...continued  

  Right to Personal Liberty (Article 7 of the Convention) 

  40.            The American Convention establishes: 

Article 7.  Right to Personal Liberty   

1. Every person has the right to personal liberty and security.

2. No one shall be deprived of his physical liberty except for the reasons and under the conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto.  

3. No one shall be subject to arbitrary arrest or imprisonment.  

4. Anyone who is detained shall be informed of the reasons for his detention and shall be promptly notified of the charge or charges against him.

5. Any person detained shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to be released without prejudice to the continuation of the proceedings. His release may be subject to guarantees to assure his appearance for trial.

6. Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful. In States Parties whose laws provide that anyone who believes himself to be threatened with deprivation of his liberty is entitled to recourse to a competent court in order that it may decide on the lawfulness of such threat, this remedy may not be restricted or abolished. The interested party or another person in his behalf is entitled to seek these remedies.

7. No one shall be detained for debt. This principle shall not limit the orders of a competent judicial authority issued for nonfulfillment of duties of support. 

            41.            A detention is arbitrary and illegal when not carried out for the reasons, and according to the formalities, established by law; when carried out without adherence to the standards established by law; and when it involves misuse of the authority to arrest--in other words, when carried out for purposes other than those envisaged and stipulated by law. The Commission has also pointed out that detention for improper ends is, in itself, a form of penalty without due process, or extralegal punishment, which violates the guarantee of a fair trial. 

            42.            In the instant case, Peruvian citizens Pedro Pablo López González, Denis Atilio Castillo Chávez, Gilmer Ramiro León Velásquez, Jesús Manfredo Noriega Ríos, Roberto and Carlos Alberto Barrientos Velásquez, Carlos Martín and Jorge Luis Tarazona More were illegally and arbitrarily detained by members of the National Police and Peruvian Navy.  

43.            It is necessary to recall the circumstances in Peru at that time, which generally affected most of the Departments where detentions and disappearances occurred. Continuous raids by armed groups had generated permanent unrest in the local population. For that reason, a "state of exception" had been declared in various Departments, which was, prima facie, justified by the crisis faced by the Peruvian State in fighting terrorism. By virtue of that state of emergency, in numerous Departments Article 2(20)(g) of the 1979 Constitution had been suspended, [5] which meant that the military was legally empowered to detain a person without a warrant from a competent judge, even if an individual was not being caught in flagranti.   

44.             Despite the prima facie legality of this measure, the security forces are not thereby entitled, without restrictions, to detain citizens arbitrarily. The suspension of the judicial warrant requirement for detention does not mean that public officials are exempted from observing the legal requirements for such detentions, nor does it annul jurisdictional controls over the manner in which detentions are carried out.   

45.            The suspension of the right to personal liberty authorized in Article 27 of the American Convention on Human Rights can never be absolute. There are basic principles at the heart of any democratic society that the security forces must respect in order to carry out a detention, even in a state of emergency. The legal prerequisites for detention are obligations that State authorities must respect, in keeping with their international commitment under the Convention to protect and respect human rights.   

46.            Secondly, in accordance with those principles, preventive detention by the military or police must be designed solely to prevent the escape of a person suspected of having committed a crime and thereby ensure his appearance before a competent court, either for trial within a reasonable period of time or for his release. No State may impose a sentence without a trial.[6]In a constitutional, democratic State in which the rule of law and the separation of powers are respected, all penalties established by law should be imposed by the judiciary after guilt has been established in a fair trial with all the procedural guarantees. The existence of a state of emergency does not authorize the State to disregard the presumption of innocence, nor does it confer upon the security forces the right to exercise an arbitrary and unlimited ius puniendi.   

47.            On this subject, Article 7(5) of the American Convention establishes that "Any person detained shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to be released...." Paragraph 6 of that article adds: "Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention (...)". The Commission has also stated that anyone deprived of his liberty must be kept in an officially recognized detention center and brought, without delay, in accordance with domestic legislation, before a competent judicial authority. Should the authority fail to comply with this legal obligation, the State is duty-bound to guarantee the detainee’s right to apply for an effective judicial remedy to allow judicial verification of the lawfulness of his detention.   

