Finally, a highly questionable decision was made to bury the bodies in different cemeteries
around the city of Lima, and 11 of them were not identified (supra para. 172).
372. The Forensic Institute has itself recognized these irregularities in the management of
the scene and removal of the bodies and the lack of rigor in performing the autopsies (supra
para. 177), as has the Truth and Reconciliation Commission. 440 These omissions and
shortcomings may condition or hamper later investigations. For instance, the Forensic Institute
report said that, upon analysis of the bodies exhumed four years after the facts, “due to the
advanced state of organ decomposition […] and the absence of soft tissue, it was impossible
to identify accurately the distances from which the bullets had been fired.” 441
373. The correct implementation of these initial procedures is of paramount importance for
the investigations, and one of their main purposes is precisely to collect and preserve the
evidence, protecting it from being contaminated, in order to facilitate and ensure the
subsequent clarification of the facts.442 The actions of State authorities in this case, particularly
the Special Military Prosecutor and the Special Military Judge, do not reflect this care.
374. The Court finds that in this specific case, the procedures by military and police
authorities lacked the minimum degree of diligence, and this had and continues to have
concrete repercussions for the investigation of the facts, which cannot be corrected or
remedied due to the simple fact that forensic examinations were conducted later, when the
facts were being investigated in the ordinary courts.
C. Duty to initiate an investigation ex officio
Arguments of the parties and of the Commission
375. The Commission noted that the prosecutor had undertaken an investigation of the
alleged extrajudicial executions based on the criminal complaint lodged three years after the
events by the families of two of the deceased members of the MRTA. The Commission also
observed that no administrative investigation into the affair had been launched whatsoever.
The Commission held, on this point, that in such cases, where a military operation takes place
in the framework of a domestic armed conflict, once the State learns about the possible
commission of extrajudicial executions, it is under obligation to act without delay to initiate a
conscientious, independent, impartial, effective investigation. The Commission said, along this
line, that “the investigations in the ordinary courts were triggered when family members lodged
a complaint in 2001, and not on the initiative of the State,” and that up until March 31, 2011,
no judicial ruling about investigations had been issued by the ordinary courts.
The final report by the Truth and Reconciliation Commission emphasized that: “according to statements by
the National Police physicians who took part in the autopsies, the procedure was irregular, but they had to complete
it because their immediate supervisors and even the President of Peru, Alberto Fujimori, had so ordered. This
irregularity was later confirmed in the forensic reports by the Forensic Institute, whose specialists concluded that the
autopsies performed at the Central Hospital of the National Police did not conform to current legal and scientific
requirements.” Truth and Reconciliation Commission, Informe Final, 2003, volume VII, chapter 2.66, Extrajudicial
executions at the residence of the Japanese ambassador (1997), p. 726 (evidence file, volume I, annex 1 to the case
submission brief, folio 12).
440
Report of forensic studies by the Forensic Institute on MRTA members who died at the residence of the
Japanese ambassador to Peru, August 16, 2001 (evidence file, volume I, annex 7 to the case submission brief, folio
185). See also: final report 008-2º Sec- V.I. CSJM, June 6, 2003, para. 63 (evidence file, volume XVIII, annex 21 to
the States answering brief, folio 12097). See also: expert testimony by Luis Bernardo Fondebrider before the InterAmerican Court at public hearing, February 3 and 4, 2014.
441
442
Cf. Case of Rodríguez Vera et al. (the Disappeared from the Palace of Justice) v. Colombia, para. 492.