33
b)
the State, as a subject of international law, is responsible for the
behavior of all its bodies, agents, and officers who are part of its organization
and act in that capacity. “[W]e must not confuse the responsibility of the
State for the violation of the primary rule (of the […] significant international
instruments) due to [the] facts attributable to it, with the issue of its
obligation (secondary rule) to provide reparation for said violations.” On the
other hand, the primary provisions in the instruments that set forth the
significant obligations in this matter (the American Convention and the InterAmerican Convention against Torture), establish the obligation to investigate
cases in which there is allegedly a violation of said provisions and to ensure
compliance with the decision issuing from the respective investigations;
c)
the principles regarding emergence of the responsibility of the States
under international law for acts attributable to them, are different from the
principle of international law according to which the States must have the
opportunity, first of all, to remedy the violation of an international provision
within the framework of their domestic law before their responsibility may be
questioned at the international level; and
d)
in the instant case, the international responsibility of the State arose
at the moment that the American Convention was breached “by the arbitrary
detention, torture, and summary execution of Rafael Samuel and Emilio
Moisés Gómez Paquiyauri”. Subsequent non-compliance due to lack of
effective investigation and punishment is also a violation of its international
obligations; however, it is “in no way a central violation or the only source of
responsibility of the Peruvian State in the instant case”.
Pleadings of the State
70.
In its brief with the reply to the application, the State argued that “the human
rights violations committed by its agents against the Gómez Paquiyauri brothers and
their next of kin have been duly punished, that is, all investigations in this case have
been exhausted to establish and identify the perpetrators and participants in the
crime against the Gómez Paquiyauri brothers”.
Considerations of the Court
71.
The Court will now analyze whether the State is internationally responsible for
the facts that the Court has found proven. Regarding to the origin of the international
responsibility of the State, the Court has already pointed out that “it deems that the
international responsibility of the State can be generated by acts or omissions of any
branch or body of the State, whatever its hierarchy, that violate the American
Convention”.68
72.
In this regard, the Court has pointed out that
Article 1(1) is essential in determining whether a violation of the human rights
recognized by the Convention can be imputed to a State Party. In effect, that article
charges the States Parties with the fundamental duty to respect and guarantee the
rights recognized in the Convention. Any impairment of those rights that can be
68
Case of “The Last Temptation of Christ” (Olmedo Bustos et al.), supra note 19, para. 72; and see
Case of Juan Humberto Sánchez, supra note 15, para. 142; Case of the “Five Pensioners”, supra note 22,
para. 163; Case of the Mayagna (Sumo) Awas Tingni Community. Judgment of August 31, 2001. Series
C No. 79, para. 154; Case of Ivcher Bronstein, supra note 19, para. 168; Case of the Constitutional
Court. Judgment of January 31, 2001. Series C No. 71, para. 109; Case of Bámaca Velásquez. Judgment
of November 25, 2000. Series C No. 70, para. 210; and Case of the “Street Children” (Villagrán Morales
et al.). Judgment of November 19, 1999. Series C No. 63, para. 220.