REPORT ON THE SITUATION OF HUMAN RIGHTS IN
AMAYAPAMPA, LLALLAGUA AND CAPASIRCA, NORTHERN POTOSI, BOLIVIA
124. In this case documents have been submitted that provide information on the events that occurred in December 1996 in the localities of Amayapampa, Llallagua, and Capasirca, which in addition were publicized by the national and international press. Among the documents submitted to the Inter-American Commission on Human Rights, and which have been processed, analyzed, and evaluated by the Commission, are: (1) Reports from the Human Rights Committee of the Chamber of Deputies, the Ministry of Interior, the Ministry of Justice, and the Ministry of Human Development; (2) the file from the Technical Judicial Police of Bolivia; (3) a report by the Central Obrera Boliviana (COB); (4) a report by the Federación Sindical de Trabajadores Mineros de Bolivia (FSTMB); (5) a report by the Permanent Assembly for Human Rights; (6) a report by Radio Pío XII; (7) a report by the Federación de Trabajadores de la Prensa, of Bolivia; (8) statistical tables of cases handled by the police from July 31 to December 31, 1996; (9) a report by the Chief of Security for the District of Capasirca, dated April 25, 1997; (10) a report from the Commander of the Battalion of Physical State Security (B.S.F.E.) dated May 2, 1997; (11) the Security Report of the mining company DACAPO BOLIVIA, dated April 28, 1997; (12) a report by the Investigating Officer of Oruro, dated May 2, 1997; (13) a report by the Commander of the Special Security Group of Potosí, dated May 1, 1997; and (14) a Preliminary Report on the Proceedings of the Judicial Police.
125. The Commission also analyzed the following documents: (1) Complaint brief of the widow of Col. Rivas, to the Public Ministry; (2) the report by the ballistics expert; (3) the document on the collection of evidence; (4) the planimetric study of the area where the ambush in which Col. Rivas died occurred; (5) evaluation report of the ambush in the locality of Kéllo Kása; (6) death certificates and outside coroner's reports of the victims' corpses; (7) photographs of the corpses, and of the materials allegedly seized from the miners; (8) the notarial testimony of physician Roberto Flores; (9) a handwritten note with the order to withdraw to the Braun Regiment in Oruro, given by Gen. Daniel Saavedra; (10) videotapes about the events; (11) material delivered by the Ministry of Defense (copy of the Gaceta Oficial of December 31, 1996, file of photographs, complaint regarding the kidnapping of Mr. Cordero, map of the zone, list of the effects seized from the peasants and miners); (12) material delivered by the Chief Prosecutor of the Republic (judicial proceedings against Mancilla, thesis of Chojilla, contracts of the Pucro mining group, photographs, news bulletin, etc.); (13) material delivered by Gen. Arriaza (magazine of the National Police, Code of Police Conduct, etc.); (14) material delivered by the Ministry of Labor (copy of the worker-management agreement of May 13, 1996, and of March 14, 1997, labor legislation, list of workers' petitions, etc.), etc.
126. In addition to evaluating and analyzing the written documentation provided by organizations and members of civil society as well as by authorities and officers of the Bolivian state, the Inter-American Commission on Human Rights has considered the testimony of the relatives of the deceased victims, as well as the wounded, and the various persons who were at the scene when the events occurred from December 19 to 22, 1996. Another fundamental basis for clarifying the facts is in the testimony given to the Commission by the police and military officers who participated in the operation to retake the Amayapampa and Capasirca mines.(17)
127. The Inter-American Commission on Human Rights deems it pertinent to evaluate the evidence and analyze the facts one day at a time. Consequently, the Commission will analyze the events that took place from December 19 to 21, 1996.
DECEMBER 19, 1996
128. Of the statements made by the eyewitnesses and the other evidence taken in this case, it is deduced that on Thursday, December 19, 1996, by the mining camp of Amayapampa, located in the province of Bustillos, department of Potosí, from approximately 2:00 p.m. to 7:00 p.m. a conflict allegedly broke out pitting combined army and police forces against peasants and mine workers who had illegally occupied the mines of Amayapampa and Capasirca. The testimony collected by the Inter-American Commission on Human Rights coincides in noting that there was a moment when the unfortunate denouement could have been avoided, i.e. when mine worker leaders Galo Luna, Angel Fernández, and César Lugo, accompanied by Silvia Rojas, a member of the Permanent Assembly for Human Rights of the locality of Llallagua, requested a one-hour truce of Gen. Willy Arriaza, then-General Commander of the Police, for the purpose of holding an assembly of mine workers so as to allow for the peaceful entry of the police and soldiers.
