REPORT Nº 1/96
March 1, 1996
The Inter-American Commission on Human Rights has observed with
concern and made reference on various occasions to the context of violence that
existed in Peru in 1990, a year which saw the abduction, torture and summary
execution, and also forced disappearance, of a group of over twenty-one
local people from Chumbivilcas province in the Department of Cuzco.
From the moment that the subversive groups Partido Comunista del Perú-Sendero
Luminoso [Communist Party of Peru-Shining Path] (PCP-SL) and
Movimiento Revolucionario Túpac Amaru [Túpac Amaru Revolutionary Movement] (MRTA)
decided to take up arms in 1980, Peru moved into a situation of extreme violence
for which these two groups were primarily responsible as they carried out
criminal acts with the aim of controlling the towns by means of terror.
Their practices violated the fundamental practices of international human
It is also true that the forces charged with ensuring internal security
and combating the armed groups' terrorist activity used methods inconsistent
with the values and principles of the international systems for protecting the
fundamental rights and freedoms recognized by the states making up the
international community, and the inter-American system in particular. The
fact is that in their fight against terrorist subversion the security forces of
the Peruvian State engaged in practices plainly contrary to human rights,
chiefly torture and inhuman and degrading treatment, summary executions and the
forced disappearance of persons, especially those who were suspected of being
members of the irregular armed groups and, in many instances, persons
unconnected with the activities of the terrorist groups.
The Commission considers that the terrorist groups' activities were in
fact serious violations of the fundamental human rights basic to human dignity.
However, at the same time it also takes the position that the Peruvian
State, in its efforts to defeat terrorist subversion, was not entitled to use
methods that violated its international commitments.
This report deals with the case of twenty-one rural people from
Chumbivilcas province in Cuzco Department who fell victim to an Army patrol
between April 20 and 30, 1990. Thirteen were killed and no fewer than eight were
held and subsequently disappeared. From information available to the Commission,
it is also known that during the incident the patrol used torture and sexual
violation of women.
The Commission considers this case to be important because the Peruvian
Government first denied the facts or, in any event, attributed what happened to
terrorist groups. It then later acknowledged the facts reported and blamed them
on a group of 18 to 20 armed men. The Government even reported that according to
information received from the Headquarters of the General Police in Santo Tomás
(Chumbivilcas), on April 21, 1990, that Headquarters received a radio call
from an 18 or 20-man Peruvian Army patrol that was operating in
It is also important because a commission was formed in the Peruvian
Senate to investigate the events in Chumbivilcas and that committee determined
that on the basis of its findings the facts had been sufficiently clarified to
declare unidentified Peruvian Army personnel the perpetrators of the
PROCEEDINGS BEFORE THE COMMISSION
By letter of June 26, 1990, the Commission was informed of the torture
and subsequent arbitrary execution of eleven residents of Chumbivilcas province,
in Cuzco Department, and the arrest and disappearance of five more between April
20 and April 30, 1990. These facts were attributed to a Peruvian Army patrol
from the Antabamba Countersubversion Base in the Department of Apurimac, which
adjoins the Department of Cuzco.
This information had been gathered from various social organizations
and NGOs of the area, and also from the Church in Sicuani.
By communications of July 4 and September 4, 1990, respectively, the
petitioners provided the Commission with additional information. In the second
of these communications it was noted that according to new information received
by the area social organizations, the number of persons killed was thirteen,
that the number who were arrested and subsequently disappeared was eight,
including an eight-year-old girl, and that at least twenty-six
persons had been tortured, including various women who were raped.
On March 17, 1992, the Commission transmitted to the petitioners the
Peruvian Government's response, in which the Government stated, inter alia,
Patrols were sent out from the Antabamba, Apurimac Countersubversion Base
into communities in Apurimac Department. The Antabamba base is located about 100
kilometers from the locality of Ranrapata in Cuzco Department, which is outside
the radius of action of a foot patrol from said base; from the nature of the
occurrences, they would seem to have been the work of subversives.
The report of operations carried out between April 5 and May 15, 1990, in
the provinces of Antabamba and Chumbivilcas does not record any clash or
military action in the locality of Ranrapata, Cuzco, since the Frente-4
and Fourth Military Region did not carry out any type of military operation in
On June 3, 1992, the Commission forwarded to the Peruvian Government a
communication setting out the facts forming the subject of the investigation.
On June 8, 1992, the petitioners submitted to the Commission their
comments on the Peruvian Government's response.
On July 6, 1990, the Government expanded its comments on the petitioners'
complaint, stating, inter alia:
after April 20, 1990, in the Yureneca, Tirani, Ucasahuí, Yavini and Ayaccasi
areas of the Quiñota and Llusco districts of Chumbivilcas province, there were
continuous killings, robberies, rapes and disappearances and other crimes
committed by a group of 18 to 20 armed men; as a result of which the members of
the rural communities went to the Headquarters of the General Police in Santo
Tomás to report the happenings and request an investigation.
