Yone Cruz Ocalio v. Peru, Case 11.099, Report No. 112/00, OEA/Ser.L/V/II.111 Doc. 20 rev. at 1154 (2000).
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
II. PROCESSING BEFORE
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 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.
Petitioner notes that in response to Mr. Cruz Ocalios 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.
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.
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
7. On September
17, 1998, the State asked the IACHR to declare the petition inadmissible.
A. Considerations on admissibility
Commission now analyzes the admissibility requirements of a petition established
in the American Convention.
Subject-matter jurisdiction, personal jurisdiction, and jurisdiction
based on time and place of the events
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
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
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.
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.
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
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.
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.
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
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.
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.
Duplicity of procedures and res judicata
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.
Characterization of the facts
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.
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
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
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
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.
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.
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.
Commission has received a very large number of complaints of disappearances
in Peru, many of which pertain to multiple disappeared persons. In its 1993
Report on the Situation of Human Rights in Peru, the Commission discussed
the problem of the forced disappearance of persons in that country and indicated
that it had already passed 43 resolutions regarding individual cases involving
106 victims. Subsequently, the Commission has continued to write reports on
the matter. Moreover, the Peruvian State itself has officially recognized
the existence of forced disappearances and has reported on 5,000 complaints
of disappearances between 1983 and 1991. The large number of complaints of
this type is a clear indication, in the Commissions view, that disappearances
in Peru followed an official pattern devised and carried out in a systematic
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:
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.
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
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
Perpetration of the disappearances
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
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.
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.
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.
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.
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
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
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.
variation on this practice consisted of the authorities alleging that the
victim had been released and even producing documents to show this, sometimes
with a forgery of the victims signature, others with his or her real
signature obtained under torture, when in fact the release had never taken
Torture and extrajudicial execution of detainees
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
Amnesty for those responsible for the disappearances
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.
the Commission has been told that both laws can be rendered inapplicable by
Peruvian judges, through what is known as their "broad powers" to
rule on the constitutionality of laws--provided for in Article 138 of the
Peruvian Constitution--the Commission considers the aforesaid laws an invalid
attempt to legalize the impunity that existed in practice with regard to forced
disappearances and other serious offenses committed by agents of the State.
For example, the Commission has learned that the judges of the Constitutional
Court, who were removed by the Congress, invoked that same Article 138 of
the Constitution in their December 27, 1996, finding that Act Nº 26.657 did
not apply to President Alberto Fujimori.
The burden of proof regarding disappearances
general principle is that, in cases of disappearance in which, in the Commissions
view, there is sufficient evidence that the arrest was carried out by State
agents acting within the general framework of an official policy of disappearances,
it shall be presumed that the victims disappearance was brought about
by acts by Peruvian State agents, unless that State gives proof to the contrary.
it is not incumbent upon the petitioners to prove that the victims have disappeared,
because it may be assumed, for lack of proof to the contrary, that the Peruvian
State is responsible for the disappearance of any person it has detained.
This is even more important in view of the aforementioned government practice
of causing disappearances. It is up to the State to prove that it was not
its agents who brought about the disappearance of the victims.
the "policy of disappearances, sponsored or tolerated by the Government,
is designed to conceal and destroy evidence of disappearances". Then,
as a result of action by the State, the petitioner is deprived of evidence
of the disappearance, since "this type of repression is characterized
by an attempt to suppress all information about the kidnapping or the whereabouts
and fate of the victim." The fact is, as established by the Inter-American
Court of Human Rights:
in contrast to domestic criminal law, in proceedings to determine human rights
violations the State cannot rely on the defense that the complainant has failed
to present evidence when it cannot be obtained without the States cooperation.
Commission has explained in this regard that when there is proof of the existence
of a policy of disappearances sponsored or tolerated by the Government, it
is possible, using circumstantial or indirect evidence, or through relevant
logical inference, to prove the disappearance of a specific individual when
that would otherwise be impossible given the link between that disappearance
and the overall policy.
recently, the Commission has also determined that:
burden of proof lies with the State, because when the State holds a person
in detention and under its exclusive control, it becomes the guarantor of
that persons safety and rights. In addition, the State has exclusive
control over information or evidence regarding the fate of the detained person.
