INFORME Nº 45/00
petition submitted to the Inter-American Commission on Human Rights (hereinafter
"the Commission") by the non-governmental organization Asociación
Pro Derechos Humanos (APRODEH) on February 4, 1991, it was alleged that the
Republic of Peru (hereinafter "Peru," "the State," or
"the Peruvian State") violated the human rights of Messrs. Manuel Mónago
Carhuaricra and Eleazar Mónago Laura, when they were detained on September 9,
1990, by members of the military, and then disappeared.
The State alleges that Messrs. Mónago were not detained by military
forces. The Commission concludes
that Peru violated, to the detriment of the above-named individuals, the rights
set forth at Articles 7, 5, and 8 of the American Convention on Human Rights
(hereinafter "the Convention" or "the American Convention")
in conjunction with the provisions at Article 1(1), and makes the pertinent
recommendations to the Peruvian State.
PROCESSING BEFORE THE COMMISSION
March 14, 1991, the Commission opened the case, transmitted the pertinent parts
of the complaint to the Peruvian State, and asked that it provide information
within 90 days. The State answered
on November 29, 1991. On May 24,
1999, both parties were asked to provide the Commission updated information on
the case, and the Commission placed itself at their disposal to try to reach a
friendly settlement. On July 26,
1999, the State reiterated earlier arguments and stated that it did not consider
it advisable to initiate a friendly settlement procedure.
Accordingly, the Commission considered the possibility of reachinga
friendly settlement to be exhausted.
POSITIONS OF THE PARTIES
to the petitioner, on September 9, 1990, Messrs. Manuel Mónago Carhuaricra and
Eleazar Mónago Laura, father and son, 35 and 13 years of age, respectively,
were detained in Sogormo, district and province of Oxapampa, by members of the
military from the Puente Paucartambo Base, under the command of a lieutenant by
the last name of Vidal.
further indicates that the members of the military entered the home of Mr.
Manuel Mónago Carhuaricra at approximately 1:30 a.m., and, not finding him,
took his son, Eleazar Mónago Laura, who they forced to lead them to where his
father was; he spent the nights at the "Independencia"
secondary school at Sogormo, as the security guard. On reaching the school, the members of the military detained
Mr. Mónago Carhuaricra.
points out that on the morning of September 9, 1990, Mrs. Aquila Laura de Mónago,
wife and mother of the victims, went to the Puente Paucartambo Military Base,
and there a soldier informed her that the chief of the base was Lieutenant
Vidal, but that he was not present at the time, as the night before he had gone
out on an operation, in the direction of Sogormo, and had yet to return.
Petitioner argues that Mrs. Aquila Laura de Mónago returned to the same
military base on September 11, 1990, but that she was not received, as there was
a celebration at the base, and the members of the military were drunk, and were
firing their weapons, so Mrs. Laura de Mónago decided to leave.
adduces that as her efforts had not been fruitful, Mrs. Laura de Mónago went to
the city of Oxapampa, where she communicated the disappearance of her husband
and son to the Educational Services Unit (USE), the administrative organ of the
Ministry of Education responsible for her husband's place of work.
Mrs. Laura de Mónago was received by a lawyer from USE, who went with
her to the Military Base at Oxapampa. The
troops at that Base communicated by radio message with the Puente Paucartambo
Base, where it was denied he had been detained or that Lt. Vidal had gone out on
any operation towards Sogormo.
states that Mrs. Laura de Mónago proceeded to file the respective complaint
with the Public Ministry, to whom the Army also denied the detention.
In addition, Mrs. Laura de Mónago took new initiatives at the Oxapampa
military base, where a commander, who did not identify himself, told her he had
received there other complaints, for rape and robbery, involving Lt. Vidal.
The commander indicated to her that if she wished to obtain any
information, she should lodge a complaint in Lima, to avoid being subject to
retaliation. Notwithstanding all of
her efforts, Messrs. Mónago Carhuaricra and Mónago Laura did not appear.
State responded on November 29, 1991, and argued that Messrs. Mónago
Carhuaricra and Mónago Laura, according to the Ministry of Defense of Peru,
"have at no time been the subject of intervention by the forces of order of
the 31st Infantry Division, this situation having been communicated with
official communications Nos. 398 B-2 of July 2, 1990, 412 B-2 of July 13, 1990,
and 437 B-2 of July 25, 1990, directed to the Provincial Prosecutor of the
Fourth Mixed Provincial Prosecutorial Office of Huancayo, and official
communication Nº 152 B-2 of May 21, 1991, to the Provincial Prosecutor of the
Special Prosecutor's Office of the Office of the Human Rights Ombudsman of
Considerations on admissibility
The Commission now analyzes the admissibility requirements of a petition
established in the American Convention.
Subject-matter jurisdiction, personal jurisdiction, and jurisdiction
based on time and place of the events
allegations in this case describe facts that would be violative of several
rights recognized and enshrined in the American Convention that took place
within the territorial jurisdiction of Peru when the obligation to respect and
guarantee the rights established therein were in force for the State.
Therefore, the IACHR has subject-matter jurisdiction, personal
jurisdiction, and jurisdiction based on when and where the alleged violations
took place, so as to be able to take cognizance of the merits in the case.
Exhaustion of domestic remedies
11. The fact
that the first stages of the process, i.e., within the first 90 days that it was
given to provide information about the facts alleged, the State did not present
any objection on grounds of failure to exhaust domestic remedies, will be
sufficient for the Commission to consider the requirement established at Article
46(1)(a) of the Convention to have been met.
Commission recently decided, together, a group of 35 cases that involved 67
persons disappeared in various departments of Peru during the period from 1989
to 1993, and analyzed in detail the general phenomenon of disappearances in
Peru. In those reports the
Commission notes that habeas corpus
was the adequate remedy in cases of disappearance for trying to find a person
presumably detained by the authorities, to inquire into the legality of the
detention, and, if possible, to secure his or her release.
The IACHR also concluded that for the purposes of admissibility of
complaints before this body, it was not necessary to file a habeas
corpus remedy--or any other--for the purpose of exhausting domestic
remedies, since from 1989 to 1993 there was a practice or policy of
disappearances ordered or tolerated by various public authorities that rendered
the habeas corpus remedy totally ineffective in cases of disappearance.
In those reports the Commission found as follows:
stated earlier, the relatives of the victims applied on numerous occasions to
various judicial, executive (military), and legislative authorities to locate
the victims and secure their release. These efforts usually included writs of habeas
corpus; complaints to the Attorney General, the Chief Prosecutor in San Martín,
the Special Attorney for Human Rights in San Martín, the Office of the Special
Ombudsman, and the Offices of the Provincial Prosecutors; and appeals to the
Ministry of Defense, the Army High Command, the Office of the Inspector General
of the Army, the Political-Military Commander in Chief, and the commanding
officers at the military bases concerned. Despite all these efforts, the victims
were never located and never reappeared.
these procedures and appeals by the relatives of the victims proved fruitless,
because the same people who had allegedly brought about the disappearances and
who hid the evidence played a key part in the results of the investigations.
