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D.
THE RESPONSE FROM THE PERUVIAN GOVERNMENT:
FLAWS IN ITS MERITS AND PRESENTATION
Before addressing the documents that the Government of Peru sent to the
IACHR by way of a response, the petitioners believe that some of the
observations made by the Permanent Representative of Peru in his letter of
transmittal and repeated in the conclusions in the majority report need to be
corrected. Both make reference to
the coverage that the national and international press gave to the facts in the
Cayara case and the comment that news reports of alleged bombings and pillaging
put the death toll at one hundred. In
both the letter of transmittal and the majority report, these are regarded as
proof of the press' intention to discredit the Peruvian Army and thereby
obstruct it in its fight against subversion.
Apart from the fact that these were early press releases that were later
corrected once better information became available, the existence of the
inaccurate news accounts has no bearing upon the case that the petitioners filed
with the IACHR. The petitioners do
not deny that the claims made immediately after the events of May 15 may have
contained some exaggerations; however, they do not see in this a calculated
attempt to misrepresent the facts; instead, it was the logical byproduct of the
unconfirmed rumors filtering out of a remote place where communications were
poor and witnesses scattered and frightened.
In all events, Peruvian human rights organizations made immediate
attempts to confirm or correct those initial reports.
The petitioners, moreover, did not base their complaint on those early
press reports, but rather on other sources such as visits made by one of the
petitioners to Ayacucho (July 9 and 10, 1988), testimony from witnesses, or
information compiled and confirmed by Peruvian human rights organizations of
recognized standing. That
information was taken together with the information that the petitioners would
add subsequent to their original presentation.
At no time did they report bombings or the death of hundreds of persons. Rather than implicitly associating the petitioners with
someone else's inaccurate version of the events, the Government ought to have
supplied a reasoned response to the assertions that the petitioners did make.
However, as will be seen below, the Government's reply does not provide
any such answer.
Official Communication from the Supreme Council of Military Justice
No substantiation was provided for the official communication that the
Chairman of the Supreme Council of Military Justice sent to the Minister of
Defense informing him of the discontinuance of the proceedings against the
suspects in the Cayara case. The
failure to explain the reasons for the decision to discontinue the case and the
evidence underlying those reasons makes it impossible for the petitioners to
regard it as a lawful decision.
Report of the Political-Military Commander
Neither do the petitioners consider the report that Peruvian Army General
José Valdivia Dueñas sent to the Provincial Prosecutor of Cangallo, Dr. Jesús
Granda, to be a proper response to their complaint.
The petitioners do not question the propriety of requesting a report of
General Valdivia, who as Political‑Military Chief of Ayacucho at the time
of the events of May 14, was directly responsible for the area.
However, they do consider that since General Valdivia had been implicated
in the deaths at Cayara, there is a conflict of interest that necessitates a
more careful scrutiny of the information supplied in his report.
Far from examining the report prepared by General Valdivia and attempting
to corroborate the information contained therein, the Peruvian Government seems
to accept it without question and adopt it as its own official version of the
facts. This is especially grave
given the errors that the report in question contains (see section B, concerning
the signatures of the persons who allegedly died or disappeared on May 14).
The petitioners also want to point out the timing of General Valdivia's
report. Rather that send it to Prosecutor Escobar while he was
conducting his inquiry, General Valdivia did not present his version of the
facts until one month after Prosecutor Escobar was forced to abandon his
investigation. The petitioners
believe that General Valdivia's manifest intention was to give the new
prosecutor a version of the facts that would serve to have the case dropped.
Even disregarding the change in prosecutors in charge of investigating
the case, it is obvious that the six months between May and November 1988 is too
long a period of time to prepare a four‑page report, especially for the
Political-Military Chief of the area in which the events occurred.
Majority report of the Senate Investigating Commission
The petitioners do not consider that the conclusions of the report
prepared by the majority of the members of the Commission headed by Senator
Melgar to be an adequate response to their complaint.
As said earlier, the information provided in those conclusions is
incomplete, unsubstantiated and biased, and does little to refute the
petitioners' assertions. Not only
is there no evidence to support those findings, but no sources are cited either.
The mere reading of the findings, however, and a look at how the
Commission conducted its investigation, suggest that the majority on the
Commission set aside any evidence that was inconsistent with the Army's version
of the facts. Firstly, the members
of the Senate Investigating Commission who signed the majority report refused to
interview witnesses to the events of May 14.
This is important because the dissenting senators did indeed interview
the eyewitnesses.
Secondly, the majority on the Commission not only discarded the merits of
the inquiry conducted by Prosecutor Escobar but also leveled unfounded charges
against him alleging repeated violations of the law; the majority thus ignored
Prosecutor Escobar's jurisdiction over the Cayara case.
This jurisdiction is the result of two factors.
