Facts alleged

57.          According to the petition submitted to the IACHR by the Asociación Pro Derechos Humanos (APRODEH), from July 5 to 7, 1992, seven members of the peasant community of Pallcca, Sacsamarca district, named  Amadeo Inca Ñaupa (or Amadeo Arcanaupa), Luciano Huamán García, Antonio Janampa Aucassi, Constantina García Gutiérrez, Marciano (or Mariano) Janampa García, Agripina Aucassi Espilico, Maura Huamán Paucar, and five members of the peasant community of Manchiri, Carapo district, Huanca Sancos province, Libertadores-Wari region, called Demetrio Huamán León, Víctor Rojas Huamán (or Víctor Huamán Paucar), Mauro Huamán Paucar, Narciso Huamán Paucar, and Melecio Chonta Huamán, were summarily executed by a group of 12 heavily armed persons in civilian dress including two women. This group passed through the provinces, sacking and selectively assassinating teachers and peasants, apparently in retaliation for collaborating with subversive groups.  The armed group passed through areas close to military units without being noticed by the authorities.  After their outing, witnesses saw them enter the Pampa Cangallo military base, in Cangallo province, Ayacucho.

Processing before the Commission

58.          On December 1, 1992  the Commission opened the case and transmitted the pertinent parts of the complaint to the Peruvian state, requesting that it provide information on the facts alleged.  The State responded on February 4, 1994.

59.          On April 25, 2000, the Commission requested of both parties that they provide up-to-date information.  In this last communication, the Commission made itself available to the parties to pursue a friendly settlement, in keeping with Article 48(1)(f) of the Convention.  Once the term expired, there was not agreement between the parties to pursue a friendly settlement.  The State answered on August 23, 2000.

The State’s position

60.          It its initial report the State denied it was responsible, arguing that on the date in question no patrol left the Pampa Cangallo base to participate in missions, and that there were no combats, and that furthermore such patrols do not include women.  In the observations forwarded on August 23, 2000, the State clarified the names of three of the victims, [1] reiterated its arguments, and concluded that it had not been proven that State agents were responsible, because the two witnesses’ version of the events, cited by the petitioner, were not corroborated.  It added that by resolution of March 30, 1999, the Office of the Prosecutor ordered the provisional archiving of the investigation.  The State did not deem it advisable to pursue a friendly settlement. 

13.  Pascual Chipana Huauya, Pelagia Chipana Condori, Paulina Vásquez Esquivel, Donato Pablo, Juan Cacñahuaray, Jovita Cahuana, Pelayo Capizo, and Pelagia Pillaca (Case 11.161)

Facts alleged

61.          According to the petition submitted to the IACHR by the Asociación Pro Derechos Humanos (APRODEH) on the morning of June 16, 1992, six uniformed soldiers of the Peruvian Army from the military base of Huancapi were seen outside the peasant community of Huancaraya.  At 10:00 p.m. witnesses saw the six soldiers enter the homes of Donato Pablo, Juan Cacñahuaray, and Jovita Cahuana, respectively, who were each assassinated by approximately six gunshot wounds to the head.  The shots were not heard.   The following day, on June 17, 1992, the six soldiers arrived at the peasant community of Circamarca and at midnight entered the home of husband and wife Pelayo Capizo and Pelagia Pillaca, who were also killed with six shots to the head, the shots not being heard.  The same day, at 3:00 a.m., the soldiers arrived at the Llusita peasant community and entered the home of Pelagia Chipana Condori, who was killed with six or seven shots, which were not heard.  Next, the soldiers entered the home of Pascual Chipana Huauya and killed him in the same way, according to his mother-in-law, who was asleep in the home, and did not hear any noise.  Finally, the soldiers entered the dwelling of Paulina Vásquez Esquivel, who they killed with six or seven gunshots as she came out to the yard.  The gunshots were not heard. The petition adds that Mrs. Feliciana Quispe Huamani had to flee the community of Circamarca because of the continual siege by the Army and the DECAS antisubversive civil patrols.  In order to force Feliciana Quispe to turn herself in, on April 22, 1992, a  group from the DECAS from the community of Circamarca captured her sister, Nazaria Quispe Huamani, who was held in the Huancapi military base, and a week later she was again detained and taken to the Circamarca Military base.  On both occasions, she was released the following day.

Processing before the Commission

62.          On May 27, 1993, the Commission opened the case and forwarded the pertinent parts of the complaint to the Peruvian state, and requested information on the facts alleged.  The State answered on September 24, 1993 and sent additional information on January 31, 1994.

63.          On April 25, 2000, the Commission asked the State and the petitioners to submit up-to-date information on this case within 45 days.  In the same communication, the Commission made itself available to the parties to pursue a friendly settlement, in keeping with Article 48(1)(f) of the Convention.  Once the term expired, there was not agreement between the parties to pursue a friendly settlement. 

The State’s position

64.          The State maintained that according to the statements of Zozimo Cahuana Condori, Justice of the Peace of Huancaraya district, and Victoriano Cacñahuaray Capiso, Justice of the Peace of Circamarca district, Cecilio Condori Chipana and other authorities of the Llusita community, the peasants Pascual Chipana Huauyal; Jovita Cahuana de Barrios; Donato Pablo; Juan Cacñahuaray; Palagio Capiso Pedro; Pillaca Pelayo; Pelagia Chipana Condori; and Paulina Vásquez Esquivel, were assassinated by members of Shining Path.  In this respect, the State offered several considerations on the methods employed in the killings, and on the make-up of the group–six men and one woman–which showed that the murderers were not state agents.  Finally, the State indicated that the complaint regarding the pursuit of Feliciana Quispe Huamani was false, because the Army had given her protection.

14. Jessica Rosa Chávez Ruiz, Pedro Javier Cruz Guzmán, and Héctor Rodríguez Rodríguez (Case 11.292)

Facts alleged

65.          According to the petition submitted to the IACHR by the Asociación Pro Derechos Humanos (APRODEH) on July 5, 1993, members of the Peruvian police, in the district of Porvenir Trujillo, Libertad department, detained and physically abused Jessica Rosa Chávez Ruiz, 17, student, Pedro Javier Cruz Guzmán, 28, worker, and Héctor Rodríguez Rodríguez, 28, student; they had been participating in a social activity at the A.H. Víctor Raul Haya de la Torre.  Their corpses appeared later.  The Police authorities justified the deaths of the three as arising from an armed confrontation with three members of the Túpac Amaru subversive group, who died.  However, the corpses of the three victims showed signs of physical abuse and gunshot wounds fired from less than one meter in the chest with an oblique downward trajectory.

Processing before the Commission

66.          On May 19, 1994, the Commission opened the case and forwarded the pertinent parts of the complaint to the State, and requested information on the facts alleged.  The State answered on December 27, 1994.

67.          On May 1, 2000, the Commission asked the State and the petitioner to submit up-to-date information on this case within 45 days.  In the same communication, the Commission made itself available to the parties to pursue a friendly settlement, in keeping with Article 48(1)(f) of the Convention.  Once the term expired, there was not agreement between the parties to pursue a friendly settlement. 

The State’s position

68.          The State maintained that proceedings were brought against the members of the Peruvian Police, and that both the prosecutor and the judge had issued statements holding liable two of the officers on trial, and the case was referred to the Second Criminal Chamber on September 6, 1994.

15.          Moisés Carvajal Quispe (Case 11.680)

Facts alleged

69.          According to the petition submitted to the IACHR by the Asociación Pro Derechos Humanos (APRODEH), Moisés Carvajal Quispe was detained at the checkpoint of the Santa Rosa Military Base, in the city of Abancay, Apurímac department, on October 21, 1989 while traveling from Abancay to Aymaraes in the company of Simón Flores Quispe, his mother’s husband.  From October 24 to 27, 1989, his mother took him food at the Abancay military base, but on October 28, 1989, the authorities there refused to continue receiving it, arguing that Mr.  Carvajal Quispe had been released.  Neighbors told the mother that he had supposedly been released, but in reality he had been executed by the Army, which said he was killed while trying to escape. The autopsy showed that the corpse presented a gunshot wound that entered the back and exited the chest.

70.          These facts were reported to the local authorities.  The Special Prosecutor for Human Rights referred the case to Abancay.  On February 16, 1996, the Office of the Second Prosecutor for Abancay, prepared a summary of the facts, in which it stated that it did not have the autopsy, and that the deceased was apparently executed at the Abancay military base, and ordered that the case be provisionally archived because he had not been able to identify the perpetrators.

Processing before the Commission

71.          On September 20, 2000, the Commission opened the case, forwarded the pertinent parts of the complaint to the State, and requested it provide information on the facts alleged.  The State answered on February 6, 1997. The petitioner submitted observations to the State’s response on June 2, 1997.  The State submitted its reply to the petitioner’s observations on October 1, 1997 and an additional report on March 18, 1998.

72.           On May 1, 2000, the Commission asked the State and the petitioners to submit up-to-date information on this case within 45 days.  In the same communication, the Commission made itself available to the parties to pursue a friendly settlement, in keeping with Article 48(1)(f) of the Convention.  Once the term expired, there was not agreement between the parties to pursue a friendly settlement. 

The State’s position

73.          The State maintained that domestic remedies had not been exhausted because the investigations were ongoing for the purpose of identifying the perpetrators.  It added that the petitioner did not contest the provisional archiving of the case on February 16, 1996 by the Office of the Second Prosecutor for Criminal Matters of Abancay, and asked that the case be declared inadmissible.

B.          Cases of forced disappearances of persons

16.          Luis Alberto Sangama Panaifo and Lucio Escobal Fretel (Case 10.564)

Facts alleged

74.          According to the petition submitted to the IACHR by the Comisión Episcopal de Acción Social (CEAS), on November 19, 1989, Mr. Luis Alberto Sangama Panaifo, 28, married, was detained by members of the Peruvian police in Hoitopa, Padre Abad province, Ucayali department, and flown by helicopter on November 22, 1989 to the military base located at Km. 11,  Federico Basadre road, where the military denied he had been detained.

75.          On October 13, 1989, Lucio Escobal  Fretel, 26, married, was detained by the police for not possessing personal identification documents.  Initially, the military authorities denied that he had been detained, but finally told his wife that he had been moved to the Ayacucho Army base, where he was seen by his cousin, who was also detained, and by several soldiers.  However, this military unit denied that he was detained. Later he was seen wearing an army uniform, working as a guide. The petitioner emphasized that Mr. Escobal Fretel did not participate in military service because of pulmonary problems.

76.          The facts surrounding the disappearance of the two victims were reported to the local authorities, and writs of habeas corpus were filed.

Processing before the Commission

77.          On June 15, 1990,  the Commission opened the case and forwarded the pertinent parts of the complaint to the Peruvian state, and requested information on the facts alleged.  That request was repeated on March 18, 1991.  The State answered on March 19, 1992.

78.          On May 2, 2000, the Commission asked both parties to submit up-to-date information on this case within 45 days.  In the same communication, the Commission made itself available to the parties to pursue a friendly settlement, in keeping with Article 48(1)(f) of the Convention.  Once the term expired, there was not agreement between the parties to pursue a friendly settlement.  On June 22, 2000, the State asked for a one-month extension to submit the information.  On June 29, 2000, the Commission granted an extension that expired on July 28, 2000.  The State sent in the information requested on August 10, 2000, which was forwarded to the petitioner on September 19, 2000.

The State’s position

79.          In its initial report, the State denied that Luis Alberto Sangama Panaifo had been detained by the security forces, and argued failure to exhaust domestic remedies, given that no habeas corpus action was filed with the Courts of Criminal Inquiry that have jurisdiction over Coronel Portillo province, where the military base is located at Km. 11 of the Federico Basadre highway.  The State did not produce any information concerning the situation of Lucio Escobal Fretel and asked that the two cases be separated considering that there was no relationship between the facts that occurred on different dates, to different individuals and in different places.  In the August 9, 2000 report, the State affirmed its previous arguments and reiterated, transcribing in detail the responses of the different offices, that in the official archives there is no information on the supposed disappearance of these two people.  It added that regarding the disappearance of Lucio Escobal Fretel, his relatives did not pursue a habeas corpus remedy.  Accordingly, the State did not deem it advisable to pursue a friendly settlement.

17.          Arturo Torres Quispe (Case 10.744)

Facts alleged

80.          According to the petition submitted to the IACHR by the Centro Episcopal de Acción Social (CEAS), on May 19, 1990, Arturo Torres Quispe, 16, student, was captured on the old Duraznopata highway by Duraznopata civil defense patrol members while with his brother returning home from their school, the Colegio González Vigil.  Both youths were detained by five or six men commanded by a man called “Villar Castillo.”  Arturo Torres Quispe’s brother was able to escape and notify his parents.  The relatives inquired at the Castropampa military base without receiving any information.  These facts were reported to the local authorities without obtaining any response as to the whereabouts of Arturo Torres Quispe.

Processing before the Commission

81.          On December 3, 1990, the Commission opened the case and forwarded the pertinent parts of the complaint to the Peruvian state, and requested information on the facts alleged.  On January 2, 1997, the Commission reiterated the request for information to the State, which did not respond.

82.          On May 2, 2000, the Commission asked both parties to submit up-to-date information on this case within 45 days.  In the same communication, the Commission made itself available to the parties to pursue a friendly settlement, in keeping with Article 48(1)(f) of the Convention.  Once the term expired, there was not agreement between the parties to pursue a friendly settlement.  The State responded on June 20, 2000, and on July 14, 2000, its response was forwarded to the petitioner.

The State’s position

83.          Since the case was opened on December 3, 1990, the State has not responded.  On June 14, 2000, the State submitted the information requested for the first time, and reported on the course of the criminal investigation that had been opened, based on the complaint lodged by the victim’s mother against the Duraznopata civil defense patrols, or rondas, commanded by Villar Castillo.  It added that in spite of the inquiries at the Castropampa military base, it could not find the youth; that the authorities at the “Los Cabitos 51" counter-subversive base stated that the  Huanta Self-Defense Committees are under their supervision; that there is no information regarding citizen Arturo Torres Quispe; and that there is no record of the May 19, 1990 patrol.  Finally, the State did not deem it advisable to pursue a friendly settlement.