This is particularly true in a disappearance case where, by definition, the
family members of the victim or other interested persons are unable to learn
about the fate of the victim.
establishes the inversion of the burden of proof for cases of disappearance
in Peru and the effects of that inversion on cases being heard by the Commission.
Considerations relating to forced disappearances
General Assembly of the Organization of American States (OAS) has called the
practice of the forced or involuntary disappearance of persons a crime against
humanity that strikes against the fundamental rights of the human individual,
such as personal liberty and well-being, the right to proper judicial protection
and due process, and even the right to life. In that context, the member states
of the Organization of American States (OAS) adopted, in 1994, an Inter-American
Convention on the Forced Disappearance of Persons as a means of preventing
and punishing the forced disappearance of persons in our Hemisphere.
Commission has affirmed, in relation to the forced disappearance of persons,
procedure is cruel and inhuman. ... [It] not only constitutes an arbitrary
deprivation of freedom but also a serious danger to the personal integrity
and safety and to even the very life of the victim. It leaves the victim totally
defenseless, violating the rights to a fair trial, to protection against arbitrary
arrest, and to due process.
UN Working Group on Enforced or Involuntary Disappearances has affirmed that
the forced or involuntary disappearance of a person is a particularly odious
violation of human rights, and is
doubly paralyzing form of suffering: for the victims, frequently tortured
and in constant fear for their lives, and for their family members, ignorant
of the fate of their loved ones, their emotions alternating between hope and
despair, wondering and waiting, sometimes for years, for news that may never
come. The victims are well aware that their families do not know what has
become of them and that the chances are slim that anyone will come to their
aid. Having been removed from the protective precinct of the law and "disappeared"
from society, they are in fact deprived of all their rights and are at the
mercy of their captors. If death is not the final outcome and they are eventually
released from the nightmare, the victims may suffer for a long time from the
physical and psychological consequences of this form of dehumanization and
from the brutality and torture which often accompany it.
family and friends of disappeared persons experience slow mental torture,
not knowing whether the victim is still alive and, if so, where he or she
is being held, under what conditions, and in what state of health. Aware,
furthermore, that they too are threatened; that they may suffer the same fate
themselves, and that to search for the truth may expose them to even greater
familys distress is frequently compounded by the material consequences
resulting from the disappearance. The missing person is often the mainstay
of the familys finances. He or she may be the only member of the family
able to cultivate the crops or run the family business. The emotional upheaval
is thus exacerbated by material deprivation, made more acute by the costs
incurred should they decide to undertake a search. Furthermore, they do not
know when--if ever--their loved one is going to return, which makes it difficult
for them to adapt to the new situation. In some cases, national legislation
may make it impossible to receive pensions or other means of support in the
absence of a certificate of death. Economic and social marginalization is
frequently the result.
b. Facts established
In keeping with the doctrine of the Commission outlined above, the
general principle is that in cases of disappearance in which there are sufficient
indicia of evidence, in the view of the Commission, that the detention was
presumably effectuated by State agents in the general context of an official
policy of disappearances, the Commission will presume that the victim was
disappeared by agents of the Peruvian State, unless that State has proven
In applying these considerations to the instant case, the Commission
observes with respect to the detention of the victims that the petitioner
alleges that Mr. Yone Cruz Ocalio was detained on February 24, 1991, by members
of the National Police, at the Tulumayo agricultural station, Aucayacu, province
of Leoncio Prado, department of Huánuco, Peru, and that he was later
taken to the Tulumayo military base.
In this respect, and based on the facts narrated by the petitioner
and all other evidentiary indicia--which include the initiatives taken and
remedies pursued domestically aimed at locating the victim and winning his
release, the reports prepared by the police and members of the military to
deny that the detention had been carried out by members of the police or military,
without the Peruvian State having carried out a judicial investigation, which
can be added to the circumstance that the detention occurred in 1991, when,
as the Commission has established, there was a systematic and selective practice
of forced disappearances carried out by agents of the Peruvian State, or at
least tolerated by the Peruvian State--the Commission concludes that it is
sufficiently enlightened to establish the veracity of the facts alleged with
respect to the victims detention.
