REPORT Nº 111/00  
CASE 11.031  
PEDRO PABLO LÓPEZ GONZÁLEZ, DENIS ATILIO CASTILLO CHÁVEZ,  
GILMER RAMIRO LEÓN VELÁSQUEZ, JESÚS MANFREDO NORIEGA RÍOS,  
ROBERTO BARRIENTOS VELÁSQUEZ, CARLOS ALBERTO BARRIENTOS VELÁSQUEZ,  
CARLOS MARTÍN TARAZONA MORE AND JORGE LUIS TARAZONA MORE  
PERU  
December 4, 2000  

            I.            SUMMARY 

            1.            By petition submitted to the Inter-American Commission on Human Rights (hereinafter “the Commission”) by the non-governmental organization Asociación Pro Derechos Humanos (APRODEH) on May 11, 1992, and also signed by Messrs. Hipólito López González and Alejandro Castillo Vega, it was alleged that the Republic of Peru (hereinafter “Peru,” “the State,” or “the Peruvian State”) violated the human rights of Messrs. Pedro Pablo López González, Denis Atilio Castillo Chávez, Gilmer Ramiro León Velásquez, Jesús Manfredo Noriega Ríos, Roberto Barrientos Velásquez, Carlos Alberto Barrientos Velásquez, Carlos Martín Tarazona More, and Jorge Luis Tarazona More, when they were detained on May 2, 1992, by members of the Police and Navy of Peru, and then disappeared.  The State alleges that Messrs. López González, Castillo Chávez, León Velásquez, Noriega Ríos, Barrientos Velásquez, and Tarazona More were not detained by police or military forces.  The Commission concludes that Peru violated Articles 7, 5, 4, 3, and 25 of the Convention, in conjunction with the provisions of Article 1(1), to the detriment of the above-mentioned persons, and makes the pertinent recommendations to the Peruvian State. 

            II.            PROCESSING BEFORE THE COMMISSION 

            2.            On July 6, 1992, the Commission opened the case, forwarded the pertinent parts of the complaint to the Peruvian State, and asked that it provide information within 90 days.  The State answered on September 21, 1992.  The petitioners submitted observations to the State’s response on January 25, 1993.  Both parties submitted additional information on several occasions.  On May 26, 1999, both parties were asked to provide the Commission with updated information on the case, and the Commission made itself available to them to try to reach a friendly settlement.  On July 26, 1999, the State indicated, among other considerations, that it did not consider it advisable to begin to pursue a friendly settlement.  Accordingly, the Commission considered that the possibility of friendly settlement had been exhausted. 

            III.            POSITIONS OF THE PARTIES 

            A.            The petitioner 

            3.            Petitioners note that on May 2, 1992, at approximately 1:30 a.m., members of the National Police and Navy of Peru entered the human settlements of “La Huaca,” “Javier Heraud,” and “San Carlos,” located in the district and province of Santa, department of Ancash.  Petitioners further state that those persons, who were traveling in four pick-up trucks without tags, were wearing black sweaters, olive green pants, and boots, and were armed with machine guns.  Petitioner adds that those persons searched the homes of several residents. 

            4.            Petitioners indicate that those armed individuals violently entered the home of Mr. Pedro Pablo López González, who was domiciled in the human settlement of La Huaca, and forced him and his wife to lie down on the floor.  They add that immediately thereafter Mr. López González was bound and removed from his home, barefoot and in his undergarments. 

            5.            Petitioners state that Mr. Denis Atilio Castillo Chávez was at his home, also located at the human settlement of La Huaca.  They note that the persons in question entered the home of Mr. Castillo Chávez and beat his sister, a mentally retarded 13-year-old girl.  They also state that Mr. Castillo Chávez came forth to defend his sister, and at that moment was detained by those persons and removed from his home. 

            6.            They further indicate that Mr. Gilmer Ramiro León Velásquez was detained at the human settlement of La Huaca when he was returning to his home on bicycle; he was thrown to the ground, beaten, and placed on one of the pick-up trucks. 

            7.            Petitioners argue that the armed men violently entered the home of Mr. Jesús Manfredo Noriega Ríos, located in the human settlement known as “Javier Heraud,” and kept his wife and children from leaving their rooms or turning on the lights.  The armed men then painted slogans on the front of the house that read, for example, “Long live the armed struggle” and “PCP,” and then left, taking Mr. Noriega Ríos with them. 