48.            The Commission concludes that the Peruvian State is responsible for violating the right to personal liberty and security by arbitrarily imprisoning 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; for violating their right of recourse to a competent judge or court that would rule on the lawfulness of their arrest; and, thereby, for violating Article 7 of the American Convention on Human Rights.  

Right to Humane Treatment (Article 5 of the Convention) 

49.            The American Convention establishes: 

Article 5. Right to Humane Treatment

1. Every person has the right to have his physical, mental, and moral integrity  respected.

2. No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.

3. Punishment shall not be extended to any person other than the criminal.

4. Accused persons shall, save in exceptional circumstances, be segregated from convicted persons, and shall be subject to separate treatment appropriate to their status as unconvicted persons.

5. Minors while subject to criminal proceedings shall be separated from adults and brought before specialized tribunals, as speedily as possible, so that they may be treated in accordance with their status as minors.

6. Punishments consisting of deprivation of liberty shall have as an essential aim the reform and social readaptation of the prisoners.  

50.            Since forced disappearance involves violation of multiple rights, violation of the right to humane treatment is implicit in the cases 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. 

51.            In this regard, the Court has stated that "prolonged isolation and deprivation of communication are in themselves cruel and inhuman treatment, harmful to the psychological and moral integrity of the person and a violation of the right of any detainee to respect for his inherent dignity as a human being. Such treatment, therefore, violates Article 5 of the Convention, which recognizes the right to the integrity of the person....". [7]  

52.            Accordingly, the Commission, on the basis of the facts presented, is convinced, by way of presumptive evidence, 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 tortured.  The circumstances in which the victims were detained, kept hidden, isolated, and in solitary confinement, and their defenselessness as a result of being denied and prevented from exercising any form of protection or safeguards of their rights make it perfectly feasible for the armed forces to have tortured the victims with a view to extracting information about subversive groups or units. Accordingly, the Commission concludes that the Peruvian State violated the rights guaranteed to the victims under Article 5 of the Convention.  

Right to Life (Article 4 of the Convention)   

53.            The American Convention establishes: 

Article 4. Right to Life

1. Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.

2. In countries that have not abolished the death penalty, it may be imposed only for the most serious crimes and pursuant to a final judgment rendered by a competent court and in accordance with a law establishing such punishment, enacted prior to the commission of the crime. The application of such punishment shall not be extended to crimes to which it does not presently apply.

3. The death penalty shall not be reestablished in states that have abolished it.

4. In no case shall capital punishment be inflicted for political offenses or  related common crimes.

5. Capital punishment shall not be imposed upon persons who, at the time the crime was committed, were under 18 years of age or over 70 years of age; nor shall it be applied to pregnant women.  

6. Every person condemned to death shall have the right to apply for amnesty, pardon, or commutation of sentence, which may be granted in all cases. Capital punishment shall not be imposed while such a petition is pending decision by the competent authority.  

54.            The Inter-American Court of Human Rights has stated that the forced disappearance of persons "often involves secret execution without trial, followed by concealment of the body to eliminate any material evidence of the crime and to ensure the impunity of those responsible. This is a flagrant violation of the right to life, recognized in Article 4 of the Convention...". The Court also ruled that the fact that a person has disappeared for seven years creates a reasonable presumption that he or she was killed. [8]      

            55.            In the case 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,  it has been established that they were disappeared by state agents, and there are sufficient grounds to presume they are dead, considering that more than seven years have elapsed since their detention and disappearance, and the fact that the persons responsible for their disappearance are state agents. 

56.            Therefore, the Commission finds that the Peruvian State violated the victim’s right to life, a fundamental right protected under Article 4 of the Convention, which states that "Every person has the right to have his life respected... No one shall be arbitrarily deprived of his life."   

Right to Juridical Personality (Article 3 of the Convention)  

57.            The American Convention establishes: 

Article 3. Right to Juridical Personality

Every person has the right to recognition as a person before the law.   

