31.
Regarding the second proceedings on Pucutuccasa
The versions agree that:
-
Prosecutor Escobar requested, through the Office of the Attorney General
of the Nation, that the Political-Military Command provide him with a helicopter
to enable him to return for the other bodies and complete his investigation.
-
That notwithstanding the Ministry of Defense having issued an order that
Prosecutor Escobar be provided with a helicopter, no helicopter was made
available and he once again had to travel overland to Pucutuccasa mountain on
August 18.
-
That on this occasion he was again accompanied by court officers, the
Cangallo Provincial Judge, Dr. Carlos Amado Salazar and his secretary, Mr. Vidal
Canales, the Deputy Prosecutor, Dr. Santiago Cigueñas, interpreter Quispe and a
police escort was under the command of a Technical Police junior lieutenant
whose surname was Gil.
-
That they did not find the bodies they had dug up on the first occasion
nor any other, although there were stains of the kind left by bodies and human
hair.
-
That a record was made of the proceedings and was duly signed.
The Inter-American Commission considered the sole contested point here to
be the Melgar Report's affirmation (see point II) to the effect that Prosecutor
Escobar maliciously delayed his request for new transportation for seven days so
that the subversives could remove the bodies.
In this connection the Commission took the following into account:
(a)
That Escobar returned to Huamanga, Ayacucho, on August 10 by truck from
Erusco, after the exhumation performed in the night time. That the next day, August 11, Escobar telexed the Attorney
General of the Nation to ask him to request the Armed Forces Joint Command to
make a helicopter available, a telex that was repeated the next day.
(b)
That despite this request and the order from the Supreme Government and
the Attorney General of the Nation that the fullest cooperation be extended to
the Special Prosecutor, this helicopter was not provided.
(c)
That Prosecutor Escobar accordingly had to obtain land transportation to
take him out to the location, and then had to continue on foot on May 18, as the
record shows.
Accordingly, in light of the existing evidence, the Commission concludes
as follows:
-
That Prosecutor Escobar, as soon as he was able, took the necessary steps
to return for the second investigation on Pucutuccasa, requesting air
transportation for the purpose.
-
That the military authorities obstructed the course of justice by not
providing him with that transportation immediately, as they should have done,
and by so doing they delayed the inquiry, which gave time for the bodies that
had been discovered to be removed.
-
That the statements in the Melgar Report concerning malicious intent on
the part of Prosecutor Escobar are groundless and would appear to be intended to
discredit the prosecutor and the inquiry and to create confusion as to who it
was that removed the bodies.
32.
Regarding the identification of the body taken to Cangallo
The various versions agree:
-
That the body taken to the Cangallo Hospital after the first
investigation on Pucutuccasa, and which was found there, was that of a women in
an advanced stage of pregnancy.
-
That the nurse Martha Crisóstomo accompanied the Commission that moved
the body to the hospital where,once it was washed, she recognized it as being
the body of her aunt, JOVITA GARCIA SUAREZ.
-
That the body was taken to the morgue where an autopsy was performed.
-
That the body subsequently disappeared after having been buried.
As to the points in dispute, the Commission has given special
consideration to the following:
-
Even though the Granda Report cited in the Melgar Report (see point 11)
maintains that in her first testimony Jovita's sister, Flavia, never mentioned
that Jovita was pregnant, Flavia did tell Prosecutor Escobar, when giving him
information to help identify her missing sister, that Jovita was six months
pregnant.
-
And although the Granda Report cited in the Melgar Report, denies that
Flavia and Justiniano were present at the exhumation, there are numerous pieces
of evidence that show they were indeed there and that they identified their
sister's body (see point 29).
-
With regard to the Army's later assertion (in communique 014 CCFFAA and
as told by General Valdivia to the Senate Commission on September 22, 1988) that
Jovita García was "an Army informant who was killed by the senderistas,"
it is doubtful whether the subversives would have buried the body of an Army
informer alongside two people who had been accused of being senderistas in the
informant's letter made public by the Army.
-
The statements made by witnesses Flavia and Justiniano, sister and
brother of Jovita, to Prosecutor Granda in which they retracted their earlier
testimonies, were made in the barracks, in a pressure situation; not only do
they not agree with what they had said earlier, but they also contradict the
testimony of other people,as well as legal evidence and logical inferences.
-
That the importance the Melgar Report attaches to the fact that the
investigation in which the bodies of JOVITA GARCIA and others were found was
called an exhumation and not a bringing up of bodies is irrelevant, since:
(a) as the Melgar Report explains (see points 14 and 15), what was done
was in fact an exhumation; and (b) the technical and legal discussion does not
deny the reality of the facts to which the record signed by the court officers
and the authorities of the Prosecutor's Office relates.
-
That the action brought against Prosecutor Escobar by Senator Melgar
seeking to have the exhumation inquiry nullified was rejected by the Acting
Judge and that ruling was upheld by the Ayacucho Superior Court, which ordered a
fresh exhumation and autopsy to determine the cause of death, but without
annulling the first one. This
second exhumation could not be performed because the body had disappeared.
