Yone
Cruz Ocalio v. Peru, Case 11.099, Report No. 112/00, OEA/Ser.L/V/II.111 Doc.
20 rev. at 1154 (2000).
REPORT
Nº 112/00
CASE
11.099
YONE
CRUZ OCALIO
PERU
December
4, 2000
I.
SUMMARY
1.
By petition submitted to the Inter-American Commission on Human Rights
(hereinafter “the Commission”) by the non-governmental organization
Centro de Estudios y Acción para la Paz (“CEAPAZ”) on December
15, 1992, it was alleged that the Republic of Peru (hereinafter “Peru,”
“the State,” or “the Peruvian State”) violated the human
rights of Mr. Yone Cruz Ocalio, by detaining him, by members of the Police,
on February 24, 1991, and then disappearing him. The State alleges that Mr.
Cruz Ocalio was not detained by police or military forces.
The Commission concludes that Peru violated, in his person, the rights
set forth at Articles 7, 5, and 8 of the American Convention on Human Rights
(hereinafter the “Convention” or the “American Convention”),
in conjunction with Article 1(1), and it makes recommendations to the Peruvian
State.
II. PROCESSING BEFORE
THE COMMISSION
2.
On January 4, 1993, the Commission opened the case, forwarded the pertinent
parts of the complaint to the Peruvian State, and requested that it provide
information within 90 days. The
State answered on June 8, 1993. On
May 26, 1999, both parties were asked to provide the Commission with updated
information on the case, and were informed that the Commission was making
itself available to try to reach a friendly settlement.
On July 13, 1999, the petitioner answered that it would be willing
to pursue a friendly settlement, subject to the State assuming certain commitments.
The State, on July 14, 1999, ratified earlier arguments and stated
it did not consider it advisable to pursue a friendly settlement.
Accordingly, the Commission considered the possibility of reaching
a friendly settlement to have been exhausted.
III. POSITIONS OF
THE PARTIES
A.
The petitioner
3.
The petitioner notes that Mr. Yone Cruz Ocalio, married and father
of two children, who was a worker at the “La Soledad” farm
was detained on February 24, 1991, at approximately 9:00 a.m., by members
of the National Police, at the Tulumayo agricultural station, Aucayacu, province
of Leoncio Prado, department of Huánuco, Peru.
Petitioner further states that after being detained, Mr. Cruz Ocalio
was taken to the Tulumayo military base, and that he then disappeared.
4.
Petitioner notes that in response to Mr. Cruz Ocalio’s detention,
several remedies were pursued, before the Executive, the Judiciary, and the
Public Ministry. It further indicates
that as regards the Executive, communications were sent to the Minister of
Defense, to the Chairman of the Joint Chiefs of Staff of the Armed Forces,
to the General Commander of the Peruvian Army, to the Chief of the Political-Military
Command of Huánuco, and to the Chief of the Tulumayo Military base. Petitioner indicates that as regards the Judiciary, a writ
of habeas corpus was filed on April
15, 1991, before the Investigative Judge of Leoncio Prado, on which
no ruling had been made. It notes
that in terms of the Public Ministry, the parents of Mr. Cruz Ocalio reported
the incident to the First Provincial Prosecutor of Leoncio Prado and
also to the Superior Prosecutor of Huánuco, and to the Attorney General of
Peru. Petitioner indicates that
notwithstanding all of the initiatives taken, Mr. Cruz Ocalio continued disappeared.
B.
The State
5.
The State answered on June 8, 1993, and communicated that the Ministry
of Defense of Peru had declared that “citizen Yone Cruz Ocalio has not
been detained by the forces of order that operate in Aucayacu.”
6.
On August 29, 1994, Peru informed the Commission that the Ministry
of Interior of Peru had reported as follows:
...
as the corresponding investigations related to the supposed detention of citizen
Yone Cruz Ocalio were carried out, it has been determined that he has not
been detained by members of the National Army or the National Police of Peru,
from the police antidrug base in the jurisdiction of Tingo María.
...
as the book of persons detained and of incidents, kept in this office, has
been reviewed, no information has been found regarding Yone Cruz Ocalio, indicating
that he was not the subject of intervention or investigation by this police
antidrug base.