The first is his competence to investigate disappearances within the
Department of Ayacucho. Since the
complaints on the basis of which the Prosecutor decided to institute an
investigation in Cayara concerned persons who allegedly disappeared, the
Prosecutor's competence is clearly established. The second reason he had the authority to investigate the
Cayara incidents were the mandates given to him, in writing, by three Chief
Prosecutors of the Nation: Manuel
Catacora, who was acting as Attorney General of the Nation in the absence of
Hugo Denegri, sent Prosecutor Escobar a written order to investigate the
incidents. This order was issued on
May 19, two days before Escobar went to Cayara.
When the Attorney General himself returned, he confirmed that authority
and ordered Escobar to keep him abreast of the course of the investigation. Finally,
the Chief Criminal Prosecutor, Pedro Méndez Jurado, also gave his consent to
the proceedings that Escobar was to conduct.
Nor is there any truth in the majority's charges concerning Prosecutor
Escobar's part in a campaign allegedly being waged by journalists to discredit
the Army. Throughout his investigation, Prosecutor Escobar's conduct
was professional and discreet. The
statements that Prosecutor Escobar made to the press were made after the facts
were aired by other sources. The
statements he made after finding the body of Jovita García were only given once
Escobar had gotten Attorney General Denegri's authorization to hold a press
conference.
It should also be noted that Prosecutor Escobar kept secret the identity
of the witnesses to the events for the sake of their safety and that their
identity remained confidential until Senator Melgar asked the Attorney General
of the Nation to send him a copy of the investigation's proceedings.
That copy contained the statements made by the witnesses, and their names
and addresses. A few days after
that information was supplied to Senator Melgar, the first witnesses in the case
disappeared.
Thirdly, the majority of the members of the Commission accepted the
information supplied by the Army at
face value and the Government of Peru repeated it when adopting the majority
report as its own report to the IACHR. Though
it is obvious that the Army should have been questioned about the Cayara
incidents, the petitioners believe that the majority of the membership of the
Commission made a mistake to accept General Valdivia's report so passively.
It is important to remember that the report in question was presented to
the Provincial Prosecutor's Office only after Prosecutor Escobar had been
replaced by Prosecutor Granda. Moreover,
an independent investigation of the military forces' conduct in Cayara was in
order not only in connection with the May 14 incidents, but subsequent incidents
as well. Since on May 18, 1988, the
Army set up a military base in the Cayara school, it was imperative that the
Commission investigate thoroughly any responsibility it might have for the
events that took place in that area, especially the death and disappearance of
witnesses and the disappearance of bodies buried within the area.
These last issues are given but cursory attention in the Commission's
majority report. The only case
addressed is that of Jovita García; here again, it is the Army's account of the
facts that is taken as the definitive version, despite the existence of evidence
that contradicts its account. As
for the case of Mrs. García, whom witnesses say had been detained by a group of
soldiers prior to her disappearance, several corrections are in order. First, Prosecutor Escobar's exhumation of the body of Jovita
García was entirely correct. Contrary
to what Senator Melgar contends, the proper procedure in such cases is not
removal of the body but exhumation, since the body was buried.
The exhumation was done in the presence of three witnesses, who
identified the body, as provided in Article 178 of Peru's Code of Criminal
Procedure. It is unclear why the
majority criticizes the exhumation procedure, states that "it has been
established" that the body found was not that of Mrs. García and requests
that her death certificate be declared null and void.
Second, the petitioners have serious doubts about the credibility of
General Valdivia's position. In his
report, he says that Mrs. García had been an informant for the Army, so that it
could hardly be the cause of her death. However,
Mrs. García's body was originally found buried with the other two Cayara
townspeople whom General Valdivia called senderistas.
The Army has not explained why someone purported to be an Army informant
was buried in the same grave as two supposed senderistas.
As for the charge made by General Valdivia about the eight days that
Prosecutor Escobar let pass before going back for the other two bodies, the
petitioners fail to understand how this can be construed as "suspicious
behavior" or negligence on the Prosecutor's part.
During that time, Prosecutor Escobar was arranging, by way of the
Attorney General, for helicopter transport to return to the site.
Ultimately, as said earlier, the efforts to arrange helicopter transport
were unsuccessful and Prosecutor Escobar had to return to the site via overland
transportation.
General Valdivia also contends that only the Prosecutor and the witnesses
knew the whereabouts of the common grave. It
is doubtful that such is the case, since on August 18 Prosecutor Escobar took
statements from witnesses to the effect that they had seen Army helicopters
flying over the site where the bodies were buried.
The testimony of these witnesses and the Political‑Military Chief's
resistance lead one to suspect that the Army could in fact have been implicated
in the disappearance of the bodies.
Finally, the petitioners object to the conclusions of the majority of the
Commission that take it as an "established" fact that Prosecutor
Granda conducted an expanded investigation into the events in Cayara and that
said investigation was based on the one conducted by Prosecutor Escobar.
The two investigations are radically different.
Prosecutor Escobar's inquiry emphasizes the need to investigate the
conduct of General Valdivia and the Army as suspects in the crime, while
Prosecutor Granda decides not to file any criminal charge at all.
