail the general phenomenon
of disappearances in Peru. In
those reports the Commission notes that habeas corpus was the adequate
remedy in cases of disappearance for trying to find a person presumably
detained by the authorities, to inquire into the legality of the detention,
and, if possible, to secure his or her release.
The IACHR also concluded that for the purposes of admissibility
of complaints before this body, it was not necessary to file a habeas
corpus remedy--or any other--for the purpose of exhausting domestic remedies,
since from 1989 to 1993 there was a practice or policy of disappearances
ordered or tolerated by various public authorities that rendered the habeas
corpus remedy totally ineffective in cases of disappearance.
In those reports the Commission found as follows:
As
stated earlier, the relatives of the victims applied on numerous occasions
to various judicial, executive (military), and legislative authorities
to locate the victims and secure their release. These efforts usually
included writs of habeas corpus; complaints to the Attorney General, the
Chief Prosecutor in San Martín, the Special Attorney for Human Rights
in San Martín, the Office of the Special Ombudsman, and the Offices of
the Provincial Prosecutors; and appeals to the Ministry of Defense, the
Army High Command, the Office of the Inspector General of the Army, the
Political-Military Commander in Chief, and the commanding officers at
the military bases concerned. Despite all these efforts, the victims were
never located and never reappeared.
All
these procedures and appeals by the relatives of the victims proved fruitless,
because the same people who had allegedly brought about the disappearances
and who hid the evidence played a key part in the results of the investigations.
None of the writs of habeas corpus was successful in any of the cases.
Likewise, the complaints filed with the offices of the government prosecutors
led to little more than a request for information from the military, who
would deny the detention. The cases were then shelved without ever being
brought before the competent court of the first instance. It should be
added that generally the Peruvian Government's replies to the Commission
denying responsibility for the disappearances are based precisely on photocopies,
sent to the Commission, of official communications in which the military
itself denies having carried out the arrests.
[T]he
Commission considers it important to provide certain clarifications regarding
the exhaustion of domestic remedies in connection with the forced disappearances
in Peru. In this regard, it should be noted that the Inter-American Court
of Human Rights has held, in connection with the exhaustion of domestic
remedies, that, "in keeping with the object and purpose of the Convention
and in accordance with an interpretation of Article 46 (1)(a) of the Convention,
the proper remedy in the case of the forced disappearance of persons would
ordinarily be habeas corpus, since those cases require urgent action by
the authorities" (and it is) "the normal means of finding a
person presumably detained by the authorities, of ascertaining whether
he is legally detained and, given the case, of obtaining his liberty."
Thus, when a writ of habeas corpus is presented in the case of persons
who were detained and then disappeared, and nothing comes of it because
the victims are not located, those are sufficient grounds for finding
that domestic remedies have been exhausted.
However,
the Court has also ruled that domestic remedies must be effective, that
is, they must be capable of producing the results for which they were
intended, and that if there is proof of a practice or policy, ordered
or tolerated by the government, the effect of which is to prevent certain
persons from availing themselves of internal remedies that would normally
be available to all others, resorting to those remedies becomes a senseless
formality, so that the exceptions to the exhaustion of domestic remedies
provided for in Article 46(2) of the Convention would be fully applicable.
In
its analysis of the substance of the case, set forth in section VI below,
the Commission finds that, during the period in which the alleged events
took place, there existed in Peru a practice or policy of disappearances,
ordered or tolerated by various government authorities. For that reason,
and given that that practice rendered writs of habeas corpus completely
ineffective in cases of disappearances, the Commission finds that, for
purposes of admissibility of complaints before this Commission, it was
not necessary to attempt the habeas corpus remedy--or any other--in order
to exhaust domestic remedies. Consequently, the Commission considers that
the rule regarding exceptions to the exhaustion of domestic remedies established
in Article 46(2) of the Convention is fully applicable.[2]
24.
The Commission considers that the foregoing considerations apply
fully to the instant case, as it is a complaint regarding a forced disappearance
alleged to have occurred in 1992, which has been imputed to the National
Police of Peru and the Peruvian Navy.
That disappearance is said to have occurred during the period (1989-1993)
when the Commission determined, as noted in the above quote, that there
was a practice or policy of disappearances in Peru ordered or tolerated
by several public authorities, rendering completely ineffective the habeas
corpus remedy in cases of disappearance; accordingly, the Commission
determined that for the purpose of the admissibility of complaints to
the Commission, it was not necessary to pursue the habeas corpus remedy--or any other--to exhaust domestic remedies.
Therefore, the Commission concludes that this case fits within
the exception set forth at Article 46(2)(a) of the Convention, according
to which the requirement to exhaust domestic remedies provided for at
Article 46(1)(a) of the Convention is not applicable when the domestic
legislation of the state concerned does not afford due process of law
for the protection of the right or rights that have allegedly been violated.
The Commission observes, in addition, that the investigations conducted
were archived definitively by the Office of the Public Prosecutor, in
compliance with the provisions of the amnesty laws, laws Nos. 26.479 and
26.492, which definitively blocked the attainment of any results to which
those investigations may have led.
c. Time
period for submission
25.
With respect to the requirement set forth at Article 46(1)(b) of
the Convention, according to which the petition must be submitted within
six months from the date on which the victim is notified of the final
judgment that exhausted domestic remedies, the Commission observes that
this requirement does not apply in this case.
This is because the exception to the exhaustion requirement at
Article 46(2)(a) of the Convention, as set forth in the previous paragraph,
also holds--by mandate of Article 46(2) of the Convention--for the requirement
concerning the time for submission of the petitions provided for at the
Convention.
26.
The Commission, without prejudging on the merits, should add that
the forced disappearance of a person by state agents constitutes a continuing
violation by the State that persists, as a permanent infraction of several
articles of the American Convention, until the person or corpse appears.
Therefore, the requirement concerning the time period for submission
of petitions, set forth at Article 46(1)(b) of the American Convention,
does not apply to such cases.
d.
Duplicity of procedures and res judicata
27.
The Commission understands that the subject matter of the petition
is not pending before any other procedure for international settlement,
nor does it reproduce a petition already examined by this or any other
international organization. Therefore, the requirements established at
Articles 46(1)(c) and 47(d) are also satisfied.
e.
Characterization of the facts
28.
The Commission considers that the petitioner's presentation refers
to facts which, if true, could characterize a violation of rights guaranteed
in the Convention, for, as established supra, the issue submitted
to the Commission is the forced disappearance of several persons.
29. For all the reasons set forth above, the Commission considers that it has jurisdiction to take cognizance of this case, and that pursuant to Articles 46 and 47 of the American Convention the petition is admissible, in the terms set forth above.
B.
Considerations on the merits
30.
Having determined its jurisdiction to hear this case, and that
in keeping with Articles 46 and 47 of the American Convention the petition
is admissible, the Commission now moves on to set forth its decision on
the merits, bearing in mind that the parties did not agree to initiate
a friendly settlement procedure, and that the Commission already has sufficient
grounds to make a decision on the merits.
a. State
practice of disappearances
31.
