30
104. Proceedings for the death of Gerardo Vargas-Areco before the ordinary courts
had been fully paralyzed as of March 26, 1993, when the State recognized the
contentious jurisdiction of the Court and no further proceedings were carried out
until 1997.
105. After that date, some crucial procedures were delayed, such as the statement
of the accused which was received in February 1999, and the re-enactment of the
facts made in 2000. The testimonies of various military officers which had been
requested in 1990 were received after September 18, 2000; i.e. almost 11 years
after the events and more than 7 years after the jurisdiction of the Court was
accepted. On October 13, 2003, almost 13 years after commencement of
investigation proceedings before the ordinary courts and more than 10 years after
recognition of the jurisdiction of the Court, the evidence submission stage was closed
in relation to corporal 2nd class Aníbal López-Insfrán. Lastly, on March 2, 2005, 15
years after the events and 12 years after recognition of the jurisdiction of the Court,
judgment of conviction was rendered in the proceedings before the ordinary courts
for the crime of “wrongful homicide” (supra para. 71(22)).
106. As indicated above (supra para. 76), in the case of an extra-legal execution,
the State shall effectively investigate the deprivation of the right to life and shall
punish those responsible for the acts, particularly when state agents are involved.
Otherwise, the prevailing impunity would foster repetition of events of similar
nature.45 These circumstances compromise the international liability of the State.46
107. Furthermore, in the instant case, the ordinary courts sentenced corporal 2nd
class López-Insfrán to one-year imprisonment for the crime of “wrongful homicide”
committed against Gerardo Vargas-Areco; a punishment consistent with the
provisions of domestic legislation regarding said crime. Mr. López-Insfrán was
sentenced for “wrongful homicide,” a crime set forth in Section 107 of the Criminal
Code of Paraguay. Said section provides that any person whose “negligent act causes
the death of another shall be punished with imprisonment for up to five years or
fine.” In the judgment of conviction of March 2, 2005, the judge considered that Mr.
López-Insfrán acted in accordance with the military procedure established to prevent
an arrested person from escaping, i.e.: ordering a person to stop three times, then
shooting into the air and, lastly, shooting into the legs of the fugitive to hurt him and
prevent him from escaping. According to the Judge of the case, Mr. López-Insfrán
had no intention to kill Gerardo Vargas-Areco; however, due to the darkness of the
place where the events occurred and the lack of care of the corporal 2nd class, the
shooting contemplated in the military rules of procedure caused the death of the
minor Vargas-Areco. Therefore, the act constituted wrongful homicide and not willful
murder.
108. The Inter-American Court cannot, and does not intend to, stand in for
national authorities upon establishing the penalties applicable to the crimes
contemplated in domestic law, or defining the procedures applicable to certain
situations within the military context. Notwithstanding the foregoing, the Court is
45
Cf. Case of Montero-Aranguren et al. (Detention Center of Catia), supra note 4, para. 137; and
Case of the Ituango Massacres, supra note 3, para. 299; and Case of Baldeón-García, supra note 3, para.
195.
46
Cf. Case of Baldeón-García, supra note 3, para. 91; Case of the Pueblo Bello Massacre, supra
note 21, para. 145; and Case of the “Mapiripán Massacre”, supra note 25, paras. 137 and 232.