It should be noted that by that time Prosecutor Escobar had been
transferred from Ayacucho.
-
That the body had been identified in the presence of Prosecutor Escobar
and this identification had been duly recorded.
The question must be asked, whose interests would be served by the
spiriting away of the body? Identification
of a body can be done by those who killed the person or who knew him or her, or
by means of fingerprints or dental charts.
Dental charts were not used in Cayara and, given the amount' of time that
had passed, the body would definitely have decomposed by the time of the second
autopsy, since it was buried in a moist area.
Hence, only those who knew Jovita could have identified her, but since
all they would have found would have been a shapeless mass they would not have
been able to identify it so the identification made in the presence of
Prosecutor Escobar to the effect that it was JOVITA GARCIA would have remained
valid. On the other hand, removal
of the body meant that the new exhumation could not be done, with the result
that the position of Senator Melgar and of Prosecutor Granda could not
presumably be refuted.
Accordingly, in light of the existing evidence the Commission concludes:
-
That the body taken to the Cangallo hospital from Pucutuccasa mountain
was that of JOVITA GARCIA, who was abducted and killed by soldiers together with
ALEJANDRO ECHACCAYA and SAMOEL GARCIA PALOMINO.
-
That Senator Melgar's criticism of the procedure followed by Prosecutor
Escobar is unfounded.
33.
Regarding the events that occurred on June 29, 1988
On July 14, 1988, the Commission received a complaint to the effect that
on June 29 of that year, various people were eyewitnesses as GUZMAN BAUTISTA
PALOMINO, GREGORIO IPURRE RAMOS, HUMBERTO IPURRE, BENIGNA PALOMINO DE IPURRE and
CATALINA RAMOS PALOMINO were arrested in their homes in Cayara by uniformed
members of the Armed Forces, who took them away in an Army truck to an unknown
destination. The first two were important witnesses of the earlier events
in Cayara; the second-named had made a statement before Prosecutor Escobar while
the first-named had made statements to the parliamentary investigative
commissions and to the Peruvian press. The
other three are the father, mother and sister, respectively, of Gregorio Ipurre.
That complaint was conveyed to the Government on July 18, Thus far, there
has been no reply, even though the complaint was sent again on February 22, 1989
and September 7, 1989, noting possible application of Article 42 of the
Commission's Regulations.
The complaint had previously been formally filed with Special Prosecutor
Escobar on July 8, 1988. The
prosecutor took the testimony and, in his report, stated that he considered that
the persons named had been detained and caused to disappear by the military
forces.
In connection with this event, the Commission took the following
especially into account:
-
That apart from the testimony given to Prosecutor Escobar (see point 7),
concerning this abduction and disappearance, several eyewitnesses personally
told the director of Americas Watch -- according to the latter's testimony
before this Commission -- that the abductions were carried out at night by
uniformed Army personnel and with violence.
According to that testimony, relatives of the people concerned watched as
their loved ones were taken to the permanent base that the Army had set up in
Cayara on May 18. Other
residents watched as, in the early morning hours, the detainees were forced to
climb on board an Army truck which then headed in the direction of the military
base at Huancapi. Accordingly, in light of the existing evidence the Commission
concludes that:
-
Military forces abducted and then caused the disappearance of GUZMAN
BAUTISTA PALOMINO, GREGORIO IPURRE RAMOS, HUMBERTO IPURRE, BENIGNA PALOMINO DE
PURRE and CATALINA RAMOS PALOMINO in the night of June 29, 1988.
-
That these disappearances were due to and connected with the fact that
the two first-named had made statements and public accusations against the
military in connection with the central events under analysis.
34. With respect to the
deaths of witnesses on December 14, 1988
As noted earlier, JUSTIANIANO TINCO GARCIA, FERNANDINA PALOMINO QUISPE
and ANTONIO FELIX GARCIA TIPE were killed on that date by hooded persons as they
were travelling in a truck carrying around 15 people, when it was stopped near
Cayara. The complaint states that
the hooded men were presumably linked to the military forces.
It also states indicated that the other passengers were told to get out
and continue on foot, and that they would be killed if they reported what had
happened.
The Commission took the following into particular consideration when
examining this incident:
-
The three were important witnesses to the central events under analysis
and the first two, the Mayor of Cayara and the Secretary in the Mayor's Office,
respectively, had testified to Prosecutor Escobar, other authorities and the
press, stating that the military were responsible.
-
It is clear that the assassins knew who it was they wanted to kill and
picked them out from among the other passengers.
-
Their deaths continued a pattern of annihilating the principal witnesses
to the events in Cayara.
-
Despite repeated requests from the Commission, the Government has not
replied to this complaint, and has not initiated any investigation into the
matter.
-
The Melgar Report (see point 11) contends that the Mayor's Office was
controlled by subversive elements, which seems to be indicated by the military's
animosity toward the victims.
