OEA/Ser.L/V/II.98
doc. 6 rev.
13 April 1998
Original: Spanish
REPORT
Nº 42/97
CASE 10.521
ANGEL ESCOBAR JURADO
PERU
February 19, 1998
I. THE FACTS
1. On March 1, 1990, the
Inter-American Commission of Human Rights (hereinafter, "the
Commission") received a complaint against the Republic of Peru
(hereinafter, "the Peruvian State," the "State" or
"Peru") regarding the forced disappearance of Angel Escobar Jurado,
which stated that:
At 7 p.m. on Tuesday, February 27 of this year, Angel Escobar Jurado,
aged 37, Assistant General Secretary of the Provincial Federation of Farming
Communities in Huancavelica (Federación Provincial de las Comunidades
Campesinas de Huancavélica) and Administrative Secretary of the Huancavelica
Human Rights Committee and collaborator of APRODEH (National Pro-human Rights
Association) was detained by five (unidentified) individuals dressed in civilian
clothing but presumed to be members of the Armed Forces in Huancavelica, of the
province and department of the same name.
The detention occurred when Angel Escobar left the offices of the
Huancavelica Human Rights Committee, at No. 316, Avenida San Agustín Gamarra
and was making his way home. His relatives made inquiries at police
stations and military barracks, where they denied having detained him, a
response that leads one to fear for his life and physical integrity.
II. PROCESSING BY THE IACHR
2. Having received the denunciation,
and without prejudging its admissibility, the Commission transmitted the
pertinent parts of the complaint to the State of Peru in a communication dated
March 1, 1990, requesting such information as it deemed appropriate. No
reply was received in the statutory period.
3. This request for information was
reiterated in a note sent to the Peruvian State on March 25, 1991, in which
reference was made to the possible application of article 42 of the Regulations
of the Commission, and which also went unanswered. On March 12, 1997, the
Commission sent another communication requesting the State of Peru to supply
information within 30 days regarding the instant case and reiterated the
possible application of article 42 of the Regulations of the Commission.
The State of Peru did not reply to the request, nor did it provide any
information on the complaint during the period indicated.
4. Since the Peruvian State did not
respond to any of the Commission's requests for information in this case, the
friendly settlement procedure set forth in article 48.1.f of the American
Convention was considered inapplicable, and the Commission proceeded to issue
its article 50 report on this case.
III. PROCEEDINGS AFTER COMMISSION ADOPTION
OF THE ARTICLE 50 REPORT
5. Pursuant to article 50 of the
Convention, the Commission on April 22, 1997, during its 96th Special Session,
approved report 24/97 concerning the present case based on article 42 of its
Regulations, by which the Commission is authorized to presume the facts reported
in the petitioner "to be true" in the absence of any response on the
part of the State, "as long as other evidence does not lead to a different
conclusion."
6. By Note No. 7-5-M/135, dated April
21, 1997 but received at the Commission on April 25, 1997, three days after the
article 50 report had been adopted, the Permanent Mission of Peru to the OAS
informed the Commission that the Ministry of Defense by means of Report No.
3528-SGMD-D of July 1992 stated that the Joint Command of the Armed Forces had
concluded after completing its investigations in regard to the case of Angel
Escobar Jurado that Escobar had not been detained by Armed Forces or National
Police personnel. This information had been brought to the attention of
the Human Rights Commission of the Peruvian Congress as well as to the President
of the Council of Ministers and the Ministry of Foreign Relations. Since
this information is from 1990, an update was requested of the Ministry of
Defense. In Report No. 3240-SGMD-G of April 4, 1997, the Ministry of
Defense reiterated the above cited information. Consequently, according to
this information, Angel Escobar Jurado was not detained and disappeared by the
security forces of Peru. In addition, there is no information that any
family members had presented a complaint before the competent national
authorities.
7. The response of Peru on this case
was transmitted to the petitioners on May 13, 1997, and they were asked to
submit any observations thereon within 30 days. None were submitted.
8. By letter dated June 18, 1997, the
Commission transmitted a copy of its article 50 report on this case to Peru and
requested that the State provide information regarding steps taken to carry out
the recommendations of the Commission, and advised them that they were not
authorized to publish the report since it was still confidential.
9. By Note No. 7-5-M/295 dated August
22, 1997, Peru presented its observations on the Commission's confidential
report, which were prepared by the National Council of Human Rights which are
discussed below in the analysis of the merits.
