22
imposed by respect for legal certainty and the procedural equality of the parties.58 The
Court cannot ignore the special gravity of finding that a State Party to the Convention has
carried out or tolerated in its territory practices such as those referred to in the instant case.
Thus, the Court must apply a standard of proof that takes this factor into account and,
notwithstanding this, is capable of establishing the truth of the alleged facts convincingly.59
87.
With respect to the controversy over the attribution of responsibility to the State in
relation to the rights examined in this chapter, the Court observes that it is not incumbent
on it to examine hypotheses relating to authorship, which is the responsibility of the
domestic criminal courts, but rather to assess the acts or omissions of State agents (supra
para. 79). In the instant case, this examination will consider, in particular, the findings of
official institutions as they relate to the facts of this case, according to the evidence
submitted by the parties.
88.
The State has questioned the conclusions of the Peruvian CVR Report with regards to
the responsibility of the Rodrigo Franco Commando for the execution of Mr. CantoralHuamaní and Ms. García-Santa Cruz.
89.
In this matter, the Court underscores, first, that the CVR is an official agency created
by the State that produced its report in the course of a specific mandate entrusted to it by
the State itself. Indeed, the President of the Republic, by Supreme Decree No. 065-2001PCM of July 4, 2001, modified by Supreme Decree No. 101-2001-PCM, created the CVR to
clarify the process, the facts, and the responsibilities of the terrorist violence and the human
rights violations that occurred between May 1980 and November 2000 that could be
attributed to both terrorist organizations and State agents, and also to propose initiatives to
consolidate peace and harmony among Peruvians. The Commission issued its Final Report
on August 27, 2003.60
90.
Second, Article 3 of Decree No. 065-2001-PCM, which regulated the activities of the
CVR, established explicitly that this Commission “does not have jurisdictional authority;
consequently, it does not substitute the functions of the Judiciary and the Attorney
General’s Office.” In this understanding, in the chapter of the document provided by the
State to these proceedings entitled “The Rodrigo Franco Commando,”61 the CVR
recommended to the Attorney General’s Office, inter alia, that it should “file criminal
charges” against four persons for the crimes of the aggravated homicide of Saúl CantoralHuamaní and Consuelo García-Santa Cruz, and another person.
91.
Third, the Court observes that the Final Report of the CVR was presented to the
different powers of the State which acknowledged its conclusions and recommendations and
acted accordingly, adopting policies that reflect the significance accorded to this institutional
document. Indeed, according to the evidence provided by the State in this procedure:
(a)
58
The Congress of the Republic enacted Law 28,592, whose objective was “to
establish the Normative Framework of the Integral Reparations Plan (PIR) […] in
Cf. Case of Velásquez-Rodríguez v. Honduars, supra note 54, para. 127; likewise, cf. Case of the Miguel
Castro-Castro Prison v. Peru, supra note 6 para. 184; Case of Almonacid-Arellano et al. v. Chile, supra note 13,
para. 69; and Case of Servellón-García et al. v. Honduras, supra note 13, para. 35.
59
Cf. Case of Velásquez-Rodríguez v. Honduras, supra note 54, para. 129.
60
Cf. Case of the Miguel Castro-Castro Priso v. Peru, supra note 6, para. 197.3; and Case of Baldeón-García
v. Peru, supra note 6, paras. 72(1) and 72(2).
61
Cf. document entitled “the Rodrigo Franco Commando” of August 2003, signed by Javier Ciurlizza
Contreras, Executive Secretary of the CVR, and provided by the State as helpful evidence (file of preliminary
exception, merits, reparations and costs, page 815).
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