. . .
the preliminary investigations made and the reports give by relatives of the
victims and by the local residents, the 79 CPG [police authorities] in Sicuani
determined that in the afternoon of April 21, 1990, the 18 to 20 armed men,
mounted on horseback and wearing the traditional dress of the area, arbitrarily
arrested the teacher Benita Mendoza Merma (whom they subsequently released after
three days), then killed Hermenegildo Jauja Salazar (50) in the community of
Tirani; on April 26, 1990, at noon, they killed Marco Torres Salhua (32), Jesús
Jauja Suyo (22), Marcos Huisa Llamacca (38), José Eugenio Huamani Charcahuana
(28), Eustaqui Apfata Salhua (28), Zenón Huisa Pacco (22), Balbino Huamani
Medina (60) and Julio Huamani Huisa at the foot of the Cerro Capullo (Narramapata)
mountain, in the Quiñota district of Chumbivilcas province, using firearms to
do so, as established by the autopsy required by law; on April 27, 1990, they
moved into the community of Accacco, in the Palco Llusco sector, where they left
behind in the home of Justino Carcahauna Chipa (41), one Instalaza grenade with
its box; finally, on April 28, 1990, before heading out in the direction of
Huacuyo, the armed men took with them a rifle, livestock, equipment, clothing
and household goods, together with Telésforo Alférez Achinquipa (28), Toribio
Achinquipa Pacco (38) and Gregorio Huisa Alccahuaman (22) as hostages.
the morning of April 21, 1990, the radio operator on duty in the Santo Tomás
General Police Headquarters received a radio call purporting to be from the base
set up by the 18 or 20 Peruvian Army soldiers under the command of a captain who
stated they were patrolling the Quiñota and Llusco area of Chumbivilcas
province; this radio communication was not confirmed, presumably because it was
from subversives who were moving through the different rural communities of
On September 9, 1994, the petitioners gave the Commission their comments
on the Peruvian Government's observations.
In accordance with Article 50 of the American Convention, at its 90th
regular session the IACHR approved Report 26/95 and forwarded it to the
Government of Peru via a note of November 27, 1995.
The Commission requested that within sixty days, the Peruvian State
report what action it had taken on the recommendations contained in the report.
On January 25, 1996, the Government of Peru requested an extension to
reply to the Commission. The latter responded by granting the Government another 30
days, i.e., until February 27, 1996, to reply.
The Government did not respond within the stipulated time period.
According to the information in the file, the facts reported as being in
of the American Convention on Human
Rights are the following:
Facts connected with the personal security of the victims, their right to
life and the right to personal liberty
The petitioners reported that between April 20 and 30, 1990, a Peruvian
Army patrol from the Antambamba Countersubversion Base in Apurimac Department,
under the command of an officer, seemingly a lieutenant, went into various
communities in Chumbivilcas province, Cuzco Department, where it killed thirteen
men who were first tortured. The individuals executed by the members of the Army
patrol were identified as: Julio
Apfata Tañire Otabirf (28), Balviono Huamaní Median (60), Zenón Huisa Pacco
(20), Juan Huisa Pacco (22), Gregorio Alférez Triveño (2), Marcos Zacarías
Huisa Llamoca (38), José Eusebio Huamaní Charcahuana (28), Jesús Jauja Suyo
(22), Eustaquio Afata Salhua (20), Julio Huamaní Huisa (30), Marcos Torres
Salhua (30), Hermengildo Jauja (60) and Víctor Huachaca Gómez.
The medical reports on the state of the cadavers refer in eleven cases to
the presence of bodily injuries produced by blows, puncturing and cutting
instruments and burning instruments. There were also holes made by the entry and
exit of firearm bullets in the cadavers. In all cases, the cause of death was
found to have been destruction of internal organs and internal hemorrhaging.
The complaints also stated that a further eight persons were taken by the
patrol and are still in disappeared status. These persons have been identified
as Quintín Alferez Ojuro (33), Telésforo Alferez Achinquipa, Gregorio Huisa
Alcahuaman, Damasio Charccahuana Huisa, Toribio Achinquipa Pacco, Pedro Gómez,
a man named Huamán and an unidentified girl of approximately eight years of
The complaint states that when these events occurred, the province of
Chumbivilcas was not under the state of emergency and, therefore, was not
subject to sweeps by the armed forces.
According to information from witnesses included in the file, the killing
was done in the foot of the mountain known as the Cerro Capallullo. The soldiers
put the people in a line and then detonated explosive devices and immediately
thereafter sprayed them with bursts of submachine gun fire. The bodies were
dumped in some natural gullies there.
The communications submitted by the petitioners indicate that as noted by
the witnesses, the military patrol was headed by an officer, apparently a
lieutenant, whom the men addressed as "Negro" or "Negrón".
Facts connected with the due judicial protection
When the Chumbivilcas events became known, various organization in the
Department of Cuzco, including the Catholic Church in Sicuani province, called
for a thorough investigation by the Government Attorney's office
and the Judicial Branch with a view to clarifying the facts and determining
where criminal responsibility lay. The social organizations, the Catholic
Church and human rights NGOs have made formal approaches to the Government
Attorney's offices regarding the events in Chumbivilcas.
The petitioners also stated that on April 27, 1990, the Chumbivilcas
General Police Chief wrote a letter to the Trial Judge (Criminal Courts Judge)
of the locality in which he referred to the Chumbivilcas residents having been
killed by Peruvian Army personnel, but without specifying where the latter came
The petitioners further stated that on May 14, 1990, they submitted a
petition to the Senior Public Prosecutor of Cuzco, requesting his intervention
with the aim of ascertaining precisely what happened in Chumbivilcas where a
group of persons was killed and improperly arrested by Army personnel supposedly
based in the province of Antabamba in Apurimac Department.
