52
country or due to the circumstances of the case, turn to be deceptive, cannot be
taken into account.139
112.
In the Case of Barrios Altos the Court has already stated that:
all amnesty provisions, provisions on prescription 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, extra-legal, summary or arbitrary execution and forced
disappearance, all of them prohibited because they violate non-derogable rights
140
recognized by international human rights law.
113. It is worth mentioning that the State itself recognized in the instant case that
“amnesty or self-amnesty laws are, in principle, contrary to the rules of international
human rights law.”141
114. In view of the above considerations, the Court determines that the States
cannot neglect their duty to investigate, identify, and punish those persons
responsible for crimes against humanity by enforcing amnesty laws or any other
similar domestic provisions. Consequently, crimes against humanity are crimes which
cannot be susceptible of amnesty.
c)
Enforcement of Decree Law No. 2.191 from August 21, 1990
115. Since it has already been established that the crime against Mr. AlmonacidArellano is a crime against humanity, and that crimes against humanity cannot be
susceptible of amnesty, the Court must now determine if under Decree Law No.
2.191 amnesty is granted for such crime, and if such were the case, the Court must
further determine whether the State has breached its obligation arising from Article 2
of the Convention upon keeping such law in force.
116. Article 1 of Decree Law No. 2.191 (supra para. 82(10)) grants a general
amnesty to all those responsible for “criminal acts” that were committed from
September 11, 1973 to March 10, 1978. Furthermore, Article 3 of such Decree Law
excludes a series of crimes from such amnesty.142 The Court notes that murder,
being a crime against humanity, is not included on the list provided in Article 3 of the
said Decree Law. This was also the determination made by the Chilean courts that
heard the instant case upon its application (supra paras. 82(20) and 82(21)).
Likewise, this Court, though not requested to decide on other crimes against
139
Cf. Case of Baldeón-García, supra note 14, para. 144; Case of the 19 Merchants, Judgment of
July 5, 2004. Series C No. 109, para. 192; and Case of Baena Ricardo et al. Jurisdiction. Judgment of
November 28, 2003. Series C No. 104, para. 77.
140
Cf. Case of Barrios Altos. Judgment of March 14, 2001. Series C No. 75, para. 41.
141
Cf. Final written arguments of the State (record on the Merits of the Case, Volume III, folio 723.)
142
Pursuant to Article 3 of Decree Law No. 2.191 amnesty shall not be granted to “those persons
against whom criminal actions are pending for the crimes of parricide, infanticide, robbery aggravated by
violence or intimidation, drug production or dealing, abduction of minors, corruption of minors, arson and
other damage to property; rape, statutory rape, incest, driving under the influence of alcohol,
embezzlement, swindling and illegal exaction, fraudulent practices and deceit, indecent assault, crimes
included in Decree Law No. 280 of 1974 as amended; bribery, fraud, smuggling and crimes included in the
Tax Code.”
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