7. On September
17, 1998, the State asked the IACHR to declare the petition inadmissible.
IV.
ANALYSIS
A.
Considerations on admissibility
The
Commission now analyzes the admissibility requirements of a petition established
in the American Convention.
a.
Subject-matter jurisdiction, personal jurisdiction, and jurisdiction
based on time and place of the events
8.
The allegations in this case describe facts that would be violative
of several rights recognized and enshrined in the American Convention that
took place within the territorial jurisdiction of Peru when the obligation
to respect and guarantee the rights established therein were in force for
the State.
Therefore, the IACHR has subject-matter jurisdiction, personal jurisdiction,
and jurisdiction based on when and where the alleged violations took place,
so as to be able to take cognizance of the merits in the case.
b. Exhaustion of
domestic remedies
9.
The fact that the first stages of the process, i.e., within the first
90 days that it was given to provide information about the facts alleged,
the State did not present any objection on grounds of failure to exhaust domestic
remedies, will be sufficient for the Commission to consider the requirement
established at Article 46(1)(a) of the Convention to have been met.
10.
The Commission recently decided, together, a group of 35 cases that
involved 67 persons disappeared in various departments of Peru during the
period from 1989 to 1993, and analyzed in detail the general phenomenon of
disappearances in Peru. In those
reports the Commission notes that habeas corpus was the adequate remedy in
cases of disappearance for trying to find a person presumably detained by
the authorities, to inquire into the legality of the detention, and, if possible,
to secure his or her release. The
IACHR also concluded that for the purposes of admissibility of complaints
before this body, it was not necessary to file a habeas corpus remedy--or
any other--for the purpose of exhausting domestic remedies, since from 1989
to 1993 there was a practice or policy of disappearances ordered or tolerated
by various public authorities that rendered the habeas corpus remedy totally
ineffective in cases of disappearance.
In those reports the Commission found as follows:
As
stated earlier, the relatives of the victims applied on numerous occasions
to various judicial, executive (military), and legislative authorities to
locate the victims and secure their release. These efforts usually included
writs of habeas corpus; complaints to the Attorney General, the Chief Prosecutor
in San Martín, the Special Attorney for Human Rights in San Martín, the
Office of the Special Ombudsman, and the Offices of the Provincial Prosecutors;
and appeals to the Ministry of Defense, the Army High Command, the Office
of the Inspector General of the Army, the Political-Military Commander in
Chief, and the commanding officers at the military bases concerned. Despite
all these efforts, the victims were never located and never reappeared.
All
these procedures and appeals by the relatives of the victims proved fruitless,
because the same people who had allegedly brought about the disappearances
and who hid the evidence played a key part in the results of the investigations.
None of the writs of habeas corpus was successful in any of the cases. Likewise,
the complaints filed with the offices of the government prosecutors led
to little more than a request for information from the military, who would
deny the detention. The cases were then shelved without ever being brought
before the competent court of the first instance. It should be added that
generally the Peruvian Government's replies to the Commission denying responsibility
for the disappearances are based precisely on photocopies, sent to the Commission,
of official communications in which the military itself denies having carried
out the arrests.
[T]he
Commission considers it important to provide certain clarifications regarding
the exhaustion of domestic remedies in connection with the forced disappearances
in Peru. In this regard, it should be noted that the Inter-American Court
of Human Rights has held, in connection with the exhaustion of domestic remedies,
that, "in keeping with the object and purpose of the Convention and in
accordance with an interpretation of Article 46 (1)(a) of the Convention,
the proper remedy in the case of the forced disappearance of persons would
ordinarily be habeas corpus, since those cases require urgent action by the
authorities" (and it is) "the normal means of finding a person presumably
detained by the authorities, of ascertaining whether he is legally detained
and, given the case, of obtaining his liberty." Thus, when a writ of
habeas corpus is presented in the case of persons who were detained and then
disappeared, and nothing comes of it because the victims are not located,
those are sufficient grounds for finding that domestic remedies have been
exhausted.
However,
the Court has also ruled that domestic remedies must be effective, that is,
they must be capable of producing the results for which they were intended,
and that if there is proof of a practice or policy, ordered or tolerated by
the government, the effect of which is to prevent certain persons from availing
themselves of internal remedies that would normally be available to all others,
resorting to those remedies becomes a senseless formality, so that the exceptions
to the exhaustion of domestic remedies provided for in Article 46(2) of the
Convention would be fully applicable.
