74
b)
through both de facto and legal mechanisms, Perú obstructed the
investigations that were initiated to determine the legality of the victims'
detentions and to investigate the facts and identify those responsible for
them. As part of those impunity structures, self-amnesty laws were enacted,
which precluded the investigation, persecution, capture, prosecution and
punishment of those responsible for the facts denounced;
c)
as the Court itself has held in the Case of the Pueblo Bello Massacre, in cases
involving extra-legal executions, the State must conduct, ex officio and
without delay, a serious, impartial and effective investigation to guarantee the
infringed right;
d)
although the victims' next of kin filed three petitions for habeas corpus
immediately after the detention of the victims, the proceedings that were
opened did not respect the judicial guarantees established in Article 8(1) of
the Convention, nor were they effective under Articles 7(6) and 25(1) of said
treaty, due to the non-observance of the due diligence duty by the
intervening authorities. The judges hearing in the respective habeas corpus
proceedings distorted the surveillance role that should be played by the
Judiciary in a State in which the rule of law prevails, and failed in duly
grounding their decisions. Therefore, the State is responsible for failing to
guarantee the victims' next of kin right to an effective recourse substantiated
by independent and impartial bodies, and, consequently, for violating the
rights enshrined in Articles 7(6), 8(1) and 25(1) of the Convention, to the
detriment of the alleged victims and their next of kin;
e)
criminal comparative law and international criminal law have developed
several concepts regarding the different ways of participating in the
commission of a crime, which shed light on how to interpret the compliance
with the duty to investigate, prosecute and punish all forms of participation in
the commission of crimes. The State has neither investigated nor submitted
all persons involved in the commission, planning, instigation and concealment
of the facts to domestic judicial authorities, nor those who ordered the
crimes, facilitated them through cooperation or were accomplices. Those who,
by virtue of a subordination relationship, knew or should have known that
their subordinates were going to commit or had committed these crimes, and
took no measures to stop them or punish them have not been tried either.
The Court could ease the work of justice regarding the events at La Cantuta
by further developing the degrees of criminal participation involved in the
duty to investigate and punish all material and intellectual perpetrators in a
case in which the state apparatus was used and arranged to commit
egregious human rights violations;
f)
the State has not met the required due diligence standard in the criminal
investigations of the instant case. Besides an unjustified delay in the accurate
elucidation of the facts, the production of crucial evidence has also been
subject to delay and negligence, as is true for the DNA analysis of the bone
remains that were found during the early 90's;
g)
two reasons justify the lack of competence of the CSJM (Supreme Council of
Military Justice) in the prosecution and punishment of perpetrators and
instigators: firstly, the facts being tried were not "military crimes or offenses"
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