On May 27, 1990, the Chumbivilcas Provincial Prosecutor submitted Report
No/ 001-90-MP-FPMCH to the Senior Public Prosecutor concerning
the events in question and informing him that he had instructed the Chief of the
General Police to perform an investigation to clarify the facts and determine
who was responsible.
On May 29, 1990, the Asociación Pro Derechos Humanos (Human Rights
Association) submitted a complaint to the Government Prosecutor also requesting
that he facilitate investigation of the crimes of qualified homicide and abuse
of authority concerning the deaths of eleven persons and the arrest and
abduction of eight, in the course of April 23, 24, 25 and 26, 1990, by Peruvian
Army from the district of Antabamba, Cotabamba Province, Apurimac.
With a view to identifying the presumed perpetrators of the Chumbivilcas
killing, the Provincial Prosecutor of Santo Tomás sent General Petronio Fernández
Dávila (Chief of the Military
Region) various letters requesting him to give the name of the Chief of the
Haquira Military Base and of the presumed officer who was leading the military
patrol involved. The Provincial Prosecutor asked that this officer be identified
and provided the following description of him: "...civilian dress, colored
with beard and mustache, 1.70 meters in height, addressed as "Lieutenant
Negro or Negrón, Pedro or Julio", against whom there is reasonable
evidence that he is the one responsible for the bloodshed and other
The file shows that according to the police report of July 25, 1990, the
Police as a result of their investigations, concluded that those responsible for
the killing of the Chumbivilcas residents were the members of a Peruvian Army
patrol. This police report places responsibility on Peruvian Army personnel
based in the locality of Haquira, Cotamba, Apurimac. This conclusion is based
uniform appearance of those involved.
radio contacts in the name of the Haquira army base, recorded in the register of
confidential occurrences of the Santo Tomás General Police Headquarters.
finding of an Instalaza grenade, cartridges for Instalaza, CAL.7.62 cartridges
for FAL, of FAMF make, registered in the 79 CPN, Sicuani.
The petitioners further informed the Commission that, according to
dossier No. 097-90 of the Chumbivilcas Provincial Prosecutor, it was
established that the patrol responsible for the killing of the people in
Chumbivilcas belonged to the Peruvian Army and was commanded by an officer with
the rank of lieutenant. The Prosecutor accordingly asked the Chief of the Fourth
Military Region for the name of the Haquira Military Base and the identity of
the officer who was in command of the armed group that committed the crime.
The military commanders did not provide the information necessary for
identifying those responsible. The government Attorney has not yet filed a
complaint with the appropriate judicial authority.
OBSERVATIONS OF THE PARTIES
Position of the Government
The Peruvian Government has sent the Commission two formal communications
regarding the case in question. In the first it states that the acts forming the
subject of the complaint were not carried out by the Peruvian Army, and that
what happened seems more likely to have been the work of subversives. In the
second, dated July 6, 1994, and expanding on the first, it introduces new
elements by acknowledging that the deaths in Chumbivilcas province actually
occurred, but at the same time stating concerning responsibility for same that
"presumably... subversive elements were moving about among the different
rural communities in the Chumbivilcas province in the Department of Cuzco."
The Commission has also noted the position of the Ministry of Defense
concerning the Chumbivilcas events, as revealed in additional information
provided by the petitioners. Thus, on June 11, 1990, the Ministry of Defense
issued Report No. 2490, in which it states that the Joint Command had been
informed that: "(1) the armed forces had not carried out operations in the
province of Chumbivilcas in the Department of Cuzco."
On the same date, the Ministry of Defense sent a communication to the
Chamber of Deputies, in which it denied that the armed forces had carried out
operations in the Province of Chumbivilcas, in the Department of Cuzco.
Position of the petitioners
The petitioners have informed the Commission that, notwithstanding the
fact that more than four years have elapsed since the events in question, the
Peruvian Government is still asserting that even though they were identified as
an Army patrol, the armed column responsible might conceivably have been made up
In addition, the petitioners allege that although they have repeatedly
and publicly complained on behalf of the victims' families and the different
church institutions, and trade, rural and human rights organizations about the
torture, summary executions and forced disappearances of the Chumbivilcas
residents, their complaints have produced no results to date.
The military authorities have systematically denied the facts and have
not cooperated with the Government Attorney's office.
The case has not been turned over to the judicial branch of
The petitioners maintain that more than four years have in fact passed
since the events were reported, but they have not yet been explained.
Those responsible have not been identified, neither has anyone been
punished by the competent authorities, so that local remedies have proven
They also state that the Peruvian Government, in its last response
addressed to the Commission, suggests that those responsible for the killing of
the Chumbivilcas people may have been subversives.
The petitioners' reply to this argument of the Government's is that the
Government has not demonstrated that it conducted any investigation or has any
evidence that the possible perpetrators might have been subversives.
On the contrary, the petitioners note that the Government has not been
able to disprove any of the evidence they have submitted to the Commission.
The petitioners further maintain that the Peruvian Government has not
provided any information regarding the disposition of the different complaints
filed by the victims' relatives and the various organizations, both with the
Government Attorney's office and with the judicial authorities, and that it has
responded with evasions and in a confused manner to the complaint, resorting to
unsubstantiated assumptions despite the fact that more than four years have
elapsed since the Chumbivilcas events.
They note that the Government refuses to give the names of those
responsible, and has even refused to provide this information to a parliamentary
commission specially formed to investigate the events.
