17
69.
The Court considers it proven that the Pavilion was demolished by the forces of the
Peruvian Navy, as may be concluded from the reports submitted by the experts in the hearing
(supra, paras. 47 and 48), from the deposition made on July 16, 1986 by the President of the
National Correctional Council before the Instructional Judge of the Twenty-First Court of Lima, and
from the fact that many of the dead, according to the autopsies, had been crushed to death. The
majority and minority reports of the Congress (supra para. 43) are consistent in regards to the
disproportionate use of force. These reports are official and are regarded by this Court to be
sufficient proof of that fact.
70.
Also to be taken into consideration is the congressional minority commission report, which
affirmed without objection by the Government, that there was lack of interest in rescuing the
surviving rioters after the demolition, since a few days later four inmates appeared alive and more
could have been alive (supra para. 43).
71.
The Court likewise considers it proven that the identification of the bodies was not
undertaken with the required diligence, since only a few of those bodies recovered during the
days immediately following the end of the conflict were identified. Of the rest, which were
recovered over a span of nine months, certainly a long period, this was not done either although,
according to the statement of the experts (supra paras. 56 and 57), identification could have been
possible by applying certain techniques. This conduct on the part of the Government constitutes a
serious act of negligence.
72.
Based on the preceding, the Court concludes that Víctor Neira-Alegría, Edgar ZentenoEscobar and William Zenteno-Escobar lost their lives due to the effects of the crushing of the
uprising by the forces of the Government and as a consequence of the disproportionate use of
force.
IX
73.
The Court must now determine whether the actions and omissions attributable to the State
constitute violations of the American Convention. It must be pointed out that the Commission, in
its complaint, indicates the violation of Articles 1, 2, 4, 7, 8, and 25, but that, in its closing
arguments, it omits Article 2 and adds Articles 5 and 27.
74.
Article 4(1) of the Convention states that "[n]o one shall be arbitrarily deprived of his life."
The expression "arbitrarily" excludes, as is obvious, the legal proceedings applicable in those
countries that still maintain the death penalty. But, in the present case, the analysis that must be
made has to do with the right of the State to use force, even if this implies depriving people of
their lives to maintain law and order, an issue that currently is not under discussion. There is an
abundance of reflections in philosophy and history as to how the death of individuals in these
circumstances generates no responsibility whatsoever against the State or its officials. Although it
appears from arguments previously expressed in this judgment that those detained in the Blue
Pavilion of the San Juan Bautista Prison were highly dangerous and, in fact armed, it is the
opinion of this Court, those do not constitute sufficient reasons to justify the amount of force used
in this and other prisons where riots had occurred. The incident was understood as a political
confrontation between the Government and the real or alleged terrorists of Sendero Luminoso
(supra para.52), a confrontation which probably led to the demolition of the Pavilion and all of its
consequences; among them the death of inmates who would have eventually surrendered, the
clear negligence in the search for survivors and, later, in the recovery of the bodies.
75.
As this Court has stated in previous cases,