129. Nonetheless, Gen. Arriaza denied the request for a one-hour truce. According to the report by the Human Rights Committee of the Chamber of Deputies, the agreed upon period of 30 minutes was given for the purpose of allowing the peaceful entry of the military and police forces to the Amayapampa mine, by the road. The residents interpreted the fact that these forces had advanced along the slopes as breaking the agreement. Several witnesses told the IACHR that the security forces advanced prior to the lapsing of the time period. Captain Henry Terrazas of the Special Security Group of the National Police stated that the time period did not lapse, but he attributed this to the action of the peasants:
130. The Commission should also note that all the civilian witnesses who made statements to the IACHR agreed in stating that on that day the following persons died as a result of the military and police actions: (1) Galo Luna Salinas, 35 years of age, mine worker leader and instructor at the Universidad Siglo XX; (2) Miguel Angel Choque, 15 years of age; (3) Santos Ossio Padilla, miner, 18 years of age; and (4) Marcial Calla Fiesta, peasant, 25 years of age, who was found dead in the Lagunillas region by the parliamentary delegation that was on a mission to bring peace to the zone.
131. The outside medical examiner's reports on these corpses, performed by Dr. Félix Soliz Rivera, medical examiner with the Superior Court of the Judicial District of Oruro, indicate, among other things, the following:
132. The Inter-American Commission on Human Rights must note that from the outside medical examiner's reports done on the civilians who died December 19, 1996, at Amayapampa, the following can be concluded: (1) one of them is a minor (15 years old), Miguel Angel Choque; (2) peasant Marcial Calla Fiesta was killed from behind(19); (3) Santos Ossio Padilla did not die as the result of gunshot wounds, but due to cranio-encephalic traumatism(20); and (4) the four medical exams all coincide in stating that the four persons died as the result of an armed confrontation, even though the Bolivian authorities, when they collected the corpses, did not find arms or explosives on the corpses, thus this issue should be the subject of an exhaustive investigation.
133. The civilian witnesses questioned by the Commission also agree in stating that on December 19, 1996, the peasants and miners did not use firearms, but rather dynamite fragments, sticks, and stones, which they launched using sling-shots in order to harass the police and military forces who were going to retake the Amayapampa mine. None of the police or military forces who made statements to the Commission stated otherwise, except for Gen. Willy Arriaza, former Commander of the Police. The report by the Ministry of Interior also agrees with Gen. Arriaza's version. Nonetheless, Captain Henry Terrazas of the Special Security Group of the Police and Col. Carlos Pozo, Commander of the Illimani Regiment, who gave testimony to the Commission on April 9, 1997, stated as follows:
134. Furthermore, the members of the military and police questioned by the Commission coincide with almost mathematical precision that on Thursday, December 19, 1996, they did not use firearms because the Special Security Group of the Police was equipped only with anti-riot gear (shields, protective gear), and tear gas canisters, except for some officers, who had their regulation 38-caliber pistols and some 9-mm pistols. The army troops also stated that they did not use firearms, for the munitions were in the vehicles, and that they shot blanks to intimidate the workers and peasants. Nonetheless, Col. Alberto Vélez Ocampo, Commander of Section III of the army, admitted that on Thursday, December 19, 1996, members of the military used firearms:
135. The Ministry of Interior version also coincides with the testimony of Col. Vélez Ocampo:
136. The information put before the Inter-American Commission on Human Rights leads the Commission to the following considerations:
i. From 2:00 p.m. to 7:00 p.m., Thursday, December 19, 1996, in the area around the mining camp of Amayapampa, province of Bustillos, department of Potosí, a combined police and military operation was carried out for the purpose of retaking the Amayapampa and Capasirca mines, which had been illegally occupied by mine workers and peasants.
ii. The authorities did not accept the proposed one-hour truce. The new half-hour deadline agreed to, which according to the testimony of several witnesses was not respected, did not lead to a peaceful exit, since police officers did not respect the agreement to enter by the road.
iii. The military forces, seeking to keep the troops from pulling back, made use of their firearms, which were light automatic rifles (FAL).
iv. As a result of the use of firearms by the police or military forces, four civilians died: Miguel Angel Choque, Galo Luna, Santos Ossio Padilla, and Marcial Calla Fiesta. One of these victims was a minor, and another was shot from behind.
v. One of the dead was mine worker leader Galo Luna, who before the violence ensued tried to seek a peaceful solution to the problem by calling on Gen. Arriaza for a one-hour truce, but to no avail.(25)
vi. Evidence has not been presented that would lead to the conclusion that any of the four civilian victims had taken up firearms to resist the public forces.
vii. No member of the military or the police died as a result of the actions undertaken by the peasants and mine workers. Nonetheless, some were wounded by splinters from the explosions of dynamite and the stones launched from sling-shots.
iii. The mine workers were persistently pelleting the police and military with dynamite fragments, sticks, and stones that were hurled from the hills.
ix. It is not shown that the mine workers and peasants used firearms the first day of the actions, i.e. December 19, 1996.
DECEMBER 20, 1996
137. The evidence and information provided to the Inter-American Commission on Human Rights, as well as the testimony taken, all coincide in noting that on Friday, December 20, 1996, at approximately 10:00 a.m., police units from the Special Security Group (GES) of La Paz and Potosí, with the support of an army company called the Illimani Battalion, under the command of Col. Eduardo Rivas Rojas, Commander of the GES, after the operations of entering and retaking the Amayapampa mine the previous day, left in the direction of Uncía from the mining camp of Amayapampa, for the purpose of evacuating the wounded, removing the corpses of the civilians killed, collecting provisions, and receiving operational support.
