B.2. Lack of due diligence in the criminal investigations
181. The Court must now analyze whether the State conducted the criminal investigations with
due diligence and within a reasonable time, and whether these investigations have constituted
effective remedies to ensure the right of access to justice and to know the truth of the family
members. To this end, the Court may examine the respective domestic proceedings. 298
182. The Court underscores that, for an investigation of an enforced disappearance to be
conducted effectively and with due diligence, 299 all the necessary means must be used to promptly
take those measures and make those inquiries that are essential and appropriate in order to clarify
the fate of the victims and to identify those responsible for their enforced disappearance. 300 To this
end, the State must provide the pertinent authorities with the logistic and scientific resources
required to gather and process the evidence and, in particular, the power to access documentation
and information that is relevant to investigate the facts denounced and to obtain indications or
evidence of the victims’ whereabouts. 301
183. Since three different stages can be distinguished in the investigations into the enforced
disappearance of Jeremías Osorio Rivera, which culminated in the acquittal of the only person
prosecuted, the Court will now analyze: (i) the first investigation conducted in the ordinary
jurisdiction between May 1991 and July 1992; (ii) the investigation conducted by the Third
Permanent Military Court of Lima from July 1992 to October 1996, and (iii) the new investigation
before the special jurisdiction from 2004 to 2013.
i. First criminal investigation in the ordinary jurisdiction
184. The first investigation was opened based on the criminal complaint filed by Porfirio Osorio
Rivera, the presumed victim’s brother, on May 9, 1991 (supra para. 77), and it was only open for
one year because the Investigating Court disqualified itself from hearing the case in favor of the
military jurisdiction (supra para. 84). During this first investigation, the preliminary statement of
the accused, the statement of the complainant, and graphology and dactylography appraisals of
the record of release of May 1, 1991, were received (supra paras. 79 to 81). However, the court
failed to take the statements of eyewitnesses of the events or of members of the presumed victim’s
family who could have provided essential information, and omitted to make an on-site inspection.
302
because the implementation of
The latter resulted in financial expenditure for the complainant,
the measures was conditioned on the complainant obtaining transport, and this expenditure was
not reimbursed when the measure was not taken (supra para. 80). In addition, no information was
requested with regard to the military personnel serving on the Cajatambo Contra-subversive
Military Base, which belonged to the 77th Armored Infantry Battalion, during April 1991. The Court
considers that these omissions in the said investigation were of an essential nature in order to
298
Cf. Case of Anzualdo Castro v. Peru. Preliminary objection, merits, reparations and costs, supra, para. 126.
299
Cf. Article I(b) of the Inter-American Convention on Forced Disappearance of Persons. See, also, Article 12 of the
International Convention for the Protection of All Persons from Enforced Disappearance.
300
Cf. Case of Velásquez Rodríguez v. Honduras. Merits, supra, para. 174, and Case of Anzualdo Castro v. Peru.
Preliminary objection, merits, reparations and costs, supra, para. 135.
301
Cf. Case of Tiu Tojin v. Guatemala. Merits, reparations and costs. Judgment of November 26, 2008. Series C No.
253, para. 327, and Case of the Massacres of El Mozote and nearby places v. El Salvador, supra, para. 313.
302
Cf. Brief addressed to the Cajatambo Investigating Judge of December 6, 1991 (evidence file, volume IV, annex 48
to the submission of the case, folio 1832).
68
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents