15
circumstantial evidence, indicia, and presumptions,41 which are especially important
when dealing with forced disappearance cases, “because this type of repression is
characterized by an attempt to suppress all information about the abduction, the
whereabouts and fate of the victim.”42 The Court takes into account this criterion to
determine the facts and not the criteria mentioned by the State that corresponds to
domestic criminal law.
39.
The Court notes that there is no controversy about the disappearance of Mr.
Anzualdo Castro, but over who is responsible for it. In the first hypothesis, the
Commission and the representatives allege that the disappearance is attributable to
agents of the SIE, whereas, in a second hypothesis, the State attributes the
disappearance to members of the group Sendero Luminoso.
40.
In this regard, part of the defense of the State is based on the fact that the
testimony of a former agent of the SIE- that would be the key to the disclosure of a
series of facts linked to the disappearance- has not been furnished before the judicial
authorities, but that it only appears in the journalistic research published in the book
“Muerte en el Pentagonito”; therefore, it would be ineffective before a court given the
lack of legal basis or official procedures. The Tribunal notes that said statement was
or should have been at its disposal had the State acted with the diligence required in
the investigations.43 Therefore, the Court notes that the Ad Hoc State’s Attorney
Office, a state judicial organ, mostly based on the investigation contained in said book
to file the amendment to request for extradition of former president Fujimori, in
relation to the case of Mr. Anzualdo Castro.44 This request was admitted by the First
Transitory Chamber in criminal matters of the Supreme Court of Justice.45 Hence, in
short, the statement of the former agent of the SIE was, indeed, considered at the
domestic level by the highest judicial authorities of Peru. Therefore, the references
contained in said journalistic research are not “ineffective” before this judicial
instance, as the State claims.
41.
Moreover, to sustain its own version of the facts, the State based the evidence
on the detention of Mr. Anzualdo and other people of October 1991; on his friendship
with Martín Javier Roca Casas and on the context of disappearances perpetrated by
Sendero Luminoso at that time (supra paras. 33 and 35).
42.
In view of the evidentiary value that the press clippings have in a proceeding
before this Court (supra para. 25), it is inappropriate to give to such press clippings
the evidentiary weight the State claims. Neither it is determining the friendship that
41
Cf. Case of Velásquez Rodríguez V. Honduras. Merits, supra note 11, para. 130; Case of Escher et
al. V. Brazil, supra note 6, para. 127; Case of Perozo et al. V. Venezuela, Supra note 6, para. 112; and
Case of Ríos et al. V. Venezuela, Supra note 6, para. 101.
42
Case of Velásquez Rodríguez V. Honduras. Merits, supra note 11, para. 131. See also, Case of
Blake V. Guatemala. Merits. Judgment of January 24, 1998. Series C Nº 36 para. 47, 49 and 51; Case of
Bámaca Velásquez V. Guatemala. Merits. Judgment of November 25, 2000. Series C Nº. 70, para. 130 and
131; and Case of Kawas Fernández V. Honduras, supra note 14, para. 95.
43
In a similar sense, Cf. Case of Neira Alegría et al. v.Perú. Merits. Judgment of January 19, 1995.
Series C Nº 20, para. 65.
44
Cf. amendment to request the Active Extradition of the Ad Hoc State’s Attorney Office of March
21, 2006 (record of evidence, Volume , Amendment to request the Active Extradition, March 21, 2006
(appendix 16 to the Brief of Pleadings and Motions, records of evidence, Volume VIII, appendix 16 to the
Brief of Pleadings and Motions, pages 2918 to 2921).
45
Cf. Final Judgment of the First Transitory Chamber in criminal matters of the Supreme Court of
Justice, June 21, 2006 (record of evidence, Volume V, appendix 1 to the Application, pages 1598 -1613).
Seleccionar párrafo de destino3
Conectar a un párrafo
Connect to an entity
Disable highlights
Añadir a la tabla de contenidos