Inter-American Court of Human Rights
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VII Proven Facts 80. Upon examining the evidentiary elements filed in the instant case, the statements of the parties, as well as the admission of the facts and acknowledgement of international liability made by the State (supra paras. 51 and 58), the Court finds the following facts to be proven:16 Systematic and Generalized Practices of Illegal and Arbitrary Detentions, Torture, Extra-legal Executions and Forced Disappearances during the time the events of the instant case took place. 80(1) Arbitrary executions were a systematic practice carried out in the backdrop of the contra-subversive strategy of State agents, especially during the hardest times of the conflict (1983-1984 and 1989-1992). 80(2) The Truth and Reconciliation Commission of Perú (hereinafter, “CVR”, for its acronym in Spanish) concluded that during the period 1989-1992 said practice of arbitrary executions spread to a great part of the national territory, they were more selective and were carried out in combination with other forms of elimination of persons who were suspected of participating, co-operating or sympathizing with subversive organizations, such as the forced disappearance of persons.17 80(3) The arbitrary execution procedure used by government officials generally consisted of the identification of the victim, and his/her detention, either at home, in a public place, at road control posts, during raids or when the victim contacted a public agency. Generally, detentions were violently carried out by so many hooded, armed persons that they could break any resistance. Victims detained at home or at a road control post had been previously identified and trailed during some time. Afterwards, the victim was transferred to a public, police or military premises, where he/she was interrogated and tortured. The information thus obtained was processed “for military purposes” and they decided if the person was released, arbitrarily executed or if he/she would be kept as a "missing" person without leaving any trace.18 80(4) Regarding the forced disappearances implemented during the time the events of the instant case took place, the CVR concluded that said practice “was a mechanism to fight subversion that was systematically used by Government agents from 1988 to 1993 [… and that] was extended to great part of the national territory,” The CVR further found that "between years 1988 and 1993, the rate of fatal victims of this practice was about 65-75% of the cases" and that "members of the Armed Forces are attributed the major rate (over 60%) of victims of forced disappearance caused by government agents.”19 80(5) The modus operandi of forced disappearances was similar to that of arbitrary executions. The CVR explained in detail the stages of this complex practice: “selection of the victim, detention, deposit of the victim in a detention center, contingent transfer to other detention center, interrogation, torture, processing of the data obtained, decision to eliminate the victim, physical elimination, concealment of victim´s remains and use of State resources.” The common denominator in the whole process was “the denial of the detention itself and denial of any information on what had happened to the arrested person. That is, the victim entered an already established circuit of clandestine detention, which only very lucky people could survive.”20 80(6) Government agents used several procedures for arresting the victims, including the sudden bursting into the home of the victim, and the CVR described it as follows: Generally, groups of 10 or more persons took part in [t]hese violent actions. Detention agents frequently had their faces covered with balaclavas and were wearing black turtlenecks, trousers and dark boots. [...] These abductions were frequently carried out late in the night, while the alleged victim was asleep. In this kind of procedure they used flashlights, long and short firearms, and official vehicles such as those trucks used for the transportation of troops, among others.21 80(7) The complex organization and logistics of the forced disappearance technique required the use of resources of the State, for example: motor vehicles, fuel, premises where to transfer and hide the detainee or to avoid or obstruct his/her being tracked down. The CVR expressly referred to the case of La Cantuta as an example of the use of State resources in the practice of forced disappearance.22 80(8) As regards the techniques used to destroy any evidence of the crimes committed during the forced disappearance procedure, the CVR pointed out in its report that said techniques included, inter alia, the mutilation or cremation of victim’s mortal remains. Military presence and control at the Universidad Nacional de Educación “Enrique Guzmán y Valle” - La Cantuta 80(9) The Universidad Nacional de Educación “Enrique Guzmán y Valle” - La Cantuta (hereinafter “La Cantuta University”) is a higher education public institution, where people from the interior region of the country and with low resources attended. 80(10) As from the month of May 1991, the University was under the custody of a military post located inside the campus. On May 22, 1991, the Army established a military post at La Cantuta University, which reported to División de las Fuerzas Especiales (Special Forces Division) (DIFE, for its acronym in Spanish), called Base de Acción Militar, placed the university under curfew and established a military control for the entry and exit of students. The Government had authorized the entry of the security forces to the universities, declaring its legality through Decree-Law No. 726 of November 8, 1991. Pursuant to the Final Report of the CVR: At the beginning of 1991, the local TV released a video of a political-cultural ceremony held at "La Cantuta" University that allowed speculating about the level of control that “Sendero Luminoso” (Shinning Path) had in the University. On May 21, 1991, former President Alberto Fujimori visited the university causing the violent reaction of students that forced him to leave the campus, humiliated. The following day, military troops took control of the Universidad Mayor de San Marcos and of “La Cantuta” University, and 56 students were arrested. Among them there were three of the nine students that were subsequently subjected to extra-legal execution [, to wit, Marcelino Rosales-Cárdenas, Felipe Flores-Chipana and Armando Amaro Cóndor.]23 80(11) Students at the University had been reporting several outrages by the military officials serving at the campus. On May 29, 1992, the representatives of the “Comité de Internos" (Commission of Boarders) of La Cantuta University informed the Chancellor of the University, Dr. Alfonso