In relation to the analysis of the merits of the present case,
the Commission regards as pertinent to reiterate the following considerations
concerning the practice of forced disappearances in Peru that the Commission
set forth recently, when it decided an accumulated group of 35 cases involving
67 disappeared persons in different provinces of Peru during
1989-1993. To this respect, the Commission ruled in the following terms,
which completely ratifies in the present case:
the Commission decided to combine the cases under review because it considers
that the alleged events suggest a pattern of disappearances brought about
by Peruvian State agents around the same time period (1989-1993), within
the context of what are called anti-subversive activities, and employing
the same modus operandi.
The
Commission therefore decided to look into the possible existence of a
practice of forced disappearances brought about by the Peruvian State,
or at least tolerated by it, during the period in question (1989-1993).
The Commission cannot ignore, to use the words of the Inter-American Court,
"the special seriousness of finding that a State Party to the Convention
has carried out or has tolerated a practice of disappearances in its territory."
Nonetheless, it is crucial that the Commission, in accordance with the
functions assigned to it, carry out that analysis, not only for the purposes
of this report, but also to arrive at the truth regarding a policy of
human rights violations, with all its possible repercussions for the clarification
of other cases that have come to the attention of this Commission.
In this regard, it should be pointed out that the criteria used to evaluate evidence in an international court of human rights have special standards, which empower the Commission to weigh the evidence freely and to determine the amount of proof necessary to support the judgment.
The
modus operandi used, according to the petitions received by the
Commission, in the arrests and disappearances in the cases in question,
involving Messrs. (
), shows an overall pattern of behavior that
can be considered admissible evidence of a systematic practice of disappearances.
The
Commission has received a very large number of complaints of disappearances
in Peru, many of which pertain to multiple disappeared persons. In its
1993 Report on the Situation of Human Rights in Peru, the Commission discussed
the problem of the forced disappearance of persons in that country and
indicated that it had already passed 43 resolutions regarding individual
cases involving 106 victims. Subsequently, the Commission has continued
to write reports on the matter. Moreover, the Peruvian State itself has
officially recognized the existence of forced disappearances and has reported
on 5,000 complaints of disappearances between 1983 and 1991. The large
number of complaints of this type is a clear indication, in the Commissions
view, that disappearances in Peru followed an official pattern devised
and carried out in a systematic manner.
This
indication is supported by the fact that, at the United Nations (UN),
the Working Group on Enforced or Involuntary Disappearances, established
by the Commission on Human Rights in 1980, had received 3,004 cases of
forced disappearances in Peru. That Group points out that:
The
vast majority of the 3,004 cases of reported disappearances in Peru occurred
between 1983 and 1992, in the context of the Government's fight against
terrorist organizations, especially the "Shining Path" (Sendero
Luminoso). In late 1982, the armed forces and police undertook a counter-insurgency
campaign and the armed forces were granted a great deal of latitude in
fighting Shining Path and in restoring public order. While the majority
of reported disappearances took place in areas of the country which had
been under a state of emergency and were under military control, in particular
in the regions of Ayacucho, Huancavelica, San Martín, and Apurímac, disappearances
also took place in other parts of Peru. Detentions were reportedly frequently
carried out openly by uniformed members of the armed forces, sometimes
together with Civil Defense Groups. Some 20 other cases reportedly occurred
in 1993 in the Department of Ucayali and concerned largely the disappearance
of peasants. [Report of the Working Group on Enforced or Involuntary Disapperances.
UN document E/CN.4/1998/43, dated January 12, 1998, paragraph 297
(unofficial translation)]
Dr.
Imelda Tumialán, the ad hoc Provincial Prosecutor for the Department of
Junín, has placed on record that in 1991 there were more than 100 disappearances
in that Department. Likewise, in a note dated January 9, 1992, Peru's
Assistant Attorney General pointed out that in the first 11 months of
1991 there had been 268 complaints of disappearances, and that only a
few cases had been solved. For its part, the National Coordinating Body
for Human Rights in Peru, a recognized nongovernmental umbrella group
of various Peruvian human rights organizations, estimates that 725 persons
disappeared in Peru between 1990 and 1992. The Commission has been told
that reports circulating freely in Peru indicated that military personnel,
and in some cases police officers, were carrying out disappearances. The
Commission has received numerous articles and news reports on such disappearances,
published by the print media and others.
On the basis of the foregoing evidence, the Commission concludes that in the 1989-1993 period there existed in Peru a systematic and selective practice of forced disappearances, carried out by agents of, or at least tolerated by, the Peruvian State. That official practice of forced disappearances was part of the "fight against subversion", although in many cases it harmed people who had nothing to do with the activities related to dissident groups.
Perpetration of the disappearances
On the basis of the various items of evidence mentioned above, the Commission sees fit to map out the steps usually involved in the above-mentioned official policy of disappearances:
Detention of the victims
The
Commission has been told that, in general, perpetration of the disappearances
was delegated to the political military commanders and the commanding
officers at military bases. The latter imparted orders directly to the
personnel who carried out the detentions, normally the first stage of
the disappearance process. Peru's national police force was also in charge
of perpetrating disappearances, usually through DINCOTE.
Most
often the abduction and disappearance of a person began with information
obtained by members of the intelligence service, according to which that
person was in some way linked to subversive groups, chiefly the Shining
Path or the Tupac Amaru Revolutionary Movement (MRTA). It should be pointed
out that in many instances the persons concerned were in no way involved
with those subversive groups, but were unfortunate enough to have been
included, fraudulently or by mistake, on the lists that would later lead
to their disappearance.
Another
factor that, in certain Departments and under particular circumstances,
could lead to the detention and later disappearance of many people was
the fact that they were not carrying their voter registration documents,
which were used for identification purposes. In certain cases, during
checkpoint operations on public thoroughfares, a person unable to produce
an identification document upon request was almost automatically considered
a terrorist.
Once
a person was considered "suspect", he or she was arrested; on
numerous occasions, this was the first step toward disappearance. Some
arrests were carried out openly in public, others at the victim's home,
usually in the early hours of the morning and in the presence of witnesses.
Those charged with carrying out the detentions were heavily armed soldiers
or police, sometimes dressed in civilian clothing, but most often in uniform.
Generally, the soldiers or police paid little attention to the witnesses and proceeded to do what they came to do anyway. Arrests in people's homes were usually carried out in front of whoever happened to be there: wives, children, fathers, mothers, etc. Thus the normal pattern was for the personnel to arrest the victim regardless of who might be present, with no attempt to hide the official nature of what they were doing.
Official denial of the detentions
The
same day of the arrest, or in the days immediately following, relatives
would go to the place where the victim was detained and be told that he
or she was not being held. It should be stressed that since the arrests
were usually carried out publicly, the relatives knew where the victim
had first been detained. Nevertheless, the authorities denied the detention.
As the Commission has established previously:
The
fact that the military authorities deny having carried out the detention
thus merely confirms the clandestine nature of the military operations.
Detention is neither registered nor officially admitted, in order to make
it possible to employ torture during interrogation and if need be to apply
extrajudicial punishment to persons considered to be sympathizers, collaborators,
or members of the rebel groups.
