79
the proceedings (supra para. 50). Consequently, the Court finds the State’s
argument attributing the duration of the proceedings to the fact that they are being
processed under the criminal procedural norms of the previous system unacceptable.
Furthermore, the State has not shown whether the reforms have been applied or in
what way their alleged benefits have been reflected in these criminal proceedings;
hence, it is not for the Court to assess the general scope and effects of the penal
procedural reforms. The shortcomings of the criminal procedural system applied to
the proceedings in this case can also be attributed to the State and do not exempt it
from complying with its obligations under the American Convention.
116. It is therefore necessary to examine and determine whether these criminal
proceedings have constituted an effective recourse to ensure the rights of access to
justice, the truth about the facts, and reparation for the next of kin, or whether
another type of recourse has existed for these effects.
117. The preceding chapter indicated the obligation of the States Parties to the
American Convention to investigate acts that violate the rights recognized therein
(deriving from their obligation to safeguard these rights), and also the required
characteristics of the investigations in cases of extrajudicial executions, forced
disappearances and other grave human rights violations (supra paras. 88 to 94). In
addition, it must be repeated that this investigation should be conducted using all
available legal means and directed at determining the truth and the pursuit, capture,
prosecution and punishment of all the masterminds and perpetrators of the facts,
particularly when State agents are or may be involved. During the investigation and
judicial proceedings, the victims or their next of kin must have ample opportunity to
take part and be heard, both in the elucidation of the facts and the punishment of
those responsible, and in the quest for fair compensation, in accordance with
domestic law and the American Convention. However, the investigation and the
proceedings must have a purpose and be assumed by the State as its inherent legal
obligation and not as the result of efforts made by private interests, which depend on
the procedural initiative of the victims or their next of kin or on the contribution of
probative elements by the latter.84
118. The Court observes that, in the instant case, even though criminal
proceedings could not be filed until after the fall of the dictatorial regime, the State
has not shown any diligence in the official investigations, which, despite the nature
of the facts, were not instituted de oficio, but rather as a result of complaints filed by
the victims’ next of kin. In addition, there is no evidence of actions taken either in
the context of the criminal proceedings, or using other mechanisms, to determine
the whereabouts of the victims or to find their mortal remains.
119. Regarding the effectiveness of these criminal proceedings to determine the
truth and pursue, capture, prosecute and punish all the masterminds and
perpetrators of the facts, the Court recognizes that they were opened against the
most senior members of the dictatorial Government, including the then Head of
State, and the most senior officials in the Ministry of the Interior, the Military
Intelligence Services, the Asunción Police and its Investigations Department, in
addition to several former officers of the Asunción Police who occupied intermediate
84
Cf. Case of the Ituango Massacres, supra note 1, para. 287-289; Case of the Pueblo Bello
Massacre, supra note 5, paras. 143 to 146, and Case of the “Mapiripán Massacre”, supra note 2, paras.
137, 219, 223, 232 and 237.
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