Basilio Laureano Atachahua v. Peru

• CCPR

International Covenant on Civil and Political Rights: Articles 2 paragraphs 1 and 3, 6 paragraph 1, 7, 9, 10 paragraph 1 and 24 paragraph 1

Optional Protocol to the International Covenant on Civil and Political Rights: Article 5 paragraph 2 (a)

General Comment No. 6 - Article 6 (The right to life)

The author is Basilio Laureano Atachahua, a Peruvian citizen, born in 1920. He submitted the communication on behalf of his granddaughter, Ana Rosario Celis Laureano, a Peruvian citizen, born in 1975, whose whereabouts were unknown.

In March 1992, the author’s granddaughter, Ms. Laureano, then 16 years old, was abducted by unknown armed men, presumably guerrillas of the Shining Path movement. She returned six days later and told the author that the guerrillas had threatened to kill her if she refused to join them, that she was forced to carry their baggage and to cook for them, but that she had been able to escape. In May 1992, she was again forced by the guerrillas to accompany them, but she again escaped. The author did not denounce these events to the authorities, firstly because he feared reprisals from the guerrilla group, and secondly because, at the time, the regular army was not yet stationed in the Ambar District.

On 23 June 1992, the author’s granddaughter, Ms. Laureano, was detained by the military, on the ground of suspected collaboration with the Shining Path movement. For 16 days, she was held at the military base in Ambar (set up in the meantime). For the first eight days, her mother was allowed to visit her; for the remaining eight days, she allegedly was kept incommunicado. Upon inquiry about her whereabouts, Ms. Laureano's mother was told that she had been transferred. The family then requested the provincial prosecutor of Huacho to help them in locating Ms. Laureano. After ascertaining that she was still detained at Ambar, the prosecutor ordered the military to transfer her to Huacho and to hand her over to the special police of the National Directorate against Terrorism (DINCOTE).

During the transfer to Huacho, the truck in which Ms. Laureano was transported was involved in an accident. She suffered from a fractured hip and was brought to the local quarters of the Policía Nacional del Peru (PNP), where she was held from 11 July to 5 August 1992. On 5 August, a judge on the civil court of Huacho ordered her release on the ground that she was a child. He appointed the author as her legal guardian and ordered them not to leave Huacho, pending investigations into the charges against her.

On 13 August 1992, at approximately 1 a.m., Ms. Laureano was abducted from the house where she and the author were staying. The author observed that the perpetrators might be from the military or special police forces.

From 19 August 1992 to 30 September 1992, the author made various attempts to find his granddaughter, but all to no avail. In light of the above, it was contended that all available domestic remedies to locate Ms. Laureano and to ascertain whether she was still alive had been exhausted.

The author submitted that the unlawful detention of Ana Rosario Celis Laureano and her subsequent disappearance, which the author attributed to the armed forces of Peru, amounted to violations of Articles 6 paragraph 1 (right to life), 7 (prohibition of torture or cruel inhuman or degrading treatment or punishment), 9 (liberty and security of person; protection against arbitrary arrest and/or detention) and Article 10 paragraph 1 (dignity of persons deprived of liberty) of the Covenant. Furthermore, the author submitted that the State party violated Article 24 paragraph 1 (protection of child), as it failed to provide Ms. Laureano with such measures of protection as are required by her status as a minor. The State party's failure to protect her rights, to investigate in good faith the violations of her rights, and to prosecute and punish those held responsible for her disappearance was said to be contrary to Article 2 paragraphs 1 (principle of non-discrimination) and 3 (right to remedies) of the Covenant.

On 10 June 1993, the State party noted that in investigations carried out in December 1992, confirmed that members of the military base in Ambar had arrested Ana Rosario Celis Laureano in June 1992. She had allegedly confessed her participation in an armed attack on a military patrol in Parán on 6 May 1992 and pointed out where the guerrillas had hidden arms and ammunition. In July 1992, she was handed over to the Chief of the PNP in Huacho and subsequently to the prosecuting authorities of the same town; she was charged, with participation in a terrorist group. Her case was then referred to the judge of the Civil Court, who decreed her provisional release. On 8 September 1992, the commander of the military base in Ambar inquired with the judge about the status of the case; on 11 September 1992, the judge confirmed that the girl had been abducted one month earlier, and that the judicial authorities seized of the matter attributed responsibility for the event to members of the military. On 21 September 1992, the Attorney-General of the Second Prosecutor's Office reported on the action taken by his office until then; he issued a list of eight police and military offices and concluded that Ms. Laureano was not detained in any of these offices.