A variation on this practice consisted of the authorities alleging that the victim had been released and even producing documents to show this, sometimes with a forgery of the victims signature, others with his or her real signature obtained under torture, when in fact the release had never taken place.
Torture and extrajudicial execution of detainees
When the victim did not die as a result of the torture inflicted, he or she was generally executed in summary, extrajudicial fashion. The bodies were then hidden by burial in secret places chosen to make their discovery practically impossible.
Amnesty for those responsible for the disappearances
In
general, cases of disappearance in Peru were not seriously investigated.
In practice, those responsible enjoyed almost total impunity, since they
were carrying out an official State plan. Despite that, the authorities
decided to go even further by passing Act Nº 26.479 (the "Amnesty
Act") in 1995. Article 1 of that Law grants a blanket amnesty to
all members of the security forces and civilian personnel accused, investigated,
indicted, prosecuted, or convicted for human rights violations committed
between May 1980 and June 1995. That law was later strengthened by Act
Nº 26.492, which prohibited the judiciary from ruling on the legality
or applicability of the Amnesty Law. In its annual reports for 1996 and
1997, the Commission has addressed the issue of those amnesty laws in
the overall analysis of the human rights situation in Peru.
Although the Commission has been told that both laws can be rendered inapplicable by Peruvian judges, through what is known as their "broad powers" to rule on the constitutionality of laws--provided for in Article 138 of the Peruvian Constitution--the Commission considers the aforesaid laws an invalid attempt to legalize the impunity that existed in practice with regard to forced disappearances and other serious offenses committed by agents of the State. For example, the Commission has learned that the judges of the Constitutional Court, who were removed by the Congress, invoked that same Article 138 of the Constitution in their December 27, 1996, finding that Act Nº 26.657 did not apply to President Alberto Fujimori.
The burden of proof regarding disappearances
The
general principle is that, in cases of disappearance in which, in the
Commissions view, there is sufficient evidence that the arrest was
carried out by State agents acting within the general framework of an
official policy of disappearances, it shall be presumed that the victims
disappearance was brought about by acts by Peruvian State agents, unless
that State gives proof to the contrary.
Thus
it is not incumbent upon the petitioners to prove that the victims have
disappeared, because it may be assumed, for lack of proof to the contrary,
that the Peruvian State is responsible for the disappearance of any person
it has detained. This is even more important in view of the aforementioned
government practice of causing disappearances. It is up to the State to
prove that it was not its agents who brought about the disappearance of
the victims.
Indeed,
the "policy of disappearances, sponsored or tolerated by the Government,
is designed to conceal and destroy evidence of disappearances". Then,
as a result of action by the State, the petitioner is deprived of evidence
of the disappearance, since "this type of repression is characterized
by an attempt to suppress all information about the kidnapping or the
whereabouts and fate of the victim." The fact is, as established
by the Inter-American Court of Human Rights:
....
in contrast to domestic criminal law, in proceedings to determine human
rights violations the State cannot rely on the defense that the complainant
has failed to present evidence when it cannot be obtained without the
States cooperation.
The
Commission has explained in this regard that when there is proof of the
existence of a policy of disappearances sponsored or tolerated by the
Government, it is possible, using circumstantial or indirect evidence,
or through relevant logical inference, to prove the disappearance of a
specific individual when that would otherwise be impossible given the
link between that disappearance and the overall policy.
More
recently, the Commission has also determined that:
The
burden of proof lies with the State, because when the State holds a person
in detention and under its exclusive control, it becomes the guarantor
of that persons safety and rights. In addition, the State has exclusive
control over information or evidence regarding the fate of the detained
person. This is particularly true in a disappearance case where, by definition,
the family members of the victim or other interested persons are unable
to learn about the fate of the victim.
This establishes the inversion of the burden of proof for cases of disappearance in Peru and the effects of that inversion on cases being heard by the Commission.
Considerations relating to forced disappearances
The
General Assembly of the Organization of American States (OAS) has called
the practice of the forced or involuntary disappearance of persons a crime
against humanity that strikes against the fundamental rights of the human
individual, such as personal liberty and well-being, the right to proper
judicial protection and due process, and even the right to life. In that
context, the member states of the Organization of American States (OAS)
adopted, in 1994, an Inter-American Convention on the Forced Disappearance
of Persons as a means of preventing and punishing the forced disappearance
of persons in our Hemisphere.
The
Commission has affirmed, in relation to the forced disappearance of persons,
that:
This
procedure is cruel and inhuman. ... [It] not only constitutes an arbitrary
deprivation of freedom but also a serious danger to the personal integrity
and safety and to even the very life of the victim. It leaves the victim
totally defenseless, violating the rights to a fair trial, to protection
against arbitrary arrest, and to due process.
The
UN Working Group on Enforced or Involuntary Disappearances has affirmed
that the forced or involuntary disappearance of a person is a particularly
odious violation of human rights, and is
a
doubly paralyzing form of suffering: for the victims, frequently tortured
and in constant fear for their lives, and for their family members, ignorant
of the fate of their loved ones, their emotions alternating between hope
and despair, wondering and waiting, sometimes for years, for news that
may never come. The victims are well aware that their families do not
know what has become of them and that the chances are slim that anyone
will come to their aid. Having been removed from the protective precinct
of the law and "disappeared" from society, they are in fact
deprived of all their rights and are at the mercy of their captors. If
death is not the final outcome and they are eventually released from the
nightmare, the victims may suffer for a long time from the physical and
psychological consequences of this form of dehumanization and from the
brutality and torture which often accompany it.
The
family and friends of disappeared persons experience slow mental torture,
not knowing whether the victim is still alive and, if so, where he or
she is being held, under what conditions, and in what state of health.
Aware, furthermore, that they too are threatened; that they may suffer
the same fate themselves, and that to search for the truth may expose
them to even greater danger.
The
familys distress is frequently compounded by the material consequences
resulting from the disappearance. The missing person is often the mainstay
of the familys finances. He or she may be the only member of the
family able to cultivate the crops or run the family business. The emotional
upheaval is thus exacerbated by material deprivation, made more acute
by the costs incurred should they decide to undertake a search. Furthermore,
they do not know when--if ever--their loved one is going to return, which
makes it difficult for them to adapt to the new situation. In some cases,
national legislation may make it impossible to receive pensions or other
means of support in the absence of a certificate of death. Economic and
social marginalization is frequently the result.[3]
b.
Facts established
32.
In keeping with the doctrine of the Commission outlined above,
the general principle is that in cases of disappearance in which there
are sufficient indicia of evidence, in the view of the Commission, that
the detention was presumably effectuated by State agents in the general
context of an official policy of disappearances, the Commission will presume
that the victim was disappeared by agents of the Peruvian State, unless
that State has proven otherwise.
33.
In applying those considerations to the instant case, the Commission,
as regards the detention of the victims, observes that the petitioner
alleges that Messrs. Pedro Pablo López González, Denis Atilio Castillo
Chávez, Gilmer Ramiro León Velásquez, Jesús Manfredo Noriega Ríos, Roberto
and Carlos Alberto Barrientos Velásquez, and Carlos Martín and Jorge Luis
Tarazona More were detained on May 2, 1992, by members of the National
Police and Peruvian Navy, in the human settlements of La Huaca,
Javier Heraud, and San Carlos, located
in the district and province of Santa, department of Ancash, and that
they later disappeared.