Ramos-Geldres, that on May 24, 1992, at 9.00 p.m., about 20 to 25 armed, hooded and drunken members of the military forces went to the boarding houses of students and threatened to break into the rooms if students did not open the doors. As students told them they would only open the doors if they were accompanied by a university authority, the military officials came back with Professor Juan Silva, Director of University Welfare. So, the students opened the doors and the military officials took some household articles, justifying said actions by saying they were military tools and subversive materials. On July 1992, several commissions of students sent a note to the Chancellor of the University complaining for other outrages committed during the celebration of the “Teacher´s Day” on July 7, 8 and 9, 1992. In said notes they stated that the military agents had suddenly irrupted during the abovementioned ceremony, holding firearms and threatening them; they also denounced that another similar operation had taken place at the university restaurant, same day, during dinner time. Detention and execution or disappearance of Hugo Muñoz-Sánchez, Dora Oyague-Fierro, Marcelino Rosales-Cárdenas, Bertila Lozano-Torres, Luis Enrique Ortiz-Perea, Armando Richard Amaro-Cóndor, Robert Edgar Teodoro-Espinoza, Heráclides Pablo-Mez, Juan Gabriel Mariños-Figueroa and Felipe Flores Chipana 80(12) On June 18, 1992, at dawn, members of the Peruvian army and agents of the Grupo Colina (Colina Group) (infra paras. 80(17) and 80(18), hooded, armed and wearing dark trousers and black "turtlenecks,” entered the university campus, bursting into the residences of professors and students. 80(13) Once inside the residences, the troops forced all the students to leave their rooms and lie belly-down on the floor. One soldier -who was identified as Lt.Medina by the students, though he tried not to be recognized- then pulled up each student’s head by the hair and separated those whose names were included in a list he was carrying in his hands. The students detained were Bertila Lozano-Torres, Dora Oyague-Fierro, Luis Enrique Ortiz-Perea, Armando Richard Amaro-Cóndor, Robert Edgar Teodoro-Espinoza, Heráclides Pablo-Mez, Felipe Flores-Chipana, Marcelino Rosales-Cárdenas and Juan Gabriel Mariños-Figueroa. 80(14) On the other hand, the petitioner states that in the faculty residences, troops violently entered the home of Professor Hugo Muñoz-Sánchez by climbing over the yard wall and destroying the service entrance. They then gagged Prof. Muñoz-Sánchez and covered his head with a black cloth and dragged him away, while some of the assailants searched Prof. Muñoz-Sánchez’s bedroom and, at the same time, prevented his wife from leaving that room. 80(15) The soldiers left the University taking with them Professor Hugo Muñoz Sánchez and students Bertila Lozano-Torres, Dora Oyague-Fierro, Luis Enrique Ortiz-Perea, Armando Richard Amaro-Cóndor, Robert Edgar Teodoro-Espinoza, Heráclides Pablo-Meza, Felipe Flores-Chipana, Marcelino Rosales-Cárdenas and Juan Gabriel Mariños-Figueroa. Petitioners did not know where the detainees were being taken. 80(16) Bertila Lozano-Torres and Luis Enrique Ortiz-Perea were “disappeared” until the discovery of their mortal remains in the clandestine graves in Cieneguilla and Huachipa, on July and November, 1993 (infra paras. 80(30) to 80(41)). Hugo Muñoz-Sánchez, Dora Oyague-Fierro, Felipe Flores-Chipana, Marcelino Rosales-Cárdenas, Armando Richard Amaro-Cóndor, Robert Edgar Teodoro-Espinoza, Heráclides Pablo-Meza and Juan Gabriel Mariños-Figueroa are still “disappeared.” The “Colina Group” 80(17) On May 6, 1993, Lt. Gen. Rodolfo Robles-Espinoza, the army’s third highest-ranking officer, published a handwritten document denouncing human rights violations by the Servicio de Inteligencia Nacional (National Intelligence Service) and the Commander General of the army, specifically referring to the killings of the La Cantuta University students. In said document, dated May 5, 1993, General Robles-Espinoza stated that: The La Cantuta crime was carried out by a special intelligence detachment operating under direct orders from Presidential Advisor and virtual head of the SIN, Vladimiro Montesinos, the actions of which are coordinated with the Army Intelligence Service (SIE) and the General Staff’s Intelligence Directorate (DINTE) but always are approved by and known to the Commander General of the Army.24 80(18) After the statements made by General Rodolfo Robles Espinoza, the existence of the Colina Group, whose members participated in the events of the instant case, became well-known to the public (supra paras. 80(10) and 80(12)). This was a group related to the Servicio de Inteligencia Nacional (National Intelligence Service) whose operations were known by the President of the Republic and the Commander General of the Army. It had a hierarchical structure and its personnel received, besides their compensations as officials and sub-officials of the Army, money to cover their operative expenses and personal pecuniary compensations under the form of bonuses. The Colina Group carried out a State policy consisting in the identification, control and elimination of those persons suspected of belonging to insurgent groups or who opposed to the government of former President Alberto Fujimori. It operated through the implementation of systematic indiscriminate extra-legal executions, selective killings, forced disappearances and tortures.25 Investigations and proceedings 80(19) Regarding the events in the instant case, petitions of habeas corpus were filed for the detained persons. Besides, two criminal investigations were originally initiated before the ordinary courts, and other two were commenced before the military courts. All these investigations were conducted simultaneously up to the transfer of both cases to the military courts in the month of February 1994. Besides, within the so-called “Congreso Constituyente Democrático” (Democratic Constituent Congress), an investigation committee was created to carry out the investigation; this committee issued a report for the majority and other for the minority. Afterwards, with the fall of former President Alberto Fujimori, it was necessary to initiate new investigations before the ordinary criminal courts. Habeas corpus petitions were filed by the next of kin. 80(20) Upon the occurrence of the above-referred events, the next of kin of the alleged victims filed the following habeas corpus petitions:26
