III. ACTIONS BY THE BOLIVIAN STATE
A. REPORT OF THE HUMAN RIGHTS COMMITTEE OF THE CHAMBER OF DEPUTIES
103. On January 10, 1997, Juan del Granado, Chairman of the Human Rights Committee of the Chamber of Deputies, addressed the Speaker of the Chamber of Deputies, George Prestel Kern, attaching a document entitled the "Preliminary Report and Recommendations" on the "unfortunate events that occurred in northern Potosí (Amayapampa, Llallagua, and Capasirca) from December 19 to 22, 1996." The communication further states that: "From its content, it can be easily seen that it is an account of events that were verified by members of this Committee who visited the area of conflict and who there, in light of the seriousness of the clashes and heavy toll of dead and wounded, performed a role of mediation and peacemaking prior to the usual situation of inspection and investigation, which is what should now be done, without fail, as recommended in the final section."
104. Deputy del Granado ends his note stating: "Consequently, the report does not express any value judgments or conclusions in the hope that such measures, in a context of absolute responsibility and objectivity, may be established by the Commission of inquiry that we would suggest be set up, concurrently with or subsequent to, the examination that we propose, together with the attached petition."
105. This report consists of 16 pages and contains the following recommendations:
1. Given the seriousness of the unfortunate events described in this preliminary report, a rigorous parliamentary investigation must be launched immediately that takes into account at least three aspects of the problems:
(a) The conflict between workers and management at Capasirca and Amayapampa in the second half of 1996, regarding both the transfer of the two mines to the Canadian company DACAPO-Vista Gold and the situation with the previous owners, labor-management relations, the work system, compliance with fiscal and tax obligations, and the government's participation and the action it took to address the situation.
(b) The police-military operation initiated at Amayapampa on December 19, 1996, and was extended to Llallagua, Uncía, and Capasirca, at least until December 22, 1996, with the heavy toll of dead and wounded reported.
(c) The conditions of extreme poverty and economic and social marginality throughout northern Potosí and the government's policy for recovery of production in the region.
2. Two mechanisms of parliamentary action need to be implemented concurrently or successively for purposes of this investigation:
(a) The Minister of Economic Development, the Minister of Labor, the Minister of the Interior, and the Minister of Defense should appear before a plenary session of the Chamber of Deputies to answer questions on the issues described in the preceding point.
This Committee should give priority to taking stock of the situation of the families of the deceased and the condition of the wounded for purposes of assessing compensation and ensuring medical treatment.
B. REPORT BY THE MINISTRY OF INTERIOR
106. In April 1997, the Minister of the Interior prepared a report on the events that took place in December 1996, in the communities of Amayapampa and Capasirca. The report, which provides a detailed chronology of the facts, does not contain any conclusions or recommendations. Rather, it ends with a list of the dead and wounded police officers and soldiers as well as a subsection entitled "EXPLANATION OF DISPATCH OF TROOPS", which is transcribed below:
An intelligence report on the events that occurred in the community of Chuquihuta, a mining center in Capasirca and the surrounding area, as well as the report by Major Osvaldo Pelaez, provide the following information:
At 5:30 a.m. on Thursday, November 14, 1996, the commission arrived at the town of Chuquiuta. When they were proceeding to arrest the accused, they were surprised by approximately 600 mine workers and peasants from the area in the vicinity of the church, clearly demonstrating that they had been prepared and were lying in wait for the commission. Sounding the bells of the church and setting off sticks of dynamite, they blocked all points of access to and egress from the spot to prevent the police from withdrawing. The crowd quickly swelled in number displaying a hostile, violent, and aggressive attitude and signs of intoxication with men, women, and children carrying sticks of dynamite that they set off continually, assailing the police officers with sticks and stones. The police did not react and refrained from using chemical agents on the orders of their superiors, and endured the physical blows, insults, and other indignities. The crowd broke the windows of the vehicles and flattened tires, pillaging everything they found within the vehicles such as sleeping bags, knapsacks, blankets, personal effects and utensils, and seized the arms, communications equipment and other items of the police. The police subsequently withdrew on foot to the area of "Lagunillas" to request the assistance of the Illimani Regiment stationed in Uncía in recovering their arms and police equipment, motor vehicles, personal effects, and other items. In response to this request, the Deputy Commander of the Military Unit, Major Vargas, undertook to recover the goods, indicating that they were "friends," and having recovered some of the items mentioned earlier easily using peaceful means, the police contingent subsequently withdrew to the city of Oruro. At that time, no wounded or dead were reported amongst the mine workers and peasants, but a number of policemen were wounded and bruised by the brutal attacks on the part of residents of the community.
