By petition submitted to the Inter-American Commission on Human
Rights (hereinafter “the Commission”) by the non-governmental
organization Centro de Estudios y Acción para la Paz (“CEAPAZ”)
on December 15, 1992, it was alleged that the Republic of Peru
(hereinafter “Peru,” “the State,” or “the Peruvian State”)
violated the human rights of Mr. Yone Cruz Ocalio, by detaining him, by
members of the Police, on February 24, 1991, and then disappearing him.
The State alleges that Mr. Cruz Ocalio was not detained by police or
military forces. The
Commission concludes that Peru violated, in his person, the rights set
forth at Articles 7, 5, and 8 of the American Convention on Human Rights
(hereinafter the “Convention” or the “American Convention”), in
conjunction with Article 1(1), and it makes recommendations to the
BEFORE THE COMMISSION
On January 4, 1993, the Commission opened the case, forwarded the
pertinent parts of the complaint to the Peruvian State, and requested that
it provide information within 90 days.
The State answered on June 8, 1993.
On May 26, 1999, both parties were asked to provide the Commission
with updated information on the case, and were informed that the
Commission was making itself available to try to reach a friendly
settlement. On July 13, 1999,
the petitioner answered that it would be willing to pursue a friendly
settlement, subject to the State assuming certain commitments.
The State, on July 14, 1999, ratified earlier arguments and stated
it did not consider it advisable to pursue a friendly settlement.
Accordingly, the Commission considered the possibility of reaching
a friendly settlement to have been exhausted.
III. POSITIONS OF
The petitioner notes that Mr. Yone Cruz Ocalio, married and father
of two children, who was a worker at the “La Soledad” farm was
detained on February 24, 1991, at approximately 9:00 a.m., by members of
the National Police, at the Tulumayo agricultural station, Aucayacu,
province of Leoncio Prado, department of Huánuco, Peru.
Petitioner further states that after being detained, Mr. Cruz
Ocalio was taken to the Tulumayo military base, and that he then
Petitioner notes that in response to Mr. Cruz Ocalio’s detention,
several remedies were pursued, before the Executive, the Judiciary, and
the Public Ministry. It
further indicates that as regards the Executive, communications were sent
to the Minister of Defense, to the Chairman of the Joint Chiefs of Staff
of the Armed Forces, to the General Commander of the Peruvian Army, to the
Chief of the Political-Military Command of Huánuco, and to the Chief of
the Tulumayo Military base. Petitioner indicates that as regards the Judiciary, a writ of
habeas corpus was filed on April
15, 1991, before the Investigative Judge of Leoncio Prado, on which
no ruling had been made. It
notes that in terms of the Public Ministry, the parents of Mr. Cruz Ocalio
reported the incident to the First Provincial Prosecutor of Leoncio
Prado and also to the Superior Prosecutor of Huánuco, and to the
Attorney General of Peru. Petitioner
indicates that notwithstanding all of the initiatives taken, Mr. Cruz
Ocalio continued disappeared.
The State answered on June 8, 1993, and communicated that the
Ministry of Defense of Peru had declared that “citizen Yone Cruz Ocalio
has not been detained by the forces of order that operate in Aucayacu.”
On August 29, 1994, Peru informed the Commission that the Ministry
of Interior of Peru had reported as follows:
as the corresponding investigations related to the supposed detention of
citizen Yone Cruz Ocalio were carried out, it has been determined that he
has not been detained by members of the National Army or the National
Police of Peru, from the police antidrug base in the jurisdiction of Tingo
as the book of persons detained and of incidents, kept in this office, has
been reviewed, no information has been found regarding Yone Cruz Ocalio,
indicating that he was not the subject of intervention or investigation by
this police antidrug base.
7. On September
17, 1998, the State asked the IACHR to declare the petition inadmissible.
Commission now analyzes the admissibility requirements of a petition
established in the American Convention.
Subject-matter jurisdiction, personal jurisdiction, and
jurisdiction based on time and place of the events
The allegations in this case describe facts that would be violative
of several rights recognized and enshrined in the American Convention that
took place within the territorial jurisdiction of Peru when the obligation
to respect and guarantee the rights established therein were in force for
Therefore, the IACHR has subject-matter jurisdiction, personal
jurisdiction, and jurisdiction based on when and where the alleged
violations took place, so as to be able to take cognizance of the merits
in the case.
b. Exhaustion of
The fact that the first stages of the process, i.e., within the
first 90 days that it was given to provide information about the facts
alleged, the State did not present any objection on grounds of failure to
exhaust domestic remedies, will be sufficient for the Commission to
consider the requirement established at Article 46(1)(a) of the Convention
to have been met.
The Commission recently decided, together, a group of 35 cases that
involved 67 persons disappeared in various departments of Peru during the
period from 1989 to 1993, and analyzed in detail the general phenomenon of
disappearances in Peru. In
those reports the Commission notes that habeas corpus was the adequate
remedy in cases of disappearance for trying to find a person presumably
detained by the authorities, to inquire into the legality of the
detention, and, if possible, to secure his or her release.
The IACHR also concluded that for the purposes of admissibility of
complaints before this body, it was not necessary to file a habeas corpus
remedy--or any other--for the purpose of exhausting domestic remedies,
since from 1989 to 1993 there was a practice or policy of disappearances
ordered or tolerated by various public authorities that rendered the
habeas corpus remedy totally ineffective in cases of disappearance.