Based on the foregoing, the Commission considers it true that the victim
was detained on February 24, 1991, by members of the National Police, at the
Tulumayo agricultural station, Aucayacu, province of Leoncio Prado,
department of Huánuco, Peru, from which he was apparently taken to the Tulumayo
Accordingly, and in keeping with the above-noted doctrine of the Commission,
the burden was on the Peruvian State to prove that it did not disappear Mr.
Cruz Ocalio. In this regard,
the Commission observes that the State did not set forth any evidence tending
to show that it did not disappear Mr. Cruz Ocalio; rather, it denied that
it had detained him.
Based on the reasons set forth above, the Commission concludes that
the Peruvian State, through members of the National Police, detained Mr. Yone
Cruz Ocalio on February 24, 1991, at the Tulumayo agricultural station, Aucayacu,
province of Leoncio Prado, department of Huánuco, Peru, from which
he was apparently taken to the Tulumayo military base, and that they later
proceeded to disappear him.
That detention and subsequent disappearance followed the characteristic
pattern: the detention of the
victim by military agents; an official denial of responsibility for the disappearance;
the failure of the public authorities to carry out an investigation into the
situation of the victim; the ineffectiveness of domestic remedies; the torture
and possible extrajudicial execution of the victim; and absolute impunity,
reinforced by the subsequent amnesty.
c. Violation of
the victims' human rights
The Commission now proceeds to analyze the specific violations by the
Peruvian State of the rights set forth in the Convention implicit in the disappearance
of Mr. Yone Cruz Ocalio.
to Personal Liberty (Article 7 of the Convention)
The American Convention establishes:
7. Right to Personal Liberty
Every person has the right to personal liberty and security.
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.
No one shall be subject to arbitrary arrest or imprisonment.
Anyone who is detained shall be informed of the reasons for his detention
and shall be promptly notified of the charge or charges against him.
Any person detained shall be brought promptly before a judge or other
officer authorized by law to exercise judicial power and shall be entitled
to trial within a reasonable time or to be released without prejudice to the
continuation of the proceedings. His release may be subject to guarantees
to assure his appearance for trial.
6. Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful. In States Parties whose laws provide that anyone who believes himself to be threatened with deprivation of his liberty is entitled to recourse to a competent court in order that it may decide on the lawfulness of such threat, this remedy may not be restricted or abolished. The interested party or another person in his behalf is entitled to seek these remedies.
No one shall be detained for debt. This principle shall not limit the
orders of a competent judicial authority issued for nonfulfillment of duties
A detention is arbitrary and illegal when not carried out for the reasons,
and according to the formalities, established by law; when carried out without
adherence to the standards established by law; and when it involves misuse
of the authority to arrest--in other words, when carried out for purposes
other than those envisaged and stipulated by law. The Commission has also
pointed out that detention for improper ends is, in itself, a form of penalty
without due process, or extralegal punishment, which violates the guarantee
of a fair trial.
In this case, Peruvian citizen Yone Cruz Ocalio was detained illegally
and arbitrarily by members of the Peruvian police.
It is necessary to recall the circumstances in Peru at that time, which
generally affected most of the Departments where detentions and disappearances
occurred. Continuous raids by armed groups had generated permanent unrest
in the local population. For that reason, a "state of exception"
had been declared in various Departments, which was, prima facie, justified
by the crisis faced by the Peruvian State in fighting terrorism. By virtue
of that state of emergency, in numerous Departments Article 2(20)(g) of the
1979 Constitution had been suspended, 
which meant that the military was legally empowered to detain a person without
a warrant from a competent judge, even if an individual was not being caught
Despite the prima facie legality of this measure, the security
forces are not thereby entitled, without restrictions, to detain citizens
arbitrarily. The suspension of the judicial warrant requirement for detention
does not mean that public officials are exempted from observing the legal
requirements for such detentions, nor does it annul jurisdictional controls
over the manner in which detentions are carried out.