Initial complaints and commencement of investigation proceedings by the ordinary criminal courts 80(21) On July 21, 1992 Antonia Pérez-Velásquez de Muñoz reported the disappearance of her husband, Hugo Muñoz-Sánchez, to the Provincial Criminal Prosecutor´s Office of the Tenth Prosecutor´s Office.32 80(22) On August 1, 1992, the Chancellor of La Cantuta University, Rafael Laynes-Bastante, filed a complaint with the Provincial Criminal Prosecutor´s Office on duty in Lima, and APRODEH filed complaints with the Attorney General´s Office on July 31, 1992 and August 12, 1992, and with the Special Prosecutor´s Office of the People´s Ombudsman and Human Rights. . 80(23) On August 6, 1992 the Attorney General´s Office ordered the Eighth Provincial Criminal Prosecutor´s Office in Lima to start the investigation of the events. However, on August 9, 1993, the incumbent of the Eighth Provincial Criminal Prosecutor´s Office in Lima declined jurisdiction over the investigation on the grounds that the War Panel of the CSJM “was hearing a case related to the same facts referred to in this complaint" (infra para. 80(42)). Upon sending the case on jurisdiction to the Superior Criminal Prosecutor´s Office, on August 23, 1993, it declined jurisdiction again. The APRODEH and the next of kin of the alleged victims filed a complaint appeal against said decisions and on September 16, 1993 the Fifth Superior Criminal Prosecutor´s Office remanded the case to the Eighth Prosecutor´s Office; APRODEH moved for the nullity of said decision, but on November 30, 1993, the Fifth Prosecutor´s Office dismissed the motion and the decision whereby the prosecutor declined jurisdiction was then final and conclusive.33 80(24) On the other hand, on February 8, 1993, Jaime Oyague-Velazco reported the disappearance of his niece, Dora Oyague-Fierro, to the then President of Perú, Alberto Fujimori; to the Attorney General´s Office of the Nation, on February 9, 1993; to the President of the Committee on Human Rights of the Constituent Democratic Congress, on March 4, 1993 and to the Chairman of Congress, on April 12, 1993.34 The precise outcome of said actions are unknown. The Investigation Commission created by the so-called “Constituent Democratic Congress” and related issues 80(25) On April 2, 1993, Congressman Henry Pease-García stated that he had received a document from a group of the Army self-called “León Dormido” (Sleeping Lion) whereby it pointed out that the nine students and the professor of La Cantuta University had been murdered during a military operation, and top officials of the Army and of the Intelligence Service were identified as perpetrators of the killing. 80(26) Due to the abovementioned statements, the “Constituent Democratic Congress” created an investigation committee composed of five Congressmen (hereinafter the “Investigation Committee,”) which gathered information related to the investigations made by the Attorney General´s Office, the Judicial Power, and the military courts, as well as documentation from other public entities. The Investigation Committee heard the testimonies of the next of kin of the alleged victims, boarders and authorities of La Cantuta University and of General Nicolás de Bari Hermoza-Ríos, the then Commander General of the Army, among others. 80(27) On April 20, 1993 the then Commander General Hermoza-Ríos gave testimony before the Investigation Committee and denied any intervention or participation of the Army in the disappearance of the professor and the nine students of La Cantuta University and argued that the accusations were made by persons or groups that opposed to the pacification policy of the Government, with the purpose of damaging the prestige of the military institution. When leaving the Congress, General Hermoza-Ríos said to the press that the Congressmen of the opposition were acting “in collusion with the terrorists” and also accused them of participating in “the orchestration of a well-thought and planned campaign to impair the prestige and honor of the Peruvian Army.” 80(28) The day following the date when General Hermoza-Ríos gave testimony, the Peruvian Army issued an official communication whereby it stated its adherence and support to the Commander General and denounced that the Congressmen of the opposition intended to incriminate the Army for violations of human rights in order to impair the prestige of the military institution. The release of said communication was made simultaneously with the movements of tanks to the building of the Armed Forces Joint Command in order to make clear the support to Commander General Hermoza Ríos. 80(29) On June 26, 1993, the Constituent Democratic Congress voted 39 - 13 against the report issued by the majority of the Investigation Committee, congressmen Roger Cáceres, Gloria Helfer and Carlos Cuaresma, whereby the high ranking officials of the Army were presumed criminally liable. The Congress approved the report drawn by the minority members, congressmen Gilberto Siura and Jaime Freundt-Thurne, which, inter alia, established that there was no evidence that the Peruvian Army, nor the National Intelligence Service, nor the then advisor of said intelligence service, had had any responsibility for the events under investigation. Discovery of clandestine graves and advanced investigation conducted by the 16th Provincial Criminal Prosecutor´s Office. 80(30) On July 12, 1993, the Magazine “Sí” published a sketch of clandestine graves located in the Chavilca gorge, Cieneguilla, where some human remains were found. On even date, the Director of the abovementioned magazine gave to the 16th Provincial Criminal Prosecutor´s Office in Lima the sketch of said graves, discovered by him and his team of journalists on July 8, 1993. 80(31) As a consequence of said discovery, the Prosecutor in charge of the 16th Provincial Criminal Prosecutor´s Office, Víctor Cubas-Villanueva, conducted an investigation in Cieneguilla, where four clandestine graves containing bones, most of them charred, were found. The bones found belonged to two women and to three men; one of said persons was probably over 40 years. Empty cartridges, remnants of clothes, textile fibers, hairs and two sets of keys were also found. 80(32) On the other hand, on July 13, 1993 the Dirección Nacional contra el Terrorismo (National Board against Terrorism) (DINCOTE, for its acronym in Spanish) called to a press conference in order to inform on the outcome of a police operation conducted on July 10, 1993, during which several alleged members of Shinning Path were arrested and several documents were seized, among them, a handwritten note addressed to Congressman Cáceres, where the clandestine graves of Cieneguillas were referred to and described. The DINCOTE presented citizen Juan Mallea as the alleged author of the sketch of the Cieneguilla graves and, in order to prove said accusation, it caused that a graphology analysis be carried out by an expert through the Forensic Graphology Department of the Division of Criminalistics of the National Police Force, and therefore Expert Report No. 1667/03 was issued, whereby the expert pointed out that the handwritten texts of the original sketch and those on the photocopy sent by DINCOTE, were the handwriting of Juan Mallea. However, during the investigation conducted against Juan Mallea by the 14th Provincial Prosecutor´s Office in Lima, new independent expert analysis were made, and all of them agree that none of the documents attributed to Juan Mallea had been written by him. 80(33) On August 20, 1993, an operation was carried out at the student residences, headed by the Prosecutor in charge of the investigation. It was possible to verify that the keys found in the Cieneguilla graves belonged to students Armando Richard Amaro-Cóndor and Juan Mariños-Figueroa. 