9 Prosecutor or the Supervising Prosecutor [Fiscal Superior], in which case, if it was considered admissible [procedente], the Provincial Prosecutor would have been instructed to present it before the Investigating Judge with jurisdiction. It indicates that if the Prosecutor before whom a motion for appeal was presented did not consider it admissible, the complainant would have been notified in writing and could appeal this decision before the Supervising Prosecutor within a period of 3 days of the notification. 40. With regard to the alleged torture suffered by Mr. Quispealaya, the State alleges that the alleged violation of Article 5 of the Convention admitted by the IACHR in its Admissibility Report is tied to the purported lack of investigation into the injuries suffered by Mr. Quispealaya Vilcapoma by the competent jurisdiction, a matter to which it has already referred. It states that the petitioners insist that the acts constitute the crime of torture and do not accept that the complaint was filed for the crime of serious injuries, despite the fact that the Office of Public Prosecutions, in its role as prosecutor of the criminal action, has the faculty to evaluate and define the acts that form the basis of the complaint and/or the ex oficio investigation, in order to file a formal accusation before the Judicial Branch. The State claims that the Commission cannot intervene in this proceeding as a fourth instance, nor can it determine the criminal responsibility of an individual in relation to the alleged commission of an offense. 41. The State claims that in order to constitute the crime of torture, it is necessary that the perpetrator be a public official or person who acts with the consent or acquiescence of a public official, a fact which has not been established in the present case, as the criminal responsibility of noncommissioned officer Instructor Juan Hilaquita Quispe was never proven. It claims that the mere presence of a State agent does not constitute a sufficient element to characterize the allegations as torture, because it is necessary that the intent to cause the victim harm or serious suffering be concurrent and that the aim of the act be one of those established by Peruvian law. The State alleges that according to Article 5 of the American Convention, there is a difference between the concept of torture and cruel, inhuman and degrading treatment, and that according to the Peruvian legal regime, the criminal offense that is most similar to cruel, inhuman or degrading treatment is that of serious injuries. 42. In summary, the State concludes that in the present case, Articles 5, 8 and 25 of the American Convention have not been violated, nor has Article 8 of the Inter-American Convention to Prevent and Punish Torture. IV. PROVEN FACTS 43. In application of Article 43(1) of its Rules of Procedure,1 the Commission will examine the allegations submitted by the parties and the elements of proof submitted in processing the present case. Similarly, it will take into account publicly available information, including resolutions of committees of the universal system of human rights, the IACHR’s own reports on petitions and cases and regarding the general situation of human rights in Peru, publications of non-governmental 1 Article 43(1) of the Rules of Procedure of the IACHR establishes the following: The Commission shall deliberate on the merits of the case, to which end it shall prepare a report in which it will examine the arguments, the evidence presented by the parties, and the information obtained during hearings and on-site observations. In addition, the Commission may take into account other information that is a matter of public knowledge.