The suspension of the right to personal liberty authorized in Article
27 of the American Convention on Human Rights can never be absolute. There
are basic principles at the heart of any democratic society that the security
forces must respect in order to carry out a detention, even in a state of
emergency. The legal prerequisites for detention are obligations that State
authorities must respect, in keeping with their international commitment under
the Convention to protect and respect human rights.
Secondly, in accordance with those principles, preventive detention
by the military or police must be designed solely to prevent the escape of
a person suspected of having committed a crime and thereby ensure his appearance
before a competent court, either for trial within a reasonable period of time
or for his release. No State may impose a sentence without a trial.In
a constitutional, democratic State in which the rule of law and the separation
of powers are respected, all penalties established by law should be imposed
by the judiciary after guilt has been established in a fair trial with all
the procedural guarantees. The existence of a state of emergency does not
authorize the State to disregard the presumption of innocence, nor does it
confer upon the security forces the right to exercise an arbitrary and unlimited
On this subject, Article 7(5) of the American Convention establishes
that "Any person detained shall be brought promptly before a judge or
other officer authorized by law to exercise judicial power and shall be entitled
to trial within a reasonable time or to be released...." Paragraph 6
of that article adds: "Anyone who is deprived of his liberty shall be
entitled to recourse to a competent court, in order that the court may decide
without delay on the lawfulness of his arrest or detention (...)". The
Commission has also stated that anyone deprived of his liberty must be kept
in an officially recognized detention center and brought, without delay, in
accordance with domestic legislation, before a competent judicial authority.
Should the authority fail to comply with this legal obligation, the State
is duty-bound to guarantee the detainees right to apply for an effective
judicial remedy to allow judicial verification of the lawfulness of his detention.
The Commission concludes that the Peruvian State is responsible for
violating the right to personal liberty and security by arbitrarily imprisoning
Mr. Yone Cruz Ocalino; for violating his right of recourse to a competent
judge or court that would rule on the lawfulness of his arrest; and, thereby,
for violating Article 7 of the American Convention on Human Rights.
to Humane Treatment (Article 5 of the Convention)
The American Convention establishes:
5. Right to Humane Treatment
1. Every person has the right to have his physical, mental, and moral integrity respected.
No one shall be subjected to torture or to cruel, inhuman, or degrading
punishment or treatment. All persons deprived of their liberty shall be treated
with respect for the inherent dignity of the human person.
Punishment shall not be extended to any person other than the criminal.
Accused persons shall, save in exceptional circumstances, be segregated
from convicted persons, and shall be subject to separate treatment appropriate
to their status as unconvicted persons.
Minors while subject to criminal proceedings shall be separated from
adults and brought before specialized tribunals, as speedily as possible,
so that they may be treated in accordance with their status as minors.
Punishments consisting of deprivation of liberty shall have as an essential
aim the reform and social readaptation of the prisoners.
Since forced disappearance involves violation of multiple rights, violation
of the right to humane treatment is implicit in the case of Mr. Yone Cruz
In this regard, the Court has stated that "prolonged isolation
and deprivation of communication are in themselves cruel and inhuman treatment,
harmful to the psychological and moral integrity of the person and a violation
of the right of any detainee to respect for his inherent dignity as a human
being. Such treatment, therefore, violates Article 5 of the Convention, which
recognizes the right to the integrity of the person....". 
Accordingly, the Commission, on the basis of the facts presented, is
convinced, by way of presumptive evidence, that Mr. Yone Cruz Ocalio was tortured. The circumstances in which the victim was detained,
kept hidden, isolated, and in solitary confinement, and his defenselessness
as a result of being denied and prevented from exercising any form of protection
or safeguards of his rights make it perfectly feasible for the armed forces
to have tortured the victim with a view to extracting information about subversive
groups or units. Accordingly, the Commission concludes that the Peruvian State
violated the rights guaranteed to the victim under Article 5 of the Convention.
to Life (Article 4 of the Convention)
The American Convention establishes:
4. Right to Life
1. Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.
