66
DNA testing could be attempted, to which, in December 2008, samples taken from
the skull were sent to the Laboratory of Human Genetics in Spain. 212
181. María Macarena Gelman requested that the Argentine Forensic Anthropology
Team intervene and inspect the bodily remains. She also requested that the samples
taken from the skull be transferred to a laboratory in Cordoba, Argentina, without
prejudice that another sample be tested in Uruguay. At the hearing on March 11,
2009, the court ordered an additional expert opinion by a forensic anthropologist
from the Forensic Anthropology Division of Criminal Investigation at the Legal
Medical Institute of Peru. The Court granted the Argentine Forensic Anthropology
Team permission to be present, but prohibited any type of technical manipulation or
a technical opinion from said team. On March 16, 2009, an expert comparison of the
skull was performed and it resulted in a "positive identification.” 213 However, in
August
2009,
the
genetic
tests
yielded
negative
results.
182. At the time of the present judgment, this matter is under pretrial
investigation, but there has been little progress. No one has been formally accused,
charged, or punished and María Claudia Garcia de Gelman’s whereabouts have not
been determined.
C. The obligation to investigate in the jurisprudence of this Court.
183. This Court has emphasized the importance of the State's duty to investigate
and punish human rights violations, 214 obligation to investigate and, where
appropriate, prosecute and punish, is particularly important given the seriousness of
the crimes committed and the nature of the infringed rights, particularly because the
prohibition of enforced disappearance and its corresponding obligation to investigate
and punish those responsible has reached jus cogens nature. 215
212
Cf. Report No. 794 of the Forensic Anthropology Laboratory of December 11, 2008, evidence,
annex 2, peice 4, pages. 138 to 143.
213
Forensic Anthropological Report of March 17, 2009, requested by the Court of Second Round,
evidence, annex 2, peice 4, page 320.
214
Cf. Case of Velásquez Rodríguez. Merits, supra note 20, paras. 166; Case of Cabrera García and
Montiel Flores supra note 16, para. 215; Case of Gomes Lund et al. (Guerrilha do Araguaia), supra note
16, para. 137.
215
Cf. Case of Goiburú et al., supra note 23, para. 84; Case of Gomes Lund et al. (Guerrilha do
Araguaia), supra note 16, para. 137, and Case of Ibsen Cárdenas and Ibsen Peña, supra note 9, para.
197.
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