COMPLAINT FILED BY THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS AGAINST THE PERUVIAN STATE
In connection with the events that began on May 14, 1988
in the district of
Complaint filed by the IACHR against the Peruvian State
Reply of the Government of Peru to the IACHR
On February 16, 1992 the Inter-American Commission on Human Rights pursuant to Article 61 of the American Convention submitted for consideration of the Inter-American Court of Human Rights, a complaint against the Government of Peru, in connection with the events that began on May 14, 1988 in the District of Cayara, Province of Victor Fajardo, Department of Ayacucho.
In March 1992 the Government of Peru filed twelve preliminary objections to the complaint submitted by the Commission.
In a judgment issued on February 3, 1993, the Court declared that the petition was filed after the expiration deadline stipulated in Article 51.1 of the Convention, and did not address the merits of the case.
Because it considered this to be a matter of general interest, the Commission,
at its 83rd session, decided to publish in a single document the complaint,
Report Nº 29/91 of February 20, 1991, Resolution Nº 1/91 of November 11, 1991
and the response of the Government of Peru to that Report, which were attached
to the complaint filed by the Commission.
March 12, 1993
I. PURPOSE OF THE COMPLAINT
The Inter-American Commission on Human Rights is petitioning the Inter-American Court of Human Rights that:
1. It find that the Government of Peru, through the acts of its agents, has violated the right to life, the right to humane treatment, the right to personal liberty, the right to a fair trial, the right to property, and the right to judicial protection, recognized in articles 4, 5, 7, 8, 21 and 25, all in relation Article 1.1 of the American Convention on Human Rights, as a consequence of the extrajudicial executions, torture, arbitrary arrest, forced disappearance and damage to public property and the property of Peruvian citizens, victims of actions that members of the Peruvian Army took starting on May 14, 1988, in the district of Cayara, Province of Víctor Fajardo, Department of Ayacucho, and the following persons in particular:
ARBITRARY EXECUTIONS AND FORCED DISAPPEARANCES
1. APARI TELLO, HERMENEGILDO
2. ASTO BAUTISTA, ESTEBAN
3. BAUTISTA PALOMINO, GUZMAN (disappeared)
4. BERROCAL PALOMINO, EMILIO
5. CCAYO CAHUAYMI, DAVID
6. CCAYO CAHUAYMI, PATRICIO
7. CCAYO NOA, SOLANO
8. CCAYO RIVERA, JOSE
9. CHOCCÑA ORE, ALEJANDRO
10. CRISOSTOMO GARCIA, FELIX
11. CRISOSTOMO GARCIA, MARTA
12. ECHECCAYA VILLAGARAY, ALEJANDRO
13. GARCIA SUAREZ, JOVITA
14. GARCIA PALOMINO, SAMUEL
15. GARCIA TIPE, ANTONIO FELIX
16. GONZALEZ PALOMINO, ARTEMIO
17. GUTIERREZ HUAMAN, MAGDALENO (disappeared)
18. HUAYANAY BAUTISTA, ALFONSO
19. IPURRE BAUTISTA, HUMBERTO (disappeared)
20. IPURRE RAMOS, GREGORIO (disappeared)
21. IPURRE SUAREZ, IGNACIO
22. MARCATOMA SUARES VDA. DE IPURRE, SEGUNDINA (disappeared)
23. NOA PARIONA, TEODOSIO
24. ORE PALOMINO, EUSTAQUIO
25. PALOMINO BAUTISTA, ZACARIAS
26. PALOMINO CHOCCÑA, AURELIO
27. PALOMINO DE IPURRE, BENIGNA (disappeared)
28. PALOMINO QUISPE, FERNANDINA
29. PALOMINO SUAREZ, FIDEL TEODOSIO
30. PALOMINO TUEROS, INDALECIO
31. QUISPE PALOMINO, FELIX
32. RAMOS PALOMINO, CATALINA (disappeared)
33. SUAREZ PALOMINO, DIONISIO
34. SULCA HUAYTA, PRUDENCIO
35. SULCA ORE, EMILIANO
36. TAQUIRI YANQUI, ZOZIMO GRACIANO
37. TARQUI CCAYO, IGNACIO
38. TELLO CRISOSTOMO, SANTIAGO
39. TINCO GARCIA, JUSTINIANO
40. VALENZUELA QUISPE, TEODOSIO
PALOMINO DE LA CRUZ, INDALECIO
DE LA CRUZ IPURRE, CESAR
TARQUI QUISPE, AVELINO
ESQUIVEL FERNANDEZ, DOMITILA
VALENZUELA CCAYO, BENEDICTA MARIA
CCAYO RIVERA, CIRO
CRISOSTOMO GARCIA, TEOFILO
VALENZUELA PALOMINO, NESTOR
DAMAGE TO THE PROPERTY OF
IPURRE RAMOS, GREGORIO
SUAREZ PALOMINO, DIONISIO
CABRERA DE PALOMINO, PRIMITIVA
GARCIA PARIONA, MODESTO
TORRES TINCO, TEODOSIO
DE LA CRUZ VDA. DE TORRES, CATALINA
SUAREZ BAUTISTA, PAULINA
GARCIA PARIONA, ENEDINA
AQUINO PAICO, EMILIANO
DAMAGE TO PUBLIC PROPERTY
CAYARA HEALTH STATION
CAYARA DISTRICT COUNCIL
CAYARA EDUCATION CENTER
2. It find that the Government of Peru has failed to honor its obligation to respect and guarantee the exercise of the rights mentioned in the preceding paragraph, under the terms of Article 1.1 of the Convention.
3. It set the reparations and compensatory damages to which the victims and/or their next-of-kin are entitled as a consequence of the actions of the agents of the Peruvian Government described in this complaint, in accordance with Article 63.1 of the Convention.
4. It instruct the Government of Peru to conduct a thorough and impartial investigation of the facts denounced in this submission, single out those responsible for the violations denounced and bring them to trial so that they may receive the punishment that the law demands.
II. THE FACTS
A. General statement of the facts in this case
On May 13, 1988, at around 21:00 hours, in the vicinity of the hamlet known as Erusco, a Peruvian Army convoy was ambushed by an armed group belonging to the Peruvian Communist Party -also known as the Sendero Luminoso [Shining Path]--, leaving four soldiers dead and another 14 wounded. Erusco is located in the District of Cayara, Province of Victor Fajardo, Department of Ayacucho, a region that has been the scene of very serious violence dating back to 1980, when the group launched its armed fight against the Peruvian constitutional system. Since December 1982, the Department of Ayacucho has been in a state of emergency and under the authority of a Political-Military Command. At the time of the events in question, the Chief of the Political-Military Command was Brigadier General José Valdivia Dueñas, who was promoted to the rank of Division General in December 1990.
The next day, May 14, military troops instituted a series of actions in the Cayara district which resulted in the arbitrary execution of 33 persons, the disappearance of 7, the torture of at least 6 who survived and damage to public and private property, all within the period from May 14, 1988 to September 8, 1989. In committing the violations mentioned herein, the military troops' purpose was to take reprisals -targeted at a community whom the military considered to be terrorists-- and to eliminate those persons whose names appeared in a letter that an anonymous informant sent to an Army officer in that area. Some of the persons whose names were mentioned in the letter were killed on May 14, while others were arrested and then killed on May 18. Others were arrested and disappeared on June 29 of that year, while another was summarily executed on December 14. Property belonging to some of the other people on the list was damaged and looted. Apart from the individuals on the list in question, military troops proceeded to execute arbitrarily other persons from the town, while other people were the victims of enforced disappearance. The soldiers also tortured an unknown number of persons to obtain information on the subversive group's activities.
The authors of these actions also committed acts calculated to conceal the truth. Pressure was used to force witnesses to change their testimony and those who would not were physically eliminated. And so it was that on September 8, 1989, the last of the key witnesses was murdered. The authors also took measures to cover up their tracks, which included efforts to wash away the bloodstains in the church and to hide the bodies of the victims, most of which have not yet been found. Their actions were also calculated to thwart the proceedings conducted by those organs of the Peruvian State that were endeavoring to ascertain the facts and, as the case gained notoriety, to obtain from organs of the Peruvian State versions that were consistent with those spread by the Army.
As a result of all these actions, the Office of the Attorney General of the Nation has not indicted any of the authors of these events, though the Special Prosecutor did submit an official report prepared on the basis of his investigations wherein he charges that the individual that bears the principal responsibility for these events is the Chief of the Political-Military Command of Ayacucho. The Government Commission -also known as the Commission of Notables-, appointed by the Executive Power, also failed to arrive at any clear-cut conclusions concerning the responsibility for these actions. It should also be noted that the majority opinion of the Senate Investigating Committee also concurs with the Army's version of what happened, while two minority opinions hold the Army responsible. The Military Court failed to convict anyone for these actions and dismissed the respective case. All this could not have happened without complicity at the highest decision-making levels within the Peruvian State. These events are not unprecedented in Peru, where there have been other killings by the security forces. Moreover, when it comes to the practice of enforced disappearance of persons, Peru is at the top of the list.
1. Map of the area.
2. Report of the Office of the Inspector General of the Army, May 31, 1988,
events under examination.
3. Cayara pleadings
4. Report of General José Valdivia Dueñas to the Provincial Prosecutor of Cangallo,
Dr. Jesús Granda, dated November 18, 1988.
5. Report of the Special Prosecutor, Dr. Carlos Escobar Pineda, dated October
6. Report of the Provincial Prosecutor of Cangallo, Dr. Jesús Granda.
7. Report of the Prosecutor for Victor Fajardo, Dr. Rubén Vega Cárdenas.
8. Report of the Senate Investigating Committee.
9. Attachment to the statement made by Amnesty International before the
Inter-American Commission on Human Rights, February 1991.
B. Statement of the specific facts
1. Death and subsequent disappearance of Esteban Asto Bautista
On May 14, 1988, the Army seized total control of the area and some 80 soldiers, organized into seven patrols, entered the district of Cayara, province of Víctor Fajardo, Department of Ayacucho.
At the entrance to the town, at the place known as Alpajulo, they arbitrarily executed ESTEBAN ASTO BAUTISTA. That night, the soldiers returned to look for the victim's body and removed it.
1. Report of General Valdivia to Prosecutor Granda, dated November 18, 1988, wherein he mentions the operation involving seven patrols and the fact that there was a dead man at the entrance to the town.
2. Testimony of Indalecio Palomino de la Cruz to the Special Prosecutor, dated May 21, 1988.
3. Testimony of Martha Crisóstomo García to the Special Prosecutor, dated May 21, 1988, on what Magda Suarez Valenzuela, wife of Esteban Asto Bautista, had said.
4. Testimony of Marco Antonio Taquiri Infante before the Special Prosecutor, May 26, 1988.
5. Testimony of Maximiliana Noa Ccayo to the Special Prosecutor, dated May 26, 1988.
6. Testimony of Valeriana Ipurre Marcatoma de Apari to the Special Prosecutor, dated May 26, 1988.
7. Minority Report of the Senate Investigating Committee, prepared by Senator Javier Diez Canseco (IACHR Report 29/91, page 88), on statements made by the victim'_ wife.
2. The Material Damage
The soldiers then entered the town, where they damaged the clinic, the premises of the Town Council and the school. They looted and damaged stores and other private property. Some of the damage and thefts involved property belonging to persons whose names appeared on a "list of subversives" that the Army had in its possession and whose existence it acknowledged. That list was later published by the press. Some of those whose property was damaged were being sought openly by the Army and were killed, either that very day or thereafter. To locate the homes and then identify the persons on the list, the soldiers forced Marcial Crisóstomo de la Cruz to accompany them.
1. On-site inspection conducted by the Special Prosecutor on May 21, 1988 (page 7 of the Report of the Special Prosecutor), an inquiry that concerned the following property:
a. That of Gregorio Ipurre Ramos, located in Cayara; the house was burned completely to the ground.
b. That of Lucía Tello, located in Cayara, which was also the residence of Dionisio Suárez Palomino; the door had been broken down and some of her belongings burned; the flames had gone as high as the ceiling as the rafters were already sooty; damage estimated at I./40,000.
c. That of Primitiva Cabrera de Palomino, located in Cayara; the general store was found to have been looted by soldiers on May 14, 1988; the stolen property was valued at I./.20,000.
d. That of Modesto García Pariona, located in Cayara; it was established that the general store had been looted by soldiers on May 14, 1988; the economic loss was I/.50,000; the door and the glass shelving had been broken and electrical devices stolen, the value of the loss being I/.30,000.
e. That of Teodosio Torres Tinco, in Cayara; the door of the house had been forced; Army soldiers had stolen cash in the amount of I/.30,000.
f. That of Catalina de la Cruz Vda. de Torres, located in Cayara; Army soldiers stole I/.40,000 in cash from her general store.
g. That of Paulina Suárez Bautista, in Cayara; a food store where Army troops broke down the door and stole I-/2,000 in cash. The inquiry was suspended at 9:00 p.m., to resume on May 26, 1988, at 2:00 p.m.
h. At the Cayara Medical Station, where the witness Agapito Tinco Noa was present; by the time of the inspection everything was found to be in order, though it was said that on May 14 everything had been torn apart by the soldiers.
i. At the premises of the Cayara Town Council; by the time of the inquiry everything had been repaired and recently painted, though one could still see that a door had been forced open.
j. At the home of Apolonio Huamaní, located in Cayara, where the door had been broken down and everything had been torn apart.
k. At the Cayara Education Center, where the inquiry found that there were five aluminum pots missing, which the Army troops were said to have been using.
l. That of Enedina García Pariona, located in Cayara; the door of the general store had been forced open, ripping off the hinges and latches, which were turned over as the corpus delicti; Army soldiers were said to have stolen cash and electrical devices valued at I/.15,000.
m. That of Professor Emiliano Aquino Paico, located in Cayara, where the door had been forced.
2. A letter that an anonymous informant sent to an Army Captain, in which the following persons are named as being terrorists:
José Joayo Rivera (killed in Ccechuaypampa on May 14, 1988)
Dionisio Suarez (janitor at the school; home damaged and killed in Ccechuaypampa)
Román Hinostroza Palomino
Gregorio Ipurre (house burned, arrested June 29, 1988 - see II.B.7. - and disappeared)
Justiniano Tinco García (Acting Mayor, murdered on December 14, 1988, while travelling - see II.B.8-)
Guzmán Bautista (school janitor, arrested June 28, 1988 - see II.B.7.- and disappeared)
Ceseliano Apari de la Cruz
Luis Chipana García
Victoriano Apari García
Mauro García Palomino
Samuel García Palomino (arrested, May 18, 1988, murdered and buried at Pucutuccasa, see II.B.6.)
Arotinco Félix Curo and
Alejandro Echaccaya Villagaray (arrested on May 18, 1988, murdered and buried at Pucutuccasa, see II.B.6).
The existence of this list has been acknowledged in the Report that the Chief of the Ayacucho Political-Military Command sent to Prosecutor Jesús Granda dated November 18, 1988, and to which a copy of the anonymous letter that included that list was affixed. The existence of the list is also acknowledged in Official Communique No. 064/S-2/BCS 34/20.00, which appears in the Report of the Office of the Army Inspector General sent by General Jaime Enrique Salinas Sedó, Acting Commandant of the II Military Region, dated May 31, 1988. The list was published in the magazine OIGA, dated May 23, 1988.
3. Testimony by Fernandina Palomino Quispe before the Special Prosecutor, on June 19, 1988, page 4. She was the wife of Solano Ccayo Noa, who was murdered at Ccechuaypampa and was herself murdered on December 14, 1988, while on the road, see II.B.8.
4. First testimony given by Martha Crisóstomo before the Special Prosecutor, May 21, 1988. Murdered on September 8, 1989 in Ayacucho, see II.9.
3. The Deaths at the Cayara Church
On the morning of that May 14, the soldiers went to the church of Cayara where the festival honoring the town's patron saint, the Virgin of Fatima, was coming to an end; they ordered those inside the church to go outside, to the town square, where they were assembling a number of people. They then proceeded to separate the women and children from five men, whom they ordered back into the church. The women and children heard the men screaming, as if they were being tortured. The men were kept inside the church that night. The soldiers surrounded it and did not allow relatives and townspeople to enter or go near the church.
Inside the church, the soldiers killed:
1. EMILIO BERROCAL CRISOSTOMO
2. PARTICIO CCAYAO CAHUAYMI
3. TEODOSIO NOA PARIONA
4. INDALECIO PALOMINO TUEROS and
5. SANTIAGO TELLO CRISOSTOMO
They then proceeded to move the bodies during the night. In the days that followed, they scrubbed down the church floor with cooking oil and dirt to remove the bloodstains.
The bodies of the victims were later found by their relatives at Quinsahuaycco, where they were buried. On May 30, an attempt was made to conduct an exhumation, but the graves were discovered empty; however, they still contained human hairs and pieces of human skin that, according to the tests conducted by the police, dated from the time these events occurred.
1. Testimony of Paulina Gonzalez Cabrera de Noa before Special Prosecutor on May 21, 1988, plus her expanded statement, May 26, 1988.
2. Testimony of Julia Noa Palomino before the Special Prosecutor, May 27, 1988.
3. Testimony of Fabián Suarez Pariona before the Special Prosecutor, on June 11, 1988.
4. Testimony of Victoriana Meza Cabrera before the Special Prosecutor, June 2, 1988.
5. Exhumation proceeding conducted on May 30, 1988, by the Judge of Cangallo, Dr. César Amado Salazar, in the company of forensic physicians from Lima, Dr. Victor Maurtua and Dr. Rodolfo Díaz Cucho, and in the presence of Special Prosecutor and the witness Julia Noa González.
6. Examination Report No. 02384, dated August 10, 1988, from the Peruvian Forensic Medicine Institute.
4. The Deaths and Disappearances at Ccechuaypampa, obstruction of proceedings and concealment
A number of military patrols continued on their way on the afternoon of May 14 and arrived at Ccechuaypampa, a place that is an hour and a half walk from Cayara. There they arrested a group of campesinos who were returning from Ccechua after working on their harvests; the soldiers separated the women and children from the men and began to torture the latter mercilessly, interrogating them about the ambush that occurred the previous day. They cut off cactus leaves and placed them on the backs of the campesinos, as the latter lie face down on the ground; they stepped on the campesinos and beat them. The soldiers then killed them using their own work tools, axes, hammers, knives, sickles and machetes. Those who were not killed outright, they shot. As they killed them, they "piled them up like sheep at the foot of a molle tree" (Testimony of Fernandina Palomino). All of this occurred in the presence of the women and children. It should be noted that some of those tortured survived, as in the case of the minor Ciro Ccayo Huayanay. Those who died as a result of these actions were buried in at least five graves, from which the soldiers removed their bodies. Those killed in these actions were:
1. DAVID CCAYO CAHUAYMI (62)
2. SOLANO CCAYO NOA (29)
3. JOSE CCAYO RIVERA (56)
4. ALEJANDRO CHOCCÑA ORE 958)
5. ARTEMIO GONZALEZ PALOMINO (45)
6. ALFONSO HUAYANAY BAUTISTA (18, student)
7. IGNACIO IPURRE SUAREZ (55)
8. EUSTAQUIO ORE PALOMINO (17, student)
9. ZACARIAS PALOMINO BAUTISTA (58)
10 AURELIO PALOMINO CHOCCÑA (38)
11. FIDEL TEODOSIO PALOMINO SUAREZ (62)
12. FELIX QUISPE PALOMINO (48)
13. DIONISIO SUAREZ PALOMINO (42)
14. PRUDENCIO SULCA HUAYTA (58)
15. EMILIANO SULCA ORE (32)
16. ZOZIMO GRACIANO TAQUIRI YANQUI (940)
17. TEODOSIO VALENZUELA RIVERA (60)
18. IGNACIO TARQUI CCAYO (50)
19. HERMENEGILDO APARI TELLO
20. INDALECIO PALOMINO IPURRE
21. PATRICIO CCAYO PALOMINO
22. ILDEFONSO HINOSTROZA BAUTISTA (20)
23. PRUDENCIO PALOMINO CCAYO (55)
24. FELIX CRISOSTOMO GARCIA
Among those who survived the torture were:
1. CIRO CCAYO HUAYANAY
2. TEOFILO CRISOSTOMO GARCIA
3. NESTOR VALENZUELA PALOMINO
On the night of May 14, 1988, Valeriana Ipurre Marcatoma de Apari, who lives near Ccechuaypampa, received MAGDALENO GUTIERREZ in her home. Gutierrez arrived complaining of a strong pain in the head, saying that they had shot him. Together with her mother, SEGUNDINA MARCATOMA SUAREZ vda. de IPURRE, age 80, the two women dressed Gutierrez' wound, but did not turn on the light for fear of the soldiers, since both of them had seen what had happened in Ccechuaypampa. At five or six in the morning, Army troops arrived and forced Valeria Ipurre to leave her home with her children, so that her mother and Magdaleno Gutierrez remained inside. According to Valeria Ipurre's testimony, she sent her young son to see what was happening. The first day he saw his grandmother and Mr. Gutierrez, but on the second day he did not see them and they have been missing ever since.
On May 20, 1988, the Provincial Judge of Cangallo, Dr. Simón Palomino Vargas, did an on-site inspection at Cayara and, based on what relatives had told him concerning the existence of bodies at Ccechuaypampa, attempted to reach that point; he was, however, forced to suspend the proceedings when the group heard shots from a nearby hill, whereupon the military escort told them that they must not continue any further.
On May 21, another attempt was made to conduct an exhumation proceeding at Ccechuaypampa but a military control at Huancapi, under the command of "Major Yauyos," did not allow the experts accompanying the Judge of Cangallo to continue, thereby thwarting the proceeding yet another time.
On May 25, the soldiers ordered the townspeople not to come out of their houses, loaded the bodies that were at Ccechuaypampa on horseback and took them off in the direction of Huayla. On May 27, 1988, the Judge of Cangallo, Dr. César Carlos Amado Salazar, conducted an exhumation during the course of which five empty graves were found; the graves had the odor of bodies and the remains that were found were analyzed by forensic medical laboratories, which established that they were human remains.
On June 11, at the request of the Special Prosecutor, the Judge of Cangallo conducted an on-site inspection in connection with the removal of the bodies denounced by several witnesses; approximately one meter above the path in question, twisted among the plants bordering that path, strands of human hair and pieces of human skin were found, which was consistent with the witnesses statements to the effect that the bodies were taken away on pack animals.
1. Statement by Ciro Ccayo Huayanay before the Special Prosecutor, May 26, 1988.
2. Testimony by Fernandina Palomino Quispe for the Special Prosecutor, May 19, 1988 (II.B.2, para. 3).
3. Testimony by Priscila Isabel García Oré before the Special Prosecutor, May 19, 1988.
4. Testimony By Valeriana Ipurre Marcatoma de Apari before the Special Prosecutor, May 26, 1988.
5. Expanded testimony by Paulina Gonzalez Cabrera before the Special Prosecutor, June 26, 1988 (II.B.3, para. 1).
6. Testimony by Marco Antonio Taquiri Infante before the Special Prosecutor, May 26, 1988 (II.B.1, para. 4).
7. Testimony of Maximiliana Noa Ccayo before the Special Prosecutor, May 26, 1988 (II.B.1, para. 5).
8.* Testimony of Delia Ipurre Noa before the Special Prosecutor, May 26, 1988.
9. Testimony of Aurora Palomino Suarez before the Special Prosecutor, June 10, 1988.
10. Testimony by Crescencia Sulca Palomino before the Special Prosecutor, June 10, 1988.
11. Testimony by Urbana Noa Suarez de González before the Special Prosecutor, June 10, 1988.
12. Testimony by Maura Palomino de Oré before the Special Prosecutor, June 10, 1988.
13. Testimony by Lucía Tello de Suarez before the Special Prosecutor, May 21, 1988.
14. Testimony by Teodora Apari Marcatoma de Palomino before the Special Prosecutor, May 21, 1988.
15. On-site inspection report, dated May 20, 1988, performed by the Judge of Cangallo, Dr. Simón Palomino Vargas, in connection with statements by relatives concerning the existence of bodies in Ccechuaypampa, a proceeding that had to be suspended because of shots fired at the retinue from a nearby hill.
16. Report of the Special Prosecutor on the proceeding conducted to exhume the bodies at Ccechuaypampa which procedure was frustrated due to the obstacles imposed by military personnel on May 21, 1988 (Annex No. 6, page 9).
17. A proceeding to exhume and raise bodies, conducted on May 27, 1988, by the Judge of Cangallo, César Carlos Amado Salazar, at Ccechuaypampa, during which the existence of empty graves containing human remains and a strong odor of corpses were discovered.
18. Forensic Biology Opinion No. 1930-88, from the Central Laboratory of the Peruvian Investigating Police Bureau.
19. Forensic Medicine Report No. 3615/88, on the skin of the hand of Eustaquio Oré Palomino.
20. Forensic Biology Expert Report No. 1930-88 to determine the characteristics of the traces of blood and hair.
21. Forensic Medicine Report No. 4286/88, on a piece of cranium.
22. Examination Report No. 02384, conducted in connection with the exhumations of May 27, 1988.
23. The on-site inspection of the Special Prosecutor, dated June 11, 1988.
5. Torture in the Cayara District Council
On the night of May 14, 1988, soldiers took into custody INDALECIO PALOMINO DE LA CRUZ, CESAR DE LA CRUZ IPURRE, AVELINO TARQUI QUISPE, DOMITILA ESQUIVEL FERNANDEZ and BENEDICTA MARIA VALENZUELA CCAYO; the last of these was accompanied by her young child. These people were taken to the premises of the Cayara District Council, where some 15 soldiers proceeded to torture them throughout the night, interrogating them about the ambush that occurred the previous day and about their alleged connections with subversive groups. The torture consisted of beatings, burns and lesions caused by pliers. Four of these people were released the following day; Indalecio Palomino was released on May 16.
1. Testimony of Indalecio Palomino de la Cruz before the Special Prosecutor, May 21, 1988 (ii.B.1, para. 2).
2. Testimony of Benedicta María Benedicta Valenzuela Ccayo before the Special Prosecutor, June 10, 1988.
3. Testimony of Fernandina Palomino Quispe before the Special Prosecutor, May 19, 1988 (II.B.2, para. 3).
4. Testimony of Fabían Suarez Pariona before the Special Prosecutor, June 11, 1988 (II.B.3, para. 3).
6. Arrests and subsequent deaths of Alejandro Echeccaya Villagaray, Samuel García Palomino and Jovita García Suarez
On the morning of May 18, General José Valdivia Dueñas and ordered the townspeople to assembly on the sports field, which is where the helicopters landed. Around midday, he read aloud a list of names asking that the individuals in question turn themselves in since they were regarded as subversives. The list coincided with the names included in the aforementioned letter that the Army had in its possession, wherein an anonymous townsperson reported the names of alleged subversives, except in the case of Dionisio Suárez Palomino and José Ccayo Rivera, who had been killed in Ccechuaypampa on May 14. Many people told General Valdivia that the individuals named were not subversives. At that point, none of those named by General Valdivia was found; he left in the helicopter, after having installed a permanent military garrison at the Cayara school.
At around 3:00 on the afternoon of May 18, an Army Patrol arrived under the command of an Army officer dressed in khaki pants, wearing a black cap, with red hair and a ruddy complexion; he would later be photographed. The patrol went out in search of those named by General Valdivia. On May 18, in Erusco, this patrol arrested SAMUEL GARCIA PALOMINO and JOVITA GARCIA, the first of whom was on the list. They were placed under arrest and taken to the Erusco school, in the presence of a number of the people who lived in that vicinity. Thirty other people were being held at the school at the time. On May 19, ALEJANDRO ECHECCAYA VILLAGARAY was arrested; he, too, figured on the list taken from the anonymous letter.
On May 20, six soldiers took Jovita García to her home, where she was seen by her relative Zózima García, whom soldiers threw out of the house while they conducted a search. They then released Jovita García but withheld her documents. That night, the soldiers again went out in search of Jovita García, and found her at the home of her aunt, Lucía Bautista Sulca, the soldiers arrested Jovita García again and took her away together with ECHECCAYA and GARCIA PALOMINO. When they arrived in Yarccapampa, the military patrol and the detainees spent the night at the home of a campesino by the name of Julio Torres. Fifteen days later, the wives of the two men who had been arrested, Delfina Pariona Palmino and Juana Apari Oré, found articles of clothing and evidence of the existence of a grave on Mount Pucutuccasa. Afraid, they returned a month later and there found the bodies. All the evidence pointed to the fact that the detainees had been executed.
The body of Jovita García was exhumed and identified by her sister Flavia and brother Justiniano García Suarez on August 10, 1988, in the inquiry conducted by Prosecutor Escobar. In that same proceeding, Justiniano García identified the bodies of Alejandro Echeccaya and Samuel García Palomino; there was also a fourth body, which could not be identified. The Special Prosecutor obtained the fingerprints from the body of Samuel García Palomino. Because of a lack of transportation, only the body of Jovita García was transported to the Cangallo Hospital, where an autopsy was conducted and she was identified by her niece Martha Crisóstomo García. Senator Carlos Enrique Melgar requested another exhumation of the body of Jovita García, a proceeding that was to have been conducted on November 9, 1988; it was never conducted, however, because the bodies disappeared from the Cangallo cemetery before the proceeding took place. On August 19, 1988, the Special Prosecutor finally managed to conduct another proceeding to exhume the three bodies found on Mount Pucutuccasa, in the presence of the Senate Investigating Commission; it was discovered that the three bodies had disappeared.
1. Testimony of Martha Crisóstomo García before the Special Prosecutor, May 21, 1988.
2. Testimony of Flavia García Suarez before the Special Prosecutor, June 23, 1988.
3. Testimony of Antonio Ccayo Quispe de García before the Special Prosecutor, August 19, 1988.
4. Testimony of Juana Apari Oré before the Special Prosecutor, August 19, 1988.
5. Testimony of Lucía Bautista Sulca before the Special Prosecutor, August 19, 1988.
6. Testimony of Zózima García before the Special Prosecutor, August 19, 1988.
7. Testimony of Delfina Pariona Palomino de Echeccaya before the Special Prosecutor, August 19, 1988.
8. Photograph of the Army officer in command of the patrol that arrested Jovita García, Alejandro Echeccaya and Samuel García Palomino.
9. Report of the exhumation conducted of the body of Jovita García Suárez, August 10, 1988.
10. Autopsy report for Jovita García, August 10, 1988.
11. Report of the proceeding to continue with exhumation of the bodies from the grave on Mount Pucutuccasa, August 19, 1988, wherein it is established that the bodies had disappeared.
12. Forensic Medicine Report No. 5228/88 on portions of the heart, lungs and skin from the body of Jovita García.
13. Forensic Medicine Report No. 5191/88 on fragments from the cranium of Jovita García.
14. Ballistics report No. 2901/88 on the two shells found on August 10, 1988, during the exhumation conducted on Mount Pucutuccasa.
15. Forensic biology report No. 2569/88.
16. Forensic biologic report No. 2493/88, done on the bloodstains on a hat and on stones.
17. Forensic biology report No. 2522/88, done on fragments of bone, two large leaves and hair.
18. Anatomical pathological study No. 200-88, on portions of the body of Jovita García.
7. Disappearance of Guzmán Bautista Palomino, Gregorio Ipurre Ramos, Humberto Ipurre Bautista, Benigna Palomino de Ipurre and Catalina Ramos Palomino
On the night of June 29, 1988, uniformed Army soldiers arrested GUZMAN BAUTISTA PALOMINO, GREGORIO IPURRE RAMOS, HUMBERTO IPURRE BAUTISTA, BENIGNA PALMINO DE IPURRE and CATALINA RAMOS PALOMINO in their homes in Cayara, and took them via Army truck to the garrison that had been set up in Cayara. The first two were on the list of names read by General Valdivia, taken from the anonymous letter. They were also key witnesses to the events that occurred in Cayara and had made statements in the presence of Prosecutor Escobar, the Senate Investigating Committee and the Peruvian press. The last three of these individuals were the father, mother and sister of Gregorio Ipurre Ramos, respectively. In the early morning hours, the detainees were put in an Army truck that headed out in the direction of the Huancapi Military Base. To date, the five individuals named here are still listed as arrested-disappeared.
1. Investigations No. 476 and No. 477 by the Special Prosecutor into complaints filed by relatives concerning disappearances.
2. Testimony by relatives of the disappeared to members of Americas Watch,
published in Tolerating Abuses, Violations of Human Rights in Peru, an Americas
Watch Report, October 1988, pp. 49-50.
On December 14, 1988, the truck carrying JUSTINIANO TINCO GARCIA, FERNANDINA PALOMINO QUISPE and ANTONIO FELIX GARCIA TIPE, along with some 15 other individuals, was stopped by hooded persons in the vicinity of Toccto, near a military control post and a communications station guarded by troops of the Security Police, 40 kilometers from Ayacucho. The individuals wearing hoods selected the three people named above and killed them.
Justiniano Tinco was Mayor of Cayara and was on the list taken from the anonymous letter; his wife, Benedicta María Valenzuela Ccayo, had been tortured in the District Council. Fernandina Palomino was the Secretary at the Mayor's Office and a key witness to the events in Cayara, having testified in the presence of Prosecutor Escobar, other authorities and the press, stating that the military were responsible for what happened. The third person was the driver of the truck.
1. Press report.
9. Death of Martha Crisóstomo García
On September 8, 1989, eight hooded individuals dressed in military uniform entered the home of MARTHA CRISOSTOMO GARCIA in the neighborhood Cooperativo Ciudad de las Américas, San Juan Bautista de Huamanga, Ayacucho, at 3:00 a.m. They shot her a number of times and killed her.
The victim was an extraordinary witness inasmuch as she had witnessed and testified to a number of the key elements in the chain of evidence in this case and had made direct charges against General Valdivia. It is also important to note that she had identified the body of her aunt Jovita García and had been held for fifteen days at the Huancapi Military Garrison following the central events in Cayara, whereupon she was released thanks to the efforts of human rights agencies.
Martha Crisóstomo García had left Cayara for reasons of safety and on November 19, 1988, had sent an official communication to the Special Prosecutor of Ayacucho asking that she not be transferred To Cayara from the Huamanga Hospital where she was working at the time, because she feared for her life.
Though there were any number of witnesses to the murder who were attracted to the scene because of the victim's screams and despite the fact that three bullets were found in her body, the investigation produced no results whatever; not even the bullets were identified. The case was provisionally filed through a resolution adopted by the Provincial Prosecutor of Ayacucho on January 18, 1990.
1. Letter from Martha Crisóstomo to the Special Prosecutor dated November 19, 1988 requesting that he intercede to prevent her being transferred back to Cayara, since she feared for her life.
2. Letter from the Special Prosecutor to the Superior Criminal Prosecutor, dated November 24, 1988, informing him of Martha Crisóstomo's request.
3. Decision of the Provincial Prosecutor of the Third Public Prosecutor's Office of Ayacucho, José Macera Tito, dated January 18, 1990, ordering that the proceedings into the death of Martha Crisóstomo be temporarily filed.
4. Letter from the Attorney General of the Nation to the Secretary General
of Amnesty International, dated February 28, 1990, wherein he transmits "a
copy of the decision handed down in the investigation into the death of MARTHA
CRISOSTOMO GARCIA, a witness in the `Cayara Case'..."
III. MEASURES TAKEN BY THE STATE
When the facts in this case were made public, a series of measures were taken by various organs of the Peruvian State, including the Department of Justice, the Legislature, the Executive Office and the Army. This subheading is devoted to a brief summation of these measures.
1. The Department of Justice
On May 17 and 18, 1988, various complaints were filed with the Acting Attorney General of the Nation, Dr. Manuel Catacora González and with the Special Prosecutor for Disappearances of Ayacucho, Dr. Carlos Escobar Pineda. Those complaints recounted the facts that are the subject of this case. On May 19, 1988, the Office of the Attorney General of the Nation ordered that Special Prosecutor Escobar take charge of the corresponding investigation, an order confirmed by the Senior Criminal Prosecutor on May 24.
On October 3, 1988, the Special Prosecutor received a communication dated September 21, from the Senior Criminal Prosecutor, Dr. Pedro Méndez Jurado, asking that he submit the final report on the investigation conducted. On October 13 of that year, Dr. Carlos Escobar Pineda sent in his final report, which included the following (see Annex No. 5):
... that there is sufficient evidence to be able to file a complaint with the Lower Court Judge of Cangallo, since it is within his jurisdiction. The complaint would be for the commission of the crimes of: homicide with extreme cruelty, provided for and punishable under Article 152 of the Penal Code, amended by Decree Law 18968, the victim being Jovita García Suárez; homicide, provided for and punishable under Article 150 of the Penal Code, the victims being Alejandro Echaccaya Villagaray and Samuel García Palomino; violations of individual liberty, provided for and punishable under Article 340 of the Penal Code, the victims being each and every one of those named in this report as disappeared, including those listed as dead and as having been killed in Cayara and Ccechua, until such time as their bodies appear and the charge can be expanded to include the crime of homicide; robbery, provided for and punishable under Article 238 of the Penal Code, the victims being the townspeople listed under point II.B of this report; damages, provided for and punishable under Article 259 of the Penal Code, the victims being the townspeople Gregorio Ipurre Ramos and Lucía Tello de Suárez referred to under point II.B of this report; violation of the administration of justice, provided for and punishable under article 332 of the Penal Code. The Chief of the Political-Military Command of SZSNC-5 of Ayacucho, Peruvian Army General José Valdivia Dueñas, is presumed responsible, under the provisions of Article 100 of the Penal Code, amended by Law 12341. The facts investigated point to commission of a continuous crime that began on May 14, 1988 and ended between May 20 and 21 of that month and year with the death of the three townspeople found at Pucutuccasa, a crime involving material authors, who executed an order, and intellectual authors who intentionally induced others to the commission of those crimes. The Office further finds that there is sufficient evidence to indict the forenamed General as the individual allegedly responsible. During the course of the corresponding preliminary investigations, said general should indicate and identify those who carried out his orders in committing the aforementioned offenses.
As for the crime of rape, which is also part of this investigation, one of the allegedly aggrieved parties has stated that she was not raped, while the other has not been located.
It should be pointed out that in April 1989, the Attorney General of the Nation decided to terminate Prosecutor Escobar's posting in Ayacucho, so that the latter had to leave that city and return to the city of Iquitos, where he took over his duties on May 3 of that year. On July 31, 1989, Dr. Carlos Escobar Pineda was permanently severed from the Office of the Attorney General of the Nation.
On November 11, 1988, the Attorney General sent the Special Prosecutor's file to the Provincial Prosecutor of Cangallo, Dr. Jesús Granda Olaechea, so that he might enlarge upon the investigations. Prosecutor Granda addressed the events that began on May 13, 1988, in Erusco and Cayara, and issued his finding on November 24, 1988 (Appendix No. 6) wherein he decided not to bring any criminal charges for the crimes of homicide, vandalism, robbery, looting, crimes against individual freedom, arson, assault, battery, violation of home, sexual violation and crimes against the administration of justice. He justified his decision on the grounds that it was impossible to either identify or single out the authors of the "alleged crimes." Therefore, Prosecutor Granda decided to file the proceedings provisionally.
On August 29, 1989, the Attorney General of the Nation, Dr. Manuel Catacora G., nullified Prosecutor Granda's decision and ordered that the investigations be expanded. He assigned the Prosecutor of the Province of Cangallo, Dr. Rubén Vega, to the case. On January 23, 1990, Prosecutor Vega decided not to file criminal charges and to file the case permanently (Appendix No. 7). On January 30, 1990, the Office of the Superior Prosecutor of Ayacucho confirmed Prosecutor Vega's decision. By virtue of those decisions, the case was never brought to trial before the regular courts since, under Peruvian law, it is up to the Department of Justice to file criminal actions with the judiciary.
As for the proceedings conducted in the case of the summary executions of Justiniano Tinco García, Fernandina Palomino Quispe and Antonio Félix García Tipe, which occurred on December 14, 1988, and the murder of Martha Crisóstomo García on September 8, 1989, those cases were provisionally filed by the Department of Justice.
2. The Army
On May 18, 1988, the Security Zone of the Peruvian Army Center issued the following official communique No. 003:
The national security zone of the Center hereby informs the citizenry of the following:
1. On Friday, May 13, at approximately 23:00 hours, in the vicinity of the town of Cayara, in the Province of Victor Fajardo, in the Province of Ayacucho, more than a hundred subversive criminals ambushed a patrol consisting of two Army vehicles, which was relieving men on duty between the towns of San Pedro de Huaylla and Huancapi.
2. As a result of this criminal action, the following members of the Peruvian Army perished:
- Infantry Captain Arbulú Sime José, Second Sergeant Vargas Támara Angel, Corporal Roldán Ortíz Fabián, Corporal Espinosa de la Cruz Carlos.
Fifteen Army soldiers were wounded, four of whom are in grave condition.
The murdered captain was buried in Lima on Monday, May 16, while the other troopers who died were buried that same day in Huaraz.
- It was also established that in repelling the attack, the soldiers managed to kill six unidentified subversives; the evidence discovered also indicates that there are an undetermined number of wounded among them.
3. The Peruvian Army reinforcement patrols began to track down the subversive column that fled in the direction of the town of Cayara. The town was found completely abandoned, except for some children and elderly people who said that there were four bodies in the town church.
4. In prosecuting the operations, there were additional clashes in the vicinity of the town and an undetermined number of casualties among the ranks of the subversives.
5. On Monday, May 18, the Political-Military Command reported these facts to the Ayacucho Prosecutor's Office so that the appropriate legal action might be taken. For its part, through the competent organs, the Peruvian Army launched the appropriate investigation.
6. The unfounded claim made by authorities from the area to the effect that many townspeople of Cayara lost their lives, is utterly false, as are the accounts of a bombing that never occurred; the obvious purpose of such charges is to prevent the forces of law and order from pursuing their efforts to capture the subversive criminals who ambushed the Army patrol.
7. The search operations continued and their results will be reported as soon as they are available.
On May 30, 1988, the Office of the Army Inspector General released a report on the events denounced (Appendix No. 4). On November 18, 1988, the Chief of the Political-Military Command of Ayacucho, General José Valdivia Dueñas, sent the following report to Prosecutor Jesús Granda O.:
1. Concerning the AMBUSH of a MILITARY CONVOY at ERUSCO-CAYARA
a. On May 13, 1988, at approximately 22:30 hours, an Army CONVOY was ambushed in the region of ERUSCO in the district of CAYARA, Province of VICTOR FAJARDO. The assailants were some 200 subversives, consisting of men, women and children. The ambush left one captain (Captain ARBULU SIME JOSE), one sergeant second class and two corporals dead, as well as a number of wounded, five of whom were very gravely wounded; one troop carrier and a number of rifles were also completely destroyed. Ten rifles and other articles also disappeared.
b. During the clash with the surviving military personnel, four subversive criminals died (three men and one woman), and it is assumed that there were a number of wounded as well; they may have been taken to CAYARA because of the considerable trail of blood that was found on the roads leading to that town.
c. Once they learned of the attack, patrols from HUANCAPI, PAMPA, CANGALLO and AYACUCHO descended upon the scene of the events to assist the ambushed patrol and begin to search for and track down the subversives.
d. On May 14, 1988, the first patrol that had gone in the direction of CAYARA following the trail of blood, found a dead body at the entrance to the town and was told by a number of children that there were five people dead inside the church. CAYARA was virtually abandoned.
e. The patrol, which arrived at CAYARA at approximately 15:00 hours after receiving reports to the effect that a large group of criminal subversives had headed in the direction of JESHUA-MAYOPAMPA (on the MANTAS or CANGALLO river), continued to move in that direction. While en route, at around 1:30 hours, the patrol was attacked from a wooded hillside, by individuals carrying rifles and explosives; there was a clash that left six subversives dead; one rifle that had belonged to the ambushed patrol was recovered, as was an MGP pistol (property of the Civil Guard), bags of dynamite and four blood-stained Peruvian Army blankets.
f. When the criminal subversives retreated in the direction of MAYOPAMPAA at around 18:00 hours, the patrol followed in pursuit until it reached that community, at around 4:00 hours on May 15, 1988.
g. Another mounted patrol that took the right flank (passing through CHINCHEROS) headed toward MAYOPAMPA, found 500 dynamite sticks in the vicinity of HUAMANMARCA, but no inhabitants; however, on the return, as the patrol crossed the PAMPAS river on May 15, 1988, at 14:00 hours, it was attacked by approximately 25 subversives. The subversives scattered when the patrol fired back, and suffered perhaps two dead and others wounded. The patrol lost one rifle that fell into the river.
NOTE: a diagram is attached (Annex 1)
h. When the first patrol returned from MAYOPAMPA via the same route on May 15, 1988, the six bodies at JESHUA were no longer there nor were the six that had been seen in CAYARA the previous day.
i On May 16, 1988, through letter No. 063, the Pampa Cangallo Battalion Chief filed a complaint with the Office of the Provincial Prosecutor of CANGALLO and HUANCAPI concerning the terrorist attack; the names of certain individuals who allegedly helped plan and execute the ambush were included in the complaint.
j. Because of a tendentious and intentionally exaggerated report released by the Mayor of HUAMANGA Fermín ASPARRENT TAYPE, on May 17, 1988, both the Office of the Army Inspector General and various delegations of officials and journalists who went to CAYARA have established that there was neither any harassment nor bombing there; no women were raped; no children were killed; there was never any "slaughter" of some 100 campesinos; they were, however, told that some 18 civilians died during the clashes that took place on May 13, 14 and 15, 1988. Moreover, the Office of the Army Inspector General, during the investigation it conducted, proved that the complaint filed with the Huamanga Prosecutor's Office by three alleged survivors of CAYARA concerning the death of 20 individuals and 17 disappearances was false (a copy of documents signed by the alleged dead and disappeared is attached, presented on May 22, 1988, by the authorities of CAYARA, Annex 2).
k. Further, the Office of the Army Inspector General has also established that the people of CAYARA participated in the Erusco ambush on the military convoy, which is obvious from the following facts:
- In the clash that took place at JESHUA between an Army patrol and CAYARA residents, an FAL No. 57786 and four blankets that belonged to the patrol ambushed at ERUSCO were recovered, as was the submachine gun MGP No. 16606, belonging to the CGP.