            8.            The petition alleges that the armed men entered the domicile of brothers Roberto and Carlos Alberto Barrientos Velásquez, located in the human settlement known as “San Carlos,” and threw them to the ground along with their mother and sister. After searching the house and inquiring about another brother, Edwin Barrientos Velásquez, they left, taking with them brothers Roberto and Carlos Alberto.  Before leaving, they painted slogans on the front of the house that said “Long live the armed struggle” and “PCP,” among other things. 

            9.            The petition notes that approximately 15 of the armed individuals violently entered the home of brothers Carlos Martín and Jorge Luis Tarazona More, also located in the “San Carlos” human settlement, and proceeded to take them away, in the presence of their families.  Previously, the armed individuals took their money, documents, and other goods, and painted the front of the house in a manner similar to that described in the previous paragraph. 

            10.            Petitioners state that relatives of the victims who went to the city of Chimbote saw personnel from the Peruvian Navy at the tunnel known as “Coishco” who were keeping watch there, apparently to offer protection for the exit of the armed individuals who carried out the detentions. 

            11.            They indicate that both the National Police and the Peruvian Navy denied having detained the individuals in question, and that even though they went before the Office of the Attorney General and authorities of the Judiciary, such efforts offered no results with respect to the whereabouts of those persons.  Petitioner attaches the testimony of the following eyewitnesses:  Mrs. Maximina González Méndez, Mrs. Paula Peregrina Flores de Dionicio, Mrs. Cruz Velásquez León de Barrientos, Mrs. Hormecinda Velásquez viuda de León, Mrs. Agustina Moreno Estrada, Mrs. Margot Nancy Reyes Sáenz, Mr. Alejandro Castillo Vega, and Mr. Germán Domingo Quispe Moreno. 

            12.            Petitioners note that in a complaint lodged with the Office of the Attorney General the family members of the persons detained stated that Peruvian National Police Major Percy del Carpio and police agent Juan Molina Castro were aware of the existence of a list of persons, among them the victims, who were going to be kidnapped.  They add that the National Police refused to receive the complaint on the facts described. 

            13.            The petition indicates that as a result of the complaints lodged, some of the family members of the persons disappeared were accused by the National Police in Chimbote of being involved in terrorist activities, including Maribel and Edwin Barrientos Velásquez, siblings of Roberto and Carlos Alberto Barrientos Velásquez; and Nancy Margot Reyes Sáenz, the wife of Carlos Tarazona More. 

            14.            On November 12, 1998, the petitioner stated that on August 31, 1995, the Office of the Fourth Mixed Provincial Prosecutor of Lima determined to archive definitively the investigation it was carrying out with respect to the facts alleged, based on the amnesty laws, numbers 26.479 and 26.492.  In that resolution, which the petitioner alleged was confirmed on November 7, 1995, by the Superior Prosecutor, the above-noted prosecutorial office indicated that: 

... based on the evidence collected it has been determined that the alleged perpetrators of said criminal act are likely members of the armed forces and National Police of Peru....  The Congress has promulgated Law 26,479, which grants amnesty to the members of the Military and Police ... who have committed acts such as those alleged in this case ... accordingly, it is counterproductive to continue this investigation. 

            B.            The State 

            15.            The State answered on September 21, 1992, and alleged that according to the information in the hands of the National Police of Peru, the National Police had no responsibility in the detentions of the persons referred to in this case. 

            16.            On August 5, 1993, the State informed the Commission that the Ministry of Interior reported the following: 

In this respect, it is reported that the family members of the aggrieved were given notice to ratify their complaint against the authorities who, according to them, are responsible for the facts.  In addition, it is communicated that to date it has not been possible to determine the whereabouts of the citizens supposedly detained and disappeared on May 2 of last year in the early morning hours in the district of Santa, department of Ancash; nor has it been possible to identify the perpetrators.  It is important to note that in addition to the pertinent steps of the investigation, complementary steps have been taken by the authorities of the police headquarters and the office of the deputy prefect, with the presence of the chief of the office of human rights, Mr. César Velezmoro, to be able to compile new evidence so as to make it possible to clarify the facts fully. 

            17.            On October 28, 1993, Peru attached a copy of Judgment No. 64-92 from the First Investigative Court of Santa, Chimbote, which declared unfounded the writ of habeas corpus filed in relation to the disappearances in this case against the Chief of the Fourth Sub-region of Chimbote of the National Police, Col. Carlos Edwin Zapata Santín, and against the commander of the Chimbote Naval Base, Frigate Capt. Mario Salmón Villarán. 