34.
In this respect, and based on the facts narrated by the petitioner
and the fact that the Office of the Attorney General had determined, on
August 31, 1995, to definitively archive the investigation, because it
was considered that from the relevant evidence it appeared to be members
of the armed forces and the National Police of Peru, the Commission
has sufficient grounds to establish the veracity of the facts alleged
with respect to the victims detention.[4]
The foregoing is also corroborated by the testimony of Mrs. Maximina
González Méndez, Mrs. Paula Peregrina Flores de Dionicio, Mrs. Cruz Velásquez
León de Barrientos, Mrs. Hormecinda Velásquez viuda de León, Mrs. Agustina
Moreno Estrada, and Mrs. Margot Nancy Reyes Sáenz; the testimony of Messrs.
Alejandro Castillo Vega and Germán Domingo Quispe Moreno; the modus
operandi of the detention; and all the other evidentiary indicia,
which include the steps taken and remedies pursued domestically to locate
and win the release of the victims, the reports prepared by the police
to deny that the detentions had been at the hands of members of the police,
without the Peruvian State carrying out a serious judicial investigation
into the grave facts. In addition is the circumstance that the detentions
occurred in 1992, a time when, as the Commission has established, there
was a systematic and selective practice of forced disappearances by agents
of the Peruvian State.
35.
Based on the foregoing, the Commission finds that the victims were
detained on May 2, 1992, by members of the National Police and Peruvian
Navy at the human settlements of La Huaca, Javier
Heraud, and San Carlos, located in the district
and province of Santa, department of Ancash.
36.
Therefore, and in keeping with the above-noted doctrine of the
Commission, the burden was on the Peruvian State to prove that it did
not disappear Messrs. López González, Castillo Chávez, Ramiro León Velásquez,
Noriega Ríos, Barrientos Velásquez, and Tarazona More.
In effect, the Commission observes that the State did not provide
any evidence tending to show that it did not disappear Messrs. López González,
Castillo Chávez, Ramiro León Velásquez, Noriega Ríos, Barrientos Velásquez,
and Tarazona More; rather, it initially denied that it had detained them,
and archived the investigations due to the fact that there was evidence
that members of the Police and armed forces were responsible for those
disappearances.
37.
Based on the reasons set forth above, the Commission concludes
that the Peruvian State, through the National Police and Peruvian Navy,
detained Messrs. Pedro Pablo López González, Denis Atilio Castillo Chávez,
Gilmer Ramiro León Velásquez, Jesús Manfredo Noriega Ríos, Roberto and
Carlos Alberto Barrientos Velásquez, and Carlos Martín and Jorge Luis
Tarazona More on May 2, 1992, in the human settlements of La
Huaca, Javier Heraud, and San Carlos,
located in the district and province of Santa, department of Ancash, and
that it later proceeded to disappear them.
38.
That detention and subsequent disappearance followed the characteristic
pattern: the detention of
the victim by military agents; an official denial of responsibility for
the disappearance; the failure of the public authorities to carry out
an investigation into the situation of the victim; the ineffectiveness
of domestic remedies; the torture and possible extrajudicial execution
of the victim; and absolute impunity, reinforced by the subsequent amnesty.
c.
Violation of the victims' human rights
39. The Commission now proceeds to analyze the specific violations by the Peruvian State of the rights set forth in the Convention implicit in the disappearance of Messrs. Pedro Pablo López González, Denis Atilio Castillo Chávez, Gilmer Ramiro León Velásquez, Jesús Manfredo Noriega Ríos, Roberto and Carlos Alberto Barrientos Velásquez and Carlos Martín and Jorge Luis Tarazona More.
Right
to Personal Liberty (Article 7 of the Convention)
40.
The American Convention establishes:
Article
7. Right to Personal Liberty
1.
Every person has the right to personal liberty and security.
2.
No one shall be deprived of his physical liberty except for the
reasons and under the conditions established beforehand by the constitution
of the State Party concerned or by a law established pursuant thereto.
3.
No one shall be subject to arbitrary arrest or imprisonment.
4.
Anyone who is detained shall be informed of the reasons for his
detention and shall be promptly notified of the charge or charges against
him.
5.
Any person detained shall be brought promptly before a judge or
other officer authorized by law to exercise judicial power and shall be
entitled to trial within a reasonable time or to be released without prejudice
to the continuation of the proceedings. His release may be subject to
guarantees to assure his appearance for trial.
6.
Anyone who is deprived of his liberty shall be entitled to recourse
to a competent court, in order that the court may decide without delay
on the lawfulness of his arrest or detention and order his release if
the arrest or detention is unlawful. In States Parties whose laws provide
that anyone who believes himself to be threatened with deprivation of
his liberty is entitled to recourse to a competent court in order that
it may decide on the lawfulness of such threat, this remedy may not be
restricted or abolished. The interested party or another person in his
behalf is entitled to seek these remedies.
7.
No one shall be detained for debt. This principle shall not limit
the orders of a competent judicial authority issued for nonfulfillment
of duties of support.
41.
A detention is arbitrary and illegal when not carried out for the
reasons, and according to the formalities, established by law; when carried
out without adherence to the standards established by law; and when it
involves misuse of the authority to arrest--in other words, when carried
out for purposes other than those envisaged and stipulated by law. The
Commission has also pointed out that detention for improper ends is, in
itself, a form of penalty without due process, or extralegal punishment,
which violates the guarantee of a fair trial.
42.
In the instant case, Peruvian citizens Pedro Pablo López González,
Denis Atilio Castillo Chávez, Gilmer Ramiro León Velásquez, Jesús Manfredo
Noriega Ríos, Roberto and Carlos Alberto Barrientos Velásquez, Carlos
Martín and Jorge Luis Tarazona More were illegally and arbitrarily detained
by members of the National Police and Peruvian Navy.
43.
It is necessary to recall the circumstances in Peru at that time,
which generally affected most of the Departments where detentions and
disappearances occurred. Continuous raids by armed groups had generated
permanent unrest in the local population. For that reason, a "state
of exception" had been declared in various Departments, which was,
prima facie, justified by the crisis faced by the Peruvian State
in fighting terrorism. By virtue of that state of emergency, in numerous
Departments Article 2(20)(g) of the 1979 Constitution had been suspended,
[5]
which meant that the military was legally empowered to detain a person
without a warrant from a competent judge, even if an individual was not
being caught in flagranti.
44.
Despite the prima facie legality of this measure, the security
forces are not thereby entitled, without restrictions, to detain citizens
arbitrarily. The suspension of the judicial warrant requirement for detention
does not mean that public officials are exempted from observing the legal
requirements for such detentions, nor does it annul jurisdictional controls
over the manner in which detentions are carried out.
45.
The suspension of the right to personal liberty authorized in Article
27 of the American Convention on Human Rights can never be absolute. There
are basic principles at the heart of any democratic society that the security
forces must respect in order to carry out a detention, even in a state
of emergency. The legal prerequisites for detention are obligations that
State authorities must respect, in keeping with their international commitment
under the Convention to protect and respect human rights.