- Subversive propaganda and explosive materials were found in various homes in CAYARA and the surrounding area.
- In the home of one CAYARA resident, pieces of Army uniforms and a cap of the kind used by military personnel were found.
- The written complaint (letter to the Chief of the BCS of SAN PEDRO) brought by a resident of CAYARA, to the effect that there were individuals there who were associated with the subversives and that an ambush was being prepared and that the townspeople knew about it; unfortunately, this letter arrived too late (a copy is attached, Annex 3).
l. We believe it is important to point out, Mr. Prosecutor, that the purpose of the subversive propaganda spread in the communications media thanks to the deliberate disloyalty of the Special Prosecutor (ESCOBAR PINEDA) and in connection with the events alleged to have occurred in CAYARA, has been to slander the Army and interfere with the countersubversive operations.
2. Concerning the discovery of an alleged "COMMON GRAVE" and the body of a woman alleged to be JOVITA GARCIA.
a. Since August 12, 1988, newspapers in the capital, particularly LA REPUBLICA and LA VOZ, have repeatedly carried stories on the discovery of a "COMMON GRAVE" where, according to Prosecutor ESCOBAR's version, the bodies of CAYARA campesinos who were allegedly killed by the Army in May 1988 following the attack on the Military Convoy in the area of ERUSCO were said to have been buried. Later, those same newspapers reported that the alleged bodies were those of JOVITA GARCIA SUAREZ and two persons who were said to have been arrested by the Army between May 18 and 19, 1988, and on orders from the Political-Military Chief.
b. In this regard, Mr. Prosecutor, I must report the following:
(1) It is true that on May 18, 1988, the Political-Military Chief of SZSNC-5 went to CAYARA to investigate, firsthand, the alleged excesses that were mentioned in the communique released by the Mayor of Huamanga on May 17, 1988. There, he established that the charges against the Army were false and spoke with townspeople and asked whether the individuals named in the anonymous letter (mentioned earlier) lived in CAYARA and the surrounding area. The answer was yes, but that none of those named was present; it is therefore illogical to assume that those persons were arrested at that time.
(2) Since May 17, 1988, no one from CAYARA and the surrounding area has been arrested by the Army, much less JOVITA GARCIA SUAREZ, who was an Army informant; she was the one that reported the exact place where the ambush on the military convoy occurred and also asserted that residents of CAYARA had participated in the terrorist attack.
(3) According to statements made by the townspeople, JOVITA GARCIA SUAREZ remained in ERUSCO for several days following the events in CAYARA, and her name did not appear in the complaint about persons alleged to have died or disappeared in CAYARA.
c. We believe that the case of JOVITA GARCIA SUAREZ is a premeditated and carefully prepared fabrication by the subversive delinquents of the Sendero Luminoso who have been aided either consciously or unconsciously by Prosecutor ESCOBAR PINEDA and the leftist press in order to discredit the forces of law and order and bring a halt to the countersubversive activities.
Some time ago, we observed Prosecutor ESCOBAR PINEDA's suspicious activities; he quite deliberately allowed seven days to go by before conducting the proceeding to exhume two alleged bodies, which according to newspaper accounts, had been left in a "common grave," whose location only the Prosecutor and his witnesses knew. I attach a copy of the letter sent to the Political-Military Command reporting that he would conduct the proceeding on August 17, 1988 (Annex 4).
As for military jurisdiction, it should be noted that the Second Army District Court dismissed the respective case on May 12, 1989, a decision that was upheld on January 31, 1990, by the Supreme Council of Military Justice.
3. The Executive Branch
On May 17, 1988, the Council of Ministers held a meeting where the situation involving the complaints filed concerning the deaths in Cayara was examined and it asked the Attorney General of the Nation to investigate the facts, for which he would have the Executive Branch's full support. These statements were reiterated by the Chairman of the Council of Ministers and Minister of the Presidency, Dr. Armando Villanueva del Campo, to the Attorney General of the Nation, Dr. Hugo Denegri Cornejo, in a letter dated May 23, 1988.
On May 21, 1988, the Office of the Chairman of the Council of Ministers reported that a commission composed of the Minister of Defense, General Enrique López Albújar, the Minister of Justice, Dr. Camilo Carrillo, and escorted by the Dean of the Lima Bar Association, Dr. Raúl Ferrero, and the then Auxiliary Archbishop of Lima, Monsignor Augusto Beuzeville, visited Cayara that same day "having established in-situ that there was no evidence of bombing, fire or fighting in Cayara ..." and that, "from the testimony given freely by the townspeople who were in Cayara, the versions that alleged that women were raped, that there were fires, bombardments, the murder of some 100 individuals and other acts of genocide allegedly committed in Cayara and attributed to Army personnel were false."
Concerning this Press Release, Monsignor Beuzeville addressed the following communication to the Inter-American Commission on Human Rights on May 17, 1991:
I, Monsignor Augusto Beuzeville Ferro, Auxiliary Bishop in the Diocese of Piura-Tumbes, in the departments of those same names, Republic of Peru, at the urging of the Pro-human Rights Association (APRODEH), which is the petitioner in cases Nos. 10,206, 10,264, 10,276 and 10,446 (CAYARA Case), and in response to the document of May 27, 1991, containing the Peruvian Government's reply to Report No. 29/91 of the Inter-American Commission on Human Rights, do hereby stipulate the following facts, in writing, to clarify the reply in question:
ONE: In May 1988, the Government of Peru, under the Presidency of Dr. Alan García Pérez, in response to reports that campesinos had been slaughtered by soldiers in Cayara in the Department of Ayacucho, ordered that a Government Commission consisting of the Minister of Justice, Dr. Camilo Carrillo, and the Minister of Defense, General Enrique López Albújar, go to that area to ascertain the facts. The undersigned, who was then Auxiliary Bishop in Lima, and the Dean of the Lima Bar Association, Dr. Raúl Ferrero Costa, were invited to accompany the trip as witnesses. The trip was made on May 21, 1988.
TWO: The report on the visit made to the scene of the unfortunate events was given to the Prime Minister at the time, Armando Villanueva del Campo, in a private meeting and in the presence of the Minister of Justice, the Minister of Defense and the Minister of the Interior.
THREE: To the surprise of Dr. Ferrero Costa and the undersigned, on May 21, 1988, the Office of the Chairman of the Council of Ministers issued an official communique, paragraph 5) of which stated the following: "The individuals in question went to the town of Cayara (...), and established that there was no evidence of bombing, fire or fighting in Cayara."
In point 9), the communique states that: "... from the testimony given freely by the townspeople who were in Cayara, the versions that alleged that women were raped, that there were fires, bombardments, the murder of some 100 individuals and other acts of genocide allegedly committed in Cayara and attributed to Army personnel were false." Dr. Ferrero and I informed the Prime Minister of our dissatisfaction with this communique since we considered that it was incomplete and inconsistent with the facts, since those campesinos whom they allowed to speak with us in the Plaza de Armas told us that on May 14, there was a clash during the night when the Sendero Luminoso ambushed two Army trucks. The following day, very early in the morning, members of the Army took reprisals against the town, burning three or four houses and murdering 27 or 28 campesinos who were working on the harvest. However, we were unable to establish the truth of all this, since we had no decision-making power regarding the inspection schedule, which had already been established by the government authorities.
FOUR: As a result of this conversation, wherein we shared our impression that we suspected this area of Ayacucho had been the scene of excesses on the part of the Armed Forces, the Office of the Chairman of the Council of Ministers issued another communique on May 22, wherein he reported "...that he is informing the Office of the Attorney General of the Nation of the accounts given by inhabitants of the area who speak of the death of the townspeople (...), since it is up to that authority to prosecute the relevant investigations, which, by their nature, are beyond the means and the scope of the mission appointed."
Further, the communique stated that "The government confirms its decision to get a full clarification of any conflicting accounts that may exist concerning what happened."
FIVE: This final and definitive official communique seems to be contradictory and inconsistent with what the Peruvian Government states in its reply to the effect that: "The Executive Branch appointed a Committee of Notables, which visited the area and found that the complaints were unfounded..."
In effect, that committee, of which I was part, never said anything about a lack of definitive evidence; on the contrary, given the versions that the committee repeatedly heard both firsthand and via the media, I said that these events had to be investigated by the appropriate authorities such as the Office of the Attorney General of the Nation, the Judiciary and the Congressional Human Rights Commission.
Moreover, that committee never released an official written communique to the public; it reported its impressions in private meetings, whereupon those impressions were conveyed to the general public by the Office of the Chairman of the Council of Ministers.
SIX: Finally, I should point out that my participation in the committee was on a personal basis and not as a representative of the Church, since I considered it a duty and a service to my country to get to the truth amid utterly conflicting versions.
It should also be noted that the then President of the Republic, Dr. Alan García Pérez, visited Ayacucho and Cayara on May 22, 1988 and spoke with residents and area authorities.
4. The Senate of the Republic
On May 23, 1988, the Senate of the Republic decided to form an Investigating Committee to look into the matters that are the subject of this complaint. That committee consisted of Senator Carlos Enrique Melgar López, Senator Esteban Ampuero Oyarce, Senator Ruperto Figueroa Mendoza and Senator Alfredo Santa María Calderón, of APRA; Senator Javier Diez Canseco Cisneros and Senator Gustavo Mohme Llona of the Izquiera Unida and independent Senator José Navarro Grau.
On May 9, 1989, the Senate Investigating Committee released its report (Annex No. 8) which contains majority findings and minority findings. The findings reached by the majority of the members of the committee were signed by Senators Melgar, Ampuero, Figueroa and Santa María and were as follows:
1. It has been established that on May 13, 1988, an Army patrol was ambushed in the vicinity of Erusco by members of the Sendero Luminoso, who blew up one of the trucks using powerful dynamite charges that had been laid in advance on the road; as a result, Infantry Captain José Arbulú Sime, Sergeant Second Class Angel Vargas Támana, Corporal Fabián Rondá Ortiz and Corporal Carlos Espinosa de la Cruz died in the Mobile Surgical Unit from Ayacucho; fifteen Army soldiers were wounded, five of them gravely.
2. It is established that the ambush totally decommissioned the UNIMOC troop-carrier No. 12082, State property, and Senderistas either took and/or destroyed eleven 7.62-caliber light automatic weapons (FAL); a 9-caliber HK-MPSKA submachine gun, plus 52 FAL cartridges and 14 HK cartridges.
3. It has been established that in spite of the numerical superiority of the attackers and the element of surprise they had in their favor in their ambush on the military convoy, the surviving members of the patrol repelled, to the extent of their abilities, the attack; a number of unidentified subversives were killed at the scene of the events; presumably there were wounded among them, who were taken away by the Senderistas to the neighboring towns before the Army reinforcements from Huancapi arrived.
4. It has been established that Peruvian Army reinforcement patrols, following the plan of operation in effect, principally the "PERSECUCION" plan (Peruvian Army PERSECUCION), began to track down the Senderista column that had fled in the direction of Cayara.
5. The town of Cayara was found semi-abandoned, with only children and elderly people present; they told of five bodies in the town church, who were the subversives who had been wounded during the ambush on the patrol and who died as the subversives fled, there being no time to bury them or to take them with them with fresh military troops in pursuit.
6. As the search and pursuit operations continued in the area near the town of Cayara, specifically in the place called Jeschua, there were new clashes between the forces of law and order and the Senderistas, leaving an undetermined number of casualties among the ranks of the subversives.
7. It has been established that on May 17, 1988, the Mayor of the Provincial Council of Huamanga, Mr. Fermín Dario Asparrent, issued a malicious communique knowingly reporting false criminal acts allegedly committed by members of the Army against the townspeople of Cayara.
8. It has been established that these false criminal actions attributed to military troops, accusing them of supposed excesses in Cayara, gradually filtered to various national and foreign news media, and a manipulative campaign was mounted that purported to be an effort to protect human rights; instead, one of its immediate political objectives was to prevent the forces of law and order from prosecuting their pursuit of the Senderistas following the Erusco ambush.
9. It has been established that to accomplish that political objective, members of the Army were accused of being the material authors of a slaughter of 100 persons in Cayara, which consequently drew public attention both at home and abroad, and from the government, public powers and various political and parliamentary sectors; on the other hand, it generated an obvious sense of solidarity within the aforementioned community and raised suspicions about the military force stationed in Ayacucho, which had to be investigated to clarify the facts and punish those responsible.
10. It is established that this psychological operation, wherein the alleged Cayara excesses were blown out of proportion, maliciously and intentionally, succeeded in paralyzing the countersubversive military actions, thereby thwarting the capture of the Senderistas who operated in Erusco; the psychological operation was also calculated to undermine the morale and fighting spirit of the troops whose commanders were wrongfully placed under suspicion in certain quarters of the media that serve as a sounding board for the subversives, and were accused of being directly responsible for the alleged Cayara excesses.
11. It has been established that when the Chief Prosecutor for the Administrative Jurisdiction, Dr. Manuel Catacora González was serving as Acting Attorney General of the Nation --owing to the absence of the Attorney General-- when he was seized of the allegedly criminal acts committed in the town of Cayara; he immediately sent a telex ordering that the Special Prosecutor for Ayacucho, Dr. Carlos Enrique Escobar Pineda, take charge of the investigation; upon receiving that telex, the latter, rather than transmitting the necessary instructions to the Provincial Prosecutor of Cangallo to file a criminal complaint or institute a preliminary investigation, as required under Article 80 of the Statute of the Office of the Attorney General, unlawfully took upon himself the functions of the hierarchical superior and, exercising functions that pertain to another office, launched his own investigation into the criminal charges, when that was the exclusive purview of the provincial prosecutors and not the superior prosecutors; he thereby abused his authority by usurping another's authority, a crime provided for and punishable under Article 320 of the Penal Code.
12. It has been established that the Special Prosecutor, Dr. Carlos Enrique Escobar Pineda, has committed criminal and disciplinary offenses by repeatedly violating fundamental procedural provisions and provisions of the Statutes of the Office of the Attorney General and of the Judiciary, with the illegal investigation that he conducted into the alleged excesses committed in Cayara by military personnel, as described in the pertinent part of the present report.
13. It has been established that the Special Prosecutor illegally requested the Office of the Provincial Prosecutor of Cangallo to supply all records in connection with the investigation it was conducting into the criminal offenses committed by the Senderistas in Erusco, thereby preventing that investigation from following its normal course; the investigation has been disrupted by that arbitrary decision, which demonstrates an obvious and manifest concern to obstruct the investigation of these subversive elements being conducted by the Office of the Attorney General.
14. It has been established that the interpreter Alfredo Quispe Arango has violated the public trust and aggrieved the State by identifying himself to the above-named Special Prosecutor using various voting identification papers bearing differing numbers and that belong to other citizens, as has been demonstrated in the body of this report.
15. It has been established that the above-named Special Prosecutor was fully aware that the interpreter Alfredo Quispe Arango betrayed the public trust and aggrieved the State by having various voter identification bearing different numbers; nevertheless, he did not report him, which was his obligation, thereby neglecting the obligations of his office and failing to further the prosecution and punishment of that crime, which is a criminal offense under articles 333, 338, 339 and 361 of the Penal Code.
16. It has been established that Alfredo Quispe Arango, acting as interpreter, has rendered false translations, thereby committing a crime against the administration of justice, to the detriment of the State, and provided for and punishable under Article 334 of the Penal Code, his purpose being to obtain evidence against Army personnel by misrepresenting, with the complicity of the Special Prosecutor, the truth.
17. It has been established that the Special Prosecutor, rather than keep the illegal investigation that he conducted confidential, gave several interviews with a number of media and provided information on how the investigation was progressing, thereby violating the Statute of the Office of the Attorney General.
18. It has been established that the Special Prosecutor has had an obvious and notorious interest in the investigation into Cayara--even to the point of violating the law--so as to prevent, through his intervention, the forces of order from furthering their pursuit of the Senderistas in the wake of the Erusco ambush, thereby aiding the psychological warfare that was mounted through several communications media to bring a halt to the countersubversive operations, a campaign that was nurtured by the information that Dr. Carlos Enrique Escobar Pineda provided.
19. It has been established that the Chief Senior Prosecutor of Ayacucho, Dr. Iván Enrique Tello Mondoñedo, was fully aware of the offense that the Special Prosecutor had committed by usurping functions; nevertheless, he failed to take the appropriate measures to correct the illegal investigation that the Special Prosecutor personally conducted into the Cayara event, and did not instruct the Provincial Prosecutor of Cangallo to conduct the investigation, as the law required, thereby incurring criminal responsibility that must he reported to the Attorney General of the Nation.
20. It has been established that the Provincial Prosecutor of Cangallo, Dr. Jesús E. Granda Olaechea, conducted an extended investigation into the Cayara matter, based on the records and the final report produced by the aforementioned Special Prosecutor.
21. It has been established that at the end of the expanded investigation, the Provincial Prosecutor of Cangallo, on November 24, 1988, issued a decision not to bring criminal charges against the Army personnel for the alleged crimes committed in Cayara, and filed all of the proceedings in Cangallo.
22. It has been established that with the intervention of the Provincial Prosecutor of Cangallo, the Office of the Attorney General as the single autonomous agency of the State charged with prosecuting crime, has clarified the truth of what happened and ultimately the falseness of the slanderous complaints against members of the Peruvian Army, thereby redeeming the image of that institution and of its chiefs, officers and troop personnel who served in Ayacucho during 1988.
23. It has been established that the then Political Military Chief of Ayacucho, Peruvian Army General José Valdivia Dueñas, is neither the intellectual nor the material author of any of the crimes with which he is slanderously charged in the complaints and hence bears no responsibility whatever; instead he has been the victim of a treacherous campaign to undermine his authority and command, as part of the strategy that the Sendero Luminoso is following to neutralize and/or destroy the forces of law and order to destabilize the democratic regime and the rule of law in Peru.
24. It has been established that the Lower Court Judge of Cangallo, Dr. César Carlos Amado Salazar, has, at the request of the Special Prosecutor, conducted a number of extra-procedural criminal inquiries, taking measures that are pertinent to the examining phase and thereby violating the code of criminal procedure, procedure that ultimately must be carried out by officers of the court.
25. It has been established that the body found on August 10, 1988 at Pucutuccasa, hidden in a grave, is not that of JOVITA GARCIA SUAREZ, as the Special Prosecutor wrongfully asserted at the outset.
26. That having established that the body is not that of Jovita García Suárez, the death certificate issued in her name and registered at the Cangallo Provincial Council, is null and void, ipso jure, so that the Provincial Prosecutor of Cangallo, as defender of the law, should institute legal proceedings to have that irregular record nullified.
27. It is established that in 1988, the members of the First Correctional Tribunal of Ayacucho acted irregularly in an appeals case in which they were reviewing the irregularities committed by a lower court judge; even though the Tribunal was the higher court, the members did not correct those irregularities by declaring all proceedings null and void and the Superior Prosecutor's petition inadmissible, which would have protected the right of the representative of the Attorney General's office to proceed in accordance with the law.
For his part, Senator Gustavo Mohme Llona arrived at the following conclusions:
1. The clues found by the judicial authorities and the representatives of the office of the Attorney General corroborate the complaint to the effect that campesinos were killed by military troops in Cayara; those clues indicate the need for a thorough investigation on the part of the judiciary.
2. The term "slaughter" is not the proper one in strictly legal terms, because thus far the corpi delicti have not been found; however, one cannot disregard the position taken by the Supreme Court of the Republic in the "Cárpena Case" where a murder was tried without the body of the victim having been found.
3. All of this points to the fact that when the slaughter was publicly denounced, the Political-Military Command of Ayacucho decided to destroy the evidence. Therefore, it barred any civilian authority and member of the press from the area until one week later, during which time the bodies were disinterred and taken to higher altitudes in the Cayara area.
4. The military troops did not stop their repressive measures on May 14, 1988, the day of the attack on Cayara; instead, several days later, on May 18, 1988, the Chief of the Political-military Command of the area took into custody Jovita García Suárez, Alejandro Ectuccaja Villagaray and Samuel García Palomino, who 70 days later were found buried in a grave in the Cayara highlands. The entire population of Cayara was witness to the arrest of these townspeople who were later described as "command informers" in order to blame their deaths on the subversives.
5. Responsibility for these very grave events must, beyond question, be borne by the Chief of the Political Military Command, Peruvian Army General Valdivia Dueñas and the immediate authors of the slaughter.
6. Rather than conceal the culpability of the military, the government must convince the highest ranking authorities of the armed forces of the need to know the truth about what transpired in Cayara and to punish those responsible. The forces of order know who they are, since they know the names hidden behind the pseudonyms used by each patrol chief.
Our Committee believes that there is sufficient evidence to warrant an in-depth investigation on the part of the competent authorities, into the events that occurred on May 14, 1988, in the town of Cayara, Province of Victor Fajardo in Ayacucho, to determine the identity of those responsible for the murder of 28 campesinos in Cayara.
The conclusions reached by Senator Javier Diez Canseco are as follows:
1. The actions that occurred subsequent to May 14 are an immediate and direct consequence of the attack on the military convoy that occurred the previous day in the vicinity of Cayara. The military response had three components:
a. To provide direct support to those ambushed, which was handled immediately once the survivors were withdrawn.
b. Pursuit of the subversives, for the purpose of annihilating them and recovering weaponry, which continued until May 15.
c. Punishment of the townspeople, who were considered to be partisan to and participants in the subversion, and the search for specific persons named on a list that the Army had in its possession even before it entered Cayara.
2. The existence of that list of alleged subversive partisans, which the Army has in its possession, is the factor that triggered a crime wave targeted at eliminating all the subversive agents and, in particular, the individuals on the list that military intelligence had in its possession and that, while in began in Cayara on May 14, continued with the arrests-disappearances of May 19, June 30, July 3 and, finally, the murder of Fernandina Palomino, Justiciano Tinco and Antonio García Tipe on December 14. The disappearance of the body of Jovita García Suárez is also part of that crime wave.
3. Judging by the testimony of the witnesses, the remains found by the Special Prosecutor when the graves were opened, and the gaps and contradictions in the information provided by the Ministry of Defense, the Committee concludes that on May 14, 1988, the Military Command ordered an operation to pursue and annihilate subversive forces, which action culminated in a punitive action against the people--especially the men--of Cayara for their alleged participation in the ambush of May 13, which involved the indiscriminate slaughter of dozens of civilians and the arrests-disappearances of others.
4. The Committee has found evidence that during the operation, noncombatant civilians were murdered, such as the deaths that occurred on May 14 at the place known as Erusco, at the entry to the town of Cayara and the four people who died later in the town of Mayupampa.
5. The Committee finds that the Army has been unable to prove that the townspeople of Cayara were subversives and participated in the ambush as the conclusions of the report of the Office of the Army Inspector General would suggest, even though it allegedly had the elements to substantiate its version, such as the finger print identification of the Erusco bodies, testimony and evidence to substantiate its claims, and the cartridges recovered at Cayara and Jeshua.
6. The Committee discards as untrue the notion that the disappearance of the bodies was the work of subversives and concludes that because of the complaints that began on May 17, more specifically when Prosecutor Escobar requested the Army's support to go to Cayara to dig up the graves, which happened on May 25, the Army itself retrieved the bodies and caused them to disappear, thereby attempting to destroy all evidence of its enormous crime.
7. There is a deliberate cover-up of information, in violation of the precepts contained in articles 179 and 180 of the Constitution, in that:
a. The complete version of the report of the Investigation conducted by the Office of the Army Inspector General and its appendices have not been provided; instead, only the conclusions have been supplied.
b. The findings of the fingerprint identification of the four bodies found at Erusco have never been reported.
8. The Commission concludes that Division General José Valdivia Dueñas, Chief of the Political-Military Command of that area, which was under a State of Siege, was the individual immediately and ultimately responsible for planning and executing the military actions that began on May 14.
9. The Commission has found evidence to indicate that on May 19, citizens Jovita García, Bautista, Alejandro Echeccaya and Samuel García were arrested by the Army and later kidnapped. It also concludes that the subsequent location of their bodies is evidence that the authors of their deaths would be the same military troops who took them from Cayara.
10. The Commission contends that the ultimate disappearance of the body of Jovita García could only be for the purpose of making it impossible to establish, with legal certainty, that she died at the hands of her abductors.
11. The Commission has found evidence to conclude that, discarding the version of the kidnapping by a column of subversives, on June 30, citizen Gregorio Ipurre Ramos and his family were kidnapped by Army soldiers.
12. The Commission concludes that the remaining complaints involving murders of civilians that occurred during the course of these events, of whom Prosecutor Escobar found unidentified remains, must be clarified by the office of the Attorney General.
13. There has been deliberate and consistent obstruction of the investigations conducted by Special Prosecutor Carlos Escobar Pineda, coupled with a lack of cooperation from the Political-military Command of Ayacucho to enable him to perform his functions.
14. The facts investigated provide evidence that the actions committed are classified as common crimes in our system and can in no way be regarded as military crimes; it is the duty of the office of the Attorney General to investigate those crimes and the duty of the Judiciary to punish them.
15. The Commission concludes that the crimes investigated must be viewed in the general context of the counterinsurgency policy pursued by the present administration. to obtain intelligence, the forces of order used, as modi operandi, such illegal force as torture or threats. These methods are part of a logic of warfare wherein entire communities are classified as the enemy and with which the State only continues to have a coercive relationship.
16. The Commission regrets to point out that the criticism it makes today
is precisely the same criticism that the Senate Committee that investigated
the events at Pucayaccu and Accomarca made in October 1985, at the start of
this Administration; this merely confirms that the change of administration
did not bring a change in the anti-subversive policy.
Since the majority opinion contains detailed information taken from oral and written statements, from visits and proceedings in the capital as well as in the Department of Ayacucho, I shall not enumerate them again and go instead directly to my conclusions.
The Chairman of the Committee and its members have been quoted frequently by the press that are carrying the problem that has come to be known as "Cayara" as news or as reading material for various sectors of the public. This has created some expectations of this investigating committee, which was to come up with one single version of the facts, since there is only one version of the truth.
However, despite all the effort and publicity, I cannot honestly say that because there is only one truth, that is what has been discovered. I have two different and often conflicting versions, one from the forces of order and another from those who have appeared as witnesses to the events.
Through their Political-Military Command, the forces of order assert that 18 people died and that all of them were shot in the course of combat. They demonstrate their assertion by citing Erusco, Cayara, Coshhua and the Pampas river, where those who died in combat were found. In Erusco they showed the tracks of the fighting that began after an Army vehicle was dynamited. At the other places, they pointed to other signs to support their assertions. They presented the officers and troops who participated and had it not been for the existence of another version from the people of Cayara, we could have been content with that version.
Those who appeared as witnesses state that these were not combat deaths; in other words, that it was a question of genocide, where the victims were seized, transported and executed with machetes, axes, sickles and stones. They cite a number of details which I need not repeat here, since they are recounted in the other opinions.
The disappearance of the bodies makes it impossible to confirm whether or not these people died from bullet wounds. Because the two versions are completely different as to how their deaths occurred, if only a few of the bodies were found, it would be possible to know which version is the truth. A congressman whose fact-finding mission is temporary, only for as long as the investigation lasts, cannot say which of the two parties is telling the truth.
On the one hand, the political-military command performs its functions by a mandate of the Constitutional Government and must do so according to the principles of the Constitution. It is not there of its choosing, but because of the presence of subversive groups that want power to govern by their own rules, different from the rules contained in our 1979 Constitution. Since the struggle is an armed one, it is inevitable that there should be dead and wounded. On the other hand, the people of Cayara and the surrounding areas have not just moved into the area as a subversive movement; instead, they have lived there for generations. One cannot argue that their presence constitutes proof of subversion, therefore, since they find themselves caught between two forces that expect information and support from them; it is understandable why they are mistrustful and introverted. Unfortunately, these people are always victims: whether the casualties be members of the forces of order or of the subversive forces, it is always possible that either one or the other will pressure and even punish, in various ways, these Andean communities. Thus, the action of either of these two parties may ultimately produce conflicting testimony.
The fact that genocide has been committed in years past leads one to suspect that this is yet another case. The fact that a captain was killed when the Army truck was blown up leads one to suppose that the reaction must have been swift and hard against the authors; so if in the past innocent people were accused and punished for much less serious matters, the same may have happened in this case.
On the other hand, the fact that the world was told that there were over 100 deaths and that the killing continued and that the bodies were being left to birds of prey and wild animals and the fact that not one witness cited these figures or these details in his or her charges, lead one to suspect that an attempt has been made here to create a new spectacle, one ultimately intended to weaken the system and the forces of order. The figure of 100 deaths, at least, turned out to be a fiction in comparison to the number of people who were not located and who were townspeople who died under the circumstances that each version describes.
When a fact-finding commission of this nature and for a specific time period must conclude its business, the result may be an inconclusive report, as in this case. In other words, it is impossible to say that these excesses did not occur, though it is also impossible to say that the effects and characteristics of the excesses are as described in the denunciations. Cayara did not appear to have been looted; only 7 of its 400 houses had been burned. When the committee visited Cayara, it was somewhat abandoned.
I understand what is happening; the people are afraid, many are suffering terribly. In the end, we can become confused. I am thus unable to contribute anything new to the Senate and to those who, as members of the judicial branch of government, must find the truth that I was unable to find. Having discharged my mission, my duties as a Congressman require nothing further of me.
IV. CONCEALMENT AND OBSTRUCTION OF THE ADMINISTRATION OF JUSTICE
The authors of such grave events as those that began on May 14, 1988, in the Cayara district, took a number of steps to erase the evidence of their guilt and to obstruct the investigations being conducted by the Attorney General's office, and provided a version of the facts that blamed other persons or groups for what happened.
1. Destruction of evidence
To make it impossible to determine what actually happened and the identity of the authors, military personnel cleaned away the bloodstains in the Cayara Church where they had killed the persons mentioned under Point II.B.3.
The military personnel also removed the bodies of the persons killed at the entrance to Cayara, in the church, in Ccechuaypampa and, later, those of the individuals arrested on May 18 and 19, who were buried on Mount Pucutuccasa.
The elimination of evidence is an integral part in forced disappearance of persons, in this case used against two persons in the vicinity of Ccechuaypampa around May 16, 1988, and the five persons arrested on June 29, 1988 (fact II.B.7.).
Another means used to make it impossible to ascertain the facts and identify their authors was to physically eliminate witnesses, a method used in the events described in this complaint under points II.B.7, 8 and 9.
2. Obstruction of justice
As the authors of these events were beginning to erase any evidence of their actions, they were also obstructing the investigations being conducted both by the press and by the Attorney General's office and the Judiciary. What follows is a list of the most significant measures designed to obstruct these inquiries:
a. In the highly militarized zone under the control of the Army, shots were fired from a hillside against the group accompanying the Provincial Judge of Cangallo; the military personnel refused to continue to accompany them, which prevented the group from conducting the proceedings on May 20, 1988, to identify the bodies at Ccechuaypampa (Point II.B.4.).
b. On May 19, the Special Prosecutor requested that the Army provide the transportation facilities offered by the Executive Power but received no cooperation. When the Special Prosecutor attempted to reach Cayara overland, he was delayed by the Army at Cangallo on May 20. The next day, the Army again delayed the Special Prosecutor, this time at Huancapi and did not allow the technical experts accompanying the group to continue on to Cayara, thereby making it impossible to conduct the exhumation, identification and autopsy of the bodies.
c. The Special Prosecutor again requested that the Army supply a helicopter for his trip to Cayara on May 24; he was not supplied that helicopter until May 26, the day after, witnesses stated, the soldiers removed the bodies from Ccechuaypampa.
d. The difficulties encountered in trying to get an identification of the hand skin found in one of the graves at Ccechuaypampa, which the Special Prosecutor believed was that of Eustaquio Oré Palomino, as follows:
i) The report of the experts appointed by the police indicated that they were able to fingerprint only the ring finger, because the rest of the skin had decomposed. Prosecutor Escobar, who had seen for himself that the skin had not decomposed, ordered the commandant to conduct another examination in his presence. In that examination, the prints of the five fingers were taken.
ii) When sent to the Investigating Police, the latter reported that the fingerprints were not those of Eustaquio Oré Palomino. Delving further, it was established that this person was 18 years of age and as such had a police card that was registered when the individual turned 18. On the other hand, the person whom witnesses said had died was 17 years of age and therefore could not have had a card on file with the police.
iii) However, the Prosecutor was informed that the disappeared person had registered with the military, and that the military should have his identification card and fingerprint on file. When a search was ordered, the card was found, but the fingerprint had too much ink to make any comparison possible. Therefore, Prosecutor Escobar asked the Attorney General to compare the print with another copy of the card kept on file in Lima, on the assumption that if one copy had so much ink, the other one might be legible. There is no information as to whether or not the Attorney General took this measure.
e. The Special Prosecutor requested that the Army provide him with a helicopter to conduct the exhumation of the bodies found on Mount Pucutuccasa. When the helicopter was not provided, the Special Prosecutor, the deputy in the Office of the Special Prosecutor, the Provincial Judge of Cangallo and the Court Secretary travelled to the place in two police vehicles. Since they did not have the helicopter requested, they were only able to remove one body from the grave, that of Jovita García, which later disappeared from the Cangallo cemetery after having been identified by her family.
f. The Special Prosecutor returned to Huamanga, Ayacucho, on August 10, by truck from Erusco, following the exhumation. The next day, August 11, the Special Prosecutor telexed a request to the Attorney General that he intercede with the joint command of the Armed Forces to provide the Special Prosecutor with helicopter transport; the telex was sent again the following day. Despite that request and despite the order from the highest levels of government and from the Attorney General that the Special Prosecutor be given every possible cooperation in his work, the Army did not provide him with that helicopter. Because of that, the Special Prosecutor had to obtain overland transport and conducted the proceeding by travelling overland and then on foot on August 18, as stated in the corresponding record. As indicated in this complaint, under Point II.B.6., by that time the other three bodies on Mount Pucutuccasa had already disappeared.
g. On September 21, 1988, in an official communication that the Special Prosecutor received on October 3, while he was still conducting important inquiries to clarify the facts, the Superior Criminal Prosecutor, Dr. Pedro Méndez Jurado, ordered the Special Prosecutor to prepare the final report on his investigation. As indicated earlier, the Special Prosecutor delivered his report on October 13, wherein he concluded that criminal proceedings should be instituted against General José Valdivia Dueñas as the principal responsible party in these events. On November 11, 1988, the Attorney General of the Nation sent the files to the Provincial Prosecutor of Cangallo to expand the investigation. Twelve days later, the Cangallo Prosecutor decided not to file criminal charges and temporarily filed the case. The sequence of events and their nature clearly point to the fact that their purpose was to prevent any court action in these events. This impression is reinforced when one considers the measures exercised throughout the investigations in connection with witnesses.
h. During the course of the inquiries conducted by the Special Prosecutor in Cayara on May 21, 1988, after being delayed by the Army in Huancapi, and on May 26, he was able to observe the pressure brought to bear against witnesses by Army personnel, whose faces were covered with ski caps. He made particular note of the conduct of the officer in command of the military troops, who was known as "Captain Palomino"; he photographed him, as explained in Point II.B.6. This pressure must be considered together with the fact that there was never any response to the Special Prosecutor's request that the identity of "Captain Palomino" be revealed, even though the corresponding photograph was provided to the military authorities for that purpose.
i. The pressure on the witnesses is especially obvious during the course of the expanded inquiry conducted by the Provincial Prosecutor of Cangallo, during which the testimony was taken inside the Huancapi Military Garrison. When witness Delfina Pariona Palomino (wife of Alejandro Echeccaya, whose body was identified -according to the record- at Pucutuccassa), expanded her testimony in the presence of the Provincial Prosecutor of Cangallo, she stated that she had not seen her husband since May 15 when he had gone off with the subversives in the direction of Muyupampa. This statement contradicts her original statement, which was corroborated by the statement made by the widow of Samuel García Palomino, who said that she and Delfina Pariona went to the grave and found the body of Alejandro Echaccaya. It also should be noted that Delfina Pariona had left her fingerprint on the complaint that 19 campesinos from Erusco filed with the Office of the Special Prosecutor for Disappearances, wherein they state that the Army had pressured them to state that terrorists had taken Jovita García.
As for the witness Maximilana Noa Ccayo, in her expanded testimony in the Huancapi military garrison in the presence of the Provincial Prosecutor of Cangallo, she appears to be retracting the statements she made in the presence of the Special Prosecutor (Section EIGHT of the Report from Prosecutor Granda). However, Maximiliana Noa Ccayo, who is illiterate, had testified before Prosecutor Escobar on May 22 and had said that she was in Cayara on May 14, with her daughter Delia Ipurre Noa, and that they confirmed the death of Ignacio Ipurre Suarez, wife and father, respectively, of the two women (see statement under Evidence No. 7, point II.B.4). In effect, Delia, a minor with an elementary education, speaks Spanish and had testified separately in the presence of Prosecutor Escobar that she had been with her mother that day, May 14, and had seen the soldiers kill her father. This corroborates the original statement made by witness Maximiliana Noa, and adds yet another element from which to infer that the expanded testimony given in the presence of Prosecutor Granda, under the pressure of being inside the military garrison and after a number of witnesses had been killed, was false.
The same can be said with regard to the witness Teodora Apari Marcatoma de Palomino, who, in her expanded testimony before Prosecutor Granda, appears to say that she was not in Cayara for that entire period, but rather in Ica until June 15, and that she had not seen what the military did; she denied having made any statement to Prosecutor Escobar. The Inter-American Commission has been informed that: a) the testimony of Teodora Apari in the presence of Prosecutor Escobar on May 22, was taped by the parliamentarians who were present at the time; and b) she testified again in the presence of the Provincial Judge, on June 11, indicating the place where soldiers had cut off her husband's head, pointing out the area and gathering blood-stained soil from the site, evidence that Prosecutor Escobar sent to the laboratory where experts concluded that it was human blood (See Escobar Report where it mentions the existence of photographs of this witness at the time she was removing the blood-stained soil). This is another case of testimony retracted under duress.
3. Elaboration of self-serving versions
The measures taken to conceal the authorship of these events include the preparation of accounts designed to provide justifications for the action undertaken, to blame other agents and to discredit the work of those whose conclusions differ.
It is possible to discern certain basic lines, both in the Army's versions and in the majority opinion of the Senate Investigating Committee. While it is acknowledged that an undetermined number of deaths occurred, it is alleged that these deaths occurred during the course of armed confrontation, both in Erusco and later in Cchechuaypampa. At a time when the Army had already established complete control over Cayara, Erusco and surrounding areas, and had even set up a military base in the school, these accounts claim that subversive groups removed all of the bodies to prevent them from being identified and that subversives kidnapped Jovita García, Alejandro Echeccaya and Samuel García Palomino and caused them to disappear, again at a time when the military was in full control of the area. The military versions and the majority report of the Senate Committee say that Jovita García was the Army informant who wrote the anonymous letter. Even though the letter was written by "un patriota legal" [a true patriot] who asked that "el nombre del portador" [the name of the bearer] (the masculine gender is used in the Spanish) not be revealed.
The self-serving versions also contend that any opinions contrary to their own are calculated to discredit the armed forces and thwart the anti-subversive effort. Thus, for example, the majority opinion of the Senate Investigating Committee elaborates upon the argument contained in the report filed by General Valdivia with the Provincial Prosecutor of Cangallo concerning the illegal and politically motivated conduct of the Special Prosecutor, adding an attack against the professional ethics of the interpreter.
This argument and the political maneuvering that it triggered, led to the replacement of Prosecutor Escobar by Prosecutor Granda, whose decision to temporarily file the case was based on testimony whose credibility has already been brought into question in this complaint, because it deviated from the original version, was given inside an Army garrison, after a number of witnesses had already been pressured to alter their testimony and others had been detained, killed or disappeared.
V. THE PROOF
1. Documentary evidence
The Inter-American Commission on Human Rights bases the assertions contained in this complaint on the evidence contained in the eight Appendices that are attached hereto and on the documentary evidence that is offered in connection with each specific fact (points II.B.1, 2, 3, 4, 5, 6, 7, 8 and 9).
2. Testimonial evidence
The Inter-American Commission on Human Rights believes that the Inter-American Court of Human Rights should take testimony from the following persons:
2.1. Dr. Carlos Enrique Escobar Pineda
2.2. Dr. Raúl Ferrero
2.3. Monsignor Augusto Beuzeville
2.4. Senator Javier Diez Canseco
2.5. Senator Gustavo Mohme Llona
2.6. Dr. Augusto Zúñiga
2.7. General Jaime Enrique Salinas Sedó
2.8. Dr. Hugo Denigri Cornejo.
Taking into account the fact that during the course of the investigations conducted in Peru into the facts that are the subject of this complaint, certain witnesses have been physically eliminated while others have been subjected to pressure to force them to change their original testimony, the Inter-American Commission on Human Rights believes that the Inter-American Court must establish a method by which to take a body of testimony in such a way that the personal safety of the witnesses and the integrity and accuracy of their testimony are guaranteed. Since the method to be used must take into account the specifics of each individual's unique situation, the Inter-American Commission offers its services to the Inter-American Court to provide it with the specifics required in each case, which should be taken into account when receiving each body of testimony. The names of the witnesses would be reported to the Court once the method described herein has been established.
3. Request for documentation
The Inter-American Commission on Human Rights is petitioning the Court to require the following documents of the Government of Peru:
3.1. The proceedings upon which the Report of the Senate Investigating Committee was based
3.2. The files upon which the Report of the Office of the Army Inspector General on the facts that are the subject of this complaint was based.
3.3. The proceedings conducted in the Military Courts that led to the dismissal of the case involving the events that are the subject of this complaint.
3.4. Investigations Nos. 476 and 477 of the Special Prosecutor, concerning
complaints of the disappearances of relatives of the victims of fact II.B.7.
VI. LEGAL GROUNDS
The Inter-American Commission on Human Rights has processed the instant case in accordance with its Regulations and the pertinent provisions of the American Convention on Human Rights, of which the Republic of Peru is a State Party and has recognized the compulsory jurisdiction of the Inter-American Court of Human Rights on January 21, 1981.
In submitting the present complaint, the Commission is acting under the provisions of Article 50 and 51 of the American Convention, after having analyzed the submission presented by the Government of Peru on May 27, 1991, the led to Resolution 1/91 concerning Report 29/91, which documents are attached to the present complaint. It has also taken into account the fact that the Government of Peru reiterated its positions on January 11, 1992. The Inter-American Commission on Human Rights, therefore, is proceeding pursuant to the provisions of Article 63.1 of the Convention and is requesting that the Inter-American Court fix the amount appropriate for payment of a "fair compensation to the injured party."
As for the exhaustion of domestic remedies, suffice it to say that the matter is thoroughly examined in Report 29/91 and in Chapter III.1. of this complaint on the measures taken by the office of the Attorney General.
The specific facts set forth in this complaint involve multiple violations perpetrated by agents of the Peruvian State, violations of provisions of the American Convention on Human Rights as indicated in point I concerning the purpose of the complaint.
As for forced disappearance, it should be noted that the Commission, the literature, the practice of other international human rights organs, the General Assembly of the Organization of American States and recently the jurisprudence of the Inter-American Court of Human Rights has qualified it as a crime against humanity (Velásquez, paragraphs 151-153; Godínez, paragraphs 159-161). As has been noted, disappearance is a multiple and continual violation of essential legal rights protected under the American Convention on Human Rights that the states parties, voluntarily and in good faith, have pledged to respect and guarantee (Velásquez, para. 155; Godínez para. 163).
The Commission concurs with the Court where it states that the forced disappearance of persons is one of the most serious violations of human rights that a State Party to the Convention can commit, since it represents "... a radical departure from this treaty, inasmuch as it implies a crass abandonment of the values that emanate from human dignity and of the principles that lie at the very foundation of the inter-American system and this Convention" (Velásquez, para. 158; Godínez para 166).
Forced disappearance of persons begins with the victim's illegal detention by agents of the State, who normally operate in full daylight. The victim is taken to some secret place or irregular detention center. To relatives and authorities in charge of the investigation, those agents systematically deny the very fact of the detention, the condition of the victim and his/her final whereabouts. The lack of a formal acknowledgement of the illegal detention allows the agents of the State to operate with total impunity, beyond the boundaries of any jurisdictional control. That situation obtains in the case under examination by virtue of the regulations governing states of emergency in Peru, which give the chiefs of the political-military commands extraordinary powers. This unlawful deprivation of freedom constitutes a flagrant violation of Article 7 of the American Convention, which protects the right to personal liberty.
In the instant case, as established in the description of the specific facts (Section II.B. 3, 4, 5, 6 and 7), members of the Peruvian Army made a number of unlawful arrests in a succession of operations that began on May 14, 1988, and ended on June 29 of that year.
The Commission's experience and the characteristics of the instant case confirm that once in captivity, the victim of an unlawful privation of freedom under the conditions herein described, is tortured and subjected to cruel, inhuman and degrading punishment by agents of the State. This constitutes a violation of Article 5 of the American Convention, which recognizes every person's right to physically, psychologically and emotionally humane treatment. In the case being submitted to the Court, the testimony presented in evidence in support of facts II.B. 3., 4 and 5 recount the torture of the victims in those incidents.
The legal remedies, especially habeas corpus, which would have been the proper remedy to determine the whereabouts of the person and protect the rights of one detained, are ineffectual, which in itself constitutes a violation of judicial guarantees (Article 8) and the right to judicial protection (Article 25) recognized in the American Convention.
