193. Furthermore, according to several testimonies in the case file 315 and also the indictment, 316
Jeremías Osorio Rivera suffered physical injuries. The judgment of the National Criminal Chamber
of November 4, 2011, considered that “even though the witnesses […] have indicated that the
victim had been ill-treated, because his face was bruised, this cannot be attributed to the accused
because there is no appropriate evidence to verify this, and the said assertions are only
conjectures, especially since the said statements, as well as that of the accused, indicate that the
victim had been in a fight with his cousin, Gudmer Zárate Osorio, while both of them were
inebriated, and this fight was the reason they were both detained.” 317 The foregoing reveals that no
importance was given to the line of investigation relating to the hypothesis of the physical injuries
suffered by Jeremías Osorio Rivera, so that all the violations, which were evidently very serious,
were not explored.
194. The Court has considered that, in the case of acts such as those alleged in this case, given
their context and complexity, it is reasonable to consider that there are different degrees of
responsibility at different levels. 318 In the instant case, only the criminal responsibility of Lieutenant
Tello Delgado has been assessed. However, the context in which the events occurred obliged the
State to identify all the members of the patrol that was based in Nunumia and that transferred Mr.
Osorio Rivera towards Cajatambo, and to investigate the degree of their participation in the
perpetration of the enforced disappearance. This is not reflected in the investigations, because all
the measures were not exhausted to identify other possible participants in the facts and, if
appropriate, implicate them in the proceedings.
195. To the contrary, an obstruction can be observed, because the General Secretariat and the
Personnel Directorate of the Ministry of Defense have reported that they have no information on
the military personnel who served on the Cajatambo Contra-subversive Military Base at the date of
the disappearance of Jeremías Osorio Rivera. 319 This Court finds that the said denial prevented the
315
Cf. Preliminary statement made by Porfirio Osorio Rivera before the Court for Civil and Criminal Matters of
Cajatambo on July 7, 2006 (evidence file, volume IV, annex 20 to the submission of the case, folios 1670 to 1674);
Testimonial statement made by Santa Fe Gaitán Calderón before the Court for Civil and Criminal Matters of Cajatambo on
July 7, 2006 (evidence file, annex 22 to the submission of the case, folios 1684 to 1686), and Statement made by Aquiles
Román Atencio before the National Criminal Chamber during the eighth session of the oral proceeding held on January 25,
2011 (evidence file, volume VII, annex 13 to the brief with motions, arguments and evidence, folio 3543).
316
Cf. Supreme final judgment R.N. No. 1071-2012 delivered by the Transitory Criminal Chamber of the Supreme
Court of Justice of the Republic on April 17, 2013 (evidence file, volume XII, annexes to the brief with the State’s final
arguments, folios 5419 to 5434).
317
Judgment delivered by the National Criminal Chamber on November 4, 2011 (evidence file, volume IX, annex 12 to
the State’s answering brief, folio 4566).
318
150.
Cf. Case of Radilla Pacheco v. Mexico, supra, para. 203, and Case of Contreras et al. v. El Salvador, supra, para.
319
Cf. Note No. 2057 SGMD-C/1 of September 16, 2005, issued by Secretary of the Ministry of Defense advising that,
the archives of the 18th Armored Brigade contained no information on the military personnel who served on the Cajatambo
Contra-subversive Military Base in 1991 (evidence file, volume x, annex 81 to the State’s answering brief, folio 4993);
Decision of December 15 2006, by which Fourth Supraprovincial Court decided to send an official note to the Ministry of
Defense requesting it provide information, as soon as possible, on the military personnel who served on the Cajatambo
Contra-subversive Military Base, and who belonged to the 77th Armored Infantry Battalion Unit, and regarding military
personnel who served in the DAS Cajatambo during April 1991 (evidence file, volume x, annex 78 to the State’s answering
brief, folio 4975); Note No.2361 S-1.a/1-4/02.32.01 of November 20, 2006, from the Army’s General Personnel Directorate,
advising that the Head of the Central Military Region had communicated that there was no documentation on the 77th
Counter-subversive Base concerning the military personnel who were serving on the Cajatambo Counter-subversive Base in
April 1991, as there was only a Personnel Log which did not indicate who were on the said Base, but merely the personnel
who served in the said Unit on the date mentioned (evidence file, volume x, annex 80 to the State’s answering brief, folio
4985); Note No. 969S-1-a/1-5/02.45.01 of April 30, 2007, issued by the Secretary General of the Ministry of Defense
advising that no information was available on the military personnel who served on the Cajatambo Contra-subversive
71
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