46.
Secondly, in accordance with those principles, preventive detention
by the military or police must be designed solely to prevent the escape
of a person suspected of having committed a crime and thereby ensure his
appearance before a competent court, either for trial within a reasonable
period of time or for his release. No State may impose a sentence without
a trial.[6]In
a constitutional, democratic State in which the rule of law and the separation
of powers are respected, all penalties established by law should be imposed
by the judiciary after guilt has been established in a fair trial with
all the procedural guarantees. The existence of a state of emergency does
not authorize the State to disregard the presumption of innocence, nor
does it confer upon the security forces the right to exercise an arbitrary
and unlimited ius puniendi.
47.
On this subject, Article 7(5) of the American Convention establishes
that "Any person detained shall be brought promptly before a judge
or other officer authorized by law to exercise judicial power and shall
be entitled to trial within a reasonable time or to be released...."
Paragraph 6 of that article adds: "Anyone who is deprived of his
liberty shall be entitled to recourse to a competent court, in order that
the court may decide without delay on the lawfulness of his arrest or
detention (...)". The Commission has also stated that anyone deprived
of his liberty must be kept in an officially recognized detention center
and brought, without delay, in accordance with domestic legislation, before
a competent judicial authority. Should the authority fail to comply with
this legal obligation, the State is duty-bound to guarantee the detainees
right to apply for an effective judicial remedy to allow judicial verification
of the lawfulness of his detention.
48.
The Commission concludes that the Peruvian State is responsible
for violating the right to personal liberty and security by arbitrarily
imprisoning Messrs. Pedro
Pablo López González, Denis Atilio Castillo Chávez, Gilmer Ramiro León
Velásquez, Jesús Manfredo Noriega Ríos, Roberto and Carlos Alberto Barrientos
Velásquez and Carlos Martín and Jorge Luis Tarazona More; for violating
their right of recourse to a competent judge or court that would rule
on the lawfulness of their arrest; and, thereby, for violating Article
7 of the American Convention on Human Rights.
Right
to Humane Treatment (Article 5 of the Convention)
49.
The American Convention establishes:
Article
5. Right to Humane Treatment
1.
Every person has the right to have his physical, mental, and moral
integrity respected.
2.
No one shall be subjected to torture or to cruel, inhuman, or degrading
punishment or treatment. All persons deprived of their liberty shall be
treated with respect for the inherent dignity of the human person.
3.
Punishment shall not be extended to any person other than the criminal.
4.
Accused persons shall, save in exceptional circumstances, be segregated
from convicted persons, and shall be subject to separate treatment appropriate
to their status as unconvicted persons.
5.
Minors while subject to criminal proceedings shall be separated
from adults and brought before specialized tribunals, as speedily as possible,
so that they may be treated in accordance with their status as minors.
6.
Punishments consisting of deprivation of liberty shall have as
an essential aim the reform and social readaptation of the prisoners.
50.
Since forced disappearance involves violation of multiple rights,
violation of the right to humane treatment is implicit in the cases of
Messrs. Pedro Pablo López González, Denis Atilio Castillo Chávez, Gilmer
Ramiro León Velásquez, Jesús Manfredo Noriega Ríos, Roberto and Carlos
Alberto Barrientos Velásquez and Carlos Martín and Jorge Luis Tarazona
More.
51.
In this regard, the Court has stated that "prolonged isolation
and deprivation of communication are in themselves cruel and inhuman treatment,
harmful to the psychological and moral integrity of the person and a violation
of the right of any detainee to respect for his inherent dignity as a
human being. Such treatment, therefore, violates Article 5 of the Convention,
which recognizes the right to the integrity of the person....". [7]
52.
Accordingly, the Commission, on the basis of the facts presented,
is convinced, by way of presumptive evidence, that Messrs.
Pedro Pablo López González, Denis Atilio Castillo Chávez, Gilmer
Ramiro León Velásquez, Jesús Manfredo Noriega Ríos, Roberto and Carlos
Alberto Barrientos Velásquez and Carlos Martín and Jorge Luis Tarazona
More were tortured. The circumstances
in which the victims were detained, kept hidden, isolated, and in solitary
confinement, and their defenselessness as a result of being denied and
prevented from exercising any form of protection or safeguards of their
rights make it perfectly feasible for the armed forces to have tortured
the victims with a view to extracting information about subversive groups
or units. Accordingly, the Commission concludes that the Peruvian State
violated the rights guaranteed to the victims under Article 5 of the Convention.
Right
to Life (Article 4 of the Convention)
53.
The American Convention establishes:
Article
4. Right to Life
1.
Every person has the right to have his life respected. This right
shall be protected by law and, in general, from the moment of conception.
No one shall be arbitrarily deprived of his life.
2.
In countries that have not abolished the death penalty, it may
be imposed only for the most serious crimes and pursuant to a final judgment
rendered by a competent court and in accordance with a law establishing
such punishment, enacted prior to the commission of the crime. The application
of such punishment shall not be extended to crimes to which it does not
presently apply.
3.
The death penalty shall not be reestablished in states that have
abolished it.
4.
In no case shall capital punishment be inflicted for political
offenses or related common
crimes.
5.
Capital punishment shall not be imposed upon persons who, at the
time the crime was committed, were under 18 years of age or over 70 years
of age; nor shall it be applied to pregnant women.
6.
Every person condemned to death shall have the right to apply for
amnesty, pardon, or commutation of sentence, which may be granted in all
cases. Capital punishment shall not be imposed while such a petition is
pending decision by the competent authority.
54.
The Inter-American Court of Human Rights has stated that the forced
disappearance of persons "often involves secret execution without
trial, followed by concealment of the body to eliminate any material evidence
of the crime and to ensure the impunity of those responsible. This is
a flagrant violation of the right to life, recognized in Article 4 of
the Convention...". The Court also ruled that the fact that a person
has disappeared for seven years creates a reasonable presumption that
he or she was killed. [8]
55.
In the case of Messrs. Pedro Pablo López González, Denis Atilio
Castillo Chávez, Gilmer Ramiro León Velásquez, Jesús Manfredo Noriega
Ríos, Roberto and Carlos Alberto Barrientos Velásquez, and Carlos Martín
and Jorge Luis Tarazona More, it
has been established that they were disappeared by state agents, and there
are sufficient grounds to presume they are dead, considering that more
than seven years have elapsed since their detention and disappearance,
and the fact that the persons responsible for their disappearance are
state agents.
56.
Therefore, the Commission finds that the Peruvian State violated
the victims right to life, a fundamental right protected under Article
4 of the Convention, which states that "Every person has the right
to have his life respected... No one shall be arbitrarily deprived of
his life."
Right
to Juridical Personality (Article 3 of the Convention)
57.
The American Convention establishes:
Article
3. Right to Juridical Personality
Every
person has the right to recognition as a person before the law.
58.