138. The evidence indicates that after five kilometers, at approximately 11:00 a.m., there was an ambush near the Kéllo Kása hill, in which Col. Eduardo Rivas Rojas was shot in the right cheek, the bullet exiting through the occipital region; he died instantly.
139. Once the facts were investigated, the Inter-American Commission on Human Rights concluded that the death of Col. Eduardo Rivas was not the result of the actions of the Government of Bolivia, nor of its military or police agents, as indicated by some sectors.
140. The Inter-American Commission on Human Rights must also note that the assassination of Col. Rivas is a grave event that needs to be investigated impartially and independently, with a view to clarifying the facts and punishing those responsible.
141. The Inter-American Commission on Human Rights must add that Dr. Rodrigo Flores, civilian physician of the Hospital at Chayanta, who had arrived in Amayapampa on December 18, 1996, to attend to the wounded and other victims, was himself seriously wounded by bullet wounds to the right arm and right hand. These events occurred in circumstances in which Dr. Flores was in an ambulance accompanied by Dr. Marisol Ramírez at the head of the military and police caravan commanded by Col. Rivas. The vehicle in which the Dr. Flores was travelling received bullets, which forced them to get out to take cover; it was in this circumstance that he was wounded. Dr. Flores informed the Commission that the injuries to his right hand and right arm have made him incapable of operating; he had worked as a surgeon. He also said that he received economic support from the Government of Bolivia to enable him to undergo specialized surgery so that he might practice his profession once again.
142. The Inter-American Commission must also state that the declarations by Dr. Rodrigo Flores with respect to the circumstance in which Col. Rivas died agree with the versions of the military witnesses who were wounded in these events, including the testimony of Second Lieutenant of the Police Iván Mendívil, who was shot in the left temple, the bullet grazing his head and wounding him in the earflap.
143. In summary, the Inter-American Commission on Human Rights considers that with respect to the events that took the life of Col. Eduardo Rivas, the following is proven:
i. On Friday, December 20, 1996, at approximately 11:00 a.m., the military-police caravan under the command of Col. Eduardo Rivas Rojas was ambushed by the Kéllo Kása hill in circumstances in which the troops were heading to the mining camp of Amayapampa, towards the locality of Uncía.
ii. As a result of that ambush, Col. Eduardo Rivas, who was directing the operation, was killed by a bullet wound.
iii. The possibility that Col. Rivas died as the result of shots fired by his own colleagues in arms has been ruled out.
iv. The investigations to date by the Bolivian state do not clearly demonstrate who perpetrated this criminal act.
v. As a result of the events, Dr. Rodrigo Flores, a civilian physician employed at the Hospital at Chayanta, was wounded. Dr. Flores is unable to operate due to the wounds to his right hand and right arm.
vi. Also wounded in the course of the actions were four police officers, including Second Lieutenant Iván Mendívil, who took a bullet wound to the right temple, which wounded his earflap.
144. Continuing with the chronological analysis of the events, also on December 20, 1996, at approximately 7:00 p.m., based on the evidence analyzed by the Commission, the Braun Regiment of the city of Oruro attempted to enter the town of Llallagua with three columns of military troops. The witnesses agreed that the Braun Regiment had orders to reach the Uncía barracks. At nightfall, the townspeople, convoked by a siren, proceeded to "defend their city": they blocked the highway, formed a human barrier, and threw stones, sticks, and dynamite fragments. The military police, for their part, initially proceeded to shoot rubber bullets and tear gas; nonetheless, later they shot real bullets, resulting in the deaths of two persons: Wilmer Gonzales, 15 years of age, a student at the San Agustín secondary school in Cochabamba, who was in Llallagua on vacation; and José Luis Espinoza Mercado, 42 years of age, who was a mechanic.
145. In the context of analyzing the evidence, the Inter-American Commission on Human Rights deems it pertinent to reproduce a part of the testimony of Captain Henry Terrazas, in which he admits that the military forces used firearms:
146. It is also worthwhile reproducing part of the Certificate of Examination by the Medical Examiner, of the examination of the corpse of Wilmer Gonzales Cazano at the Hospital Madre Obrera of the city of Llallagua:
147. The Inter-American Commission on Human Rights would also like to note that the family of the minor Wilmer Gonzales, like the families of all the civilians killed in the events, was insistently called on by officials of the Ministry of Interior to sign a document by which they were given a small sum of money as "humanitarian assistance." Unlike the other families of the civilian victims, who were not given a copy of that document, the family of the minor Gonzales was able to obtain a copy, which was provided to the Inter-American Commission on Human Rights in the course of its on-site visit.(27) The Inter-American Commission on Human Rights must state that at the international level this document has no legal value, since the investigations into these events, in some cases, have yet to be initiated; in no case have they been concluded. Therefore, one cannot exempt the state or its agents from liability, nor claim that the amount paid as "humanitarian assistance" is fair compensation pursuant to international standards.