In those reports the Commission found as follows:
Commission considers it important to provide certain clarifications
regarding the exhaustion of domestic remedies in connection with the
forced disappearances in Peru. In this regard, it should be noted that the
Inter-American Court of Human Rights has held, in connection with the
exhaustion of domestic remedies, that, "in keeping with the object
and purpose of the Convention and in accordance with an interpretation of
Article 46 (1)(a) of the Convention, the proper remedy in the case of the
forced disappearance of persons would ordinarily be habeas corpus, since
those cases require urgent action by the authorities" (and it is)
"the normal means of finding a person presumably detained by the
authorities, of ascertaining whether he is legally detained and, given the
case, of obtaining his liberty." Thus, when a writ of habeas corpus
is presented in the case of persons who were detained and then
disappeared, and nothing comes of it because the victims are not located,
those are sufficient grounds for finding that domestic remedies have been
the Court has also ruled that domestic remedies must be effective, that
is, they must be capable of producing the results for which they were
intended, and that if there is proof of a practice or policy, ordered or
tolerated by the government, the effect of which is to prevent certain
persons from availing themselves of internal remedies that would normally
be available to all others, resorting to those remedies becomes a
senseless formality, so that the exceptions to the exhaustion of domestic
remedies provided for in Article 46(2) of the Convention would be fully
its analysis of the substance of the case, set forth in section VI below,
the Commission finds that, during the period in which the alleged events
took place, there existed in Peru a practice or policy of disappearances,
ordered or tolerated by various government authorities. For that reason,
and given that that practice rendered writs of habeas corpus completely
ineffective in cases of disappearances, the Commission finds that, for
purposes of admissibility of complaints before this Commission, it was not
necessary to attempt the habeas corpus remedy--or any other--in order to
exhaust domestic remedies. Consequently, the Commission considers that the
rule regarding exceptions to the exhaustion of domestic remedies
established in Article 46(2) of the Convention is fully applicable.
The Commission considers the foregoing considerations to apply
fully to this case, since it is a complaint of a forced disappearance
alleged to have taken place in 1991, which has been imputed to the
Peruvian police. This
disappearance would have occurred at the time (1989-1993) when the
Commission determined, according to the material quoted above, that there
was a practice or policy of disappearances ordered or tolerated by various
public authorities that rendered the habeas corpus remedy completely ineffective in disappearance cases;
accordingly, the Commission determined that for the purposes of
admissibility of complaints to the Commission, it was not necessary to
seek to pursue the habeas corpus
remedy--or any other--for the purpose of exhausting domestic remedies.
Therefore, the Commission concludes that this case fits under the
exception provided for at Article 46(2)(a) of the Convention, according to
which the requirement of exhausting domestic remedies, provided for at
Article 46(1)(a) of the Convention, is not applicable when "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.” The Commission believes it is important to highlight that in
this case, it has been alleged that the writ of habeas
corpus filed on behalf of Mr. Cruz had not been ruled on, which
confirms this appraisal.
c. Time period for
With respect to the requirement set forth at Article 46(1)(b) of
the Convention, according to which the petition must be submitted within
six months from the date on which the victim is notified of the final
judgment that exhausted domestic remedies, the Commission observes that
this requirement does not apply in this case.
This is because the exception to the exhaustion requirement at
Article 46(2)(a) of the Convention, as set forth in the previous
paragraph, also holds--by mandate of Article 46(2) of the Convention--for
the requirement concerning the time for submission of the petitions
provided for at the Convention.
The Commission, without prejudging on the merits, should add that
the forced disappearance of a person by state agents constitutes a
continuing violation by the State that persists, as a permanent infraction
of several articles of the American Convention, until the person or corpse
appears. Therefore, the
requirement concerning the time period for submission of petitions, set
forth at Article 46(1)(b) of the American Convention, does not apply to
Duplicity of procedures and res judicata
The Commission understands that the subject matter of the petition
is not pending before any other procedure for international settlement,
nor does it reproduce a petition already examined by this or any other
international organization. Therefore, the requirements established at
Articles 46(1)(c) and 47(d) are also satisfied.
Characterization of the facts
The Commission considers that the petitioner's presentation refers
to facts which, if true, could characterize a violation of rights
guaranteed in the Convention, for, as established supra, the issue
submitted to the Commission is the forced disappearance of a person.
For all the reasons set forth above, the Commission considers that
it has jurisdiction to take cognizance of this case, and that pursuant to
Articles 46 and 47 of the American Convention the petition is admissible,
in the terms set forth above.
B. Considerations on the merits
Having determined its jurisdiction to hear this case, and that in
keeping with Articles 46 and 47 of the American Convention the petition is
admissible, the Commission now moves on to set forth its decision on the
merits, bearing in mind that the parties did not agree to initiate a
friendly settlement procedure, and that the Commission already has
sufficient grounds to make a decision on the merits.
a. State practice
In relation to the analysis of the merits of the present case, the
Commission regards as pertinent to reiterate the following considerations
concerning the practice of forced disappearances in Peru that the
Commission set forth recently, when it decided an accumulated group of 35
cases involving 67 “disappeared” persons in different provinces of
Peru during 1989-1993. To this respect, the Commission ruled in the
following terms, which completely ratifies in the present case:
the Commission decided to combine the cases under review because it
considers that the alleged events suggest a pattern of disappearances
brought about by Peruvian State agents around the same time period
(1989-1993), within the context of what are called anti-subversive
activities, and employing the same modus operandi.
The Commission therefore decided to look into the possible existence of a practice of forced disappearances brought about by the Peruvian State, or at least tolerated by it, during the period in question (1989-1993). The Commission cannot ignore, to use the words of the Inter-American Court, "the special seriousness of finding that a State Party to the Convention has carried out or has tolerated a practice of disappearances in its territory." Nonetheless, it is crucial that the Commission, in accordance with the functions assigned to it, carry out that analysis, not only for the purposes of this report, but also to arrive at the truth regarding a policy of human rights violations, with all its possible repercussions for the clarification of other cases that have come to the attention of this Commission.
this regard, it should be pointed out that the criteria used to evaluate
evidence in an international court of human rights have special standards,
which empower the Commission to weigh the evidence freely and to determine
the amount of proof necessary to support the judgment.
modus operandi used, according to the petitions received by the
Commission, in the arrests and disappearances in the cases in question,
involving Messrs. (…), shows an overall pattern of behavior that can be
considered admissible evidence of a systematic practice of disappearances.