80(34) Expert analysis finally concluded that the charred bone remains found in Cieneguilla belonged to a second burial, “which means that these remains had been in other graves and that after being digged up and burned, they were deposited and buried in the Chavilca area, and that the corpses were burned in state of decay. 80(35) Among the remains found in Cieneguilla graves, experts found part of a skull that had belonged to a young woman, below 25 years of age, and upon examining it, the forensic experts determined that it had a bullet-wound on the back of the head. 80(36) Besides the identification of the keys found, made by the Prosecutor of the 16th Provincial Criminal Prosecutor´s Office, the identification of the remains of clothing and other articles made by the next of kin allowed to confirm that said articles belonged to Armando Richard Amaro-Cóndor, Juan Gabriel Mariños-Figueroa, Robert Teodoro-Espinoza and Heráclides Pablo-Meza. However, up to this day, the bone remains of said persons have not been found. Besides, due to the examination made by Dental Technician Juan Migues Vázquez-Tello, it was established that some of the dental remains found belonged to Bertila Lozano-Torres. As regards the remains found in grave 2 of Cieneguilla, it was established that part of them belonged to an unidentified male human being of about 40 or 45 years old. 80(37) Pursuant to new evidences given by the Director of the Magazine “Sí”, published on November 2, 1995, the Prosecutor´s Office conducted some investigations in the plot of land belonging to the company "Servicio de Agua Potable y Alcantarillado de Lima" (Lima Water and Sewerage Services Company) (SEDAPAL), located at km.1.5 of Ramiro Prialé Highway, in Huachipa. The Prosecutor discovered three clandestine graves containing a complete clothed human skeleton and a half clothed skeleton, bone remains, hair, parts of scalp, a complete human upper jaw, empty cartridges, spent bullets and traces of quicklime. 80(38) Pursuant to the examination of a complete human skeleton found, it was established that it belonged to a male human being, of 22-24 years of age, 1.70 m. tall and of mestizo race. It was also established that the cause of death was: deep (1) and perforating (2) bullet wounds to the head made with an arm fire. The date the inhumation was carried out, a sister of Luis Enrique Ortiz-Perea, Mrs. Gisela Ortiz-Perea, recognized the clothes and gym shoes belonging to her brother; besides, the physical features she had previously described were consistent with those of the complete skeleton found. 80(39) Summing up, and pursuant to evidence gathered, the recognitions made by the next of kin and the expert reports issued up to that time, the bone remains found in the graves of Cieneguilla and Huachipa belonged to Luis Enrique Ortiz-Perea and Bertila Lozano-Torres. 80(40) Furthermore, there exist some clues pursuant to which the remains found in Cieneguilla could belong to Professor Hugo Muñoz-Sánchez, as they were found together with those of other students and since according to the expert reports issued by forensic physicians, said remains belonged to a person 40 to 45 years old, and the professor was the only victim of about 40 years old. However, up to this date, said remains have not been identified through the corresponding forensic examinations. 80(41) The prosecutor in charge of the investigation started the measures necessary so that DNA tests were carried out abroad, with the purpose of identifying the remains found. Upon determining that the tests would be carried out in England, the eight selected bones were forwarded to said country. However, due to budgetary reasons, the test was made on only one bone that, according to Prosecutor Cubas, was proved to be consistent with the genetic code of Felipe Flores-Chipana.35 However, the outcome of said test has not been provided. Investigations under the military court system 80(42) On April 15, 1993, the Army General Command filed a claim with the Supreme Council of Military Justice (“SCMJ”) against those who were to be held responsible for the events that had taken place at La Cantuta. University. Driven by this complaint, on the following day, the SCMJ War Chamber started inquiry proceedings “against the Peruvian Army members who should be held responsible for abuse of authority and crimes against life” perpetrated against Professor Muñoz-Sánchez and the nine students from La Cantuta University (Case No. 157-V-93). 80(43) On July 7, 1993, in Case No. 157-V-93, the SCMJ Investigation Board extended inquiry proceedings against Brigade General Juan Rivero-Lazo, Cavalry Colonel Federico Augusto Navarro-Pérez, Maj. Santiago Enrique Martín-Rivas, Maj. Carlos Pichilingue-Guevara and Lt. Aquilino Portella-Nuñez and José Adolfo Velarde-Astete, on the grounds of the alleged commission of abuse of authority and crimes against life, body and health. On December 13, 1993, inquiry proceedings were extended against Infantry Lt. José Adolfo Valarde-Astete “and those to be held responsible for” the offense of negligence, as set out in Section 238 of the Military Code of Justice.36 “Conflict of Jurisdiction” between ordinary criminal courts and military courts 80(44) Following the findings at the clandestine graves of Cieneguilla and Huachipa (above, paras. 80(30) and 80(37)), on December 13, 1993, the SCMJ Investigation Board admitted the complaint filed by the SCMJ War Chamber Prosecutor, extended court-ordered investigations against several members of the army37 in connection with the alleged commission of the offense of abduction, crimes against administration of justice, forced disappearance of persons, negligence, abuse of authority, crimes against life, body and health (murder) against the 10 alleged victims. 