In
its analysis of the substance of the case, set forth in section VI below,
the Commission finds that, during the period in which the alleged events took
place, there existed in Peru a practice or policy of disappearances, ordered
or tolerated by various government authorities. For that reason, and given
that that practice rendered writs of habeas corpus completely ineffective
in cases of disappearances, the Commission finds that, for purposes of admissibility
of complaints before this Commission, it was not necessary to attempt the
habeas corpus remedy--or any other--in order to exhaust domestic remedies.
Consequently, the Commission considers that the rule regarding exceptions
to the exhaustion of domestic remedies established in Article 46(2) of the
Convention is fully applicable.
11.
The Commission considers the foregoing considerations to apply fully
to this case, since it is a complaint of a forced disappearance alleged to
have taken place in 1991, which has been imputed to the Peruvian police.
This disappearance would have occurred at the time (1989-1993) when
the Commission determined, according to the material quoted above, that there
was a practice or policy of disappearances ordered or tolerated by various
public authorities that rendered the habeas corpus remedy completely ineffective in disappearance cases;
accordingly, the Commission determined that for the purposes of admissibility
of complaints to the Commission, it was not necessary to seek to pursue the
habeas corpus remedy--or any other--for
the purpose of exhausting domestic remedies.
Therefore, the Commission concludes that this case fits under the exception
provided for at Article 46(2)(a) of the Convention, according to which the
requirement of exhausting domestic remedies, provided for at Article 46(1)(a)
of the Convention, is not applicable when "the domestic legislation of
the state concerned does not afford due process of law for the protection
of the right or rights that have allegedly been violated.” The Commission
believes it is important to highlight that in this case, it has been alleged
that the writ of habeas corpus filed
on behalf of Mr. Cruz had not been ruled on, which confirms this appraisal.
c. Time period for
submission
12.
With respect to the requirement set forth at Article 46(1)(b) of the
Convention, according to which the petition must be submitted within six months
from the date on which the victim is notified of the final judgment that exhausted
domestic remedies, the Commission observes that this requirement does not
apply in this case. This is because
the exception to the exhaustion requirement at Article 46(2)(a) of the Convention,
as set forth in the previous paragraph, also holds--by mandate of Article
46(2) of the Convention--for the requirement concerning the time for submission
of the petitions provided for at the Convention.
13.
The Commission, without prejudging on the merits, should add that the
forced disappearance of a person by state agents constitutes a continuing
violation by the State that persists, as a permanent infraction of several
articles of the American Convention, until the person or corpse appears.
Therefore, the requirement concerning the time period for submission
of petitions, set forth at Article 46(1)(b) of the American Convention, does
not apply to such cases.
d.
Duplicity of procedures and res judicata
14.
The Commission understands that the subject matter of the petition
is not pending before any other procedure for international settlement, nor
does it reproduce a petition already examined by this or any other international
organization. Therefore, the requirements established at Articles 46(1)(c)
and 47(d) are also satisfied.
e.
Characterization of the facts
15.
The Commission considers that the petitioner's presentation refers
to facts which, if true, could characterize a violation of rights guaranteed
in the Convention, for, as established supra, the issue submitted to
the Commission is the forced disappearance of a person.
16.
For all the reasons set forth above, the Commission considers that
it has jurisdiction to take cognizance of this case, and that pursuant to
Articles 46 and 47 of the American Convention the petition is admissible,
in the terms set forth above.
B.
Considerations on the merits
17.
Having determined its jurisdiction to hear this case, and that in keeping
with Articles 46 and 47 of the American Convention the petition is admissible,
the Commission now moves on to set forth its decision on the merits, bearing
in mind that the parties did not agree to initiate a friendly settlement procedure,
and that the Commission already has sufficient grounds to make a decision
on the merits.
a. State practice
of disappearances
18.
In relation to the analysis of the merits of the present case, the
Commission regards as pertinent to reiterate the following considerations
concerning the practice of forced disappearances in Peru that the Commission
set forth recently, when it decided an accumulated group of 35 cases involving
67 “disappeared” persons in different provinces of Peru during 1989-1993.
