REPORT No. 56/98 CASES: 10.824 (EUDALIO LORENZO MANRIQUE) 11.044 (PEDRO HERMINIO YAURI BUSTAMANTE) 11.124 (EULOGIO VIERA ESTRADA) 11.125 (HÉCTOR ESTEBAN MEDINA BONET) 11.175 (JUSTINIANO NAJARRO RUA) PERU April 13, 1999
1. In petitions received by the Inter-American Commission on Human Rights (hereinafter "the Commission") between February 24, 1991, and July 23, 1992, it was reported that the Republic of Peru (hereinafter "Peru" or "the State") violated the rights of Eudalio Lorenzo Manrique, Pedro Herminio Yauri Bustamante, Eulogio Viera Estrada, Héctor Esteban Medina Bonet, and Justiniano Najarro Rua when it had them arrested by police in the Department of Lima and subsequently caused them to disappear. The petitioners allege that with these disappearances the State deprived the above-mentioned victims of the right to life and other rights established in the American Convention on Human Rights (hereinafter "the Convention").1
II. FACTS OF THE PETITIONS, PROCESSING, POSITION OF THE STATE
A. Detention-Disappearance of Eudalio Lorenzo Manrique (Case 10.824)
2. Eudalio Lorenzo Manrique, a 37 year-old, born and resident in the Acas District rural community, was married to Graciela Luz Ramírez de Lorenzo and had four under age children. Mr. Lorenzo Manrique worked as a food vendor at stall Nº 12 in the Barranca Central Market, for which he had been obtained a license from the corresponding Provincial Council, and he was known and respected by the authorities and members of his community as an honorable man.
3. On May 23, 1990, at 2:00 a.m., a group of six policemen, presumably from the Special Operations Bureau (DOES) of the National Police, entered the home of the victim and proceeded to search the entire house exhaustively. Even though they found nothing, they arrested Mr. Lorenzo Manrique in any case and took him by force from his home in the presence of his wife, Graciela Luz Ramírez de Lorenzo.
4. As background to the arrest of the victim, the petition mentions that in the same community, earlier in the day, at 10:00 a.m., Celestino Gabino Martínez and Aniceto Lorenzo Fabián had been arrested and severely tortured in an attempt to obtain information about the location of Jesús Lorenzo Bailón, an alleged subversive. To stop the torture, they indicated the home of the Lorenzo family at random, and that was why the police had arrested Eudalio Lorenzo Manrique.
5. Members of the victims family initiated numerous actions with local and national authorities in an attempt to obtain his release. In most of these actions they were assisted by the nongovernmental organization APRODEH. Among the steps taken, on May 31, 1990, his wife, Graciela Luz Ramírez de Lorenzo filed a complaint with the Barranca Provincial District Attorney and later appealed to the Minister of the Interior. Despite all these efforts, the victim never appeared.
Processing by the Commission
6. The Commission opened the case on March 14, 1991, transmitted the pertinent parts of the petition to the Peruvian State, and asked it to provide information in regard to the facts reported. The State responded on September 19, 1991.
7. On June 29, 1998, the Commission requested both parties to provide it with up-to-date information on the case and told them it was at their disposal to try to reach a friendly settlement of the matter. On July 24, 1998, the State reiterated its previous arguments and indicated that it did not desire to initiate a friendly settlement procedure. The petitioner did not respond.
Position of the State
8. The State contends that the victims were not arrested by military forces.
B. Detention-Disappearance of Pedro Herminio Yauri Bustamante - Case 11.044
9. Pedro Herminio Yauri Bustamante, 33 years old, was a journalist and graduate of the Huacho University School of Sociology. He was married to Liliana Oca de Yauri and had two daughters, 3 and 2 years of age. At the time of the events reported below, Mr. Yauri Bustamante directed a radio program at Radio Universal in the city of Huacho.
10. In the early morning of June 24, 1992, a group of six or seven men dressed as commandos who identified themselves as members of DINCOTE (Peruvian Anti-Terrorist Police Bureau) entered the "Huacho Casino" or social club located at 261 Saenz Peña Street in Huacho. After threatening the clubs guards at gunpoint, they proceeded to conduct a thorough search of the place. From there they jumped onto the roof of the house next door, which was the home of Mr. Yauri Bustamante and his family. The employees of the club saw a cherry-red Nissan double-cabin pickup truck parked in front of the club.
11. At about 2:00 a.m. that same day, June 24, 1992, five of the police who had entered the club broke into the home of Mr. Yauri Bustamante, located at 279 Saenz Peña Street in the district and province of Huacho, department of Lima. They tied up Anastacio Yauri Leandro, father of the victim, and proceeded to cover his head, at the same time hitting him with their guns. Meanwhile, Pedro Herminio Yauri Bustamante was being tied up and led to the cherry-red Nissan truck. The police got in the truck as well, and it left for an unknown destination.
12. Four of the men who entered the victims home were wearing uniforms with green jackets and berets. One of them was wearing civilian clothes and had his face covered with a ski mask. They were all tall, heavyset, and armed with submachine guns.
13. Members of the victims family, especially his father, Anastacio Yauri Leandro, and other institutions such as the Sindicato de Trabajadores de la Comunicación Social de Huacho [Huacho Mass Media Workers Union] and the Peruvian Office for the Protection of Journalists Rights (FIP-PERÚ), initiated various actions with local and national authorities in an attempt to obtain his release.
14. Members of the victims family also initiated numerous other actions with local and national authorities in their efforts to secure his release. In most of these actions they were assisted by the nongovernmental organization CEAPAZ. Among the steps taken, on June 24, 1992, they filed for a writ of habeas corpus with the Huacho penal judge. They also reported the events to Provincial District Attorney on duty at the time. On July 7, 1992, they addressed the Minister of the Interior. On that same date the father of the victim, Anastacio Yauri Leandro, reported the events in a hearing before the Special Attorney in the Office for the Defense of the People and Human Rights (Ombudsmans Office). Despite all their efforts, the victim never appeared, although there was a false alarm that his body had been found.
Processing by the Commission
15. On July 28, 1992, the Commission opened the case, transmitted the pertinent parts of the petition to the Peruvian State, and asked it to provide information in regard to the facts reported. The State responded on October 8, 1992, and submitted additional communications on October 15, 1992, November 29, 1992, March 22, 1994, and November 13, 1995.
16. On June 29, 1998, the Commission requested both parties to provide it with up-to-date information on the case and told them it was at their disposal to try to reach a friendly settlement of the matter. On July 24, 1998, the State reiterated its previous arguments and indicated that it did not desire to initiate a friendly settlement procedure. The petitioner did not respond.
