PARTIALLY DISSENTING OPINION OF
JUDGE DE ROUX RENGIFO
Upon carrying out an evidentiary assessment related to Article 5 of the American
Convention, the Court has concluded
[i]n this case, it has not been proven Nolberto Durand Ugarte and Gabriel Pablo Ugarte
Rivera had been subjected to mistreatment or that their dignity had been damaged by
Peruvian authorities while they were detained in El Fronton penitentiary [...] It is evident
that there was a disproportionate use of force to subdue the riots. However, from this
disproportion it can not be inferred that authorities used cruel, inhumane, or degrading
treatment; concepts that their own juridical content, and that they cannot be necessarily
and automatically inferred from an arbitrary deprivation of life, even under aggravating
circumstances such as the current ones.
I regret to withdraw myself from the transcribed conclusion. In its recent
jurisprudence on evidence appraisal (including the one having an effect on the
judgment related to this opinion), this Court has stated the following three criteria:
1) an international court of human rights has a significant scope of flexibility when
assessing evidence, according to logic rules and based on experience; 2)
international courts can largely base their decisions on circumstantial or indirect
evidence, on presumptions as long as these means can give rise to solid conclusions
on the facts; 3) in processes of violations of human rights the State defense can not
be grounded on the failure of the plaintiff to gather evidence because, very
frequently, these can not be obtained without the cooperation of the State itself,
which precisely has the availability of the necessary resources to clarify the facts that
have taken place in its territory. I consider that, if these criteria are strictly and
rigorously applied to evidentiary appraisal in the present case, the conclusion about
the matter at hand will differ from that of the Court.
The latter is right when stating based only the disproportion of means used by the
State to subdue the riots in El Frontón prison, it cannot be inferred that there were
cruel, inhumane or degrading treatment against Durand Ugarte and Ugarte Rivera.
Nevertheless, in this case we not only know that there was disproportionate use of
means, but we also know, with some precision, what kind of force were used by the
State against inmates and in what way and sequence they were used, and we know
or can reasonably infer what kind of effects, besides death, this force had on these
people.
Upon analyzing the circumstances in this case, it is probable that between the time
State agents attacked inmates as stated by the gathered evidence and the time of
death of each of the inmates, almost everybody, if not all, bore moments, if not
hours, of the most serious and severe anguish.
Certainly, the overwhelming
majority of inmates in El Frontón who lost their lives during the events in this case,
were not only limited to confirm, before dying, that they were involved in a highlyrisky situation, as the one the related to a typical penitentiary mutiny. They were
also aware that they were deadly and mercilessly attacked without any possibility of
surrender or escape. Those were able to escape, and were wounded in the debris of
the demolished Blue Pavilion, for some hours or days, the situation was certainly
more serious. Hypothetically, the victims’ anguish and anxiety were indeed critical.
The value of indirect evidence, in general, and circumstantial evidence, in particular,
is the result of a probability judgment. It is possible that Durand Ugarte and Ugarte
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