...continued

12.     Amadeo Inca Ñaupa (or Amadeo Arcanaupa), Luciano Huamán García, Antonio Janampa Aucassi, Constantina García Gutiérrez, Marciano (or Mariano) Janampa García, Agripina Aucassi Espilico, Maura Huamán Paucar, Demetrio Huamán León, Víctor Rojas Huamán (or Víctor Huamán Paucar), Mauro Huamán Paucar, Narciso Huamán Paucar, and Melecio Chonta Huamán (Case 11.088)

Facts alleged

57.          According to the petition submitted to the IACHR by the Asociación Pro Derechos Humanos (APRODEH), from July 5 to 7, 1992, seven members of the peasant community of Pallcca, Sacsamarca district, named  Amadeo Inca Ñaupa (or Amadeo Arcanaupa), Luciano Huamán García, Antonio Janampa Aucassi, Constantina García Gutiérrez, Marciano (or Mariano) Janampa García, Agripina Aucassi Espilico, Maura Huamán Paucar, and five members of the peasant community of Manchiri, Carapo district, Huanca Sancos province, Libertadores-Wari region, called Demetrio Huamán León, Víctor Rojas Huamán (or Víctor Huamán Paucar), Mauro Huamán Paucar, Narciso Huamán Paucar, and Melecio Chonta Huamán, were summarily executed by a group of 12 heavily armed persons in civilian dress including two women. This group passed through the provinces, sacking and selectively assassinating teachers and peasants, apparently in retaliation for collaborating with subversive groups.  The armed group passed through areas close to military units without being noticed by the authorities.  After their outing, witnesses saw them enter the Pampa Cangallo military base, in Cangallo province, Ayacucho.

Processing before the Commission

58.          On December 1, 1992  the Commission opened the case and transmitted the pertinent parts of the complaint to the Peruvian state, requesting that it provide information on the facts alleged.  The State responded on February 4, 1994.

59.          On April 25, 2000, the Commission requested of both parties that they provide up-to-date information.  In this last communication, the Commission made itself available to the parties to pursue a friendly settlement, in keeping with Article 48(1)(f) of the Convention.  Once the term expired, there was not agreement between the parties to pursue a friendly settlement.  The State answered on August 23, 2000.

The State’s position

60.          It its initial report the State denied it was responsible, arguing that on the date in question no patrol left the Pampa Cangallo base to participate in missions, and that there were no combats, and that furthermore such patrols do not include women.  In the observations forwarded on August 23, 2000, the State clarified the names of three of the victims, [1] reiterated its arguments, and concluded that it had not been proven that State agents were responsible, because the two witnesses’ version of the events, cited by the petitioner, were not corroborated.  It added that by resolution of March 30, 1999, the Office of the Prosecutor ordered the provisional archiving of the investigation.  The State did not deem it advisable to pursue a friendly settlement. 

13.  Pascual Chipana Huauya, Pelagia Chipana Condori, Paulina Vásquez Esquivel, Donato Pablo, Juan Cacñahuaray, Jovita Cahuana, Pelayo Capizo, and Pelagia Pillaca (Case 11.161)

Facts alleged

61.          According to the petition submitted to the IACHR by the Asociación Pro Derechos Humanos (APRODEH) on the morning of June 16, 1992, six uniformed soldiers of the Peruvian Army from the military base of Huancapi were seen outside the peasant community of Huancaraya.  At 10:00 p.m. witnesses saw the six soldiers enter the homes of Donato Pablo, Juan Cacñahuaray, and Jovita Cahuana, respectively, who were each assassinated by approximately six gunshot wounds to the head.  The shots were not heard.   The following day, on June 17, 1992, the six soldiers arrived at the peasant community of Circamarca and at midnight entered the home of husband and wife Pelayo Capizo and Pelagia Pillaca, who were also killed with six shots to the head, the shots not being heard.  The same day, at 3:00 a.m., the soldiers arrived at the Llusita peasant community and entered the home of Pelagia Chipana Condori, who was killed with six or seven shots, which were not heard.  Next, the soldiers entered the home of Pascual Chipana Huauya and killed him in the same way, according to his mother-in-law, who was asleep in the home, and did not hear any noise.  Finally, the soldiers entered the dwelling of Paulina Vásquez Esquivel, who they killed with six or seven gunshots as she came out to the yard.  The gunshots were not heard. The petition adds that Mrs. Feliciana Quispe Huamani had to flee the community of Circamarca because of the continual siege by the Army and the DECAS antisubversive civil patrols.  In order to force Feliciana Quispe to turn herself in, on April 22, 1992, a  group from the DECAS from the community of Circamarca captured her sister, Nazaria Quispe Huamani, who was held in the Huancapi military base, and a week later she was again detained and taken to the Circamarca Military base.  On both occasions, she was released the following day.

Processing before the Commission

62.          On May 27, 1993, the Commission opened the case and forwarded the pertinent parts of the complaint to the Peruvian state, and requested information on the facts alleged.  The State answered on September 24, 1993 and sent additional information on January 31, 1994.

63.          On April 25, 2000, the Commission asked the State and the petitioners to submit up-to-date information on this case within 45 days.  In the same communication, the Commission made itself available to the parties to pursue a friendly settlement, in keeping with Article 48(1)(f) of the Convention.  Once the term expired, there was not agreement between the parties to pursue a friendly settlement. 

The State’s position

64.          The State maintained that according to the statements of Zozimo Cahuana Condori, Justice of the Peace of Huancaraya district, and Victoriano Cacñahuaray Capiso, Justice of the Peace of Circamarca district, Cecilio Condori Chipana and other authorities of the Llusita community, the peasants Pascual Chipana Huauyal; Jovita Cahuana de Barrios; Donato Pablo; Juan Cacñahuaray; Palagio Capiso Pedro; Pillaca Pelayo; Pelagia Chipana Condori; and Paulina Vásquez Esquivel, were assassinated by members of Shining Path.  In this respect, the State offered several considerations on the methods employed in the killings, and on the make-up of the group–six men and one woman–which showed that the murderers were not state agents.  Finally, the State indicated that the complaint regarding the pursuit of Feliciana Quispe Huamani was false, because the Army had given her protection.

14. Jessica Rosa Chávez Ruiz, Pedro Javier Cruz Guzmán, and Héctor Rodríguez Rodríguez (Case 11.292)

Facts alleged

65.          According to the petition submitted to the IACHR by the Asociación Pro Derechos Humanos (APRODEH) on July 5, 1993, members of the Peruvian police, in the district of Porvenir Trujillo, Libertad department, detained and physically abused Jessica Rosa Chávez Ruiz, 17, student, Pedro Javier Cruz Guzmán, 28, worker, and Héctor Rodríguez Rodríguez, 28, student; they had been participating in a social activity at the A.H. Víctor Raul Haya de la Torre.  Their corpses appeared later.  The Police authorities justified the deaths of the three as arising from an armed confrontation with three members of the Túpac Amaru subversive group, who died.  However, the corpses of the three victims showed signs of physical abuse and gunshot wounds fired from less than one meter in the chest with an oblique downward trajectory.

