10
argued that the States “cannot use domestic legislation as justification
to not comply with its international commitments” and “it worryingly
observed ” the annulment of the declaration of self-execution of the
Judgment issued by the Inter-American Court.
The Court has verified that the State, all be it late, has made
progress in its compliance with the Judgments issued in the present
case, through the aforementioned processes and orders given by the
Public Prosecutors’ Office and the Supreme Court (supra Considering
9(a) and 9(b)). However, the decision issued by the Constitutionality
Court, later followed by the Supreme Court, resulted in the latter closing
the investigation. Therefore, as a result of i) the fact that the progress
prior to said closing was part of the limited steps to fight impunity
almost ten years after the issuing of the Judgment, and ii) the request
made by the State (supra Considering Clause 14), the Court considers it
necessary to analyze if the resolution issued by the Constitutionality
Court is compatible with the State’s international obligations, taking into
account, at the same time, that said High Court tried to adopt its
decision “without failing to acknowledge, in any way, the authority of
the Judgment issued by the Inter-American Court.” Thus, the Tribunal,
firstly (2.1) will recall the scope of the Judgments and Orders issued in
the present case, in order to establish if the consideration of the
Constitutionality Court is admissible in the sense that what this Tribunal
has stated does not imply the annulment of the dismissals that have
been ordered. Secondly (2.2), the Court will analyze the duties in its
constant jurisprudence regarding the obligation to lift obstacles that
prevent making progress in an investigation. For this, it will refer to the
interaction between international law and domestic law that has been
seen in the region regarding this matter. Thirdly (2.3), the Tribunal will
make a deliberation between the defendant’s guarantee of ne bis in
idem and the victims’ rights in the present case.
17.
2.1. Origin of the State’s obligation to reopen the investigation
in the Judgments and Orders issued by the Court
In the Judgment on Merits, the Inter-American Court verified that
in 1996 “the First Instance Military Court of Retalhuleu dismissed the
case opened against 13 soldiers” for the crimes committed against Mr.
Bámaca Velásquez. However, on November 22, 1995, the Eleventh
18.