In view of the foregoing, the Commission concludes that agents of the
Peruvian State, presumably military, were the authors of the violent deaths of
JUSTINIANO TINCO GARCIA, FERNANDINA PALOMINO QUISPE and ANTONIO FELIX GARCIA
TIPE, the day of December 14, 1988, motivated by the fact that they were
witnesses to the events in Cayara in May of that year.
35.
With respect to the death of MARTHA CRISOSTOMO GARCIA
According to complaints the Commission received and transmitted to the
Government, on September 8, 1989, eight hooded men dressed in military uniform
entered the house of MARTHA CRISOSTOMO GARCIA, in the Cooperativo Ciudad de las
Américas neighborhood, San Juan Bautista de Huamanga, Ayacucho, at three in the
morning, shot her several times and killed her.
Martha had made a statement in front of Prosecutor Escobar on the central
events, had identified the body of her aunt Jovita García, and had made
statements to the Congressional Committee and the press.
When analyzing this event, the Commission has considered the following in
particular:
-
That the deceased was a very important witness, because she had been
present at and testified to a number of the key elements in this case, and had
leveled direct charges against General Valdivia.
-
That she had been detained for fifteen days at the Huancapi Base, after
the central events, and was released when human rights organizations interceded
on her behalf.
-
That she had left Cayara for the sake of her safety.
-
That to ensure her safety Prosecutor Escobar arranged for her to be
transferred from Cayara to Huamanga, where by his order she was provided with
guarantees throughout the entire duration of the investigation.
That when the Director of the Huamanga hospital ordered her to return to
Cayara on November 19, 1988, she requested Special Prosecutor Escobar to arrange
for her to stay in Huamanga, which he did.
-
That even though there were numerous witnesses to the murder who were
drawn to the scene by the deceased's screams, and even though three bullets were
found in her body, the investigation turned up no evidence whatever, nor did it
identify the bullets; a decision by the Provincial Prosecutor of Ayacucho, dated
January 18, 1990, temporarily archived the case.
-
That in spite of repeated requests of the Commission (see point 4), the
Government has not sent any information in connection with this case, which is
being processed by this Commission.
-
That as note before, this is a part of a pattern to wipe out the
principal witnesses to these events who had testified that the military forces
were responsible.
In consequence, in light of the existing evidence, the Commission
concludes that:
-
Agents of the Peruvian State murdered MARTA CRISOSTOMO GARCIA in order to
prevent her from providing any further testimony in the case under analysis.
ANALISIS OF THE PROOF AND CIRCUMSTANTIAL EVIDENCE
36.
There is controversy surrounding some of the proof and circumstantial
evidence presented before this Commission, so that the Commission believes it is
important to examine their merits.
37. With respect to
the competence of Prosecutor Escobar to
conduct the investigation into the events
From the telex and official communications that the Commission has in its
possession, and that are mentioned above, it is clear that the highest-ranking
authorities of the Department of Justice instructed and specifically confirmed
the assignment of this investigation to Prosecutor Escobar, who was also the
Special Prosecutor in charge of disappearances in the area of Ayacucho. This special prosecutor's office was created precisely
because of the failure of the Provincial Criminal Prosecutors to investigate
these cases and because of their inability to obtain from police and military
authorities the necessary cooperation.
The competence of Prosecutor Escobar to investigate this case was
acknowledged by his superiors in the Department of Justice, as well as by the
military authorities, despite the many
obstacles the military authorities put in his way, which are analyzed later.
Moreover the court authorities of Ayacucho ultimately upheld his
competence with respect to one of the principal inquiries, which Senator Melgar
tried to have nullified.
Furthermore, to refute Senator Melgar's charge of an alleged
"usurping of functions" one need only point out that had that been the
case, considering the importance of this case and of the presumed crime, the
least that the Attorney General of the Nation might have done would be to
institute some sort of administrative criminal action, but that was never even
attempted.
38. With respect to the
list signed on May 22 by those who
allegedly disappeared and died
One of the key pieces in the Government's response is the Melgar report,
which attaches central importance to a list of persons who were summoned by the
military authorities at Cayara on May 22 (one week after the central event of
the 14th and 15th of May), persons who signed either for themselves or for
relatives to demonstrate that they were alive and present.
The signatures and fingerprints on those lists, one of "alleged
deaths" and another of "alleged disappearances," (hereinafter:
"lists of supposed victims") were calculated to demonstrate
that the individuals in question were alive.
Those lists had a dual purpose:
-
to demonstrate that the complaints made were groundless, and
-
to publicly demonstrate that those complaints were malicious and intended
to discredit and thwart the Army's antisubversive activities.
To analyze them, the Commission has taken two factors into account: the
context in which these signatures were taken and those who signed it.
As for the first point, it is obvious from the statements made by several
witnesses, and not refuted by the Government, that "the list of supposed
victims" were signed inside the base established by the military, in the
very place where other townspeople had been forcibly taken and presumably
tortured and from which a number had disappeared.
Statements made under such circumstances obviously are not credible.
However, what is at issue here is not a declaration but rather a record
of their very existence, a demonstration that they were alive.