18. Percy Borja Gaspar, Angel Zanabria Ubaldo, Gumercindo Ubaldo Zanabria, Apolonio Lazo Rodas, Hermilio Borja Ríos, Fredy Gaspar Ríos, José Muñoz Huallpa, Ernesto Salomé Bravo, Jesús Pumahuali Salomé, and César Sánchez Castro (Case 11.040)

Facts alleged

84.          According to the petition submitted to the IACHR by the Asociación Pro Derechos Humanos (APRODEH), the ten victims were captured on February 27, 1992–and later disappeared–by a group of approximately 30 ronderos of the civil defense committees based at Rangra, Concepción, led by Julio Cantorín Clemente.  It was reported that on February 27, 1992, the ronderos arrived at the Paccha peasant community, Tambo district, Huancayo province, Junín department and forcibly entered the homes of the ten victims--Apolonio Lazo Rodas, 25; Hermilio Borja Ríos, 25; Fredy Gaspar Ríos, 22;  César Sánchez Castro, 25; José Muñoz Huallpa, 18; Ernesto Salomé Bravo, 27; Jesús Pumahuali Salomé, 40; Gumercindo Ubaldo Zanabria, 16;  Angel Zanabria Ubaldo, 16; and  Percy Borja Gaspar, 14–who they beat, detained, and later disappeared.  The petitioner added that the civil defense committees are under the authority of the Political-Military Command of that zone, and that Mrs. Inés Castro, wife of rondero Julio Cantorín, stated that her husband carried an identification card issued by the president of the rondas campesinas of the Huahuanca Multisectoral base.  Because of the facts alleged, a criminal investigation was opened in the Third Court of Criminal Inquiry of Huancayo against Julio Cantorín Clemente.

Processing before the Commission

85.          On July 7, 1992, the Commission opened the case and forwarded the pertinent parts of the complaint to the State, and requested information on the facts alleged.  The State answered on September 16, 1992 and sent additional information on October 9, 1992.

86.          On May 16, 2000, the Commission asked both parties to submit up-to-date information on this case within 45 days.  In the same communication, the Commission made itself available to the parties to pursue a friendly settlement, in keeping with Article 48(1)(f) of the Convention.  Once the term expired, there was not agreement between the parties to pursue a friendly settlement. 

The State’s position

87.          In its initial report, the State maintained that it had initiated a case in the domestic jurisdiction against rondero Julio Cantorín Clemente and others in Huancayo, under the charges of violating personal liberty, unauthorized entry, and robbery.  In the following report, the Peruvian state also rejected outright any responsibility of the armed forces in the facts, arguing that the rondas campesinas are not under the authority of the Political-Military Command or of the armed forces, and that their creation, according to the terms of Law 24,571 of November 6, 1986, was a decision of community members themselves. 

19. Máximo Muñoz Solís, Levi Vivas Espinal, Alejandro Vera Suasnabar, Edgar Nestares Justo, Javier Yañac Solano, Richard Lozano Cáceres, Oscar Cirino Baldeón Chacón, Luis Alberto Ramírez Hinostroza, Teófilo Julio Lazo Chucos, César Teobaldo Volchez Simeón, José Fierro Miche, and Elías Uchupe Huamán (Case 11.126)

Facts alleged

88.          According to the petition submitted to the IACHR by the Centro de Estudios y Acción para la Paz (CEAPAZ), from December 1990 to June 15, 1991, detentions and disappearances were carried out by the Peruvian Army and police in several localities of Huancayo province, Junín department.

89.          In the context of that practice, two eyewitnesses state that Máximo Muñoz Solís was detained on August 12, 1990, in the main square of Satipo province by soldiers from the Satipo military base in Junín department, and taken to the military base of that province, and he remains disappeared ever since.  The incident was reported to the Provincial prosecutor of Satipo.

90.          Levi Vivas Espinal was detained at his home on January 21, 1991 by members of the Peruvian Army from the Vista Alegre military base, where he was abducted; ever since, he has been disappeared. A family member reported the incident to local authorities.

91.          Alejandro Vera Suasnabar and Edgar Nestares Justo were detained at their homes by heavily armed men wearing ski masks on January 23, 1991.  They have been disappeared ever since. The security forces deny having detained them.  The incident was reported by relatives to the Special Prosecutor for Human Rights.

92.          On February 7, 1991, Javier Yañac Solano and Richard Lozano Cáceres were detained at their respective homes, which were located half-a-block from one another, by members of the National Police from the Regional Intelligence Office (ORI) and taken away in the same vehicle.  The following day, the same members of the Police returned to Richard Lozano’s home with detainee Javier Yañac.  Mrs. Adelina Llacma, Richard Lozano’s common-law wife, went to the offices of that institution to inquire into his well-being, and, while there, she recognized two of the ORI police agents who had taken the two disappeared people.  The incident was reported to the Special Prosecutor for Human Rights.

93.          Oscar Cirino Baldeón Chacón was detained on February 23, 1991 by combined forces of the police and army who, wearing ski masks and carrying weapons, had violently entered his home.  The incident was reported to the Special Prosecutor for Human Rights.  The victim has remained disappeared ever since.

94.          Luis Alberto Ramírez Hinostroza was detained on February 22, 1991 by members of the Peruvian Army while he was playing sports at in a place near his home.  The victim’s mother was told that he had been taken to the “Cuartel 9 de Diciembre”  military base, but the military authorities denied that he had been detained.  He has remained disappeared since that date.  The incident was reported to the Special Prosecutor for Human Rights.

95.          Teófilo Julio Lazo Chucos was detained at his home on March 15, 1991 by members of the Peruvian Army who were wearing ski masks, and has been “disappeared” ever since.  The incident was reported to the Special Prosecutor for Human Rights.

96.          Witnesses state that César Teobaldo Vílchez Simeón was detained on May 25, 1991 by police from the Regional Intelligence Office (ORI) and violently put in a white Dodge pick-up, operated by the ORI, and was taken to the locality of Umto with other detainees, who were gradually released.  However, César Teobaldo Vílchez was placed in the custody of the Seventh Command of the General Police at Avenida Ferrocarril, and has remained disappeared ever since.  The incident was reported to the Special Prosecutor for Human Rights.

97.          Mr. José Fierro Miche was detained on May 30, 1991 by soldiers from Ollantaytambo military base, Puerto San Juan de Ubiriki, Chanchamayo province.  On that occasion, they placed him in a military truck and took him to Chatingarí military base.  Later, he disappeared.  The incident was reported to the Special Prosecutor for Human Rights.

98.          On June 15, 1991, Elías Uchupe Huamán was detained by military forces as he was leaving his home in Huancayo.  Later, members of the security forces forcibly entered a residence to search Uchupe Huamán’s room and rebuked the owner for renting to a terrorist.  The owner reported the facts as well as the theft of some of her property to the Special Prosecutor for Human Rights.  The victim has remained disappeared ever since.

Processing before the Commission

99.          On February 19, 1993, the Commission opened the case and forwarded the pertinent parts of the complaint to the State, and requested information on the facts alleged.  The State answered on September 20, 1993.

100.          On May 26, 1999, the Commission asked the State and the petitioners to submit up-to-date information on this case within 45 days.  In the same communication, the Commission made itself available to the parties to pursue a friendly settlement, in keeping with Article 48(1)(f) of the Convention.  Once the term expired, there was not agreement between the parties to pursue a friendly settlement.  The parties were asked to respond on both issues within 30 days.  On July 13, 1999, the petitioner expressed interest in pursuing a friendly settlement, a position that was forwarded to the State on August 12, 1999.  On September 7, 1999, the State presented additional written material, without agreeing to pursue a friendly settlement.

101.          On May 4, 2000, the Commission asked the State and the petitioners to submit up-to-date information on this case, and on the results of the domestic remedies.  Both parties were asked to respond within 45 days.

The State’s position

102.          In its initial report, the State denied any responsibility of the security forces in 11 of 12 of the disappearances.  Regarding the detention of Mr. Luis Alberto Ramírez Hinostroza, it explained that he was detained February 22, 1991 because he was extorting a minor, and was then placed at the disposal of the respective authorities.  In its July 27, 1999 report, Peru repeated this information, and added that Luis Alberto Ramírez Hinostroza had been detained several times on extortion charges, first on February 22, 1991, second on July 18, 1996, and third on October 21, 1996.  According to the State, this refutes his alleged disappearance. The State argued that the case was inadmissable for failure to exhaust the domestic remedies, as no writ of habeas corpus had been filed.  Finally, the State did not deem it advisable to pursue a friendly settlement.

20.          Edith Galván Montero (Case 11.132)

Facts alleged

103.          According to the petition submitted to the IACHR by the Asociación Pro Derechos Humanos (APRODEH), on October 11, 1992, Edith Galván Montero, whose sister Judith Galván Montero had been convicted of terrorism and treason, left her home located at Jr. José de Rivera Dávalos, Nº 767, neighboring Lima, for her godfather’s house in Villa El Salvador, department of Lima.  There, between 8:30 and 9:00 a.m., she was intercepted by members of the Peruvian Army, who placed her on a military truck with two other youths.  The following day, the newspaper published an article about the detention of three persons by military personnel--two men and a woman--who tried to steal a car from a taxi driver.  The neighbors in the area identified her from a photo as the woman who was detained along with two young men by Army soldiers.  However, Edith Galván Montero has been disappeared since that date.

Processing before the Commission

104.          On March 31, 1993, the Commission opened the case and forwarded the pertinent parts of the complaint to the State, and requested information on the facts alleged.  The State responded on July 17, 1993 and sent additional information on several occasions.  The petitioner presented observations on the State’s responses on August 1, 1997.

105.          On May 26, 1999, the Commission asked both parties to submit up-to-date information.  In this last communication, the Commission made itself available to the parties to pursue a friendly settlement, and give each party 30 days to accept its offer.  Once the term expired, there was not agreement between the parties to pursue a friendly settlement.  Both parties responded.

The State’s position

106.          In its initial response, the State maintained that Edith Galván Montero had not been registered as detained by the security forces.  Later, it reported its information, indicating that on November 14, 1989, she was arrested on terrorism charges and on December 27, 1990 the Criminal Court of Lima acquitted her, and she was released.  It stated that even though she had not been arrested since, the State has police report 032-D3-DINCOTE dated March 14, 1994, for the crime of terrorism and treason.  The State added that she was not held ( “no habida”) and that the police actions were taken because Edith Galván Montero had participated in a terrorist act, together with another member of Shining Path, on May 22, 1992, and that after having committed the crime, both of them had fled, and went underground.  Since there was a criminal case against her, it requested that this case be declared inadmissible on the grounds that the domestic remedies had not been exhausted.  The State did not deem it advisable to pursue a friendly settlement.

21. Esteban Romero León, Moisés Poma Ordónez and Yolanda Lauri Arias (Case 11.179)

Facts alleged

107.          According to the petition submitted to the IACHR by the Centro de Estudios y Acción para la Paz (CEAPAZ), on February 28, 1992 the following persons were detained and then disappeared:  Esteban Pallango Araujo (Esteban Allano Araujo), 17; Esteban (Ruben) Romero León, [2] 17; and  Reynaldo Fidel Véliz, 17.  On Tuesday, March 10, Moisés Poma Ordónez, 31, was detained and disappeared.  And on March 11, 1992, Yolanda Lauri Arias, 23, was detained and disappeared.  It was alleged that these detentions and forced disappearances were carried out by Army soldiers and by the Paccha, Huancayo, civil defense patrols, or rondas, organized under the orders of the Army.  The  complainant also said that “Esteban Pallango Arango and Teófilo Romero León,” allegedly detained and disappeared, were actually at the “9 de Diciembre de Huancayo” military base, as “recovered” deserters, and are completing their compulsory military service .  In this respect, the Commission observed that in the same document referred to by the petitioner, the name of Reynaldo Fidel Véliz appears as one of the “recovered” deserters.

108.          The petitioner notes that the facts alleged were reported to the local authorities, and that writs of habeas corpus were filed but not ruled on.

Processing before the Commission

109.          On July 29, 1993, the Commission opened the case, forwarded the pertinent parts of the complaint to the State, and requested information on the facts alleged.  The State answered on April 5, 1994, and sent additional information on August 17, 1998.

110.          On May 1, 2000, the Commission asked both parties to submit up-to-date information within 45 days.  In the same communication, the Commission made itself available to the parties to pursue a friendly settlement, in keeping with Article 48(1)(f) of the Convention.  Once the term expired, there was not agreement between the parties to pursue a friendly settlement.  The State responded on August 3, 2000.

The State’s position

111.          In its initial report, the State maintained that it had initiated domestic proceedings.  It added that a common grave had been found containing 10 corpses and that it was sparing no effort to capture Julio Cantorín Clemente, the alleged perpetrator of the crime.  In the second report, the State requested that the case be declared inadmissible for failure to exhaust domestic remedies.  In the third report, the State asked that the case be declared inadmissible on the grounds of tacit abandonment by the petitioner and added that the rondas campesinas of Suitucancha, Huahuanca, Ñahuinpuquio, Siusa and Tizo were subordinate to the Peruvian Army military bases, and that the ronderos had impeded the investigation.

C.          Cases that involve extrajudicial execution and forced disappearance

22. Víctor Tineo Sandoval, Guillermina Quispe de Tineo, Eulogio Demetrio Bohorquez Tineo, Ivan Roberto Tineo Rodríguez, and Elías Bohorquez Tineo (Case 10.431)

Facts alleged

112.          According to the petition submitted to the IACHR by the Centro Episcopal de Acción Social (CEAS), from July 15, 1984 to May 16, 1985, several members of the complainant’s family were arbitrarily detained by soldiers of the Marine Infantry billeted in the localities of San Miguel and Santa Rosa, province of La Mar, Ayacucho department.

113.          On July 15, 1984, Eulogio Bohorquez Tineo, 21, farmer, son of Gregoria Tineo Sandoval, was detained at his home in the Santa Rosa Annex, Ayna district, La Mar province, by soldiers of the Marine Infantry billeted in the area, and taken into the Santa Rosa military base. On June 20, 1985, Gregoria Tineo Sandoval reported her son’s disappearance to the Superior Prosecutor of Ayacucho.

114.          On January 30, 1985, soldiers of the Marine Infantry detained Ivan Roberto Tineo Rodríguez, 23, son of Víctor Tineo Sandoval and Guillermina Quispe de Tineo and took him to the La Mar military base under the pretense that he had to carry out an assignment related to his function as a member of the Huatasoccos civil defense.  After that, he disappeared.  On July 22, 1985, Abelina Tineo, his sister, reported the incident to the Superior Prosecutor of Ayacucho.

