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OEA/Ser.L/V/II.76
ANNUAL
REPORT OF THE INTER-AMERICAN COMMISSION RESOLUTION Nº 10/89 CASE 9802 PERU April 14, 1989 HAVING
SEEN: The
background of this case, namely, the following: 1. On September
17, 1986, the Inter-American Commission on Human Rights received the following
complaint: Benito
Rojas Ccorahua, reportedly detained Sunday July 20, 1986 at about 11:00 a.m., in
Tambo, La Mar Province, by members of the armed forces based there, and taken in
the presence of witnesses to the Militar Base housed in the municipal building.
He was reportedly detained in the company of others while on his way to the
Presbyterian Church of Tambo of which he is a member. His wife reported the
arrest in formal depositions to the Public Ministry and to the Chief of the
Political Military Zone. In these she states that she was permitted to take him
food each day from 20 to 28 July at the Tambo base and last personally spoke to
him on 28 July. On
Wednesday July 30, Tambo military authorities told her he was no longer held
there, but had been transferred to the Los Cabitos barracks in Ayacucho. No
formal acknowledgement of the arrest was provided the family or other parties by
the Tambo military authorities, and since his reported transfer to Los Cabitos,
his relatives have received no official information regarding his fate. In
a statement to the Fiscal Superior Decano of Ayacucho, dated August 12, his wife
provides evidence that Benito Rojas Ccorahua was in fact seen by other prisoners
when in custody at Los Cabitos. She cites a former prisoner as having informed
her on August 11, that he had been held with Benito Rojas Ccorahua at Los
Cabitos Barracks until his release, although the date of his release is not
stated, it appears that he was released shortly before meeting the wife of his
fellow prisoner. In the same statement to the Fiscal Superior Decano, it is
noted that the remedy of habeas corpus had been sought through the
Segundo, Juzgado de Instrucción of Huamanga. However, no examining magistrate
seeking to implement habeas corpus has been permitted access to detention
areas in the Los Cabitos complex in recent years, and consequently habeas
corpus is in practice inoperative in the emergency zone, under the Political
Military Command. By
note of October 24, 1986, the Commission requested the relevant information from
the Government of Peru, conveying to it the pertinent parts of the complaint in
accordance with Article 34 of the Regulations. The request was reiterated in
letters dated January 21, 1988, June 7, 1988, and February 17, 1989. CONSIDERING:
a. That the
Government of Peru has not replied to the request for information made by the
Commission in regard to this case. b. That the nature
of the events described in the complaint precludes application to this case of
the friendly settlement procedure provided for in Article 48 (1) f of the
American Convention on Human Rights, to which Peru is a party. It
should be kept in mind in this connection, that the Inter-American Court of
Human Rights, in its opinion of June 26, 1987, concerning Preliminary Objections
in the Velasquez Rodriguez case, interpreted Article 48 (1) f as follows:
Taken
literally, the wording of Article 48 (1) f (...) would seem to establish
a compulsory procedure. Nevertheless, the Court believes that, if the phrase is
interpreted within the context of the Convention, it is clear that the
Commission should attempt such friendly settlement only when the circumstances
of the controversy make that opinion suitable or necessary, at the
Commission’s sole discretion. Farther
on, the Court confirms the practice followed by the Commission in cases of
forced disappearance, adding: That
(...) when the forced disappearance of a person at the hands of a State’s
authorities is reported and that State denies that such acts have taken place,
it is very difficult to reach a friendly settlement that will reflect respect
for the rights to life, to humane treatment and to personal liberty. c. That Article 42
of the Regulations of the Commission provides as follows: The
facts reported in the petition whose pertinent parts have been transmitted to
the government of the State in reference shall be presumed to be true if, during
the maximum period set by the Commission under the provisions of Article 34
paragraph 5, the government has not provided the pertinent information, as long
as other evidence does not lead to a different conclusion. d. In its reports
on the situation of human rights, the Commission has vehemently condemned this
grievous phenomenon of forced disappearance of persons, stating in various
documents that ... this procedure is cruel and inhuman and that such
disappearance is not only an arbitrary deprivation of liberty but also an
extremely serious threat to the integrity, the safety and the very life of the
victim (Annual Report 1978, 1980-1981, 1982-1983, 1985-1986, 1986-1987 and
special reports by country, such as OEA/Ser.L/V/II.49 doc. 19, 1980 (Argentina),
OEA/Ser.L/V/II.66 doc. 17, 1985 (Chile), and OEA/Ser.L/V/II.66, doc. 16, 1985
(Guatemala). For
its part, the General Assembly of the OAS has in various resolutions (see RES.
443 (IX-0/79), 510 (X-0/80), 543 (XI-0/81), 618 (XII-0/82), 666 (XIII-0/83), and
742 (XIV-0/84) stressed the need for an immediate end to this practice in
countries where forced disappearances have occurred, urging governments to take
the necessary steps to ascertain the fate of those persons. In addition, as
proposed by the Commission, the General Assembly of the OAS has declared that
the forced disappearance of persons in the Americas is a crime against humanity
(see Resolutions 666 (X-III-0/83), and 742 (XIV-0/84). In
deciding the Velasquez Rodriguez case on July 29, 1988, the Inter-American Court
of Human Rights, in turn, held as follows: The
practice of disappearances, in addition to directly violating many provisions of
the Convention, such as those noted above, constitutes a radical breach of the
treaty in that it shows a crass abandonment of the values which emanate from the
concept of human dignity and of the most basic principles of the inter-American
system and the Convention. (Inter-American Court of Human Rights, Judgment of
July 29, 1988, Series C., Nº 4). THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, RESOLVES: 1. To presume the
truth of the events reported in the communication of September 17, 1986, with
regard to the arrest and subsequent disappearance of Mr. Benito Rojas Ccorahua. 2. To declare that
the events described in the complaint constitute an extremely serious violation
of the right to life (Article 4) the right to security and integrity of the
person (Article 5) and the right to personal liberty (Article 7) under the
American Convention on Human Rights, to which Peru is a party. 3. To recommend to
the Government of Peru that it proceed with all possible speed to investigate
the facts and to sanction with the severest penalties those responsible for the
arrest and disappearance of Mr. Benito Rojas Ccorahua. 4. To ask the
Government of Peru to advise the Commission within 90 days of the measures it
has taken in conformity with this resolution. Should the Government of Peru fail
to present its comments within that time, the Commission, in accordance with
Article 63 g of its Regulations, shall include this resolution in its
Annual Report to the General Assembly of the OAS. 5. To convey this
resolution to the Government of Peru and to the complainant.
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