Processing before the Commission

66.          On May 19, 1994, the Commission opened the case and forwarded the pertinent parts of the complaint to the State, and requested information on the facts alleged.  The State answered on December 27, 1994.

67.          On May 1, 2000, the Commission asked the State and the petitioner to submit up-to-date information on this case within 45 days.  In the same communication, the Commission made itself available to the parties to pursue a friendly settlement, in keeping with Article 48(1)(f) of the Convention.  Once the term expired, there was not agreement between the parties to pursue a friendly settlement. 

The State’s position

68.          The State maintained that proceedings were brought against the members of the Peruvian Police, and that both the prosecutor and the judge had issued statements holding liable two of the officers on trial, and the case was referred to the Second Criminal Chamber on September 6, 1994.

15.          Moisés Carvajal Quispe (Case 11.680)

Facts alleged

69.          According to the petition submitted to the IACHR by the Asociación Pro Derechos Humanos (APRODEH), Moisés Carvajal Quispe was detained at the checkpoint of the Santa Rosa Military Base, in the city of Abancay, Apurímac department, on October 21, 1989 while traveling from Abancay to Aymaraes in the company of Simón Flores Quispe, his mother’s husband.  From October 24 to 27, 1989, his mother took him food at the Abancay military base, but on October 28, 1989, the authorities there refused to continue receiving it, arguing that Mr.  Carvajal Quispe had been released.  Neighbors told the mother that he had supposedly been released, but in reality he had been executed by the Army, which said he was killed while trying to escape. The autopsy showed that the corpse presented a gunshot wound that entered the back and exited the chest.

70.          These facts were reported to the local authorities.  The Special Prosecutor for Human Rights referred the case to Abancay.  On February 16, 1996, the Office of the Second Prosecutor for Abancay, prepared a summary of the facts, in which it stated that it did not have the autopsy, and that the deceased was apparently executed at the Abancay military base, and ordered that the case be provisionally archived because he had not been able to identify the perpetrators.

Processing before the Commission

71.          On September 20, 2000, the Commission opened the case, forwarded the pertinent parts of the complaint to the State, and requested it provide information on the facts alleged.  The State answered on February 6, 1997. The petitioner submitted observations to the State’s response on June 2, 1997.  The State submitted its reply to the petitioner’s observations on October 1, 1997 and an additional report on March 18, 1998.

72.           On May 1, 2000, the Commission asked the State and the petitioners to submit up-to-date information on this case within 45 days.  In the same communication, the Commission made itself available to the parties to pursue a friendly settlement, in keeping with Article 48(1)(f) of the Convention.  Once the term expired, there was not agreement between the parties to pursue a friendly settlement. 

The State’s position

73.          The State maintained that domestic remedies had not been exhausted because the investigations were ongoing for the purpose of identifying the perpetrators.  It added that the petitioner did not contest the provisional archiving of the case on February 16, 1996 by the Office of the Second Prosecutor for Criminal Matters of Abancay, and asked that the case be declared inadmissible.

B.          Cases of forced disappearances of persons

16.          Luis Alberto Sangama Panaifo and Lucio Escobal Fretel (Case 10.564)

Facts alleged

74.          According to the petition submitted to the IACHR by the Comisión Episcopal de Acción Social (CEAS), on November 19, 1989, Mr. Luis Alberto Sangama Panaifo, 28, married, was detained by members of the Peruvian police in Hoitopa, Padre Abad province, Ucayali department, and flown by helicopter on November 22, 1989 to the military base located at Km. 11,  Federico Basadre road, where the military denied he had been detained.

75.          On October 13, 1989, Lucio Escobal  Fretel, 26, married, was detained by the police for not possessing personal identification documents.  Initially, the military authorities denied that he had been detained, but finally told his wife that he had been moved to the Ayacucho Army base, where he was seen by his cousin, who was also detained, and by several soldiers.  However, this military unit denied that he was detained. Later he was seen wearing an army uniform, working as a guide. The petitioner emphasized that Mr. Escobal Fretel did not participate in military service because of pulmonary problems.

76.          The facts surrounding the disappearance of the two victims were reported to the local authorities, and writs of habeas corpus were filed.

Processing before the Commission

77.          On June 15, 1990,  the Commission opened the case and forwarded the pertinent parts of the complaint to the Peruvian state, and requested information on the facts alleged.  That request was repeated on March 18, 1991.  The State answered on March 19, 1992.

78.          On May 2, 2000, the Commission asked both parties to submit up-to-date information on this case within 45 days.  In the same communication, the Commission made itself available to the parties to pursue a friendly settlement, in keeping with Article 48(1)(f) of the Convention.  Once the term expired, there was not agreement between the parties to pursue a friendly settlement.  On June 22, 2000, the State asked for a one-month extension to submit the information.  On June 29, 2000, the Commission granted an extension that expired on July 28, 2000.  The State sent in the information requested on August 10, 2000, which was forwarded to the petitioner on September 19, 2000.

The State’s position

79.          In its initial report, the State denied that Luis Alberto Sangama Panaifo had been detained by the security forces, and argued failure to exhaust domestic remedies, given that no habeas corpus action was filed with the Courts of Criminal Inquiry that have jurisdiction over Coronel Portillo province, where the military base is located at Km. 11 of the Federico Basadre highway.  The State did not produce any information concerning the situation of Lucio Escobal Fretel and asked that the two cases be separated considering that there was no relationship between the facts that occurred on different dates, to different individuals and in different places.  In the August 9, 2000 report, the State affirmed its previous arguments and reiterated, transcribing in detail the responses of the different offices, that in the official archives there is no information on the supposed disappearance of these two people.  It added that regarding the disappearance of Lucio Escobal Fretel, his relatives did not pursue a habeas corpus remedy.  Accordingly, the State did not deem it advisable to pursue a friendly settlement.

17.          Arturo Torres Quispe (Case 10.744)

Facts alleged

80.          According to the petition submitted to the IACHR by the Centro Episcopal de Acción Social (CEAS), on May 19, 1990, Arturo Torres Quispe, 16, student, was captured on the old Duraznopata highway by Duraznopata civil defense patrol members while with his brother returning home from their school, the Colegio González Vigil.  Both youths were detained by five or six men commanded by a man called “Villar Castillo.”  Arturo Torres Quispe’s brother was able to escape and notify his parents.  The relatives inquired at the Castropampa military base without receiving any information.  These facts were reported to the local authorities without obtaining any response as to the whereabouts of Arturo Torres Quispe.