            18.            On September 11, 1995, the State moved to archive the case, and alleged, in so doing, that the petitioner had not taken any steps in the case since 1993. 

            19.            On January 11, 1999, the State moved to have the complaint declared inadmissible, based on the argument that domestic remedies had not been exhausted as of the time when the complaint was presented.  This argument was ratified by the State on July 26, 1999, when it also set forth several considerations on the phenomenon of disappearances in Peru. 

         IV.            ANALYSIS 

            A.            Considerations on Admissibility           

20.            The Commission now analyzes the admissibility requirements of a petition established in the American Convention.   

a.         Subject-matter jurisdiction, personal jurisdiction, and jurisdiction based on time and place of the events 

21.            The allegations in this case describe facts that would be violative of several rights recognized and enshrined in the American Convention that took place within the territorial jurisdiction of Peru when the obligation to respect and guarantee the rights established therein were in force for the State.[1]  Therefore, the IACHR has subject-matter jurisdiction, personal jurisdiction, and jurisdiction based on when and where the alleged violations took place, so as to be able to take cognizance of the merits in the case.   

b.            Exhaustion of domestic remedies 

22.            The fact that the first stages of the process, i.e., within the first 90 days that it was given to provide information about the facts alleged, the State did not present any objection on grounds of failure to exhaust domestic remedies, will be sufficient for the Commission to consider the requirement established at Article 46(1)(a) of the Convention to have been met.   

23.            The Commission recently decided, together, a group of 35 cases that involved 67 persons disappeared in various departments of Peru during the period from 1989 to 1993, and analyzed in detail the general phenomenon of disappearances in Peru.  In those reports the Commission notes that habeas corpus was the adequate remedy in cases of disappearance for trying to find a person presumably detained by the authorities, to inquire into the legality of the detention, and, if possible, to secure his or her release.  The IACHR also concluded that for the purposes of admissibility of complaints before this body, it was not necessary to file a habeas corpus remedy--or any other--for the purpose of exhausting domestic remedies, since from 1989 to 1993 there was a practice or policy of disappearances ordered or tolerated by various public authorities that rendered the habeas corpus remedy totally ineffective in cases of disappearance.  In those reports the Commission found as follows:   

As stated earlier, the relatives of the victims applied on numerous occasions to various judicial, executive (military), and legislative authorities to locate the victims and secure their release. These efforts usually included writs of habeas corpus; complaints to the Attorney General, the Chief Prosecutor in San Martín, the Special Attorney for Human Rights in San Martín, the Office of the Special Ombudsman, and the Offices of the Provincial Prosecutors; and appeals to the Ministry of Defense, the Army High Command, the Office of the Inspector General of the Army, the Political-Military Commander in Chief, and the commanding officers at the military bases concerned. Despite all these efforts, the victims were never located and never reappeared.

All these procedures and appeals by the relatives of the victims proved fruitless, because the same people who had allegedly brought about the disappearances and who hid the evidence played a key part in the results of the investigations. None of the writs of habeas corpus was successful in any of the cases. Likewise, the complaints filed with the offices of the government prosecutors led to little more than a request for information from the military, who would deny the detention. The cases were then shelved without ever being brought before the competent court of the first instance. It should be added that generally the Peruvian Government's replies to the Commission denying responsibility for the disappearances are based precisely on photocopies, sent to the Commission, of official communications in which the military itself denies having carried out the arrests.

[T]he Commission considers it important to provide certain clarifications regarding the exhaustion of domestic remedies in connection with the forced disappearances in Peru. In this regard, it should be noted that the Inter-American Court of Human Rights has held, in connection with the exhaustion of domestic remedies, that, "in keeping with the object and purpose of the Convention and in accordance with an interpretation of Article 46 (1)(a) of the Convention, the proper remedy in the case of the forced disappearance of persons would ordinarily be habeas corpus, since those cases require urgent action by the authorities" (and it is) "the normal means of finding a person presumably detained by the authorities, of ascertaining whether he is legally detained and, given the case, of obtaining his liberty." Thus, when a writ of habeas corpus is presented in the case of persons who were detained and then disappeared, and nothing comes of it because the victims are not located, those are sufficient grounds for finding that domestic remedies have been exhausted.