Curiously, the majority report fails to explain why the Attorney General
of the Nation, Dr. Manuel Catacora, reaffirming the existence of the crimes
reported by Prosecutor Escobar, found the investigation conducted by Prosecutor
Granda to be unsatisfactory, reversed the discontinuance that Prosecutor Granda
had ordered, and ordered that the case be reopened for a new investigation.
As an example of the flaws in the proceedings conducted by Prosecutor
Granda, there are contradictions between the statements that the witnesses made
to Prosecutor Escobar and those taken by Prosecutor Granda, contradictions that
raise doubts about the truth of what Prosecutor Granda contends in his report.
According to what Granda says, Flavia García, the sister of Jovita and
one of those who identified the latter's body on August 10, said that she had
not recognized Jovita's body and that she was unaware that Jovita was pregnant.
However, in the testimony that Flavia García gave earlier to Prosecutor
Escobar, she said that she knew her sister was pregnant.
Prosecutor Granda states that Justiniano García, a brother of Jovita,
testified that he was not present for the identification of the body.
Justiniano's presence, however, is recorded in the official account
prepared at the time Jovita's body was disinterred.
A third contradiction arises in the case of Mrs. Marcatoma, who according
to Prosecutor Granda's account, said she was away from Cayara from May 15 to
June 15. This information is inconsistent with the fact that on June
11, Mrs. Marcatoma was with a judge to show him where her husband had been
decapitated. Some days earlier, on
May 22, Mrs. Marcatoma had made statements to Prosecutor Escobar concerning the
murder of her husband. Those
statements were made in the presence of a group of Congressmen, who recorded her
testimony on tape.
In addition to these contradictions, it is important to note that the
statements that the witnesses made to Prosecutor Granda took place in barracks,
an atmosphere hardly conducive to making the witnesses feel that they could
speak freely. The petitioners also
want to point out that only five witnesses were interviewed for purposes of the
expanded investigation, even though the testimony of other witnesses to the
events was called for, as well as that of other persons such as the judge and
his secretary who were present when the body of Jovita García was exhumed and
identified. As for the reopening of the case, the petitioners are of the view that it was not a genuine attempt to clarify the facts, identify those responsible and punish them. Its principal purpose was to placate the national and international critics who spoke out against the discontinuance of the proceedings. One indicator of this fact is that Prosecutor Catacora did not take steps to institute proceedings against Prosecutor Granda, even though his investigation was considered so flawed that it was nullified.
As for the expanded investigation that Prosecutor Vega was to have
conducted, suffice it to say that Prosecutor Vega accepted the Army's version of
the events and decided on January 24, 1990, to archive the case once and for
all. One week later, the Supreme
Council of Military Justice decided the same thing in a separate proceeding
being conducted by the military courts, unknown to the public until then.
Again, the Government failed to send the IACHR any substantiated
explanation for these decisions.
[end of Americas Watch reply of July 9, 1990]
13. On March 26,
1990 Americas Watch petitioned the Commission to admit Amnesty International as
co-complainant in this case, which the Commission did.
On July 18, 1990, Amnesty International presented its reply, as
follows, to the Government's note transcribed under points 10 and 11:
1. Amnesty
International is unable to comment on the decision of the Supreme Council of
Military Justice to suspend judicial proceedings in the case, as the
organization does not have access to information concerning the nature of the
judicial proceeding or the basis for the decision to suspend the case.
Amnesty International has, however, read the initial report of the
internal army inquiry, on which the judicial proceedings would appear to have
been based. That report concluded
that there was no foundation for any of the allegations, citing as proof the
discovery by troops of stolen military equipment and explosives in Cayara, as
well as statements by local residents concerning insurgent activities in the
area. Apart from the fact that
these discoveries had never previously been alluded to in public declarations by
members of the armed forces and that neither evidence of the discoveries nor
copies of the statement taken appears to have been produced, these elements do
not automatically support the conclusion that no massacre of villagers occurred,
in the absence of further evidence substantiating that conclusion.
The organization is also concerned that the proceedings before the
military court appear to have been held without the presence of victims or
eyewitnesses to the events alleged.
2. Amnesty
International notes that the Government of Peru has supplied the Inter-American
Commission only with the majority report of the Senate investigating commission,
which was signed by the Comission members belonging to the governing party and
which concluded that no crimes had been committed at Cayara by members of the
Army. The Peruvian Government
appears to have been unable to furnish the three minority reports, one of which
concluded that the information known to the Senate investigating commission was
inadequate to produce a conclusive report, and two of which concluded that the
evidence gathered did point to military responsibility for criminal acts.
Enclosed herewith are copies of these three minority reports for the
consideration of the Inter-American Commission.