Position of the State
17. The State maintains that, after several investigations, it was established that the victim was not arrested by either civilian police or military forces. It also mentioned that the victim had been investigated twice for terrorism.
C. Detention Disappearance of Eulogio Viera Estrada - Case 11.124
18. Eulogio Viera Estrada, 40 years old, was married to Libia María Gómez de Viera, and they had a son named Edwin. The family lived in the José Carlos Mariátegui Community, Mz. H10, Lot 29, in the district of San Juan de Lurigancho, department of Lima. During 1986-1988 Mr. Viera Estrada had been Secretary of the aforementioned José Carlos Mariátegui Community, and he had also been the subject of a confidential police investigation.
19. On September 12, 1992, Eulogio Viera Estrada and his wife returned home at around 11:00 p.m. after having attended a talk at their son Edwins school, Colegio Fe y Alegría, in connection with preparing him for his first communion. At about 11:30 p.m., as the couple were getting ready to go to bed, there was a knock on the front door. Mrs. Gómez de Viera asked who was there, and the people at the door answered that they wanted to talk with her husband. When Mr. Viera Estrada responded, they told him they were the police and they wanted to talk with him.
20. Mr. Viera Estrada asked him to wait a moment while he changed his clothes. The police thought he was taking too long, and they asked him to hurry up, while one of them headed for the roof of the house to make certain the victim did not escape. On hearing that the police were going to climb on the roof, Mrs. Gómez de Viera opened the door and told the police they had no reason to climb on the roof because her husband was a law-abiding man. At that point four of the police entered the house and, pushing the victims wife aside, they posted themselves on each side, cocked their pistols, and waited for the victim to come out.
21. Eulogio Viera Estrada then came out of his bedroom and asked the police to identify themselves. They refused to do so and proceeded to point a pistol at his head and drag him by force to the street. They told his wife that they were going to the police station and left with the victim.
22. In her desperation, Mrs. Gómez de Viera asked her neighbors for help, and two of them, named Ramón and Pineda, accompanied her to the main avenue, Canto Grande, but they were unable to catch up with the police and the victim. The victims wife saw a white van in the distance, which her husband was probably traveling in.
23. The day after the arrest, members of the victims family went to the police station and to the Canto Grande plainclothes police station, where they were informed that the victim was not being held in any of their units. They also made attempts at DINCOTE, DAS, Narcotics, State Security, and DIVISE, and they were unable to find the victim in any of these places.
24. Members of the victims family also initiated numerous other actions with local and national authorities in their efforts to secure his release. In most of these actions they were assisted by the nongovernmental organization APRODEH. Among the steps taken, on September 15, 1992, the wife of the victim reported the events to the District Attorney on duty for criminal cases, and on that same date she also filed a petition for the guarantee of rights with the prefecture of Lima. Despite all their efforts, the victim never appeared.
Processing by the Commission
25. On February 12, 1993, the Commission opened the case, transmitted the pertinent parts of the petition to the Peruvian State, and asked it to provide information in regard to the facts reported. On April 16, 1993, the petitioner submitted more information. The State responded on July 26, 1993, and on August 18, 1993, it provided additional information.
26. On June 29, 1998, the Commission requested both parties to provide up-to-date information on the case and told them it was at their disposal to try to reach a friendly settlement of the matter. On July 24, 1998, the State reiterated its arguments, questioned the admissibility of the case, and indicated that it did not desire to initiate a friendly settlement procedure. The petitioner did not respond.
Position of the State
27. The State contends that the victim had a record of terrorism and that it is known that he directed a community school for the Shining Path (Sendero Luminoso). It also states that Eulogio Viera Estrada was not arrested by any police force.
D. Detention-Disappearance of Héctor Medina Bonet - Case 11.125
28. Hector Medina Bonet, 34 years of age, lived in the José Carlos Mariátegui Community, Mz. I, Lot 15, Canto Grande, district of San Juan de Lurigancho, department of Lima. He worked in civil construction, and with his earnings he helped to support his mother, Emilia Bonet Cornejo.
29. On September 12, 1992, at 8:30 p.m., a white vehicle without license plates stopped near the home of Mr. Medina Bonet, and four armed individuals dressed in sport clothes got out of the vehicle and approached the house of the victim.
30. The individuals broke down the front door of the home of Mr. Medina Bonet and proceeded to arrest him, pushing him by force into the car they had come in. They then drove in the direction of the main avenue, Canto Grande.
31. A few minutes after the arrest, the victims mother, Emilia Bonet Cornejo, who lived nearby, was informed of the event. When she arrived at her sons house, she saw that the door was broken. That same night the victims mother went to the Canto Grande Technical (plainclothes) Police Station, located in the San Carlos neighborhood, where they informed her that her son was not being held there.
32. Héctor Medina Bonet was a friend of Eulogio Viera Estrada, who was arrested the same day by the same number of individuals as reported in Section C of the present chapter under case 11.124.
33. Members of the victims family, especially his mother, Emilia Bonet Cornejo, initiated numerous actions with local and national authorities in an attempt to obtain his release. In most of these actions they were assisted by the nongovernmental organization APRODEH. Among the steps taken, on September 17, 1992, Mrs. Bonet Cornejo reported the events to the Provincial Attorney General on duty. Despite all their efforts, the victim never appeared.
Procedure before the Commission
34. On February 17, 1993, the Commission opened the case, transmitted the pertinent parts of the petition to the Peruvian State, and asked it to provide information in regard to the facts reported. The State responded on July 26, 1993, and on August 11, 1993, it submitted additional information.
35. On June 29, 1998, the Commission requested both parties to provide up-to-date information on the case and told them it was at their disposal to try to reach a friendly settlement of the matter. On July 24, 1998, the State reiterated its arguments, questioned the admissibility of the case, and indicated that it did not desire to initiate a friendly settlement procedure. The petitioner did not respond.
Position of the State
36. The State contends that the victim was not arrested by either police or military forces.
E. Detention-Disappearance of Justiniano Najarro Rua (Case 11.175)
37. Justiniano Najarro Rua, 50 years old, was a retired teacher and former professor at San Cristóbal National University in Huamanga. He was married to Julia Saenz Tito de Najarro and had a daughter named Vanesa Najarro Saenz. Mr. Najarro Rua lived with his family in the Uranmarca Cooperative, Lot 14, Mz. G, San Juan de Miraflores, Lima, where he also operated a bakery on the property.