148. As regards the other civilian killed in the locality of Llallagua, the Inter-American Commission on Human Rights confirmed that José Espinoza was a mechanic by profession, and no information were brought forth that would allow one to conclude that the victim was resisting the military action. Espinoza died in circumstances in which the Braun Regiment of Oruro had gone past the gate to the town in Llallagua. According to witnesses to the events, the military police began by hurling tear-gas canisters and firing rubber bullets but then used their firearms. After having received two bullet wounds, José Espinoza died in the Hospital Madre Obrera in the city of Llallagua at 9:00 p.m. on December 20, 1996. The certificate of the outside medical examiner's report done on the victim indicates, inter alia, the following:
149. With respect to the events of the afternoon of December 20, 1996, in the locality of Llallagua, the Inter-American Commission considers that the following facts are proven:
i. At approximately 7:00 p.m., four military columns belonging to the Braun Regiment of Oruro attempted to move in Llallagua, to enter the Uncía barracks.
ii. These events gave rise to resistance on the part of the residents, who, to keep the military from passing the gate to the city, blocked the road by forming a human barrier, and at the same time harassed the troops with dynamite fragments, sticks, and stones.
iii. The military forces initially used tear gas and blank ammunition, and later made use of their firearms.
iv. The shots fired by the military forces against the civilian population that was putting up resistance took two lives--those of the youth Wilmer Gonzales and mechanic José Espinoza--and left several with bullet wounds.
v. There are no antecedents that show that the two civilians who perished in the events were involved in any conflict. Nor was any weapon or explosive found in their clothing.
vi. It has not been proven that the residents of the city of Llallagua used firearms against the military forces.
vii. In the course of the events at Llallagua no member of the military was killed nor were any serious wounds reported.
viii. Officers of the Ministry of Interior insisted that the parents of Wilmer Gonzales accept a small sum of money as "humanitarian aid," at the same time as it forced them to exempt the state agents who took the minor's life of any responsibility. Nonetheless, in any event that statement has no legal effect internationally.
DECEMBER 20, 1996
150. According to testimony, at 10:30 a.m. on December 21, 1996, members of several cooperatives--Multiactiva, Siglo XX, and 20 de octubre--were on one of the hills contiguous to the Amayapampa mining camp, in solidarity with the workers in the area, and, when some of them went in the direction of the mine to have breakfast, shots were fired in their direction, followed by a movement of troops to the hill.
151. In the course of the actions nursing auxiliary Ercila López Condori, 49 years of age, was gravely wounded in the right leg; she died after acute hemorrhage. The IACHR considers it essential that an investigation be undertaken into the complaint as to the lack of timely medical care for Ms. López Condori. She worked for the mining company of Cataví and was at the site to provide relief for the wounded. At the time she was wounded, the members of the military seized her personal effects, such as a backpack, a sweater, shoes, and a case with first aid equipment (stethoscope, tensiometer, scissors, clamps, thermometer), none of which was returned to her family members subsequently.
152. The report from the Ministry of Interior points out the following, inter alia:
153. For her part, Piedad Aguilar López stated as follows to the Inter-American Commission on Human Rights:
154. The Inter-American Commission on Human Rights did not receive evidence that the cooperative members in the hills by the Amayapampa mine on December 21 were harassing the military forces with explosions of dynamite and "shots from firearms." That day, at the scene of the events, according to the Government report, only three workers from the Multiactiva cooperative were arrested, who were bearing bladed weapons. No firearm was seized.
155. The IACHR also concludes that it is not true that military and police forces "came upon" the corpse of Ercila López Condori. Witnesses to the events observed that she was picked up wounded, but still alive, by military forces. In addition to the foregoing, the combined police-military operation began in the hills by Amayapampa at dawn on December 21, and the witnesses agree in noting that Ercila López was wounded at 10:30 a.m. that day, while the outside medical examiner's report establishes that she died at approximately 3:00 p.m. From this one can conclude that she was bleeding for approximately four hours without proper medical care and without being transferred quickly to any hospital center. In view of the foregoing, it is essential that an investigation into this situation be carried out. The outside medical examiner's report, done on December 21, 1996, at the Uncía Hospital, indicates inter alia as follows:
156. Having analyzed the outside medical examiner's report on the corpse of Ercila López Condori, the Inter-American Commission on Human Rights may conclude as follows: (A) Piedad Aguilar López, daughter of the deceased, was speaking the truth when she testified before the Commission on April 10, 1997, that it was approximately 6:00 p.m. when she observed the arrival of her mother's corpse in a military vehicle. The time indicated by Piedad Aguilar López coincides with the time the exam by the outside medical examiner began, and with the time that the military detained three workers from the Multiactiva cooperative in the barracks at Uncía; and (B) an investigation should be undertaken into whether the shot that hit the victim in the leg was fired practically at point-blank range, since only such a shot can leave "a fish's ring, tattooing, and smoke marks" in the skin, as noted by the medical examiner's report.