If one accepts that the signatures were made by the persons named there,
or by their next-of-kin who are attesting to their being alive, the question is
whether those names belong to people who had earlier been reported dead and
missing and whether all of them are there.
Therefore, the names must be cross-checked with reliable reports filed
prior to that date. At around that time, the Commission received a number of
complaints, which added to or made adjustments to the list of victims, as better
information was being obtained as to the whereabouts of missing persons or
allegedly dead persons, their names, or whether they had been released or had
reappeared. And so it has reports
in its file from May 18, May 20, May 24 and May 25 of 1988 (see point 1).
Each one of those complaints, since the one of May 20, had lists of
victims or reported the names of people who had reappeared or had been released.
The results of the cross-check of the lists show that:
a)
Of the 79 people reported to the Commission and to the press and national
authorities prior to May 22 as either dead or missing, the lists of
"alleged victims" include 37; in other words, there are 42 names that
do not appear on either of these lists.
b)
The lists of supposed victims include three other names for whom there is
no evidence of their having been reported previously as victims.
c)
That one of the institutions filing a complaint (APRODEH) also made
public and informed the Commission at the same time that individuals who had
previously been reported as victims had reappeared or been released. In effect,
18 of the people on the list that that institution supplied of persons who have
reappeared also appear on the "lists of supposed victims" presented by
the Government; the institution reports another 4 people, released by the
Government, whose names do not appear on the "lists of supposed
victims" presented by the Government.
Summarizing, the Commission concludes that the document in question does
not refer to and is thus unable to disprove the numerous cases of deaths already
reported as of that time and of other persons whose death or disappearance was
reported thereafter. Those reported
to the Commission by Americas Watch and Amnesty International.
Furthermore, the fact that human rights institutions made public and sent
to this Commission at that time, similar lists of persons who had either
reappeared or been released, shows that the institutions filing the complaints
with the Commission were not acting in bad faith or attempting to misrepresent
the facts for political purposes, as the Government alleges; instead, it shows
that those institutions were monitoring, in a proper and serious manner, a
situation where it was difficult to get detailed information that was constantly
changing.
39. As for the list
of victims presented in the Report
of Prosecutor Escobar
In his resolution of October 13, 1988 (see point 7), Prosecutor Escobar
indicates a series of casualties, listing deaths, disappearances and individuals
who were arrested and later released.
Cross-checking those lists with the remaining evidence, including the
list of "alleged disappearances" and "alleged deaths" that
were signed to attest to the fact that they were alive on May 22 (see point 38),
the Commission concludes the following:
a)
That of 69 victims reported by Escobar as dead, tortured or disappeared,
45 are completely consistent with the other complaints and do not appear on the
"lists of supposed victims."
b)
That among these 45 cases that are uncontested by any other complaint or
countercomplaint, are all of the victims of the events that occurred in Ccechua
on May 14; all of the statements concerning that event are unanimous and
concordant.
c) That the remaining 24 are cases of individuals who were originally
reported as missing and who later signed the list of victims who were allegedly
alive, but whom Prosecutor Escobar reports as "unable to locate as of the
date of his report."
Bearing in mind that Prosecutor Escobar based his assertions on
statements made by witnesses who reported these people as missing, this may
explain the apparent contradiction regarding this group of persons, since:
-
A number of them were detained or disappeared after May 22 (the date of
the list of supposed victims), which is why Prosecutor Escobar included their
names.
-
The list of "supposed victims" was signed at the request of and
in the presence of military personnel. The
individuals who were signing had been arrested and released (and in some cases
tortured). After signing, they may
have been allowed to leave Cayara or go into hiding, making it impossible for
Prosecutor Escobar to locate them. He
would thus keep them on the list of people he was unable to find.
The Commission points out that none of the victims named in the complaint
presented by Americas Watch to this Commission, dated November 7, 1988, appears
on the lists of alleged victims who are alive, except for cases of individuals
who either disappeared or were killed subsequent to May 22.
40.
With respect to the interpreter Alfredo Palomino Quispe Arango
The Melgar Report contends that Prosecutor Escobar appointed this
individual and that the latter, working in collusion with Prosecutor Escobar,
lied about what the witnesses were saying; it further contends that there were
contradictions as to his identity in a number of the pieces of testimony, since
he had used the identification number of some of the witnesses as his own.
Melgar's statement that Quispe obtained his job through Escobar is wrong,
since in this regard the Commission notes that this particular individual
received his official appointment to work in the Office of the Special
Prosecutor on December 28, 1984, under order 1455-84-MPFN, years before
Prosecutor Escobar was assigned to that office.
As to falsification of witnesses' testimony by the interpretation from
Quechua to Spanish, there is no evidence in that regard; on the contrary, in
fact, many of the witnesses could speak Spanish also and had elementary or
secondary educations; their testimony were concordant with the ones that the
interpreter rendered, which indicates that the interpretation was correct.
