6
nullity” in the order appealed regarding the defendants Manuel Santiago
Arotuma Valdivia, Carlos Manuel Depaz Briones, and Juan Fernando Aragón
Guibovich. In what refers to the defendant Juan Carlos Mejía León, on June
30, 2008 the Supreme Court declared, by majority, that “there was no
nullity” in the judgment of the National Criminal Chamber that convicted
him. In this last decision, the Supreme Court established that in the crime of
forced disappearance of persons “the testimonial evidence and especially,
the substitutes of evidentiary means, such as indicia, circumstantial
evidence, and presumptions acquire great importance since this form of
repression is characterized by its intention to suppress any element that will
lead to the verification of the disappearance and the victim’s fate.” Similarly,
regarding the application of the criminal definition of forced disappearance,
the Supreme Court established that “since this is a permanent crime, it will
be understood as committed under the validity of the new Criminal Code
and its stipulations will be applied. Even though in constitutional criminal
legal matters, the general principal of ‘lex previa’ (according to which the
prohibitive provision shall be prior to the criminal act) shall prevail, the
situation contemplated in the recount made is of continuity in a criminal
activity that is still occurring, since and as long as, the illegality of the
behavior persists or it is an action prolonged in time and that has been
regulated by a new law […]. In this sense, it must be specified that if the
accused parties have carried out the criminal behavior that results in the
crime, which has a continuous nature, while in force the new law that
regulates it, there is no doubt that this most recent law is the one that shall
be applied, because being the new criminal regulations in force, the active
subjects of the crime have performed all the actions referred to in the
criminal description of the precept, without this implying any type of
retroactivity ad malam partem”.
9.
That the State considers that based on the previously mentioned decisions
of the Supreme Court of Justice of Perú “it has complied with the final pending
matter of the judgment on reparations […] issued on November 27, 1998, thus […]
it request[ed] the filing of process 10,733 and the notification of that decision to
the parties.”
10.
That the representatives indicated that “the decision of the National Criminal
Chamber of the Supreme Court of Lima of March 20, 2006 marks a milestone in the
prosecution of grave violations of human rights in Perú, and especially of the crime
of forced disappearance. This ruling is fundamental for this and other cases that will
be prosecuted in the future since despite [the fact] that the acts object of the
process were initially defined as the crime of kidnapping, which evidently did not
correspond to the specific nature and characteristics of the crime, the Criminal
Chamber [decided] to issue a conviction for the commission of the crime of forced
disappearance. The Chamber’s ruling is decisive, upon considering that it is not
only facing a multi-offensive crime, since it infringes and affects several juridical
rights and even life itself, but also when it states that since the remains of Ernesto
Castillo Páez have not yet been located, his forced disappearance is a crime that is
up to this date still being executed.” Likewise, they indicated that the final decision
adopted by the Supreme Court of Lima on June 30, 2008 “constitutes an important
contribution in matters of the evidentiary assessment in crimes against human
rights and especially in crimes of forced disappearance. [Because] it reaffirms and
develops the usefulness and value of circumstantial evidence as an instrument used
to help determine the criminal responsibility of the accused parties.” Despite the
aforementioned, the representatives indicated that the State has not complied with
its obligation to repair since it has not handed over the remains of Ernesto Castillo
Páez to his next of kin. They mentioned that “the Perúvian State reuses to comply