Inter-American Court of Human Rights
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VI Evidence 59. In accordance with Articles 44 and 45 of the Rules of Procedure and the Court´s case law regarding the evidence and its assessment,5 the Court shall proceed to examine and assess the documentary evidence submitted by the Commission, the representatives and the State in various procedural stages or as evidence to facilitate adjudication of the case as was requested pursuant to instructions of the President, as well as the testimony of witnesses and expert witness opinions rendered through affidavits or before the Court. With that purpose, the Court will follow the rules of reasonable credit and weight analysis, within the corresponding legal frame.6 A) Documentary Evidence 60. The Commission and the representatives submitted the statements of witnesses and the reports of expert witnesses, pursuant to the Order of the President, issued on of August 17, 2006 (supra para. 23.) Subsequently, the Court summarizes the said statements: Statements of witnesses proposed by the representatives a) Carmen Rosa Amaro-Cóndor, sister of Armando Richard Amaro-Cóndor Her brother was the first member of the family to attend university; he contributed to the household, and was planning to graduate and continue further studies His main goals were to study, work and help his younger siblings and parents. The witness loved and respected him, and considered him her friend. She felt great sorrow and grief when her brother disappeared as no one knew anything on his whereabouts. Then, when she learnt of the discovery of graves through the television, she had mixed feelings, as even though there was not much hope of finding him alive, “one is not willing to accept death.” “All [her] siblings started wailing and banging their heads, [her] father moved restlessly from one place to the other and [her] mother knelt and asked God the reason for deserving such grief.” In order to identify her brother’s body, her mother made a special point on the way he was dressed and the fact that a set of keys was missing. A set of keys that opened the doors of their home was found in the graves, so they knew it belonged to their brother. She said that “[when you hear about clandestine graves,] the image of complete bodies comes to your mind. But when you see only parts of a body you start to think […]. The memory of [your beloved] comes back to your mind, and now it has turned into this and you do not even know what part belonged to him. The human remains are valuable for the family, even though it is not possible […] to bring him back to life. At least you feel at ease that his body is complete. But it wasn´t. They made him disappear completely; they burned his body with lime, with gasoline, that shows their complete inhumanity.” After the discovery of the graves, they “were given the bodies […] in milk boxes, as if [their] family was worthless.” Her family was threatened. One day a mortuary wreath with her mother’s name arrived at APRODEH. Besides, they warned her not to go on speaking, or she would “die in the same way” her brother had. Her family has not been the same since her brother’s disappearance, “it has […] broken”; it used to be “merry, cheerful [and happy,] but this happiness has gone with Armando, but he[…] left a life example behind […] for this never to happen again.” It has been very hard for us to endure the pain of being told that our brother was a terrorist and that “he had been killed for said reason.” It was unbearable to see her mother’s condition. “Sometimes […] they saw her in the balcony, at dawn, waiting for him to return.” She did not feel like smiling, and had lost any will to start any personal project. Sometimes, she felt she could not endure such grief, she even considered suicide due the big injustice they were suffering. Nevertheless, she understood that “grief turns […] into strength.” Not only did she lose a beloved, but a part of her own life was gone with him […] Impossible to think about a personal project when the main issue was [her brother] and the claim for justice. Personal projects were gradually pushed to the background […]. She consider[ed] the possibility of committing suicide for she could stand the grief no longer. On the other hand, with the compensation awarded by the Judgment of the Military court, her parents bought the house where they currently live in. She feels justice has not been done, as she deems justice “as a whole and not partially.” “There will be no justice until all those responsible for the killings are punished. Therefore she requested the Court to overturn the judgment of the military court so that all those who were benefited with amnesty can be punished. She also requested that it be refuted that her brother was a terrorist; that the State assumes liability for all damages and ask for forgiveness.
She lived with her nephew, her husband and children for about seven years. Heráclides was a good student and hard-working young person, who was eager to get a professional degree. She learnt of her nephew’s disappearance through the newspaper. She inquired about his whereabouts but nobody gave her an explanation, they even “denied their attack to the university.” When she learnt about the discovery of the common grave, she thought it was a prison or a house so she believed her nephew was alive. Then, she went to the site and she saw burnt remains. She felt great grief. She could identify him on seeing “his hair, his nails [and] his clothes.” She and her family have been seriously affected by the loss of her nephew. In your heart you cannot forget what happened. For several months she had to hide the truth from her brother, Heraclito’s father because “I was afraid to tell him […] as he […] has a heart condition.” When he knew about it, he reacted with great sadness. She spent up his money in expenditures seeking for justice. As a result, she had to close down his market-stall. She had bodyguards during three or four months because she feared something could happen to her, as she had to “continue moving and searching.” “There is no justice. They always conceal justice [.].Until my death, I will always keep on searching for the truth.” She requested the Inter American Court to order the State to “tell them where the remains are,[…] where the heads are, […] where they keep them.’ c) Victor Andres Ortiz-Torres, father of Luis Enrique Ortiz-Perea His son enrolled in the Universidad de La Cantuta (La Cantuta University) with the purpose of getting his degree and then traveling through Mexico in order to “excel over his studies.” As student, his son “complained against the excesses of the military within university.” When he knew about his son’s disappearance he thought that “he would find him sometime, in some place, battered by the treatment that the military always give people.” Later, he felt “he had lost him […] and that it would be difficult to find him, as the conduct of the military officers was already known.” His family felt unable to speak. It seemed that all the authorities “had received the order to remain silent.” They have incurred several expenses during the years of their search. His daughter Gisela also spent lots of money and she is jobless as she has devoted her life to the search of justice. “The military [..] go beyond their authority; they decide over the life and death of people with the excuse that they are terrorists.” In fact, in the case of La Cantuta “the military have succeeded in spreading the idea [at domestic level] that all the people that have died there were terrorists and their families as well.” His family has been threatened. His daughter Gisela was sent a funeral wreath to APRODEH saying she was going to die; and his two younger daughters “were approached by two policemen who told them to make no comment”; furthermore, in the corner of [his] home there were policemen to keep watch on them.” He is very concerned about his daughter Gisela’s safety, who apart from having abandoned her studies, “has been deeply affected by all the events, as she now is very quick-tempered and she was not like this before.” Moreover, he feels very sad because he is not going to see his son again. He received a monetary compensation from the State for his son’s disappearance in 1995. In spite of the fourteen years that have passed by since the events, he feels “justice has not been done yet.” Finally, he requested the Court to order the State to “stop treating them as terrorists.”