115.          On February 20, 1985, Elías Bohorquez Tineo Sandoval, 28, husband of Flora Herrera Taype, farmer, was detained in the Paccha Annex, Tambo district, La Mar province, by soldiers of the Marine Infantry billeted in that province.  Blindfolded, he was taken to San Miguel de la Mar military base.  His wife, Flora Herrera Taype, followed them to that base, where soldiers told her that he had been transferred to the “Los Cabitos #51" Marine Infantry base at Ayacucho.  There, the military authorities denied knowing his whereabouts or his legal status.  On March 5, 1985, Flora Herrera Taype and on June 20, 1985, Gregoria Tineo Sandoval, the victim’s wife and mother, respectively, reported the disappearance to the Superior Prosecutor of Ayacucho.

116.          On May 16, 1985, Víctor Tineo Sandoval, 46, and his wife, Guillermina Quispe de Tineo, 47, were detained at the home of Luis Rodríguez Tineo, where they were staying, at the request of the Pataccocha civil defense members and taken to the Santa Rosa Marine Infantry base, Ayna district, La Mar province, where they were tortured.  The military personnel there denied the facts alleged.  Ever since, the detainees have been disappeared, as appears in the complaint lodged on July 22, 1985 by Abelina Tineo Rodríguez with Superior Prosecutor of Ayacucho.

117.          The petitioner stated that the Office of Human Rights learned from Senator Jorge del Prado about the existence of death certificates for Víctor Tineo Sandoval and Guillermina Quispe de Tineo in unofficial notebooks without medical certificates and of the death of Eulogio Bohorquez Tineo at a date after the above events.

118.          The petitioner reported that the Ship’s captain of the Peruvian Navy using the pseudonym José Antonio on September 4, 1987, kept judicial officers from taking testimony from members of the Tineo family, and that the case continues in the investigative phase.

Processing before the Commission

119.          On August 4, 1989, the Commission opened the case and forwarded the pertinent parts of the complaint to the Peruvian State, and requested information on the facts alleged.  The State answered on December 26, 1990.  Both parties sent additional information  on various occasions.  On May 17, 2000, the Commission asked the State and the petitioner to submit up-to-date information on this case within 45 days.  In the same communication, the Commission made itself available to the parties to pursue a friendly settlement, in keeping with Article 48(1)(f) of the Convention.  Once the term expired, there was not agreement between the parties to pursue a friendly settlement. 

The State’s position

120.  In its initial report, the State indicated that it had designated a special lawyer to carry out a complete investigation into the facts.  In the next communication, the State denied the victims were detained by members of the Peruvian armed forces or the police.  Furthermore, the State maintained that the facts alleged cannot be attributed to personnel of the Marine Infantry, because from July 15, 1984 to May 16, 1985, those troops were not quartered at the Santa Rosa military base.  On December 30, 1999, the State argued that domestic remedies had not been exhausted, specifically habeas corpus, and that accordingly, the case should be declared inadmissible.

23. Concepción Ccacya Barrientos, Maximiliana Sotaya, Donato Morán, Emiliana Puga, and Fortunato Venegas (Case 10.523)

Facts alleged

121.          According to the petition submitted to the IACHR by the Centro Episcopal de Acción Social (CEAS), on October 3, 1989, Peruvian Army soldiers arrived at the Ccochapucro hamlet, Umamarca district, Andahuaylas province, Apurímac department, where, apart from detaining numerous community members, they assassinated Maximiliana Sotaya, 50, and dynamited her corpse; they also assassinated Donato Morán, 75, and Emilia Puga, and dismembered their corpses.  The petition adds that Concepción Ccaccya Barrientos, 52, has been disappeared since that date.

122.          Leonardo Ccaccya Barrientos, 28, married, catechist of the San Pedro de Andahuaylas Parish, reported these incidents to the local authorities.  In the wake of his allegations, Army members constantly threatened him.  On November 4, 1989, he was detained by members of the Army and his home forcibly entered.  On the same date, Army troops raped a 47-year-old woman and her 10-year-old daughter, killed Fortunato Venegas, and displaced 100 peasants.  On November 13, 1989, Leonardo Ccaccya was released, along with his brother Claudio and 12 other detainees.

Processing before the Commission

123.          On March 7, 1990, the Commission opened the case and forwarded the pertinent parts of the complaint to the Peruvian state, and requested information on the facts alleged, and reiterated the request to the State on April 15, 1991.  On November 15, 1996, the Commission repeated its request for up-to-date information to both parties, and gave them 30 days to reply.   The State answered on December 5, 1996, and sent additional information on March 13, 1997.

124.          On June 7, 2000, the Commission asked the State and the petitioner to submit up-to-date information within 45 days.  In addition, the Commission made itself available to the parties to pursue a friendly settlement, in keeping with Article 48(1)(f) of the Convention.  Once the term expired, there was not agreement between the parties to pursue a friendly settlement.  The State replied on July 14, 2000.

The State’s position

125.          In its first report, the State maintained that there was no complaint alleging the detention and disappearance of Concepción Ccaccya Barrientos or the disappearance of Leonardo Ccaccya Barrientos, Maximiliana Sotaya, Donato Morán, Emiliana Puga and Fortunato Venegas.  In its additional report, the State confirmed the first report and added that on December 30, 1996, Mrs. Lidia Ayquipa Taype, the wife of Leonardo Ccaccya and sister-in-law of  Concepción Ccaccya, told the State that her husband, Leonardo, had been living for over a year in the city of Lima, and that her brother-in-law, Concepción, has been disappeared since his parents’ death, five years ago, and who never said where he was going.  Finally, the communication described two criminal proceedings against Concepción Ccaccya Barrientos in the Peruvian courts: Proceeding Nº 155‑93 for crimes against property, archived on December 28, 1992, and Nº 130‑92 for cattle rustling, which has been in the Office of Arrest Warrants since May 23, 1996.  In its final report, the State did not consider it necessary to submit up-to-date information on the case, as it argues that the lack of interest on the part of the petitioner, who could not prove its allegations, shows that the State is not responsible for the facts alleged.  Accordingly, the State did not consider it appropriate to pursue a friendly settlement and asked that the complaint be declared inadmissible.

24. Flaviano Sáens Chuquivilca, Héctor Riveros Izarra, Edgar Chaguayo Quispe, Miriam Lidia Navarro Concha, Miguel Angel Cieza Galván, Socimo Curasma Sulla, Justiniano Fredy Vicente Rivera, Augusto Galindo Peña, Juana Ñahui Vilcas, Luis Aníbal Naupari Toralva, Alejandro Tunque Lizama, Eugenio Curasma Sulla, María Sánchez Retamozo, Edwin Ramos Calderón, Gladys Espinoza León, Fernando Sáenz Munarris, Hugo Puente Vega, and Peter David Cosme Ureta (Case 11.064)

Facts alleged

126.          According to the petition submitted to the IACHR by the Centro de Estudios y Acción para la Paz (CEAPAZ), from June 6 to September 22, 1992, a practice of detentions and forced disappearances, as well as extrajudicial executions, was directed against Universidad Nacional del Centro students by members of the army and police in the department of Junín.  Based on the chronological sequence of the facts, the complainant groups the 17 victims in two lists.  According to the complaint, eight students were initially detained and disappeared:  Flaviano Sáens Chuquivilca, Héctor Riveros Izarra, Edgar Chaguayo Quispe, Miriam Lidia Navarro Concha, Miguel Angel Cieza Galván, Socimo Curasma Sulla, Justiniano Fredy Vicente Rivera and Augusto Galindo Peña.  Ten more students were summarily executed:  Juana Ñahui Vilcas, Luis Aníbal Naupari Toralva, Alejandro Tunque Lizama, Eugenio Curasma Sulla, María Sánchez Retamozo, Edwin Ramos Calderón, Gladys Espinoza León, Fernando Sáenz Munarris, Hugo Puente Vega, and Peter David Cosme Ureta.

127.          In its observations to the State’s responses on the practice of disappearances and executions, the petitioner explained that these acts had increased since August 7, 1992, the date the Army occupied the University, registering students and professors, who were photographed and documented.  The practice had a common pattern:  It was selective, aimed at student leaders, and was distinguished by considerable operational capacity, which permitted the Army, for example, to kidnap, torture, and execute 35 people.  Regarding the situation of seven of the eight students who were detained and disappeared, and the list of the ten students executed, the petitioner reiterated that the State was responsible, explaining the grounds in each case, which are summarized in the following, and emphasized that over 18 months had gone by since its observations, without the Public Ministry undertaking a serious inquiry into the facts, which continued to go unpunished. 

128.          The petitioner adduced that the State’s assertion that Flaviano Sáens Chuquivilca was a member of the terrorist group Shining Path, and had gone underground, were not supported by reliable evidence, because in other cases before the Commission, documents have been forged by supposed civil authorities certifying the release, and the supposed accusations of the disappeared victim by private persons have not been duly processed by the Public Ministry.  Furthermore, such evidence is controverted by the account of the facts given to the victim’s sister by their cousin, Percy Jaramillo Sáenz, who was detained with Flaviano Sáens on June 6, 1992, by 30 members of the Peruvian Army, dressed as civilians, and wearing ski masks.  Days later, Percy Jaramillo Sáenz was released and stated that they had been detained at the Carhuamayo military base, where they had been subjected to torture and abuse.

129.          The petitioner argued that the mere assertion of the State that student Edgar Chaguayo Quispe had not been detained by the security forces did not refute the facts alleged about his detention and disappearance on August 25, 1992 by members of the National Police. The petitioner also criticized the inefficiency of the judicial system in the investigation. Finally, the petitioner explained that according to the inquiry of the Human Rights Secretariat of the Huancayo Popular Defense Front (Frente de Defensa de los Intereses del Pueblo de Huancayo), the victim’s corpse was found with three gunshot wounds to the head, and that even so, there had not been an official report.

130.          The petitioner considers that the State did not refute the facts alleged when it, without any proof, irresponsibly tied Miriam Lidia Navarro Concha to terrorist groups, attributing her death to a settling of accounts. The victim was detained by three men of military appearance, presumed to be members of the State security forces, and was disappeared on August 25, 1992 as she got off a bus near her home; the incident was witnessed by Juana Ñahui Vilca.  The petitioner adds that days later the corpse of  Miriam Lidia Navarro appeared with two gunshot wounds; one to the head and another to her heart.

131.          For the petitioner, Miguel Angel Cieza Galván’s claimed reappearance (he had been detained on August 25, 1992 by members of the Peruvian Army as he left the University) is a fact that could not be confirmed.  For although the State declared that on October 7, 1992 the victim’s mother had stated to the Provincial Prosecutor that her son had reappeared, he was still detained and disappeared.

132.          Given the lack of evidence to back up the State’s presumption that a settling of accounts was the motive for the murder of student leader Socimo Curasma Sulla, who was detained and executed by members of the Peruvian Army on August 27, 1992, in the city of Huancayo, the petitioner considers that the facts alleged have not been refuted.

133.          Justiniano Fredy Vicente Rivera and Augusto Galindo Peña, students at the Universidad Nacional del Centro, of Huancayo, were detained on September 7, 1992 as they were leaving class.  On September 10, 1992, members of the army forcibly entered the home of Mrs. Elsa Rivera de Vicente, mother of Justiniano Fredy Vicente.  The petitioner confirms that Justiniano Fredy Vicente Rivera was indeed executed, and that the corpse showed signs of strangulation and three gunshot wounds.  Yet, regarding Augusto Galindo Peña, the petitioner adduced that because the State responded without providing evidence that might help locate or recognize corpse, this victim continues to be detained and disappeared.

134.          The petitioner confirmed that Héctor Riveros Izarra, detained and disappeared on August 7, 1992 in the University when members of the army were registering students, according to inquiries made by the Solidarity Vicariate of the Archdiocese of Huancayo and the Secretariat for Human Rights of the FEDIPH, had availed himself of the “Law of Repentance” on November 12, 1992.  

135.          In response to the State’s observations, the petitioner argued that as regards the summary executions of the ten students, the mere assertion by the State that the homicide of Juana Ñahui Vilcas (wife of detained and disappeared Socimo Curasma) was due to a settling of accounts between terrorist groups, does not disprove the participation of the Peruvian armed forces in her murder on September 10, 1992.  On the contrary, the petitioner considered that the reason they executed her is that she was the only witness to the kidnaping and detention of Miriam Lidia Navarro Concha.  The petitioner also presented the arguments with respect to the execution of Alejandro Tunque Lizama, whose corpse, with signs of strangulation, was found on September 30, 1992, in Sapallanga district, Huancayo province; and  the execution of  Gladys Espinoza León, detained and disappeared on September 6, 1992, whose corpse was found with two gunshot wounds to the head, and another two to the stomach.

136.          Luis Aníbal Ñaupari Toralva was detained and disappeared on August 27, 1992 by two individuals in civilian dress as he was going home.  The corpse was found on September 10, 1992 with six gunshot wounds to the chest and head.  As the State did not offer any explanation about this victim, the petitioner concludes that his extrajudicial execution should be attributed to members of the military.

137.          The petitioner considers that the State has not refuted the facts alleged merely by asserting that husband and wife Eugenio Curasma Sulla and María Sánchez Retamozo were not detained by the security forces on September 22, 1992.  According to the complaint, both were kidnaped in their home by a group of armed men and their corpses had gunshot wounds.

138.          The petitioner alleges that the inconclusive denial, without any evidence to support it, is no basis for refuting the responsibility of the Peruvian State to the effect that Edwin Ramos Calderón, detained and disappeared on July 26, 1992, whose corpse was found displaying gunshot wounds, “was not intercepted or detained by members of the Armed forces of Peru.” The petitioner made the same arguments in the case of  Peter David Cosme Ureta, detained and disappeared on September 6, 1992, whose corpse was found with four gunshot wounds.

139.          According to the petitioner, the State’s presumption that Fernando Sáenz Munarris and Hugo Puente Vega, detained and disappeared on July 26, 1992, whose corpses were found with signs of strangulation, had been executed as the result of a settling of accounts between terrorist groups, is not supported by the evidence.

Processing before the Commission

140.          On October 16, 1992, the Commission opened the case and forwarded the pertinent parts of the complaint to the Peruvian State, and requested information on the facts alleged.  The Peruvian state answered on June 1, 1993.  Both parties provided additional information  on various occasions.