58.            Article 3 of the American Convention on Human Rights establishes that every person has the right to recognition as a person before the law. When Messrs.  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 and then "disappeared" by State agents, they were  excluded from the legal and institutional framework of the Peruvian State. In that sense, the forced disappearance of persons constitutes the negation of their very existence as human beings recognized as persons before the law. [9]    

59.            Thus, the Commission finds that Peru violated the victims 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  right to recognition of a person before the law, enshrined in Article 3 of the Convention.   

Right to Judicial Protection (Article 25 of the Convention)   

60.            The American Convention establishes:   

Article 25. Right to Judicial Protection

1. Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties.

2. The States Parties undertake:

a. to ensure that any person claiming such remedy shall have his rights determined by the competent authority provided for by the legal system of the state;

b. to develop the possibilities of judicial remedy; and

c. to ensure that the competent authorities shall enforce such remedies when granted.   

61.            From the information provided by the parties, it is clear that the Peruvian State has not complied with its obligation to investigate the facts of this case and initiate judicial proceedings.   

62.            The Inter-American Court of Human Rights has stated that the principles of international law "refer not only to the formal existence of such remedies, but also to their adequacy and effectiveness, as shown by the exceptions set out in Article 46(2)." [10] It has also made it clear that the failure to provide effective, not merely formal, judicial remedies not only entails an exception to the rule that domestic remedies must be exhausted, but also constitutes a violation of Article 25 of the Convention.[11]  

63.            Peruvian law establishes that in all cases of offenses against the public order, the Office of the Attorney General represents both the State and the victim. The Office of the Attorney General is obligated to participate in investigating and prosecuting the crime. Consequently, it should promote and undertake whatever action may be required (provision of evidence, inspections, or any other) to establish the veracity of the complaint, to identify those responsible, if applicable, and to bring criminal charges against them.   

64.            The jurisprudence of the Inter-American Court of Human Rights confirms the provisions of domestic law when it refers to the obligation of States and says, with regard to the previous point, that "The State has a legal duty (...) to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation."[12]   

65.            The State must not evade, under any pretext, its duty to investigate a case involving violation of fundamental human rights. The Court says as much when it states that "the investigation... must be undertaken in a serious manner and not as a mere formality preordained to be ineffective. An investigation must have an objective and be assumed by the State as its own legal duty, not as a step taken by private interests that depends upon the initiative of the... family... without an effective search for the truth by the government."[13]   

66.            The right to be brought before a competent judge is a fundamental safeguard for the rights of any detainee. As the Inter-American Court of Human Rights has stated, judicial supervision of detention, through habeas corpus, "performs a vital role in ensuring that a person’s life and physical integrity are respected, in preventing his disappearance or the keeping of his whereabouts secret and in protecting him against torture or other cruel, inhumane, or degrading punishment or treatment."[14]

67.            Precisely for that reason, Article 27 of the American Convention on Human Rights has established that essential judicial guarantees safeguarding certain fundamental rights cannot be suspended. As the Inter-American Court of Human Rights has ruled, "from Article 27(1), moreover, comes the general requirement that in any state of emergency there be appropriate means to control the measures taken, so that they are proportionate to the needs and do not exceed the strict limits imposed by the Convention or derived from it."[15]  

68.            The Court has also stated that the judicial nature of those means presupposes "the active involvement of an independent and impartial judicial body having the power to pass on the lawfulness of measures adopted in a state of emergency [16] and that "it must also be understood that the declaration of a state of emergency" whatever its breadth or denomination in internal law "cannot entail the suppression or ineffectiveness of the judicial guarantees that the Convention requires States Parties to establish for the protection of the rights not subject to derogation or suspension by the state of emergency."[17] 

69.       According to the Inter-American Court of Human Rights, this also includes the right to a fair trial enshrined in Article 8, which "includes the prerequisites necessary to ensure the adequate protection of those persons whose rights or obligations are pending judicial determination." [18] The Court concluded that "the principles of due process of law cannot be suspended in states of exception insofar as they are necessary conditions for the procedural institutions regulated by the Convention to be considered judicial guarantees."[19] 

70.            Such a lack of access to effective domestic remedies against acts that violate fundamental rights constitute a violation by the Peruvian State of Articles 8 and 25 of the Convention.   

