248. In the present case, the State presented a Supreme Court document that
indicated that, after 2013, that Court had dismissed on various occasions actions of
unconstitutionality against Articles 2 and 3 of Law 18,831, and that it had rejected
requests to close criminal proceedings on the grounds of prescription.278 The State,
moreover, has enacted Law 17,347, of June 13, 2001, adopted the Convention on the
Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity,
and Law 18,026, of September 13, 2006, on Cooperation with the International Criminal
Court in Matters of the Fight against Genocide, War Crimes and Crimes against
Humanity, Article 7 of which deals with the non-applicability of statutory limitations for
genocide, war crimes and crimes against humanity.279
249. Notwithstanding the above, the witness Perciballe, offered by the State and who
is in charge of the Office of the Special Prosecutor, pointed out that the Expiry Law is
not at present an obstacle, but that there persist “different interpretations regarding
what is and what is not prescription for these types of crimes.”280 The expert Chargoñia
Pérez pointed out that “despite the norms adopted by the State there persist judicial
interpretations that do not afford sufficient legal certainty,”alluding to interpretations on
statutory limitations and the nature of crimes against humanity of “the crimes of the
dictatorship.” The expert explained that some courts looked upon these crimes as
“ordinary” and, therefore, applied “the statutory period” to them.
250. The Court concludes that, despite the important advances made by the State,
including the legislative and judicial acts to eliminate the effect of the Expiry Law and
the non-applicability of statutory limitations that the Court welcomes, the Court finds
that there does not yet exist sufficient certainty with respect to the legal possibility that
the serious human rights violations that occurred during the dictatorship can be
effectively investigated and punished. The Court, however, does not have elements that
permit it to conclude that such lack of legal certainty can be related to the problems or
deficiencies of the legislation or the domestic normative.
251. In consideration of the above, the Court understands it necessary to remind that
State that
[…] when a State is Party to an international treaty, such as the American Convention, all its organs,
including judges and other bodies responsible for the administration of justice at all levels, are bound
by the treaty which requires them to ensure the effects of the provisions of the Convention are not
impaired by the application standards that are not contrary to their object and purpose, so that their
judicial or administrative decisions do not render total or partial compliance with international
obligations illusory. In other words, all State authorities have the obligation to exercise de officio a
“control of conventionality” between domestic standards and the American Convention, within the
framework of their respective competence and the corresponding procedural rules. Both the treaty and
Response of the Supreme Court of December 31, 2018 (evidence file, annex II to the answering brief,
fs. 2314 to 2324).
278
279
The texts of both laws have been incorporated into the evidence de officio (supra para. 25).
The Special Prosecutor, in a document submitted as evidence by the State as an annex to its
answering brief, indicated two “objections” to his statement that “all the courts of the country” were in
agreement in denying the objections of prescription regarding crimes committed during the dictatorship. He
also mentioned that, in denying such objections, the courts employed “various arguments.” (Undated Report
of the Special Prosecutor (evidence file, annex XXVIII to the answering brief, fs. 3836 to 3848)).
280
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