The Government's attitude, according to the petitioners, demonstrates its
unreadiness to investigate the torture, summary execution and forced
disappearances of the Chumbivilcas residents.
They conclude that the lack of any impartial investigation by the
competent authorities not only shows a lack of interest in ascertaining the
facts in order to punish those responsible, but also reveals an intolerable
predisposition in favor of letting those involved remain unpunished.
The fact is that despite the prompt reporting of the unlawful execution
of the citizens Julio Apfata Tañire Otabirf (28), Balviono Huamaní Median
(60), Zenón Huisa Pacco (20), Juan Huisa Pacco (22), Gregorio Alférez Triveño
(20), Marcos Zacarías Huisa Llamoca (38), José Eusebio Huamaní Charcahuana
(28), Jesús Jauja Suyo (22), Eustaquio Afata Salhua (20), Julio Huamaní Huisa
(30), Marcos Torres Salhua (30), Hermengildo Jauja (60) and Víctor Huachaca Gómez
and the forced disappearance of Quintín Alférez Ojuro (33), Telésforo Alférez
Achinquipa, Gregorio Huisa Alcahuaman, Damasio Charcahuana Huisa, Andrés
Achinquipa Pacco, Pedro Gómez, a man named Huaman and an unidentified girl
approximately eight years old to the different authorities charged with the
administration of justice, and also despite having reported the facts to various
political and military authorities, the investigations have not yet been
completed neither has a final report been issued, except in the case of the
Special Congressional Commission, as a result of the pertinent investigations.
Finally, they consider that the facts reported have not been absolutely
disproved by the Peruvian Government. In
support of their complaint, the petitioners have sent the Commission the
conclusions of the Parliamentary Commission set up by the Congress of the
Republic to investigate the Chumbivilcas events. Among its most important conclusions
the Parliamentary Commission emphasizes that: ...
The Commission concludes that it has achieved a sufficient level of
clarification concerning the facts investigated to enable it to declare
unidentified elements of the Peruvian Army responsible for the mass murder of
local people in the localities of the province of Chumbivilcas and Antabamba,
between the territories of the Departments of Apurimac and Cuzco.
The Parliamentary Commission's report maintains that the statements taken
as testimony agree in assigning responsibility to personnel of the Peruvian Army
and states that: "... the armed group was apparently led by an officer,
probably of the rank of lieutenant, its members bore arms of the same caliber,
with half boots, water bottles, military boots, black sweaters and ski masks.
They attempted to conceal this military gear by wearing ponchos over it.
Further on the report adds:
The group addressed the presumed officer by a military rank (the majority
of the witnesses stated he was addressed as "Lieutenant") and used
military language; they interrogated their captives about ownership of arms and
the whereabouts of certain subversives they were looking for.
According to statements collected by the Parliamentary Commission, in the
month prior to the events (March 1990) a patrol from the Haquira base had made a
sweep through the area:
The Provincial Mayor of Chumbivilcas, Eusebio Villena Castro, declared
that the Haquira military base was constantly sending patrols out into the
mountain communities and that on repeated occasions they had checked out the
districts of Quiñota, Llusco...
Moreover, regarding collaboration by senior army officers in the
investigations of the Chumbivilcas events, one of the Congressional Commission's
conclusions affirms that:
Commission concludes that the chiefs of the Military-Political Commands
of Ayacucho, General Petronio Fernández Dávila, and of Apurimac, Colonel Calle,
failed to perform their functional and constitutional obligations in refusing to
provide information on the identity of operations commanders responsible for
common crimes. It is the Government Attorney's office that must evaluate and
classify this behavior for the purpose of appropriate punishment, since it
involves the shielding of individuals incriminated in criminal proceedings, an
act that is classed as unlawful in our criminal justice system.
Concerning admissibility of the complaint
Submission within the time limit stipulated
The complaint was submitted within the six-month time limit set in
Article 46(b) of the American Convention on Human Rights and Article 38(1) of
the Regulations of
Requirements as to form
The complaint meets the requirements as to form for admissibility set
in the American Convention on Human Rights and Regulations of the Commission
No pending proceedings and res judicata requirement
The instant case is neither pending settlement in another procedure under
an international governmental organization nor does it essentially duplicate a
petition pending or already examined and settled by the Commission or by another
international governmental organization.
Exhaustion of domestic remedies
Article 46(1) of the Convention sets forth the conditions to be met for
submission of a complaint to the Commission. The requirements include that the
remedies under domestic jurisdiction must have been invoked and exhausted in
accordance with the general principles of international law. The remedies
under domestic jurisdiction of the States must be those appropriate and
effective for accomplishing the purpose for which they are intended.
However, paragraph 2 of the same Article (Article 46(2)) specifies three
exceptions to the prior invocation and exhaustion of domestic remedies,
namely: (i) when the allegedly injured party has not been allowed access to the
remedies under domestic law; (ii) when he has been prevented from exhausting
them; and (iii) when there has been unwarranted delay in rendering a final
judgment under said remedies.
If any of these three circumstances occurs, then the requirement to first
exhaust domestic remedies will not be applicable.