38. On March 30, 1993, three members of the Sendero Luminoso [Shining Path] had assassinated a noncommissioned officer in the National Intelligence Service of the Peruvian National Police, leaving a sign that said "Death to those who commit genocide." A bag containing bread had also been left next to the body. The event occurred some three blocks from the home of Mr. Najarro Rua.
39. The police arrived at the scene, and when they found the sack of bread, they went to the home of Justiniano Najarro Rua, where the bakery mentioned above was located. Despite having explained to the police that the bread found next to the dead officials body was not the kind that was made in his bakery, the police interrogated Justiniano Najarro Rua and took photographs of his house.
40. On June 14, 1993, Mr. Najarro Rua received a summons from the National Anti-Terrorist Bureau (DINCOTE) to appear at its Delta 3 Unit and make a declaration with regard to a confidential investigation that was being conducted.
41. Mr. Najarro Rua appeared on June 16, 1993, to make the requested declaration. He was seen by Lieutenant PNP Terrones, who took down the declaration and told him that the police had been told that C. Feliciano, an alleged terrorist, was spending nights at his home. After the declaration was done, Lieutenant Terrones told Mr. Najarro Rua that the suspicions they had had against him had been cleared up and that he did not need to worry because the police would not be bothering him again.
42. On July 6, 1993, in the afternoon, Mr. Najarro Rua was returning home from the market with his nephew, a minor, when suddenly they were intercepted by two armed individuals who, after identifying themselves, arrested them, shoved them into a light blue Volkswagen, and departed for an unknown destination.
43. Mr. Najarro Ruas nephew, who was released a few hours later, reported that the two of them had been taken to a place where he had been tortured while he was asked about the supposed terrorist activities of his uncle. At the same time the nephew could hear his uncle screaming from pain.
44. Members of the victims family, especially his wife, Julia Saenz Tito de Najarro, his daughter, Vanesa Najarro Saenz, and his brother, Angel Najarro Rua, initiated numerous actions with local and national authorities in an attempt to obtain his release. In most of these actions they were assisted by the nongovernmental organization APRODEH. Among the steps taken, appeals were made to the President of the Human Rights Commission of the Constituent Assembly, and the events were reported to the VII Region of the Peruvian National Police. Despite all their efforts, the victim never appeared.
Processing by the Commission
45. The Commission opened the case on July 29, 1993, transmitted the pertinent parts of the petition to the Peruvian State, and requested it to provide information in regard to the facts reported. The State responded on January 10, 1994.
46. On June 29, 1998, the Commission requested both parties to provide up-to-date information on the case and told them it was at their disposal to try to reach a friendly settlement of the matter. On July 24, 1998, the State reiterated its arguments, questioned the admissibility of the case, and indicated that it did not desire to initiate a friendly settlement procedure. The petitioner did not respond.
Position of the State
47. The State contends that the victim was not arrested by either police or military forces.
III. FRIENDLY SETTLEMENT
48. As explained earlier with regard to the processing of all the cases analyzed here, the Commission, in accordance with the provisions of Article 48(1)(f) of the Convention, placed itself at the disposal of the parties to assist them in seeking a friendly settlement based on respect for the human rights recognized in the Convention. However, for the reasons we have referred to above, that option was not pursued.
IV. COMPETENCE OF THE COMMISSION
49. The Commission is competent to review the above petitions. The petitioners have the legal standing to present their case and have complained of failures by agents of a State Party to comply with provisions of the Convention. The events alleged by the petitioners took place at a time when the obligation to respect and guarantee the rights established in the Convention was already in force for the Peruvian State.2
V. ADMISSIBILITY OF THE SPECIFIC CASES
50. Given that the Commission is competent to hear these cases--in other words, the petitions under review meet the basic requirements for the Commission's international function of ruling on allegations of human rights violations the Commission will now proceed to determine the admissibility of the cases under review, according to the provisions of Articles 46 and 47 of the Convention.
A. Exhaustion of domestic remedies
51. 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 Lima, the Special Attorney for Human Rights in Lima, 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.
52. 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.
53. The fact that, during the early stages of the proceedings, the State did not claim failure to exhaust domestic remedies in virtually any of the cases would be sufficient grounds for the Commission to find that the requirement established in Article 46(1)(a) of the Convention has been met.
54. Nevertheless, the 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."3 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.4
55. 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,5 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.6
56. 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,7 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. Nevertheless, the Commission observes that, in these cases, such efforts and remedies at the domestic level were attempted to no avail. Accordingly, the Commission finds that the admissibility requirement relating to exhaustion of domestic remedies has been met in the cases at hand.
B. Form requirements
57. The petitions are in proper legal form, as established in Article 46(1)(d) of the Convention.
C. Duplication of procedures and resubmission of petition previously examined
58. Since the State has not put forward any argument in this regard, the understanding of the Commission is that the questions raised in the petitions are not pending of settlement in any other international proceedings and are not identical in substance to petitions previously examined by this Commission or by another international organization. Thus it finds that the requirements set forth in Articles 46(1)(c) and 47(1)(d) of the Convention have also been met.
D. Basis for the petitions
59. The Commission finds that, in principle, the complaints of the petitioners refer to events that could constitute violations of rights guaranteed under the Convention. Since there is no evidence that the petitions are either manifestly groundless or out of order, the Commission finds that the requirements of Articles 47(b) and 47(c) of the Convention have been met.
60. For the foregoing reasons, the Commission finds that the cases under review are admissible.
VI. EXAMINATION OF THE MERITS
A. Disappearances in Peru
Disappearances brought about by the State
61. As established earlier, 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.
62. 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."8 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.
63. 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,9 which empower the Commission to weigh the evidence freely and to determine the amount of proof necessary to support the judgment.10
64. The modus operandi used, according to the petitions received by the Commission, in the arrests and disappearances in the cases in question, involving Messrs. Eudalio Lorenzo Manrique, Pedro Herminio Yauri Bustamante, Eulogio Viera Estrada, Héctor Esteban Medina Bonet, and Justiniano Najarro Rua, shows an overall pattern of behavior that can be considered admissible evidence of a systematic practice of disappearances.
65. 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.11 Subsequently, the Commission has continued to write reports on the matter.12 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 1991.13 The large number of complaints of this type is a clear indication, in the Commissions view, that disappearances in Peru followed an official pattern devised and carried out in a systematic manner.
66. 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 late1982, 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.14
67. 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.15 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 1992.16 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.
68. 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.
B. Perpetration of the disappearances
69. 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
70. 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.
71. 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.
72. 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.
73. 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.
74. 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
75. 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.17
76. A variation on this practice consisted of the authorities alleging that the victim had been released and even producing documents to show this, sometimes with a forgery of the victims signature, others with his or her real signature obtained under torture, when in fact the release had never taken place.