None of the writs of habeas corpus was successful in any of the cases. Likewise, the
complaints filed with the offices of the government prosecutors led to little
more than a request for information from the military, who would deny the
detention. The cases were then shelved without ever being brought before the
competent court of the first instance. It should be added that generally the
Peruvian Government's replies to the Commission denying responsibility for the
disappearances are based precisely on photocopies, sent to the Commission, of
official communications in which the military itself denies having carried out
Commission considers it important to provide certain clarifications regarding
the exhaustion of domestic remedies in connection with the forced disappearances
in Peru. In this regard, it should be noted that the Inter-American Court of
Human Rights has held, in connection with the exhaustion of domestic remedies,
that, "in keeping with the object and purpose of the Convention and in
accordance with an interpretation of Article 46 (1)(a) of the Convention, the
proper remedy in the case of the forced disappearance of persons would
ordinarily be habeas corpus, since those cases require urgent action by the
authorities" (and it is) "the normal means of finding a person
presumably detained by the authorities, of ascertaining whether he is legally
detained and, given the case, of obtaining his liberty." Thus,
when a writ of habeas corpus is
presented in the case of persons who were detained and then disappeared, and
nothing comes of it because the victims are not located, those are sufficient
grounds for finding that domestic remedies have been exhausted.
the Court has also ruled that domestic remedies must be effective, that is, they
must be capable of producing the results for which they were intended, and that
if there is proof of a practice or policy, ordered or tolerated by the
government, the effect of which is to prevent certain persons from availing
themselves of internal remedies that would normally be available to all others,
resorting to those remedies becomes a senseless formality, so that the
exceptions to the exhaustion of domestic remedies provided for in Article 46(2)
of the Convention would be fully applicable.
its analysis of the substance of the case, set forth in section VI below, the
Commission finds that, during the period in which the alleged events took place,
there existed in Peru a practice or policy of disappearances, ordered or
tolerated by various government authorities. For that reason, and given that
that practice rendered writs of habeas
corpus completely ineffective in cases of disappearances, the
Commission finds that, for purposes of admissibility of complaints before this
Commission, it was not necessary to attempt the habeas
corpus remedy--or any other--in order to exhaust domestic remedies.
Consequently, the Commission considers that the rule regarding exceptions to the
exhaustion of domestic remedies established in Article 46(2) of the Convention
is fully applicable.
13. The Commission considers the foregoing
considerations fully applicable to this case, as it involved an alleged forced
disappearance in 1990 imputed to the Peruvian Army.
The disappearance alleged in this case occurred during the time
(1989-1993) when, the Commission determined, as set forth in the reference cited
above, that there was a practice or policy of disappearances ordered or
tolerated by several public authorities that rendered the habeas
corpus remedy completely ineffective in cases of disappearance, thus the
Commission established that for the purpose of the admissibility of complaints
before the Commission, it was not necessary to bring a habeas corpus action--or any other--for the purpose of exhausting
domestic remedies. Therefore, the
Commission concludes that this case fits within the exception at Article 46(2)
of the Convention, according to which the exhaustion requirement laid down at
Article 46(1)(a) of the Convention is not applicable when "the domestic
legislation of the state concerned does not afford due process of law for the
protection of the right or rights that have allegedly been violated."
Time period for submission
respect to the requirement set forth at Article 46(1)(b) of the Convention,
according to which the petition must be submitted within six months from the
date on which the victim is notified of the final judgment that exhausted
domestic remedies, the Commission observes that this requirement does not apply
in this case. This is because the
exception to the exhaustion requirement at Article 46(2)(a) of the Convention,
as set forth in the previous paragraph, also holds--by mandate of Article 46(2)
of the Convention--for the requirement concerning the time for submission of the
petitions provided for at Article 46(1)(b) of the Convention.
Commission, without prejudging on the merits, should add that the forced
disappearance of a person by state agents constitutes a continuing violation by
the State that persists, as a permanent infraction of several articles of the
American Convention, until the person or corpse appears.
Therefore, the requirement concerning the time period for submission of
petitions, set forth at Article 46(1)(b) of the American Convention, does not
apply to such cases.
Duplicity of procedures and res
Commission understands that the subject matter of the petition is not pending
before any other procedure for international settlement, nor does it reproduce a
petition already examined by this or any other international organization.
Therefore, the requirements established at Articles 46(1)(c) and 47(d) are also
Characterization of the facts
Commission considers that the petitioner's presentation refers to facts which,
if true, could characterize a violation of rights guaranteed in the Convention,
for, as established supra, the issue
submitted to the Commission is the forced disappearance of two persons.
18. For all
the reasons set forth above, the Commission considers that it has jurisdiction
to take cognizance of this case, and that pursuant to Articles 46 and 47 of the
American Convention the petition is admissible, in the terms set forth above.
Considerations on the merits
determined its jurisdiction to hear this case, and that in keeping with Articles
46 and 47 of the American Convention the petition is admissible, the Commission
now moves on to set forth its decision on the merits, bearing in mind that the
parties did not agree to initiate a friendly settlement procedure, and that the
Commission already has sufficient grounds to make a decision on the merits.
State practice of disappearances
In relation to the analysis of the merits of the present case, the
Commission regards as pertinent to reiterate the following considerations
concerning the practice of forced disappearances in Perú that the Commission
set forth recently, when it decided an accumulated group of 35 cases involving
67 “disappeared” persons in different provinces of Perú during 1989-1993.
To this respect, the Commission ruled in the following terms, which completely
ratifies in the present case:
the Commission decided to combine the cases under review because it considers
that the alleged events suggest a pattern of disappearances brought about by
Peruvian State agents around the same time period (1989-1993), within the
context of what are called anti-subversive activities, and employing the same modus
Commission therefore decided to look into the possible existence of a practice
of forced disappearances brought about by the Peruvian State, or at least
tolerated by it, during the period in question (1989-1993). The Commission
cannot ignore, to use the words of the Inter-American Court, "the special
seriousness of finding that a State Party to the Convention has carried out or
has tolerated a practice of disappearances in its territory." Nonetheless,
it is crucial that the Commission, in accordance with the functions assigned to
it, carry out that analysis, not only for the purposes of this report, but also
to arrive at the truth regarding a policy of human rights violations, with all
its possible repercussions for the clarification of other cases that have come
to the attention of this Commission.
this regard, it should be pointed out that the criteria used to evaluate
evidence in an international court of human rights have special standards, which
empower the Commission to weigh the evidence freely and to determine the amount
of proof necessary to support the judgment.
modus operandi used, according to the
petitions received by the Commission, in the arrests and disappearances in the
cases in question, involving […] shows an overall pattern of behavior that can
be considered admissible evidence of a systematic practice of disappearances.
Commission has received a very large number of complaints of disappearances in
Peru, many of which pertain to multiple disappeared persons. In its 1993 Report
on the Situation of Human Rights in Peru, the Commission discussed the problem
of the forced disappearance of persons in that country and indicated that it had
already passed 43 resolutions regarding individual cases involving 106 victims.
