“[w]ith regard to the human rights conventions that [Bolivia] has concluded, it should be
indicated that they have only been ratified recently […], and, as established in Article 33
of the Constitution of the State “The law only provides for the future and does not have
retroactive effects, except in social matters when it is expressly stated and in criminal
matters when it benefits the offender”; […] it should also be clearly understood that the
judgment delivered by the Inter-American Court of Human Rights can in no way
determine or predispose the course of this proceeding, since that judgment and that
Court do not have jurisdiction to deliver verdicts over domestic law, and its sanctions
relate to the Bolivian State and not to any person in particular.”
106.
In this respect, this Court has already indicated and now repeats that:
… all amnesty provisions, provisions regarding statutes of limitations and the
establishment of measures designed to eliminate responsibility are inadmissible,
because they are intended to prevent the investigation and punishment of those
responsible for serious human rights violations such as torture, extrajudicial, summary
or arbitrary execution and forced disappearance, all of them prohibited because they
violate non-derogable rights recognized by international human rights law65.
107. On July 27, 2001, Gladys Oroza de Solón Romero filed an application for
constitutional amparo, in which she indicated that her constitutional rights were
harmed by the decisions that declared that the crimes of unlawful deprivation of
freedom, ill-treatment and torture were subject to the statute of limitations, since,
based on them, a criminal proceeding was underway against Elías Moreno Caballero,
Antonio Elio Rivero, Justo Sarmiento Alanés, Pedro Percy González Monasterio and
Ernesto Morant Lijerón. This action resulted in constitutional decision No. 1190/01-R
of November 12, 2001, in which the Constitutional Court of Bolivia considered,
among other matters, that:
“[…] the unlawful deprivation of freedom or unlawful detention, as understood in all
comparative jurisprudence and doctrine, is a permanent offense; since, in the execution
of the offending act, the perpetrator or perpetrators have the power to continue or cease
the illegal action (unlawful deprivation of freedom) and, while this persists, the offense
is reproduced at each moment that it is being consummated.”
“[…] having established the permanent nature of the offense of unlawful deprivation of
freedom, […] and that the victim has still not recovered his freedom; consequently, the
statute of limitations has not begun to tallied, because, to calculate the extinguishment
of permanent offenses, it is necessary to begin to count as of the day on which the
execution of the offense ceases.”
“by declaring that the criminal proceeding had extinguished due to the statute of
limitations, the Fifth Criminal Trial Judge of Santa Cruz and the members of the First
Criminal Chamber of the Court of the Judicial District of Santa Cruz […] erroneously
applied the laws invoked, thereby harming the fundamental right of the appellant to
legal certainty embodied in Article 7 (a) of the Constitution.”
Consequently, the operative paragraphs of this judgment indicate:
THEREFORE: The Constitutional Court, […] 1) ANNULS the decision of November 10,
2000, issued by the Fifth Criminal Trial Judge and the decision of January 12, 2001,
pronounced by the members of the First Criminal Chamber, and orders the prosecution
of the criminal proceeding filed by the petitioner against Justo Sarmiento Alanes, Pedro
Percy Gonzáles Monasterio, Elías Moreno Caballero, Antonio Elío Rivero, Ernesto Morant
Ligerón and Oscar Menacho Vaca, although this is extinguished with regard to Rafael
Loayza, because he has died; 2) ANNULS the decision of January 13, 2001, pronounced
65
Barrios Altos case. Judgment of March 14, 2001. Series C No. 75, para. 41. Similarly, cf. Barrios
Altos case. Interpretation of judgment on merits. (Article 67, American Convention on Human Rights).
Judgment of September 3 , 2001. Series C No. 83, para. 15.