January 18, 1994, the Inter-American Commission of Human Rights (hereinafter,
"the Commission") received a complaint denouncing the responsibility
of the Republic of Peru (hereinafter, the "Peruvian State, the
"State, or "Peru") for the forced disappearance of Martín
Javier Roca Casas, aged 27, a student at the University of Callao and Press
and Propaganda Secretary of that university's Student Federation.
his disappearance, on August 17, 1993, Martín Roca took part in a protest
march along with other students from the University of Callao.
During the march, the students caught two strangers filming the event.
They presumed they were journalists and demanded that they identify
themselves. When they refused,
there was a row during which the students grabbed the video tape and
immediately destroyed it.
11.15 p.m. that same day --August 17-- the people who had been filming went to
Roca Casas' home demanding to know where the tape was.
One of them identified himself as rank three naval officer in the
Peruvian Navy, Percy Tarazona Estevez. Roca
Casas denied possession of the tape and they went away, only to return shortly
thereafter accompanied by a group of Navy personnel aboard a military vehicle.
This group proceeded to ransack the house in search of the tape.
following day, August 18, Tarazona returned to Roca's house. The victim's
father refused to talk to him and requested help from the police.
The police then took officer Tarazona to the Carmen de la Lengua police
station. There officer Tarazona
contacted an Intelligence officer who called himself Commander Ponce and
arrived at the police station in order to confirm that Tarazona was engaged in
intelligence activities under his command.
Commander Ponce stated that he was only interested in recovering the
tape because it contained pictures of individuals under observation because of
their suspected links with subversion and that there was no operation underway
against Roca Casas.
that day on, according to the petitioner, the Roca Casas family home was
subject to constant surveillance by individuals presumably belonging to the
October 5, 1993, Martín Javier Roca Casas left his house at 5 p.m. and has
not returned since then. Martín
Roca's father denounced his disappearance to the Assistant Prosecutor for
Human Rights (Fiscal Supremo Adjunto) who delegated the task of carrying out
inquiries to the Third District Attorney's Office for Criminal Investigations
petitioners point out that the events described constitute a case of forced
disappearance, as a result of which the Peruvian State is guilty of violating
articles 4 (Right to Life), 5 (Right to Humane Treatment), 7 (Right to
Personal Liberty), 8 (Right to a Fair Trial), 25 (Right to Judicial
Protection) set forth in the American Convention on Human Rights (hereinafter,
BY THE COMMISSION
received the denunciation, and without prejudging its admissibility, the
Commission registered the case as Case No. 11.233 and transmitted the
pertinent parts of the petition to the Peruvian State in a communication dated
January 18, 1994, asking it to supply the relevant information.
The State's reply
a Note dated July 1, 1994, the Peruvian State replied to the Commission
stating, among other things, that:
. . . in an Official Communication, No. 088-94-MP-FN, dated April 14,
1994, the Prosecutor in charge of the Prosecutor's Office for the Ombudsman
reported as follows: after making
appropriate inquiries, on April 7 this year the District Attorney for Callao
of the Third District Attorney's Office for Criminal Investigations brought
criminal charges against Peruvian Navy Commander Elías Manuel Ponce Feijoo
and OM3 Percy Tarazona Esteves for the crime of forced disappearance of
Martín Javier Roca Casas.
10. In a
Note dated July 5, 1994, the State expanded on its reply, indicating that Navy
High Command had ordered that two lawyers be contracted to defend Commander
Manuel Ponce Feijoo and OM3 Esteves Pérez Tarazona (sic), in the proceedings
against them on charges related to the forced disappearance of Martín Roca.
In addition, the Government pointed out that this case was under review
by the Working Group on Forced or Involuntary Disappearances of the UN Human
Rights Commission... which had received the petition before the Inter-American
Human Rights Commission.
July 19, 1994, the Commission transmitted the State's reply to the petitioners
and asked them to submit their observations within 45 days.
Rejection of the State's request that the case be filed
means of a communication dated August 2, 1994, the Commission rejected the
admissibility argument presented by the State alleging that the presentation
of a complaint before the United Nations Working Group constituted an obstacle
to its admissibility before the Commission, pursuant to Article 47.d of the
Convention. The Commission relied
on its practice and jurisprudence, in which it had been established that the
procedure before the Working Group on Forced or Involuntary Disappearances did
not produce an "effective settlement" of the violation, pursuant to
the terms of Article 46.1.c of the American Convention. Consequently, the Commission notified the State that:
In accordance with the provisions of Article 39, paragraph 2 of the
Regulations of the Commission, the Commission's interpretation is that the ban
on presenting the same case to other international organizations only applies
with regard to bodies of a similar nature with similar powers of decision as
those of the IACHR. The IACHR
considers that the nature and powers of decision of the United Nations Working
Group on Forced or Involuntary Disappearances differ from those of the IACHR
and that the prohibition mentioned in its note dated July 5, 1994 is not
Additional information presented by the State
13. In a
Note dated November 8, 1994, the Peruvian State presented additional
information indicating the existence of criminal proceedings regarding the
forced disappearance of Martín Javier Roca Casas.
14. In a
communication dated December 15, 1994, the Commission transmitted to the
petitioner the additional information provided by the State, requesting
comments within a period of 45 days.
15. In a
Note dated February 9, 1995, the Peruvian State presented to the Commission
information regarding progress in the criminal proceedings brought on account
of the forced disappearance of Martín Roca.
information was passed on to the petitioner in a communication dated March 2,
17. In a
note dated March 27, 1995, the Peruvian State informed the Commission that the
Prosecutor's Office for the Ombudsman had reported that:
. . . in case No 711-94 against Elías Feijoo and another for the
forced disappearance of Martín Roca Casas, the First Higher Criminal Court of
Callao resolved on November 17, 1994 that there was "no justification for
a trial of those allegedly responsible."(Emphasis added)
This information was transmitted to the petitioner in a communication
dated April 21, 1995.
18. In a
note dated May 30, 1995, the Peruvian State presented additional information,
enclosing a report written by the Ministry of Defense and dated May 8, 1995.