Subsequently, the Commission has continued to write reports on the matter.
Moreover, the Peruvian State itself has officially recognized the existence of
forced disappearances and has reported on 5,000 complaints of disappearances
between 1983 and 1991. The large number of complaints of this type is
a clear indication, in the Commission’s view, that disappearances in Peru
followed an official pattern devised and carried out in a systematic manner.
indication is supported by the fact that, at the United Nations (UN), the
Working Group on Enforced or Involuntary Disappearances, established by the
Commission on Human Rights in 1980, had received 3,004 cases of forced
disappearances in Peru. That Group points out that:
vast majority of the 3,004 cases of reported disappearances in Peru occurred
between 1983 and 1992, in the context of the Government's fight against
terrorist organizations, especially the "Shining Path" (Sendero
Luminoso). In late 1982, the armed forces and police undertook a
counter-insurgency campaign and the armed forces were granted a great deal of
latitude in fighting Shining Path and in restoring public order. While the
majority of reported disappearances took place in areas of the country which had
been under a state of emergency and were under military control, in particular
in the regions of Ayacucho, Huancavelica, San Martín, and Apurímac,
disappearances also took place in other parts of Peru. Detentions were
reportedly frequently carried out openly by uniformed members of the armed
forces, sometimes together with Civil Defense Groups. Some 20 other cases
reportedly occurred in 1993 in the Department of Ucayali and concerned largely
the disappearance of peasants.
Imelda Tumialán, the ad hoc Provincial Prosecutor for the Department of Junín,
has placed on record that in 1991 there were more than 100 disappearances in
that Department. Likewise, in a note dated January 9, 1992, Peru's
Assistant Attorney General pointed out that in the first 11 months of 1991 there
had been 268 complaints of disappearances, and that only a few cases had been
solved. For its part, the National Coordinating Body for Human Rights in Peru, a
recognized nongovernmental umbrella group of various Peruvian human rights
organizations, estimates that 725 persons disappeared in Peru between 1990 and
1992. The Commission has been told that reports circulating freely in Peru
indicated that military personnel, and in some cases police officers, were
carrying out disappearances. The Commission has received numerous articles and
news reports on such disappearances, published by the print media and others.
the basis of the foregoing evidence, the Commission concludes that in the
1989-1993 period there existed in Peru a systematic and selective practice of
forced disappearances, carried out by agents of, or at least tolerated by, the
Peruvian State. That official practice of forced disappearances was part of the
"fight against subversion", although in many cases it harmed people
who had nothing to do with the activities related to dissident groups.
Perpetration of the
the basis of the various items of evidence mentioned above, the Commission sees
fit to map out the steps usually involved in the above-mentioned official policy
of the victims
Commission has been told that, in general, perpetration of the disappearances
was delegated to the political military commanders and the commanding officers
at military bases. The latter imparted orders directly to the personnel who
carried out the detentions, normally the first stage of the disappearance
process. Peru's national police force was also in charge of perpetrating
disappearances, usually through DINCOTE.
often the abduction and disappearance of a person began with information
obtained by members of the intelligence service, according to which that person
was in some way linked to subversive groups, chiefly the Shining Path or the
Tupac Amaru Revolutionary Movement (MRTA). It should be pointed out that in many
instances the persons concerned were in no way involved with those subversive
groups, but were unfortunate enough to have been included, fraudulently or by
mistake, on the lists that would later lead to their disappearance.
factor that, in certain Departments and under particular circumstances, could
lead to the detention and later disappearance of many people was the fact that
they were not carrying their voter registration documents, which were used for
identification purposes. In certain cases, during checkpoint operations on
public thoroughfares, a person unable to produce an identification document upon
request was almost automatically considered a terrorist.
a person was considered "suspect", he or she was arrested; on numerous
occasions, this was the first step toward disappearance. Some arrests were
carried out openly in public, others at the victim's home, usually in the early
hours of the morning and in the presence of witnesses. Those charged with
carrying out the detentions were heavily armed soldiers or police, sometimes
dressed in civilian clothing, but most often in uniform.
the soldiers or police paid little attention to the witnesses and proceeded to
do what they came to do anyway. Arrests in people's homes were usually carried
out in front of whoever happened to be there: wives, children, fathers, mothers,
etc. Thus the normal pattern was for the personnel to arrest the victim
regardless of who might be present, with no attempt to hide the official nature
of what they were doing.
denial of the detentions
same day of the arrest, or in the days immediately following, relatives would go
to the place where the victim was detained and be told that he or she was not
being held. It should be stressed that since the arrests were usually carried
out publicly, the relatives knew where the victim had first been detained.
Nevertheless, the authorities denied the detention. As the Commission has
The fact that the military
authorities deny having carried out the detention thus merely confirms the
clandestine nature of the military operations. Detention is neither registered
nor officially admitted, in order to make it possible to employ torture during
interrogation and if need be to apply extrajudicial punishment to persons
considered to be sympathizers, collaborators, or members of the rebel groups.
variation on this practice consisted of the authorities alleging that the victim
had been released and even producing documents to show this, sometimes with a
forgery of the victim’s signature, others with his or her real signature
obtained under torture, when in fact the release had never taken place.
Torture and extrajudicial
execution of detainees
the victim did not die as a result of the torture inflicted, he or she was
generally executed in summary, extrajudicial fashion. The bodies were then
hidden by burial in secret places chosen to make their discovery practically
Amnesty for those
responsible for the disappearances
general, cases of disappearance in Peru were not seriously investigated. In
practice, those responsible enjoyed almost total impunity, since they were
carrying out an official State plan. Despite that, the authorities decided to go
even further by passing Act Nº 26.479 (the "Amnesty Act") in 1995.
Article 1 of that Law grants a blanket amnesty to all members of the security
forces and civilian personnel accused, investigated, indicted, prosecuted, or
convicted for human rights violations committed between May 1980 and June 1995.
That law was later strengthened by Act Nº 26.492, which prohibited the
judiciary from ruling on the legality or applicability of the Amnesty Law. In
its annual reports for 1996 and 1997, the Commission has addressed the issue of
those amnesty laws in the overall analysis of the human rights situation in
the Commission has been told that both laws can be rendered inapplicable by
Peruvian judges, through what is known as their "broad powers" to rule
on the constitutionality of laws--provided for in Article 138 of the Peruvian
Constitution--the Commission considers the aforesaid laws an invalid attempt to
legalize the impunity that existed in practice with regard to forced
disappearances and other serious offenses committed by agents of the State. For
example, the Commission has learned that the judges of the Constitutional Court,
who were removed by the Congress, invoked that same Article 138 of the
Constitution in their December 27, 1996, finding that Act Nº 26.657 did not
apply to President Alberto Fujimori.
