40
the facts and ascertain the identity of those responsible for the inhumane, degrading
and humiliating treatment suffered by the victim.
167. The State argued that Decree-Laws Nos. 26,479 and 26,492, ordered as part
of the pacification process, granted a general amnesty to military, police and civilian
personnel; hence, the request made by the victim and the Commission is
inadmissible. According to the State, even if the individuals who detained and
prosecuted the victim had incurred some administrative, civil or criminal
responsibility, those Decree-Laws precluded their prosecution at the present time,
either judicially or administratively.
168. Under the American Convention, every person subject to the jurisdiction of a
State Party is guaranteed the right to recourse to a competent court for the
protection of his fundamental rights. States, therefore, have the obligation to
prevent human rights violations, investigate them, identify and punish their
intellectual authors and accessories after the fact, and may not invoke existing
provisions of domestic law, such as the Amnesty Law in this case, to avoid complying
with their obligations under international law. In the Court’s judgment, the Amnesty
Law enacted by Peru precludes the obligation to investigate and prevents access to
justice. For these reasons, Peru’s argument that it cannot comply with the duty to
investigate the facts that gave rise to the present Case must be rejected.
169. As this Court has held on repeated occasion, Article 25 in relation to Article
1(1) of the American Convention obliges the State to guarantee to every individual
access to the administration of justice and, in particular, to simple and prompt
recourse, so that, inter alia, those responsible for human rights violations may be
prosecuted and reparations obtained for the damages suffered. As this Court has
ruled, Article 25 “is one of the fundamental pillars not only of the American
Convention, but of the very rule of law in a democratic society in the terms of the
Convention” (Castillo Páez Case, Judgment of November 3, 1997. Series C No. 34,
paras. 82 and 83; Suárez Rosero Case, supra 162, para. 65; and Paniagua Morales
et al. Case, supra 57, para. 164). That article is closely linked to Article 8(1), which
provides that every person has the right to a hearing, with due guarantees and
within a reasonable time, by a competent, independent, and impartial tribunal, for
the determination of his rights, whatever their nature.
170. Consequently, it is the duty of the State to investigate human rights
violations, prosecute those responsible and avoid impunity. The Court has defined
impunity as the failure to investigate, prosecute, take into custody, try and convict
those responsible for violations of rights protected by the American Convention and
has further stated that
…the State has the obligation to use all the legal means at its disposal to combat that
situation, since impunity fosters chronic recidivism of human rights violations, and total
defenseless of victims and their relatives (Paniagua Morales et al. Case, supra 57, para.
173).
171. The State has an obligation to investigate the facts in the instant Case, to
identify those responsible, to punish them, and to adopt the internal legal measures
necessary to ensure compliance with this obligation (Article 2 of the American
Convention).
XV
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