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REPORT
Nº 9/93
I.
BACKGROUND
1. On
May 10, 1989, in the course of an on-site visit to Peru, a Special
Committee of the Inter-American Commission on Human Rights met with the
then head of the Joint Command and Commander-in-Chief of the Army,
General Artemio Palomino, and gave him a copy of an article published in
the May 8, 1989 issue of Caretas magazine.
The article reported that:
... on Tuesday afternoon, May 3, the Jauja Defense Front filed a
complaint with the provincial authorities, stating that eight persons
had disappeared as a result of Army activity in the Huertas area.
The petitioners stated that townspeople Raúl Salas Chocas,
Wilson Salas Huánuco, Abel Asparrín Huamán, Teódulo Simeón Yaringaña,
Jaime Jesús Montalvo, Nicolás Chocas Cavero, José Jacob Camarena and
Freddy Flores Salas, a minor, were taken from their homes by military
patrols combing the area following a confrontation in the Los Molinos
district that had left 59 MRTA casualties.
General Palomino took the information in question and promised to
make the necessary inquiries.
II.
FACTS DENOUNCED
2. The
Inter-American Commission on Human Rights received a petition dated July
14, 1989, to the effect that:
1. On April 28,
1989, seven persons were taken into custody by soldiers of the Peruvian
Army in the areas of Coriac and Los Molinos, Huertas District, Jauja
Province, Junín Department.
2. At approximately
3 a.m. on that date, a bloody clash occurred between members of the
Armed Forces and subversives from the Túpac Amaru Revolutionary
Movement (Movimiento Revolucionario Túpac Amaru - MRTA) at Los Molinos.
Within hours of the clash, which left some 60 rebels dead, the
President of the Republic visited the scene of the events and said that
it had been "a severe blow to the subversive movement".
3. Shortly
thereafter, however, Army helicopters descended upon the communities
near the site of the confrontation and proceeded to detain all the local
population, even though the latter showed their identification papers.
Following a selection process, the following persons were
arrested: Raúl Alfredo
Salas Chocas, Wilson Edgard Salas Huánuco, Nicolás Chocas Cavero,
Freddy Félix Flores Salas, Teódulo Fermín Simeón Yaringaña, Jaime
Jesús Montalvo and José Camarena Peña.
4. The civilians
were then placed aboard the Army helicopters and taken to the "Teodoro
Peñaloza" Garrison at Jauja and then transferred to the "9 de
Diciembre" Garrison in the city of Huancayo.
At both places, the fact of their detention was denied when
family members inquired, even though there had been eyewitnesses.
And so these individuals and many others whose names could not be
obtained continue to be detained-disappeared.
3. The
petition was accompanied by the following documents: a petition of habeas
corpus that had been filed with Huancayo's Second Court of
Investigation; the decision of the examining magistrate and brief of
appeal; the petition of habeas corpus sent by telegraph to the
Huancayo Magistrate'_ Court; the petitions filed with Junin'_ Chief
Prosecutor; the petitions filed with the military authorities in the
area; and the victims' birth and marriage certificates.
4. In
a note dated August 4, 1989, the Commission began to process the case
and requested that the Government of Peru supply information about the
events reported in the petition and any other information that might
help the Commission determine whether all domestic remedies had been
exhausted. The Commission
gave the Government 90 days in which to reply.
III.
REMEDIES UNDER DOMESTIC LAW
5. On February 12,
1990, the Commission received additional information from the
petitioner, stating that:
The persons named are still detained-disappeared and the many
measures taken under domestic law have been completely futile.
The following measures were reported:
a) A
petition of habeas corpus filed with Peruvian Army Lt. Colonel
Roberto Contreras, commander of the "9 de Diciembre" Garrison,
on behalf of Raúl Alfredo Salas Chocas, Wilson Edgard Salas Huánuco
and Freddy Félix Flores Salas. The
Huancayo Second Court of Investigation denied the petition for lack of
merit, based on a visit made to the garrison in question.
The inspection confined itself to the outer cells and did not
check to see whether they were being held in the inner portion of the
Garrison. That judgment was
appealed on June 26, 1989, and the appeal was denied by the Huancayo
Second Magistrate's Court, which upheld the ruling being appealed.
b) A
petition of habeas corpus filed on July 14, 1989 with the
Huancayo Magistrate's Court on behalf of all the persons named.
It should be noted that this action was taken upon receipt of new
information confirming that the individuals in question were being held
at the "9 de Diciembre" Garrison.
The petition was sent by telegraph.
No response has ever been received.
c) A
petition sent by telegraph on July 14, 1989, to Dr. Ramón Pinto
Bastidas, Chief Prosecutor for Junín, asking that he intervene.
d) Petitions
filed with the Chief of the Political-Military Command for the zone and
to Lt. Colonel Roberto Contreras Ramos, the officer in command of the
"9 de Diciembre" Garrison.
e) It
was learned that the Junín Board of Superior Prosecutors had appointed
Dr. Filomeno Salazar Hinostroza as ad hoc Prosecutor for this case, who
has spoken with the families of the disappeared and those who witnessed
their imprisonment. He has,
however, failed to take decisive measures to shed light on the facts
reported.
