65
a) Clarifications on Articles 4, 5 and 7 of the Convention
109. Firstly, in relation to Article 7 of the Convention, the Commission and the
representatives alleged that the norm was violated on the basis of a subparagraph-bysubparagraph analysis thereof. The Court observes that the deprivation of freedom of those
people by members of the military and the Grupo Colina (Colina Group), was a step prior to
achieving what they had actually been ordered to do: execute or vanish them. The
circumstances of the deprivation of freedom clearly show that it was not a case of a crime
detected in the act, inasmuch as it was acknowledged that the alleged victims were in their
places of residence when the military forces burst in violently in the early hours and took
them away pursuant to a list. The use of lists with the names of people to be detained was
identified by the CVR (Truth and Reconciliation Commission of Perú) as part of the modus
operandi of state agents to select victims of extra-legal executions and forced
disappearances.95 Contrary to the analysis made by the Commission and the
representatives, it is not necessary to determine whether or not the alleged victims were
informed of the reasons for their detention; whether or not said detention was effected
regardless of the motives and conditions established in the Peruvian legislation in force at
the time of the events and, least of all, whether the acts of the detention were
unreasonable, unpredictable or disproportionate. The detention of those people was a clear
instance of abuse of power, it was not ordered by a competent authority and its aim was not
to bring those people before a judge or another official authorized by law to rule on the
legality of the arrest but to execute them or force their disappearance. That is to say, the
detention was of an obvious illegal and arbitrary nature, and it contradicted the provisions
of Article 7(1) and 7(2) of the Convention.
110. Furthermore, this case occurred within a generalized situation of impunity for
egregious human rights violations (supra paras. 81, 88, 92 and 93), which conditioned the
protection of the rights concerned. In that sense, the Court has understood that the duty to
investigate cases of violations of substantive law that must be safeguarded, protected or
guaranteed derives from the general duty to uphold the human rights embodied in Article
96
1(1) of the Convention. Thus, in cases of extra-legal executions, forced disappearances
and other egregious human rights violations, the Court has held that the conduct of a
prompt, serious, impartial and effective ex officio investigation is a fundamental and
conditioning element for the protection of certain rights that are otherwise affected or
annulled by those situations, such as the right to life, personal liberty and personal
integrity. This duty to investigate becomes particularly and particularly intense and
significant in cases of crimes against humanity (infra paras. 157).
95
The CVR established that “the authors of the forced disappearance followed certain criteria when selecting
victims, in particular, those based on the general profiles used to identify persons who might be members or
supporters of subversive organizations [...] On other occasions, the information was processed and lists were
prepared, which later served as guides to carry out the detentions. [...] Collective detentions also took place in
universities into which the agent entered and asked students for their personal documents, detaining those who did
not have them or directly those students whose names appeared on a list of alleged subversive people.”
Furthermore, the CVR established that “in more selective raids, intelligence was gathered to prepare lists of people
suspected of being part of subversive organizations” (Cf. Final Report of the Comisión de la Verdad y Reconciliación
(Truth and Reconciliation Commission of Perú), 2003, Volume VI, chapter 1.2. “Forced disappearance of persons by
State agents”, pp. 84, 85 and 89 and chapter 1.3 “Arbitrary executions”, p. 157).
96
Cf. Case of Goiburú et al., supra note 1, para. 88; Case of Montero-Aranguren et al. (Detention Center of
Catia). Judgment of July 5, 2006. Series C No. 150, paras. 63-66, and Case of the Pueblo Bello Massacre, supra
note 3, para. 142.
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