Torture and extrajudicial execution of detainees
77. 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
78. 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.
79. Although the Commission has been told that both laws can be rendered inapplicable by Peruvian judges, through what is known as their "broad powers" to rule on the constitutionality of laws--provided for in Article 138 of the Peruvian Constitution--the Commission considers the aforesaid laws an invalid attempt to legalize the impunity that existed in practice with regard to forced disappearances and other serious offenses committed by agents of the State. For example, the Commission has learned that the judges of the Constitutional Court, who were removed by the Congress, invoked that same Article 138 of the Constitution in their December 27, 1996, finding that Act No. 26.657 did not apply to President Alberto Fujimori.
C. The burden of proof regarding disappearances
80. The general principle is that, in cases of disappearance in which, in the Commissions view,18 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.
81. Thus it is not incumbent upon the petitioners to prove that the victims have disappeared, because it may be assumed, for lack of proof to the contrary, that the Peruvian State is responsible for the disappearance of any person it has detained. This is even more important in view of the aforementioned government practice of causing disappearances. It is up to the State to prove that it was not its agents who brought about the disappearance of the victims.19
82. Indeed, the "policy of disappearances, sponsored or tolerated by the Government, is designed to conceal and destroy evidence of disappearances"20. 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."21 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.22
83. The Commission has explained in this regard that when there is proof of the existence of a policy of disappearances sponsored or tolerated by the Government, it is possible, using circumstantial or indirect evidence, or through relevant logical inference, to prove the disappearance of a specific individual when that would otherwise be impossible given the link between that disappearance and the overall policy.23
84. More recently, the Commission has also determined that:
The burden of proof lies with the State, because when the State holds a person in detention and under its exclusive control, it becomes the guarantor of that persons safety and rights. In addition, the State has exclusive control over information or evidence regarding the fate of the detained person. This is particularly true in a disappearance case where, by definition, the family members of the victim or other interested persons are unable to learn about the fate of the victim.24
85. This establishes the inversion of the burden of proof for cases of disappearance in Peru and the effects of that inversion on cases being heard by the Commission.
D. Considerations relating to forced disappearances
86. The General Assembly of the Organization of American States (OAS) has called the practice of the forced or involuntary disappearance of persons a crime against humanity that strikes against the fundamental rights of the human individual, such as personal liberty and well-being, the right to proper judicial protection and due process, and even the right to life.25 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 Persons26 as a means of preventing and punishing the forced disappearance of persons in our Hemisphere.
87. The Commission has affirmed, in relation to the forced disappearance of persons, that:
This procedure is cruel and inhuman. ... [It] not only constitutes an arbitrary deprivation of freedom but also a serious danger to the personal integrity and safety and to even the very life of the victim. It leaves the victim totally defenseless, violating the rights to a fair trial, to protection against arbitrary arrest, and to due process.27
88. The UN Working Group on Enforced or Involuntary Disappearances has affirmed that the forced or involuntary disappearance of a person is a particularly odious violation of human rights, and is
a doubly paralyzing form of suffering: for the victims, frequently tortured and in constant fear for their lives, and for their family members, ignorant of the fate of their loved ones, their emotions alternating between hope and despair, wondering and waiting, sometimes for years, for news that may never come. The victims are well aware that their families do not know what has become of them and that the chances are slim that anyone will come to their aid. Having been removed from the protective precinct of the law and "disappeared" from society, they are in fact deprived of all their rights and are at the mercy of their captors. If death is not the final outcome and they are eventually released from the nightmare, the victims may suffer for a long time from the physical and psychological consequences of this form of dehumanization and from the brutality and torture which often accompany it.
The family and friends of disappeared persons experience slow mental torture, not knowing whether the victim is still alive and, if so, where he or she is being held, under what conditions, and in what state of health. Aware, furthermore, that they too are threatened; that they may suffer the same fate themselves, and that to search for the truth may expose them to even greater danger.
The familys distress is frequently compounded by the material consequences resulting from the disappearance. The missing person is often the mainstay of the familys finances. He or she may be the only member of the family able to cultivate the crops or run the family business. The emotional upheaval is thus exacerbated by material deprivation, made more acute by the costs incurred should they decide to undertake a search. Furthermore, they do not know when--if ever--their loved one is going to return, which makes it difficult for them to adapt to the new situation. In some cases, national legislation may make it impossible to receive pensions or other means of support in the absence of a certificate of death. Economic and social marginalization is frequently the result.28
E. Established facts
89. As established in the previous section, the general principle is that, in cases of disappearance in which there is sufficient evidence, in the Commissions judgment, that the detention was presumably carried out by State agents in the overall framework of an official policy of disappearances, the Commission shall presume that the victim was "disappeared" by agents of the Peruvian State, unless that State has proven the contrary.
90. Thus, from the facts of the case according to the petitioners, from the testimony of eyewitnesses to the detentions, and from the remaining evidence in the respective files, including copies of the domestic procedures and appeals undertaken to locate and secure the release of the victims, as well as copies of the reports prepared by the police itself, denying that the arrests were carried out by military personnel, in addition to the fact that those detentions occurred in the Department of Lima, where anti-subversive activities were being carried out at the time of the events, the Commission concludes that it has sufficient material to establish the veracity of the complaints, in respect of the detention of the victims.
91. Thus, bearing in mind also that the Peruvian State has not carried out any genuine investigation of these serious events or produced evidence to show that State agents were not responsible for the detention and subsequent disappearance of the victims,29 the Commission concludes that those victims were "disappeared" by the Peruvian State, acting through its agents.
92. On the basis of the foregoing arguments, the Commission concludes that:
a. The events surrounding the detention and subsequent disappearance of Mr. Eudalio Lorenzo Manrique (case 10.824) at the hands of Peruvian police personnel, on May 23, 1990 as described in detail in paragraphs 2-5 of this Report, did indeed take place.
b. The events surrounding the detention and subsequent disappearance of Mr. Pedro Herminio Yauri Bustamante, (case 11.044) at the hands of Peruvian police personnel, on June 24, 1992, as described in detail in paragraphs 9-14 of this Report, did indeed take place.
c. The events surrounding the detention and subsequent disappearance of Mr. Eulogio Viera Estrada, (case 11.124) at the hands of Peruvian police personnel, on September 12, 1992, as described in detail in paragraphs 18-24 of this Report, did indeed take place.
d. The events surrounding the detention and subsequent disappearance of Mr. Héctor Esteban Medina Bonet (case 11.125) at the hands of Peruvian police personnel, on September 12, 1992, as described in detail in paragraphs 28-33 of this Report, did indeed take place.
e. The events surrounding the detention and subsequent disappearance of Mr. Justiniano Najarro Rua (case 11.175) at the hands of Peruvian police personnel, on July 6, 1993, as described in detail in paragraphs 37-44 of this Report, did indeed take place.
