...continued

Time period for submission

155.          According to Article 46(1)(b) of the Convention, the petitions must be submitted within six months from the date when the person whose rights have allegedly been violated has been notified of the final decision in the domestic jurisdiction. According to Article 46(2) of the Convention, that rule does not apply when one of the exceptions to the prior exhaustion rule, referred to in that same article, is applicable. Having concluded that the exceptions referred to at Article 46(2)(c) and 46(2)(a) of the American Convention apply to the cases under study, the Commission concludes that the requirement regarding time period for submission does not apply.

156.          Article 38 of the Commission’s Regulations provides that the time period for submission “shall be a reasonable period of time, in the Commission’s judgment, as from the date on which the alleged violation of rights has occurred, considering the circumstances of each specific case.” Accordingly, the Commission wishes to add that to date there has been no firm and final decision regarding who is responsible for the violations alleged in any of the cases under study, and, moreover, the 25 complaints were submitted promptly to the Commission, as follows: 16 petitions within a time period running from several days (six) to less than six months as of the date of the extrajudicial executions alleged [12] and of the illegal detention alleged; [13] in six other cases, the petitions were submitted after the sixth and up to the tenth month after the date on which the events occurred, [14] and in three cases, two, [15] five, [16] and seven years after the fact, but in  last case cited within six months and four days from the date on which the provisional archiving of the inquiry was ordered. [17]

Duplication of procedures

157.          The Commission understands that the subject matter of the petitions is not pending before any other international body for settlement nor has it been examined by this or any other international entity.  Therefore, the requirements established in Articles 46(1)(a) and 47(d) are met.

Characterization of the facts

158.          The Commission considers that the petitioners have stated facts which, if true, could characterize a violation of the rights guaranteed by the American Convention.  

V.          FRIENDLY SETTLEMENT

159.          As set forth in the part on the processing of each of the 17 cases under analysis, the Commission, in keeping with Article 48(1)(f) of the Convention, placed itself at the disposal of the interested parties in order to pursue a friendly settlement based on respect for the human rights recognized in the American Convention, but in none of the cases was it possible to initiate the process of pursuing friendly settlement.  

VI.          MERITS ANALYSIS

A.          Initial considerations

160.          In this chapter, the Commission will proceed to determine the possible participation of State agents in the systematic violation of certain human rights in Peru, from 1984 to 1993.

161.          As documented in this report, during that period the overall context shows the systematic violation of the right to life, in the form of summary executions and forced disappearances at the hands of State agents or persons related to them.  Of the 25 petitions, among others received, 15 refer to extrajudicial executions, six complaints allege the forced disappearance of persons, and four petitions allege the summary execution and forced disappearance of some victims; the merits analysis includes a study of those two situations, i.e. the systematic practice of arbitrary executions in conjunction with the systematic practice of forced disappearances.

B.          Arbitrary executions in Peru

162.          As stated above, the Commission decided to combine the 25 cases under study based on the consideration that the facts alleged suggest the existence of a systematic pattern of violations of the right to life in Peru.  Some cases that are the subject of this report include several individuals in a single complaint, most of them subjected to extrajudicial executions (83 persons) by State agents or persons linked to them, and tolerated by the State, perpetrated from 1984 to 1993, in the context of what were called “anti-subversive” military operations, which were carried out with a similar modus operandi.  

1.          Extrajudicial execution as a practice

163.          In this chapter, the Commission analyzes the possible existence of a systematic practice of extrajudicial, summary or arbitrary executions by agents of the Peruvian State, in tandem with the State practice of forced disappearance of persons [18] during the above-mentioned period (1984-1993).  The study includes a brief outline of the historical framework, the analysis of the characteristics of that practice, the modus operandi, and a profile of the persons chosen as victims.

164.          These arbitrary executions were often consummated during that period using procedures that display similar and identifiable characteristics, in specific geographic areas, which were under a state of emergency and where “anti-subversive” operations were under way by the State.  During the period covered in this report, political violence became entrenched throughout Peru.  The worsening of the conflict deteriorated to the point of annulling the promotion and protection of human rights.  Reports from this period reflect the fragility of the right to life, liberty, and personal integrity.  Extensive geographic zones were declared to be in a state of emergency [19] and the conflict even reached into urban areas.