This case was notified to the competent authorities of the domestic
jurisdiction of the State concerned. The fact is, as already noted, various
complaints were lodged with the Government Attorney's office on account of the
dual role that office performed in the legal system established by the Peruvian
Political Constitution of 1979, namely in its capacity as protector of citizens'
rights and freedoms under the legal and constitutional systems, and in its
accusatory role as agency responsible for initiating criminal proceedings before
the judicial authorities. Despite the fact that the Government Attorney's office
has established that the events in Chumbivilcas, which took the form of torture
followed by unlawful executions and forced disappearances, were attributable
to a Peruvian Army patrol commanded by an officer with the rank of lieutenant,
to date no move has been made to have the criminal justice authorities open an
investigation. It should be noted that in accordance with current Peruvian
criminal procedure and the organic law governing the Government Attorney's
office, for the prosecutor--acting as the authority responsible for
initiating criminal proceedings--to bring the matter before the
Judicial Branch, three concurrent requirements have to be met: (i) the matter in
question must be a crime; (ii) the time limit for instituting criminal
proceedings must not have expired; and (iii) the persons allegedly responsible
must have been identified. If the matter is a crime and criminal precedence are
not statute barred but the person responsible has not been identified, the
prosecutor is required to provisionally set the investigation aside.
In the present case more than four years have elapsed and to date no
proceedings have been instituted, among other reasons because the military
authorities, who are subject to the Executive Branch, refuse to identify the
officers responsible for the Chumbivilcas events.
In light of that stated in the preceding paragraph, the Commission
considers that efforts to exhaust domestic remedies in connection with
investigation of the events and identification of those responsible have proved
ineffective and that the time which has elapsed without the Peruvian authorities
taking action in the case amounts to an unwarranted delay in rendering a final
judgment on said domestic remedies. Moreover,
when it adopted laws 26479 and 26492, the Peruvian State unilaterally renounced
its obligation to investigate and punish crimes that affect fundamental rights,
as in this case with the right to life, in violation of the American Convention
on Human Rights.
The Commission accordingly considers that the petition submitted meets
the admissibility requirements set by the American Convention and the
Commission's Rules of Procedure.
Concerning the right to life, to humane treatment and to personal liberty
According to the American Declaration of the Rights and Duties of Man,
the right to life is a fundamental right and if respect of this right by
government authorities is not assured then the entire range of rights and
freedoms detailed in the system for recognizing and protecting human rights
would be rendered ineffective.
Article 1 of the American Declaration in fact specifies that "Every
human being has the right to life, liberty and the security of his person".
The right to life is the main right of a human being and this right therefore
implies, in addition to the duty to respect it, an irrevocable duty on the part
of states to protect it, as stipulated in Article 1(1) of the Convention under
which the states undertake to respect and guarantee all the rights and freedoms
recognized in it.
This is the context of Article 4 of the American Convention, which
declares that "Every person has the right to have his life
respected..." and at the same time lays down the prohibition to the
effect that: "No one shall be arbitrarily deprived of his life".
This prohibition against arbitrary deprivation of human life is at the
core of the right to life. The use of the term "arbitrarily" might
appear to indicate that the Convention allows exceptions to the right to life,
on the mistaken assumption that life may be taken in certain circumstances
provided this is not done arbitrarily. However, quite the opposite is the case,
since the intent of this clause is rather to seek to ensure strengthening of the
conditions governing application of the death penalty by those states which
have not yet abolished it, and at the same time, to serve as a guarantee to
prevent summary executions.
The Convention's aim is to preserve the right to life at all times, and
also the right to humane treatment. In actual fact, the States are not permitted
to restrict these rights, even on grounds of existence of exceptional situations
that jeopardize the life of the State or of the national community.
This is expressly and unequivocally spelled out in Article 27(2) of the
Convention concerning rights that may not be suspended during states of
time of war, public danger or other emergency that threatens the independence or
security of a State Party, it may take measures derogating from its obligations
under the present Convention to the extent and for the period of time strictly
required by the exigencies of the situation...
foregoing provision does not authorize any suspension of the following articles: Article 3 (Right to Juridical Personality); Article 4 (Right
to Life); Article 5 (Right to Humane Treatment)...
When the events under investigation by the Commission occurred, the
Political Constitution of 1979 was in effect in Peru; this Constitution
restricted application of the death penalty to cases of high treason in the case
of international war (Article 235).
In accordance with the provisions of the Peruvian Constitution and the
international obligations forming part of the country's domestic law,
quite apart from the limitations imposed by the rules governing the death
penalty and circumstance of legitimate defense in cases of armed conflicts or
serious domestic disturbances jeopardizing the life and the other fundamental
rights of persons, any execution carried out by State agents responsible for
maintenance and preserving domestic order must be considered arbitrary.
From analysis of the information submitted to the Commission, it is
apparent that in the case of the Chumbivilcas events the Army Patrol acted
outside of regular operating procedures that would reasonably have justified the
use of force by means of its firearms. What in fact happened was a multiple
homicide resulting from excessive use of the State's operating capability (a
military patrol), without any authorization under the legislation in effect. The
deaths caused were the outcome of arbitrary and unlawful use of force.
It must be emphasized that no province of the Department of Cuzco was
under the state of emergency when the events occurred. This is an important
point for reinforcing the principle that both the right to life and the right to
humane treatment are rights that must be respected at all times by state agents
responsible for law enforcement and that there is no justification for violating
them, not even in state of emergency.
