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a failure by States to meet their obligations to investigate violations, to take
appropriate measures in respect of the perpetrators, particularly in the area of
justice, by ensuring that they are prosecuted, tried and duly punished.”
101. In its submission of May 11, 1998, the State pointed out that amnesty laws
Nos. 26.479 and 26.492 were approved in Peru; and that a suit challenging their
constitutionality was dismissed. It asserted that in view of the foregoing “a petition
seeking the prosecution and punishment of the individuals responsible, if in fact
anyone is responsible, is out of order [since such] individuals are not be subject to
court or administrative questioning under the provisions of those two laws.” Those
laws grant
a general amnesty to any military, police and civilian personnel, whatever their military
or police rank or function, who have been indicted, investigated, charged, tried,
prosecuted or convicted for common or military crimes involving acts deriving or
originating from, on occasion or as a consequence of, the fight against terrorism and
that they may have committed either individually or as a group between May of 1980
and the date of their enactment.
102. At the public hearing, Peru explained that these laws were adopted because
of the difficult situation prevailing in the country at the time.
However, it
underscored that “the amnesty laws are no impediment to the victim’s right to
compensation, as a ruling of the Constitutional Court has held.”
*
*
*
103. In its Judgment of November 3, 1997, the Court established that one of the
obligations of the State was to investigate the facts under the following terms:
In connection with the above-mentioned violations of the American Convention [Articles
7, 4, 5 and 25, in relation to Art. 1(1)], the Court considers that the Peruvian State is
obliged to investigate the events that produced them. Moreover, on the assumption that
internal difficulties might prevent the identification of the individuals responsible for
crimes of this kind, the victim’s finally still have the right to know what happened to him
and, if appropriate, where his remains are located. It is therefore incumbent on the
State to use all the means at its disposal to satisfy these reasonable expectations. In
addition to this duty to investigate, there is also the duty to prevent the commission of
forced disappearances and to sanction those responsible for them. These obligations on
Peru shall remain in force until such time as they have been fully performed (underlining
added) (Castillo Páez Case, supra 70, para. 90).
104. The obligation to investigate is expressly invoked by the victim’s next of kin
when requesting that the Court “require the Peruvian State to remove any legal
obstacle that would prevent it from conducting that investigation and eventually
punishing those responsible.”
105. The Court reconfirms what it held in paragraph 90 of the Judgment on the
merits (supra 103) and is persuaded that the Amnesty Law enacted by Peru (supra
68.C.e) is one of the “internal difficulties that might prevent the identification of the
individuals responsible for crimes of this kind”, since it obstructs investigation and
access to the courts and prevents the victim’s next of kin from learning the truth and
receiving the reparations to which they are entitled.
106. As this Court has held on repeated occasions, Article 25 in relation to Article
1(1) of the American Convention requires the State to guarantee to all persons
access to the courts, and, in particular, to a simple and rapid recourse so that,