November 30, 1994
On November 17, 1992, the Inter-American Commission on Human
Rights received a petition from Mrs. Isabel López Torres de Salinas in
respect of the arbitrary detention and subsequent holding incommunicado
of her husband, Major General (retd.) Jaime Salinas Sedó and their son
Jaime Salinas López Torres, on November 13, 1992.
Later, on January 8, 1993, a more comprehensive petition was
presented, signed by Mrs. Isabel López Torres
de Salinas, Mrs. María de Lourdes Antonieta Lazo Astete de
Carmona, Mrs. Malva Dalila Ibarra Lombardi, Mrs. Rosa del Pilar
Vives de Pastor, Mrs. Diana Yolanda Medina Braizat de Obando, Mrs.
Grimanesa M. Vargas de Obando, Mrs. María Lucila Baca Alvarez de Martínez,
Mrs. Delicia Saldaña Montenegro de Noblecilla, Mrs. María Hague
de Aguilar, Mrs. Irma Bravo de Ormeño, Mrs. Frida Pérez Motín de Zárate,
Mrs. María del Carmen Cornejo Llerena de Moreno, and Mrs. Cecilia
Isabel Cavassa Valdivia de Soriano, including, in addition to Major
General Jaime Salinas Sedó and his son, Jaime Salinas López Torres,
the following plaintiffs:
EP (retd.) Salvador
Major EP César Alberto Cáceres Haro
Major General (retd.) José Gabriel Pastor Vives
Brigadier General EP Manuel Fernando Obando Salas
Brigadier General EP Víctor Ernesto Obando Salas
Colonel EP César Martínez Uribe
Colonel EP Jorge Noblecilla
Comandante EP Enrique Aguilar del Alcázar
Major EP Hugo Ormeño Huapaya
Comandante EP Marco Antonio Zárate Rotta
Comandante EP Arturo Moreno Alcántara
General EP (retd.) Luis Armando Soriano Morgan
The petition reported the arbitrary and unlawful detention of the
victims, who were denied immediate communication with their close
relatives and their lawyers, in violation of the right to personal
liberty, presumption of innocence, and the right to defense; the torture
and other cruel and degrading treatment causing injuries of varying
degrees to some of the detainees; their transfer to a prison for
extremely dangerous criminals, especially those accused of terrorist
acts and illicit drug trafficking; and the unlawful and wrongful
prosecution of the accused by a military tribunal, in violation of the
principle of nullum crimen sine lege, of equality of the law, and
of independence and impartiality of the court.
OF THE COMMISSION
On November 18, 1992, the Commission began its proceedings in the
case and dispatched a transcript of the pertinent parts of the petition
to the Government of Peru, requesting it to provide additional information
on the alleged events, particularly any other evidence that would enable
it to decide whether all domestic remedies had been exhausted in the
The Government of Peru replied to the Commission's request on
January 27, 1994, confirming that a suit had been brought against Major
General (retd.) Jaime Salinas Sedó, José G. Pastor Vives and Luis
Palomino Rodríguez before the Supreme Military Tribunal.
It also declared that it had ordered that
Generals Salinas Sedó and Pastor Vives be detained indefinitely,
and the unconditional release of General Palomino Rodríguez.
In a note of January 8, 1993, the initial petition was expanded
to include other officers who, like General Salinas Sedó and his son,
Jaime Salinas López Torres, had been detained in connection with the
events of November 13, 1992. The
following officers were included as petitioners:
Generals Luis Soriano Morgan, Ernesto Obando Salas, and Manuel
Obando Salas; Colonels Jorge Noblecilla and César Martínez;
Comandantes Enrique Aguilar del Alcázar, Arturo Moreno Alcántara and
Mario Zárate Rotta, and Majors César Cáceres Haro, Hugo Ormeño and
Salvador Carmona. The
petitioners requested the Commission to pronounce on the admissibility
of the case, in the light of the claims made.
Since these claims were connected in regard to the time and the
events, on February 11, 1993, the Commission added the complaint lodged
by General José Pastor Vives to the present case.
On April 15, 1993, the Government of Peru dispatched to the
Commission reports from the National Police claiming that General
Salinas Sedó had not been detained at any police station.
It also declared that Mr. Jaime Salinas López Torres had been
handed over to the DINCOTE on November 14, 1992 on presumption of a
terrorist offense and crimes against the authorities of the State and
against the Constitution. Mr. Jaime
Salina López Torres appeared before Criminal Prosecution Office 34 of
the Province of Lima, and the case against him was eventually dismissed
for lack of evidence to incriminate him in terrorist activity.
On May 20 and September 24, 1993, the petitioners presented the
Commission with additional information supporting the admissibility of
the case and the existence of violations of human rights protected by
the American Convention.
By note of December 3, 1993, the Government of Peru submitted its
observations on the petitioners' arguments, in which it refuted any
violation of due legal process in the handling of the cases against
On February 2, 1994, the Government of Peru sent the Commission
supplementary information on the status of the case against Mr. Jaime
Salinas López Torres, confirming that the Peruvian criminal justice
system had found that there was no evidence that he had committed a
On February 24, 1994, the Commission dispatched a letter to the
Government of Peru expressing its concern about the situation of Mr. Jaime
Salinas López Torres. In
the same letter, it pointed out that although it had been decided that
Mr. Salinas was not responsible for acts of terrorism, judicial
proceedings against him had not ended.
On February 10, 1994, at a hearing before the Commission, the
petitioners furnished additional information on the case, at the
ACTS IN QUESTION
From information supplied by the petitioners to the
Inter-American Commission on Human Rights, the acts that allegedly
violated rights protected by Articles 7, 5, 8, 35 and 9 of the American
Convention were those described below:
pertaining to personal liberty and humane treatment of the officers
On November 12, 1992, a group of Peruvian army officers, some on
active duty and some retired, held a coordination meeting at a private
venue, at which they discussed the feasibility of "bringing down
the de facto regime installed in the country since April 5, 1992, for
the sole and altruistic purpose of restoring the democratic
system," thereby fulfilling the constitutional duty set forth in
Articles 74, 82 and 307 of the Political Constitution of 1979.
On November 13, 1992, at the end of the meeting started the
previous day, these officers decided, motu propio, to cancel
their plans, which thus remained at the preparatory stage without
escalating to the level of an assault punishable under Peruvian criminal
At 1:00 a.m. when the meeting had ended and most of the
participants had returned home, special forces of the Army surrounded
the building, which at that time contained only Generals (retd.) Jaime
Salinas Sedó, Ernesto Obando and Luis Soriano Morgan, Majors Salvador
Carmona and César Cáceres Haro, and two civilians, Mr. Jaime Eduardo
Salinas López Torres, son of General (retd.) Jaime Salinas Sedó, and
Mr. Jorge Pollack.
At approximately 3:15 a.m. on November 13, as the above were
leaving, special forces of the army, led by Brigadier General Luis Pérez
Documet, opened fire without warning and without the arrest of the
At the time the shots were fired, General (retd.) Jaime Salinas
Sedó, wearing civilian clothes and unarmed, was about to get into his
vehicle when, without any order for his arrest, he was fired upon.
The armored vehicle was hit more than eighty times, and the
To save his life and prevent those still inside the building from
being massacred, General (retd.) Jaime Salinas Sedó proceeded to Army
Headquarters and gave himself up without resisting.
Later, the squad surrounding the building where the officers were
was ordered to storm the premises in which "a meeting of senior
MRTA officers was being held", as the soldiers who had surrounded
it were falsely informed.
A group of officers and civilians were then arrested, without a
warrant, by the police and members of the armed forces.
They were: Major
General (retd.) Luis Palomino Rodriguez, Major General (retd.)