In accordance with the reasoning set forth, the Commission considers that
on the grounds of the torture followed by arbitrary executions carried out by
the members of the Army patrol in Chumbivilcas province and involving the
victims listed in the statement of facts, the Peruvian military authorities have
violated the American Convention in that it recognizes and protects the right to
life and humane treatment specified in Articles 4 and 5, respectively, which
means that the State also failed to carry out its obligation to respect and
guarantee these rights, an obligation that is enshrined in Article 1(1) of the
Regarding the petitioners' complaint concerning the forced disappearance
of eight persons, including a young girl, the Commission takes the following
The practice of forced or involuntary disappearance of persons has been
qualified by the international community as a crime against humanity that
violates fundamental human rights such as personal liberty, the right to humane
treatment, the right to fair trial and to due process, and also including the
right to life. Accordingly, on the basis of a petition by the
Inter-American Commission on Human Rights, the General Assembly of the
Organization of American States resolved in 1983:
To declare that the practice of forced disappearance of persons in
America is an affront to the conscience of the Hemisphere and constitutes a
crime against humanity.
In reference to the practice of forced disappearance the Court has held
These cruel and inhuman practices constitute not only an arbitrary
deprivation of liberty, but also an extremely serious hazard to the personal
integrity, security and very life of the person concerned. They moreover place
the victim in a state of absolute defenselessness with serious violation of his
rights to a fair trial, protection against arbitrary arrest and due process.
The Inter-American Court of Human Rights, for its part, has
observed that the forced disappearance of persons frequently entails "the
execution of the detainees, in secret and without form of trial, followed by
concealment of the cadaver with the aim of erasing any material trace of the
crime and ensuring the impunity of those who committed it, which represents a
brutal violation of the right to life recognized in Article 4 of the Convention.
The practice of forced disappearance is therefore, by definition, a cruel
and inhuman practice that is offensive on a number of scores in that various
legal rights are violated by it: personal liberty, right to humane treatment and
to a fair trial, due process, and the right to life itself. The Commission
considers that forced disappearance has occurred when a person is arrested by
State agents or with the acquiescence of same, with or without orders from a
competent authority, and this arrest is then denied and no information is made
available as to the destination or whereabouts of the detainee.
Accordingly, the following requirements have to be met for arrest
followed by disappearance to be deemed to have occurred: (i) an arrest as
described above must have been made; (ii) this arrest must have been carried out
by State agents or by irregular groups (paramilitary or parapolice) acting
with the acquiescence of the state authorities or under their operational
control; and (iii) the holding of the victim must have been systematically
denied by the authorities responsible for public order.
According to the Commission's practice, an arbitrary or illegal arrest is
deemed to have occurred when three different assumptions are satisfied, namely:
(i) when the arrest is made without any valid legal grounds (totally illegal
arrest); (ii) when it is carried out without observance of the forms required by
law; and (iii) when it is inconsistent with the powers of arrest, i.e. when an
arrest is made for purposes other than those specified and required by law
(arrest for improper purposes); the Commission has also noted that arrest for
improper purposes is in itself a punishment or penalty that also affects the
democratic nature of the State and a violation of the principle of separation of
powers in that it implies exercise by the administrative branch of powers
assigned to the judicial authorities.
In the present case, it is apparent from the file that the citizens Quintín
Alférez Ojuro, Telésforo Alférez Achinquipa, Gregorio Huisa Alcahuaman,
Damasio Charcahuana Huisa, Toribio Achinquipa Pacco, Pedro Gómez, a man named
Huamán, and the unidentified girl of about eight years of age, were
arrested in an illegal and arbitrary fashion by the members of a Peruvian Army
patrol between April 20 and April 30, 1990, in the province of Chumbivilcas. It
is also evident from the file that notwithstanding the requests made by the
rural organizations, the Catholic Church and the Government Attorney's office
the military authorities have systematically refused to acknowledge
responsibility for the facts reported, which clearly include charges of forced
disappearance of the above-referred citizens.
Due account must also be taken of the constitutional provisions in effect
at the time of the events, regarding personal
liberty and the powers of the law-enforcement authorities concerning
arrest of persons. The fact is that Article 2(20)(g) of the 1979 political
Constitution specified that no one could be arrested without a written warrant
from a judge setting out the reasons, or by the police in the case of crime
detected in the act. In the present case, as can be inferred from the
description of the facts, the persons concerned were arrested without any court
order and without having been found committing any crime, since in all cases it
is known that the military personnel arrested them on mere suspicion of being
rural dwellers who were assisting the subversive groups, without having any
evidence or reasonable indication that this suspicion was justified. Moreover,
it must again be stressed that in the Chumbivilcas area no state of emergency
had been formally declared that might have warranted arrest for questioning
without any court order or detection of criminal activity in progress. In this
respect, these arrests were arbitrary and in violation of the rules designed to
ensure due process in that none of the persons was brought before a competent
court assuming that they were guilty of some crime.
In accordance with the foregoing it can be concluded that in the present
case there were arbitrary arrests of defenseless persons without any
justification whatsoever, and that these arrests have been repeatedly denied by
the military authorities, thus giving rise to a collective case of forced
disappearance with violation of a set of rights possessed by all persons such as
personal liberty, the right to humane treatment and due process, and even the
right to life itself, the latter being presumed on the bases of the time that
has elapsed without the persons in question reappearing.