141.          On April 4, 2000, the Commission asked the State and the petitioner to submit up-to-date information on this case.  In the same communication, the Commission made itself available to the parties to pursue a friendly settlement, in keeping with Article 48(1)(f) of the Convention.  Once the term expired, there was not agreement between the parties to pursue a friendly settlement. 

The State’s position

142.          The State denied the participation of members of the Peruvian Army or police in the facts alleged.  In its first report it claimed that the army was not responsible for the detention and disappearance of Peter Cosme Ureta and Freddy Vicente Rivera.  The State also asserted that Flaviano Sáens Chuquivilca, and students Héctor Viveros Izarra and Miguel Cieza Galván are alive.  Regarding the whereabouts of Flaviano Sáens Chuquivilca, it stated that he had been detained by an army patrol from the Carhuamayo Countersubversive base, where he was interrogated, and released the next day, June 7, 1992, and that, as evidence of this, a document was drawn up before by the justice of the peace, the governor, and the mayor of Carhuamayo, after an expert medical opinion certifying his state of health.  Also, in order to show that the victim was not in custody, the State attached a copy of complaints lodged by Mery Quiquia Rivadeneyra and David Colqui Hinostroza, in different places (in Milpo‑Ulcamayo on August 22, 1992 and Junín district on November 23 and 25, 1992, respectively), after his presumed disappearance, and added that he was involved with the terrorist group Shining Path, and was underground.  Concerning Héctor Riveros Izarra, the State argued that on December 9, 1992, he had voluntarily turned himself in to the security forces, and that he is “recovered” and is completing his military service at Counter-subversive base Nº 241 at Rímac.  The State stressed that Edgar Chaguayo Quispe, Eugenio Curasma Sulla, María Sánchez Retamozo and Edwin Ramos Calderón had not been detained by the Peruvian armed forces.  The State also said that given the modus operandi used, the murders of Augusto Galindo Peña, Juana Ñahui Vilcas, Miriam Lidia Navarro Concha, Alejandro Tunque Lizama, Socimo Curasma Sulla, Fernando Sáenz Munarriz, Gladys Espinoza León and Hugo Puente Vega were due to the settling of accounts between terrorist groups.

25. Camilo Nuñez Quispe and Teófilo Nuñez Quispe (Case 11.200)

Facts alleged

143.          According to the petition submitted to the IACHR by the Fundación Ecuménica para el Desarrollo y la Paz (FEDEPAZ), the facts alleged occurred from June 17, 1993 to August 21, 1993, in Huancán district, Huancayo province, Junín department, and were attributed to State agents belonging to the National Police.  The petitioner reported that on June 17, 1993, a group of 10 armed men, some of them wearing police uniforms and ski masks, violently entered the home of Camilo Nuñez Quispe in the Porvenir neighborhood of Huancán district, province of Huancayo.  They note that after identifying him, they beat him violently, and took him away in a National Police vehicle.  His relatives state that the mayor of the Huancán District Council had threatened him on several occasions, telling him that “he was going to be disappeared” and Teófilo Nuñez Quispe repeatedly asserted that the mayor had disappeared his brother.  The family reported these incidents to the Special Human Rights Prosecutor, and inquired into the whereabouts of the victim in Region VIII of the National Police, and filed a writ of habeas corpus that was declared inadmissible by the judge, based on the fact that the detainee was not to be found at any military base or police station in the area.

144.          On August 21, 1993 at 11:00 p.m., four presumed police agents, two in uniform and two in civilian dress, with ski masks and armed, violently entered the home of Teófilo Nuñez Quispe, employee of the Peruvian Institute of Culture, and brother of Camilo Nuñez, looking for arms, and detaining Teófilo Nuñez.  The corpse was found in the yard of his former home.  He had been blindfolded, had wounds all over his body, and a gunshot wound to the head.

Processing before the Commission

145.          On September 9, 1993, the Commission opened the case and forwarded the pertinent parts of the complaint to the State, and requested information on the facts alleged.  The Peruvian state responded on November 22, 1993.  On February 23, 1994, the petitioner sent observations on the State’s response.  Both parties presented additional information.

146.          On April 25, 2000, the Commission asked the State and the petitioners to submit up-to-date information on this case within 45 days.  In the same communication, the Commission made itself available to the parties to pursue a friendly settlement, in keeping with Article 48(1)(f) of the Convention.  Once the term expired, there was not agreement between the parties to pursue a friendly settlement.  Both parties responded.

The State’s position

147.          In its initial report, the State denied the participation of members of the Peruvian Police in the detention and disappearance of Camilo Nuñez Quispe and in the homicide of his brother, Teófilo Nuñez Quispe, adding that the Prosecutor’s Office was investigating the latter incident, but had not been able to identify the perpetrators.  Furthermore, the State said that Camilo Nuñez Quispe was a member of an “annihilation command” of the terrorist group Shining Path; and that although there was no evidence that members of the security forces had detained or disappeared him, one could presume that the Communist Party of Peru-Shining Path members had executed him, as well as his brother, Teófilo Nuñez Quispe.  Lastly, the State argued that domestic remedies had not been exhausted since the petitioner presented the complaint only six days after the incident had occurred.  In its report of June 9, 2000, the State added that the inquiries into the detention and disappearance of Camilo Nuñez and the homicide of Teófilo Nuñez were taken on by the Office of the Fourth Provincial Prosecutor of Huancayo, but since the perpetrators had not been identified, the investigation was provisionally archived.  Accordingly, the State did not deem it advisable to pursue a friendly settlement.

III. COMBINING THE CASES

148.          The Commission, mindful of the uniformity in the current state of processing in all of the cases, which makes it possible to resolve them together, the common characteristics of the facts alleged, and common time frame, and the fact that all of them have been attributed to State agents, decides to combine the foregoing cases and proceed to resolve them together, based on Article 40 of its Regulations.

IV.          ADMISSIBILITY ANALYSIS

A.          Competence of the Commission

149.          The Commission is competent to examine the subject matter of this complaint, which refers to alleged violations of rights enshrined in Articles 1, 3, 4, 5, 7, 8, 19, and 25 of the American Convention.  The petitioners have standing to appear, as provided in Article 44 of the Convention. The Peruvian State ratified that Convention on May 25, 1978, and it entered into force for all parties on July 18, 1978. The complaints in question refer to events after these dates.

B.          Admissibility requirements of petitions

1.          Exhaustion of domestic remedies

150.          Article 46(2)(c) and 46(2)(a) of the American Convention provide, among the exceptions to the requirement of prior exhaustion of domestic remedies, that regarding unwarranted delay in rendering a final judgment, and that according to which “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.”  In this respect, the IACHR observes that in all the cases under analysis, there was a common denominator: that after seven to 16 years had passed, in none of the proceedings has there been a final judgment punishing the persons responsible for the crimes denounced.  For example, in 20 of the 25 complaints already mentioned, although the State had the duty to investigate and to process the corresponding cases, the proceedings are still at the investigative stage, with a ruling ordering provisional archiving, and the human rights violators have not been identified, accused, and punished; in three [3] of the 25 petitions, the persons allegedly responsible were identified, but the investigations are continuing, and only in case 11.065 did the proceeding conclude, but the Amnesty Law was applied so as to benefit the members of the Army.  And in case 10.913, the decision was to dismiss criminal negligent homicide charges. This circumstance, in general, is itself sufficient to trigger the exceptions mentioned to the prior exhaustion of domestic remedies requirement set forth in Article 46(2)(c) and 46(2)(a) of the Convention.

151.          In addition, the Commission observes that, as the Inter-American Court of Human Rights has held on several occasions, several practical consequences arise from generally accepted principles of international law when the state invokes the prior exhaustion rule:  first, the prior exhaustion rule is a requirement established for the benefit of the State; accordingly, the State may expressly or tacitly waive its option to invoke it; second, a timely admissibility objection on grounds of failure to exhaust domestic remedies must be made in the first stages of the procedure, or it is presumed that the State has tacitly waived it; and third, a State that invokes failure to exhaust domestic remedies must indicate what remedies are available to be exhausted, and make a showing of their effectiveness. [4]  

152.          Another aspect that should be kept in mind when analyzing the exhaustion of domestic remedies is the distinction that should be made between the moment of submitting a complaint and the decision on admissibility.  These are two different phases, which are easily distinguished by the legal effects of Article 33 of the Regulations, which authorizes the Commission to ask the petitioner to complete the requirements omitted when the petition is incomplete or inadmissible.  In other words, as the petitioner has the opportunity to cure the defects of the petition after the complaint is submitted, the requirement of prior exhaustion of domestic remedies must be met when the Commission analyzes that aspect. [5]

153.          On applying the foregoing principles to this case, the Commission observes that in eight of the 25 cases under study, the State did not invoke the objection of failure to exhaustion domestic remedies in its first answer to the IACHR, but only in the second, [6] third, [7] or fourth [8] communication. In another 12 cases, the State did not make an express argument alleging failure to exhaust domestic remedies. [9] In one other case, the State said that the complaint was without foundation because the act was attributable to common crime, [10] and in one other case the State reported that criminal proceedings had been instituted and identified members of the Army as presumably responsible, and went on to say that the judiciary had applied Amnesty Law Nº 26,479 to the benefit of the defendants. [11] Accordingly, the Commission concludes that in these 22 cases the State tacitly waived the objection of failure to exhaust domestic remedies.

154.          In view of the foregoing, the Commission considers that the admissibility requirement of prior exhaustion of domestic remedies has been met in the cases under study.  

194.          Second, in terms of the characteristics of the perpetrators of the human rights violations, in all of the cases a several heavily armed persons committed the unlawful acts.  In most of the cases they used military uniforms or were in civilian dress and used ski caps to cover their faces.  In addition, in all the cases, it was known that they were perpetrated by members of the security forces or in joint actions with what were called the rondas civiles, which acted in their name or with their consent.  In addition, the judicial remedies that existed were ineffective for guaranteeing the right to life and related fundamental rights such as the right to privacy, liberty, and humane treatment.

195.          With respect to the modality used in the detention or execution, in only one case was the victim detained in flagrante delicto: [41] the arrest of Edith Galván, which occurred based on the accusation by a taxi driver who reported that a woman and two young men were the persons who tried to rob his car.  In five of these 15 cases, the persons responsible went to where the victims were; in one of those cases they executed three of the victims immediately and detained another, whose whereabouts remain unknown. [42] In four of these seven cases, [43] the persons responsible for the executions went to where the victims were and executed them on the spot.  In eight of the 17 cases, [44] the modus operandi used was initially capturing the victim, then taking him or her to an unknown place or to military or police units.  Days later, the corpse would be found in some place in the area where the victim was captured or from the military base where he or she was presumably detained, or the victims simply disappeared.

196.          Finally, another common characteristic was the veil of impunity covering the human rights violators, as existing judicial remedies were ineffective for guaranteeing the right to life and the related fundamental rights, such as the right to liberty and humane treatment.  For example, in four of these cases, the victim’s families filed writs of habeas corpus, but to no avail, and in all the cases, the facts were reported to the domestic judicial authorities, but no investigation has concluded, and the persons responsible continue to benefit from impunity.  Finally, the official denial of the detentions was the common denominator that hindered efforts to find the victims who were detained and disappeared or detained and executed alive.  Despite the notoriety of the detentions, in those cases in which the families knew, from the outset, the initial place of detention or the barracks to which they were taken, the respective authorities denied it.  That indicator, as previously established by the Commission, gives meaning to the practice and the reason for keeping it clandestine:

The fact that the authorities deny the detention, thus, merely confirms the clandestine nature of the military operations.  The detention is not recorded or officially acknowledged, so as to make it possible to use torture during interrogation and, eventually, extrajudicial punishments imposed on persons considered sympathizers, collaborators, or members of the armed dissident groups.

197.          The third modus operandi displayed in the systematic practice of summary executions took place in the urban areas of the Peruvian State (Cases 10.247, 10.472, 10.805, and 11.292).  The modus operandi of the persons responsible for the extrajudicial executions was characterized, as in the previous cases, by the selection of the victims based on possible ties with one of the subversive groups, or regular occupation, and their execution after being detained.  In some cases, the bodies showed signs of torture prior to execution.

198.          In three cases, individuals identified as members of the police perpetrated the unlawful acts.  The persons responsible for the extrajudicial executions went to the place where the victim was found, even when the victim was accompanied by other persons, detained them, and once they had been tortured they were executed. [45]   In case 10.472, when the injured person, the brother of a person accused of being a member of a subversive group, went to the military base to obtain a document related to his military service, whereupon he was detained, tortured, and executed.

199.          The fourth pattern of conduct in the modus operandi deployed in the systematic practice of forced disappearances took place in the rural areas, specifically in the departments of Ayacucho and Junín, which were also under the strict control of the security forces of the Peruvian State, and of the so-called rondas civiles antisubversivas or civil defense committees, which were under the Political-Military Command; these are cases 10.744, 11.040, and 11.179.

200.          The forced disappearance of persons consummated by the civil defense committees followed a similar practice: the disappearances were systematic and selective; the victims were students, community members, and persons suspected of belonging to terrorist groups. In the three cases it was known that they were perpetrated by ronderos linked to the security forces, who acted on their behalf and with their acquiescence.

201.          Clear evidence of the joint work by the members of these civil defense committees and the armed forces of Peru in the counter-insurgency campaign is case 11.179, [46] in which the alleged victims were held by members of the Army and members of the civil defense committee of the Base at Rangra-Concepción, directed by Julio Cantorín Clemente, and two of them, Esteban Pallango Arango and Teófilo Romero León, reappeared at the military installation known as “Cuartel 9 de Diciembre” at Huancayo, as deserters who had been reinserted. At this point it should be clarified that based on the sequence of annexes provided by the petitioner, the deserters who had been “recovered” were really “Esteban Pallango Arango and Reynaldo Fidel Véliz” (Act of Inspection) and the possible confusion with respect to Teófilo Romero León arises from the fact that in the same document petitioner refers to, a third minor is mentioned, Teófilo Romero León. Nonetheless, the petition does not denounce his disappearance, but that of a minor who they initially identified as Rubén Romero León, whose real name, according to an explanation by the petitioner, is Esteban Romero León.  So, for the Commission the deserters who were “recovered” are Esteban Pallango Arango and Reinaldo Fidel Véliz, and Esteban (or Ruben) Romero León is still disappeared.

