24
1.
Every person has the right to have his life respected. This right
shall be protected by law and, in general, from the moment of
conception. No one shall be arbitrarily deprived of his life.
65.
Regarding the State' argument on the burden of proof, this Court has said
that "in proceedings on violations of human rights, the defense of the State can not
lean on the plaintiff impossibility to gather evidence that, in many cases, can not be
obtained without the cooperation of the State" 34 and, in particular has stated "the
State has the control of the means to clarify the facts that took place in its
territory". 35 In that sense, the Court considers that in this case, it is not the InterAmerican Commission' responsibility to prove the whereabouts of Durand Ugarte and
Ugarte Rivera, because penitentiaries and investigations were under the exclusive
control of the State. As a consequence, the burden of proof falls upon the State.
66.
According to the proven facts, Durand Ugarte and Ugarte Rivera were
detained by charges of terrorism in the Blue Pavilion at El Frontón penitentiary
center, on June 18, 1986 (supra para. 59. f.).
67.
To investigate the facts related to the uprisings subduing, the Congress of the
Republic of Peru designated an Investigating Commission to carry out the task and
that submitted two reports one by majority, another by minority. In the conclusion of
the report by majority, in paragraph 14, it is stated that "based on the results it is
concluded; however, that there was a disproportionate use of weapons. Final
demolition after surrendering occurred at 14:30 on the 19th , would not have any
logic explanation and consequently would have been unjustified". Similarly, the
report by minority stated in the section related to some previous details, that
4. [i]t is proven that the government when not fulfilling its obligation to protect human
life, gave orders which brought about the consequences of an unjustified toll.
a. the decision to subdue the riots through military force, in the most decisive and
peremptory period, meant to seriously and unnecessarily risk the life of hostages and
inmates [and]
b. [m]ilitary force used was disproportionate in relation to the existing danger and the
different implemented ways to attack did not reveal any precaution to reduce the human
costs of the crushing.
68.
Based on the above and in compliance with Court witness and expert
statements, it has been proven that the Blue Pavilion was demolished by the
Peruvian Navy forces. They resorted to a disproportionate use of force in relation to
the supposedly danger that riot represented (supra para. 59. j), said situation
caused the deaths of many of the detainees by crushing, according to the
corresponding autopsies. Likewise, it was possible to determine as stated in the
Congress report by minority that there was no interest by the corresponding
authorities to rescue . the detainees who were alive after the demolition. Besides,
there was a lack of arrangements to identify the corpses taking into consideration
that only a few of them were identified in the following days after the conflict was
concluded, and the corpses recovering process lasted around nine months.
34
cf. Neira Alegría et al Case, supra note 12 para. 65; Gangaram Panday Case, supra note, 10
para. 49; Godínez Cruz Case, supra note 9, para.141; and Velázquez Rodríguez Case, supra note, 9
para.135.
35
cf. Neira Alegría et al Case, supra note 12, para. 65; Godínez Cruz, supra note 9, para. 142; and
Velázquez Rodríguez Case, supra note 9. para. 136.