José Pastor Vives, Brigadier General Manuel Obando Salas,
Colonel Jorge Noblecilla, Colonel César Martínez, Comandante Enrique
Aguilar de Alcazar, Comandante Arturo Moreno Alcántara, Comandante
Marco Zárate Rotta, and Major Hugo Ormeño.
The complaint claims that four of the officers were tortured and
subjected to other unlawful judicial constraints by the authorities in
whose charge they were placed.
Comandante Zárate Rotta has complained that, in addition to
other physical abuse, he was struck on the back by Comandante Huaman
Ascurra, and that he was cuffed and slapped by Vladimiro Montesinos
Torres, that he was bound by the feet, hands, waist and neck to a metal
chair and given electric shocks in both his hands.
Similar treatment was reported by Comandante Aguilar de Alcázar
and Majors Salvador B. Carmona and César Cáceres Haro.
pertaining to the violation of the right to a fair trial and the
protection of the law
The plaintiffs maintain that during the period they were held
incommunicado, they were interrogated without their lawyers being
present and subjected to psychological pressure to force them to sign
their statements without first reading them.
Also, once detained, they were held incommunicado for longer than
provided for under domestic legislation and were not brought before a
competent court within the 24 hours established in Article 2,
subparagraphs 20 (g), (h) and (i) of Peru's Political Constitution in
force at the time, and of Article 7, subparagraphs 5 and 6, of the
Regarding the proceedings brought against them, the plaintiffs
contend that their right to a fair trial was not respected.
They claim that the trial in the "Sala de Guerra" of
the Supreme Court of Military Justice was held in secret, that their
right to defense was restricted by the fact that the factual and legal
arguments put forward by the defendants' lawyers, and by the fact that
the judgment was based solely on the findings of the police
appeal of the tribunal's decision, the appellate court upheld the
judgment on the very day that the defense lawyers presented their case. The petitioners consider that the acts they report violate
Article 2, subparagraph 20 f), and Article 233, paragraphs 3 and 9, of
the Constitution, and Article 8, subparagraphs 2 b), c), f) and h), and
Article 5 of the American Convention.
Moreover, the plaintiffs state that some of the officers detained
were retired and as such were not subject to the jurisdiction of
military courts. Accordingly,
they should have been tried by regular courts not military courts, that
is, they should have been under civil jurisdiction.
For that reason, they allege that article 2 subparagraph 20 of
the Constitution and article 8 subparagraph 1 of the American Convention
of the defense lawyer
The officers bringing the claim have reported several acts that
constitute limitations on their right of defense, owing mainly to the
harassment to which the defense lawyers were subjected, as explained
later on in this report.
OF THE PARTIES
of the plaintiffs
The plaintiffs declare that the Peruvian army officers implicated
in the events of November 13, 1992, assembled peacefully, without arms,
to discuss possible alternatives for the return of the constitutional
and lawful regime. The
plaintiffs allege that their arrest was arbitrary and unlawful, having
been made without a warrant, in violation of Article 2, subparagraph 20
g), of the Constitution, and Article 7, paragraphs 2 and 3, of the
They maintain that their meetings were legally protected by
Articles 74, 82 and 307 of Peru's 1979 Political Constitution ,
which established respectively: the
duty to respect, implement and defend the Constitution and the laws of
the Nation; the right to rise up in defense of constitutional order and
against a usurping government; and the duty of any citizen to
collaborate in order to restore constitutional rule in the event of
failure to respect it through acts of force.
The plaintiffs also state that the Peruvian government's actions
violated the principle of nullum crimen sine lege enshrined in
Article 2, subparagraph 20 d), of the Constitution and Article 9 of the
The plaintiffs declare that although they had held a number of
meetings, they had decided motu propio to cancel their plans,
which thus remained at the preparatory stage without escalating to the
level of a punishable assault. The
right to hold such meetings and to express their opposition to the
events of April 5, 1992, were protected by Article 3, paragraphs 4 and
10, of the Constitution, and Articles 13 and 15 of the American
The Peruvian government, through Decree Law 25861 of November 24,
1992, declared that, in the court's opinion, military personnel
convicted of a crime, could serve their sentence in an ordinary prison.
