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11. With this note the Government enclosed the majority conclusions of the Senate Investigating Commission (Melgar Report), as follows: FINDINGS
OF THE COMMISSION INVESTIGATING
The Investigating Commission has reached the following conclusions:
1. It has been established that on
May 13, 1988, an Army patrol was ambushed in the vicinity of Erusco by
senderista elements. They blew up
one of the trucks by planting sticks of dynamite on the road beforehand.
Infantry Captain José Arbulú Sime, Sergeant Second Class Angel Vargas Támana,
and Corporal Fabián Rondán Ortiz were killed immediately and Corporal Carlos
Espinosa de la Cruz died later in the Mobile Surgical Unit from Ayacucho.
Some 15 Army troopers were injured, five of them seriously.
2. It has been established that the
ambush totally put out of commission UNIMOG troop carrier No. 12082, which is
State property. The senderistas
either took or destroyed eleven light automatic rifles (LAR), calibre 7.62; a 9-calibre
HK-MPSKA submachine gun, 52 LAR cartridges and 14 HK cartridges.
3. It has been established that
despite the numerical superiority of the assailants and the element of surprise
in the ambush on the military convoy, the surviving members of the patrol did
all they could to repel the attack. A
number of unidentified subversives died in the attack, and presumably others
were wounded. The senderistas
evacuated them in the direction of the neighboring villages before Army
reinforcements from Huancapi could arrive.
4. It has been established that,
carrying out the Plans of Operation in effect, principally the "PERSECUCION"
Plan (P/A PERSECUCION), Peruvian Army reinforcement patrols began tracking the
senderista column that had headed out in the direction of the town of Cayara.
5. The town of Cayara was found to
be semi-abandoned, save for some children and elderly, who said there were five
bodies in the town's church. They
were the bodies of subversives wounded during the ambush on the patrol and who
had died from their wounds in the escape; because fresh military troops had
arrived there had been no time to bury the bodies or take them
along.
6. That as the search operations
continued in the area around the town of Cayara, specifically at the place known
as Jeschua, there were more clashes between the government forces and the
senderistas. These clashes resulted
in unconfirmed casualties among the ranks of the subversives.
7. It has been established that on
May 17, 1988, the Mayor of the Huamanga Provincial Council, Mr. Fermín Darío
Asparrent, issued a communication intentionally reporting false criminal acts
allegedly committed by members of the Army against the townspeople of Cayara.
8. It has been established that news
of the false criminal acts attributed to military troops and their supposed
excesses in Cayara was, with wrongful intent, filtered to the national and
foreign media as part of a campaign engineered to look like an effort to defend
human rights when in fact one of its immediate political objectives was to
prevent government forces from continuing their search for senderista elements
in the wake of the Erusco ambush.
9. It has been established that to
accomplish that political objective, elements of the Army were accused of being
the material authors of a massacre of some one hundred persons in Cayara. This drew the attention of the public both at home and
abroad, and of the Government, public leaders and various political sectors and
congressmen. It generated a
palpable sense of solidarity in that community and suspicion surrounding the
military force stationed in Ayacucho, which had to be investigated in order to
clarify the facts and punish those responsible.
10. It has been established that this
psychological operation, whereby the alleged excesses at Cayara were falsely and
intentionally blown out of proportion, succeeded in paralyzing the
countersubversive military actions, thereby thwarting the capture of the
senderistas who were involved in the Erusco incident.
Another purpose was to undermine the morale and fighting spirit of the
troops. Certain elements of the
media that serve as a sounding board for the subversive movement created false
suspicions about the troops' commanders, depicting them as being directly
responsible for the supposed excesses in Cayara.
11. It has been established that when, in the
absence of the Attorney General, the then Chief Prosecutor for actions under
administrative law, Dr. Manuel Catacora González, was in charge of the Office
of the Attorney General of the Nation and learned of presumably criminal acts
committed in the town of Cayara, he sent a telex ordering Ayacucho's Chief
Prosecutor, Dr. Carlos Enrique Escobar Pineda, to take charge of the
investigation. When the latter
received the telex, rather than convey the pertinent instructions to Cangallo's
Provincial Prosecutor so that he might file criminal charges or open up any
preliminary inquiry that was called for, in accordance with Article 80 of the
Statute of the Attorney General's Office, he unlawfully invested himself with
authorities of a higher order and exercising functions pertaining to a different
office, on his own opened up an investigation into the criminal facts, when such
a measure is the exclusive purview of the Provincial Prosecutors and not of
Chief Prosecutors. He has thereby
committed the crime of insubordination through arrogation of authority,
punishable under Article 320 of the Criminal Code.