His son had been raised by him, his grandmother and his foster mother. When he knew about his son’s disappearance he “[lost heart and thought] the worst.” He and his wife took him clothes because they thought he might be feeling cold. He learnt about the discovery of the graves through the magazine “Si.” He and his wife took turns to go to the excavations every day. They identified a piece of his son’s trousers and sweater. He felt “pain [,] anguish [and] grief.” He and his family will go on “suffering until their death.” “He does not want to work any longer. What’s the use of it? […]He is going to die.” He requested the Court to order the State to return them the remains of his son, to finish “the trial of La Cantuta all at once;” to order “an exemplary punishment” and reparations. e) José Oyague-Velazco, father of Dora Oyague-Fierro His daughter was studying initial teaching and wanted to “build a school and manage it.” He knew about her disappearance “because she had to return home on Friday and she did not arrive, so he went to the university to fetch her and the army did not allow [him] to enter.” He felt “nervous and had the premonition that something bad was about to happen [. Afterwards,] on seeing her name [in the newspaper he started] crying because he felt that something had already happened to her.” He and his brother filed a complaint with the prosecutor´s office. However, “they have never received a reply.” When he learnt that some graves had been discovered, he felt “fury, helplessness, injustice, rage, for the abuse committed by the military.” In one of the graves he found his daughter’s stockings. It was then that he thought that everything had been a premeditated and treacherous action and that someone had ordered it.” His family was threatened. They called him to his home and told him to “shut up or he would face the same fate,” and they also called him “terrorist” (terruco.) They left anonymous threats at his home saying “it would be better for him to keep silent; otherwise he would regret it.” The loss of his daughter “broke any future work or family life project,[…] She was the only girl.” Besides, they “expected to have other sources of income.” [“His daughter’s disappearance caused] a collective sadness, to the whole family, the household, her aunts and uncles, even to their neighbors, as they would not see her come back any more.” Justice has been done “partially” since the masterminds are free. Nevertheless, the “macabre truth has been undisclosed” [“His sorrow] would only be alleviated if the perpetrators and masterminds are given an exemplary punishment.” He requested the Court to order that scientific examinations be carried out on the bones found, so that he could identify and be given some of the remains of his daughter. Finally, he requested the Court to order the State to grant him “adequate moral and monetary compensations [and] that justice be done.” f) Rosario Carpio Cardoso-Figueroa, brother of Juan José Mariños-Figueroa When he knew about his brother’s detention he “consulted a friend who served in the police force, and who accompanied him to different places, [but] with no results.” His friend told him that the procedure of abducting students was typical of the army; the police did not abduct and keep them under custody. Their method was to kill them[. T]ime proved his friend was right.” His parents, who lived in the hills, did not know of his brother’s disappearance until three months later. For them and all his siblings “it was the saddest and most dramatic news in all their lives.” After his brother’s disappearance he spent nearly two years abroad, in Argentina. He left “because he felt a strange atmosphere, he lived in fear of being abducted at any time, he was afraid because he also studied in La Cantuta, his brother was missing, his sister was said to have bombs [.] Then he heard that his brother was […] dead […]. At that time [he felt] a terrible grief. During those years, he had never cried as he did that day.” His brother’s disappearance “changed his life,[ his family’s life, his] siblings and he himself stopped studying and the family disintegrated as such.” He requested the Court to do justice and to give a monetary compensation to his brother’s father and mother and free medical care to all the members of the family. Testimonies of witnesses proposed by the Inter American Court and the representatives
His brother worked as a professor at La Cantuta University and lived in the faculty residence with Antonia Perez, his wife, and his children, four-year old Liliana and two-year old Hugo. Two days before his brother was abducted, he had told him about strong rumors that a search would be carried out at La Cantuta. He knew about his brother’s disappearance through his brother’s wife. His brother was planning to retire after 25 years of service, and had already worked twenty years, He had been making his best efforts to find his brother since the very moment of his abduction until the discovery of the graves. The authorities denied any operation at La Cantuta or answered they did not to know anything about it. Then, it was rumoured that he was detained in Puno or elsewhere. After that, Henry Pease, a Congressman, denounced the existence of clandestine graves. “At that moment he felt great longing as he had the hope of finding him alive.” Upon his brother´s abduction, he and his family felt helpless and indignant; he feels his “soul wounded.”. His sister-in-law hid the truth from his nephews. When a law was passed ordering the members of the “Grupo Colina” (Colina Group) to be judged by a military court, he felt indignation and impotence, as within the following 72 hours the military court had determined that the group acted on their own account that and the State bore no responsibility for the events. He felt the same rage and indignation when the amnesty law was passed. Alberto Fujimori did all he could for those held intellectually responsible to remain unknown. Since the change in the government, the “members of the Colina Group and Montesinos are being held on trial at the Military Base.” Nevertheless, fourteen years after the events took place, full justice has not yet been done, as this will be possible only when perpetrators and masterminds be “judged and convicted for the crimes against humanity they committed.” He wants to know where the remains of his brother are lying, and he expects the masterminds to be investigated, as “the remains of [his] brother have not been found yet, with the exception of a part of his humerus bone, which was sent to London for DNA testing, and neither the bone nor the results of the study have ever returned. He has not been identified[. ]His brother’s tombstone bears his name and an epitaph in his memory, but his remains are not there.” Furthermore, he expects that the apologies for the killing be given by the Office of the Ombudsman and that an obelisk to be erected in memory of his brother and the students, as La Cantuta is considered an emblematic case.