80(45) In turn, on December 15, 1993, the relatives of the victims and APRODEH requested that the Provincial Criminal Prosecutor in Lima file a criminal complaint against Vladimiro Montesinos, Generals Nicolás de Bari Hermoza-Ríos, Luis Pérez-Documet, Julio Salazar-Monroe and Juan Rivero-Lazo, and against other high-level officers of the Peruvian Army. 80(46) Moreover, on December 16, 1993, Chief Attorney of the Sixteenth Provincial Criminal Prosecutor’s Office in Lima, Victor Cubas-Villanueva, filed with the Sixteenth Criminal Court in Lima a criminal complaint against Colonel Federico Navarro-Pérez, Lieutenant Colonel Manuel Guzmán-Calderón, Maj. Santiago Martín-Rivas, Maj. Carlos Eliseo Pichilingue-Guevara, Lieutenant Aquilino Portella-Nuñez, Technicians Eduardo Sosa-Dávila and Juan Supo-Sánchez, and Noncommissioned Officers Juan Sosa-Saavedra, Julio Chuqui-Aguirre, Nelson Carvajal-García, and Hugo Coral-Sánchez, on the grounds of the alleged perpetration of the offenses of abduction, forced disappearance of persons and murder against the alleged victims. 80(47)On December 17, 1993, the Sixteenth Criminal Court in Lima started inquiry proceedings against the persons accused of the alleged perpetration of the reported offenses. 80(48) Yet on the same day, December 17 1993, by way of a submission of a “conflict of jurisdiction,” the SCMJ Board Prosecutor challenged the jurisdiction of the Sixteenth Criminal Court in Lima so that the Court would refrain from hearing the case pending with the military court relating to the same issue of facts and against the same defendants. 80(49) In his legal opinion submitted on January 17, 1994, Prosecutor Víctor Cubas-Villanueva concluded that the facts should be investigated by an ordinary court. On January 18, 1994, Criminal Court Judge Carlos Magno-Chacón “remitted history information” to the National General Attorney´s Office as the court considered there was reasonable evidence pointing to the commission of the offense of prevarication and abuse of authority by the Prosecutor Víctor Cubas, owing to the “use of inconvenient language” that might be unbecoming of a prosecutor, and ordered the remission of the relevant file of record to the Supreme Court of the Republic for all relevant legal purposes.38 80(50).On February 3, 1994, the Criminal Chamber of the Supreme Court, composed of five members, passed a divided decision on the type of the court that should hear and determine the syndicated action filed against military members for their responsibility in the case of La Cantuta, as three of Chamber members held in support of the military court, and two members in support of the ordinary court. 80(51) On February 8, 1994, congressman Julio Chu-Meriz presented a bill proposing that conflicts of jurisdiction could be solved by the affirmative vote of only three members of the Criminal Chamber of the Supreme Court. Said bill was submitted to consideration and approved on the same day by the affirmative vote of the members of the “Democratic Constituent Congress” On the following day, the then President of the Republic, Alberto Fujimori, enacted Law No. 26.291, whereby conflicts of jurisdiction must be solved by the simple majority of votes of the members of the Criminal Chamber, and that the said votes must be cast by secret ballot. 80(52) On February 11, 1994, by operation of the referenced law and by way of Supreme Court Judgment, the Supreme Court Criminal Chamber ordered that the investigation of the facts of the case of La Cantuta be delegated to the military court and carried by the Investigation Board of the Supreme Council of Military Justice. 80(53) On February 21, 1994, the Lima Bar Association filed a complaint challenging the constitutionality of Law 26,291, with the Chamber of Constitutional and Social Affairs of the Supreme Court of the Republic. On March 15, 1994, said jurisdictional body decided that the constitutional challenge was not admissible on the grounds of lack of jurisdiction of the Chamber to hear constitutional challenges to laws, as said jurisdiction is vested with the Constitutional Tribunal. The Bar Association filed an appeal against this decision, but said appeal was -on March 25, 1994, on the grounds that “the Judiciary lacks jurisdiction to hear and determine this kind of actions.” Continuation of investigations under the military court system 80(54) On February 21, 1994, the SCMJ War Chamber rendered judgment in case 157-V-93, holding that:39
80(55) The SCMJ reviewed the abovementioned decision and on May 3, 1994, it rendered judgment convicting the following members of the Peruvian Army, holding that:
In this decision, the Court also ordered payment of compensation as “civil reparation” in favor of the next of kin of the alleged victims, jointly by the convicted parties and the Peruvian Government. 80(56) On May 18, 1994, the SCMJ ordered “Peruvian Engineering Corps Majors Santiago Enrique Martín-Rivas and Carlos Eliseo Pichilingue-Guevara [… to pay] jointly with the State —Peruvian Army—, the sum of one million, five hundred thousand New Soles, as civil reparation in favor of the legal heirs of the aggrieved parties,” namely, the ten alleged victims. The same amount and under the same terms and conditions was ordered to be paid by Peruvian Army Third-rank Technicians Julio Chuqui-Aguirre, Nelson Carbajal-García and Jesús Sosa-Saavedra-Sosa.40 The legal heirs of the alleged victims that have received payment of civil reparation are: 41
80(57) Regarding the investigation of possible intellectual perpetrators of the referenced events within the military court system, on May 11, 1994, the SCMJ War Chamber started proceedings (case 227-V-94-A) against Army General Nicolás De-Bari-Hermoza-Ríos, Brigade Army General Luis Pérez Documet and Retired Army Captain Vladimiro Montesinos, on the grounds of crimes against life, body and heath —in the degree of murder—, abduction, forced disappearance of persons, abuse of authority, crime against administration of justice and negligence against the alleged victims. On August 15, 1994, the SCMJ War Chamber decided to dismiss the case —a decision which was confirmed on August 18, 1994, by the SCMJ Review Chamber, which ordered the “final filing” of the record as it considered there was insufficient evidence to sustain the “criminal offenses allegedly committed by the above defendants.”43 Amnesty laws and the effects of the decisions of the Inter-American Court in the Case of Barrios Altos vs. Perú 80(58) On June 14, 1995, Congress voted Law No. 26.479, whereby an amnesty was granted to military and police officers and civilians involved in violations of human rights from May 1980 to the date of said law, which was enacted on the same day. 80(59) Under section 1 of Law 26.479, amnesty was to be granted to any military and police officer and civilians, whether subjected to report proceedings, inquiry, formal investigation, criminal proceedings or conviction of an ordinary offence, under either civil or military jurisdiction. Section 4 of said law ordered the immediate release of any and all individual deprived of their freedom, under arrest or detention, imprisoned or subjected to any other type of custodial measure. Section 6 of said law ordered final disposition of all court proceedings, whether then pending or adjudicated, and barred new investigations of the issue under review within such proceedings. 