Manuel Monago Carhuaricra y Eleazar Monago Laura v. Peru, Case 10.826, Report Nº 45/00, OEA/Ser.L/V/II.106 Doc. 3 rev. at 1127 (1999).
INFORME Nº 45/00
MANUEL MÓNAGO CARHUARICRA AND
ELEAZAR MÓNAGO LAURA
April 13, 2000
By petition submitted to the Inter-American Commission on Human Rights
(hereinafter "the Commission") by the non-governmental organization
Asociación Pro Derechos Humanos (APRODEH)
on February 4, 1991, it was alleged that the Republic of Peru (hereinafter
"Peru," "the State," or "the Peruvian State")
violated the human rights of Messrs. Manuel Mónago Carhuaricra and Eleazar
Mónago Laura, when they were detained on September 9, 1990, by members of
the military, and then disappeared.
The State alleges that Messrs. Mónago were not detained by military
forces. The Commission concludes
that Peru violated, to the detriment of the above-named individuals, 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 the provisions at Article 1(1), and makes the pertinent
recommendations to the Peruvian State.
PROCESSING BEFORE THE COMMISSION
On March 14, 1991, the Commission opened the case, transmitted the
pertinent parts of the complaint to the Peruvian State, and asked that it
provide information within 90 days.
The State answered on November 29, 1991.
On May 24, 1999, both parties were asked to provide the Commission
updated information on the case, and the Commission placed itself at their
disposal to try to reach a friendly settlement.
On July 26, 1999, the State reiterated earlier arguments and stated
that it did not consider it advisable to initiate a friendly settlement procedure.
Accordingly, the Commission considered the possibility of reachinga
friendly settlement to be exhausted.
POSITIONS OF THE PARTIES
According to the petitioner, on September 9, 1990, Messrs. Manuel Mónago
Carhuaricra and Eleazar Mónago Laura, father and son, 35 and 13 years of age,
respectively, were detained in Sogormo, district and province of Oxapampa,
by members of the military from the Puente Paucartambo Base, under the command
of a lieutenant by the last name of Vidal.
Petitioner further indicates that the members of the military entered
the home of Mr. Manuel Mónago Carhuaricra at approximately 1:30 a.m., and,
not finding him, took his son, Eleazar Mónago Laura, who they forced to lead
them to where his father was; he spent the nights at the "Independencia"
secondary school at Sogormo, as the security guard. On reaching the school, the members of the military detained
Mr. Mónago Carhuaricra.
Petitioner points out that on the morning of September 9, 1990, Mrs.
Aquila Laura de Mónago, wife and mother of the victims, went to the Puente
Paucartambo Military Base, and there a soldier informed her that the chief
of the base was Lieutenant Vidal, but that he was not present at the time,
as the night before he had gone out on an operation, in the direction of Sogormo,
and had yet to return.
Petitioner argues that Mrs. Aquila Laura de Mónago returned to the
same military base on September 11, 1990, but that she was not received, as
there was a celebration at the base, and the members of the military were
drunk, and were firing their weapons, so Mrs. Laura de Mónago decided to leave.
Petitioner adduces that as her efforts had not been fruitful, Mrs.
Laura de Mónago went to the city of Oxapampa, where she communicated the disappearance
of her husband and son to the Educational Services Unit (USE), the administrative
organ of the Ministry of Education responsible for her husband's place of
work. Mrs. Laura de Mónago was
received by a lawyer from USE, who went with her to the Military Base at Oxapampa.
The troops at that Base communicated by radio message with the Puente
Paucartambo Base, where it was denied he had been detained or that Lt. Vidal
had gone out on any operation towards Sogormo.
Petitioner states that Mrs. Laura de Mónago proceeded to file the respective
complaint with the Public Ministry, to whom the Army also denied the detention.
In addition, Mrs. Laura de Mónago took new initiatives at the Oxapampa
military base, where a commander, who did not identify himself, told her he
had received there other complaints, for rape and robbery, involving Lt. Vidal.
The commander indicated to her that if she wished to obtain any information,
she should lodge a complaint in Lima, to avoid being subject to retaliation.