He was the prosecutor who learnt about the investigation on the clandestine graves on July 8, 1993. He went to the site of the graves with forensic experts. He carried out the proceeding in public. One of the graves of the first burial, which was a secondary inhumation of someone found in Cieneguillas, had already been opened and on removing some earth, pieces of cardboard, with fragments of burned bones were found. Apart from the bones, hair, small fragments of burned bones, pieces of fabric, earth, cinder, a compact shapeless mass and some keys. The fragments of bones and other objects produced a strong smell because, according to the experts´statements, they had been burned when they were already decayed. There were small objects in the second grave. In the burial of Huachipa, which proved to be the first inhumation, and presumably, the place where the victims had been executed, remains of unburned bones and other objects were found. The experts were able to reconstruct a complete bone and concluded that the physical characteristics of the victim corresponded with those of the students of La Cantuta. From bones and material found in the graves of Cieneguilla it is possible to conclude that the remains found belonged to the students Bertila Lozano-Torres, Juan Gabriel Mariños-Figueroa and Armando Richard Amaro-Condor; “remains of objects belonging to Robert Teodoro-Espinoza and Heráclides Pablo-Meza were also found.” Some human remains that had not been destroyed by burning were found in the second graves discovered in Huachipa: namely, half of the skeleton belonging to Dora Oyague-Fierro, and the complete skeleton of Luis Enrique Ortiz-Perea.” The experts inferred that the execution of the alleged victims took place the same day of the abduction, at dawn. This has been confirmed after the statement of those indictees that availed themselves of the “Colaboración Eficaz” Program (Effective Co-operation). He prepared press releases “because the case belonged to the public domain and as a way of protecting his investigation and [his] work, considering that by that time, the political power had influence on the judicial power..” After confirming the possibility of carrying out DNA testing on some of the remains, the possibility of doing them in the United States and Japan was taken into account, although finally they decided on Great Britain. Doctor Escalante, expert in genetics, stated that the tests on eight bones would cost fifteen thousand dollars. In August 1993 the same doctor informed that, “he would not be able to conclude the necessary steps.” Afterwards, as the cost of the tests was higher, only one bone could be analyzed; the outcome was consistent with the genetic code of Felipe Flores-Chipana. While being in charge of the investigation conducted by the prosecution office, he felt threatened by “hooded people in vans [who encircled his home.”] i) Edmundo Cruz-Vilches, journalist of the weekly magazine “SI” at the time of the events He knew about the disappearance of the students of La Cantuta through his journalistic activity. He obtained information about the Grupo Colina (Colina Group) and one of its most relevant operations, the disappearance of the professor and nine students from the La Cantuta University, between December 1992 and October 1993. The magazine “SI” received, through a member of the Congress, “a sample of human bone remains stating it belonged to a missing person of La Cantuta, and a sketch describing the place were they could supposedly be buried.” These elements led to the discovery of the graves of Cieneguilla. After said discovery, an investigation on the case of La Cantuta was started by the prosecution office. Afterwards, a member of Grupo Colina (Colina Group) got in touch with him and with another journalist of “SI” magazine, named José Arrieta-Matos. Through the information provided by that person, they could get to the graves of Ramiro Priale, where the alleged victims had been first buried. He had to face several obstacles in the course of the investigation. In fact, “the Congress of the Republic approved, by the vote of a broad majority, a resolution whereby they requested the Home Affairs Office to provide police protection to the three journalists of the magazine “SI” who had made the discovery.” During the press investigation on the Grupo Colina (Colina Group), they were “threatened through the telephone, they were followed and their telephones were bugged. In the case of La Cantuta they were accused of serving as instruments of Sendero Luminoso (Shinning Path) [and] members of the Intelligence Service [requested prosecutor Cubas] to include [the witness] in the investigation as accused” but the prosecutor rejected the petition. This is an emblematic case as “the professor and the nine students were first arbitrarily pointed out as terrorists and considered the authors of the car bomb in Tarata Street, [and] they were abducted and disappeared under said presumption. [Besides,] they were tortured” before being executed […] They were buried three times […] and finally, the obstinate and systematic way in which the highest authorities of the State […] tried to conceal and deny [every fact related to the events] and they still continue to do so.” j) Retired General Rodolfo Robles- Espinoza, military who denounced the Grupo Colina (Colina Group) and the Intelligence Services in Perú At the time the events took place, he was Commander General of the Third Military Region in Perú and had the rank of Division General. He knew about the existence of the Grupo Colina (Colina Group) “as a result of [the] events of [La Cantuta since] some officials and auxiliary personnel who were working or had worked with him before and who belonged to the Army Intelligence Service informed[…] him of the existence of this group or death squad [and] of the different ‘special intelligence operations’ attributed to them.” The aforementioned group had been created “in the context of the war against Sendero Luminoso (Shining Path) under the initial argument of national pacification, arguing about the need to create an intelligence group for the analysis of the documentation seized” from that organization. Vladimiro Montesinos promoted the creation of the Grupo Colina (Colina Group) and he imposed it on the Commander General of the Army in 1991,[…] counting on the firm support of Perú Defense