12. It has been established that the Chief
Prosecutor, Dr. Carlos Enrique Escobar Pineda, has become criminally liable and
subject to disciplinary action by repeatedly violating basic procedural norms
and provisions of the Statutes of the Attorney General's Office and of the
Judiciary in the illegal investigation that he conducted into the alleged
excesses committed in Cayara by military personnel, as described in the
pertinent part of this report.
13. It has been established that the Chief
Prosecutor illegally requested Cangallo's Provincial Prosecutor to provide all
the proceedings in connection with the investigation that he was conducting of
the criminal acts committed by senderistas at Erusco, thereby disrupting the
normal progress of the investigation. That
arbitrary decision has cut short the investigation, which is evidence of an
obvious concern to thwart an investigation into the subversive elements on the
part of the Attorney General's Office.
14. It has been established that the interpreter
Alfredo Quispe Arango has betrayed the public trust in detriment to the State by
identifying himself to the Chief Prosecutor using various voter identification
booklets with different numbers and belonging to other citizens, as shown in the
body of this report.
15. It has been established that the
aforementioned Chief Prosecutor was fully aware that the interpreter Alfredo
Quispe Arango had betrayed the public trust in detriment to the State by having
in his possession several voter identification booklets with differing numbers; nevertheless, he did not report him, as was his obligation,
and thus failed to perform the duties of his office. He also did nothing to have that criminal offense prosecuted
and punished, making himself criminally liable under Articles 333, 338, 339 and
361 of the Penal Code.
16. It has been established that the interpreter
Alfredo Quispe Arango has done false translations, thereby committing an offense
against the Administration of Justice in detriment to the State, which is
punishable under Article 334 of the Penal Code.
His purpose was to obtain evidence to use against Army personnel,
intentionally misrepresenting the facts with the complicity of the Chief
Prosecutor.
17. It has been established that the Chief
Prosecutor did not remain silent about the unlawful investigation he conducted;
instead, he granted a number of interviews with various elements of the media
and provided information on how the investigation was progressing, thereby
violating the Statute of the Attorney General's Office.
18. It
has been established that the Chief Prosecutor had an obvious interest in
publicizing the investigation on Cayara -- even in violation of the law -- in
order to stop government forces in their pursuit of the senderistas after the
Erusco ambush, thereby assisting the psychological campaign that was mounted by
elements of the media to bring a halt to countersubversive operations.
That effort was aided by the information that Dr. Carlos Enrique Escobar
Pineda supplied.
19. It has been established that Ayachucho's
Chief Prosecutor, Dr. Iván Enrique Tello Mondoñedo, was fully aware of the
crime that the Chief Prosecutor had committed by arrogating to himself functions
that were not within his purview; nevertheless, he failed to take the necessary
measures to correct the unlawful inquiry that Prosecutor Escobar Pineda
personally conducted into the Cayara incidents, and failed to instruct
Cangallo's Provincial Prosecutor to conduct the investigation, which under the
law was the proper procedure. He
therefore made himself criminally liable and should be reported to the Attorney
General of the Nation.
20. It has been established that Cangallo's
Provincial Prosecutor, Dr. Jesús E. Granda Olaechea, conducted an expanded
investigation into the Cayara incidents, using as a basis all of the files and
the Final Report prepared by Chief Prosecutor Escobar Pineda.
21. It has been established that at the end of
that expanded investigation Cangallo's Provincial Prosecutor issued a resolution
on November 24, 1988, wherein he decided not to file criminal charges against
the Army personnel for the crimes allegedly committed in Cayara and filed all
the proceedings in Cangallo.
22. It has been established that with the
intervention of Cangallo's Provincial Prosecutor, the Office of the Attorney
General, as the sole autonomous organ of the State charged with prosecuting the
crime, has ascertained the true facts and uncovered the false and slanderous
charges made against members of the Peruvian Army.
The image of that institution and of its chiefs, officers and troops
stationed in Ayacucho in 1988 was thus saved.
23. It has been established that the Political-Military
Chief of Ayacucho at that time, Peruvian Army General José Valdivia Dueñas, is
neither the intellectual nor material author of any criminal offense falsely
attributed to him in the denunciations. Therefore,
he is guilty of nothing. Instead,
he is the victim of a dirty campaign to undermine his authority and command as
part of the strategy used by the Sendero Luminoso to neutralize and/or destroy
the government forces in order to destabilize the democratic regime and the rule
of law in Peru.