6. In
a note dated February 13, 1990, the Commission forwarded this
communication to the Government of Peru with the request that it provide
the Commission with information on the matter within a period of 45
days.
7. On
March 7, 1990, the IACHR again asked the Government of Peru for
information concerning the investigation into this present case, giving
it a period of 30 days in which to reply.
8.
When no reply was forthcoming and well after the prescribed time
period had elapsed, on June 12, 1992 the Commission sent another
communication reiterating its request for information from the
Government of Peru and advising it that unless that information was
received within 60 days, it would consider applying Article 42 of the
Commission's Regulations, whereby the facts reported in the petition are
presumed to be true as long as other evidence does not lead to a
different conclusion.
9. On
September 17, 1992, when all deadlines had expired, the Commission
received a reply to its last communication wherein the Government states
that thus far "the physical whereabouts and legal situation of the
allegedly missing persons have not been established ...", and
10. At its 82
session, the Commission adopted Report No. 20/92, which was referred to
the Government of Peru so that the latter might make whatever
observations it deemed pertinent within three months of the date of
transmission. ANALYSIS:
1. The
Commission is competent to take cognizance of the instant case as it
involves violations of rights recognized by the American Convention on
Human Rights: Article 4 on the right to life; Article 5 on the right to
humane treatment; Article 7 on the right to personal liberty; and
Article 25 on the right to judicial protection, as stipulated in Article
44 of the aforesaid Convention, to which Peru is a State party.
2. The
complaint meets the formal requirements of admissibility as set forth in
the American Convention on Human Rights and in the Commission's
Regulations.
3. The
complaint is not pending settlement in another procedure under an
international arrangement, nor does it duplicate an earlier petition
which has already been examined by the Commission.
4. In
the instant case, legal documents providing information concerning the
facts denounced have been presented and were also published in the
Peruvian press, regarding which the Inter-American Commission of Human
Rights requested information from the Chief of the Joint Command a few
days after the events in question transpired.
5.
From the information supplied to the Commission as this case was
being processed, the facts alleged are as follows:
a. On
April 28, 1989, there was a clash between Peruvian Army troops and
members of the Túpac Amaru Revolutionary Movement, at the place known
as Los Molinos in the Province of Jauja, Department of Junín.
b.
Within hours of the clash, Army helicopters descended upon the
communities of Coriac and Los Molinos in the vicinity of the site where
the clash had occurred, and troops detained numerous townspeople, among
them the following:
- Raúl Alfredo Salas Chocas
- Wilson Edgard Salas Huánuco
- Nicolás Chocas Cavero
- Freddy Félix Flores Salas
(a minor)
- Teódulo Fermín Simeón
Yaringaña
-
Jaime Jesús Montalvo
- José Camarena Peña.
c.
The individuals named above were put aboard the helicopters in
the presence of their families and numerous witnesses.
They were taken to "Teodoro Peñaloza" Garrison in
Jauja and then transferred to "9 de Diciembre" Garrison in
Huancayo on May 10, according to what members of the "Teodoro Peñaloza"
Garrison told the relatives of the detainees.
d. The
detainees were alleged to have been held inside "9 de Diciembre"
Military Garrison, according to the petition of habeas corpus
filed with the examining magistrate of Huancayo on June 26, 1989, and
the appeal filed with the Examining Judge of the Huancayo Second Court
that same day.
e. The persons
listed above are still disappeared.
6. As
for the remedies under domestic law, the information supplied during the
processing of this case indicates that such remedies have been used and
exhausted, as follows:
a. The
petition of habeas corpus presented on behalf of Raúl Alfredo
Salas Chocas, Wilson Edgard Salas Huá_uco and Freddy Félix Flores
Salas was dismissed by the Examining Magistrate of the Second Court who,
after an inspection of the "cells in the `9 de Diciembre' Garrison
in the Chilca District" went on record to the effect that the
individuals in question were not to be found there; the dismissal was
upheld by the Second Magistrate's Court of Huancayo.
b.
There is no record of a second inspection of the garrison in
question, to check inside that facility, especially the area known as
"the tunnel", as the pleadings in the appeal had sought.
c. Nor
is there any record of the results of the petition of habeas corpus
filed on behalf of Teódulo Simeón Yaringaña or of any investigation
of the interior of "9 de Diciembre" Garrison that the
corresponding petition brief had requested.
d. On
July 14, 1989, another petition of habeas corpus was filed with
the Huancayo Magistrate's Court on behalf of the victims in this case,
requesting a summary proceeding inasmuch as "There is reliable
evidence that the individuals in question are inside that military base
("9 de Diciembre" Garrison) even though the arrest has been
denied." There is no
record that the petition produced any result.
e. The
request sent to the Chief Prosecutor of Junín on July 14, 1989, asking
that he intervene and inspect the "9 de Diciembre" Garrison to
safeguard the rights of the aggrieved parties would not appear to have
produced any result.
f.
