Gómez Palomino v. Peru
State/Non-State Agents | Guarantees Against Impunity | Burden of Proof | Obligation to Criminalise
The Court found that domestic legislation on enforced disappearances did not to meet the requisite minimum standard. It noted that domestic laws must ensure that those who commit enforced disappearances, their accomplices and their accessories are punished, regardless of whether they are state agents, or persons or groups acting with the authorisation, support or acquiescence of the state. The definition also lacked a crucial element - the refusal to acknowledge the deprivation of liberty and to provide information about the fate or whereabouts of the disappeared person. The Court further found that the definition attempted to shift the burden of proof away from the state onto the next of kin, the former having an obligation to provide all necessary information to the latter, and having control over the mechanisms to investigate matters on its territory.
November 22, 2005
Article 1(1) [ACHR], Article 2 [ACHR], Article 4(1) [ACHR], Article 5(1) [ACHR], Article 5(2) [ACHR], Article 7(1) [ACHR], Article 7(2) [ACHR], Article 7(3) [ACHR], Article 7(4) [ACHR], Article 7(5) [ACHR], Article 7(6) [ACHR], Article 8 [ACHR], Article 25 [ACHR]
Articles not violated / not dealt with
Article 1(b) [IACFDP]
Facts of the Case
In July 1992, members of "Colina Group" forcefully entered the home of Mrs. María Elsa Chipana Flores (which is where Mr. Santiago Gómez Palomino lived) wearing ski masks and uniforms, and bearing firearms. The Colina Group (“grupo Colina”) was a military detachment composed of members of the Peruvian Army, and reported to the Army Intelligence Services (“Servicio de Inteligencia del Ejército”). The group was in charge of operations to identify, control and eliminate members of so-called "subversive organisations" and their suppporters, using extrajudicial executions, enforced disappearances and torture. Mr. Gómez Palomino was beaten by members of the group in front of his aunt and partner, abducted and allegedly extrajudicially executed. His fate remained unknown as of the date of the judgment.