Minister […] and the consent of President Alberto Fujimori.” Officially, the Grupo Colina (Colina Group), is an “Operative Intelligence Detachment, pursuant to the organizational schedule and, within the budgetary structure of the Army it is considered a standing organization, formed by approximately fifty officials […] trained for special intelligence missions, including secret operations[. P]articularly, they were employed as group for extra-legal executions.” The Grupo Colina (Colina Group) was related to the armed forces through the DINTE (Dirección de Inteligencia del Ejército) (Army Intelligence Board), which is organized in Sub-Divisions to perform all the duties it is in charge of, and it has an operative or executive unit, the Servicio de Inteligencia del Ejército (Army Intelligence Service) (SIE). “The aforementioned Operative Intelligence Detachment was formally created within the SIE (and its members named themselves informally Grupo Colina (Colina Group)) and it was in charge of special intelligence tasks[…].” Regarding the relation between the Grupo Colina (Colina Group) and the intelligence services of the State, he said that the Servicio de Inteligencia Nacional (SIN) (National Intelligence Service) was the leading entity and it commanded (with legal support) all the Intelligence Services of the Armed Forces and the Perú National Police (PNP) as well as the respective intelligence bodies of the Joint Chiefs of Staff, which were organized under a vertical system where all of them reported to […] Vladimiro Montesinos [who was the real chief of the SIN].” “The president was permanently informed of the operations by the chief of the national intelligence and by the Army Commander General of Operations of the Grupo Colina (Colina Group), before, during and after the operations.” “The operations were ordered by Vladimiro Montesinos and General Hermoza-Rios,[…],but they always had the consent of the President for the most important and transcendental operations.” The former President “played a leading and significant role in concealing and providing them impunity, for example, by ordering the members of the Congress of the official party to pass the “Ley Cantuta” (Cantuta Law) [and] the “Ley de Amnistia,” (Amnesty Law.) “The Grupo Colina (Colina Group) was [sent] to kill[…].Its actions implied a message of terror […] In the major operations [, as in La Cantuta,] they were backed by regular troops that cleared their operational field, as a result of the planning by the Estado Mayor de Unidades de Combate (Major Staff of Combat Units).” “During the time Montesinos and Fujimori were in the government, the judicial power did not keep the independence and autonomy prescribed by the Political constitution.” This is the reason for the acquittal of the instigators of this massacre by the military criminal court. Furthermore, the judgment pronounced by said court “was a show to make domestic and international public opinion believe that justice had been done.” Nevertheless, those that were convicted knew that they would be granted an amnesty upon Fujimori´s reelection.” About March 1993 he learnt about the events of La Cantuta and received information about the Grupo Colina (Colina Group). Therefore, he went to see General Picon and denounced the crimes. General Picon told him “that he had already received instructions from General Hermoza to state in his judgment that no military personnel were involved in the killing and the Investigation Report of the General Inspection Board of the Army would be issued following the same guidelines. “ The military jurisdiction “was used as an instrument to conceal and warrant the impunity for the forced disappearances and extra-legal executions carried out under the anti-subversive strategy.” Besides, the Peruvian Congress passed the Ley de Amnistia (Amnesty Law) (№ 26,479) whereby military and policemen were released from liability, as well as the civilians who had violated human rights or taken part in those violations between the years 1980 and 1995. He first reported the events of the case of La Cantuta “based on the information received from high rank officials who belonged to the Army Intelligence System, and were absolutely credible sources of information […] then corroborated in full detail and crossed with information provided by other officers of lower rank and Auxiliary Personnel of Intelligence who had had direct knowledge of the events. Afterwards, while in exile in Argentina [he analyzed] all the information that kept arriving and that he got to know from open sources, applying the reasoning method used in the ‘cycle of production of intelligence’.” As a result of the complaints he filed, he destroyed [his] life project[. His] military career was aborted after serving for 37 years; as well as the possibility of being promoted to Commander General of the Army.” Two of his sons were discharged from the army through a “disciplinary measure,” which is an unjust and disgraceful punishment still in use. Being Army Officers [the three of them], the fact that they denounced […] that group of assassins in uniform that committed crimes against humanity” is still considered as disloyal conduct in Perú. Expert witnesses proposed by the Commission k) Eloy Andres Espinosa-Saldaña-Barrera He referred to Peruvian constitutional law and the possibilities existing within the domestic legal system of guaranteeing the effective deprival of legal effects of Law № 26,479, known as the Amnesty Law, and Law № 26,492, referred to the interpretation of the Amnesty Law, as a result of the suspension of its effects due to its contradiction with the American Convention. In this sense, the witness stated, inter alia, that Perú is “compelled to comply with the rulings of the American Convention,” since it has ratified the American Convention. Such obligation is provided in the regulations of its domestic legislation, which provide that the judgments of the Inter American Court are to be executed immediately and directly. He also stated that if “the resolution is of a general scope, it will not suffice with a diffused control over a particular case.” The unconstitutional nature of said law “is evident and, besides, it shall, at least, have effects on the legal decisions whereby the accused are acquitted or provisionally released.” This argument is founded on the emerging principle of the Human Rights law.” Expert witness proposed by the representatives