On the grounds set forth in the preceding paragraphs, the Commission
considers that both the right to personal liberty guaranteed by Article 7 of the
American Convention, and the rights to life and humane treatment guaranteed by
Articles 4 and 5 of the Convention, respectively, and also the provisions that
recognize and guarantee due process as set forth in Article 8 of the Convention,
have been violated by the military authorities of the Peruvian State, to the
prejudice of the persons listed in this case as arrested and disappeared, the
Peruvian Government authorities having failed to perform their obligation to
respect and guarantee these rights, as set forth in Article 1(1) of the American
Concerning the duties to respect and guarantee the fundamental rights and
regarding the right to effective judicial protection
Article 1 of the American Convention reads as follows:
1. The States Parties to this Convention undertake to respect the rights
and freedoms recognized herein and to ensure to all persons subject to their
jurisdiction the free and full exercise of those rights and freedoms, without
In other words, the States have a duty to respect and to guarantee the
fundamental rights. These duties of the States, to respect and to guarantee,
form the cornerstone of the international protection system since they comprise
the States' international commitment to limit the exercise of their power, and
even of their sovereignty, vis-à-vis the fundamental rights and
freedoms of the individual. The duty to respect entails that the States must
ensure the effectiveness of all the rights contained in the Convention by means
of a legal, political and institutional system appropriate for such purposes.
The duty to guarantee, for its part, entails that the States must ensure the
effectiveness of the fundamental rights by ensuring that the specific legal
means of protection are adequate either for preventing violations or else for
reestablishing said rights and for compensating victims or their families in
cases of abuse or misuse of power. These obligations of the States are related
to the duty to adopt such domestic legislative provisions as may be necessary to
ensure exercise of the rights specified in the Convention (Article 2).
As a corollary to these provisions, there is the duty to prevent
violations and the duty to investigate any that occur since both are obligations
involving the responsibility of the States. As the Inter-American Court of
Human Rights notes in its judgment of July 29, 1988:
The State has the clear legal duty to prevent insofar as it reasonably
can violations of human rights, to purposefully investigate with the means at
its disposal such violations as may be committed within the sphere of its
jurisdiction, in order to identify those responsible, to impose the pertinent
penalties on them and to ensure adequate compensation for the victim.
The same judgment further notes that the duty to investigate must be
carried out in such a way that the truth of the facts reported is duly
(the duty to investigate) must be undertaken in a serious manner and not
as a mere formality preordained to be ineffective.
An investigation must have an objective and be assumed by the State as
its own legal duty, not as a step taken by private interests that depends upon
the initiative of the victim or his family or upon their offer of proof, without
an effective search for the truth by the government.
This is true regardless of what agent is eventually found responsible for
the violation. Where the acts of private parties that violate the Convention
are not seriously investigated, those parties are aided in a sense by the
government, thereby making the State responsible on the international plane.
This set of obligations of the States is connected with the right to due
judicial protection laid down in Article 25 of the American Convention, which
specifies that anyone whose fundamental rights are affected by acts of
authorities in the performance of their official duties is entitled to legal
recourse before the competent courts, whether jurisdictional or
In the present case, the file held by the Commission shows that a set of
proofs has been compiled that adequately demonstrate that between April 20 and
April 30, 1990, a military patrol from the Antabamba Countersubversion Base in
Apurimac Department moved into various areas where rural communities were
located in the province of Chumbivilcas, Cuzco. During the period mentioned, the
military patrol carried out various acts that violated the fundamental rights of
the populations, including torture, summary executions and forced
The military authorities, which report to the Executive Branch through
the Ministry of Defense, and are obliged to give account of these facts and to
identify those responsible so that they may be turned over to the Government
Attorney's office and the judicial authorities, far from carrying out an
organized investigation for these purposes have systematically denied the facts
and have not provided the necessary information requested by the prosecutors in
charge of the investigation. The concealment of information and the misleading
information given out clearly show that the competent authorities of the
Peruvian Executive Branch have not seriously investigated the facts reported.
Regarding this point, reference can again be made to the
Inter-American Court of Human Rights' Judgment in the Veláquez-Rodríguez
case, in which it is stated that:
... the silence of the accused or elusive or ambiguous answers on its
part may be interpreted as an acknowledgment of the truth of the allegations, so
long as the contrary is not indicated by the record or is not compelled as a
matter of law.
It is important to emphasize that, as detailed in the file, the facts
were investigated by a Parliamentary Commission specially formed for the
purpose, which determined that responsibility for the Chumbivilcas events lay
with unidentified army personnel. In accordance with Peruvian constitutional and
legislative provisions, the Parliamentary Commission's findings do not have
judicial effect, since their purpose is basically political, for the purpose of
activating the mechanisms of political control over the administrative
authorities. However, from the probative standpoint these findings constitute a
crucial element for assessing the facts and considering them from the legal
viewpoint in an official and judicial investigation.
