doc. 6 rev.
13 April 1998
HECTOR PEREZ SALAZAR
February 19, 1998
I. THE FACTS
1. On June 14, 1990, the
Inter-American Commission on Human Rights (hereinafter, "the
Commission") received a complaint against the Republic of Peru
(hereinafter, "the Peruvian State," the "State" or
"Peru") relating to Mr. Héctor Pérez Salazar, a 66-year-old
craftsman. The document stated the following:
A combined General Police and Peruvian Army patrol arrived at six in
the morning to the town of Huancaya, Province of Yauyos, Department of Lima.
Once there, the soldiers collected the entire population in the town's
central plaza. However, Mr. Héctor Pérez Salazar, an elderly man disabled by
polio, was unable to get to the plaza as quickly as others, stopping at the
public baths on the other side of town on his way.
It was at this time that the other inhabitants heard the sound of
several shots emanating from that place, and later they saw a bulky object
wrapped in a plastic bag being lifted into one of the police's pickup trucks.
Upon going to the public baths, a number of inhabitants came upon the
elderly man's eye glasses and cane in the middle of a pool of blood.
Area authorities have not responded to the family's pleas, with the
result that Mr. Pérez Salazar's status is that of a missing detainee, though
the evidence creates the presumption of an extra-judicial execution with an
II. THE COMMISSION'S PROCEEDINGS
2. Having received the denunciation,
the Commission, without prejudging the admissibility of the matter, sent the
relevant sections of the document to the Peruvian State on June 15, 1990, asking
the State to supply whatever information it considered appropriate. No
answer was received within the time limit specified in the Commission's rules.
3. This request for information was
reiterated in a note sent to the Peruvian State on March 18, 1991, and
mentioning the potential invocation of article 42 of the Commission's rules,
since the time which the rules allow for a response had passed without the
receipt of any response.
4. Given the inapplicability of the
friendly settlement procedures established in article 48.1.2 of the American
Convention, due to the lack of a response from the Peruvian State, the
Commission issued its article 50 report on the case.
III. PROCEEDINGS AFTER COMMISSION ADOPTION
OF THE ARTICLE 50 REPORT
5. Pursuant to article 50 of the
Convention, the Commission on April 22, 1997, during its 96th Special Session,
approved report 26/97 concerning the present case based on article 42 of its
Regulations, by which the Commission is authorized to presume the facts reported
in the petitioner "to be true" in the absence of any response on the
part of the State, "as long as other evidence does not lead to a different
6. By Note No. 7-5-M/66, dated April
25, 1997, three days after the article 50 report had been adopted, the Permanent
Mission of Peru to the OAS informed the Commission that the governmental
National Council of Human Rights (Consejo Nacional de Derechos Humanos)
had informed that the Joint Command of the Armed Forces had informed that the
the Judge of the Province of Yauyos - Lima, Dr. Medina Quispe Zósima had opened
a case against Army Captain Alí Pérez Oblitas (Commander of the
Military-Police Patrol) which operated in Huancaya on April 25, 1990 for the
crime against the life, body and health - homicide of Perez Salazar Héctor, a
judicial trial in which the responsibility of the individual officier in
question could not be established . . .." In order to obtain further
information from this Judge, the National Council of Human Rights requested an
extension of time in order to provide further information on the matter.
7. In the interest of receiving a
response from Peru on this case, the Commission, on May 7, 1997, informed the
State that it had granted an extension of time within which to respond until
June 3, 1997.
8. By note dated May 7, 1997 and
received at the Commission on May 15, 1997, the Permanent Mission of Peru to the
OAS transmitted the response of the National Council of Human Rights on this
case. The response stated that the Joint Command of the Armed Forces had
carried out an "exhaustive investigation" of the events which occurred
in 1990 in Huancaya, Yauyos and given that the body of Héctor Perez Salazar had
not been located, it could not establish the responsibility of Captain Pérez
Oblitas in his killing.
9. The response of Peru on this case
was transmitted to the petitioners on May 20, 1997 and they were asked to submit
any observations within a period of 30 days. None were submitted.
10. By letter dated June 18, 1997, the Commission
transmitted a copy of Report No. 26/97, its article 50 decision on this case to
Peru and requested that the State provide information regarding steps taken to
carry out the recommendations of the Commission, and advised them that they were
not at liberty to publish the report since it was still confidential.
11. By Note No. 7-5-M/297 dated August 20, 1997,
Peru presented its observations on the Commission's confidential report which
are discussed below in the analysis of the merits.