The burden of proof
general principle is that, in cases of disappearance in which, in the
Commission’s view, there is sufficient evidence that the arrest was
carried out by State agents acting within the general framework of an official
policy of disappearances, it shall be presumed that the victim’s disappearance
was brought about by acts by Peruvian State agents, unless that State gives
proof to the contrary.
it is not incumbent upon the petitioners to prove that the victims have
disappeared, because it may be assumed, for lack of proof to the contrary, that
the Peruvian State is responsible for the disappearance of any person it has
detained. This is even more important in view of the aforementioned government
practice of causing disappearances. It is up to the State to prove that it was
not its agents who brought about the disappearance of the victims.
the "policy of disappearances, sponsored or tolerated by the Government, is
designed to conceal and destroy evidence of disappearances". Then,
as a result of action by the State, the petitioner is deprived of evidence of
the disappearance, since "this type of repression is characterized by an
attempt to suppress all information about the kidnapping or the whereabouts and
fate of the victim." The fact is, as established by the Inter-American
Court of Human Rights:
in contrast to domestic criminal law, in proceedings to determine human rights
violations the State cannot rely on the defense that the complainant has failed
to present evidence when it cannot be obtained without the State’s
Commission has explained in this regard that when there is proof of the
existence of a policy of disappearances sponsored or tolerated by the
Government, it is possible, using circumstantial or indirect evidence, or
through relevant logical inference, to prove the disappearance of a specific
individual when that would otherwise be impossible given the link between that
disappearance and the overall policy.
recently, the Commission has also determined that:
burden of proof lies with the State, because when the State holds a person in
detention and under its exclusive control, it becomes the guarantor of that
person’s safety and rights. In addition, the State has exclusive control over
information or evidence regarding the fate of the detained person. This is
particularly true in a disappearance case where, by definition, the family
members of the victim or other interested persons are unable to learn about the
fate of the victim.
establishes the inversion of the burden of proof for cases of disappearance in
Peru and the effects of that inversion on cases being heard by the Commission.
Considerations relating to
General Assembly of the Organization of American States (OAS) has called the
practice of the forced or involuntary disappearance of persons a crime against
humanity that strikes against the fundamental rights of the human individual,
such as personal liberty and well-being, the right to proper judicial protection
and due process, and even the right to life. In that context, the
member states of the Organization of American States (OAS) adopted, in 1994, an
Inter-American Convention on the Forced Disappearance of Persons as a
means of preventing and punishing the forced disappearance of persons in our
Commission has affirmed, in relation to the forced disappearance of persons,
procedure is cruel and inhuman. ... [It] not only constitutes an arbitrary
deprivation of freedom but also a serious danger to the personal integrity and
safety and to even the very life of the victim. It leaves the victim totally
defenseless, violating the rights to a fair trial, to protection against
arbitrary arrest, and to due process.
UN Working Group on Enforced or Involuntary Disappearances has affirmed that the
forced or involuntary disappearance of a person is a particularly odious
violation of human rights, and is
doubly paralyzing form of suffering: for the victims, frequently tortured and in
constant fear for their lives, and for their family members, ignorant of the
fate of their loved ones, their emotions alternating between hope and despair,
wondering and waiting, sometimes for years, for news that may never come. The
victims are well aware that their families do not know what has become of them
and that the chances are slim that anyone will come to their aid. Having been
removed from the protective precinct of the law and "disappeared" from
society, they are in fact deprived of all their rights and are at the mercy of
their captors. If death is not the final outcome and they are eventually
released from the nightmare, the victims may suffer for a long time from the
physical and psychological consequences of this form of dehumanization and from
the brutality and torture which often accompany it.
family and friends of disappeared persons experience slow mental torture, not
knowing whether the victim is still alive and, if so, where he or she is being
held, under what conditions, and in what state of health. Aware, furthermore,
that they too are threatened; that they may suffer the same fate themselves, and
that to search for the truth may expose them to even greater danger.
family’s distress is frequently compounded by the material consequences
resulting from the disappearance. The missing person is often the mainstay of
the family’s finances. He or she may be the only member of the family able to
cultivate the crops or run the family business. The emotional upheaval is thus
exacerbated by material deprivation, made more acute by the costs incurred
should they decide to undertake a search. Furthermore, they do not know when--if
ever--their loved one is going to return, which makes it difficult for them to
adapt to the new situation. In some cases, national legislation may make it
impossible to receive pensions or other means of support in the absence of a
certificate of death. Economic and social marginalization is frequently the
keeping with the doctrine of the Commission outlined above, the general
principle is that in cases of disappearance in which there are sufficient
indicia of evidence, in the view of the Commission, that the detention was
presumably effectuated by State agents in the general context of an official
policy of disappearances, the Commission will presume that the victims were
disappeared by agents of the Peruvian State, unless that State has proven
said considerations to this case, the Commission, in relation to the victims'
detention, observes that the petitioner alleges that Messrs. Manuel Mónago
Carhuaricra and Eleazar Mónago Laura were detained on September 9, 1990, at
Sogormo, district and province of Oxapampa, by members of the military from the
Puente Paucartambo Base, and that the State denies having carried out such
23. In this
respect, and based on the facts narrated by the petitioner and the testimony
taken from Mrs. Laura de Mónago, wife and mother of the victims, the modus
operandi of the detention, and all other evidentiary indicia--which include
the steps taken and remedies pursued internally aimed at locating and winning
the release of the victims; the reports prepared by the military denying that
the detentions had been effectuated by members of the military, without the
Peruvian State having carried out a serious judicial investigation of the grave
events; and the circumstance that the detentions occurred in 1990, when, as
established by the Commission, there was a systematic and selective practice of
forced disappearances carried out by agents of the Peruvian State, or at least
tolerated by the State--the Commission concludes that it has sufficient grounds
for establishing the veracity of the events denounced, with respect to the
detention of the victims.
24. Based on
the foregoing, the Commission considers it true that the victims were detained
by members of the Peruvian Army from the Puente Paucartambo Base, on September
9, 1990, at Sogormo, district and province of Oxapampa.
and in keeping with the above-noted doctrine of the Commission, the Peruvian
State had the burden of proving that it did not disappear Messrs. Mónago
Carhuaricra and Mónago Laura. In
this connection, the Commission observes that the State presented no evidence
tending to show that it did not disappear Messrs. Mónago Carhuaricra and Mónago
Laura, but rather denied that it had detained them.
26. Based on
the reasons set forth above, the Commission concludes that the Peruvian State,
through members of the Army from the Puente Paucartambo Base, detained Messrs.
Manuel Mónago Carhuaricra and Eleazar Mónago Laura on September 9, 1990, at
Sogormo, in the district and province of Oxapampa, and that it then proceeded to
detention and subsequent disappearance followed the characteristic pattern:
the detention of the victims by military agents; an official denial of
responsibility for the disappearance; the failure of the public authorities to
carry out an investigation into the situation of the victims; the
ineffectiveness of domestic remedies; the torture and possible extrajudicial
execution of the victims; and absolute impunity, reinforced by the subsequent
Violation of the victims' human rights
Commission now proceeds to analyze the specific violations by the Peruvian State
of the rights set forth in the Convention implicit in the disappearance of
Messrs. Manuel Mónago Carhuaricra and Eleazar Mónago Laura.
to Personal Liberty (Article 7 of the Convention)
American Convention establishes:
7. Right to Personal Liberty
Every person has the right to personal liberty and security.