Commission has received a very large number of complaints of
disappearances in Peru, many of which pertain to multiple disappeared
persons. In its 1993 Report on the Situation of Human Rights in Peru, the
Commission discussed the problem of the forced disappearance of persons in
that country and indicated that it had already passed 43 resolutions
regarding individual cases involving 106 victims. Subsequently, the
Commission has continued to write reports on the matter. Moreover, the
Peruvian State itself has officially recognized the existence of forced
disappearances and has reported on 5,000 complaints of disappearances
between 1983 and 1991. The large number of complaints of this type is a
clear indication, in the Commission’s view, that disappearances in Peru
followed an official pattern devised and carried out in a systematic
indication is supported by the fact that, at the United Nations (UN), the
Working Group on Enforced or Involuntary Disappearances, established by
the Commission on Human Rights in 1980, had received 3,004 cases of forced
disappearances in Peru. That Group points out that:
vast majority of the 3,004 cases of reported disappearances in Peru
occurred between 1983 and 1992, in the context of the Government's fight
against terrorist organizations, especially the "Shining Path" (Sendero
Luminoso). In late 1982, the armed forces and police undertook a
counter-insurgency campaign and the armed forces were granted a great deal
of latitude in fighting Shining Path and in restoring public order. While
the majority of reported disappearances took place in areas of the country
which had been under a state of emergency and were under military control,
in particular in the regions of Ayacucho, Huancavelica, San Martín, and
Apurímac, disappearances also took place in other parts of Peru.
Detentions were reportedly frequently carried out openly by uniformed
members of the armed forces, sometimes together with Civil Defense Groups.
Some 20 other cases reportedly occurred in 1993 in the Department of
Ucayali and concerned largely the disappearance of peasants.
Imelda Tumialán, the ad hoc Provincial Prosecutor for the Department of
Junín, has placed on record that in 1991 there were more than 100
disappearances in that Department. Likewise, in a note dated January 9,
1992, Peru's Assistant Attorney General pointed out that in the first 11
months of 1991 there had been 268 complaints of disappearances, and that
only a few cases had been solved. For its part, the National Coordinating
Body for Human Rights in Peru, a recognized nongovernmental umbrella group
of various Peruvian human rights organizations, estimates that 725 persons
disappeared in Peru between 1990 and 1992. The Commission has been told
that reports circulating freely in Peru indicated that military personnel,
and in some cases police officers, were carrying out disappearances. The
Commission has received numerous articles and news reports on such
disappearances, published by the print media and others.
the basis of the foregoing evidence, the Commission concludes that in the
1989-1993 period there existed in Peru a systematic and selective practice
of forced disappearances, carried out by agents of, or at least tolerated
by, the Peruvian State. That official practice of forced disappearances
was part of the "fight against subversion", although in many
cases it harmed people who had nothing to do with the activities related
to dissident groups.
Perpetration of the disappearances
the basis of the various items of evidence mentioned above, the Commission
sees fit to map out the steps usually involved in the above-mentioned
official policy of disappearances:
Detention of the victims
Commission has been told that, in general, perpetration of the
disappearances was delegated to the political military commanders and the
commanding officers at military bases. The latter imparted orders directly
to the personnel who carried out the detentions, normally the first stage
of the disappearance process. Peru's national police force was also in
charge of perpetrating disappearances, usually through DINCOTE.
often the abduction and disappearance of a person began with information
obtained by members of the intelligence service, according to which that
person was in some way linked to subversive groups, chiefly the Shining
Path or the Tupac Amaru Revolutionary Movement (MRTA). It should be
pointed out that in many instances the persons concerned were in no way
involved with those subversive groups, but were unfortunate enough to have
been included, fraudulently or by mistake, on the lists that would later
lead to their disappearance.
factor that, in certain Departments and under particular circumstances,
could lead to the detention and later disappearance of many people was the
fact that they were not carrying their voter registration documents, which
were used for identification purposes. In certain cases, during checkpoint
operations on public thoroughfares, a person unable to produce an
identification document upon request was almost automatically considered a
a person was considered "suspect", he or she was arrested; on
numerous occasions, this was the first step toward disappearance. Some
arrests were carried out openly in public, others at the victim's home,
usually in the early hours of the morning and in the presence of
witnesses. Those charged with carrying out the detentions were heavily
armed soldiers or police, sometimes dressed in civilian clothing, but most
often in uniform.
the soldiers or police paid little attention to the witnesses and
proceeded to do what they came to do anyway. Arrests in people's homes
were usually carried out in front of whoever happened to be there: wives,
children, fathers, mothers, etc. Thus the normal pattern was for the
personnel to arrest the victim regardless of who might be present, with no
attempt to hide the official nature of what they were doing.
Official denial of the detentions
same day of the arrest, or in the days immediately following, relatives
would go to the place where the victim was detained and be told that he or
she was not being held. It should be stressed that since the arrests were
usually carried out publicly, the relatives knew where the victim had
first been detained. Nevertheless, the authorities denied the detention.
As the Commission has established previously:
fact that the military authorities deny having carried out the detention
thus merely confirms the clandestine nature of the military operations.
Detention is neither registered nor officially admitted, in order to make
it possible to employ torture during interrogation and if need be to apply
extrajudicial punishment to persons considered to be sympathizers,
collaborators, or members of the rebel groups.
variation on this practice consisted of the authorities alleging that the
victim had been released and even producing documents to show this,
sometimes with a forgery of the victim’s signature, others with his or
her real signature obtained under torture, when in fact the release had
never taken place.
Torture and extrajudicial execution of detainees
the victim did not die as a result of the torture inflicted, he or she was
generally executed in summary, extrajudicial fashion. The bodies were then
hidden by burial in secret places chosen to make their discovery
Amnesty for those responsible for the disappearances
general, cases of disappearance in Peru were not seriously investigated.
