Report No. 43 (1997) IACHR. Case No. 10.562 (Perú)

• Case Number: 10.562
• Report Number: 43
• Year: 1997
• Court: Inter-American Comission of Human Rights
• Case Type: Merits
• Respondent State: Perú
• Alleged Victim: Héctor Pérez Salazar

OEA/Ser.L/V/II.98; doc. 6 rev.; 13 April 1998; Original: Spanish REPORT Nº 43/97; CASE 10.562; HECTOR PEREZ SALAZAR; PERÚ; February 19, 1998 I. THE FACTS 1. On June 14, 1990, the Inter-American Commission on Human Rights (hereinafter, "the Commission") received a complaint against the Republic of Peru (hereinafter, "the Peruvian State," the "State" or "Peru") relating to Mr. Héctor Pérez Salazar, a 66-year-old craftsman. The document stated the following: A combined General Police and Peruvian Army patrol arrived at six in the morning to the town of Huancaya, Province of Yauyos, Department of Lima. Once there, the soldiers collected the entire population in the town's central plaza. However, Mr. Héctor Pérez Salazar, an elderly man disabled by polio, was unable to get to the plaza as quickly as others, stopping at the public baths on the other side of town on his way. It was at this time that the other inhabitants heard the sound of several shots emanating from that place, and later they saw a bulky object wrapped in a plastic bag being lifted into one of the police's pickup trucks. Upon going to the public baths, a number of inhabitants came upon the elderly man's eye glasses and cane in the middle of a pool of blood. Area authorities have not responded to the family's pleas, with the result that Mr. Pérez Salazar's status is that of a missing detainee, though the evidence creates the presumption of an extra-judicial execution with an attempted cover-up. II. THE COMMISSION'S PROCEEDINGS 2. Having received the denunciation, the Commission, without prejudging the admissibility of the matter, sent the relevant sections of the document to the Peruvian State on June 15, 1990, asking the State to supply whatever information it considered appropriate. No answer was received within the time limit specified in the Commission's rules. 3. This request for information was reiterated in a note sent to the Peruvian State on March 18, 1991, and mentioning the potential invocation of article 42 of the Commission's rules, since the time which the rules allow for a response had passed without the receipt of any response. 4. Given the inapplicability of the friendly settlement procedures established in article 48.1.2 of the American Convention, due to the lack of a response from the Peruvian State, the Commission issued its article 50 report on the case. III. PROCEEDINGS AFTER COMMISSION ADOPTION OF THE ARTICLE 50 REPORT 5. Pursuant to article 50 of the Convention, the Commission on April 22, 1997, during its 96th Special Session, approved report 26/97 concerning the present case based on article 42 of its Regulations, by which the Commission is authorized to presume the facts reported in the petitioner "to be true" in the absence of any response on the part of the State, "as long as other evidence does not lead to a different conclusion." 6. By Note No. 7-5-M/66, dated April 25, 1997, three days after the article 50 report had been adopted, the Permanent Mission of Peru to the OAS informed the Commission that the governmental National Council of Human Rights (Consejo Nacional de Derechos Humanos) had informed that the Joint Command of the Armed Forces had informed that the the Judge of the Province of Yauyos - Lima, Dr. Medina Quispe Zósima had opened a case against Army Captain Alí Pérez Oblitas (Commander of the Military-Police Patrol) which operated in Huancaya on April 25, 1990 for the crime against the life, body and health - homicide of Perez Salazar Héctor, a judicial trial in which the responsibility of the individual officier in question could not be established . . .." In order to obtain further information from this Judge, the National Council of Human Rights requested an extension of time in order to provide further information on the matter. 7. In the interest of receiving a response from Peru on this case, the Commission, on May 7, 1997, informed the State that it had granted an extension of time within which to respond until June 3, 1997. 8. By note dated May 7, 1997 and received at the Commission on May 15, 1997, the Permanent Mission of Peru to the OAS transmitted the response of the National Council of Human Rights on this case. The response stated that the Joint Command of the Armed Forces had carried out an "exhaustive investigation" of the events which occurred in 1990 in Huancaya, Yauyos and given that the body of Héctor Perez Salazar had not been located, it could not establish the responsibility of Captain Pérez Oblitas in his killing. 9. The response of Peru on this case was transmitted to the petitioners on May 20, 1997 and they were asked to submit any observations within a period of 30 days. None were submitted. 10. By letter dated June 18, 1997, the Commission transmitted a copy of Report No. 26/97, its article 50 decision on this case to Peru and requested that the State provide information regarding steps taken to carry out the recommendations of the Commission, and advised them that they were not at liberty to publish the report since it was still confidential. 11. By Note No. 7-5-M/297 dated August 20, 1997, Peru presented its observations on the Commission's confidential report which are discussed below in the analysis of the merits. IV. ANALYSIS OF THE MERITS 12. What happened to Héctor Pérez Salazar, as set forth in this case, corresponds in content, nature and characteristics, to the concept of "forced disappearance", as developed in the jurisprudence of the Commission and the Inter-American Court of Human Rights (hereinafter, "the Inter-American Court,") and incorporated into Article II of the Inter-American Convention on the Forced Disappearance of Persons.[1] 13. Article II of the Forced Disappearance Convention defines a "forced disappearance" in the following terms: For the purposes of this Convention, forced disappearance is considered to be the act of depriving a person or persons of his or their freedom, in whatever way, perpetrated by agents of the state or by persons or groups of persons acting with the authorization, support, or acquiescence of the state, followed by an absence of information or a refusal to acknowledge that deprivation of freedom or to give information on the whereabouts of that person, thereby impeding his or her recourse to the applicable legal remedies and procedural guarantees. 14. Peru is not a State Party to the Forced Disappearance Convention but the mere elaboration of the definition of a "forced disappearance" by the drafters of the Convention is useful for the purposes of identifying the distinct elements of the same. What is crucial is that the individual be deprived of his freedom by agents of the state or under the color of law, followed by a refusal or incapacity of the State to explain what has happened to him or to give information about his whereabouts. 15. In this case, in the response dated June 17, 1997, Peru recognized that an army officer, Captain Alí Pérez Oblitas, was tried in 1992 for the suspected murder of Héctor Pérez Salazar. The report of June 17, 1997, prepared by the National Commission on Human Rights affirms that, in accordance with the information provided by the Judicary and the Attorney General's office in this case, the testimony of the brothers of the victim confirmed the presence ofthe Army in Huancaya but they could not verify the presumptive homicide except on the basis of rumors. The judge who heard the case...