In countries that have not abolished the death penalty, it may be imposed
only for the most serious crimes and pursuant to a final judgment rendered
by a competent court and in accordance with a law establishing such punishment,
enacted prior to the commission of the crime. The application of such punishment
shall not be extended to crimes to which it does not presently apply.
The death penalty shall not be reestablished in states that have abolished
In no case shall capital punishment be inflicted for political offenses
or related common crimes.
Capital punishment shall not be imposed upon persons who, at the time
the crime was committed, were under 18 years of age or over 70 years of age;
nor shall it be applied to pregnant women.
Every person condemned to death shall have the right to apply for amnesty,
pardon, or commutation of sentence, which may be granted in all cases. Capital
punishment shall not be imposed while such a petition is pending decision
by the competent authority.
The Inter-American Court of Human Rights has stated that the forced
disappearance of persons "often involves secret execution without trial,
followed by concealment of the body to eliminate any material evidence of
the crime and to ensure the impunity of those responsible. This is a flagrant
violation of the right to life, recognized in Article 4 of the Convention...".
The Court also ruled that the fact that a person has disappeared for seven
years creates a reasonable presumption that he or she was killed.
In the case of Mr. Yone Cruz Ocalio, it has been established his dissapearance
by State agents, and there is sufficient evidence to support the presumption
that he is dead--given that more than eight years have elapsed since his detention
and disappearance--and the presumption that those responsible are agents of
Therefore, the Commission finds that the Peruvian State violated the
victims right to life, a fundamental right protected under Article 4
of the Convention, which states that "Every person has the right to have
his life respected... No one shall be arbitrarily deprived of his life."
to Juridical Personality (Article 3 of the Convention)
The American Convention establishes:
3. Right to Juridical Personality
person has the right to recognition as a person before the law.
Article 3 of the American Convention on Human Rights establishes that
every person has the right to recognition as a person before the law. When
Mr. Yone Cruz Ocalio was detained and then "disappeared" by State
agents, he was excluded from the legal and institutional framework of the
Peruvian State. In that sense, the forced disappearance of a person constitutes
the negation of their very existence as human beings recognized as persons
before the law.
Thus, the Commission finds that Peru violated the victims right
to recognition as a person before the law, enshrined in Article 3 of the Convention.
to Judicial Protection (Article 25 of the Convention)
The American Convention establishes:
25. Right to Judicial Protection
Everyone has the right to simple and prompt recourse, or any other
effective recourse, to a competent court or tribunal for protection against
acts that violate his fundamental rights recognized by the constitution or
laws of the state concerned or by this Convention, even though such violation
may have been committed by persons acting in the course of their official
The States Parties undertake:
to ensure that any person claiming such remedy shall have his rights
determined by the competent authority provided for by the legal system of
to develop the possibilities of judicial remedy; and
c. to ensure that the competent authorities shall enforce such remedies when granted.
From the information provided by the parties, it is clear that the
Peruvian State has not complied with its obligation to investigate the facts
of this case and initiate judicial proceedings.
The Inter-American Court of Human Rights has stated that the principles
of international law "refer not only to the formal existence of such
remedies, but also to their adequacy and effectiveness, as shown by the exceptions
set out in Article 46(2)."
It has also made it clear that the failure to provide effective, not merely
formal, judicial remedies not only entails an exception to the rule that domestic
remedies must be exhausted, but also constitutes a violation of Article 25
of the Convention.
Peruvian law establishes that in all cases of offenses against the
public order, the Office of the Attorney General represents both the State
and the victim. The Office of the Attorney General is obligated to participate
in investigating and prosecuting the crime. Consequently, it should promote
and undertake whatever action may be required (provision of evidence, inspections,
or any other) to establish the veracity of the complaint, to identify those
responsible, if applicable, and to bring criminal charges against them.
The jurisprudence of the Inter-American Court of Human Rights confirms
the provisions of domestic law when it refers to the obligation of States
and says, with regard to the previous point, that "The State has a legal
duty (...) to carry out a serious investigation of violations committed within
its jurisdiction, to identify those responsible, to impose the appropriate
punishment and to ensure the victim adequate compensation."