In practice, those responsible enjoyed almost total impunity, since they
were carrying out an official State plan. Despite that, the authorities
decided to go even further by passing Act Nº 26.479 (the "Amnesty
Act") in 1995. Article 1 of that Law grants a blanket amnesty to all
members of the security forces and civilian personnel accused,
investigated, indicted, prosecuted, or convicted for human rights
violations committed between May 1980 and June 1995. That law was later
strengthened by Act Nº 26.492, which prohibited the judiciary from ruling
on the legality or applicability of the Amnesty Law. In its annual reports
for 1996 and 1997, the Commission has addressed the issue of those amnesty
laws in the overall analysis of the human rights situation in Peru.
the Commission has been told that both laws can be rendered inapplicable
by Peruvian judges, through what is known as their "broad
powers" to rule on the constitutionality of laws--provided for in
Article 138 of the Peruvian Constitution--the Commission considers the
aforesaid laws an invalid attempt to legalize the impunity that existed in
practice with regard to forced disappearances and other serious offenses
committed by agents of the State. For example, the Commission has learned
that the judges of the Constitutional Court, who were removed by the
Congress, invoked that same Article 138 of the Constitution in their
December 27, 1996, finding that Act Nº 26.657 did not apply to President
The burden of proof regarding disappearances
general principle is that, in cases of disappearance in which, in the
Commission’s view, there is sufficient evidence that the arrest was
carried out by State agents acting within the general framework of an
official policy of disappearances, it shall be presumed that the
victim’s disappearance was brought about by acts by Peruvian State
agents, unless that State gives proof to the contrary.
it is not incumbent upon the petitioners to prove that the victims have
disappeared, because it may be assumed, for lack of proof to the contrary,
that the Peruvian State is responsible for the disappearance of any person
it has detained. This is even more important in view of the aforementioned
government practice of causing disappearances. It is up to the State to
prove that it was not its agents who brought about the disappearance of
the "policy of disappearances, sponsored or tolerated by the
Government, is designed to conceal and destroy evidence of
disappearances". Then, as a result of action by the State, the
petitioner is deprived of evidence of the disappearance, since "this
type of repression is characterized by an attempt to suppress all
information about the kidnapping or the whereabouts and fate of the
victim." The fact is, as established by the Inter-American Court of
in contrast to domestic criminal law, in proceedings to determine human
rights violations the State cannot rely on the defense that the
complainant has failed to present evidence when it cannot be obtained
without the State’s cooperation.
Commission has explained in this regard that when there is proof of the
existence of a policy of disappearances sponsored or tolerated by the
Government, it is possible, using circumstantial or indirect evidence, or
through relevant logical inference, to prove the disappearance of a
specific individual when that would otherwise be impossible given the link
between that disappearance and the overall policy.
recently, the Commission has also determined that:
burden of proof lies with the State, because when the State holds a person
in detention and under its exclusive control, it becomes the guarantor of
that person’s safety and rights. In addition, the State has exclusive
control over information or evidence regarding the fate of the detained
person. This is particularly true in a disappearance case where, by
definition, the family members of the victim or other interested persons
are unable to learn about the fate of the victim.
establishes the inversion of the burden of proof for cases of
disappearance in Peru and the effects of that inversion on cases being
heard by the Commission.
Considerations relating to forced disappearances
General Assembly of the Organization of American States (OAS) has called
the practice of the forced or involuntary disappearance of persons a crime
against humanity that strikes against the fundamental rights of the human
individual, such as personal liberty and well-being, the right to proper
judicial protection and due process, and even the right to life. In that
context, the member states of the Organization of American States (OAS)
adopted, in 1994, an Inter-American Convention on the Forced Disappearance
of Persons as a means of preventing and punishing the forced disappearance
of persons in our Hemisphere.
Commission has affirmed, in relation to the forced disappearance of
procedure is cruel and inhuman. ... [It] not only constitutes an arbitrary
deprivation of freedom but also a serious danger to the personal integrity
and safety and to even the very life of the victim. It leaves the victim
totally defenseless, violating the rights to a fair trial, to protection
against arbitrary arrest, and to due process.
UN Working Group on Enforced or Involuntary Disappearances has affirmed
that the forced or involuntary disappearance of a person is a particularly
odious violation of human rights, and is
doubly paralyzing form of suffering: for the victims, frequently tortured
and in constant fear for their lives, and for their family members,
ignorant of the fate of their loved ones, their emotions alternating
between hope and despair, wondering and waiting, sometimes for years, for
news that may never come. The victims are well aware that their families
do not know what has become of them and that the chances are slim that
anyone will come to their aid. Having been removed from the protective
precinct of the law and "disappeared" from society, they are in
fact deprived of all their rights and are at the mercy of their captors.
If death is not the final outcome and they are eventually released from
the nightmare, the victims may suffer for a long time from the physical
and psychological consequences of this form of dehumanization and from the
brutality and torture which often accompany it.
family and friends of disappeared persons experience slow mental torture,
not knowing whether the victim is still alive and, if so, where he or she
is being held, under what conditions, and in what state of health. Aware,
furthermore, that they too are threatened; that they may suffer the same
fate themselves, and that to search for the truth may expose them to even
family’s distress is frequently compounded by the material consequences
resulting from the disappearance. The missing person is often the mainstay
of the family’s finances. He or she may be the only member of the family
able to cultivate the crops or run the family business. The emotional
upheaval is thus exacerbated by material deprivation, made more acute by
the costs incurred should they decide to undertake a search. Furthermore,
they do not know when--if ever--their loved one is going to return, which
makes it difficult for them to adapt to the new situation. In some cases,
national legislation may make it impossible to receive pensions or other
means of support in the absence of a certificate of death. Economic and
social marginalization is frequently the result.
In keeping with the doctrine of the Commission outlined above, the
general principle is that in cases of disappearance in which there are
sufficient indicia of evidence, in the view of the Commission, that the
detention was presumably effectuated by State agents in the general
context of an official policy of disappearances, the Commission will
presume that the victim was disappeared by agents of the Peruvian State,
unless that State has proven otherwise.
In applying these considerations to the instant case, the
Commission observes with respect to the detention of the victims that the
petitioner alleges that Mr. Yone Cruz Ocalio was detained on February 24,
1991, by members of the National Police, at the Tulumayo agricultural
station, Aucayacu, province of Leoncio Prado, department of Huánuco,
Peru, and that he was later taken to the Tulumayo military base.