Processing before the Commission

81.          On December 3, 1990, the Commission opened the case and forwarded the pertinent parts of the complaint to the Peruvian state, and requested information on the facts alleged.  On January 2, 1997, the Commission reiterated the request for information to the State, which did not respond.

82.          On May 2, 2000, the Commission asked both parties to submit up-to-date information on this case within 45 days.  In the same communication, the Commission made itself available to the parties to pursue a friendly settlement, in keeping with Article 48(1)(f) of the Convention.  Once the term expired, there was not agreement between the parties to pursue a friendly settlement.  The State responded on June 20, 2000, and on July 14, 2000, its response was forwarded to the petitioner.

The State’s position

83.          Since the case was opened on December 3, 1990, the State has not responded.  On June 14, 2000, the State submitted the information requested for the first time, and reported on the course of the criminal investigation that had been opened, based on the complaint lodged by the victim’s mother against the Duraznopata civil defense patrols, or rondas, commanded by Villar Castillo.  It added that in spite of the inquiries at the Castropampa military base, it could not find the youth; that the authorities at the “Los Cabitos 51" counter-subversive base stated that the  Huanta Self-Defense Committees are under their supervision; that there is no information regarding citizen Arturo Torres Quispe; and that there is no record of the May 19, 1990 patrol.  Finally, the State did not deem it advisable to pursue a friendly settlement.

18. Percy Borja Gaspar, Angel Zanabria Ubaldo, Gumercindo Ubaldo Zanabria, Apolonio Lazo Rodas, Hermilio Borja Ríos, Fredy Gaspar Ríos, José Muñoz Huallpa, Ernesto Salomé Bravo, Jesús Pumahuali Salomé, and César Sánchez Castro (Case 11.040)

Facts alleged

84.          According to the petition submitted to the IACHR by the Asociación Pro Derechos Humanos (APRODEH), the ten victims were captured on February 27, 1992–and later disappeared–by a group of approximately 30 ronderos of the civil defense committees based at Rangra, Concepción, led by Julio Cantorín Clemente.  It was reported that on February 27, 1992, the ronderos arrived at the Paccha peasant community, Tambo district, Huancayo province, Junín department and forcibly entered the homes of the ten victims--Apolonio Lazo Rodas, 25; Hermilio Borja Ríos, 25; Fredy Gaspar Ríos, 22;  César Sánchez Castro, 25; José Muñoz Huallpa, 18; Ernesto Salomé Bravo, 27; Jesús Pumahuali Salomé, 40; Gumercindo Ubaldo Zanabria, 16;  Angel Zanabria Ubaldo, 16; and  Percy Borja Gaspar, 14–who they beat, detained, and later disappeared.  The petitioner added that the civil defense committees are under the authority of the Political-Military Command of that zone, and that Mrs. Inés Castro, wife of rondero Julio Cantorín, stated that her husband carried an identification card issued by the president of the rondas campesinas of the Huahuanca Multisectoral base.  Because of the facts alleged, a criminal investigation was opened in the Third Court of Criminal Inquiry of Huancayo against Julio Cantorín Clemente.

Processing before the Commission

85.          On July 7, 1992, the Commission opened the case and forwarded the pertinent parts of the complaint to the State, and requested information on the facts alleged.  The State answered on September 16, 1992 and sent additional information on October 9, 1992.

86.          On May 16, 2000, the Commission asked both parties to submit up-to-date information on this case within 45 days.  In the same communication, the Commission made itself available to the parties to pursue a friendly settlement, in keeping with Article 48(1)(f) of the Convention.  Once the term expired, there was not agreement between the parties to pursue a friendly settlement. 

The State’s position

87.          In its initial report, the State maintained that it had initiated a case in the domestic jurisdiction against rondero Julio Cantorín Clemente and others in Huancayo, under the charges of violating personal liberty, unauthorized entry, and robbery.  In the following report, the Peruvian state also rejected outright any responsibility of the armed forces in the facts, arguing that the rondas campesinas are not under the authority of the Political-Military Command or of the armed forces, and that their creation, according to the terms of Law 24,571 of November 6, 1986, was a decision of community members themselves. 

19. Máximo Muñoz Solís, Levi Vivas Espinal, Alejandro Vera Suasnabar, Edgar Nestares Justo, Javier Yañac Solano, Richard Lozano Cáceres, Oscar Cirino Baldeón Chacón, Luis Alberto Ramírez Hinostroza, Teófilo Julio Lazo Chucos, César Teobaldo Volchez Simeón, José Fierro Miche, and Elías Uchupe Huamán (Case 11.126)

Facts alleged

88.          According to the petition submitted to the IACHR by the Centro de Estudios y Acción para la Paz (CEAPAZ), from December 1990 to June 15, 1991, detentions and disappearances were carried out by the Peruvian Army and police in several localities of Huancayo province, Junín department.

89.          In the context of that practice, two eyewitnesses state that Máximo Muñoz Solís was detained on August 12, 1990, in the main square of Satipo province by soldiers from the Satipo military base in Junín department, and taken to the military base of that province, and he remains disappeared ever since.  The incident was reported to the Provincial prosecutor of Satipo.

90.          Levi Vivas Espinal was detained at his home on January 21, 1991 by members of the Peruvian Army from the Vista Alegre military base, where he was abducted; ever since, he has been disappeared. A family member reported the incident to local authorities.

91.          Alejandro Vera Suasnabar and Edgar Nestares Justo were detained at their homes by heavily armed men wearing ski masks on January 23, 1991.  They have been disappeared ever since. The security forces deny having detained them.  The incident was reported by relatives to the Special Prosecutor for Human Rights.

92.          On February 7, 1991, Javier Yañac Solano and Richard Lozano Cáceres were detained at their respective homes, which were located half-a-block from one another, by members of the National Police from the Regional Intelligence Office (ORI) and taken away in the same vehicle.  The following day, the same members of the Police returned to Richard Lozano’s home with detainee Javier Yañac.  Mrs. Adelina Llacma, Richard Lozano’s common-law wife, went to the offices of that institution to inquire into his well-being, and, while there, she recognized two of the ORI police agents who had taken the two disappeared people.  The incident was reported to the Special Prosecutor for Human Rights.

93.          Oscar Cirino Baldeón Chacón was detained on February 23, 1991 by combined forces of the police and army who, wearing ski masks and carrying weapons, had violently entered his home.  The incident was reported to the Special Prosecutor for Human Rights.  The victim has remained disappeared ever since.

94.          Luis Alberto Ramírez Hinostroza was detained on February 22, 1991 by members of the Peruvian Army while he was playing sports at in a place near his home.  The victim’s mother was told that he had been taken to the “Cuartel 9 de Diciembre”  military base, but the military authorities denied that he had been detained.  He has remained disappeared since that date.  The incident was reported to the Special Prosecutor for Human Rights.