165.          In its Report on the Situation of Human Rights in Peru, of March 12, 1993, [20] the Commission noted that for during the same period, it had “decided 16 cases of summary execution, involving 22 victims.”  That same report stated that in the first year of the Fujimori government “individual and mass summary executions were still being conducted, such as those that occurred in Chilcahuaycco, Chumbibilcas, Iquicha and Santa Bárbara. These were incidents blamed on security forces, at times acting in concert with the so-called peasant gangs.” The State itself, in an official communication of September 18, 1990, [21] indicated that government agents carrying out the struggle against the guerrillas had committed excesses and abuses, although it was not a systematic practice of human rights violations. The Presidential Directive on human rights dated September 13, 1991 [22] noted that “only the definitive elimination of injustice and marginality can finish off the subversives,” and at Section III of that Presidential Directive, the State officially recognized the phenomenon of extrajudicial executions, stating: “The results are not yet as encouraging as we would like, for there need only be one person disappeared, one person killed, to call the situation dramatic and horrifying.  Nonetheless, the numbers are diminishing notably, and what is most important, we have the firmest aim of achieving a situation in our country in which there is not a single person disappeared, and in which torture and extrajudicial execution are eliminated for good.”

166.          The Inter-American Commission, in the above-noted 1993 Report on the Situation of Human Rights in Peru, at paragraph 39, noted the publication, on July 14, 1991, through a political program, of “the alleged existence of a directive for execution of antisubversive operations, which contained principles contrary to the observance of human rights, such as condoning the use of torture and summary executions.” Even though the Joint Command of the Armed forces issued a communiqué stating “the document is not consistent with either the philosophy or the spirit of the directives of the Joint Command, so that investigations have been ordered to ascertain those responsible,” as of the date of publication of that report, the results had not been disclosed.  In contrast, the political program in which the publication was produced ceased broadcasting due to a conflict between the director of the program and the directors of the TV channel.

167.          Due to the rupture of the democratic institutional order in Peru on April 5, 1992, the closing down and occupation of the Congress and the Supreme Court, the persecution and arrest of opposition political leaders and one journalist, who remained detained, with no knowledge as to their whereabouts, and the occupation of the “Miguel Castro Castro” Penitentiary which led to grave human rights violations in Peru, the Permanent Council of the Organization of American States convened an ad-hoc meeting of Ministers of Foreign Relations, which was held April 13, 1992, in Washington, which resolved “to appeal for the immediate reestablishment of democratic institutional order in Peru, for an end to all actions that impair the observance of human rights, and for abstention from the adoption of any new measures that will further aggravate the situation.”  It also resolved to “voice profound concern over the present status of rights and liberties in Peru....” [23]

168.          At the same time, the United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Mr. Bacre Waly Ndiaye, who visited Peru in 1993, in paragraph 26 of his report verified the decline in the number of complaints alleging arbitrary executions, as it was found that in the first six months of 1992 there were 74 complaints, and during the same period for 1993 there were 19. Yet he also noted that by September 1993 there were 35 extrajudicial executions. [24] The above-mentioned special rapporteur, in UN document E/CN.4/1995/61, of December 14, 1994, paragraph 250, stated:

The reports and allegations received by the Special Rapporteur during 1994 indicate that violations of the right to life continue to occur in Peru. As in former years, such reports refer to killings due to abuse of force by law enforcement personnel and members of the rondas campesinas, peasant self-defence groups cooperating with the security forces. In a large number of these cases, the victims are peasants suspected of being members or sympathizers of the armed insurgency. Particularly disturbing reports in this regard were received concerning the Huallaga valley in the Peruvian selva, where military counter-insurgency operations were said to have caused the death of more than 60 civilians, some of them allegedly after torture, in early 1994.

169.          The same special rapporteur, in UN document E/CN.4/1994/7/Add.2, paragraph 54, on the existence of death squads, stated:

The Special Rapporteur has received reports concerning active involvement of high-level military officers in the planning and carrying out of extrajudicial killings.  A “death squad” composed of members of the Division of Special Forces of the Army is said to operate under the command of a member of the National Intelligence Service, with the full knowledge and acquiescence of the President of the Armed Forces Joint Command.  The cases whose planning and execution have been imputed to this death squad include the massacre at Barrios Altos (see above, para. 34(e)) and the abduction and alleged execution of nine students and a professor of La Cantuta university (see below, paras. 55-73).  During the Ibero-American Summit at Bahia, Brazil, in July 1993, President Fujimori tacitly conceded to journalists that the death squad exists. Like most complaints about human rights abuses and, in particular, violations of the right to life, these grave allegations have not been the subject of thorough investigations by an independent and impartial body.