Notwithstanding all of her efforts, Messrs. Mónago Carhuaricra and
Mónago Laura did not appear.
The State responded on November 29, 1991, and argued that Messrs. Mónago
Carhuaricra and Mónago Laura, according to the Ministry of Defense of Peru,
"have at no time been the subject of intervention by the forces of order
of the 31st Infantry Division, this situation having been communicated with
official communications Nos. 398 B-2 of July 2, 1990, 412 B-2 of July 13,
1990, and 437 B-2 of July 25, 1990, directed to the Provincial Prosecutor
of the Fourth Mixed Provincial Prosecutorial Office of Huancayo, and official
communication Nº 152 B-2 of May 21, 1991, to the Provincial Prosecutor of
the Special Prosecutor's Office of the Office of the Human Rights Ombudsman
Considerations on admissibility
The 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
allegations in this case describe facts that would be violative of several
rights recognized and enshrined in the American Convention that took place
within the territorial jurisdiction of Peru when the obligation to respect
and guarantee the rights established therein were in force for the State.
Therefore, the IACHR has subject-matter jurisdiction, personal jurisdiction,
and jurisdiction based on when and where the alleged violations took place,
so as to be able to take cognizance of the merits in the case.
Exhaustion of domestic remedies
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.
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:
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.
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 exhausted.
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
13. The Commission considers the foregoing considerations
fully applicable to this case, as it involved an alleged forced disappearance
in 1990 imputed to the Peruvian Army.
The disappearance alleged in this case occurred during the time (1989-1993)
when, the Commission determined, as set forth in the reference cited above,
that there was a practice or policy of disappearances ordered or tolerated
by several public authorities that rendered the habeas
corpus remedy completely ineffective in cases of disappearance, thus the
Commission established that for the purpose of the admissibility of complaints
before the Commission, it was not necessary to bring a habeas corpus action--or any other--for the purpose of exhausting
domestic remedies. Therefore,
the Commission concludes that this case fits within the exception at Article
46(2) of the Convention, according to which the exhaustion requirement laid
down 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."
Time period for submission
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 Article 46(1)(b) of the Convention.
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
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
Characterization of the facts
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 two persons.
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
Considerations on the merits
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
State practice of disappearances
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 Perú that the Commission
set forth recently, when it decided an accumulated group of 35 cases involving
67 “disappeared” persons in different provinces of Perú 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
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 […] 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 Commission’s 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
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
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:
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.
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 victim’s signature, others with his or her real signature
obtained under torture, when in fact the release had never taken place.
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
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.
burden of proof regarding disappearances
general principle is that, in cases of disappearance in which, in the Commission’s
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 victim’s 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 State’s 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 person’s 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.
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
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
family’s distress is frequently compounded by the material consequences resulting
from the disappearance. The missing person is often the mainstay of the family’s
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.
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 victims were disappeared
by agents of the Peruvian State, unless that State has proven otherwise.
said considerations to this case, the Commission, in relation to the victims'
detention, observes that the petitioner alleges that Messrs. Manuel Mónago
Carhuaricra and Eleazar Mónago Laura were detained on September 9, 1990, at
Sogormo, district and province of Oxapampa, by members of the military from
the Puente Paucartambo Base, and that the State denies having carried out
this respect, and based on the facts narrated by the petitioner and the testimony
taken from Mrs. Laura de Mónago, wife and mother of the victims, the modus
operandi of the detention, and all other evidentiary indicia--which include
the steps taken and remedies pursued internally aimed at locating and winning
the release of the victims; the reports prepared by the military denying that
the detentions had been effectuated by members of the military, without the
Peruvian State having carried out a serious judicial investigation of the
grave events; and the circumstance that the detentions occurred in 1990, when,
as established by the Commission, there was a systematic and selective practice
of forced disappearances carried out by agents of the Peruvian State, or at
least tolerated by the State--the Commission concludes that it has sufficient
grounds for establishing the veracity of the events denounced, with respect
to the detention of the victims.
