49
the Transitional Criminal Chamber of the Supreme Court of Justice of Peru (supra paras. 131
and 132). The judgment of February 9, 2012, gave a detailed account of the legally proven facts
and concluded that the fifteen victims “were murdered” inside the “Misteriosa” or “Vallarón”
mine, that “almost immediately the mine where the victims had been killed was blown up with
one or two dynamite charges in order to eliminate the evidence,” that “the dynamite explosion
destroyed most of the victims’ bodies,” and that “in the judicial inspection process […] only
human remains were found.” 174 The Court appreciates the efforts of the State in issuing these
domestic judgments and considers that they are important landmarks in the State’s actions.
158. On the other hand, the dispute between the parties continues regarding the events that
occurred after July 4, 1991, as well as on whether the alleged forced disappearance of the fifteen
victims actually took place and whether it is attributable to the State. In this regard, the State’s
defense is based mainly on the fact that there are clear elements to determine that what
happened to the victims was an extrajudicial execution and requested that the principle of
subsidiarity and complementarity be applied in the instant case, since a final domestic judicial
decision has been issued which is res judicata and binding.
159. The Court recalls the principle of subsidiarity or complementarity that permeates the
inter-American system of human rights which, as stated in the Preamble to the American
Convention, “reinforce[es] or complement[s] the protection provided by the domestic law of the
American States.” Thus, the State “is the principal guarantor of human rights and, consequently,
if a violation of said rights occurs, the State must resolve the issue in the domestic system and,
if applicable, redress the victim before resorting to international forums such as the interAmerican system of protection of human rights; since it derives from the ancillary nature of the
international system in relation to domestic systems for the protection of human rights.” 175 The
subsidiary nature of the international jurisdiction means that the system of protection established
by the American Convention on Human Rights is not a substitute for the national jurisdictions,
but rather it complements them.
160. In this regard, the Court applied the principle of subsidiarity or complementarity in the
case of Tarazona Arrieta et al. after making a substantive analysis of the investigations carried
out in this case and concluding that these were effective. 176 Likewise, in the Case of J. it applied
this principle by stating that it was up to the State, within the context of its obligation to
investigate, 177 to determine the specific legal classification of the alleged mistreatment suffered
by Ms. J, but it did so because it had already conducted a substantive analysis of the facts in
which it determined that they constituted a violation of Article 5(2) of the Convention and that
Peru had not conducted any investigation in this regard. 178 In short, in both cases, it was not a
preliminary ruling on the Court’s jurisdiction to hear a case, but rather a conclusion reached by
this Court once it had conducted an analysis of the merits in those cases. In the instant case,
based on the arguments presented by the parties and the Commission, and taking into account
the aspects that remain in dispute, the Court does not find elements to depart from the
precedents indicated. Therefore, it will analyze the merits of this case and, subsequently, will
consider whether it is appropriate to apply the principle of subsidiarity or complementarity to it.
Cf. Judgment of the National Criminal Chamber of February 9, 2012 (evidence file, folios 4512 and 4513).
Case of Acevedo Jaramillo et al. v. Peru. Interpretation of Judgment. Preliminary objections, merits, reparations
and costs. Judgment of November 24, 2006. Series C No. 157, para. 66, and Case of Tarazona Arrieta et al. v. Peru,
supra, para. 137.
176
Cf. Tarazona Arrieta et al. v. Peru, supra, paras. 135 to 141. The Court found that “[…] evidence in the record
shows that agencies responsible for the administration of criminal justice in Peru effectively investigated, tried and
convicted the accused and provided reparations to the next of kin of Zulema Tarazona Arrieta and Norma Pérez Chávez,
as well as Luis Bejarano Laura.”
177
Cf. Case of J. v. Peru. Interpretation of the Judgment. Preliminary objection, merits, reparations and costs.
Judgment of November 20, 2014. Series C No. 291, para. 20.
178
Cf. Case of J. v. Peru, supra, paras. 353 and 366.
174
175