24. It has been established that at the request
of the Special Chief Prosecutor, the Lower Court Judge of Cangallo, Dr. César
Carlos Amado Salazar, conducted a series of out-of-court criminal proceedings by
taking measures that are the purview of an examining judge, thereby violating
criminal procedure, which is public policy that the judicial authorities are
bound to observe.
25. It has been established that the body found
on August 10, 1988, in Pucutuccasa, concealed in a grave, is not that of JOVITA
GARCIA SUAREZ, as the Special Chief
Prosecutor initially falsely claimed.
26. That as it has been established that the body
was not that of Jovita García Suárez, her death certificate, on file at the
Cangallo Provincial Council, is now null and void; therefore, the Cangallo
Provincial Prosecutor, as defender of the law, should undertake the legal
measures to nullify that irregular record.
27. It has been established that the members of
the First Court of Appeals of Ayacucho in 1988 acted irregularly when they
bypassed a stage in an appeals proceeding that was reviewing the irregularities
of the Lower Court Judge in question; the result was that in their capacity as
higher court, they did not correct those irregularities by declaring all
proceedings null and void and the Special Chief Prosecutor's petition
inadmissible, thereby safeguarding the right of the representative of the
Attorney General's Office to proceed in accordance with the law. (s)
Carlos Enrique Melgar López
(s) Ruperto Figueroa Méndez (s)
Esteban Ampuero Oyarce
(s) Alfredo Santa María Calderón Senate,
Lima, May 9, 1989 [end Melgar Report]
GRANDA REPORT
In its majority report the Senate Investigating Commission transcribes
the full text of the prosecutor Granda Olaechea's resolution from now on (Granda
Report) as follows:
Accordingly, and in accordance with the orders from the Acting Public
Prosecutor and in exercise of the authority that the law confers upon him, the
Provincial Prosecutor of Cangallo conducted various inquiries by way of an
expanded investigation, culminating in issuance of Resolution Nº 006-00, dated
November 24, 1988, by which in accordance with Article 2210 of the Code of
Criminal Procedure and because the perpetrators of the alleged crimes reported
in the complaints have never been identified or singled out, and in exercise of
the authority conferred under the second paragraph of Article 940 of Legislative
Decree Nº 52, he RESOLVES: NOT TO
BRING AN INDICTMENT FOR THE CRIMES OF homicide, injuries, robbery, looting,
violation of personal liberty, arson, assault and battery, violation of home,
sexual violation and obstruction of the administration of justice.
The case should, therefore, BE PROVISIONALLY ARCHIVED in the Office of
the Provincial Prosecutor of Cangallo... (sic).
Here, the [Senate] Commission felt it best to cite the entire text of the
resolution issued by the Provincial Prosecutor of Cangallo, inasmuch as it gives
the factual and legal grounds that allow one to establish that P.A. General José
Valdivia Dueñas, Political‑Military Chief of Ayacucho, and Army troops
stationed in that area neither planned nor carried out the acts alleged to have
been committed by these servicemen in Cayara on May 13 and 14, 1988, and the
days that followed.
TEXT OF RESOLUTION (GRANDA REPORT)
CANGALLO, NOVEMBER 24, 1988
Having received and read Communique Nº 356‑88‑MP‑SGFN,
dated November 11, 1988, whereby the Attorney General of the Nation forwards the
files of Dr. Carlos Escobar Pineda, Special Chief Prosecutor in connection with
the events that transpired in the towns of Erusco and Cayara on May 13 and 14,
1988, and the days that followed, to expand the inquiries into the complaints
filed by Mecíos Taquirí Yanqui (p. 1); the Pro Human Rights Association;
Fernandino Palomino Quispe, Pelagia Tueros Chipana and Antonio Apari Palomino,
at p. 2; the Provincial Councilman of Huamanga, at p. 15; Agustín Haya de la
Torre, at pp. 52 and 55; Maximiliano Noa Palomino et. al. at p. 59; Francisco
Soberón Garrido, at p. 67; Fernandina Palomino Quispe et. al. at p. 236;
and the additions to the complaint filed by the Pro Human Rights Association at
p. 239; for the crimes of qualified murder, assault, robbery, abuse of
authority, arson, damages, sexual violation, violation of home and damages,
against the townspeople of Cayara and the surrounding areas, by members of the
Peruvian Army, and CONSIDERING: FIRST:
That as can be inferred from the report prepared by the Special Chief
Prosecutor, on May 14 and 15 an Army Patrol entered the towns of Erusco and
Cayara, within the Province of Víctor Fajardo in the Department of Ayacucho,
after a military convoy was ambushed by subversives the night before at Erusco,
on the road between Cayara and Huancapí. One
officer and three soldiers died in the ambush; SECOND:
That as a consequence of the military operation JOVITA GARCIA SUAREZ,
ALEJANDRO ECHECCAYA VILLAGARAY and SAMUEL GARCIA PALOMINO were killed.