No one shall be deprived of his physical liberty except for the reasons
and under the conditions established beforehand by the constitution of the State
Party concerned or by a law established pursuant thereto.
No one shall be subject to arbitrary arrest or imprisonment.
Anyone who is detained shall be informed of the reasons for his detention
and shall be promptly notified of the charge or charges against him.
Any person detained shall be brought promptly before a judge or other
officer authorized by law to exercise judicial power and shall be entitled to
trial within a reasonable time or to be released without prejudice to the
continuation of the proceedings. His release may be subject to guarantees to
assure his appearance for trial.
Anyone who is deprived of his liberty shall be entitled to recourse to a
competent court, in order that the court may decide without delay on the
lawfulness of his arrest or detention and order his release if the arrest or
detention is unlawful. In States Parties whose laws provide that anyone who
believes himself to be threatened with deprivation of his liberty is entitled to
recourse to a competent court in order that it may decide on the lawfulness of
such threat, this remedy may not be restricted or abolished. The interested
party or another person in his behalf is entitled to seek these remedies.
No one shall be detained for debt. This principle shall not limit the
orders of a competent judicial authority issued for nonfulfillment of duties of
A detention is arbitrary and illegal when not carried out for the
reasons, and according to the formalities, established by law; when carried out
without adherence to the standards established by law; and when it involves
misuse of the authority to arrest--in other words, when carried out for purposes
other than those envisaged and stipulated by law. The Commission has also
pointed out that detention for improper ends is, in itself, a form of penalty
without due process, or extralegal punishment, which violates the guarantee of a
In this case, Peruvian citizens Manuel Mónago Carhuaricra and
Eleazar Mónago Laura were illegally and arbitrarily detained by members of the
It is necessary to recall the circumstances in Peru at that time, which
generally affected most of the Departments where detentions and disappearances
occurred. Continuous raids by armed groups had generated permanent unrest in the
local population. For that reason, a "state of exception" had been
declared in various Departments, which was, prima
facie, justified by the crisis faced by the Peruvian State in fighting
terrorism. By virtue of that state of emergency, in numerous Departments Article
2(20)(g) of the 1979 Constitution had been suspended,
which meant that the military was legally empowered to detain a person without a
warrant from a competent judge, even if an individual was not being caught in
Despite the prima facie
legality of this measure, the security forces are not thereby entitled, without
restrictions, to detain citizens arbitrarily. The suspension of the judicial
warrant requirement for detention does not mean that public officials are
exempted from observing the legal requirements for such detentions, nor does it
annul jurisdictional controls over the manner in which detentions are carried
The suspension of the right to personal liberty authorized in Article 27
of the American Convention on Human Rights can never be absolute. There are
basic principles at the heart of any democratic society that the security forces
must respect in order to carry out a detention, even in a state of emergency.
The legal prerequisites for detention are obligations that State authorities
must respect, in keeping with their international commitment under the
Convention to protect and respect human rights.
Secondly, in accordance with those principles, preventive detention by
the military or police must be designed solely to prevent the escape of a person
suspected of having committed a crime and thereby ensure his appearance before a
competent court, either for trial within a reasonable period of time or for his
release. No State may impose a sentence without a trial.
In a constitutional, democratic State in which the rule of law and the
separation of powers are respected, all penalties established by law should be
imposed by the judiciary after guilt has been established in a fair trial with
all the procedural guarantees. The existence of a state of emergency does not
authorize the State to disregard the presumption of innocence, nor does it
confer upon the security forces the right to exercise an arbitrary and unlimited
On this subject, Article 7(5) of the American Convention establishes that
"Any person detained shall be brought promptly before a judge or other
officer authorized by law to exercise judicial power and shall be entitled to
trial within a reasonable time or to be released...." Paragraph 6 of that
article adds: "Anyone who is deprived of his liberty shall be entitled to
recourse to a competent court, in order that the court may decide without delay
on the lawfulness of his arrest or detention (...)". The Commission has
also stated that anyone deprived of his liberty must be kept in an officially
recognized detention center and brought, without delay, in accordance with
domestic legislation, before a competent judicial authority. Should the
authority fail to comply with this legal obligation, the State is duty-bound to
guarantee the detainee’s right to apply for an effective judicial remedy to
allow judicial verification of the lawfulness of his detention.
The Commission concludes that the Peruvian State is responsible for
violating the right to personal liberty and security by arbitrarily imprisoning
Peruvian citizens Manuel Mónago Carhuaricra and Eleazar Mónago Laura; for
violating their right of recourse to a competent judge or court that would rule
on the lawfulness of their arrest; and, thereby, for violating Article 7 of the
American Convention on Human Rights.
to Humane Treatment (Article 5 of the Convention)
The American Convention establishes:
5. Right to Humane Treatment
Every person has the right to have his physical, mental, and moral
No one shall be subjected to torture or to cruel, inhuman, or degrading
punishment or treatment. All persons deprived of their liberty shall be treated
with respect for the inherent dignity of the human person.
Punishment shall not be extended to any person other than the criminal.
Accused persons shall, save in exceptional circumstances, be segregated
from convicted persons, and shall be subject to separate treatment appropriate
to their status as unconvicted persons.
Minors while subject to criminal proceedings shall be separated from
adults and brought before specialized tribunals, as speedily as possible, so
that they may be treated in accordance with their status as minors.
Punishments consisting of deprivation of liberty shall have as an
essential aim the reform and social readaptation of the prisoners.
Since forced disappearance involves violation of multiple rights,
violation of the right to humane treatment is implicit in the cases of Messrs.
Manuel Mónago Carhuaricra and Eleazar Mónago Laura.
In this regard, the Court has stated that "prolonged isolation and
deprivation of communication are in themselves cruel and inhuman treatment,
harmful to the psychological and moral integrity of the person and a violation
of the right of any detainee to respect for his inherent dignity as a human
being. Such treatment, therefore, violates Article 5 of the Convention, which
recognizes the right to the integrity of the person.....".
Accordingly, the Commission, on the basis of the facts presented, is
convinced, by way of presumptive evidence, that Manuel Mónago Carhuaricra and
Eleazar Mónago Laura were tortured. The circumstances in which the victims were
detained, kept hidden, isolated, and in solitary confinement, and their
defenselessness as a result of being denied and prevented from exercising any
form of protection or safeguards of their rights make it perfectly feasible for
the armed forces to have tortured the victims with a view to extracting
information about subversive groups or units. Accordingly, the Commission
concludes that the Peruvian State violated the rights guaranteed to the victims
under Article 5 of the Convention.
to Life (Article 4 of the Convention)
The American Convention establishes:
Every person has the right to have his life respected. This right shall
be protected by law and, in general, from the moment of conception. No one shall
be arbitrarily deprived of his life.