Article 3 of the American Convention on Human Rights establishes
that every person has the right to recognition as a person before the
law. When Messrs. Pedro Pablo
López González, Denis Atilio Castillo Chávez, Gilmer Ramiro León Velásquez,
Jesús Manfredo Noriega Ríos, Roberto and Carlos Alberto Barrientos Velásquez
and Carlos Martín and Jorge Luis Tarazona More were detained and then
"disappeared" by State agents, they were
excluded from the legal and institutional framework of the Peruvian
State. In that sense, the forced disappearance of persons constitutes
the negation of their very existence as human beings recognized as persons
before the law. [9]
59.
Thus, the Commission finds that Peru violated the victims Pedro
Pablo López González, Denis Atilio Castillo Chávez, Gilmer Ramiro León
Velásquez, Jesús Manfredo Noriega Ríos, Roberto and Carlos Alberto Barrientos
Velásquez and Carlos Martín and Jorge Luis Tarazona More
right to recognition of a person before the law, enshrined in Article
3 of the Convention.
Right
to Judicial Protection (Article 25 of the Convention)
60.
The American Convention establishes:
Article
25. Right to Judicial Protection
1.
Everyone has the right to simple and prompt recourse, or any other
effective recourse, to a competent court or tribunal for protection against
acts that violate his fundamental rights recognized by the constitution
or laws of the state concerned or by this Convention, even though such
violation may have been committed by persons acting in the course of their
official duties.
2.
The States Parties undertake:
a.
to ensure that any person claiming such remedy shall have his rights
determined by the competent authority provided for by the legal system
of the state;
b.
to develop the possibilities of judicial remedy; and
c.
to ensure that the competent authorities shall enforce such remedies
when granted.
61.
From the information provided by the parties, it is clear that
the Peruvian State has not complied with its obligation to investigate
the facts of this case and initiate judicial proceedings.
62.
The Inter-American Court of Human Rights has stated that the principles
of international law "refer not only to the formal existence of such
remedies, but also to their adequacy and effectiveness, as shown by the
exceptions set out in Article 46(2)." [10]
It has also made it clear that the failure to provide effective, not merely
formal, judicial remedies not only entails an exception to the rule that
domestic remedies must be exhausted, but also constitutes a violation
of Article 25 of the Convention.[11]
63.
Peruvian law establishes that in all cases of offenses against
the public order, the Office of the Attorney General represents both the
State and the victim. The Office of the Attorney General is obligated
to participate in investigating and prosecuting the crime. Consequently,
it should promote and undertake whatever action may be required (provision
of evidence, inspections, or any other) to establish the veracity of the
complaint, to identify those responsible, if applicable, and to bring
criminal charges against them.
64.
The jurisprudence of the Inter-American Court of Human Rights confirms
the provisions of domestic law when it refers to the obligation of States
and says, with regard to the previous point, that "The State has
a legal duty (...) to carry out a serious investigation of violations
committed within its jurisdiction, to identify those responsible, to impose
the appropriate punishment and to ensure the victim adequate compensation."[12]
65.
The State must not evade, under any pretext, its duty to investigate
a case involving violation of fundamental human rights. The Court says
as much when it states that "the investigation... must be undertaken
in a serious manner and not as a mere formality preordained to be ineffective.
An investigation must have an objective and be assumed by the State as
its own legal duty, not as a step taken by private interests that depends
upon the initiative of the... family... without an effective search for
the truth by the government."[13]
66.
The right to be brought before a competent judge is a fundamental
safeguard for the rights of any detainee. As the Inter-American Court
of Human Rights has stated, judicial supervision of detention, through
habeas corpus, "performs a vital role in ensuring that a persons
life and physical integrity are respected, in preventing his disappearance
or the keeping of his whereabouts secret and in protecting him against
torture or other cruel, inhumane, or degrading punishment or treatment."[14]
67.
Precisely for that reason, Article 27 of the American Convention
on Human Rights has established that essential judicial guarantees safeguarding
certain fundamental rights cannot be suspended. As the Inter-American
Court of Human Rights has ruled, "from Article 27(1), moreover, comes
the general requirement that in any state of emergency there be appropriate
means to control the measures taken, so that they are proportionate to
the needs and do not exceed the strict limits imposed by the Convention
or derived from it."[15]
68.
The Court has also stated that the judicial nature of those means
presupposes "the active involvement of an independent and impartial
judicial body having the power to pass on the lawfulness of measures adopted
in a state of emergency [16]
and that "it must also be understood that the declaration of a state
of emergency" whatever its breadth or denomination in internal law
"cannot entail the suppression or ineffectiveness of the judicial
guarantees that the Convention requires States Parties to establish for
the protection of the rights not subject to derogation or suspension by
the state of emergency."[17]
69.
According to the Inter-American Court of Human Rights, this also
includes the right to a fair trial enshrined in Article 8, which "includes
the prerequisites necessary to ensure the adequate protection of those
persons whose rights or obligations are pending judicial determination."
[18]
The Court concluded that "the principles of due process of law cannot
be suspended in states of exception insofar as they are necessary conditions
for the procedural institutions regulated by the Convention to be considered
judicial guarantees."[19]
70.
Such a lack of access to effective domestic remedies against acts
that violate fundamental rights constitute a violation by the Peruvian
State of Articles 8 and 25 of the Convention.
Obligation
to respect and guarantee rights
71.
In this case, it has been shown that the Peruvian State failed
to comply with the obligation, set forth in Article 1(1) of the Convention,
"to respect the rights and freedoms recognized herein and to ensure
to all persons subject to their jurisdiction the free and full exercise
of those rights and freedoms," because it violated rights established
in Articles 3, 4, 5, 7, 8 and 25 of the Convention.
72.
The first obligation of States, under Article 1(1) of the Convention,
is to respect the rights and freedoms of all persons subject to their
jurisdiction. With regard to this obligation, the Court ruled that "under
international law a State is responsible for the acts of its agents
and for their omissions, even when those agents act outside the sphere
of their authority or violate internal law". It ruled also that "any
violation of rights recognized by the Convention carried out by an act
of public authority or by persons who use their position of authority
is imputable to the State." [20]
73.
The Commission concludes that the forced disappearance of Messrs.
Pedro Pablo López González, Denis Atilio Castillo Chávez, Gilmer Ramiro
León Velásquez, Jesús Manfredo Noriega Ríos, Roberto and Carlos Alberto
Barrientos Velásquez and Carlos Martín and Jorge Luis Tarazona More constitutes
acts perpetrated by agents of public authority, and that, therefore, the
Peruvian State violated the rights of that victims, enshrined in Article
1(1) of the Convention, in relation to violations of Articles 3, 4, 5,
7, 8 and 25 of the Convention.
74.
The second obligation set forth in Article 1(1) is to ensure free
and full exercise of the rights and freedoms recognized in the Convention.
On this the Courts jurisprudence establishes that: "This obligation
implies the duty of the States Parties to organize the governmental apparatus,
and, in general, all the structures through which public power is exercised,
so that they are capable of juridically ensuring the free and full enjoyment
of human rights. As a consequence of this obligation, States must prevent,
investigate, and punish any violation of the rights recognized by the
Convention
" [21]
75.