Their bodies were discovered in a place called Pucutuccasa on August 10.
Approximately fifty residents of Erusco and Cayara have disappeared,
various items have been stolen and houses have been destroyed; there have been
rapes, murders, etc; THIRD:
That according to the Special Chief Prosecutor's report, those
responsible for the crimes would be the military, with a "presumption"
of the responsibility of Peruvian Army Brigadier General José Valdivia Dueñas,
Political Military Chief of the National Security Subdistrict of Center Nº 5; FOURTH:
That once the expanded investigations were conducted by the Provincial
Prosecutor of Cangallo, charged with the provinces of Víctor Fajardo,
Vilcashuamán, Huancasancos and Sucre in the department of Ayacucho, it was
established that at 9:30 p.m. on the night of May 13, a military patrol
consisting of two vehicles was ambushed by a group of about 200 subversives near
Erusco, located some three kilometers from the town of Cayara, the capital of
the district of Cayara in the province of Víctor Fajardo, department of
Ayacucho; in the attack the subversives used dynamite, grenades and long-range
weapons. Army Captain JOSE ARBULU
SIME and three soldiers were killed. Other soldiers were also wounded. A military truck was put entirely out of commission and a
long-range weapon was seized. Three
surviving members of the convoy managed to reach the city of Huancapi, the
capital of the province of Víctor Fajardo, to get help, while the other
military troops continued fighting the subversives until 5:00 a.m., May 14, when
reinforcements arrived from the Military Base at Huancapi and San Pedro de
Hualla and went in pursuit of the assailants, who had fled in three directions;
two of the columns went through Cayara. During
the fighting at Erusco, four subversives fell.
Their bodies were buried there. Two
columns of the subversives fled in the direction of Cayara and entered the
town's church to regroup and treat their wounded.
Six of them died and were abandoned in the town.
When the pursuing military patrols arrived, they were told what direction
the subversives had taken and immediately launched their search for them.
Several clashes followed in which eight of the assailants died, bringing
their total losses to eighteen, including the four at Erusco and the six at
Cayara. All of this appears in the
report of the Chief of the Political-Military Command of the National Security
Subdistrict of Center Nº 5, dated
November 10, 1988, forwarded with Letter Nº 185-88-AJ/SZSNC-5, which is at pp.
536 to 549 and is corroborated by the expanded testimony that appears at pp. 521
and 522, given by Justo Pastor García Palomino, a native and resident of Cayara; FIFTH:
That once the Provincial Prosecutor had taken the expanded testimony
from the witnesses who still live in Cayara, it was possible to establish
that during the early morning hours and on the morning of May 14, a column of
subversives did in fact pass through Cayara, scattering in two directions; that
on May 13, before the ambush on the military convoy, they had passed through the
town, recruiting some of the townspeople, looting stores and houses and burning
two of them; they accused the owners of not wanting to ally themselves with the
armed struggle; this can all be found in the testimony at pp. 521 to 522, 526,
527, 530 and 531; SIXTH:
That in the church in the town of Cayara or nearby, six civilians were
killed, whose identities neither the townspeople nor the military command has
been able to establish; the people were forced to lock themselves in their
houses; on May 13 and 14 the festival of the patron saint of Cayara was
celebrated and a large amount of alcohol was consumed.
All this appears in the file at p. 527; SEVENTH:
That one part of the subversives who passed through the town of Cayara
did so dressed in Army uniforms and carrying heavy-gauge weapons.
This undoubtedly confused the people, who were celebrating the festival
of the town's patron saint. This is
why many of them said that military troops had been the authors of the abuses,
which is at odds with what the Political‑Military Command of the Zone
reported; EIGHTH:
That in her statement at p. 523, TEODORA APARI MARCATOMA states that she
was working in the city of Ica from March to June 1988, and returned to
Cayara on June 15 of this year. Nevertheless,
in her statement at pp. 47 and 48, she appears to be saying that she saw the
soldiers looting and destroying private property.