In this respect, and based on the facts narrated by the petitioner
and all other evidentiary indicia--which include the initiatives taken and
remedies pursued domestically aimed at locating the victim and winning his
release, the reports prepared by the police and members of the military to
deny that the detention had been carried out by members of the police or
military, without the Peruvian State having carried out a judicial
investigation, which can be added to the circumstance that the detention
occurred in 1991, when, as the Commission has established, there was a
systematic and selective practice of forced disappearances carried out by
agents of the Peruvian State, or at least tolerated by the Peruvian
State--the Commission concludes that it is sufficiently enlightened to
establish the veracity of the facts alleged with respect to the victim’s
Based on the foregoing, the Commission considers it true that the
victim was detained on February 24, 1991, by members of the National
Police, at the Tulumayo agricultural station, Aucayacu, province of Leoncio
Prado, department of Huánuco, Peru, from which he was apparently
taken to the Tulumayo military base.
Accordingly, and in keeping with the above-noted doctrine of the
Commission, the burden was on the Peruvian State to prove that it did not
disappear Mr. Cruz Ocalio. In
this regard, the Commission observes that the State did not set forth any
evidence tending to show that it did not disappear Mr. Cruz Ocalio;
rather, it denied that it had detained him.
Based on the reasons set forth above, the Commission concludes that
the Peruvian State, through members of the National Police, detained Mr.
Yone Cruz Ocalio on February 24, 1991, at the Tulumayo agricultural
station, Aucayacu, province of Leoncio Prado, department of Huánuco,
Peru, from which he was apparently taken to the Tulumayo military base,
and that they later proceeded to disappear him.
That detention and subsequent disappearance followed the
characteristic pattern: the
detention of the victim by military agents; an official denial of
responsibility for the disappearance; the failure of the public
authorities to carry out an investigation into the situation of the
victim; the ineffectiveness of domestic remedies; the torture and possible
extrajudicial execution of the victim; and absolute impunity, reinforced
by the subsequent amnesty.
c. Violation of
the victims' human rights
The Commission now proceeds to analyze the specific violations by
the Peruvian State of the rights set forth in the Convention implicit in
the disappearance of Mr. Yone Cruz Ocalio.
to Personal Liberty (Article 7 of the Convention)
The American Convention establishes:
7. Right to Personal Liberty
Every person has the right to personal liberty and security.
No one shall be deprived of his physical liberty except for the
reasons and under the conditions established beforehand by the
constitution of the State Party concerned or by a law established pursuant
No one shall be subject to arbitrary arrest or imprisonment.
Anyone who is detained shall be informed of the reasons for his
detention and shall be promptly notified of the charge or charges against
Any person detained shall be brought promptly before a judge or
other officer authorized by law to exercise judicial power and shall be
entitled to trial within a reasonable time or to be released without
prejudice to the continuation of the proceedings. His release may be
subject to guarantees to assure his appearance for trial.
6. Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful. In States Parties whose laws provide that anyone who believes himself to be threatened with deprivation of his liberty is entitled to recourse to a competent court in order that it may decide on the lawfulness of such threat, this remedy may not be restricted or abolished. The interested party or another person in his behalf is entitled to seek these remedies.
No one shall be detained for debt. This principle shall not limit
the orders of a competent judicial authority issued for nonfulfillment of
duties of support.
A detention is arbitrary and illegal when not carried out for the
reasons, and according to the formalities, established by law; when
carried out without adherence to the standards established by law; and
when it involves misuse of the authority to arrest--in other words, when
carried out for purposes other than those envisaged and stipulated by law.
The Commission has also pointed out that detention for improper ends is,
in itself, a form of penalty without due process, or extralegal
punishment, which violates the guarantee of a fair trial.
In this case, Peruvian citizen Yone Cruz Ocalio was detained
illegally and arbitrarily by members of the Peruvian police.
It is necessary to recall the circumstances in Peru at that time,
which generally affected most of the Departments where detentions and
disappearances occurred. Continuous raids by armed groups had generated
permanent unrest in the local population. For that reason, a "state
of exception" had been declared in various Departments, which was, prima
facie, justified by the crisis faced by the Peruvian State in fighting
terrorism. By virtue of that state of emergency, in numerous Departments
Article 2(20)(g) of the 1979 Constitution had been suspended, 
which meant that the military was legally empowered to detain a person
without a warrant from a competent judge, even if an individual was not
being caught in flagranti.
Despite the prima facie legality of this measure, the
security forces are not thereby entitled, without restrictions, to detain
citizens arbitrarily. The suspension of the judicial warrant requirement
for detention does not mean that public officials are exempted from
observing the legal requirements for such detentions, nor does it annul
jurisdictional controls over the manner in which detentions are carried
The suspension of the right to personal liberty authorized in
Article 27 of the American Convention on Human Rights can never be
absolute. There are basic principles at the heart of any democratic
society that the security forces must respect in order to carry out a
detention, even in a state of emergency. The legal prerequisites for
detention are obligations that State authorities must respect, in keeping
with their international commitment under the Convention to protect and
respect human rights.
Secondly, in accordance with those principles, preventive detention
by the military or police must be designed solely to prevent the escape of
a person suspected of having committed a crime and thereby ensure his
appearance before a competent court, either for trial within a reasonable
period of time or for his release. No State may impose a sentence without
a constitutional, democratic State in which the rule of law and the
separation of powers are respected, all penalties established by law
should be imposed by the judiciary after guilt has been established in a
fair trial with all the procedural guarantees. The existence of a state of
emergency does not authorize the State to disregard the presumption of
innocence, nor does it confer upon the security forces the right to
exercise an arbitrary and unlimited ius puniendi.
On this subject, Article 7(5) of the American Convention
establishes that "Any person detained shall be brought promptly
before a judge or other officer authorized by law to exercise judicial
power and shall be entitled to trial within a reasonable time or to be
released...." Paragraph 6 of that article adds: "Anyone who is
deprived of his liberty shall be entitled to recourse to a competent
court, in order that the court may decide without delay on the lawfulness
of his arrest or detention (...)". The Commission has also stated
that anyone deprived of his liberty must be kept in an officially
recognized detention center and brought, without delay, in accordance with
domestic legislation, before a competent judicial authority. Should the
authority fail to comply with this legal obligation, the State is
duty-bound to guarantee the detainee’s right to apply for an effective
judicial remedy to allow judicial verification of the lawfulness of his
The Commission concludes that the Peruvian State is responsible for
violating the right to personal liberty and security by arbitrarily
imprisoning Mr. Yone Cruz Ocalino; for violating his right of recourse to
a competent judge or court that would rule on the lawfulness of his
arrest; and, thereby, for violating Article 7 of the American Convention
on Human Rights.
to Humane Treatment (Article 5 of the Convention)
The American Convention establishes:
5. Right to Humane Treatment
1. Every person has the right to have his physical, mental, and moral integrity respected.
No one shall be subjected to torture or to cruel, inhuman, or
degrading punishment or treatment. All persons deprived of their liberty
shall be treated with respect for the inherent dignity of the human
Punishment shall not be extended to any person other than the
Accused persons shall, save in exceptional circumstances, be
segregated from convicted persons, and shall be subject to separate
treatment appropriate to their status as unconvicted persons.