Furthermore, the errors in the personal identification numbers of the
interpreter were explained by Prosecutor Escobar in a letter to the Chief
Criminal Prosecutor, on November 24, 1988 (stating that in haste, all of the
identification numbers, those of the witnesses and of the interpreter -- were
taken down on a piece of paper and that when they were recopied, the wrong
numbers were put down in three cases); it should be noted here that the mix-up
with identification numbers has no logical connection whatever as grounds for
contending that his interpretation between Quechua and Spanish was incorrect.
The allegation that the interpretation he rendered of the testimony given
by Teodora Apari Marcatoma was false, based on the fact that she later withdrew
her testimony, is refuted by the circumstances that uphold the original
testimony, where the individual in question had served as interpreter (see point
27).
The Commission therefore concludes that there is no reason to doubt the
interpretation rendered by this staff member of the Public Prosecutor's Office,
Alfredo Palomino Quispe Arango.
It further concludes that the efforts of the Melgar Report to discredit
his testimony was part of a pattern calculated to exonerate the agents of the
State of any blame, which was what the Senators on the Commission who were
members of the then governing party attempted to do by way of that report.
CONCERNING THE OBSTRUCTION OF JUSTICE
41.
The various complaints filed with the Commission allege facts that would
also constitute systematic violation on the part of various organs of the State,
of the guarantees protected under Articles 1 (Obligation to Respect Rights), 25
(Right to Judicial Protection) and 8 (Right to a Fair Trial).
That systematic violation would also be an important factor in weighing
the evidence and establishing blame. It
is, therefore, appropriate that the Commission should examine those allegations.
42. Concerning the
investigation by the Commission composed of noted public figures
(Committee of Notables)
As reported, once it learned of the events, the Government immediately
appointed a commission of notable public figures, among them the Minister of the
Interior, the Minister of Defense, the Auxiliary Bishop of Lima, Monsignor
Beuzeville and the President of the Bar Association of Peru, Dr. Raul Ferrero,
who after making a direct observation went to Cayara by military helicopter on
May 20.
All of the reports indicate the following:
-
That numerous efforts were made to prevent the Commission from moving
about freely, and so it never even visited the Cayara Town Hall, nor did it have
a chance to speak freely with the townspeople, since only a few were allowed to
approach it and always in the presence of military.
-
That it was not taken to Ccechua even though the members of the
Commission had received numerous complaints in Cayara to the effect that deaths
had occurred in Ccechua and that there were graves there.
-
That by not supplying transportation and unnecessarily delaying the
Congressional Commission at checkpoints on roads, police and military delayed
the arrival of the Congressional Commission and of the group consisting of the
Special Prosecutor, so that it was unable to be in Cayara at the time the
Government Commission was there (see
point 43).
From the foregoing, the Commission concludes that police and military
made intentional efforts to obstruct the Commission's independent observations;
because of that, the Commission had limited and distorted access to possible
sources of information and evidence of what had happened.
While it was a commendable action by the Government to appoint this ad-hoc
Committee, the manipulation of their visit is an act of obstruction of justice.
It must be noted that afterwards some of its members testified before the
Senate Commission and distanced themselves from the official version.
43.
With respect to the prosecutor's investigation
and subsequent measures
The Commission has examined the following in this regard:
a)
That on May 17, 1988, the Council of Ministers sent a message to the
Attorney General of the Nation, Dr. Hugo Denegri Cornejo, requesting that he
launch an inquiry; in that document they stressed that "the Government
should provide all of the facilities and guarantees that the Attorney General
deemed necessary for him to discharge his function fully..."
-
That that same day, the President of the Republic visited Cayara
personally, where he had an opportunity to speak with relatives of the victims.
b)
That to take charge of the matter, the Attorney General of the Nation
appointed the Special Prosecutor for Disappearances, Dr. Carlos Escobar;
according to the telex dated May 24, sent on behalf of the Chief Criminal
Prosecutor, he was to "conduct a thorough and impartial investigation into
the events that occurred in ... Cayara..., for which we have the support of the
President of the Council of Ministers."
c)
The only way to get to Cayara is by helicopter or by overland transport. On May
20, Prosecutor Escobar tried to reach Cayara from Ayacucho, but he was not given
a vehicle by the Political military command that was obligated to do it by the
mandate of the Council of Ministers cited above. Finally, the Senate Commission headed by Diez Canseco which
had just been given a vehicle by the Investigating Police at 5:30, reached
Ayacucho at 9:30 p.m., and there met with Escobar and the medical experts.
They left Ayacucho on May 21 at 5:00 a.m., were held up for 3 hours at
the Pampas River by military and again at Huancapi for an hour and a half;
finally they allowed them to go on, but they held back the medical experts.