on the foregoing, the Commission considers it true that the victims were detained
by members of the Peruvian Army from the Puente Paucartambo Base, on September
9, 1990, at Sogormo, district and province of Oxapampa.
and in keeping with the above-noted doctrine of the Commission, the Peruvian
State had the burden of proving that it did not disappear Messrs. Mónago Carhuaricra
and Mónago Laura. In this connection,
the Commission observes that the State presented no evidence tending to show
that it did not disappear Messrs. Mónago Carhuaricra and Mónago Laura, but
rather denied that it had detained them.
on the reasons set forth above, the Commission concludes that the Peruvian
State, through members of the Army from the Puente Paucartambo Base, detained
Messrs. Manuel Mónago Carhuaricra and Eleazar Mónago Laura on September 9,
1990, at Sogormo, in the district and province of Oxapampa, and that it then
proceeded to disappear them.
detention and subsequent disappearance followed the characteristic pattern:
the detention of the victims 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 victims; the ineffectiveness
of domestic remedies; the torture and possible extrajudicial execution of
the victims; and absolute impunity, reinforced by the subsequent amnesty.
Violation of the victims' human rights
Commission now proceeds to analyze the specific violations by the Peruvian
State of the rights set forth in the Convention implicit in the disappearance
of Messrs. Manuel Mónago Carhuaricra and Eleazar Mónago Laura.
to Personal Liberty (Article 7 of the Convention)
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.
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 citizens Manuel Mónago Carhuaricra and
Eleazar Mónago Laura were illegally and arbitrarily detained by members of
the Peruvian Army.
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 detainee’s 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
Peruvian citizens Manuel Mónago Carhuaricra and Eleazar Mónago Laura; 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.
to Humane Treatment (Article 5 of the Convention)
The American Convention establishes:
5. Right to Humane Treatment
Every person has the right to have his physical, mental, and moral
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 cases of Messrs. Manuel
Mónago Carhuaricra and Eleazar Mónago Laura.
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 Manuel Mónago Carhuaricra
and Eleazar Mónago Laura 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.
to Life (Article 4 of the Convention)
The American Convention establishes:
Article 4. Right to Life
Every person has the right to have his life respected. This right shall
be protected by law and, in general, from the moment of conception. No one
shall be arbitrarily deprived of his life.
2. In countries that have not abolished
the death penalty, it may be imposed only for the most serious crimes and
pursuant to a final judgment rendered by a competent court and in accordance
with a law establishing such punishment, enacted prior to the commission of
the crime. The application of such punishment shall not be extended to crimes
to which it does not presently apply.
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 cases of Messrs. Manuel Mónago Carhuaricra and Eleazar Mónago
Laura, it has been established their “dissapearance” by State agents, and
there is sufficient evidence to support the presumptionthat they are dead--given
that more than nine years have elapsed since their detention and disappearance--and
the presumption that those responsible are agents of the State.
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
Messrs. Manuel Mónago Carhuaricra and Eleazar Mónago Laura 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.
Thus, the Commission finds that Peru violated the victims’ right to
recognition as persons before the law, enshrined in Article 3 of the Convention.
to Judicial Protection (Article 25 of the Convention)
The Amercian 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
to ensure that the competent authorities shall enforce such remedies
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 person’s 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
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 3, 4, 5,
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 Messrs. Manuel
Mónago Carhuaricra and Eleazar Mónago Laura were acts perpetrated by agents
of public authority, 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, 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 Court’s 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 individuals involved.
PROCEEDINGS SUBSEQUENT TO REPORT Nº 96/99
Commission adopted Report Nº 96/99 (Article 50) in this case on September
28, 1999, during its 104th session.
That Report, with the Commission's recommendations, was transmitted
to the Peruvian State on October 21, 1999; the State was given two months
to carry out the recommendations, counted from the date of transmittal of
Note Nº 7-5-M/558 of December 17, 1999, the State forwarded the Commission
its considerations on Report Nº 96/99, and stated its disagreement with aspects
of fact and of law reflected therein, and with the conclusion reached by the
Commission. The State alleged
that the case should not be admitted on grounds that the petitioner had failed
to exhaust domestic remedies, and added that "the exception to the requirement
of exhaustion of domestic remedies provided for at Article 46(2)(a) of the
American Convention on Human Rights is not applicable in case 10.670, as it
is not true that there was a practice or policy of disappearances ordered
or tolerated by the public authorities."