After referring to the context existing in Perú at the time of the events, he referred to Peruvian constitutional law, specifically to matters related to the inexistence, invalidity and inefficiency of laws in Peruvian legal order, especially to laws No. 26,479 and 26,492, as well as to the effects and scope of the rulings of the Constitutional Court, both in amparo and constitutional proceedings related to said laws. Besides, he referred to the situation of the Peruvian judicial system and its capacity to give adequate judicial response to serious violations of human rights. He stated, inter alia, that the interpretation judgment delivered by the Inter American Court in the case of Barrios Altos, regarding the amnesty laws “definitely opened […]the way towards justice […] in all the remaining cases.” Therefore, “the fact that the amnesty laws have not been formally abolished does not prevent the judges from investigating and punishing those held responsible, since in Perú all judges have the constitutional power to give prevalence to the constitution over the laws, and consequently they are authorized not to apply amnesty laws.” B) Testimony of witnesses 61. During the public hearing (supra para. 23) the Court heard the testimonies of the witnesses for the Inter-American Commission and the representatives. Below, the Court summarizes the relevant parts of said testimonies. a) Gisela Ortiz-Pérez, sister of Luis Enrique Ortiz-Pérez When her brother disappeared, she was twenty years old and she was also a student at La Cantuta University. From the very beginning the next of kin have been in search of truth and justice. As from the date of the events, they have made formal complaints, intended to sensitize Peruvian society and the international community, to "build up memory" as "it is a way of taking her brother back to life." While participating in the several actions aimed at searching missing relatives, she went to the mass graves and once there she reminded that “[they], with [their] hands, disinter[red] the remains those criminals had left. [They] wer[e] in those mass graves of Cieneguilla, disinterring the burnt remains of [their] next of kin […], in year 1993 […] They scratch[ed] the ground trying to uncover the truth hidden there.” She stated that “the body of [her] brother appeared there; and that was the only corpse the criminals left, a corpse dried by the lime that had covered it [. I]n [her]opinion, the most painful thing [she] had to endure up to now was to discover –a year and a half later- that [her] brother had been thrown into that mass grave.” Her brother’s body was the only one found there. It had five shots on the head. The next of kin “did not know that those criminals were so cruel to hide the body, to deny [them] the right to bury the corpse.” She is grateful “to life and […] God [for] finding [her] brother,” since in Perú “thousands of victims” have not such opportunity. The damage was caused not only by the disappearance and death of her brother, but also by all the after-effects caused to her family and her personal life. “She [had] to abandon [her] studies at the university. Really […] it was very hard to go to the university without feeling emotionally bad because [her] brother was not there, [his] university mates were not there either. It took [h]er over ten years to make up her mind to resume her studies. [S]he felt that […] any personal progress entailed a betrayal of [her] brother, since he was not there any more and he could not finished any of the things he had been in search of." Besides, “[her] younger sisters […] are still suffering from the same after-effects [than her]: anxiety, depression, the same emotional instability, they are distrustful persons[. She] pity [her] parents, who are so sad for her brother’s death […] they [will] always talk about a time before and after said death. Then, […][they] clearly recognize how [their] life was before July 18, 1992 and what it has become […] after such event […].” She had to abandon her studies at the University as she devoted herself to seek justice. It is hard for her to continue with an ordinary life and has no personal project; she cannot take the risk of having a child under the present circumstances. As regards the legal proceedings, no judgment has been rendered against the persons liable for her brother´s death. Contrariwise, the masterminds behind the crimes “were successful in obtaining a tailor-made judgment issued by the military courts, whereby their complaint was annulled and dismissed for lack of sufficient evidence." Afterwards, in 2001, the prosecutor resumed an investigation that lasted until year 2005. As from that time, the proceedings are at the stage of the oral trial. The next of kin participate in such proceeding. Several of the accused persons have been released upon expiration of the legal term within which the judgment should have been rendered. Besides, the masterminds have not been tried. Moreover, the next of kin are civil complainants in the proceedings against Alberto Fujimori pending before the Supreme Court of Justice. “The State does not understand that for [the next of kin] justice is as necessary as to eat, sleep or survive, because […] since the death of [their] beloved ones, [they] cannot say they are alive; [they survive] when they wake up each morning and do not know what will happen […] Actually, for [them] amnesty is a permanent threat, because it entails a State indifferent to the victims´claims. […] The State has not taken enough measures, it has done nothing to punish those liable in the case of Cantuta.” Although the State has acknowledged its responsibility in the instant case, before the Inter-American Commission, the next of kin decided to waive the amicable solution proceeding since the State was not willing to comply with its commitment. She has received no compensation, reparation or apology from the State. However, her parents, legal heirs of her brother, received compensation from the State, in compliance with the judgment pronounced by the CSJM (Supreme Council of Military Justice). Integral reparation must be rooted in the public acknowledgement and apology from the State. Furthermore, the State must see for the mental and physical health of the victims, award education grants and create memory