52
252.
The Commission reiterates that, in keeping with the case law of the Court, the right of access to
justice implies the effective determination of the facts under investigation and, if applicable, of the corresponding
criminal responsibilities in a reasonable time; therefore, considering the need to guarantee the rights of the
injured parties, a prolonged delay may constitute, in itself, a violation of the right to a fair trial. Besides, because it
is a forced disappearance, the right of access to justice includes the determination of the fate or whereabouts of
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the victim.
In these cases, impunity will not be eliminated unless it is accompanied by the determination of
the general responsibility- of the State- and individuals- criminal and of its agents or of
individuals. In complying with this obligation, the State is required to remove all obstacles, legal
and factual, contributing to impunity. The investigations must be conducted in line with the rules
of due process of law, which implies that the bodies of administration of justice must be
organized in a manner so that its independence and impartiality is guaranteed and the
prosecution of grave human rights violations is made before regular courts , in order to avoid
impunity and search for the truth. Moreover, given the nature and gravity of the facts,
particularly since they occurred in a context of systematic human rights violations, and since the
access to justice is a peremptory rule under International Law, the need to eliminate impunity
gives rise to an obligation for the international community to ensure inter-State cooperation by
which they must adopt all necessary measures to ensure that such violations do not remain
unpunished, either by exercising their jurisdiction to apply their domestic law and the
international law to prosecute it and, when applicable, punish those responsible, or by
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collaborating with other States that do so or attempt to do so.
253.
The Commission notes that the Court has analyzed the content and scope of the Amnesty Laws
26479 and 26.492 in the Barrios Altos Case v. Peru. The Court’s judgment on merits of March 14, 2001 in that case
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found that they “are incompatible with the American Convention [...] and, consequently, lack legal effect.”
Specifically, the Court’s interpretation found that “[e]nactment of a law that is manifestly incompatible with the
obligations undertaken by a State Party to the Convention is per se a violation of the Convention for which the
State incurs international responsibility [and] that, given the nature of the violation that amnesty laws No. 26479
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and 26492 constitute, the decision in the judgment on the merits in the Barrios Altos Case has generic effects.”
254.
The Commission notes that, according to the established facts, for 10 years (from July 4, 1995,
when the Criminal Chamber of Huancavelica Superior Court declared Amnesty Law 26479 applicable, until the case
was reopened toward the end of 2005) the victims’ next-of-kin did not have access to an effective remedy to
uphold their rights. For the whole of the time that Amnesty Laws 26492 and 26479 were in force, the criminal
proceeding with which the instant petition is concerned was closed, which, because of those laws, made
prosecution of the State agents involved impossible. Therefore, while they remained in force, the above laws were
a delaying factor in the investigations and an impediment to the clarification of the facts, which situation is
imputable to the State. Accordingly, the Commission concludes that throughout the 10 years that the amnesty
laws were applied to this particular case, the State violated its obligation under article 2 of the Convention to
adapt its domestic law to said instrument.
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I/A Court H.R, Case of Anzualdo Castro v. Peru, Judgment of September 22, 2009, Series C No. 202, par. 124.
224
I/A Court H.R, Case of Anzualdo Castro v. Peru, Judgment of September 22, 2009, Series C No. 202, par. 125; Case
of La Cantuta v. Peru. Merits, Reparations and Costs. Judgment of November 29, 2006.
Series C, No. 162, par. 160.
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Barrios Altos Case v. Peru. Merits. Judgment of March 14, 2001. Series C, No. 75, pars. 41-44 and y operative
paragraph four.
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Barrios Altos Case v. Peru. Interpretation of the Judgment on the Merits. Judgment of September 3, 2001. Series C,
No. 83. par. 18 and operative paragraph two.