On 19 September 1993, counsel for the author noted that the Ministry of Defence was neither competent nor in the position to draw conclusions from investigations which should be undertaken by the judiciary. He pointed out that the State party admitted to the events which occurred prior to Ms. Laureano's disappearance. He added that by merely referring to the negative results of inquiries made by the Attorney-General of the Second Prosecutor's Office, the State party was said to display its unwillingness to investigate the child's disappearance seriously. Counsel contended further that the State party merely speculated when it asserted that Ms. Laureano was detained because of her terrorist activities and that the guerrillas themselves could have intervened to kidnap her. He noted that it was the military which accused her of being a member of Shining Path, and that the courts had not yet found her guilty. Counsel forwarded a statement from Ms. Laureano's grandmother, dated 30 September 1992, which stated that prior to, and subsequent to, the disappearance of her granddaughter, a captain of the Ambar military base had threatened to kill her and several other members of the family.

On 6 September 1993, the State party argued that the Committee had no competence to consider the case, which was already under examination by the United Nations Working Group on Enforced or Involuntary Disappearances.

In reply, counsel for the author pointed out that the United Nations Working Group on Enforced or Involuntary Disappearances had a specific mandate, which did not include, among others, identifying those responsible for disappearances, delivering a judgement in a case, or providing an effective remedy for an alleged violation. As such, it did not constitute a procedure of investigation or settlement within the meaning of Article 5 paragraph 2 (a) of the Optional Protocol.

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Consideration of admissibility

The Committee found that the complaint was admissible. The Committee considered that the fact that the case was registered before the United Nations Working Group on Enforced or Involuntary Disappearances, did not make it inadmissible under Article 5 paragraph 2 (a) of the Optional Protocol.

Consideration of the merits

The Committee was of the view that the facts revealed violations of Articles 6 paragraph 1 (right to life), 7 (prohibition of torture or cruel inhuman or degrading treatment or punishment), Article 9 paragraph 1 (liberty and security of person), all juncto Article 2 paragraph 1 (principle of non-discrimination); and of Article 24 paragraph 1 (protection of child) of the Covenant. The Committee noted that the State party conceded that Ms. Laureano had remained unaccounted for since the night of 13 August 1992 and did not deny that the military or special police units in Huaura or Huacho could been responsible for her disappearance. Therefore, the Committee found that Ana Rosario Celis Laureano 's right to life enshrined in Article 6, read together with Article 2 paragraph 1, had not been effectively protected by the State party. With regard to the claim under Article 7, the Committee recalled that Ms. Laureano had disappeared and had had no contact with her family or with the outside world, which constituted cruel and inhuman treatment, in violation of Article 7, juncto Article 2 paragraph 1, of the Covenant.

The Committee recalled the evidence before it revealed that Ms. Laureano was violently removed from her home by armed State agents on 13 August 1992 and that this was not done on the basis of an arrest warrant nor on orders of a judge or judicial officer. It concluded that, there had been a violation of Article 9 paragraph 1, juncto Article 2 paragraph 1. The Committee noted that during the investigations initiated after the author's initial detention by the military, in June 1992, the judge on the civil court of Huacho had ordered her provisional release because she was a child. However, subsequent to her disappearance in August 1992, the State party did not adopt any particular measure to investigate her disappearance and locate her whereabouts to ensure her security and welfare, given that Ms. Laureano was underage at the time of her disappearance. It concluded that, in the circumstances, Ms. Laureano did not benefit from such special measures of protection she was entitled to on account of her status as a minor, and that there had been a violation of Article 24 paragraph 1.

The Committee urged the State party to open a proper investigation into the disappearance of Ana Rosario Celis Laureano and her fate, to provide for appropriate compensation to the victim and her family, and to bring to justice those responsible for her disappearance.

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