95.          Teófilo Julio Lazo Chucos was detained at his home on March 15, 1991 by members of the Peruvian Army who were wearing ski masks, and has been “disappeared” ever since.  The incident was reported to the Special Prosecutor for Human Rights.

96.          Witnesses state that César Teobaldo Vílchez Simeón was detained on May 25, 1991 by police from the Regional Intelligence Office (ORI) and violently put in a white Dodge pick-up, operated by the ORI, and was taken to the locality of Umto with other detainees, who were gradually released.  However, César Teobaldo Vílchez was placed in the custody of the Seventh Command of the General Police at Avenida Ferrocarril, and has remained disappeared ever since.  The incident was reported to the Special Prosecutor for Human Rights.

97.          Mr. José Fierro Miche was detained on May 30, 1991 by soldiers from Ollantaytambo military base, Puerto San Juan de Ubiriki, Chanchamayo province.  On that occasion, they placed him in a military truck and took him to Chatingarí military base.  Later, he disappeared.  The incident was reported to the Special Prosecutor for Human Rights.

98.          On June 15, 1991, Elías Uchupe Huamán was detained by military forces as he was leaving his home in Huancayo.  Later, members of the security forces forcibly entered a residence to search Uchupe Huamán’s room and rebuked the owner for renting to a terrorist.  The owner reported the facts as well as the theft of some of her property to the Special Prosecutor for Human Rights.  The victim has remained disappeared ever since.

Processing before the Commission

99.          On February 19, 1993, the Commission opened the case and forwarded the pertinent parts of the complaint to the State, and requested information on the facts alleged.  The State answered on September 20, 1993.

100.          On May 26, 1999, the Commission asked the State and the petitioners to submit up-to-date information on this case within 45 days.  In the same communication, the Commission made itself available to the parties to pursue a friendly settlement, in keeping with Article 48(1)(f) of the Convention.  Once the term expired, there was not agreement between the parties to pursue a friendly settlement.  The parties were asked to respond on both issues within 30 days.  On July 13, 1999, the petitioner expressed interest in pursuing a friendly settlement, a position that was forwarded to the State on August 12, 1999.  On September 7, 1999, the State presented additional written material, without agreeing to pursue a friendly settlement.

101.          On May 4, 2000, the Commission asked the State and the petitioners to submit up-to-date information on this case, and on the results of the domestic remedies.  Both parties were asked to respond within 45 days.

The State’s position

102.          In its initial report, the State denied any responsibility of the security forces in 11 of 12 of the disappearances.  Regarding the detention of Mr. Luis Alberto Ramírez Hinostroza, it explained that he was detained February 22, 1991 because he was extorting a minor, and was then placed at the disposal of the respective authorities.  In its July 27, 1999 report, Peru repeated this information, and added that Luis Alberto Ramírez Hinostroza had been detained several times on extortion charges, first on February 22, 1991, second on July 18, 1996, and third on October 21, 1996.  According to the State, this refutes his alleged disappearance. The State argued that the case was inadmissable for failure to exhaust the domestic remedies, as no writ of habeas corpus had been filed.  Finally, the State did not deem it advisable to pursue a friendly settlement.

20.          Edith Galván Montero (Case 11.132)

Facts alleged

103.          According to the petition submitted to the IACHR by the Asociación Pro Derechos Humanos (APRODEH), on October 11, 1992, Edith Galván Montero, whose sister Judith Galván Montero had been convicted of terrorism and treason, left her home located at Jr. José de Rivera Dávalos, Nº 767, neighboring Lima, for her godfather’s house in Villa El Salvador, department of Lima.  There, between 8:30 and 9:00 a.m., she was intercepted by members of the Peruvian Army, who placed her on a military truck with two other youths.  The following day, the newspaper published an article about the detention of three persons by military personnel--two men and a woman--who tried to steal a car from a taxi driver.  The neighbors in the area identified her from a photo as the woman who was detained along with two young men by Army soldiers.  However, Edith Galván Montero has been disappeared since that date.

Processing before the Commission

104.          On March 31, 1993, the Commission opened the case and forwarded the pertinent parts of the complaint to the State, and requested information on the facts alleged.  The State responded on July 17, 1993 and sent additional information on several occasions.  The petitioner presented observations on the State’s responses on August 1, 1997.

105.          On May 26, 1999, the Commission asked both parties to submit up-to-date information.  In this last communication, the Commission made itself available to the parties to pursue a friendly settlement, and give each party 30 days to accept its offer.  Once the term expired, there was not agreement between the parties to pursue a friendly settlement.  Both parties responded.

The State’s position

106.          In its initial response, the State maintained that Edith Galván Montero had not been registered as detained by the security forces.  Later, it reported its information, indicating that on November 14, 1989, she was arrested on terrorism charges and on December 27, 1990 the Criminal Court of Lima acquitted her, and she was released.  It stated that even though she had not been arrested since, the State has police report 032-D3-DINCOTE dated March 14, 1994, for the crime of terrorism and treason.  The State added that she was not held ( “no habida”) and that the police actions were taken because Edith Galván Montero had participated in a terrorist act, together with another member of Shining Path, on May 22, 1992, and that after having committed the crime, both of them had fled, and went underground.  Since there was a criminal case against her, it requested that this case be declared inadmissible on the grounds that the domestic remedies had not been exhausted.  The State did not deem it advisable to pursue a friendly settlement.

21. Esteban Romero León, Moisés Poma Ordónez and Yolanda Lauri Arias (Case 11.179)

Facts alleged

107.          According to the petition submitted to the IACHR by the Centro de Estudios y Acción para la Paz (CEAPAZ), on February 28, 1992 the following persons were detained and then disappeared:  Esteban Pallango Araujo (Esteban Allano Araujo), 17; Esteban (Ruben) Romero León, [2] 17; and  Reynaldo Fidel Véliz, 17.  On Tuesday, March 10, Moisés Poma Ordónez, 31, was detained and disappeared.  And on March 11, 1992, Yolanda Lauri Arias, 23, was detained and disappeared.  It was alleged that these detentions and forced disappearances were carried out by Army soldiers and by the Paccha, Huancayo, civil defense patrols, or rondas, organized under the orders of the Army.  The  complainant also said that “Esteban Pallango Arango and Teófilo Romero León,” allegedly detained and disappeared, were actually at the “9 de Diciembre de Huancayo” military base, as “recovered” deserters, and are completing their compulsory military service .  In this respect, the Commission observed that in the same document referred to by the petitioner, the name of Reynaldo Fidel Véliz appears as one of the “recovered” deserters.