IV. ANALYSIS OF THE MERITS
12. What happened to Héctor Pérez Salazar, as
set forth in this case, corresponds in content, nature and characteristics, to
the concept of "forced disappearance", as developed in the
jurisprudence of the Commission and the Inter-American Court of Human Rights
(hereinafter, "the Inter-American Court,") and incorporated into
Article II of the Inter-American Convention on the Forced Disappearance of
13. Article II of the Forced Disappearance
Convention defines a "forced disappearance" in the following terms:
For the purposes of this Convention, forced disappearance is considered
to be the act of depriving a person or persons of his or their freedom, in
whatever way, perpetrated by agents of the state or by persons or groups of
persons acting with the authorization, support, or acquiescence of the state,
followed by an absence of information or a refusal to acknowledge that
deprivation of freedom or to give information on the whereabouts of that
person, thereby impeding his or her recourse to the applicable legal remedies
and procedural guarantees.
14. Peru is not a State Party to the Forced
Disappearance Convention but the mere elaboration of the definition of a
"forced disappearance" by the drafters of the Convention is useful for
the purposes of identifying the distinct elements of the same. What is
crucial is that the individual be deprived of his freedom by agents of the state
or under the color of law, followed by a refusal or incapacity of the State to
explain what has happened to him or to give information about his
15. In this case, in the response dated June 17,
1997, Peru recognized that an army officer, Captain Alí Pérez Oblitas, was
tried in 1992 for the suspected murder of Héctor Pérez Salazar. The
report of June 17, 1997, prepared by the National Commission on Human Rights
affirms that, in accordance with the information provided by the Judicary and
the Attorney General's office in this case, the testimony of the brothers of the
victim confirmed the presence ofthe Army in Huancaya but they could not verify
the presumptive homicide except on the basis of rumors. The judge who
heard the case issued an opinion in the sense that the responsibility of the
accused had not been proven, given that the necessary proofs to establish the
homicide had not been presented, not had the body of the victim been
found. Consequently the case was closed. Pursuant to the version of
the facts presented by Peru, Mr. Héctor Pérez Salazar disappeared as a result
of the events of April 25, 1990, but it was not proven that members of the Army
or the Police were the cause of his disappearance. By note dated August
20, 1997, the Peruvian Mission to the OAS presented a report prepared by the
National Council on Human Rights in response to confidential report No. 26/97
reiterating, in essence, the substance of the previous communication.
16. In Resolution 666 (XIII-O/83), the General
Assembly of the Organization of American States declared that "the practice
of forced disappearance of persons in America is an affront to the conscience of
the Hemisphere and constitutes a crime against humanity".
17. The Commission's experience has demonstrated
that the main cause of forced disappearances derives from abuse of powers
conferred on the armed forces of a State during a state of emergency.
Under a state of emergency, the number of arbitrary detentions increases,
individuals are detained without charges and kept in detention without benefit
of trial, deprived of access to judicial remedies, and with no record of having
been arrested, all of which is flagrantly at variance with the rule of
Right to life (Article 4 of the Convention)
18. In this case, the testimony and evidence
offered lead to the conclusion that Héctor Pérez Salazar was killed simply on
account of the slow gait which was due to his being elderly and disabled by
19. The killing of Héctor Pérez Salazar was
thus an arbitrary and illegal act committed by agents of the Peruvian state, and
constitutes a violation of Article 4 of the American Convention, an act
committed outside the framework of accepted legal norms and without observing
the standards required by law, an act the commission of which exceeds the
authority granted to public officials.
20. It has not yet proven possible to find the
body of Héctor Pérez Salazar, despite the eight years that have passed since
his killing. However, the witnesses did observe the way the police “lifted a
bulky object wrapped in a plastic bag into one of the pickup trucks,” which
allows the inference that the corpse was hidden to cover up the crime.
21. The Inter-American Court of Human Rights has
stated that the secret execution of detainees without legal proceedings is often
followed by hiding the corpse in order to erase any physical trace of the crime
and to achieve impunity for the perpetrators, which represents a brutal
violation of the right to life recognized in Article 4 of the Convention. (Velásquez
Rodríguez Case, Judgment of July 29, 1988, paragraph 157.)
22. The arbitrary deprivation of life by agents
of Peru constitutes an extra-judicial execution, a form of judgment without
trial, or extralegal punishment, carried out outside the legal process and in
contradiction of the principle of legality expressed in article 9 of the
Convention, which states that "no one can be sentenced for acts or
omissions which at the time of their occurrence were not criminal according to
applicable law." Consequently, Peru, in its unjust treatment of
Héctor Pérez Salazar, has violated its obligation to respect and protect the
right to life and due process.
23. Extra-judicial execution has been defined as
a crime against humanity. As a result of this, the states have assumed the
obligation to take all necessary measures to prevent and punish such acts.
This obligation includes the duty to exercise strict control over security
forces so that this type of action is not tolerated.