This information was forwarded to the petitioner in a communication dated June
Observations submitted by the petitioner
September 25, 1995, the Commission received the observations of the
petitioner, which stated:
. . . that in the criminal trial referred to by the Peruvian
Government, judgment had already been passed by the Third Criminal Court of
Callao, the Criminal Chamber of the Superior Court of Callao, and the Criminal
Chamber of the Supreme Court, ordering the case to be filed.
All judicial instances declared the accused not guilty, so that they
were not brought to trial, despite the fact that the evidence brought by the
plaintiff was not examined.
petitioner pointed out that the judicial authorities did not request the
presence of the soldiers and police who took part in the search party
operation carried out in the Villa Señor de los Milagros shanty town, where
the victim lived, on October 5-6, 1993, the date the victim disappeared.
Nor were statements taken from members of the Peruvian Navy's
Intelligence Service. Consequently,
the petitioner concluded that the criminal proceedings did not fulfill the
requirement that they be adequate and effective, given that the investigations
were unable to determine the whereabouts of the victim.
petitioner also pointed out that, through the Amnesty Law (Law No. 26.479),
the Peruvian State ordered the definitive filing of all judicial cases and
sentences brought against all the military personnel accused, tried, or
condemned for violations of human rights committed between 1980 and June 1995.
In this way, the Peruvian State banned any investigation, inquiry, or
indictment with respect to the occurrences and offenses eligible for amnesty,
which means that this case cannot be reinvestigated.
On July 2, 1995, the petitioner adds, Law No. 26.492 was promulgated,
extending the scope of the amnesty and forbidding its interpretation by the
the petitioner, the promulgation of the amnesty laws constitutes a violation
of the obligation to respect human rights enshrined in the American Convention
on Human Rights, as well as a violation of the right to effective protection
against violations of human rights, implying a restriction of human rights
guarantees beyond that contemplated in the Convention itself.
petitioner's observations were forwarded to the State in a note dated
September 27, 1995.
Observations of the State
November 3, 1995, Peru enclosed a copy of the resolution dated June 15, 1995,
which confirmed that there was no justification for proceeding to try Percy
Tarazona Estevez and Elías Ponce Feijoo and ordered the definitive filing of
the criminal proceedings.
November 10, 1995, the State presented an additional communication informing
the Commission that the Ministry of Justice had reported the following with
regard to the case of the forced disappearance of Mr. Martín Roca Casas:
...the proceedings began in the Third Specialized Criminal Court of
Callao (File No. 247-94), with summary charges against navy personnel Percy
Tarazona Estevez and Elías Ponce Feijoo for the forced disappearance of
student Martín Xavier Roca Casas; and against Alberto Lau Cavero for the
crime of perjury against the State. Subsequently,
the First Criminal Chamber of Callao (File No. 711-94) declared in a
resolution dated November 17, 1994 there was no justification for trying the
above-mentioned persons for lack of evidence proving their culpability.
The Supreme Court of Justice, consulted on this case, confirmed the
observations presented by the State were forwarded to the petitioner on
November 21, 1995.
Additional observations by the petitioner
27. In a
communication dated January 31, 1996, the petitioner presented his
observations regarding the State's reply pointing out that "the
Government's statement confirms previous information, restricting itself to a
brief summary of the status of the criminal proceedings with regard to the
disappearance of Martín Javier Roca Casas. Consequently, for the petitioner
it is abundantly clear that criminal proceedings ended with the Supreme Court
resolution confirming that of the First Criminal Chamber of the Superior Court
petitioner also points out that Peru's claim that no evidence exists of the
criminal responsibility of the accused in the disappearance of Martín Javier
Roca Casas is false because that evidence can be found in the judicial file;
if no more evidence was examined, it was because the judicial authorities
refused. The petitioner requests
that the Peruvian State submit the judicial file on the case as proof,
particularly since the proceedings have terminated.
29. In a
communication dated February 22, 1996, the Commission transmitted to the
Peruvian State the pertinent parts of the petitioner's observations.
Hearing before the Commission
February 21, 1996, a hearing was held at the Commission's headquarters at
which the parties orally presented their positions with respect to this case.
Observations by the State
31. In a
Note dated March 5, 1996, the Peruvian State indicated that in this case
domestic remedies had not been exhausted and that it had requested that the
case be filed because it was under review by another international body.
In the State's view, this case is also inadmissible because the
deadline established in Article 46 of the Convention for declaring the
admissibility of the petition had long since expired.
In a note dated March 26, 1996, the Commission transmitted the
information supplied by the State to the petitioner.
32. In a
Note dated April 10, 1996, the State presented a copy of the information
provided by the Attorney's Office on the processing of the criminal case
regarding the forced disappearance of Martín Roca Casas.
This was transmitted to the petitioner on April 24, 1996.
Final observations by the petitioner
33. In a
communication dated July 4, 1996, the petitioner contested the preliminary
objection regarding non-exhaustion of domestic remedies saying that it should
have been lodged at the start and not two years after processing by the
Commission began. He invoked the jurisprudence of the Inter-American Court of
Human Rights, which he considered opportune.
34. In a
Note dated July 11, 1996, the father of Martín Javier Roca Casas presented
his observations to the reply by the Peruvian State. In his view, the State has restricted itself to reporting,
late, on the status of the criminal proceedings, without the slightest
evidence to disprove the version of events he presented in his denunciation,
which is thereby confirmed. The
criminal proceedings before the judiciary were merely formal, with no interest
in carrying out a real investigation into what happened, which is no wonder,
given that of all the innumerable cases of violations of human rights, above
all disappearances, very few have reached the courts and even fewer have ended
with those guilty being sentenced.
35. The victim's father
points out that the authorities did nothing to prevent the disappearance of
Roca Casas. After the events of
August 17 and 18, 1993, his son asked the Prefecture in Callao for guarantees
for his life and personal safety and told them everything that had happened.
The Prefecture ordered the national police to protect him.
However, the police refused to carry out the order saying it was none
of their business, as the judicial file on the case records. When
the Prefecture got round to insisting that the police protect Roca Casas, it
was too late; he had already been kidnapped.
In this regard, the authorities' behavior was, at best, negligent.
