40
required to remove all obstacles, legal and factual, contributing to impunity152. 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 guaranteed153 and the prosecution of grave
human rights violations is made before regular courts154, in order to avoid impunity
and search for the truth155. 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 do so156.
126. The Court shall now analyze whether the State has diligently conducted
criminal investigations within a reasonable time and if such investigations provided an
effective recourse to ensure the alleged victims their right to access justice. To such
purpose, the Tribunal may examine the corresponding domestic proceedings.
127. Given that it is possible to differentiate two stages as to the development of
the criminal investigations conducted as to the disappearance of Kenneth Ney
Anzualdo, the Court shall analyze next, on the one hand, the first investigation
opened in 1993 and provisionally closed in 1995 and, on the other hand, the
investigations opened as from 2002. To that end, the Court shall take into account
the evidence furnished and the arguments submitted regarding the actions taken in
the following proceedings: a) First Investigation: Office of the Fifth Provincial
Prosecutor for Criminal Matters of Callao (assigned number 227-93-III); b)
Investigations opened after the year 2002: before the Office of the Special Provincial
Prosecutor on Forced Disappearances, Extrajudicial Executions, and Clandestine
Graves; before the Office of the Fifth Supra-Provincial Criminal Prosecutor (assigned
number 50-2002); before the Office of the Third Supra-Provincial Criminal Prosecutor
(assigned number 04-2007); before the Office of the Special Human Rights
Prosecutor ; investigation informed by the State as preliminary objection, and the
investigation against former president Fujimori and extradition proceedings (case
number 45-2003).
152
Cf. Case of La Cantuta V. Peru, supra note 58, para. 226; Case of Kawas Fernández V. Honduras,
supra note 14, para. 192; Case of Valle Jaramillo et al. V. Colombia, supra note 145 para. 232.
153
Cf. Case of Reverón Trujillo V. Bolivia, supra note 11, para. 67 and 68; and Case of Apitz Barbera
et al. (“First Court of Administrative Disputes”) V. Venezuela. Preliminary Objection, Merits, Reparations
and Costs. Judgment of August 5, 2008. Series C No. 182, para. 55, among others.
154
Cf. Case of Velásquez Rodríguez V. Honduras. Merits, supra note 11, para. 180; Case of the 19
Tradesmen V. Colombia. Merits, Reparations and Costs. Judgment of July 5, 2004. Series C N. 109, para.
173 and 174, and Case of the Rochela Massacre V. Colombia, supra note 13, para. 200.
155
The Court has established, in this regard, that “[t]hose remedies that, owing to the general
conditions of the country or even the particular circumstances of a case, are illusory cannot be considered
effective.” Judicial Guarantees in States of Emergency (art. 27.2, 25 and 8 American Convention on
Human Rights). Advisory Opinion OC-9/87 of October 6, 1987. Series A No. 9, para. 24.
156
Case of Goiburú et al. V. Paraguay, supra note 59, para. 131; and Case of La Cantuta V. Perú,
supra note 58, para. 160.
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