126. In sum, the Court concludes, for the purposes of characterizing the enforced disappearance,
that State agents executed a deprivation of liberty which constituted the commencement of the
disappearance.
ii.
The direct intervention of State agents or their acquiescence
127. There is no dispute about the fact that the detention was carried out by State agents and
that Mr. Osorio Rivera remained deprived of liberty and in State custody at least until April 30,
1991. However, the State argues that there is evidence that the disappearance was not
perpetrated by State agents, so that State responsibility was not involved. It based itself on three
key considerations to reach this conclusion: (1) it questioned the application to this case of the
context, systematic pattern and modus operandi by affirming that few human rights violations that
could be attributed to State agents were being committed in the province of Cajatambo at the time
of the events; (2) it affirmed that Mr. Osorio Rivera had been released on May 1, 1991, and (3) it
referred to two acquittals decided in the criminal proceedings against the presumed author. The
Court will now examine each of these arguments, first examining the “direct evidence” advanced
by the State in order to disprove its international responsible, and then analyzing the application to
this case of the context, systematic pattern and modus operandi of enforced disappearances
perpetrated by State agents.
ii.1)
The alleged release of Mr. Osorio Rivera
128. Regarding the change in the State’s position alleged by the Commission in relation to the
record of release (supra para. 104), the Court has been able to verify that the file before the
Commission contains the State’s response of July 16, 1999, to the request for information
concerning the case. At that time, the State advised the Commission, “based on information
provided by the Ministry of Defense, that the citizen Jeremías Osorio Rivera was detained on April
28, 1991, and released on May 1, 1991, according to the record of release (copy attached);
accordingly, it is not appropriate for the Peruvian State to submit to the friendly settlement
procedure, since the security forces had no responsibility in the events denounced, as indicated by
the Supreme Council of Military Justice.” 234 In addition, when submitting the case to the Court, the
Commission forwarded the said “record of release” as an annex, and it is included among the facts
described in the Merits report. Consequently, the Court does not find this argument by the
Commission admissible.
129. Nevertheless, the State does not deny the detention of Jeremías Osorio Rivera or his
transfer to the Cajatambo Counter-subversive Base by State agents; however, it affirms that he
was released on May 1, 1991. The State based the supposed release, first, on radiograms that
contain, on the one hand, the order that he be released and, on the other, confirmation that this
had been done. 235
para. 26 (7). See also, Case of Blanco Romero et al. v. Venezuela. Merits, reparations and costs. Judgment of November 28,
2005. Series C No. 138, para. 105.
234
Pertinent parts of the observations of the State of Peru of July 16, 1999 (file of proceedings before the
Commission, volume I, folio 150).
235
Radiograms 640 and 641 of May 1, 1991, refer to the order to release Jeremías Osorio Rivera. Radiogram 640 was
issued on May 1, 1991, sent from “León” (zone Commander) to “Alfa” (Juan Carlos César Tello Delgado), transmitting the
following order: “Your are hereby required to release DS Jeremías Osorio Rivera on day (K) advising this CMD (STOP).”
Copy of radiogram No. 640 of May 1, 1991 (evidence file, volume IX, annex 26 to the State’s answering brief, folio 4807).
Arnulfo Roncal Vargas, Political and Military Chief of security area No. 1, stated that “[…] information was received of the
detention of Jeremías Osorio Rivera early on April 29, 1991, by a radiogram, and his immediate release was ordered,
47
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