Report No. 76 (2010) IACHR. Petition No. 11.845 (Perú)

Petition Number11.845
Report Number76
Case TypeAdmissibility
CourtInter-American Comission of Human Rights
Respondent StatePerú
Alleged VictimJeremías Osorio Rivera
Report No. 76/10

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REPORT No. 76/10

PETITION 11.845

ADMISSIBILITY

JEREMÍAS OSORIO RIVERA et al.

PERU

July 12, 2010



I. SUMMARY


  1. On November 20, 1997, the Inter-American Commission on Human Rights (hereinafter also “the Inter-American Commission," "the Commission," or "the IACHR") received a petition presented by Porfirio Osorio Rivera and by the Asociación Pro Derechos Humanos (APRODEH) (hereinafter also “the petitioners”) on behalf of Jeremías Osorio Rivera (hereinafter also “the alleged victim”) which alleged a violation by the Republic of Peru (hereinafter also “Peru," "the State," or "the Peruvian State") of the rights enshrined in Articles 3, 4, 5, 7, and 8 of the American Convention on Human Rights (hereinafter also “the American Convention” or “the Convention”), in connection with Article 1.1 of that instrument. The petitioners affirmed that Mr. Jeremías Osorio Rivera was detained by members of an Army patrol on April 28, 1991, in the province of Cajatambo, department of Lima, and that his whereabouts had been unknown since that date. They alleged that the complaints presented by the relatives of the alleged victim had proved fruitless and that a trial pursued under military jurisdiction was dismissed in a final ruling in February 1996. They indicated that the investigation was reopened in September 2004 but had not yet concluded. They noted that, although over 19 years has passed since the alleged forced disappearance of Mr. Jeremías Osorio Rivera, the judicial authorities has not clarified the facts, determined his whereabouts, punished those responsible, or provided others measures of reparation to his relatives.

  1. The State described the judicial measures taken in connection with the alleged forced disappearance of Jeremías Osorio Rivera. It said that, since the investigation had been reopened in September 2004, the Office of the Public Prosecutor and the Judiciary had been taking a number of measures to ascertain the facts and punish those responsible. The State argued that the fact that several years have passed without a definitive judicial ruling under ordinary jurisdiction was due to the complexity of the case and of the crime under investigation. It indicated that the criminal trial has been held by impartial and independent bodies and required that the petition be shelved, concluding that the grounds for its presentation to the IACHR no longer existed.


  1. After examining the positions of the parties in the light of the admissibility requirements set forth in Articles 46 and 47 of the Convention, the Commission concluded that it is competent to hear the complaint concerning the rights enshrined in Articles 3, 4, 5, 7, 8 and 25 of the American Convention, in relation to Articles 1.1 and 2 of that instrument; and in Articles I and III of the Inter-American Convention on Forced Disappearance of Persons. In addition, the Commission decided to notify the parties of this Report on Admissibility, publish it, and include it in its Annual Report.


II. PROCEEDINGS BEFORE THE COMMISSION


  1. On November 20, 1997, the petition was received and registered under number 11.845. On April 13, 2009, the petition was transmitted to the State, with the request that the State reply within 90 days, in keeping with the Rules of Procedure of the IACHR then in force.


  1. On February 12, 1998, the State presented its reply, which was transmitted to the petitioners on February 25 of that year. The petitioners transmitted additional pleadings on August 21, 1998, March 9, 2010, and May 14, 2010. For its part, the State presented additional communications on July 19, 1999, February 17, 2005, April 5, June 22 and 18, 2010.


III. POSITIONS OF THE PARTIES


  1. Position of the petitioners
  1. By way of context, the petitioners affirmed that, until April 1991, Mr. Jeremías Osorio Rivera, then 27 years of age, resided in the community of Cochas-Paca, province of Cajatambo, department of Lima, which was subjected to repeated incursions by the insurgent organization Shining Path. They said that Mr. Osorio Rivera and other members of the community raised the Peruvian flag every week in resistance and opposition to the acts of violence sponsored by that criminal organization.


  1. The petitioners alleged that on April 28, 1991, Mr. Jeremías Osorio Rivera was detained by an Army patrol from the Counter-subversives Base at Cajatambo, whose members accused him of belonging to the Shining Path. They said the soldiers were stationed in the community of Cochas-Paca for two days, during which they subjected the alleged victim to physical mistreatment. They alleged that members of the local community witnessed various lesions on Mr. Osorio Rivera’s face, and that, on one occasion, members of the patrol wrapped his head in a hood to hide the wounds. They asserted that on April 30, 1991, the Army patrol left the community, taking Mr. Jeremías Osorio Rivera with them, with his hands tied, on a horse belonging to members of the local community.

  1. According to the petitioners, the commander of the Army patrol that set up camp in the community of Cochas-Paca, Lieutenant Juan Carlos Tello Delgado, presented a document, dated May 1, 1991, entitled “certificate of release,” allegedly bearing the signature and fingerprint of Mr. Jeremías Osorio Rivera1. They say this document was not signed by any military or judicial authority, and that, considering the circumstances under which it was produced, it could be inferred that the alleged victim was forced to sign it.


  1. The petitioners affirmed that, in May 1991, the brother of the alleged victim, Porfirio Osorio Rivera, presented a complaint to the Provincial Criminal Court of Cajatambo, stating that the whereabouts of Jeremías Osorio Rivera had remained unknown since April 30, 1991. They indicated that the Provincial Criminal Court of Cajatambo opened a criminal investigation into the crimes of abuse of authority and violation of the right to personal freedom against then-Army Lieutenant Juan Carlos Tello Delgado. They said the inquiry was subsequently refused jurisdiction and sent to the military judicial authority, then was shelved on February 7, 1996, through a final ruling of dismissal by the Supreme Council of Military Justice.

  1. According to the allegation, on June 14, 2004, Porfirio Osorio Rivera presented a complaint to the Office of the Special Prosecutor on Forced Disappearances, Extrajudicial Executions, and Exhumation of Clandestine Graves (hereinafter “the Office of the Special Prosecutor”), concerning the alleged forced disappearance of his brother Jeremías Osorio. They said that on September 24, 2004, the Office of the Special Prosecutor ordered that a preliminary investigation be opened, and that this was refused jurisdiction and referred to the Provincial Joint Prosecutor’s Office of Cajatambo on June 8, 2005.


  1. The petitioners affirmed that on October 26, 2005, the Office of the Provincial Prosecutor of Cajatambo lodged a formal accusation that a crime against humanity, forced disappearance, and a violation of the right to personal liberty had been committed against Jeremías Osorio Rivera. They stated that, at the request of Porfirio Osorio Rivera, the hearing of the case was transferred to the Fourth Supraprovincial Criminal Court, which handled the investigations phase and presented the case file to the National Criminal Court. They indicated that on October 30, 2007, the Office of the Second Superior National Criminal Prosecutor lodged an...

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