24. The United Nations’ principles relating to
the effective prevention and investigation of extralegal, arbitrary, and summary
executions say, in
this regard (principle a), that an exhaustive, immediate, and impartial
investigation shall be undertaken in all cases where there is a suspicion of
extralegal, arbitrary, or summary executions. The governments shall take
care that persons who are identified as participants in extralegal, arbitrary,
or summary executions in any territory under their jurisdiction shall be brought
25. It follows that Peru’s senior officials
have failed to exercise the control over their security forces needed to prevent
these forces from carrying out extra-judicial executions, and they have also
refused to investigate such acts. This has led to a situation of impunity,
which bespeaks consent to the commission of these crimes on the part of the
State’s highest officials.
26. On the problem of impunity in Peru, the U.N.’s
Special Rapporteur on Extra-judicial Executions stated that in contrast to its
public expressions of concern, officials, particularly those commanding the
armed forces, have unmistakably and repeatedly demonstrated their lack of will
to clear up human rights violations and punish the guilty. The Rapporteur
has received many pieces of testimony and reports on cases in which the
authorities have failed to meet their obligation to investigate alleged human
rights violations and to identify the guilty and bring them to justice.
27. Official tolerance of extra-judicial
executions was written into law in 1995 with Amnesty Law Nº 26.479, which
grants amnesty to military, police, and civilians who find themselves accused,
investigated and tried in relation to, or as a consequence of, the war against
terrorism, as of May 1980.
28. This situation of impunity is incompatible
with the State’s general obligation to respect and protect human rights.
The jurisprudence of the Inter-American Court of Human Rights holds in this
regard that the State has the legal duty to use the means within its reach to
seriously investigate violations committed within its jurisdiction, in order to
identify those responsible, impose the appropriate punishment, and ensure the
victim adequate compensation. (Velásquez
Rodríguez Case. Judgment
op.cit., paragraph 174.)
29. The fact of the Peruvian state finding itself
in an emergency situation as a result of violence by irregular armed groups
cannot be an excuse for, or justification of, these occurrences. Pursuant
to the United Nations’ principles relating to the effective prevention and
investigation of extralegal, arbitrary, and summary executions, extra-judicial
executions shall not be carried out in any circumstance, even in situations of
armed domestic conflict, nor in any circumstance shall general immunity prior
to prosecution be granted to persons allegedly implicated in extralegal,
arbitrary, or summary executions. Adopted by the Economic and Social
Council of the U.N. on May 24, 1989, and approved by U.N. General Assembly
Resolution 44/162, dated December 15, 1989.
On the obligation of the state to guarantee and respect human rights
30. In this case it has been demonstrated that
the State of Peru has not complied with the provision in Article 1.1 to respect
the rights and freedoms set forth and to guarantee every person subject to its
jurisdiction the free and full exercise thereof. Hence, the imputation of having
violated the rights provided for in article 4 of the Convention.
31. The State’s first obligation, arising out
of article 1.1, is to respect the rights and freedoms of all individuals within
its jurisdiction. In regard to this obligation, the Court has stated that it is
a principle of international law that the State answers for the acts of its
agents and for their omissions, even if they are acting outside their sphere of
authority or in violation of national law. Furthermore, according to the Court,
any violation of the rights recognized by the Convention is to be imputed to the
State if the violation is "carried out by an act of public authority or by
persons who use their position of authority." (Velásquez
Rodríguez Case. Judgment
op.cit. paragraphs 170 and 172.)
32. The Commission concludes that the
extra-judicial execution of Héctor Pérez Salazar and the subsequent cover-up
are acts that were perpetrated by agents of the State, which means that the
Peruvian State thus violated the rights of victims established in article 1.1
and linked to article 4 of the Convention.
33. The second obligation established in article
1.1 is to guarantee the free and full exercise of the rights and freedoms
recognized in the Convention. In this regard, the Court’s jurisprudence states
that this obligation implies that each State which is a party to the Convention
has a duty "to organize the governmental apparatus and, in general, all the
structures through which public power is exercised, that they are capable of
juridically ensuring the free and full enjoyment of human rights. As a
consequence of this obligation, the States must prevent, investigate, and punish
any violation of the rights recognized by the Convention and moreover, if
possible attempt to restore the right violated and provide compensation as
warranted for damages resulting from the violation." (Velásquez
Rodríguez Case. Judgment
op.cit., paragraph 166.)
34. The response of the State to the Commission's
confidential article 50 report is designed to afford the State an opportunity to
demonstrate how it is complying with the Commission's recommendations.
As the Inter-American Court recently stated in the Loayza Tamayo Case
"...if a State signs and ratifies an international treaty, especially if it
deals with human rights, as is the case of the American Convention, it is
obliged to use its best efforts in carrying out the recommendations of an organ
of protection such as the Inter-American Commission which is, furthermore, one
of the principal organs of the Organization of American States. . .".