202.          Another item of evidence that reaffirms the State’s responsibility for the actions of the rondas campesinas in the struggle against the dissident groups is the legal framework that authorized their creation and authorized the peasants to bear arms and carry out security tasks generally performed by the forces of order, under the direct coordination of the Political-Military Command.  For this purpose, an infrastructure and functional distribution were put in place, similar to that of the military bodies to which they answered, as illustrated by the reports provided by the State, the first in case 11.040, in which the State indicated that the civil defense committees were created by Law 24,571 of November 6, 1986, and in the second, case 10.744, when it explained that “the Chief of the Los Cabitos 51 Counter-insurgency Base reported that the Self-Defense Committees of the jurisdiction of Huanta are under the supervision of that unit, including its files of ‘Daily communications and reports,’” and finally the version of Inés Castro, the wife of rondero Julio Cantorín, cited by the petitioner, in which she said “that her husband had an ID card issued by the President of the rondas campesinas of the Multisectoral Base at Huahuanca”; and finally, the objective and purpose undergirding their legal creation was precisely the counter-insurgency struggle.

203.          The UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions stated as follows with respect to the joint work of the Peruvian Armed forces and the so-called rondas campesinas:

The reports and allegations received by the Special Rapporteur during 1994 indicate that violations of the right to life continue to occur in Peru. As in former years, such reports refer to killings due to abuse of force by law enforcement personnel and members of the rondas campesinas, peasant self‑defence groups cooperating with the security forces. In a large number of these cases, the victims are peasants suspected of being members or sympathizers of the armed insurgency. [47]

204.          Based on the foregoing analysis, the Commission concludes that the State legally created the rondas civiles, supplied them with weaponry, subordinated them operationally and functionally to the respective Political-Military Command, and these self-defense groups performed joint and coordinated tasks with the military forces in fighting the dissident groups.  Accordingly, they acted with the consent and license of the State, as agents linked to the State, and its practices, violative of human rights, were permitted and tolerated by the Peruvian State.

205.          Previously, the Commission addressed the subject of the armed civil self-defense organizations, provided for by law, and which cooperate with the security forces of a state, when it analyzed the human rights situation in Colombia.  In this respect, the IACHR analyzed the consequences of the participation of the Cooperativas de Vigilancia y Seguridad Privada, known as CONVIVIR, for the violence and armed conflict in Colombia, and stated:

In any case, the Commission has verified that in certain areas of the country the CONVIVIR participate both in intelligence and counterinsurgency operations for the Armed forces and that, as already explained in this Chapter of the Report, they have occasionally been involved in acts of violence. These elements demonstrate that, in practical terms, the nature of the activities carried out by the CONVIVIR operating in the areas of conflict place their members in a role that can be identified with that of State agents in terms of the international responsibility of the State. [48]

206.          The Commission, in the same report, section six, recommended to the Colombian State that it dismantle the services of the Cooperativas de Vigilancia y Seguridad Privada, or CONVIVIR, which it reiterated in the 1999 Annual Report of the Inter-American Commission on Human Rights.

207.          After the foregoing analysis, the Commission finds that the relevant facts mentioned, alleged in the 25 petitions, are true with respect to the extrajudicial execution and forced disappearance, committed by agents of the Peruvian State, of the following 119 persons:   Luis Miguel Pasache Vidal (Case 10.247); Walter Wilfredo Valer Munaylla (Case 10.472); Nilton Adelmo Loli Mauricio, Saturnino Serrate García, and Esaú Daniel Moreno Cotrina (Case 10.805); Javier Alberto Ipanaque Marcelo, Guillermo Salinas Conde, Fidel Romero Conde, Uriol Tafur Ayala, Víctor Manuel Briceño García, and Eusebio Aniceto Garay (Case 10.878); Juan Hualla Choquehuanca, Francisco Atamari Mamani, Feliciano Turpo Valeriano, and Roberto Quispe Mamani (Case 10.913); Guillermo Marín Arenas, Gerardo Chaico, Cirila de Chaico and her five-year-old son, the sister of Cirila de Chaico and her two-year-old son, and six unidentified persons (Case 10.947); Teodoro Lorenzo Alvarado Castillo (Case 10.994); Raúl Antero Cajacuri Roca (Case 11.035); Adrián Medina Puma (Case 11.051); Rafael Ventocilla Rojas, Marino Ventocilla Rojas, Alejandro Ventocilla Castillo, Simón Ventocilla Castillo, Paulino Ventocilla Castillo, and Rubén Ventocilla León (Case 11.057); Ricardo Salazar Ruiz (Case 11.065); Amadeo Inca Ñaupa (or Amadeo Arcanaupa), Luciano Huamán García, Antonio Janampa Aucassi, Constantina García Gutiérrez, Marciano (or Mariano) Janampa García, Agripina Aucassi Espilico, Maura Huamán Paucar, Demetrio Huamán León, Víctor Rojas Huamán (or Víctor Huamán Paucar), Mauro Huamán Paucar, Narciso Huamán Paucar, and Melecio Chonta Huamán (Case 11.088); Pascual Chipana Huauya, Pelagia Chipana Condori, Paulina Vásquez Esquivel, Donato Pablo, Juan Cacñahuaray, Jovita Cahuana, Pelayo Capizo, and Pelagia Pillaca (Case 11.161); Jessica Rosa Chávez Ruiz, Pedro Javier Cruz Guzmán, and Héctor Rodríguez Rodríguez (Case 11.292); Moisés Carvajal Quispe (Case 11.680); Luis Alberto Sangama Panaifo and Lucio Escobal Fretel (Case 10.564), Arturo Torres Quispe (Case 10.744); Percy Borja Gaspar, Angel Zanabria Ubaldo, Gumercindo Ubaldo Zanabria, Apolonio Lazo Rodas, Hermilio Borja Ríos, Fredy Gaspar Ríos, José Muñoz Huallpa, Ernesto Salomé Bravo, Jesús Pumahuali Salomé, and César Sánchez Castro (Case 11.040); Máximo Muñoz Solís, Levi Vivas Espinal, Alejandro Vera Suasnabar, Edgar Nestares Justo, Javier Yañac Solano, Richard Lozano Cáceres, Oscar Cirino Baldeón Chacón, Luis Alberto Ramírez Hinostroza, Teófilo Julio Lazo Chucos, César Teobaldo Vílchez Simeón, José Fierro Miche, and Elías Uchupe Huamán (Case 11.126); Edith Galván Montero (Case 11.132); Esteban Romero León, Moisés Poma Ordónez and Yolanda Lauri Arias (Case 11.179); Víctor Tineo Sandoval, Guillermina Quispe de Tineo, Eulogio Demetrio Bohorquez Tineo, Ivan Roberto Tineo Rodríguez, and Elías Bohorquez Tineo (Case 10.431); Concepción Ccacya Barrientos, Maximiliana Sotaya, Donato Morán, Emiliana Puga, and Fortunato Venegas (Case 10.523); Flaviano Sáens Chuquivilca, Edgar Chaguayo Quispe, Miriam Lidia Navarro Concha, Miguel Angel Cieza Galván, Socimo Curasma Sulla, Justiniano Fredy Vicente Rivera, Augusto Galindo Peña, Juana Ñahui Vilcas, Luis Aníbal Naupari Toralva, Alejandro Tunque Lizama, Eugenio Curasma Sulla, María Sánchez Retamozo, Edwin Ramos Calderón, Gladys Espinoza León, Fernando Sáenz Munarris, Hugo Puente Vega, Peter David Cosme Ureta (Case 11.064); and Camilo Nuñez Quispe and Teófilo Nuñez Quispe (Case 11.200).  These extrajudicial executions and forced disappearances were part of State policy, a systematic policy of extrajudicial executions and forced disappearances perpetrated by State agents or persons linked to the State, and tolerated by the State, in a context of absolute impunity, protected by the State, in both deed and law, with the issuance and enforcement of the Amnesty Laws.

E.          Considerations of law

The right to life

208.          Article 4(1) of the American Convention on Human Rights declares: “Every person has the right to have his life respected.... No one shall be arbitrarily deprived of his life.”  The protection of the right to life has a dual connotation: first, no one may be arbitrarily deprived of his or her life, and second, Article 1(1) of the Convention requires that the State adopt the necessary measures to guarantee to all persons subject to its jurisdiction the inviolability of the right to life and the right to not be deprived of one’s life arbitrarily.

209.          Article I of the American Declaration of the Rights and Duties of Man and Article 3 of the Universal Declaration of Human Rights establish: “Every human being has the right to life, liberty and the security of his person.”  In Peru, the 1979 Constitution guaranteed the right to life, and the 1993 Constitution also enshrined it.  Article 2 of the 1993 Constitution reads: “Every person has the right: (1) To life, identity, moral, mental, and physical integrity, and to free development and well-being. Every person is a subject of law in all respects that favor him or her from the moment of conception.”

210.          Furthermore, common Article 3 of the Geneva Conventions establishes minimal standards, as customary international law, which apply automatically to all groups involved in an internal armed conflict.  Common Article 3, section 1, reads:  

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above‑mentioned persons:

(a) Violence to life and person. in particular murder of all kinds, mutilation, cruel treatment and torture; ...

(c) Outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

211.          So, both the State and the parties in conflict automatically assume the legal obligations set forth in common Article 3, which guarantees respect and humane treatment for persons who do not participate or who no longer participate in the hostilities.

212.          Notwithstanding this legal framework, in the 25 cases that are the subject of this report, the Commission finds that the Peruvian State, through its agents and persons linked to it, acted in breach of the right to life in two ways: through summary executions and through the forced disappearance of persons.

213.          In case 11.064, with respect to the victim Flaviano Sáens Chuquivilca, detained and disappeared on June 6, 1992, there are sufficient grounds to conclude that he was detained illegally and arbitrarily by members of the Army, for even though the authorities certified his release, his sister’s assertion about his disappearance, and the statement by Percy Jaramillo Sáenz, the victim’s cousin who saw him alive at the same military unit where they were detained, allow one to infer presumptively his death, [49] as eight years have elapsed since his detention and subsequent disappearance.  Similarly, bearing in mind that more than seven years have elapsed since the detentions of Camilo Núñez Quispe (11.200), Miguel Angel Cieza Galván and Augusto Galindo Peña (11.064) and that between 8 and 16 years have passed since the detention and disappearance  of the Peruvian nationals Concepción Ccacya Barrientos (case 10.523), Ivan Roberto Tineo Rodríguez, and Elías Bohórquez Tineo (Case 10.431), Luis Alberto Sangama Panaifo and Lucio Escobal Fretel (Case 10.564), Máximo Muñoz Solís, Levi Vivas Espinal, Alejandro Vera Suasnabar, Edgar Nestares Justo, Javier Yañac Solano, Richard Lozano Cáceres, Oscar Cirino Baldeón Chacón, Luis Alberto Ramírez Hinostroza, Teófilo Julio Lazo Chucos, César Teobaldo Volchez Simeón, José Fierro Miche, and Elías Uchupe Huamán (Case 11.126), Edith Galván Montero (Case 11.132),  Arturo Torres Quispe (Case 10.744), Percy Borja Gaspar, Angel Zanabria Ubaldo, Gumercindo Ubaldo Zanabria, Apolonio Lazo Rodas, Hermilio Borja Ríos, Fredy Gaspar Ríos, José Muñoz Huallpa, Ernesto Salomé Bravo, Jesús Pumahuali Salomé, and César Sánchez (Case 11.040),  Esteban Romero León, Moisés Poma Ordónez and Yolanda Lauri Arias (Case 11.179), the Commission presumptively infers the death of these 36 victims.

214.          The facts alleged also demonstrate that the State failed to protect 84 victims from the summary executions performed by its agents, some on the spot, without any prior arrest, as in the case of  Luis Miguel Pasache Vidal (Case 10.247), Walter Wilfredo Valer Munaylla (Case 10.472), Maximiliana Sotaya, Donato Morán, Emiliana Puga, and Fortunato Venegas (Case 10.523), Nilton Adelmo Loli Mauricio, Saturnino Serrate García, and Esaú Daniel Moreno Cotrina (Case 10.805), Javier Alberto Ipanaque Marcelo, Guillermo Salinas Conde, Fidel Romero Conde, Uriol Tafur Ayala, Víctor Manuel Briceño García, and Eusebio Aniceto Garay (Case 10.878), Guillermo Marín Arenas, Gerardo Chaico, Cirila de Chaico and her five-year-old son, the sister of Cirila de Chaico and her two-year-old son, and six unidentified persons (Case 10.947), Héctor Riveros Izarra, Edgar Chaguayo Quispe, Miriam Lidia Navarro Concha, Socimo Curasma Sulla, Justiniano Fredy Vicente Rivera, Juana Ñahui Vilcas, Luis Aníbal Naupari Toralva, Alejandro Tunque Lizama, Eugenio Curasma Sulla, María Sánchez Retamozo, Edwin Ramos Calderón, Gladys Espinoza León, Fernando Sáenz Munarris, Hugo Puente Vega, Peter David Cosme Ureta (Case 11.064), Ricardo Salazar Ruiz (Case 11.065), Amadeo Inca Ñaupa (or Amadeo Arcanaupa), Luciano Huamán García, Antonio Janampa Aucassi, Constantina García Gutiérrez, Marciano (or Mariano) Janampa García, Agripina Aucassi Espilico, Maura Huamán Paucar, Demetrio Huamán León, Víctor Rojas Huamán (or Víctor Huamán Paucar), Mauro Huamán Paucar, Narciso Huamán Paucar, and Melecio Chonta Huamán (Case 11.088), Pascual Chipana Huauya, Pelagia Chipana Condori, Paulina Vásquez Esquivel, Donato Pablo, Juan Cacñahuaray, Jovita Cahuana, Pelayo Capizo, and Pelagia Pillaca (Case 11.161), and others hours or days after their arrest, as in the case of Víctor Tineo Sandoval, Guillermina Quispe de Tineo, and Eulogio Demetrio Bohorquez Tineo (Case 10.431), Juan Hualla Choquehuanca, Francisco Atamari Mamani, Feliciano Turpo Valeriano, and Roberto Quispe Mamani (Case 10.913), Teodoro Lorenzo Alvarado Castillo (Case 10.994), Raúl Antero Cajacuri Roca (Case 11.035), Adrián Medina Puma (Case 11.051), Rafael Ventocilla Rojas, Marino Ventocilla Rojas, Alejandro Ventocilla Castillo, Simón Ventocilla Castillo, Paulino Ventocilla Castillo, and Rubén Ventocilla León (Case 11.057), Ricardo Salazar Ruiz (Case 11.065), Jessica Rosa Chávez Ruiz, Pedro Javier Cruz Guzmán, and Héctor Rodríguez Rodríguez (Case 11.292), Camilo Nuñez Quispe and Teófilo Nuñez Quispe (Case 11.200), and Moisés Carvajal Quispe (Case 11.680).