This illiterate witness, who does not speak Spanish, declares at p. 523
that she did not say what appears in her statement at pp. 47 and 48. The interpreter in that statement is Mr. ALFREDO QUISPE
ARANGO, who identifies himself using different voter registration numbers, as
shown at pp. 506 to 509. For that
reason, since there are discrepancies in his identification in three other
statements, there is good reason to believe that all of the statements that he
interpreted for illiterates do not necessarily reflect what the people
testifying were saying, as Mrs. Maximilana Noa Oré Ccaya states at p. 531; NINTH:
That from the statements made by the witnesses at p. 523, most of
the people of Cayara and Erusco go to Ica and Pisco from March to June,
because at that time of year there is neither planting nor harvesting on what
little arable land is there. They
go to those cities to earn some money to survive while they wait for harvest
time. Many of the migrants opt to
stay in those towns, and so leave behind their small farms and rustic dwellings; TENTH:
That according to a statement by witnesses FLAVIA GARCIA SUAREZ and
JUSTINIANO GARCIA SUAREZ, the body founded at PUCUTUCCASA, near Erusco, con
August 10, was not that of their sister JOVITA GARCIA SUAREZ.
When the former went with authorities to Pucutuccasa for the exhumation
of certain bodies, she was there as a guide and not as a witness.
She did not identify the body exhumed as being that of her sister JOVITA
GARCIA SUAREZ. Accordingly, she did
not pick up the body from the Cangallo Hospital where it was left abandoned
after the autopsy was conducted. The
witness JUSTINIANO GARCIA SUAREZ, whose statement was not taken earlier, says
that the body was not that of his sister and says that he was not present for
the exhumation. He says he does not
know why his name appears on the Exhumation Record as being present.
His sister states that when she last saw her sister on May 6 of this
year, she saw no sign that her sister was seven months pregnant, as the Autopsy
Report states. The body found at
Pucutuccasa was that of a woman who was seven months pregnant, according to the
documents at pp. 307 and 308. JOVITA
GARCIA SUAREZ had epilepsy and required constant care and attention.
Her brother JUSTINIANO GARCIA SUAREZ says she is now in the Province of
Huancasncos, according to what he has been told. ELEVENTH:
That on May 14 and in the days that followed, JOVITA GARCIA SUAREZ
passed herself off as an Army guide, according to statements at p. 532
and the report of the military commanders at pp. 536 to 549: TWELFTH:
That the body found at Pucutuccasa on August 1 of this year
is that of a woman, but not that of JOVITA GARCIA SUAREZ; the identity of
the other two bodies found in the same grave, which were not duly exhumed and
which later disappeared, has not been established.
In the Exhumation Record at pp. 318 and 319, one of them was said to be
ALEJANDRO ECHECCAY VILLAGARAY. In
expanded testimony at p. 530, his widow, DELFINA PARIONA PALOMINO, an illiterate
who does not speak Spanish, says that she saw her husband on May 14, with a
wound in the leg. At around noon
that day some people came to their house and took him off in the direction of
MAYOPAMPA, fleeing from the military patrols that were in pursuit of the
subversives. THIRTEENTH:
That as can been seen, three unidentified bodies have been found, one
female and two male, on Pucutuccasa mountain.
Obviously homicide has been committed, but thus far the perpetrators have
not been identified, much less singled out.
The injuries caused, the theft, looting and crimes against individual
liberty occurred between May 13 and the days that followed.
In other words, they began before the military patrols arrived in Cayara
on May 14, as can been concluded from the testimony at pp. 527 and 531.
Here again, the presumed perpetrators have neither been identified nor
singled out; the same is true of the presumed perpetrators of the crimes of
arson, assault and battery, violations of the home, the administration of
justice, and rape, which have not been fully proven; FOURTEENTH:
That in accordance with the provisions of Article 221 of the Code of
Criminal Procedure and inasmuch the perpetrators of none of the crimes reported
in the complaints have been identified, even though it has been established that
crimes were committed; and in exercise of the authority conferred under the
second paragraph of Article 94 of Legislative Decree Nº 52, the Statute of the
Office of the Public Prosecutor, IT IS HEREBY RESOLVED:
NOT TO BRING ANY CRIMINAL INDICTMENT for the crimes of homicide, injury,
theft, looting, violation of personal liberty, arson, assault and battery,
violation of domicile, sexual violation and crimes against the administration of
justice, so that the case must be PROVISIONALLY ARCHIVED in this Office of the
Provincial Prosecutor of Cangallo, without prejudice to pursuit of the
investigations to ascertain and single out those responsible.