Addition of Co-petitioner
letter dated November 20, 1996, Mr. Miguel Jugo Viera, the Deputy Director of
APRODEH, the Association for Human Rights in Peru advised the Commission that
it and the Center for Justice and International Law (CEJIL) had been named
co-petitioners by Mr. Javier Roca Oregón, the father of Martín Roca Casas in
Hearing before the Commission
March 4, 1997, at the headquarters of the Commission, a hearing was held at
which representatives of the Peruvian State and the Association for Human
Rights (APRODEH), appeared on behalf of the victim, in order to present the
current status of the case. The
petitioners presented a videotape which contained the testimony of various
persons and, furthermore, the parties presented their respective oral
positions, reiterating the arguments presented during the different stages of
the proceedings in this case.
AFTER COMMISSION ADOPTION OF THE ARTICLE 50
Pursuant to article 50 of the Convention, the Commission on March 11,
1997, during its 95th Regular Session, approved its article 50 report No.
15/97 concerning the present case. The
report was sent to the Peruvian State on June 11, 1997 with a request that
information regarding the measures adopted to comply with the Commission's
recommendations be presented within a period of three months, calculated from
the date of transmittal.
By Note No. 7-5-M/329, dated September 12, 1997, the Permanent Mission
of Peru to the OAS informed the Commission that the National Council of Human
Rights (Consejo Nacional de Derechos Humanos) had prepared the attached
response to the confidential report in Case No. 11.233.
response of the Peruvian State of September 12th, did not address the issue of
the measures adopted to comply with the Commission's recommendations, as set
forth in article 51 of the American Convention, but was limited to disputing
the admissibility of the case.
the Commission's 97th Regular Session, the Peruvian State requested a hearing
before the Commission, which was held on October 9, 1997, during which it
requested the Commission to declare the case inadmissible for failure to
exhaust domestic remedies.
Presentation within the prescribed period of time
42. In its
Note of March 5, 1996, the Peruvian State took the position, inter alia:
That the sixth-month period of time established in Article 46 of the
Convention for declaring the admissibility has long since passed, particularly
given the Honorable Commission has made no express mention of the matter.
preliminary exception posed by the State is baseless, since Article 46 of the
Convention points out that it is the petition or communication that must be
"lodged within a period of six months from the date on which the party
alleging violation of his rights was notified of the final judgment."
44. It is
clear that the deadline referred to in Article 46 paragraph b. does not apply
to the Commission, but to the petitioner. It is the petitioner who has to lodge his petition within six
months of the alleged violation. Nowhere
does this article state that the Commission must rule expressly on
admissibility within six months.
Javier Roca Casas disappeared on October 5, 1993 and the communication
containing the denunciation of his disappearance was presented to the
Commission on January 18, 1994, i.e. three months after it occurred.
Consequently, the petition was lodged within the period of time
contemplated in Articles 46.b. of the Convention and 38.1 of the regulations
of the Commission.
accordance with Article 44 of the American Convention, to which Peru is a
State Party, the Commission is competent to consider this case because it
deals with claims alleging violation of rights guaranteed in articles 4, 5, 7,
8, and 25, in respect of the right to life, humane treatment, a fair trial,
and judicial protection, and in Articles 1.1, 2, and 43 on the obligation of
States to respect and ensure the effective application of the Convention, to
adopt domestic legal measures to give effect to the rights and freedoms
established in the Convention, and to report back on that to the
Inter-American Commission on Human Rights.
petition fulfills the formal requirements for admissibility established in
Article 46.1 of the Convention and Article 32 of the Regulations of the
Inexistence of other proceedings
48. In its
communication dated March 5, 1996, the Peruvian State requested that the case
be declared inadmissible since it was under review by another international
instance, in this case the Working Group on Forced or Involuntary
Disappearances of the United Nations Commission on Human Rights.
The Commission rejected, on August 2, 1994 (supra, para. 12) the
Peruvian State's request, informing it that the Commission has consistently
held that the prohibition on submitting the same case to other international
organizations only applies in the case of entities of a similar nature with
similar powers of settlement to those of the Commission.
Commission informed the Peruvian State that, in its view, the nature and
powers of decision of the United Nations Working Group referred to, differ
from those assigned to the IACHR under the Convention.
For that reason, the Commission concluded that this case was not
pending in another international proceeding for settlement that prevented it
from admitting and examining the petition.
Consequently, this case cannot be declared inadmissible since it does
not duplicate a petition already examined and settled by the Commission.
Exhaustion of remedies under domestic law
50. In its
note dated March 5, 1996, the Peruvian State alleged that remedies under
domestic law had not been exhausted. To
substantiate this claim it argued that:
The messages sent by the Government of Peru in reply to requests from
the Executive Secretariat were designed to provide detailed information on the
status of the criminal proceedings brought before the Authorities and Courts
of Peru, and should not therefore be interpreted as exonerating procedures
envisaged in the American Convention on Human Rights.
Furthermore, the petitioner's observations contained in the Honorable
Executive Secretary's Notes dated September 27, 1995 and February 22, 1996 do
not really follow the procedures for observations contemplated in the American
Convention on Human Rights, since, formally, the present case has not begun
pursuant to Article 46 et seq. of the Convention.
The exhaustion of domestic remedies argument put forward at the start,
and throughout the proceedings pursued by the Executive Secretariat remains
valid, because a new event (the issuing of the Supreme Resolution of June 15,
1995) cannot validate something that was irregular from the start and thus at
variance with generally established norms...
the first point to settle is whether the Peruvian State invoked non-exhaustion
of domestic remedies at the appropriate time in the proceedings.
exhaustion of domestic remedies, the Inter-American Court of Rights has ruled
According to generally recognized principles of international law, it
turns out, first, to be a rule which may be explicitly or tacitly waived by
the State entitled to invoke it. Second,
the exception based on non-exhaustion of domestic remedies, in order to be
timely, should be lodged in the early stages of proceedings, otherwise it may
be assumed that the State involved waives its right to the exception (Godínez
Cruz Case. Preliminary Objections.
Judgment of June 26, 1987, para. 90).
Inter-American Court has also ruled that tacit waiving of the application of
this requirement is to be presumed when the State does not challenge the
admissibility of the petition on these grounds "at an early stage of the
proceedings" (Fairén Garbi and Solis Corrales case, Preliminary
Objections. Judgment of June
26, 1987, para. 87). This
doctrine was later confirmed when the Court ruled that the non-exhaustion of
domestic remedies "to be timely, must be made at an early stage of the
proceedings by the State entitled to make it, (Neira Alegría and Others
Case. Preliminary Objections.