215.          The Commission concludes, based on the facts alleged and established in these cases, that agents of the Peruvian State deprived the above-named persons of their lives, and that the State did not protect these victims from the arbitrary executions or forced disappearances carried out by its agents.  First, it did not adopt the measures required to prevent that practice.  Second, it did not adopt the measures needed to put an end to the practice once it had begun and thereby control the actions of its agents. And finally, it did not punish the perpetrators of these violations. Therefore, the Commission concludes that the State violated, to the detriment of the victims in the cases that are the subject of this report, the right to life enshrined in Article 4 of the American Convention.

The right to personal liberty

216.          Pursuant to Article 7(1) of the American Convention, all persons have the right to personal liberty and security. Article 7(2) of the American Convention provides: “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. And Article 7(3) adds: “No one shall be subject to arbitrary arrest or imprisonment.”  Accordingly, for a deprivation of liberty to be lawful, it must be ordered and carried out by a competent authority, for acts previously established in the law, and in keeping with the procedural provisions of domestic law and the American Convention.

217.          A detention is arbitrary and illegal when it occurs outside of the grounds and formalities established by law, when it is carried out without observing the standards required by law, and when there has been an abuse of the powers of arrest, i.e. when it is done for purposes other than those provided for and required by law.  The Commission has also noted that a detention for improper purposes is itself a punishment that constitutes a sort of sentence without trial, or an unlawful penalty that violates the guarantee against imposition of punishment without trial.

218.          It is necessary to take into account the context in Peru, which generally affected most of the departments in which the detentions and disappearances took place. The continuous incursions of armed groups had provoked a state of permanent anxiety in the population.  For this reason, several departments were declared to be under a state of emergency, which prima facie found justification in the crisis faced by the Peruvian State as it sought to combat terrorism.  Under that state of emergency, Article 2(20)(g) [50] of the Peruvian Constitution of 1979 had been suspended in many departments, so that the military forces were legally authorized to detain a person without a warrant from a competent judge and without the need for flagrancy. Under Article 27(3) of the American Convention, a state party to the Convention must report to the other states party, through the Secretary General of the OAS, that it has suspended rights enshrined in that Convention, in order for the suspension of rights to be lawful under the Convention.

219.          Despite the prima facie legitimacy of this measure, the authority to detain is not an unlimited power for the security forces, by which they can proceed to detain citizens arbitrarily.  The suspension of the judicial warrant for detaining a person does not mean that the public authorities can ignore the legal conditions necessary for the lawful decree of that measure, nor that judicial checks on how arrests are carried out are voided.

220.          The suspension of the guarantee of personal liberty, authorized by Article 27 of the American Convention on Human Rights, can never be total.  There are principles underlying any democratic society that the security forces must observe when making a formal detention, even under a state of emergency.  The legal requirements for a detention are duties that the state authorities must respect, pursuant to the State’s international commitment to protect and respect human rights, acquired under the Convention.

221.          Second, based on the foregoing principles, a police or military detention, as a precautionary measure, must have as its sole purpose preventing the flight of a person suspected of a criminal act, and thereby to assure his or her appearance before a competent judge, to be judged within a reasonable time or, as the case may be, released.  No state may impose penalties without the guarantee of a trial preceding the penalty. [51] In a constitutional and democratic state under the rule of law, in which the separation of powers is respected, any penalty provided for by law must be imposed judicially and after having established the guilt of a person in a fair trial, with full guarantees.  The existence of an emergency situation does not authorize the state to ignore the presumption of innocence, nor does it concern on the security forces the exercise of an arbitrary and unlimited ius puniendi.

222.          In this regard, Article 7(5) of the American Convention prescribes: “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.”  Article 7(6) 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 indicated that any person deprived of his or her liberty must be held in officially recognized places of detention and brought, without delay and in keeping with its domestic law, before the competent judicial authority.  In case the authority breaches this legal obligation, the state has the duty to guarantee the detainee the possibility of filing an effective judicial remedy that allows for judicial control over the legality of the detention.

223.          Applying the foregoing considerations to the cases under study, the Commission observes that in 20 of the 25 cases there is no information to suggest that any of the victims was deprived of his or her liberty pursuant to the measures explained above. To the contrary, the facts described follow the modus operandi of many summary executions from that period, including the fact that in cases 11.035, 11.057, 11.065, 11.200, 10.472, and 11.292, the victims’ bodies showed signs of torture.

224.          In cases 10.431, 10.523, 10.564, 10.744, 10.913, 10.994, 11.035, 11.040, 11.057, 11.064, 11.065, 11.179, 11.200, 11.680, 10.247, 10.472, 10.805, 11.126, 11.132, and 11.292, it is alleged that the victims were detained illegally and arbitarily prior to being executed or disappeared.  And, in cases 10.247, 10.431, 10.472, 10.523, 10.564, 10.805, 10.994, 11.035, 11.051, 11.057, 11.064, 10.744, 11.040, 11.126, 11.132, 11.179 and 11.200, it was also reported that the military or police authorities have systematically denied having detained the victims.

225.          Yet in addition, kidnapping violates the right to liberty, because the kidnapping of a human being is actually a form of illegal deprivation of liberty that also violates Article 7(5) of the American Convention, on the right of a detainee to be brought before a judge without delay, and Article 7(6), on the right to adequate remedies to review the legality of his or her arrest.  As a corollary, the Commission concludes that the State is responsible for the acts of its agents upon illegally depriving of liberty, in violation of Article 7 of the American Convention, Teodoro Lorenzo Alvarado Castillo (Case10.994), Raúl Antero Cajacuri Roca (Case 11.035), Rafael Ventocilla Rojas, Marino Ventocilla Rojas, Alejandro Ventocilla Castillo, Simón Ventocilla Castillo, Paulino Ventocilla Castillo, Rubén Ventocilla León (Case 11.057), Flaviano Sáens Chuquivilca, Edgar Chaguayo Quispe, Miriam Lidia Navarro Concha, Miguel Angel Cieza Galván, Socimo Curasma Sulla, Justiniano Fredy Vicente Rivera, Augusto Galindo Peña, Luis Aníbal Naupari Toralva, Alejandro Tunque Lizama, Eugenio Curasma Sulla, María Sánchez Retamozo, Edwin Ramos Calderón, Gladys Espinoza León, Fernando Sáenz Munarris, Hugo Puente Vega, Peter David Cosme Ureta (Case 11.064), Ricardo Salazar Ruiz (Case 11.065), Camilo Núñez Quispe, Teófilo Nuñez Quispe (Case 11.200), Moisés Carvajal Quispe (Case 11.680), Luis Miguel Pasache Vidal (Case 10.247), Walter Wilfredo Valer Munaylla (Case 10.472), Nilton Adelmo Loli Mauricio, Saturnino Serrate García, Esaú Daniel Moreno Cotrina (Case 10.805), Jessica Rosa Chávez Ruiz, Pedro Javier Cruz Guzmán, Héctor Rodríguez Rodríguez (Case 11.292), Concepción Ccacya Barrientos (Case 10.523), Ivan Roberto Tineo Rodríguez, Elías Bohórquez Tineo (Case 10.431), Luis Alberto Sangama Panaifo, Lucio Escobal Fretel (Case 10.564), Máximo Muñoz Solís, Levi Vivas Espinal, Alejandro Vera Suasnabar, Edgar Nestares Justo, Javier Yañac Solano, Richard Lozano Cáceres, Oscar Cirino Baldeón Chacón, Luis Alberto Ramírez Hinostroza, Teófilo Julio Lazo Chucos, César Teobaldo Vílchez Simeón, José Fierro Miche, Elías Uchupe Huamán (Case 11.126), Edith Galván Montero (Case 11.132), Arturo Torres Quispe (Case 10.744), Percy Borja Gaspar, Angel Zanabria Ubaldo, Gumercindo Ubaldo Zanabria, Apolonio Lazo Rodas, Hermilio Borja Ríos, Fredy Gaspar Ríos, José Muñoz Huallpa, Ernesto Salomé Bravo, Jesús Pumahuali Salomé, César Sánchez Castro (Case 11.040), Esteban Romero León, Moisés Poma Ordóñez, and Yolanda  Lauri Arias (Case 11.179), Víctor Tineo Sandoval, Guillermina Quispe and Eulogio Demetrio Bohórquez Tineo (Case 10.431), the victims in these 20 cases, and impeding their access to judicial protection through habeas corpus.

The right to humane treatment

226.          Article 5 of the American Convention on Human Rights, at paragraphs 1 and 2, indicates that “every person has the right to have his physical, mental, and moral integrity respected” and that “no one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment....”

227.          The United Nations Working Group on Enforced or Involuntary Disappearances has established that the forced or voluntary disappearance of a person is a particularly odious violation of human rights, and has added:

A disappearance 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 don't 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 a long time from the physical and psychological consequences of this form of dehumanization and from the brutality and torture which often accompany it. [52]

228.          In the six cases identified by numbers 11.035, 11.057, 11.065, 11.200, 10.472, and 11.292, the State never challenged the petitioners’ descriptions of the marks on the corpses, nor the allegations of torture.  Nor did it present any information or evidence to refute it, or demonstrate that those allegations were effectively investigated, as required by its obligations under the American Convention and the Inter-American Convention to Prevent and Punish Torture. [53] And it impeded the persons detained and disappeared Iván Roberto Tineo Rodríguez, Elías Bohórquez Tineo (Case 10.431), Concepción Ccacya Barrientos (Case 10.523), Luis Alberto Sangama Panaifo, Lucio Escobal Fretel (Case 10.564), Arturo Torres Quispe (Case 10.744), Flaviano Sáens Chuquivilca, Miguel Angel Cieza Galván, and Augusto Galindo Peña (Case 11.064), Máximo Muñoz Solís, Levi Vivas Espinal, Alejandro Vera Suasnabar, Edgar Nestares Justo, Javier Yañac Solano, Richard Lozano Cáceres, Oscar Cirino Baldeón Chacón, Luis Alberto Ramírez Hinostroza, Teófilo Julio Lazo Chucos, César Teobaldo Volchez Simeón, José Fierro Miche, Elías Uchupe Huamán (Case 11.126), Camilo Nuñez Quispe (Case 11.200), Edith Galván Montero (Case 11.132), Percy Borja Gaspar, Angel Zanabria Ubaldo, Gumercindo Ubaldo Zanabria, Apolonio Lazo Rodas, Hermilio Borja Ríos, Fredy Gaspar Ríos, José Muñoz Huallpa, Ernesto Salomé Bravo, Jesús Pumahuali Salomé, César Sánchez Castro (Case 11.040), Esteban Romero León, Moisés Poma Ordóñez and Yolanda  Lauri Arias (Case 11.179) from having any contact with any form of help or protection.  That prolonged and clandestine isolation is considered by the international human rights case-law as cruel and inhuman forms of treatment, harmful of the mental and moral integrity of the person. [54]

229.          Along these lines, the Commission concludes that the Peruvian State has violated Article 5 of the Convention to the detriment of Raúl Antero Cajacuri Roca, Rafael Ventocilla Rojas, Marino Ventocilla Rojas, Alejandro Ventocilla Castillo, Simón Ventocilla Castillo, Paulino Ventocilla Castillo, Rubén Ventocilla León, Ricardo Salazar Ruiz, Camilo Núñez Quispe, Teófilo Nuñez Quispe, Walter Wilfredo Valer Munaylla, Jessica Rosa Chávez Ruiz, Pedro Javier Cruz Guzmán, Héctor Rodríguez Rodríguez, Flaviano Sáens Chuquivilca, Miguel Angel Cieza Galván, Augusto Galindo Peña, Concepción Ccacya Barrientos, Ivan Roberto Tineo Rodríguez, Elías Bohorquez Tineo, Luis Alberto Sangama Panaifo, Lucio Escobal Fretel, Máximo Muñoz Solís, Levi Vivas Espinal, Alejandro Vera Suasnabar, Edgar Nestares Justo, Javier Yañac Solano, Richard Lozano Cáceres, Oscar Cirino Baldeón Chacón, Luis Alberto Ramírez Hinostroza, Teófilo Julio Lazo Chucos, César Teobaldo Volchez Simeón, José Fierro Miche, Elías Uchupe Huamán, Edith Galván Montero, Arturo Torres Quispe, Percy Borja Gaspar, Angel Zanabria Ubaldo, Gumercindo Ubaldo Zanabria, Apolonio Lazo Rodas, Hermilio Borja Ríos, Fredy Gaspar Ríos, José Muñoz Huallpa, Ernesto Salomé Bravo, Jesús Pumahuali Salomé, César Sánchez Castro, Esteban Romero León, Moisés Poma Ordóñez, and Yolanda Lauri Arias.

Right to juridical personality

230.          Article 3 of the American Convention on Human Rights indicates that every person has the right to recognition as a person before the law. When Flaviano Sáens Chuquivilca, Camilo Nuñez Quispe, Miguel Angel Cieza Galván, Augusto Galindo Peña, Concepción Ccacya Barrientos, Ivan Roberto Tineo Rodríguez, Elías Bohorquez Tineo, Luis Alberto Sangama Panaifo, Lucio Escobal Fretel, Máximo Muñoz Solís, Levi Vivas Espinal, Alejandro Vera Suasnabar, Edgar Nestares Justo, Javier Yañac Solano, Richard Lozano Cáceres, Oscar Cirino Baldeón Chacón, Luis Alberto Ramírez Hinostroza, Teófilo Julio Lazo Chucos, César Teobaldo Volchez Simeón, José Fierro Miche, Elías Uchupe Huamán, Edith Galván Montero, Arturo Torres Quispe, Percy Borja Gaspar, Angel Zanabria Ubaldo, Gumercindo Ubaldo Zanabria, Apolonio Lazo Rodas, Hermilio Borja Ríos, Fredy Gaspar Ríos, José Muñoz Huallpa, Ernesto Salomé Bravo, Jesús Pumahuali Salomé, César Sánchez Castro, Esteban Romero León, Moisés Poma Ordónez, and Yolanda  Lauri Arias were detained by state agents or persons linked to the State, and then disappeared, they were also shut out of the legal and institutional order of the Peruvian State.  In this sense, the forced disappearance of persons represents the denial of their very existence as a human being with juridical personality. [55]

231.          Therefore, the Commission finds that Peru violated the right to recognition as a person before the law, enshrined in Article 3 of the Convention, to the detriment of these victims.

