Chuschi Case

Key Judgment


Legal Relevance

Keywords: Children/Youth | Deprivation of Liberty | Judicial Protection | Refusal to Disclose Fate

Themes: Characteristics of the Crime

The Court recalled how the crime of enforced disappearance was defined by national law as a crime against humanity violating fundamental human rights and the very essence of human dignity. It also highlighted the specific characteristics of the crime, which involves not only a person’s deprivation of liberty by State agents, but also the systematic concealment of the detention in order to keep the victim’s whereabouts unknown. The Court recalled how an enforced disappearances is a continuous offence, as an unlawful situation is caused by an act, the continuation of which depends on the will of the perpetrator. The Court defined enforced disappearances as a complex crime, involving the commission of two acts that are connected: the deprivation of a person’s liberty, followed by their disappearance. Although part of the conduct in the case occurred before the entry into force of the law criminalising enforced disappearance, its continuous nature made it possible to charge the accused with the crime without violating the principle of non-retroactivity of the law.

The Court found the accused responsible for the crime against humanity of enforced disappearance. It rejected the claim that the acts were excused because the accused was complying with a superior's order, due to the manifest illegality of the order to disappear civilians. In recognising one of the perpetrators as an author of the crime, the Court highlighted how his illegal behaviour was not limited to capturing and delivering the victims to military authorities, but also included repeatedly denying those facts, which was a major factor in maintaining uncertainty around the fate of the disappeared. It also found the other perpetrator responsible as a secondary accomplice, as he followed the author’s request to continue maintaining silence over the events. Finally, the Court increased the amount of compensation due to the victims’ families, due to the fact that the victims were still disappeared at the time of the proceedings.

Judgment Date

September 24, 2007

Country

Peru

Judicial Body

Peru - Supreme Court

Articles violated

Article 320 [PCC]

Facts of the Case

In March 1991, a patrol of the Peruvian Army, after coordinating with the local Police, raided several homes in the Chuschi district in search of those suspected of being part of a resistance movement. Mr. Manuel Pacotaype Chaupín, Mr. Martín Cayllahua Galindo, Mr. Marcelo Cabana Tucno and Mr. Isaías Huamán Vilca (a minor) were beaten, threatened and abducted in the course of the operation, after the military had staged an incursion by armed groups. The victims were firstly loaded into a vehicle and then forced to walk barefoot, half-naked and with their hands tied, until they reached the military barracks, where they were admitted. Despite their families' efforts to locate them, military authorities denied the victims' detention in the barracks. The victims' whereabouts were still unknown at the time of the proceedings.

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