93. Those detentions and subsequent disappearances followed a characteristic pattern: detention of the victims by military personnel either in uniform or dressed in civilian clothing, but in either case identifiable as military by the weapons they were carrying and other characteristics; official denial of responsibility for the disappearances; failure by the public authorities to investigate the situation of the victims; ineffectiveness of the appeals filed; torture and, possibly, extrajudicial execution of the victims; and absolute impunity, reinforced subsequently by an amnesty.
F. Violation of the human rights of the victims
94. The Commission will now analyze the specific violations by the Peruvian State of rights protected by the Convention, involved in the disappearances of Messrs. Eudalio Lorenzo Manrique, Pedro Herminio Yauri Bustamante, Eulogio Viera Estrada, Héctor Esteban Medina Bonet, and Justiniano Najarro Rua.
Right to Personal Liberty (Article 7 of the Convention)
95. 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.
96. In this case, Peruvian nationals Eudalio Lorenzo Manrique, Pedro Herminio Yauri Bustamante, Eulogio Viera Estrada, Héctor Esteban Medina Bonet, and Justiniano Najarro Rua were detained illegally and arbitrarily by members of the police in Lima. It is also apparent from the case records that the police officers systematically denied that they arrested them.
97. 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)30 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 in flagranti.
98. 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.
99. 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.
100. 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.31 In a constitutional, democratic State in which the rule of law and the separation of powers are respected, all penalties established by law should be imposed by the judiciary after guilt has been established in a fair trial with all the procedural guarantees. The existence of a state of emergency does not authorize the State to disregard the presumption of innocence, nor does it confer upon the security forces the right to exercise an arbitrary and unlimited ius puniendi.
101. 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.
102. The Commission concludes that the Peruvian State is responsible for violating the right to personal liberty and security by arbitrarily imprisoning Peruvian citizens Eudalio Lorenzo Manrique, Pedro Herminio Yauri Bustamante, Eulogio Viera Estrada, Héctor Esteban Medina Bonet, and Justiniano Najarro Rua; for violating their right of recourse to a competent judge or court that would rule on the lawfulness of their arrest; and, thereby, for violating Article 7 of the American Convention on Human Rights.
Right to Humane Treatment (Article 5 of the Convention)
103. Since forced disappearance involves violation of multiple rights, violation of the right to humane treatment is implicit in the cases of Messrs. Eudalio Lorenzo Manrique, Pedro Herminio Yauri Bustamante, Eulogio Viera Estrada, Héctor Esteban Medina Bonet, and Justiniano Najarro Rua.
104. 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..."32
105. Accordingly, the Commission, on the basis of the facts presented, is convinced, by way of presumptive evidence, that the detainees were tortured. The circumstances in which the victims were detained, kept hidden, isolated, and in solitary confinement, and their defenselessness as a result of being denied and prevented from exercising any form of protection or safeguards of their rights make it perfectly feasible for the armed forces to have tortured the victims with a view to extracting information about subversive groups or units. Accordingly, the Commission concludes that the Peruvian State violated the rights guaranteed to the victims under Article 5 of the Convention.
Right to Life (Article 4 of the Convention)
106. 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.33
107. In the cases of Messrs. Eudalio Lorenzo Manrique, Pedro Herminio Yauri Bustamante, Eulogio Viera Estrada, Héctor Esteban Medina Bonet, and Justiniano Najarro Rua, the above-mentioned testimony, indicia, and other evidence show that they were detained by State agents, which is enough to establish the presumption that they were also "disappeared" by State agents.
108. There is sufficient evidence to support the presumption that Messrs. Eudalio Lorenzo Manrique, Pedro Herminio Yauri Bustamante, Eulogio Viera Estrada, Héctor Esteban Medina Bonet, and Justiniano Najarro Rua are dead--given that approximately seven years have elapsed since their detention and disappearance--and for the presumption that those responsible are agents of the State.
109. Therefore, the Commission finds that the Peruvian State violated the victims right to life, a fundamental right protected under Article 4 of the Convention, which states that "Every person has the right to have his life respected... No one shall be arbitrarily deprived of his life."
Right to Juridical Personality (Article 3 of the Convention)
110. Article 3 of the American Convention on Human Rights establishes that every person has the right to recognition as a person before the law. When Messrs. Eudalio Lorenzo Manrique, Pedro Herminio Yauri Bustamante, Eulogio Viera Estrada, Héctor Esteban Medina Bonet, and Justiniano Najarro Rua were detained and then "disappeared" by State agents, they were excluded from the legal and institutional framework of the Peruvian State. In that sense, the forced disappearance of persons constitutes the negation of their very existence as human beings recognized as persons before the law.34
111. Thus, the Commission finds that Peru violated the victims right to recognition as persons before the law, enshrined in Article 3 of the Convention.
Right to Judicial Protection (Article 25 of the Convention)
112. 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.
113. 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)."35 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.36
114. The writs of habeas corpus were completely ineffective in accomplishing their purpose. Criminal procedures under Peruvian domestic jurisdiction were merely formal and meaningless red tape and the investigations failed to provide even minimal indications of who had been responsible for the detention and subsequent disappearance of Messrs. Eudalio Lorenzo Manrique, Pedro Herminio Yauri Bustamante, Eulogio Viera Estrada, Héctor Esteban Medina Bonet, and Justiniano Najarro Rua.
115. 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.
116. 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."37
117. 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."38
118. 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."39
119. 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."40
120. 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 emergency41 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."42
121. 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."43 The Court concluded that "the principles of due process of law cannot be suspended in states of exception insofar as they are necessary conditions for the procedural institutions regulated by the Convention to be considered judicial guarantees."44
122. Such a lack of access to effective domestic remedies against acts that violate fundamental rights constitute a violation by the Peruvian State of Articles 8 and 25 of the Convention.
Obligation to respect and guarantee rights
123. In this case, it has been shown that the Peruvian State failed to comply with the obligation, set forth in Article 1(1) of the Convention, "to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms," because it violated rights established in Articles 3, 4, 5, 7, and 25 of the Convention.