2. In countries that have not abolished
the death penalty, it may be imposed only for the most serious crimes and
pursuant to a final judgment rendered by a competent court and in accordance
with a law establishing such punishment, enacted prior to the commission of the
crime. The application of such punishment shall not be extended to crimes to
which it does not presently apply.
The death penalty shall not be reestablished in states that have
In no case shall capital punishment be inflicted for political offenses
or related common crimes.
Capital punishment shall not be imposed upon persons who, at the time the
crime was committed, were under 18 years of age or over 70 years of age; nor
shall it be applied to pregnant women.
Every person condemned to death shall have the right to apply for
amnesty, pardon, or commutation of sentence, which may be granted in all cases.
Capital punishment shall not be imposed while such a petition is pending
decision by the competent authority.
The Inter-American Court of Human Rights has stated that the forced
disappearance of persons "often involves secret execution without trial,
followed by concealment of the body to eliminate any material evidence of the
crime and to ensure the impunity of those responsible. This is a flagrant
violation of the right to life, recognized in Article 4 of the
Convention...". The Court also ruled that the fact that a person has
disappeared for seven years creates a reasonable presumption that he or she was
In the cases of Messrs. Manuel Mónago Carhuaricra and Eleazar Mónago
Laura, it has been established their “dissapearance” by State agents, and
there is sufficient evidence to support the presumptionthat they are dead--given
that more than nine years have elapsed since their detention and
disappearance--and the presumption that those responsible are agents of the
Therefore, the Commission finds that the Peruvian State violated the
victims’ right to life, a fundamental right protected under Article 4 of the
Convention, which states that "Every person has the right to have his life
respected... No one shall be arbitrarily deprived of his life."
to Juridical Personality (Article 3 of the Convention)
The American Convention establishes:
3. Right to Juridical Personality
person has the right to recognition as a person before the law.
Article 3 of the American Convention on Human Rights establishes that
every person has the right to recognition as a person before the law. When
Messrs. Manuel Mónago Carhuaricra and Eleazar Mónago Laura were detained and
then "disappeared" by State agents, they were excluded from the legal
and institutional framework of the Peruvian State. In that sense, the forced
disappearance of persons constitutes the negation of their very existence as
human beings recognized as persons before the law.
Thus, the Commission finds that Peru violated the victims’ right to
recognition as persons before the law, enshrined in Article 3 of the Convention.
to Judicial Protection (Article 25 of the Convention)
The Amercian Convention establishes:
25. Right to Judicial Protection
Everyone has the right to simple and prompt recourse, or any other
effective recourse, to a competent court or tribunal for protection against acts
that violate his fundamental rights recognized by the constitution or laws of
the state concerned or by this Convention, even though such violation may have
been committed by persons acting in the course of their official duties.
The States Parties undertake:
to ensure that any person claiming such remedy shall have his rights
determined by the competent authority provided for by the legal system of the
to develop the possibilities of judicial remedy; and
to ensure that the competent authorities shall enforce such remedies when
From the information provided by the parties, it is clear that the
Peruvian State has not complied with its obligation to investigate the facts of
this case and initiate judicial proceedings.
The Inter-American Court of Human Rights has stated that the principles
of international law "refer not only to the formal existence of such
remedies, but also to their adequacy and effectiveness, as shown by the
exceptions set out in Article 46(2)."
It has also made it clear that the failure to provide effective, not merely
formal, judicial remedies not only entails an exception to the rule that
domestic remedies must be exhausted, but also constitutes a violation of Article
25 of the Convention.
Peruvian law establishes that in all cases of offenses against the public
order, the Office of the Attorney General represents both the State and the
victim. The Office of the Attorney General is obligated to participate in
investigating and prosecuting the crime. Consequently, it should promote and
undertake whatever action may be required (provision of evidence, inspections,
or any other) to establish the veracity of the complaint, to identify those
responsible, if applicable, and to bring criminal charges against them.
The jurisprudence of the Inter-American Court of Human Rights confirms
the provisions of domestic law when it refers to the obligation of States and
says, with regard to the previous point, that "The State has a legal duty
(...) to carry out a serious investigation of violations committed within its
jurisdiction, to identify those responsible, to impose the appropriate
punishment and to ensure the victim adequate compensation."
The State must not evade, under any pretext, its duty to investigate a
case involving violation of fundamental human rights. The Court says as much
when it states that "the investigation... must be undertaken in a serious
manner and not as a mere formality preordained to be ineffective. An
investigation must have an objective and be assumed by the State as its own
legal duty, not as a step taken by private interests that depends upon the
initiative of the... family... without an effective search for the truth by the
The right to be brought before a competent judge is a fundamental
safeguard for the rights of any detainee. As the Inter-American Court of Human
Rights has stated, judicial supervision of detention, through habeas
corpus, "performs a vital role in ensuring that a person’s life and
physical integrity are respected, in preventing his disappearance or the keeping
of his whereabouts secret and in protecting him against torture or other cruel,
inhumane, or degrading punishment or treatment."
Precisely for that reason, Article 27 of the American Convention on Human
Rights has established that essential judicial guarantees safeguarding certain
fundamental rights cannot be suspended. As the Inter-American Court of Human
Rights has ruled, "from Article 27(1), moreover, comes the general
requirement that in any state of emergency there be appropriate means to control
the measures taken, so that they are proportionate to the needs and do not
exceed the strict limits imposed by the Convention or derived from it."
The Court has also stated that the judicial nature of those means
presupposes "the active involvement of an independent and impartial
judicial body having the power to pass on the lawfulness of measures adopted in
a state of emergency and that "it must also be understood that the
declaration of a state of emergency" whatever its breadth or denomination
in internal law "cannot entail the suppression or ineffectiveness of the
judicial guarantees that the Convention requires States Parties to establish for
the protection of the rights not subject to derogation or suspension by the
state of emergency."
According to the Inter-American Court of Human Rights, this also includes
the right to a fair trial enshrined in Article 8, which "includes the
prerequisites necessary to ensure the adequate protection of those persons whose
rights or obligations are pending judicial determination."
The Court concluded that "the principles of due process of law cannot
be suspended in states of exception insofar as they are necessary conditions for
the procedural institutions regulated by the Convention to be considered
Such a lack of access to effective domestic remedies against acts that
violate fundamental rights constitute a violation by the Peruvian State of
Articles 8 and 25 of the Convention.
to respect and guarantee rights
In this case, it has been shown that the Peruvian State failed to comply
with the obligation, set forth in Article 1(1) of the Convention, "to
respect the rights and freedoms recognized herein and to ensure to all persons
subject to their jurisdiction the free and full exercise of those rights and
freedoms," because it violated rights established in Articles 3, 4, 5, 7, 8
and 25 of the Convention.
The first obligation of States, under Article 1(1) of the Convention, is
to respect the rights and freedoms of all persons subject to their jurisdiction.