Obligation to respect and guarantee rights   

71.            In this case, it has been shown that the Peruvian State failed to comply with the obligation, set forth in Article 1(1) of the Convention, "to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms," because it violated rights established in Articles 3, 4, 5, 7, 8 and 25 of the Convention.   

72.            The first obligation of States, under Article 1(1) of the Convention, is to respect the rights and freedoms of all persons subject to their jurisdiction. With regard to this obligation, the Court ruled that "under international law a State is responsible for the acts of its agents… and for their omissions, even when those agents act outside the sphere of their authority or violate internal law". It ruled also that "any violation of rights recognized by the Convention carried out by an act of public authority or by persons who use their position of authority is imputable to the State." [20]   

73.            The Commission concludes that the forced 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 constitutes acts perpetrated by agents of public authority, and that, therefore, the Peruvian State violated the rights of that victims, enshrined in Article 1(1) of the Convention, in relation to violations of Articles 3, 4, 5, 7, 8 and 25 of the Convention.   

74.            The second obligation set forth in Article 1(1) is to ensure free and full exercise of the rights and freedoms recognized in the Convention. On this the Court’s jurisprudence establishes that: "This obligation implies the duty of the States Parties to organize the governmental apparatus, and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights. As a consequence of this obligation, States must prevent, investigate, and punish any violation of the rights recognized by the Convention …" [21] 

75.            In the event of a "forced disappearance", the State is obligated to ascertain the whereabouts and situation of the victim, punish those responsible, and make reparation to the family members. In the case at hand, these obligations have not been met. Therefore, the Commission concludes that the Peruvian State has violated Article 1(1) of the Convention by failing to ensure the exercise of the rights and guarantees of the individual involved.   

            V.            PROCEEDINGS AFTER REPORT Nº 134/99 

          76.            The Commission approved Report Nº 134/99 (Article 50) on the instant case on November 19, 1999, during its 105th session (special).  That report, which contains the Commission’s  recommendations, was transmitted to the Peruvian State on December 20, 1999; it was given two months to carry out the recommendations, counted from the date the Report was sent. 

          77.            By Note No. 7-5-M/072, of February 22, 2000, the State forwarded its considerations on Report Nº 134/99 to the Commission, and stated its disagreement with points of fact and law reflected in that report, and with the Commission’s conclusion.  The State insisted that the petitioner had not exhausted domestic remedies. 

          78.            The Peruvian State indicated its specific discrepancy with the IACHR’s conclusion in paragraph 82 infra, and insists in this regard that 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 were not detained by members of the Peruvian Police or Navy.  It added that “accordingly, the recommendations of the IACHR are inadmissible.” 

79.             Finally, the State indicated, with respect to amnesty laws 26.479 and 26.492, that "both provisions were approved by the Congress of the Republic in the exercise of the functions that the Constitution confers on it, and are part of the policy of pacification initiated by the Peruvian State."  

80.             The Commission refrains from analyzing the reiterations of the Peruvian State in response to arguments made prior to the adoption of Report Nº 134/99, and its expressions of disagreement with that Report, for pursuant to Article 51(1) of the Convention, what the Commission must determine at this stage of the procedure is whether the State did or did not resolve the matter. In this respect, the IACHR observes that the Peruvian State has not carried out any of the recommendations made to it by the Commission in its Report Nº 134/99.  