80(60)By operation of such law and by way of Supreme Court Judgment of June 16, 1995, the SCMJ granted amnesty to Brigade General Juan Rivero-Lazo, Colonel Federico Augusto Navarro, Mayors Santiago Enrique Martín-Rivas and Carlos Eliseo Pichilingue-Guevara, Captain José Adolfo Velarde-Astete, Lieutenant Aquilino Portella-Núñez and Third-rank Technicians Julio Chuqui-Aguirre, Nelson Rogelio Carvajal-García and Jesús Antonio Sosa-Saavedra, who had been convicted in case 157-V-93 (supra paras. 80(54) and 80(55)). Furthermore, the Council ordered the “discontinuance of the sequence of trial proceedings” filed against (Ret.) Lieutenant Aquilino Portella-Núñez, in connection with the case brought against him on the grounds of the referenced offenses, commanding discharge and immediate release from prison of said persons.44 80(61) On June 28, 1995, Congress voted No. 26,492, which shed some light on section 1 of Law No. 26.479, stating that general amnesty was to be applied compulsorily by the Judiciary, that it comprised all events originating in the course of or as a result of the fight against terrorisms from May 1980 until June 14, 1995, notwithstanding that military and police officers or civilians involved had been subjected to report proceedings, inquiry, formal investigation, criminal proceedings or conviction, and that all pending or executory proceedings had to be definitely closed and filed. 80(62) On March 14, 2001, the Inter-American Court passed judgment in the Case Barrios Altos, declaring that amnesty laws Nos. 26,479 and 26,492 are incompatible with the American Convention and, therefore, they lack legal effects. Thereafter, the Inter-American Court passed Interpretation Judgment on the merits determining that —owing to the nature of the violation caused by amnesty laws Nos. 26,479 and 26,492— the decision made in said judgment would “have general effects.” 80(63) On October 16, 2001, regarding case No. 157-V-93, “to which Amnesty Laws applied, […] in order to comply with the interpretation judgment rendered by the Inter-American Court […] on September 3 [2001] in re ‘Barrios Altos’,” the SCMJ Joint Chamber decided as follows: […] to declare NULL AND VOID the Supreme Court Judgment of June 16, 1995, in full, whereby it was decided to grant General Amnesty to Peruvian Brigade Army General Juan Rivero-Lazo, Peruvian Army Colonel Eliseo Pichilingue-Guevara, Peruvian Army Captain José Adolfo Velarde-Astete, Peruvian Army Lieutenant Aquilino Portella-Núñez, Peruvian Army Third-Rank Technicians Julio Chuqui-Aguirre, Nelson Rogelio Carbajal-García, Jesús Antonio Sosa-Saavedra, and to order the halt of proceedings brought against Retired Peruvian Army Lieutenant Aquilino Portella-Núñez. […] to reverse these proceedings to the procedural stage prior to the application of amnesty, as legal effects arising from the amnesty benefit granted to these defendants have become ineffective, and therefore to remand this case to the Investigating Officer so that he can comply with the law and enforce the provisions of judgment rendered on May 3, 1994.45 They were so remanded. 80(64) This is how the convictions entered against some military members in the SCMJ’s judgment of May 3, 1994, regained effects (supra paras. 80(54), 80(55) and 80(60). However, there is no record that these sentences have indeed been executed (supra para. 66). 80(65) Ms. Alejandrina Raida Cóndor-Sáez and Ms. Rosario Muñoz-Sánchez requested the SCMJ that the proceedings pending in the military court in connection with the case of La Cantuta be declared null and void “as they have been allegedly altered in order to bar possible civil proceedings [against Vladimiro Montesinos-Torres].” 46 80(66) On June 15, 2004, the SCMJ rejected said petition for declaration of nullity, as it considered inter alia that “there are no legal mechanisms or legal recourses whatsoever or any procedural manner that could warrant that a declaration of nullity be entered against the Supreme Court Judgment when it has become res judicata; that there are three actions to seek declaration of nullity against a fraudulent res judicata […] no one of which applies to this case, nor does this Court have powers in these proceedings to enter a declaration of nullity against such Supreme Court Judgment, notwithstanding the right of petitioners to file the legal actions afforded by law with competent authorities.”47 New investigations in the civil criminal justice system 80(67) After the fall of the administration of former President Alberto Fujimori-Fujimori, investigations have been carried out and proceedings have been initiated before ordinary criminal courts in connection with the present case, as it shall be outlined below: a) Complaint 001-2000 80(68) On October 25, 2000, the National Human Rights Coordinating Committee filed a complaint with the National Attorney General´s Office seeking punishment of crimes against humanity affecting both civilians and military members, including the events that had taken place in the case of La Cantuta. Among the accused were Vladimiro Montesinos-Torres and Nicolás de Bari Hermoza-Ríos. On November 17, 2000, their next of kin appeared in person at the Office of the Public Prosecutor and adhered to the complaint filed by the National Coordinating Committee.48 This complaint was identified with number 001-2000. 80(69) On February 1, 2001, APRODEH extended the criminal complaint to include La Cantuta crimes, pointing out further the involvement of Luis Pérez-Documet, among others. Said complaint was consolidated with complaint 001-2000.49 80(70) On September 13, 2001, the National Attorney General´s Office ordered the deconsolidation of proceedings concerning the La Cantuta events, and requested that the Metropolitan Special Investigation Division of the Anti-Terrorism Directorate handed over the findings of the investigation on the events that had taken place on July 18, 1992. On October 28, 2002, the law enforcement authorities sent their findings to the Prosecutor’s Office.50 No further steps following such filing have been documented. b) case 15-2001 A.V. 80(71) In June, 2003, and January, 2004, the Supreme Court of Justice rendered decisions that convicted the justices who presided over and dismissed the case brought against the alleged intellectual perpetrators of the crimes that had taken place at La Cantuta of the crimes of personal cover-up and criminal association. 