In the case presented in this complaint, the arbitrary arrests and torture were followed by the summary execution of the victims mentioned in the specific facts II.B.1, 3, 4, 6, 8 and 9, which constitutes a grave violation of the right to life recognized in Article 4 of the American Convention on Human Rights. Two victims of specific fact II.B. 4 and the victims of fact II.B. 7 likely met with the same fate. This involves seven victims whose situation, strictly speaking, is enforced disappearance, since unlike the other cases, their death has not yet been established.
It should be pointed out that in the instant case, presented to the Inter-American Court, the Government of Peru, through the actions of its agents, not only has failed to respect and guarantee the exercise and the rights of the victims in accordance with Article 1.1 of the American Convention, but those agents have executed a number of actions to obstruct the administration of justice and make it impossible to identify the authors of these specific facts. Thus, witnesses and/or relatives of victims have been eliminated and threatened, consciously and deliberately; the bodies of the persons executed have been removed; evidence has been destroyed, cover-up operations have been conducted, judicial investigations have been obstructed and the individual who attempted to conduct an independent investigation was threatened and ultimately severed from service with the State and forced to seek refuge abroad. The other objective of all this has been to conceal the whereabouts of the victims and erase the crime from the public's memory.
Finally, the Commission must point to the violations committed by members of the Peruvian Army against public and private property belonging to some of the victims in this case. As recounted under Fact II.B. 2, agents of the Peruvian State destroyed movable and immovable property belonging both to the State and to private parties. This constitutes a violation of Article 21 of the Convention, which makes it incumbent upon the Peruvian State to protect the right to private property.
The facts in this case reveal that the Peruvian State has international responsibilities that follow from the violation of its obligations under the provisions of the American Convention. In effect, Article 1.1 of the Convention provides that every State Party undertakes the obligation to adopt whatever measures are needed to ensure juridically, to all persons within its jurisdiction, the effective enjoyment of the rights recognized in the Convention. As a result of this obligation, the State must prevent and investigate violations of the human rights recognized in the Convention; try and punish those responsible for those crimes; inform the family of the whereabouts of persons who have disappeared and indemnify (when it is impossible to restore the victim in the exercise of his or her rights) for any damages caused by the human rights violations committed by agents of the State (Velásquez paragraph 166; Godínez paragraph 175).
The background information submitted by the Commission, the attached evidence and those that it will submit to the Court at the appropriate time, demonstrate that the case submitted to the Court caused a public commotion in Peru to the point that the President of the Republic at that time, Dr. Alán García Pérez, visited the scene of the events and publicly pledged to have them fully clarified. The Peruvian press gave extensive coverage to the work of the Commission of Notables and the Senate Investigating Committee, and to the frustrated judicial investigation of the Special Prosecutor, Dr. Carlos Escobar. However, almost four years have passed since this massacre was committed and, despite efforts made by some Peruvian authorities and the Commission, there are still no remains of the disappeared victims nor of the bodies of those executed, nor has anyone been convicted or even indicted for the crimes committed in connection with these events.
The Commission will prove to the Inter-American Court of Human Rights that the Peruvian State has not made any serious attempt to investigate these facts, punish those responsible, adopt the measures necessary to prevent crimes of this nature in the future and compensate the victims and/or their families for the damages suffered. The passive attitude demonstrated by the Peruvian State vis-à-vis a massacre of such proportions, combined with the concealment, obstruction of justice and elimination of evidence by its agents, proves that the Peruvian State has violated its obligation to guarantee the free exercise of the fundamental rights upheld in the Convention, in accordance with Article 1.1 of the American Convention, of which Peru is a State Party.
In submitting the instant case to the Inter-American Court of Human Rights, the Inter-American Commission on Human Rights reiterates that it is convinced that the Peruvian State is internationally accountable for the violations of the rights recognized in articles 4, 5, 7, 8 and 25 of the American Convention on Human Rights, committed by members of the Army against persons under the jurisdiction of the Peruvian State, during the course of events that began on May 14, 1988, in the district of Cayara, Province of Víctor Fajardo, Department of Ayacucho and that culminated on September 8, 1989.
The Inter-American Commission on Human Rights is equally convinced that the Peruvian State has failed to honor its obligations under the provisions of Article 1.1 of the American Convention on Human Rights, inasmuch as it has not adopted measures to guarantee the exercise of the rights recognized in that international instrument; instead, its agents have systematically attempted to obstruct a clarification of the facts and identification of those responsible. As a result, the grave violations set forth in this action go unpunished and the very institutions of the State charged, under the National Constitution, with safeguarding the rights of the inhabitants of Peru and investigating and punishing those responsible for violations of human rights have been adversely affected. It has thus committed acts classified as crimes under Peru's domestic laws.
October 27, 1991
RESOLUTION Nº 1/91
REPORT Nº 29/91
Approved by the Commission on October 27, 1991
RESOLUTION Nº 1/91
REPORT Nº 29/91
1. Report Nº 29/91 adopted by the Inter-American Commission on Human Rights on February 20, 1991 referring to cases 10.264, 10.206, 10.276 and 10.446.
2. That on May 27, 1991, the Government of Peru filed a brief wherein it "requests that the Commission comply with its Regulations and the Pact of San José and therefore decide not to take the case to the Inter-American Court of Human Rights without first weighing the observations made in the present note and making the appropriate procedural corrections." In that note, the Government of Peru stated that "In accordance with the express provisions of Article 34, paragraphs 7 and 8 of the Commission's Regulations, once the reply was received from the petitioners, the Commission should have transmitted the pertinent parts thereof and its attachments to the Government of Peru for its final observations. None of the the petitioners' replies to the Government's notes were transmitted to the Government. Hence, by violating that procedural requirement, the Commission has denied the Peruvian State its right to self defense."
1. That the request from the Government of Peru constitutes a petition to suspend the proceedings;
2. That while the Government of Peru raised this matter in the note in question, it did not say what injury had been caused by this procedural omission;
3. That in response to its express request and to honor justice, the Commission resolved to consider the objection and therefore transmitted the petitioners' replies as requested by the Government under the provisions of Article 34.8 of the Commission's Regulations;
4. That in its reply dated September 4, 1991, the Government of Peru made no reference to the petitioners' replies,
5. That the Commission also examined Report 29/91 and has found that adjustments must be made in Section II thereof, which are included in the version of that Report attached hereto.
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
1. To reject the argument of the Government of Peru that the report is invalid.
2. To confirm the conclusions and recommendations contained under point 48 of Report 29/91 and to transmit it to the Government of Peru so that it might respond as it sees fit within a period of 90 days.
3. To send the instant case to the Inter-American Court of Human Rights.
REPLY OF THE GOVERNMENT OF PERU TO THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
Ref. Cases Nos. 10.206, 10.264 10.276 and 10.446
In connection with your note of June 20, 1991, received on July 10 of this year, the Government of Peru, respectful of its international commitments, transmits the present communication within the preestablished time limit:
The inter-American system for the protection of human rights establishes the legal procedures that the Inter-American Commission on Human Rights must follow in its investigation of complaints. As a signer and ratifier of the American Convention on Human Rights, and recognizing the competence of the hemispheric agencies in this area, the Peruvian Government demands of the Commission strict compliance with the procedural rules that guarantee the right of parties to the most comprehensive and unrestricted defense.
According to Article 61 of the American Convention on Human Rights, in order for the Court to hear a case, it must necessarily have first been investigated by the Commission, and investigation is thus a stage that must go before. It follows from this that a decision to submit a case to the Court shall first have been thoroughly examined in fullest conformity with the procedural framework that governs the actions of the Inter-American Commission on Human Rights, especially when it is considered that, once it has filed its suit, the Commission's legal status is transformed, de facto and de jure, from that of a general investigative agency, impartial both to governments and to petitioners, into that of opponent of the respondent government. In other words, upon the mere filing of a complaint it becomes the procedural adversary of the government, which implies the literal impossibility of reverting to its original status.
Notwithstanding the good intentions shown by the Inter-American Commission on Human Rights in withdrawing cases Nos. 10.206, 10.264, 10.276 and 10.446 from the jurisdiction of the Inter-American Court of Human Rights in order to rectify the procedural omissions pointed out by the Peruvian government in its note of May 27 of this year, the Commission has not made clear which new procedures could be followed for a possible reexamination of the case and which conclusions reached in it, considering that neither the Convention nor the current Rules of Procedure provide any warrant for its present decision.
In consideration of the situation presented and the procedure suggested by the Inter-American Commission on Human Rights, it is incumbent on the Peruvian Government to raise the following points and objections:
The communication of the Inter-American Commission on Human Rights suggests that the Peruvian Government asked it to reconsider the case. This is untrue, for Peru has never made any such request in regard to the case itself or to the decision to place it before the Inter-American Court. The possibility of reconsidering a report already submitted is not provided for in either the American Convention on Human Rights or in the Regulations of the Commission when the State concerned — in this instance Peru — is a party to the Convention and has recognized the competence of the Inter-American Court of Human Rights, let alone when the case has already been submitted to the jurisdiction of the Court.
The Peruvian Government did express to the Commission the advisability of not submitting the case to the Court in view of the serious procedural omissions committed in the preparation of Report No. 29/91, which also happen to justify the plenary's decision, among others, to submit the cases together. In other words, the decision to reconsider the case was taken unilaterally, and has no place in the procedural rules in effect.
In its note of May 27, 1991, the Peruvian Government made five procedural observations on the handling of the CAYARA case by the Inter-American Commission on Human Rights. However, the note of June 20 mentions only one of them: the failure to comply with the express provisions of Article 34.8 of the Commission's Regulations.
The Peruvian Government noted the absence of a preliminary report, which would have avoided the hurried submittal of the case on such a shaky procedural basis and the incorrect manner in which the Peruvian Government has been dealt with. It cited the ill-advised decision to accept belatedly the inclusion of one of the petitioners, the impropriety of combining the cases, and the receipt, after expiration of the applicable time limits, of the replies to the notes of the Peruvian Government. Accordingly, in its note of June 20, 1991, the Commission ought to have not only responded to these points, but also have set forth transparently and specifically the mechanisms best suited for the future handling of the cases.
Paragraphs 7 and 8 in Article 34 of the Regulations of the Inter-American Commission on Human Rights prescribe that the reply of the respondent government shall be made known to the petitioner(s) for REJOINDER(S) within thirty (30) days. This was all done in the present case, though the rejoinders were received after that time limit. These rejoinders and their accompanying evidence should have been transmitted to the Peruvian Government for SURREJOINDERS or final observations, but this was not done. This abridgement of Peru's right of defense not only prejudiced a member State of the Organization of American States and a Party to the American Convention on Human Right, which has recognized the competence of the Inter-American Court of Human Rights, but led the plenary of the Commission into error by depriving it of the sources of evidence necessitated by the magnitude of the conclusions of Report No. 29/91, which it approved in its 79th Session.
To enable it to rectify errors and comply with the rules of procedure contained in Article 34 of its Regulations, the Inter-American Commission on Human Rights requires the Peruvian Government to present its final observations within sixty (60) days. However, the replies of the petitioners were made past their own deadlines. It is hence improper to require ONE REJOINDER TO THREE REPLIES in one operation and at an inconvenient time, especially when the entire procedure has been completed with a final report.
1. The rules of procedure contained in the Regulations of the Inter-American Commission on Human Rights set out a procedure for obligatory compliance, that is, it endows the process with the means and mechanisms for its execution from beginning to end. The guidelines having been laid down, and there are stages and junctures clearly demarcated by procedural time limits, which ensures legality in the conduct of the process.
On May 8 and 10, 1990, the Peruvian Government presented to the Commission two (2) notes that were replied to by the petitioners on July 18, 1990, sixty-eight (68) days later, which violated the mandatory time limit of thirty (30) days imposed in Article 34.7 of the Commission's Regulations; in other words, the time limit having expired, no reply could be received. However, in its note of June 20, 1991, the Commission gave the Peruvian Government a time limit for its rejoinder and insisted on accepting the replies of the petitioners as valid.
2. In that note of June 20, 1991, the Inter-American Commission on Human Rights expressed its intention of adhering strictly to the terms of Article 34.8 of its Regulations. However, it failed to include the complete reports — one of the majority and the other of the minority — of the Commission appointed by the Senate of the Republic of Peru, which were presented together by the two petitioners in their note of reply of July 18, 1990. Against this it could be argued that the Peruvian Government is able to obtain those documents for itself, which is in principle true, but the official channel for the receipt and transmission of evidence is the Inter-American Commission and, moreover, this seemingly excessive formality guarantees access to the same means of proof to all parties.
The Peruvian Government does not question the honesty of the petitioners despite the inelegant terms in which they have couched their replies, but the only way to guarantee that the proofs offered are identical with the original documents of the Senate of the Republic is by comparison, which could only have taken place if the Commission, complying strictly with its own Regulations, had received in good time and forwarded the documents presented with the replies.
It follows from this that the four combined cases continue to suffer from the same procedural defect.
Moreover, neither the American Convention, the Regulations of the Commission nor the Rules of Procedure of the Court allow the possibility of WITHDRAWING a case once it has been submitted to the jurisdiction of the latter. The case having been withdrawn, what took place de jure and de facto was a formal DISCONTINUANCE in the terms of Article 42 of the Court's Rules of Procedure in force at the time the suit was brought on May 30, 1991. Since this discontinuance, referred to by the Commission as a withdrawal, was at the request of the complainant alone, before the litigation began but after the proceeding had already been set in motion, the consent of the Peruvian Government as respondent was not required.
The Rules of Procedure of the International Court of Justice at The Hague, to whose final judgments the Inter-American Court has resorted, provides in Articles 88 and 89 that if a proceeding has been opened by a unilateral complaint, the claimant may withdraw unilaterally so long as the respondent has not yet taken any action in the proceeding. If, however, litigation has already commenced, the consent of respondent is required for discontinuance of the case.
It is apparent that so-called withdrawal is not a juridically acceptable procedural option. The filing of a complaint with the Inter-American Court of Human Rights sets the proceeding in motion, and the only avenue for unilaterally preventing its prosecution is withdrawal before litigation begins, that is, before the Government has been notified of the complaint.
On the showing of the Inter-American Commission on Human Rights, the CAYARA case could again be submitted to the Inter-American Court of Human Rights once the Peruvian Government has presented its final observations. The Peruvian Government does not agree that this could be done because, the case having been unilaterally withdrawn from the Court by action of the Commission, the legal time limit of ninety (90) days provided for such resubmittal in Article 51 of the American Convention on Human Rights has already expired.
In conclusion, the Peruvian Government demands that, before entertaining any additional consideration, the Inter-American Commission on Human Rights define and spell out clearly a feasible procedure which, without overstepping the general bounds of the inter-American legal system for the protection of human rights, will afford adequate guarantees to the Peruvian Government and not detract from the treatment that is due to it as a member State of the Organization of American States and a Party to the American Convention on Human Rights.
In keeping with the foregoing and to set forth its views and procedural arguments on the processing of the four combined cases and the examination of future possibilities, the Peruvian Government requests a confidential hearing with the IACHR under Article 67 of its Regulations so that its representative may make an oral presentation to the Commission in its second session of 1991.
August 26, 1991
REPORT Nº 29/91
EVENTS THAT OCCURRED IN THE TOWN OF CAYARA
REPUBLIC OF PERU
1. On November 17, 1988, the Commission received a petition from Americas Watch dated November 7 of that year. It alleged a number of violations of the human rights of residents of the community of Cayara, Peru. Between 28 and 31 townspeople were alleged to have died in three successive incursions by members of the Peruvian Armed Forces. Those incursions were also alleged to have resulted in arrests, torture, mistreatment, looting and pillaging, fires and other violations of that community, as will be described below.
Previously on May 18, 20 and 24 of that year, the Commission had received from APRODEH (Association for Human Rights) complaints concerning events that occurred in Cayara, complaints that, in general, are summarized in the petition the Commission received on November 17.
The complaints were accompanied by a number of attachments, including a considerable number of newspaper accounts published in Lima in connection with the incidents, a copy of the complaints that APRODEH filed with the Supreme Court and the Office of the Attorney General of the Nation on May 29 and 20, and another complaint filed with the Attorney General's Office on May 19, this one by a number of Deputies of the Nation, headed by Deputy Agustín Haya de la Torre.
The petition received on November 17, 1988 from Americas Watch read as follows:
I. THE FACTS BEING DENOUNCED
On May 13, 1988, a contingent of the "Sendero Luminoso" armed group ambushed a military convoy with 20 Peruvian Army troopers at Erusco, in the district of Cayara, in Víctor Fajardo province, in the department of Ayacucho. A considerable number of the insurrectionist group took part in the attack, which was done by planting dynamite charges on the roadway. In the fighting, four senderistas, one captain in the Peruvian Army and three soldiers were killed.
The next day, Army troops entered Cayara, the town closest to Erusco. According to eyewitness accounts, the military contingent killed the first person it encountered; it then moved on to the town's church, where it found five men dismantling a platform. It shot them on the spot. Later, it ordered the people to the town's main square, and waited for the men to return from their work in the fields. upon their return, the men and young boys were separated from the women and children. As the women and children watched, the soldiers ordered the men to lie down on the ground. They then killed them, using bayonets and work tools. It has been established that in all between 28 and 31 persons were killed. The soldiers then buried the bodies of the dead in a place nearby.
On May 18, the Army returned to Cayara and, in the town's school, set up a permanent base manned with some 20 troops. That day, Brigadier General José Valdivia, Chief of the Central Security Subzone for Ayacucho and the officer in command, read a list of names of Cayara residents supposedly being sought as subversives. That same list was later published in Lima in newspapers and in the magazine Oiga.
On June 29, 1988, uniformed Army troopers took the following individuals from their homes in Cayara: GUZMAN BAUTISTA PALOMINO, GREGORIO IPURRE RAMOS, HUMBERTO IPURRE, BENIGNA PALOMINO DE IPURRE and CATALINA RAMOS PALOMINO. The first two were witnesses to the Cayara massacre of May 14, 1988; the others are the father, mother and sister of Gregorio Ipurre Ramos. Guzmán had allegedly spoken with delegations of congressmen and with the magazine Caretas about the events that had occurred in Cayara. According to statements made by relatives of the five when interviewed by Juan Méndez when preparing the report on the situation of human rights in Peru titled "Tolerating the Abuses," the men in uniform burst into various homes at night, beat the two men and, over protests from their wives and children, took them away to the military base, a distance of no more than 200 meters from each house. The wives and children followed the captors as far as the base, but were intimidated into leaving. Some hours later, other citizens of the town saw the detainees being boarded onto military trucks that moved out in the direction of the Huyancapi base. Despite the complaints lodged by relatives with the district attorney's office and other authorities, none of the five ever reappeared.
In the days that followed, the survivors went to Ayacucho and reported what had happened. When the Prosecutor charged with investigating the disappearances, Dr. Carlos Escobar, went to the town, the buried remains were no longer there; they had been illegally removed. There were, however, traces left behind at the place where the victims' bodies were said to have been buried: blood stains, human hairs, pieces of clothing, etc. Obviously, the bodies could only have been moved by a force capable of patrolling the area on a regular basis.
On August 10, 1988, some farmers reported finding graves containing three cadavers. Prosecutor Escobar exhumed three bodies at a place called Pucutugasa, four hours from Cayara, and identified ALEJANDRO ECHEGAYA VILLAGARAY (referred to as Garay in other accounts), SAMUEL GARCIA PALOMINO and JOVITA GARCIA SUAREZ. The three had been arrested on May 18, during the military incursion in Cayara led by General Valdivia. According to the District Attorney's Office, the group headed up by Escobar was able to take only one corpse, that of Jovita García Suárez; because the site where the bodies were buried was so far from any city, the group did not have the transport facilities it needed to take away the other bodies. The sister of Jovita, Flavia García Suárez, identified the three bodies and the Prosecutor recorded the exhumation. When investigators returned several days later, the other two bodies had been removed.
Newspaper accounts state that General Valdivia ordered the Peruvian Investigating Police (PIP) officer who accompanied Escobar to tell him what the prosecutor had found. The autopsy done on Jovita García established that at the time of her death, she was pregnant and that her limbs were fractured in several places and her skull crushed. The autopsy listed two possible causes of death: serious trauma to the skull and brain or a puncture wound at the level of the heart. Later, in an attempt to conceal these facts, the Army reported that Jovita García had been its informant and that she had been killed by the Sendero Luminoso.
II. THE VICTIMS
A. May 14
According to the information supplied to us by Peruvian human rights organizations, the reports published by Amnesty International, and information supplied by relatives, between 28 and 31 people were killed on May 14, 1988. It is important to note that the disappearance of the bodies has made it difficult to establish precisely how many were killed and who they were. Most of them were adult males or young men living in Cayara and engaged in farm-related activities.
The names of some of the victims are as follows:
1. Hermenegildo Apari Tello
2. Alejandro Choccña Oré
3. Ildefonso Hinostroza Bautista
4. Artemio Gonzales Palomino
5. Alfonso Huayanay Bautista
6. Ignacio Ipurre Suárez
7. David Jayo Cahuayme
8. Solano Jayo Noa
9. José Jayo Rivera
10. Eustaquio Oré Palomino
11. Zacarías Palomino Bautista
12. Aurelio Palomino Choccña
13. Ponciano Palomino Jayo
14. Fidel Palomino Suárez
15. Félix Quispe Palomino
16. Dionisio Suárez Palomino
17. Prudencio Sulca Huayta
18. Sulca Oré Emiliano
19. Ignacio Tarqui Jayo
20. Zózimo Graciano Taquiri Yanqui
21. Teodosio Velenzuela Quispe
22. Magdaleno Gutiérrez Huamani
B. May 18
Among those arrested on May 18 in Cayara were the following: Jovita García Suárez, Samuel García Palomino, Alejandro Echaccaya Villagaray, Victoriano Apari, Justiniano Tinco García, Gregorio Ipurre Ramos and Ramón Hinostroza.
Of these seven, four were released, and only the following remained under arrest:
1. Jovita García Suárez
2. Samuel García Palomino
3. Alejandro Echaccaya (a surname that in some accounts is spelled Ichihuaya).
These three persons were found dead in Pucutuccasa on August 10, 1988, by Prosecutor Escobar.
C. June 29
The persons who were detained on June 29 and who have since disappeared are as follows:
1. Guzmán Bautista Palomino
2. Gregorio Ipurre Ramos
3. Humberto Ipurre
4. Benigna Palomino de Ipurre
5. Catalina Ramos Palomino
III. VIOLATIONS OF THE AMERICAN CONVENTION ON HUMAN RIGHTS
The acts described above constitute a violation of the American Convention on Human Rights, to which Peru is a party.
A. Violation of Article 4
In effect, the acts perpetrated by the regular forces of the Peruvian State involve a violation of Article 4 of the Convention:
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.
The events occurred within an area where a state of emergency had been declared under Article 231 of the Peruvian Constitution. However, Article 27 of the Convention provides that suspension of some of the obligations under the Convention itself does not authorize suspension of the right to life upheld in Article 4. As the Inter-American Court of Human Rights held in its Advisory Opinion OC-8/87, of January 30, 1987:
The suspension of guarantees also constitutes an emergency situation in which it is lawful for a government to subject rights and freedoms to certain restrictive measures that, under normal circumstances, would be prohibited or more strictly controlled. This does not mean, however, that the suspension of guarantees implies a temporary suspension of the rule of law, nor does it authorize those in power to act in disregard of the principle of legality by which they are bound at all times. When guarantees are suspended, some legal restraints applicable to the acts of public authorities may differ from those in effect under normal conditions. These restraints may not be considered to be nonexistent, however, nor can the government be deemed thereby to have acquired absolute powers that go beyond the circumstances justifying the grant of such exceptional legal measures. (Paragraph No. 24).
B. Violation of Article 7
The conduct of the Peruvian Sate as we have described it here also implies a violation of Article 7 of the Convention.
Although personal liberty is a derogable right in a state of emergency, such derogation cannot be considered to authorize the practice of disappearance, in other words, detention without any form of judicial control over the right to humane treatment and the other rights of the person detained. As has been said, in addition to the absolute rights, which are nonderogable, there are others, such as the right to personal liberty, that are derogable; however, this does not give the State absolute power vis-à-vis those rights. The requirements for such derogation have been described as follows:
A second type of right established in the Convention are those that are derogable provided the requirements stipulated in the Convention are observed. For restriction of such rights to be lawful, the Convention establishes requirements of i) necessity, ii) temporality, iii) proportionality, iv) compatibility with other obligations, v) nondiscrimination, and adherence to law by those in authority. (Claudio Grossman in "Algunas Consideraciones sobre el Régimen de Situación de Excepción bajo la Convención Americana sobre Derechos Humanos" in Human Rights in the Americas, Homage to the Memory of Carlos A. Dunshee de Abranches, Inter-American Commission on Human Rights, Washington, 1984, p. 129.)
It is obvious that in this case there was no compatibility with the Peruvian State's other obligations, among them the duty to protect human life, and that the authorities who made the arrests did not adhere to the law.
IV. THE CONDUCT OF THE PERUVIAN STATE
The Peruvian Government has not relieved from duty the officer in charge of the area, Peruvian Army Brigadier General Juan Valdivia Dueñas, nor any other officer who was in command of the operations denounced.
On July 11, 1988, after taking testimony from relatives on the disappearance of five persons, Americas Watch sent an urgent letter to President Alan García requesting guarantees that the witnesses would turn up alive. To date no reply to that letter has been forthcoming.
The complaints filed with the Office of the Attorney General by relatives of those who disappeared on June 29 have not produced any positive results and have failed to turn up the disappeared.
The Attorney General's Office, which under the Constitution is the Peruvian institution in charge of criminal proceedings and defender of the rights of the people, instructed the special Prosecutor for cases of disappearances, Dr. Carlos Escobar Pineda, to conduct the necessary investigations to ascertain those suspected of being responsible for the events that occurred in Cayara. According to statements made to the press by the Chief Criminal Prosecutor, Pedro Méndez Jurado, the Report of the Special Prosecutor had already been completed and found General José Valdivia guilty of four crimes (statements made to Caretas Nº 1031, November 7, 1988). Nevertheless, thus far the findings of that investigation have never been made public; even worse, no charges have been brought against those responsible for the murders and kidnappings that took place in Cayara.
The situation provided for in Article 46.2.c has thus materialized, inasmuch as there has been an unwarranted delay in the remedies under domestic law; therefore, the requirement stipulated in Article 46.1.a does not apply in the instant case.
2. The complaint was forwarded to the Government of Peru on November 29, 1988, under Case Nº 10,264) requesting of it any information it deemed pertinent within the 90-day statutory time period and without any prejudgment as to its admissibility under Article 42.3 of the Commission's Regulations. That note was repeated on March 1, 1989.
[end of petition of November 17, 1988]
3. On the 8th of July, 1988 the Commission received the following complaint, complementary to the previous ones, transmitted to the Peruvian Government by cablegram on the 11th of that month. The complaint stated that on June 29, 1988 witnesses to the events in Cayara had been arrested and taken from their homes. The arrested ones included GUZMAN BAUTISTA PALOMINO, GREGORIO IPURRE RAMOS, HUMBERTO IPURRE, BENIGNA PALOMINO DE IPURRE y CATALINA RAMOS PALOMINO, all of which were taken away, and no information about their destination was given and their whereabouts were unknown. On the basis of this complaint, Case Nº 10,206 was open at the Commission, and the pertinent parts of the complaint transmitted to the Government and reiterated on February 22, 1989 and September 7, 1989. The Government has yet to give any answer to this complaint (see point 33). On December 16, 1988, the Commission received the following complaint related to the earlier petition. Recorded as case Nº 10,276, it was forwarded to the Government on December 29. The relevant parts of that complaint are as follows:
At 5:00 p.m. on December 14 last, the Mayor and the Secretary of Cayara were killed. Both had been witnesses to the May 14 massacre.
JUSTINIANO TINCO GARCIA and FERNANDINA PALOMINO QUISPE were travelling in a truck with 15 other people when the truck was stopped by men in hoods, presumably paramilitary, who ordered the passengers to identify themselves.
According to the witnesses, JUSTINIANO and FERNANDINA were tortured and slashed in various parts of the body before being killed.
The driver, ANTONIO FELIX GARCIA TIPE, was strapped to the bottom of the truck and killed by a grenade.
The other passengers were then sent on their way on foot, and told that they would be killed if they reported this new massacre. We beg that urgent measures be taken to investigate this crime and request protection for Benedicta María Valenzuela Ccayo, the wife of the murdered mayor and herself a witness to the massacre in Cayara.
On September 8, 1989, the Commission again relayed this information to the Government and informed it that should no response be received by the new deadline, the Commission would consider application of Article 42 of its Regulations. The Government sent no reply at all to this case (see point 34).
4. On September 13, 1989, the Commission received another complaint in connection with the "Cayara" case, which it transmitted that same day to the Peruvian Government, registered as case No. 10,446. The pertinent parts of that complaint read as follows:
The murder of nurse MARTA CRISOSTOMO GARCIA by eight hooded men in uniform is hereby denounced. At 3:00 a.m. on the morning of September 8, 1989, they entered her home in the San Juan Bautista area of Huamanga, Ayacucho, and shot her a number of times.
Following the death of Justiniano Tinco, the mayor of Cayara, Fernandina Palomino, secretary of the town council, and Antonio García Tipe, MARTA was one of the surviving witnesses to the Cayara massacre.
Born in Cayara, MARTA had made statements to Prosecutor Escobar wherein she acknowledged that she had identified the body of her aunt JOVITA GARCIA BAUTISTA, around whose murder Prosecutor Escobar had built his case against General Valdivia. She had also made statements to the Senate Commission that visited the town one week after the slaughter.
Her death eliminated a key witness in the Cayara massacre.
[end of complaint of Sept. 13, 1989]
Newspaper accounts attached to the complaint stated that Marta Crisóstomo had been threatened repeatedly and had requested Government protection.
The Commission's note to the Government transmitting the complaint was sent again on March 13, 1989, and on April 12, 1990. The April 12 note also said that should no reply be forthcoming, the Commission would consider application of Article 42 of its Regulations. The Government sent no reply at all.
5. On June 9, 1989, since no reply had been received in Case Nº 10,264 from the Government, the Commission sent it a note informing it that the Commission would consider the possible application of Article 42 should there be no response to its request within 30 days. That note was sent again on September 7, 1989. On September 29, a note was received from the Peruvian Mission to the OAS, as follows:
As for case 10,264, one must allow for the fact that the internal jurisdictional process has not yet been completed and that the delay in replying to the IACHR's request is because of the need for strict observance of the norms that guarantee the administration of justice, as spelled out in the Constitution of Peru.
6. In November 1st, 1989, in response to that note from the Government of September 29, 1989, the complainant claimed that the remedies under domestic law had already been exhausted, arguing that:
We would like to separate the two arguments brought by the representatives of the denounced Government. The first, i.e., "that the internal jurisdictional process has not yet been completed," is the issue of exhaustion of internal remedies. The second, "the delay in replying to the IACHR's request is because of the need for strict observance of the norms that guarantee administration of justice, as spelled out in the Constitution of Peru," is more of an attempt to explain the absence of any response from the Peruvian Government in the case.
As for the first argument, we would like to state flatly that in the instant
case, the internal remedies have already been exhausted. We base our position
on the following considerations:
a. The resolution dated November 24, 1988, issued by the Cangallo Public Prosecutor, Dr. Jesús A. Granda Olaechea, decides against filing any criminal charges and to temporarily archive the complaint. Prosecutor Granda had replaced Prosecutor Carlos Escobar in the investigation. The latter had found criminal liability and
had charged Brigadier General José Valdivia Dueñas of the Peruvian Army. The
ruling of Prosecutor Granda enabled the Government Forces to evade their proven
responsibility for the events.
b. Since the Prosecutor is responsible for instituting criminal proceedings,
there is no other penal procedure in Peru for denouncing the violations in the
instant case that does not begin with the Prosecutor's charge. By refusing to
file any criminal charges, the Prosecutor exhausted the internal remedy available
and left only one avenue open for denouncing the events, i.e., the international
recourse that the American Convention on Human Rights provides.
c. To reinforce our contention, we would like to point out that since November 1989, no further investigation -- either criminal or judicial -- has been conducted into this case.
We would also like to draw the Commission's attention to the fact that even
supposing, for the sake of argument, that the internal remedies had not been
exhausted, more than a reasonable amount of time has passed since May 13, 1988,
to render a final judgment in the case of the disappearance and death of the
Cayara farmers. Because of this unwarranted delay, Article 46 of the Convention
can be applied without first having to exhaust the domestic remedies.
It should also be noted that the Chief Prosecutor assigned for cases of disappearances,
Dr. Carlos Escobar Pineda, was relieved of his duty precisely because he did
conduct an inquiry into the facts denounced and found sufficient evidence to
bring members of the Peruvian Government's military forces to trial.
Finally, in connection with the second argument used by the Peruvian Mission, we would simply like to point out that even if there were any truth in the claim that the internal remedies had not yet been exhausted -- which there is not -- and that the obligations inherent in the administration of justice as spelled out in Article 233 of the Constitution had to be met, these do not pose any legal or procedural impediment to the Government's responding to the complaints filed with the Commission and unfortunately do not explain the absence of any reply on the part of the Peruvian Government.
7. Attached to the reply sent by the petitioner on November 1, 1989, was a copy of the report written by the Special Prosecutor for Disappearances, Dr. Carlos Escobar Pineda, dated October 13, 1988, concerning the events in Cayara on May 14 of that year. (The Report is transcribed further on, under this same point. Hereinafter it is referred to as the Prosecutor Escobar Report.)
Dr. Escobar was already serving as Prosecutor for Disappearances for the Department of Ayacucho when he was assigned the Cayara investigation through a telex from Dr. Manuel Catacora González, Chief Prosecutor for cases under Administrative Law, on May 19, 1988. That same order was given by the Chief Criminal Prosecutor on May 24 (see point 37). The Prosecutor made visits and conducted inquiries during the days and months that followed. Those visits and inquiries are described further on in this report. Much of his work was destroyed in one way or another as evident from documents that this Commission has in its possession (see, in particular, points 41 to 44).
On September 21, 1988, the Attorney General of the Nation and Counsel for the People, Dr. Hugo Denegri Cornejo, ordered that Prosecutor Escobar complete his investigation and submit his final report on the case within ten days, after which he would "have no authority whatever to pursue the investigation." The Prosecutor was so notified on October 3 and delivered the report on October 13. That report appears in its entirety under the next point. On October 18 he ceased to be the Chief Prosecutor for Disappearances in the jurisdictions of Ayacucho and Apurimac.
In April 1989 Dr. Escobar was transferred to Iquitos as Provisional Chief Prosecutor of Loreto; on July 31, 1989, his services with the Office of the Attorney General of the Nation were terminated. Dr. Escobar testified before the Commission at its 77th session in May 1990, in the presence of representatives of the Peruvian Government.
To: Dr. Pedro Méndez Jurado, Chief Criminal Prosecutor
From: Dr. Carlos Enrique Escobar Pineda, Special Chief Prosecutor
Subject: Investigation into the events that occurred in the District of Cayara
May 14, 1988, where approximately 50 residents of that district died.
Date: October 13, 1988
I have the honor to address you to report the following:
I. On May 17, 1988, Mr. Necías Taquiri Yanqui filed a complaint with the Office of the Special Chief Prosecutor to the effect that because of an ambush on troops of the Peruvian Army in the highlands of Erusco on May 13, 1988, which left a number of soldiers dead, among them a captain in the Peruvian Army, army troopers from Huancapi and other bases entered Cayara on May 14, 1988, killing approximately 50 people from the district. Among those killed were his brother Zósimo Graciano Taquiri Yanqui (the principal of the Cayara high school), a janitor at the high school by the name of Dionisio, and a peddler called Solano.
Moreover, on May 19, Fernandina Palomino Quispe, Pelagia Tueros Chaipana and Antonia Apari Palomino also reported that army troops, among them cavalrymen from Huaya and soldiers brought in by helicopter, had broken down doors, searched stores and houses, burned a number of homes, raped women and killed some of the people of Cayara, some in the church and others with axes and machetes. They then tried to persuade the survivors to say that the massacre had been the work of Senderistas.
Finally, by a cable dated May 18, the Pro-Human Rights Association (Asociación Pro-Derechos Humanos (APRODEH)) reported the same events, listing possible victims. There were 28 people from the district of Cayara on that list. It requested that measures be taken to secure the release of Petronila Chipana Tarque and Benedicta Valenzuela Bayo, whom the Peruvian Army had taken into custody.
As a result of these complaints, on May 19 the Attorney General of the Nation sent a telex, at p. 4, ordering the undersigned to undertake the corresponding investigation. That investigation was instituted (p. 5) and the inquiries were ordered.
II. In carrying out this investigation, the following inquiries have been conducted:
A. Statements have been taken from the following individuals:
1. Fernandina Palomino Quispe
2. Priscila Isabel García Oré
3. Fermín Darío Asparrent Taype
4. Raúl Apari Suárez
5. Pelagia Tueros de Rivera
6. Lucía Tello de Suárez
7. Petronila Molina de Sulca
8. Paula González Cabrera de Noa (who expanded upon her testimony on
9. Indalecio Palomino de la Cruz
10. Martha Crisóstomo García (who expanded upon her testimony three times)
11. Teodora Apari Marcatoma de Palomino
12. Máximo Florencio Contreras Monzón (who expanded upon his testimony
13. Primitiva Melgar Quispe
14. Marco Antonio Taquiri Infante
15. Maximiliana Noa Ccayo
16. Delia Ipurre Noa
17. Valeriana Ipurre Marcatoma de Apari
18. María Huayanay de Ccayo
19. Ciro Hayo Huayanay
20. Julia Noa de Palomino
21. Elsa Infante Cuba de Taquiri
22. Victoriana Meza Cabrera
23. Justiniano Tinco García
24. Benedicta María Valenzuela Ccayo
25. Gregorio Ipurre Ramos
26. Aurora Palomino Suárez
27. Pedro Néstor Valenzuela Palomino
28. Cresencia Sulca Palomino
29. Urbana Noa Suárez de González
30. Maura Palomino de Oré
31. Rufina Palomino Tinco de Tello
32. Fabián Suárez Pariona
33. Fermín Alarcón Sulca
34. María Palomino Bautista de Apari
35. Flavia García Suárez
36. Antonia Ccayo Quispe de García
37. Juana Apari Oré de García
38. Lucía Bautista Sulca
39. Sósima García Bautista
40. Delfina Pariona Palomino de Echaccaya
These persons stated that:
a. On May 13 last, at around 9:00 p.m., they heard an explosion from the vicinity of Erusco (testimony given by witnesses Nos. 12, 15, 19, 22, 25, 27, 29 and 30).
b. The explosion was followed by an exchange of fire lasting approximately 45 minutes (testimony given by witnesses 22 and 25).
c. The following day, May 14, 1988, between 9:00 and 10:00 a.m., they saw two helicopters fly over the Erusco area, land there and take off (testimony given by witnesses Nos. 2, 4, 5, 8, 10, 11, 12, 13, 14, 22, 29, and 30).
d. Uniformed army troopers came to Cayara (testimony given by witnesses Nos. 5, 8, 9, 12, 13, 14, 17, 19, 28, 29 and 30).
e. Many of the soldiers were from the military base at Huaya (testimony given by witnesses Nos. 1, 5, 6, 7, 10 and 19).
f. Approximately 80 soldiers entered the town of Cayara (testimony given by witnesses Nos. 9, 10, 14, 15 and 17).
g. As they were coming into town, the soldiers killed a man from the district by the name of Esteban Asto Bautista (testimony given by witness Nº 10).
h. Those soldiers destroyed the medical clinic in the town (testimony given by witness Nº 10).
i. The soldiers broke down doors and searched stores (testimony given by witnesses Nos. 10, 12, 13 and 28.
j. At the town church, where a religious festival in honor of the Virgin of Fatima was being celebrated, the soldiers killed Indalecio Palomino Tueros, Patricio Ccayo Cahuaymi, Emilio Berrocal Crisóstomo, Santiago Tello Crisóstomo and Teodosio Noa Pariona (testimony given by witnesses Nos. 8 and 31).
k. Between 80 and 100 soldiers went down to Ccechua (testimony given by witnesses Nos. 14, 15 and 17).
l. It was harvest season and most of the people of Cayara had gone to their farms in Ccechua early that morning (testimony given by witnesses Nos. 6, 7, 14, 17 and 30).
l(1) The soldiers assembled the people from the district who had gone to harvest their crops in Ccechua, at a place called Ccachuaypampa, between four and five that afternoon (testimony given by witnesses Nos. 1, 6, 7, 11, 14, 15, 17, 29 and 30).
m. The soldiers had taken Marcial Crisóstomo de la Cruz, tied his hands and used him as a guide to go to the homes of people whose names figured on a list they had with them (testimony given by witnesses Nos. 8, 10, 24, 25 and 26).
n. The soldiers were looking for the homes of Gregorio Ipurre Ramos and Dionisio Suárez Palomino, which they burned (testimony given by witnesses Nos. 1, 2, 4, 6, 7 and 25).
n(1) After separating the men from the women in Ccachuaypampa, the soldiers ordered the men to lie face down; they put cactus leaves cut from a nearby grove on the men's backs and stepped on them (testimony given by witnesses Nos. 1, 2, 8, 14, 15, 16, 17, 19, 26, 28, 29 and 30).
o. The soldiers made the women and children run so that they would clear out of the area (testimony given by witnesses Nos. 1, 11, 14, 15, 16, 17, 19, 28 and 29).
p. The soldiers then killed the men, one by one, using axes, machetes, sickles, and hammers; they hid the bodies near a molle tree (testimony given by witnesses Nos. 1, 2, 6, 14, 15, 16, 17, 19, 26, 28, 29 and 30).
q. On May 14 and 15, the road to Cayara was blocked off by soldiers, who checked all cars that had to go through the town (testimony given by witnesses Nos. 1, 5, 10, 12 and 13).
r. The soldiers did not allow the relatives of the dead men to go near their bodies, guarding the accesses to Ccechua until Monday, May 16 (testimony given by witnesses Nos. 30 and 34).
s. The soldiers tried to clean up the bloodstains left by the bodies of the people from the Cayara district who were killed inside the church (testimony given by witness No. 10).
t. On the morning of May 18, General José Valdivia Dueñas arrived by helicopter at the place used as a heliport; he read a list with names of people from the district of Cayara, whom he said were being sought because they were terrorists; among those named were Gregorio Ipurre Ramos, Guzmán Bautista Palomino, Justiniano Tinco García, Román Hinostroza Palomino, Victoriana Apari, Alejandro Echaccaya Villagaray and Samuel García Palomino; many women protested the death of their loved ones (testimony given by witnesses Nos. 10, 11 and 22).
u. On the afternoon of May 18, after the General had already gone, an army patrol came into the town under the command of an officer in blue jeans, wearing a black ski mask. Under the black ski mask, one could see that he had blond hair and a ruddy complexion; one could also make out his nose and eyes. That day, the army patrol took into custody one of the last two people listed above; they arrested the other the next day, along with Jovita García Suárez. All these arrests were in Erusco (testimony given by witnesses Nos. 10, 35, 36, 37 and 39).
v. The soldiers, who were roughly 20 in number, held these three people at the Erusco school until May 18. They then took them away, in the direction of the mountain (testimony given by witnesses Nos. 36, 37, 38 and 39).
w. The relatives of the two men named above followed the route used by the soldiers when they took their husbands away. They found some Articles of clothing belonging to Jovita García Suárez about 15 days after she was taken away. Finally, 30 days after the three were detained at the school, their bodies were found in a grave at Pucutuccasa (testimony by witnesses Nos. 37 and 40).
x. In the early morning hours of May 25, army soldiers took the bodies that had been buried in Ccechua and put them on pack animals and headed in the direction of Cayara, and from there for some unknown destination (testimony given by witnesses Nos. 8 and 30).
y. The witnesses whose identification numbers appear in the right hand column saw the army soldiers kill the following people of the district:
Indalecio Palomino Tueros Nos. 8 and 20
José Ccayo Rivera Nos. 1, 2, 18 and 19
Teodosio Valenzuela Quispe Nos. 1, 2, 7, 11, 26 and 29
Ignacio Tarqui Ccayo Nos. 1 and 2
Fidel Teodosio Palomino Suárez No. 16
Ignacio Ipurre Suárez Nos. 1, 15 and 26
Alejandro Choccha Oré Nos. 11, 15 and 26
Dionisio Suárez Palomino Nos. 1, 2, 7, 26 and 28
Eustaquio Oré Palomino Nos. 1, 11 and 30
Teodosio Noa Pariona Nos. 1, 8, 20 and 32
Prudencio Sulca Huayta Nos. 1, 2 and 28
David Ccayo Cahuaymi Nos. 1, 2, 19 and 28
Artemio González Palomino Nos. 1, 7, 11, 15, 26 and 29
Hermeregildo Apari Tello Nos. 1, 11, 15, 26 and 33
Emiliano Sulca Oré No. 1
Alfonso Huayanay Bautista Nos. 2 and 11
Zacarías Palomino Bautista No. 1
Patricio Ccayo Cahuaymi Nos. 1, 8 and 20
Solano Ccayo Noa Nos. 1, 7, 11, 26 and 28
Zósimo Graciano Taquiri Yanqui Nos. 2 and 11
Emilio Berrocal Crisóstomo Nos. 8 and 20
Santiago Tello Crisóstomo Nos. 8 and 20
Esteban Asto Bautista No. 10
Aurelio Palomino Shoccha No. 11
Samuel García Palomino Nos. 37 and 40
Jovita García Suárez Nos. 37 and 40
Alejandro Echaccaya Villagaray Nos. 37 and 40
Félix Quispe Palomino (His wife Ernestina Ipurre Palomino has
yet to make a statement)
Félix Crisóstomo García (Relatives have yet to make statements)
z. The witnesses whose identification numbers appear in the right hand column saw army soldiers torture the following people of the district on the night of May 14, in the building that houses the Cayara Town Council.
