9
The State admits that no guilty sentence has been rendered against the persons who are at
present accused or under investigation, but it also admits that the obligation to investigate and
punish is a best efforts obligation rather than an obligation to ensure results., held by the
Honorable Inter-American Court in the cases of Velasquez-Rodriguez, Godinez-Cruz, CaballeroDelgado y Santana and Baldeón-García. The State´s conduct of processing two criminal cases
and starting a preliminary investigation should not be considered simple formalities bound to fail
from the very beginning, but a firm and determined process to get rid of impunity, which some
people tried to institutionalize in Perú in the last decade. […]
The State admits that the progress of the criminal cases instituted before the Special Criminal
Panel and in the Investigative Division of the Supreme Court of Justice of the Republic is only
partial. Furthermore, it acknowledges that the preliminary investigation carried out by the
Attorney General´s Office into the existence of masterminds of the investigated crimes has not
led yet to a formal complaint before the Judicial Power so as to commence a new criminal
proceeding. […]
The State of Perú does not oppose to the characterization made by the Commission, of the period
during which the events took place, which as described as one where a generalized and
systematic practice of extra-legal executions and forced disappearances existed, pursuant to Item
VII(E) of the application. That is to say, […] the events are contextualized in what the
Commission considers a systematic and generalized practice (associated or copulative
characteristics) of violations of human rights.[…]
It is clear that in previous cases the Inter-American Court reached the conclusion that a
systematic practice of extra-legal executions and forced disappearances existed in Perú in cases
occurring at the same time that the events of the case of La Cantuta,
[…] the judgment of the National Criminal Panel that has recently been delivered in the case of
the forced disappearance of Ernesto Castillo-Páez, judgment of March 20, 2006,[…] the National
Court follows [the case law of the Inter-American Court pursuant to which] between years 1989
and 1993, the practice of forced disappearance was part of the anti-subversive strategy applied
by the State of Perú. Such strategy has been considered a systematic and generalized practice of
human rights violation by the Honorable Supreme Court. The events of the instant case took
place during said period.
Even though this assertion comes from a domestic judicial authority, it is not a final judgment
pronounced by the Supreme Court of Justice of the Republic, however, it shows the will of the
State to acknowledge the existence of a practice by the State, notwithstanding the possibility to
prove whether it was a generalized or systematic practice or, as asserted in the application, that
it really was generalized and systematic..
In connection with the aforementioned, the analysis and contribution made through the final
report of the CVR (Truth and Reconciliation Commission) was revealing. It is worth noting that
the concept of a generalized practice of violations of human rights involves a high number of acts
and victims.
It is true that the concurrence of indirect and circumstantial evidence shall be enough for the
Commission, which does not require the same level of evidence than that required by a domestic
criminal court, but if a domestic criminal court, specialized in human rights and with a different or
more rigorous level of evidence, has arrived to the same conclusion when deciding over the
freedom of people or on how to protect such fundamental juridical rights as physical freedom,
humane treatment and even life, it is reasonable to think that if the national criminal court
concluded that the State carried out the practice of forced disappearances, the State itself is
admitting its international liability for having caused such situation or for failing to adopt
measures to prevent the commission of said international wrongful act.
The Constitutional Court of Perú, in the case of Santiago Enrique Martín-Rivas, arrives to the
conclusion that at the time of the events ”those circumstances are related to the existence of a
systematic plan to promote impunity in matters involving the violation of human rights and
crimes against humanity, particularly the acts committed by the Grupo Colina. (Colina Group.)
[…].
Therefore, both the specialized judicial body of the Peruvian judiciary and the highest body of
constitutional justice admit that at the time when the events of the instant case took place,
crimes against humanity were committed, and the State intended to conceal the human rights
violations, with a systematic plan.
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