51 80(72) As a result of the investigations carried out by the Supreme Prosecutor’s Office in Administrative matters and the filing of the resultant complaint, on October 22, 2001, the Investigation Board of the Supreme Court ordered the commencement of preliminary fast-track proceedings against the Peruvian Army (Rd.) Brigade General Raúl Talledo-Valdiviezo, Peruvian Armed Forces Maj. General César Ramírez-Román, Peruvian National Police General Edgardo Huertas-Toribio, and Peruvian Armed Forces Maj. General Julio Paz-Marcial, on the grounds of abuse of authority and crime against their jurisdictional duty as “failure to report the commission of a crime” to the detriment of the State. Furthermore, the Supreme Prosecutor’s Office initiated proceedings against other Generals members of the Supreme Council of Military Justice, on the grounds of the crimes of personal cover-up to the detriment of the State. This case, under No. 15-2001 A.V, was initiated against those “that had taken part in the excluding military court system in connection with the event in La Cantuta —Leonor La Rosa, Gustavo Cesti-Hurtado—, and the trafficking of weapons to the FARC (Revolutionary Armed Forces of Colombia).”52 80(73) On February 26, 2002, based on the evidence gathered in the course of investigations, the Ad Hoc Prosecutor’s Office requested of the Attorney´s General Office an extension of the terms of the complaint.53 80(74) On June 11, 2002, following the communication sent by the Public Prosecutor’s Office, the Investigation Board of the Supreme Court extended the terms of the order for commencement of proceedings to include other officers in the investigation owing to their presumed involvement in the crimes of criminal association and personal cover-up to the detriment of the State.54 c) case No. 03-2003 80(75) On January 21, 2003, the Provincial Specialized Prosecutor filed a criminal complaint against eighteen individuals55 on the grounds of their alleged involvement in crimes against the life, body and health (aggravated murder), crime against freedom (aggravated abduction) and forced disappearance of persons, and eight individuals56 as aiders and abettors of said crimes.57 80(76) On January 24, 2003, the First Special Criminal Courtroom of the Superior Court of Justice in Lima ordered the commencement of preliminary investigation as ordinary proceedings documented in file No. 03-2003, against several Army members and former military men58 on the grounds of their alleged involvement in crimes against the life, body and health (in the degree of aggravated murder), crime against personal freedom (in the degree of aggravated abduction), and forced disappearance of persons, against professor Hugo Muñoz-Sánchez and nine students of the La Cantuta University, arrest warrants being issued against the accused. Furthermore, said Court also filed a complaint against other eight persons59 on the grounds of their involvement as aiders and abettors in the same crimes, against whom qualified summons to appear and home detention warrants were issued. Moreover, the Court ordered that “precautionary attachment be levied” on property for an amount between one and three million New Soles on the unencumbered property of the accused. The arrest warrants were appealed by some of the accused, and later confirmed by the Court.60 No-one of said army members or former military men was investigated in the military proceedings nor convicted in case No. 157-V-93, that was prosecuted before military courts (above paras. 80(54) and 80(55)), except Anilino Portella-Núñez, who was treated in said proceedings as a party on default and in respect of whom, by operation of the amnesty law, the SCMJ ordered the “discontinuance of proceedings” (“corte de secuela”). Later on, the same SCMJ entered a declaration of nullity against said ruling (above paras. 80(54) and 80(60)-80(63)).61 80(77) This investigation was declared a complex matter in June 2003. Pursuant to the “complex and mixed connection of this case”62 with those pending in other courts against the alleged perpetrators of other crimes, the Ad Hoc Prosecutor’s Office requested consolidation of proceedings. This consolidation was ordered on July 18, 2003, by the Second Specialized Criminal Court, and then ratified on February 20, 2004, by the Specialized Criminal Chamber “A” of the Superior Court in Lima.63 80(78) On July 13, 2005, the Provincial Prosecutor’s Office Specialized in Crimes against Human Rights passed Resolution No. 70, in connection with file No. 28-2001, ordering extension of investigation to include Luis Pérez-Documet and Carlos Indacochea-Ballón.64 80(79) On March 8, 2006, the First Special Criminal Chamber of the Superior Court in Lima ordered the deconsolidation of the case La Cantuta (case No. 03-2003).65 80(80) As of the date hereof, the prosecutor’s request for trial has been filed with the First Special Criminal Chamber of the Superior Court in Lima, seeking the issuance of a court order for the commencement of criminal proceedings, and oral trial is currently pending.66 At least eight persons involved in this case have entered a “guilty plea.” Furthermore, only Isaac Paquillauri-Huaytalla, who entered a plea for early termination of proceedings, was convicted by the Fifth Special Criminal Court and sentenced to four years’ imprisonment on the grounds of his involvement in the crimes of aggravated murder, aggravated abduction against humanity and forced disappearance of persons; this sentence was ratified by the Special Criminal Chamber of the Superior Court in Lima, and so the accused was separated from the proceedings.67 80(81) At the time of rendering this Judgment, eleven defendants have been subjected to coercive pre-trial detention regarding to this case, and one defendant has been subjected to the coercive measure of “qualified summons to appear and home detention.”68 d) case No. 008-2004 80(82) On the other hand, on September 6, 2004, the “Ad Hoc State Prosecutor’s Office established for cases Montesinos and Fujimori” filed a complaint with the Provincial Criminal Prosecutor’s Office Specialized in Crimes against Human Rights (currently named “Fifth Provincial Prosecutor’s Office Specialized in Offenses of Corruption and Crimes against Human Rights”) against Vladimiro Montesinos-Torres, Nicolás Hermoza-Ríos and Luis Pérez- Documet for the commission of criminal association, aggravated murder and forced disappearance of persons, to the detriment of Hugo Muñoz-Sánchez and nine students of the University of La Cantuta. In this regard, the prosecutor’s office requested the filing of a criminal complaint against Vladimiro Montesinos-Torres, Nicolás Hermoza-Ríos and Luis Pérez Documet.69 80(83) On September 9, 2004, the relatives of the alleged victims, by and through APRODEH, filed with the Provincial Criminal Prosecutor’s Office Specialized in Human Rights a criminal compliant against Vladimiro Montesinos and other individuals on the grounds of the crimes of forced disappearance of persons and aggravated murder.70 80(84) Triggered by these complaints, on October 4, 2004, the above Prosecutor’s Office took further steps in the investigation. 