157. It is also proven that during the events the following civilians from the Multiactiva cooperative were wounded by bullets fired by police and military forces: Silvio Torrez Corrales, 65 years of age, with a bullet wound in the gluteal region; Rosendo Osorio Gutiérrez, 65 years of age, with a multifragmentary fracture of the left fibula caused by "a high-speed bullet, with orifices at points of entry and exit"(30); and Luis Soto Ballesteros, 21 years of age, with a bullet wound to the articular region.
158. With respect to most of the events of Saturday, December 21, 1996, the Inter-American Commission on Human Rights, summarizing, considers the following facts to have been proven:
i. The a police-military action was begun at dawn on Saturday, December 21, 1996, in the hills neighboring the Amayapampa mining camp.
ii. The police and military forces opened fire on the civilians, gravely wounding Ercila López Condori, nursing assistant, who had gone there to cure the wounded, in the right leg.
iii. Ercila López Condori did not die in the act as a result of the bullet wounds, but later, due to acute hemorrhage. There are serious indicia that she bled for four hours in the company of the police and military forces who picked her up alive. Given this situation, an investigation into the facts is clearly in order.
iv. The report of the medical examiner who performed the examination of the corpse of the victim establishes that the shot left marks in the skin, known as "fish ring," tattooing, and smoke marks," which requires an investigation into whether the shot was fired from a short distance.
v. No evidence was brought before the IACHR indicating that the workers of the cooperatives had firearms and consequently fired on the state agents.
vi. In addition to the death of Ercila López Condori, three civilians received bullet wounds.
vii. In the course of the events of December 21, 1996, no member of the police or military forces died, nor were there any wounded.
159. Having established the violent events as they occurred in the northern section of the department of Potosí, from December 19 to 21, 1996, the Inter-American Commission on Human Rights considers it essential to determine whether the Bolivian state is responsible internationally for the death of nine civilians in said events. Consequently, as noted in Chapter IV of this report, the Commission shall determine whether the following elements of the international responsibility of a state are present:
(i) The existence of an act or omission that violates an obligation established by a rule of international law in force;
(ii) that said unlawful act be imputable to the state as a juridical person;
(iii) that damages were caused as a result of the unlawful act;
(iv) that the action imputable to the state and which caused the harm is not justified;
(v) that no reparation has been made for the consequences of the unlawful action, including the investigation, the sanction of those who are liable, and the respective compensation.
160. Article 4(1) of the American Convention on Human Rights, to which Bolivia has been a state part since July 19, 1979, provides that:
161. The Inter-American Commission on Human Rights has considered, in addition, that the right to life is "the foundation and basis of all other rights,"(31) arguing that
162. The Commission has also noted that "the obligation of respecting and protecting the right to life is an obligation erga omnes, i.e., it must be assumed by the Cuban State, like all member states of the OAS, both those parties and those not parties to the American Convention on Human Rights, in respect of the inter-American community as a whole, and in respect of all individuals under its jurisdiction, as the direct beneficiaries of the human rights recognized in the American Declaration of the Rights and Duties of Man."(33)
163. Furthermore, the doctrine of the public law treatise writers regarding international human rights law is very extensive when it comes to analyzing the obligations of the states to ensure that the right to life is respected. Thus, for example, Venezuelan jurist and professor at the Universidad Central de Venezuela Héctor Faúndez Ledesma states that:
164. After analyzing the value and importance of the right to life, understood as an essential right of the human person enshrined in the American Convention on Human Rights, the Inter-American Commission must evaluate the evidence analyzed thus far for the purpose of determining whether, in this case, the Bolivian state has committed acts or omissions that have triggered its international liability for the death of nine civilians in the events of December 1996, in Amayapampa, Llallagua, and Capasirca.
165. In the instant case the evidence taken, such as the statements by eyewitnesses, the medical examiners' reports, the expert witness testimony, and in general all the information provided orally and in writing to the Inter-American Commission on Human Rights, allow the Commission to note that on December 19, 1996, a police-military operation was commenced for the purpose of retaking the mines of Amayapampa and Capasirca that had been illegally occupied by mine workers and peasants. According to the information provided to the IACHR, the legal framework for the action of the military forces was constituted by Article 96(18) of the Constitution of Bolivia and Articles 6(g) and 8(b) of the Organic Law on the Armed Forces. In the actions of Thursday, December 19, military forces of the Illimani Regiment of Uncía acted along with the Special Security Group (GES) of the National Police, of La Paz. Both columns were commanded by Gen. Willy Arriaza.
166. Having analyzed the evidence, the Inter-American Commission on Human Rights considers that an investigation is in order into whether the official who was directing the operation may have been negligent in carrying out his duties, and to what extent the events at the Amayapampa mining camp could have been avoided. The actions undertaken by the military and police forces took the lives of four civilians, three of whom were not involved in the conflict, one of them a minor, and another killed from behind. The Inter-American Commission considers that these facts trigger the international liability of the Bolivian state, for the violation of Article 4 of the American Convention on Human Rights.