spaces, since “each one of the victims in [Perú has] the right to public acknowledgement […].” The civil community encouraged the construction of the “Ojo que llora” (“the Crying Eye”) in a place donated by the Jesús María Municipality, in Lima. However, the State “cannot be small-minded and believe that said memorial […] is everything the victims deserve.” Moreover, the State must admit that the event involving the ten alleged victims is the official story and it must stop saying that they were subversives or terrorists. Contrariwise, the State "used terrorist methods and ways to kill university students.” The witness does not agree with the analysis made by the Comisión de la Verdad y Reconciliación (CVR) (Truth and Reconciliation Commission) in the case of La Cantuta regarding the “general context on how was life at the University […], the particular coexistence conditions of students” as “it does not reflect […] reality.” Besides, since year 2003, when the CVR submitted its report, and up to the present time, its “recommendations have neither been implemented nor taken into account by the State.” The witness requested that the State publicly acknowledges that it has violated the rights of the alleged victims and their next of kin. Her brother “is murdered from behind each day impunity continues and each day [t]he murderers […] are allowed to go on unpunished.” The next of kin are treated “as second-class citizens” with no rights and they are tired and scared since they do not know how more time they will have to "pledge [their] life to this fight, which should be the fight of the Peruvian State and not only [theirs.]” Finally, she requested the Court that “each one of the persons liable for the violations of human rights [be] punished;” that the official story of the case of La Cantuta be written; that the victims be awarded an integral reparation; and that the next of kin be dignified as victims of the State. b) Raida Cóndor-Sáez, mother of Richard Armando Amaro-Cóndor A friend of her son Armando told her that he had been arrested. She looked for him in the DINCOTE, the Police Station and hospitals, but did not find him. Then, she went to the University where she learnt what had really happened. She submitted the corresponding complaints together with other next of kin. Only APRODEH “gave them a hand," since everybody thought their sons were terrorists, and consequently they were marginalized, could not find a job and people considered them “bad." The only thing belonging to her son that she found in the mass graves were his keys. “At that moment, [she] felt completely discouraged, she want[ed] to die too; but then she thought: ‘I cannot die; if I die, who will speak for him, who shall claim justice for my son?" The investigation conducted by Prosecutor Cubas was sent to the military courts, but there, the next of kin “were never […] accepted.” Upon the end of Fujimori´s government, the next of kin took some measures before the Prosecutor´s Office in order that the case be reopened. In the current proceedings, where she gave testimony, "the officers of the highest rank in the forces, who ordered that the students of La Cantuta were killed, are not [being tried.]” She received threats “many times”: she received calls and flowers with the warning that she would "die, as [her] son had died.” Her family “is not the same. One of [her] sons is in a bad way.” Sometimes her sons complain because she is not with them, but she explains to them that “it is necessary to go on.” Before his son was arrested, she took in washing and worked at the market. She quit her job and devoted herself to the search of justice. She received a pecuniary compensation and used it to buy a house and pay some debts she had incurred in the different steps and actions she had taken. However, "that is not the price of [her] son.” In the memorial “El Ojo que llora” (the “Crying Eye”), donated by the Jesús María Municipality, she wrote the name of her son and “she did not know that the State had built it.” c) Antonia Pérez-Velásquez, wife of Hugo Muñoz-Pérez When his husband was arrested, she resorted to the University authorities, but they did not know what had happened. The personnel of the military base of the University told her that they had conducted no procedure. So, she went to police stations, military barracks and to the DINCOTE, but her search was unsuccessful. “It was as if he had vanished off the face of the earth.” In the mass media, they said that it was “practically […] impossible to give any news, any report on the subject since […] as they were afraid of the government´s reaction.” Some next of kin or friends that were members of any of the armed forces, advised her to do nothing and to keep silent because she and her children were in hazard, since the disappearance of her husband had been "something decided by the government, by top governmental officers." The disappearance of her husband “had strongly affected her, first because she suddenly becam[e] a single mother with two kids under four years old, and unexpectedly, in order that [she and her] children could be safe, she had to leave a nice, comfortable house at the university, where she lived a relatively peaceful life, and move to a small house. She asked lodging to a relative […]. Suddenly, they were living on the terrace roof of that house, they ha[d] to improvise two rooms with little pieces of cardboard, plywood (triplay) and matting […] They start[ed] to live in such precarious conditions.” Her husband was so “devoted to their children” that her eldest daughter was the one most affected by his disappearance. She lied to her daughter about what had happened with her father: she told her that he was on a business trip, but her daughter did not believe her. When she took a long time to arrive home, her daughter thought she would not come back either. The disappearance of her husband also “affected her from the job standpoint […] since she was not the teacher devoted and dedicated to [her] students any more. She had to request a leave as she frequently had to be out of her job and practically, and due to reasons of professional ethics, she had to quit, waiving [her] rights or [her] benefits [… She had] to resign in order to be able to go on with the proceedings […] and actions." This had affected the economy of her family. She found nothing belonging to