71 80(85) At present, this investigation is pending before the Provincial Prosecutor’s Office Specialized in Offenses of Corruption and Crimes against Human Rights72, and the Ad Hoc Prosecutor’s Office is taking part in scheduled actions.73 e) case 19-2001-AV 80(86) On September 13, 2001, the Supreme Court Investigation Board started criminal proceedings against former President Alberto Fujimori-Fujimori or Kenya-Fujimori on the grounds of his alleged involvement in the events that occurred in Barrios Altos and La Cantuta. On May 12, 2004, the Supreme Prosecutor filed an accusation seeking 30 years’ imprisonment on the grounds of the defendant’s joint perpetration of the crime of aggravated murder against the victims of Barrios Altos, and of joint perpetration of aggravated murder and forced disappearance of persons against the alleged victims of La Cantuta,74 “the State and the Society”; and as perpetrator of the crime of severe injuries to four individuals. Furthermore, the Supreme Prosecutor moved for the disqualification of the former President and payment of one billion New Soles as civil reparation in favor of the alleged victims of the referenced cases.75 80(87) On June 30, 2004, the Special Criminal Chamber ordered the commencement of trial and declared the existence of “grounds to initiate oral proceedings” against the former President, who is the only accused in the case. Furthermore, defendant was declared on default. 76 80(88) In case No. 19-2001, the Special Criminal Chamber of the Supreme Court of Justice requested Fujimori’s extradition of (the Supreme Court of Justice) Transitory Criminal Chamber, who admitted the request of active extradition on December 16, 2005. In turn, the Supreme Court of Justice Investigation Board had submitted the same petition for extradition in connection with other eleven cases instituted against that person, which were admitted by the said Transitory Criminal Chamber. 80(89) On December 16, 19 and 20, 2005, the Commission in charge of reviewing the petitions for active extraditions agreed to grant the extradition of the referenced accused. 80(90) On December 23, 2005, the President of the Republic, the president of the Council of Ministers, the Minister of Justice and Minister of Foreign Affairs issued Supreme Resolution No. 270-2005-JUS, whereby it was “agreed to consent the petition for active extradition of the accused Alberto Fujimori Fujimori or Kenya Fujimori,” and it was agreed “to proceed to this submission through diplomatic channels before the Republic of Chile.”77 The supporting grounds of this Resolution are norms laid out in Supreme Decree No. 044-93-JUS, Law No. 24.710, Organic Law of the Judiciary and the Extradition Treaty signed by Perú and Chile on November 5, 1932.78 80(91) On January 3, 2006, by means of diplomatic note No. (CEJ) 6/85 of the Embassy of Perú in Santiago de Chile, Perú submitted twelve petitions for extradition, including the one relating to the case of La Cantuta. Said petitions triggered extradition proceedings before the Chilean Supreme Court of Justice.79 80(92) On May 18, 2006, in deciding an appeal, the Second Criminal Chamber of the Chilean Supreme Court decided to provisionally release Alberto Fujimori-Fujimori on bail, with a restraining order enjoining the accused from leaving Chile.80 These proceedings are currently pending before the Special Criminal Chamber of the Chilean Supreme Court of Justice.81 Regarding the alleged victims and their families 80(93) Mr. Hugo Muñoz-Sánchez was born on September 24, 1943, in Huanta. He was a professor at the University of La Cantuta, and lived in the teaching-staff residences. His wife was Mrs. Antonia Pérez-Velásquez, and their sons and daughters were Margarita Liliana Muñoz-Pérez, Hugo Alcibíades Muñoz-Pérez, Mayte Yu Yin Muñoz-Atanasio, Hugo Fedor Muñoz-Atanasio, Carol Muñoz-Atanasio, Zorka Muñoz-Rodríguez and Vladimir Ilich Muñoz Sarria; his sister was Ms. Rosario Muñoz-Sánchez, and his brother was Mr. Fedor Muñoz-Sánchez. Mr. Hugo Muñoz-Sánchez devoted his earnings to the support and maintenance of his wife, his daughter Margarita Liliana Muñoz-Pérez and his son Hugo Alcibíades Muñoz-Pérez. 80(94) After the events, Mrs. Antonia Pérez-Velásquez quitted her job as a primary school teacher to devote her time to search for her husband. 80(95) Mr. Fedor Muñoz-Sánchez collected a pension allowance payable to Professor Hugo Muñoz-Sánchez, and handed it over to Mrs. Antonia Pérez-Velásquez. * * *
80(97) Before moving into the students’ residences, Dora Oyague-Fierro lived with her father, Mr. José Esteban Oyague-Velazco, her aunt Carmen Oyague-Velazco and her uncle Jaime Oyague-Velazco. After the incidents, the two brothers and sister Oyague-Velazco, e.i. Dora Oyague-Fierro’s father, uncle and aunt, took actions in search of justice. * * *
80(99) Andrea Gisela Ortiz-Perea dropped her studies in La Cantuta, as she devoted her time to search for her brother as from the same day of the events, and took several actions both at the national and international levels in search of justice; this is why she has received several threats. At present, she is a student from said university. * * *
80(101) Before living in the students’ campus residences, Heráclides Pablo-Meza had lived with his aunt for seven years, Ms. Dina Flormelina Pablo-Mateo, who took a number of steps in search of him, and who had to close down her stall at the market as a result of the costs involved in the search. * * *
80(103) Mrs. Alejandrina Raida Cóndor-Saez quitted her laundry job to devote her time to search for her son, and has taken a number of actions in search of justice. * * *
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Representation of the next of kin of the alleged victims before internal jurisdiction and the Inter-American system of protection of human rights. 80(110) The relatives of the alleged victims have filed several requests with national authorities, both to determine the whereabouts of their beloved ones and to further proceedings pending in criminal courts. They have been represented by a number of attorneys-at-law, and have been supported by APRODEH before local jurisdictional authorities, and by APRODEH, CEAPAZ and CEJIL before the Inter-American system for the protection of human rights. Yüklə 0,88 Mb. Dostları ilə paylaş:
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