6
as an existing remedy that has not been exhausted by the alleged victims. On the
other hand, during the processing of the case before the Commission, the State
alleged the lack of exhaustion of domestic remedies by referring, specifically, to a
procedure of habeas corpus and a criminal investigation conducted by the Office of
the Fifth Provincial Prosecutor of Callao.7
17.
In this way, when the Inter-American Commission adopted the Report on
Admissibility and Merits Nº 85/07 on October 16, 2007, it noted that the "
petitioners have adopted an active role since the allegedly forced disappearance
of the young Kenneth Anzualdo, by taking judicial actions as well as other
private actions”, which was described. It considered that the injured party “tried to
file all the available remedies” in order to shed light on the alleged forced
disappearance of Mr. Anzualdo Castro and that “after more than thirteen years" [of
such incident], the State “ha[d] not tried and punished the responsible.” It deemed
that the “application of the exceptions to the rule of exhaustion of domestic remedies
provided in Article 46(2) of the Convention is closely linked to the determination of
possible violations of certain rights enshrined therein, such as the guarantee to have
access to justice […]; it pointed out that the "causes and effects that have impeded
the exhaustion of the domestic remedies in this case" shall be analyzed in the merits
and, therefore, it considered that "there were sufficient evidence to exonerate the
petitioner from the requirement of prior exhaustion of domestic remedies by
application of Article 46(2)(b) and (c) of the American Convention.”8
18.
As it spring from the body of evidence (infra para. 127), prior to the
investigation mentioned by the State, several investigations have been conducted at
the domestic level in relation to the alleged forced disappearance of Mr. Anzualdo
Castro. In this sense, two different phases can be distinguished: on the one hand, the
first investigations opened in 1993, and on the other hand, the other investigations
conducted as of the year 2002. In the first phase, between December 1993 and
February 1994, the next-of-kin of Mr. Anzualdo filed a first criminal complaint with
the prosecution office and another complaint with the Investigation Department of
Disappeared people of the National Police of Peru, a complaint with the Office of the
Special Prosecutor of Public Defense and Human Rights, and a writ of habeas corpus.
In the second phase, as of the year 2002, the next-of-kin filed a request to reopen
the investigations before the Office of the Special Provincial Prosecutor on Forced
Disappearances, Extrajudicial Executions and Clandestine Graves; they were involved
7
According to what spring from the case file of the processing before the Commission, the petition
was received on May 27, 1994 and on September 27 that same year, the pertinent copy of the petition
was transmitted to the State and the State, in turn, was requested to forward any evidence that would
allow assessing whether the remedies have been exhausted at the domestic level. In its response,
presented in November 1994, Peru forwarded a certified copy of the case- file of the habeas corpus
proceeding instituted to determine the whereabouts of Mr. Anzualdo Castro. In an official letter
appendixed to that communication, the Commander-in-Chief of the Navy indicated to the Ministry of
Defense that "the petitioner has not exhausted all the remedies available at the domestic level.” In
another communication, it forwarded a report of December 23, 1997 from the National Human Rights
Council, in which the State mentioned a criminal investigation instituted before the Office of the Fifth
Provincial Prosecutor of Callao and held that “the complaint of the petitioner was filed, registered and
communicated to the Peruvian State on [September] 27, 1994 when there were still remedies available at
the domestic level", since the complaint against the decision that determined to provisionally close the
investigation was submitted on October 27, 1994, “therefore, the petition before the Commission must be
declared to be inadmissible.” The Court notes that at the moment of the filing of the petition before the
Commission, the first of the two remedies has already been declared inadmissible and, regarding the
second one, five days after, the investigation was provisionally closed. See Appendix 1 of the application:
IACHR, Report on Admissibility and Merits Nº 85/07, case 11.385, Kenneth Ney Anzualdo Castro of
October 16, 2007, para. 47-49 and 52-64 and Appendix 2 of the application (record of evidence, volume
II, pages 76, 137 and 183).
8
Appendix 1 of the application: IACHR, Report on Admissibility and Merits Nº 85/07, case 11.385,
Kenneth Ney Anzualdo Castro of October 16, 2007, paras. 60 and 63.
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