I/A Court H.R., Case of Osorio Rivera and family v. Peru. Interpretation of the judgment on Preliminary Objections, Merits and Reparations and Costs. Judgment of November 20, 2014. Series C No. 290.

Non official brief

This summary is also published in the website of the Council of Europe in the following link: www.venice.coe.int/files/Bulletin/B2014-3-e.pdf

 

Headnotes:


Enforced disappearance has a permanent or continuing nature and violates multiple norms. Its concurrent and constituent elements are:

a.    the deprivation of liberty;

b.    the direct intervention of State agents or their acquiescence, and

c.    the refusal to acknowledge the detention and to reveal the fate or the whereabouts of the person concerned. These multiple violations continue while the whereabouts of the victim are unknown or his remains have not been found. Consequently, States have the corresponding obligation to investigate enforced disappearances and to punish those responsible pursuant to the obligations derived from the American Convention of Human Rights and the Inter-American Convention on Forced Disappearance of Persons.


When analysing an alleged enforced disappearance, the deprivation of liberty should only be understood as the beginning of a complex violation that is prolonged over time until the victim’s fate and his or her whereabouts are known. In this regard, the way in which the deprivation of liberty is carried out is unimportant for the purposes of the characterisation of an enforced disappearance; in other words, any form of deprivation of liberty meets this first requirement.


A certificate of release from detention does not provide sufficient evidence of the actual release, because the production of false documents seeking to certify a release is common in different countries and was verified in Peru at the time of the events.


With relation to the State’s compliance with their obligation to investigate enforced disappearances diligently, an acquittal may be taken into consideration as a factor to evaluate the State’s responsibility or the scope of this responsibility, but does not constitute per se a factor to affirm the absence of the State’s international responsibility, given the difference in the evidentiary standards or requirements in criminal trials and under international human rights law.


A national context that includes the existence of a systematic pattern of human rights violations can be used to prove the existence of a specific human rights violation. The reports of truth or historical clarifications commissions have a special probative value as relevant evidence.


A refusal to acknowledge the deprivation of liberty and to reveal the fate or whereabouts of the victim can occur when State authorities indicate that the victim has been released without providing information on his whereabouts.


The fact that a disappearance takes place in the context of a pattern of selective enforced disappearances, leads to the conclusion that it placed the victim in a serious situation of vulnerability and risk of suffering irreparable harm to his personal integrity and life. It is then reasonable to presume that the victim suffered treatment contrary to the dignity inherent in the human being while he was in the custody of the State. The foregoing constitutes a violation of Articles 5.1 and 5.2 ACHR, in relation to Article 1.1 ACHR.


The acts involved in a disappearance bear no relationship to the military discipline or mission. The standard that human rights violations should be investigated and prosecuted under the ordinary jurisdiction does not arise from the gravity of the violations, but rather from their very nature and from the rights protected.


Summary:


I. On 30 April 1991, Mr Jeremias Osorio Rivera was victim of an enforced disappearance that continued as of the date date of publication of the decision by the Inter American Court. Mr Osorio Rivera was deprived from his liberty on 28 April 1991 along with his cousin, due to a fight between them. On 30 April 1991, Mr Osorio was taken with his head covered and hands tied to the Cajatambo Counter-subversive base. This was the last time his family ever saw him. On 2 May 1991, Mr Osorio’s brothers were told that he had been released on 30 April 1991, but no information about his whereabouts has been available. All of this occurred in the context of a state of emergency applicable to the region and of the execution of the «Palmira Operation», which allowed military forces to control internal security in the region in order to capture terrorists.


On 10 June 2012, the Inter American Commission on Human Rights filed a claim against the Republic of Peru alleging violations of Articles 3, 4, 5.1, 5.2, 7, 8.1 and 25.1 ACHR, in relation to Articles 1.1 and 2 ACHR, and of Articles I and III of the Inter American Convention on Forced Disappearances of Persons. Likewise, the Commission requested that the Court order the State to adopt measures of reparation.

 

II. On the merits, the Court found that Peru violated Articles 3, 4, 5.1, 5.2 and 7 ACHR, with relation to Articles 1.1 and 2 ACHR, as well as Articles I and III of the Inter American Convention on Forced Disappearances of Persons, given that the Court understood that Mr Jeremias Osorio had been forcefully disappeared.

 

The Court determined that Mr Osorio’s enforced disappearance started on 28 April 1991, when he was deprived from his liberty by military officers. It used the Truth and Reconciliation Commission’s report (CVR for its initials in Spanish) to assert that his disappearance was related to a systematic State practice during the armed conflict existent in Peru, applicable to the place of Mr Osorio’s disappearance, and consistent with the modus operandi existent in other enforced disappearances. Finally, the Court determined that the State’s affirmation that Mr Osorio was freed, without giving information as to his fate, is equivalent to a refusal by the State to give information about his whereabouts.


Furthermore, Peru was held responsible for violating Articles 8.1 and 25.1 ACHR. The enforced disappearance of Mr Osorio was investigated in the regular jurisdiction between May 1991 and July 1992; in a military jurisdiction between July 1992 and October 1996; and then by a specialised forum between 2004 and 2013. The Court asserted that the investigation carried out in military forum violated the right to be tried in the appropriate jurisdiction, since investigations concerning human rights violations should be investigated in a regular forum. Moreover, the Court also determined that the other investigations violated the State’s obligation to investigate human rights violations effectively and with due diligence.


The Court further declared Peru’s international responsibility for violating the right to access to the truth about Mr Osorio’s whereabouts to his family members. It also declared that Peru was responsible for the lack of investigation during the period of time in which amnesty laws applied in Peru. The Court further indicated that as long as Article 320 of the Peruvian criminal code does not adequately contemplate enforced disappearances, it continues to violate Article 2 ACHR and III of the Inter American Convention on Forced Disappearances of Persons.


The Court finally held Peru responsible for the violation of Mr Osorio’s family’s right to personal integrity, established in Article 5 ACHR, for the extreme pain and suffering caused by the State derived from Mr Osorio’s disappearance and the further lack of information about his fate.


Accordingly, the Court ordered that the State:

 

  1. open and conduct the necessary investigations and proceedings, within a reasonable time, in order to establish the truth of the facts, as well as to identify and punish, as appropriate, those responsible for the enforced disappearance of Mr Osorio;
  2. conduct a genuine search, making every effort to discover the whereabouts of Mr Osorio;
  3. provide medical and psychological or psychiatric treatment to the victims that request it;
  4. organise a public act acknowledging international responsibility;
  5. grant several of the victims a scholarship in a Peruvian public establishment mutually agreed upon between each child of Mr Osorio and the State of Peru;
  6. adopt the necessary measures to reform its criminal laws in order to define the offense of enforced disappearances of persons in a way compatible with international parameters;
  7. implement permanent programs on human rights and international humanitarian law in the training schools of the Armed Forces,
  8. and pay the amounts identified in the decision as pecuniary and non-pecuniary damages.