81.             With respect to Peru's allegation that the amnesty laws are consistent with the Peruvian Constitution, the Commission recalls that the Peruvian State, on ratifying the American Convention on Human Rights, on July 28, 1978, contracted the obligation to respect and ensure the rights set forth in it. In this regard, and in keeping with Article 27 of the Vienna Convention on the Law of Treaties, the Peruvian State cannot invoke its internal laws as justification for failure to comply with the obligations it assumed on ratifying the American Convention on Human Rights. Over the years, this Commission has adopted reports in several key cases in which it has had the opportunity to express its point of view and crystallize its doctrine with respect to the application of amnesty laws, establishing that such laws violate several provisions of both the American Declaration and the American Convention.[22] These decisions, which are in agreement with the criterion adopted by other international human rights bodies regarding amnesties,[23] have declared uniformly that both the amnesty laws and comparable legislative measures that impede or that determine the conclusion of the investigation and trial of State agents who may be responsible for serious violations of the American Convention or the American Declaration violate several provisions of those instruments.[24] This doctrine has been confirmed by the Inter-American Court of Human Rights, which has established that the States Parties have the duty "to investigate human rights violations, prosecute the persons responsible, and prevent impunity."[25] The Court has defined impunity as the failure to investigate, pursue, arrest, try, and sentence persons responsible for human rights violations, and has affirmed that the States have the duty to combat this situation by all legal means available, since impunity fosters the chronic repetition of such human rights violations, and the total defenselessness of the victims and their families.[26] The States Parties to the American Convention cannot invoke provisions of domestic law, such as amnesty laws, to fail to carry out their obligation to guarantee the complete and correct functioning of the justice system.[27]  

            VI.            CONCLUSION 

            82.            The Commission concludes that the Peruvian State, through members of 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, at 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 then proceeded to disappear them.  Therefore, the Peruvian State is responsible for the forced disappearance of the victims identified above, violating the following rights: the right to liberty (Article 7), the right to humane treatment (Article 5), the right to life (Article 4), the right to juridical personality (Article 3), and the right to an effective judicial remedy (Article 25) enshrined in the American Convention on Human Rights.  In addition, the Peruvian State has breached its general obligation to respect and ensure the exercise of these rights set forth in the Convention, in the terms of Article 1(1) thereof. 

         VII.             RECOMMENDATIONS   

Based on the foregoing analysis and conclusion,    

THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS REITERATES THE FOLLOWING RECOMMENDATIONS TO THE PERUVIAN STATE:   

1.            That it carry out an exhaustive, impartial, and effective investigation to determine the circumstances of the forced disappearance of 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, and that it punish the persons responsible, in keeping with Peruvian legislation.   

2.            That it void any domestic measure, legislative or otherwise, that tends to impede the investigation, prosecution, and punishment of the persons responsible for the detention and forced disappearance of 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.  Accordingly, the State should nullify Laws 26.479 and 26.492.   

3.            That it adopt the measures required for the family members of  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 to receive adequate and timely reparation for the violations established herein. 

VIII.            PUBLICATION 

          83.            On October 4, 2000, the Commission transmitted Report 58/00, whose text is the foregoing, to the Peruvian State and the petitioner, pursuant to Article 51(2) of the Convention, and gave the State an additional time to comply with the foregoing recommendations.  On November 20, 2000, Peru forwarded a communication to the Commission in which it stated that “the Peruvian State ... is designing a comprehensive solution to cases affected by this problem. To this end, the State, and the opposition political groups and representatives of civil society, in the framework of the Mesa de Diálogo sponsored by the OAS, are holding conversations aimed at designing and implementing a National Reconciliation policy, which will include, among others, issues such as that which is the subject of this case.”  Nonetheless, in that communication the State did not show that it had carried out the Commission’s recommendations. 

          84.            According to the above considerations, and Articles 51(3) of the American Convention and 48 of the Commission’s Regulations, the Commission decides to reiterate the conclusion and recommendations set forth in chapters VI and VII above; to make public the present report and include it in its Annual Report to the OAS General Assembly. The Commission, according to the norms contained in the instruments which govern its mandate, will continue evaluating the measures adopted by the Peruvian State with respect to the above recommendations until they have been complied with by the Peruvian State.   

Approved on the 4th day of the month of December, 2000.  (Signed): Hélio Bicudo, Chairman; Claudio Grossman, First Vice-Chairman; Juan Méndez, Second Vice-Chairman; Commissioners:  Marta Altolaguirre, Robert K. Goldman, Peter Laurie, and Julio Prado Vallejo. 

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