33.
With regard to the first matter, the State argued that the Commission had not examined
the appropriateness and effectiveness of remedies applied in the domestic jurisdiction, either
in the military courts or in the general courts. Thus, according to the State, the Commission
had set aside its usual practice in this area, which was first to determine whether the remedy
is appropriate, and then to find whether it is effective. More specifically, it argued that the
Commission had examined only the question of whether the remedy was effective, without
first having discussed the requirement for a suitable remedy to exist. The State held that the
appropriate remedy to guarantee the right to life of the alleged victims and the right to personal
integrity and access to justice for their families would be the criminal proceedings undertaken
against Vladimiro Montesinos Torres et al., and not, as the Commission maintained, the
criminal cases lodged for the alleged crime of complicity or being an accessory after the fact.
Peru also held that the Commission had based its arguments on a remedy that would not be
appropriate for guaranteeing the rights claimed to have been breached, that is, the process
for alleged criminal complicity after the facts involving the “the handling of victims’ bodies, the
scene of the crimes and the chain of custody of the evidence.”
34.
The Commission asked the Court to deny the preliminary objection because the
question of exhaustion of domestic remedies had been resolved at the right time and
established during the correct procedural stage. The Commission maintained more particularly
that the State “offered no arguments as to whether or not the military criminal process to
investigate the facts of the case was appropriate” and that it had merely made generic
reference during the admissibility stage to the fact that the process was ongoing, which the
Commission considered insufficient. With respect to the ordinary courts, the Commission noted
that the State had emphasized that the process on criminal complicity had been joined on
August 12, 2003, with the process against Vladimiro Montesinos Torres et al., and had asked
at that time for the case to be deemed inadmissible because “it was in an ongoing criminal
proceeding” and “the relevant jurisdiction had not been exhausted.” The Commission added
that it had considered the amount of time elapsed from when the acts had been committed in
April, 1997, until the release of the 2004 report, and emphasized the report’s views on the
minimal progress made in the investigations in the general courts, as well as the fact that the
State had not undertaken the investigation on its own initiative, but only in 2001 after a
complaint had been been lodged, and that seven years after the events of the case, part of
the investigation had been reassigned to the military jurisdiction.
35.
The Commission, responding to the claim that it had prejudged the merits of the case,
pointed out that, based on the information contained in the case file, it had held prima facie
that at the time the Admissibility Report was issued, the State “failed to demonstrate that
effective remedies were available.” In short, it argued that, in keeping with the Commission’s
consistent standard on violation of the right to life and personal integrity, the appropriate
remedy for addressing the situation was investigation and a criminal trial in the common
courts, which should be undertaken voluntarily and conducted with due diligence, but the
Commission found that these features were not present in the ordinary criminal process
pursued in the instant case. The Commission also held that there was unwarranted delay and
reiterated its statement in the Admissibility Report concerning the application to this case of
the objections provided in Article 46(2)(a) and (c) of the Convention.
36.
The representatives argued that the position expressed by the State more closely
resembled a “grievance or difference of opinion regarding the actions by the Commission” and
that in fact the decision on admissibility was well founded. They believed that the State was
mistaken in its interpretation of the Admissibility Report for two reasons: (i) it was not true
that the Commission in its report had examined only the trial for the crime of complicity, and
not the trial for extrajudicial executions; what the Commission had done instead was to use
the facts investigated for the complicity trial to indicate a lack of diligence in the investigation