With regard to this obligation, the Court ruled that "under international
law a State is responsible for the acts of its agents… and for their
omissions, even when those agents act outside the sphere of their authority or
violate internal law". It ruled also that "any violation of rights
recognized by the Convention carried out by an act of public authority or by
persons who use their position of authority is imputable to the State."
The Commission concludes that the forced disappearance of Messrs. Manuel
Mónago Carhuaricra and Eleazar Mónago Laura were acts perpetrated by agents of
public authority, and that, therefore, the Peruvian State violated the rights of
those victims, enshrined in Article 1(1) of the Convention, in relation to
violations of Articles 3, 4, 5, 7, 8 and 25 of the Convention.
The second obligation set forth in Article 1(1) is to ensure free and
full exercise of the rights and freedoms recognized in the Convention. On this
the Court’s jurisprudence establishes that: "This obligation implies the
duty of the States Parties to organize the governmental apparatus, and, in
general, all the structures through which public power is exercised, so that
they are capable of juridically ensuring the free and full enjoyment of human
rights. As a consequence of this obligation, States must prevent, investigate,
and punish any violation of the rights recognized by the Convention …"
In the event of a "forced disappearance", the State is
obligated to ascertain the whereabouts and situation of the victim, punish those
responsible, and make reparation to the family members. In the case at hand,
these obligations have not been met. Therefore, the Commission concludes that
the Peruvian State has violated Article 1(1) of the Convention by failing to
ensure the exercise of the rights and guarantees of the individuals involved.
PROCEEDINGS SUBSEQUENT TO REPORT Nº 96/99
Commission adopted Report Nº 96/99 (Article 50) in this case on September 28,
1999, during its 104th session. That
Report, with the Commission's recommendations, was transmitted to the Peruvian
State on October 21, 1999; the State was given two months to carry out the
recommendations, counted from the date of transmittal of the Report.
65. By Note
Nº 7-5-M/558 of December 17, 1999, the State forwarded the Commission its
considerations on Report Nº 96/99, and stated its disagreement with aspects of
fact and of law reflected therein, and with the conclusion reached by the
Commission. The State alleged that
the case should not be admitted on grounds that the petitioner had failed to
exhaust domestic remedies, and added that "the exception to the requirement
of exhaustion of domestic remedies provided for at Article 46(2)(a) of the
American Convention on Human Rights is not applicable in case 10.670, as it is
not true that there was a practice or policy of disappearances ordered or
tolerated by the public authorities."
Peruvian State indicated its specific discrepancy with the conclusion at
paragraph 70 infra, and insists in
this regard that Messrs. Mónago Carhuaricra and Mónago Laura were not detained
by members of the police. It added
that "consequently, the recommendations of the IACHR are not admissible,
especially when the investigation carried out in due course regarding the
alleged detention and later disappearance of Messrs. Manuel Mónago Carhuaricra
and Eleazar Mónago Laura, considering the circumstances of terrorist violence,
was serious and impartial, and did not determine that any agents of the Peruvian
State were responsible."
the State indicated with respect to amnesty laws Nos. 26.479 and 26.492 that
"both laws were approved by the Congress of the Republic in the exercise of
the functions that the Constitution confers on it, and are part of the policy of
pacification initiated by the Peruvian State."
Commission refrains from analyzing the reiterations of the Peruvian State in
response to arguments made prior to the adoption of Report Nº 96/99, and its
expressions of disagreement with that Report, for pursuant to Article 51(1) of
the Convention, what the Commission must determine at this stage of the
procedure is whether the State did or did not resolve the matter.
In this respect, the IACHR observes that the Peruvian State has not
carried out any of the recommendations made to it by the Commission in its
Report Nº 96/99.
With respect to Peru's allegation that the amnesty laws are consistent
with the Peruvian Constitution, the Commission recalls that the Peruvian State,
on ratifying the American Convention on Human Rights, on July 28, 1978,
contracted the obligation to respect and ensure the rights set forth in it.
In this regard, and in keeping with Article 27 of the Vienna Convention
on the Law of Treaties, the Peruvian State cannot invoke its internal laws as
justification for failure to comply with the obligations it assumed on ratifying
the American Convention on Human Rights. Over
the years, this Commission has adopted reports in several key cases in which it
has had the opportunity to express its point of view and crystallize its
doctrine with respect to the application of amnesty laws, establishing that such
laws violate several provisions of both the American Declaration and the
These decisions, which are in agreement with the criterion adopted by
other international human rights bodies regarding amnesties,
have declared uniformly that both the amnesty laws and comparable legislative
measures that impede or that determine the conclusion of the investigation and
trial of State agents who may be responsible for serious violations of the
American Convention or the American Declaration violate several provisions of
This doctrine has been confirmed by the Inter-American Court of Human
Rights, which has established that the States Parties have the duty "to
investigate human rights violations, prosecute the persons responsible, and
prevent impunity." The
Court has defined impunity as the failure to investigate, pursue, arrest, try,
and sentence persons responsible for human rights violations, and has affirmed
that the States have the duty to combat this situation by all legal means
available, since impunity fosters the chronic repetition of such human rights
violations, and the total defenselessness of the victims and their families. The
States Parties to the American Convention cannot invoke provisions of domestic
law, such as amnesty laws, to fail to carry out their obligation to guarantee
the complete and correct functioning of the justice system.
Commission reiterates its conclusion that the Peruvian State, through members of
the Peruvian Army from the Puente Paucartambo Base, detained Messrs. Manuel Mónago
Carhuaricra and Eleazar Mónago Laura on September 9, 1990, in Sogormo, district
and province of Oxapampa, and later proceeded to disappear them by force;
consequently, the Peruvian State is responsible for violations of the right to
liberty (Article 7), the right to humane treatment (Article 5), the right to
life (Article 4), the right to juridical personality (Article 3), and the right
to an effective judicial remedy (Article 25) set forth in the American
Convention on Human Rights. In
addition, it has breached its general obligation to respect and ensure the
exercise of these rights set forth in the Convention, in the terms of Article
Based on the foregoing analysis and
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS REITERATES THE FOLLOWING
RECOMMENDATIONS TO THE PERUVIAN STATE:
That it carry out an exhaustive, impartial, and effective investigation
to determine the circumstances of the forced disappearance of Messrs. Manuel Mónago
Carhuaricra and Eleazar Mónago Laura, and that it punish the persons
responsible, in keeping with Peruvian legislation.
That it void any domestic measure, legislative or otherwise, that tends
to impede the investigation, prosecution, and punishment of the persons
responsible for the detention and forced disappearance of Messrs. Manuel Mónago
Carhuaricra and Eleazar Mónago Laura. Accordingly,
the State should nullify Laws 26.479 and 26.492.
That it adopt the measures required for the family members of Messrs.
Manuel Mónago Carhuaricra and Eleazar Mónago Laura to receive adequate and
timely reparation for the violations established herein.