170.          These documents lead the Commission to conclude that in the period from 1984 to 1993, there was a systematic practice of extrajudicial executions, perpetrated by agents of the Peruvian State and persons linked to it who acted in coordination with the counterinsurgency struggle in their functions and aims.

171.          After the foregoing analysis, the Commission concludes that the facts alleged in the 19 petitions are part of the State’s systematic practice of extrajudicial executions, consummated by members of the Peruvian security forces and the anti-subversive rondas civiles campesinas, or peasant civil defense patrols, linked to the State, in practices tolerated by the State, in the context of absolute impunity, which was reaffirmed by the Peruvian State upon issuance of the Amnesty Laws.  

C.          Forced disappearance of persons in Peru

172.          During the period in question (1984-1993), the forced disappearance of persons was also a widespread practice.  The 25 petitions, among others, that are under analysis, refer to violations of the right to life of more than one victim, and in four of those 25 petitions, concurrently, there were allegations, not only of the summary execution of 83 victims, but also of the disappearance of 36 Peruvian citizens.  Six of the 25 petitions combined refer exclusively to the forced disappearance of 32 persons, and two of the cases analyzed include four disappearances in conjunction with summary executions, as part of a systematic pattern of violations of the right to life, perpetrated by state agents or persons linked to the state, and tolerated by the State, within the context noted of “anti-subversive” military operations, and with a similar modus operandi.  

1.          The forced disappearance of persons as a practice

173.          Next, the Commission proceeds to determine the possible participation of State agents in violations of the right to life, humane treatment, and liberty in Peru in the form of forced disappearance of persons during the period in question. [25]

174.          Through the systematic practice of forced disappearance of persons, Peruvian state agents or persons linked to them or who acted subordinated to them sought to repress the activities of the insurgent groups that opposed the government and to control the population as a whole from 1984 to 1993.  Forced disappearances of persons were perpetrated by the use of procedures that display similar and identifiable characteristics, in specific geographic areas that were under a state of emergency and in the course of counter-insurgency operations by the State.

175.          In the same 1993 Report on the Situation of Human Rights in Peru, the Commission addressed the problem of the forced disappearance of persons and mentioned that as of that date, the Commission had adopted 43 resolutions in relation to individual cases with 106 victims in all.  In addition, the State officially admitted having received 5,000 complaints in cases of forced disappearance from 1983 to 1991. [26] For her part, the Special Human Rights Prosecutor recorded 802 complaints concerning persons disappeared in 1992, 138 in 1993, 120 in 1994, and 8 in 1995.  Further, the United Nations Working Group on Enforced or Involuntary Disappearances received 3,004 cases from 1983 to 1992, and 20 in 1993. [27] In the report, classified as UN Document E/CN.4/1998/43, of January 12, 1998, that working group expressly stated:

The 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 Sendero Luminoso (Shining Path). 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 Sendero Luminoso 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 the Civil Defence Groups. Some 20 other cases reportedly occurred in 1993 in the Department of Ucayali and concerned largely the disappearance of peasants.

176.          The Coordinadora Nacional de Derechos Humanos of Peru, recognized as a non-governmental organization that serves as an umbrella group for several Peruvian human rights organizations, based on statistics from the U.N. Working Group on Enforced or Involuntary Disappearances, concluded that from 1983 to 1992, Peru was the leading or the second-leading country worldwide for the number of persons detained and disappeared, [28] and it found that from 1990 to 1992, 725 persons disappeared in Peru. [29]   It also added that in 1992, the national human rights groups received 286 complaints; of these 178 victims are still detained and disappeared. According to the records of the Public Ministry, the zones most affected by this practice were Huánuco (120 victims), Junín (86 victims), Ayacucho (76 victims), and San Martín (52 victims), and in almost 90% of the cases responsibility was attributable to the armed forces. [30]

177.          The ad hoc provincial prosecutor for the department of Junín, Ms. Imelda Tumialán, declared that in 1991 there were more than 100 disappearances in the department of Junín, [31] and the deputy attorney general of Peru, in a note of January 9, 1992, stated that in the first 11 months of 1991, there were 268 allegations of forced disappearance, very few of which could be clarified.

178.          The Commission deems it pertinent to recapitulate the following considerations on the phenomenon of forced disappearances in Peru that it offered when it decided together, not long ago, a group of 35 cases that involved 67 persons disappeared in different departments of Peru from 1989 to 1993.  In this respect, the Commission expressed itself in the following terms, which it now reiterates in full:

[T]he 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 operandi.