167. The Inter-American Commission on Human Rights need not go further into the facts after December 19, 1996, since they have been amply analyzed and proven in the chapter on the perpetrators of the events and the analysis of the evidence. Nonetheless, the Commission would like to reiterate that the death of the five civilians on December 20 and 21, i.e. when the forces of order had already occupied Amayapampa and the miners had ended their occupation of Capasirca, were the result of actions by police and military forces. The IACHR has not received evidence showing that any of the civilian victims died with a weapon or explosive in hand. In the events subsequent to December 19, other minor died, as well as a nursing assistant whose corpse, upon examination, appeared to indicate that she was shot at point-blank range.
168. In addition, in the city of Llallagua two persons died: Wilmer Gonzales, a minor, 15 years of age, who was on vacation, and José Espinoza, a mechanic by trade, with no showing that they had sought to oppose the action of the Braun Regiment.
169. In view of the foregoing, this case includes the first element of the international liability of the Bolivian state, i.e. the existence of an act that violates an obligation established by a rule of international law in force, which in this case is the right to life as set forth at Article 4 of the American Convention on Human Rights.
170. An act is imputable to the state when a given conduct can be attributed to it. This may happen in the case of actions decided upon at the highest political level and also in the case of the acts of subaltern officials, even if they acted in violation of the instructions given them. Moreover, the state may be liable for the acts of private persons if it fails to prevent or repress them. In addition, for an act to be imputable to the state neither intent or negligence are needed. In such cases there is an obligation to investigate such events adequately and to make reparation for the consequences of unlawful acts. In order to determine whether the grave events that occurred from December 19 to 21, 1996, are imputable to the Bolivian state as a juridical person, the Inter-American Commission on Human Rights considers it necessary to analyze and establish whether the persons responsible for the punishable acts acted under the investiture of a public function or pursuant to the powers they hold in view of their official status. In the view of the Inter-American Commission, it is sufficiently shown that all of the deaths except for that of Col. Rivas were caused by police or military forces.
171. In addition to the testimony taken by the Inter-American Commission on Human Rights in the course of its on-site visit, it has abundant written information according to which, on December 19, 1996:
172. It is clear, then, that the persons who participated on December 19, 1996, in the operation to retake the mines of Amayapampa and Capasirca--the Special Security Group of the National Police of La Paz and the Illimani Regiment of the Army--acted under the investiture of a public function. In addition, it has been shown that four civilians died as a result of the military and police actions of that day.
173. It is also proven that on the afternoon of December 20, 1996, forces of the military police of the Braun Regiment at Oruro attempted to move into Llallagua, and that as a result two more civilians died. The declaration by Gen. Daniel Saavedra before the Inter-American Commission on Human Rights on April 9, 1997, confirms the participation of the military police in the city of Llallagua:
174. The Commission also has evidence showing that at dawn on Saturday, December 21, another police-military operation was undertaken in the hills neighboring the mining camp of Amayapampa, for the purpose of repelling supposed attacks with firearms and dynamite on the part of the workers from the cooperatives, who were on the hills. That operation by agents of the Bolivian state left one dead--a nursing assistant who bled to death after have been hit by a bullet shot at close range--and three civilians were wounded. Fortunately, in the course of these events there was no military or police casualty. The only three persons detained in the place of the events were bearing only bladed weapons. No firearm was seized there.
175. The Inter-American Commission on Human Rights must state that in this case the second element that establishes international responsibility is also present.
176. In this context, it should be noted that the Conference on Codification of The Hague draws no distinction as among officers of the highest or lowest category in relation to international responsibility. Both proclaim that the state becomes internationally liable "as the result of an act or omission by the Executive branch incompatible with the state's international obligations," and "as the result of acts or omissions by their officers while they act within the bounds of their authority, when said acts or omissions infringe the international obligations of the state."(36)
177. Some international law treatise writers note that the most convincing element in the appearance or claim of an authority acting in the name of the state is the use of some means or symbols made available to state officials by virtue of their functions. For example, in the Mallén case, due account was taken of the fact that the marshall had shown the insignia of his position. In the Youmans case, there was a riot against some foreigners and the authorities sent a lieutenant, with troops, to break it up. The troops, instead of disbursing the crowd, opened fire on the foreigners, who were besieged. Despite the fact that such acts were not only unauthorized but also were contrary to express orders, the Commission did not consider them to be private acts, but acts for which the state must assume direct responsibility, bearing in mind that the soldiers were properly armed, uniformed, and under the orders of an officer.(37)
178. The considerations set forth above allow the Inter-American Commission on Human Rights to conclude that the deaths of nine civilians due to direct actions of military and police agents of the state, in Amayapampa, Llallagua, and Capasirca, from December 19 to 21, 1996, are imputable to the Bolivian state as a juridical person.
179. The damage refers to the type of injury or loss caused and its extent. In the view of the Inter-American Commission on Human Rights, the damages caused as a result of the acts committed by police and military agents are as follows: (a) irreparable physical damage, consisting of the deaths of nine civilians, including two minors. Also under physical damages are the 32 civilians wounded in the events at Amayapampa, Llallagua, and Capasirca; (b) damages for pain and suffering to the relatives of the victims, the wounded, and the survivors, consisting of the emotional suffering due to the loss of loved ones, the trauma resulting from the events, and the situation of knowing that justice has not been done; (c) and material damages, consisting in lost profit and consequential damages.
