I/A Court H.R., Case of Tenorio Roca et al. v. Peru. Preliminary Objections, Merits, Reparations and Costs. Judgment of June 22, 2016. Series C No. 314.

Non official brief

This summary is also published in the website of the Council of Europe in the following link: https://www.venice.coe.int/files/Bulletin/B2016-2-e.pdf

 

Headnotes:

A national context that includes the existence of a generalised pattern of enforced disappearances 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.

 

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.

 

The incompatibility of amnesty laws with the Convention in cases of forced disappearances has already been established by the Court. During the period in which the amnesty laws were applied, the State failed to comply with its obligation to adapt its domestic law to the Convention.

 

States have a general obligation to adapt their domestic laws to the American Convention. While domestic law is not adapted correctly to international standards, the State continues to fail to comply with Article 2 ACHR and Article III of the Inter-American Convention on Forced Disappearance of Persons.

 

Summary:

 

On 7 July 1984, Mr. Rigoberto Tenorio Roca and his wife were traveling in a bus from Huanta to the city of Ayacucho when he was deprived of his liberty, in front of his wife and several witnesses, by Peruvian military officers, including members of the navy and the investigative police. Mr. Tenorio Roca was traveling to military base no. 51, «Los Cabitos,» in Ayacucho, in order to learn the start date of his job as a military recruitment officer. Military officers entered the bus requesting passengers to identify themselves and, upon reviewing Mr. Tenorio Roca’s identification card, they detained him, asked him to descend from the bus, and introduced him to a small tank (tanqueta), with his face covered by his own coat. As of that moment, no information about his whereabouts has been available.

 

Mr. Tenorio Roca was deprived of his liberty in the context of a state of emergency applicable to the region, which allowed armed forces, in particular navy forces, to control internal security in the provinces of Huanta and La Mar, located in the department of Ayacucho. Navy forces established their counter-subversive military base in the Municipal Stadium of Huanta, where detainees were submitted to acts of torture. Also, Mr. Tenorio Roca was detained in a generalised context of enforced disappearances, when the largest number of enforced disappearances reported by Peru´s Truth and Reconciliation Commission (hereinafter, «CVR» for its initials in Spanish) occurred, between 1983 and 1984. The CVR documented Mr. Tenorio Roca’s case in its Final Report along with the detention of 57 other persons from the province of Huanta.

 

On 1 September 2014, 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 thereof, 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.

 

On the merits, the Court found that Peru violated Articles 7, 5.1, 5.2, 4.1 and 3 ACHR, in relation to Article 1.1 of that treaty, as well as Article I.a of the Inter American Convention on Forced Disappearances of Persons, given that the Court understood, after analysing the elements, that Mr Tenorio Roca had been forcefully disappeared by state agents who refused to acknowledge his detention and to reveal his fate or whereabouts.

 

The Court determined that Mr Tenorio’s enforced disappearance started on 7 July 1984, when he was deprived of his liberty by navy officers. It used the Truth and Reconciliation Commission’s report to assert that his disappearance was related to a generalised State practice during the armed conflict existent in Peru, applicable to the place of Mr Tenorio’s disappearance, and consistent with the modus operandi of other enforced disappearances.

 

The Court found that Mr. Tenorio Roca was selectively detained after verification of his identity document. His detention and transfer to the counter-subversive base located at the Municipal Stadium of Huanta was not registered and he was not brought before the authority with jurisdiction. The Court held that the purpose of the State was not to bring him before a judge or other authority with jurisdiction, but to execute him or make him disappear. Thus, his detention was the step prior to his disappearance.

 

The Court found that navy officers were responsible for safeguarding the rights of Mr Tenorio Roca but they instead placed him in a serious situation of vulnerability and risk of suffering irreparable harm to his personal integrity and life. Thirty-two years after his arrest, his family still does not know his whereabouts, despite the efforts to access the truth.

