35
victim’s arrest and from some members of the countersubversive base in the province, police reports
stating that Jeremías Osorio was being sought prior to his arrest, as well as other documents. However,
the failure to conduct an inspection of the locations where the victim could have been taken in the earliest
days following Porfirio Osorio Rivera’s filing of the complaint on June 9, 1991, together with the years that
have gone by without the eye-witnesses being called to give statements, had a serious impact on
determining Jeremías Osorio’s whereabouts and the truth about what happened. Of particular concern to
the IACHR is the fact in the proceedings currently underway before the National Criminal Chamber, the
Ministry of Defense’s General Secretariat and Staff Directorate have reported that they have no
information on the military personnel who were serving at the Cajatambo Countersubversive Military Base
on the date of Jeremías Osorio’s disappearance. That clearly poses an obstacle to the due punishment of
all those responsible for that illegal act.
140.
The Commission again states that according to established inter-American precedent,
the right of access to justice demands the effective determination of the facts under investigation and, if
applicable, the imposition of the corresponding criminal sanctions within a reasonable time: in
consideration of the need to uphold the rights of injured parties, a prolonged delay may constitute, in and
of itself, a violation of the right to a fair trial. In addition, since forced disappearances are involved, the
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right of access to justice includes determining the whereabouts or fate of the victim.
In these cases, impunity must be eliminated by the determination of both the general responsibility
of the State and the individual responsibilities – criminal and others – of its agents and private
citizens. In complying with this obligation, the State is required to remove all obstacles, legal and
factual, contributing to impunity. The investigations must be conducted in line with the rules of due
process of law, which implies that the bodies of administration of justice must be organized in a
manner so that its independence and impartiality is guaranteed and the prosecution of grave
human rights violations is made before regular courts, in order to avoid impunity and search for the
truth. Moreover, given the nature and gravity of the facts, particularly since they occurred in a
context of systematic human rights violations, and since the access to justice is a peremptory rule
under International Law, the need to eliminate impunity gives rise to an obligation for the
international community to ensure inter-State cooperation by which they must adopt all necessary
measures to ensure that such violations do not remain unpunished, either by exercising their
jurisdiction to apply their domestic law and the international law to prosecute it and, when
applicable, punish those responsible, or by collaborating with other States that do so or attempt to
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do so.
141.
In the case at hand, the State has provided no information about specific steps taken by
its authorities to determine the whereabouts of Jeremías Osorio Rivera. Neither has Peru provided an
explanation of the absence, to date, of a final judicial ruling, issued by a competent agency, in connection
with the victim’s disappearance.
142.
Based on the parties’ claims, the established facts, and the analysis offered in this
section, the Commission concludes that more than 20 years after the victim’s forced disappearance and
with the entire truth of the incident still not known, the domestic criminal proceedings have not offered an
effective resource for determining the fate of the victim or for ensuring the rights of access to justice and
to the truth through the investigation and punishment of those responsible and the provision of
comprehensive redress for the consequences of the violations committed. For the reasons given, the
Commission believes that the State did violate the rights enshrined in Articles 8.1 and 25.1 of the
American Convention, in conjunction with Article 1.1 thereof, together with those contained in Article I.b of
the IACFDP.
The effects of Laws Nos. 26479 and 26492 on the obligation of providing Jeremías Osorio
Rivera’s family with truth and justice
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I/A Court H. R., Case of Anzualdo Castro v. Peru, Judgment of September 22, 2009, Series C No. 202,
para. 124.
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I/A Court H. R., Case of Anzualdo Castro v. Peru, Judgment of September 22, 2009, Series C No. 202, para. 125; and
Case of La Cantuta v. Peru, Merits, Reparations, and Costs, Judgment of November 29, 2006, Series C No. 162, para. 160.