Minors while subject to criminal proceedings shall be separated
from adults and brought before specialized tribunals, as speedily as
possible, so that they may be treated in accordance with their status as
Punishments consisting of deprivation of liberty shall have as an
essential aim the reform and social readaptation of the prisoners.
Since forced disappearance involves violation of multiple rights,
violation of the right to humane treatment is implicit in the case of Mr.
Yone Cruz Ocalio .
In this regard, the Court has stated that "prolonged isolation
and deprivation of communication are in themselves cruel and inhuman
treatment, harmful to the psychological and moral integrity of the person
and a violation of the right of any detainee to respect for his inherent
dignity as a human being. Such treatment, therefore, violates Article 5 of
the Convention, which recognizes the right to the integrity of the
Accordingly, the Commission, on the basis of the facts presented,
is convinced, by way of presumptive evidence, that Mr. Yone Cruz Ocalio was tortured. The circumstances in which the victim was
detained, kept hidden, isolated, and in solitary confinement, and his
defenselessness as a result of being denied and prevented from exercising
any form of protection or safeguards of his rights make it perfectly
feasible for the armed forces to have tortured the victim with a view to
extracting information about subversive groups or units. Accordingly, the
Commission concludes that the Peruvian State violated the rights
guaranteed to the victim under Article 5 of the Convention.
to Life (Article 4 of the Convention)
The American Convention establishes:
4. Right to Life
In countries that have not abolished the death penalty, it may be
imposed only for the most serious crimes and pursuant to a final judgment
rendered by a competent court and in accordance with a law establishing
such punishment, enacted prior to the commission of the crime. The
application of such punishment shall not be extended to crimes to which it
does not presently apply.
The death penalty shall not be reestablished in states that have
In no case shall capital punishment be inflicted for political
offenses or related common
Capital punishment shall not be imposed upon persons who, at the
time the crime was committed, were under 18 years of age or over 70 years
of age; nor shall it be applied to pregnant women.
Every person condemned to death shall have the right to apply for
amnesty, pardon, or commutation of sentence, which may be granted in all
cases. Capital punishment shall not be imposed while such a petition is
pending decision by the competent authority.
The Inter-American Court of Human Rights has stated that the forced
disappearance of persons "often involves secret execution without
trial, followed by concealment of the body to eliminate any material
evidence of the crime and to ensure the impunity of those responsible.
This is a flagrant violation of the right to life, recognized in Article 4
of the Convention...". The Court also ruled that the fact that a
person has disappeared for seven years creates a reasonable presumption
that he or she was killed.
In the case of Mr. Yone Cruz Ocalio, it has been established his
“dissapearance” by State agents, and there is sufficient evidence to
support the presumption that he is dead--given that more than eight years
have elapsed since his detention and disappearance--and the presumption
that those responsible are agents of the State.
Therefore, the Commission finds that the Peruvian State violated
the victim’s right to life, a fundamental right protected under Article
4 of the Convention, which states that "Every person has the right to
have his life respected... No one shall be arbitrarily deprived of his
to Juridical Personality (Article 3 of the Convention)
The American Convention establishes:
3. Right to Juridical Personality
person has the right to recognition as a person before the law.
Article 3 of the American Convention on Human Rights establishes
that every person has the right to recognition as a person before the law.
When Mr. Yone Cruz Ocalio was detained and then "disappeared" by
State agents, he was excluded from the legal and institutional framework
of the Peruvian State. In that sense, the forced disappearance of a person
constitutes the negation of their very existence as human beings
recognized as persons before the law.
Thus, the Commission finds that Peru violated the victim’s right
to recognition as a person before the law, enshrined in Article 3 of the
to Judicial Protection (Article 25 of the Convention)
The American Convention establishes:
25. Right to Judicial Protection
Everyone has the right to simple and prompt recourse, or any other
effective recourse, to a competent court or tribunal for protection
against acts that violate his fundamental rights recognized by the
constitution or laws of the state concerned or by this Convention, even
though such violation may have been committed by persons acting in the
course of their official duties.
The States Parties undertake:
to ensure that any person claiming such remedy shall have his
rights determined by the competent authority provided for by the legal
system of the state;
to develop the possibilities of judicial remedy; and
c. to ensure that the competent authorities shall enforce such remedies when granted.
From the information provided by the parties, it is clear that the
Peruvian State has not complied with its obligation to investigate the
facts of this case and initiate judicial proceedings.
The Inter-American Court of Human Rights has stated that the
principles of international law "refer not only to the formal
existence of such remedies, but also to their adequacy and effectiveness,
as shown by the exceptions set out in Article 46(2)."
It has also made it clear that the failure to provide effective, not
merely formal, judicial remedies not only entails an exception to the rule
that domestic remedies must be exhausted, but also constitutes a violation
of Article 25 of the Convention.
Peruvian law establishes that in all cases of offenses against the
public order, the Office of the Attorney General represents both the State
and the victim. The Office of the Attorney General is obligated to
participate in investigating and prosecuting the crime. Consequently, it
should promote and undertake whatever action may be required (provision of
evidence, inspections, or any other) to establish the veracity of the
complaint, to identify those responsible, if applicable, and to bring
criminal charges against them.