Benedicta María Valenzuela Ccayo Nos. 1, 23, 24 and 32
Domitila Esquivel Fernández Nos. 1 and 24
Indalecio Palomino de la Cruz Nos. 1, 9, 24 and 32
Abelino Tarqui Quispe Nos. 1, 9, 24 and 32
César de la Cruz Ipurre Nos. 9 and 24
B. On-site inspections have been conducted as part of the proceedings:
1. The requested preliminary inquiry, at p. 149, conducted on May 21 at the following places:
a. The home of Gregorio Ipurre Ramos, in Cayara, which had been burned to the ground.
b. The home of Lucía Tello, in Cayara, which was also the home of Dionisio Suárez Palomino, where the door had been broken down and the interior burned; the flames had gone as high as the ceiling, where the beams had been burned; damage was estimated at I/40,000.
c. The store of Primitiva Cabrera de Palomino, located in Cayara, which had been ransacked by soldiers on May 14; the stolen goods were valued at I/20,000.
d. The store of Modesto García Pariona, located in Cayara, which had been looted by soldiers on May 14, for an estimated loss of I/50,000. The door was also broken as were the glass cases; electrical devices had been stolen. Total value of goods destroyed or stolen estimated at I/30,000.
e. The home of Teodosio Torres Tinco, in Cayara, the door of which had been damaged by army troops who stole Articles valued at I/30,000.
f. The store of Catalina de la Cruz, in Cayara, where army soldiers stole Articles valued at I/40,000.
g. The store belonging to Paulina Suárez Bautista, in Cayara, where army troops had broken down the doors and stolen money and Articles valued at I/2,000. The inquiry was suspended at 9:00 p.m., to be resumed on May 26 at 2:00 p.m.
h. At the Cayara health clinic, where witness Agapito Tinco Noa was present; everything was already in order, but it was reported that on May 14, everything was in disarray, having been torn apart by the soldiers.
i. The building housing the Cayara Town Council, where everything had been recently repaired and painted, though there were still signs that a door had been forced open.
j. The home of Apolonio Huamaní, in Cayara, where the door had been broken and everything was thrown about.
k. The Cayara Education Center, where it was established that five aluminum pots that the soldiers had been using were missing.
l. The store of Enedina García Pariona, in Cayara, the door of which had been forced open, ripping off the latches and hinges; those latches and hinges were turned over as the corpus delicti; army soldiers were said to have stolen articles and electrical devices valued at I/15,000.
l(a) The home of Professor Emiliano Aquino Paico, in Cayara, the door of which had been forced open.
2. The inquiry requested at p. 215 and ordered at p. 216, the record of which appears at p. 217; conducted along the bridle path from Cayara to Ccachuaypampa, on June 11 (1988). Also participating in that inquiry was Mrs. Teodora Apari Marcatoma de Palomino; in Ccachuaypampa, she pointed out the place where on May 14 military troops had told the women and children to sit down; where they made the men lie face down; the grove from which the soldiers had cut the cactus leaves that they put on the men's backs and where evidence of recent cuttings was found; the molle tree alongside which the soldiers told the men of Cayara to get down, whereupon they killed them with axes, machetes, sickles or knives, or simply beat them to death with a hammer; she also pointed to the lower portion of the molle tree in question where she said soldiers killed her husband Aurelio Palomino Ccheccún; the witnesses said she took bloodstained stones from the spot, which were set apart to be examined by experts; bloodstained grass was also collected to be sent to the laboratory. Photographs were taken to illustrate this proceeding. Returning to Cayara via the bridle path, bloodstained stones were picked up, as were strands of human hair tangled in ambrancay plants some 90 centimeters off the ground; they, too, were to be sent to the laboratory to be studied by experts.
C. Bodies were exhumed:
1. Exhumation proceeding thwarted in Huancapi on May 21, 1988, by an officer who identified himself by the pseudonym of "Major Yauyos"; through a resolution, at p. 121, an exhumation was ordered conducted in Cayara and Ccechua; it was obstructed, as the record shows at p. 123.
2. An exhumation ordered through a resolution, as recorded at p. 138, and conducted on May 27, 1988, as recorded at p. 139. The first of the graves at Ccachuaypampa was opened, where relatives had buried the bodies of Teodosio Valenzuela Quispe and Artemio Gonzáles Palomino on farmland belonging to Eladio Valenzuela Tello. In the grave were found a used candle, a white bloodstained blanket 20 centimeters long, a brown poncho and a nylon sack with bloodstains. All had the fetid odor of decomposing bodies. These Articles were ordered sent to the laboratory to be studied by experts. The second grave opened was some 10 meters from the first grave, where witness Candelaria Palomino Ccayo said that she had found her husband Alejandro Cchoccua Oré buried together with Hermenegildo Apare Tello. Nothing was found in the grave, but it did have the odor of a decomposing body. The third grave, some 300 meters from the second grave, in an area called Ccullpapacha Huaycco on a farm belonging to Víctor Bautista, was where witnesses Ernestina Ipurre Palomino and Martina Valenzuela said they found Solano Ccayo Noa and Dionisio Suárez Palomino buried. Inside this third grave was a bloodstained white sheepskin, a rag with yellowish stains and a candle 3 centimeters long. Though there were no bodies, there was a fetid odor such as that given off by decomposing bodies. Ernestina said that Martina had put the sheepskin in the grave when she buried the body. It was noted that the presence of the used candle indicated that it had been lit during the night when there was no light, and then tossed in the grave when whatever was being done was finished and light was no longer needed. Along the bridle path from the second to the third grave were fragments of human skull, impregnated with blood and hanging from a plant called ambrancay, some 70 cm off the ground. There were also strands of human hair. More strands of human hair were found on the ground, as were five bullet casings, all of which were taken to be sent to the laboratory for study. At the fourth grave, also located in Ccachuaypampa some 400 meters from the third grave and on the farm owned by Valeriana Ipurre, witness Maura Noa Palomino said that she had buried the body of her son Eustaquio Oré Palomino. When the grave was opened, the skin of a right hand was found, including the skin of the five fingers. PIP experts were ordered to take fingerprints from the skin. Alongside that grave was an empty can of "Timonel" sardines, which had been opened in an unusual way, with the edges pushed inward; inside were the remains of its contents. There was also a broken shovel handle, which they must have been using when the bodies were removed from the grave, which still had the fetid odor of decomposing bodies about it. This proceeding was suspended and was slated to be resumed on May 30.
When the proceeding was resumed on May 30, as recorded at p. 145, this time in the area known as Quimsahuaycco and in the company of witness Julia Noa González, the latter pointed out a mound of earth where there had been a grave in which the witness said Teodosio Noa Pariona and Indalecio Palomino Tueros were found buried. Though no corpse was found, there was a fetid odor of decomposing bodies. Samples were taken of damp dirt for the appropriate examination by experts. Strands of human hairs found in the cabulla leaves were also collected. The leaves had bloodstains on them but those stains were only on those leaves that were on the left hand side of the road leading to Cayara. All these items were to be sent to the laboratory to be studied. The hairs were found where the bridle path narrows. Other materials collected to be sent to the laboratory included a dark-brown piece of shriveled skin and bloodstained rocks. The army advisor stated that the bodies were the result of an encounter with the forces of law and order and that the senderistas had most certainly taken them there. Some 300 meters from this grave and at another mound of dirt difficult to reach, the witness indicated that there had been another grave where Patricio Ccayo Cahuaymi and Emilio Berrocal Crisóstomo were found buried. No corpse was found, but there was a black sandal and human hair, which was collected to be sent to the laboratory for examination by experts.
3. A proceeding conducted on May 30, at Erusco, certified copies of which appear at pp. 172-173, and in which the Army's Legal Counsel, Peruvian Army Captain Alonso Esquivel Cornejo, took part. In that proceeding it was inferred that the four graves at the site were used by military troops to bury the bodies of four senderistas who took part in the May 13 ambush on the military convoy, senderistas who were killed when the surviving soldiers repelled the terrorist attack. No corpse was found in any of the graves, nor any odor of decomposing bodies that would allow one to conclude that bodies had in fact been buried there. Further, the graves in question measured only 1.10 meters in length and 50 centimeters wide.
4. A proceeding conducted on August 10 in Pucutuccasa, the record of which appears at p. 318, exhumed the body of a woman identified in accordance with the provisions of Article 173 of the Code of Criminal Procedure by two of her siblings, Flavia and Justiniano García Suárez, as being the body of Jovita García Suárez. Justiniano García Suárez also identified the body of another relative by the name of Samuel García Palomino and an individual whom he knew by the name of Alejandro Echaccaya Villagaray. The remains of a fourth person found in the grave were not identified. Only the body of Jovita García Suárez was exhumed since it was impossible to carry all of the bodies that were there. The bodies had been buried on a mountain and there was no way to bring back all of them that day. Once Jovita's body was removed, the skin of two hands and the skin from the sole of a foot were taken from inside the graves. A short distance from the grave were found two bullet shells and bloodstained stones; a dark, bloodstained hat was taken from inside the grave, as well as two sandals, some dirt, and small, bloodstained stones. These were all to be sent to the laboratory for examination.
5. A proceeding conducted on August 19, in Pucutuccasa, and recorded at p. 365; this proceeding ascertained that the bodies left behind on August 10 had been removed; strands of human hair, bloodstained soil samples and a piece of human skin were collected, all to be sent to the laboratory for examination.
6. Attached to the complainant's response, the Commission received a copy of the report prepared by the Special Chief Prosecutor.
D. Fingerprints have been taken:
1. From the skin of a right hand discovered during the exhumation of the fourth grave at Ccachuaypampa. According to relatives of the person who had been buried there, it belonged to Eustaquio Oré Palomino, a 17-year old student and farmer; the fingerprint cards appear at pp. 113 and 117.
2. From two portions of skin from two hands, one right and the other left, that should correspond to Alejandro Echaccaya Villagaray and Samuel García Palomino, as they were found inside the grave in which these two men were found during the exhumation proceeding conducted on August 10; the fingerprint cards are at pp. 339 and 340.
E. The following steps were taken to locate bodies:
1. On May 20, in the Church of Cayara, certified copies of which appear at pp. 178-179; from that proceeding it was concluded that there was no corpse in that church. However there were bloodstains both within the church and outside of it, bloodstains that have not been examined by experts because of negligence on the part of the magistrates who presided over in that proceeding.
Later that day (1:00 p.m.) further inquiries were slated for Ccochua. The magistrates never got there: as they were on their way down, the army troops who were with them as escorts said that they were being attacked by senderistas and would not be able to go any further. It was so recorded.
F. Autopsies have been conducted:
1. On the body of Jovita García Suárez, as recorded at p. 307, on August 10; the record shows that the individual in question was 7 months pregnant; that her right eye was missing, that her nose was gone, and that the nasal bone was fractured; the lower jawbone was fractured and the tongue was protruding; the ears were normal. As for the torso, the thorax had an open wound on the left side of the chest; the fifth and sixth left ribs were fractured. The radius of the left arm was fractured. The head had been destroyed, and the skull and brain mass were gone. Finally, the left auricle and ventricle of the heart had burst. Pieces of heart, lung and skin were taken, in duplicate, to be examined at the laboratories. A piece of bone from the base of the skull was also extracted, for examination at the laboratory.
G. The following materials were requisitioned:
1. From the clinical file of Eustaquio Oré Palomino at the Huancapi Health Center, as recorded at p. 168; that clinical file appears at pp. 166‑167. This measure was necessary in order to obtain personal data on that individual since, being 17 years of age, he did not yet have a voter registration card. The clinical file showed that the young man had taken steps to register for the military service, which served as a lead for another requisition.
2. The military registration card of this same individual, taken from the Huancapi Recruitment and Mobilization Office, as stated at p. 312. The card appears at p. 313, which states that the individual in question was born on September 22, 1970. The file contained a fingerprint of the right forefinger.
H. Studies have been conducted:
1. By a fingerprint expert, No. 101-MD-SDOROP, at P. 266, consisting of a study comparing the right thumb of the skin from the hand found in the fourth grave exhumed at Ccachuaypampa and that the relatives of Eustaquio Oré Palomino (17 years old) said belonged to him, and of the fingerprints that appear on the fingerprint card of RC No. 1348150, corresponding to Eustaquio Oré Palomino, 18 years of age, as recorded at p. 271. This examination concluded that identity had not been established and since the card at p. 271 said only that it was Eustaquio Oré Palomino, initially it was attributed to a mistake by the undersigned prosecutor. For that reason, the individual's documents were requisitioned in order to be able to find some fingerprint.
2. Forensic Report No. 3615/88, at pp. 276-277, which concludes that the skin from the aforementioned hand is 7 to 10 days old and that post mortem changes or a damp environment could have caused it to become detached from the rest of the arm. Photographs of that skin appear at p. 278, as well as photographs of the strands of hair found tangled in the ambrancay plants, and fragments of a human frontal bone found during this exhumation on May 27.
3. Forensic Report No. 1930-88, at p. 283, conducted on the materials found in the exhumations of May 27, as recorded at p. 139, from the first grave, along the path between the second and third grave, and the on-site inspection conducted on June 12. It concludes that most of the samples have human bloodstains, type "O," and that the strands of hair are human hair.
4. Forensic Report No. 4286/88, at p. 345, conducted on the piece of skull bone found on May 27, between the second and third grave exhumed, as recorded at p. 139. The expert concludes that it is a human bone and belongs to an individual over the age of 18.
5. Protocol of Analysis Nº 02354, at p. 348, conducted on the contents found in the third grave during the exhumations of May 27, and the items found along the path between the second and third graves and in the first and second graves during the exhumation of May 30, and the on-site inspection of June 11. It concludes that most of the samples have human bloodstains, type "O," RH(+) factor, and that the strands are human hair and belong to more than one person. It also states that the hair had been pulled out, possibly from the head.
6. Forensic Report Nº 5228/88, at p. 378, on the pieces of heart, lung and human skin taken from the body of Jovita García Suárez on August 10. It concludes that histologically, those samples correspond to the parts in question but that they were decomposing because they had not been preserved in Formol.
7. Forensic Report Nº 5191/88, at p. 374, on a fragment of bone taken from the skull of Jovita García Suárez on August 10. It concludes that it is human bone from the skull (occipital) of someone who may be an adult and who had been dead no longer than three months; the cause of death would have been some kind of trauma.
8. Ballistics Report Nº 2901/88, at p. 382, on the two shells found on August 10 in the exhumation at Pucutuccasa; it concludes that they are two rifle shells, brand "FAME," fired by the same weapon. That weapon may have been a light automatic rifle.
9. Forensic Report Nº 2569/88, at p. 401, on all of the material collected during the exhumation of August 10. It concludes that the skin is human, as is the skin from the sole of a foot and that the strands of hair are from an individual who was either a young person or an adult.
10. Biological Report Nº 2493, at p. 403, on the hat and stones found during the exhumation of August 10. It concludes that the stains are human bloodstains, type "O," and that the strands are human hair.
11. Biological Forensic Report Nº 2522/88, at p. 405, on a fragment
of bone and two sandals picked up during the exhumation conducted on August 10. The report concludes that the bone and the strands of hair are of human origin and that the sandals show no signs of blood.
12. Fingerprint Report Nº 138-MD-SDIRIPO, at p. 414; a fingerprint study comparing the fingerprint that appears on the fingerprint card at p. 339, the fingerprint (photographic enlargement) issued through note 5024-REP-DI[3 letters illegible] at p. 391, and the fingerprint stamped on the Voter Registration card issued to the name of Daniel Samuel García Palomino. Its finding is that a full papillary identification cannot be made. Though the three are of a bideltic typology, there are characteristic papillary points missing that make a full identification impossible. This is because samples 2 and 3 are not as clear as the first sample.
13. Fingerprint Report Nº 137-MD-SDIRIPO, at p. 421; a fingerprint study that compares the impression that appears on the military registration card, a copy of which appears at p. 314, and the fingerprints on the fingerprint card RC Nº 1348150, which is in the files of the SDIRIPO. The comparison made of the first of these and the fingerprints made from the hand skin found when the fourth grave at Ccechua was exhumed on May 27 concluded that the fingerprint that appears on the Military Registration card is not a fingerprint at all, but rather a blue stain (ink smudge). For purposes of the law, however, the fingerprints shown on the military registration card and the fingerprint card RC Nº 1348150 are the same.
14. Anatomical-Pathological Study Nº 200-88, at p. 430, on the pieces of lung, heart and skin taken from the body of Jovita García Suárez during the autopsy conducted on August 10. This study concludes that the samples are pieces of skin, heart and lung, and that death occurred more than two months previous to the date of the study.
I. Background information has been requested:
1. An official letter was sent to the Registrar of Police Records requesting the files on Jovita García Suárez, Alejandro Echaccaya Villagaray and Samuel García Palomino. The response appears at p. 350, and states that there is no police record on file.
J. Information has been requested from the Voter Registration Office.
1. An official letter was sent to the Voter Registration Office at Ayacucho, answered with Letter No. 405-88/REPH, at p. 389, reporting that Jovita García Suárez, Alejandro Echaccaya Villagaray and Samuel García Palomino are not registered in Ayacucho.
2. A letter was sent to the Office of the Deputy Director of Police Identifications -- DILLE -- of the Lima Voter Registration Office. The reply -- Note No. 5024-REP-DILLE, at p. 391 -- states that both Jovita García Suárez and Daniel Samuel García Palomino are registered but not Alejandro Echaccaya Villagaray. Photocopies of the registration cards and an enlarged photograph of the fingerprint that appears on each card were also sent.
K. Other important inquiries:
1. The townspeople of Erusco presented a report to my office, which appears at p. 354. It bears the signatures and fingerprints of 19 of them. The report states that members of the army in Cayara have tried to get them to state and sign a document wherein they assert that Jovita García Suárez had been taken by senderistas. The only one to sign this document, and under great duress, was the President of Civil Defense. This had to be done within the military base at Cayara, because it was not true. The individual in question had been taken into custody by army troopers.
2. Since a return trip had to be made to Cayara to continue going through the list of those shown to be missing, a letter was sent to the Commandant of the FAP-HO group at Ayacucho, asking that he help us get to the area by helicopter. The reply we received was Of. 018, dated October 5, which appears at p. 442. It states that in order to use the helicopter, permission must be requested directly from the Chief of the Military Political Command of Ayacucho, in other words, Peruvian Army General Luis Valdivia Dueñas, to whom that Commandant was answerable. From that one can infer that helicopters in Ayacucho do not take off without the authorization of or an order from that General.
3. During this investigation, a statement was taken from Benedicta María Valenzuela Ccayo, Maura Palomino de Oré and Antonia Ccayo Quispe de García, all of whom have identified one of the material authors of the events under investigation as being the officer whose photograph appears at p. 408. He had been wearing a ski mask but his red hair and somewhat ruddy white skin were visible, as were his eyes and nose. It should be noted that the photograph in question was taken when the undersigned went to Cayara for the first time on May 21 and there found the individual in question intimidating the witnesses who were to make statements.
Fernandina Palomino Quispe, Indalecio Palomino de la Cruz and Justiniano Tinco García also made statements to the effect that army troops had robbed their stores of Articles valued at approximately I/10,000, I/10,000 and I/20,000, respectively, and that the theft occurred during the events that began on May 14. Justiano Tinco García also said that the soldiers took the following from the premises of the Town Council: a large Seiko clock, a stapler, brand name "Famosa," two new sports outfits and a winch 20 meters long.
Furthermore, as to the charges concerning the alleged violation of Martha Crisóstomo García and Petronila Chipana Tarqui, a statement was taken from the former wherein she denied having been raped by army troopers; the second has not been located thus far.
4. During the course of this investigation, lists have been submitted of persons either dead or disappeared as a consequence of the actions attributed to the army troops; lists of that kind were presented by APRODEH, at p. 3 and 239; by the Mayor of Hyamanga, at p. 15, through a Public Communiqué that he ordered be printed at the time he made his statement; by Deputy Agustín Haya de la Torre, at p. 50, with the complaints that appear at pp. 59 and 65; by the Embassy of Finland, at p. 298; by Senator Javier Diez Canseco, at p. 205; by Amnesty International, at p. 242; and by the Working Group on Enforced or Involuntary Disappearances of the United Nations, at p. 300. These lists have been taken into account during each of the visits made to Cayara, striking off the names of anyone who has been located and identified. From all of this, the following persons have yet to be located and are detained-disappeared:
Ciciliano Bautista Ipurre
Aurelio Tarqui Quispe
Félix Crisóstomo García
Indalecio Palomino Ipurre
Eusebio Ccayo Noa
Santiago Tineo Tello
Humberto Ipurre Bautista
Jacinto Cabrera Ipurre
Eusebio Inca Palomino
Humberto Ipurre Palomino
Emerson Sulca Oré
Santiago Telo Crisóstomo
Samuel Maldonado Tinco
Francisco Ccayo Tello
Marcial Crisóstomo de la Cruz
Serafín Quispe Crisóstomo
Alberto Noa Ipurre
Primitivo Suárez Tello
Baldomero Suárez Valenzuela
Víctor Crisóstomo Suárez
Demetrio Crisóstomo Crisante
Ignacio Tarqui Noa
Idelfonso Huayanay Bautista
Javier Hinostrozo Noa
Luciano Pariona Oré
Bernardo Arte Díaz
Germán Bautista Palomino
Walter Chávez Oré
Benito Crisóstomo Sulca
Dámaso Crisóstomo Sulca
Alfredo Sulca Palomino
Ana María Apari Palomino
Florencia Apari Palomino
Auren Arotinco Palomino
Petronila Chipana Tarqui
Domitila Esquivel Fernández
Flora Hinostroza Cabrera
Consuelo Noa Apari
Julia Crisante Palomino
The following two names should also be added to this list
Magdaleno Gutiérrez Huamán
Segundina Marcatoma Suárez
Witnesses numbers 17 and 28 have made statements to the effect that they saw Magdaleno Gutiérrez Huamán wounded after the events that occurred on May 14 and both were seen alive until May 16 when army troopers took them from the home of Segundina Marcatoma Suárez.
Also listed as detained-disappeared are the following:
Gregorio Ipurre Ramos
Guzmán Bautista Palomino
Catalina Ramos Palomino
Benedicta Palomino de Ipurre,
According to relatives, these four were taken into custody on June 30 by members of the army in Cayara. Gregorio Ipurre Ramos had been a witness in this investigation. He and Guzmán Bautista Palomino were both on the list that General Valdivia Dueñas had on May 18 at Cayara, branding them terrorists and saying that the Army was looking for them. My office has instituted investigations Nos. 476 and 477 in connection with these four people even though their disappearance was reported well after the events that are the subject of this investigation.
5. When Victoriana Meza Cabrera made her statement, she made reference to another investigation conducted in 1986 by the Public Prosecutor's Office, involving events that apparently were also attributed to members of the army. An investigation was requested in that case as well. It shows that the events occurred in Huancapi, a place approximately one and a half hour by car from Cayara. Some people from the Cayara district were listed among the aggrieved parties in that incident as well. There again, army troops were allegedly responsible. This investigation has been at a standstill since June 1, 1987, with the First Chief Prosecutor's Office of Ayacucho. The latter ordered the Provincial Prosecutor of Víctor Fajardo to take steps to enlarge the investigations, without result thus far.
6. When Martha Crisóstomo García expanded her original testimony, she included a report that appears at p. 187. There she mentions the number of people who were living in Cayara on May 5 of this year. In all there were 2,530 adults and children. She noted that Cayara is a district of the Province of Fajardo in the Department of Ayacucho and is 147 kms south of Huamanga. To go from Huamanga to Cayara by car the trip is as follows: 3 hours as far as Cangallo, an hour from there to Huancapi, and an hour and a half from Huancapi to Cayara. To go from Cayara to Ccechua, one has to follow a bridle path that goes downhill for an hour and a half; the return trip on foot takes approximately 3 hours. The path from Cayara to Quicsa Huaycco is about an hour's walk, both going and coming; by helicopter the trip from Huamanga to Cayara takes approximately 20 minutes. It should also be noted that agriculture is the mainstay of the region's population and at the time the events under investigation occurred, it was harvest season. The farm fields are in Ccechua.
III. From all this one can conclude that:
A. On May 13, 1988, at approximately 9:00 p.m., terrorists ambushed two army vehicles and their occupants; they blew up one of the vehicles on the road at Erusco. An exchange of fire between the terrorists and the army troops followed, lasting approximately 45 minutes. The incident left one army captain, José Joaquín Arbulú Sime, one sergeant and two corporals dead.
B. On May 14, 1988, in response to the ambush, Army troops from the Huancapi, Huaya and "Linces" bases, transported by helicopter, entered the town of Cayara at around 9:00 a.m. and closed off the highway access to the town.
C. Approximately 80 army troopers proceeded to assemble the men who were at the church celebrating the festival of the Virgin of Fatima in the town of Cayara. They had killed Mr. Esteban Asto Bautista as they were coming into town, and then killed Patricio Ccayo Cahuaymi, Emilio Berrocal Crisóstomo, Indalecio Palomino Tueros, Santiago Tello Crisóstomo and Hermenegildo Apari Tello inside the aforementioned church. Other troops proceeded to break down the doors of the houses, to loot stores and homes, arrest Marcial Crisóstomo de la Cruz, whom they used as a guide for a house-to-house search of people from the district whom they were seeking; and they burned the homes of Gregorio Ipurre Ramos and Dionisio Suárez Palomino.
D. That between 2:00 and 3:00 p.m. that day, between 80 and 100 army troopers descended upon the place called Ccechua. There, at a spot called Ccachuaypampa, they assembled all of the people from the district who were returning from their harvests; they separated the men from the women. The women were ordered to sit down with the children to one side, while the men were forced to lie face down. The soldiers then put cactus leaves on their backs, which they cut from a nearby grove; the soldiers, armed with axes, sickles, machetes, and other implements, proceeded to kill the men from the district, one by one, under a nearby molle tree, while other soldiers scattered the women and children. They did not allow them to return until May 16, at which point members of the family began to bury the bodies of their loved ones. Twenty people were killed at this spot.
E. On the morning of May 18, 1988, a helicopter arrived in Cayara with General José Valdivia Dueñas on board. He assembled the people at the heliport, where he read off a list, calling out, among other names, those of Alejandro Echaccaya Villagaray, Samuel García Palomino, Gregorio Ipurre Ramos and Guzmán Bautista Palomino, saying that they were terrorists and that they were being sought.
F. That same day, May 18, toward the end of the afternoon, an Army patrol of approximately 20 men entered Erusco and assembled all of the townspeople. They then took into custody Jovita García Suárez and Alejandro Echaccaya Villagaray; the next day they took Samuel García Palomino. They held the three until May 20, inside the Erusco school. That afternoon they took the three away, headed in the direction of the mountain at Erusco.
G. Thirty days following their detention, relatives of the two men taken into custody reached Pucutuccasa, where they found the bodies of the three people in a grave. On August 10, those bodies were fully identified in an exhumation proceeding. The only body removed at that time was Jovita García Suárez; the other two and the remains of a fourth unidentified body were left behind. When an autopsy was done on the body of Jovita García Suárez, it was established that she had been brutally tortured before being killed; among other things her skull had been completely blown away. Alongside the grave where she was found were two bullet shells, the kind of bullets used by light automatic rifles, the weapon used by soldiers of the Peruvian Army.
The conclusion from all of this is that: there is sufficient evidence to be able to bring a formal indictment before the Lower Court Judge of Cangallo, this being his jurisdiction. The charges would be as follows: homicide with extreme cruelty, provided for and punishable under Article 152 of the Penal Code, amended by Decree Law 18968, against the person of Jovita García Suárez; homicide, provided for and punishable under Article 150 of the Penal Code, against the person of Alejandro Echaccaya Villagaray and Samuel García Palomino; crimes against individual liberty, provided for and punishable under Article 340 of the Penal Code and committed against each and every one of the individuals listed in this report as disappeared, including those listed as dead in Cayara and Ccechua, until their bodies are discovered, whereupon the charge can be expanded to include homicide; robbery, provided for and punishable under Article 238 of the Penal Code, against the people listed under point II.b of this report; damages and injuries, provided for and punishable under Article 259 of the Penal Code, against the persons of Gregorio Ipurre Ramos and Lucilla Tello de Suárez, also listed under Point II.b of this Report; against the administration of justice, provided for and punishable under Article 332 of the Penal Code and, presuming the responsibility of the Chief of the Political‑Military Command of the SZSNC‑5 of Ayacucho, Peruvian Army General José Valdivia Dueñas, this under the provisions of Article 100 of the Penal Code, as amended by law 12341, since the events under investigation point to the commission of an on‑going crime that began on March 14, 1988, and ended between April 20 and 21 with the death of three people from the district, discovered at Pucutuccasa. The material authors of this crime executed an order, while the intellectual authors deliberately induced others to the commission of the crimes; this Prosecutor further concludes that there is sufficient evidence to indict the General in question. During the course of the preliminary investigation, said General should indicate and identify who executed his orders in the commission of these crimes.
As for the crime of rape, also under investigation here, one of the possible aggrieved parties has said that she was not raped, while the other has not been located.
This, Mr. Chief Criminal Prosecutor, is all I have to report.
Dr. Carlos Enrique Escobar Pineda
Special Chief Prosecutor
8. The Commission has taken cognizance of resolution 45/90, of January 18, 1990, whereby the Provincial Prosecutor for Huamanga decided that the proceedings were to be filed temporarily, though the investigation, which had come up with nothing so far, could be reopened. (This Resolution is transcribed as part of the Senate Commission Report (see point 11.)
9. With respect to the substance of the case in the Cayara incidents, the Government of Peru sent a note dated May 8, 1990, attaching a copy of Official Communication 45 P‑CSJM, dated February 1, 1990, "sent by the Chairman of the Supreme Council of Military Justice to the Minister of Defense, reporting that on May 12, 1989, the Second Judicial Zone of the Army had resolved to discontinue judicial proceedings in the case in question, and on January 31, 1990, the Supreme Council of Military Justice upheld that decision."
10. Two days later, in a communication dated May 10, 1990, the Government added information, as follows:
It should be noted that three separate inquiries were instituted in connection
with the Cayara case:
- The proceeding under the Military Code concluded on January 31, 1990, when
the Supreme Council of Military Justice upheld the decision of the Army's Second
Judicial Jurisdiction to discontinue proceedings; I enclosed a copy of that
decision with my note No. 7-5-M/081.
- On the other hand, the inquiries conducted by the Office of the Attorney
General of the Nation were carried out by stages:
The first was entrusted to the Chief Prosecutor, Don Carlos Enrique Escobar Pineda. That inquiry concluded on October 13, 1988, when said Prosecutor filed his report and there indicated that in his judgment there were grounds for filing criminal charges with the proper tribunal against the alleged guilty party, whom he indicated was the Political Head of the Ayacucho Emergency Zone.
- The Office of the Attorney General of the Nation gave orders that the investigations
conducted by Prosecutor Escobar were to be expanded and to that end designated
Provincial Prosecutor Jesús Granda, who concluded his assignment stating that
there were no grounds for bringing the corresponding criminal charges and that
the case should be temporarily archived. On August 29, 1989, the Attorney General
of the Nation decided to revoke this last decision by Provincial Prosecutor
Jesús Granda and to open up the inquiries even further. This time they were
in the hands of Provincial Prosecutor Rubén Vega, who on May 24, 1990, decided
not to bring any criminal charges and to archive the case once and for all.
There was heavy press coverage of the alleged violation of human rights in
Cayara. Out of a genuine political resolve to conduct a thorough investigation
of the events, on May 17, 1988, the Senate of the Republic designated a fact-finding
commission consisting of seven senators representing a variety of political
parties. The majority report of that Commission found that there were no grounds
for bringing criminal charges. The Commission's conclusions are enclosed as
information for the Inter-American Commission on Human Rights.
It should be noted that the Senate Investigating Commission did not reach
a consensus, and two other minority reports were written. I will be happy to
forward those two reports to the IACHR as soon as possible.
Since it might also be helpful for purposes of an objective analysis of the
events in Cayara, I am enclosing the Report on those and subsequent events,
dated November 18, 1988, and presented by Peruvian Army General José Valdivia
Dueñas, Political-Military Chief of Ayacucho, to the Cangallo Provincial Prosecutor,
Jesús Granda. Also included is a document that, on the occasion of a meeting
called on May 22, 1988, by the authorities of the Cayara District and the Commander
General for the Emergency Zone, was signed by those alleged to have died in
Cayara on May 14, 1988.
The IACHR has surely seen the news reports circulated by the international
press in connection with the events in Cayara, reports that make reference to
alleged bombings and pillaging that left one hundred dead. This illustrates
that this was an attempt to create a news spectacle calculated to discredit
the Peruvian Army, which has been combating terrorism as part of a difficult
mission to bring peace to the zone under its responsibility.
It is a well known fact that Peru has been waging an enormous effort nationwide against the senseless violence of terrorism, whose cost in human lives and property has seriously hurt our society, the country's development and has threatened the Peruvian democratic process that has been asserting itself in the Republic since 1980.
11. With this note the Government enclosed the majority conclusions of the Senate Investigating Commission (Melgar Report), as follows:
FINDINGS OF THE COMMISSION INVESTIGATING
THE EVENTS THAT OCCURRED IN CAYARA, ERUSCO AND
ELSEWHERE IN THE DEPARTMENT OF AYACUCHO
The Investigating Commission has reached the following conclusions:
1. It has been established that on May 13, 1988, an Army patrol was ambushed in the vicinity of Erusco by senderista elements. They blew up one of the trucks by planting sticks of dynamite on the road beforehand. Infantry Captain José Arbulú Sime, Sergeant Second Class Angel Vargas Támana, and Corporal Fabián Rondán Ortiz were killed immediately and Corporal Carlos Espinosa de la Cruz died later in the Mobile Surgical Unit from Ayacucho. Some 15 Army troopers were injured, five of them seriously.
2. It has been established that the ambush totally put out of commission UNIMOG troop carrier No. 12082, which is State property. The senderistas either took or destroyed eleven light automatic rifles (LAR), calibre 7.62; a 9-calibre HK-MPSKA submachine gun, 52 LAR cartridges and 14 HK cartridges.
3. It has been established that despite the numerical superiority of the assailants and the element of surprise in the ambush on the military convoy, the surviving members of the patrol did all they could to repel the attack. A number of unidentified subversives died in the attack, and presumably others were wounded. The senderistas evacuated them in the direction of the neighboring villages before Army reinforcements from Huancapi could arrive.
4. It has been established that, carrying out the Plans of Operation in effect, principally the "PERSECUCION" Plan (P/A PERSECUCION), Peruvian Army reinforcement patrols began tracking the senderista column that had headed out in the direction of the town of Cayara.
5. The town of Cayara was found to be semi-abandoned, save for some children and elderly, who said there were five bodies in the town's church. They were the bodies of subversives wounded during the ambush on the patrol and who had died from their wounds in the escape; because fresh military troops had arrived there had been no time to bury the bodies or take them along.
6. That as the search operations continued in the area around the town of Cayara, specifically at the place known as Jeschua, there were more clashes between the government forces and the senderistas. These clashes resulted in unconfirmed casualties among the ranks of the subversives.
7. It has been established that on May 17, 1988, the Mayor of the Huamanga Provincial Council, Mr. Fermín Darío Asparrent, issued a communication intentionally reporting false criminal acts allegedly committed by members of the Army against the townspeople of Cayara.
8. It has been established that news of the false criminal acts attributed to military troops and their supposed excesses in Cayara was, with wrongful intent, filtered to the national and foreign media as part of a campaign engineered to look like an effort to defend human rights when in fact one of its immediate political objectives was to prevent government forces from continuing their search for senderista elements in the wake of the Erusco ambush.
9. It has been established that to accomplish that political objective, elements of the Army were accused of being the material authors of a massacre of some one hundred persons in Cayara. This drew the attention of the public both at home and abroad, and of the Government, public leaders and various political sectors and congressmen. It generated a palpable sense of solidarity in that community and suspicion surrounding the military force stationed in Ayacucho, which had to be investigated in order to clarify the facts and punish those responsible.
10. It has been established that this psychological operation, whereby the alleged excesses at Cayara were falsely and intentionally blown out of proportion, succeeded in paralyzing the countersubversive military actions, thereby thwarting the capture of the senderistas who were involved in the Erusco incident. Another purpose was to undermine the morale and fighting spirit of the troops. Certain elements of the media that serve as a sounding board for the subversive movement created false suspicions about the troops' commanders, depicting them as being directly responsible for the supposed excesses in Cayara.
11. It has been established that when, in the absence of the Attorney General, the then Chief Prosecutor for actions under administrative law, Dr. Manuel Catacora González, was in charge of the Office of the Attorney General of the Nation and learned of presumably criminal acts committed in the town of Cayara, he sent a telex ordering Ayacucho's Chief Prosecutor, Dr. Carlos Enrique Escobar Pineda, to take charge of the investigation. When the latter received the telex, rather than convey the pertinent instructions to Cangallo's Provincial Prosecutor so that he might file criminal charges or open up any preliminary inquiry that was called for, in accordance with Article 80 of the Statute of the Attorney General's Office, he unlawfully invested himself with authorities of a higher order and exercising functions pertaining to a different office, on his own opened up an investigation into the criminal facts, when such a measure is the exclusive purview of the Provincial Prosecutors and not of Chief Prosecutors. He has thereby committed the crime of insubordination through arrogation of authority, punishable under Article 320 of the Criminal Code.
12. It has been established that the Chief Prosecutor, Dr. Carlos Enrique Escobar Pineda, has become criminally liable and subject to disciplinary action by repeatedly violating basic procedural norms and provisions of the Statutes of the Attorney General's Office and of the Judiciary in the illegal investigation that he conducted into the alleged excesses committed in Cayara by military personnel, as described in the pertinent part of this report.
13. It has been established that the Chief Prosecutor illegally requested Cangallo's Provincial Prosecutor to provide all the proceedings in connection with the investigation that he was conducting of the criminal acts committed by senderistas at Erusco, thereby disrupting the normal progress of the investigation. That arbitrary decision has cut short the investigation, which is evidence of an obvious concern to thwart an investigation into the subversive elements on the part of the Attorney General's Office.
14. It has been established that the interpreter Alfredo Quispe Arango has betrayed the public trust in detriment to the State by identifying himself to the Chief Prosecutor using various voter identification booklets with different numbers and belonging to other citizens, as shown in the body of this report.
15. It has been established that the aforementioned Chief Prosecutor was fully aware that the interpreter Alfredo Quispe Arango had betrayed the public trust in detriment to the State by having in his possession several voter identification booklets with differing numbers; nevertheless, he did not report him, as was his obligation, and thus failed to perform the duties of his office. He also did nothing to have that criminal offense prosecuted and punished, making himself criminally liable under Articles 333, 338, 339 and 361 of the Penal Code.
16. It has been established that the interpreter Alfredo Quispe Arango has done false translations, thereby committing an offense against the Administration of Justice in detriment to the State, which is punishable under Article 334 of the Penal Code. His purpose was to obtain evidence to use against Army personnel, intentionally misrepresenting the facts with the complicity of the Chief Prosecutor.
17. It has been established that the Chief Prosecutor did not remain silent about the unlawful investigation he conducted; instead, he granted a number of interviews with various elements of the media and provided information on how the investigation was progressing, thereby violating the Statute of the Attorney General's Office.
18. It has been established that the Chief Prosecutor had an obvious interest in publicizing the investigation on Cayara -- even in violation of the law -- in order to stop government forces in their pursuit of the senderistas after the Erusco ambush, thereby assisting the psychological campaign that was mounted by elements of the media to bring a halt to countersubversive operations. That effort was aided by the information that Dr. Carlos Enrique Escobar Pineda supplied.
19. It has been established that Ayachucho's Chief Prosecutor, Dr. Iván Enrique Tello Mondoñedo, was fully aware of the crime that the Chief Prosecutor had committed by arrogating to himself functions that were not within his purview; nevertheless, he failed to take the necessary measures to correct the unlawful inquiry that Prosecutor Escobar Pineda personally conducted into the Cayara incidents, and failed to instruct Cangallo's Provincial Prosecutor to conduct the investigation, which under the law was the proper procedure. He therefore made himself criminally liable and should be reported to the Attorney General of the Nation.
20. It has been established that Cangallo's Provincial Prosecutor, Dr. Jesús E. Granda Olaechea, conducted an expanded investigation into the Cayara incidents, using as a basis all of the files and the Final Report prepared by Chief Prosecutor Escobar Pineda.
21. It has been established that at the end of that expanded investigation Cangallo's Provincial Prosecutor issued a resolution on November 24, 1988, wherein he decided not to file criminal charges against the Army personnel for the crimes allegedly committed in Cayara and filed all the proceedings in Cangallo.
22. It has been established that with the intervention of Cangallo's Provincial Prosecutor, the Office of the Attorney General, as the sole autonomous organ of the State charged with prosecuting the crime, has ascertained the true facts and uncovered the false and slanderous charges made against members of the Peruvian Army. The image of that institution and of its chiefs, officers and troops stationed in Ayacucho in 1988 was thus saved.
23. It has been established that the Political-Military Chief of Ayacucho at that time, Peruvian Army General José Valdivia Dueñas, is neither the intellectual nor material author of any criminal offense falsely attributed to him in the denunciations. Therefore, he is guilty of nothing. Instead, he is the victim of a dirty campaign to undermine his authority and command as part of the strategy used by the Sendero Luminoso to neutralize and/or destroy the government forces in order to destabilize the democratic regime and the rule of law in Peru.
24. It has been established that at the request of the Special Chief Prosecutor, the Lower Court Judge of Cangallo, Dr. César Carlos Amado Salazar, conducted a series of out-of-court criminal proceedings by taking measures that are the purview of an examining judge, thereby violating criminal procedure, which is public policy that the judicial authorities are bound to observe.
25. It has been established that the body found on August 10, 1988, in Pucutuccasa, concealed in a grave, is not that of JOVITA GARCIA SUAREZ, as the Special Chief Prosecutor initially falsely claimed.
26. That as it has been established that the body was not that of Jovita García Suárez, her death certificate, on file at the Cangallo Provincial Council, is now null and void; therefore, the Cangallo Provincial Prosecutor, as defender of the law, should undertake the legal measures to nullify that irregular record.
27. It has been established that the members of the First Court of Appeals of Ayacucho in 1988 acted irregularly when they bypassed a stage in an appeals proceeding that was reviewing the irregularities of the Lower Court Judge in question; the result was that in their capacity as higher court, they did not correct those irregularities by declaring all proceedings null and void and the Special Chief Prosecutor's petition inadmissible, thereby safeguarding the right of the representative of the Attorney General's Office to proceed in accordance with the law.
(s) Carlos Enrique Melgar López (s) Ruperto Figueroa Méndez
(s) Esteban Ampuero Oyarce (s) Alfredo Santa María Calderón
Senate, Lima, May 9, 1989
[end Melgar Report]
In its majority report the Senate Investigating Commission transcribes the full text of the prosecutor Granda Olaechea's resolution from now on (Granda Report) as follows:
Accordingly, and in accordance with the orders from the Acting Public Prosecutor
and in exercise of the authority that the law confers upon him, the Provincial
Prosecutor of Cangallo conducted various inquiries by way of an expanded investigation,
culminating in issuance of Resolution Nº 006-00, dated November 24, 1988, by
which in accordance with Article 2210 of the Code of Criminal Procedure and
because the perpetrators of the alleged crimes reported in the complaints have
never been identified or singled out, and in exercise of the authority conferred
under the second paragraph of Article 940 of Legislative Decree Nº 52, he RESOLVES:
NOT TO BRING AN INDICTMENT FOR THE CRIMES OF homicide, injuries, robbery, looting,
violation of personal liberty, arson, assault and battery, violation of home,
sexual violation and obstruction of the administration of justice. The case
should, therefore, BE PROVISIONALLY ARCHIVED in the Office of the Provincial
Prosecutor of Cangallo... (sic).
Here, the [Senate] Commission felt it best to cite the entire text of the resolution issued by the Provincial Prosecutor of Cangallo, inasmuch as it gives the factual and legal grounds that allow one to establish that P.A. General José Valdivia Dueñas, Political‑Military Chief of Ayacucho, and Army troops stationed in that area neither planned nor carried out the acts alleged to have been committed by these servicemen in Cayara on May 13 and 14, 1988, and the days that followed.