Rights of the child

232.          Article 19 of the American Convention on Human Rights establishes: “Every minor child has the right to the measures of protection required by his condition as a minor on the part of his family, society, and the state.”

233.          Of the 25 cases under study, four refer to violations against minors.  In Case 10.744, reference is made to the detention and disappearance of Arturo Torres Quispe, 16 years of age, at the hands of ronderos from the civil defense patrols of Duraznopata.  Case 10.947 alleges the summary execution of the five-year-old son of Cirila de Chaico and of her sister’s two-year-old son, at the hands of members of the Army who went to the hamlet of U.T.C. where, using cutting instruments and firearms, they murdered 12 people. Case 11.040 describes the detention and disappearance by members of the peasant civil defense patrols and Peruvian Army personnel of youths Percy Borja Gaspar, 14 years of age, Angel Zanabria Ubaldo, 16 years of age, and Gumercindo Ubaldo Zanabria, 16 years of age.  Case 11.292 refers to the detention, torture, and summary execution, at the hands of Peruvian police personnel, of Jessica Rosa Chávez Ruiz, 17 years of age (and two youths who were with her); the members of the police argued that she died in combat.

234.          The American Convention, at Article 19, imposes on the states, society, and the family the duty to offer the measures of protection required due to their condition as minors.  The foregoing cases illustrate how the Peruvian State failed to provide the guarantees established in the American Convention, allowing several children to be tortured and summarily executed.

The right to judicial protection and to a fair trial

235.          According to the allegations and information provided by the parties, it is proven that the Peruvian State has failed in its duty to investigate, identify, and punish the persons responsible for the facts and to make reparation to the victims.

236.          In most of the cases, the judicial police and the judicial authorities did not identify who perpetrated the crimes. [56] In the few cases in which they were identified, they were not brought to trial, [57] and in one other there was no investigation, [58] which explains why the State, to this day, has not reported on any criminal investigation.

237.          The petitioners in all the cases stated that they had reported the violation of human rights to the local authorities, but in only four of them were the persons allegedly responsible identified, even though later, due to legal circumstances, they did not issue guilty verdicts, and in all the other cases the proceedings were archived.

238.          Article 25(1) of the American Convention provides: “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....”  Article 25(1) incorporates the principle of the effectiveness of procedural instruments or means.  It is not sufficient for the domestic legal order to acknowledge formally the remedy in question; it must develop the possibilities of an effective remedy, and that it be substantiated in keeping with the rules of due process.

239.          Article 8(1) provides:

Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.

240.          For its part, the Court has explained the close relationship among Articles 25, 8, and 1(1):

Article 25 in relation to Article 1(1) of the American Convention obliges the State to guarantee to every individual access to the administration of justice and, in particular, to simple and prompt recourse, so that, inter alia, those responsible for human rights violations may be prosecuted and reparations obtained for the damages suffered.... Article 25 "is one of the fundamental pillars not only of the American Convention, but of the very rule of law in a democratic society.... That article is closely linked to Article 8(1), which provides that every person has the right to a hearing, with due guarantees ... for the determination of his rights, whatever their nature. [59]

241.          The Court, in relation to the duty assumed by the state, has said that when a protected right or liberty has been violated, “[t]he State has a legal duty ... to take reasonable steps ... to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation.”  Therefore, the Court emphasizes 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 victim or his family ...  without an effective search for the truth by the government.” [60]

242.          In other cases, the Commission has said that the “Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions,” adopted by the United Nations Economic and Social Council by Resolution 1989/65, explain what is required in cases of suspicious deaths. [61]   In this respect, the investigation should have as its purpose to determine the cause, manner, and time of death, the person responsible, and any pattern or practice that might have brought about the death.  In addition, it is to include an adequate autopsy, collection and analysis of all physical and documentary evidence, and statements from witnesses.  The investigation should distinguish between natural death, accidental death, suicide, and homicide.

243.          Due to the lack of an effective investigation and the resultant absence of the foundation needed to try these cases, in addition to other shortcomings in the administration of these proceedings, such as delay, the Commission concludes that the victim’s families did not enjoy the necessary due process guarantees in the determination of their rights.  According to the interrelated guarantees established in Articles 25, 8, and 1(1) of the American Convention, the state has the duty to combat impunity “by all available lawful means since impunity fosters the chronic repetition of human rights violations and the total defenselessness of the victims and their relatives.” [62] Accordingly, the State is responsible for the fact that these violations remained covered by a veil of impunity, and it is responsible for violating, in the persons of the victims, the rights and guarantees established at Articles 8 and 25 of the American Convention.

Duty of the State to respect and guarantee individual rights

244.          In the cases that are the subject of the report, the Peruvian State has not met its duty under Article 1(1) of the American 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,” as it violated the human rights set forth at Articles 3, 4, 5, 7, 8, 19, and 25.

245.          The first obligation of states arising from Article 1(1) of the Convention is to respect the rights and freedoms of all individuals in their jurisdiction.  With respect to this obligation, the Court has stated 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 international law.” [63] In addition, it establishes 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.”

246.          The second obligation provided for in Article 1(1) is to ensure the free and full exercise of the rights and freedoms recognized in the Convention. In this respect, the states parties have the duty “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 ... the States must prevent, investigate and punish any violation of the rights recognized by the Convention....” [64]

247.          The State, in the face of alleged cases of extrajudicial execution and forced disappearance of persons, has the duty to clarify the facts, and to identify and punish the persons responsible.  In the cases analyzed in this report, these essential obligations have not been met, especially when it has been shown that the State itself used its structure to implement a practice of extrajudicial executions and forced disappearances of persons during the aforementioned period.  Therefore, the Commission concludes that the State has violated Article 1(1) of the Convention because it did not guarantee the exercise of the rights and guarantees of the victims identified in the cases included in this report.

VII.          PROCEEDINGS SUBSEQUENT TO REPORT N° 82/00

248.          The Commission approved Report Nº 82/00 (Article 50) on the present case on October 5, 2000, during its 108th session.  That Report, with the Commission’s recommendation, was transmitted to the Peruvian State on October 18, 2000; it was given two months to comply with the recommendations, counted from the date the Report was sent.  On January 25, 2001, the State sent a communication to the IACHR, and indicated that the current Government is taking a series of measures to build a nation in which human rights are respected, to which end it is adopting the necessary measures to address all the human rights violations that have not received full and proper attention, including, among others, cases involving assassination, torture, forced disappearance, internal displacement, and the use of terrorist methods.  In addition, the State added as follows:

(B) The Executive branch is planning to create a mechanism aimed at fostering implementation of the recommendations of the Inter-American Commission on Human Rights, which will materialize in coming days.

(C) In addition, the State has already adopted some measures such as Supreme Resolution Nº 281-2000-Jus, of December 4, 2000, creating the Commission for the Study and Review of Legislation Adopted since April 5, 1992.  It is made up of the Minister of Justice, who shall preside over it, one representative from the Ministry of Education, a representative from the Ministry of the Presidency, one representative from the Office of the Human Rights Ombudsman, and two jurists of renowned moral character and academic standing. Its main function is to prepare a report with proposals for the legal reforms necessary to bring the legislation into line with the Constitution and the international human rights instruments.

(D) Through Supreme Resolution Nº 304-2000-Jus, of December 9, 2000, the Peruvian State established an Inter-Institutional Working Group entrusted with preparing legislative and administrative proposals necessary for establishing a Truth Commission, made up of the Minister of Justice or his or her representative, who shall preside over it, the Human Rights Ombudsman, the Minister of Defense and his or her representative, the Minister of Interior and his or her representative, the Minister for Women’s Promotion and Human Development or her representative, the Peruvian Bishops Conference, and the National Protestant Council of Peru.  Its main functions are to present a Report and Recommendations for establishing the Truth Commission, to develop a comprehensive proposal to attend to human rights violations.  In addition, this Truth Commission will establish formulas that make it possible to clarify the facts, design mechanisms of justice, establish a reparations policy, and suggest the framework for ensuring that the events that took place in Peru never recur.

(E) The Ministry of Justice has sent the Office of the Attorney General a copy of Confidential Report Nº 82/00, asking that it issue a report on the investigations and the current state of all the complaints contained in it.

CONCLUSIONS

Based on the foregoing, one can conclude that the Peruvian State is taking note of the recommendations in Report Nº 82/00.  The Commission mentioned in item 2(D) shall propose the derogation or modification of the laws that are contrary to the Constitution and the international human rights instruments, among them, Laws Nº 26,479 and Nº 26,492. The Truth Commission shall have as its main objective the establishment of formulas for the timely clarification of the facts violative of human rights, and to suggest the reparations policy.

249.          By communication delivered personally to the IACHR by Peruvian Minister of Justice Diego García-Sayán, before the plenary of the IACHR held February 22, 2001, during the Commission’s 110th regular session, it was noted that “in the face of the essence of the recommendations on that group of cases ... (1) the Peruvian State acknowledges its responsibility for the human rights violations that have been found by the Inter-American Commission on Human Rights in its final reports. (2) This acknowledgment of responsibility implies that the Peruvian State shall adopt the legal and administrative measures needed to prevent the commission of new acts such as those that have occurred, and to make all efforts necessary to determine the persons responsible. (3) Mindful of the complexity of the context in which these violations occurred, the government has constituted a working group, made up of several sectors of the Executive, the Office of the Human Rights Ombudsman, the churches, and human rights organizations, that has been entrusted with preparing the draft legislation and other proposals deemed necessary for the establishment of a Truth Commission.  This Commission will have the function of developing a comprehensive proposal for addressing the violations of human rights and international humanitarian law, arriving at formulas for determining the facts, designing mechanisms of justice, and establishing a policy of reparations for the victims.  (4) Under the constitutional provisions in force, Laws 26,479 and 26,492 cannot impede judges from performing their functions in relation to the criminal complaints that may be filed.  (5) The Government shall design a policy of comprehensive attention to reparations that will be aimed at ensuring that victims of human rights violations have the opportunity to access social and educational programs free of charge....  These arguments are also applicable to the cases in which the Commission has issued a confidential report under Article 50 of the Convention.”

250.          On that occasion, the IACHR issued a joint press communiqué with the Permanent Mission of Peru to the OAS stating as follows:

The Inter-American Commission reiterated its recognition of the auspicious actions the transition Government led by the distinguished president of Peru, Mr. Valentín Paniagua, is taking; of the renowned members of his cabinet; of the Honorable Congress of the Republic of Peru, related to redefining and strengthening the fundamental institutions of the state.  The IACHR added that this initiative is included in that set of highly positive actions that the present Government of Peru has taken, and complements other equally important measures, such as normalization of the Peruvian situation with respect to the contentious jurisdiction of the Inter-American Court of Human Rights, the recent signing by Peru of the Inter-American Convention on Forced Disappearance of Persons, and compliance with the recommendations and precautionary measures issued by the Inter-American Commission.

The IACHR highly valued and received in a positive vein the initiative by the Government of Peru, whose purpose is to offer settlements in a large number of cases, including the following....

(d) Cases with recommendations by the Commission in reports adopted pursuant to Article 50 of the Convention:  This section contains 26 cases that were recently issued and

have yet to be published.  With respect to these cases, the State has also undertaken to seek comprehensive solutions to the human rights violations found by the IACHR in those reports. [65]   

251.          In keeping with the provisions of Article 51(1) of the Convention, at this stage of the procedure the Commission must determine whether the State resolved the matter. In this respect, and even though the recommendations of the IACHR have not been implemented to date, the Commission takes positive note of the various actions that the Peruvian State has initiated, through its new Government, towards complying with the recommendations made by the Peruvian State in this report.  The Inter-American Commission expects that the Peruvian State will soon report that it has complied with the recommendations made in Report Nº 82/00, and ratified in this report.

VIII.          CONCLUSIONS

252.          Based on the foregoing analysis, the Commission ratifies its conclusion that the Peruvian State is responsible for the violation of the right to life, the right to a fair trial, and the right to judicial protection, enshrined in Articles 4, 8, and 25 of the American Convention, to the detriment of:

Luis Miguel Pasache Vidal (Case 10.247), Walter Wilfredo Valer Munaylla (Case 10.472), Nilton Adelmo Loli Mauricio, Saturnino Serrate García, and Esaú Daniel Moreno Cotrina (Case 10.805), Javier Alberto Ipanaque Marcelo, Guillermo Salinas Conde, Fidel Romero Conde, Uriol Tafur Ayala, Víctor Manuel Briceño García, and Eusebio Aniceto Garay (Case 10.878), Juan Hualla Choquehuanca, Francisco Atamari Mamani, Feliciano Turpo Valeriano, and Roberto Quispe Mamani (Case 10.913), Guillermo Marín Arenas, Gerardo Chaico, Cirila de Chaico and her five-year-old son, the sister of Cirila de Chaico and her two-year-old son, and six unidentified persons (Case 10.947), Teodoro Lorenzo Alvarado Castillo (Case 10.994), Raúl Antero Cajacuri Roca (Case 11.035), Adrián Medina Puma (Case 11.051), Rafael Ventocilla Rojas, Marino Ventocilla Rojas, Alejandro Ventocilla Castillo, Simón Ventocilla Castillo, Paulino Ventocilla Castillo, and Rubén Ventocilla León (Case 11.057), Ricardo Salazar Ruiz (Case 11.065), Amadeo Inca Ñaupa (or Amadeo Arcanaupa), Luciano Huamán García, Antonio Janampa Aucassi, Constantina García Gutiérrez, Marciano (or Mariano) Janampa García, Agripina Aucassi Espilico, Maura Huamán Paucar, Demetrio Huamán León, Víctor Rojas Huamán (or Víctor Huamán Paucar), Mauro Huamán Paucar, Narciso Huamán Paucar, and Melecio Chonta Huamán (Case 11.088), Pascual Chipana Huauya, Pelagia Chipana Condori, Paulina Vásquez Esquivel, Donato Pablo, Juan Cacñahuaray, Jovita Cahuana, Pelayo Capizo, and Pelagia Pillaca (Case 11.161), Jessica Rosa Chávez Ruiz, Pedro Javier Cruz Guzmán, and Héctor Rodríguez Rodríguez (Case 11.292), Moisés Carvajal Quispe (Case 11.680), Luis Alberto Sangama Panaifo and Lucio Escobal Fretel (Case 10.564), Arturo Torres Quispe (Case 10.744), Percy Borja Gaspar, Angel Zanabria Ubaldo, Gumercindo Ubaldo Zanabria, Apolonio Lazo Rodas, Hermilio Borja Ríos, Fredy Gaspar Ríos, José Muñoz Huallpa, Ernesto Salomé Bravo, Jesús Pumahuali Salomé, and César Sánchez Castro (Case 11.040), Máximo Muñoz Solís, Levi Vivas Espinal, Alejandro Vera Suasnabar, Edgar Nestares Justo, Javier Yañac Solano, Richard Lozano Cáceres, Oscar Cirino Baldeón Chacón, Luis Alberto Ramírez Hinostroza, Teófilo Julio Lazo Chucos, César Teobaldo Volchez Simeón, José Fierro Miche, and Elías Uchupe Huamán (Case 11.126), Edith Galván Montero (Case 11.132), Esteban Romero León, Moisés Poma Ordónez and Yolanda Lauri Arias (Case 11.179), Víctor Tineo Sandoval, Guillermina Quispe de Tineo, Eulogio Demetrio Bohorquez Tineo, Ivan Roberto Tineo Rodríguez, and Elías Bohorquez Tineo (Case 10.431), Concepción Ccacya Barrientos, Maximiliana Sotaya, Donato Morán, Emiliana Puga, and Fortunato Venegas (Case 10.523), Flaviano Sáens Chuquivilca, Edgar Chaguayo Quispe, Miriam Lidia Navarro Concha, Miguel Angel Cieza Galván, Socimo Curasma Sulla, Justiniano Fredy Vicente Rivera, Augusto Galindo Peña, Juana Ñahui Vilcas, Luis Aníbal Naupari Toralva, Alejandro Tunque Lizama, Eugenio Curasma Sulla, María Sánchez Retamozo, Edwin Ramos Calderón, Gladys Espinoza León, Fernando Sáenz Munarris, Hugo Puente Vega, Peter David Cosme Ureta (Case 11.064), and Camilo Nuñez Quispe and Teófilo Nuñez Quispe (Case 11.200). 

In addition, the State is responsible for violating the right to personal liberty established at Article 7 of the American Convention to the detriment of:

Teodoro Lorenzo Alvarado Castillo (Case 10.994), Raúl Antero Cajacuri Roca (Case 11.035), Adrián Medina Puma (Case 11.051), Rafael Ventocilla Rojas, Marino Ventocilla Rojas, Alejandro Ventocilla Castillo, Simón Ventocilla Castillo, Paulino Ventocilla Castillo, and Rubén Ventocilla León (Case 11.057), Flaviano Sáens Chuquivilca, Edgar Chaguayo Quispe, Miriam Lidia Navarro Concha, Miguel Angel Cieza Galván, Socimo Curasma Sulla, Justiniano Fredy Vicente Rivera, Augusto Galindo Peña, Juana Ñahui Vilcas, Luis Aníbal Naupari Toralva, Alejandro Tunque Lizama, Eugenio Curasma Sulla, María Sánchez Retamozo, Edwin Ramos Calderón, Gladys Espinoza León, Fernando Sáenz Munarris, Hugo Puente Vega, Peter David Cosme Ureta (Case 11.064),  Ricardo Salazar Ruiz (Case 11.065), Camilo Nuñez Quispe, Teófilo Nuñez Quispe (Case 11.200), Moisés Carvajal Quispe (Case 11.680), Luis Miguel Pasache Vidal (Case 10.247), Walter Wilfredo Valer Munaylla (Case 10.472), Nilton Adelmo Loli Mauricio, Saturnino Serrate García, and Esaú Daniel Moreno Cotrina (Case 10.805), Jessica Rosa Chávez Ruiz, Pedro Javier Cruz Guzmán, and Héctor Rodríguez Rodríguez (Case 11.292), Concepción Ccacya Barrientos, (Case 10.523), Ivan Roberto Tineo Rodríguez, Elías Bohorquez Tineo (Case 10.431),  Luis Alberto Sangama Panaifo Lucio Escobal Fretel (Case 10.564), Máximo Muñoz Solís, Levi Vivas Espinal, Alejandro Vera Suasnabar, Edgar Nestares Justo, Javier Yañac Solano, Richard Lozano Cáceres, Oscar Cirino Baldeón Chacón, Luis Alberto Ramírez Hinostroza, Teófilo Julio Lazo Chucos, César Teobaldo Volchez Simeón, José Fierro Miche, and Elías Uchupe Huamán (Case 11.126), Edith Galván Montero (Case 11.132), Arturo Torres Quispe (Case 10.744), Percy Borja Gaspar, Angel Zanabria Ubaldo, Gumercindo Ubaldo Zanabria, Apolonio Lazo Rodas, Hermilio Borja Ríos, Fredy Gaspar Ríos, José Muñoz Huallpa, Ernesto Salomé Bravo, Jesús Pumahuali Salomé, and César Sánchez Castro (Case 11.040), Esteban Romero León, Moisés Poma Ordónez and Yolanda Lauri Arias (Case 11.179), Víctor Tineo Sandoval, Guillermina Quispe de Tineo, Eulogio Demetrio Bohorquez Tineo (Case 10.431).

In addition, the State is responsible for violating the right to humane treatment enshrined in Article 5 of the American Convention, and its duty to prevent and punish torture established in Articles 1, 6, and 8 of the Inter-American Convention to Prevent and Punish Torture, to the detriment of:

Raúl Antero Cajacuri Roca (Case 11.035), Rafael Ventocilla Rojas, Marino Ventocilla Rojas, Alejandro Ventocilla Castillo, Simón Ventocilla Castillo, Paulino Ventocilla Castillo, Rubén Ventocilla León (Case 11.057), Ricardo Salazar Ruiz (Case 11.065), Camilo Núñez Quispe (Case 11.200), Walter Wilfredo Valer Munaylla (Case 10.472), Jessica Rosa Chávez Ruiz, Pedro Javier Cruz Guzmán, Héctor Rodríguez Rodríguez (Case 11.292), Flaviano Sáens Chuquivilca, Miguel Angel Cieza Galván and Augusto Galindo Peña (Case 11.064) Concepción Ccacya Barrientos (Case 10.523), Ivan Roberto Tineo Rodríguez, Elías Bohorquez Tineo (Case 10.431), Luis Alberto Sangama Panaifo, Lucio Escobal Fretel (Case 10.564), Máximo Muñoz Solís, Levi Vivas Espinal, Alejandro Vera Suasnabar, Edgar Nestares Justo, Javier Yañac Solano, Richard Lozano Cáceres, Oscar Cirino Baldeón Chacón, Luis Alberto Ramírez Hinostroza, Teófilo Julio Lazo Chucos, César Teobaldo Volchez Simeón, José Fierro Miche, Elías Uchupe Huamán (Case 11.126), Edith Galván Montero (Case 11.132), Arturo Torres Quispe (Case 10.744), Percy Borja Gaspar, Angel Zanabria Ubaldo, Gumercindo Ubaldo Zanabria, Apolonio Lazo Rodas, Hermilio Borja Ríos, Fredy Gaspar Ríos, José Muñoz Huallpa, Ernesto Salomé Bravo, Jesús Pumahuali Salomé, César Sánchez Castro (Case 11.040), Esteban Romero León, Moisés Poma Ordóñez and Yolanda Lauri Arias (Case 11.179), Víctor Tineo Sandoval, Guillermina Quispe, and Eulogio Demetrio Bohorquez Tineo (Case 10.431).

The State is also for violating the right to recognition as a person before the law, enshrined in Article 3 of the Convention, to the detriment of:

Flaviano Sáens Chuquivilca, Miguel Angel Cieza Galván, and Augusto Galindo Peña (Case 11.064), Camilo Nuñez Quispe (Case 11.200) Concepción Ccacya Barrientos (case 10.523), Ivan Roberto Tineo Rodríguez, Elías Bohorquez Tineo (Case 10.431), Luis Alberto Sangama Panaifo, Lucio Escobal Fretel (Case 10.564), Máximo Muñoz Solís, Levi Vivas Espinal, Alejandro Vera Suasnabar, Edgar Nestares Justo, Javier Yañac Solano, Richard Lozano Cáceres, Oscar Cirino Baldeón Chacón, Luis Alberto Ramírez Hinostroza, Teófilo Julio Lazo Chucos, César Teobaldo Volchez Simeón, José Fierro Miche, Elías Uchupe Huamán (Case 11.126), Edith Galván Montero (Case 11.132), Arturo Torres Quispe (Case 10.744), Percy Borja Gaspar, Angel Zanabria Ubaldo, Gumercindo Ubaldo Zanabria, Apolonio Lazo Rodas, Hermilio Borja Ríos, Fredy Gaspar Ríos, José Muñoz Huallpa, Ernesto Salomé Bravo, Jesús Pumahuali Salomé, César Sánchez Castro (Case 11.040), Esteban Romero León, Moisés Poma Ordóñez and Yolanda Lauri Arias (Case 11.179).

In addition, the State is responsible for the violation of the rights of the child established in Article 19 of the American Convention to the detriment of:

Arturo Torres Quispe, 16 years of age (Case 10.744), the five-year-old son of Cirila de Chaico and her sister’s two-year-old son (Case 10.947), youths Percy Borja Gaspar, 14 years of age, Angel Zanabria Ubaldo, 16 years ofCase  age, and Gumercindo Ubaldo Zanabria, 16 years of age (Case 11.040), and Jessica Rosa Chávez Ruiz, 17 years of age (Case 11.292).

Accordingly, the State is responsible for breaching its duty imposed by Article 1(1) to respect and ensure the rights enshrined in the Convention with respect to the above-named victims.

IX.          RECOMMENDATIONS

253.          Based on the analysis and conclusions of this report, the Inter-American Commission on Human Rights reiterates the following recommendations to the Peruvian State:

1.          Void any judicial decision, internal measure, legislative or otherwise, that tends to impede the investigation, prosecution, and punishment of the persons responsible for the summary executions and forced disappearance of the victims indicated at paragraph 252.  In this regard, the State should also repeal Laws Nº 26,479 and 26,492.

2.          Carry out a complete, impartial, and effective investigation to determine the circumstances of the extrajudicial executions and forced disappearances of the victims and to punish the persons responsible pursuant to Peruvian legislation.

3.          Adopt the measures necessary for the victim’s families to receive adequate and timely compensation for the violations established herein.

4.                 Accede to the Inter-American Convention on Forced Disappearance of Persons.

X.          PUBLICATION

254.          On March 9, 2001, the Commission transmitted Report Nº 24/01 (the text of which appears above) to the Peruvian State and to the petitioners, pursuant to Article 51(2) of the Convention, and gave the State an additional period of time to comply with the previous recommendations.

255.          In a communication of April 18, 2001, supplemented by a communication dated May 25, 2001, the Peruvian State put forward the following considerations, among others:

(…) The cases referred to (No. 10,247 and others) on extrajudicial executions and forced disappearance of persons are to be reviewed by a Truth Commission, as proposed to the President of the Republic by the Interinstitutional Working Group created by Supreme Resolution No. 281-2000-JUS.  This Truth Commission reflects the need to know what really happened in our country, and to be able to understand the causes and factors that produced such a situation of human rights violations, and in this way to begin the conscious and deliberate process of re-institutionalizing democracy in Peru, and bringing about national reconciliation.

(…)

The deeds to be considered by the Truth Commission are limited to those that took place essentially between May 1980 and December 31, 2000, involving human rights violations in Peru (including a series of case is covered by Report No. 24/01 on extrajudicial executions and forced disappearance of persons) as well as acts attributable to terrorist groups, and those deriving from State actions.

The Truth Commission will prepare proposals for full reparations and the restoration of dignity to the victims of severe violations of human rights, and their relatives.  This is consistent with the third recommendation of the I-ACHR, which calls for reparations to relatives of the victims.  The idea is to deal in a comprehensive matter with this dimension of the human rights violations referred to.

(…)

In this respect, the Peruvian State considers that an initial step in addressing the second recommendation contained in Report Nº 24/01 should be to transfer the cases covered by that Report to the Truth Commission.

As well, the Public Defender has launched an investigation into the forced disappearance of persons in Peru, covering the period 1980-1996, i.e. the lapse of time in which the events covered by Report Nº 24/01 took place.  (…) This investigation is a further sign of the Peruvian State's efforts to fulfill the recommendations of the Commission.

(…)

With respect to the fourth recommendation of the IACHR, Peru signed the Inter-American Convention on the Forced Disappearance of Persons on January 8, 2001, and it is now pending ratification by the Peruvian Congress.

(…)

Finally, the Executive Branch has transmitted Report Nº 24/01 to the Ministries of Defense and the Interior, as well as the Judicial Branch and the Attorney General's Office, so that they may take steps consistent with their constitutional and legal responsibilities.

CONCLUSIONS

Without prejudice to the steps they may be taken in the coming weeks, the Peruvian State submits this information, and reiterates to the Inter-American Commission on Human Rights its firm commitment to consider the recommendations contained in Report Nº 24/01.  In particular, the Peruvian State intends to comply with recommendations 2, 3 and 4 of that Report.

256.          The Inter-American Commission appreciates the declarations of the Peruvian State as to the actions undertaken to comply with the Commission's recommendations.  Pursuant to Article 51 (3) of the American Convention and 45 (3) of its Rules of Procedure, the Commission decides to reiterate the conclusions and recommendations contained in chapters VIII and IX supra; to publish this Report and include it in its Annual Report to the OAS General Assembly.  Consistent with its mandate and the provisions of Article 46 of its Rules of Procedure, the Commission will continue to evaluate the measures taken by the Peruvian State with respect to the recommendations formulated, until these have been fulfilled.  In this respect, the Inter-American Commission requests the State to provide quarterly reports on progress in fulfilling the recommendations.

Done and signed at the headquarters of the Inter-American Commission on Human Rights, in the city of Washington, D.C., October 11, 2001. Signed by Hélio Bicudo, President; Claudio Grossman, First Vice President; Juan Méndez, Second Vice President; Commissioners: Marta Altolaguirre, Robert K. Goldman, Peter Laurie, and Julio Prado Vallejo.