124. 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."45
125. The Commission concludes that the forced disappearance of Messrs. Eudalio Lorenzo Manrique, Pedro Herminio Yauri Bustamante, Eulogio Viera Estrada, Héctor Esteban Medina Bonet, and Justiniano Najarro Rua were acts perpetrated by agents of public authorities, and that, therefore, the Peruvian State violated the rights of those victims, enshrined in Article 1(1) of the Convention, in relation to violations of Articles 3, 4, 5, 7, and 25 of the Convention.
126. 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 "46
127. 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 individuals involved.
VII. CONSIDERATIONS WITH RESPECT TO THE RESPONSE OF THE STATE
128. The Commission approved Report Nº 66/98 (Article 50) on the instant case on September 30, 1998, at its 100th session. The aforesaid report enclosing the Commissions recommendations was forwarded on October 20, 1998, to the Peruvian State, which was given two months in which to comply with the recommendations, counted from the date of sending the report.
129. The State conveyed to the Commission its responses to Report Nº 66/98 by means of note Nº 7-5-M/571, of December 20, 1998. In the aforesaid responses the State expressed various considerations explaining its disagreement with aspects of fact and law contained in the aforementioned report, as well as with the conclusions that the Commission reached. Thus, for instance, the State questioned the considerations on admissibility contained in the aforesaid report, especially in relation to the Commissions conclusion with respect to there having existed the practice or policy of causing disappearances that rendered petitions for habeas corpus ineffective, and which, in consequence, made it unnecessary to pursue such a procedure in order to exhaust the remedies under domestic law. The State also alleged that the terrorist violence that affected Peru generated a series of situations that clearly altered the normal course of development of Peruvian society and that "the issue of disappearances has been used to question that process which has made it possible to achieve great progress in the pacification of the country". The State mentioned reports by the Commission and by other international organizations in which reference was made to the violence and terror that characterized the activities of the dissident groups, and added that although the Shining Path did not, generally speaking, cause people to disappear, it is possible that many people taken as disappeared in actual fact may have joined the aforesaid group.
130. The State affirmed in its responses that "although, in the course of the counter-subversive struggle, cases were recorded of excesses or abuses committed by members of the security forces--cases that were investigated and punished--there has never existed a systematic or officially sanctioned practice of forced disappearances". At the same time the State added that the situation of extreme violence that devastated Peru made the task of investigating individual complaints very complex, a situation aggravated inasmuch as "the majority of complaints are incomplete, the spelling of the name flawed, the circumstances of the disappearance vague, and the date and place thereof imprecise", added to which is the fact that the terrorist groups tried to present the armed forces as the sole originators of mass violations of human rights.
131. The Government questioned the omission of the reason why it was considered inappropriate to initiate proceedings for a friendly settlement. It pointed out that the accumulation of cases by the IACHR is not in conformity with its Regulations. It added that the Government may conclude that there is an antiterrorist campaign, but not a policy of forced disappearances, and that in any event the report in question failed to mention that the forced disappearance and execution of persons constitute terrorist practices. Peru also denied that torture by Government agents had been a common practice. The Government further argued that in accordance with Article 41 of the Convention, "the function of the IACHR is to seek redress, but not of a punitive nature." Hence, in the opinion of the Peruvian Government, it should not matter to the Commission that the amnesty laws eliminate the punitive function of the Government, but only whether said laws eliminate its responsibility to compensate victims for damages.
132. With regard to the specific case of the disappearance of Eudalio Lorenzo Manrique, the Government stated that according to the report, he was arrested on May 24, 1990, and not on May 23 of that year, as stated in paragraphs 3 and 4. In the specific case of Pedro Yauri Bustamante, the Government responded that it did allege that the case was inadmissible, "within the first three stages of the proceedings," because domestic remedies had not been exhausted. The Commission would state in this regard that the records of this case do not provide evidence of any communication from the Government alleging inadmissibility during the initial stages of the proceedings. They do, however, show that in the Governments most recent communication dated July 24, 1998, such an allegation is made, which is indicated in paragraph 17 of this report.
133. Finally, the State ratified arguments and evidence that it offered throughout the proceedings before the Commission, stated its discrepancy in respect of the Commissions conclusions that Peruvian army personnel arrested and caused the victims to disappear and mentioned a number of considerations regarding the recommendations made to it by the Commission.
134. As for the Commissions recommendation that the Government conduct a serious and impartial investigation into the facts surrounding the disappearance of the victims, the Government responded that the investigation which was conducted at the time was serious and impartial, and so that recommendation had already been carried out. The Government further stated that during the most critical period of terrorist activity, there was a period of special hardship that made it impossible to determine the whereabouts of persons who in many cases had disappeared at the hands of subversive groups.
135. As regards the Commissions recommendation that the Government set aside any domestic measure, either legislative or of any other nature, that would tend to prevent the investigation, prosecution, and punishment of the persons responsible for the detention and disappearance of the victims, and especially amnesty laws Nos. 26479 and 26492, the Government asserted that said laws were in keeping with the Peruvian Constitution, and added that the IACHR did not have authority to request the derogation of an internal law.
136. In relation to the Commissions recommendation that the State provide compensation to the relatives of the victims, Peru responded that it deems such a recommendation to be out of order, since "the responsibility of agents of the Peruvian State has not been ascertained".
137. With respect to the Commissions recommendation that the government adhere to the Inter-American Convention on the Forced Disappearance of Persons, Peru replied that such an act was a manifestation of sovereignty to be performed by the Peruvian Congress, and it added that the Peruvian Government had included in its domestic law certain provisions related to the forced disappearance of persons as a human rights violation. The Government further stated that it had taken note of that recommendation.
138. The Commission abstains from analyzing the repetition by the Peruvian State of arguments made prior to adoption of the aforementioned Report Nº 66/98 and its statements of disagreement with that report, since, pursuant to the provisions of Article 51(1) of the Convention, what the Commission must determine at this stage of the proceedings is whether or not the State has resolved the matter.
139. As regards Perus assertion, based on Article 41 of the Convention, to the effect that "the functions of the IACHR were to seek redress, but not of a punitive nature," and so it should not matter to the Commission whether amnesty laws eliminated the punitive function of the State, but only whether said laws eliminated its responsibility to compensate victims for damages, it is the opinion of the Commission that this statement has no legal merit. In fact, Article 41(f) of the Convention empowers the Commission to take action on petitions, pursuant to its authority under the provisions of Article 44 through 51 of the Convention. Article 50(3) of the Convention further establishes that the Commission may make such proposals and recommendations as it sees fit. In the case in point, if the Peruvian government has adopted laws that prevent it from punishing government agents responsible for the disappearance of the victims, the Commission is perfectly entitled to recommend to the Government that it set aside said laws and proceed to punish the persons responsible for the disappearances.