The State must not evade, under any pretext, its duty to investigate
a case involving violation of fundamental human rights. The Court says as
much when it states that "the investigation... must be undertaken in
a serious manner and not as a mere formality preordained to be ineffective.
An investigation must have an objective and be assumed by the State as its
own legal duty, not as a step taken by private interests that depends upon
the initiative of the... family... without an effective search for the truth
by the government."
The right to be brought before a competent judge is a fundamental safeguard
for the rights of any detainee. As the Inter-American Court of Human Rights
has stated, judicial supervision
of detention, through habeas corpus,
"performs a vital role in ensuring that a persons life and
physical integrity are respected, in preventing his disappearance or the keeping
of his whereabouts secret and in protecting him against torture or other cruel,
inhumane, or degrading punishment or treatment."
Precisely for that reason, Article 27 of the American Convention on
Human Rights has established that essential judicial guarantees safeguarding
certain fundamental rights cannot be suspended. As the Inter-American Court
of Human Rights has ruled, "from Article 27(1), moreover, comes the general
requirement that in any state of emergency there be appropriate means to control
the measures taken, so that they are proportionate to the needs and do not
exceed the strict limits imposed by the Convention or derived from it."
The Court has also stated that the judicial nature of those means presupposes
"the active involvement of an independent and impartial judicial body
having the power to pass on the lawfulness of measures adopted in a state
of emergency and that "it must
also be understood that the declaration of a state of emergency" whatever
its breadth or denomination in internal law "cannot entail the suppression
or ineffectiveness of the judicial guarantees that the Convention requires
States Parties to establish for the protection of the rights not subject to
derogation or suspension by the state of emergency."
According to the Inter-American Court of Human Rights, this also includes
the right to a fair trial enshrined in Article 8, which "includes the
prerequisites necessary to ensure the adequate protection of those persons
whose rights or obligations are pending judicial determination."
The Court concluded that "the principles of due process of law cannot
be suspended in states of exception insofar as they are necessary conditions
for the procedural institutions regulated by the Convention to be considered
Such a lack of access to effective domestic remedies against acts that
violate fundamental rights constitute a violation by the Peruvian State of
Articles 8 and 25 of the Convention.
to respect and guarantee rights
In this case, it has been shown that the Peruvian State failed to comply
with the obligation, set forth in Article 1(1) of the Convention, "to
respect the rights and freedoms recognized herein and to ensure to all persons
subject to their jurisdiction the free and full exercise of those rights and
freedoms," because it violated rights established in Articles 5, 4, 3,
7, 8 and 25 of the Convention.
The first obligation of States, under Article 1(1) of the Convention,
is to respect the rights and freedoms of all persons subject to their jurisdiction.
With regard to this obligation, the Court ruled that "under international
law a State is responsible for the acts of its agents
and for their
omissions, even when those agents act outside the sphere of their authority
or violate internal law." It
ruled also that "any violation of rights recognized by the Convention
carried out by an act of public authority or by persons who use their position
of authority is imputable to the State." 
The Commission concludes that the forced disappearance of Mr. Yone
Cruz Ocalio constitutes an act perpetrated by agents of public authority,
and that, therefore, the Peruvian State violated the rights of that victim,
enshrined in Article 1(1) of the Convention, in relation to violations of
Articles 5, 4, 3, 7, 8 and 25 of the Convention.
The second obligation set forth in Article 1(1) is to ensure free and
full exercise of the rights and freedoms recognized in the Convention. On
this the Courts jurisprudence establishes that: "This obligation
implies the duty of the States Parties to organize the governmental apparatus,
and, in general, all the structures through which public power is exercised,
so that they are capable of juridically ensuring the free and full enjoyment
of human rights. As a consequence of this obligation, States must prevent,
investigate, and punish any violation of the rights recognized by the Convention
In the event of a "forced disappearance", the State is obligated
to ascertain the whereabouts and situation of the victim, punish those responsible,
and make reparation to the family members. In the case at hand, these obligations
have not been met. Therefore, the Commission concludes that the Peruvian State
has violated Article 1(1) of the Convention by failing to ensure the exercise
of the rights and guarantees of the individual involved.