108.          The petitioner notes that the facts alleged were reported to the local authorities, and that writs of habeas corpus were filed but not ruled on.

Processing before the Commission

109.          On July 29, 1993, the Commission opened the case, forwarded the pertinent parts of the complaint to the State, and requested information on the facts alleged.  The State answered on April 5, 1994, and sent additional information on August 17, 1998.

110.          On May 1, 2000, the Commission asked both parties to submit up-to-date information within 45 days.  In the same communication, the Commission made itself available to the parties to pursue a friendly settlement, in keeping with Article 48(1)(f) of the Convention.  Once the term expired, there was not agreement between the parties to pursue a friendly settlement.  The State responded on August 3, 2000.

The State’s position

111.          In its initial report, the State maintained that it had initiated domestic proceedings.  It added that a common grave had been found containing 10 corpses and that it was sparing no effort to capture Julio Cantorín Clemente, the alleged perpetrator of the crime.  In the second report, the State requested that the case be declared inadmissible for failure to exhaust domestic remedies.  In the third report, the State asked that the case be declared inadmissible on the grounds of tacit abandonment by the petitioner and added that the rondas campesinas of Suitucancha, Huahuanca, Ñahuinpuquio, Siusa and Tizo were subordinate to the Peruvian Army military bases, and that the ronderos had impeded the investigation.

C.          Cases that involve extrajudicial execution and forced disappearance

22. Víctor Tineo Sandoval, Guillermina Quispe de Tineo, Eulogio Demetrio Bohorquez Tineo, Ivan Roberto Tineo Rodríguez, and Elías Bohorquez Tineo (Case 10.431)

Facts alleged

112.          According to the petition submitted to the IACHR by the Centro Episcopal de Acción Social (CEAS), from July 15, 1984 to May 16, 1985, several members of the complainant’s family were arbitrarily detained by soldiers of the Marine Infantry billeted in the localities of San Miguel and Santa Rosa, province of La Mar, Ayacucho department.

113.          On July 15, 1984, Eulogio Bohorquez Tineo, 21, farmer, son of Gregoria Tineo Sandoval, was detained at his home in the Santa Rosa Annex, Ayna district, La Mar province, by soldiers of the Marine Infantry billeted in the area, and taken into the Santa Rosa military base. On June 20, 1985, Gregoria Tineo Sandoval reported her son’s disappearance to the Superior Prosecutor of Ayacucho.

114.          On January 30, 1985, soldiers of the Marine Infantry detained Ivan Roberto Tineo Rodríguez, 23, son of Víctor Tineo Sandoval and Guillermina Quispe de Tineo and took him to the La Mar military base under the pretense that he had to carry out an assignment related to his function as a member of the Huatasoccos civil defense.  After that, he disappeared.  On July 22, 1985, Abelina Tineo, his sister, reported the incident to the Superior Prosecutor of Ayacucho.

115.          On February 20, 1985, Elías Bohorquez Tineo Sandoval, 28, husband of Flora Herrera Taype, farmer, was detained in the Paccha Annex, Tambo district, La Mar province, by soldiers of the Marine Infantry billeted in that province.  Blindfolded, he was taken to San Miguel de la Mar military base.  His wife, Flora Herrera Taype, followed them to that base, where soldiers told her that he had been transferred to the “Los Cabitos #51" Marine Infantry base at Ayacucho.  There, the military authorities denied knowing his whereabouts or his legal status.  On March 5, 1985, Flora Herrera Taype and on June 20, 1985, Gregoria Tineo Sandoval, the victim’s wife and mother, respectively, reported the disappearance to the Superior Prosecutor of Ayacucho.

116.          On May 16, 1985, Víctor Tineo Sandoval, 46, and his wife, Guillermina Quispe de Tineo, 47, were detained at the home of Luis Rodríguez Tineo, where they were staying, at the request of the Pataccocha civil defense members and taken to the Santa Rosa Marine Infantry base, Ayna district, La Mar province, where they were tortured.  The military personnel there denied the facts alleged.  Ever since, the detainees have been disappeared, as appears in the complaint lodged on July 22, 1985 by Abelina Tineo Rodríguez with Superior Prosecutor of Ayacucho.

117.          The petitioner stated that the Office of Human Rights learned from Senator Jorge del Prado about the existence of death certificates for Víctor Tineo Sandoval and Guillermina Quispe de Tineo in unofficial notebooks without medical certificates and of the death of Eulogio Bohorquez Tineo at a date after the above events.

118.          The petitioner reported that the Ship’s captain of the Peruvian Navy using the pseudonym José Antonio on September 4, 1987, kept judicial officers from taking testimony from members of the Tineo family, and that the case continues in the investigative phase.

Processing before the Commission

119.          On August 4, 1989, the Commission opened the case and forwarded the pertinent parts of the complaint to the Peruvian State, and requested information on the facts alleged.  The State answered on December 26, 1990.  Both parties sent additional information  on various occasions.  On May 17, 2000, the Commission asked the State and the petitioner to submit up-to-date information on this case within 45 days.  In the same communication, the Commission made itself available to the parties to pursue a friendly settlement, in keeping with Article 48(1)(f) of the Convention.  Once the term expired, there was not agreement between the parties to pursue a friendly settlement. 

The State’s position

120.  In its initial report, the State indicated that it had designated a special lawyer to carry out a complete investigation into the facts.  In the next communication, the State denied the victims were detained by members of the Peruvian armed forces or the police.  Furthermore, the State maintained that the facts alleged cannot be attributed to personnel of the Marine Infantry, because from July 15, 1984 to May 16, 1985, those troops were not quartered at the Santa Rosa military base.  On December 30, 1999, the State argued that domestic remedies had not been exhausted, specifically habeas corpus, and that accordingly, the case should be declared inadmissible.

23. Concepción Ccacya Barrientos, Maximiliana Sotaya, Donato Morán, Emiliana Puga, and Fortunato Venegas (Case 10.523)

Facts alleged

121.          According to the petition submitted to the IACHR by the Centro Episcopal de Acción Social (CEAS), on October 3, 1989, Peruvian Army soldiers arrived at the Ccochapucro hamlet, Umamarca district, Andahuaylas province, Apurímac department, where, apart from detaining numerous community members, they assassinated Maximiliana Sotaya, 50, and dynamited her corpse; they also assassinated Donato Morán, 75, and Emilia Puga, and dismembered their corpses.  The petition adds that Concepción Ccaccya Barrientos, 52, has been disappeared since that date.

122.          Leonardo Ccaccya Barrientos, 28, married, catechist of the San Pedro de Andahuaylas Parish, reported these incidents to the local authorities.  In the wake of his allegations, Army members constantly threatened him.  On November 4, 1989, he was detained by members of the Army and his home forcibly entered.  On the same date, Army troops raped a 47-year-old woman and her 10-year-old daughter, killed Fortunato Venegas, and displaced 100 peasants.  On November 13, 1989, Leonardo Ccaccya was released, along with his brother Claudio and 12 other detainees.