However, the Court has also ruled that domestic remedies must be effective, that is, they must be capable of producing the results for which they were intended, and that if there is proof of a practice or policy, ordered or tolerated by the government, the effect of which is to prevent certain persons from availing themselves of internal remedies that would normally be available to all others, resorting to those remedies becomes a senseless formality, so that the exceptions to the exhaustion of domestic remedies provided for in Article 46(2) of the Convention would be fully applicable.

In its analysis of the substance of the case, set forth in section VI below, the Commission finds that, during the period in which the alleged events took place, there existed in Peru a practice or policy of disappearances, ordered or tolerated by various government authorities. For that reason, and given that that practice rendered writs of habeas corpus completely ineffective in cases of disappearances, the Commission finds that, for purposes of admissibility of complaints before this Commission, it was not necessary to attempt the habeas corpus remedy--or any other--in order to exhaust domestic remedies. Consequently, the Commission considers that the rule regarding exceptions to the exhaustion of domestic remedies established in Article 46(2) of the Convention is fully applicable.[2] 

            24.            The Commission considers that the foregoing considerations apply fully to the instant case, as it is a complaint regarding a forced disappearance alleged to have occurred in 1992, which has been imputed to the National Police of Peru and the Peruvian Navy.  That disappearance is said to have occurred during the period (1989-1993) when the Commission determined, as noted in the above quote, that there was a practice or policy of disappearances in Peru ordered or tolerated by several public authorities, rendering completely ineffective the habeas corpus remedy in cases of disappearance; accordingly, the Commission determined that for the purpose of the admissibility of complaints to the Commission, it was not necessary to pursue the habeas corpus remedy--or any other--to exhaust domestic remedies.  Therefore, the Commission concludes that this case fits within the exception set forth at Article 46(2)(a) of the Convention, according to which the requirement to exhaust domestic remedies provided for at Article 46(1)(a) of the Convention is not applicable when “the domestic legislation of the state concerned does not afford due process of law for the protection of the right or rights that have allegedly been violated.” The Commission observes, in addition, that the investigations conducted were archived definitively by the Office of the Public Prosecutor, in compliance with the provisions of the amnesty laws, laws Nos. 26.479 and 26.492, which definitively blocked the attainment of any results to which those investigations may have led. 

c.            Time period for submission 

25.            With respect to the requirement set forth at Article 46(1)(b) of the Convention, according to which the petition must be submitted within six months from the date on which the victim is notified of the final judgment that exhausted domestic remedies, the Commission observes that this requirement does not apply in this case.  This is because the exception to the exhaustion requirement at Article 46(2)(a) of the Convention, as set forth in the previous paragraph, also holds--by mandate of Article 46(2) of the Convention--for the requirement concerning the time for submission of the petitions provided for at the Convention. 

26.            The Commission, without prejudging on the merits, should add that the forced disappearance of a person by state agents constitutes a continuing violation by the State that persists, as a permanent infraction of several articles of the American Convention, until the person or corpse appears.  Therefore, the requirement concerning the time period for submission of petitions, set forth at Article 46(1)(b) of the American Convention, does not apply to such cases.     

d.             Duplicity of procedures and res judicata 

27.            The Commission understands that the subject matter of the petition is not pending before any other procedure for international settlement, nor does it reproduce a petition already examined by this or any other international organization. Therefore, the requirements established at Articles 46(1)(c) and 47(d) are also satisfied.   

e.             Characterization of the facts   

28.            The Commission considers that the petitioner's presentation refers to facts which, if true, could characterize a violation of rights guaranteed in the Convention, for, as established supra, the issue submitted to the Commission is the forced disappearance of several persons.   

29.            For all the reasons set forth above, the Commission considers that it has jurisdiction to take cognizance of this case, and that pursuant to Articles 46 and 47 of the American Convention the petition is admissible, in the terms set forth above.

B.            Considerations on the merits 

30.            Having determined its jurisdiction to hear this case, and that in keeping with Articles 46 and 47 of the American Convention the petition is admissible, the Commission now moves on to set forth its decision on the merits, bearing in mind that the parties did not agree to initiate a friendly settlement procedure, and that the Commission already has sufficient grounds to make a decision on the merits.   

a.            State practice of disappearances 

31.            In relation to the analysis of the merits of the present case, the Commission regards as pertinent to reiterate the following considerations concerning the practice of forced disappearances in Peru that the Commission set forth recently, when it decided an accumulated group of 35 cases involving 67 “disappeared” persons in different provinces of Peru during 1989-1993. To this respect, the Commission ruled in the following terms, which completely ratifies in the present case:     

… the Commission decided to combine the cases under review because it considers that the alleged events suggest a pattern of disappearances brought about by Peruvian State agents around the same time period (1989-1993), within the context of what are called anti-subversive activities, and employing the same modus operandi.

