investigations from obtaining relevant information: (a) to determine whether Mr. Osorio Rivera
really entered the said Base; (b) to corroborate the conditions in which he remained there; (c) to
compare versions concerning the alleged release, because it was carried out by a sergeant who has
not been identified in the proceedings, and (d) to identify and prosecute the other persons who
could have participated in the enforced disappearance of Jeremías Osorio Rivera. As this Court has
indicated, the State authorities are obliged to collaborate in the gathering of evidence to achieve
the objectives of the investigation, and to abstain from taking steps that imply obstructions to the
progress of the investigative process. 320 In addition, the State cannot hide behind the lack of
evidence of the existence of the documents requested, but, to the contrary, must justify the refusal
to provide them, proving that it has taken all available measures to verify that the information
requested does not exist. 321 In this case, the State has not justified its refusal to provide the
information requested or described the measures it took to obtain this information.
196. As established previously, the first oral proceeding concluded on December 17, 2008, with
the delivery of the judgment by the National Criminal Chamber, deciding to acquit Lieutenant Tello
Delgado of the charges he was accused of, considering that “the detention and transfer of the
victim by the accused has been proved, as well as the fact that, to date, the latter has not been
located, which constitutes suffering for his family members and which has evidently been affecting
them for more than 17 years; however, there are serious doubts about the responsibility of the
accused in the events of which he is accused; a doubt which is favorable to him in application of
the constitutional principle of in dubio pro reo.” 322 This judgment was declared null, considering
that the evidence had not been assessed properly (supra para. 96).
197. In the second oral proceeding Lieutenant Tello Delgado was again acquitted, because
reasonable doubts existed about his responsibility. 323 Regarding this judgment, it was decided that
it was not null and “it was a clear case of doubt, in the face of the inculpatory and exculpatory
evidence; in other words, a case of in dubio pro reo; so that the accused must be acquitted.” 324 In
this regard, the court described, on the one hand, the “indications of the perpetration of the
offense,” namely: (1) it is not credible that the accused was unaware that the victim was
considered a subversive; (2) the detention and release of Gudmer Tulio Zárate Osorio and another
six individuals who had been detained, other than the victim; (3) that the accused did not provide
the name of any of the members of the patrol on the date of the events, individuals who detained
the victim and who, together with the accused, took him to Cajatambo, and (4) that the great
distance between Cajatambo and the domicile of the victim was not taken into account, so that the
victim, instead of going home would have gone to the home of his sister, Silvia Osorio, who lived a
Military Base (evidence file, volume x, annex 80 to the State’s answering brief, folio 4985); Judgment delivered by the
National Criminal Chamber on December 17, 2008 (evidence file, volume IX, annex 20 to the State’s answering brief, folio
4720), and Judgment delivered by the National Criminal Chamber on November 4, 2011 (evidence file, volume VII, annex
14 to the brief with motions, arguments and evidence, folio 3615).
320
Cf. Case of García Prieto et al. v. El Salvador, supra, para. 112, and Case of Gudiel Alvarez et al. (“Diario Militar”)
v. Guatemala, supra, para. 251.
321
Cf. Case of Gomes Lund et al. (Guerrilha Do Araguaia) v. Brazil. Preliminary objections, merits and reparations.
Judgment of November 24, 2010. Series C No. 219, para. 211, and Case of the Massacres of El Mozote and nearby places v.
El Salvador, supra, para. 257.
322
Judgment delivered by the National Criminal Chamber on December 17, 2008 (evidence file, volume IX, annex 20
to the State’s answering brief, folio 4750).
323
Cf. Judgment delivered by the National Criminal Chamber on November 4, 2011 (evidence file, volume IX, annex
12 to the State’s answering brief, folios 4506 to 4582).
324
Supreme final judgment R.N. No. 1071-2012 issued by the Transitory Criminal Chamber of the Supreme Court of
Justice of the Republic on April 17, 2013 (evidence file, volume XII, annexes to the brief with the State’s final arguments,
folios 5419 to 5434).
72
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