140. As to compliance with the recommendations that the Commission made to the Peruvian State in the aforementioned Report Nº 66/98, the Commission finds that the State has failed to comply with any of the recommendations the Commission made. The only concrete affirmation regarding the States alleged compliance with one of the Commissions recommendations refers to its submission that the investigation that it carried out at the time in question, which concluded that the armed forces are not responsible for disappearances of the victims, was a serious and impartial investigation, and that, therefore, it would seem already to have fulfilled the Commissions recommendation on that score. The Commission must point out to the Peruvian State that those investigations were carried out several years before adoption on September 30, 1998, of the aforementioned Report Nº 66/98 by the Commission. The Commission subsequently would have deemed the investigations conducted by the State serious and impartial had the State found and punished the guilty parties and not granted them an amnesty, instead of basing its conclusions on a question of fact, namely that agents of the State were not responsible for the disappearances.
141. With respect to the submission by Peru that the amnesty laws are in keeping with the Peruvian Constitution, the Commission considers it important to remind the Peruvian State that in ratifying the American Convention on Human Rights on July 28, 1978, it undertook the obligation to respect and ensure to all the inhabitants of that country the rights enshrined therein. Accordingly, and pursuant to the provisions of Article 27 of the Convention of Vienna on the Law of Treaties, the Peruvian State may not invoke the provisions of its internal law as justification for its failure to perform the obligations it undertook in ratifying the American Convention on Human Rights. Over the years, the Commission has ruled in a number of key cases in which it was able to express its point of view and firm up its doctrine on the application of amnesty laws. These rulings have uniformly stated that both amnesty laws and comparable legislative measures that impede or stop the investigation and prosecution of government agents who may be responsible for serious violations of the Convention or the American Declaration are in violation of multiple provisions of these instruments.47 This doctrine has been confirmed by the Inter-American Court of Human Rights, which has established that it is the duty of the States Parties "to investigate human rights violations, prosecute those responsible and avoid impunity."48 The Court has defined impunity as the lack of investigation, prosecution, capture, trial, and conviction of those responsible for human rights violations and has affirmed that States have the obligation to use all the legal means at their disposal to combat that situation, since impunity fosters chronic recidivism of human rights violations, and total defenselessness of victims and their relatives.49 The States Parties to the American Convention may not invoke provisions of domestic law, such as amnesty law, to avoid complying with their obligation to guarantee that justice is fully and duly served.50
142. Concerning the recommendation made by the Commission that Peru provide compensation to the victims relatives, in respect of which the State claims to be unable to do so because the responsibility of agents of the Peruvian State has not been ascertained, it is observed that the Commission, in exercise of the powers conferred on it by the States themselves, the Peruvian State included, ascertained that the Peruvian State is responsible for the disappearance of the victims. By virtue of the foregoing, the argument of not providing compensation to the victims based on the assertion that responsibility for the aforesaid disappearances has not been ascertained is groundless, since, as was established, the party responsible for those disappearances is the Peruvian State.
143. In relation to the recommendation that Peru adhere to the Inter-American Convention on Forced Disappearance of Persons, which the State maintains entails a manifestation of sovereignty that pertains to the Peruvian Congress, the Commission observes that compliance with that recommendation precisely entails that the State pursue the pertinent internal procedures for Peru to become party to the said Convention, as another element intended to attempt to prevent future repetition of cases of forced disappearance in Peru.
144. On the basis of the evidence on file, the Commission concludes that Peruvian police in the Department of Lima proceeded to illegally detain, and bring about the disappearance of, Messrs. Eudalio Lorenzo Manrique, Pedro Herminio Yauri Bustamante, Eulogio Viera Estrada, Héctor Esteban Medina Bonet, and Justiniano Najarro Rua, for which reason the Peruvian State is responsible for violating the right to juridical personality (Article 3), the right to life (Article 4), the right to humane treatment (Article 5), the right to personal liberty (Article 7), and the right to judicial protection (Article 35), enshrined in the American Convention on Human Rights. It has also failed to comply with its overall obligation to respect and ensure the exercise of these rights, which are enshrined in the Convention, as stipulated in Article 1(1) thereof.
On the basis of the analysis and conclusion set forth in this report,
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS RECOMMENDS TO THE PERUVIAN STATE THAT IT:
1. Initiate a serious, impartial, and effective investigation of the facts in order to establish the whereabouts of Messrs. Eudalio Lorenzo Manrique, Pedro Herminio Yauri Bustamante, Eulogio Viera Estrada, Héctor Esteban Medina Bonet, and Justiniano Najarro Rua, and to identify those responsible for their detention and disappearance, in order that those responsible be sentenced, in appropriate criminal proceedings, to punishments established by law and commensurate with the gravity of the above-mentioned violations.
2. Suspend any domestic measure, whether legislative or of any other sort, designed to hinder the investigation, indictment, and punishment of those responsible for the detention and disappearance of Messrs. Eudalio Lorenzo Manrique, Pedro Herminio Yauri Bustamante, Eulogio Viera Estrada, Héctor Esteban Medina Bonet, and Justiniano Najarro Rua. To that end, the State should repeal Acts Nos. 26479 and 26492.
3. Grant appropriate reparations to the relatives of Messrs. Eudalio Lorenzo Manrique, Pedro Herminio Yauri Bustamante, Eulogio Viera Estrada, Héctor Esteban Medina Bonet, and Justiniano Najarro Rua, including payment of compensation for the suffering caused by the lack of information on the whereabouts of the victims.
4. Accede to the Inter-American Convention on the Forced Disappearance of Persons.
145. On March 3, 1999, the Commission transmitted Report Nº 15/99--the text of which precedes--to the Peruvian state and to the petitioners, according to article 51(2) of the Convention, and granted Peru a one month period to comply with the recommendations set above. The State did not respond within the specified time.
146. According to the above considerations, and to Articles 51(3) of the American Convention and 48 of the Commissions regulations, the Commission decides to reiterate the conclusion set forth in chapter VIII supra; to reiterate the recommendations set forth in chapter IX supra; to make public the present report and to 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 in respect to the above recommendations, until they have been fully complied with by the Peruvian State.
Approved by the Inter-American Commission on Human Rights in the city of Washington, D.C. on the 13 day of the month of April, 1999. (Signed): Robert K. Goldman Chairman; Hélio Bicudo First Vice Chairman; Claudio Grossman, Second Vice Chairman; Commissioners Alvaro Tirado Mejía and Jean Joseph Exumé.