The Commission therefore decided to look into the possible existence of a practice of forced disappearances brought about by the Peruvian State, or at least tolerated by it, during the period in question (1989-1993). The Commission cannot ignore, to use the words of the Inter-American Court, "the special seriousness of finding that a State Party to the Convention has carried out or has tolerated a practice of disappearances in its territory." Nonetheless, it is crucial that the Commission, in accordance with the functions assigned to it, carry out that analysis, not only for the purposes of this report, but also to arrive at the truth regarding a policy of human rights violations, with all its possible repercussions for the clarification of other cases that have come to the attention of this Commission.

In this regard, it should be pointed out that the criteria used to evaluate evidence in an international court of human rights have special standards, which empower the Commission to weigh the evidence freely and to determine the amount of proof necessary to support the judgment. 

The modus operandi used, according to the petitions received by the Commission, in the arrests and disappearances in the cases in question, involving Messrs. (…), shows an overall pattern of behavior that can be considered admissible evidence of a systematic practice of disappearances.

The Commission has received a very large number of complaints of disappearances in Peru, many of which pertain to multiple disappeared persons. In its 1993 Report on the Situation of Human Rights in Peru, the Commission discussed the problem of the forced disappearance of persons in that country and indicated that it had already passed 43 resolutions regarding individual cases involving 106 victims. Subsequently, the Commission has continued to write reports on the matter. Moreover, the Peruvian State itself has officially recognized the existence of forced disappearances and has reported on 5,000 complaints of disappearances between 1983 and 1991. The large number of complaints of this type is a clear indication, in the Commission’s view, that disappearances in Peru followed an official pattern devised and carried out in a systematic manner.

This indication is supported by the fact that, at the United Nations (UN), the Working Group on Enforced or Involuntary Disappearances, established by the Commission on Human Rights in 1980, had received 3,004 cases of forced disappearances in Peru. That Group points out that:

The vast majority of the 3,004 cases of reported disappearances in Peru occurred between 1983 and 1992, in the context of the Government's fight against terrorist organizations, especially the "Shining Path" (Sendero Luminoso). In late 1982, the armed forces and police undertook a counter-insurgency campaign and the armed forces were granted a great deal of latitude in fighting Shining Path and in restoring public order. While the majority of reported disappearances took place in areas of the country which had been under a state of emergency and were under military control, in particular in the regions of Ayacucho, Huancavelica, San Martín, and Apurímac, disappearances also took place in other parts of Peru. Detentions were reportedly frequently carried out openly by uniformed members of the armed forces, sometimes together with Civil Defense Groups. Some 20 other cases reportedly occurred in 1993 in the Department of Ucayali and concerned largely the disappearance of peasants. [Report of the Working Group on Enforced or Involuntary Disapperances.  UN document E/CN.4/1998/43, dated January 12, 1998, paragraph 297 (unofficial translation)]

Dr. Imelda Tumialán, the ad hoc Provincial Prosecutor for the Department of Junín, has placed on record that in 1991 there were more than 100 disappearances in that Department. Likewise, in a note dated January 9, 1992, Peru's Assistant Attorney General pointed out that in the first 11 months of 1991 there had been 268 complaints of disappearances, and that only a few cases had been solved. For its part, the National Coordinating Body for Human Rights in Peru, a recognized nongovernmental umbrella group of various Peruvian human rights organizations, estimates that 725 persons disappeared in Peru between 1990 and 1992. The Commission has been told that reports circulating freely in Peru indicated that military personnel, and in some cases police officers, were carrying out disappearances. The Commission has received numerous articles and news reports on such disappearances, published by the print media and others.

On the basis of the foregoing evidence, the Commission concludes that in the 1989-1993 period there existed in Peru a systematic and selective practice of forced disappearances, carried out by agents of, or at least tolerated by, the Peruvian State. That official practice of forced disappearances was part of the "fight against subversion", although in many cases it harmed people who had nothing to do with the activities related to dissident groups.