On those grounds, the court that tried the plaintiffs decided
that they would serve their sentence in the "Miguel Castro
Castro" penitentiary for extremely dangerous criminals.
After one month of imprisonment, the officers were moved to the
Castillo Real Felipe. The
plaintiffs claim that this fort is not a suitable place of detention,
having no windows or skylights, unserviceable hygiene facilities, and
a shortage of water, added to which there is no medical service, visits
are restricted and the Intelligence Service uses devices to listen in on
their conversations. They claim that these acts indicate a serious deterioration
of their prison conditions, and violate Article 234 of the Constitution
and Article 5, paragraphs 1, 2 and 6, of the American Convention.
In the last resort, the petition reports the alleged violation of
the human rights of Mr. Jaime Salinas López Torres, who was detained
along with his father, Major General (retd.) Jaime Salinas Sedó, on
November 13, 1992. He was
then handed over to the DINCOTE on November 14, 1992, accused of an act
of terrorism and a crime against the authorities of the State and
constitutional order. The
accused appeared before Criminal Prosecution Office 34 of the Province
of Lima, and the case had been eventually dismissed for lack of evidence
to incriminate him in terrorist activity. The petitioners point out that
although it had been decided that he was not criminally responsible, the
judicial proceedings against him had not been closed, in violation of
the principles of innocence and legality.
Likewise, Mr. Salinas López Torres's arbitrary and unlawful
detention, and the fact that he was later held incommunicado, violated
his right to personal liberty, protected by the Peruvian Constitution
and the American Convention.
In its many presentations to the Inter-American Commission on
Human Rights, the Government of Peru has confirmed the existence of
judicial proceedings against the officers implicated in the events of
November 13, 1992.
It has, however, denied that it failed to respect the right to
due process in the handling of those proceedings.
The Government has indicated that the military rank of the
perpetrators and the juridical nature of the crimes determined that the
cases proceedings should be tried under military law, in accordance with
Articles 318, 319 and 329 of the Code of Military Justice, and Article
23 of the Constitution.
Also, the Government declared that the petitioners' right to
defense were fully respected during the proceedings; one example being
that their defense lawyers were allowed to plead before the Court of
Review of the Supreme Military Tribunal.
In regard to Mr. Jaime Salinas López Torres, the Government of
Peru declared on two occasions that, once detained, he was placed in the
custody of the DINCOTE on November 14, 1992, on presumption of an act of
terrorism and crimes against the authorities of the State and against
the Constitution. Later,
Criminal Prosecution Office 34 of the Province of Lima had dismissed the
charges against him for lack of evidence of his responsibility for those
relating to the proceedings
within the established deadline
The complaint was lodged within the deadline established in
Article 46.b. of the American Convention on Human Rights and Article
38.1. of the Regulations of the Commission.
The complaint meets all the formal requirements of admissibility
laid down in the American Convention on Human Rights and the Regulations
of the Commission.
of domestic remedies
At the time the complaint was lodged with the Inter-American
Commission on Human Rights, Peru had no constitutional guarantees that
could be effectively invoked by the officers in question.
Notwithstanding, the petitioners exhausted all the domestic
legal remedies at their disposal, despite the constraints that have
existed since April 5, 1992.
of other legal proceedings and of res judicata
The present case is not pending in any other international
jurisdiction, nor is it a reproduction of a petition pending or
already heard and settled by the Commission or another intergovernmental
to personal liberty and safety
The 1979 Political Constitution, in force at the time of the
events reported, established that a person could be detained only with a
warrant, or on the orders of a competent court, or by the police in the
case of flagrante delicto, and that person must, in any event, be
brought before a competent court within 24 hours.