To this respect, the Commission ruled in the following terms, which completely
ratifies in the present case:
…
the Commission decided to combine the cases under review because it considers
that the alleged events suggest a pattern of disappearances brought about
by Peruvian State agents around the same time period (1989-1993), within the
context of what are called anti-subversive activities, and employing the same
modus operandi.
The
Commission therefore decided to look into the possible existence of a practice
of forced disappearances brought about by the Peruvian State, or at least
tolerated by it, during the period in question (1989-1993). The Commission
cannot ignore, to use the words of the Inter-American Court, "the special
seriousness of finding that a State Party to the Convention has carried out
or has tolerated a practice of disappearances in its territory." Nonetheless,
it is crucial that the Commission, in accordance with the functions assigned
to it, carry out that analysis, not only for the purposes of this report,
but also to arrive at the truth regarding a policy of human rights violations,
with all its possible repercussions for the clarification of other cases that
have come to the attention of this Commission.
In
this regard, it should be pointed out that the criteria used to evaluate evidence
in an international court of human rights have special standards, which empower
the Commission to weigh the evidence freely and to determine the amount of
proof necessary to support the judgment.
The
modus operandi used, according to the petitions received by the Commission,
in the arrests and disappearances in the cases in question, involving Messrs.
(…), shows an overall pattern of behavior that can be considered admissible
evidence of a systematic practice of disappearances.
The
Commission has received a very large number of complaints of disappearances
in Peru, many of which pertain to multiple disappeared persons. In its 1993
Report on the Situation of Human Rights in Peru, the Commission discussed
the problem of the forced disappearance of persons in that country and indicated
that it had already passed 43 resolutions regarding individual cases involving
106 victims. Subsequently, the Commission has continued to write reports on
the matter. Moreover, the Peruvian State itself has officially recognized
the existence of forced disappearances and has reported on 5,000 complaints
of disappearances between 1983 and 1991. The large number of complaints of
this type is a clear indication, in the Commission’s view, that disappearances
in Peru followed an official pattern devised and carried out in a systematic
manner.
This
indication is supported by the fact that, at the United Nations (UN), the
Working Group on Enforced or Involuntary Disappearances, established by the
Commission on Human Rights in 1980, had received 3,004 cases of forced disappearances
in Peru. That Group points out that:
The
vast majority of the 3,004 cases of reported disappearances in Peru occurred
between 1983 and 1992, in the context of the Government's fight against terrorist
organizations, especially the "Shining Path" (Sendero Luminoso).
In late 1982, the armed forces and police undertook a counter-insurgency campaign
and the armed forces were granted a great deal of latitude in fighting Shining
Path and in restoring public order. While the majority of reported disappearances
took place in areas of the country which had been under a state of emergency
and were under military control, in particular in the regions of Ayacucho,
Huancavelica, San Martín, and Apurímac, disappearances also took place in
other parts of Peru. Detentions were reportedly frequently carried out openly
by uniformed members of the armed forces, sometimes together with Civil Defense
Groups. Some 20 other cases reportedly occurred in 1993 in the Department
of Ucayali and concerned largely the disappearance of peasants.
Dr.
Imelda Tumialán, the ad hoc Provincial Prosecutor for the Department of Junín,
has placed on record that in 1991 there were more than 100 disappearances
in that Department. Likewise, in a note dated January 9, 1992, Peru's Assistant
Attorney General pointed out that in the first 11 months of 1991 there had
been 268 complaints of disappearances, and that only a few cases had been
solved. For its part, the National Coordinating Body for Human Rights in Peru,
a recognized nongovernmental umbrella group of various Peruvian human rights
organizations, estimates that 725 persons disappeared in Peru between 1990
and 1992. The Commission has been told that reports circulating freely in
Peru indicated that military personnel, and in some cases police officers,
were carrying out disappearances. The Commission has received numerous articles
and news reports on such disappearances, published by the print media and
others.
On
the basis of the foregoing evidence, the Commission concludes that in the
1989-1993 period there existed in Peru a systematic and selective practice
of forced disappearances, carried out by agents of, or at least tolerated
by, the Peruvian State. That official practice of forced disappearances was
part of the "fight against subversion", although in many cases it
harmed people who had nothing to do with the activities related to dissident
groups.