Perpetration of the disappearances 

On the basis of the various items of evidence mentioned above, the Commission sees fit to map out the steps usually involved in the above-mentioned official policy of disappearances: 

Detention of the victims  

The Commission has been told that, in general, perpetration of the disappearances was delegated to the political military commanders and the commanding officers at military bases. The latter imparted orders directly to the personnel who carried out the detentions, normally the first stage of the disappearance process. Peru's national police force was also in charge of perpetrating disappearances, usually through DINCOTE.

Most often the abduction and disappearance of a person began with information obtained by members of the intelligence service, according to which that person was in some way linked to subversive groups, chiefly the Shining Path or the Tupac Amaru Revolutionary Movement (MRTA). It should be pointed out that in many instances the persons concerned were in no way involved with those subversive groups, but were unfortunate enough to have been included, fraudulently or by mistake, on the lists that would later lead to their disappearance.

Another factor that, in certain Departments and under particular circumstances, could lead to the detention and later disappearance of many people was the fact that they were not carrying their voter registration documents, which were used for identification purposes. In certain cases, during checkpoint operations on public thoroughfares, a person unable to produce an identification document upon request was almost automatically considered a terrorist.

Once a person was considered "suspect", he or she was arrested; on numerous occasions, this was the first step toward disappearance. Some arrests were carried out openly in public, others at the victim's home, usually in the early hours of the morning and in the presence of witnesses. Those charged with carrying out the detentions were heavily armed soldiers or police, sometimes dressed in civilian clothing, but most often in uniform.

Generally, the soldiers or police paid little attention to the witnesses and proceeded to do what they came to do anyway. Arrests in people's homes were usually carried out in front of whoever happened to be there: wives, children, fathers, mothers, etc. Thus the normal pattern was for the personnel to arrest the victim regardless of who might be present, with no attempt to hide the official nature of what they were doing. 

Official denial of the detentions  

The same day of the arrest, or in the days immediately following, relatives would go to the place where the victim was detained and be told that he or she was not being held. It should be stressed that since the arrests were usually carried out publicly, the relatives knew where the victim had first been detained. Nevertheless, the authorities denied the detention. As the Commission has established previously:

The fact that the military authorities deny having carried out the detention thus merely confirms the clandestine nature of the military operations. Detention is neither registered nor officially admitted, in order to make it possible to employ torture during interrogation and if need be to apply extrajudicial punishment to persons considered to be sympathizers, collaborators, or members of the rebel groups.

A variation on this practice consisted of the authorities alleging that the victim had been released and even producing documents to show this, sometimes with a forgery of the victim’s signature, others with his or her real signature obtained under torture, when in fact the release had never taken place.

Torture and extrajudicial execution of detainees  

When the victim did not die as a result of the torture inflicted, he or she was generally executed in summary, extrajudicial fashion. The bodies were then hidden by burial in secret places chosen to make their discovery practically impossible.

Amnesty for those responsible for the disappearances

In general, cases of disappearance in Peru were not seriously investigated. In practice, those responsible enjoyed almost total impunity, since they were carrying out an official State plan. Despite that, the authorities decided to go even further by passing Act Nº 26.479 (the "Amnesty Act") in 1995. Article 1 of that Law grants a blanket amnesty to all members of the security forces and civilian personnel accused, investigated, indicted, prosecuted, or convicted for human rights violations committed between May 1980 and June 1995. That law was later strengthened by Act Nº 26.492, which prohibited the judiciary from ruling on the legality or applicability of the Amnesty Law. In its annual reports for 1996 and 1997, the Commission has addressed the issue of those amnesty laws in the overall analysis of the human rights situation in Peru.

Although the Commission has been told that both laws can be rendered inapplicable by Peruvian judges, through what is known as their "broad powers" to rule on the constitutionality of laws--provided for in Article 138 of the Peruvian Constitution--the Commission considers the aforesaid laws an invalid attempt to legalize the impunity that existed in practice with regard to forced disappearances and other serious offenses committed by agents of the State. For example, the Commission has learned that the judges of the Constitutional Court, who were removed by the Congress, invoked that same Article 138 of the Constitution in their December 27, 1996, finding that Act Nº 26.657 did not apply to President Alberto Fujimori.

The burden of proof regarding disappearances

The general principle is that, in cases of disappearance in which, in the Commission’s view, there is sufficient evidence that the arrest was carried out by State agents acting within the general framework of an official policy of disappearances, it shall be presumed that the victim’s disappearance was brought about by acts by Peruvian State agents, unless that State gives proof to the contrary.