The jurisprudence of the Inter-American Court of Human Rights
confirms the provisions of domestic law when it refers to the obligation
of States and says, with regard to the previous point, that "The
State has a legal duty (...) to carry out a serious investigation of
violations committed within its jurisdiction, to identify those
responsible, to impose the appropriate punishment and to ensure the victim
The State must not evade, under any pretext, its duty to
investigate a case involving violation of fundamental human rights. The
Court says as much when it states that "the investigation... must be
undertaken in a serious manner and not as a mere formality preordained to
be ineffective. An investigation must have an objective and be assumed by
the State as its own legal duty, not as a step taken by private interests
that depends upon the initiative of the... family... without an effective
search for the truth by the government."
The right to be brought before a competent judge is a fundamental
safeguard for the rights of any detainee. As the Inter-American Court of
Human Rights has stated, judicial supervision
of detention, through habeas corpus,
"performs a vital role in ensuring that a person’s life and
physical integrity are respected, in preventing his disappearance or the
keeping of his whereabouts secret and in protecting him against torture or
other cruel, inhumane, or degrading punishment or treatment."
Precisely for that reason, Article 27 of the American Convention on
Human Rights has established that essential judicial guarantees
safeguarding certain fundamental rights cannot be suspended. As the
Inter-American Court of Human Rights has ruled, "from Article 27(1),
moreover, comes the general requirement that in any state of emergency
there be appropriate means to control the measures taken, so that they are
proportionate to the needs and do not exceed the strict limits imposed by
the Convention or derived from it."
The Court has also stated that the judicial nature of those means
presupposes "the active involvement of an independent and impartial
judicial body having the power to pass on the lawfulness of measures
adopted in a state of emergency and that "it must
also be understood that the declaration of a state of emergency"
whatever its breadth or denomination in internal law "cannot entail
the suppression or ineffectiveness of the judicial guarantees that the
Convention requires States Parties to establish for the protection of the
rights not subject to derogation or suspension by the state of
According to the Inter-American Court of Human Rights, this also
includes the right to a fair trial enshrined in Article 8, which
"includes the prerequisites necessary to ensure the adequate
protection of those persons whose rights or obligations are pending
The Court concluded that "the principles of due process of law cannot
be suspended in states of exception insofar as they are necessary
conditions for the procedural institutions regulated by the Convention to
be considered judicial guarantees."
Such a lack of access to effective domestic remedies against acts
that violate fundamental rights constitute a violation by the Peruvian
State of Articles 8 and 25 of the Convention.
to respect and guarantee rights
In this case, it has been shown that the Peruvian State failed to
comply with the obligation, set forth in Article 1(1) of the Convention,
"to respect the rights and freedoms recognized herein and to ensure
to all persons subject to their jurisdiction the free and full exercise of
those rights and freedoms," because it violated rights established in
Articles 5, 4, 3, 7, 8 and 25 of the Convention.
The first obligation of States, under Article 1(1) of the
Convention, is to respect the rights and freedoms of all persons subject
to their jurisdiction. With regard to this obligation, the Court ruled
that "under international law a State is responsible for the acts of
its agents… and for their omissions, even when those agents act outside
the sphere of their authority or violate internal law."
It ruled also that "any violation of rights recognized by the
Convention carried out by an act of public authority or by persons who use
their position of authority is imputable to the State." 
The Commission concludes that the forced disappearance of Mr. Yone
Cruz Ocalio constitutes an act perpetrated by agents of public authority,
and that, therefore, the Peruvian State violated the rights of that
victim, enshrined in Article 1(1) of the Convention, in relation to
violations of Articles 5, 4, 3, 7, 8 and 25 of the Convention.
The second obligation set forth in Article 1(1) is to ensure free
and full exercise of the rights and freedoms recognized in the Convention.
On this the Court’s jurisprudence establishes that: "This
obligation implies the duty of the States Parties to organize the
governmental apparatus, and, in general, all the structures through which
public power is exercised, so that they are capable of juridically
ensuring the free and full enjoyment of human rights. As a consequence of
this obligation, States must prevent, investigate, and punish any
violation of the rights recognized by the Convention …"
In the event of a "forced disappearance", the State is
obligated to ascertain the whereabouts and situation of the victim, punish
those responsible, and make reparation to the family members. In the case
at hand, these obligations have not been met. Therefore, the Commission
concludes that the Peruvian State has violated Article 1(1) of the
Convention by failing to ensure the exercise of the rights and guarantees
of the individual involved.
SUBSEQUENT TO REPORT Nº 135/99
The Commission adopted Report Nº 135/99 (Article 50) in this case
on November 19, 1999, during its 105th session.
That Report, with the Commission's recommendations, was transmitted
to the Peruvian State on December 20th, 1999; the State was
given two months to carry out the recommendations, counted from the date
of transmittal of the Report.
By Note No. 7-5-M/193 of April 17, 2000, the State forwarded to the
Commission its considerations regarding Report No. 135/99 and stated its
disagreement with matters of fact and law reflected in that report, and
with the Commission’s conclusion. The
State added that “it considers that it is not viable to carry out a new
investigation into this case, and even less viable to punish the persons
responsible, who have yet to be singled out and, logically, it would not
be appropriate to make any reparation to the family members of Yone Cruz
Ocalio, especially if the Government has shown that the forces of order
are not responsible for the alleged detention-disappearance of said
citizen, without prejudice to continuing to undertake the pertinent
investigations in this regard.”
The Commission refrains from analyzing the reiterations of the
Peruvian State in response to arguments made prior to the adoption of
Report Nº 135/99, and its expressions of disagreement with that Report,
for pursuant to Article 51(1) of the Convention, what the Commission must
determine at this stage of the procedure is whether the State did or did
not resolve the matter. In
this respect, the IACHR observes that the Peruvian State has not carried
out any of the recommendations made to it by the Commission in its Report
The Commission concludes that the Peruvian State, through members
of the National Police, detained Mr. Yone Cruz Ocalio on February 24,
1991, at the Tulumayo agricultural station, Aucayacu, province of Leoncio
Prado, department of Huánuco, Peru, from which he was apparently
taken to the Tulumayo military base, and later disappeared him.