Perpetration
of the disappearances
On
the basis of the various items of evidence mentioned above, the Commission
sees fit to map out the steps usually involved in the above-mentioned official
policy of disappearances:
Detention
of the victims
The
Commission has been told that, in general, perpetration of the disappearances
was delegated to the political military commanders and the commanding officers
at military bases. The latter imparted orders directly to the personnel who
carried out the detentions, normally the first stage of the disappearance
process. Peru's national police force was also in charge of perpetrating disappearances,
usually through DINCOTE.
Most
often the abduction and disappearance of a person began with information obtained
by members of the intelligence service, according to which that person was
in some way linked to subversive groups, chiefly the Shining Path or the Tupac
Amaru Revolutionary Movement (MRTA). It should be pointed out that in many
instances the persons concerned were in no way involved with those subversive
groups, but were unfortunate enough to have been included, fraudulently or
by mistake, on the lists that would later lead to their disappearance.
Another
factor that, in certain Departments and under particular circumstances, could
lead to the detention and later disappearance of many people was the fact
that they were not carrying their voter registration documents, which were
used for identification purposes. In certain cases, during checkpoint operations
on public thoroughfares, a person unable to produce an identification document
upon request was almost automatically considered a terrorist.
Once
a person was considered "suspect", he or she was arrested; on numerous
occasions, this was the first step toward disappearance. Some arrests were
carried out openly in public, others at the victim's home, usually in the
early hours of the morning and in the presence of witnesses. Those charged
with carrying out the detentions were heavily armed soldiers or police, sometimes
dressed in civilian clothing, but most often in uniform.
Generally,
the soldiers or police paid little attention to the witnesses and proceeded
to do what they came to do anyway. Arrests in people's homes were usually
carried out in front of whoever happened to be there: wives, children, fathers,
mothers, etc. Thus the normal pattern was for the personnel to arrest the
victim regardless of who might be present, with no attempt to hide the official
nature of what they were doing.
Official
denial of the detentions
The
same day of the arrest, or in the days immediately following, relatives would
go to the place where the victim was detained and be told that he or she was
not being held. It should be stressed that since the arrests were usually
carried out publicly, the relatives knew where the victim had first been detained.
Nevertheless, the authorities denied the detention. As the Commission has
established previously:
The
fact that the military authorities deny having carried out the detention thus
merely confirms the clandestine nature of the military operations. Detention
is neither registered nor officially admitted, in order to make it possible
to employ torture during interrogation and if need be to apply extrajudicial
punishment to persons considered to be sympathizers, collaborators, or members
of the rebel groups.
A
variation on this practice consisted of the authorities alleging that the
victim had been released and even producing documents to show this, sometimes
with a forgery of the victim’s signature, others with his or her real
signature obtained under torture, when in fact the release had never taken
place.
Torture
and extrajudicial execution of detainees
When
the victim did not die as a result of the torture inflicted, he or she was
generally executed in summary, extrajudicial fashion. The bodies were then
hidden by burial in secret places chosen to make their discovery practically
impossible.
Amnesty
for those responsible for the disappearances
In
general, cases of disappearance in Peru were not seriously investigated. In
practice, those responsible enjoyed almost total impunity, since they were
carrying out an official State plan. Despite that, the authorities decided
to go even further by passing Act Nº 26.479 (the "Amnesty Act")
in 1995. Article 1 of that Law grants a blanket amnesty to all members of
the security forces and civilian personnel accused, investigated, indicted,
prosecuted, or convicted for human rights violations committed between May
1980 and June 1995. That law was later strengthened by Act Nº 26.492, which
prohibited the judiciary from ruling on the legality or applicability of the
Amnesty Law. In its annual reports for 1996 and 1997, the Commission has addressed
the issue of those amnesty laws in the overall analysis of the human rights
situation in Peru.
Although
the Commission has been told that both laws can be rendered inapplicable by
Peruvian judges, through what is known as their "broad powers" to
rule on the constitutionality of laws--provided for in Article 138 of the
Peruvian Constitution--the Commission considers t
