of planimetric work did not indicate any real progress in the investigation of the facts.
In addition, they asserted that the State had not provided reasoning that was sound
or sufficiently scientifically grounded to justify the need to exhume the body and carry
out possible additional examinations of the victim’s remains. Regarding this, they
stated that considering that the murder of Gerardo Vargas Areco had taken place 23
years ago, the State must provide solid and scientifically valid reasoning to justify the
need for those examinations. Additionally, they felt it important to call attention to the
deep emotional impact that this measure could have on the Vargas Areco family. For
this reason, they argued that should the exhumation take place, it must be ordered in
the context of an efficient and effective investigation to identify those responsible, and
that it is crucial for the State to adopt measures to mitigate the psychological impact
that the exhumation would have on Gerardo Vargas Areco’s family members. Finally,
they recalled that the State has an obligation to "punish those responsible for all the
violations committed in this case," including, "in addition to the torture[,] the
extrajudicial execution," a violation that the State failed to mention.
8.
The Commission appreciated that the State had opened a case file for
investigating the alleged acts of torture in this case. However, it indicated that "the
case was opened almost a year and a half ago, and the investigation does not appear
to have made any substantial progress," noting specifically that "during the entire first
year, activity in the case file is limited to requesting copies of court and military files
and the assignation of Public Prosecutor personnel." Likewise, the Commission argued
that the steps taken in the investigation "did not indicate that all efforts are being
made to comply with this obligation," emphasizing a lack of follow-up regarding the
"inspection that was thwarted because it was not possible to enter the military
facility." In addition, the Commission expressed its concern over what an exhumation
would mean for Gerardo Vargas Areco’s family members and stated that the measure
must be carried out "as part of a clear line of investigation oriented toward the search
for specific evidentiary material, implemented with adequate technical and human
resources, and guaranteeing the due participation and attendance of the victims."
Finally, the Commission indicated that "the State did not address the investigation of
the facts regarding the death of the victim," and in this sense, questioned "the
reasons for which the State cannot proceed to investigate the responsibility of
individuals different from the ones who have already been processed [with] regard to
these facts."
9.
The Court appreciates the efforts made by the State that have allowed for the
opening of a criminal case into alleged facts of torture, as it is crucial for the State to
adopt all measures in order to carry out, in a diligent and effective manner,
investigations aimed at identifying, prosecuting, and, where appropriate, punishing
those responsible for the alleged acts of torture to which the child Gerardo Vargas
Areco was subjected.6 In this sense, the Court's attention is drawn to the fact that
more than a year and a half after ordering establishment of the Public Prosecutor
assigned to the 2nd Infantry Division of the Army in the city of Villarrica, the only
information available indicates that this could not be carried out on January 28, 2011,
"as it was not authorized by the Division Commander." After this fact, the Court does
not have information that would allow it to conclude that this was effectively carried
out.
6
Case of Vargas Areco v. Paraguay. Monitoring Compliance with Judgment. Order of the InterAmerican Court of Human Rights of November 24, 2010, twenty-second considering paragraph.
4