3. The
response of the Government of Peru incorporates a document signed by a number of
Cayara residents after they were "supposedly killed" in the massacre
on 14 May 1988. This document is
cited as proof of the lack of veracity of the allegations made against members
of the Peruvian army in this case. Amnesty
International would wish to point out to the Inter‑American Commission
that none of the individuals whose names appear as signatories to this document
is among those identified by the organization as having been killed on 14 May
1988. On the contrary, in its
communication of 28 September 1989 (our ref. OAS/27/89) and the accompanying
documentation, Amnesty International explicitly discarded the initial reports of
aerial bombardment and of the massacre of over 100 people.
In fact, a number of the people cited in the Peruvian Government's
document testified to the special prosecutor charged with investigating the
case, Dr. Carlos Escobar Pineda, whose investigations identified 29 individuals
reportedly killed on 14 May. In
this connection, the organization would also wish to draw the Commission's
attention to he fact that four of the people whose signatures appear in the
document supplied as part of the Peruvian Government's response are among nine
witnesses who subsequently "disappeared" or were killed after
testifying before Dr. Escobar: namely,
Guzmán Bautista Palomino and Gregorio Ipurre Ramos, who "disappeared"
on 29 June 1988; Justiniano Tinco García, shot dead at an army roadblock on 14
December 1988, and Marta Crisóstomo García, shot dead by eight men in Army
uniform in Ayacucho on 8 September 1989. Two
others, Domitila Esquivel Fernández and Benedicta Valenzuela Ccayo, were among
a group of five people who, according to Amnesty International's information,
were detained overnight by the army on 14 May 1988 and subjected to ill-treatment
before being released the following day.
It is a matter of some concern to Amnesty International that, despite
having had some months to respond to the organization's communication (and
despite having already had at its disposal the reports of both the internal army
inquiry and the Senate commission, the order suspending the case at the level of
the lower military tribunal and the resolution from the Provincial Public
Prosecutor of Víctor Fajardo province definitively archiving the case), the
Government of Peru failed to respond until 10 May 1990, four days before an
audience with the Inter-American Commission was scheduled to take place.
At that time, the Government responded only in part, and provided the
Commission with a document irrelevant to the communication of Amnesty
International, apparently with the purpose of suggesting that the unfounded
allegations it denounces had emanated from the organization.
4. Amnesty
International notes that the Government of Peru in its response to the Inter-American
Commission makes no reference to the cases of the nine witnesses to the Cayara
massacre who are subsequently reported to have "disappeared" or to
have been killed, despite the fact that these cases form part of the
communication before the Commission. In
the case of Marta Cristóstomo García, the investigation of her killing was
archived without having identified the perpetrators.
To the best of Amnesty International's knowledge, no investigation has
been opened in any of the other eight cases.
5. The
Government of Peru has provided to the Commission a copy of the report provided
by the Ministry of Defense to the Provincial Public Prosecutor of Cangallo, Dr.
Jesús Granda, which was apparently instrumental in his decision to archive the
case on the grounds that there was no basis for opening criminal proceedings
against any military personnel. (This
decision, as the Commission will of course be aware, was annuled by the present
Attorney General of Peru, who stated publicly his belief that criminal acts had
been committed by military personnel in Cayara.)
This document outlines the position that the complaints of human rights
violations in Cayara were fabricated by members of the armed opposition group Partido
Comunista del Perú "Sendero Luminoso" for the purpose of
undermining the armed forces, and notes that the most exaggerated accounts of
events in Cayara were publicized by the then mayor of Ayacucho, Fermín
Azparrent. Amnesty International
would wish to point out that Fermín Azparrent, a member of the Izquierda
Unida coalition, had no links with Sendero Luminoso and publicly
denounced abuses by that group; in September 1989 he was assassinated by Sendero
Luminoso at his home in Ayacucho.
Amnesty International is also concerned by the allegation in this
document that Dr. Carlos Escobar Pineda may consciously or unconsciously have
assisted Sendero Luminoso in attempting to undermine the autority of the
armed forces by his conduct with respect to the case of Jovita García Suárez.
This attempt to discredit Dr. Escobar and his investigation is not
substantiated in any way and does not serve to clarify the events which occurred
in Cayara between 14 and 18 May 1988 and which form the basis of the
communication before the Inter-American Commission.
Also with respect to the case of Jovita García Suárez, whose body was
retrieved from a common grave on 20 August 1988 and later disappeared from the
cemetery where it was subsequently interred in Cangallo, Amnesty International
notes that the document provided by the Ministry of Defense reiterates the
Army's statement that Jovita García Suárez was an army informant. (The army has indicated publicly on several occasions that
she was murdered by Sendero Luminoso because she was an informant,
although the army has never explained why she should then have been buried in a
common grave with two men identified as members of Sendero Luminoso,
something which would appear to go against that group's practice of honouring
its dead.) In other official
documents (for example, the January 1990 resolution archiving the case and the
majority report of the Senate commission) the authorities have alleged that the
body located on 10 August 1988 was not that of Jovita García Suárez, while in
statements to the press in November 1988 the president of the Senate Commission
expressed the belief that no body had been located at all.
These three official versions would appear to be contradictory.