TEXT OF RESOLUTION (GRANDA REPORT)
CANGALLO, NOVEMBER 24, 1988
Having received and read Communique Nº 356‑88‑MP‑SGFN, dated November 11, 1988, whereby the Attorney General of the Nation forwards the files of Dr. Carlos Escobar Pineda, Special Chief Prosecutor in connection with the events that transpired in the towns of Erusco and Cayara on May 13 and 14, 1988, and the days that followed, to expand the inquiries into the complaints filed by Mecíos Taquirí Yanqui (p. 1); the Pro Human Rights Association; Fernandino Palomino Quispe, Pelagia Tueros Chipana and Antonio Apari Palomino, at p. 2; the Provincial Councilman of Huamanga, at p. 15; Agustín Haya de la Torre, at pp. 52 and 55; Maximiliano Noa Palomino et. al. at p. 59; Francisco Soberón Garrido, at p. 67; Fernandina Palomino Quispe et. al. at p. 236; and the additions to the complaint filed by the Pro Human Rights Association at p. 239; for the crimes of qualified murder, assault, robbery, abuse of authority, arson, damages, sexual violation, violation of home and damages, against the townspeople of Cayara and the surrounding areas, by members of the Peruvian Army, and
FIRST: That as can be inferred from the report prepared by the Special Chief Prosecutor, on May 14 and 15 an Army Patrol entered the towns of Erusco and Cayara, within the Province of Víctor Fajardo in the Department of Ayacucho, after a military convoy was ambushed by subversives the night before at Erusco, on the road between Cayara and Huancapí. One officer and three soldiers died in the ambush;
SECOND: That as a consequence of the military operation JOVITA GARCIA SUAREZ, ALEJANDRO ECHECCAYA VILLAGARAY and SAMUEL GARCIA PALOMINO were killed. Their bodies were discovered in a place called Pucutuccasa on August 10. Approximately fifty residents of Erusco and Cayara have disappeared, various items have been stolen and houses have been destroyed; there have been rapes, murders, etc;
THIRD: That according to the Special Chief Prosecutor's report, those responsible for the crimes would be the military, with a "presumption" of the responsibility of Peruvian Army Brigadier General José Valdivia Dueñas, Political Military Chief of the National Security Subdistrict of Center Nº 5;
FOURTH: That once the expanded investigations were conducted by the Provincial Prosecutor of Cangallo, charged with the provinces of Víctor Fajardo, Vilcashuamán, Huancasancos and Sucre in the department of Ayacucho, it was established that at 9:30 p.m. on the night of May 13, a military patrol consisting of two vehicles was ambushed by a group of about 200 subversives near Erusco, located some three kilometers from the town of Cayara, the capital of the district of Cayara in the province of Víctor Fajardo, department of Ayacucho; in the attack the subversives used dynamite, grenades and long-range weapons. Army Captain JOSE ARBULU SIME and three soldiers were killed. Other soldiers were also wounded. A military truck was put entirely out of commission and a long-range weapon was seized. Three surviving members of the convoy managed to reach the city of Huancapi, the capital of the province of Víctor Fajardo, to get help, while the other military troops continued fighting the subversives until 5:00 a.m., May 14, when reinforcements arrived from the Military Base at Huancapi and San Pedro de Hualla and went in pursuit of the assailants, who had fled in three directions; two of the columns went through Cayara. During the fighting at Erusco, four subversives fell. Their bodies were buried there. Two columns of the subversives fled in the direction of Cayara and entered the town's church to regroup and treat their wounded. Six of them died and were abandoned in the town. When the pursuing military patrols arrived, they were told what direction the subversives had taken and immediately launched their search for them. Several clashes followed in which eight of the assailants died, bringing their total losses to eighteen, including the four at Erusco and the six at Cayara. All of this appears in the report of the Chief of the Political-Military Command of the National Security Subdistrict of Center Nº 5, dated November 10, 1988, forwarded with Letter Nº 185-88-AJ/SZSNC-5, which is at pp. 536 to 549 and is corroborated by the expanded testimony that appears at pp. 521 and 522, given by Justo Pastor García Palomino, a native and resident of Cayara;
FIFTH: That once the Provincial Prosecutor had taken the expanded testimony from the witnesses who still live in Cayara, it was possible to establish that during the early morning hours and on the morning of May 14, a column of subversives did in fact pass through Cayara, scattering in two directions; that on May 13, before the ambush on the military convoy, they had passed through the town, recruiting some of the townspeople, looting stores and houses and burning two of them; they accused the owners of not wanting to ally themselves with the armed struggle; this can all be found in the testimony at pp. 521 to 522, 526, 527, 530 and 531;
SIXTH: That in the church in the town of Cayara or nearby, six civilians were killed, whose identities neither the townspeople nor the military command has been able to establish; the people were forced to lock themselves in their houses; on May 13 and 14 the festival of the patron saint of Cayara was celebrated and a large amount of alcohol was consumed. All this appears in the file at p. 527;
SEVENTH: That one part of the subversives who passed through the town of Cayara did so dressed in Army uniforms and carrying heavy-gauge weapons. This undoubtedly confused the people, who were celebrating the festival of the town's patron saint. This is why many of them said that military troops had been the authors of the abuses, which is at odds with what the Political‑Military Command of the Zone reported;
EIGHTH: That in her statement at p. 523, TEODORA APARI MARCATOMA states that she was working in the city of Ica from March to June 1988, and returned to Cayara on June 15 of this year. Nevertheless, in her statement at pp. 47 and 48, she appears to be saying that she saw the soldiers looting and destroying private property. This illiterate witness, who does not speak Spanish, declares at p. 523 that she did not say what appears in her statement at pp. 47 and 48. The interpreter in that statement is Mr. ALFREDO QUISPE ARANGO, who identifies himself using different voter registration numbers, as shown at pp. 506 to 509. For that reason, since there are discrepancies in his identification in three other statements, there is good reason to believe that all of the statements that he interpreted for illiterates do not necessarily reflect what the people testifying were saying, as Mrs. Maximilana Noa Oré Ccaya states at p. 531;
NINTH: That from the statements made by the witnesses at p. 523, most of the people of Cayara and Erusco go to Ica and Pisco from March to June, because at that time of year there is neither planting nor harvesting on what little arable land is there. They go to those cities to earn some money to survive while they wait for harvest time. Many of the migrants opt to stay in those towns, and so leave behind their small farms and rustic dwellings;
TENTH: That according to a statement by witnesses FLAVIA GARCIA SUAREZ and JUSTINIANO GARCIA SUAREZ, the body founded at PUCUTUCCASA, near Erusco, con August 10, was not that of their sister JOVITA GARCIA SUAREZ. When the former went with authorities to Pucutuccasa for the exhumation of certain bodies, she was there as a guide and not as a witness. She did not identify the body exhumed as being that of her sister JOVITA GARCIA SUAREZ. Accordingly, she did not pick up the body from the Cangallo Hospital where it was left abandoned after the autopsy was conducted. The witness JUSTINIANO GARCIA SUAREZ, whose statement was not taken earlier, says that the body was not that of his sister and says that he was not present for the exhumation. He says he does not know why his name appears on the Exhumation Record as being present. His sister states that when she last saw her sister on May 6 of this year, she saw no sign that her sister was seven months pregnant, as the Autopsy Report states. The body found at Pucutuccasa was that of a woman who was seven months pregnant, according to the documents at pp. 307 and 308. JOVITA GARCIA SUAREZ had epilepsy and required constant care and attention. Her brother JUSTINIANO GARCIA SUAREZ says she is now in the Province of Huancasncos, according to what he has been told.
ELEVENTH: That on May 14 and in the days that followed, JOVITA GARCIA SUAREZ passed herself off as an Army guide, according to statements at p. 532 and the report of the military commanders at pp. 536 to 549:
TWELFTH: That the body found at Pucutuccasa on August 1 of this year is that of a woman, but not that of JOVITA GARCIA SUAREZ; the identity of the other two bodies found in the same grave, which were not duly exhumed and which later disappeared, has not been established. In the Exhumation Record at pp. 318 and 319, one of them was said to be ALEJANDRO ECHECCAY VILLAGARAY. In expanded testimony at p. 530, his widow, DELFINA PARIONA PALOMINO, an illiterate who does not speak Spanish, says that she saw her husband on May 14, with a wound in the leg. At around noon that day some people came to their house and took him off in the direction of MAYOPAMPA, fleeing from the military patrols that were in pursuit of the subversives.
THIRTEENTH: That as can been seen, three unidentified bodies have been found, one female and two male, on Pucutuccasa mountain. Obviously homicide has been committed, but thus far the perpetrators have not been identified, much less singled out. The injuries caused, the theft, looting and crimes against individual liberty occurred between May 13 and the days that followed. In other words, they began before the military patrols arrived in Cayara on May 14, as can been concluded from the testimony at pp. 527 and 531. Here again, the presumed perpetrators have neither been identified nor singled out; the same is true of the presumed perpetrators of the crimes of arson, assault and battery, violations of the home, the administration of justice, and rape, which have not been fully proven;
FOURTEENTH: That in accordance with the provisions of Article 221 of the Code of Criminal Procedure and inasmuch the perpetrators of none of the crimes reported in the complaints have been identified, even though it has been established that crimes were committed; and in exercise of the authority conferred under the second paragraph of Article 94 of Legislative Decree Nº 52, the Statute of the Office of the Public Prosecutor, IT IS HEREBY RESOLVED: NOT TO BRING ANY CRIMINAL INDICTMENT for the crimes of homicide, injury, theft, looting, violation of personal liberty, arson, assault and battery, violation of domicile, sexual violation and crimes against the administration of justice, so that the case must be PROVISIONALLY ARCHIVED in this Office of the Provincial Prosecutor of Cangallo, without prejudice to pursuit of the investigations to ascertain and single out those responsible. The Territorial Control Post of the Civil Guard at Huancapi must be so advised, as must the aggrieved parties and the Chief Prosecutor for the Jurisdiction of Ayacucho.- Signed and Sealed.- Dr. Jesús A. Granda Olaechea, Provincial Prosecutor of Cangallo. (APPENDIX Nº 20)
[end of Resolution of Prosecutor Granda of November 24, 1988,
included as such in the Senate Commission majority report]
12. The complainants sent the Commission their responses to the communications of May 8 and 10. The pertinent parts appear below. The reply of July 18, 1990 presented by Americas Watch said the following:
A. A BRIEF SUMMATION OF THE FACTS AND OF THE PROCEEDINGS BEFORE THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
Before specifically addressing the Peruvian Government's reply, the petitioners wish to make a brief summation of the principal facts in the case and of the proceedings before the Inter-American Commission on Human Rights.
On May 13, 1988, an armed group of senderistas ambushed a military convoy at Erusco, in the vicinity of Cayara, department of Ayacucho. The next day, and presumably as a reprisal for the attack, Army troops set out for the town of Cayara and killed one person as they entered the town. They killed another five at the church and another twenty as the latter returned to town with their harvest.
On May 21, Prosecutor Enrique Escobar Pineda launched an investigation into the incidents. Months later, after taking testimony from witnesses and making other assessments, Prosecutor Escobar concluded that there was sufficient evidence to file criminal charges against General José Valdivia Dueñas, Political-Military Chief of Ayacucho.
After ordering Prosecutor Escobar off the case in November 1988, the Attorney General's Office replaced him with Prosecutor Granda Olaechea, who was ordered to expand the investigation. After a few days, Prosecutor Granda determined that there were no grounds for bringing the criminal charges that Escobar had requested and decided to file the case temporarily. In August 1989, the Attorney General, recognizing that the crimes reported by Prosecutor Escobar had been committed and aware of how hastily Prosecutor Granda had conducted his part of the inquiry, declared all of the latter's proceedings null and void and ordered a new stage of the investigations, this time under Prosecutor Rubén Vega. In January 1990, Vega decided not to seek any criminal indictment and to file the case once and for all.
While Prosecutor Escobar was engaged in his investigation, a Senate Commission set up for the specific purpose of analyzing the Cayara incidents, conducted an investigation of its own. The members of the commission reached different conclusions as to the responsibility for the Cayara incidents and therefore issued a majority report -- which the Government of Peru attached to its reply -- and three minority reports.
While the investigations were in progress, a number of witnesses to the events in the case were either murdered or disappeared.
The petitioners presented their original complaint in November 1988 and there alleged that the Peruvian Army was responsible for the deaths and disappearances that occurred in the Cayara case. They also pointed out the Peruvian Government's failure to take any action. Later, they sent new information on the course of the investigations, deaths and disappearances of witnesses. The Peruvian Government did not respond to the transmitted text of the petitioners' complaint. The only writings in which the Government addressed the substance of the petition are from May 1990. As will be seen below, these writings do not constitute a satisfactory reply to the complaint filed by the petitioners.
B. THE PERUVIAN GOVERNMENT'S INCORRECT INTERPRETATION OF THE FACTS
One of the most significant corrections that the Peruvian Government's reply warrants concerns its interpretation of the facts in the Cayara case. In essence, the Government is using the Peruvian Army's fight against the Sendero Luminoso group as a justification for the deaths of civilians in Cayara, rather than as a fact contributing to the case scenario. The petitioners, on the other hand, contend that the deaths and disappearances of civilians that began in May 1988 were not the result of armed clashes between the Government forces and senderista groups, but rather were abuses committed by members of the Peruvian Army against the life and physical integrity of many of the townspeople of Cayara.
One of the factual errors flawing the Government's response concerns the events that occurred on May 14, 1988, one day after the military convoy was ambushed by a senderista group at Erusco. According to the testimony of witnesses to the events of May 14, Army troops entered the town of Cayara and killed one person there at the entrance to the town and another five at the church, then some twenty others who were returning from the fields. The Government's response misrepresents the facts when it states that an Army military patrol "found" one person dead at the entrance to the town and was told of another five corpses at the church.
The account of alleged deaths, arrests or disappearances in Cayara on May 14 as the Government has reported it in its reply is equally misleading: none of the persons who figure in the report as signing a document attesting to the fact that they were alive subsequent to May 14 had been listed by the petitioners as being among those who were killed that day. The only signers also mentioned by the petitioners are Gregorio Ipurre Ramos (who, though not killed on May 14, was arrested on May 18 and then released and then disappeared on June 29 and has not been seen since); Justiniano Tinco García (who did not sign personally -- his wife signed for him -- and who was arrested on May 18 and later released); Guzmán Bautista Palomino (who disappeared on June 29), and Ramón Hinostroza Palomino (detained on May 18, later released). In other words, the list of signatures presented by the Government is of no value for purposes of denying the deaths of the persons to whom the petitioners referred, since the signatures correspond to persons who were not reported dead on May 14. Furthermore, some persons whose signatures are given as evidence that they are safe have since been detained and/or disappeared.
The Government's reply is also inaccurate when it alleges that the deaths of the townspeople of Cayara occurred in a "combat" situation or in "fighting against criminal subversives." First, and as explained earlier, the reported deaths did not occur during the course of an armed confrontation between the military and the townspeople; instead, the civilians were the passive target of an attack. Secondly, the Government alleges that the dead were senderistas, and so justifies their dying. However, it offers no proof that the dead townspeople were senderista fighters. What the Government does offer in evidence -- Army blankets and arms retrieved after the ambush, subversive propaganda in some houses, etc. -- is not sufficient to allege "the obvious participation of the town of Cayara in the ambush (underlining added)...." The possibility that some citizens of Cayara might have been implicated in the ambush does not give the Government carte blanche to attack the entire town. In violation of the most elementary rules of due process of law, the Government is failing to consider what type of role those allegedly involved in the ambush played and takes it as a given that they participated actively; moreover, it is holding the entire town collectively responsible, seeking in this way to justify the Army's indiscriminate aggression.
Finally, the Government's response must be rectified in respect to the witnesses to the events of May 14 who have since disappeared or been killed, or better said, the failure to make any reference to these people. The only case brought up is the death of Mrs. Jovita García, to whom the petitioners will refer elsewhere in this document. The omission suggests that the Government does not believe that the disappearances and deaths are part of the case and require a thorough and serious investigation, even though there are signs strongly suggestive of the Army's participation in these incidents.
The investigation that the Government conducted into the murder of the witness Marta Crisóstomo García illustrates the flaws in the Government's position on the case. A report prepared by the Office of the Attorney General concerning the autopsy done on the body of Mrs. Crisóstomo states that her death had been caused by a bullet. However, no reference is made to efforts to determine the calibre or make of the weapon, or whether it was the type of weapon used by the armed forces. This was particularly important since the eyewitnesses to the murder said that the murderers wore hoods and Army uniforms. Finally, the report makes no reference whatever to how Mrs. Crisóstomo was linked to the events in Cayara.
C. THE LACK OF COOPERATION IN INVESTIGATING THE FACTS
Political-Military Commander of Ayacucho
Specific mention should be made of the lack of cooperation shown by various authorities in Peru during the course of the investigation. When Prosecutor Escobar and a group of congressmen tried to get to Cayara on May 21, they were held up at two military outposts for a total of four and one half hours. The Political-Military Commander of Ayacucho frequently denied Prosecutor Escobar's requests to visit military units. He was very slow to answer official communications and refused to supply a list of the military personnel who went into Cayara.
Particularly prejudicial to the course of the investigation was the Political-Military Commander's marked unwillingness to help the Prosecutor get to remote areas, even though it was his obligation. On several occasions, Prosecutor Escobar had to use vehicles belonging to the Universidad de San Cristóbal in Huamanga, whose officials had also been pressured to refrain from lending their cooperation.
The lack of transportation posed a serious obstacle to a speedy and effective investigation on the part of the Prosecutor. Suffice it to say that had the Prosecutor had proper transportation, he probably would have been able to retrieve the two bodies that were found buried together with Jovita García. The site where the bodies were discovered on August 10 is at an altitude of approximately 4,000 meters. Having gotten close to the site in land vehicles and continuing the rest of the way on foot, the Prosecutor and his group were then unable to bring back all three bodies. Instead, they brought back that of Jovita García. Prosecutor Escobar requested a helicopter to return for the other bodies, a request made again without success because of General Valdivia Dueñas' refusal. Finally, eight days later he returned to the site in the all-terrain vehicles, but the bodies, valuable evidence in the case, had disappeared.
Senate Investigating Commission;
attitude of Senator Melgar
The investigation headed up by Senator Carlos Enrique Melgar López was slow, superficial and biased. Though the creation of a Senate Investigating Commission had been approved on May 23, it did not convene until May 27. It was not until June 4 that it traveled to Cayara. According to statements made by the Prosecutor's Office, journalists and even members of the Commission, the three days of the Commission's stay in Ayacucho were basically spent in talks with the Military Chiefs. It avoided direct communication with the witnesses and refused to gather further evidence. In other words, the Commission passively accepted the official version of the events, refusing to ascertain whether members of the Army had any responsibility in the case.
The bias of Senator Melgar was particularly obvious in his harassment of Prosecutor Escobar. Disregarding the fact that by a special resolution adopted by the Attorney General, Prosecutor Escobar had been given the authority to investigate the Cayara incidents, Senator Melgar repeatedly called into question the legitimacy of the investigations that Escobar was conducting and accused him of engaging in a libelous campaign to discredit the Army. These accusations, which continued throughout Prosecutor Escobar's investigations, are echoed in the conclusions of the final report that the majority of the Commission prepared.
Equally uncalled for are the accusations against Mr. Alfredo Quispe, who was Prosecutor Escobar's guide and Quechua interpreter. The confusion surrounding the number of his voter identification booklet was due to a typographical error and not to any intent to violate the public trust. At the time the statements were taken from the witnesses to the events of May 14, the Prosecutor observed that "Captain Palomino" was threatening the witnesses so that they would not testify. To ensure their safety, the Prosecutor had the witnesses gather in a room and proceeded to take down the number of their voter identification booklets. He also recorded the number of the interpreter Quispe, a number he had already memorized. Unfortunately, the Prosecutor put the number of one of the witnesses beside the interpreter's name. The error should be blamed on the Prosecutor, and he himself does not deny the fact; however, it was not done with malice aforethought, as the majority of the Investigating Commission contend in their report.
Though it is reasonable for Senator Melgar to have wanted to ascertain Mr. Quispe's identity, it is inconceivable that the mistake should have been used to contend that the interpretations he did were false. First, Mr. Quispe had been working for the Prosecutor's Office for four years, three years before Prosecutor Escobar stepped into his post in Ayacucho in 1987. This makes it difficult to make a case for his complicity with Prosecutor Escobar in this particular instance. Furthermore, the routine background check had been done on Mr. Quispe before offering him employment with the Prosecutor's Office. If he was offered employment it was because his integrity and professional talent had been established. Secondly, the Commission does not include any grounds to substantiate its finding that Mr. Quispe's interpretations were wrong. Finally, several of the witnesses spoke Spanish and could have spoken with the Senator personally had he so wished.
Senator Melgar did not confine himself to questioning Prosecutor Escobar's work; other actions on his part showed that he had drawn his own conclusions about the investigations long before they had run their course. From the start of the case, he made public statements to the media wherein he denied the truth of the complaints filed in connection with the Cayara incidents. Not only did he repeatedly offer versions favorable to the Army, but also attacked the credibility of the witnesses and publicly criticized human rights organizations and anyone who was attempting to conduct a serious investigation.
The Peruvian Government and the handling of the case with the Inter-American Commission on Human Rights
One other example of the lack of official cooperation was the attitude of the Government vis-à-vis the handling of this case with the Inter-American Commission on Human Rights. It did not respond to the original complaint, thereby making itself subject to application of Article 42 of the Regulations of the IACHR, which provides that the facts reported will be presumed to be true. The first response from the Government of Peru came on September 25, 1989, at a hearing that the IACHR gave the complainants and to which the Peruvian Government sent its representative. The latter's presence, however, was completely passive, as an observer to watch the proceedings.
Some days after this hearing and by now 10 months since the original complaint, the Government sent its first written presentation, consisting of a few paragraphs wherein not one substantive point raised by the complainants was contested.
The second document that the Government sent was its reply of May 8, 1990, a year and a half after the complainants filed their complaint. In its reply, the Government sent official documents that are in response to only some of the charges leveled against it. The information that it sent was incomplete, unsubstantiated and slanted. In effect, the Government forwarded only the conclusions of the majority report prepared by the Senate Investigating Commission, but not the 81 pages upon which those conclusions are supposedly based. This meant that neither the Human Rights Commission nor the complainants were able to assess how the majority concluded that its version of the events was "proven." The Government did not send the minority reports either, even though those reports constitute official statements concerning the case.
. Report presented to the Cangallo Provincial Prosecutor, Dr. Jesús Granda, by Peruvian Army General José Valdivia Dueñas, Political‑Military Chief of Ayacucho, November 18, 1988.
D. THE RESPONSE FROM THE PERUVIAN GOVERNMENT:
FLAWS IN ITS MERITS AND PRESENTATION
Before addressing the documents that the Government of Peru sent to the IACHR by way of a response, the petitioners believe that some of the observations made by the Permanent Representative of Peru in his letter of transmittal and repeated in the conclusions in the majority report need to be corrected. Both make reference to the coverage that the national and international press gave to the facts in the Cayara case and the comment that news reports of alleged bombings and pillaging put the death toll at one hundred. In both the letter of transmittal and the majority report, these are regarded as proof of the press' intention to discredit the Peruvian Army and thereby obstruct it in its fight against subversion.
Apart from the fact that these were early press releases that were later corrected once better information became available, the existence of the inaccurate news accounts has no bearing upon the case that the petitioners filed with the IACHR. The petitioners do not deny that the claims made immediately after the events of May 15 may have contained some exaggerations; however, they do not see in this a calculated attempt to misrepresent the facts; instead, it was the logical byproduct of the unconfirmed rumors filtering out of a remote place where communications were poor and witnesses scattered and frightened. In all events, Peruvian human rights organizations made immediate attempts to confirm or correct those initial reports.
The petitioners, moreover, did not base their complaint on those early press reports, but rather on other sources such as visits made by one of the petitioners to Ayacucho (July 9 and 10, 1988), testimony from witnesses, or information compiled and confirmed by Peruvian human rights organizations of recognized standing. That information was taken together with the information that the petitioners would add subsequent to their original presentation. At no time did they report bombings or the death of hundreds of persons. Rather than implicitly associating the petitioners with someone else's inaccurate version of the events, the Government ought to have supplied a reasoned response to the assertions that the petitioners did make. However, as will be seen below, the Government's reply does not provide any such answer.
Official Communication from the Supreme Council of Military Justice
No substantiation was provided for the official communication that the Chairman of the Supreme Council of Military Justice sent to the Minister of Defense informing him of the discontinuance of the proceedings against the suspects in the Cayara case. The failure to explain the reasons for the decision to discontinue the case and the evidence underlying those reasons makes it impossible for the petitioners to regard it as a lawful decision.
Report of the Political-Military Commander
Neither do the petitioners consider the report that Peruvian Army General José Valdivia Dueñas sent to the Provincial Prosecutor of Cangallo, Dr. Jesús Granda, to be a proper response to their complaint. The petitioners do not question the propriety of requesting a report of General Valdivia, who as Political‑Military Chief of Ayacucho at the time of the events of May 14, was directly responsible for the area. However, they do consider that since General Valdivia had been implicated in the deaths at Cayara, there is a conflict of interest that necessitates a more careful scrutiny of the information supplied in his report. Far from examining the report prepared by General Valdivia and attempting to corroborate the information contained therein, the Peruvian Government seems to accept it without question and adopt it as its own official version of the facts. This is especially grave given the errors that the report in question contains (see section B, concerning the signatures of the persons who allegedly died or disappeared on May 14).
The petitioners also want to point out the timing of General Valdivia's report. Rather that send it to Prosecutor Escobar while he was conducting his inquiry, General Valdivia did not present his version of the facts until one month after Prosecutor Escobar was forced to abandon his investigation. The petitioners believe that General Valdivia's manifest intention was to give the new prosecutor a version of the facts that would serve to have the case dropped. Even disregarding the change in prosecutors in charge of investigating the case, it is obvious that the six months between May and November 1988 is too long a period of time to prepare a four‑page report, especially for the Political-Military Chief of the area in which the events occurred.
Majority report of the Senate Investigating Commission
The petitioners do not consider that the conclusions of the report prepared by the majority of the members of the Commission headed by Senator Melgar to be an adequate response to their complaint. As said earlier, the information provided in those conclusions is incomplete, unsubstantiated and biased, and does little to refute the petitioners' assertions. Not only is there no evidence to support those findings, but no sources are cited either.
The mere reading of the findings, however, and a look at how the Commission conducted its investigation, suggest that the majority on the Commission set aside any evidence that was inconsistent with the Army's version of the facts. Firstly, the members of the Senate Investigating Commission who signed the majority report refused to interview witnesses to the events of May 14. This is important because the dissenting senators did indeed interview the eyewitnesses.
Secondly, the majority on the Commission not only discarded the merits of the inquiry conducted by Prosecutor Escobar but also leveled unfounded charges against him alleging repeated violations of the law; the majority thus ignored Prosecutor Escobar's jurisdiction over the Cayara case. This jurisdiction is the result of two factors. The first is his competence to investigate disappearances within the Department of Ayacucho. Since the complaints on the basis of which the Prosecutor decided to institute an investigation in Cayara concerned persons who allegedly disappeared, the Prosecutor's competence is clearly established. The second reason he had the authority to investigate the Cayara incidents were the mandates given to him, in writing, by three Chief Prosecutors of the Nation: Manuel Catacora, who was acting as Attorney General of the Nation in the absence of Hugo Denegri, sent Prosecutor Escobar a written order to investigate the incidents. This order was issued on May 19, two days before Escobar went to Cayara. When the Attorney General himself returned, he confirmed that authority and ordered Escobar to keep him abreast of the course of the investigation. Finally, the Chief Criminal Prosecutor, Pedro Méndez Jurado, also gave his consent to the proceedings that Escobar was to conduct.
Nor is there any truth in the majority's charges concerning Prosecutor Escobar's part in a campaign allegedly being waged by journalists to discredit the Army. Throughout his investigation, Prosecutor Escobar's conduct was professional and discreet. The statements that Prosecutor Escobar made to the press were made after the facts were aired by other sources. The statements he made after finding the body of Jovita García were only given once Escobar had gotten Attorney General Denegri's authorization to hold a press conference.
It should also be noted that Prosecutor Escobar kept secret the identity of the witnesses to the events for the sake of their safety and that their identity remained confidential until Senator Melgar asked the Attorney General of the Nation to send him a copy of the investigation's proceedings. That copy contained the statements made by the witnesses, and their names and addresses. A few days after that information was supplied to Senator Melgar, the first witnesses in the case disappeared.
Thirdly, the majority of the members of the Commission accepted the information supplied by the Army at face value and the Government of Peru repeated it when adopting the majority report as its own report to the IACHR. Though it is obvious that the Army should have been questioned about the Cayara incidents, the petitioners believe that the majority of the membership of the Commission made a mistake to accept General Valdivia's report so passively. It is important to remember that the report in question was presented to the Provincial Prosecutor's Office only after Prosecutor Escobar had been replaced by Prosecutor Granda. Moreover, an independent investigation of the military forces' conduct in Cayara was in order not only in connection with the May 14 incidents, but subsequent incidents as well. Since on May 18, 1988, the Army set up a military base in the Cayara school, it was imperative that the Commission investigate thoroughly any responsibility it might have for the events that took place in that area, especially the death and disappearance of witnesses and the disappearance of bodies buried within the area.
These last issues are given but cursory attention in the Commission's majority report. The only case addressed is that of Jovita García; here again, it is the Army's account of the facts that is taken as the definitive version, despite the existence of evidence that contradicts its account. As for the case of Mrs. García, whom witnesses say had been detained by a group of soldiers prior to her disappearance, several corrections are in order. First, Prosecutor Escobar's exhumation of the body of Jovita García was entirely correct. Contrary to what Senator Melgar contends, the proper procedure in such cases is not removal of the body but exhumation, since the body was buried. The exhumation was done in the presence of three witnesses, who identified the body, as provided in Article 178 of Peru's Code of Criminal Procedure. It is unclear why the majority criticizes the exhumation procedure, states that "it has been established" that the body found was not that of Mrs. García and requests that her death certificate be declared null and void.
Second, the petitioners have serious doubts about the credibility of General Valdivia's position. In his report, he says that Mrs. García had been an informant for the Army, so that it could hardly be the cause of her death. However, Mrs. García's body was originally found buried with the other two Cayara townspeople whom General Valdivia called senderistas. The Army has not explained why someone purported to be an Army informant was buried in the same grave as two supposed senderistas.
As for the charge made by General Valdivia about the eight days that Prosecutor Escobar let pass before going back for the other two bodies, the petitioners fail to understand how this can be construed as "suspicious behavior" or negligence on the Prosecutor's part. During that time, Prosecutor Escobar was arranging, by way of the Attorney General, for helicopter transport to return to the site. Ultimately, as said earlier, the efforts to arrange helicopter transport were unsuccessful and Prosecutor Escobar had to return to the site via overland transportation.
General Valdivia also contends that only the Prosecutor and the witnesses knew the whereabouts of the common grave. It is doubtful that such is the case, since on August 18 Prosecutor Escobar took statements from witnesses to the effect that they had seen Army helicopters flying over the site where the bodies were buried. The testimony of these witnesses and the Political‑Military Chief's resistance lead one to suspect that the Army could in fact have been implicated in the disappearance of the bodies.
Finally, the petitioners object to the conclusions of the majority of the Commission that take it as an "established" fact that Prosecutor Granda conducted an expanded investigation into the events in Cayara and that said investigation was based on the one conducted by Prosecutor Escobar. The two investigations are radically different. Prosecutor Escobar's inquiry emphasizes the need to investigate the conduct of General Valdivia and the Army as suspects in the crime, while Prosecutor Granda decides not to file any criminal charge at all. Curiously, the majority report fails to explain why the Attorney General of the Nation, Dr. Manuel Catacora, reaffirming the existence of the crimes reported by Prosecutor Escobar, found the investigation conducted by Prosecutor Granda to be unsatisfactory, reversed the discontinuance that Prosecutor Granda had ordered, and ordered that the case be reopened for a new investigation.
As an example of the flaws in the proceedings conducted by Prosecutor Granda, there are contradictions between the statements that the witnesses made to Prosecutor Escobar and those taken by Prosecutor Granda, contradictions that raise doubts about the truth of what Prosecutor Granda contends in his report.
According to what Granda says, Flavia García, the sister of Jovita and one of those who identified the latter's body on August 10, said that she had not recognized Jovita's body and that she was unaware that Jovita was pregnant. However, in the testimony that Flavia García gave earlier to Prosecutor Escobar, she said that she knew her sister was pregnant. Prosecutor Granda states that Justiniano García, a brother of Jovita, testified that he was not present for the identification of the body. Justiniano's presence, however, is recorded in the official account prepared at the time Jovita's body was disinterred.
A third contradiction arises in the case of Mrs. Marcatoma, who according to Prosecutor Granda's account, said she was away from Cayara from May 15 to June 15. This information is inconsistent with the fact that on June 11, Mrs. Marcatoma was with a judge to show him where her husband had been decapitated. Some days earlier, on May 22, Mrs. Marcatoma had made statements to Prosecutor Escobar concerning the murder of her husband. Those statements were made in the presence of a group of Congressmen, who recorded her testimony on tape.
In addition to these contradictions, it is important to note that the statements that the witnesses made to Prosecutor Granda took place in barracks, an atmosphere hardly conducive to making the witnesses feel that they could speak freely. The petitioners also want to point out that only five witnesses were interviewed for purposes of the expanded investigation, even though the testimony of other witnesses to the events was called for, as well as that of other persons such as the judge and his secretary who were present when the body of Jovita García was exhumed and identified.
As for the reopening of the case, the petitioners are of the view that it was not a genuine attempt to clarify the facts, identify those responsible and punish them. Its principal purpose was to placate the national and international critics who spoke out against the discontinuance of the proceedings. One indicator of this fact is that Prosecutor Catacora did not take steps to institute proceedings against Prosecutor Granda, even though his investigation was considered so flawed that it was nullified.
As for the expanded investigation that Prosecutor Vega was to have conducted, suffice it to say that Prosecutor Vega accepted the Army's version of the events and decided on January 24, 1990, to archive the case once and for all. One week later, the Supreme Council of Military Justice decided the same thing in a separate proceeding being conducted by the military courts, unknown to the public until then. Again, the Government failed to send the IACHR any substantiated explanation for these decisions.
[end of Americas Watch reply of July 9, 1990]
13. On March 26, 1990 Americas Watch petitioned the Commission to admit Amnesty International as co-complainant in this case, which the Commission did. On July 18, 1990, Amnesty International presented its reply, as follows, to the Government's note transcribed under points 10 and 11:
1. Amnesty International is unable to comment on the decision of the Supreme Council of Military Justice to suspend judicial proceedings in the case, as the organization does not have access to information concerning the nature of the judicial proceeding or the basis for the decision to suspend the case. Amnesty International has, however, read the initial report of the internal army inquiry, on which the judicial proceedings would appear to have been based. That report concluded that there was no foundation for any of the allegations, citing as proof the discovery by troops of stolen military equipment and explosives in Cayara, as well as statements by local residents concerning insurgent activities in the area. Apart from the fact that these discoveries had never previously been alluded to in public declarations by members of the armed forces and that neither evidence of the discoveries nor copies of the statement taken appears to have been produced, these elements do not automatically support the conclusion that no massacre of villagers occurred, in the absence of further evidence substantiating that conclusion. The organization is also concerned that the proceedings before the military court appear to have been held without the presence of victims or eyewitnesses to the events alleged.
2. Amnesty International notes that the Government of Peru has supplied the Inter-American Commission only with the majority report of the Senate investigating commission, which was signed by the Comission members belonging to the governing party and which concluded that no crimes had been committed at Cayara by members of the Army. The Peruvian Government appears to have been unable to furnish the three minority reports, one of which concluded that the information known to the Senate investigating commission was inadequate to produce a conclusive report, and two of which concluded that the evidence gathered did point to military responsibility for criminal acts. Enclosed herewith are copies of these three minority reports for the consideration of the Inter-American Commission.
3. The response of the Government of Peru incorporates a document signed by a number of Cayara residents after they were "supposedly killed" in the massacre on 14 May 1988. This document is cited as proof of the lack of veracity of the allegations made against members of the Peruvian army in this case. Amnesty International would wish to point out to the Inter‑American Commission that none of the individuals whose names appear as signatories to this document is among those identified by the organization as having been killed on 14 May 1988. On the contrary, in its communication of 28 September 1989 (our ref. OAS/27/89) and the accompanying documentation, Amnesty International explicitly discarded the initial reports of aerial bombardment and of the massacre of over 100 people. In fact, a number of the people cited in the Peruvian Government's document testified to the special prosecutor charged with investigating the case, Dr. Carlos Escobar Pineda, whose investigations identified 29 individuals reportedly killed on 14 May. In this connection, the organization would also wish to draw the Commission's attention to he fact that four of the people whose signatures appear in the document supplied as part of the Peruvian Government's response are among nine witnesses who subsequently "disappeared" or were killed after testifying before Dr. Escobar: namely, Guzmán Bautista Palomino and Gregorio Ipurre Ramos, who "disappeared" on 29 June 1988; Justiniano Tinco García, shot dead at an army roadblock on 14 December 1988, and Marta Crisóstomo García, shot dead by eight men in Army uniform in Ayacucho on 8 September 1989. Two others, Domitila Esquivel Fernández and Benedicta Valenzuela Ccayo, were among a group of five people who, according to Amnesty International's information, were detained overnight by the army on 14 May 1988 and subjected to ill-treatment before being released the following day.
It is a matter of some concern to Amnesty International that, despite having had some months to respond to the organization's communication (and despite having already had at its disposal the reports of both the internal army inquiry and the Senate commission, the order suspending the case at the level of the lower military tribunal and the resolution from the Provincial Public Prosecutor of Víctor Fajardo province definitively archiving the case), the Government of Peru failed to respond until 10 May 1990, four days before an audience with the Inter-American Commission was scheduled to take place. At that time, the Government responded only in part, and provided the Commission with a document irrelevant to the communication of Amnesty International, apparently with the purpose of suggesting that the unfounded allegations it denounces had emanated from the organization.
4. Amnesty International notes that the Government of Peru in its response to the Inter-American Commission makes no reference to the cases of the nine witnesses to the Cayara massacre who are subsequently reported to have "disappeared" or to have been killed, despite the fact that these cases form part of the communication before the Commission. In the case of Marta Cristóstomo García, the investigation of her killing was archived without having identified the perpetrators. To the best of Amnesty International's knowledge, no investigation has been opened in any of the other eight cases.
5. The Government of Peru has provided to the Commission a copy of the report provided by the Ministry of Defense to the Provincial Public Prosecutor of Cangallo, Dr. Jesús Granda, which was apparently instrumental in his decision to archive the case on the grounds that there was no basis for opening criminal proceedings against any military personnel. (This decision, as the Commission will of course be aware, was annuled by the present Attorney General of Peru, who stated publicly his belief that criminal acts had been committed by military personnel in Cayara.) This document outlines the position that the complaints of human rights violations in Cayara were fabricated by members of the armed opposition group Partido Comunista del Perú "Sendero Luminoso" for the purpose of undermining the armed forces, and notes that the most exaggerated accounts of events in Cayara were publicized by the then mayor of Ayacucho, Fermín Azparrent. Amnesty International would wish to point out that Fermín Azparrent, a member of the Izquierda Unida coalition, had no links with Sendero Luminoso and publicly denounced abuses by that group; in September 1989 he was assassinated by Sendero Luminoso at his home in Ayacucho.
Amnesty International is also concerned by the allegation in this document that Dr. Carlos Escobar Pineda may consciously or unconsciously have assisted Sendero Luminoso in attempting to undermine the autority of the armed forces by his conduct with respect to the case of Jovita García Suárez. This attempt to discredit Dr. Escobar and his investigation is not substantiated in any way and does not serve to clarify the events which occurred in Cayara between 14 and 18 May 1988 and which form the basis of the communication before the Inter-American Commission.
Also with respect to the case of Jovita García Suárez, whose body was retrieved from a common grave on 20 August 1988 and later disappeared from the cemetery where it was subsequently interred in Cangallo, Amnesty International notes that the document provided by the Ministry of Defense reiterates the Army's statement that Jovita García Suárez was an army informant. (The army has indicated publicly on several occasions that she was murdered by Sendero Luminoso because she was an informant, although the army has never explained why she should then have been buried in a common grave with two men identified as members of Sendero Luminoso, something which would appear to go against that group's practice of honouring its dead.) In other official documents (for example, the January 1990 resolution archiving the case and the majority report of the Senate commission) the authorities have alleged that the body located on 10 August 1988 was not that of Jovita García Suárez, while in statements to the press in November 1988 the president of the Senate Commission expressed the belief that no body had been located at all. These three official versions would appear to be contradictory.
The Ministry of Defense document provided by the Government of Peru further notes that Jovita García was not among those allegedly detained or killed on 14 May 1988 and that local residents have testified that she was seen in the area several days after that date. Amnesty International would point out that this statement does not contradict or disprove the allegation contained in its communication to the Inter-American Commission, as according to the organization's information Jovita García was detained in Erusco on 19 May, five days after the Cayara massacre.
[end of Amnesty International's reply of July 18, 1990]
14. Attached to the reply received from the petitioner, Amnesty International, the Commission received a copy of the three minority reports of the Senate‑designated Investigating Commission. Those reports are as follows:
15. The pertinent parts of the minority report prepared by Senator Gustavo Mohme Llona states the following:
II. AN ANALYSIS OF THE FACTS
In response to a bloody terrorist attack on May 13, 1988, at a place called Erusco, which left four military men dead and several wounded, early on the morning of Saturday, May 14, Peruvian Army patrols from the bases at Ayacucho, Pampa Cangallo and Huancapi launched the search for those responsible for the criminal assault. The town of Cayara, only 3 kilometers from Erusco, was the first to be searched by the military. Many people died as a result of that military incursion, which is why the survivors and relatives of the victims filed complaints with the corresponding judicial and political authorities.
The Investigating Commission designated to ascertain the facts by the authority given to it under the Constitution and under the Senate's own Rules of Procedure, found that there were two completely different versions of what took place in Cayara and the surrounding area. The first was the version given by the Political Military Commander for the area, Peruvian Army General José Valdivia Dueñas. According to that military source, following the Erusco terrorist attack, Peruvian Army patrols set out in search of the subversive assailants. As they entered Cayara, they found one of them dead. As they continued through the town, they were told that there were another five bodies at the church, and they confined themselves to confirming that fact. Through an informant they later learned that a group of subversives was at a place near Cayara called Cceshua. They set out in that direction and along the way were harassed and ambushed by senderistas. The military repelled the attack, killing six of them. The insurrectionists scattered and the military followed in pursuit. Two more insurrectionists were killed in Huamanmarca. In all, the military put the death toll at 18. When the patrol returned to Cayara, none of the bodies it had seen earlier in the town were there. They had disappeared. Summarizing, the deaths that occurred in Cayara on May 14, 1988, were the result of fighting between the military and subversives, which is why the events cannot be described as excesses on the part of the Military Forces in the area.
The other version was taken from the testimony given by those who survived the events that occurred in Cayara on that May 14, 1988. A comparison has been made of that testimony and the statements made to the Senate Commission, to the special prosecutor, to the President of the Bar Association, to Bishop Beauzeville, to the Mayor of Huamanga, and to human rights institutions. In all of them, we found a consistency, a uniformity, despite the fact that there are in all approximately thirty witnesses making statements. The principal premise is that the Cayara tenant farmers were massacred by the Military Forces, apparently in retaliation for their unconfirmed complicity with the elements of the Sendero Luminoso who had attacked a military truck the previous day. According to this account, the events transpired as follows:
a. The military incursion at Cayara began at 9:00 a.m. on Saturday, May 14. Military troops arrived at the town on foot, on horseback and later by air (in helicopters).
b. As the military troops entered the town of Cayara, they killed one person, who was later identified by his wife as Esteban Aste Palomino. He had been shot in the face. In the town itself, the military troops headed for a group of about 10 people who were celebrating near the Church, after having dismantled the platform of the patron of the town, the Virgin of the Incarnation and Fatima. The military people proceeded to separate the men from the women. The men were shoved into the Church, where they were tortured and killed. Some of them were shot, others were hanged. The women were ordered to leave. One of the witnesses, Mrs. Paula González Cabrero de Noa, managed to get into the church to look for her husband, but all she found were blood stains, hats, sandals and a bloody waist band (chumpi). She followed a trail of blood on the floor until she found the body of her husband, Teodosio Noa Pariona, who had a bullet wound on his right temple.
She then found the bodies of Emilio Berrocal Cusastono, Endolecio Palomino Tueros and Santiago Tello, all of whom had been detained and confined in the church of Cayara on May 14, 1988. Five people had been killed, all of whom had been shut in the Church by military troops. Later, the military set out for Cceshua, where 22 people were massacred by military from the base at Hualla. Cceshua is the lower part of Cayara, where many farmers were harvesting their crop on that Saturday, May 14. There were many witnesses to what happened. All of them agree that the soldiers, after killing the men, told the women and children that they had five minutes to disappear. They insulted the men, beat them and interrogated them about who had killed the captain and the whereabouts of the 20 rifles that had been stolen from the truck, in reference to the attack the night before. The tenant farmers allegedly said that they knew nothing, which is why they were kicked and forced to lie face down while cactus leaves were pressed into their backs. They were then killed, one by one, with knives, hammers, axes, sickles and other sharp, cutting tools. The bodies were then piled together near a molle tree. The entire massacre took place in the presence of women and children. The women and children returned to Cayara, where they found houses burned, doors broken open and the theft of objects in their homes. Soldiers were posted to guard the town and held several people inside the District Council building, where they had established their general headquarters. Among those held were the following Benedicta Valenzuela C.; Domitila Esquivel F.; Indalecio Palomino de la Cruz, and Avelino Tarqui. Witnesses also said that among the military in command of the operation at Cayara was one who was tall (1.8 meters), heavyset, with white skin, who wore a knitted hat, dark sunglasses, blue jeans and sneakers (description given by Primitivo Melgar Quispe, a teacher, and Máximo Florencio Contreras). Another was tall, white-skinned, with a chestnut-color beard and moustache, and carried a small weapon that was not a pistol (possibly a small submachine gun); they called him "Naranjo" (Paula González). There was also a Quechua-speaking black officer, who wore blue jeans and a ski hat (Victoriana Meza C.). Speaking as one in command, it was he who led the Cceshua operation (according to testimony given by Maura Palomina de Oré).
Summarizing this second account, 28 tenant farmers were slaughtered in Cayara as a result of military excesses.
Up until this point, the two versions -- the military version and the version given by the townspeople of Cayara -- both acknowledge that there were deaths. What is not clear is the circumstances under which those deaths occurred, what weapons were employed and how many deaths there were. The two versions differ on these points and on the question of whether or not military excesses were committed.
After an in-depth, serious investigation of the facts, the Commission finds the following evidence in support of the hypothesis that tenant farmers were slaughtered in Cayara:
1. The testimony of the survivors, whose accounts are all consistent.
2. The evidence of the PIP experts shows that the hand found in the grave discovered on the farmland of Valeriano Ipurre Maratoma and removed in the exhumation conducted on May 27, 1988, belonged to Eustaquio Oré Palomino, a farmer whose death at the hands of military troops had been reported by his relatives from the very beginning.