V. PROCEEDINGS SUBSEQUENT
TO REPORT Nº 135/99
The Commission adopted Report Nº 135/99 (Article 50) in this case on
November 19, 1999, during its 105th session.
That Report, with the Commission's recommendations, was transmitted
to the Peruvian State on December 20th, 1999; the State was given
two months to carry out the recommendations, counted from the date of transmittal
of the Report.
By Note No. 7-5-M/193 of April 17, 2000, the State forwarded to the
Commission its considerations regarding Report No. 135/99 and stated its disagreement
with matters of fact and law reflected in that report, and with the Commissions
conclusion. The State added that
it considers that it is not viable to carry out a new investigation
into this case, and even less viable to punish the persons responsible, who
have yet to be singled out and, logically, it would not be appropriate to
make any reparation to the family members of Yone Cruz Ocalio, especially
if the Government has shown that the forces of order are not responsible for
the alleged detention-disappearance of said citizen, without prejudice to
continuing to undertake the pertinent investigations in this regard.
The Commission refrains from analyzing the reiterations of the Peruvian
State in response to arguments made prior to the adoption of Report Nº 135/99,
and its expressions of disagreement with that Report, for pursuant to Article
51(1) of the Convention, what the Commission must determine at this stage
of the procedure is whether the State did or did not resolve the matter.
In this respect, the IACHR observes that the Peruvian State has not
carried out any of the recommendations made to it by the Commission in its
Report Nº 135/99.
The Commission concludes that the Peruvian State, through members of
the National Police, detained Mr. Yone Cruz Ocalio on February 24, 1991, at
the Tulumayo agricultural station, Aucayacu, province of Leoncio Prado,
department of Huánuco, Peru, from which he was apparently taken to the Tulumayo
military base, and later disappeared him.
Accordingly, the Peruvian State is responsible for the forced disappearance
of Mr. Yone Cruz Ocalio; consequently, Peru violated the right to liberty
(Article 7), the right to humane treatment (Article 5), the right to life (Article 4), the right to juridical personality (Article 3),
and the right to effective judicial recourse (Article 25), set forth in the
American Convention on Human Rights.
In addition, the Peruvian State breached its general obligation to
respect and ensure the exercise of these rights enshrined in the Convention,
as set forth at Article 1(1) of the Convention.
on the foregoing analysis and conclusion,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS REITERATES THE FOLLOWING RECOMMENDATIONS
TO THE PERUVIAN STATE:
That it carry out an exhaustive, impartial, and effective investigation
to determine the circumstances of the forced disappearance of Mr. Yone Cruz
Ocalio, and that it punish the persons responsible, in keeping with Peruvian
That it void any domestic measure, legislative or otherwise, that tends
to impede the investigation, prosecution, and punishment of the persons responsible
for the detention and forced disappearance of Mr.Yone Cruz Ocalio.
Accordingly, the State should nullify Laws 26.479 and 26.492.
That it adopt the measures required for the family members of
Mr. Yone Cruz Ocalio to receive adequate and timely reparation for
the violations established herein.
On October 4, 2000, the Commission transmitted Report 58/00, whose
text is the foregoing, to the Peruvian State and the petitioner, pursuant
to Article 51(2) of the Convention, and gave the State an additional time
to comply with the foregoing recommendations.
On November 20, 2000, Peru forwarded a communication to the Commission
in which it stated that the Peruvian State ... is designing a comprehensive
solution to cases affected by this problem. To this end, the State, and the
opposition political groups and representatives of civil society, in the framework
of the Mesa de Diálogo sponsored by the OAS, are holding conversations
aimed at designing and implementing a National Reconciliation policy, which
will include, among others, issues such as that which is the subject of this
case. Nonetheless, in that
communication the State did not show that it had carried out the Commissions
According to the above considerations, and Articles 51(3) of the American
Convention and 48 of the Commissions Regulations, the Commission decides
to reiterate the conclusion and recommendations set forth in chapters VI and
VII above; to make public the present report and include it in its Annual
Report to the OAS General Assembly. The Commission, according to the norms
contained in the instruments which govern its mandate, will continue evaluating
the measures adopted by the Peruvian State with respect to the above recommendations
until they have been complied with by the Peruvian State.