On December 17, 1996, the leaders and workers from "Amayapampa", together with a group of peasants, issued a declaration announcing the takeover of the "Amayapampa" mining camp and allowing employees, technical staff, and police officers one hour to leave the mine.
Employees by the name of RODOLFO MARQUEZ AND EMILIO CAMACHO BORDA filed complaints with the Uncía Police about the attacks, search of premises, and ransacking of the offices perpetrated by SILVERIO COPA, JESUS ESTALLA, HENRY PILLCO, ANTONIO CARA CARA, PABLO OSIO and others, together with medical reports.
As these acts constituted flagrant criminal actions, the high-ranking authorities of the city of La Paz took cognizance of the matter and authorized operations at the scene of the events in which groups entered to restore order.
Regrettably, this prompted the main persons implicated in these events to initiate violent action to prevent action by the police, with the result that on December 20, 1996, after the "Amayapampa" camp had been taken over, in a premeditated criminal act, the Commander of the GES was killed in a planned ambush. This act led to an official complaint being lodged and to further investigation.
107. The report by the Ministry of Interior also contains the following information:
(1) Petition filed by the widow of Col. Rivas with the Public Ministry against "the members of the Mancilla family and all those who had been directly responsible as accomplices before or after the fact in the criminal acts that occurred on December 20, 1996, at the mine in the community of Uncía in the northern part of the department of Potosí..."; (2) Report of the ballistics expert to "establish at the scene of the crime (department of Potosí, province of Bustillos, Kéllo Kása sector on the highway to the community of Amayapampa) the probable trajectory of the projectiles, the distance from which the shot was taken, and the location of the gunmen and the effects on the individuals and vehicles caught in the ambush" in which Col. Rivas lost his life; (3) Document containing evidence; (4) Planimetry of the area in which the ambush occurred; (5) Evaluation report on the ambush at Kéllo Kása, sent by Capt. Henry Terrazas to Col. DESP. Eduardo Wayar Cortez, Commander of Police District 3; (6) Report by the ballistics expert on the arms seized from the peasants and mine workers; (7) List of the names of police officials wounded in the incident; (8) Death Certificates and the Forensic Reports on the victims; (9) Incident Report and Medical Certificates to "La Boliviana Ciacruz", insurance and reinsurance company, by the police officials wounded in the action.
C. CRIMINAL ACTION INITIATED BY THE STATE
108. The General Commander of the National Police instituted criminal proceedings on charges of murder, terrorism, and other crimes against Mario Mancilla Veizaga, Efraín Mancilla Veizaga, Carlos Mancilla Felipe Anguelas, Pedro Veizaga, Gerardo Mancilla, Walter Romero, and others. The report of the judicial police proceedings, the records of the pleadings of the parties, and documentation constitute the criminal case file.
109. The Minister of Interior filed criminal proceedings against Juvenal Quenta Chile, Enrique Fernández, and 36 other individuals on charges of terrorism, sedition, criminal association in Amayapampa and Capasirca. The case was assigned the number 668/97.
110. On January 1, 1997, Juvenal Quenta Chile and Enrique Fernández Choquehuanca were taken into custody. They made a statement to the police on January 22, 1997, with the legal assistance of Yolanda Quinteros and Betty Salazar, from the public defender's office of the Ministry of Justice.
111. On January 23, 1997, a petition was presented requesting the immediate release of the accused and giving notice of a writ of habeas corpus, and additional statements were take from the two defendants that same day.