It must be clearly stated that while there definitely was a Parliamentary
Commission that investigated what happened in Chumbivilcas and came close to
determining the truth of the matter, this in no way relieves the Peruvian
Government from its responsibility for
having failed to provide key information for clarifying the facts and
determining criminal responsibilities in public and impartial trial, as a result
of which it failed to comply with the duty to respect and guarantee the
fundamental rights set forth in Article 1 of the American Convention on Human
In Report 26/95, to which the Peruvian State did not respond within the
90 days the Commission granted to it for that purpose, the Commission
concluded that the Peruvian Government had failed to comply with its obligation
to respect and guarantee the fundamental rights and freedoms, an obligation that
carries with it the duty to investigate abuses of these rights and freedoms and
to punish those responsible, and had violated the right to due judicial
protection, set forth in articles 1 and 25 of the American Convention on Human
On the basis of what is set forth in this report the Commission concludes
That the case is admissible and the Commission is competent to examine
same since it is a matter of violations by the Peruvian State of the following
Right to life, to humane treatment and to personal liberty, recognized
and guaranteed, respectively, by Articles 4, 5 and 7 of the American Convention
on Human Rights, on the grounds of the torture followed by summary executions
and forced disappearances suffered by Julio Apfata Tañire Otabirf (28),
Balviono Huamaní Median (60), Zenón Huisa Pacco (20), Juan Huisa Pacco (22),
Gregorio Alférez Triveño (20), Marcos Zacarías Huisa Llamoca (38), José
Eusebio Huamaní Charcahuana (28), Jesús Jauja Suyo (22), Eustaquio Afata
Salhua (20), Julio Huamaní Huisa (30), Marcos Torres Salhua (30), Hermengildo
Jauja (60) and Victor Huachaca Gómez (tortured and executed), and Quintín Alférez
Ojuro (33), Telésforo Alférez Achinquipa, Gregorio Huisa Alcahuaman, Damasio
Charcahuana Huisa, Toribio Achinquipa Pacco, Pedro Gómez, a man named Huamán
and an unidentified girl aged about eight years (tortured and disappeared).
The obligation to respect the rights and guarantees laid down in Article
1(1) of the American Convention, together with the right of the victims'
families to due judicial protection, as provided for in Article 25 of the
Convention, since the Peruvian Government has not initiated the different legal
proceedings or involved the legal authorities competent to investigate the
criminal events, but much to the contrary has acted counter to the pertinent
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare that the Peruvian Government has violated the rights
recognized by signature of the American Convention on Human Rights with respect
to the right to life (Article 4) and the right to humane treatment (Article
5(1)), respectively, as consequence of the summary execution of the citizens
Julio Apfata Tañire Otabirf, Balviono Huamaní Median, Zenón Huisa Pacco, Juan
Huisa Pacco, Gregorio Alférez Triveño, Marcos Zacarías Huisa Llamoca, José
Eusebio Huamaní Charcahuana, Jesús Jauja Suyo, Eustaquio Afata Salhua, Julio
Huamaní Huisa, Marcos Torres Salhua, Hermengildo Jauja, and Victor Huachaca Gómez,
which executions were carried out on April 26, 1990, in the province of
Chumbivilcas, Department of Cuzco.
To declare that the Peruvian Government is responsible for the violation
of the right to personal liberty, to life, to humane treatment and to the
guarantees of due process recognized in Articles 7, 4, 5, and 8, receptively, of
the American Convention on Human Rights, as a consequence of the unlawful
deprivation of liberty followed by forced disappearance of the citizens Quintín
Alférez Ojuro, Telésforo Alférez Achinquipa, Gregorio Huisa Alcahuaman,
Damasio Charcahuana Huisa, Andrés Achinquipa Pacco, Pedro Gómez, a man named
Huamán and an unidentified girl, in the district of Chumbivilcas, province of
Sicuani, Department of Cuzco, between April 20 and April 30, 1990.
To further declare that in the instant case, the Peruvian State failed to
reply to Report 26/95, approved in accordance with Article 50 of the American
Convention, failed to comply with its obligation to respect the rights and
guarantees established in Article 1(1) of the American Convention, and violated
the right to judicial protection provided for in Article 25 of the American
To recommend to the Peruvian State, in light of the Commission's analysis
of the instant case, that it conduct another investigation into the facts
reported, to determine the whereabouts of the disappeared persons, and to
identify and punish those responsible for the torture, summary execution and
forced disappearance of the 21 residents of Chumbivilcas.
To recommend to the Peruvian Government that it pay fair compensation to
the families of the victims.
To request the Peruvian Government to inform the Inter-American
Commission on Human Rights of the measures taken pursuant to paragraphs 4 and 5
of these recommendations.
To publish this Report in the Annual Report to the General Assembly.
 Up till the entry into effect of the 1993 Constitution
the Government Attorney's office--as an autonomous state
agency--performed the dual role of holding responsibility for
action under criminal law while also being the defender of democratic
legality and of human rights. Currently, with the new Constitution, the
Government Attorney's office is only responsible for criminal law action
before the judicial authorities. Defense of democratic legality and of human
rights has been entrusted to another autonomous organ created by the new
Constitution, the Defender of the People.
Within a few days of enactment of Law 26479, the judge conducting the
inquiry into the massacre in Barrios Altos in 1992, declared that Article 1
of the that law did not apply to that case because it was unconstitutional.
The Peruvian State then passed a new law (No. 26492) purported to be
an interpretation of the Amnesty Law. This
law stated that the Amnesty Law was not unconstitutional and was not a
breach of international human rights treaties and that its application was
compulsory and not subject to judicial review.
 The current Peruvian Constitution, in effect since
December 31, 1993, has expanded the grounds for application of the death
penalty, which is now permitted for the crimes of terrorism and high treason
in both international wars and domestic conflicts.
 Inter-American Commission on Human Rights:
"American Convention on Forced or Involuntary Disappearance of
Persons", in "Revista del Instituto Interamericano de Derechos
Humanos", July-December 1987, No. 6, p. 95.