The result of the refusal and the delays was that:
1) the prosecutor and the Senate Commission were unable to be in Cayara
at the same time as the members of the Government Commission (Ministers, a
Bishop and the President of the Bar Association); and 2) not allowing the
medical experts to pass they prevented access ato the bodies and performance of
autopsies that day, thereby obstructing justice, which is a crime under Peruvian
law.
d)
That on May 21, when the Prosecutor Escobar and his party tried to go to
Erusco for an on-site inspection of the place where the ambush had taken place,
military forces prevented them from doing so, saying that there was shooting in
the area; the Cangallo Judge recorded this:
e)
That initially, Prosecutor Escobar was not given any sort of police
protection even though he requested it, and later was assigned only one trooper,
who was then withdrawn. Even though
he had received threats and asked for protection from the Political-Military
Command, that protection was not given to him.
f)
"Captain Palomino" tried to intimidate the witnesses who were
to make statements before Prosecutor Escobar, and the latter had to file a
complaint with Col. Córdova, who was also in Cayara on May 21; photographs were
taken of the Captain, who was recognize by many of the witnesses as the leader
responsible for part of the events in Cayara after May 15.
g)
The Political-Military Command even though it was asked by the General
Attorney did not provide a helicopter for the second inquiry at Pucutuccasa,
after the bodies were discovered there.
h)
The military authorities did not supply the Attorney General with the
information that would make it possible to identify "Captain
Palomino"; Prosecutor Escobar had sent a photograph of said officer to the
Attorney General in June 1988, and then again in September 1988.
It was the officer who witnesses said was the leader immediately
responsible for the violations. The
Commission does not have information that the Attorney General of the Nation
ever took that measure.
i)
While the investigation was in full swing, on October 3, 1988, and in his
office in Ayacucho, the Special Prosecutor Escobar received a communication from
the Attorney General of the Nation to the effect that he was to conclude the
investigation within 10 days. On
October 4, he sent a request to the Chief of the Air Force in order to get a
helicopter to go to Cayara, as he had received information that the bodies were
at Chincinga. He had received that
information from Fernandina Palomino, who would accompany him to Chincinga.
The Air Force chief replied that he could only authorize the helicopter
upon orders from General Valdivia. Because
of that he requested an automobile to go overland, but on October 6 he received
a telex from the Attorney General summoning him to Lima.
In Lima, he met with Dr. Denegri, who prohibited him from traveling to
Ayacucho and ordered him to remain to complete the case file.
The Prosecutor completed completed the file and his report on October 14,
which was presented that day, on orders from the Attorney General, to the Chief
Criminal Prosecutor, Dr. Pedro Mendez Jurado, who in turn forwarded it to Dr.
Hugo Denegri Cornejo.
j)
That according to testimony by Prosecutor Escobar before this Commission,
when he had completed his report, on October 18 he received a copy of a
resolution that, for reasons of service, terminated his services as Special
Prosecutor in Ayacucho and ended his role in the case.
In this way, he was prevented from pursuing his investigation of the
death of witness Gregorio Ipurre, an investigation that might have turned up new
evidence.
k)
That according to testimony of Prosecutor Escobar before the Commission,
at that point in time, Prosecutor Escobar had 572 investigations in progress
concerning persons who had disappeared. In
his testimony, he said that he was warned to turn over all of the files, in
order, within four days. He did so,
delivering them to the Chief Criminal Prosecutor of Ayacucho. In those files, there was evidence of responsibility on the
part of the Armed Forces; all that remained was to identify, by name, the
officers responsible, for which a request from the Attorney General of the
Nation to the Minister of Defense or Joint Command was needed.
Prosecutor Escobar declared that the Attorney General of the Nation, Dr.
De Negri Cornejo, ordered that the 572 cases containing evidence that members of
the army in Ayacucho and Apurimac had been repeatedly violating human rights in
that area, be dismissed.
l)
Prosecutor Escobar also declared that to replace himself, a Provincial
Prosecutor was appointed in Cangallo to take charge of the case. The Prosecutor that was there was terminated without reason.
Dr. Hidalgo Pasco was appointed to replace him.
They wanted to assign the investigation to him, but he resigned
overnight. The latter told Prosecutor Escobar that he had too many years
of service and did not wish to spoil it by doing what he had been ordered to do.
In his place, Prosecutor Granda was named.
m)
According to that same testimony, up until then the Provincial Prosecutor
of Cangallo was in charge of the jurisdiction of Fajardo, where there was no
prosecutor appointed. Shortly after
Dr. Granda began his investigation, someone was appointed to the post of Fajardo
Public Prosecutor. The new public
prosecutor of Fajardo was sworn in before the ranking Judge of Huamanga and from
there he travelled to the area, where he spoke with the Judge of Cangallo and
asked him for the files on the Cayara case.
There they realized that it was up to him to investigate Cayara.
The next day this new prosecutor was terminated, and the case was taken
again by Prosecutor Granda.
n)
Prosecutor Granda's report was presented on November 24 and in that
report, based on limited testimony, that prosecutor ordered that the cases be
filed (see point 11). The
testimonies, as noted earlier, were taken inside Huancapi military headquarters,
as the Judge of Cangallo had told Prosecutor Escobar.
