34
attributed, under the rules of international law, to the act or omission of any public
authority constitutes an act imputable to the State and which entails its responsibility as
established in the Convention.
According to Article 1(1), any exercise of public power that violates the rights
recognized by the Convention is illegal. Whenever a State organ or official, or a public
entity violates one of those rights, this constitutes a failure in the duty to respect the
rights and freedoms set forth in that Article.69
73.
The Court deems that the aim of International Human Rights Law is to provide
the individual with means of protection of the internationally recognized human
rights vis-à-vis the State. Under international jurisdiction, the parties and the
subject matter of the controversy are, by definition, different than under domestic
jurisdiction.70 As it has stated on previous occasions,71 in the instant case the Court
has the authority to establish the international responsibility of the State and its
legal consequences, but not to investigate and punish the individual behavior of the
agents of the State who may have participated in the violations.
74.
The State argued that the human rights violations committed by its agents
against the Gómez Paquiyauri brothers had been duly punished and, therefore, it
asked the Court to find that there has been no violation by Peru.
75.
However, the Court notes that the complaint filed before the Inter-American
Commission on July 2, 1991, as well as the opening of the case by the Commission
on June 12, 1992, took place before completion of the domestic proceeding that the
State refers to, which ended with the judgment rendered on November 9, 1993 by
the Third Criminal Chamber of El Callao, upheld by the judgment of the Transitory
Criminal Chamber of the Supreme Court of Peru on June 9, 1994 (supra paras. 67.p
and 67.q). As a consequence thereof, when the case was brought before the interAmerican system, the acts that generated the alleged violations had already been
committed. This Court must call to mind that the international responsibility of the
State arises immediately when the internationally illegal act attributed to it is
committed, although it can only be demanded once the State has had the
opportunity to correct it by its own means. Possible subsequent reparation under
domestic legal venue does not inhibit the Commission or the Court from hearing the
case that has already begun under the American Convention. Therefore, the Court
cannot accept the position of the State that it duly investigated, to find that the State
has not violated the Convention.
76.
The Court also deems that, in accordance with what was set forth in the
chapter on proven facts, the responsibility of the State is exacerbated by the
existence in Peru, at the time of the facts, of a systematic practice of human rights
violations, extra-legal executions, of persons suspected of belonging to armed
groups, carried out by agents of the State following orders of military and police
commanders.72 Said violations violate international jus cogens. Likewise, the fact
that the alleged victims in this case were children must be taken into account in
establishing aggravated responsibility.
69
Case of the “Five Pensioners”, supra note 22, para. 163; Legal Status and Rights of Migrants
without Documents. Advisory Opinion OC-18/03 of September 17, 2003. Series A No. 18, para. 76; Case
of Baena Ricardo et al.. Judgment of February 2, 2001. Series C No. 72, para. 178; and Case of Caballero
Delgado and Santana. Judgment of December 8, 1995. Series C No. 22, para. 56.
70
See Case of Cesti Hurtado. Preliminary Objections. Judgment of January 26, 1999. Series C No.
49, para. 47.
71
72
Case of the “Street Children” (Villagrán Morales et al.), supra note 68, para. 223.
See Case of Myrna Mack Chang, supra note 5, para. 139.