On March 2, 2000, the Commission transmitted Report 14/00--the text of
which precedes--to the Peruvian State and to petitioners, in accordance to
Article 51(2) of the Convention, and granted Peru an additional period to comply
with the recommendations set out above. On March 31, 2000, the State forwarded
the Commission a note which reiterated its considerations pertaining to the
conclusions of fact and of law of the Commission, and did not state that it had
taken any action towards compliance with the recommendations made by the
According to the above considerations, and Articles 51(3) of the American
Convention and 48 of the Commission’s Regulations, the Commission decides to
reiterate the conclusion and recommendations set forth in chapters VI and VII
above; to make public the present report and include it in its Annual Report to
the OAS General Assembly. The Commission, according to the norms contained in
the instruments which govern its mandate, will continue evaluating the measures
adopted by the Peruvian State with respect to the above recommendations until
they have been complied with by the Peruvian State.
and signed by the Inter-American Commission on Human Rights on the 13th
of April 2000. (Signed): H[elio
Bicudo, Chairman; Claudio Grossman, First Vice-Chairman; Juan M[endez, Second
Vice-Chairman; Commissioners Marta Altoloaguirre, Robert K. Goldman, Peter
Laurie and Julio Prado Vallejo.
The Peruvian State deposited the instrument of ratification of the American
Convention on July 28, 1978.
IACHR, Report Nº 51/99, Cases 10.471 and others (Peru), Annual
Report 1998, para. 58 to 63. See also, IACHR, Reports Nos. 52/99, 53/99, 54/99, 55/99,
56/99, and 57/99 (Peru), Annual Report 1998.
IACHR, Report Nº 51/99, Cases 10.471 and others (Peru), Annual Report 1998,
para. 68 to 95. See also,
IACHR, Reports Nos. 52/99, 53/99, 54/99, 55/99, 56/99, and 57/99 (Peru),
Annual Report 1998.
As mentioned in paragraph 22, supra,
the Commission has noted, citing doctrine of the Inter-American Court, that
when the existence of a policy of disappearances sponsored or tolerated by
the Government has been proven, it is possible, through circumstantial or
indirect evidence, or by pertinent logical inferences, to show the
disappearance of a specific individual, which otherwise would be impossible,
by a link between the specific disappearance in question and the general
practice. Inter-American Court
of Human Rights, Case of Velásquez Rodríguez, Judgment of July 29, 1988,
According to which every person has the right: … Article 20: .. to
personal liberty and security. Consequently, (g) No one shall be detained
except with a justified, written order or by police officers in flagrante
The Commission has established that: The rationale behind this guarantee is
that no person should be punished without a prior trial which includes a
charge, the opportunity to defend oneself, and a sentence. All these stages
must be completed within a reasonable time. The time limit is intended to
protect the accused with respect to his or her fundamental right to personal
liberty, as well as the accused personal security against being the object
of an unjustified procedural risk. (IACHR, Report Nº 12-96, para. 76 (Case
11.245, Argentina), published in the 1995 Annual Report.
Inter-American Court of Human Rights, Velásquez Rodríguez case, op.cit.,
Idem paragraphs 157 and 188.
Article 1(2) of the Declaration regarding protection of persons from forced
disappearances defines disappearance as a violation of the norms of
international law guaranteeing every human being the right to recognition as
a person before the law. UN General Assembly resolution 47/133, December 18,
Inter-American Court of Human Rights, Velásquez Rodríguez case, op.cit.,
Inter-American Court of Human Rights, Velásquez Rodríguez case. Preliminary
objections, Judgment of June 24, 1987, par. 91.
Inter-American Court of Human Rights, Velásquez Rodríguez case,
op.cit., paragraph 174.
Idem, paragraph 177.
Inter-American Court of Human Rights, Habeas Corpus in Emergency Situations
(Articles 27(2), 25(1) and 7(6), American Convention on Human Rights).
Advisory Opinion OC-8/87 of January 30, 1987. Series A Nº 8, paragraph 35.
Inter-American Court of Human Rights, Judicial Guarantees in State of
Emergency (Articles 27(2), 25 and 8 of the American Convention on Human
Rights), Advisory Opinion OC-9/87 of October 6, 1987, Series A Nº 9,
Inter-American Court of Human Rights, Habeas Corpus in Emergency
Situations, op.cit., paragraph 30.
Inter-American Court of Human Rights, Judicial Gurantees in State of
Emergency, op.cit., paragraph 25.
Idem, paragraph 28.
Ibidem, paragraph 30.
Inter-American Court of Human Rights, Velásquez Rodríguez case, op.cit.,
paragraphs 170 and 172.
Idem, paragraph 166.
Report 28/92, Argentina, Annual Report of the IACHR 1992-1993, para. 41;
Report 29/92, Uruguay, Annual Report of the IACHR 1992-1993, para. 51;
Reports 34/96 and 36/96, Chile, Annual Report of the IACHR 1996, paras. 76
and 78 respectively; Report 25/98, Chile, Annual Report of the IACHR 1997,
para. 71; and Report 1/99, El Salvador, Annual Report of the IACHR 1998,
See, for example, the study on impunity prepared in 1997 by Louis
Joinet, U.N. Special Rapporteur on Impunity (United Nations Commission on
Human Rights, Question of the impunity of perpetrators of human rights
violations (civil and political), Revised Final Report, prepared by Mr.
Joinet pursuant to decision 1996/119 of the Subcommission.
E/CN.4/Sub.2/1997/20 Rev. 1, October 2, 1997.
The Human Rights Committee of the United Nations declared that it was
profoundly concerned over the amnesties granted by Decree-Laws Nos. 26.479
and 26.492, and concluded that those laws violate various human rights
(Preliminary observations of the Human Rights Committee, Peru,
CCPR/C/79/Add.67, July 25, 1996). In addition, the United Nations Committee Against Torture
also examined the Peruvian amnesty legislation and expressed its concern
over the practice of promulgating amnesty laws which in fact confer impunity
on persons guilty of torture, in violation of many provisions of the
Convention Against Torture (Summary record of the public part of the 333rd
session: Panama and Peru, May
20, 1998. CAT/C/SR.333).
Report 28/92, Argentina, Annual Report of the IACHR 1992-1993, para. 41;
Report 29/92, Uruguay, Annual Report of the IACHR 1992-1993, para. 51;
Reports 34/96 and 36/96, Chile, Annual Report of the IACHR 1996, paras. 76
and 78 respectively; Report 25/98, Chile, Annual Report of the IACHR 1997,
para. 71; and Report 1/99, El Salvador, Annual Report of the IACHR 1998,
Inter-American Court of Human Rights, Case of Loayza Tamayo, Judgment
of Reparations, November 27, 1998, para. 170.
Inter-American Court of Human Rights, Case of Paniagua Morales et al.,
Judgment of March 8, 1998, Series C, Nº 37, para. 173.
Inter-American Court of Human Rights, Case of Loayza Tamayo, Judgment of
Reparations of November 27, 1998, paragraph 168.