Judgment of December 11, 1991, para. 30.)
the Commission it is clear from the file of the case that neither in its
initial document nor in subsequent statements did the State invoke
non-exhaustion of domestic remedies. Indeed,
when the State replied regarding this case in its note dated July 1, 1994, it
restricted itself to transmitting the information supplied by the Prosecutor
of the Ombudsman's Office regarding the criminal charges against two members
of the Navy for the forced disappearance of Martín Roca.
There is no way that this can be taken to be an invocation of
non-exhaustion of domestic remedies.
did the State invoke non-exhaustion of domestic remedies in a subsequent
document, dated July 5, 1994. In that document it requested that the case be
filed because it was pending before the United Nations Working Group on Forced
or Involuntary Disappearances.
56. It may
thus be concluded that in the early stages of the proceedings, the Peruvian
State did not argue that this complaint was inadmissible because domestic
remedies had not been exhausted. Much
less did it point out the effective means at the petitioner's disposal to
remedy the violation of his rights. What
is more, the Government answered the requests for information made by the
Commission, including those regarding domestic remedies.
jurisprudence of the Inter-American Court of Human Rights clearly indicates
that the contesting of a petition on the grounds that domestic remedies have
not been exhausted has to be explicit. "International
practice indicates that when a party in a case adopts a position that is
either beneficial to it or detrimental to the other party, the principle of
estoppel prevents it from subsequently assuming the contrary position.
Here the rule of non concedit venire contra factum propium
applies. (Neira Alegría and Others Case. Preliminary Objections.
Judgment of December 11, 1991, para. 29).
having received any indication from the State regarding prior exhaustion of
domestic remedies at the time it responded to the complaint, the Commission
considers that Peru tacitly waived invoking the exhaustion of domestic
remedies rule. From this it is
evident that Peru's argument is extemporaneous, coming as it does two years
after it replied to the denunciation.
Peruvian State has taken the position that the communications sent by the
Government, and the petitioner's observations, do not really constitute the
observations procedure contemplated in the Convention, since this case has not
yet formally begun.
is an erroneous observation by the State and it contradicts the practice on
which international protection of human rights in the inter-american system is
based and which derives from the need to safeguard the victim from the
arbitrary exercise of political power. "Thus"
--as the Inter-American Court of Human Rights has declared--, "whenever a
petitioner alleges that such remedies do not exist or are illusory, the
granting of a such protection may be not only justified, but urgent.
In those cases, not only is Article 37.3 of the Regulations of the
Commission on the burden of proof applicable, but the timing of the decision
on domestic remedies must also fit the purposes of the international
protection system. The rule of prior exhaustion must never lead to a halt or
delay that would render international action in support of the defenseless
victim ineffective." (Godínez
Cruz Case. Preliminary Objections.
Op.cit., para. 95.).
is a case of forced disappearance of persons ordered by the authorities. The
Inter-American Court of Human Rights has pointed out that:
Wherever this practice has existed, it has been made possible precisely
by the lack of domestic remedies or their lack of effectiveness in protecting
the essential rights of those persecuted by the authorities.
(Godínez Cruz Case. Preliminary Exceptions.
Id. para, 96.)
62. In any
event, the Commission must remind the Peruvian State that given the links
between the domestic remedies problem and violation of human rights per se,
it is evident that the question of their prior exhaustion must be considered
together with the merits. In
accordance with the jurisprudence of the Inter-American Court of Human Rights,
given the safeguarding nature of the system for international protection of
human rights, in such cases it is not necessary to issue an admissibility
decision prior to reviewing the substantial issue or in order to continue
processing a case.
these reasons, when the Commission begins processing a case of forced
disappearance it acts in accordance with its own Regulations and the
Convention. Hence it follows that
this case was formally initiated and processed in accordance with the
Convention, and both the Government's reply and the petitioner's observations
are formal procedures carried out according to the norms governing them.
of the non-exhaustion rule further requires the State to identify the domestic
remedies at the victim's disposal. It
is clear in this case that there are no judicial resources available with
which the petitioner could remedy the violation of which the State is accused,
particularly since criminal proceedings on account of the forced disappearance
have been definitively shelved and since, in addition, the Peruvian State has
declared a general amnesty preventing investigation of the case.
Thus, it is evident, that in the domestic sphere there are no remedies
for compensating the violation of the victim's rights.
friendly settlement procedure contemplated in Article 48.1.f of the Convention
and in Article 45 of the Regulations of the Commission was proposed to the
parties by the Commission, but no understanding was reached.
Having failed to reach a friendly settlement, the Commission complied
with the provisions of Article 50 of the Convention, and issued its report
stating its conclusions and recommendations regarding the subject submitted
for its consideration.
The facts proven
petitioner denounced before the Commission the disappearance of Martín Javier
Roca Casas on October 5, 1993, when he was on his way to classes at the
Economics Faculty in the University of Callao.
The petitioner indicated that those possibly responsible were Peruvian
Naval Intelligence officers.
occurrences denounced by the petitioner were not contested by the State.
On the contrary, the State's reply confirms the petitioner's version,
and indicates that after various inquiries carried out by the Prosecutor in
charge of the Prosecutor’s division of the Ombudsman's Office, criminal
charges had been brought against Navy Captain Elías Manuel Ponce Feijoo and
3rd seaman Percy Tarazona Esteves, on account of the forced disappearance of
68. In the
Commission's view, there is no doubt that the intelligence services of the
Armed Forces had been keeping an eye on student Martín Roca for several
months prior to his disappearance, suspecting that he belonged to or
collaborated with the Shining Path.
previous information is confirmed in Report No. 079-94-JUS/CNDH-D by the
Ministry of Justice, attached to the Peruvian State's Note dated November 8,
1994. The Report states, inter
In official note No. 3126-SMGD-M, of 24FEB94, the Brigadier General and
Secretary General of MINDEF (Ministry of Defense), informs Ambassador Gilbert
Chauny, Director of Special Affairs at the Ministry of Foreign Affairs,
regarding the participation of Navy personnel in the case referred to.