Processing before the Commission

123.          On March 7, 1990, the Commission opened the case and forwarded the pertinent parts of the complaint to the Peruvian state, and requested information on the facts alleged, and reiterated the request to the State on April 15, 1991.  On November 15, 1996, the Commission repeated its request for up-to-date information to both parties, and gave them 30 days to reply.   The State answered on December 5, 1996, and sent additional information on March 13, 1997.

124.          On June 7, 2000, the Commission asked the State and the petitioner to submit up-to-date information within 45 days.  In addition, the Commission made itself available to the parties to pursue a friendly settlement, in keeping with Article 48(1)(f) of the Convention.  Once the term expired, there was not agreement between the parties to pursue a friendly settlement.  The State replied on July 14, 2000.

The State’s position

125.          In its first report, the State maintained that there was no complaint alleging the detention and disappearance of Concepción Ccaccya Barrientos or the disappearance of Leonardo Ccaccya Barrientos, Maximiliana Sotaya, Donato Morán, Emiliana Puga and Fortunato Venegas.  In its additional report, the State confirmed the first report and added that on December 30, 1996, Mrs. Lidia Ayquipa Taype, the wife of Leonardo Ccaccya and sister-in-law of  Concepción Ccaccya, told the State that her husband, Leonardo, had been living for over a year in the city of Lima, and that her brother-in-law, Concepción, has been disappeared since his parents’ death, five years ago, and who never said where he was going.  Finally, the communication described two criminal proceedings against Concepción Ccaccya Barrientos in the Peruvian courts: Proceeding Nº 155‑93 for crimes against property, archived on December 28, 1992, and Nº 130‑92 for cattle rustling, which has been in the Office of Arrest Warrants since May 23, 1996.  In its final report, the State did not consider it necessary to submit up-to-date information on the case, as it argues that the lack of interest on the part of the petitioner, who could not prove its allegations, shows that the State is not responsible for the facts alleged.  Accordingly, the State did not consider it appropriate to pursue a friendly settlement and asked that the complaint be declared inadmissible.

24. Flaviano Sáens Chuquivilca, Héctor Riveros Izarra, Edgar Chaguayo Quispe, Miriam Lidia Navarro Concha, Miguel Angel Cieza Galván, Socimo Curasma Sulla, Justiniano Fredy Vicente Rivera, Augusto Galindo Peña, Juana Ñahui Vilcas, Luis Aníbal Naupari Toralva, Alejandro Tunque Lizama, Eugenio Curasma Sulla, María Sánchez Retamozo, Edwin Ramos Calderón, Gladys Espinoza León, Fernando Sáenz Munarris, Hugo Puente Vega, and Peter David Cosme Ureta (Case 11.064)

Facts alleged

126.          According to the petition submitted to the IACHR by the Centro de Estudios y Acción para la Paz (CEAPAZ), from June 6 to September 22, 1992, a practice of detentions and forced disappearances, as well as extrajudicial executions, was directed against Universidad Nacional del Centro students by members of the army and police in the department of Junín.  Based on the chronological sequence of the facts, the complainant groups the 17 victims in two lists.  According to the complaint, eight students were initially detained and disappeared:  Flaviano Sáens Chuquivilca, Héctor Riveros Izarra, Edgar Chaguayo Quispe, Miriam Lidia Navarro Concha, Miguel Angel Cieza Galván, Socimo Curasma Sulla, Justiniano Fredy Vicente Rivera and Augusto Galindo Peña.  Ten more students were summarily executed:  Juana Ñahui Vilcas, Luis Aníbal Naupari Toralva, Alejandro Tunque Lizama, Eugenio Curasma Sulla, María Sánchez Retamozo, Edwin Ramos Calderón, Gladys Espinoza León, Fernando Sáenz Munarris, Hugo Puente Vega, and Peter David Cosme Ureta.

127.          In its observations to the State’s responses on the practice of disappearances and executions, the petitioner explained that these acts had increased since August 7, 1992, the date the Army occupied the University, registering students and professors, who were photographed and documented.  The practice had a common pattern:  It was selective, aimed at student leaders, and was distinguished by considerable operational capacity, which permitted the Army, for example, to kidnap, torture, and execute 35 people.  Regarding the situation of seven of the eight students who were detained and disappeared, and the list of the ten students executed, the petitioner reiterated that the State was responsible, explaining the grounds in each case, which are summarized in the following, and emphasized that over 18 months had gone by since its observations, without the Public Ministry undertaking a serious inquiry into the facts, which continued to go unpunished. 

128.          The petitioner adduced that the State’s assertion that Flaviano Sáens Chuquivilca was a member of the terrorist group Shining Path, and had gone underground, were not supported by reliable evidence, because in other cases before the Commission, documents have been forged by supposed civil authorities certifying the release, and the supposed accusations of the disappeared victim by private persons have not been duly processed by the Public Ministry.  Furthermore, such evidence is controverted by the account of the facts given to the victim’s sister by their cousin, Percy Jaramillo Sáenz, who was detained with Flaviano Sáens on June 6, 1992, by 30 members of the Peruvian Army, dressed as civilians, and wearing ski masks.  Days later, Percy Jaramillo Sáenz was released and stated that they had been detained at the Carhuamayo military base, where they had been subjected to torture and abuse.

129.          The petitioner argued that the mere assertion of the State that student Edgar Chaguayo Quispe had not been detained by the security forces did not refute the facts alleged about his detention and disappearance on August 25, 1992 by members of the National Police. The petitioner also criticized the inefficiency of the judicial system in the investigation. Finally, the petitioner explained that according to the inquiry of the Human Rights Secretariat of the Huancayo Popular Defense Front (Frente de Defensa de los Intereses del Pueblo de Huancayo), the victim’s corpse was found with three gunshot wounds to the head, and that even so, there had not been an official report.

130.          The petitioner considers that the State did not refute the facts alleged when it, without any proof, irresponsibly tied Miriam Lidia Navarro Concha to terrorist groups, attributing her death to a settling of accounts. The victim was detained by three men of military appearance, presumed to be members of the State security forces, and was disappeared on August 25, 1992 as she got off a bus near her home; the incident was witnessed by Juana Ñahui Vilca.  The petitioner adds that days later the corpse of  Miriam Lidia Navarro appeared with two gunshot wounds; one to the head and another to her heart.

131.          For the petitioner, Miguel Angel Cieza Galván’s claimed reappearance (he had been detained on August 25, 1992 by members of the Peruvian Army as he left the University) is a fact that could not be confirmed.  For although the State declared that on October 7, 1992 the victim’s mother had stated to the Provincial Prosecutor that her son had reappeared, he was still detained and disappeared.