Other points in this report (see point 44) indicate that that testimony
was hardly credible. In that report
Prosecutor Granda tries to demonstrate that the body found was not that of
Jovita García; attempts to discredit the work of Prosecutor Escobar and to cast
doubts about the conduct of the interpreter attached to the Office of the Public
Prosecutor.
o)
The resolution of Prosecutor Granda was nullified by the Attorney General
of the Nation, Manuel Catacora, on September 23, 1989, after another major
witness, MARTA CRISOSTOMO GARCIA (see point 35), was murdered. That murder received heavy coverage in the Peruvian and world
press. The decision was nullified
on the grounds that it was flawed, and a new investigation was ordered.
No corrective action against Prosecutor Granda was ever taken.
p)
According to his statement and copies of the respective decisions, when
his appointment to the Ayacucho post was terminated, a decision of the Attorney
General of the Nation, dated April 14, 1989 transferred Escobar to the post
of the Office of the Chief Prosecutor of Loreto.
According to his statements, he dealt with drug trafficking and smuggling
cases, and cases of related judicial corruption.
There again, his investigations were thwarted until finally, by Decision
441 dated July 31, 1989, the Attorney General of the Nation, Catacora González,
terminated his services with the Department of Justice.
Escobar filed an appeal against the decision terminating his services, an
appeal that -- according to his statements -- was favorably received by the
presiding judge, who found it well substantiated and who ordered the Attorney
General of the Nation to reinstate him as a Prosecutor.
Nevertheless, after receiving several threats he decided to abandon the
country.
q)
Finally, the new investigation of Cayara was assigned to the Provincial
Prosecutor of Ayacucho, Dr. Rubén Vega, who issued his report on January 23,
1990. That report does not reflect
any additional inquiries. Instead,
basically it draws on the testimony taken by Dr. Granda, which had earlier been
nullified, and upon the report of the military themselves.
Even though it accuses the "people of Cayara" of general
complicity in the ambush of June 13, it offers no evidence in support of the
accusation. It orders that the
cases be filed once and for all.
44.
Harassment and disappearance of witnesses and
twisting of testimony
According to the reports and documents the Commission has in its
possession, during the investigation of the events there have been continuous
instances in which, by one means or another, efforts have been made to alter the
testimony. There is evidence that
this has happened in a number of cases examined in the analysis of the events
(points 22 to 35), among them the following:
a)
The fact that when the Special Chief Prosecutor Escobar was replaced by
Prosecutor Granda, the latter obtained from a number of witnesses retractions of
their earlier testimony. According
to Prosecutor Escobar's statements to the Commission, those retractions were
obtained at Military Headquarters in Huancapi, where the witnesses knew people
who had either been held prisoner there or disappeared from there.
A number of these retractions were not retractions at all, because the
witnesses in question had never testified before Prosecutor Escobar.
Others, like those analyzed below, have been discredited by other
evidence. Furthermore, the entire
investigation and the Final Report of Prosecutor Granda was nullified by the
Chief Prosecutor after September 1989.
b)
In the case of the witness Maximiliana Noa Ccayo, an illiterate woman
(see point 27), her original testimony was backed up by the recent testimony of
her daughter Delia, who speaks and reads Spanish, as the record shows.
c)
In the case of the witness Teodora Apari Marcatoma (see point 27), who
told Prosecutor Granda that she was not in Cayara at the time of the events and
therefore did not know what the military did, her original testimony had been
taped by members of the Congressional Committee; she would later reconfirm her
original statement in testimony before the Provincial Judge of Ayacucho on July
11, 1988.
d)
On May 17, the military washed down the church to remove any trace of
blood or human remains, according to the testimony of a number of witnesses.
e)
The body of the man killed at the entrance to the town disappeared (see
point 25);
f)
The bodies of those killed in the church disappeared (see point 27);
g)
The bodies of those killed in Ccechua disappeared (see point 28);
h)
The bodies found by Prosecutor Escobar in Pucutuccasa disappeared (see
points 30, 31 and 32);
i)
Using irrelevant details, an attempt was made to discredit the job of the
interpreter who worked for the Prosecutor's office, in order to discredit the
testimony of the non-Spanish speaking witnesses (see point 40);
j)
Four witnesses were the victims of extra judicial executions on December
14, 1988 (see point 34);
k)
The witness Marta Crisóstomo was killed (see point 35);
l)
19 peasants from Erusco filed a complaint with the Office of the Special
Prosecutor wherein they all assert that the Army pressured them to say that
Jovita García had been taken by terrorists;
m)
The witness Delfina Pariona Palomino's retraction in the presence of
Prosecutor Granda in connection with the death of her husband is discredited
because her original testimony was corroborated by that of Juana Apari Ore, who
was with her when they found the bodies of their husbands (see point 28).
45.
In consequence, in light of the existing evidence with respect to the
obstruction of justice, the Commission concludes that:
-
Throughout the proceedings surrounding the events of Cayara, there has
been a systematic obstruction of justice on the part of the machinery of the
State, even by the officials of the Department of Justice, by the military and
by the majority of the Senate Investigating Commission.
-
That that obstruction includes not only the case under analysis, but many
others that have occurred in the Ayacucho area and that were being investigated
by Prosecutor Escobar.