35. Peru, in its response dated August 25, 1997,
informed the Commission that it could not prove the responsibility of the
accused, Captain Alí Pérez Oblitas, who had been tried for the homicide of
Héctor Pérez Salazar in 1992. As a consequence, the case was closed and
no new investigation was undertaken to find those who had committed the crime.
36. The Peruvian Amnesty Laws, Laws Nos. 26479
and 26492, effectively tie the hands of the State from undertaking any
investigation of any forced disappearance case or any other human rights
violation committed by a member of the Armed Forces, or any other perpetrator,
during the period May 1980 - June 14, 1995. The Amnesty Laws cover all
military, police and civilian officials, whether they have been arraigned,
investigated, tried, indicted or convicted before a regular or special court for
common or military crimes for any event, stemming from or originating on the
occasion of, or as a consequence of, the struggle against terrorism, that may
have been committed individually or by a group during this period.
An amnesty, by its nature, removes the criminal element from the conduct and the
penalty, if the individual has been convicted or served a sentence, is
considered never to have been enforced.
37. In the case of the Peruvian Amnesty Law No.
26479, article 6 provides:
The facts or crimes covered by the present amnesty, as well as the
dismissals and acquittals, are not susceptible of investigation,
inquiry or summary procedure; resulting in the definitive filing of all
judicial proceedings in process or pending enforcement. (Emphasis added)
summary, this Law provides that the instant case is not susceptible of
investigation, in flagrant disregard of the Peruvian State's obligations under
the American Convention and the jurisprudence of both the Commission and the
Inter American Court of Human Rights.
38. Amnesty Laws frustrate and run contrary to a
State's obligation to investigate and punish those responsible for human rights
violations whether those responsible be members of the military or
civilians. The expectation of an eventual amnesty casts a blanket of
impunity over the Armed Forces or any non-military perpetrator, enabling them to
commit any atrocity in the name of their cause, and such a climate breeds
inevitable excess and contempt for the rule of law.
An amnesty in one country in the region which has ended its civil conflict,
breeds the expectation of an amnesty in a second, albeit the latter is still in
a state of internal conflict. A state policy of impunity, enshrined in
amnesty laws, eventually leads to a loss of prestige and professionalism of the
military in the eyes of the rest of the population.
39. In the case of an extrajudicial execution,
the State has the duty to investigate the way in which the killing occurred,
identify the agents responsible, punish the guilty, and indemnify the family of
the victim. In the case with which we are concerned, these obligations have not
been met, by reason of which the Commission concludes that the State of Peru has
violated article 1.1 because it did not guarantee the enjoyment of Héctor
Pérez Salazar’s rights.
40. Based on the considerations laid out in this
report, the Commission has come to the following conclusion and recommendations:
i. That agents of the security
forces of the State of Peru proceeded arbitrarily to deprive Héctor Pérez
Salazar of his life, by virtue of which the State of Peru is guilty of violating
the right to life (Article 4) as well as the general obligation to respect and
ensure the exercise of this right established article 1.1 of the Convention.
i. The Commission recommends to
the State of Peru that through the appropriate agencies it initiate a serious,
impartial and effective investigation of the case with the aim of locating the
remains of Héctor Pérez Salazar as well as identifying those guilty of his
extra-judicial execution, and that through appropriate criminal trial
proceedings it punish them with sentences suited to the gravity of the
above-mentioned violations. Consequently, the Commission recommends that
the Peruvian State render without force any internal measure, legislative or of
any other nature, which tends to impede the investigation, trial or punishment
of those persons responsible for the extrajudicial execution of Héctor Pérez
Salazar. To this end the Peruvian State should declare Laws Nº 26479 and
Nº 26492 to be without force.
ii. That the State of Peru grant an
appropriate indemnification to the family of Héctor Pérez Salazar, including
fair compensation for the suffering arising from not having found his body and
given it burial.
41. The Commission considered this case again
during its 97th regular session and on October 16, 1997, adopted Report No.
43/97, its article 51 report on the case and transmitted it to the State of Peru
on October 24, 1997. The Commission requested Peru to adopt reparatory
measures in this case within a period of two months from the date of
transmittal, in order for it to decide on the publication of the report.
42. The Peruvian State replied to the Commission by Note
7-5-M-467 dated December 29, 1997 in which the Government stated that it
reaffirmed its conclusions set forth in Note No. 7-5-M/215 of June 17, 1997,
regarding this case. The Commission considered this case again during its
98th regular session and on February 19, 1998, it took the decision to publish
43. In virtue of the fact that the Peruvian State
responded expressing its decision to not comply with the recommendations issued
by the Commission for the reasons expressed therein, and in conformity with
articles 51.3 of the American Convention and 48 of its Regulations, the
Commission decides to reiterate the conclusion and recommendations in chapters V
and VI supra, to make public the present report and to include it in its
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