1 Having noted that the facts alleged in the five cases under review are similar in essence, inasmuch as they deal with acts that are related in origin, took place in the same area and around the same time, have been attributed to police, and have followed a pattern that attests to a State policy, the Commission has decided, in accordance with the provisions of Article 40(2) of its Regulations, to combine these cases and resolve them jointly.
2 Peru ratified the American Convention on Human Rights on July 28, 1978.
3 Inter-American Court of Human Rights, Velásquez Rodríguez case, Judgment of July 29, 1988, paragraph 65, and Caballero Delgado Santana case, Preliminary objections, Judgment of January 21, 1994, paragraph 64.
4 Inter-American Court of Human Rights, Caballero Delgado y Santana case, op.cit., paragraph 67.
5 Inter-American Court of Human Rights, Velásquez Rodríguez case, op.cit; paragraph 68.
6 Idem, paragraphs 63 and 66.
7 The National Coordinating Body for Human Rights stated, for example: in 1993, 56 cases of disappeared detainees have been reported. Of those persons, six were released after many months of detention, two were later prosecuted for terrorism, and 49 have never reappeared. National Coordinating Body for Human Rights, Report on the Situation of Human Rights in Peru in 1993, page 11.
8 Inter-American Court of Human Rights, Velásquez Rodríguez case, op.ci; paragraph 129.
9 Inter-American Commission of Human Rights, Loayza Tamayo case, Judgment of September 17, 1997, paragraph 42.
10 Inter-American Court of Human Rights, Velásquez Rodríguez case. op.cit; paragraph 127.
11 Document OEA/Ser.L/C/II.83. Doc. 31 (1993).
12 See the IACHRs annual reports.
13 Presidential instructions regarding Human Rights, September 9, 1991. Cited in: IACHR, report on the Situation of Human Rights in Peru (1993), op.cit., paragraph 17.
14 Report of the Working Group on Enforced or Involuntary Disappearances. UN document E/CN.4/1998/43, dated January 12, 1998, paragraph 297 (unofficial translation).
15 Legal defense Institute: "Peru Today, down the Dark Path of War, 1991, page 150.
16 National Coordinating Body for Human Rights. Report on the Human Rights Situation in Peru in 1992, page 64.
17 IACHR, report No. 40/97, paragraph 68 (cases Nrs. 10.941 and Others, Peru), published in the 1997 Annual Report.
18 The Commission considers it important to recall in this context that "the practice of international and domestic courts shows that direct evidence, whether testimonial or documentary, is not the only type of evidence that may be legitimately considered in reaching a decision. Circumstantial evidence, indicia, and presumptions may be considered, so long as they lead to conclusions consistent with the facts." Inter-American Court of Human Rights, Velásquez Rodríguez case, op.cit., paragraph 130.
19 Note, for instance, that in the Velásquez Rodríguez case the Court took into account the fact that the file contained no evidence wahtsoever that Mr. Manfredo Velásquez Rodríguez had joined subversive groups, nor that he had been abducted by common criminals or by other persons not connected with the practice of disappearances in force in Honduras at the time, in determining whether his disappearance had been brought about by agents of the State. (Inter-American Court of Human Rights, Velásquez Rodríguez case, op.cit., paragraph 147(h).
20 The IACHR position mentioned in Inter-American Court of Human Rights, Velásquez Rodríguez case, op.cit., paragraph 124.
21 Inter-American Court of Human Rights, Velásquez Rodríguez case, op.cit., paragraph 131.
22 Inter-American Court of Human Rights, Velásquez Rodríguez case, op.cit., paragraph 135.
23 Idem, paragraph 124.
24 IACHR. Report Nº 3/98. Case 11.221 (Colombia), 1997 Annual Report, paragraph 62.
25 Resolution AG/RES. 666 (XIII-O/83) of the General Assembly of the Organization of American States.
26 Peru has neither signed, ratified, nor acceded to this convention.
27 IACHR, Ten Years of Activities, 1971-1981, OAS, 1982, p. 319.
28 UN Human Rights. Enforced or Involuntary Disappearances. Fact Sheet Nº 6 (Rev. 2), Geneva, 1997, pages 1 and 2.
29 The Commission considers it relevant here to cite a recent report in which it established, in a case of disappearance of a detainee, that "the Colombian State has failed to meet its burden of proving that State agents did not disappear Mr. Medina The State has failed to provide any legal or factual arguments, and has offered no evidence, to support an assertion that State agents did not disappear Mr. Medina." IACHR, Report Nº 3/98 (Case 11.221), op.cit., paragraph 63.
30 According to which every person has the right: Art. 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 delicto.
31 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.
32 Inter-American Court of Human Rights, Velásquez Rodríguez case, op.cit., paragraph 156.
33 Idem paragraphs 157 and 188.
34 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.
35 Inter-American Court of Human Rights, Velásquez Rodríguez case, op.cit., paragraph 63
36 Inter-American Court of Human Rights, Velásquez Rodríguez case. Preliminary objections.
37 Inter-American Court of Human Rights, Velásquez Rodríguez case July 29, 1988), op.cit., paragraph 174.
38 Idem, paragraph 177.
39 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.
40 Inter-American Court of Human Rights, Judicial Guarantees in State of Emergency (Articles 27(2), 25 and 8 of the American Convention on Human Rights), Advisory Opinion OC-9/87 of October 6, 1987, Series A Nº 9, paragraph 21.
41 Inter-American Court of Human Rights, Habeas Corpus in Emergency Situations, op.cit., paragraph 30.
42 Inter-American Court of Human Rights, Judicial Gurantees in State of Emergency, op.cit., paragraph 25.
43 Idem, paragraph 28.
44 Ibidem., paragraph 30.
45 Inter-American Court of Human Rights, Velásquez Rodríguez case, op.cit., paragraph s170 and 172.
46 Idem, paragraph 166.
47 Report 28/92, Argentina, Annual Report of the IACHR 1992-1993, paragraph 41 Report 29/92, Uruguay, Annual Report of the IACHR 1992-1993, paragraph 51; Reports 34/96 and 36/96, Chile, Annual Report of the IACHR 1996, paragraphs 76 and 78 respectively; Report 25/98, Chile, Annual Report of the IACHR 1997, paragraph 71; and Report 1/99, El Salvador, Annual Report of the IACHR 1998, paragraph 170.
48 I-A Court of Human Rights, Loayza Tamayo Case, Judgment on Reparations of November 27, 1998, paragraph 170.
49 I-A Court of Human Rights, Paniagua Morales et al. Case, Judgment on the Merits of March 8, 1998, Series C, Nº 37, paragraph 173.
50 I-A Court of Human Rights, Loayza Tamayo Case, Judgment on Reparations of November 27, 1998, paragraph 168.