The Ministry of Defense document provided by the Government of Peru
further notes that Jovita García was not among those allegedly detained or
killed on 14 May 1988 and that
local residents have testified that she was seen in the area several days after
that date. Amnesty International
would point out that this statement does not contradict or disprove the
allegation contained in its communication to the Inter-American Commission, as
according to the organization's information Jovita García was detained in
Erusco on 19 May, five days after the Cayara massacre.
[end of Amnesty International's reply of July 18, 1990]
14. Attached
to the reply received from the petitioner, Amnesty International, the Commission
received a copy of the three minority reports of the Senate‑designated
Investigating Commission. Those
reports are as follows:
15. The
pertinent parts of the minority report prepared by Senator Gustavo Mohme Llona
states the following:
II. AN
ANALYSIS OF THE FACTS
In response to a bloody terrorist attack on May 13, 1988, at a place
called Erusco, which left four military men dead and several wounded, early on
the morning of Saturday, May 14, Peruvian Army patrols from the bases at
Ayacucho, Pampa Cangallo and Huancapi launched the search for those responsible
for the criminal assault. The town
of Cayara, only 3 kilometers from Erusco, was the first to be searched by the
military. Many people died as a result of that military incursion,
which is why the survivors and relatives of the victims filed complaints with
the corresponding judicial and political authorities.
The Investigating Commission designated to ascertain the facts by the
authority given to it under the Constitution and under the Senate's own Rules of
Procedure, found that there were two completely different versions of what took
place in Cayara and the surrounding area. The
first was the version given by the Political Military Commander for the area,
Peruvian Army General José Valdivia Dueñas.
According to that military source, following the Erusco terrorist attack,
Peruvian Army patrols set out in search of the subversive assailants.
As they entered Cayara, they found one of them dead.
As they continued through the town, they were told that there were
another five bodies at the church, and they confined themselves to confirming
that fact. Through an informant they later learned that a group of
subversives was at a place near Cayara called Cceshua.
They set out in that direction and along the way were harassed and
ambushed by senderistas. The
military repelled the attack, killing six of them.
The insurrectionists scattered and the military followed in pursuit.
Two more insurrectionists were killed in Huamanmarca.
In all, the military put the death toll at 18. When the patrol returned to Cayara, none of the bodies it had
seen earlier in the town were there. They
had disappeared. Summarizing, the
deaths that occurred in Cayara on May 14, 1988, were the result of fighting
between the military and subversives, which is why the events cannot be
described as excesses on the part of the Military Forces in the area.
The other version was taken from the testimony given by those who
survived the events that occurred in Cayara on that May 14, 1988.
A comparison has been made of that testimony and the statements made to
the Senate Commission, to the special prosecutor, to the President of the Bar
Association, to Bishop Beauzeville, to the Mayor of Huamanga, and to human
rights institutions. In all of
them, we found a consistency, a uniformity, despite the fact that there are in
all approximately thirty witnesses making statements. The principal premise is that the Cayara tenant farmers were
massacred by the Military Forces, apparently in retaliation for their
unconfirmed complicity with the elements of the Sendero Luminoso who had
attacked a military truck the previous day.
According to this account, the events transpired as follows:
a. The
military incursion at Cayara began at 9:00 a.m. on Saturday, May 14.
Military troops arrived at the town on foot, on horseback and later by
air (in helicopters).
b. As
the military troops entered the town of Cayara, they killed one person, who was
later identified by his wife as Esteban Aste Palomino.
He had been shot in the face. In
the town itself, the military troops headed for a group of about 10 people who
were celebrating near the Church, after having dismantled the platform of the
patron of the town, the Virgin of the Incarnation and Fatima.
The military people proceeded to separate the men from the women.
The men were shoved into the Church, where they were tortured and killed.
Some of them were shot, others were hanged.
The women were ordered to leave. One
of the witnesses, Mrs. Paula González Cabrero de Noa, managed to get into the
church to look for her husband, but all she found were blood stains, hats,
sandals and a bloody waist band (chumpi). She
followed a trail of blood on the floor until she found the body of her husband,
Teodosio Noa Pariona, who had a bullet wound on his right temple.
She then found the bodies of Emilio Berrocal Cusastono, Endolecio
Palomino Tueros and Santiago Tello, all of whom had been detained and confined
in the church of Cayara on May 14, 1988. Five
people had been killed, all of whom had been shut in the Church by military
troops. Later, the military set out
for Cceshua, where 22 people were massacred by military from the base at Hualla.
Cceshua is the lower part of Cayara, where many farmers were harvesting
their crop on that Saturday, May 14. There
were many witnesses to what happened. All
of them agree that the soldiers, after killing the men, told the women and
children that they had five minutes to disappear.
They insulted the men, beat them and interrogated them about who had
killed the captain and the whereabouts of the 20 rifles that had been stolen
from the truck, in reference to the attack the night before.