Peruvian State indicated its specific discrepancy with the conclusion at paragraph
70 infra, and insists in this regard
that Messrs. Mónago Carhuaricra and Mónago Laura were not detained by members
of the police. It added that
"consequently, the recommendations of the IACHR are not admissible, especially
when the investigation carried out in due course regarding the alleged detention
and later disappearance of Messrs. Manuel Mónago Carhuaricra and Eleazar Mónago
Laura, considering the circumstances of terrorist violence, was serious and
impartial, and did not determine that any agents of the Peruvian State were
the State indicated with respect to amnesty laws Nos. 26.479 and 26.492 that
"both laws were approved by the Congress of the Republic in the exercise
of the functions that the Constitution confers on it, and are part of the
policy of pacification initiated by the Peruvian State."
Commission refrains from analyzing the reiterations of the Peruvian State
in response to arguments made prior to the adoption of Report Nº 96/99, 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 96/99.
With respect to Peru's allegation that the amnesty laws are consistent
with the Peruvian Constitution, the Commission recalls that the Peruvian State,
on ratifying the American Convention on Human Rights, on July 28, 1978, contracted
the obligation to respect and ensure the rights set forth in it.
In this regard, and in keeping with Article 27 of the Vienna Convention
on the Law of Treaties, the Peruvian State cannot invoke its internal laws
as justification for failure to comply with the obligations it assumed on
ratifying the American Convention on Human Rights.
Over the years, this Commission has adopted reports in several key
cases in which it has had the opportunity to express its point of view and
crystallize its doctrine with respect to the application of amnesty laws,
establishing that such laws violate several provisions of both the American
Declaration and the American Convention.
These decisions, which are in agreement with the criterion adopted
by other international human rights bodies regarding amnesties,
have declared uniformly that both the amnesty laws and comparable legislative
measures that impede or that determine the conclusion of the investigation
and trial of State agents who may be responsible for serious violations of
the American Convention or the American Declaration violate several provisions
of those instruments.
This doctrine has been confirmed by the Inter-American Court of Human
Rights, which has established that the States Parties have the duty "to
investigate human rights violations, prosecute the persons responsible, and
prevent impunity." The
Court has defined impunity as the failure to investigate, pursue, arrest,
try, and sentence persons responsible for human rights violations, and has
affirmed that the States have the duty to combat this situation by all legal
means available, since impunity fosters the chronic repetition of such human
rights violations, and the total defenselessness of the victims and their
States Parties to the American Convention cannot invoke provisions of domestic
law, such as amnesty laws, to fail to carry out their obligation to guarantee
the complete and correct functioning of the justice system.
Commission reiterates its conclusion that the Peruvian State, through members
of the Peruvian Army from the Puente Paucartambo Base, detained Messrs. Manuel
Mónago Carhuaricra and Eleazar Mónago Laura on September 9, 1990, in Sogormo,
district and province of Oxapampa, and later proceeded to disappear them by
force; consequently, the Peruvian State is responsible for violations of the
right to liberty (Article 7), the right to humane treatment (Article 5), the
right to life (Article 4), the right to juridical personality (Article 3),
and the right to an effective judicial remedy (Article 25) set forth in the
American Convention on Human Rights.
In addition, it has breached its general obligation to respect and
ensure the exercise of these rights set forth in the Convention, in the terms
of Article 1(1).
Based 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 Messrs. Manuel
Mónago Carhuaricra and Eleazar Mónago Laura, and that it punish the persons
responsible, in keeping with Peruvian legislation.
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 Messrs. Manuel Mónago Carhuaricra
and Eleazar Mónago Laura. Accordingly,
the State should nullify Laws 26.479 and 26.492.