3. The evidence supplied by the PIP experts has established that on the road from Cayara to Quimsa Husicco, the place where the bodies of the victims were alleged to have been taken by the military troops, human remains have been found, along with pieces of bloody rope, rocks with blood, cactus leaves with blood on them (RH-O+), which would point to the fact that bodies had been transported.
4. It has also been established that there were traces of blood and brain matter on a direct line above (90 cm) the ground, which would seem to corroborate the fact that the bodies were carried away on pack animals. According to the witnesses, the bodies were taken away on Sunday, May 15 (testimony of Victoria Avalos - Maura Palomino Oré).
5. From the exhumation and the autopsies conducted in Cayara, the Special Prosecutor and the Cangallo Provincial Judge established that at the graves found in the vicinity of Cceshua and Pampa (2 graves), Ccullpacha Haycco (1) and at Ccahhay Pampa (1), there was evidence that the soil has been disturbed and a fetid odor of the kind given off by decomposing bodies. The judicial authorities went to those sites at the request of relatives who had buried the bodies there after the victims had been killed by military troops some days earlier.
6. In the on-site inspection conducted on June 11, 1988, Special Prosecutor Carlos Enrique Escobar, accompanied by Cangallo's examining magistrate and a witness from Ccachaypampa, discovered evidence that cactus leaves had recently been cut down and blood stains near the molle tree where the witnesses said the tenant farmers had been killed.
7. The discovery of a grave in the highlands near Cayara on August 9, 1988, containing the remains of three persons, Jovita García, Samuel García Palomino and Alejandro Echaccaya Villagaray. These same people had been detained on May 18 on orders from the Political-Military Commander for the zone. The body of Jovita García was exhumed and an autopsy conducted. Beforehand, she was identified by her sister Flavia and her brother Justiniano García Suárez, in the presence of the Deputy Prosecutor Santiago Sigueñas, the Judge of Cangallo César Amado Salazar, members of the PIP, the interpreter Alfredo Quispe and Special Prosecutor Carlos Escobar Pineda. The examination of the body showed the following: the victim was six months pregnant; her arms and legs had been fractured; a portion of the skull had been blown away there had been a blow to the nasal bone, which was split; the lower maxillary was dislocated and there was a deep puncture wound at the level of the heart. The autopsy was conducted in Cangallo, by individuals designated by the competent judge; they reported that even though it had been dead almost seventy days, the body was still well preserved because of the frigid temperature in the area.
8. The fact that the other bodies disappeared from the grave where Jovita García was found shows that outside interests were trying to prevent the truth of what happened in Cayara from coming out.
9. In the inspection done by the judge of Cangallo and by the Provincial Prosecutor, Dr. Chuchón, on May 20, 1988, they found no bodies in Cayara's church, but they did find some reddish-brown stains inside the church and outside, which seemed relatively fresh.
The testimony of Elsa Infante Cuba de Taquiri is important here. She said that on May 17, military troops had washed the bloodstained floor of the church and then put down cooking oil and soil. In another inquiry, it was found that the floor had been washed down and then soiled.
RELATED FACTS IN SUPPORT OF THE HYPOTHESIS
The odd behavior of the military forces in the area, judging from the following:
a. After the slaughter at Cceshua, witnesses say that military troops closed off the area. The Judge and the Special Prosecutor in charge of the investigation were unable to reach their destination on May 20, 1988, because the officer in command had ordered that them to stop and forced them back with gunfire. The prosecutor had to suspend the inquiry.
b. The Political‑Military Commander of Ayacucho repeatedly refused to supply the Special Prosecutor, Dr. Carlos Escobar Pineda, with a helicopter so that he might get to Cayara and perform his functions properly. He had to get there via overland means of transportation and was detained en route. At Cangallo, he was held up for three hours and in Huancapi for two, while the court experts who accompanied him were not allowed to pass.
c. The Army's equivocation: first it described Miss Jovita Garcia as a terrorist, identified as such at Erusco and summoned by the Commander on May 18, 1988. Later, in an official communiqué, it stated that Jovita García "was an Army informant," alleging that she had been murdered by the Sendero Luminoso, when everyone in Cayara had seen the military arrest her. Her body would not be found for another seventy days, in a grave in the highlands above Cayara, together with others who had been detained.
d. The military's opinion that the people of Cayara were senderista sympathizers, because they were indifferent to and unfriendly toward the Government's anti-subversive policy. They therefore assumed that the people of Cayara participated in the Erusco attack, since a large number of people could have been mobilized without being seen. Hence, Cayara was an accomplice and had to be occupied.
III. LEGAL ANALYSIS
The circumstantial evidence
The disappearance of the bodies has impaired the investigation of what happened in Cayara, both for the Senate Commission and for the Office of the Attorney General. Because the bodies of the victims disappeared, it is impossible to state categorically how those people died and who the guilty parties were. However, as has been pointed out in this report, certain facts have been established that are sufficient to qualify as clues and to serve as circumstantial evidence of the fact that a slaughter took place in Cayara. As we know, circumstantial evidence is the result of conjecture, signs or assumptions that are accepted as a logical conclusion drawn from the facts or by piecing the facts together. This evidence is unique and often used in criminal proceedings where the accused and/or his defense attorney try to eliminate all criminal evidence or distort it in such a way that full certainty or proof of what happened can never be obtained. Circumstantial evidence is useful in refuting lies, fallacies, false testimony, falsified documents, and cover-ups. Evidence supplied by experts carries more weight. As a means of proof, clues mean gathering and interpreting any fact, event and circumstance that helps to uncover the truth.
With the clues and using reason and inference, an effort is made to establish links to the fact being investigated. If it fits the rational, logical picture being pieced together, anything can serve as a clue. Moreover, we should point out that under penal procedural principles, there are two types of evidence: material evidence, which are the facts themselves; and persuasive evidence, defined as the likelihood that one person or several persons have committed the act under investigation.
In the particular case we are investigating, the facts can be pieced together to make sense: the consistency in the testimony given by the survivors as to how the tenant farmers were killed; the strange behavior of the military in the area; open graves containing remains and fetid odors; blood stains in various places in Cayara where witnesses swear they saw the bodies; the discovery of a hidden grave containing the bodies of four persons who seventy days earlier had been arrested by the military forces; the physical resemblance of the officers in command of the region to the descriptions given by the witnesses; the washing of the floors of the church, and the location of Cayara, which is surrounded by military bases, are such that when these facts are taken together they constitute sufficient indications that the military could in fact have been responsible for the excesses perpetrated in Cayara.
THE NATURE OF INHUMATION AND EXHUMATION
Some comment was called for with respect to this topic, because during the Commission's investigations, some of its members tried to nullify the court-ordered exhumation conducted on August 10, 1988, alleging that there were irregularities when it was conducted.
Inhumation means the burial of the body. Article 172 of the Code of Penal Procedures stipulates that in cases of violent death or where the commission of some crime is suspected, the following measures are to be taken:
A. Examination. Examination and verification of the external parts of the body, of any external wounds, distinctive features, cuts. This is a physicomorphological examination.
B. Identification. The purpose of this procedure is to establish the identity of the individual (given names and surnames) whose body has been found, so that there are no mistaken identities and so that the death certificate can be issued by the Civil Registry.
C. Autopsies. The internal examination of the body in order to establish the causes of death, the means used and the nature of the wounds. This measure is performed by experts (physicians) except as provided under Article 161 of the Code of Penal Procedure, which authorizes the Examining Judge to appoint individuals of recognized integrity and competence where there are no professionals available.
What is the procedure in the case of exhumation?
Exhumation means disinterring the body. It is done when the crime is discovered after the body has been buried. In such cases, under Article 178 of the Code of Penal Procedures, the Examining Judge shall carry out the examination, identification and autopsy. The exhumation (disinterment) in the Cayara case was done in the presence of Cangallo's Examining Judge, Dr. César Amado Salazar, the Special Prosecutor, Dr. Carlos Escobar Pineda, the interpreter Alfredo Quispe A., members of the Peruvian Investigating Police and the witnesses Flavia and Justiniano García Suárez. As the law requires, the following was done:
a. Identification of the body of Jovita García by her relatives (a brother and sister)
b. Examination of the body by experts in the city of Cangallo.
c. A record was made of the entire proceedings, which was signed by those present.
Hence, the legality of the Record and the Autopsy Report are beyond question. The identification of Jovita García is valid and hence one cannot refer to her as the "so-called Jovita" because it has been completely proven that the exhumed body was that of citizen Jovita García, who was arrested by military forces on May 18, 1988.
There are no grounds for application of Article 172 of the Code of Penal Procedure, as some members of the Investigating Commission had requested, since that Article is applied ONLY when the body has not been either buried or interred. The body of citizen Jovita García was found buried in a grave in the Cayara highlands; by law, the only proper course of action was exhumation of the body, under Article 178 of the Code of Penal Procedure.
Under Article 180 of the Constitution, investigating commissions are authorized to investigate "any matter of public concern," in accordance with the right of investigation that the Legislative Power enjoys.
This right to investigate does not include duplicating, nullifying or modifying court-ordered measures or interfering with the power to administer justice, which is the purview of the judiciary through its judges, tribunals and courts of law, under Article 232 of the Peruvian Constitution. Nor is any such committee authorized to interfere in the business of the Office of the Attorney General.
The ordinary law governing penal procedure is the Code of Penal Procedure, Articles 72 and 170 of which stipulate the form, mode, authority, measures and decisions that the judge or tribunal can issue.
The commissions provided for under Article 180 of the Constitution have the authority to investigate and report criminal matters when they feel that there is evidence that indictable offenses have been committed. That authority does not extend to the right to mete out criminal punishment, which is the exclusive purview of the judiciary; hence, any opinions and reports prepared are channeled through the Office of the Attorney General of the Nation so that it may bring formal charges before the Judiciary Power, in accordance with Article 66, subparagraph 8, of the Statute of the Office of the Attorney General.
1. The clues found by the judicial authorities and representatives of the Attorney General's Office, corroborate the charge that tenant farmers were slaughtered in Cayara by military troops; those clues warrant an in-depth investigation within the judiciary.
2. In strictly legal terms, one cannot speak of a slaughter, because thus far the corpi delicti have not yet been found; however, one cannot discount what the Supreme Court held in the "Cárpena Case"where a murder was tried without the body of the victim having been found.
3. Everything points to the fact that when the slaughter was publicly protested, Ayacucho's Political-Military Commander decided to erase the evidence. To do so, he closed off the area and did not allow any civilian authority or member of the press to enter until one week later, during which time they dug up the bodies and moved them to the Cayara highlands.
4. The military's repressive action did not end on May 14, 1988, the day of the attack on Cayara; days later, on May 18, 1988, the head of the Political-Military Command of the Zone seized Jovita García Suárez, Alejandro Ectuccaja Villagaray and Samuel García Palomino; seventy days later, their bodies were found in a grave in the Cayara highlands. Everyone in Cayara witnessed the arrest of these townspeople, who were later described as "Command informants" in order to be able to blame their deaths on the subversives.
5. The Chief of the Political-Military Command, Peruvian Army General Valdivia Dueñas, and the direct perpetrators of the killings, are undoubtedly the persons responsible for these serious events.
6. Far from covering up the military's blame, the Government should convince the Armed Forces' highest ranking authorities that all of the facts about what transpired in Cayara must be established and those who are responsible punished. The army knows who they are, since it knows the real names hidden behind the pseudonyms used by each patrol leader.
Our Commission feels that there are sufficient clues to warrant an in‑depth investigation by the competent authorities concerning the events that occurred on May 14, 1988, in the town of Cayara, Province of Víctor Fajardo in Ayacucho, to ascertain the facts and establish the identity of those responsible for the killing of 28 Cayara tenant farmers.
Unless the Senate demur.
For notification. Committee Room. Lima.
(Signed) GUSTAVO MOHME LLONA
Senator of the Republic16. The pertinent parts of the minority Report written by Senator Javier Díez Canseco Cisneros read as follows:
I. A CHRONOLOGY OF THE COMMISSION'S ACTIVITIES
1. Two bills were introduced at the Senate session held on May 17; they proposed that an Investigating Commission be established in connection with the events that had been reported.
2. On May 20, Senator Javier Díez Canseco set out with deputies Arístides Valer, Yehude Simon, Frine Peña, Gustavo Espinoza, Fernando Olivera and Germán Medina, and travelled to Cayara to gather evidence of what had occurred. In Ayacucho this Commission met with Col. Rafael Córdova Rivera, Inspector of the Second Infantry Division, and with Prosecutor Escobar Pineda. It also took statements from a total of 15 witnesses in Cayara.
3. On May 23, Senator Díez Canseco reported to the Senate on the trip he had made. The establishment of the commission was approved.
4. The Commission was installed on May 27.
5. On May 30, the Commission met to receive testimony from Monsignor Beauzeville, Dr. Raúl Ferrero, President of the Bar Association, and members of the Government Commission that visited Cayara on May 20.
6. On June 5, the date of the Commission's first trip to Ayacucho and Cayara, a meeting was held with the Political Military Command headed by Gen. Valdivia. This covered two parts: an explanation of the military's version of what had occurred in the Cayara area since May 13, and the progress made in the investigation ordered by the Office of the Inspector General of the Army in response to the complaints received. The next day it went to Erusco and Cayara, but did not interview the witnesses who had made statements to Prosecutor Escobar, Senator Díez Canseco and other congressmen on May 20.
7. On June 21, the Commission met to speak with the Ministers of Justice and Defense.
8. On August 21, the Commission made its second trip to Cayara.
9. The Commission delivered its report on May 9, 1989.
II. A GENERAL DESCRIPTION OF CAYARA
1. Geographic and population features
The town of Cayara, the capital of the district of Cayara is located some 140 kms south of the city of Ayacucho, in the province of Víctor Fajardo, at an altitude of 3,164 meters above sea level. The district includes the outlying areas of Jeshua, Mayupampa, Erusco and Chincheros.
According to the 1981 Census, the illiteracy rate is high there. Of a population of 2,216 over the age of 5, 50.49% are illiterate. This is 2.5 times the national average, which is 20.9%.
1.3 Economically-active population
In that census, out of an economically-active population of 579 persons, 87% (504) were engaged in agriculture. This agricultural EAP is much higher than the average for Ayacucho, which is 69.3%. We note that Ayacucho is a department of very poor agricultural productivity; though it is third nationwide in terms of economically active population engaged in farming, its agricultural gross domestic product ranks only twelfth among all departments.
Furthermore, 3.4% of the population (20) were engaged in various services, including state bureaucracy, mail, local government, etc.). Some 1.3% (8) were engaged in commerce. There is very little in the way of manufacturing, which employs only 0.8% (5 people). Some 4.9% (26) are engaged in various nonspecific activities.
The unemployed EAP was only 2.76% (16). However, there are no data for unemployment and this figure is misleading. Because it is a farm community, farming absorbs a large percentage of the underemployed and unemployed EAP, drawing more manpower than necessary at times when communal or family fields are planted.
2. Electoral features
According to the National Elections Board, in 1985, the total population was 2,595, of whom 667 were voters (between 18 and 70 years of age). In the most recent general elections, only 488 of the electorate cast votes (73% of the total) and most of the ballots (268) were either void or blank (54.91%). The PAP received 180 votes (36.88%), the United Left 23 (4.71%), and other political groups only 17 votes (3.48%).
3. The military features of the zone
In the opinion of the military commanders, control of the territory in which Cayara is located has been of great strategic importance in every armed conflict they have experienced throughout history. "This is still true, which is why the subversive movement attaches such importance to the area." (Testimony given by General Sinesio Jarama to the Accomarca Commission in 1985).
The zone has been described by the Armed Forces as "RED," in other words, an area of heavy senderista activity. Consequently, the Army has set up countersubversive bases (CSB) in San Pedro Hualla, Colca, Huancapi and Pampa Cangallo. Following the events in Cayara, a new CSB was set up in the town school. The command of this zone is the CSB at Pampa Cangallo, which in turn is answerable to the Command Post for National Security Zone No. 5, which until December 31, 1988, was headed up by Peruvian Army Brigadier General José Valdivia Dueñas.
Since the beginning of the counterinsurgency campaign, military forces have been supplanting the civilian authorities -- including the Judiciary and the Public Prosecutor's Office -- and weakening their legal authority. As a consequence, the provincial prosecutors and magistrates (even high-ranking judges) are encountering serious difficulties in efforts to defend constitutional rights when those rights are transgressed by members of the military or police.
Law 24,150, which regulates military control of zones in a state of emergency, made the Political-Military Command the supreme authority, thereby displacing de jure the civilian authorities. Moreover, it provides that members of the armed forces will be judged by the military courts if they commit crimes within the zones. This has meant that many human rights violations that are reported to the judiciary are turned over to military courts where such acts are regarded as functional excesses and not as common crimes and therefore punished, if at all, with small penalties.
III. THE HISTORY OF VIOLENCE IN THE CAYARA REGION SINCE 1980
Since May 1980, the Sendero Luminoso has staged armed attacks in the District of Cayara and in the neighboring districts, which include part of the provinces of Víctor Fajardo, Vilcashuamán and Cangallo. Further, complaints received by the Office of the Attorney General, congressmen, the Church and nongovernmental human rights organizations, especially since 1983 (the year when the armed forces entered Ayacucho) report serious violations of human and constitutional rights on the part of the armed forces and as part of the counterinsurgency campaign.
On July 29, 1980, in Huancapi, capital of the province of Víctor Fajardo, the Sendero Luminoso dynamited the door of the town hall and left explosive charges at the home of the Deputy Prefect and the Post Office. This is the first recorded incident.
Months later, in January 1981, Georgina Gambia (a 16‑year old farm girl) was arrested along with her parents at the Vilcashuamán Police Station. There, she and her mother were raped by six policemen. Three months later they were released without explanation, and the two would later give birth to children conceived during the assault.
On October 12, 1981, the Government ordered a state of emergency in the provinces of Huamanga, Cangallo, Víctor Fajardo, La Mar and Huanta in the Department of Ayacucho (Supreme Decree 026-81-IN), leaving the zone under the control of the police forces under the direction of the Ministry of the Interior. Since then the state of emergency has been extended, as has its radius.
On December 24, 1981, according to a press account, a senderista column took over the town of Cayara, destroying the telegraph and local government offices.
On July 14, 1982, the press reported that a column of approximately 25 senderistas had again attacked the town, killing the governor, destroying the post office, the school and summoning together the townspeople for a political harangue.
On October 24, 1982, in Huancapi, police claimed to have discovered a Sendero Luminoso political indoctrination group, arresting 30 people. Shortly thereafter, the investigations conducted led to the arrest of numerous people in Cayara.
On December 30, 1982, Supreme Decree 068-82-IN was issued, ordering the armed forces to take control of the region, principally the Army and the Navy. This decree covered the provinces of Huanta, La Mar, Cangallo, Huamanga and Víctor Fajardo (Ayacucho), Andahuaylas (Apurimac) and Angaraes (Huancavelica).
On January 1, 1983, in the community of Parcco (district of Vilicashuamán), army troops seized Marino Castillo Espinosa and Teodosio Castillo Gamboa.
On January 4, 1983, in the town of Llusita (district of Huancapi), military troops from the Cangallo base seized and caused to disappear Lucio Bautista Arcos (22), Pelayo Bautista Esquivel (19), Agustín Bautista Melgar (21), Luis Chumbe Meza (28), Jacinto Meza Quispe (38), Maurelio Meza Quispe (30), Juan Meza Vásquez (29), Rómulo Oré Alegría (40), Santos Quispe Chipana (18), Leoncio Quispe Meza (38) and Marino Vásquez Quispe (23).
In Accomarca, on January 19, 1983, military troops killed a townsperson by the name of Zózimo Teccsi (complaint received by the Accomarca Command).
On January 26, 1983, according to complaints filed by residents, a patrol of "Sinchis" with the Civil Guard entered the District of Huambalpa (Vilcashuamán), killing Macedonio Prado Lizarbe and wounding seven others, among them Prado's 10‑year old son. They also stole electronic devices, money and livestock.
On February 14, 1983, in Huambalpa, a joint army and police patrol killed Cresenciano Azursa and Lino Pujaico, tortured six others and set fire to three homes and the town hall.
On August 25, 1983, in the District of Vischongo (Vilcashuamán), combined army and police forces seized Pánfilo Chuchón Prado (35). Some days later, on August 30, his brother Félix (27) was also taken, this time by army troops. The two were taken to the Anquipata Headquarters. Their relatives reported their subsequent disappearance.
On September 2, 1983, in Accomarca, soldiers killed 11 people, including two children: Félix Pulido Palacios (73), Adriana de la Cruz Pulido (75), José Quispe Pulido (34), Maura Baldeón de Quispe (28), José Quispe Baldeón (2), Janet Quispe Baldeón (4), Apolinaria Huamán de Quispe (21), Carlota Baldeónde Quispe (75), Susana Pulido de Quispe (65), Fausta Sullca Mendoza (33) and Marcial Chávez (25) (a complaint taken by the Accomarca Command).
Between September 2 and 5, 1983, according to press reports, Cayara was the scene of a clash between the army and a column of senderistas. The armed forces reported one soldier and 40 senderistas dead.
On October 2, 1983, the press reported, military sources said that there had been another clash, this time between a police patrol and a group of senderistas. Five senderistas were killed.
On October 12, 1983, in Huambalpa, the townspeople filed a complaint to the effect that soldiers disguised as tenant farmers had killed four people.
On November 20, 1983, the press reported that two senderistas disguised as civil guardsmen had attacked a bus and harangued the passengers.
On July 21 or 22, 1984, two tenant farmers were allegedly killed in Cayara by senderistas, according to news reports.
On August 21, 1984, the press reported that senderistas had returned to Cayara and killed 12 tenant farmers.
On October 23, 1984, another 5 tenant farmers were killed in Cayara, presumably by senderistas, according to press accounts.
On December 15, 1984, in Cayara, soldiers from the Hualla base detained a merchant by the name of Lodeciano Crisóstomo Noa and took him to their military unit under arrest. His relatives would later report his disappearance.
On August 14, 1985, one of the most serious violations of human rights committed by elements of the armed forces during the entire antisubversive campaign occurred in Accomarca. It was investigated by the Senate and was similar in some ways to the one now under investigation:
Between August 1 and August 7, 1985, there were senderista attacks at Sarhua, Caracha and Putaccasa. Taking part were "80 subversives armed with light automatic rifles and an undetermined number of submachine guns." When questioned, the captives confessed that the column was headed for Accomarca, where they had a cache of weapons, stores and ammunitions and where there was a six‑man senderista column called "Accomarca Company."
On August 8, four patrols were sent to Accomarca, Accmay, Chiuinza, CAYARA and Llocllapampa. Two of these killed 12 people, men and women alike, not in combat but because they were "suspicious" or because they tried to run away when the soldiers approached. There is no record that any weapons or subversive documents were found on the victims. After these events, following a plan approved by General Mori Orzo, then Political‑Military Chief of Ayacucho, on August 12 the Lobo, Tigre, Lince 6 and Lince 7 patrols (the last of these under the command of Second Lieutenant Telmo Hurtado Hurtado) set out in the direction of Huancayocc Pass, where Accomarca is located.
Lince 6 and Lince 7 patrols are believed to have worked together. However, the military account states that Lince 7 was the only one to enter Accomarco on August 14 at 7:00 a.m. When it saw the townspeople running away, it fired upon them, killing five. They later captured 25, among them 5 children. Having decided that "the vast majority (sic) were terrorists," they locked these people up in a house and killed them with gunfire and incendiary grenades. Witnesses who managed to escape said that in fact 39 adults and 23 children were killed and that three other people disappeared (a summary based on the report of the Senate Investigating Committee, dated October 12, 1985).
The Sendero Luminoso asserts ("Desarrollar la Guerra Popular Sirviendo a la Revolución Mundial" [Conduct the People's War and Thereby Serve the Global Revolution], a clandestine publication put out in 1986) that in August 1985, after the Accomarca massacre, the army opted for a population resettlement strategy in this region, taking advantage of an alleged surrender of tenant farmers who were partisans of the Sendero Luminoso. At the same time it set up bases in each one of the resettled communities, the priorities being (according to the Sendero Luminoso) San Pedro de Hualla and Accomarca (neighboring districts of Cayara). The Sendero Luminoso said that it attacked all of them in order to "break the military yoke laid upon the shoulders of the peasantry."
On September 2, 1985, an Official Army Communique (Nº 012‑CCFFAA/RRPP, of September 26, 1985) reported a clash with senderistas near the community of Bellavista, which had left 29 subversives dead and 15 others in flight. The patrols had set out after them in the direction of the towns of Umaru and Bellavista. However, some days later, residents of these communities reported to the House of Deputies and the Attorney General of the Nation that on August 27, the army had come in and killed 28 adults and 35 children, hiding their bodies in graves. A joint Senate and House Investigating Committee was formed and confirmed the existence of sites "where graves had allegedly existed" and of one grave, near Bellavista, containing the bodies of Paulina Quispe (28) and her children, ages 9, 6, 3 and 1; Lucila Quispe (35) and her children, ages 8, 6, 4 and 1-1/2 and Clotilde Janampa (40) and her children, ages 13, 8 and 6.
On January 9, 1986, a senderista column murdered the local Aprista leaders, Mateo Velenzuela and Eulogio Crisóstomo.
On May 4, 1986, army soldiers arrested Teófilo Choccña Sulca (29) in Cayara. His relatives would later report that he had disappeared.
On May 10, 1986, Genaro Ccayo Noa (34), an employee with the Municipal Council, was detained by army soldiers in Cayara. His relatives would later report his disappearance.
On August 30, 1986, according to a complaint filed by townspeople from Huambalpa, a patrol made up of Civil Guardsmen and members of the Investigating Police arrested 70 people.
On October 22, 1986, the army reported that it had clashed with subversives in the towns of Parcco and Pomatambo, in Vilcashuamán; 13 subversives had died, among them Claudio Bellido Huaytalla, a senderista leader in the zone known as "Caszelli" (Communique No. 74/CCFFAA, dated October 24, 1986). However, people from these two communities later filed a complaint to the effect that on that date, in the village of Pomatambo, (Parcco district in Vilcashuamán), a patrol of around 50 soldiers came in and arrested seven people (among them the mayor and community president), and then tortured them and took them away to the town of Parcco. They arrived there the next day, and there the patrol took another six (including two elderly people 84 years of age, two children 12 and 4 years of age). These 13 people would eventually be murdered and their bodies burned.
According to the army,* in April 1987 a patrol was ambushed in Cayara, leaving one vehicle destroyed.
In April 1988* in Mayupampa -- near Cayara -- there was another clash that left six senderistas dead.
On May 6, 1988* the Sendero Luminoso killed Ing. Tito Alanya Paucarhanca, Secretary General of APRA in Huancasancos and Manager of the Microregion, after attacking and destroying his vehicle.
On May 11, 1988* the countersubversive base at San Pedro de Hualla came under attack. The incident left one senderista dead who, according to the army, had been seen several times in Cayara.
IV. THE AMBUSH AT ERUSCO
1. The army maintains that on the night of May 13, 1988, an army convoy consisting of two UNIMOG trucks left the town of San Pedro de Hualla heading in the direction of Huancapi. The forward vehicle was under the command of Lt. García Bustamante -- known as "Roble" -- and carried 10 other soldiers; the rear vehicle was under the command of Captain José Miguel Arbulú Sime -- known as "Mosca" -- (32), the convoy commander; with him were eight soldiers.
At approximately 11:30 p.m., after passing through the town of Cayara and at a distance of some 1.5 or 2 kms outside it, in the hamlet known as Erusco, senderista ambushers detonated, via electronic remote control, two dynamite charges that it had buried along the road, and in so doing blew up Captain Arbulú's vehicle. The army account states that the other vehicle stopped immediately and thus avoided the three dynamite charges that exploded just ahead. The subversives immediately launched their attack on the convoy.
One second lieutenant and one corporal managed to escape and reached the Huancapi countersubversive base at 1:30 a.m. on the morning of May 14. From there, the "Tarántula" patrol was immediately sent to Erusco and arrived there at 5:30 in the morning.
During the clash, which the army says lasted four hours, the soldiers were able to make out the voices of men, women and children who -- numbering between 200 and 300 -- demanded their surrender and cheered the armed fighting (report filed by Roble patrol). However, there were allegedly no more than 10 armed assailants (Gen. Valdivia to the Commission at Los Cabitos, June 6, 1988).
Captain Arbulú died in the attack, as did one sergeant and two corporals (in all 4 members of the military); 4 were seriously wounded, while another 11 were slightly wounded; in all 19 soldiers either died or were wounded.
The subversives got away with 11 light automatic rifles, 8 antitank INSTALAZA grenades, approximately 3000 cartridges and other ammunition.
2. The civilian population stated that on May 13, it celebrated the festival of the patron of Cayara. "At around 9:00 p.m., 2 vehicles carrying soldiers came through town, firing shots in the air...." About 10 minutes later, there was a tremendous explosion and immediately thereafter an exchange of fire that lasted approximately 45 minutes" (sic Victoriana Meza García). The people were frightened: "Everyone in the town had come out of their houses and were all excited, saying that it must have been a senderista attack and that now the soldiers would come to take reprisals against the town.... Many people wanted to leave that night...to head for the mountains...for Jeshua...; others wanted to go out to their flocks and areas nearby" (sic Máximo Contreras Monzón). The people were afraid that what had happened in April 1986 would happen again: "Between the 8th and the 12th there were military actions (in reprisal) against the people of the town...rapes, killings and fires..." (sic Victoriana Meza).
The Commission noted that the testimony on the length of the subversive attack, as reported here, is radically different from the army's version, which said that it lasted approximately 4 hours."
V. THE ACTIONS THAT FOLLOWED THE AMBUSH
1. GENERAL ASSESSMENT OF THE ARMED FORCES
1.1. The information supplied by the Ministry of Defense has significant gaps and contradictions which we shall duly point out. Nevertheless, it contains categorical assertions intended to make the complaints appear groundless: the army states that there was no damage to the homes or to the people and that the people of Cayara took active part in the ambush at Erusco, as well as in a subsequent ambush.
The report of the Office of the Army Inspector stated that on May 14, a patrol was attacked by Cayara residents at the narrow path in Jeshua. In the encounter, a rifle stolen at Erusco and other munitions were recovered. The report also states that senderista propaganda was found in Cayara homes, along with explosives; in one of them the remnants of troop uniforms and a military cap were found. It also states that Cayara residents, when interrogated, said that on May 13, 20 subversives were in Cayara preparing for the attack. The role played by the people of Cayara would also explain the difference between the number of assailants (more than 100 people) and the number of subversives who were said to be in Cayara preparing for the ambush. The report also states that a Cayara informant reported the names of people with subversive ties -- supplying a list which we will detail further on -- and the preparations for the ambush.
1.2 The army states that the Military Command for the Emergency Zone (headed by General Valdivia) ordered that 9 patrols be sent, as well as one -- "Tarántula" -- which reportedly left Huancapi as soon as the ambush was reported: 6 patrols from Ayacucho (3 in helicopters and 3 in trucks), 3 patrols from Pampacangallo (2 in trucks and 2 on horseback). In all 10 patrols allegedly took part in the operation. The identities of the patrol chiefs have not been provided and the information on the number of soldiers in the patrols is sketchy. The patrol reports mention that they were mobilized according to a plan called "Persecución." The description and the extent of that plan have not been made public.
From this version the inference is that the army contends that its response had a twofold purpose: one purpose was for two patrols ("Tarántula" and "Tigre") to provide immediate backup support, which apparently arrived after the ambush was already over; the other purpose was to track down the subversives, and this was in the hands of "Tigre" patrol, part of "Tarántula" and 7 patrols that arrived later.
The Commission believes that whatever the plan may have been for the military response, the scale of the operation, which would involve the use of all modes of transportation that the armed forces had available in the area and the participation of a considerable number of troops, even from Ayacucho, was such that the person directly responsible would have to have been none other than General Valdivia Dueñas himself.
Piecing the military version together, the Commission finds that in all, 10 patrols were mobilized, as follows:
Tarántula to Erusco
FROM PAMPA CANGALLO
Otorongo to Huancapi
2. EVENTS AT ERUSCO
2.1. The army has maintained that it received a letter from its informant warning it of the existance of dynamite charges in Erusco and giving it a list of 14 people in Cayara who were said to have ties with the subversives. These were:
1. José Jayllo Rivera
2. Francisco Dionisio Suárez (school janitor)
3. Román Hinostroza Palomino
4. Gregorio Ipurre Ramos (school gardener)
5. Justiniano Tinco García (acting mayor)
6. Guzmán Bautista (school janitor)
7. Cesiliano Apari de la Cruz
8. Luis Chipana García
9. Victoriano Apari García
10. Mauro García Palomino
11. Samuel García Palomino
12. Fidel Ipurre Arotinco
13. Félix Curo
14. Alejandro Echaccaya Villagaray
A photographic reproduction of this letter appeared in the magazine Oiga in its May 23, 1988 edition.
The Army said that the letter was received by the chief of the countersubversive base at San Pedro de Hualla, after being left at the gate near the barracks on May 14. But another witness (Martha Crisóstomo) has said that on May 18 General Valdivia told the tenant farmers that the letter was found in the pocket of a terrorist who died during the ambush. However, the letter begged "not to mention the name of the bearer." From this one would infer that the identity of the sender was known, which would seem to indicate that it was a warning.
The Commission points out that in addition to clarifying how the letter from the Cayara informant was delivered, this element serves to corroborate the fact that the army had been engaged in intelligence work to compile information on the town. This information included the list of citizens that was reportedly included in the letter (and that appears in detail later in this document). The existence of this information, and specifically a list of persons, also explains the soldiers' subsequent actions upon arriving in the area. The army has never denied that by the time they arrived at Erusco, soldiers already had that list of Cayara townspeople.
2.2. The army maintains that at the outset, the "Tarántula" patrol was moved from Huancapi to Erusco, by truck, arriving at 5:30 a.m. (almost one hour after the fighting had ended). It says that it found 4 bodies of alleged subversives (3 men and 1 woman) in the upper reaches of Erusco, and that it buried them there at the site. First, however, it took fingerprints from 3 of the alleged subversives; the condition of the body of the fourth dead person was such that it was impossible to take fingerprints (reports by the Roble, Tarántula and Grass patrols).
The Commission notes that it is evident that no information has been supplied on the fingerprint identification and that the testimony of Monsignor Beauzeville states that there were neither flies nor any odor of decomposing bodies where the bodies were said to have been buried.
The army states that the Tigre Patrol arrived at 6:30 a.m. Its commanding officer allegedly was in command of all of the forces operating in the area. It maintains that he cooperated in the search of Erusco, but it does not say that bodies and munitions debris were found. It maintains that it headed for San Pedro Huella, arriving there at 20:00 hours, where it set up its command post.
It states that at 11:30 hours "Grass" and "Algarrobo" patrols arrived under the command of the lieutenant identified as "Grass." This officer did not report finding any bodies or munitions debris either and says that he ordered the vehicles back to Huancapi, with the survivors and part of the patrols on board. "As of that point, we formed a single patrol, "Grass," with 12 men," presumably made up of "Algarrobo" as well (sic "Grass" report).
At 13:30 hours, "Huayacán" patrol allegedly arrived, consisting of 16 mounted soldiers who, according to the army, remained there until 16:00 hours, whereupon it set out for Mayupampa.
The Commission maintains that from the information supplied by the Army, one can infer that there were at least 5 patrols (Tarántula, Tigre, Grass, Algarrobo and Huayacán) operating in Erusco.
2.3. On the morning of May 14, the townspeople of Cayara saw helicopters landing at Erusco. A number of them decided to board a truck driven by Antonio Félix García Tipe, which was headed for the town of Canaria, to the south of Cayara. Among them were Professor Máximo Florencio Contreras Monzón, Nurse Marta Crisóstomo and Professor Primitiva Melgar. Others would board a bus headed for the same place, among them professors Claudio Palomino, Johnny Pacheco and Jaime Quispe.
3.1. The Army maintains that after Erusco, "Grass" (which had joined up with "Tarantula" and "Algarrobo") headed for Cayara in search of subversives, arriving there at 15:00 hours. It further maintains that upon its arrival it found the body of a man lying on the left side of the road ("possible subversive" sic).
They contend that they found only elderly people and children in the town, who told them that there were five bodies in the church. They found the bodies there, but neither took fingerprints nor buried the bodies as they said they had done in Erusco. "Grass" assumes that the bodies were those of subversives who were wounded during the ambush and finished off by their companions because the army was coming. The following day, they allegedly returned to get the bodies, and seeing that they were not there, concluded that the subversives had returned to take them away.
"Grass" subsequently asserts that "having obtained certain information on the subversives, we headed out for...Jeshua" (sic "Grass" report).
3.2. The version given by the civilian witnesses, on the other hand, maintains that they saw the soldiers entering town at 10:00 in the morning (testimony given by Lucía Tello de Suárez). As they came in, at a point called Alpajuyo, they crossed paths with Esteban Asto Palomino, whom they shot for no reason, leaving his body on the side of the road. (His wife would hide the body that night in order to be able to bury it later; but the soldiers found it the next morning and took it away in a truck).
The witnesses agree that by the time the soldiers entered Cayara, they already had the list of suspects mentioned earlier. First they went to the mayor's house. When they did not find him there, they arrested his wife. They forced her to take them to the house of the Governor, Marcial Crisóstomo de la Cruz, someone whom other tenant farmers had indicated as being the army's informant (testimony given by Gregorio Iturre Ramos). They tied a rope around his neck and ordered him to take them to the other townspeople on the list (testimony given by the wife of Dionicio Suárez and an interview with Marcial Crisóstomo that appeared in Caretas on May 30, 1988).
When they reached the homes of Dionicio Suárez Palomino and Gregorio Ipurre (both of whom were on the list) the soldiers burned the houses. They also looted the store belonging to César de la Cruz, stole the sound amplification equipment at the Town Hall, destroyed the doors, furnishings and other property on the premises and at the infirmary.
The witnesses who were in Jeshua state that columns of smoke were sighted at around 12:00 hours and they began to discuss whether they should go back to try to save their homes by appealing to the soldiers (testimony given by Priscila García Oré).
A group of townspeople were at the church to take care of the ceremonial platforms used in the religious festival that had just ended. When the soldiers came upon them, they ordered the women to leave, using threats, and pushed the men inside the church. There they tied them up with leather straps and interrogated them as they tortured them. They then killed them. Their names were: Indalecio Palomino Iturre, Patricio Jayo Palomino, Emilio Berrocal Palomino, Santiago Tello Crisóstomo and Teodosio Noa Pariona (testimony given by Teodora Tello, Fernandina Palomino, Priscila García Oré, Marta Crisóstomo and Paula Gonzales Cabrera de Noa). When, some time later, the wife of Teodosio Noa Pariona (Paula Gonzales) returned bringing clothing, the soldier guarding the door of the church told her that he was "terruco" and that he was on the "list." Later, she would find his body, together with the bodies of Patricio Jayo and Emilio Berrocal, in the Challapampa ravine, where the soldiers had left them.
The soldiers also reportedly used the town hall as a detention facility. There, those arrested were interrogated and mistreated. Later, guided by Marcial Crisóstomo de la Cruz, the soldiers set out for Jeshua.
The Commission notes the presence of basic differences between the two versions,
principally the following:
a. In addition to the patrol named in the military account, there were other
patrols that went into Cayara, at least the "Tigre" and "Huayacán"
b. The difference as to the time of day that the soldiers entered the town:
10:00 a.m. according to the witnesses, and 3:00 p.m. according to the army.
This supports the hypothesis that "Grass" was not the only patrol
that entered Cayara and that it may have been preceded by another unnamed patrol.
c. Upon entering the town, it allegedly did not discover the body of a "supposed
terrorist," but rather killed a citizen of Cayara.
d. While the army makes no reference to any arrests made in the town and says
that it passed through without staying for any length of time, the townspeople
claim that a group of soldiers remained there, making arrests and conducting
e. At the church, it did not discover bodies left behind by alleged senderistas,
but rather murdered five townspeople.
f. They also add information about the burning of homes of certain townspeople
and the damage done to public buildings, a fact about which the army said nothing
but which the Commission confirmed.
g. The soldiers conducted a selective search based on the list of townspeople
that they had when they entered Cayara.
The Commission believes that the most important factor to be able to understand
the actions taken by the patrols and the course that they followed is the existence
of the information gathered through the intelligence work to which we referred
earlier, an important part of which was the list of townspeople who were allegedly
Sendero Luminoso sympathizers.
On the other hand, the Commission is struck by the fact that the patrol reports
make no mention of having found military supplies and subversive propaganda,
as stated in the conclusions of the report prepared by the Office of the Army
Inspector and which would be irrefutable evidence of the town's participation
in the ambush. Nor is there any mention of testimony obtained from the townspeople
in this regard.
4.1. The military version maintains that when "Grass" patrol reached Jeshua, at approximately 17:30 hours, it was the target of a surprise attack by around 30 subversives with firearms and homemade grenades. The attack lasted about 45 minutes.
At that point, the assailants scattered in various directions. The patrol suffered no casualties, but the ambushers left behind 6 bodies of their own men,* as well as one light automatic rifle (which had been stolen at Erusco), a Civil Guard submachine gun, three packages of dynamite, two sacks of munitions, 4 bloodstained military blankets and subversive propaganda.
The military version goes on to say that the 6 bodies were neither fingerprinted nor buried, because the patrol was in pursuit (General Valdivia to the Commission). The report prepared by the Office of the Inspector of the Army asserts that the assailants were townspeople from Cayara; however, it does not give the grounds for its assertion.
The next day, as said before, the soldiers allegedly returned for the bodies left behind in Jeshua. When it did not find them, it concluded that the subversives had taken them out of the area.
However, the report filed by "Otorongo" patrol states that upon arriving at Cayara at 11:00 hours on the 15th, "two women," the only people it says it found, told them that the day before there had been "shots and explosions" in Jeshua. The report goes on to say the following: "As I descended the ravine (of Jeshua)... I proceeded to comb the area, and found blood and mounds of earth in the form of barricades as well as areas where the soil had been disturbed, which seemed to be graves, probably dug by the subversives." If we bear in mind that "Grass" states that it took an hour and a half to reach Jeshua by road, this discovery by "Otorongo" should have been at around 12:30 or 13:00 hours on the 15th.
The Commission finds here a significant gap in the military version. While
it asserts that on the afternoon of May 15 there were crude graves in Jeshua
and an on-site inspection (see point 4.2) 8 days later confirmed this, "Grass"
patrol asserts that on the afternoon of the 15th, they found no trace of the
bodies that it had left behind.
The Commission further maintains that the military version of the subversives gathering up the bodies is somewhat shaky. The area was saturated with military patrols, making it highly unlikely that senderista forces were present. The armed forces were, predictably, present in superior numbers, better organized, better armed and better equipped in terms of transportation, than any possible opposition. The Commission believes that risking a confrontation with superior forces would have been inconsistent with the logic of subversion.
4.2. The record of the inspection conducted in Jeshua by the Judge of Cangallo on May 22 (8 days later) in the presence of the Inspector for the II Military District, Lt. "Grass" and the Special Prosecutor, contains the description of that ambush that Lt. "Grass" gave during the inspection. According to that account, the soldiers -- who were on the path in the ravine at Jeshua some 3 or 4 kilometers from Cayara -- were attacked from the front, from both sides of the pathway (sic), without any of them being wounded.
However, that same document notes that "in the middle of the path, there is a stain...what seems to be a blood stain, and two blocks from that point (where the attack began), there are what appear to be human blood stains in the middle of the pathway" (sic). The inspection also found traces of at least 5 graves, which could not be opened "because it was too late in the afternoon" (sic).
The Commission maintains that this inspection raises very reasonable doubts
about the military version of the events in Jeshua:
a. The blood stains were found on the pathway, in other words, precisely where
-- according to the military account -- the soldiers were (who suffered no casualties)
and not where the attackers were located or where their bodies were found (see
point 4.1). If we accept the military version, those blood stains could not
have belonged to either the soldiers or the senderistas. This reinforces the
civilian witnesses' version: that as they were returning home, the victims were
intercepted and killed.
b. Furthermore, the discovery of the remains of five graves contrasts with the version given by "Grass" patrol to the effect that it found no trace of the bodies when it returned to Jeshua.
4.3. Around 14:00 hours, the Cayara townspeople who were in Jeshua decided to return home and set out in a group. When they reached the place known as Jecchuapampa, they were stopped by soldiers (many of whom were on horseback). They were told to separate into three different groups (men, women and children). The men were made to lie face down, while the other two groups were told to sit down away from the men. The soldiers tore down cactus leaves and crushed them into the backs of the men with the soles of their boots. As they did this, they interrogated them about the ambush the night before and about what had happened to the "20 light automatic rifles." They then ordered the women and children to get out, firing shots into the air to make them run.
While the women and children were still present, they began to kill the men, using the tools that the farmers had been carrying with them (testimony given by Marco Antonio Taquiri Infante, Ciro Hayo Huayanay, Fernandina Palomino Quispe, Delia Ipurre Noa and Valeriana Ipurre Marcatoma de Apari). One of these was Dionicio Suárez Palomino.
According to the civilian account, only one of the 21 tenant farmers survived, Magdaleno Gutiérrez Huamán; he sought shelter in the home of Mrs. Magdalena Marcatoma de Ipurre. When the house was entered the next day, the soldiers killed both of them. Their bodies were buried in the farm fields outside Jeshua (Senator Díez Canseco to the Senate May 20, 1988).*
The Commission maintains that, as in the case of Cayara, more than one patrol participated in the Jeshua operations; the "Huayacán" patrol was at least one of them, as it was the only mounted patrol that was mobilized in the area.
5. THE EVENTS AT MAYUPAMPA
5.1. "Grass" patrol stated that after Jeshua, it headed for the town of Mayupampa. It arrived at 4:00 a.m. on the morning of the 15th and entered at dawn. Some of the houses had been burned, "possibly only a few hours before."