The tenant farmers allegedly said that they knew nothing, which is why
they were kicked and forced to lie face down while cactus leaves were pressed
into their backs. They were then
killed, one by one, with knives, hammers, axes, sickles and other sharp, cutting
tools. The bodies were then piled
together near a molle tree. The
entire massacre took place in the presence of women and children.
The women and children returned to Cayara, where they found houses
burned, doors broken open and the theft of objects in their homes. Soldiers were posted to guard the town and held several
people inside the District Council building, where they had established their
general headquarters. Among those
held were the following Benedicta Valenzuela C.; Domitila Esquivel F.; Indalecio
Palomino de la Cruz, and Avelino Tarqui. Witnesses
also said that among the military in command of the operation at Cayara was one
who was tall (1.8 meters), heavyset, with white skin, who wore a knitted hat,
dark sunglasses, blue jeans and sneakers (description given by Primitivo Melgar
Quispe, a teacher, and Máximo Florencio Contreras). Another was tall, white-skinned, with a chestnut-color beard
and moustache, and carried a small weapon that was not a pistol (possibly a
small submachine gun); they called him "Naranjo" (Paula González).
There was also a Quechua-speaking black officer, who wore blue jeans and
a ski hat (Victoriana Meza C.). Speaking
as one in command, it was he who led the Cceshua operation (according to
testimony given by Maura Palomina de Oré).
Summarizing this second account, 28 tenant farmers were slaughtered in
Cayara as a result of military excesses.
Up until this point, the two versions -- the military version and the
version given by the townspeople of Cayara -- both acknowledge that there were
deaths. What is not clear is the circumstances under which those
deaths occurred, what weapons were employed and how many deaths there were. The
two versions differ on these points and on the question of whether or not
military excesses were committed.
After an in-depth, serious investigation of the facts, the Commission
finds the following evidence in support of the hypothesis that tenant farmers
were slaughtered in Cayara:
1. The testimony of the survivors,
whose accounts are all consistent.
2. The evidence of the PIP experts
shows that the hand found in the grave discovered on the farmland of Valeriano
Ipurre Maratoma and removed in the exhumation conducted on May 27, 1988,
belonged to Eustaquio Oré Palomino, a farmer whose death at the hands of
military troops had been reported by his relatives from the very beginning.
3. The evidence supplied by the PIP
experts has established that on the road from Cayara to Quimsa Husicco, the
place where the bodies of the victims were alleged to have been taken by the
military troops, human remains have been found, along with pieces of bloody
rope, rocks with blood, cactus leaves with blood on them (RH-O+), which would
point to the fact that bodies had been transported.
4. It has also been established that
there were traces of blood and brain matter on a direct line above (90 cm) the
ground, which would seem to corroborate the fact that the bodies were carried
away on pack animals. According to
the witnesses, the bodies were taken away on Sunday, May 15 (testimony of
Victoria Avalos - Maura Palomino Oré).
5. From the exhumation and the
autopsies conducted in Cayara, the Special Prosecutor and the Cangallo
Provincial Judge established that at the graves found in the vicinity of Cceshua
and Pampa (2 graves), Ccullpacha Haycco (1) and at Ccahhay Pampa (1), there was
evidence that the soil has been disturbed and a fetid odor of the kind given off
by decomposing bodies. The judicial
authorities went to those sites at the request of relatives who had buried the
bodies there after the victims had been killed by military troops some days
earlier.
6. In the on-site inspection
conducted on June 11, 1988, Special Prosecutor Carlos Enrique Escobar,
accompanied by Cangallo's examining magistrate and a witness from Ccachaypampa,
discovered evidence that cactus leaves had recently been cut down and blood
stains near the molle tree where the witnesses said the tenant farmers
had been killed.
7. The discovery of a grave in the
highlands near Cayara on August 9, 1988, containing the remains of three
persons, Jovita García, Samuel García Palomino and Alejandro Echaccaya
Villagaray. These same people had been detained on May 18 on orders from
the Political-Military Commander for the zone.
The body of Jovita García was exhumed and an autopsy conducted.
Beforehand, she was identified by her sister Flavia and her brother
Justiniano García Suárez, in the presence of the Deputy Prosecutor Santiago
Sigueñas, the Judge of Cangallo César Amado Salazar, members of the PIP, the
interpreter Alfredo Quispe and Special Prosecutor Carlos Escobar Pineda.
The examination of the body showed the following:
the victim was six months pregnant; her arms and legs had been fractured;
a portion of the skull had been blown away there had been a blow to the nasal
bone, which was split; the lower maxillary was dislocated and there was a deep
puncture wound at the level of the heart. The
autopsy was conducted in Cangallo, by individuals designated by the competent
judge; they reported that even though it had been dead almost seventy days, the
body was still well preserved because of the frigid temperature in the area.
8. The fact that the other bodies
disappeared from the grave where Jovita García was found shows that outside
interests were trying to prevent the truth of what happened in Cayara from
coming out.
