25
69.
This Court has stated on other occasions that
[u]ndoubtedly, the State has the right and duty to guarantee its own security. It is also
out of discussion that every society suffers from infraction upon its legal order. However,
despite the seriousness of certain actions by inmates and their responsibility for some
felonies, it is not admissible that power can be exerted in such a limitless way or that
the State can use any proceedings to reach its objectives, without respecting law and
morality. No State activity can be grounded on disregarding human dignity.36
70.
In spite of accepting the possible detainees' responsibility for committing
serious crimes besides and being armed, while in the Blue Pavilion of El Frontón
prison, these facts
are far from constituting [...] sufficient elements to justify the amount of force used in
this and in other rioted prisons and that it was understood like a political clash between
the Government and Sendero Luminoso true or alleged terrorists [...] which probably led
to Pavilion demolition, with all of its consequences, including the deaths of detainees
who eventually had ended up surrendering and a clear disregard to look for survivors
37
and afterwards rescuing corpses.
71.
Based on the circumstances that surrounded the riots’ subduing at El Frontón,
mainly regarding the disproportionate use of force by Peruvian Navy and the fact
that for 14 years the whereabouts of Nolberto Ugarte and Gabriel Pablo Ugarte
Rivera has been unknown, it is possible to conclude that their lives were arbitrarily
deprived by Peruvian authorities in violation of Article 4 of the Convention. 38
72.
As a consequence, the Court concludes that the State violated, to the
detriment of Nolberto Durand Ugarte and Gabriel Ugarte Rivera, Article 4(1) of the
Convention.
XI
ARTICLE 5(2)
RIGHT TO HUMANE TREATMENT
73.
Regarding the violation of Article 5(2) of the Convention, the Commission
stated that:
a)
Peru is responsible for the forced disappearance of Nolberto Durand
Ugarte and Gabriel Pablo Ugarte Rivera and, in order to establish grounds for
their argument, it referred to what it was stated, inter alia, in the InterAmerican Convention on Forced Disappearance of People, in the Statement on
Protection of all People against Forced Disappearances approved by the UN
General Assembly and the UN Task Force on Forced or Involuntary
Disappearances;
36
cf. Godínez Cruz Case, supra note 9, para.162; and Velázquez Rodríguez Case, supra note 9,
para. 154.
37
38
Neira Alegría et al Case, supra note 12. para.74.
cf. Castillo Páez Case, supra note 11 para. 72; Blake Case, Preliminary Objections. Judgment of
July 2, 1996. Series C No. 27, para. 39; Neira Alegría et al Case; supra note 12, para. 76; and Caballero
Delgado and Santana Case, supra note 8, para. 56.