Thus it is not incumbent upon the petitioners to prove that the victims have disappeared, because it may be assumed, for lack of proof to the contrary, that the Peruvian State is responsible for the disappearance of any person it has detained. This is even more important in view of the aforementioned government practice of causing disappearances. It is up to the State to prove that it was not its agents who brought about the disappearance of the victims.

Indeed, the "policy of disappearances, sponsored or tolerated by the Government, is designed to conceal and destroy evidence of disappearances". Then, as a result of action by the State, the petitioner is deprived of evidence of the disappearance, since "this type of repression is characterized by an attempt to suppress all information about the kidnapping or the whereabouts and fate of the victim." The fact is, as established by the Inter-American Court of Human Rights:

.... in contrast to domestic criminal law, in proceedings to determine human rights violations the State cannot rely on the defense that the complainant has failed to present evidence when it cannot be obtained without the State’s cooperation.

The Commission has explained in this regard that when there is proof of the existence of a policy of disappearances sponsored or tolerated by the Government, it is possible, using circumstantial or indirect evidence, or through relevant logical inference, to prove the disappearance of a specific individual when that would otherwise be impossible given the link between that disappearance and the overall policy.  

More recently, the Commission has also determined that:  

The burden of proof lies with the State, because when the State holds a person in detention and under its exclusive control, it becomes the guarantor of that person’s safety and rights. In addition, the State has exclusive control over information or evidence regarding the fate of the detained person. This is particularly true in a disappearance case where, by definition, the family members of the victim or other interested persons are unable to learn about the fate of the victim.

This establishes the inversion of the burden of proof for cases of disappearance in Peru and the effects of that inversion on cases being heard by the Commission.

Considerations relating to forced disappearances 

The General Assembly of the Organization of American States (OAS) has called the practice of the forced or involuntary disappearance of persons a crime against humanity that strikes against the fundamental rights of the human individual, such as personal liberty and well-being, the right to proper judicial protection and due process, and even the right to life. In that context, the member states of the Organization of American States (OAS) adopted, in 1994, an Inter-American Convention on the Forced Disappearance of Persons as a means of preventing and punishing the forced disappearance of persons in our Hemisphere.

The Commission has affirmed, in relation to the forced disappearance of persons, that:

This procedure is cruel and inhuman. ... [It] not only constitutes an arbitrary deprivation of freedom but also a serious danger to the personal integrity and safety and to even the very life of the victim. It leaves the victim totally defenseless, violating the rights to a fair trial, to protection against arbitrary arrest, and to due process.

The UN Working Group on Enforced or Involuntary Disappearances has affirmed that the forced or involuntary disappearance of a person is a particularly odious violation of human rights, and is

a doubly paralyzing form of suffering: for the victims, frequently tortured and in constant fear for their lives, and for their family members, ignorant of the fate of their loved ones, their emotions alternating between hope and despair, wondering and waiting, sometimes for years, for news that may never come. The victims are well aware that their families do not know what has become of them and that the chances are slim that anyone will come to their aid. Having been removed from the protective precinct of the law and "disappeared" from society, they are in fact deprived of all their rights and are at the mercy of their captors. If death is not the final outcome and they are eventually released from the nightmare, the victims may suffer for a long time from the physical and psychological consequences of this form of dehumanization and from the brutality and torture which often accompany it.

The family and friends of disappeared persons experience slow mental torture, not knowing whether the victim is still alive and, if so, where he or she is being held, under what conditions, and in what state of health. Aware, furthermore, that they too are threatened; that they may suffer the same fate themselves, and that to search for the truth may expose them to even greater danger.

The family’s distress is frequently compounded by the material consequences resulting from the disappearance. The missing person is often the mainstay of the family’s finances. He or she may be the only member of the family able to cultivate the crops or run the family business. The emotional upheaval is thus exacerbated by material deprivation, made more acute by the costs incurred should they decide to undertake a search. Furthermore, they do not know when--if ever--their loved one is going to return, which makes it difficult for them to adapt to the new situation. In some cases, national legislation may make it impossible to receive pensions or other means of support in the absence of a certificate of death. Economic and social marginalization is frequently the result.[3] 

b.             Facts established 

32.            In keeping with the doctrine of the Commission outlined above, the general principle is that in cases of disappearance in which there are sufficient indicia of evidence, in the view of the Commission, that the detention was presumably effectuated by State agents in the general context of an official policy of disappearances, the Commission will presume that the victim was disappeared by agents of the Peruvian State, unless that State has proven otherwise.   