In the event of a "forced disappearance", the State is
obligated to ascertain the whereabouts and situation of the victim, punish
those responsible, and make reparation to the family members. In the case
at hand, these obligations have not been met. Therefore, the Commission
concludes that the Peruvian State has violated Article 1(1) of the Convention
by failing to ensure the exercise of the rights and guarantees of the
individual involved.
V.
PROCEEDINGS AFTER REPORT Nº 134/99
76.
The Commission approved Report Nº 134/99 (Article 50) on the instant
case on November 19, 1999, during its 105th session (special).
That report, which contains the Commissions
recommendations, was transmitted to the Peruvian State on December
20, 1999; it was given two months to carry out the recommendations, counted
from the date the Report was sent.
77.
By Note No. 7-5-M/072, of February 22, 2000, the State forwarded
its considerations on Report Nº 134/99 to the Commission, and stated its
disagreement with points of fact and law reflected in that report, and
with the Commissions conclusion.
The State insisted that the petitioner had not exhausted domestic
remedies.
78.
The Peruvian State indicated its specific discrepancy with the
IACHRs conclusion in paragraph 82 infra,
and insists in this regard that Messrs. Pedro Pablo López González, Denis
Atilio Castillo Chávez, Gilmer Ramiro León Velásquez, Jesús Manfredo Noriega
Ríos, Roberto Barrientos Velásquez, Carlos Alberto Barrientos Velásquez,
Carlos Martín Tarazona More, and Jorge Luis Tarazona More were not detained
by members of the Peruvian Police or Navy.
It added that accordingly, the recommendations of the IACHR
are inadmissible.
79.
Finally, the State indicated, with respect to amnesty laws 26.479
and 26.492, that "both provisions were approved by the Congress of
the Republic in the exercise of the functions that the Constitution confers
on it, and are part of the policy of pacification initiated by the Peruvian
State."
80.
The Commission refrains from analyzing the reiterations of the
Peruvian State in response to arguments made prior to the adoption of
Report Nº 134/99, and its expressions of disagreement with that Report,
for pursuant to Article 51(1) of the Convention, what the Commission must
determine at this stage of the procedure is whether the State did or did
not resolve the matter. In this respect, the IACHR observes that the Peruvian
State has not carried out any of the recommendations made to it by the
Commission in its Report Nº 134/99.
81.
With respect to Peru's allegation that the amnesty laws are consistent
with the Peruvian Constitution, the Commission recalls that the Peruvian
State, on ratifying the American Convention on Human Rights, on July 28,
1978, contracted the obligation to respect and ensure the rights set forth
in it. In this regard, and in keeping with Article 27 of the Vienna Convention
on the Law of Treaties, the Peruvian State cannot invoke its internal
laws as justification for failure to comply with the obligations it assumed
on ratifying the American Convention on Human Rights. Over the years,
this Commission has adopted reports in several key cases in which it has
had the opportunity to express its point of view and crystallize its doctrine
with respect to the application of amnesty laws, establishing that such
laws violate several provisions of both the American Declaration and the
American Convention.[22]
These decisions, which are in agreement with the criterion adopted by
other international human rights bodies regarding amnesties,[23]
have declared uniformly that both the amnesty laws and comparable legislative
measures that impede or that determine the conclusion of the investigation
and trial of State agents who may be responsible for serious violations
of the American Convention or the American Declaration violate several
provisions of those instruments.[24]
This doctrine has been confirmed by the Inter-American Court of Human
Rights, which has established that the States Parties have the duty "to
investigate human rights violations, prosecute the persons responsible,
and prevent impunity."[25]
The Court has defined impunity as the failure to investigate, pursue,
arrest, try, and sentence persons responsible for human rights violations,
and has affirmed that the States have the duty to combat this situation
by all legal means available, since impunity fosters the chronic repetition
of such human rights violations, and the total defenselessness of the
victims and their families.[26] The States Parties to the
American Convention cannot invoke provisions of domestic law, such as
amnesty laws, to fail to carry out their obligation to guarantee the complete
and correct functioning of the justice system.[27]
VI.
CONCLUSION
82.
The Commission concludes that the Peruvian State, through members
of the National Police and Peruvian Navy, detained Messrs. Pedro Pablo
López González, Denis Atilio Castillo Chávez, Gilmer Ramiro León Velásquez,
Jesús Manfredo Noriega Ríos, Roberto and Carlos Alberto Barrientos Velásquez,
and Carlos Martín and Jorge Luis Tarazona More on May 2, 1992, at the
human settlements of La Huaca, Javier Heraud,
and San Carlos, located in the district and province
of Santa, department of Ancash, and that it then proceeded to disappear
them. Therefore, the Peruvian
State is responsible for the forced disappearance of the victims identified
above, violating the following rights: the right to liberty (Article 7),
the right to humane treatment (Article 5), the right to life (Article
4), the right to juridical personality (Article 3), and the right to an
effective judicial remedy (Article 25) enshrined in the American Convention
on Human Rights. In addition,
the Peruvian State has breached its general obligation to respect and
ensure the exercise of these rights set forth in the Convention, in the
terms of Article 1(1) thereof.
VII.
RECOMMENDATIONS
Based
on the foregoing analysis and conclusion,
THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS REITERATES THE FOLLOWING RECOMMENDATIONS
TO THE PERUVIAN STATE:
1.
That it carry out an exhaustive, impartial, and effective investigation
to determine the circumstances of the forced disappearance of Pedro Pablo
López González, Denis Atilio Castillo Chávez, Gilmer Ramiro León Velásquez,
Jesús Manfredo Noriega Ríos, Roberto and Carlos Alberto Barrientos Velásquez
and Carlos Martín and Jorge Luis Tarazona More, and that it punish the
persons responsible, in keeping with Peruvian legislation.
2.
That it void any domestic measure, legislative or otherwise, that
tends to impede the investigation, prosecution, and punishment of the
persons responsible for the detention and forced disappearance of Pedro
Pablo López González, Denis Atilio Castillo Chávez, Gilmer Ramiro León
Velásquez, Jesús Manfredo Noriega Ríos, Roberto and Carlos Alberto Barrientos
Velásquez and Carlos Martín and Jorge Luis Tarazona More.
Accordingly, the State should nullify Laws 26.479 and 26.492.
3.
That it adopt the measures required for the family members of
Pedro Pablo López González, Denis Atilio Castillo Chávez, Gilmer
Ramiro León Velásquez, Jesús Manfredo Noriega Ríos, Roberto and Carlos
Alberto Barrientos Velásquez and Carlos Martín and Jorge Luis Tarazona
More to receive adequate and timely reparation for the violations established
herein.
VIII. PUBLICATION
83.
On October 4, 2000, the Commission transmitted Report 58/00, whose
text is the foregoing, to the Peruvian State and the petitioner, pursuant
to Article 51(2) of the Convention, and gave the State an additional time
to comply with the foregoing recommendations.
On November 20, 2000, Peru forwarded a communication to the Commission
in which it stated that the Peruvian State ... is designing a comprehensive
solution to cases affected by this problem. To this end, the State, and
the opposition political groups and representatives of civil society,
in the framework of the Mesa de Diálogo sponsored by the OAS, are
holding conversations aimed at designing and implementing a National Reconciliation
policy, which will include, among others, issues such as that which is
the subject of this case.