According to that note, Naval Intelligence had ordered an operation and
the filming of a march and disturbances that were going to be carried out by
students at the Technical University of Callao.
Third seaman TARAZONA was deployed among them, and attacked by the
students when he was carrying out his mission. In an act in which the above
mentioned victim took part directly, they managed to grab his camera.
Subsequently, the Naval Intelligence Operator went to the student's
home to ask him to return the cassette and the camera. It was agreed that they
would be returned in the afternoon, at which point seaman (OM3) TARAZONA was
detained by national police officer (SO2) ROCA, a relative of the student, and
taken to Carmen de Lengua police station, where a Naval Intelligence officer
turned up and explained to the police and to the student's relatives that he
had taken part in activities bordering on the subversive, and demanded once
again that the video cassette and camera be returned (emphasis added).
statements made to the Third Criminal Court of Callao it transpires that in
the night of August 17, 1993, Navy officers Percy Tarazona Estevez, Ricardo
Moreno Bautista, and Oscar Alarcón Montes went to Martín Roca Casas' home.
They then returned with more personnel and proceeded to carry out a
thorough search in order to find the video.
The search order had been given by Commander Elías Ponce Feijoó, who
had instructed his subordinates "to recover the tape" (declarations
transcribed in the Opinion of the First Criminal Chamber of the Supreme Court
of Callao, dated June 15, 1995).
August 18, 1993, Officer Tarazona returned to the house in search of the
video. On that occasion, they
proceeded to detain him and to take him to the Police Station at Carmen de
Lengua. The head of that police
station confirmed, in official Note No. 1254-DOP.PNP.CA.DCLR.JA, that:
. . . on August 18, 1993, three persons dressed in civilian clothes
came to the station and two of them asked the third person to identify himself
since he had been lurking near their home. He identified himself as a member
of the Navy, and contacted his unit. Subsequently a Navy Commander appeared
and ratified the identity of the member of the Navy...
these incidents, Martín Roca's house was subjected to constant vigilance by
suspicious characters assumed to be members of the Security Forces.
The pressure put on Martín Roca Casas by these security forces
motivated him to seek legal advice, through lawyer Alberto Lau Salvador Cavero,
who works with the police's National Anti-Terrorist Unit (DINCOTE).
This lawyer suggested that he should collaborate with DINCOTE, by
informing it regarding which Callao University students might be members or
collaborators of Shining Path. Martín
Roca then talked to several DINCOTE officers and gave them information.
to the DINCOTE officers who interviewed Roca, he only appeared once and the
information he provided was vague "and was not used since it bore no
relation to any intelligence operation then underway."
(Declarations transcribed in the Opinion of the First Criminal Chamber
of the Supreme Court of Callao, dated June 15, 1995).
Roca's father stated that on the day his son disappeared, October 5, 1993, a
joint (anti-terrorist) search operation was staged in the vicinity of the
house and lasted until dawn the next day.
This information was confirmed by the Secretary General of the Ministry
of Defense. Although the Ministry
of Defense does not admit that Roca was arrested, it does admit that four
people were arrested in the operation, although none of them matched the
description of the disappeared student.
the judicial proceedings, the military officers tried to prevent the truth
from emerging and there were acts of intimidation against the relatives of the
victim, their lawyers, and witnesses.
regards the military's efforts to obstruct the judicial proceedings, in the
trial against two Peruvian Navy officers, it transpires that:
High Command ordered that "two lawyers be contracted for the
defense" of Commander (Capitán de Fragata) Manuel Ponce Feijoo and Third
Seaman Tarazona. Thus, the Peruvian Navy opted not for a thorough and
impartial inquiry into what happened but rather to help its officers by
directly assuming their defense. This corroborates a desire to protect its officers from being
punished by the courts and to cover up what happened.
the file it emerges that the Peruvian Navy failed to provide vital data for
the investigation, such as the names of the members of the patrol that carried
out an operation on the day Roca disappeared.
attacks against the victims of the relatives, witnesses and lawyers include:
surveillance of Javier Roca Casas' relatives after they denounced his
January 10, 1994, the day after a television interview with Javier Roca
Obregón, the victim's father, was broadcast, he found a note saying:
"Your son died because he stained the honor of the Navy.
Shut your mouth or else we'll shut it for you."
students from the Economics Faculty at the University of Callao who played an
active part looking for Martín Roca were subsequently disappeared.
Keneth Anzualdo Castro was kidnapped
--according to eye-witnesses-- by
policemen who took him off a bus he was travelling in on December 16, 1993.
On January 17, 1995, José Clemente Cigueñas Linares was kidnapped by
four armed men. Nothing has been
heard of either student since.
78. In the
habeas corpus writ lodged by Keneth Anzualdo Castro's father, which was
attached to the Peruvian State's Note of May 30, 1995, it says:
"The reason why we point to Navy Intelligence is because when
Martín Roca Casas, another student at the Economics Faculty of the National
University of Callao, was disappeared ...my son constantly accompanied Roca's
relatives in the denunciations they filed."
acts of harassment include initiating criminal proceedings against the lawyer
advising the Roca family, Alberto Salvador Lau Cavero, for perjury against the
State after he denounced the disappearance of Martín Roca.
Violation of the rights of the victim
Commission considers that forced disappearance has occurred when
person is arrested by State agents or with the acquiescence of same,
with or without orders from a competent authority, and this arrest is then
denied and no information is made available as to the whereabouts of the
detainee and the exercise of legal remedies and pertinent judicial guarantees
addition, State functionaries and Government officials failed to collaborate
in investigating the Navy and Police personnel who took part in a search
operation the day of Roca's disappearance.
The inertia shown by investigative organs and judicial bodies
demonstrates that we are dealing with events that are supposed to go
practice of forced or involuntary disappearance has been classified by the
international community as a crime against humanity,
which violates fundamental rights of human beings, such as
personal liberty, humane treatment, the right to a fair trial and due process,
and even the right to life.
the practice of forced disappearance, the Commission has maintained that:
These cruel and inhuman practices constitute not only an arbitrary
deprivation of liberty, but also an extremely serious hazard to the personal
integrity, security and very life of the person concerned. They moreover place the victim in a state of absolute
defenselessness with serious violation of his rights to a fair trial,
protection against arbitrary arrest and due process.
the Commission concludes that the Peruvian State has violated the rights of
the victim by failing to investigate the events surrounding his disappearance
and by failing to conduct judicial investigations into the responsibility of
those suspected of having caused his disappearance.