The Territorial Control Post of the Civil Guard at Huancapi must be so
advised, as must the aggrieved parties and the Chief Prosecutor for the
Jurisdiction of Ayacucho.- Signed
and Sealed.- Dr. Jesús A. Granda
Olaechea, Provincial Prosecutor of Cangallo. (APPENDIX Nº
20)
[end of Resolution of Prosecutor Granda of November 24, 1988,
12. The
complainants sent the Commission their responses to the communications of May 8
and 10. The pertinent parts appear
below. The reply of July 18,
1990 presented by Americas Watch said the following:
A. A
BRIEF SUMMATION OF THE FACTS AND OF THE PROCEEDINGS BEFORE THE INTER-AMERICAN
COMMISSION ON HUMAN RIGHTS
Before specifically addressing the Peruvian Government's reply, the
petitioners wish to make a brief summation of the principal facts in the case
and of the proceedings before the Inter-American Commission on Human Rights.
On May 13, 1988, an armed group of senderistas ambushed a military convoy
at Erusco, in the vicinity of Cayara, department of Ayacucho.
The next day, and presumably as a reprisal for the attack, Army troops
set out for the town of Cayara and killed one person as they entered the town.
They killed another five at the church and another twenty as the latter
returned to town with their harvest.
On May 21, Prosecutor Enrique Escobar Pineda launched an investigation
into the incidents. Months later,
after taking testimony from witnesses and making other assessments, Prosecutor
Escobar concluded that there was sufficient evidence to file criminal charges
against General José Valdivia Dueñas, Political-Military Chief of Ayacucho.
After ordering Prosecutor Escobar off the case in November 1988, the
Attorney General's Office replaced him with Prosecutor Granda Olaechea, who was
ordered to expand the investigation. After
a few days, Prosecutor Granda determined that there were no grounds for bringing
the criminal charges that Escobar had requested and decided to file the case
temporarily. In August 1989, the
Attorney General, recognizing that the crimes reported by Prosecutor Escobar had
been committed and aware of how hastily Prosecutor Granda had conducted his part
of the inquiry, declared all of the latter's proceedings null and void and
ordered a new stage of the investigations, this time under Prosecutor Rubén
Vega. In January 1990, Vega decided
not to seek any criminal indictment and to file the case once and for all.
While Prosecutor Escobar was engaged in his investigation, a Senate
Commission set up for the specific purpose of analyzing the Cayara incidents,
conducted an investigation of its own. The
members of the commission reached different conclusions as to the responsibility
for the Cayara incidents and therefore issued a majority report -- which the
Government of Peru attached to its reply -- and three minority reports.
While the investigations were in progress, a number of witnesses to the
events in the case were either murdered or disappeared.
The petitioners presented their original complaint in November 1988 and
there alleged that the Peruvian Army was responsible for the deaths and
disappearances that occurred in the Cayara case.
They also pointed out the Peruvian Government's failure to take any
action. Later, they sent new information on the course of the
investigations, deaths and disappearances of witnesses.
The Peruvian Government did not respond to the transmitted text of the
petitioners' complaint. The only writings in which the Government addressed the
substance of the petition are from May 1990.
As will be seen below, these writings do not constitute a satisfactory
reply to the complaint filed by the petitioners.
B. THE
PERUVIAN GOVERNMENT'S INCORRECT INTERPRETATION OF THE FACTS
One of the most significant corrections that the Peruvian Government's
reply warrants concerns its interpretation of the facts in the Cayara case. In essence, the Government is using the Peruvian Army's fight
against the Sendero Luminoso group as a justification for the deaths of
civilians in Cayara, rather than as a fact contributing to the case scenario.
The petitioners, on the other hand, contend that the deaths and
disappearances of civilians that began in May 1988 were not the result of armed
clashes between the Government forces and senderista groups, but rather were
abuses committed by members of the Peruvian Army against the life and physical
integrity of many of the townspeople of Cayara.
One of the factual errors flawing the Government's response concerns the
events that occurred on May 14, 1988, one day after the military convoy was
ambushed by a senderista group at Erusco. According
to the testimony of witnesses to the events of May 14, Army troops entered the
town of Cayara and killed one person there at the entrance to the town and
another five at the church, then some twenty others who were returning from the
fields. The Government's response
misrepresents the facts when it states that an Army military patrol
"found" one person dead at the entrance to the town and was told of
another five corpses at the church.[1]
The account of alleged deaths, arrests or disappearances in Cayara on May 14
as the Government has reported it in its reply is equally misleading: none of the persons who figure in the report as signing a
document attesting to the fact that they were alive subsequent to May 14 had
been listed by the petitioners as being among those who were killed that day.