112. On January 24, 1997, the proceedings of the Bolivian Judicial Police (Policía Técnica Judicial de Bolivia) were forwarded to the Public Ministry and subsequently to the Fourth Criminal Court of La Paz. On January 28, 1997, the court returned the file to the Judicial Police for completion of the proceedings.
113. Mr. Quenta and Mr. Fernández filed a special writ of habeas corpus on January 25, 1997. A hearing was set for January 29, 1997, at the Second Criminal Court, but it was suspended as the representative of the Public Ministry failed to show. The hearing was rescheduled for January 31, but was canceled due to a civic strike in the city of La Paz.
114. The hearing was eventually held on February 5, 1997, and was declared unfounded. However, the unconditional release of Juvenal Quenta Chile and Enrique Fernández Choquehuanca was obtained and they were released on January 29, 1997, at the instance of Prosecutor Salomón Paniagua.
115. On March 29, 1997, the Public Prosecutor Rodolfo Gutiérrez issued an order in which he recommended that the proceedings of the judicial police be forwarded to the Fourth Criminal Court, pursuant to Article 46 of the Code of Criminal Procedure, and that pursuant to Article 116 of the aforesaid Code, the investigation should be continued, if deemed appropriate, by the examining magistrate.
D. ACTIONS BY THE MINISTRY OF JUSTICE
116. Immediately after the events that took place in Amayapampa and Capasirca, officials from the Rural Mobile Public Defense Program under the Ministry of Justice visited the zone to provide free legal assistance to any individuals who should need the service.
117. The Ministry of Justice received a set of photographs from Judith Muñoz, a journalist, concerning the events that took place in Amayapampa and Capasirca, and these were transmitted to the First Criminal Court of Potosí, which was hearing the criminal case at that time, through note MJ-SAG-060/97 of February 19, 1997, so that the judicial authorities would have all of the elements needed to objectively establish liabilities and penalties.
118. For purposes of establishing the cause of death, and so that the judicial authorities could have all of the facts needed for a final decision in the criminal matter in question, the Chief Prosecutor of Bolivia, the Public Prosecutor of the District of Potosí, and the Examining Magistrate of the First Criminal Court of Potosí, were requested in communications MJ-SAC-023/97, MJ-SAC-024/97, and MJ-SAC-025/97 of January 21, 1997, to perform the autopsies on the bodies of the persons who had died in the events at Amayapampa and Capasirca.
119. In the course of the investigations by the judicial police, Juvenal Quenta Chile and Enrique Fernández Choquehuanca were arrested at the instructions of the Minister of Interior, on January 21, 1997. They made statements to the police with the assistance of Yolanda Quinteros and Betty Salazar, public defenders from the Ministry of Justice.
120. On January 25, 1997, the public defenders filed a writ of habeas corpus, which was declared unfounded. However, the release of Mr. Quenta and Mr. Fernández was secured on January 29, 1997.
IV. THE ISSUES RAISED IN THIS CASE
121. The Inter-American Commission on Human Rights will examine whether the Bolivian state is responsible internationally for the deaths of nine civilians in events that occurred in December 1996, in the localities of Amayapampa, Llallagua, and Capasirca. For this purpose, the Commission must determine whether the five elements that establish the international liability of a state are present in this case: (i) The existence of an act or omission violative of an obligation established by a rule of international law in force; (ii) that said illicit act be imputable to the state as a juridical person; (iii) that harm have been caused as a result of the illicit act; (iv) that the action imputed to the state not be justified; and, (v) that no reparation have been made for the consequences of the illicit act, with such reparation including an investigation into the facts and the necessary compensation.
122. The Inter-American Commission must also determine whether the nine civilians deaths at the scene of the events resulted from actions carried out by state agents acting under the investiture of a public function or pursuant to the powers they hold by dint of their official position.
123. Finally, the Commission must analyze whether the use of the public forces in the particular circumstances of the recovery of the mines of Amayapampa and Capasirca was reasonable and absolutely necessary.