The same Constitution also prohibited not only holding detainees
incommunicado except in cases established under the law, with the
corresponding limitations and by judicial order,
but also any violence against detainees with a view to obtaining
statements from them.
From the moment they were detained, the officers were kept
incommunicado for more than fifteen days, in violation of Article 8
of the American Convention, Article 2, subparagraph 20 i), of the 1979
Political Constitution, and Article 526 of the Code of Military Justice,
which states that:
Detention implies holding the defendant incommunicado, which may
in no circumstances exceed five days.
The detainees below the rank of lieutenant colonel were placed in
cells belonging to the National Intelligence Service (SIN) and the Army
Intelligence Service. The
detainees' statements were taken by police officers in the absence of
their lawyers or any legal counsel who could ensure that the
investigation was properly conducted, all of which violated Article 8 of
the American Convention. They
were questioned at totally abnormal times and for over 12 hours in a
single day, usually at night or very early in the morning.
Several of the officers complained that they were subjected to
physical and psychological torture to force them to make false
self-incriminating statements, which they were made to sign without
first reading them.
Four of the officers complained that they were physically
tortured. They are:
Lieutenant Colonel EP Marco Zárate Rotta, Lieutenant Colonel EP
Enrique Aguilar Del Alcázar, Major EP (retd.) Salvador Carmona, and
Major César Cáceres Haro. As
a result, they suffered physical ill effects such as numbness in their
arms, and pains in their spine and limbs, as a result of being tortured.
On December 16, 1992, in the midst of the proceedings to decide
whether the defendants were criminally responsible, the Army High
Command convened the Officers' Investigation Council and called the
plaintiffs' case, without giving them the time or means for the
preparation of their defense, infringing Article 8, paragraph 2, of the
American Convention, and the constitutional principle that declares that
"all persons must be considered innocent until proven guilty".
Under Article 8, paragraph 2, of the American Convention, before
establishing a defendant's criminal responsibility, the Peruvian State
must prove that defendant's guilt beyond reasonable doubt, in accordance
with the principle of in dubio pro reo.
The officers of the Special Military Tribunal who tried the
plaintiffs in the present case were required to approach the case
without any prejudice and were in no circumstances supposed to make an a
priori guilty judgment, as they did.
Other irregularities occurred during questioning:
for instance, the expert evidence was ordered by the SIN and not
by the trial judge as established under the Code of Military Justice.
This expert (graphological) evidence was collected before the
preliminary hearing and without their lawyers being present.
Moreover, the "Sala de Guerra" denied the defendants'
request for a visual inspection, and for the oral testimony essential to
their proper defense, considering it "unnecessary", as they
stated in their communication of January 26, 1993 (document
On December 18, 1992, the accused officers were discharged from
the Peruvian armed forces for alleged crimes against military honor,
morale and decorum.
Also, on November 24, 1992, the government issued Decree Law No.
25861, whereby members of the armed forces appearing before military
tribunals could serve their sentences in military prisons or in ordinary
Under this law, on December 12, 1992, thirteen of the officers,
most of them on active duty, were transferred to the "Castro
Castro" maximum security prison with common criminals.
In a note of February 16, 1993, the Commission requested the
Government to authorize an IACHR representative to be present at the
trial of the thirteen officers. The
Government refused to allow a representative of the Commission to
There were other irregularities during the trial:
Military Tribunal refused to accept the defense witnesses.
The only witness called by the Military Prosecutor during the
trial was a Peruvian army major, who gave a distorted version of the
real intentions of the officers involved.
record of the case state that the defense lawyers raised several
objections that were systematically refused on the grounds that they
record also states that the contestation of the document relating to the
seizure made on November 13, 1992, was overruled.
This record, unlawfully signed by the interventor, mentioned the
seizure of cash and credit cards belonging to General Salinas, although
a receipt had been produced, signed by a senior DIFE officer, on which
it was clearly stated that the General had surrendered the articles in
question of his own free will on November 19.