The 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.

In 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.

The modus operandi used, according to the petitions received by the Commission, in the arrests and disappearances in the cases in question, involving Messrs. ... shows an overall pattern of behavior that can be considered admissible evidence of a systematic practice of disappearances.

The 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.

This 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:

The 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. [Report of the Working Group on Enforced or Involuntary Disappearances, UN Document E/CN.4/1998/43, January 12, 1998, para. 297) .]

Dr. 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 non-governmental 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.

On 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 disappearances

On 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 disappearances:

Detention of the victims

The 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.

Most 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.

Another 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.

Once 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.

Generally, 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.

Official denial of the detentions

The 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 established previously:

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.

A 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

When 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 impossible.

Amnesty for those responsible for the disappearances

In 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 Peru.

Although 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.

(...)

Considerations relating to forced disappearances

The 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 Hemisphere.

The Commission has affirmed, in relation to the forced disappearance of persons, that:

This 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.

The 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 

a 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.

The 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.

The 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 result. [32]

179.          The documents that support the foregoing historical account and the facts analyzed in each of the cases in this report lead the Commission to reiterate that from 1984 to 1993, there was a systematic practice of extrajudicial executions and forced disappearance of persons in Peru, carried out by agents of the Peruvian State and tolerated by the Peruvian authorities.  This official practice was part of the counter-insurgency military operations that affected persons including students, teachers, trade union leaders, and opposition political party leaders, and peasants, who in most cases had no relationship with the dissident groups.

D.          Facts established

1.          Weighing the evidence

180.          With a view to determining whether the facts in the cases in question are part of the State policy of violating human rights, which included and tolerated summary executions and the forced disappearance of persons, and, therefore, to show the real occurrence of that practice, it is important that the Commission point out the criteria that govern the weighing of evidence, and also the burden of proof issues.

181.          In principle, the Commission will apply the legal principle provided for in Article 42 of its Regulations, which states:

The facts reported in the petition whose pertinent parts have been transmitted to the government of the State in reference shall be presumed to be true if, during the maximum period set by the Commission under the provisions of Article 34 paragraph 5, the government has not provided the pertinent information, as long as other evidence does not lead to a different conclusion.

182.          Second, as neither the Convention nor the Commission’s Regulations regulate in detail aspects relating to the criteria for weighing evidence, the Commission, following the international case-law and its own practice, shall apply the system of free weighing of the evidence, which gives it a measure of flexibility as regards determining the amount of evidence needed to support the judgment. [33]  

183.          In addition to direct testimonial, expert, and documentary evidence, one must consider the words of the Inter-American Court when it stated that “[c]ircumstantial evidence, indicia, and presumptions may be considered,” [34] in particular when a governmental practice of human rights violations has been shown.

184.          As regards the burden of proof, based on the general principle according to which in proceedings over human rights violations, when there are sufficient indicia to determine that the detention or systematic practice of the human rights violation is carried out by state agents, the Commission presumes that the victims were executed or disappeared by acts of Peruvian state agents. [35] Then, as it is the State that controls the means of evidence for clarifying the facts that occurred in its territory, it has the obligation to present them, which is why its defense cannot be based on omission by the petitioner, who also requires the State’s cooperation in order to marshal the necessary evidence. [36] The Commission has stated, of the burden of proof, that it

lies with the State, because when the State holds a person in detention and under its exclusive control, the State 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. [37]

185.          This brief synthesis of the international criteria that govern the weighing of evidence and the shifting of the burden of proof in cases of human rights violations, in the case of systematic practices of summary executions or detentions, whose final result is the summary execution and forced disappearance of persons, illustrates the effects of shifting the burden of proof and the active, elusive, or omissive conduct of the Peruvian State in the cases under study.

2.        Facts presented and their relationship to the practice of extrajudicial executions and the forced disappearance of persons

186.          As was noted, from 1984 to 1993 hundreds of persons were summarily executed or disappeared in Peru.  The cases reported reflect a systematic practice by State agents, with similar operational patterns. That modus operandi was common in the consummation of violations of the right to life: some executions and disappearances were consummated indiscriminately, without taking account of sex or age, and family groups were affected.  These arbitrary executions and disappearances were also selective: the victim or group was identified and chosen for their political affiliation, activity, or occupation, or presumed or real link with members of the dissident Peruvian groups Shining Path or Movimiento Revolucionario Túpac Amaru, and the victims were executed or detained, later to be executed or disappeared, even though witnesses were present, using, in most cases, firearms, and in which no person or judicial authority did anything to impede these incidents.  Most of the investigations ended without results, and in those in which members of the armed forces of Peru were identified as perpetrators, they were benefitted by the Amnesty laws or judgments ceasing the proceedings.