9. In the inspection done by the
judge of Cangallo and by the Provincial Prosecutor, Dr. Chuchón, on May 20,
1988, they found no bodies in Cayara's church, but they did find some reddish-brown
stains inside the church and outside, which seemed relatively fresh.
The testimony of Elsa Infante Cuba de Taquiri is important here. She said that on May 17, military troops had washed the
bloodstained floor of the church and then put down cooking oil and soil.
In another inquiry, it was found that the floor had been washed down and
then soiled.
RELATED FACTS IN SUPPORT OF THE HYPOTHESIS
The odd behavior of the military forces in the area, judging from the
following:
a. After
the slaughter at Cceshua, witnesses say that military troops closed off the
area. The Judge and the Special
Prosecutor in charge of the investigation were unable to reach their destination
on May 20, 1988, because the officer in command had ordered that them to stop
and forced them back with gunfire. The prosecutor had to suspend the inquiry.
b. The
Political‑Military Commander of Ayacucho repeatedly refused to supply the
Special Prosecutor, Dr. Carlos Escobar Pineda, with a helicopter so that he
might get to Cayara and perform his functions properly.
He had to get there via overland means of transportation and was detained
en route. At Cangallo, he was held
up for three hours and in Huancapi for two, while the court experts who
accompanied him were not allowed to pass.
c. The
Army's equivocation: first it described Miss Jovita Garcia as a terrorist,
identified as such at Erusco and summoned by the Commander on May 18, 1988.
Later, in an official communiqué, it stated that Jovita García
"was an Army informant," alleging that she had been murdered by the
Sendero Luminoso, when everyone in Cayara had seen the military arrest her.
Her body would not be found for another seventy days, in a grave in the
highlands above Cayara, together with others who had been detained.
d. The
military's opinion that the people of Cayara were senderista sympathizers,
because they were indifferent to and unfriendly toward the Government's anti-subversive
policy. They therefore assumed that
the people of Cayara participated in the Erusco attack, since a large number of
people could have been mobilized without being seen. Hence, Cayara was an accomplice and had to be occupied.
III. LEGAL
ANALYSIS
The circumstantial evidence
The disappearance of the bodies has impaired the investigation of what
happened in Cayara, both for the Senate Commission and for the Office of the
Attorney General. Because the
bodies of the victims disappeared, it is impossible to state categorically how
those people died and who the guilty parties were.
However, as has been pointed out in this report, certain facts have been
established that are sufficient to qualify as clues and to serve as
circumstantial evidence of the fact that a slaughter took place in Cayara. As we know, circumstantial evidence is the result of
conjecture, signs or assumptions that are accepted as a logical conclusion drawn
from the facts or by piecing the facts together.
This evidence is unique and often used in criminal proceedings where the
accused and/or his defense attorney try to eliminate all criminal evidence or
distort it in such a way that full certainty or proof of what happened can never
be obtained. Circumstantial
evidence is useful in refuting lies, fallacies, false testimony, falsified
documents, and cover-ups. Evidence
supplied by experts carries more weight. As
a means of proof, clues mean gathering and interpreting any fact, event and
circumstance that helps to uncover the truth.
With the clues and using reason and inference, an effort is made to
establish links to the fact being investigated.
If it fits the rational, logical picture being pieced together, anything
can serve as a clue. Moreover, we
should point out that under penal procedural principles, there are two types of
evidence: material evidence, which
are the facts themselves; and persuasive evidence,
defined as the likelihood that one person or several persons have
committed the act under investigation.
In the particular case we are investigating, the facts can be pieced
together to make sense: the
consistency in the testimony given by the survivors as to how the tenant farmers
were killed; the strange behavior of the military in the area; open graves
containing remains and fetid odors; blood stains in various places in Cayara
where witnesses swear they saw the bodies; the discovery of a hidden grave
containing the bodies of four persons who seventy days earlier had been arrested
by the military forces; the physical resemblance of the officers in command of
the region to the descriptions given by the witnesses; the washing of the floors
of the church, and the location of Cayara, which is surrounded by military
bases, are such that when these facts are taken together they constitute
sufficient indications that the military could in fact have been responsible for
the excesses perpetrated in Cayara.
THE NATURE OF INHUMATION AND EXHUMATION
Some comment was called for with respect to this topic, because during
the Commission's investigations, some of its members tried to nullify the court-ordered
exhumation conducted on August 10, 1988, alleging that there were irregularities
when it was conducted.
Inhumation means the burial of the body.
Article 172 of the Code of Penal Procedures stipulates that in cases of
violent death or where the commission of some crime is suspected, the following
measures are to be taken:
A. Examination.
Examination and verification of the external parts of the body, of any
external wounds, distinctive features, cuts.
This is a physicomorphological examination.
B. Identification.
The purpose of this procedure is to establish the identity of the
individual (given names and surnames) whose body has been found, so that there
are no mistaken identities and so that the death certificate can be issued by
the Civil Registry.
C. Autopsies.
The internal examination of the body in order to establish the causes of
death, the means used and the nature of the wounds.