There is no record that the letters of July 14, 1989, to the
Chief of the Political Military Command of Huancayo asking that
permission be granted for an inspection of the interior of that military
garrison achieved their intended purpose.
g. The
ad hoc prosecutor appointed to investigate the case spoke with witnesses
to the confinement of the aggrieved parties in this case, though his
actions failed to shed light on the facts denounced, as the petitioner
duly reported.
7. The
petition of habeas corpus filed provides information pointing to
the fact that the persons in question were held in custody by the
Peruvian Army and confined in its "9 de Diciembre" Garrison,
though there is no record to show that the competent authorities ever
conducted a serious investigation of the facts denounced by the victims'
relatives and attorneys in their letters to the Huancayo Magistrate's
Court and to the Chief of the Political Military Command.
8. In
its judgment of July 29, 1988, in the Velásquez Rodríguez case,
the Inter-American Court of Human Rights stated the following:
The State is obligated to investigate every situation involving a
violation of the rights protected by the Convention.
If the State apparatus acts in such a way that the violation goes
unpunished and the victim'_ full enjoyment of such rights is not
restored as soon as possible, the State has failed to comply with its
duty to ensure the free and full exercise of those rights to the persons
within its jurisdiction. (Paragrapah 176).
9. In
the same case the Inter-American Court states the following concerning
the duty to investigate the situations denounced:
[The duty to investigate] ... 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 victim or his family or upon
their offer of proof, without an effective search for the truth by the
government. (Paragraph 177).
10.
Although three years have elapsed since the case was first
processed by the Commission and despite the seriousness of the charges
made and the Commission's repeated overtures, the Government of Peru has
failed to provide a satisfactory response concerning the facts in the
instant case.
11.
Inasmuch as it did not reply by the deadlines established by the
Commission, the Government of Peru has failed to comply with the
international obligation to provide information within a reasonable
period, as established in Article 48 of the Convention.
12. The
Commission has repeatedly expressed its categorical condemnation of the
heinous phenomenon of forced disappearance of persons and has stated in
various documents that:
... this procedure is cruel and inhuman and the disappearance not
only constitutes an arbitrary deprivation of liberty but also an
extremely serious threat to the humane treatment, security and life
itself of the victim.[1]
13. In a number
of resolutions, the General Assembly of the Organization of American
States has emphasized that countries in which forced disappearances have
occurred must put an immediate end to this practice, and has urged the
governments to make the necessary efforts to establish the situation of
such persons. The
Organization's General Assembly has also declared the forced
disappearance of persons to be an affront to the conscience of the
hemisphere and a crime against humanity.[2]
14. In the Velásquez
Rodríguez case the Inter-American Court of Human Rights has stated
that:
The practice of disappearances, in addition to directly violating
many provisions of the Convention (...), 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. (Paragraph
158).
15.
Since the procedure of friendly settlement contemplated in
Article 48 paragraph 1.f of the American Convention on Human Rights does
not apply because of the nature of the facts denounced and given the
fact that the Government did not reply, the Commission must comply with
the provisions of Article 50, paragraph 1 of the Convention, setting
forth its conclusions and recommendations concerning the petition
submitted for its consideration.
16. The
Government of Peru, on November 6, 1992, presented its observations on
Report Nº 20/92 in which information is provided on only one of seven
disappeared persons, and in that instance, only to deny his detention. THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, CONCLUDES:
1. To
declare that the Government of Peru is responsible for violation of the
rights to personal liberty, to life and to judicial protection,
recognized in Articles 7, 4 and 25 of the American Convention on Human
Rights inasmuch as soldiers with the Peruvian Army, acting as agents of
the Peruvian State, unlawfully arrested and engineered the subsequent
disappearance of Raúl A. Salas Chocas, Wilson E. Salas Huánuco, Nicolás
Chocas Cavero, Freddy F. Flores Salas, Teódulo F. Simeón Yaringaña,
Jaime Jesús Montalvo and José Camarena Peña, events that transpired
in the Province of Jauja, Department of Junín, on April 28, 1989.
2. To
declare that the Government of Peru has failed to comply with the
obligation to respect the human rights and guarantees,
imposed under Article 1 of the American Convention on Human
Rights to which Peru is a State Party.
3. To
recommend that the Government of Peru conduct a thorough investigation
into the facts denounced in order to clarify the circumstances of the
arrest, determine the whereabouts of the victims, identify the persons
responsible and bring them to justice so that they receive the
punishment that such reprehensible conduct warrants.
4. To
publish this report in the Annual Report to the General Assembly,
pursuant to Article 48 of the Commission's Regulations and Article 53.1
of the Convention, inasmuch as the Government of Peru did not adopt
measures to correct the situation denounced, within the time period
stipulated in Report No. 20/92. |
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