IV. ANALYSIS OF THE MERITS
10. What happened to Angel Escobar Jurado, as set
forth in this case, corresponds in content, nature and characteristics, to the
concept of "forced disappearance", as developed in the jurisprudence
of the Commission and the Inter-American Court of Human Rights (hereinafter,
"the Inter-American Court,") and incorporated into Article II of the
Inter-American Convention on the Forced Disappearance of Persons.[1]
11. Article II of the Forced Disappearance
Convention defines a "forced disappearance" in the following terms:
For the purposes of this Convention, forced disappearance is considered
to be the act of depriving a person or persons of his or their freedom, in
whatever way, perpetrated by agents of the state or by persons or groups of
persons acting with the authorization, support, or acquiescence of the state,
followed by an absence of information or a refusal to acknowledge that
deprivation of freedom or to give information on the whereabouts of that
person, thereby impeding his or her recourse to the applicable legal remedies
and procedural guarantees.
12. Peru is not a State Party to the Forced
Disappearance Convention
but
the mere elaboration of the definition of a "forced disappearance" by
the drafters of the Convention is useful for the purposes of identifying the
distinct elements of the same. What is crucial is that the individual be
deprived of his freedom by agents of the state or under the color of law,
followed by a refusal or incapacity of the State to explain what has happened to
him or to give information about his whereabouts. In this case, Peru, in
its response dated August 19, 1997, stated that no family members lodged a
complaint regarding Escobar's detention with the competent authorities.
13. In fact the file reveals that a number of
denunciations were filed. Mr. Francisco Soberón, the Coordinator of the
Association for Human Rights (APRODEH) of Peru, who brought the case to the
Commission on March 1, 1990 (Escobar was detained on February 27, 1990), also
denounced the detention to the Fiscal Superior Decano de Huancavelica, Dr. Julio
C. Alvarado Villena, on March 8, 1990. APRODEH also presented a writ of habeas
corpus, on March 1, 1990, on behalf of Mr. Angel Escobar, President of
CODEH-Huancavelica, whom, they alleged had been detained by five members of the
military. On March 5, 1997, the habeas corpus was denied by the
Superior Court of Huancavelica, and on March 7, 1990, APRODEH addressed the
Investigating Judge of Huancavelica a second time requesting an appeal in this
case. Also, on March 1, 1990, the President of the Committee on the
Defense of Human Rights of Huancavelica denounced the detention of Escobar
before the Prefect of the Department of Huancavelica, stating that he was
presumably detained by members of the Police or the Armed Forces. On the
same date, the President of the Committee sent a similar letter to the
Political-Military Commander of the Huancavelica emergency zone and to the
District Attorney General, requesting that his whereabouts be located. A
report of the Commander of the Political-Military Zone of Huancavelica replied
in Report No. 077/JPM-HVCA to the President of the Human Rights Committee of
Huancavelica that Mr. Angel Escobar Jurado was not arrested by any military or
police troops and that his whereabouts were unknown. This report was dated
March 1, 1990.
14. In spite of these denunciations alleging the
detention and disappearance of Angel Escobar Jurado, it appears that the
Political-Military Commander of the emergency zone of Huancavelica did not carry
out an investigation or attempt to locate the victim or identify the individuals
who might have been responsible.
15. The Commission's experience has demonstrated
that the main cause of forced disappearances derives from abuse of powers
conferred on the armed forces of a State during a state of emergency.
Under a state of emergency, the number of arbitrary detentions increases,
individuals are detained without charges and kept in detention without benefit
of trial, deprived of access to judicial remedies, and with no record of having
been arrested, all of which is flagrantly at variance with the rule of
law. In addition, human rights defenders, such as Mr. Escobar Jurado, were
frequently targeted due to their involvement in such matters.
16. In Resolution 666 (XIII-O/83), the General
Assembly of the Organization of American States declared that "the practice
of forced disappearance of persons in America is an affront to the conscience of
the Hemisphere and constitutes a crime against humanity".[2]
Right to life (Article 4 of the Convention)
17. The Inter-American Court of Human Rights has
pointed out that the forced disappearance of persons "frequently (involves)
execution of those detained, in secret and without any kind of trial, followed
by hiding of the body with a view to removing all material traces of the crime
and achieving impunity for those who committed it, which amounts to brutal
violation of the right to life recognized under article 4 of the
Convention." (Velásquez Rodríguez Case, Judgment of
July 29, 1988, paragraph 157).
18. In the case of Mr. Angel Escobar Jurado, the
evidence put forward leads to the presumption that he was detained by State
agents. The fact that his detention and disappearance were denounced to
the authorities in Huancavelica and no serious investigation was carried out to
find him, is evidenced by the fact that the Political-Military Commander of the
zone issued his Report No. 077/JPM-HVCA on March 1, 1990, the same date on which
the matter was denounced to him, having allocated no time to carrying out an
investigation. In addition, Mr. Angel Escobar Jurado was a well known
peasant leader and human rights defender, falling within a class of persons
inimical to the interests of the military in the area. Furthermore,
Escobar's whereabouts remain unknown eight years after his detention. The
context in which the disappearance occurred and the fact that his whereabouts
are still unknown are reasonable grounds for assuming that he was killed (Godínez
Cruz Case, Judgment of January 20, 1989, paragraph 198).