Done and signed in the city of Washington, D.C.,
on the 4th day of the month of December, 2000 (Signed): Chairman; Claudio
Grossman, First Vice-Chairman; Juan Méndez, Second Vice-Chairman; Marta Altolaguirre,
Commissioners:, Hélio Bicudo, Robert K. Goldman, Peter Laurie, and Julio Prado
The Peruvian State deposited the instrument of ratification of the American
Convention on July 28, 1978.
IACHR, Report Nº 51/99, Case 10.471 and others (Peru), Annual Report 1998,
para. 58 to 63. See also, IACHR, Reports Nos. 52/99, 53/99, 54/99, 55/99,
56/99, and 57/99 (Peru), Annual Report 1998.
IACHR, Report Nº 51/99, Cases 10.471 and others (Peru), Annual Report
1998, para. 68 to 95. See also, IACHR, Reports Nos. 52/99, 53/99, 54/99,
55/99, 56/99, and 57/99 (Peru), Annual Report 1998.
As mentioned at paragraph 30, supra,
the Commission, citing doctrine of the Inter-American Court, has said
that when the existence of a policy of disappearances sponsored or tolerated
by the Government has been shown, the disappearance of a particular individual
may be proved through circumstantial or indirect evidence or by logical
inference; otherwise it would be impossible to prove that an individual
has been disappeared.
(Inter-American Court of Human Rights, Case of Velásquez Rodríguez,
Judgment of July 29, 1988, para. 124).
According to which every person has the right:
Article 20: .. to
personal liberty and security. Consequently, (g) No one shall be detained
except with a justified, written order or by police officers in flagrante
The Commission has established that: The rationale behind this guarantee
is that no person should be punished without a prior trial which includes
a charge, the opportunity to defend oneself, and a sentence. All these
stages must be completed within a reasonable time. The time limit is intended
to protect the accused with respect to his or her fundamental right to
personal liberty, as well as the accused personal security against being
the object of an unjustified procedural risk. (IACHR,
Report Nº 12-96, para. 76 (Case 11.245, Argentina), published in
the 1995 Annual Report.
Inter-American Court of Human Rights, Velásquez Rodríguez case,
op.cit., paragraph 156.
Idem, paragraphs 157 and 188.
Article 1(2) of the declaration regarding protection of persons from forced
disappearances defines disappearance as a violation of the norms of international
law guaranteeing every human being the right to recognition as a person
before the law. UN General Assembly resolution 47/133, december 18, 1992.
Inter-American Court of Human Rights, Velásquez Rodríguez case, op.cit.,
Inter-American Court of Human Rights, Velásquez Rodríguez case. Preliminary
objections. Judgment of June 24, 1987, par. 91.
Inter-American Court of Human Rights, Velásquez Rodríguez case, op.cit.,
Idem, paragraph 177.
Inter-American Court of Human Rights, Habeas Corpus in Emergency Situations
(Articles 27(2), 25(1) and 7(6), American Convention on Human Rights).
Advisory Opinion OC-8/87 of January 30, 1987. Series
A Nº 8, paragraph 35.
Inter-American Court of Human Rights, Judicial Guarantees in State of
Emergency (Articles 27(2), 25 and 8 of the American Convention on Human
Rights), Advisory Opinion OC-9/87 of October 6, 1987, Series A Nº 9, paragraph
Inter-American Court of Human Rights, Habeas Corpus in Emergency Situations,
op.cit., paragraph 30.
Inter-American Court of Human Rights, Judicial Gurantees in State of
Emergency, op.cit., paragraph 25.
Idem, paragraph 28.
Ibidem, paragraph 30.
Inter-American Court of Human Rights, Velásquez Rodríguez case, op.cit.,
paragraphs 170 and 172.
Idem, paragraph 166.