            33.            In applying those considerations to the instant case, the Commission, as regards the detention of the victims, observes that the petitioner alleges that Messrs. Pedro Pablo López González, Denis Atilio Castillo Chávez, Gilmer Ramiro León Velásquez, Jesús Manfredo Noriega Ríos, Roberto and Carlos Alberto Barrientos Velásquez, and Carlos Martín and Jorge Luis Tarazona More were detained on May 2, 1992, by members of the National Police and Peruvian Navy, in the human settlements of “La Huaca,” “Javier Heraud,” and “San Carlos,” located in the district and province of Santa, department of Ancash, and that they later disappeared. 

            34.            In this respect, and based on the facts narrated by the petitioner and the fact that the Office of the Attorney General had determined, on August 31, 1995, to definitively archive the investigation, because it was considered that from the relevant evidence it appeared to be “members of the armed forces and the National Police of Peru,” the Commission has sufficient grounds to establish the veracity of the facts alleged with respect to the victims’ detention.^[4]  The foregoing is also corroborated by the testimony of Mrs. Maximina González Méndez, Mrs. Paula Peregrina Flores de Dionicio, Mrs. Cruz Velásquez León de Barrientos, Mrs. Hormecinda Velásquez viuda de León, Mrs. Agustina Moreno Estrada, and Mrs. Margot Nancy Reyes Sáenz; the testimony of Messrs. Alejandro Castillo Vega and Germán Domingo Quispe Moreno; the modus operandi of the detention; and all the other evidentiary indicia, which include the steps taken and remedies pursued domestically to locate and win the release of the victims, the reports prepared by the police to deny that the detentions had been at the hands of members of the police, without the Peruvian State carrying out a serious judicial investigation into the grave facts. In addition is the circumstance that the detentions occurred in 1992, a time when, as the Commission has established, there was a systematic and selective practice of forced disappearances by agents of the Peruvian State.   

            35.            Based on the foregoing, the Commission finds that the victims were detained on May 2, 1992, by members of the National Police and Peruvian Navy at the human settlements of “La Huaca,” “Javier Heraud,” and “San Carlos,” located in the district and province of Santa, department of Ancash. 

            36.            Therefore, and in keeping with the above-noted doctrine of the Commission, the burden was on the Peruvian State to prove that it did not disappear Messrs. López González, Castillo Chávez, Ramiro León Velásquez, Noriega Ríos, Barrientos Velásquez, and Tarazona More.  In effect, the Commission observes that the State did not provide any evidence tending to show that it did not disappear Messrs. López González, Castillo Chávez, Ramiro León Velásquez, Noriega Ríos, Barrientos Velásquez, and Tarazona More; rather, it initially denied that it had detained them, and archived the investigations due to the fact that there was evidence that members of the Police and armed forces were responsible for those disappearances. 

            37.            Based on the reasons set forth above, the Commission concludes that the Peruvian State, through the National Police and Peruvian Navy, detained Messrs. Pedro Pablo López González, Denis Atilio Castillo Chávez, Gilmer Ramiro León Velásquez, Jesús Manfredo Noriega Ríos, Roberto and Carlos Alberto Barrientos Velásquez, and Carlos Martín and Jorge Luis Tarazona More on May 2, 1992, in the human settlements of “La Huaca,” “Javier Heraud,” and “San Carlos,” located in the district and province of Santa, department of Ancash, and that it later proceeded to disappear them.  

38.            That detention and subsequent disappearance followed the characteristic pattern:  the detention of the victim by military agents; an official denial of responsibility for the disappearance; the failure of the public authorities to carry out an investigation into the situation of the victim; the ineffectiveness of domestic remedies; the torture and possible extrajudicial execution of the victim; and absolute impunity, reinforced by the subsequent amnesty.   

c.             Violation of the victims' human rights   

39.            The Commission now proceeds to analyze the specific violations by the Peruvian State of the rights set forth in the Convention implicit in the disappearance of Messrs.  Pedro Pablo López González, Denis Atilio Castillo Chávez, Gilmer Ramiro León Velásquez, Jesús Manfredo Noriega Ríos, Roberto and Carlos Alberto Barrientos Velásquez and Carlos Martín and Jorge Luis Tarazona More.