187.          In the 25 cases under study, the petitioners have presented lists of 120 victims, including men, women, and children, 84 of whom died violently, and 36 of whom continue disappeared.

188.          Due to the lack of more active participation by the Peruvian State, and by virtue of the principle that silence on the part of the respondent, or respondent’s elusive or ambiguous response, can be interpreted as acceptance of the facts stated in the complaint, or of its omission, on not providing any evidence to show that the state agents were not responsible for the extrajudicial executions, detentions, and cases of torture, in those cases in which they occur concurrently, the Commission concludes that human rights violations were perpetrated by the State, through its agents, in cases 10.247, 10.431, 10.472, 10.523, 10.564, 10.805, 10.878, 10.913, 10.947, 10.994, 11.035, 11.051, 11.057, 11.065, 11.088, 11.161, 11.292, 11.680, 11.126, 11.132, 11.064, and 11.200, or by persons linked to the State in cases 10.744, 11.040, and 11.179.

189.          According to the facts alleged and proven in the cases that are the subject of this report, the circumstantial evidence and the circumstances of manner, time, and place in which the facts were perpetrated evidence a common pattern in the modus operandi deployed by the members of the Peruvian Army and persons linked to it, in each of the four basic practices used at that time, in violation of the right to life, whose joint analysis offers circumstantial evidence of intent. Those four patterns of conduct corresponded to use of so-called “law of flight” (“ley de fuga”), i.e. claiming persons are killed while trying to flee, the modus operandi deployed in the urban and rural areas by members of the security forces of the Peruvian State, and the forced disappearance of persons perpetrated by the anti-subversive civil defense committees.

190.          In this context, in the Commission’s view, in four cases, numbers 10.913, 10.994, 11.065, and 11.680, the first involving summary execution and the last three involving arbitrary detention, torture, and extrajudicial executions, the crimes were perpetrated in keeping with one of the three basic practices that prevailed at the time, killing persons allegedly when they are trying to escape.

191.          In these four cases, all the victims resided in rural areas, and in areas under state of emergency, where counter-insurgency military operations were being deployed; in addition, each of them had previously been linked in one way or another with belligerent groups.  In terms of the modality used in the detention, only in case 10.913 were the four victims detained in flagrante delicto, given the confusing circumstances in which the detention occurred, [38] i.e. after a confrontation between community members and four belligerents, who the community members were accompanying against their will.  In case 11.860, [39] the patrol captured the victim at a check-point, and in two other cases, [40] the Army patrol captured the victims in their respective homes, and then took them to the military units, where they subjected them to torture and finally executed them, shooting them from behind. Without exception, all the victims had previously been brought under the control and were under the custody of the authorities, defenseless and unarmed; many had been tortured, and all received gunshot wounds, fired with precision, generally from behind, and concentrated in vital parts.  In the first three cases, the soldiers explained that the detainees tried to escape, and in the last, that he had died in combat when showing the patrol the places where they hid their weapons. Nonetheless, the corpse of Ricardo Salazar Ruiz had three gunshot wounds in the back and one in each leg, allowing one to infer, without much effort, an arbitrary execution.

192.          The second pattern of conduct in the modus operandi used by the State agents or persons linked to it, in the systematic practice of summary executions (10.878, 10.947, 10.994, 11.035, 11.051, 11.057, 11.065, 11.088, 11.161, and 11.680), the forced disappearance of persons (10.564, 11.126, 11.132), and in the cases in which these two forms of violation of the right to life concurred simultaneously (10.431, 10.523, 11.064, and 11.200) is that they all occurred in the rural areas of Peru under strict control of the Peruvian security forces.  In these cases, it was found that there were arbitrary detentions, torture, and extrajudicial executions or the forced disappearance of persons.

193.          First, the executions, and, in those cases where it occurred, the forced disappearances, followed a similar practice.  They were perpetrated systematically, selecting the victims based on their political activities, including students, teachers, trade union leaders, and, based on their criminal records, persons previously detained on charges of terrorism, and in areas where there had been combat or attacks by terrorist groups, as well as retaliatory acts. 

continued...