The "Huayacán" patrol also says that it arrived in Mayupampa at 6:30 a.m. on the 15th. The patrols do not state that they had worked jointly; however, putting the two patrol reports together, both would have been in Mayupampa at the same time.
"Huayacán" states that when it reached Huamanmarca, the town was abandoned. There it found only two army blankets and 500 dynamite cartridges. It further maintains that on May 15, as it was crossing the Pampas river en route back to Mayupampa, it was attacked by 20 or 25 subversives who, when repelled, fled. Some of the subversives were wounded and two of them were killed, though no one came back for their bodies. The soldiers, on the other hand, lost only one mount and a light automatic rifle.
Later, "Huayacán" states, it was sent to Cayara on May 18, to guard the town. It remained there until May 19, at which point it was replaced by "Naranjo" patrol (Report filed by Huayacán Patrol).
5.2. The civilian witnesses state that after Jeshua, the soldiers set out for Mayupampa, where they killed four peasants: Ernestina Félix Palomino, Lucía Choccña Oré, Luis Echeccaya Naupe and Valentín Jerónimo Naupe. There had been no clash nor any other motive for the killing.
The Commission notes that the following information can be drawn from the military version of the events of May 14 and 15:
A. Subversive casualties: a total of 18 dead, not counting the wounded.
Erusco: 4 buried at the site (Roble and Tarántula)
Cayara: 1 at the entrance to the town who was not buried, and whose body later disappeared (Grass)
5 in the town church who were not buried and whose bodies later disappeared (Grass)
Jeshua: 6 bodies that were not buried and later disappeared (Grass)
Rio Pampas: 2 bodies taken away by the subversives (Huayacán)
B. The military patrols were ambushed twice during the course of operation
"Persecución." One ambush occurred at Jeshua, the other at the Pampas
river. Despite all this, the patrols suffered no casualties -- neither deaths
C. The CSB at Cayara was set up on May 18 and since then the military presence has been constant.
VI. CONCERNING THE DISAPPEARANCE OF THE BODIES AND OF OTHER PERSONS WHOSE NAME APPEARED ON THE LIST
1. The townspeople of Cayara said that on May 25, the soldiers ordered them not to come out of their houses and that the soldiers loaded the corpses from Jeshua on horses and set out in the direction of Hualla (testimony from Paulina Gonzáles Cabrera).
2. On May 18, General Valdivia came to Cayara and summoned the townspeople. According to what he told the townspeople, he had with him the letter from the informant which, he he told them had been found in the pocket of a senderista who had been killed at Erusco. He called everyone whose name appeared on the list. Alejandro Echeccaya Villagaray (50) and Samuel García Palomino (18) responded from among those present. Later, he asked the townspeople if the others lived in town and was told that they did.
3. The next day, May 19, the soldiers detained Alejandro Echeccaya, his wife Delfina Pariana Palomino, Samuel García and Jovita García Suárez (26), a cousin of Samuel García and pregnant at the time. These people had their homes in Erusco and the home of Jovita García Suárez was alongside the road. All of them were taken to the town school where around 30 other townspeople were being held. The wife of Echaccaya was held until the next day, Friday May 20, when the soldiers released everyone being held, except for Echaccaya and the two García cousins.
That same day, six soldiers took Jovita García to her home, where she was seen by her sister Zózima García. The soldiers ordered the latter outside while they conducted a search. After that they took Jovita García back to the school.
Shortly thereafter they released her but did not return her personal documents; she reportedly sought refuge in the home of her aunt Lucia Bautista Sulca, also located in Erusco. That same night, May 20, the soldiers dragged her from there and took her, along with two other detainees, in the direction of a place called Yarccapampa. According to the wives of the two men, who followed some distance behind, the soldiers made the detainees carry hoes, mats, blankets and bags.
When they reached Yarccapampa, they spent the night in the house of a tenant farmer by the name of Julio Torres, and left at 5:00 a.m. Delfina Pariona and Juana Apari Oré (the wife of Samuel García) followed them as far as a place called Chaupiccata, where they heard shots.
When combing the area later, at a place called Pucutuccasa the two women found underwear, a blanket and other Articles of clothing, together with the tracks of soldiers. Terrified, they did not return until one month later, at which point they found a grave that they partially uncovered, and found that it contained the remains of the three people who had been detained. (The testimony of Flavia García Suárez, Juana Apari Oré and Martha Crisóstomo).
In Pucutuccasa on August 10, Prosecutor Carlos Escobar, Dr. César Carlos Amado Salazar, Lower Court Judge of Cangallo, the Secretary of that Court, Vidal Canales Quispe, and Elvia and Justiniano García Suárez (sister and brother of Jovita García) located the bodies of the three and "in the deepest part the soles of the feet of another human being, indicating that there...might have been other bodies" (sic Exhumation Report). The presence of these relatives is on record in the exhumation report and in photographs, one of which was published in the December 26, 1988 edition of the magazine "Si."
However, because it was difficult to disinter and transport all of the bodies, only the body of Jovita García was exhumed and taken to the Cangallo morgue. There it was identified by another relative, Martha Crisóstomo, a fact recorded in the presence of the Special Prosecutor. The body was then buried in the Cangallo cemetery, but would eventually disappear from its grave.
When the same team, accompanied by a group of experts, returned to Pucutuccasa on August 19, the other bodies had disappeared.
The autopsy report on the body that was retrieved showed that it was a woman approximately 30 years old and in roughly the seventh month of pregnancy.
The army then maintained (Communique No. 014/CCFFAA and General Valdivia to the Commission on September 22, 1988) that Jovita García Suárez was an army informant, which was why the Sendero kidnapped her from the town on May 20, as had been reported by a group of townspeople. The grave that was found would therefore be that of the Sendero Luminoso and not the army.
The Commission finds this version untenable, for the following reasons:
a) There are at least two witnesses who were present at the time the three
townspeople were kidnapped and taken somewhere near Pucutuccasa (the wives of
the two men).
b) The body of Jovita García was identified by, in all, three relatives. Moreover,
the two relatives who took part in the exhumation also recognized the other
two missing persons.
c) The hypothesis that Jovita García was an army informant and that the Sendero
Luminoso kidnapped her, is at odds with the fact that her body was found together
with two people whose names appeared on the list that the army had of alleged
Moreover, the Commission believes that the subsequent disappearance of the bodies, both at Pucutuccasa and at Cangallo, could only be an attempt to thwart the identification of the body of Jovita García and conceal the obvious inconsistency noted in point c) above.
3. In Huamanga in early July, relatives filed a complaint to the effect that on the night of June 29 to 30, army soldiers posted at Cayara had kidnapped Gregorio Ipurre Ramos (who had been on the informant's list; his house had been burned down on May 14 and he was one of the Special Prosecutor's witnesses) and his relatives Humberto Ipurre Palomino, Benigna Valenzuela Palomino, Catalina Ramos Palomino and Guzmán Bautista Palomino (a janitor at the school whose name also appeared on the informant's list).
For its part, the army has maintained that on that day various townspeople of Cayara reported the kidnapping of 14 townspeople by a group of 10 subversives who had raided the town the night before. They reportedly provided the following list:
1. Humberto Ipurre Palomino
2. Gregorio Ipurre Ramos*
3. Benigna Valenzuela Palomino
4. Guzmán Bautista P.*
5. Catalina Ramos
6. Demetrio Meza
7. Julio Ipurre Palomino
8. Griselda Palomino de Ramos
9. Félix Gonzales Palomino
10. Justiniano Tinco García*
11. Agapito Ipurre Palomino
12. Crispín Oré Crisóstomo
13. Serapio Huamán Crisóstomo
14. Julio Torres Díaz
(Those with asterisks alongside their names were also on the informant's list).
The Commission notes that the first five were those who disappeared the night before. Also on the list is Justiniano Tinco García, whose name appears on the informant's list as well. The Commission further notes that the scene of the events, the house of Gregorio Ipurre, is but a short distance from the military barracks; moreover, at that point in time, there were orders not to move about at night and a system of civilian watches. All this raises doubts about the military version and leads one to believe that this is an attempt to cover up the arrest and forced disappearance of these people.
4. Later, on July 3, citizens Raúl Apari Suárez, Emiliano Tello, Victoriano Apari, Román Hinostroza Palomino and Mauro García Palomino were arrested by soldiers from the Pampa Cangallo base. The army acknowledged the arrest of only the first of these people, whom it released shortly thereafter; on the other hand, the last three were on the informant's list.
5. Some months later, on December 14, in Toccto, which is 35 kilometers from Ayacucho, the truck driven by Antonio Félix García Tipe, one of those who drove the townspeople of Cayara to Canaria, was stopped by a group of armed men. The men ordered Justiniano Tinco García (one of the people on the list) and Fernandina Palomino Quispe (one of the principal witnesses) to get off the truck. They killed them with a barrage of submachine-gun fire. They tied García Tipe to the bottom of the truck and blew it up with a grenade.
VII. ON THE CONDUCT OF THE OFFICE OF THE ATTORNEY GENERAL AND THE JUDICIARY
1. To investigate this case, the Attorney General of the Nation appointed the Special Prosecutor in Ayacucho for Investigating Cases of Disappearances, Carlos Escobar Pineda, who had also received complaints from relatives in the city of Ayacucho.
2. Further, on May 20, the Special Prosecutor and the Judge of Cangallo, attempted to conduct an on-site inspection of the scene of the events. Before they could reach Erusco, however, they were fired on from above; they were unable to see their assailants. However, the army told them that the assailants were subversives (the version of General Valdivia to the Commission of Deputies).
3. The inquiry conducted by Special Prosecutor Carlos Escobar was obstructed systematically by the Political-Military Command of Ayacucho, by not providing him with the transportation to Cayara that he required to conduct his investigations.
At the beginning of his inquiry, the Investigating Police had provided him with a one-man escort, which was shortly thereafter taken away without any explanation. Later, this Special Prosecutor would receive death threats, in which he was described as an attorney for the Sendero Luminoso and ordered to leave Ayacucho. The Political-Military Command offered him no protection.
4. Prosecutor Escobar completed his report by holding General José Valdivia Dueñas responsible for the crime of "murder with extreme cruelty" in the case of Jovita García, Alejandro Echaccaya and Samuel García; for crimes against individual freedom; abuse of his authority in the case of the townspeople of Cayara, and for a crime against the administration of justice in detriment to the State. After this report was delivered to the Attorney General of the Nation, Hugo Denegri, the latter cancelled the Office of Special Prosecutor for Investigating Cases of Disappearances, which had been operating since July 1987; he did so under the pretext of budgetary constraints, which have never been made explicit.
5. The report was sent to the Cangallo Provincial Prosecutor, Dr. César Arnao Salazar, so that the investigations might be expanded. This magistrate confined himself to taking new statements from the witnesses, but within the army headquarters at Cangallo. Under these conditions, some of the witnesses retracted their initial statements. The Commission has no knowledge of the present status of this file.
6. On December 2, 1988, persons unknown detonated an explosive charge at the door of the home of the Judge of Cangallo, who had participated in proceedings with Prosecutor Escobar and who would have been called upon to preside over any legal proceedings in this case. A written threat was left there, signed by "Commander Rodrigo Franco."
The Commission maintains that the thoroughness and swiftness of the investigations conducted by Special Prosecutor Carlos Escobar prevented the loss of information that is valuable in shedding light on the facts, and he did this despite the adverse circumstances under which he discharged his functions. The Commission further maintains that his actions were within the authority and power accorded to the Public Prosecutor's Office under the Constitution and its Statutes.
VIII. THE GOVERNMENT COMMISSION SENT TO CAYARA
On May 21, 1988, in response to the serious denunciations made, a Commission appointed by the President of the Republic and consisting of the Minister of Justice, the President of the Lima Bar Association, Monsignor Augusto Beauzeville and the Minister of Defense, arrived in Cayara in an army helicopter, accompanied by General Valdivia. At the very same time, a group of deputies and Senator Díez Canseco were trying to get there overland.
This Commission testified that it found the town under absolute military control and that it was not permitted to have a fluid exchange with the few people whom it saw. However, one group of townspeople approached to hand it complaints of a mass murder committed by soldiers; they even gave the Minister of Justice a list of 28 people who had been murdered.
Three women told them that "the bastards had killed their husbands," a version that, according to Monsignor Beauzeville, hhad the ring of truth. They also reported that the army had killed close to 23 people in Jeshua and not in a clash as had been reported earlier.
This Commission also received a complaint concerning the burning of the homes of Gregorio Ipurre, Dionicio Suárez Palomino and a third townsperson, and a complaint concerning the presence of an informant who had supplied the army with slanderous information. However, the Commission confined itself to going from the esplanade where the helicopter had landed to the church; it did not go through the town or even to the town hall, which is immediately in front of the church.
This visit was filmed by Government television and would be staged in an arbitrary fashion calculated to substantiate the Government's version, which denied the complaints.
When touring the area of the ambush, where the four dead subversives had been buried, this Commission did nothing to verify the facts; moreover, they said that they did not see any physical signs or note any odor of decomposing bodies. General Valdivia seemed anxious to dig up the graves immediately, but Dr. Ferrero Costa, President of the Bar Association, objected on the grounds that the Examining Magistrate and medical expert were not present.
This Commission did not go to Jeshua, even though it was obvious that they had the means available to do so (the army merely flew them over the area in a helicopter) and even though they had just been told that that was where most of the deaths occurred.
IX. THE CONGRESSIONAL TRIP TO CAYARA
In the meantime, the Congressional Commission, accompanied by representatives of human rights organizations and journalists, arrived at Ayacucho at 7:00 a.m. The military commanders refused to provide them with air transportation, overland transportation or any form of protection. At 5:30 p.m. the Investigating Police supplied them with a vehicle and an escort, and they reached Cangallo at 9:30 p.m. Accompanying them were the Special Prosecutor and medical experts, who had also been denied any assistance in the form of transportation.
On May 21, at 5:00 a.m., they left Cangallo and shortly thereafter were stopped at the bridge over the Pampas river for 3-1/2 hours. The people from the human rights organizations and the journalists were not allowed to continue.
When they reached the CSB at Huancapi, a Peruvian army major identified as "Yauyos" held them back, saying that there was a clash with subversives in progress and that they would be in danger. They were finally allowed to move on, but the medical experts were held back. However, this supposed clash was supposedly occurring precisely when the Government Commission was in Cayara.
This last hold-up prevented the two commissions from meeting in Cayara. Moreover, because the medical experts were not allowed to pass, the graves at Erusco and Jeshua could not be opened.
XII. CONCLUSIONS REACHED BY THE COMMISSION (THE MINORITY)
1. The actions subsequent to May 14 occurred as an immediate and direct consequence of the attack on a military convoy that had happened the previous day, not far from Cayara. The military response had a three-fold purpose:
a. To provide direct support to the troops who had been ambushed, which was accomplished immediately with the withdrawal of the survivors.
b. To track the subversives, in an attempt to wipe them out and recover the weapons, which continued up until May 15.
c. To punish the townspeople, who were regarded as subversive sympathizers and even active subversives, and to search for certain people whose names were on a list that the army had in its possession even before it entered Cayara.
2. The existence of that list of alleged subversive sympathizers, which the army had in its possession, is the single thread running throughout a sequence of crimes designed to wipe out all subversives, especially those people whose names appeared on the list that military intelligence had obtained; although it began on May 14 in Cayara, this sequence of crimes continued with the arrests and disappearances on May 19, June 30, July 3, and finally, the murder of Fernandina Palomino, Justiciano Tinco and Antonio García Tipe on December 14, while another element was the disappearance of the body of Jovita García Suarez.
3. Based on the testimony of the witnesses, the remains found by the special prosecutor when the graves were dug up, and the gaps and contradictions in the information supplied by the Ministry of Defense, the Commission concludes that on May 14, 1988, the Military Command ordered an operation to track down and wipe out subversive forces, which culminated in a punitive action against the people -- especially the men -- of Cayara, for their alleged participation in the ambush of May 13. That punitive action involved the indiscriminate slaughter of dozens of civilians and the arrest and disappearance of others.
4. The Commission has found evidence pointing to the fact that during the operation, noncombatant civilians were murdered, as in the case of the deaths that occurred on May 14 at Erusco, at the entrance to the town of Cayara, and later the four people who died at Mayupampa.
5. The Commission maintains that the army has been unable to prove that the people of Cayara participated -- either in the subversion and/or in the ambush -- in the manner suggested by the conclusions that appear in the report of the Office of the Inspector of the Army, even though it supposedly had what it needed to substantiate its version, such as fingerprints taken from the bodies at Erusco or the documenteary evidence and munitions recovered in Cayara and Jeshua.
6. The Commission rejects as unrealistic the premise that the disappearance of the bodies is attributable to the subversives and concludes that because of the complaints that began on May 17, and more specifically as of Prosecutor Escobar's request for army support to go to Cayara to dig up the graves, a request made on May 25, the army dug up the bodies and got rid of them in an attempt to destroy all the evidence of the massive crime.
7. Information is being deliberately withheld, in violation of Articles 179 and 180 of the Constitution since:
a. The complete report of the investigation conducted by the Office of the Inspector of the Army and its appendices has never been provided; only its conclusions.
b. The results of the fingerprints taken from the four bodies found at Erusco have never been revealed.
8. The Commission concludes that in planning and executing the military actions that began on May 14, Division General José Valdivia Dueñas, Chief of the Political-Military Command for that area under a state of emergency, had direct and final responsibility.
9. The Commission has found evidence indicating that on May 19, citizens Jovita García Bautista, Alejandro Echeccaya and Samuel García were detained by the army and later abducted. It also concludes that the subsequent location of their bodies creates the evidence that indicates that the killers were the military troops who took them out of Cayara.
10. The Commission maintains that the only plausible explanation for the final disppearance of the body of Jovita García was that it was an attempt to make it impossible for a court of law to find that she died at the hands of her captors.
11. The Commission has found evidence to conclude that on June 30, citizen Gregorio Ipurre Ramos and his relatives were taken by army troops, and so discounts the version that they were abducted by a group of subversives.
12. The Commission concludes that the other complaints alleging that civilians were murdered during the course of these events, of which Prosecutor Escobar found unidentified remains, should be investigated and clarified by the Public Prosecutor's Office.
13. A deliberate and unremitting effort was made to obstruct the investigations conducted by Special Prosecutor Carlos Escobar Pineda; the Political-Military Command of Ayacucho failed to help him perform his functions.
14. The events investigated have turned up evidence of the perpetration of crimes classified under our system of common criminal law, which can in no way be interpreted as military crimes; it is therefore the duty of the Office of the Public Prosecutor to investigate those crimes and for the judiciary to punish them.
15. The Commission concludes that the crimes investigated cannot be divorced from the general atmosphere of the counter-insurgency policy of the present government. In this context, the forces of law and order are employing unlawful coercion, such as torture or threat, for obtaining intelligence. These methods are part of a warfare logic whereby entire communities are viewed as the enemy. The only relationship the State continues to have with these communities is one of coercion.
16. The Commission notes that, unfortunately, the criticism that it is making today is precisely the same criticism made by the Senate Commission that investigated the incidents at Pucayaccu and Accomarca back in October 1985, at the start of this administration. This only goes to show that the change in government did not bring about any change in the antisubversive policy.
Unless the Senate demur.
For notification. Commission Room.
Lima, May 9, 1989
(Signed) JAVIER DIEZ CANSECO CISNEROS
Senator of the Republic
[end of Díez Canseco Report]
17. The report written by Senator José Navarro Grau (hereinafter the Navarro Report) states the following:
- Since I am certain that the Majority Report will contain detailed information from oral and written statements obtained during the visits and proceedings both in the capital and in the Department of Ayacucho, I shall not go into them again; instead, I shall move directly to my conclusions.
- The Chairman of the Commission and its members have been seen frequently in the various media that are covering the problem, which has come to be called "Cayara"; it has become news or reading material for various sectors of the public. As a result, expectations are being created in connection with this Investigating Commission, which of necessity should have ended with a single truth, since there is only one truth.
- However, despite all the effort and publicity, I cannot honestly say that because there is only one truth, it has been discovered. I have two differing and at times conflicting versions, one from the forces of law and order and another from those who have appeared as witnesses to the event.
- The forces of law and order, through the Political-Military Command, state that 18 people died and that all were shot in the course of fighting. They demonstrate their contention by citing Erusco, Cayara, Coshhua and the Pampas River, where those who died in fighting were found. At Erusco they showed the traces of the fighting that began when an army vehicle was dynamited. At the other sites, they also pointed out the clues in support of their assertions. They brought forward their officers and recruits who participated. Had it not been for the other version given by the people of Cayara, we could have put the matter to rest.
- Those who appeared as witnesses say that these deaths did not occur in combat; in other words, that it is a case of genocide in which people were abducted, taken away and executed with machetes, axes, sickles and stones. They point to a number of details that I need not repeat here, since they are spelled out in the other reports.
- The disappearance of the bodies makes it impossible to confirm whether or not bullets were the cause of these people's deaths. Since the two versions are utterly at odds as to how these people died, if one could find only some of the bodies, one could say which of the two versions is closest to the truth. But a congressman whose investigative function is temporary in nature cannot, during the period of time that this investigation has lasted, declare either of these two parties to be right.
- On the one hand, the Political-Military Command is performing its functions by a mandate from the Constitutional Government and must do so in accordance with the provisions of the Constitution. It is not there because it wants to be, but rather because of the presence of the subversive groups that seek to seize power in order to govern by their own rules, which are utterly different from those contained in our Constitution of 1979. Since the battle is an armed one, casualties are inevitable. On the other hand, the people of Cayara and the surrounding area are not recent arrivals like the subversive movement; instead they have lived there for generations. One cannot say that their presence there constitutes proof of subversion. They find themselves between two forces that expect from them information and support. It is not difficult to understand why they tend to be distrustful and introverted. Unfortunately, they are always the victims, because if a member of the armed forces dies or a member of the subversive forces dies, there is always the chance that one side or the other will pressure and even punish these Andean communities in various ways. And so, action by either of these two parties will result in testimony that in the end is conflicting.
- Because there have been cases of genocide in years past, one is inclined to believe that this is yet another case. When one considers that a captain died because that army truck was blown up, one is inclined to think that the reaction against the perpetrators had to have been swift and hard. And so, if in the past innocent people were accused and punished for matters far less serious, the same thing might well have happened in this case as well.
- On the other hand, because the world has been told that there were over 100 deaths, that the killing continued, that the bodies were being left for birds of prey and wild animals, and that no witness ever confirmed those figures in his or her charges, one is tempted to think that the purpose may have been to stage a spectacular news event calculated to undermine the system and the forces of law and order. The figure of 100 deaths turned out to be a fantasy at least, as opposed to the persons who are missing and who must be the townpeople who died under circumstances that each version describes.
- When an investigating commission of this kind must conclude its business within a given time period, an inconclusive report may happen, as in this case. In other words, it is impossible to say that there were no excesses, just as it is impossible to say that the excesses had the characteristics and the effects denounced. Cayara did not appear looted or burned, save for seven of its 400 houses. What the Commission did find was that Cayara was deserterd.
- Because I understand what is happening and because the fear of the people and the pain of so many townspeople can confuse us, I am concluding my report without being able to contribute anything new to the Senate and to those who, being part of the Judiciary, must arrive at the truth which I have been unable to find. My duties as a Congressman require nothing further from me.
Unless the Senate demur.
For notification. Commission Room
Lima, July 21, 1988
(Signed) JOSE NAVARRO GRAU
Senator of the Republic
[end of Navarro Report]
TAKING IN CONSIDERATION the above antecedents, the Inter-American Commission on Human Rights reviews in the following section the main issues referring to this case.
I. EXHAUSTION OF INTERNAL REMEDIES
18. The claimants, other institutions and relatives of the victims have exhausted the internal remedies available to correct the situation, as is demonstrated by the following:
a) The complaint brought by twelve relatives of the victim and townspeople of Cayara before the Attorney General of the Nation in Lima, on May 19, 1988, wherein they also request guarantees for the townspeople.
b) The verbal complaints and statements made by relatives of the victims and townspeople to the Special Prosecutor for Cases of Disappearances, Dr. Escobar, as detailed in his reports (see point 7) dated 17th and 19th of May, 1988.
c) The complaints brought by Dr. Francisco Soberón Garrido, Coordinator of the Pro-Human Rights Association (APROHEH) before the Attorney General of the Nation on May 18, 1988, the President of Ayacucho's Supreme Court on May 20; the Chief of the Political-Military Command of Ayacucho on May 18, and the President of the Peruvian Supreme Court on May 20 (see point 1).
d) The complaints filed by Senators Agustín Haya de la Torre and Pablo Emilio Rojas Rojas with the Attorney General of the Nation, on May 19 (see point 1).
The Inter-American Commission has taken into account that, in accordance with the Peruvian legal system, it is the responsibility of the Public Prosecutor's Office to perform investigations to determine whether criminal action should be brought before the Judiciary, and in the case under examination the Ayacucho Provincial Prosecutor decided, by resolution dated January 24, 1990, "NOT TO FILE ANY CRIMINAL CHARGES..." and therefore to order that the case "BE CLOSED ONCE AND FOR ALL." The Government's note to the Commission of May 10, 1990, reports that the case was closed (see point 10).
The same note also reports that the proceedings in the Military Court were concluded on January 31, 1990, when the Supreme Court of Military Justice upheld the dismissal of the case ordered by the Army's Second District Court.
With respect to the Public Prosecutor's proceedings in connection with the cases of witnesses murdered subsequent to the events of May 14-18 (Cases 10,276 JUSTINIANO TINCO GARCIA, FERNANDINA PALOMINA QUISPE AND ANTONIO FELIX GARCIA TIPE and 10,446 MARTHA CRISOSTOMO GARCIA) and which, according to statements made by the complainants and Prosecutor Escobar to this Commission, were provisionally archived by the Public Prosecutor's Office more than a year ago, the Government has offered no information in that regard to the Commission on either case, so that it must be presumed that they have been permanently shelved (see points 3 and 6).
That, on the basis of that set forth in the preceding paragraphs, the relatives of the victims and the claimants have exhausted all the remedies available under the Peruvian legal system, without having been able to identify and bring to justice those responsible; this situation has moreover prevented civil action to obtain compensation on the part of the victims' relatives, so that it can be concluded that the domestic remedies available in Peru proved to be ineffective in the case under examination.**
19. These events were also investigated by a Senate Special Investigating Commission, which published a majority report that rejected the charges made by the relatives of the victims, plus two reports concluding that human rights violations were committed by the Army, and a third inconclusive report (see points 11, 15, 16 and 17).
20. From the very beginning, in the days immediately after May 14, 1988, the complainants went to the Commission to request that it take steps to prevent further violations of human rights and that the Government be urged to exhaust all domestic remedies to conduct the appropriate investigations and legal proceedings (see point 1).
21. Finally, it must be borne in mind that the case received extensive publicity in Peru right from the start, with considerable national and international press coverage, which prompted the appointment of a high-level ad-hoc Commission by the Executive Branch and also led to the President of the Republic himself visiting the scene of the events (see points 15 and 42), so that it can be considered that the facts forming the grounds for the complaint were widely known.
22. Despite all this and the seriousness of the events, a long period elapsed before any action was initiated in an ordinary criminal court while the proceedings brought in military courts have been dropped.
The Inter-American Commission has to report that no other proceedings in this matter are pending in any other international forum. The Commission accordingly believes that the admissibility requirements set in Article 46 of the American Convention have been fully met.
II. INTERPRETATION OF THE FACTS
23. The information contained in the complaints, in the prosecutors' reports, in the Government's replies and in the Senate Commission's reports, enables the Commission to make the following summation:
24. A. The ambush of the military convoy on May 13, 1988
The versions agree as to the occurrence of the ambush mounted by subversive elements on May 13, 1988, at Erusco in the Cayara district of Víctor Fajardo Province in the Department of Ayacucho, which resulted in the deaths of four military men.
They also agree that this triggered a series of events in the area in the days that followed.
As regards the points where there is disagreement, the Commission considers:
- The Army alleges that this operation required the participation of a large number ("hundreds") of people and with that suggests the active complicity of the town of Cayara. The Government also maintains that the magnitude of the confrontation caused numerous casualties among the subversives, these being the deaths that were reported as occurring in the subsequent incidents. The Peruvian Government has not provided any information that supports any of these affirmations.
While the versions agree on the occurrence of the ambush, they differ as to its duration (see p. 76, Díez Canseco Minority Report and witnesses' statements in the Escobar Report), the number of subversives involved and the number of casualties they suffered.
Regarding the duration of the ambush, it should be noted that while the witnesses reported hearing the explosion at 9 p.m., followed by firing for 45 minutes, the Army maintains that the ambush took place at 11:30 p.m., that it began with the explosion that disabled one of the two vehicles, causing the deaths of four Army personnel, and that the attack by the subversives continued until 4 a.m. the following morning, May 14, 1988.
As to the number of subversives who attacked the convoy, the Army's official version differs from what General Valdivia told the Senate Commission; while the Army maintains there were between 200 and 300 subversives, General Valdivia affirmed there were no more than 10 (see p. 77 of Díez Canseco Minority Report).
As to the magnitude of the confrontation at Erusco, the Army maintains that, as an immediate reaction to the ambush, the ambushed soldiers counterattacked and killed the subversives, who were buried in the immediate vicinity of Erusco. To verify the consistency of this version it must be compared with other facts, such as the number of soldiers attacked. It must be borne in mind that the patrol attacked numbered 19 men, of whom four were killed and five severely wounded by the explosion that completely wrecked one of the vehicles (see p. 34 Melgar Commission Majority Report and p. 74 of Díez Canseco Report). It is hard to conceive how ten soldiers, some of them wounded, attacked at night by a number ranging from 10 to 300 subversives, could have maintained a confrontation for over five hours and killed many of their attackers.
It must also be borne in mind that in the place where the allegedly dead subversives were said to have been buried, both Bishop Beuzeville (member of the Commission of Notables, see p. 80 of Díez Canseco Report) and Prosecutor Escobar separately found that this grave contained no human remains and did not have the typical smell of decomposing bodies, and further that it was too small -- 1.10 m x 45 cm -- to contain four bodies as asserted by the Army (Prosecutor Escobar's report). Neither was the Army able to provide either the Senate Commission or the Prosecutor with any fingerprint identification of the supposed bodies. Finally, it should be pointed out that the reports filed by the "Grass" and "Algarrobo" patrols make no mention of bodies of subversives as a result of the confrontation during the ambush (Díez Canseco Report, p. 81).
In light of the existing proof, the Commission is of the opinion that on May 13, 1988, at approximately 9 p.m., at the place called Erusco on the road to Cayara, a group of subversives ambushed an Army convoy, as a result of which four Army personnel died and five were wounded. The Commission does not find there is reliable proof that there were intense and prolonged confrontations between the military and subversives or that the latter suffered losses; neither does it consider there is any convincing evidence that subversives were killed and their bodies buried there by the Army.
25. B. The body on the road into Cayara
The versions agree that there was a body at the entrance into the town on the route taken by the military patrols at the time they went by, and that it was the body of ESTEBAN ASTO BAUTISTA (Escobar Report, p. 14).
As to the facts in dispute, the Commission takes into account the information provided by the witnesses to Prosecutor Escobar (see p. 14), and which was not subsequently retracted when testifying before successive prosecutors, and concludes that:
- When the troops entered the town around 10 a.m. they met Asto Bautista at the spot known as Alpajulo, and executed him there;
- His wife found his body and hid it that night, but the soldiers came back to look for it, found it and took it away on a truck the next morning (testimony of his wife; see Escobar Report, p. 14), and its present location is unknown.
26. C. Material damages
The versions agree that there was material damage, including thefts, vandalism and arson, and that houses were either damaged or broken into.
The Army claims that this damage was done by the subversives to avenge themselves against presumed Army collaborators and informers. Prosecutor Escobar in his report maintains that the damage was done by the military on May 14 (see Escobar Report, p. 30).
In addition to the testimony of the witnesses included in Prosecutor Escobar's report (see pp. 14 and 15), the Inter-American Commission has also taken the following into consideration:
- That the reports filed by the different patrols that went through Cayara make no mention of fires being set or robberies being committed, although it is well known that these things happened, which leads one to presume that they were hushed up by the military, but verified by the Senate Commission, by other commissions and by Prosecutor Escobar (see pp. 14 and 15). That only later did the Army contend (Valdivia Report to Senate Commission) that these things were the work of subversives and intended as reprisals, but without furnishing any proof of this assertion.
- That the damage and thefts were directed against goods and property of persons on the "list of subversives" that the Army had in its possession and which it later made public; the list also appeared in the press. The letter in question was reproduced in the magazine "Oiga" of May 23, 1988.
- That many of those whose property was destroyed were later publicly sought by the Army and killed, either on the same day or later on (Escobar Report, statement of Martha Crisóstomo García, p. 16).
- That the witness Fernandina Palomino (subsequently killed) testified to Prosecutor Escobar that "not only was everything in her store taken," but that she also saw it loaded on Army trucks that same day, May 14, 1988.
Consequently, in light of the proofs provided, the Commission is of the opinion that serious property violations that occurred during the events under examination were committed by the military, especially on May 14.
27. D. The bodies in the church
The versions agree that on May 14, 1988, there were at least five bodies in the Cayara church, and that on that day and the preceding day the town celebrated the festivals honoring its patron saint.
This agreement between the versions is important because it supports that stated in numerous testimonies and by Prosecutor Escobar, to the effect that part of the town's population were in the church and around it, winding down the celebration and dismantling the items used in the procession. It also contradicts the Army's assertion that Cayara had been deserted.
The Commission has paid special attention to the following factors:
- The circumstances of the deaths that occurred in the church are derived from testimonies (see Escobar Report, pp. 14 and 15), according to which when the military arrived they went to the church where the festival was concluding and made those that were in the church go out into the square, where they then separated the women and children from the men, whom they ordered back into the church. The women and children heard screams as if people were being tortured; the men were kept in the church throughout the night and the military cordoned the church off, not allowing relatives or townspeople to go into it or even near it.
- The foregoing was proven by the testimonies of seven witnesses to Prosecutor Escobar. None of these witnesses subsequently retracted anything when they subsequently testified before Prosecutor Granda. While there were another two witnesses who denied the events when questioned by Prosecutor Granda, they did not testify earlier before Prosecutor Escobar or members of the Senate Commission.
- The bodies of three persons reported killed in the church, PATRICIO OCAYO, EMILIO BERROCAL and TEODOSIO NOA PARIONA, were found by Paula González Cabrera de Noa, wife of the last-named, in the Challapampa Ravine, according to her statement to Prosecutor Escobar (Escobar Report, pp. 14 and 15).
- When Prosecutor Escobar made his on-site inspection of the graves in Quinsahuaycco, named by witnesses as the place where the Army took the bodies of those who died in the church, he found remains which, according to the report prepared by the police, consisted of human hair and pieces of skin, the estimated date of which matched the date of the events under examination (Escobar Report, p. 24).
- The military washed the church down on May 17, using cooking oil and earth, so that no traces of blood were left. Nevertheless, the on-site inspection made by the Cangallo judge, Dr. Palomino, confirmed the existence of bloodstains on May 20, 1988, before the arrival of Prosecutor Escobar.
Accordingly, in light of the existing proofs, the Commission is of the opinion that:
- On May 14, 1988, troops separated a group of men from their families, moved them into the church, tortured and killed them, burying their bodies secretly in a place nearby, from which they later removed them. The victims were:
1. EMILIO BERROCAL CRISOSTOMO (50)
2. PATRICIO OCAYO CAHUAYMI (60, sacristan)
3. TEODOSIO NOA PARIONA (53)
4. INDALECIO PALOMINO TUEROS (55)
5. SANTIAGO TELLO CRISOSTOMO (60)
28. E. The events in Ccechua
Ccechua is a valley about an hour and thirty minutes by truck from Cayara. It is reached by a footpath. Many families grow their crops their and have houses in the valley where they spend the night during planting and harvest. On May 14, 1988 a lot of people were working there.
The versions agree that:
- Early in the afternoon of May 14, Army patrols from Cayara arrived in Ccechua;
- Campesinos (peasant farmers) were killed there at that time.
In weighing the disputed facts, the Commission gave special consideration to the following:
- The Army maintains that these deaths were the result of the pursuit operation ordered because of the ambush the day before. It also maintains that the bodies were abandoned without being fingerprinted or buried because of the urgency of keeping up the pursuit. This version was also given by General Valdivia to the members of the Senate Commission and coincides with the "Grass" patrol's report. However, the report filed by the "Otorongo" patrol, which arrived later, states that they found blood and places where the earth had been disturbed, which seemed to be graves of subversives (see p. 85 of Díez Canseco Report).
- The witnesses asserted, however, that the many campesinos who were killed were interrogated under torture and then executed, with their own work tools and in the presence of the women and children, from whom they had been separated (Escobar Report, p. 15). This version coincides with the traces noted in the report of the "Otorongo" patrol mentioned above.
- Despite the many and serious complaints about the deaths in Ccechua lodged by the townspeople of Cayara with the Commission of Notables when said Commission was in Cayara on May 21, 1988, the Commission was only allowed to fly over the Ccechua area in the military helicopter that brought them in and was not given any opportunity to make an on-site inspection.
- The Cangallo Province Judge, Dr. Palomino, when he made his on-site inspection, together with two soldiers, found traces of blood and at least five graves in Callapampa, which they were unable to open because it was too late in the afternoon.
- Civilian witnesses all stated that on May 25 the military ordered the population not to leave their homes, loaded the bodies that were in Ccechua on horses and headed out in the direction of Hualla (Escobar Report, p. 16).
- During the subsequent on-site inspection performed by Judge Cesar Carlos Amado Salazar and Prosecutor Escobar concerning the removal of the bodies reported by various witnesses, human hair and fragments of skin were found at a height of about one meter in the vegetation alongside the path, which helps to confirm the witnesses' report that the bodies were removed on pack animals (Escobar Report). It should be noted that these remains were examined by experts who concluded that they were human in origin.
- Regarding the witness Delfina Pariona Palomino (wife of ALEJANDRO ECHACCAYA, whose body was identified according to the Pucutuccasa report), who stated in her expanded testimony given in the barracks before Prosecutor Granda that she had not seen her husband since May 15 when he had gone with the subversives to Muyupampa, the Inter-American Commission notes that her original statement was corroborated by that of the widow of SAMUEL GARCIA PALOMINO, who testified that she went with Delfina Pariona to the grave, following the trail of blood and other marks and on the basis of the information that another person from the vicinity gave them, and there found the body of Alejandro Echaccaya.
- Moreover Delfina Pariona herself had apposed her fingerprint on the complaint that 19 campesinos from Erusco submitted to the Special Prosecutor, in which they all affirm that the Army forced them to say that Jovita García had been taken away by the terrorists.
- With regard to the witness Maximiliana Noa Ocayo, in her expanded testimony given in the barracks before Prosecutor Granda she appears to be retracting her statement that she saw the soldiers kill her husband and then found his body once they had left (see page 39.4, under EIGHTH, Report of Prosecutor Granda). However, Maximiliana Noa Ocayo, who is illiterate, had stated to Prosecutor Escobar on May 22 that she was in Cayara on May 14 with her daughter Delia and that they had both seen their husband and father killed (see Escobar Report, pp. 14 and 15). The fact is that Delia, a minor, with primary education and Spanish-speaking, testified separately to Prosecutor Escobar that she was with her mother on May 14 and they had seen the soldiers kill her father. This corroborates the original affirmation of the witness Maximiliana Noa Ocayo and adds a further element in support of the assumption that the expanded testimonies given before Prosecutor Granda under the pressure of being in the barracks and following the deaths of various witnesses were not true and accurate.
- A boy, CIRO OCAYO HUAYANAY, testified before Prosecutor Escobar that he was originally put with the men and made to lie face down on the ground and had cactus needles pressed into his back; however, an officer then noticed he was just a youngster, and gave him a slap and told him to join the women and children, which saved his life, but from there he saw the men killed, including his father. In his report made 15 days after the fact, the prosecutor noted that he could still see the places in the boy's back where cactus needles had been driven in.
- The witness Fernandina Palomino gave the names of those who died and said she had seen them killed, their heads being cut off in some cases. One of those she said she saw killed was MAGDALENO GUTIERREZ. The prosecutor received testimony from the minor, Delia Ipurre Noa, who said that she had gone back, eluding the Army guards, and saw her father killed; his body was alongside that of one of her uncles, she said his head had been cut off; it was then that she saw MAGDALENO GUTIERREZ, who was as it were crouching down, but raised his head and looked at her, which frightened her so she ran off.
- Another witness, VALERIA IPURRE MARCATOMA DE APARI, who lives in the valley, testified that on the night of May 14 she was visited by Magdaleno Gutierrez who came complaining of a severe pain in his head and saying that they had shot him. She stated that she and her 80-year-old mother, SEGUNDINA MARCATOMA SUAREZ, widow of Ipurre, tended to Gutierrez but without using any lights for fear of the military, because they had seen what happened in the fields. Around five or six in the morning Army troops came and forced this woman to leave the house with her children. Gutierrez and the old woman stayed in the house. Because she was afraid, she sent her boy to watch what happened. On the first day he saw his grandmother and Gutierrez, but on the second day he could no longer find them.
- In the same way with respect to the witness TEODORA APARI MARCATOMA DE PALOMINO, who in expanding on her testimony before Prosecutor Granda in the barracks, appears to be maintaining that she was not in Cayara at any time during the period in question, but was in Ica up till June 15 and did not see what the military did, and denying having testified before Prosecutor Escobar. In this connection, it should be noted that the Inter-American Commission has been informed that: (a) Teodora Apari's testimony before Prosecutor Escobar was taped by the parliamentarians who were present there, on May 22; and (b) that she returned to testify before the Provincial Judge on June 11, pointing out where the soldiers cut off her husband's head, indicating the area and gathering soil with blood from that place, evidence that Prosecutor Escobar sent to the laboratory where the experts concluded that the blood was human blood (see Escobar Report, p. 19, which refers to the existence of photographs of this witness when she collected the blood-soaked earth). This is another case of retraction of testimony under pressure.
- In Ccechua, during the on-site inspection he made in 1988 near Ccachuaypampa, Prosecutor Escobar found among other remains of bodies that had disappeared, the complete skin of a human hand. Witnesses stated that the troops had placed the body to which this skin belonged, together with other bodies, on pack animals and had taken them away. They said that the skin belonged to EUSTAQUIO ORE PALOMINO, who was 17 years old at the time of his death.
The Inter-American Commission's attention was particularly taken by the difficulties that were placed in the way of identification of this hand skin, despite the request made by Prosecutor Escobar. Thus:
(a) The report of the police-appointed experts stated that they had only been able to take prints of the ring finger because the rest had already decomposed. Prosecutor Escobar, who had seen that the skin had not decomposed, ordered the commandant to have the attempt reputed in his presence. On that occasion all five fingerprints were taken.
(b) When sent to the Investigative Police, they reported that the fingerprints did not match those of Eustaquio Ore Palomino. Further investigation revealed that the individual in question was 18 and as such had a police file that is set up when an individual turns 18. However, the person named by the witnesses as having been killed was 17 and therefore did not have a police file.
(c) The Prosecutor was informed, however, that the missing person had registered with the military and that they should have his card and fingerprints on file. When a search was ordered the card was found, but the fingerprints were too overinked for any comparison to be possible. Prosecutor Escobar then asked the Attorney General if a comparison could be made with the other copy of the card, kept in the archives in Lima on the assumption that if one copy was overinked, the other ought to be legible. There is no information indicating that the Attorney General acted on that request.
This entire process regarding the hand skin constitutes another serious obstruction of the machinery of justice by means of acts or omissions to conceal evidence (see points 41 and 44).
In light of the existing proofs and the preceding considerations, the Commission concludes that military troops detained, tortured and killed the following campesinos in Ccechua on May 14, 1988:
DAVID OCAYO CAHUAYMI (62)
SOLANO OCAYO NOA (29)
JOSE OCAYO RIVERA (56)
ALEJANDRO CHOCCNA ORE (58)
ARTEMIO GONZALEZ PALOMINO (45)
ALFONSO HUAYANAY BAUTISTA (18, student
IGNACIO IPURRE SUAREZ (55)
EUSTAQUIO ORE PALOMINO (17, student)
ZACARIAS PALOMINO BAUTISTA (58)
AURELIO PALOMINO CHOENA (38)
FIDEL TEODOSIO PALOMINO SUAREZ (62)
FELIX QUISPE PALOMINO (48)
DIONISIO SUAREZ PALOMINO (42)
PRUDENCIO SULCA HUAYTA (58)
EMILIO SULCA ORE (32)
ZOZIMO GRACIANO TAQUIRI YANQUI (40)
TEODOSIO VALENZUELA RIVERA (60)
IGNACIO TARQUI OCAYO (50)
HERMENEGILDO APARI TELLO
FELIX CRISOSTOMO GARCIA
The Commission also concludes that in view of the fact that the graves were discovered by the local people and inspected without being opened on May 22 during the on-site inspection by Judge Palomino, soldiers removed the bodies and took them away on pack animals in order to hide them.
29. Regarding the events in Cayara on May 18
The versions agree on the following:
- That in the morning of May 18 General Valdivia arrived in Cayara, and with the troops that had already established a post here, he ordered the townspeople to assemble in the place where the helicopters land, where around midday he read out a list of names, asking that the persons named be turned in as they were suspected subversives.
- That this list consisted of the names that appeared in a letter that the Army had in its possession on May 14, in which a person from the town reported the names of alleged subversives; this letter is in the official file and the Army recognizes its existence in its reports.
- That many people protested before General Valdivia that those named were not subversives.
- That the list had been updated because those killed on May 14 had already been taken off it, while those who were called were not among those who objected to the General.
- That the people present included the witness Martha Crisóstomo García.