Right to life (Article 4 of the Convention)
Inter-American Court of Human Rights has pointed out that the forced
disappearance of persons "often involves secret execution without trial,
followed by concealment of the body to eliminate any material evidence of the
crime and to ensure the impunity of those responsible.
This is a flagrant violation of the right to life, recognized in
Article 4 of the Convention." (Velásquez
Rodríguez Case. Judgment
of July 29, 1988, para. 157).
85. In the case of Martín
Roca Casas, the testimony and evidence submitted demonstrate that he was being
watched by the security forces and arrested by state agents.
In addition, following his arrest-disappearance his whereabouts have
been unknown for over four years.
this data leads to the presumption that Martín Javier Roca Casas has died,
bearing in mind that over four years have elapsed since his arrest and
disappearance and that those responsible are agents of the State.
(See Velásquez Rodríguez Case.
Id. para. 147).
of the Court states: "The
right to life and the guarantee and respect thereof by States cannot be
conceived in a restrictive manner. That
right does not merely imply that no person may be arbitrarily deprived of his
or her life(...). It also demands
of the States that they take all appropriate measures to protect and preserve
it (...). International
protection of human rights, as it relates to article 4.1 of the American
Convention on Human Rights, has a preventive dimension, in which the
obligation to act with due diligence assumes graver implications when dealing
with illegal detentions." (Gangaram
Panday Case, Judgment of January 21, 1994, dissident opinions of
Judges Picado-Sotela-Aranguren and Cançado Trindade, paras. 3, 4).
88. Therefore, the Commission considers that the Peruvian State has
violated the right to life, a fundamental right protected under Article 4 of
the Convention which states that "Every person has the right to have his
life respected (...)" and "No one shall be arbitrarily deprived of
Right to humane treatment (Article 5 of the Convention)
that forced disappearance involves violation of multiple rights, implicitly
violated is the right to humane treatment of Martín Javier Roca Casas.
In this regard, the Court has ruled:
"... prolonged isolation and deprivation of communication are in
themselves cruel and inhuman treatment, harmful to the psychological and moral
integrity of the person and violation of the right of every detainee to
respect for his inherent dignity as a human being.
Such treatment, therefore, violates Article 5 of the Convention, which
recognizes the right to the integrity of the person"
(Velásquez Rodríguez Case.
Op.cit., para. 156).
exists, moreover, evidence that leads one to the well-founded presumption that
the detainee was tortured. The
conditions under which the victim was held, in secrecy, isolation, and
deprived of communication; the defenselessness to which the victim was
reduced, by preventing or denying him any form of protection or safeguards of
rights, lead one to the well-founded presumption that torture was applied to
the victim by the armed forces, for the purpose of extracting information
about subversive groups or meetings. Above
all, the facts of the case show that efforts had been made to turn Martín
Roca Casas into an informant for DINCOTE, and that his collaboration had been
deemed unsatisfactory in the opinion of that institution. For these reasons,
the Commission considers proven the violation of the right to humane
treatment, set forth in Article 5 of the Convention.
Right to personal liberty. (Article 7 of the Convention)
detention is arbitrary and illegal when the detention is carried out for
reasons other than those that are set forth in the law, when it is carried out
without observing the standards required by law and when it is carried out
deviating from the purposes of detention, i.e. when a detention is carried out
for reasons other than those contemplated and required by law.
The Commission has also pointed out that detention for improper
purposes is in itself a punishment or sentence, a kind of sentence without
trial or extralegal sentence violating the democratic principles of the
independence and separation of powers as well as the right to a trial.
this case, student Martín Javier Roca Casas was detained illegally and
arbitrarily by members of a Peruvian Navy patrol, acting jointly with the
National Police, on October 5, 1993. It
also transpires from the file of the case that the military authorities deny
having made the arrest, despite having followed him and kept him under
surveillance for several months.
should bear in mind the context at the time of Martín Roca's disappearance.
In June 1993, the security forces proceeded to capture Callao
University students presumed to belong to Shining Path, which lead DINCOTE and
Naval Intelligence to start investigating student leaders in the Economics
Faculty at the University of Callao. Among
the students captured in August 1993 were José Antonio Melgar Arias, Martín
Palomino Sayritupac, and Daniel Guillermo Yanac Padilla, who were charged by
DINCOTE with treason and terrorism. From
then on, students were watched and followed, a process that culminated with
the detention of Martín Roca Casas on October 5, 1993.
7.5 of the American Convention sets forth that "[A]ny person detained
shall be brought promptly before a judge or other officer authorized by law to
exercise judicial power and shall be entitled to trial within a reasonable
time or to be released (...)." The
Commission has also stated that any person deprived of his liberty must be
kept in officially recognized detention centers and presented, without delay,
pursuant to domestic law, before the competent judicial authority.
In case the State authority does not carry out the legal obligation,
the State is obliged to guarantee to the detainee the possibility of
presenting an effective judicial recourse permitting judicial review of the
legality of the detention.
95. The right to be
brought before a competent judge is a fundamental guarantee of the rights of
every detainee. As the Inter-
American Court of Human Rights has stated, the judicial supervision over
detention, by means of habeas corpus, "performs a vital role in
ensuring that a person's life and physical integrity are respected, in
preventing his disappearance or the keeping of his whereabouts a secret and in
protecting him against torture or other cruel, inhumane, or degrading
punishment or treatment." (Habeas
corpus in emergency situations (Articles 27(2), 25(1) and 7(6) American
Convention on Human Rights. Advisory
Opinion OC-8/87 of January 30, 1987. Series A No. 8,
arrest and illegal detention which took place in this case, by keeping the
detainee in an irregular place, impeded the access of the detainee to the
means and legal recourses necessary in order to exercise his rights himself.
The Commission concludes that the Peruvian State is responsible for
having violated the right to personal liberty and security, by arbitrarily
imprisoning Martín Roca. It also violated his right to recourse to a competent judge
or court to rule on the lawfulness of his arrest, as established in article 7
of the American Convention on Human Rights.