Accordingly, the Peruvian State is responsible for the forced
disappearance of Mr. Yone Cruz Ocalio; consequently, Peru violated the
right to liberty (Article 7), the right to humane treatment (Article 5),
the right to life (Article 4), the right to juridical personality (Article 3),
and the right to effective judicial recourse (Article 25), set forth in
the American Convention on Human Rights.
In addition, the Peruvian State breached its general obligation to
respect and ensure the exercise of these rights enshrined in the
Convention, as set forth at Article 1(1) of the Convention.
on the foregoing analysis and conclusion,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS REITERATES THE FOLLOWING
RECOMMENDATIONS TO THE PERUVIAN STATE:
That it carry out an exhaustive, impartial, and effective
investigation to determine the circumstances of the forced disappearance
of Mr. Yone Cruz Ocalio, and that it punish the persons responsible, in
keeping with Peruvian legislation.
That it void any domestic measure, legislative or otherwise, that
tends to impede the investigation, prosecution, and punishment of the
persons responsible for the detention and forced disappearance of Mr.Yone
Cruz Ocalio. Accordingly, the
State should nullify Laws 26.479 and 26.492.
That it adopt the measures required for the family members of
Mr. Yone Cruz Ocalio to receive adequate and timely reparation for
the violations established herein.
On October 4, 2000, the Commission transmitted Report 58/00, whose
text is the foregoing, to the Peruvian State and the petitioner, pursuant
to Article 51(2) of the Convention, and gave the State an additional time
to comply with the foregoing recommendations.
On November 20, 2000, Peru forwarded a communication to the
Commission in which it stated that “the Peruvian State ... is designing
a comprehensive solution to cases affected by this problem. To this end,
the State, and the opposition political groups and representatives of
civil society, in the framework of the Mesa de Diálogo sponsored
by the OAS, are holding conversations aimed at designing and implementing
a National Reconciliation policy, which will include, among others, issues
such as that which is the subject of this case.” Nonetheless,
in that communication the State did not show that it had carried out the
According to the above considerations, and Articles 51(3) of the
American Convention and 48 of the Commission’s Regulations, the
Commission decides to reiterate the conclusion and recommendations set
forth in chapters VI and VII above; to make public the present report and
include it in its Annual Report to the OAS General Assembly. The
Commission, according to the norms contained in the instruments which
govern its mandate, will continue evaluating the measures adopted by the
Peruvian State with respect to the above recommendations until they have
been complied with by the Peruvian State.
Done and signed in the city of Washington, D.C.,
on the 4th day of the month of December, 2000 (Signed): Chairman; Claudio
Grossman, First Vice-Chairman; Juan Méndez, Second Vice-Chairman; Marta
Altolaguirre, Commissioners:, Hélio Bicudo, Robert K. Goldman, Peter
Laurie, and Julio Prado Vallejo.
The Peruvian State deposited the instrument of ratification of the
American Convention on July 28, 1978.
IACHR, Report Nº 51/99, Case 10.471 and others (Peru), Annual Report
1998, para. 58 to 63. See also, IACHR, Reports Nos. 52/99, 53/99,
54/99, 55/99, 56/99, and 57/99 (Peru), Annual Report 1998.
IACHR, Report Nº 51/99, Cases 10.471 and others (Peru), Annual Report
1998, para. 68 to 95. See also, IACHR, Reports Nos. 52/99, 53/99,
54/99, 55/99, 56/99, and 57/99 (Peru), Annual Report 1998.
As mentioned at paragraph 30, supra,
the Commission, citing doctrine of the Inter-American Court, has said
that when the existence of a policy of disappearances sponsored or
tolerated by the Government has been shown, the disappearance of a
particular individual may be proved through circumstantial or indirect
evidence or by logical inference; otherwise it would be impossible to
prove that an individual has been disappeared.
(Inter-American Court of Human Rights, Case of Velásquez
Rodríguez, Judgment of July 29, 1988, para. 124).
According to which every person has the right: … Article 20: .. to
personal liberty and security. Consequently, (g) No one shall be
detained except with a justified, written order or by police officers in
The Commission has established that: The rationale behind this
guarantee is that no person should be punished without a prior trial
which includes a charge, the opportunity to defend oneself, and a
sentence. All these stages must be completed within a reasonable time.
The time limit is intended to protect the accused with respect to his
or her fundamental right to personal liberty, as well as the accused
personal security against being the object of an unjustified
procedural risk. (IACHR,
Report Nº 12-96, para. 76 (Case 11.245, Argentina), published
in the 1995 Annual Report.
Inter-American Court of Human Rights, Velásquez Rodríguez case,
op.cit., paragraph 156.
Idem, paragraphs 157 and 188.
Article 1(2) of the declaration regarding protection of persons from
forced disappearances defines disappearance as a violation of the
norms of international law guaranteeing every human being the right to
recognition as a person before the law. UN General Assembly resolution
47/133, december 18, 1992.
Inter-American Court of Human Rights, Velásquez Rodríguez case,
op.cit., paragraph 63.
Inter-American Court of Human Rights, Velásquez Rodríguez case.
Preliminary objections. Judgment of June 24, 1987, par. 91.
Inter-American Court of Human Rights, Velásquez Rodríguez case,
op.cit., paragraph 174.
Idem, paragraph 177.
Inter-American Court of Human Rights, Habeas Corpus in Emergency
Situations (Articles 27(2), 25(1) and 7(6), American Convention on
Human Rights). Advisory Opinion OC-8/87 of January 30, 1987. Series
A Nº 8, paragraph 35.
Inter-American Court of Human Rights, Judicial Guarantees in State of
Emergency (Articles 27(2), 25 and 8 of the American Convention on
Human Rights), Advisory Opinion OC-9/87 of October 6, 1987, Series A Nº
9, paragraph 21.
Inter-American Court of Human Rights, Habeas Corpus in Emergency
Situations, op.cit., paragraph 30.
Inter-American Court of Human Rights, Judicial Gurantees in State
of Emergency, op.cit., paragraph 25.
Idem, paragraph 28.
Ibidem, paragraph 30.
Inter-American Court of Human Rights, Velásquez Rodríguez case,
op.cit., paragraphs 170 and 172.
Idem, paragraph 166.