of iura novit curia, the Commission shall examine whether or not, in the instant case, the State did violate Articles 5 and 26 of the American Convention.74 1. General considerations on the attribution of responsibility 56. Throughout the work of the Commission and the Court, the contents of the obligations for respect and guarantee have been defined in accordance with Article 1.1 of the Convention. Regarding the obligation of respect, the Court indicated that: “According to Article 1(1), any exercise of public power that violates the rights recognized by the Convention is illegal. Whenever a State organ, official or public entity violates one of those rights, this constitutes a failure of the duty to respect the rights and freedoms set forth in the Convention.”75 As for the obligation of guarantee, the states must prevent, investigate, and punish all violation of rights recognized by the Convention and also ensure the restitution, if possible, of the violated right and, when appropriate, the provision of reparations for the damages caused by the human rights violation. 76 International jurisprudence has recognized the power of international courts to weigh the evidence freely, although it has avoided a rigid rule regarding the amount of proof necessary to support a judgment,77 as it is essential for the jurisdictional body to pay attention to the circumstances of the specific case and to take into account the limits imposed by the respect for legal certainty and procedural balance between the parties.78 57. The Court has also established that the use of circumstantial evidence, indicia, and presumptions may be legitimately considered to substantiate a judgment, “so long as they lead to conclusions consistent with the facts.”79 Regarding this, the Court has pointed out that the complainant, in principle, must bear the burden of proving the facts on which the allegation is based; nevertheless, it has stressed that, contrary to domestic criminal law, in proceedings for human rights violation, the state cannot rely on the defense that the complainant has failed to present evidence, when it is the state that has control over the means to clarify the facts occurring within its territory.80 2. General considerations on Article 26 and the right to health 58. Article 26 of the American Convention establishes the obligation of states parties to ensure the progressive realization of the rights that said statute contains. Although both bodies of the inter-American system81 have The Inter-American Court has established that the inclusion of articles of the American Convention by the IACHR in the merits stage “does not entail a violation of the right to defense [of the State]” in cases where the State has heard the facts that substantiate the alleged violation. See: I/A Court H.R. Case of Furlan and Family v. Argentina. Preliminary Objections, Merits, Reparations, and Costs. Judgment of August 31, 2012. Series C No. 246, para. 50. 75 IACHR. Report No. 11/10, Case 12.488, Merits, Members of the Barrios Family, Venezuela, March 16, 2010, para. 91. See also: I/A Court H.R. Case of Velásquez Rodríguez v. Honduras. Merits. Judgment of July 29, 1988. Series C No. 4, para. 169. 76 I/A Court H.R. Case of Velásquez Rodríguez v. Honduras. Merits. Judgment of July 29, 1988. Series C No. 4, para. 166. 77 I/A Court H.R. Case of Velásquez Rodríguez v. Honduras. Merits. Judgment of July 29, 1988. Series C No. 4, para. 127; Case of the Miguel Castro Castro Penitentiary v. Peru, Merits, Reparations, and Costs. Judgment of November 25, 2006. Series C No. 160, para. 184; Case of Cantoral Huamaní and García Santa Cruz v. Peru. Preliminary Objection, Merits, Reparations, and Costs. Judgment of July 10, 2007. Series C. No. 167, para. 86; Case of Kawas Fernández v. Honduras. Merits, Reparations, and Costs. Judgment of April 3, 2009. Series C No. 196, para. 82. 78 I/A Court H.R. Case of Baena Ricardo et al. v. Panama. Merits, Reparations, and Costs, Judgment of February 2, 2001. Series C No. 72, para. 71; Case of Tiu Tojín v. Guatemala. Merits, Reparations, and Costs. Judgment of November 26, 2008. Series C No. 190, para. 38; Case of Perozo et al. v. Venezuela. Preliminary Objections, Merits, Reparations, and Costs. Judgment of January 28, 2009. Series C No. 195, para. 95. Case of Kawas Fernández v. Honduras. Merits, Reparations, and Costs. Judgment of April 3, 2009. Series C No. 196, para. 82. 79 I/A Court H.R. Case of Velásquez Rodríguez vs. Honduras. Merits. Judgment of July 29, 1988. Series C No. 4, para. 130; Case of Ríos et al. v. Venezuela. Preliminary Objections, Merits, Reparations, and Costs. Judgment of January 28, 2009. Series C No. 194, para. 101; Case of Perozo et al. v. Venezuela. Preliminary Objections, Merits, Reparations, and Costs. Judgment of January 28, 2009. Series C No. 195, para. 112. Case of Kawas Fernández v. Honduras. Merits, Reparations, and Costs. Judgment of April 3, 2009. Series C No. 196, para. 95. 80 I/A Court H.R. Case of Velásquez Rodríguez. Merits, supra note 17, para. 135; Case of Yatama v. Nicaragua. Preliminary Objections, Merits, Reparations, and Costs. Judgment of June 23, 2005. Series C No. 127, para. 134, and the Case of Ríos et al. Preliminary Objections, Merits, Reparations, and Costs, supra note 10, para. 198. 81 See, for example, admissibility reports where the possible violation of Article 26 of the Convention has been admitted: Report 29/01. Case 12.249. Jorge Odir Miranda Cortez et al. El Salvador, March 7, 2001; and Report 70/04. Petition 667/01. Admissibility. Jesús Manuel Naranjo Cárdenas et al. (Pensioners of the Venezuelan Aviation Company VIASA). Venezuela, October 13, 2004. See also the ruling on the merits with respect to Article 26 in Report 38/09. Case 12.670. National Association of Ex-Employees of the Peruvian Social Security Institute et al. v. Peru. March 27, 2009. In the same regard, the Court reasserted said competence in the Case of Acevedo Buendía et al. (“Discharged and Retired Employees of the Comptroller”) v. Peru (Preliminary Objection, Merits, Reparations, and Costs), Judgment of July 1, 2009. 74 14