59
integrity, recognized in Articles 5(1) and 5(2) of the American Convention, in relation to Article
1(1) thereof, to the detriment of the fifteen victims indicated above (supra para. 187).
190. The Court also concludes that the State is responsible of the violation of Article 4(1) of
the American Convention, in relation to Article 1(1) of the same instrument, to the detriment of
the fifteen civilians who were taken into the “Misteriosa” or “Vallarón” mine and then riddled with
bullets and their bodies dynamited. The Court considers that this violation was further
aggravated in relation to the seven children and the pregnant woman. Regarding the alleged
violation of Article 3 of the Convention and in accordance with the Court’s recent case law, 215 in
this case the Court considers that the fifteen victims (supra para. 187) were placed in a situation
of legal uncertainty that prevented them from effectively exercising their rights in general terms,
which in turn entailed a violation of their right to recognition of juridical personality.
191. The Court reiterates that those cases in which the victims of human rights violations are
children are especially serious, 216 since children are not only entitled to the rights established in
the American Convention, but also to the special measures of protection contemplated in Article
19, which must be interpreted according to the particular circumstances of the specific case. 217
The adoption of special measures for the protection of the child corresponds to the State, the
family, the community, and the society to which the child belongs, 218 and includes measures
related to non-discrimination, the prohibition of torture, and the conditions that must be
observed in cases in which children are deprived of liberty. 219
192. In the instant case, where at least seven of the victims were children between the ages
of 8 months and 6 years, the violation of their rights was also configured in relation to Article 19
of the American Convention. In this regard, the Court notes that the CVR’s Final Report found
that, “within the militaristic mindset, the death of children was a ‘cost’ to eradicate the
insurgency”, and “in the struggle to destroy the enemy it did not matter that the dead [were]
innocent [people] and even less so children.” 220 It is a proven fact that an attempt was made to
conceal the real ages of the child victims in this case in the death certificates issued by order of
the judge of the Sixth Permanent Military Tribunal of Ayacucho of February 25, 1992, which
indicated that they were older than 18 years of age (supra paras. 107 and 173). Thus, the State
once again disregarded its duty to ensure the special protection of children.
193. Lastly, the Court does not have sufficient evidence to conclude the alleged violation of
Articles 11 and 17 of the American Convention in this case, in the terms set forth by the
Commission and the representatives (supra paras. 148, 151 and 154).
194. In conclusion, the Court finds that Peru has incurred international responsibility for the
forced disappearance of the fifteen victims: Yesenia Osnayo Hilario, Miriam Osnayo Hilario, Edith
Osnayo Hilario, Wilmer Hilario Carhuapoma, Alex Jorge Hilario, Raúl Hilario Guillén, Héctor Hilario
Guillén, Francisco Hilario Torres, Mercedes Carhuapoma de la Cruz, Dionicia Quispe Mallqui,
Antonia Hilario Quispe, Magdalena Hilario Quispe, Dionicia Guillén Riveros, Ramón Hilario Morán
Cf. Case of Anzualdo Castro v. Peru, supra, para. 101, and Case of Rodríguez Vera et al. (Disappeared of the Palace
of Justice) v. Colombia, supra, para. 323.
216
The Inter-American Court has considered that, in general terms, a child is defined as “any person who has not
yet turned 18 years of age.” Juridical Condition and Human Rights of the Child. Advisory Opinion OC-17/02 of August
28, 2002. Series A No. 17, para. 42, and Case of Mendoza et al. v. Argentina. Preliminary objections, Merits and
Reparations. Judgment of May 14, 2013, paras. 67 and 140.
217
Cf. Case of Gelman v. Uruguay. Merits and Reparations. Judgment of February 24, 2011. Series C No.221, para.
121, and Case Mendoza et al. v. Argentina, supra, para. 141.
218
Cf.
Juridical Condition and Human Rights of the Child, supra, para. 62, and Case of Mendoza et al. v. Argentina,
supra, para. 141.
219
Cf. Case of the Gómez Paquiyauri Brothers v. Peru. Merits, reparations and costs. Judgment of July 8, 2004.
Series C No. 110, para. 168, and Case of the Massacres of El Mozote and Nearby Places v. El Salvador, supra, para. 150.
220
Cf. Final Report CVR, Volume VI, Chapter 1.8, pages 596 to 597 (evidence file, folios 2060 to 2061).
215