19. The jurisprudence of the Court states:
"The right to life and the guarantee and respect thereof by States cannot
be conceived in a restrictive manner. That right does not merely imply
that no person may be arbitrarily deprived of his or her life (...) It also
demands of the States that they take all appropriate measures to protect and
preserve it". "The international protection of human rights, as
it relates to article 4.1 of the American Convention on Human Rights, has a
preventive dimension, in which the obligation to act with due diligence assumes
graver implications when dealing with illegal detentions." (Gangaram
Panday Case, Judgment of January 21, 1994, dissenting opinion of
judges Picado Sotela, Aguiar-Aranguren and Cançado Trindade, paras. 3,4).
20. Therefore, the Commission concludes that the
State of Peru has violated the 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..." and "No one shall be arbitrarily
deprived of his life."
Right to Personal Liberty (Article 7 of the Convention)
21. A detention is arbitrary and illegal when it
is practiced for reasons not validly envisaged by law, when it is carried out
without observing legal standards, and when powers to detain have been abused,
i.e. when a detention is carried out for reasons other than those contemplated
and required by law. The Commission has also pointed out that detention
for improper purposes is in itself a punishment or sentence, a kind of sentence
without trial or extralegal sentence violating the democratic principles of
the independence and separation of powers as well as the guarantees of legality
and the presumption of innocence.
22. Concerning violation of this right, the
Inter-American Court has ruled that: "the kidnapping of a person is
an arbitrary deprivation of liberty, an infringement of a detainee's right to be
taken without delay before a judge and to invoke the appropriate procedures to
review the legality of the arrest, all in violation of Article 7 of the
Convention which recognizes the right to personal liberty." (Godínez
Cruz Case, ibid., paragraph 163).
23. As a result of his disappearance, Mr. Angel
Escobar Jurado was the victim of arbitrary arrest, which deprived him of his
physical freedom without legal cause and without a determination of the legality
of his detention by a judge or competent tribunal. Those acts directly
violate the right to personal liberty recognized under article 7 of the
Convention and constitute a violation, on the part of Peru, of the duties to
respect and ensure that right enshrined in Article 1.1 of the Convention (Godínez
Cruz Case, ibid., paragraph 196).
On the obligation of States to guarantee and respect rights
24. In this case it has been demonstrated that
the Peruvian State has not complied with the prescription of article 1.1 that
States Parties undertake "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." The consequences of the
failure of the State to investigate have led to a violation of the rights
contemplated in articles 4 and 7 of the Convention.
25. The first obligation of States assumed by the
States Parties under article 1.1, is to respect the rights and freedoms of all
persons subject to their jurisdiction. Referring to this obligation, the
Court stated that: ". . . under international law a State is
responsible for the acts of its agents undertaken in their official capacity and
for their omissions, even if they act outside the sphere of their authority or
violate internal law." It ruled, furthermore 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." (Velásquez Rodríguez Case, Judgment of
July 29, 1988, paragraphs 170 and 172).
26. The Commission concludes that the detention
and subsequent disappearance of Mr. Angel Escobar Jurado are public acts
perpetrated by State agents, which means that the Peru violated the rights of
the victim contemplated in article 1.1 in relation to violations of articles 4
and 7 of the Convention.
27. The second obligation envisaged in article
1.1 is to ensure free and full exercise of the rights and freedoms recognized in
the Convention. Here Court 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 State 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, the States
must prevent, investigate, and punish any violation of the rights recognized in
the Convention and, moreover, if possible, attempt to restore the right violated
and provide compensation, as warranted, for damages resulting from the
violation." (Velásquez Rodríguez Case, Judgment of July 29,
1988, paragraph 166).
28. In the event of a "forced
disappearance", the State is duty-bound to establish the fate and current
circumstances of the victim, punish those responsible, and compensate the
victim's relatives. In the case at hand, those obligations have not been
met.
29. The response of the State to the Commission's
confidential article 50 report is designed to afford the State an opportunity to
demonstrate how it is complying with the Commission's recommendations.[3]
As the Inter-American Court recently stated in the Loayza Tamayo Case
"...if a State signs and ratifies an international treaty, especially if it
deals with human rights, as is the case of the American Convention, it is
obliged to use its best efforts in carrying out the recommendations of an organ
of protection such as the Inter-American Commission which is, furthermore, one
of the principal organs of the Organization of American States. . .".[4]
30. Peru, in its response dated August 19, 1997
informed the Commission that the detention and disappearance of Mr. Angel
Escobar Jurado are not registered in any official reports, and that,
furthermore, the family members did not formalize any denunciation before the
competent authorities. The information in the file reveals, however, that
the matter was raised with the Political- Military Commander of the emergency
zone and with the District Attorney General's office, both of which responded
that they knew nothing about the detention of this individual, in spite of the
fact that the report of the Political-Military Commander is dated the same date
as the request for an investigation, leading to the conclusion that no
investigation had been conducted, and leading to the presumption, given who Mr.
