363. The representatives therefore asserted that the State had not acted with due diligence
to secure evidence that was essential for shedding light on the facts, but to the contrary, had
taken a number of actions whose result was to ensure that such evidence would not be
available—evidence that cannot be recovered afterwards. Finally, the representatives
contended that, alongside its forensic errors, the State had also committed other omissions
that incurred international responsibility.
364. The State pointed out that “it has not denied that the [initial] procedures as conducted
may have contained omissions or shortcomings, but this cannot be interpreted as an attempt
by this means to cover up the commission of extrajudicial executions.” The State asserted that
“regardless of how many errors or omissions may have been committed in 1997, these early
procedures did provide sufficient grounds to lead public authorities and officers to carry out
due investigations in 2001.”
365. The State then proceeded to analyze the actions undertaken by the public prosecutor
in response to complaints lodged in 2001 and concluded, “based on the arguments given, it is
clear that the office of the public prosecutor took action from the time the complaints were
received in 2001, fulfilling its constitutionally mandated role, and was diligent in the procedural
measures it ordered and those it conducted itself. The State therefore held that the public
prosecutor had responded to the complaints filed of alleged extrajudicial executions and
proceeded immediately with measures to bring about investigation of the facts by police
authorities. It maintained that the bodies had been exhumed and identified as a consequence
of the launch of the preliminary investigation. The State also noted that when the complaints
were made public in 2001, the procedures undertaken by the Forensic Institute, as an auxiliary
body to the office of the public prosecutor, received “highly favorable assessments both by
expert witness Fondebrider and by expert witness Cartagena in the public hearing.”
Considerations of the Court
366. In the instant case, the actions by the Peruvian authorities and the words of the State
itself in the process before this Court tend to confirm that omissions and errors were committed
in the initial procedures and in the first measures to secure evidence. Indeed, the Forensic
Institute was ordered to undertake expert analysis in 2001 when the complaints of extrajudicial
executions were lodged, specifically because of clearly demonstrated omissions in the
autopsies and shortcomings in determining the causes of death (supra para. 175), as well as
the failure to identify most of the bodies (supra para. 172). The State maintains, however,
that these errors were corrected when the criminal investigation was launched (supra para.
79).
367. The Court has previously held that the management of the crime scene and the handling
of bodies must include, as a minimum, the procedures essential for preserving evidence that
may contribute to the success of the investigation.433 The Court cautions that even in a
situation of armed conflict, international humanitarian law includes obligations of due diligence
concerning the correct and adequate removal of corpses and the efforts that should be made
to identify and to bury them in order to facilitate their subsequent identification. 434
Cf. Case of González et al. (“Cotton Field”) v. Mexico. Preliminary Objection, Merits, Reparations and Costs.
Judgment of November 16, 2009. Series C No. 205, para. 301, and Case of Rodríguez Vera et al. (the Disappeared
from the Palace of Justice) v. Colombia, supra, para. 489.
433
434
496.
Cf. Case of Rodríguez Vera et al. (the Disappeared from the Palace of Justice) v. Colombia, supra, para.