-36Peru has been questioned by a writ of unconstitutionality.” In addition, they argued that some
articles of that Decree were incompatible with the American Conventiion.
152. With regard to the amnesty laws, the State maintained that it had not violated Article
2 of the Convention since it took all necessary measures to correct the “irregularities produced
during the application” of those laws so that they did not have any legal effect, thus complying
with the Court’s judgments in the Barrios Altos and La Cantuta cases.135 With regard to its
domestic norms on the use of force, the State indicated that the current norms “were not
applied in investigating the present case,” that the representatives turned to the InterAmerican Court to request that it rule on a norm that has absolutely no relationship with the
facts of the dispute and that “the current legislation on the use of force is a matter that does
not appear in the Commission’s Merits Report.” In addition, it indicated that Decree 1095 has
been appealed to the Constitutional Court and that the respective decision is pending and,
thus, the representatives “have the procedural mechanisms of the domestic legislation to
contest a norm that they believe might infringe some right.
B. Considerations of the Court
153. The Court has stated that Article 2 obligates the States Parties to adopt, in accordance
with their constitutional procedures and the provisions of the Convention, the legislative or
other measures that are necessary to make effective the rights and freedoms protected by
the Convention.136 Thus, the States not only have the positive obligation to adopt the
necessary measures that guarantee the exercise of the rights recognized by the Convention,
they must also avoid enacting laws that impede the free exercise of those rights and must
avoid eliminating or modifiying the laws that protect them.137
154. In the present case, inasmuch as there were two types of arguments related to the
alleged violation of the duty to adapt domestic laws as set out in Article 2 of the Convention,
the Court will analyze: a) the compatibility of the amnesty law with the Convention (Article
2, in relation to Articles 8(1) and 25 thereof), and b) the normative on the use of force (Article
2, in relation to Articles 4 and 45 thereof).
B.1. The Amnesty Law of 1995
155. With respect to amnesty laws, this Court held in the Barrios Altos v. Peru case, that,
in general, ��all amnesty provisions, provisions of 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.”138
The State indicated that “although amnesty laws were enacted in 1995 in Peru, the scene changed later
because of the judgment of the Inter-American Court of Human Rights in the ‘Barrios Altos v. Peru case, due to
having taken the measures to correct this situation” and that such correction was carried out through the reopening
of various proceedings that had been closed due to the application of the amnesty law. It added that it had adopted
“measures that considered such laws inexistent in the national legal system, in the sense that they had no effect in
their moment and do not have any now.”
135
Cf. Case of Genie Lacayo v. Nicaragua. Merits, Reparations and Costs. Judgment of January 29, 1997. Series C No. 30,
para. 51 and Case of expelled Dominicans and Haitians v. Dominican Republic, para. 270.
136
Cf. Case of Castillo Petruzzi et al. v. Peru. Merits, Reparations and Costs. Judgment of May 30, 1999. Series C No. 52,
para. 207 and Case of expelled Dominicans and Haitians v. Dominican Republic, para. 270.
137
Cf. Case of Barrios Altos v. Peru. Merits, para 41. See also, Case of Almonacid Arellano et al. v. Chile.
Preliminary Objections, Merits, Reparations and Costs. Judgment of September 26, 2006. Series C No. 164, paras.
112 and 114; Case of La Cantuta v. Peru. Merits, Reparations and Costs. Judgment of November 29, 2006. Series C
No. 162, para. 152; Case of Gomes Lund et al. (“Guerrilha do Araguaia”) v. Brazil, para. 171; Case of Gelman v.
Uruguay. Merits and Reparations. Judgment of February 24, 2011. Series C No. 221, para. 225 and Case of the
138