Washington College of Law|
Center For Human Rights and Humanitarian Law
REPORT No 38/90
Case 10.317 (PERU)
- On February 20, 1989, the Inter-American Commission on Human Rights received the following complaint:
Arrest-disappearance of Evaristo Morales Portillo, peasant, married, father of three minor children, as follows:
On August 28, 1988, he was arrested in the peasant village of Tintay, Province of Aymaraes, Department of Apurimac, by Peruvian Army soldiers stationed at the military base of Santa Rosa.
He was taken to the military base of Santa Rosa, and later to the Miguel Grau barracks in the city of Abancay; the military there have refused to give any information on his place of detention or his legal situation.
There are witnesses who insist they saw him at the Miguel Grau barracks up to September 28, 1988.
Evaristo Morales Portillo has thus been detained- disappeared since August 28, 1988.
- In a note of April 11, 1989, the Commission transmitted the pertinent parts of the complaint to the Government of the Republic of Peru, with a request for any relevant information, but failed to receive a reply within the statutory period.
- The request for information was reiterated through note sent to the Government on September 8, 1989, which referred to the possibility of applying Article 42 of the Regulations of the Commission. No reply was received to that note either.
- That in resolution AG/RES. 666 (XIII-O/83) the General Assembly declared that "the practice of forced disappearance of persons in the Americas is an affront to the conscience of the hemisphere and constitutes a crime against humanity."
- That the period established in Article 34, paragraph 5, of the Regulations of the Commission has elapsed without the Government of Peru having responded to the request for information made by the IACHR in the notes referred to in the background section of this report, so that it may be presumed that there are not any remedies under domestic jurisdiction to be exhausted (Article 46 of the American Convention), in light of the adversarial procedure established in that Convention.
- That Article 42 of the Regulations of the Commission reads:
The facts reported in the petition whose pertinent parts have been transmitted to the government of the State in reference if, during the maximum period set by the Commission under the provisions of Article 34, paragraph 5, the government has not provided the pertinent information, as long as other evidence does not lead to a different conclusion.
- That Article 1, paragraph 1, of the American Convention on Human Rights reads:
Article 1. Obligation to Respect Rights
1. The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.
5. That the Republic of Peru is a State Party to the American Convention on Human Rights and has ratified the binding jurisdiction of the Inter-American Court of Human Rights.
Therefore, in view of the related background and the considerations as well as of the fact that the Commission does not have any other evidence that would lead it to a different conclusion, based on Article 42 of its Regulations,
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
- To presume to be true the claims presented in the February 20, 1989, correspondence pertaining to the arbitrary arrest by agents of the Peruvian state and subsequent disappearance of Evaristo Morales Portillo in Tintay, Province of Aymaraes, Department of Apurímac, on August 28, 1988.
- To declare that that act constitutes a serious violation by the Peruvian State of the rights to life, humane treatment, personal liberty and a fair trial (Articles 4, 5, 7, and 8, respectively, of the American Convention on Human Rights).
- To recommend to the Government of Peru that it conduct the most exhaustive investigation possible of the acts denounced in order to identify those who are directly or indirectly responsible so that they may receive the corresponding legal penalties and that it inform the Commission of its decision and the measures taken, within a maximum period of 60 days.
- To recommend to the Government of Peru that it adopt the measures established under national law to indemnify the families of the victim.
- To transmit this report to the Government of the Republic of Peru and to the petitioners.
- If, within the period set in operative paragraph 3 of this report, the Government of Peru has not presented observations, the Commission shall include this report in its Annual Report to the General Assembly, in accordance with Article 48 of the Regulations of the Commission.
[ Inter-American Human Rights