Nonetheless, in that communication the State did not show that
it had carried out the Commissions recommendations.
84.
According to the above considerations, and Articles 51(3) of the
American Convention and 48 of the Commissions Regulations, the Commission
decides to reiterate the conclusion and recommendations set forth in chapters
VI and VII above; to make public the present report and include it in
its Annual Report to the OAS General Assembly. The Commission, according
to the norms contained in the instruments which govern its mandate, will
continue evaluating the measures adopted by the Peruvian State with respect
to the above recommendations until they have been complied with by the
Peruvian State.
Approved
on the 4th day of the month of December, 2000.
(Signed): Hélio Bicudo, Chairman; Claudio Grossman, First Vice-Chairman;
Juan Méndez, Second Vice-Chairman; Commissioners:
Marta Altolaguirre, Robert K. Goldman, Peter Laurie, and Julio
Prado Vallejo.
[1]
The Peruvian State deposited the instrument of ratification of the American
Convention on July 28, 1978.
[2]
IACHR, Report Nº 51/99, Case 10.471 and others (Peru), Annual Report
1998, para. 58 to 63. See also, IACHR, Reports Nos. 52/99, 53/99, 54/99,
55/99, 56/99, and 57/99 (Peru), Annual Report 1998.
[3]
IACHR, Report Nº 51/99, Cases 10.471 and others (Peru), Annual Report
1998, para. 68 to 95. See also, IACHR, Reports Nos. 52/99, 53/99, 54/99,
55/99, 56/99, and 57/99 (Peru), Annual Report 1998.
[4] As mentioned in paragraph 28, supra, the Commission, citing the doctrine of the Inter-American Court, has said that when the existence of a policy of disappearances supported or tolerated by the government has been shown, the disappearance of a particular individual may be proved through circumstantial or indirect evidence, or by logical inference; otherwise it would be impossible to prove that an individual has been disappeared. (Inter-American Court of Human Rights, Case of Velásquez Rodríguez, Judgment of July 29, 1988, para. 124).
[5]
According to which every person has the right:
Article 20:
.. to personal liberty and security. Consequently, (g) No one shall
be detained except with a justified, written order or by police
officers in flagrante delito
[6]
The Commission has established that: The rationale behind this guarantee
is that no person should be punished without a prior trial which
includes a charge, the opportunity to defend oneself, and a sentence.
All these stages must be completed within a reasonable time. The
time limit is intended to protect the accused with respect to his
or her fundamental right to personal liberty, as well as the accused
personal security against being the object of an unjustified procedural
risk. (IACHR,
Report Nº 12-96, para. 76 (Case 11.245, Argentina), published
in the 1995 Annual Report.
[7]
Inter-American Court of Human Rights, Velásquez Rodríguez case,
op.cit., paragraph 156.
[8]
Idem paragraphs 157 and 188.
[9]
Article 1(2) of the declaration regarding protection of persons
from forced disappearances defines disappearance as a violation
of the norms of international law guaranteeing every human being
the right to recognition as a person before the law. UN General
Assembly resolution 47/133, December 18, 1992.
[10]
Inter-American Court of Human Rights, Velásquez Rodríguez case,
op.cit., paragraph 63.
[11]
Inter-American Court of Human Rights, Velásquez Rodríguez case.
Preliminary objections. Judgment of June 24, 1987, par. 91.
[12]
Inter-American Court of Human Rights, Velásquez Rodríguez case,
op.cit., paragraph 174.
[13]
Idem, paragraph 177.
[14]
Inter-American Court of Human Rights, Habeas Corpus in Emergency
Situations (Articles 27(2), 25(1) and 7(6), American Convention
on Human Rights). Advisory Opinion OC-8/87 of January 30, 1987.
Series
A Nº 8, paragraph 35.
[15]
Inter-American Court of Human Rights, Judicial Guarantees in State
of Emergency (Articles 27(2), 25 and 8 of the American Convention
on Human Rights), Advisory Opinion OC-9/87 of October 6, 1987, Series
A Nº 9, paragraph 21.
[16]
Inter-American Court of Human Rights, Habeas Corpus in Emergency
Situations, op.cit., paragraph 30.
[17]
Inter-American Court of Human Rights, Judicial Guarantees in
State of Emergency, op.cit., paragraph 25.
[18]
Idem, paragraph 28.
[19]
Ibidem, paragraph 30.
[20]
Inter-American Court of Human Rights, Velásquez Rodríguez case,
op.cit., paragraphs 170 and 172.
[21]
Idem, paragraph 166.
[22]
Report 28/92, Argentina, Annual Report of the IACHR 1992-1993, para.
41; Report 29/92, Uruguay, Annual Report of the IACHR 1992-1993,
para. 51; Reports 34/96 and 36/96, Chile, Annual Report of the IACHR
1996, paras. 76 and 78 respectively; Report 25/98, Chile, Annual
Report of the IACHR 1997, para. 71; and Report 1/99, El Salvador,
Annual Report of the IACHR 1998, para. 170.
[23]
See, for example, the study on impunity prepared in 1997 by Louis
Joinet, U.N. Special Rapporteur on Impunity (United Nations Commission
on Human Rights, Question of the impunity of perpetrators of human
rights violations (civil and political), Revised Final Report, prepared
by Mr. Joinet pursuant to decision 1996/119 of the Subcommission.
E/CN.4/Sub.2/1997/20 Rev. 1, October 2, 1997. The Human Rights Committee
of the United Nations declared that it was profoundly concerned
over the amnesties granted by Decree-Laws Nos. 26.479 and 26.492,
and concluded that those laws violate various human rights (Preliminary
observations of the Human Rights Committee, Peru, CCPR/C/79/Add.67,
July 25, 1996). In addition, the United Nations Committee Against
Torture also examined the Peruvian amnesty legislation and expressed
its concern over the practice of promulgating amnesty laws which
in fact confer impunity on persons guilty of torture, in violation
of many provisions of the Convention Against Torture (Summary record
of the public part of the 333rd session: Panama and Peru, May 20,
1998. CAT/C/SR.333).
[24]
Report 28/92, Argentina, Annual Report of the IACHR 1992-1993, para.
41; Report 29/92, Uruguay, Annual Report of the IACHR 1992-1993,
para. 51; Reports 34/96 and 36/96, Chile, Annual Report of the IACHR
1996, paras. 76 and 78 respectively; Report 25/98, Chile, Annual
Report of the IACHR 1997, para. 71; and Report 1/99, El Salvador,
Annual Report of the IACHR 1998, para. 170.
[25]
Inter-American Court of Human Rights, Case of Loayza Tamayo,
Judgment of Reparations, November 27, 1998, para. 170.
[26]
Inter-American Court of Human Rights, Case of Paniagua Morales
et al., Judgment of March 8, 1998, Series C, Nº 37, para. 173.
[27]
Inter-American Court of Human Rights, Case of Loayza Tamayo,
Judgment of Reparations of November 27, 1998, paragraph 168.