98
b)
c)
d)
of the evidence included in the case file, the Court has verified that the
nautopsy protocol that the intervener called “N.N. Protocol 2007,
(male) died burned”, actually corresponds to the autopsy protocol of
Mr. Mario Francisco Aguilar Vega, which is Nº 2007. Said document
states that the diagnosis was “due to: bullets from firearms/
Carbonization”. Said male is included within the 41 deceased identified
and listed both by the Commission and the intervener. Likewise, from
the testimonial and documentary evidence provided it could be
concluded that the body of this man was never handed over to his
next of kin;
regarding that argued by the intervener, in the sense that there were
43 “unidentified prisoners”, it is necessary to calirfy that the evidence
on which the intervener based their addition to her list of deceased are
statements of other surviving inmates, in which they recount having
seen inmates die, without identifying them. In this sense, the Court
notes that these recounts could refer to the way in which the people
who are already identified died; and
it can not be concluded from the evidence included in the case file that
there are currently bodies of victims that have not been identified.
251. Therefore, there is doubt regarding compliance by the State of the duty to
identify all the inmates that died and hand over the remains to their next of kin, and
it has been proven that in the case of the inmate Mario Francisco Aguilar Vega they
were not handed over. With regard to the remains of the latter the Tribunal will
decide the corresponding measure in the chapter on Reparations (infra para. 442).
Likewise, this Tribuna considers that the State must adopt all the necessary
measures to ensure that all inmates that died as a consequence of the attack be
identified and their remains be handed over to their next of kin, pursuant with its
domestic legislation. If the other inmates that died are identified, their next of kin
may present the corresponding claims within the domestic courts.
252. According to the acknowledgment of partial responsibility made by the State
and the considerations of the previous paragraphs, Peru is responsible for the
violation of the right to life enshrined in Article 4 of the American Convention, in
relation to Article 1(1) of the same, in detriment of the 41 dead inmates that have
been identified, whose names have been included in Appendix 1 of victims of the
present Judgment that for these effects forms part of the same.
*
*
*
Obligation to effectively investigate the facts
253. The Court has established that in order to effectively guarantee the rights to
life and integrity it is necessary to comply with the obligation to investigate the
infringement of the same, which derives from Article 1(1) of the Convention along
with the substative right that must be protected or guaranteed.140
140
Cfr. Case of Servellón García et al., supra note 3, para. 119; Case of Ximenes Lopes, supra note
3, para. 147; Case of the Ituango Massacres, supra note 7, para. 297; and Case of Baldeón García, supra
note 21, para. 92.