This measure is performed by experts (physicians)
except as provided under Article 161 of the Code of Penal Procedure,
which authorizes the Examining Judge to appoint individuals of recognized
integrity and competence where there are no professionals available.
What is the procedure in the case of exhumation?
Exhumation means disinterring the body.
It is done when the crime is discovered after the body has been buried.
In such cases, under Article 178 of the Code of Penal Procedures, the
Examining Judge shall carry out the examination, identification and autopsy.
The exhumation (disinterment) in the Cayara case was done in the presence
of Cangallo's Examining Judge, Dr. César Amado Salazar, the Special Prosecutor,
Dr. Carlos Escobar Pineda, the interpreter Alfredo Quispe A., members of the
Peruvian Investigating Police and the witnesses Flavia and Justiniano García Suárez. As the law requires, the following was done:
a. Identification
of the body of Jovita García by her relatives (a brother and sister)
b. Examination
of the body by experts in the city of Cangallo.
c. A
record was made of the entire proceedings, which was signed by those present.
Hence, the legality of the Record and the Autopsy Report are beyond
question. The identification of Jovita García is valid and hence one
cannot refer to her as the "so-called Jovita" because it has been
completely proven that the exhumed body was that of citizen Jovita García, who
was arrested by military forces on May 18, 1988.
There are no grounds for application of Article 172 of the Code of Penal
Procedure, as some members of the Investigating Commission had requested, since
that Article is applied ONLY when the body has not been either buried or
interred. The body of citizen Jovita García was found buried in a grave in the
Cayara highlands; by law, the only proper course of action was exhumation of the
body, under Article 178 of the Code of Penal Procedure.
Constitutional Authorities
Under Article 180 of the Constitution, investigating commissions are
authorized to investigate "any matter of public concern," in
accordance with the right of investigation that the Legislative Power enjoys.
This right to investigate does not include duplicating, nullifying or
modifying court-ordered measures or interfering with the power to administer
justice, which is the purview of the judiciary through its judges, tribunals and
courts of law, under Article 232 of the Peruvian Constitution.
Nor is any such committee authorized to interfere in the business of the
Office of the Attorney General.
The ordinary law governing penal procedure is the Code of Penal
Procedure, Articles 72 and 170 of which stipulate the form, mode, authority,
measures and decisions that the judge or tribunal can issue.
The commissions provided for under Article 180 of the Constitution have
the authority to investigate and report criminal matters when they feel that
there is evidence that indictable offenses have been committed.
That authority does not extend to the right to mete out criminal
punishment, which is the exclusive purview of the judiciary; hence, any opinions
and reports prepared are channeled through the Office of the Attorney General of
the Nation so that it may bring formal charges before the Judiciary Power, in
accordance with Article 66, subparagraph 8, of the Statute of the Office of the
Attorney General.
CONCLUSIONS
1. The
clues found by the judicial authorities and representatives of the Attorney
General's Office, corroborate the charge that tenant farmers were slaughtered in
Cayara by military troops; those clues warrant an in-depth investigation within
the judiciary.
2. In
strictly legal terms, one cannot speak of a slaughter, because thus far the
corpi delicti have not yet been found; however, one cannot discount what the
Supreme Court held in the "Cárpena Case"where a murder was tried
without the body of the victim having been found.
3. Everything
points to the fact that when the slaughter was publicly protested, Ayacucho's
Political-Military Commander decided to erase the evidence.
To do so, he closed off the area and did not allow any civilian authority
or member of the press to enter until one week later, during which time they dug
up the bodies and moved them to the Cayara highlands.
4. The
military's repressive action did not end on May 14, 1988, the day of the attack
on Cayara; days later, on May 18, 1988, the head of the Political-Military
Command of the Zone seized Jovita García Suárez, Alejandro Ectuccaja
Villagaray and Samuel García Palomino; seventy days later, their bodies were
found in a grave in the Cayara highlands. Everyone
in Cayara witnessed the arrest of these townspeople, who were later described as
"Command informants" in order to be able to blame their deaths
on the subversives.
5. The
Chief of the Political-Military Command, Peruvian Army General Valdivia Dueñas,
and the direct perpetrators of the killings, are undoubtedly the persons
responsible for these serious events.
6. Far
from covering up the military's blame, the Government should convince the Armed
Forces' highest ranking authorities that all of the facts about what transpired
in Cayara must be established and those who are responsible punished.
The army knows who they are, since it knows the real names hidden behind
the pseudonyms used by each patrol leader.
Our Commission feels that there are sufficient clues to warrant an
in‑depth investigation by the competent authorities concerning the events
that occurred on May 14, 1988, in the town of Cayara, Province of Víctor
Fajardo in Ayacucho, to ascertain the facts and establish the identity of those
responsible for the killing of 28 Cayara tenant farmers.
Unless the Senate demur.
For notification. Committee
Room. Lima.
(Signed) GUSTAVO MOHME LLONA
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