This shows that the document had been tampered with and additions
made at a later stage in order to justify the conviction.
sentences did not take into account the varying degrees of involvement
in the acts in question, that the Peruvian government had itself had
attributed to the defendants.
the trial, the convicted officers were taken to the Castillo Real Felipe
in Callao, where an area had been fitted out as a prison for them.
the situation in other prisons, visits were restricted to a mere six
hours a week, three on Wednesdays and three on Sundays.
7. The Supreme
Court of Military Justice has ordered the seizure all the assets of the
imprisoned officers to be used for reparation to the State.
Under Peruvian law, the Council is authorized to withhold only
50% of such assets, not all of them.
officers claim that a number of previously acquired benefits, such as
hospital care and access to the army's leisure and recreation
facilities, have been curtailed. Moreover,
threatening statements degrading to the personal dignity and prestige of
the imprisoned officers are being constantly circulated.
9. For its
part, the criminal suit against Mr. Jaime Salinas López Torres at the
time of his arrest at the DINCOTE still continues, although the charges
against him have been dismissed. This
lawsuit is a permanent threat not only to Mr. Salinas, but to his
father, General Jaime Salinas Sedó as well.
of the right to a fair trial
As shown, the main constraint suffered by the plaintiffs was the
restriction of their right to a fair trial, especially the harassment of
the defense lawyers. In
this regard, mention should be made of the case of Dr. Alberto Borea Odría. After he had been constantly harried by the authorities of
the government that took office on April 5, 1992, Special Prosecutor
Flor de María Maita Luna, appointed to investigate the events of
November 13, named him as one of the perpetrators, leading Dr. Borea to
seek asylum in the Republic of Costa Rica.
The Commission has sustained that "the defense of the
accused ... can in no way constitute grounds for the malicious and
unfounded linking of a defense lawyer [as in the case of Dr. Alberto
Borea Odría] to unlawful activities of which his client is falsely
Flor de María Maita's false accusation of Dr. Alberto Borea constitutes
a threat to the free exercise of the legal profession, and infringes one
of the fundamental guarantees of the administration of justice and of
due process, i.e. the right to defense enshrined in Article 8,
subparagraph 2 (d) of the American Convention.
In addition to the above, the accusation is yet another
indication of the disregard, facetiousness and opportunism with which
some governmental authorities of the Peruvian State bring false charges
against innocent persons.
In July 1993, a new action was instituted against General Jaime
Salinas Sedó and General José Pastor Vives for alleged abuse of the
armed forces and insulting their superiors, because of their public
statements concerning the political situation in the country.
Both officers' defense lawyers were denied access to the files,
once more infringing the defendants' right to defense.
18/94 on the present case
Pursuant to Article 50 of the American Convention, the IACHR,
at its 85th regular session, approved Report 18/94 concerning the
present case and dispatched it to the Peruvian government by
communication of May 4, 1994. In
that report the Commission agreed, inter alia, to
recommend to the Peruvian State that it take all necessary steps to
overturn the Supreme Military Court's decision of March 31, 1993, which
upheld the decision of the "Sala
de Guerra", and to order the immediate release of Generals Jaime
Salinas Sedó; Luis Soriano Morgan and Manuel Obando Salas, Lieutenant
Colonel Marco Zárate Rotta; and Majors Hugo Ormeño Huapaya, Salvador
Carmona and César Cáceres Haro.
By note No. 7-3-D/02 of July 15, 1994, to the
Chairman of the Commission, the Government informed the Commission that
"to acquiesce to the request of the Honorable Inter-American
Commission on Human Rights would signify inadmissible interference on
the part of the Executive Branch in the affairs of the Judiciary, which
would be incompatible with the independence and autonomy vested in it by
the Constitution", adding that "it is not possible, in the
case in question, to implement the recommendations made in Report 18/94
of the Commission, for the reasons stated above."