132.          Given the lack of evidence to back up the State’s presumption that a settling of accounts was the motive for the murder of student leader Socimo Curasma Sulla, who was detained and executed by members of the Peruvian Army on August 27, 1992, in the city of Huancayo, the petitioner considers that the facts alleged have not been refuted.

133.          Justiniano Fredy Vicente Rivera and Augusto Galindo Peña, students at the Universidad Nacional del Centro, of Huancayo, were detained on September 7, 1992 as they were leaving class.  On September 10, 1992, members of the army forcibly entered the home of Mrs. Elsa Rivera de Vicente, mother of Justiniano Fredy Vicente.  The petitioner confirms that Justiniano Fredy Vicente Rivera was indeed executed, and that the corpse showed signs of strangulation and three gunshot wounds.  Yet, regarding Augusto Galindo Peña, the petitioner adduced that because the State responded without providing evidence that might help locate or recognize corpse, this victim continues to be detained and disappeared.

134.          The petitioner confirmed that Héctor Riveros Izarra, detained and disappeared on August 7, 1992 in the University when members of the army were registering students, according to inquiries made by the Solidarity Vicariate of the Archdiocese of Huancayo and the Secretariat for Human Rights of the FEDIPH, had availed himself of the “Law of Repentance” on November 12, 1992.  

135.          In response to the State’s observations, the petitioner argued that as regards the summary executions of the ten students, the mere assertion by the State that the homicide of Juana Ñahui Vilcas (wife of detained and disappeared Socimo Curasma) was due to a settling of accounts between terrorist groups, does not disprove the participation of the Peruvian armed forces in her murder on September 10, 1992.  On the contrary, the petitioner considered that the reason they executed her is that she was the only witness to the kidnaping and detention of Miriam Lidia Navarro Concha.  The petitioner also presented the arguments with respect to the execution of Alejandro Tunque Lizama, whose corpse, with signs of strangulation, was found on September 30, 1992, in Sapallanga district, Huancayo province; and  the execution of  Gladys Espinoza León, detained and disappeared on September 6, 1992, whose corpse was found with two gunshot wounds to the head, and another two to the stomach.

136.          Luis Aníbal Ñaupari Toralva was detained and disappeared on August 27, 1992 by two individuals in civilian dress as he was going home.  The corpse was found on September 10, 1992 with six gunshot wounds to the chest and head.  As the State did not offer any explanation about this victim, the petitioner concludes that his extrajudicial execution should be attributed to members of the military.

137.          The petitioner considers that the State has not refuted the facts alleged merely by asserting that husband and wife Eugenio Curasma Sulla and María Sánchez Retamozo were not detained by the security forces on September 22, 1992.  According to the complaint, both were kidnaped in their home by a group of armed men and their corpses had gunshot wounds.

138.          The petitioner alleges that the inconclusive denial, without any evidence to support it, is no basis for refuting the responsibility of the Peruvian State to the effect that Edwin Ramos Calderón, detained and disappeared on July 26, 1992, whose corpse was found displaying gunshot wounds, “was not intercepted or detained by members of the Armed forces of Peru.” The petitioner made the same arguments in the case of  Peter David Cosme Ureta, detained and disappeared on September 6, 1992, whose corpse was found with four gunshot wounds.

139.          According to the petitioner, the State’s presumption that Fernando Sáenz Munarris and Hugo Puente Vega, detained and disappeared on July 26, 1992, whose corpses were found with signs of strangulation, had been executed as the result of a settling of accounts between terrorist groups, is not supported by the evidence.
 

Processing before the Commission

140.          On October 16, 1992, the Commission opened the case and forwarded the pertinent parts of the complaint to the Peruvian State, and requested information on the facts alleged.  The Peruvian state answered on June 1, 1993.  Both parties provided additional information  on various occasions.

141.          On April 4, 2000, the Commission asked the State and the petitioner to submit up-to-date information on this case.  In the same communication, the Commission made itself available to the parties to pursue a friendly settlement, in keeping with Article 48(1)(f) of the Convention.  Once the term expired, there was not agreement between the parties to pursue a friendly settlement. 

The State’s position

142.          The State denied the participation of members of the Peruvian Army or police in the facts alleged.  In its first report it claimed that the army was not responsible for the detention and disappearance of Peter Cosme Ureta and Freddy Vicente Rivera.  The State also asserted that Flaviano Sáens Chuquivilca, and students Héctor Viveros Izarra and Miguel Cieza Galván are alive.  Regarding the whereabouts of Flaviano Sáens Chuquivilca, it stated that he had been detained by an army patrol from the Carhuamayo Countersubversive base, where he was interrogated, and released the next day, June 7, 1992, and that, as evidence of this, a document was drawn up before by the justice of the peace, the governor, and the mayor of Carhuamayo, after an expert medical opinion certifying his state of health.  Also, in order to show that the victim was not in custody, the State attached a copy of complaints lodged by Mery Quiquia Rivadeneyra and David Colqui Hinostroza, in different places (in Milpo‑Ulcamayo on August 22, 1992 and Junín district on November 23 and 25, 1992, respectively), after his presumed disappearance, and added that he was involved with the terrorist group Shining Path, and was underground.  Concerning Héctor Riveros Izarra, the State argued that on December 9, 1992, he had voluntarily turned himself in to the security forces, and that he is “recovered” and is completing his military service at Counter-subversive base Nº 241 at Rímac.  The State stressed that Edgar Chaguayo Quispe, Eugenio Curasma Sulla, María Sánchez Retamozo and Edwin Ramos Calderón had not been detained by the Peruvian armed forces.  The State also said that given the modus operandi used, the murders of Augusto Galindo Peña, Juana Ñahui Vilcas, Miriam Lidia Navarro Concha, Alejandro Tunque Lizama, Socimo Curasma Sulla, Fernando Sáenz Munarriz, Gladys Espinoza León and Hugo Puente Vega were due to the settling of accounts between terrorist groups.

25. Camilo Nuñez Quispe and Teófilo Nuñez Quispe (Case 11.200)

Facts alleged

143.          According to the petition submitted to the IACHR by the Fundación Ecuménica para el Desarrollo y la Paz (FEDEPAZ), the facts alleged occurred from June 17, 1993 to August 21, 1993, in Huancán district, Huancayo province, Junín department, and were attributed to State agents belonging to the National Police.  The petitioner reported that on June 17, 1993, a group of 10 armed men, some of them wearing police uniforms and ski masks, violently entered the home of Camilo Nuñez Quispe in the Porvenir neighborhood of Huancán district, province of Huancayo.  They note that after identifying him, they beat him violently, and took him away in a National Police vehicle.  His relatives state that the mayor of the Huancán District Council had threatened him on several occasions, telling him that “he was going to be disappeared” and Teófilo Nuñez Quispe repeatedly asserted that the mayor had disappeared his brother.  The family reported these incidents to the Special Human Rights Prosecutor, and inquired into the whereabouts of the victim in Region VIII of the National Police, and filed a writ of habeas corpus that was declared inadmissible by the judge, based on the fact that the detainee was not to be found at any military base or police station in the area.