her husband in the mass graves discovered. However, the authorities took blood samples from her youngest son to conduct the DNA test, the results of which she does not know. At the time of the events analyzed in the instant case, “it was not unusual that any citizen […] was arrested and took under custody in order to conduct the corresponding investigation, alleging he/she was a terrorist. [When] people heard the word terrorism, everybody tried to be far from such person.” In fact, her friends and some relatives “have turned their back on her,” since they think her husband was a terrorist. “People lived[…] with anguish [since] at any time [one] could leave [the] home and there was not certainty of [being able] to come back.” The witness deemed that the people was aware of the existence of a systematic practice and State terrorism. Her sister-in-law, who accompanied her when she had to resolve matters related to the proceedings and during her long walks, was frequently followed by a car. Besides, her sons feared that she might declare before the Inter-American Court. The next of kin of the dead or missing persons had not access to the proceedings followed before the military courts. Afterwards, with the fall of Fujimori´s government, she had hopes that justice would be done, but nothing happened. In the current proceeding, where she gave testimony before the Prosecutor, only a few persons have been accused while others are free. The proceeding is long and wearisome. She participated in a hearing that “was extremely hard to endure since the person who was giving testimony explained, with great detail, how […had killed [her] husband.” As of said time she has not returned since she "was appalled and deeply shocked.” Her brother-in-law and her other relatives keep her posted of the progress of proceedings. She has never received any apologies for what happened to her husband. And though they really need it, neither she nor her children have received any psychological support. She has been unable to overcome her husband’s death. From her point of view as teacher, a full redress must include education and health. Furthermore, she thinks that “people [can] not allow any violation of their rights. […] These are values that must be taught to young people." She requested the Court to do justice; that all persons involved, not only the perpetrators, but also the masterminds, be punished; that the University do not “sink into oblivion.” B) Assessment of documentary evidence 62. As in other cases,7 the Court recognizes the evidentiary value of the documents submitted by the parties at the appropriate procedural state, which have neither been contested nor challenged, and whose authenticity has not been objected. 63. As regards the documents submitted as evidence, clarification and explanations given to facilitate the adjudication of the case (supra paras. 33 and 36), the Court incorporates them to the body of evidence of this case, under section 45(2) of the Rules of Procedure. 64. The State challenged, generally, the affidavits of the witnesses offered by the Commission and the representatives for being pointless, as the State “has not contested the information related to the efforts made by the next of kin of the alleged victims in the search for justice.” In this regard, the Court deems that said depositions can contribute to determine the facts of the instant case as long as they are consistent with the purpose defined in the Resolution of the President dated August 17, 2006 (supra para. 23), and consequently the Court assess them applying the rules of reasonable credit and weight analysis and taking into account the remarks made by the State. Furthermore, the Court points out that since said witnesses are alleged victims or their next of kin, their statements cannot be assessed separately for they have a direct interest in the outcome of the case, and therefore, must be assessed as a whole with the rest of the body of evidence. 65. As to the press documents submitted by the parties, the Court considers that they may be assessed insofar as they refer to public and notorious facts or statements given by State officials or when they confirm aspects related to the case in point.8 66. Regarding the documents and information requested to the parties (supra paras. 33 and 36) and which they have not submitted, the Court points out that the parties must lodge with the Court the evidence the latter may request them. In particular, the State did not inform, save regarding to only one person, who were the persons indicted or convicted in the criminal cases tried by military courts, who have been, or currently are, imprisoned and, if such was the case, whether they have been under pre-trial custody or as convicted in said proceedings. This prevented the Court from determining if such sentences had been effectively complied with. The Commission, the representatives and the State must submit any evidence requested, so that the Court may have the greater number of elements of judgment to have a thorough knowledge of the facts and ground its decisions. * * *
68. In turn, the Court points out that in a document of 1996 issued by the Permanent Representation of Perú before the OAS, filed as an appendix to the application, there is a list of the heirs that would have received, up to that date, a pecuniary compensation ordered by the Consejo Supremo de Justicia Militar (Supreme Council of Military Justice) (infra paras. 80(55) and 80(56)) in its judgment of March 3, 1994. Said list includes the names of Zorka Milushka Muñoz-Rodríguez, as daughter of the alleged victim Sánchez-Muñoz, and Celso Flores-Quispe and Carmen Chipana, as parents of Felipe Flores-Chipana.11 However, neither the Commission, in the application, nor the representatives, in their brief of requests and arguments, included said persons in the list of the next of kin of the alleged victims. 