13
29.
Subsequently, in its response, the State expressed an ambiguous position by requesting,
on the one hand, that the Court “consider the State’s acknowledgement” of the violation of the
rights to life, personal integrity, personal liberty and the rights of the child and, on the other hand,
by stating that this “should be strictly differentiated from the enforceability of the attribution of
international responsibility of the Peruvian State.” However, during the public hearing, it reiterated
its acknowledgement of violations of the rights recognized in Articles 4, 5 and 7 of the Convention
(supra para. 19), and based on these two submissions, both the Commission and the
representatives formulated arguments.
30.
However, in its final written arguments, the State declared that it is not appropriate for
the Court to determine and declare the international responsibility of the State for the violation
of the rights contained in Articles 4, 5, 7 and 19 of the Convention, based on the principle of
subsidiarity or complementarity of the inter-American system (supra para. 20).
31.
In this regard, the Court notes that ambiguous or ambivalent positions in the litigation of
a case by the parties do not contribute to the realization of the purposes of the inter-American
system for the protection of human rights, in particular, the purpose of finding just solutions to
the particular problems of a case. 14 On the other hand, the Court considers that, in the
proceedings before the Commission, Peru acknowledged some of the violations alleged by the
Commission and the representatives and consequently generated legal effects on which they
acted. Therefore, the contradictory conduct that the State intends to assume in the processing
of the case before this Court is contrary to the principle of estoppel, which is why no legal effects
will be given to the State's alleged disregard of the violation of the aforementioned rights.
32.
Accordingly, the Court considers that the State recognized the violation of the rights to
life, personal integrity and personal liberty, established in Articles 4, 5 and 7 of the Convention,
to the detriment of Francisco Hilario Torres, Dionicia Quispe Mallqui, Antonia Hilario Quispe,
Magdalena Hilario, Mercedes Carhuapoma de la Cruz, Ramón Hilario Morán, Dionicia Guillén
Riveros and Elihoref Huamaní Vergara. It also recognized the violation of said articles, as well as
of the right to special protection of the child enshrined in Article 19 of the Convention, to the
detriment of Yessenia, Miriam and Edith Osnayo Hilario, Alex Jorge Hilario, Wilmer Hilario
Carhuapoma, Raúl and Héctor Hilario Guillén. The Court decides to accept the partial
acknowledgement of responsibility made by the State.
33.
Without prejudice to the foregoing, the Court notes that the dispute remains as to the legal
classification of the facts of this case as extrajudicial execution or forced disappearance and the
scope of the violations of the Convention indicated in the preceding paragraph. The dispute also
continues with respect to the alleged violations of Articles 2, 3, 11, 13, 17, 21 and 8 and 25 of the
American Convention, as well as with respect to the violation of Article 5 to the detriment of the
victims’ next of kin and the claims of the parties regarding reparations. There is also a dispute
regarding the alleged violations of Articles 1, 6 and 8 of the Inter-American Convention to Prevent
and Punish Torture and Articles I and III of the Inter-American Convention on Forced
Disappearance of Persons. These disputes will be analyzed in the corresponding chapters of this
judgment.
1991 do not constitute a clear recognition by Peru that the facts of the case should be legally classified as forced
disappearance.
14
Cf. Case of Pacheco Teruel et al. v. Honduras. Merits, reparations and costs. Judgment of April 27, 2012. Series C
No. 241, para. 19, and Case of García and Family Members v. Guatemala. Merits, reparations and costs. Judgment of
November 29, 2012. Series C No. 258, para. 23.