That it adopt the measures required for the family members of Messrs.
Manuel Mónago Carhuaricra and Eleazar Mónago Laura to receive adequate and
timely reparation for the violations established herein.
On March 2, 2000, the Commission transmitted Report 14/00--the text
of which precedes--to the Peruvian State and to petitioners, in accordance
to Article 51(2) of the Convention, and granted Peru an additional period
to comply with the recommendations set out above. On March 31, 2000, the State
forwarded the Commission a note which reiterated its considerations pertaining
to the conclusions of fact and of law of the Commission, and did not state
that it had taken any action towards compliance with the recommendations made
by the Commission.
According to the above considerations, and Articles 51(3) of the American
Convention and 48 of the Commission’s 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.
and signed by the Inter-American Commission on Human Rights on the 13th
of April 2000. (Signed): H[elio
Bicudo, Chairman; Claudio Grossman, First Vice-Chairman; Juan M[endez, Second
Vice-Chairman; Commissioners Marta Altoloaguirre, Robert K. Goldman, Peter
Laurie and Julio Prado Vallejo.
The Peruvian State deposited the instrument of ratification of the American
Convention on July 28, 1978.
IACHR, Report Nº 51/99, Cases 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 in paragraph 22, supra,
the Commission has noted, citing doctrine of the Inter-American Court,
that when the existence of a policy of disappearances sponsored or tolerated
by the Government has been proven, it is possible, through circumstantial
or indirect evidence, or by pertinent logical inferences, to show the
disappearance of a specific individual, which otherwise would be impossible,
by a link between the specific disappearance in question and the general
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., paragraph 63.
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., paragraph 174.
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
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.
Report 28/92, Argentina, Annual Report of the IACHR 1992-1993, para. 41;
Report 29/92, Uruguay, Annual Report of the IACHR 1992-1993, para. 51;
Reports 34/96 and 36/96, Chile, Annual Report of the IACHR 1996, paras.
76 and 78 respectively; Report 25/98, Chile, Annual Report of the IACHR
1997, para. 71; and Report 1/99, El Salvador, Annual Report of the IACHR
1998, para. 170.
See, for example, the study on impunity prepared in 1997 by Louis
Joinet, U.N. Special Rapporteur on Impunity (United Nations Commission
on Human Rights, Question of the impunity of perpetrators of human rights
violations (civil and political), Revised Final Report, prepared by Mr.
Joinet pursuant to decision 1996/119 of the Subcommission.
E/CN.4/Sub.2/1997/20 Rev. 1, October 2, 1997.
The Human Rights Committee of the United Nations declared that
it was profoundly concerned over the amnesties granted by Decree-Laws
Nos. 26.479 and 26.492, and concluded that those laws violate various
human rights (Preliminary observations of the Human Rights Committee,
Peru, CCPR/C/79/Add.67, July 25, 1996). In addition, the United Nations Committee Against Torture also
examined the Peruvian amnesty legislation and expressed its concern over
the practice of promulgating amnesty laws which in fact confer impunity
on persons guilty of torture, in violation of many provisions of the Convention
Against Torture (Summary record of the public part of the 333rd session:
Panama and Peru, May 20, 1998.
Report 28/92, Argentina, Annual Report of the IACHR 1992-1993, para. 41;
Report 29/92, Uruguay, Annual Report of the IACHR 1992-1993, para. 51;
Reports 34/96 and 36/96, Chile, Annual Report of the IACHR 1996, paras.
76 and 78 respectively; Report 25/98, Chile, Annual Report of the IACHR
1997, para. 71; and Report 1/99, El Salvador, Annual Report of the IACHR
1998, para. 170.
Inter-American Court of Human Rights, Case of Loayza Tamayo, Judgment
of Reparations, November 27, 1998, para. 170.
Inter-American Court of Human Rights, Case of Paniagua Morales et al.,
Judgment of March 8, 1998, Series C, Nº 37, para. 173.
Inter-American Court of Human Rights, Case of Loayza Tamayo, Judgment
of Reparations of November 27, 1998, paragraph 168.