The only signers also mentioned by the petitioners are Gregorio Ipurre
Ramos (who, though not killed on May 14, was arrested on May 18 and then
released and then disappeared on June 29 and has not been seen since);
Justiniano Tinco García (who did not sign personally -- his wife signed for him
-- and who was arrested on May 18 and later released); Guzmán Bautista Palomino
(who disappeared on June 29), and Ramón Hinostroza Palomino (detained on May
18, later released). In other
words, the list of signatures presented by the Government is of no value for
purposes of denying the deaths of the persons to whom the petitioners referred,
since the signatures correspond to persons who were not reported dead on May 14.
Furthermore, some persons whose signatures are given as evidence that
they are safe have since been detained and/or disappeared.
The Government's reply is also inaccurate when it alleges that the deaths
of the townspeople of Cayara occurred in a "combat" situation or in
"fighting against criminal subversives."
First, and as explained earlier, the reported deaths did not occur during
the course of an armed confrontation between the military and the townspeople;
instead, the civilians were the passive target of an attack. Secondly, the Government alleges that the dead were
senderistas, and so justifies their dying.
However, it offers no proof that the dead townspeople were senderista
fighters. What the Government does
offer in evidence -- Army blankets and arms retrieved after the ambush,
subversive propaganda in some houses, etc. -- is not sufficient to allege
"the obvious participation of the town of Cayara in the ambush
(underlining added)...." The
possibility that some citizens of Cayara might have been implicated in the
ambush does not give the Government carte blanche to attack the entire town.
In violation of the most elementary rules of due process of law, the
Government is failing to consider what type of role those allegedly involved in
the ambush played and takes it as a given that they participated actively;
moreover, it is holding the entire town collectively responsible, seeking in
this way to justify the Army's indiscriminate aggression.
Finally, the Government's response must be rectified in respect to the
witnesses to the events of May 14 who have since disappeared or been killed, or
better said, the failure to make any reference to these people.
The only case brought up is the death of Mrs. Jovita García, to whom the
petitioners will refer elsewhere in this document.
The omission suggests that the Government does not believe that the
disappearances and deaths are part of the case and require a thorough and
serious investigation, even though there are signs strongly suggestive of the
Army's participation in these incidents.
The investigation that the Government conducted into the murder of the
witness Marta Crisóstomo García illustrates the flaws in the Government's
position on the case. A report
prepared by the Office of the Attorney General concerning the autopsy done on
the body of Mrs. Crisóstomo states that her death had been caused by a bullet. However, no reference is made to efforts to determine the
calibre or make of the weapon, or whether it was the type of weapon used by the
armed forces. This was particularly important since the eyewitnesses to the
murder said that the murderers wore hoods and Army uniforms. Finally, the report makes no reference whatever to how Mrs.
Crisóstomo was linked to the events in Cayara.
C. THE
LACK OF COOPERATION IN INVESTIGATING THE FACTS
Political-Military Commander of Ayacucho
Specific mention should be made of the lack of cooperation shown by
various authorities in Peru during the course of the investigation.
When Prosecutor Escobar and a group of congressmen tried to get to Cayara
on May 21, they were held up at two military outposts for a total of four and
one half hours. The Political-Military
Commander of Ayacucho frequently denied Prosecutor Escobar's requests to visit
military units. He was very slow to
answer official communications and refused to supply a list of the military
personnel who went into Cayara.
Particularly prejudicial to the course of the investigation was the
Political-Military Commander's marked unwillingness to help the Prosecutor get
to remote areas, even though it was his obligation.
On several occasions, Prosecutor Escobar had to use vehicles belonging to
the Universidad de San Cristóbal in Huamanga, whose officials had also been
pressured to refrain from lending their cooperation.
The lack of transportation posed a serious obstacle to a speedy and
effective investigation on the part of the Prosecutor.
Suffice it to say that had the Prosecutor had proper transportation, he
probably would have been able to retrieve the two bodies that were found buried
together with Jovita García. The
site where the bodies were discovered on August 10 is at an altitude of
approximately 4,000 meters. Having
gotten close to the site in land vehicles and continuing the rest of the way on
foot, the Prosecutor and his group were then unable to bring back all three
bodies. Instead, they brought back
that of Jovita García. Prosecutor
Escobar requested a helicopter to return for the other bodies, a request made
again without success because of General Valdivia Dueñas' refusal.
Finally, eight days later he returned to the site in the all-terrain
vehicles, but the bodies, valuable evidence in the case, had disappeared.