180. An action imputable to the state that affects the life of a person, may under certain defined circumstances be justifiable. This is the case, for example, of a policeman who in legitimate self-defense is forced to recur to lethal force.
181. From the standpoint of international law, the use of the public forces to maintain order, by constitutional governments in the use of their powers, is lawful. If, on the other hand, in the course of a police or military operation, more force is used than necessary and damage results, one of the elements of international responsibility is triggered.(38)
182. The Commission is not convinced that there was a strictly proportional use of force by the police and military forces in all the cases. In the events of December 19, for example, one of the deaths was caused by a bullet fired from behind; this was the case of two deaths in Llallagua. There is no evidence with respect to how the latter two deaths are related to the facts, which appears to point to the careless use of lethal weapons. The action in the hill facing Amayapampa and the death of the nurse confirm this impression.
183. In addition to the foregoing is the fact that there were mechanisms for negotiation, yet apparently their full potential was not used, as in the case of the opportunity on the road to Amayapampa. The IACHR understands that police and military forces, by the nature of their functions, may find themselves in serious situations in which they are responsible for maintaining order. That task, however, requires the necessary discipline and adequate training.
184. The Inter-American Commission on Human Rights considers that the intervention of the public forces should be subjected to precise limits, as it can only take place in the framework of legality and respect for the rights of persons: their task should be defined by the Constitution and by statute, as well as by international human rights instruments. If the public forces exercise their work overstepping the bounds of their powers and limitations, they become a new factor of violence and help aggravate the situation instead of resolving it. The Commission also believes that respect for human rights will avoid possible abuses by the public forces, thereby bolstering their legitimacy and strengthening them.
185. In the case of McCann et al. v. United Kingdom, the European Court of Human Rights expressed that "the general legal prohibition on arbitrary death by the acts of state agents would be ineffective in practice were there not a procedure for reviewing the legitimacy of the use of lethal force by the state authorities. The obligation to protect the right to life under this provision, interpreted in conjunction with the generic obligation of the state set forth in Article 1 of the [European] Convention [on Human Rights] to guarantee all citizens under its jurisdiction the rights and liberties defined in the Convention, requires by inference that there be some form of effective official investigation when deaths have been caused by the use of force by state agents."(39)
186. The Inter-American Court of Human Rights has said that the state is obligated:
187. The international responsibility of the state may not exist if, despite all other elements indicated above being presented, the state investigates the events, punishes those who turn out to be responsible, and makes reparations for the consequences of the unlawful acts that are imputable to it. These general principles of international law are fundamental, even in cases like this one, in which it is established that the deaths are not the result of decisions adopted at the highest level of Government. Hence, if adequate investigations are carried out, the persons responsible are punished, and full reparation is made for the consequences of the unlawful action, there would be no international responsibility of the state. In the Bolivian domestic jurisdiction, there has not been an adequate investigation into the incidents in which persons were killed and wounded at Amayapampa, Llallagua, and Capasirca, as so the persons responsible have not been sanctioned. Nor was the IACHR able to collect any evidence that the Bolivian state has paid adequate compensation to all the victims or their next-of-kin.
188. For example, the Inter-American Commission on Human Rights has found that ballistics tests were done only on the weapons presumably seized from the mine workers and peasants. No ballistics test has been performed on the weapons used by the military and police. That is essential if we take into account that many of the troops of the state interviewed by the Commission stated that they did not take weapons to the place of the events nor did they shoot any bullets.
189. Nor does the IACHR have indications that the bullet shells were collected from the scene to determine whether they were from the old Mausers seized from the mine workers and peasants, or whether, to the contrary, they belonged to the light automatic rifles (FAL) used by the army.
190. No autopsies were performed on any of the 10 corpses of the persons who lost their lives in the events at Amayapampa, Llallagua, and Capasirca, as required by Article 142 of the Code of Criminal Procedure of Bolivia, and as called for by the Minister of Justice on successive occasions. Although the exhumation and autopsy are necessary in all cases, the IACHR wishes to call the attention of the Government of Bolivia to the case of Santos Ossio Padilla, a peasant, 18 years of age, who is the only one who did not did from a bullet wound, but from multiple cranio-encephalic traumatism. The photographs of his corpse merit an investigation into the cause of his death.
191. In summary, the Inter-American Commission on Human Rights considers that to date the duty to investigate the facts with due diligence has not been met. The IACHR would also like to expressly note that the present Government of Bolivia, with a view to carrying through its obligation to investigate the facts, has invited the IACHR on its own initiative. Consequently, a significant and highly valuable step is being taken so that the responsibility of the state that likely arose from the acts of subaltern officials may be corrected by taking the appropriate measures, to which reference is made below.
17. That testimony was taped and remains, as material evidence, in the files of the Inter-American Commission on Human Rights.