The Commission considers the reasoning of the illustrious
Government of Peru unacceptable for, inter alia, the
Article 24 of the American Convention declares:
"All persons are equal before the law. Consequently, they are entitled, without discrimination,
to equal protection of the law."
The Universal Declaration, for its part, establishes that all
persons have the right, in conditions of full equality, to a fair public
hearing by an independent and impartial tribunal.
In the present case, the plaintiffs have repeatedly sustained
that the competent tribunal for retired officers is the Customary Court
and not the Special Military Court, since, under the Military Legal Code
[Articles 318 to 327], military jurisdiction does not extend to retired
personnel of the armed forces.
The Peruvian government informed the Commission, in a previous
communication, that the officers' military rank and the nature of the
offenses had been behind the decision to try them in the military court,
in accordance with Articles 318, 319 and 328 of the Military Legal Code.
The Commission considers, however, that it is extremely
difficult to infer from a reading of those articles that the Special
Military Court is competent to try retired officers.
Secondly, the Commission considers that in the present case, as
established in Article 10 of the Universal Declaration and Article 8,
paragraph 1, of the American Convention, the Special Military Court is
not "a competent, independent, and impartial tribunal" since,
under Peru's Laws of Military Justice [Decree Law No. 23201], it comes
under the Ministry of Defense, making it a special court subordinated
to an organ of the Executive Branch.
Consequently, since it is a court subordinated to the Ministry of
Defense, there can be no "inadmissible interference on the part of
the Executive Branch in the affairs of the Judiciary", as claimed
in the note from the Minister of External Relations to the Chairman of
Moreover, there are a number of precedents in which the Executive
Branch has pronounced in favor of persons prosecuted and sentenced not
only by the Special Military Court, but also in the civil courts.
One example is that of Engineer Miguel Ruíz Conejo, unjustly
sentenced by the Supreme Military Court to 30 years in prison for high
treason. However, as a
result of national and international efforts, including those of the
IACHR and, in particular, the declarations by the President of the
Republic that Ruíz Conejo was innocent, the Supreme Military Court,
after a judgment without appeal, acquitted Engineer Ruíz Conejo.
The situation, like that of the thirteen officers who are
plaintiffs in the present case, was one of manifest injustice in which
the intervention of the Chief Executive himself was not considered to be
"interference" in the affairs of the Judiciary.
In the light of the arguments contained in this report, the
Commission arrives at the following conclusions:
That the present case is admissible and the Commission is
competent to hear it since it concerns violations by the Peruvian State
of the following rights recognized in the American Convention on Human
right to personal liberty and right to humane treatment guaranteed,
respectively, by Articles 7 and 5 of the American Convention.
right of the plaintiffs to enjoy all essential legal guarantees,
which is set forth in Article 8 of the Convention.
right of assembly, the right to equal protection of the law, and the
right to judicial protection, guaranteed respectively in Articles 15,
24, and 25 of the Convention.
That the response given by the Government of Peru in Note No. 7-3-D/02
is unfounded and is therefore unsatisfactory for the reasons adduced in
point 3 of the preceding section.
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
request the Peruvian State once more to take the necessary steps to
overturn the Supreme Military Court's decision of March 31, 1993, which
upheld the sentence of eight years' imprisonment passed by the "Sala
de Guerra" on Major General (retd.) Jaime Salinas Sedó
for alleged commission of the crimes of rebellion, attempted
homicide, and unlawful possession of firearms; Major General (retd.) José
Pastor Vives to three years' imprisonment for the crime of military
rebellion; Brigadier General (retd.) Luis Soriano Morgan to six years'
imprisonment for the crimes of military rebellion and attempted
homicide; Brigadier General (retd.) Víctor Obando Salas to five years'
imprisonment for the crime of military rebellion; Brigadier General (retd.)
