81
[…] (i) The deliberate trial of common crimes by criminal courts, as discussed earlier.
[…] (ii) The issuance of amnesty laws 26,479 and 26,492 in that period. Even though these did
not apply to the first criminal trial of the petitioner, taking into account the context in which they
were issued and the aim they pursued, the Constitutional Court considers that it clearly shows
that the government had no will to investigate and apply punishments that would fit the crimes
committed by those responsible for the events known as “Barrios Altos,”120
145. The foregoing considerations necessarily lead to the conclusion that a criminal trial in
the ordinary courts was the appropriate means to investigate and eventually prosecute and
punish those responsible for the events in the instant case; therefore, the irregular referral
of investigations to the criminal courts and the resulting proceedings conducted against the
alleged perpetrators and instigators constitute a violation of Article 8(1) of the Convention
with relation to Article 1(1) thereof, to the detriment of the victims’ relatives.
b) The New Investigations and Criminal Proceedings Conducted in the Ordinary
courts
146. In the instant case, after the fall of ex President Alberto Fujimori Fujimori’s regime
and the subsequent transition process starting in 2000, new official action was taken in the
ordinary criminal courts. However, no steps were taken in the criminal proceedings or in
other instances to determine the fate of the victims or to search for their remains. As
regards those investigations and their status at the time of this Judgment, the Court notes
that at least five new proceedings have been instituted, which have had various partial
results, according to the information on the record of the case (supra para. 80(67) to
80(92)).
147. As regards the effectiveness of the new investigations and criminal proceedings for
establishing the truth of the facts and tracking down and eventually arresting, prosecuting
and punishing the perpetrators and masterminds, the Court recognizes that such
investigations and proceedings have been aimed at the then highest ranking government
officers, from the former President to high military and intelligence ranks, as well as several
former members of the Colina Group. However, as discussed earlier (supra para. 146), for
several reasons the outcome of the proceedings have been quite partial as regards bringing
charges and identifying and eventually convicting those responsible. The absence of one of
the main defendants, former President Alberto Fujimori, who was initially granted asylum in
Japan and is currently arrested in Chile, determines a major part of the impunity. This latter
aspect will be dealt with below (infra para. 158 to 160).
148. Furthermore, the Court views favorably the trial and punishment of persons who, in
the military courts, hampered the investigations and formed part of the impunity scheme
operating during the investigations conducted until 2000 (supra para. 80(71) to 80(74)).
149. As regards the length of investigations and trials, this Court has stated that the right
to justice is not limited to the formal institution of domestic proceedings, but it also involves
the assurance within reasonable time of the right of alleged victims or their relatives to have
120
Cf. Judgment of the Constitucional Court, File No. 4587-2004-AA/TC, in the Case of Santiago Martín Rivas,
of November 29, 2005, para. 81(b), 82 and 83.
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