69. In the brief of requests and arguments, the representatives included, among the next of kin of the alleged victims, four persons that have not been named in the application.12 At that time, no proof of kinship was submitted. Besides, said persons were included by the Commission in the closing arguments and the representatives filed certain documentation related to said persons as evidence requested by the Court to facilitate adjudication of the case. 70. In the closing arguments, the Commission included, in the list of the next of kin of the alleged victims, the names of two persons that had not been included in the application,13 as they had already been named in the affidavits made by two next of kin. 71. Finally, according to one of the appendixes to the closing arguments of the State, there is an official document where the name of Carol Denisse Muñoz-Atanasio is included as the legal heir of Hugo Muñoz-Sánchez in connection with the civil compensation ordered in the judgment of the CSJM of March 3, 1994 (supra para. 68 and infra para. 80(55) and 80(56)(d)). 72. The case law of this Court regarding the determination of the alleged victims has been broadened and adapted to the circumstances of each particular case. The alleged victims must be included in the application and in the Report of the Commission drawn under the provisions of Article 50 of the Convention. Thus, pursuant to Article 33(1) of the Rules of Procedure, it is the duty of the Commission, and not of this Court, to accurately identify the alleged victims in a case tried by the Court.14 However, in certain cases where such identification has not been made, the Court has considered as victims certain persons not included as such in the application, provided the right to defense of the parties and alleged victims has been respected and the alleged victims are related to the facts described in the applications and the evidence filed with the Court.15 73. This Court shall apply the following criteria to define who will be considered alleged victims and their next of kin in the instant case: a) the procedural stage when they were identified; b) the acquiescence of liability by the State; c) the evidence submitted; and d) the particular characteristics of the instant case. 74. In this case, the Court has deemed it necessary to make a thorough and deep examination of the evidence submitted by the Commission and the representatives, as well as to request additional documents as evidence to facilitate adjudication of the case, in order to gather the elements necessary for the accurate identification of the alleged victims. Upon said examination, the Court has found the different situations described in the above paragraphs (supra paras. 67 to 71). 75. Regarding to Luz Beatriz, Gustavo and Ronald Daniel, all of them Taboada-Fierro, and Saturnina Julia and Celestino Eugencio, both with the surname Rosales-Cárdenas, whose kinship with the alleged victims has not been proved (supra para. 67), this Court finds that said persons were included as next of kin of the alleged victims both in the applications and in the written closing arguments of the Commission. Besides, it is worth pointing out that the State has not objected to the determination of the next of kin of the alleged victims proposed by the Commission. Consequently, said persons will be considered alleged victims in the instant case. 76. As regards Zorka Milushka Muñoz-Rodríguez (supra para. 68), through a note of the Secretariat dated October 24, 2006 (supra para. 33), the Commission and the representatives were requested to inform the reasons why she was not included in the lists of the application and of the brief of requests and arguments and, if applicable, to send the documents proving her kinship or her death. On October 31, 2006, the Commission “acknowledge[d] that, due to an involuntary mistake, the list contained in the application did not include" said person, and the representatives stated that they had not included her since the other next of kin had lost any contact with her. Finally, the Commission and the representatives included her name when submitting their closing arguments in writing and, furthermore, the representatives filed her birth certificate as evidence to facilitate adjudication of the case. The Court states that although the Commission did not include her in the list of next of kin attached to the application, it submitted, together with the corresponding appendixes, the document abovementioned where she is declared heir. Same circumstances apply to the parents of Felipe Flores-Chipana (supra para. 68). As stated above, (supra para. 72), it is the Commission, and not the Court, that must accurately identify the alleged victims in a case submitted to the Court. However, the Court shall consider them as alleged victims since their existence was informed to the Court, at least indirectly, through the appendixes to the application. 77. Regarding the four persons listed by the representatives in their brief of requests and arguments (supra para. 69), the Court finds that such persons are mentioned in the affidavits made by the next of kin. Besides, and as evidence to facilitate the adjudication of the case, the representatives submitted the birth certificate of two of said persons. The state has not objected such request, which was included again in the written closing arguments of the Commission and the representatives. Then, the Court shall analyze their condition as as alleged victims in the corresponding paragraphs. 78. As regards Carol Denisse Muñoz-Atanasio, who seems to be the daughter and heir of Hugo Muñoz-Sánchez (supra para. 71), the Court does not know the reasons why said person has not been included as next of kin of the alleged victim neither by the Inter-American Commission nor by the representatives. In spite of this, she shall be considered alleged victim since her existence was made known to the Court by the State, at least indirectly, in the appendixes attached to its closing arguments. 79. Finally, according to the affidavits executed by the next of kin of the alleged victims, and pursuant to the written closing arguments of the Commission (supra para. 70), there are other two next of kin, to wit, Nicolasa León-Espinoza, the alleged grandmother of Robert Edgar Teodoro-Espinoza, and Valeria Noemí Vajarro, the alleged niece of Armando Richard Amaro-Cóndor. In connection with this, the Court finds that in the affidavits submitted, said persons are mentioned, without any other information regarding their possible kinship, and that in the written closing arguments the Commission did not give any ground for including them as next of kin of the said alleged victims, but it only mentioned them. Therefore, the Court shall not consider them alleged victims. Yüklə 0,88 Mb. 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