18. Captain Henry Terrazas gave testimony to the IACHR on April 9, 1997; his declaration is in the files as evidence.
19. According to witnesses, Marcial Calla Fiesta died in circumstances in which members of the military shot at him from behind when we was in the vicinity of Amayapampa collecting potatoes and barley. Calla Fiesta heard shots, and on standing upright to observe where the shots were coming from, he received two gunshot wounds to the back. When the witnesses found the corpse of Marcial Calla Fiesta, he still had dirt on his hands, a sign of the potatoes he was collecting, according to the witnesses. The IACHR considers the following facts to be clear: Calla Fiesta was killed from behind; we was unarmed; and he was engaged in agricultural work. Therefore, the matter should be the subject of an exhaustive investigation.
20. The Inter-American Commission on Human Rights observed the photograph of this corpse and does not share, due to lack of clear evidence, the version according to which he fell from the hill. In any event, this corpse needs to be exhumed for the autopsy prescribed by law, since the autopsy called for by Article 142 of the Code of Criminal Procedure was never performed.
21. Testimony of Captain Henry Terrazas, in the files of the IACHR.
22. Testimony of Col. Carlos Pozo, in the files of the IACHR.
23. Testimony by Col. Alberto Vélez Ocampo to the IACHR on April 9, 1997, in the Commission's files.
24. Report by the Ministry of Interior, provided to the IACHR in April 1997, pp. 12-13.
25. One of the eyewitnesses to the death of Galo Luna noted, inter alia, that: "... it was Thursday of the first day, then there was a confrontation...no longer with tear gas, with rubber bullets, but with firearms, and at point-blank range, they shot at anyone, and the projectiles came whistling out, there was no way to escape because they created terrible dust clouds, and there Galo fell when hit by the first bullet, and surely out of desperation he raised himself up, advanced about four meters, one more, then he didn't get up any more."
26. Testimony of April 9, 1997, in the files of the IACHR.
27. Said document was signed by Oscar Cornejo Clavijo, Undersecretary of Internal Policy, on March 21, 1997. He states, inter alia, as follows:
28. Report by the Ministry of Interior of April 1997, p. 15.
29. Piedad Aguilar López gave testimony to the Inter-American Commission on Human Rights on April 10, 1997. This evidence is in the files of the IACHR.
30. Medical certificate executed by Dr. Juan Marcelo Aramayo on February 25, 1997, Caja Nacional de Salud.
31. IACHR, Diez Años de Actividades 1971-1981, General Secretariat of the Organization of American States, Washington, D.C., 1982, p. 332.
33. IACHR, Annual Report 1996, Chapter V., page 690, paragraph 50, OEA/Ser.L/V/II.95, March 14, 1997.
34. Héctor Faúndez Ledesma, Administración de Justicia y Derecho Internacional de los Derechos Humanos (El Derecho a un Juicio Justo), Universidad Central de Venezuela, School of Legal and Political Sciences, 1992, pp. 61-62.
35. File two of the procedures of the Technical Judicial Police of Bolivia, folio 334.
36. Cited by Max Sorensen, Manual de Derecho Internacional Público, Fondo de Cultura Económica, Mexico City, 1985, p. 519, League of Nations, Official Journal.
37. Cited by Max Sorensen, Manual de Derecho Internacional Público, op. cit., pp. 520-521. Mallén and Youmans Cases, Reports of International Arbitral Awards, United Nations publication, pp. 173-177 and 110, respectively.
38. In this context, the Inter-American Commission on Human Rights would cite the case of McCann et al. v. United Kingdom, decided by the European Court of Human Rights on September 27, 1995. The victims in that case are Daniel McCann, Maired Farrell, and Sean Savage, who died on March 6, 1988, as the result of shots fired by members of the Special Air Service (SAS), a regiment of the British army. According to the authorities of the United Kingdom, Spain, and Gibraltar, these three persons were presumably members of the terrorist group IRA and were going to carry out an attack in Gibraltar. On March 6, 1988, these persons were killed by British military forces; according to pathological exams, Farrell had eight gunshot wounds, McCann five, and Savage 16. In addition, it was proved that no arms or detonating devices were found on the victims, and that the car these individuals had parked did not contain any explosive or bomb.
The European Court of Human Rights resolved that the United Kingdom had violated the right to life, set forth at Article 2 of the European Convention, similar to Article 4 of the American Convention on Human Rights, which indicated as follows:
The Court must examine not only whether the force used was strictly proportionate to the objective of protecting the lives, but whether the operation was planned and controlled so as to reduce to a minimum, to the greatest degree possible, resource to lethal force.
The European Court of Human Rights concluded that:
Bearing in mind the foregoing, the [European] Court [of Human Rights] is not convinced that the deaths stemmed from an absolutely necessary use of force to defend individuals from illegal violence.
39. European Court of Human Rights, op. cit., p. 56, para. 161.
40. Inter-American Court of Human Rights, Case of Velásquez Rodríguez, Judgment of July 29, 1988, pp. 72-73, paras. 176 and 177.