Right to Judicial Protection (Article 25 of the Convention)
by the information submitted by the parties, it has been ascertained that the
victim and his relatives were denied the right to simple and prompt recourse
for protection against acts that violate their fundamental rights recognized
by the American Convention on Human Rights.
Inter-American Court of Human Rights has stated that the principles of
international law "refer not only to the formal existence of such
remedies, but also to their adequacy and effectiveness, as shown by the
exceptions set out in Article 46.2"
(Velásquez Rodríguez Case.
Op.cit., para. 63). It
has also explained that the lack of an effective and non-formal trial implies
not just an exception to the exhaustion of domestic remedies but also a
violation of Articles 8 and 25 of the Convention.
(Velásquez Rodríguez Case.
Preliminary Objections. Judgment
of June 26, 1987, para. 91).
proceedings under the domestic laws of the Peruvian State have consisted of
nothing more than formal and irrelevant paperwork and thorough and impartial
investigations were never carried out, so that important evidence was never
100. In the
Commission's view, the non-existence of effective domestic remedies
corroborates the existence of an administrative practice of forced
disappearances. There exists
sufficient evidence to show that forced disappearances have occurred
consistently in Peru since 1980. The
United Nations Working Group on Forced and Involuntary Disappearances has
reported that by December 1993 it had listed a total of 2,847 cases of
disappeared persons, of which 2,240
had still to be clarified. From
this it can be concluded that in Peru there have been a substantial number of
cases of forced disappearance and that they reflect a pattern of behavior
attributable to the Police and the Peruvian Army.
The pattern also shows that most of the cases have occurred in zones
declared to be in a state of emergency and have been perpetrated against
students and peasants.
101. It has also been
fully proven that senior Peruvian governmental authorities have failed to
collaborate in throwing light on what happened and that witnesses and the
victims' lawyers were harassed. This
example of lack of collaboration by the judicial authorities is not an
isolated one. It occurs every
time that members of the Armed Forces are investigated. As the Working Group on Forced or Involuntary Disappearances
has pointed out:
The lack of cooperation by the security forces in investigations by
civilian attorneys and the absence of an independent judiciary are major
impediments to legal due process. The
vast majority of denunciations of human rights violations lodged with the
Public Ministry over the past ten years have frequently not been adequately
investigated for lack of cooperation by the police or army, the lack of
official support and resources, or else because such cases were handed over to
military courts. It is reported that provincial attorneys attempting to
investigate such denunciations in emergency zones have been subjected to
threats, hampered in their work or denied information by the armed forces.
Witnesses and family members also report having been threatened, harassed,
and, in some cases, even murdered. Under these circumstances, the Peruvian
judiciary does not provide or is incapable of providing even minimal
guarantees against the constant violation of human rights.
102. In view of the
above, there is no doubt that the decision taken in the criminal proceedings
against officers Elías Ponce Feijoo and Percy Tarazona Estevez for the forced
disappearance of Martín Javier Roca Casas to shelve the case definitively was
the product of a deficient investigation by the competent Peruvian State
authorities and of the acts of harassment carried out against relatives of the
103. The jurisprudence
of the Inter-American Court of Human Rights has established among the
obligations of the State, in connection with the obligation to investigate:
The State has a legal duty to take reasonable steps carry out a serious
investigation of violations committed within its jurisdiction, to identify
those responsible, to impose the appropriate punishment and to ensure the
victim adequate compensation. (Velásquez
Rodríguez Case. Op.cit.,
104. The Government
may not elude, under any pretext whatsoever, its duty to investigate a case
involving violation of fundamental human rights.
The Court says as much when it states:
"An investigation must have an objective and be assumed by the
State as its own legal duty, not as a step taken by private interests that
depends upon the initiative of the victim or his family or upon their offer of
proof, without an effective search for the truth by the government."
(Velásquez Rodríguez Case.
Op.cit., para. 177).
105. These aspects of
the criminal investigation proceedings under domestic law amount to a
violation by the Peruvian State of Article 25 of the Convention.
On the obligation of States to guarantee and respect rights
106. In the case at
hand, it has been demonstrated that the Peruvian State has not complied with
the provision contained in Article 1.1 regarding the undertaking of States to
"respect the rights and freedoms recognized herein and to ensure to all
persons subject to their jurisdiction."
107. The first obligation
of States, in light of Article 1.1, is to respect the rights and freedoms of
all persons subject to their jurisdiction.
Referring to this obligation, the Court stated that:
"... under international law a State is responsible for the acts
of its agents (...) and for their omissions, even when those agents act
outside the sphere of their authority or violate internal law."
It held furthermore that: "any
violation of rights recognized by the Convention carried out by an act of
public authority or by persons who use their position of authority is
imputable to the State." (Velásquez Rodríguez Case.
Op.cit., paras. 170 and 172).
108. The Commission
concludes that the disappearance of Martín Javier Roca Casas and the
subsequent refusal to administer justice, are public acts perpetrated by State
agents, which means that the Peruvian State violated the rights of the victim
contemplated in Article 1.1. in relation to violations of Articles 4, 5, 7,
and 25 of the Convention.
109. The second
obligation envisaged in Article 1.1 is to ensure free and full exercise of the
rights and freedoms recognized in the Convention.
Here Court jurisprudence establishes that:
This obligation implies the duty of States Parties to organize the
governmental apparatus and, in general, all the structures through which
public power is exercised, so that they are capable of juridically ensuring,
the free and full enjoyment of human rights.
As a consequence of this obligation, the States must prevent,
investigate, and punish any violation of the rights recognized by in the
Rodríguez Case. Op.cit.,
110. In the event of a
"forced disappearance", the State is duty-bound to establish the
fate and current circumstances of the victim, punish those responsible, and
compensate the victim's relatives.
111. In the case we
are dealing with, the Peruvian State has proceeded to decree two general
amnesty laws. The first, Law No.
26479, grants "general amnesty to military, police or civilian personnel
(...) denounced, investigated, accused, tried or condemned for military common
offenses before civilian or military courts, (...) for all occurrences derived
from, or originating in, or as a consequence of efforts to combat terrorism,
and that may have been committed individually or in a group between May 1980
and the promulgation of this law, that is June 15, 1995 (article 1 of Law No.