Manuel Obando Salas to eight years' imprisonment for the crimes of
military rebellion, insulting his superior, and attempted homicide;
Colonel (retd.) Jorge Noblecilla Merino to seven years' imprisonment for
the crimes of military rebellion and insulting his superior; Colonel César
Martínez Uribe to four years' imprisonment for the crimes of military
rebellion and insulting his superior; Colonel (retd.) Víctor Granda
Guzmán to three years' imprisonment for the crimes of military
rebellion and insulting his superior; Colonel José Montero Méndez to
fourteen months' imprisonment for the crimes of military rebellion and
insulting his superior; Colonel Wilder Sánchez Gambini to one year's
imprisonment for the crimes of negligence; Lieutenant Colonel Enrique
Aguilar del Alcázar to seven years' imprisonment for the crimes of
military rebellion and insulting his superior; Lieutenant Colonel Hugo
Moreno Alcántara to six years' imprisonment for the crimes of military
rebellion and insulting his superior; Lieutenant Colonel Marco Zárate
Rotta to six years' imprisonment for the crimes of military rebellion
and insulting his superiors; Lieutenant Colonel Eduardo Solano Pimentel
to eight months' imprisonment for the crimes of military rebellion and
insulting his superior; Lieutenant Colonel Pedro Tello Delgado to eight
months' imprisonment for crimes of military rebellion and insulting his
superior; Major (retd.) César Cáceres Haro to seven years'
imprisonment for crimes of military rebellion, insulting his superior,
attempted homicide and unlawful possession of firearms; Major (retd.)
Salvador Carmona to five years' imprisonment for the crime of military
rebellion; Major (retd.) Hugo Ormeño Huapaya to seven years'
imprisonment for the crimes of military rebellion, insulting his
superiors, attempted homicide, and unlawful possession of firearms;
Captain Federico Málaga Rubira to two years' imprisonment for the
crimes of insubordination and negligence; Lieutenant Colonel Luis Ruíz
y Urquizo to six months' conditional imprisonment for the crime of
negligence; Lieutenant Colonel César Rosado Cisneros to three months'
conditional imprisonment for the crime of negligence; Lieutenant Colonel
Carlos Galdos Chacón to three months' conditional imprisonment for the
crime of negligence, and Major Félix Castro Gómez de la Torre to three
months' conditional imprisonment for the crime of negligence.
to request the Peruvian State to immediately institute a new trial of
Generals Jaime Salinas Sedó, Luis Soriano Morgan, and Manuel Obando
Salas, and Lieutenant Colonel Marco Zárate Rotta, Major Hugo Ormeño
Huapaya, Major Salvador Carmona, and Major César Cáceres Haro pursuant
to the guarantees set forth in the American Convention, or if no new
trial is instituted, to order the immediate release of all of them.
request the Government of Peru to inform the Inter-American Commission
on Human Rights, within sixty days, of any steps taken in the present
case to give effect to the recommendations made in paragraphs 1 and 2
publish this report, pursuant to Article 48 of the Commission's
Regulations and Article 51.3 of the Convention, because the Government
of Peru did not adopt measures to correct the situation denounced within
the time period.
Hereinafter referred to as "the Constitution".
Article 82 states: "No one owes obedience to a usurping
government, nor to those who assume public functions or positions in
violation of the procedures established by the Constitution and the
laws, the acts of any usurping authority are null and void, the
people have the right to rise up in defense of constitutional
In fact, under Article 318, "the jurisdiction of the
military courts is not neither extendible nor renounceable, and it
cannot therefore be extended beyond the established by the Code
itself, nor can it be failed to be exercised in the cases determined
by the Code; and Article 319 states that:
"The jurisdiction of the military courts is exercised:
a) By virtue of the crime; b) By virtue of the place, and c)
By virtue of a state of war.
addition, Article 328 provides in the pertinent section that
"offenses committed within the jurisdiction shall be tried by
judges and courts of the armed forces and the police, to which the