17
available, adequate, suitable and effective. 21 Thus, it is not the task of the Court, nor of the
Commission, to identify ex officio which domestic remedies have not yet been exhausted. The
Court emphasizes that it is not up to the international bodies to remedy the lack of precision in
the State’s arguments. 22 In this regard, the Court finds that Peru did not explain why the
remedies or processes mentioned in its briefs of September 21, 1992 23 and January 25, March
21 and May 17, 2011 24 would, in its view, be adequate, suitable and effective. Therefore, the
Court considers that the State did not comply with the material requirements for the presentation
of this preliminary objection. In view of the foregoing, the Court dismisses the preliminary
objection of failure to exhaust domestic remedies.
B. Objection ratione materiae with respect to the Inter-American Convention on Forced
Disappearance of Persons
B.1. Arguments of the parties and the Commission
47.
The State pointed out that the Inter-American Convention on Forced Disappearance of
Persons is not applicable to the instant case, since the alleged facts have been the subject of a
criminal proceeding in the domestic jurisdiction for the crime of aggravated homicide, with the
aggravating circumstances of ferocity and great cruelty, and not for the crime of forced
disappearance. Consequently, the Court could not exercise its contentious jurisdiction to declare
a violation of the provisions of the aforementioned treaty. In addition, during the public hearing,
the State asked the Court to consider the application of the principle of complementarity to the
present case, given that “there is a definitive ruling by the Peruvian Judiciary on the facts of the
case in which […] high financial reparations are established taking into account the domestic
standards.” Thus, it argued that the application of this principle in the case of Zulema Tarazona
et al. v. Peru implied that the Court did not rule on the merits of the dispute, “which is closer to
a preliminary ruling on the competence of the Court to hear a case.” Likewise, it recalled that in
the Case of J. v. Peru, the Court stated that the legal classification of the facts was a matter for
the State. In addition, it noted that “there was no questioning by the lawyers of the alleged
victims regarding the way in which the facts were classified” at the domestic level. Finally, it
emphasized that the Public Prosecutor’s Office, the Judiciary and the Truth and Reconciliation
Commission all characterized the facts of the case as extrajudicial executions. For all the
foregoing reasons, the State asked the Court to declare well-founded the preliminary objection
ratione materiae with respect to said treaty.
48.
The Commission and the representatives argued that the State sought to challenge
the Court’s jurisdiction on the basis of its disagreement with the classification of the facts as
forced disappearance, which pertains to the merits of the case. Accordingly, they asked the Court
to declare that the arguments raised by the State do not constitute a preliminary objection and,
therefore, are inadmissible.
21
Cf. Case of Velásquez Rodríguez v. Honduras. Preliminary objections, supra, paras. 88 and 91, and Case of Cruz
Sánchez et al. v. Peru, supra, para. 49.
22
Cf. Case of Reverón Trujillo v. Venezuela. Preliminary objection, merits, reparations and costs. Judgment of June
30, 2009. Series C No. 197, para. 23, and Case of Cruz Sánchez et al. v. Peru, supra, para. 49.
23
In its communication of September 21, 1992, the State merely indicated, with respect to the alleged failure to
exhaust domestic remedies that, as it had stated in a note of November 4, 1991, “the corresponding complaint before
the Permanent Court Martial had been formalized" and, according to “the Ministry of Defense, the criminal proceeding
initiated was in the second jurisdictional instance, which would issue the respective judgment in the near future.” Cf.
Brief of the State of September 21, 1992, received by the Commission on September 23, 1992 (evidence file, folio 400).
24
In briefs dated January 25, March 21, and May 17, 2011, Peru indicated that, “although initially the members of
the Army who were involved [in the acts in this case] benefited from the effects of Amnesty Law No. 26179” (sic) and
were released, the State itself ordered the reopening of the criminal proceedings and, as of this date, two cases are
currently being processed against those allegedly responsible. Cf. Brief of the State of December 7, 2010, received by
the Commission on January 25, 2011 (evidence file, folio 675); Brief of the State of March 21, 2011 (evidence file, folio
737), and brief of the State of May 17, 2011 (evidence file, folio 692).