26479). The second law extends
the scope of application by referring to "all occurrences derived from,
or originating in, or as a consequence of efforts to combat terrorism,
committed individually or in a group between May 1980 and June 14, 1995,
regardless of whether the military, police, or civilian personnel involved is
currently denounced, investigated, subject to criminal proceedings, or
condemned. All judicial cases
being processed or executed are shelved definitively..."(Article 3 of Law
112. The international
community, furthermore, has recognized that as a crime against humanity forced
disappearance cannot be amnestied. This was established in Article 18, paragraph 1, of the
United Nations Declaration on the Protection of All Persons from Forced
Disappearance: "... the
authors or presumed authors of forced disappearances shall not benefit from
any special amnesty law or similar measures designed to exonerate them from
any kind of criminal proceedings or punishment."
113. The jurisprudence
of the Commission has clearly established that by sanctioning and promulgating
amnesty laws and decrees, a State rules out "every juridical possibility
of continuing criminal cases designed to prove the crimes denounced; identify
those responsible, their accomplices and accessories; and impose the
corresponding criminal sanctions."
relatives, or victims of violations of human rights are thereby thwarted in
exercising their right to an impartial and thorough judicial inquiry into what
happened and the fate and whereabouts of the victim.
114. One of the
effects of amnesty decrees "is to undercut the right of the victim to
bring criminal charges against those responsible for violating human
rights." Consequently, amnesty laws directly prevent exercise of the
right to prompt and effective recourse to judicial guarantees and they violate
the obligation of the State to guarantee free and full exercise of the rights
recognized in the Convention.
Amnesty Law No. 26479 declares that the acts or offenses covered by this
amnesty, as well as the definitive stays and acquittals, are not subject to
investigation, judicial inquiry, or indictment and all judicial cases being
processed or executed are to be definitively filed; and the Law of
Interpretation extends the scope of the law to prevent investigation even of
acts that have not been denounced. This
is totally incompatible with the State's obligation to make reparations for
the consequences of the act or situation constituting a transgression of its
international human rights commitments.
116. It is a generally
accepted principle that a State's failure to comply with a commitment implies
an obligation to make reparation (Chorzow Factory Compensations.
PCIJ Ser. A, No. 17, p. 29). Responsibility
is a necessary corollary of a right. All
international rights involve state responsibility.
If the obligation in question is not satisfied, responsibility implies
an obligation to make adequate compensation. Thus reparation is an
indispensable complement in cases of failure to apply a convention or
117. In the
Inter-American human rights system, the applicable provision regarding
reparation for human rights violations is Article 63.1 of the American
Convention, which reads as follows:
the Court finds that there has been a violation of a right or freedom
protected by this Convention, the Court shall rule that the injured party be
ensured the enjoyment of his right or freedom that was violated. It shall also
rule, if appropriate, that the consequences of the measure or situation that
constituted the breach of such right or freedom be remedied and that fair
compensation be paid to the injured party.
118. As the
Inter-American Court of Human Rights has stated: "... this article codifies a rule of customary law
which, moreover, is one of the fundamental principles of current international
law, as has been recognized by this Court."
(Aloeboetoe et al. Case. Reparations
(Article 63(1) of the American Convention on Human Rights.)
Judgment of September 10, 1993, Serie C No. 15, para. 43).
119. The obligations
arising from the duty to make reparations for the violation of human rights,
as the Inter-American Court on Human Rights has stated: "... shall not be
subject to modification or suspension by the respondent State through
invocation of provisions of its own domestic law." (Aloeboetoe et al.
Case. Reparations. (Article 63(1) of the American Convention on Human
Rights), para. 44.
120. In view of the
above, the Commission finds that the Peruvian State has violated Martín
Javier Roca Casas' right to effective judicial recourse (Article 25 of the
Convention), as well as its general commitment to respect and ensure human
rights, contained in Article 1.1 of the Convention.
121. On the basis of
the considerations set forth in this report, the Commission confirms the
following conclusions and recommendations:
That Peruvian Navy personnel proceeded to detain Martín Javier Rocas
Casas in clandestine fashion, which means that the Peruvian State is
responsible for violation of the right to life (Article 4), the right to
humane treatment (Article 5), personal liberty (Article 7) and to due process
and effective judicial protection (Article 25), as well as the general
obligation to respect and ensure the exercise of these rights set forth in
article 1.1 of the American Convention on Human Rights.
That the Peruvian State, by means of the competent authorities, reopen
the case in order to carry out a serious, impartial and effective
investigation of the facts in order to establish the whereabouts of Martín
Javier Roca Casas, and to identify those responsible for his forced
disappearance, and through appropriate criminal proceedings, to punish the
persons responsible for these acts.
the Peruvian State render without force any domestic measure, whether
legislative or of another nature, that impedes the investigation, trial, and
punishment of those responsible for the detention and disappearance of Martín
Javier Roca Casas. And that, as a
consequence, the Peruvian State repeal, annul or definitively render without
force the Amnesty Laws Nos. 26479 and 26492.
the Peruvian State proceed to pay the corresponding compensation to the
relatives of the victims for the violation of Martín Roca Casas' human
rights; compensation that should include payment for the suffering caused by
not knowing the victim's whereabouts.
122. On October 16,
1997, the Commission adopted Report No. 39/97, its article 51 report on the
case and transmitted it to the State of Peru on November 4, 1997.
The Commission requested Peru to adopt reparatory measures in this case
within a period of two months from the date of transmittal, in order for it to
decide on the publication of the report.
123. The Peruvian
State replied to the Commission by Note 7-5-M-460 dated December 29, 1997 in
which the Government stated that it reaffirmed its conclusions set forth in
Note No. 7-5-M/329 of September 12, 1997 and which it reiterated during the
Hearing held on October 9, 1997. The
Commission considered this case again during its 98th regular session and on
February 19, 1998 it took the decision to publish this Report.
124. In virtue of the
fact that the Peruvian State responded expressing its decision to not comply
with the recommendations issued by the Commission for the reasons expressed
therein, and in conformity with articles 51.3 of the American Convention and
48 of its Regulations, the Commission decides to reiterate the conclusion and
recommendations in chapters V and VI supra, to make public the present
report and to include it in its Annual Report.