-
That that obstruction of justice constitutes not only a violation of the
rights recognized under Peruvian Law and the American Convention, but also
serious added evidence of the responsibility of the agents of the State for the
violations that occurred in that area, especially those being examined here.
-
That the military investigation not only avoided any further
investigation to ascertain the truth, but also served as a systematic cover-up
of the unlawful conduct of members of the military.
WITH RESPECT TO THE RELATIONSHIP WITH THE INTER-AMERICAN COMMISSION OF
HUMAN RIGHTS
46.
Throughout the entire processing of these cases, and in spite of numerous
opportunities that the Government was offered, it maintained a posture of
silence, which it broke only on two occasions, once to assert, just days before
the Commission was scheduled to meet at the 76th Period, that the domestic
remedies had not been exhausted, since investigations were in progress, and a
second time in May of this year, 1990, stating that all of the proceedings and
investigations in progress had been completed and were either filed or
dismissed.
The only information supplied by the Government in the central case
(10.264) were the conclusions of the majority report of the Senate Commission
and the final report of the provisional Prosecutor of Ayacucho, as well as the
report of the Political-Military Commander.
In cases wherein witnesses such as Prosecutor Escobar testified in
hearings before this Commission, hearings at which representatives of the
Government were present, the Government did not make any response, either then
or subsequent thereto.
In the cases of the witnesses who were murdered subsequent to May 1988,
the Government has yet to send any response, despite repeated requests for
information by the Commission (see points 3 and 4). (Cases 10,206, 10,264 and
10,276.)
This lack of cooperation with the Commission on these cases and the
nature of the violations is such that it would be improper to seek a friendly
solution to the matter founded upon respect for the human rights upheld in the
American Convention on Human Rights, in the sense indicated in Article 48.1.f
thereof.
All these conclusions are reaffirmed by the fact that there are numerous
complaints before this Commission of massacres of villages by the Armed Forces,
where the Government has not cooperated with the Commission in its efforts to
deal with these cases and shed light on them or resolve them; there are also
dozens of individual or group cases that follow the same pattern, cases in which
the Commission has declared that it found that agents of the Peruvian State had
violated human rights, especially the right to life, the right to humane
treatment and the right to freedom. (See
IACHR Annual Reports, 1988, 1989 and 1990).
-
That the Inter-American Court of Human Rights has declared that Article
1(1) of the Convention "charges the States Parties with the fundamental
duty to respect and guarantee the rights recognized in the Convention.
Any impairment of those rights which can be attributed under the rules of
international law to the action or omission of any public authority constitutes
and act imputable to the State, which assumes responsibility in the terms
provided by the Convention." (Godínez Cruz judgment, paragraph
173). In that respect the Court has said the obligation to
"ensure" the free and full exercise of the rights recognized by the
Convention "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." (idem.
par. 175).
WITH RESPECT TO THE COMPETENCE OF THE COMMISSION
47.
Given the nature of the violations and the fact that the parties have
accepted the competence of the Commission in respect of these cases, in
accordance with its faculties under the American Convention on Human Rights, and
since the grounds for the complaints persist so long as no one is found guilty
of or responsible for the events, the Commission considers that these cases are
within its competence.
CONCLUSIONS AND RECOMMENDATIONS
48.
Based on the background information in the instant cases and the
foregoing considerations,
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
1.
Declares that the Government of Peru has violated Articles 1 (Obligation
to respect rights) in conjunction with the rights recognized in Articles 4
(Right to life), 5 (Right to humane treatment); 7 (Right to freedom), and 21
(right to private property), upheld in the American Convention on Human Rights,
of which the Republic of Peru is a State Party, by its responsibility in the
extrajudicial executions, tortures, illegal imprisonment and disappearances, and
property damages of the following Peruvian citizens who were victims of the
action of security forces in the area of Cayara, Ayacucho and thereabouts, and
especially of the following persons:
ESTEBAN ASTO BAUTISTA
2.
Declares that the Government of Peru has violated Articles 8 (Right to a
fair trial) and 25 (Right to judicial protection) of the American Convention.
3.
Recommends to the Government of Peru that it launch an exhaustive and
impartial investigation into the facts denounced to find the person or persons
responsible for the violations indicated in operative paragraphs 1 and 2, and
described in the body of this report, to bring to trial and punish those
responsible.
4.
Recommends to the Government of Peru that it inform this Commission of
the findings of the investigation recommended in the above operative paragraph
within sixty days of the date of this Report.
5.
Recommend to the Government of Peru that fair compensation be paid to the
victims and/or their next of kin, and that it report on this to the Commission
within the period established in item 4 above.
6.
Given that the Republic of Peru has recognized the jurisdiction of the
Inter-American Court of Human Rights, it declares that it will join these cases
and refer them to the said Inter-American Court of Human Rights, in accordance
with the provisions of Articles 51 and 60 of the Convention.
7.
Requests the Peruvian Government to guarantee the safety of all witnesses
and relatives of the victims indicated in the first operative paragraph.
8.
Decides to communicate this report to the Government of Peru and to the
claimants, indicating that it cannot be made public. [
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