Senate Investigating Commission;
attitude of Senator Melgar
The investigation headed up by Senator Carlos Enrique Melgar López was
slow, superficial and biased. Though
the creation of a Senate Investigating Commission had been approved on May 23,
it did not convene until May 27. It
was not until June 4 that it traveled to Cayara.
According to statements made by the Prosecutor's Office, journalists and
even members of the Commission, the three days of the Commission's stay in
Ayacucho were basically spent in talks with the Military Chiefs.
It avoided direct communication with the witnesses and refused to gather
further evidence. In other words,
the Commission passively accepted the official version of the events, refusing
to ascertain whether members of the Army had any responsibility in the case.
The bias of Senator Melgar was particularly obvious in his harassment of
Prosecutor Escobar. Disregarding
the fact that by a special resolution adopted by the Attorney General,
Prosecutor Escobar had been given the authority to investigate the Cayara
incidents, Senator Melgar repeatedly
called into question the legitimacy of the investigations that Escobar was
conducting and accused him of engaging in a libelous campaign to discredit the
Army. These accusations, which
continued throughout Prosecutor Escobar's investigations, are echoed in the
conclusions of the final report that the majority of the Commission prepared.
Equally uncalled for are the accusations against Mr. Alfredo Quispe, who
was Prosecutor Escobar's guide and Quechua interpreter.
The confusion surrounding the number of his voter identification booklet
was due to a typographical error and not to any intent to violate the public
trust. At the time the statements
were taken from the witnesses to the events of May 14, the Prosecutor observed
that "Captain Palomino" was threatening the witnesses so that they
would not testify. To ensure their
safety, the Prosecutor had the witnesses gather in a room and proceeded to take
down the number of their voter identification booklets. He also recorded the number of the interpreter Quispe, a
number he had already memorized. Unfortunately,
the Prosecutor put the number of one of the witnesses beside the interpreter's
name. The error should be blamed on
the Prosecutor, and he himself does not deny the fact;
however, it was not done with malice aforethought, as the majority of the
Investigating Commission contend in their report.
Though it is reasonable for Senator Melgar to have wanted to ascertain
Mr. Quispe's identity, it is inconceivable that the mistake should have been
used to contend that the interpretations he did were false.
First, Mr. Quispe had been working for the Prosecutor's Office for four
years, three years before Prosecutor Escobar stepped into his post in Ayacucho
in 1987. This makes it difficult to
make a case for his complicity with Prosecutor Escobar in this particular
instance. Furthermore, the routine
background check had been done on Mr. Quispe before offering him employment with
the Prosecutor's Office. If he was
offered employment it was because his integrity and professional talent had been
established. Secondly, the
Commission does not include any grounds to substantiate its finding that Mr.
Quispe's interpretations were wrong. Finally,
several of the witnesses spoke Spanish and could have spoken with the Senator
personally had he so wished.
Senator Melgar did not confine himself to questioning Prosecutor
Escobar's work; other actions on
his part showed that he had drawn his own conclusions about the investigations
long before they had run their course. From
the start of the case, he made public statements to the media wherein he denied
the truth of the complaints filed in connection with the Cayara incidents.
Not only did he repeatedly offer versions favorable to the Army, but also
attacked the credibility of the witnesses and publicly criticized human rights
organizations and anyone who was attempting to conduct a serious investigation.
The Peruvian Government and the handling of the case with the Inter-American
Commission on Human Rights
One other example of the lack of official cooperation was the attitude of
the Government vis-à-vis the handling of this case with the Inter-American
Commission on Human Rights. It did
not respond to the original complaint, thereby making itself subject to
application of Article 42 of the Regulations of the IACHR, which provides that
the facts reported will be presumed to be true.
The first response from the Government of Peru came on September 25,
1989, at a hearing that the IACHR gave the complainants and to which the
Peruvian Government sent its representative.
The latter's presence, however, was completely passive, as an observer to
watch the proceedings.
Some days after this hearing and by now 10 months since the original
complaint, the Government sent its first written presentation, consisting of a
few paragraphs wherein not one substantive point raised by the complainants was
contested. The second document that the Government sent was its reply of May 8, 1990, a year and a half after the complainants filed their complaint. In its reply, the Government sent official documents that are in response to only some of the charges leveled against it. The information that it sent was incomplete, unsubstantiated and slanted. In effect, the Government forwarded only the conclusions of the majority report prepared by the Senate Investigating Commission, but not the 81 pages upon which those conclusions are supposedly based. This meant that neither the Human Rights Commission nor the complainants were able to assess how the majority concluded that its version of the events was "proven." The Government did not send the minority reports either, even though those reports constitute official statements concerning the case. |