- That not one of the campesinos sought by General Valdivia was located at that time.
- That General Valdivia left in a helicopter.
- That around 3 p.m. that same day, May 18, an Army patrol commanded by a captain arrived in Erusco and began searching for those whose names had been called.
With regard to the conflicting versions, the Commission also took the following into account:
- That many witnesses stated that the patrol, which was led by a captain known as Captain Palomino, was looking for the persons named by General Valdivia.
- That in Erusco, on May 19, the patrol arrested ALEJANDRO ECHACCAYA VILLAGARAY, his wife Delfina Pariona Palomino, SAMUEL GARCIA PALOMINO and JOVITA GARCIA SUAREZ.
- That these people were led away, under arrest, to the Erusco school, with many Erusco residents looking on; about thirty people were being held in the school at that time.
- That the wife of Echaccaya, Delfina Pariona Palomino, was released the next day, Friday May 20, when the soldiers let all the detainees go except for the other three named above.
- That according to various witnesses, on that same day, May 20, in the afternoon, six soldiers took JOVITA GARCIA to her house, where she was seen by her relative Zozima García, whom the soldiers ordered out while they searched the house. They then released JOVITA GARCIA, but kept her documents.
- Subsequently, the soldiers again went looking for JOVITA GARCIA, at the house of her aunt, Lucía Bautista Sulca, in the night of May 20; they took her from there, arrested her again and led her away with the other two named earlier, ECHACCAYA VILLAGARAY and GARCIA PALOMINO, making them carry shovels, picks, blankets and bags, according to the wives of the two men, who followed them at a distance.
- That on arriving in Yarccapampa the patrol and the detainees spent the night in the house of a campesino, Julio Torres, and set out again at 5 a.m. According to their testimony, Delfina Pariona and Juana Apari Ore (the wife of Samuel García) followed them to a place called Chaupiccata, where they heard shots which scared them. Later, while searching the area, they found articles of clothing and soldiers' footprints. Being frightened, they did not return until 15 days later, when they found the bodies there. This evidence would indicate that the detainees were executed.
- That numerous Erusco witnesses identified the officer in charge when the arrests were made as Captain Palomino, recognizing him from a photograph that Prosecutor Escobar had of him which was taken during one of his earlier visits when, according to the prosecutor, said captain tried to intimidate witnesses who were going to testify before him.
- That many witnesses told the prosecutor that the patrol took the detainees in the direction of the mountains, i.e. toward Pucutuccasa.
- That, according to their testimonies, some of these persons followed the route the soldiers had taken with the detainees, came to the grave, found the bodies and then went to the house of Flavia García Suárez, the sister of Jovita, whose body was one of those found, where they talked about the matter. Flavia then told her niece, Martha Crisóstomo, who reported it to Prosecutor Escobar.
In light of the existing evidence the Commission concludes:
- That General Valdivia arrived in Cayara on May 18 and read out a list of persons considered to be subversives. That on that same day, and after General Valdivia had left, an Army patrol arrived under command of the so-called "Captain Palomino." That in the afternoon these troops looked for the persons named by General Valdivia and arrested in Erusco JOVITA GARCIA, ALEJANDRO ECHACCAYA VILLAGARAY and SAMUEL GARCIA PALOMINO, who were on the list read out by General Valdivia.
- That after being detained in the school, the above-named were taken away by the military to Pucutuccasa Mountain on May 20, 1988.
- That there on Pucutuccasa the three were executed and buried.
30. The first exhumation of bodies on Pucutuccasa
According to the information furnished to the Inter-American Commission, the first exhumation took place as follows:
(a) On the basis of Martha Crisóstomo García's statement, Prosecutor Escobar ordered that an inspection be conducted of presumed graves containing bodies on Pucutuccasa mountain.
(b) The prosecutor traveled to Huancapi with the witness Martha Crisóstomo García, where the latter pointed out the house of her aunt Flavia García Suárez who, together with her brother Justiniano García Suárez, led the prosecutor and his group to the grave on top of Pucutuccasa.
(c) The prosecutor requested from the Army but did not obtain a helicopter for the journey, so he and his party used two police vehicles. Prosecutor Escobar was accompanied by Assistant Prosecutor Dr. Santiago Cigueñas, Alfredo Quispe Arango from the Prosecutor's office as interpreter, the Cangallo Provincial Judge, Dr. Carlos Amado Salazar and the Court Secretary, Dr. Vidal Canales, police officers responsible for the Commission's safety and two civilian witnesses.
(d) The vehicles were left at the bottom of Pucutuccasa, with five police officers to guard them.
(e) After making a three-hour climb on foot, the witnesses Flavia García Suárez and her brother Justiniano García Suárez led the party to the grave.
(f) There, upon excavation, they found three bodies and evidence that there had been at least one more.
(g) They took out the body of a woman and brought it down to where the vehicles had been left. They also identified the other two bodies but were unable to take them out because they did not have enough personnel and it would have been better to use a helicopter.
(h) The body brought out was taken to the Cangallo hospital to establish the causes of death and for subsequent reburial.
(i) An exhumation report was prepared which was signed by the members of the Prosecutor's Office, the Judge and the Court Secretary.
(j) Numerous photographs were taken of the climb up the mountain and of the actual exhumation.
The Inter-American Commission has also taken the following evidence and information into account:
- That the wife of Samuel García Palomino, Mrs. Juana Apari Ore de García, testified that, being informed by a neighbor that there was a grave on Pucutuccasa, followed the trail with a relative and found a place where the ground had been disturbed; upon scraping some of the dirt away she found a foot and recognized the pants of her husband, in the pocket of which were the keys of her house which he had taken with him when the soldiers took him away.
- That Prosecutor Granda denies that Justiniano and Flavia García Suárez were present during the proceedings. However, Martha Crisóstomo García testified that on August 10 she accompanied Prosecutor Escobar's party to Huancapi, where she showed him her aunt Flavia's house and told him she knew where the grave was. In that house there were her aunt Flavia and her brother Justiniano García. Her aunt asked her to stay with the three children because she and her brother were going to accompany the prosecutor up Pucutuccasa where her sister was buried. Martha then expanded her testimony, stating that when her uncle and aunt came back they said they had identified the bodies in the grave as those of SAMUEL GARCIA PALOMINO, JOVITA GARCIA SUAREZ and ALEJANDRO ECHACCAYA. It must also be taken into account that the official record of the proceedings, signed by the prosecutor, his assistants, and the Cangallo Judge and his secretary states that Flavia and Justiniano García were present. Furthermore, in the photographs of the proceedings, which were widely published in the press, there are persons whom the prosecutor identifies as Justiniano and Flavia García Suárez and that the only criticism of the photographs is in the Melgar Report, which just notes that they should have been added to the prosecutor's file.
In light of the existing proofs the Commission concludes that:
- In the proceedings carried out on Pucutuccasa mountain, in the presence of officials from the Public Prosecutor's Office, judicial officials and police officers, the presence of several bodies was established, three of which were identified; one of these bodies was taken for autopsy and the others were left for a second exhumation when conditions would be better for their removal.
- That the witnesses Flavia García Suárez and Justiniano García, the sister and brother of Jovita García, were present during these proceedings.
- That one of the bodies, of the female sex, identified in the proceedings by her brother and sister as being that of Jovita García, was taken by truck to the Cangallo hospital.
31. Regarding the second proceedings on Pucutuccasa
The versions agree that:
- Prosecutor Escobar requested, through the Office of the Attorney General of the Nation, that the Political-Military Command provide him with a helicopter to enable him to return for the other bodies and complete his investigation.
- That notwithstanding the Ministry of Defense having issued an order that Prosecutor Escobar be provided with a helicopter, no helicopter was made available and he once again had to travel overland to Pucutuccasa mountain on August 18.
- That on this occasion he was again accompanied by court officers, the Cangallo Provincial Judge, Dr. Carlos Amado Salazar and his secretary, Mr. Vidal Canales, the Deputy Prosecutor, Dr. Santiago Cigueñas, interpreter Quispe and a police escort was under the command of a Technical Police junior lieutenant whose surname was Gil.
- That they did not find the bodies they had dug up on the first occasion nor any other, although there were stains of the kind left by bodies and human hair.
- That a record was made of the proceedings and was duly signed.
The Inter-American Commission considered the sole contested point here to be the Melgar Report's affirmation (see point II) to the effect that Prosecutor Escobar maliciously delayed his request for new transportation for seven days so that the subversives could remove the bodies. In this connection the Commission took the following into account:
(a) That Escobar returned to Huamanga, Ayacucho, on August 10 by truck from Erusco, after the exhumation performed in the night time. That the next day, August 11, Escobar telexed the Attorney General of the Nation to ask him to request the Armed Forces Joint Command to make a helicopter available, a telex that was repeated the next day.
(b) That despite this request and the order from the Supreme Government and the Attorney General of the Nation that the fullest cooperation be extended to the Special Prosecutor, this helicopter was not provided.
(c) That Prosecutor Escobar accordingly had to obtain land transportation to take him out to the location, and then had to continue on foot on May 18, as the record shows.
Accordingly, in light of the existing evidence, the Commission concludes as follows:
- That Prosecutor Escobar, as soon as he was able, took the necessary steps to return for the second investigation on Pucutuccasa, requesting air transportation for the purpose.
- That the military authorities obstructed the course of justice by not providing him with that transportation immediately, as they should have done, and by so doing they delayed the inquiry, which gave time for the bodies that had been discovered to be removed.
- That the statements in the Melgar Report concerning malicious intent on the part of Prosecutor Escobar are groundless and would appear to be intended to discredit the prosecutor and the inquiry and to create confusion as to who it was that removed the bodies.
32. Regarding the identification of the body taken to Cangallo
The various versions agree:
- That the body taken to the Cangallo Hospital after the first investigation on Pucutuccasa, and which was found there, was that of a women in an advanced stage of pregnancy.
- That the nurse Martha Crisóstomo accompanied the Commission that moved the body to the hospital where,once it was washed, she recognized it as being the body of her aunt, JOVITA GARCIA SUAREZ.
- That the body was taken to the morgue where an autopsy was performed.
- That the body subsequently disappeared after having been buried.
As to the points in dispute, the Commission has given special consideration to the following:
- Even though the Granda Report cited in the Melgar Report (see point 11) maintains that in her first testimony Jovita's sister, Flavia, never mentioned that Jovita was pregnant, Flavia did tell Prosecutor Escobar, when giving him information to help identify her missing sister, that Jovita was six months pregnant.
- And although the Granda Report cited in the Melgar Report, denies that Flavia and Justiniano were present at the exhumation, there are numerous pieces of evidence that show they were indeed there and that they identified their sister's body (see point 29).
- With regard to the Army's later assertion (in communique 014 CCFFAA and as told by General Valdivia to the Senate Commission on September 22, 1988) that Jovita García was "an Army informant who was killed by the senderistas," it is doubtful whether the subversives would have buried the body of an Army informer alongside two people who had been accused of being senderistas in the informant's letter made public by the Army.
- The statements made by witnesses Flavia and Justiniano, sister and brother of Jovita, to Prosecutor Granda in which they retracted their earlier testimonies, were made in the barracks, in a pressure situation; not only do they not agree with what they had said earlier, but they also contradict the testimony of other people,as well as legal evidence and logical inferences.
- That the importance the Melgar Report attaches to the fact that the investigation in which the bodies of JOVITA GARCIA and others were found was called an exhumation and not a bringing up of bodies is irrelevant, since: (a) as the Melgar Report explains (see points 14 and 15), what was done was in fact an exhumation; and (b) the technical and legal discussion does not deny the reality of the facts to which the record signed by the court officers and the authorities of the Prosecutor's Office relates.
- That the action brought against Prosecutor Escobar by Senator Melgar seeking to have the exhumation inquiry nullified was rejected by the Acting Judge and that ruling was upheld by the Ayacucho Superior Court, which ordered a fresh exhumation and autopsy to determine the cause of death, but without annulling the first one. This second exhumation could not be performed because the body had disappeared. It should be noted that by that time Prosecutor Escobar had been transferred from Ayacucho.
- That the body had been identified in the presence of Prosecutor Escobar and this identification had been duly recorded. The question must be asked, whose interests would be served by the spiriting away of the body? Identification of a body can be done by those who killed the person or who knew him or her, or by means of fingerprints or dental charts. Dental charts were not used in Cayara and, given the amount' of time that had passed, the body would definitely have decomposed by the time of the second autopsy, since it was buried in a moist area. Hence, only those who knew Jovita could have identified her, but since all they would have found would have been a shapeless mass they would not have been able to identify it so the identification made in the presence of Prosecutor Escobar to the effect that it was JOVITA GARCIA would have remained valid. On the other hand, removal of the body meant that the new exhumation could not be done, with the result that the position of Senator Melgar and of Prosecutor Granda could not presumably be refuted.
Accordingly, in light of the existing evidence the Commission concludes:
- That the body taken to the Cangallo hospital from Pucutuccasa mountain was that of JOVITA GARCIA, who was abducted and killed by soldiers together with ALEJANDRO ECHACCAYA and SAMOEL GARCIA PALOMINO.
- That Senator Melgar's criticism of the procedure followed by Prosecutor Escobar is unfounded.
33. Regarding the events that occurred on June 29, 1988
On July 14, 1988, the Commission received a complaint to the effect that on June 29 of that year, various people were eyewitnesses as GUZMAN BAUTISTA PALOMINO, GREGORIO IPURRE RAMOS, HUMBERTO IPURRE, BENIGNA PALOMINO DE IPURRE and CATALINA RAMOS PALOMINO were arrested in their homes in Cayara by uniformed members of the Armed Forces, who took them away in an Army truck to an unknown destination. The first two were important witnesses of the earlier events in Cayara; the second-named had made a statement before Prosecutor Escobar while the first-named had made statements to the parliamentary investigative commissions and to the Peruvian press. The other three are the father, mother and sister, respectively, of Gregorio Ipurre.
That complaint was conveyed to the Government on July 18, Thus far, there has been no reply, even though the complaint was sent again on February 22, 1989 and September 7, 1989, noting possible application of Article 42 of the Commission's Regulations.
The complaint had previously been formally filed with Special Prosecutor Escobar on July 8, 1988. The prosecutor took the testimony and, in his report, stated that he considered that the persons named had been detained and caused to disappear by the military forces.
In connection with this event, the Commission took the following especially into account:
- That apart from the testimony given to Prosecutor Escobar (see point 7), concerning this abduction and disappearance, several eyewitnesses personally told the director of Americas Watch -- according to the latter's testimony before this Commission -- that the abductions were carried out at night by uniformed Army personnel and with violence. According to that testimony, relatives of the people concerned watched as their loved ones were taken to the permanent base that the Army had set up in Cayara on May 18. Other residents watched as, in the early morning hours, the detainees were forced to climb on board an Army truck which then headed in the direction of the military base at Huancapi. Accordingly, in light of the existing evidence the Commission concludes that:
- Military forces abducted and then caused the disappearance of GUZMAN BAUTISTA PALOMINO, GREGORIO IPURRE RAMOS, HUMBERTO IPURRE, BENIGNA PALOMINO DE PURRE and CATALINA RAMOS PALOMINO in the night of June 29, 1988.
- That these disappearances were due to and connected with the fact that the two first-named had made statements and public accusations against the military in connection with the central events under analysis.
34. With respect to the deaths of witnesses on December 14, 1988
As noted earlier, JUSTIANIANO TINCO GARCIA, FERNANDINA PALOMINO QUISPE and ANTONIO FELIX GARCIA TIPE were killed on that date by hooded persons as they were travelling in a truck carrying around 15 people, when it was stopped near Cayara. The complaint states that the hooded men were presumably linked to the military forces. It also states indicated that the other passengers were told to get out and continue on foot, and that they would be killed if they reported what had happened.
The Commission took the following into particular consideration when examining this incident:
- The three were important witnesses to the central events under analysis and the first two, the Mayor of Cayara and the Secretary in the Mayor's Office, respectively, had testified to Prosecutor Escobar, other authorities and the press, stating that the military were responsible.
- It is clear that the assassins knew who it was they wanted to kill and picked them out from among the other passengers.
- Their deaths continued a pattern of annihilating the principal witnesses to the events in Cayara.
- Despite repeated requests from the Commission, the Government has not replied to this complaint, and has not initiated any investigation into the matter.
- The Melgar Report (see point 11) contends that the Mayor's Office was controlled by subversive elements, which seems to be indicated by the military's animosity toward the victims.
In view of the foregoing, the Commission concludes that agents of the Peruvian State, presumably military, were the authors of the violent deaths of JUSTINIANO TINCO GARCIA, FERNANDINA PALOMINO QUISPE and ANTONIO FELIX GARCIA TIPE, the day of December 14, 1988, motivated by the fact that they were witnesses to the events in Cayara in May of that year.
35. With respect to the death of MARTHA CRISOSTOMO GARCIA
According to complaints the Commission received and transmitted to the Government, on September 8, 1989, eight hooded men dressed in military uniform entered the house of MARTHA CRISOSTOMO GARCIA, in the Cooperativo Ciudad de las Américas neighborhood, San Juan Bautista de Huamanga, Ayacucho, at three in the morning, shot her several times and killed her.
Martha had made a statement in front of Prosecutor Escobar on the central events, had identified the body of her aunt Jovita García, and had made statements to the Congressional Committee and the press.
When analyzing this event, the Commission has considered the following in particular:
- That the deceased was a very important witness, because she had been present at and testified to a number of the key elements in this case, and had leveled direct charges against General Valdivia.
- That she had been detained for fifteen days at the Huancapi Base, after the central events, and was released when human rights organizations interceded on her behalf.
- That she had left Cayara for the sake of her safety.
- That to ensure her safety Prosecutor Escobar arranged for her to be transferred from Cayara to Huamanga, where by his order she was provided with guarantees throughout the entire duration of the investigation. That when the Director of the Huamanga hospital ordered her to return to Cayara on November 19, 1988, she requested Special Prosecutor Escobar to arrange for her to stay in Huamanga, which he did.
- That even though there were numerous witnesses to the murder who were drawn to the scene by the deceased's screams, and even though three bullets were found in her body, the investigation turned up no evidence whatever, nor did it identify the bullets; a decision by the Provincial Prosecutor of Ayacucho, dated January 18, 1990, temporarily archived the case.
- That in spite of repeated requests of the Commission (see point 4), the Government has not sent any information in connection with this case, which is being processed by this Commission.
- That as note before, this is a part of a pattern to wipe out the principal witnesses to these events who had testified that the military forces were responsible.
In consequence, in light of the existing evidence, the Commission concludes that:
- Agents of the Peruvian State murdered MARTA CRISOSTOMO GARCIA in order to prevent her from providing any further testimony in the case under analysis.
ANALISIS OF THE PROOF AND CIRCUMSTANTIAL EVIDENCE
36. There is controversy surrounding some of the proof and circumstantial evidence presented before this Commission, so that the Commission believes it is important to examine their merits.
37. With respect to the competence of Prosecutor Escobar to conduct the investigation into the events
From the telex and official communications that the Commission has in its possession, and that are mentioned above, it is clear that the highest-ranking authorities of the Department of Justice instructed and specifically confirmed the assignment of this investigation to Prosecutor Escobar, who was also the Special Prosecutor in charge of disappearances in the area of Ayacucho. This special prosecutor's office was created precisely because of the failure of the Provincial Criminal Prosecutors to investigate these cases and because of their inability to obtain from police and military authorities the necessary cooperation.
The competence of Prosecutor Escobar to investigate this case was acknowledged by his superiors in the Department of Justice, as well as by the military authorities, despite the many obstacles the military authorities put in his way, which are analyzed later. Moreover the court authorities of Ayacucho ultimately upheld his competence with respect to one of the principal inquiries, which Senator Melgar tried to have nullified.
Furthermore, to refute Senator Melgar's charge of an alleged "usurping of functions" one need only point out that had that been the case, considering the importance of this case and of the presumed crime, the least that the Attorney General of the Nation might have done would be to institute some sort of administrative criminal action, but that was never even attempted.
38. With respect to the list signed on May 22 by those who allegedly disappeared and died
One of the key pieces in the Government's response is the Melgar report, which attaches central importance to a list of persons who were summoned by the military authorities at Cayara on May 22 (one week after the central event of the 14th and 15th of May), persons who signed either for themselves or for relatives to demonstrate that they were alive and present.
The signatures and fingerprints on those lists, one of "alleged deaths" and another of "alleged disappearances," (hereinafter: "lists of supposed victims") were calculated to demonstrate that the individuals in question were alive. Those lists had a dual purpose:
- to demonstrate that the complaints made were groundless, and
- to publicly demonstrate that those complaints were malicious and intended to discredit and thwart the Army's antisubversive activities.
To analyze them, the Commission has taken two factors into account: the context in which these signatures were taken and those who signed it.
As for the first point, it is obvious from the statements made by several witnesses, and not refuted by the Government, that "the list of supposed victims" were signed inside the base established by the military, in the very place where other townspeople had been forcibly taken and presumably tortured and from which a number had disappeared. Statements made under such circumstances obviously are not credible.
However, what is at issue here is not a declaration but rather a record of their very existence, a demonstration that they were alive. If one accepts that the signatures were made by the persons named there, or by their next-of-kin who are attesting to their being alive, the question is whether those names belong to people who had earlier been reported dead and missing and whether all of them are there.
Therefore, the names must be cross-checked with reliable reports filed prior to that date. At around that time, the Commission received a number of complaints, which added to or made adjustments to the list of victims, as better information was being obtained as to the whereabouts of missing persons or allegedly dead persons, their names, or whether they had been released or had reappeared. And so it has reports in its file from May 18, May 20, May 24 and May 25 of 1988 (see point 1). Each one of those complaints, since the one of May 20, had lists of victims or reported the names of people who had reappeared or had been released.
The results of the cross-check of the lists show that:
a) Of the 79 people reported to the Commission and to the press and national authorities prior to May 22 as either dead or missing, the lists of "alleged victims" include 37; in other words, there are 42 names that do not appear on either of these lists.
b) The lists of supposed victims include three other names for whom there is no evidence of their having been reported previously as victims.
c) That one of the institutions filing a complaint (APRODEH) also made public and informed the Commission at the same time that individuals who had previously been reported as victims had reappeared or been released. In effect, 18 of the people on the list that that institution supplied of persons who have reappeared also appear on the "lists of supposed victims" presented by the Government; the institution reports another 4 people, released by the Government, whose names do not appear on the "lists of supposed victims" presented by the Government.
Summarizing, the Commission concludes that the document in question does not refer to and is thus unable to disprove the numerous cases of deaths already reported as of that time and of other persons whose death or disappearance was reported thereafter. Those reported to the Commission by Americas Watch and Amnesty International.
Furthermore, the fact that human rights institutions made public and sent to this Commission at that time, similar lists of persons who had either reappeared or been released, shows that the institutions filing the complaints with the Commission were not acting in bad faith or attempting to misrepresent the facts for political purposes, as the Government alleges; instead, it shows that those institutions were monitoring, in a proper and serious manner, a situation where it was difficult to get detailed information that was constantly changing.
39. As for the list of victims presented in the Report of Prosecutor Escobar
In his resolution of October 13, 1988 (see point 7), Prosecutor Escobar indicates a series of casualties, listing deaths, disappearances and individuals who were arrested and later released.
Cross-checking those lists with the remaining evidence, including the list of "alleged disappearances" and "alleged deaths" that were signed to attest to the fact that they were alive on May 22 (see point 38), the Commission concludes the following:
a) That of 69 victims reported by Escobar as dead, tortured or disappeared, 45 are completely consistent with the other complaints and do not appear on the "lists of supposed victims."
b) That among these 45 cases that are uncontested by any other complaint or countercomplaint, are all of the victims of the events that occurred in Ccechua on May 14; all of the statements concerning that event are unanimous and concordant.
c) That the remaining 24 are cases of individuals who were originally reported as missing and who later signed the list of victims who were allegedly alive, but whom Prosecutor Escobar reports as "unable to locate as of the date of his report."
Bearing in mind that Prosecutor Escobar based his assertions on statements made by witnesses who reported these people as missing, this may explain the apparent contradiction regarding this group of persons, since:
- A number of them were detained or disappeared after May 22 (the date of the list of supposed victims), which is why Prosecutor Escobar included their names.
- The list of "supposed victims" was signed at the request of and in the presence of military personnel. The individuals who were signing had been arrested and released (and in some cases tortured). After signing, they may have been allowed to leave Cayara or go into hiding, making it impossible for Prosecutor Escobar to locate them. He would thus keep them on the list of people he was unable to find.
The Commission points out that none of the victims named in the complaint presented by Americas Watch to this Commission, dated November 7, 1988, appears on the lists of alleged victims who are alive, except for cases of individuals who either disappeared or were killed subsequent to May 22.
40. With respect to the interpreter Alfredo Palomino Quispe Arango
The Melgar Report contends that Prosecutor Escobar appointed this individual and that the latter, working in collusion with Prosecutor Escobar, lied about what the witnesses were saying; it further contends that there were contradictions as to his identity in a number of the pieces of testimony, since he had used the identification number of some of the witnesses as his own.
Melgar's statement that Quispe obtained his job through Escobar is wrong, since in this regard the Commission notes that this particular individual received his official appointment to work in the Office of the Special Prosecutor on December 28, 1984, under order 1455-84-MPFN, years before Prosecutor Escobar was assigned to that office.
As to falsification of witnesses' testimony by the interpretation from Quechua to Spanish, there is no evidence in that regard; on the contrary, in fact, many of the witnesses could speak Spanish also and had elementary or secondary educations; their testimony were concordant with the ones that the interpreter rendered, which indicates that the interpretation was correct.
Furthermore, the errors in the personal identification numbers of the interpreter were explained by Prosecutor Escobar in a letter to the Chief Criminal Prosecutor, on November 24, 1988 (stating that in haste, all of the identification numbers, those of the witnesses and of the interpreter -- were taken down on a piece of paper and that when they were recopied, the wrong numbers were put down in three cases); it should be noted here that the mix-up with identification numbers has no logical connection whatever as grounds for contending that his interpretation between Quechua and Spanish was incorrect.
The allegation that the interpretation he rendered of the testimony given by Teodora Apari Marcatoma was false, based on the fact that she later withdrew her testimony, is refuted by the circumstances that uphold the original testimony, where the individual in question had served as interpreter (see point 27).
The Commission therefore concludes that there is no reason to doubt the interpretation rendered by this staff member of the Public Prosecutor's Office, Alfredo Palomino Quispe Arango.
It further concludes that the efforts of the Melgar Report to discredit his testimony was part of a pattern calculated to exonerate the agents of the State of any blame, which was what the Senators on the Commission who were members of the then governing party attempted to do by way of that report.
CONCERNING THE OBSTRUCTION OF JUSTICE
41. The various complaints filed with the Commission allege facts that would also constitute systematic violation on the part of various organs of the State, of the guarantees protected under Articles 1 (Obligation to Respect Rights), 25 (Right to Judicial Protection) and 8 (Right to a Fair Trial). That systematic violation would also be an important factor in weighing the evidence and establishing blame. It is, therefore, appropriate that the Commission should examine those allegations.
42. Concerning the investigation by the Commission composed of noted public figures (Committee of Notables)
As reported, once it learned of the events, the Government immediately appointed a commission of notable public figures, among them the Minister of the Interior, the Minister of Defense, the Auxiliary Bishop of Lima, Monsignor Beuzeville and the President of the Bar Association of Peru, Dr. Raul Ferrero, who after making a direct observation went to Cayara by military helicopter on May 20.
All of the reports indicate the following:
- That numerous efforts were made to prevent the Commission from moving about freely, and so it never even visited the Cayara Town Hall, nor did it have a chance to speak freely with the townspeople, since only a few were allowed to approach it and always in the presence of military.
- That it was not taken to Ccechua even though the members of the Commission had received numerous complaints in Cayara to the effect that deaths had occurred in Ccechua and that there were graves there.
- That by not supplying transportation and unnecessarily delaying the Congressional Commission at checkpoints on roads, police and military delayed the arrival of the Congressional Commission and of the group consisting of the Special Prosecutor, so that it was unable to be in Cayara at the time the Government Commission was there (see point 43).
From the foregoing, the Commission concludes that police and military made intentional efforts to obstruct the Commission's independent observations; because of that, the Commission had limited and distorted access to possible sources of information and evidence of what had happened.
While it was a commendable action by the Government to appoint this ad-hoc Committee, the manipulation of their visit is an act of obstruction of justice. It must be noted that afterwards some of its members testified before the Senate Commission and distanced themselves from the official version.
43. With respect to the prosecutor's investigation and subsequent measures
The Commission has examined the following in this regard:
a) That on May 17, 1988, the Council of Ministers sent a message to the Attorney General of the Nation, Dr. Hugo Denegri Cornejo, requesting that he launch an inquiry; in that document they stressed that "the Government should provide all of the facilities and guarantees that the Attorney General deemed necessary for him to discharge his function fully..."
- That that same day, the President of the Republic visited Cayara personally, where he had an opportunity to speak with relatives of the victims.
b) That to take charge of the matter, the Attorney General of the Nation appointed the Special Prosecutor for Disappearances, Dr. Carlos Escobar; according to the telex dated May 24, sent on behalf of the Chief Criminal Prosecutor, he was to "conduct a thorough and impartial investigation into the events that occurred in ... Cayara..., for which we have the support of the President of the Council of Ministers."
c) The only way to get to Cayara is by helicopter or by overland transport.
On May 20, Prosecutor Escobar tried to reach Cayara from Ayacucho, but he was not given a vehicle by the Political military command that was obligated to do it by the mandate of the Council of Ministers cited above. Finally, the Senate Commission headed by Diez Canseco which had just been given a vehicle by the Investigating Police at 5:30, reached Ayacucho at 9:30 p.m., and there met with Escobar and the medical experts. They left Ayacucho on May 21 at 5:00 a.m., were held up for 3 hours at the Pampas River by military and again at Huancapi for an hour and a half; finally they allowed them to go on, but they held back the medical experts. The result of the refusal and the delays was that: 1) the prosecutor and the Senate Commission were unable to be in Cayara at the same time as the members of the Government Commission (Ministers, a Bishop and the President of the Bar Association); and 2) not allowing the medical experts to pass they prevented access ato the bodies and performance of autopsies that day, thereby obstructing justice, which is a crime under Peruvian law.
d) That on May 21, when the Prosecutor Escobar and his party tried to go to Erusco for an on-site inspection of the place where the ambush had taken place, military forces prevented them from doing so, saying that there was shooting in the area; the Cangallo Judge recorded this:
e) That initially, Prosecutor Escobar was not given any sort of police protection even though he requested it, and later was assigned only one trooper, who was then withdrawn. Even though he had received threats and asked for protection from the Political-Military Command, that protection was not given to him.
f) "Captain Palomino" tried to intimidate the witnesses who were to make statements before Prosecutor Escobar, and the latter had to file a complaint with Col. Córdova, who was also in Cayara on May 21; photographs were taken of the Captain, who was recognize by many of the witnesses as the leader responsible for part of the events in Cayara after May 15.
g) The Political-Military Command even though it was asked by the General Attorney did not provide a helicopter for the second inquiry at Pucutuccasa, after the bodies were discovered there.
h) The military authorities did not supply the Attorney General with the information that would make it possible to identify "Captain Palomino"; Prosecutor Escobar had sent a photograph of said officer to the Attorney General in June 1988, and then again in September 1988. It was the officer who witnesses said was the leader immediately responsible for the violations. The Commission does not have information that the Attorney General of the Nation ever took that measure.
i) While the investigation was in full swing, on October 3, 1988, and in his office in Ayacucho, the Special Prosecutor Escobar received a communication from the Attorney General of the Nation to the effect that he was to conclude the investigation within 10 days. On October 4, he sent a request to the Chief of the Air Force in order to get a helicopter to go to Cayara, as he had received information that the bodies were at Chincinga. He had received that information from Fernandina Palomino, who would accompany him to Chincinga.
The Air Force chief replied that he could only authorize the helicopter upon orders from General Valdivia. Because of that he requested an automobile to go overland, but on October 6 he received a telex from the Attorney General summoning him to Lima. In Lima, he met with Dr. Denegri, who prohibited him from traveling to Ayacucho and ordered him to remain to complete the case file. The Prosecutor completed completed the file and his report on October 14, which was presented that day, on orders from the Attorney General, to the Chief Criminal Prosecutor, Dr. Pedro Mendez Jurado, who in turn forwarded it to Dr. Hugo Denegri Cornejo.
j) That according to testimony by Prosecutor Escobar before this Commission, when he had completed his report, on October 18 he received a copy of a resolution that, for reasons of service, terminated his services as Special Prosecutor in Ayacucho and ended his role in the case. In this way, he was prevented from pursuing his investigation of the death of witness Gregorio Ipurre, an investigation that might have turned up new evidence.
k) That according to testimony of Prosecutor Escobar before the Commission, at that point in time, Prosecutor Escobar had 572 investigations in progress concerning persons who had disappeared. In his testimony, he said that he was warned to turn over all of the files, in order, within four days. He did so, delivering them to the Chief Criminal Prosecutor of Ayacucho. In those files, there was evidence of responsibility on the part of the Armed Forces; all that remained was to identify, by name, the officers responsible, for which a request from the Attorney General of the Nation to the Minister of Defense or Joint Command was needed.
Prosecutor Escobar declared that the Attorney General of the Nation, Dr. De Negri Cornejo, ordered that the 572 cases containing evidence that members of the army in Ayacucho and Apurimac had been repeatedly violating human rights in that area, be dismissed.
l) Prosecutor Escobar also declared that to replace himself, a Provincial Prosecutor was appointed in Cangallo to take charge of the case. The Prosecutor that was there was terminated without reason. Dr. Hidalgo Pasco was appointed to replace him. They wanted to assign the investigation to him, but he resigned overnight. The latter told Prosecutor Escobar that he had too many years of service and did not wish to spoil it by doing what he had been ordered to do. In his place, Prosecutor Granda was named.
m) According to that same testimony, up until then the Provincial Prosecutor of Cangallo was in charge of the jurisdiction of Fajardo, where there was no prosecutor appointed. Shortly after Dr. Granda began his investigation, someone was appointed to the post of Fajardo Public Prosecutor. The new public prosecutor of Fajardo was sworn in before the ranking Judge of Huamanga and from there he travelled to the area, where he spoke with the Judge of Cangallo and asked him for the files on the Cayara case. There they realized that it was up to him to investigate Cayara. The next day this new prosecutor was terminated, and the case was taken again by Prosecutor Granda.
n) Prosecutor Granda's report was presented on November 24 and in that report, based on limited testimony, that prosecutor ordered that the cases be filed (see point 11). The testimonies, as noted earlier, were taken inside Huancapi military headquarters, as the Judge of Cangallo had told Prosecutor Escobar. Other points in this report (see point 44) indicate that that testimony was hardly credible. In that report Prosecutor Granda tries to demonstrate that the body found was not that of Jovita García; attempts to discredit the work of Prosecutor Escobar and to cast doubts about the conduct of the interpreter attached to the Office of the Public Prosecutor.
o) The resolution of Prosecutor Granda was nullified by the Attorney General of the Nation, Manuel Catacora, on September 23, 1989, after another major witness, MARTA CRISOSTOMO GARCIA (see point 35), was murdered. That murder received heavy coverage in the Peruvian and world press. The decision was nullified on the grounds that it was flawed, and a new investigation was ordered. No corrective action against Prosecutor Granda was ever taken.
p) According to his statement and copies of the respective decisions, when his appointment to the Ayacucho post was terminated, a decision of the Attorney General of the Nation, dated April 14, 1989 transferred Escobar to the post of the Office of the Chief Prosecutor of Loreto. According to his statements, he dealt with drug trafficking and smuggling cases, and cases of related judicial corruption. There again, his investigations were thwarted until finally, by Decision 441 dated July 31, 1989, the Attorney General of the Nation, Catacora González, terminated his services with the Department of Justice. Escobar filed an appeal against the decision terminating his services, an appeal that -- according to his statements -- was favorably received by the presiding judge, who found it well substantiated and who ordered the Attorney General of the Nation to reinstate him as a Prosecutor. Nevertheless, after receiving several threats he decided to abandon the country.
q) Finally, the new investigation of Cayara was assigned to the Provincial Prosecutor of Ayacucho, Dr. Rubén Vega, who issued his report on January 23, 1990. That report does not reflect any additional inquiries. Instead, basically it draws on the testimony taken by Dr. Granda, which had earlier been nullified, and upon the report of the military themselves. Even though it accuses the "people of Cayara" of general complicity in the ambush of June 13, it offers no evidence in support of the accusation. It orders that the cases be filed once and for all.
44. Harassment and disappearance of witnesses and twisting of testimony
According to the reports and documents the Commission has in its possession, during the investigation of the events there have been continuous instances in which, by one means or another, efforts have been made to alter the testimony. There is evidence that this has happened in a number of cases examined in the analysis of the events (points 22 to 35), among them the following:
a) The fact that when the Special Chief Prosecutor Escobar was replaced by Prosecutor Granda, the latter obtained from a number of witnesses retractions of their earlier testimony. According to Prosecutor Escobar's statements to the Commission, those retractions were obtained at Military Headquarters in Huancapi, where the witnesses knew people who had either been held prisoner there or disappeared from there. A number of these retractions were not retractions at all, because the witnesses in question had never testified before Prosecutor Escobar. Others, like those analyzed below, have been discredited by other evidence. Furthermore, the entire investigation and the Final Report of Prosecutor Granda was nullified by the Chief Prosecutor after September 1989.
b) In the case of the witness Maximiliana Noa Ccayo, an illiterate woman (see point 27), her original testimony was backed up by the recent testimony of her daughter Delia, who speaks and reads Spanish, as the record shows.
c) In the case of the witness Teodora Apari Marcatoma (see point 27), who told Prosecutor Granda that she was not in Cayara at the time of the events and therefore did not know what the military did, her original testimony had been taped by members of the Congressional Committee; she would later reconfirm her original statement in testimony before the Provincial Judge of Ayacucho on July 11, 1988.
d) On May 17, the military washed down the church to remove any trace of blood or human remains, according to the testimony of a number of witnesses.
e) The body of the man killed at the entrance to the town disappeared (see point 25);
f) The bodies of those killed in the church disappeared (see point 27);
g) The bodies of those killed in Ccechua disappeared (see point 28);
h) The bodies found by Prosecutor Escobar in Pucutuccasa disappeared (see points 30, 31 and 32);
i) Using irrelevant details, an attempt was made to discredit the job of the interpreter who worked for the Prosecutor's office, in order to discredit the testimony of the non-Spanish speaking witnesses (see point 40);
j) Four witnesses were the victims of extra judicial executions on December 14, 1988 (see point 34);
k) The witness Marta Crisóstomo was killed (see point 35);
l) 19 peasants from Erusco filed a complaint with the Office of the Special Prosecutor wherein they all assert that the Army pressured them to say that Jovita García had been taken by terrorists;
m) The witness Delfina Pariona Palomino's retraction in the presence of Prosecutor Granda in connection with the death of her husband is discredited because her original testimony was corroborated by that of Juana Apari Ore, who was with her when they found the bodies of their husbands (see point 28).
45. In consequence, in light of the existing evidence with respect to the obstruction of justice, the Commission concludes that:
- Throughout the proceedings surrounding the events of Cayara, there has been a systematic obstruction of justice on the part of the machinery of the State, even by the officials of the Department of Justice, by the military and by the majority of the Senate Investigating Commission.
- That that obstruction includes not only the case under analysis, but many others that have occurred in the Ayacucho area and that were being investigated by Prosecutor Escobar.
- That that obstruction of justice constitutes not only a violation of the rights recognized under Peruvian Law and the American Convention, but also serious added evidence of the responsibility of the agents of the State for the violations that occurred in that area, especially those being examined here.
- That the military investigation not only avoided any further investigation to ascertain the truth, but also served as a systematic cover-up of the unlawful conduct of members of the military.
WITH RESPECT TO THE RELATIONSHIP WITH THE INTER-AMERICAN COMMISSION OF HUMAN RIGHTS
46. Throughout the entire processing of these cases, and in spite of numerous opportunities that the Government was offered, it maintained a posture of silence, which it broke only on two occasions, once to assert, just days before the Commission was scheduled to meet at the 76th Period, that the domestic remedies had not been exhausted, since investigations were in progress, and a second time in May of this year, 1990, stating that all of the proceedings and investigations in progress had been completed and were either filed or dismissed.
The only information supplied by the Government in the central case (10.264) were the conclusions of the majority report of the Senate Commission and the final report of the provisional Prosecutor of Ayacucho, as well as the report of the Political-Military Commander.
In cases wherein witnesses such as Prosecutor Escobar testified in hearings before this Commission, hearings at which representatives of the Government were present, the Government did not make any response, either then or subsequent thereto.
In the cases of the witnesses who were murdered subsequent to May 1988, the Government has yet to send any response, despite repeated requests for information by the Commission (see points 3 and 4). (Cases 10,206, 10,264 and 10,276.)
This lack of cooperation with the Commission on these cases and the nature of the violations is such that it would be improper to seek a friendly solution to the matter founded upon respect for the human rights upheld in the American Convention on Human Rights, in the sense indicated in Article 48.1.f thereof.
All these conclusions are reaffirmed by the fact that there are numerous complaints before this Commission of massacres of villages by the Armed Forces, where the Government has not cooperated with the Commission in its efforts to deal with these cases and shed light on them or resolve them; there are also dozens of individual or group cases that follow the same pattern, cases in which the Commission has declared that it found that agents of the Peruvian State had violated human rights, especially the right to life, the right to humane treatment and the right to freedom. (See IACHR Annual Reports, 1988, 1989 and 1990).
- That the Inter-American Court of Human Rights has declared that Article 1(1) of the Convention "charges the States Parties with the fundamental duty to respect and guarantee the rights recognized in the Convention. Any impairment of those rights which can be attributed under the rules of international law to the action or omission of any public authority constitutes and act imputable to the State, which assumes responsibility in the terms provided by the Convention." (Godínez Cruz judgment, paragraph 173). In that respect the Court has said the obligation to "ensure" the free and full exercise of the rights recognized by the Convention "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." (idem. par. 175).
WITH RESPECT TO THE COMPETENCE OF THE COMMISSION
47. Given the nature of the violations and the fact that the parties have accepted the competence of the Commission in respect of these cases, in accordance with its faculties under the American Convention on Human Rights, and since the grounds for the complaints persist so long as no one is found guilty of or responsible for the events, the Commission considers that these cases are within its competence.
CONCLUSIONS AND RECOMMENDATIONS
48. Based on the background information in the instant cases and the foregoing considerations,
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
1. Declares that the Government of Peru has violated Articles 1 (Obligation to respect rights) in conjunction with the rights recognized in Articles 4 (Right to life), 5 (Right to humane treatment); 7 (Right to freedom), and 21 (right to private property), upheld in the American Convention on Human Rights, of which the Republic of Peru is a State Party, by its responsibility in the extrajudicial executions, tortures, illegal imprisonment and disappearances, and property damages of the following Peruvian citizens who were victims of the action of security forces in the area of Cayara, Ayacucho and thereabouts, and especially of the following persons:
ESTEBAN ASTO BAUTISTA
EMILIO BERROCAL CRISOSTOMO
PATRICIO OCAYO CAHUAYMI
TEODOSIO NOA PARIONA
INDALECIO PALOMINO TUEROS
SANTIAGO TELLO CRISOSTOMO
DAVID OCAYO CAHUAYMI
SOLANO OCAYO NOA
JOSE OCAYO RIVERA
ALEJANDRO CHOCCNA ORE
ARTEMIO GONZALEZ PALOMINO
MAGDALENO GUTIERREZ HUAMAN
ALFONSO HUAYANAY BAUTISTA
IGNACIO IPURRE SUAREZ
SEGUNDINA MARACATOMA SUAREZ
EUSTAQUIO ORE PALOMINO
ZACARIAS PALOMINO BAUTISTA
AURELIO PALOMINO CHOCCNA
FIDEL TEODOSIO PALOMINO SUAREZ
FELIX QUISPE PALOMIN0
DIONISIO SUAREZ PALOMINO
PRUDENCIO SULCA HUAYTA
EMILIANO SULCA ORE
ZOSIMO GRACIANO TAQUIRI YANQUI
IGNACIO TARQUI OCAYO
TEODOSIO VALENZUELA QUISPE
GUZMAN BAUTISTA PALOMINO
GREGORIO IPURRE RAMOS
BENEDICTA PALOMINO DE IPURRE
CATALINA RAMOS PALOMINO
JUSTINIANO TINCO GARCIA
FERNANDINA PALOMINO QUISPE
ANTONIO FELIX GARCIA TIPE
MARTHA CRISOSTOMO GARCIA
HERMENEGILDO APARI TELLO
FELIX CRISOSTOMO GARCIA
2. Declares that the Government of Peru has violated Articles 8 (Right to a fair trial) and 25 (Right to judicial protection) of the American Convention.
3. Recommends to the Government of Peru that it launch an exhaustive and impartial investigation into the facts denounced to find the person or persons responsible for the violations indicated in operative paragraphs 1 and 2, and described in the body of this report, to bring to trial and punish those responsible.
4. Recommends to the Government of Peru that it inform this Commission of the findings of the investigation recommended in the above operative paragraph within sixty days of the date of this Report.
5. Recommend to the Government of Peru that fair compensation be paid to the victims and/or their next of kin, and that it report on this to the Commission within the period established in item 4 above.
6. Given that the Republic of Peru has recognized the jurisdiction of the Inter-American Court of Human Rights, it declares that it will join these cases and refer them to the said Inter-American Court of Human Rights, in accordance with the provisions of Articles 51 and 60 of the Convention.
7. Requests the Peruvian Government to guarantee the safety of all witnesses and relatives of the victims indicated in the first operative paragraph.
8. Decides to communicate this report to the Government of Peru and to the claimants, indicating that it cannot be made public.