9
the concretization of justice for crimes of such seriousness, self-amnesties infringe. As far as they
hinder justice from its execution for crimes of such seriousness, self-amnesties infringe jus
cogens. (...)
Finally, self-amnesties violate the rights to truth and justice, they cruelly disregard the
terrible suffering of the victims, hinder the right to proper reparations. Their perverse effects, in
my opinion permeate the whole social tissue, with the resulting loss in the faith for human justice
and real values, and a perverse distortion of the State purposes. Originally created for the
realization of common welfare, the State boils down to an entity which exterminates members
from segments of its own population (the most precious element of the State itself, its human
substratum) before the most absolute impunity. From an entity created for the concretization of
common welfare, it turns into an entity responsible for truly criminal practices, for undeniable
State crimes" (paras. 7, 10 and 21).
32.
Judgments of this Court in the cases of Barrios Altos (2001), Almonacid (2006), and
La Cantuta (2006), constitute a decisive contribution of this Court towards the end of selfamnesties and the prevalence of the Law. I perfectly remember that, in the public hearing
of September 29, 2006 in this case of La Cantuta, held in the Court´s house in San José de
Costa Rica (my last public hearing as Incumbent Judge of this Court), the common concern,
expressed by both the Inter-American Commission and by the counsel of the victims and
their next of kin, as I understood it, was in the sense to guarantee the due remedies,
among which the guarantee of non-repetition of injurious facts, -although their arguments
regarding self-amnesty laws have not been converging or coincident.
33.
The victims and their next of kin counsel (interventions of Ms. Viviana Krsticevic and
Ms. María Clara Galvis, of CEJIL) firmly held that what was set forth by the Court in the
Judgment of Barrios Altos was already directly incorporated in the domestic Peruvian legal
system, and was convalidated by the constant practice of the Peruvian Judicial Power since
then (excluding the military jurisdiction, the decisions of which lack “jurisdictional”
characteristics). Also, the Inter-American Commission Delegate (Commissioner Paolo
Carozza), lucidly and correctly stated that the amnesty laws of the Fujimori regime had to
be abolished (term used by this Court in the Judgment of Barrios Altos) so as to make it
clear that they never had validity regarding the American Convention, being contrary to the
jus cogens (cf. infra).
34.
Also, an equally lucid and substantial amicus curiae submitted by the Institute of
Legal Defense -Instituto de Defensa Legal (IDL)- with offices in Lima, Peru, urged the Court
to declare self-amnesty laws No. 26479 and No. 26492 inexistent (pp. 4 and 40), remarking
that the international courts jurisprudence, among which that of the Inter-American
Convention, has immediate effects, direct application and is binding, thus incorporating
“directly in the Peruvian corpus juris" (p. 30). The said amicus curiae of the IDL added that
those self-amnesty laws “are inexistent,” as they “exceeded the intangible limit
(constitutional guarantee of human rights”, and were placed “in an extralegal and
extraconstitutional scope” (p. 38). The amicus curiae of the IDL concluded that
"there is a repeated, consistent and uniform practice of the Peruvian Attorney General
Office and the Peruvian Judicial Power in the sense that such self-amnesty laws lack legal effects
and do not constitute an obstacle for starting the investigations, prosecution and punishment of
human rights infringers; there is a set of decisions issued by the Constitutional Court
understanding that, within the domestic scope and according to the text of the Peruvian
Constitution, the procedural obstacles hindering the punishment of human rights violations are
inadmissible, and that the jurisprudence of the Inter-American Human Rights Court is of direct
application in the domestic legal system (...).
For the same reasons, it is not necessary that the Peruvian State adopts any additional
provisions to those already assumed, in the domestic law, to guarantee the lack of legal effects of
self-amnesty laws in an effective way. (...) In the particular case of the Peruvian self-amnesty
laws, it is worth mentioning that, considering their non-existing condition, they are inefficient
from their origin (as they were not part of the domestic legal system they produced no legal
effect whatsoever)” (p. 39).
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