144.          On August 21, 1993 at 11:00 p.m., four presumed police agents, two in uniform and two in civilian dress, with ski masks and armed, violently entered the home of Teófilo Nuñez Quispe, employee of the Peruvian Institute of Culture, and brother of Camilo Nuñez, looking for arms, and detaining Teófilo Nuñez.  The corpse was found in the yard of his former home.  He had been blindfolded, had wounds all over his body, and a gunshot wound to the head.

Processing before the Commission

145.          On September 9, 1993, the Commission opened the case and forwarded the pertinent parts of the complaint to the State, and requested information on the facts alleged.  The Peruvian state responded on November 22, 1993.  On February 23, 1994, the petitioner sent observations on the State’s response.  Both parties presented additional information.

146.          On April 25, 2000, the Commission asked the State and the petitioners to submit up-to-date information on this case within 45 days.  In the same communication, the Commission made itself available to the parties to pursue a friendly settlement, in keeping with Article 48(1)(f) of the Convention.  Once the term expired, there was not agreement between the parties to pursue a friendly settlement.  Both parties responded.

The State’s position

147.          In its initial report, the State denied the participation of members of the Peruvian Police in the detention and disappearance of Camilo Nuñez Quispe and in the homicide of his brother, Teófilo Nuñez Quispe, adding that the Prosecutor’s Office was investigating the latter incident, but had not been able to identify the perpetrators.  Furthermore, the State said that Camilo Nuñez Quispe was a member of an “annihilation command” of the terrorist group Shining Path; and that although there was no evidence that members of the security forces had detained or disappeared him, one could presume that the Communist Party of Peru-Shining Path members had executed him, as well as his brother, Teófilo Nuñez Quispe.  Lastly, the State argued that domestic remedies had not been exhausted since the petitioner presented the complaint only six days after the incident had occurred.  In its report of June 9, 2000, the State added that the inquiries into the detention and disappearance of Camilo Nuñez and the homicide of Teófilo Nuñez were taken on by the Office of the Fourth Provincial Prosecutor of Huancayo, but since the perpetrators had not been identified, the investigation was provisionally archived.  Accordingly, the State did not deem it advisable to pursue a friendly settlement.

III. COMBINING THE CASES

148.          The Commission, mindful of the uniformity in the current state of processing in all of the cases, which makes it possible to resolve them together, the common characteristics of the facts alleged, and common time frame, and the fact that all of them have been attributed to State agents, decides to combine the foregoing cases and proceed to resolve them together, based on Article 40 of its Regulations.

IV.          ADMISSIBILITY ANALYSIS

A.          Competence of the Commission

149.          The Commission is competent to examine the subject matter of this complaint, which refers to alleged violations of rights enshrined in Articles 1, 3, 4, 5, 7, 8, 19, and 25 of the American Convention.  The petitioners have standing to appear, as provided in Article 44 of the Convention. The Peruvian State ratified that Convention on May 25, 1978, and it entered into force for all parties on July 18, 1978. The complaints in question refer to events after these dates.

B.          Admissibility requirements of petitions

1.          Exhaustion of domestic remedies

150.          Article 46(2)(c) and 46(2)(a) of the American Convention provide, among the exceptions to the requirement of prior exhaustion of domestic remedies, that regarding unwarranted delay in rendering a final judgment, and that according to which “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.”  In this respect, the IACHR observes that in all the cases under analysis, there was a common denominator: that after seven to 16 years had passed, in none of the proceedings has there been a final judgment punishing the persons responsible for the crimes denounced.  For example, in 20 of the 25 complaints already mentioned, although the State had the duty to investigate and to process the corresponding cases, the proceedings are still at the investigative stage, with a ruling ordering provisional archiving, and the human rights violators have not been identified, accused, and punished; in three [3] of the 25 petitions, the persons allegedly responsible were identified, but the investigations are continuing, and only in case 11.065 did the proceeding conclude, but the Amnesty Law was applied so as to benefit the members of the Army.  And in case 10.913, the decision was to dismiss criminal negligent homicide charges. This circumstance, in general, is itself sufficient to trigger the exceptions mentioned to the prior exhaustion of domestic remedies requirement set forth in Article 46(2)(c) and 46(2)(a) of the Convention.

151.          In addition, the Commission observes that, as the Inter-American Court of Human Rights has held on several occasions, several practical consequences arise from generally accepted principles of international law when the state invokes the prior exhaustion rule:  first, the prior exhaustion rule is a requirement established for the benefit of the State; accordingly, the State may expressly or tacitly waive its option to invoke it; second, a timely admissibility objection on grounds of failure to exhaust domestic remedies must be made in the first stages of the procedure, or it is presumed that the State has tacitly waived it; and third, a State that invokes failure to exhaust domestic remedies must indicate what remedies are available to be exhausted, and make a showing of their effectiveness. [4]  

152.          Another aspect that should be kept in mind when analyzing the exhaustion of domestic remedies is the distinction that should be made between the moment of submitting a complaint and the decision on admissibility.  These are two different phases, which are easily distinguished by the legal effects of Article 33 of the Regulations, which authorizes the Commission to ask the petitioner to complete the requirements omitted when the petition is incomplete or inadmissible.  In other words, as the petitioner has the opportunity to cure the defects of the petition after the complaint is submitted, the requirement of prior exhaustion of domestic remedies must be met when the Commission analyzes that aspect. [5]

153.          On applying the foregoing principles to this case, the Commission observes that in eight of the 25 cases under study, the State did not invoke the objection of failure to exhaustion domestic remedies in its first answer to the IACHR, but only in the second, [6] third, [7] or fourth [8] communication. In another 12 cases, the State did not make an express argument alleging failure to exhaust domestic remedies. [9] In one other case, the State said that the complaint was without foundation because the act was attributable to common crime, [10] and in one other case the State reported that criminal proceedings had been instituted and identified members of the Army as presumably responsible, and went on to say that the judiciary had applied Amnesty Law Nº 26,479 to the benefit of the defendants. [11] Accordingly, the Commission concludes that in these 22 cases the State tacitly waived the objection of failure to exhaust domestic remedies.

154.          In view of the foregoing, the Commission considers that the admissibility requirement of prior exhaustion of domestic remedies has been met in the cases under study.  

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