110
whoever appears as responsible for them.152 The obligation to provide a satisfactory
and convincing explanation of what occurred and disprove the allegations regarding
its responsibility, through adequate evidentiary elements falls upon the State.153
274. In what refers to peoples deprived of their freedom, the Article 5(2) itself of
the Convention states that they will be treated with the due respect to the inherent
dignity of the human person. Pursuant to Article 27(2) of the Convention this right
forms part of the non-revocable nucleus that is not susceptible of suspension in
cases of war, public danger, or other threats to the independence or security of the
States Parties.154
275. Below, the Tribunal will analyze the consequences of the facts acknowledged
by the State that occurred from May 6 to 9, 1992, and of the facts that happened
after that date and that the Court has considered as proven, in what refers to the
humane treatment of the inmates and their next of kin. When it corresponds, the
Tribunal will specify the particular effects of the events regarding the female inmates
in general and the pregnant inmates.
276. Similarly, with regard to the mentioned aspects specific to violence against
women, this Court will apply Article 5 of the American Convention and will set its
scope, taking into consideration as a reference of interpretation the relevant
stipulations of the Inter-American Convention to Prevent, Punish, and Eradicate
Violence Against Women, ratified by Peru on June 4, 1996, and the Convention on
the Elimination of all Forms of Discrimination against Women, ratified by Peru on
September 13, 1982, in force at the time of the facts, since these instruments
complement the international corpus juris in matters of protection of women’s right
to humane treatment, of which the American Convention forms part.155
A)
REGARDING THE INMATES
1)
Violations to the right to humane treatment of inmates as a
consequence of “Operative Transfer 1”
277. The violations to the right to personal integrity of the inmates as a
consequence of the so-called “Operative Transfer 1” are framed within the
considerations made by the Tribunal in the chapter on the violation of Article 4 (Right
to Life) of the Convention, in what refers to the illegitimate use of force, the
152
Cfr. Case of Baldeón García, supra note 21, para. 120; and Case of the “Street Children”
(Villagrán Morales et al.). Judgment of November 19, 1999. Series C No. 63, para. 170. In the same
sense, cfr. Eur.C.H.R., Yavuz v. Turkey, Judgment of 10 January 2006, App. No. 67137/01, para. 38;
Eur.C.H.R., Aksoy v. Turkey, Judgment of 18 December 1996, App. No. 100/1995/606/694, paras. 61 y
62; y Eur.C.H.R., Tomasi v. France, Judgment of 27 August 1992, Series A no. 241-A, paras. 108-111.
153
Cfr. Case of Baldeón García, supra note 21, para. 120; and Case of Juan Humberto Sánchez,
supra note 138, para. 111.
154
Cfr. Case of Montero Aranguren et al. (Detention Center of Catia), supra note 128, para. 85; and
Case of the Pueblo Bello Massacre, supra note 7, para. 119
155
Cfr. Case of the Gómez Paquiyauri Brothers, supra note 21, para. 166; Case of the “Juvenile
Reeducation Institute”, supra note 127, para. 172; Advisory Opinion OC-18/03 of September 17, 2003.
Series A No. 118, para. 120; and Case of the “Street Children” (Villagrán Morales et al.), supra note 152,
para. 194.