 

Additionally, Mr. Tenorio Roca’s enforced disappearance prevented him from enjoying and exercising other rights and removed him from the protection of the law. The Court concluded that the sort of legal limbo or indeterminate legal situation before society and the State that occurs with an enforced disappearance cannot be amended by the enactment of a law whose objective is to regulate an administrative mechanism for obtaining a certificate of absence equivalent to a judicial declaration of presumed death, as this legal fiction is created for the benefit or to facilitate the recognition of the rights of the relatives of the victim or third parties.

 

Furthermore, Peru was held responsible for violating Articles 8.1 and 25.1 ACHR, in relation to Articles 1.1 and 2 of that treaty, as well as Articles I.b and III of the Inter-American Convention on Forced Disappearances of Persons.

 

Mr Tenorio’s enforced disappearance was investigated through three different processes:

 

i. before the regular jurisdiction and the military jurisdiction in relation to a broader investigation regarding the discovery of the Pucayacu mass graves, since his body could have been among the 50 bodies found in those graves;

 

ii. before the regular jurisdiction and the military jurisdiction in relation to investigations specifically focused on his disappearance, and

 

iii. before the regular jurisdiction as part of a broader investigation related to several human rights violations brought to the courts through the CVR Final Report. The Court asserted that the investigations carried out in the military jurisdiction violated the right to be tried in the appropriate jurisdiction and the guarantee of a natural judge, since investigations concerning human rights violations should be investigated in the ordinary jurisdiction.

 

Moreover, the Court determined that the investigations carried out before the ordinary courts were not diligent or effective for determining Mr Tenorio’s whereabouts, establishing the facts, or identifying and punishing those responsible, and they did not respect the guarantee that proceedings be concluded within a reasonable time. Accordingly, the Court concluded that the State was responsible for the violation of the rights to judicial guarantees and judicial protection, recognised in Articles 8.1 and 25.1 ACHR, in relation to Articles 1.1 and I.b of the Inter-American Convention on Forced Disappearances of Persons, to the detriment of Rigoberto Tenorio Roca and his family. The Court further declared Peru´s international responsibility for violating Mr Tenorio Roca´s family members´ right to the truth regarding his whereabouts.

 

The Court further indicated that as long as Article 320 of the Peruvian criminal code does not adequately define enforced disappearances, it continues to violate Article 2 ACHR and Article III of the Inter-American Convention on Forced Disappearances of Persons.

 

Finally, in relation to the existing regulatory framework, the Court concluded that during the period in which amnesty laws were applied, the State breached its obligation to adapt its domestic law to the Convention, under Article 2 ACHR, in relation to Articles 8.1 and 25.1 ACHR, to the detriment of Rigoberto Tenorio Roca and his family.

 

The Court finally held Peru responsible for the violation of Mr Tenorio Roca’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 Tenorio Roca’s disappearance and the lack of information about his fate.

 

Accordingly, the Court ordered that the State:

 

  1. continue with utmost due diligence and in an effective manner with the on-going investigations and criminal proceedings, and open and conduct any other necessary investigations and proceedings within a reasonable time, in order to establish the truth, as well as to identify and punish, as appropriate, those responsible for Mr Tenorio’s enforced disappearance;
  2. adopt an exhaustive search, through adequate judicial or administrative means, to discover Mr Tenorio’s whereabouts as soon as possible;
  3. immediately provide free, prompt, adequate, and effective medical and psychological or psychiatric treatment to the victims that request it, through the State´s specialised health institutions;
  4. issue publications of the judgment;
  5. organise a public act acknowledging international responsibility;
  6. grant several of the victims a scholarship in a Peruvian public establishment mutually agreed upon between each of Mr Tenorio Roca’s children and the State;
  7. reform its criminal laws as soon as possible in order to define the offense of enforced disappearances of persons in a way compatible with international parameters; and
  8. pay the amounts indicated in the decision as pecuniary and non-pecuniary damages.