Escobar was, that he was detained and disappeared by the military.
31. The Peruvian Amnesty laws, Laws Nos. 26479
and 26492, effectively tie the hands of the State from undertaking any
investigation of any forced disappearance case or any other human rights
violation committed by a member of the Armed Forces, or any other perpetrator,
during the period May 1980 - June 14, 1995. The Amnesty laws cover all
military, police and civilian officials, whether they have been arraigned,
investigated, tried, indicted or convicted before a regular or special court for
common or military crimes for any event, stemming from or originating on the
occasion of, or as a consequence of, the struggle against terrorism, that may
have been committed individually or by a group during this period.[5]
An amnesty, by its nature, removes the criminal element from the conduct and the
penalty, if the individual has been convicted or served a sentence, is
considered never to have been enforced.[6]
32. In the case of the Peruvian Amnesty Law No. 26479, article 6
provides:
The facts or crimes covered by the present amnesty, as well as the
dismissals and acquittals, are not susceptible of investigation,
inquiry or summary procedure; resulting in the definitive filing of all
judicial proceedings in process or pending enforcement. (Emphasis added)
In summary, this law provides that the instant case is not susceptible
of investigation, in flagrant disregard of the Peruvian State's obligations
under the American Convention and the jurisprudence of both the Commission and
the Inter American Court of Human Rights.
33. Amnesty laws frustrate and run contrary to a State's obligation
to investigate and punish those responsible for human rights violations whether
those responsible be members of the military or civilians. The expectation
of an eventual amnesty casts a blanket of impunity over the Armed Forces or any
non-military perpetrator, enabling them to commit any atrocity in the name of
their cause, and such a climate breeds inevitable excess and contempt for the
rule of law.[7]
An amnesty in one country in the region which has ended its civil conflict,
breeds the expectation of an amnesty in a second, albeit the latter is still in
a state of internal conflict. A state policy of impunity, enshrined in
amnesty laws, eventually leads to a loss of prestige and professionalism of the
military in the eyes of the rest of the population.
34. Consequently, the Commission concludes that the State of Peru
has violated article 1.1, because it failed to safeguard the exercise of the
rights and guarantees of Angel Escobar Jurado.
35. On the basis of the findings set forth in
this report, the Commission
has
arrived at the following conclusions and recommendations:
V. CONCLUSIONS
i. That members of the Peruvian
State Armed Forces detained Angel Escobar Jurado and subsequently, for the next
eight years were unable to account for his whereabouts, and that, as a result,
the Peruvian State is responsible for violating the right to life (article 4),
the personal liberty (article 7) and the State's overall obligation to respect
and ensure the exercise of these rights (article 1.1) enshrined in the American
Convention.
VI. RECOMMENDATIONS
i. That the Peruvian State,
render without force any domestic measure, be it legislative or of some other
nature, tending to prevent the investigation, trial, and punishment of those
responsible for the detention and disappearance of Angel Escobar Jurado.
To that end, the Peruvian State should declare laws Nº 26479 and Nº 26492 to
be without force.
ii. That the Peruvian State carry out
a serious, impartial and effective investigation of the facts by means of the
competent organs, to establish the whereabouts of Angel Escobar Jurado and to
identify those responsible for his detention-disappearance, and, through
appropriate criminal proceedings, to punish those responsible for such grave
acts in accordance with the law.
iii. That the Peruvian State provide
reparation for the relatives of Angel Escobar Jurado, including in that
compensatory indemnity payment for the suffering derived from not knowing the
fate of the victim.
VII. PUBLICATION
36. The Commission considered this case again during its 97th
regular session and on October 16, 1997, adopted Report No. 42/97, its article
51 report on the case and transmitted it to the State of Peru on November 4,
1997. The Commission requested Peru to adopt reparatory measures in this
case within a period of two months from the date of transmittal, in order for it
to decide on the publication of the report.
37. The Peruvian State replied to the Commission by Note 7-5-M-468
dated December 29, 1997 in which the Government stated that it reaffirmed its
conclusions set forth in Note No. 7-5-M/295 of August 22, 1997, regarding this
case. The Commission considered this case again during its 98th regular
session and on February 19, 1998, it took the decision to publish this Report.
38. In virtue of the fact that the Peruvian State
responded expressing its decision to not comply with the recommendations issued
by the Commission for the reasons expressed therein, and in conformity with
articles 51.3 of the American Convention and 48 of its Regulations, the
Commission decides to reiterate the conclusions and recommendations in chapters
V and VI supra, to make public the present report and to include it in
its Annual Report.
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