24
D. Delimitation of the dispute
71.
During the public hearing and in its final written arguments, Peru argued that the alleged
failure of the State to deliver the results of the DNA tests and the forensic work carried out since
2009 are not related to the central facts of the present dispute, and could not give rise to the
State’s international responsibility, since both the Commission and the representatives identified
them not as an act in violation of the Convention, but as a proposed reparation measure in which
the State should adopt a series of actions aimed at the final identification of the skeletal remains.
72.
The Court considers that the State’s arguments regarding the factual framework of the
case are time-barred. Nevertheless, the Court notes that the State seeks to exclude from the
legal analysis of the case a part of facts that have been argued as constituting the alleged forced
disappearance of the victims. In this regard, the Court noted that in paragraphs 169, 170, 187
and 251 of the Report on Admissibility and Merits of July 21, 2011, the Commission referred to
the following aspects in its analysis on the merits of the case: the forensic procedures carried out
in 2010 consisting of the exhumation of remains found inside the “Misteriosa” mine; the forensic
reports made in this regard; the taking of blood and saliva samples from the victims’ next of kin
for DNA testing, and the failure to deliver the results of the DNA tests in 2010. It is clear then
that these elements are part of the factual framework of the case and, therefore, they will be
considered by the Court.
VII
EVIDENCE
A. Documentary, testimonial and expert evidence
73.
The Court received various documents submitted as evidence by the Commission and the
parties, attached to their main briefs (supra paras. 4, 7 and 8). Likewise, it received from the State
several documents requested as helpful evidence. It also received the statements rendered by
affidavit 49 of Gabriella Citroni and Fredy Armando Peccerelli Monterroso, expert witnesses
proposed by the Commission, as well as the statements of the expert witnesses Ronald Alex
Gamarra Herrera, Miryam Rebeca Rivera Holguín, Alejandro Valencia Villa and Jaime Mario Urrutia
Ceruti, and of the alleged victims Zósimo Hilario Quispe, Marcelo Hilario Quispe, Gregorio Hilario
Quispe, Víctor Carhuapoma de la Cruz, Abilio Hilario Quispe and Marcelina Guillen Riveros, all of
them proposed by the representatives. Likewise, it received the testimony of the witness Rurik
Jurqi Medina Tapia, proposed by the State. Regarding the evidence given at the public hearing,
the Court heard the testimony of Zenón Cirilo Osnayo Tunque and the expert opinion of José Pablo
Baraybar do Carmo, proposed by the representatives, as well as the testimony of Luis Alberto
Rueda Curimania, a witness proposed by the State. During the public hearing, the expert witness
José Pablo Baraybar do Carmo presented his written expert report. Finally, the Court received
documents presented by the State and the representatives attached to their respective final
written arguments.
B. Admission of the evidence
49
On January 12, 2015, the representatives withdrew the statement of Marino Huamaní Vergara. On January 5,
2015, the President of the Court approved the State’s request to substitute the statement to be made at the public
hearing with and affidavit rendered by the witness Rurik Jurqi Medina Tapia, who was “unable to appear as a witness
[at the hearing] in the city of San José, Costa Rica” for professional reasons.