23
possibly, they were even killed.” Evidence was also found that “the
disappearance of Efraín Bámaca Velásquez [was] linked to said
practice,” thus the Court consider[ed] that it to be proven.41
Based on these considerations of the Tribunal, the domestic courts
are obliged to eliminate any practice, regulation, or procedural
institution that are admissible for general punishable acts but are
inadmissible in relation to clear violations of the duty to investigate
grave violations of human rights. After ten years, there has been no
concrete domestic decision to remove said obstacles. The Tribunal states
that having received a request from the State in 2010, the Court
provided a complete copy of the evidence available in its dossier.42 The
first steps to remove the obstacles that guaranteed impunity were
strongly focused on the recently annulled actions (supra Considering
Clauses 9(a) and 9(b)).
48.
Similarly, the Court observes that different domestic judicial
bodies have agreed to remove all procedural obstacles in order to
reopen or continue with the corresponding investigations in cases of
serious violations of human rights. Thus, for example, the defendants in
the case of Barrios Altos v. Peru requested the dismissal of the case
because the time period for the preliminary stage, or the investigation,
had been exceeded, basing the request on a legislative decree that
promoted that investigations be carried out within a reasonable period
of time. In this regard, the Superior Court of Justice of Lima decided to
declare the dismissal requests inadmissible and, therefore, continue with
the proceedings against the defendants, without receiving an explicit or
direct order from this Tribunal to do so.43 The aforementioned decision
was made, inter alia, taking into account the constant jurisprudence of
the Inter-American Court regarding the incompatibility of laws on
amnesty and other procedural obstacles with the Convention, which, at
the same time, prevent compliance with the obligation to investigate. In
this sense, said Superior Court considered that it was appropriate to not
apply the regulation, even though it creates some type of restriction of
the defendants’ rights. Specifically, it indicated that “[b]ased on the
49.
41
Cf. Case of Bámaca Velásquez v. Guatemala, supra note 11, para. 132.
Through a brief of February 1, 2010, the State of Guatemala requested from the Inter-American
Court a certified copy of “all testimonial statements and all documents presented by the soldiers, as well as a
certified copy of the judgment on merits and reparations,” in the present case. Through a note of the
Secretariat of the Court of February 4, 2010, a certified copy of the Judgments issued in the present case
and a certified copy of the entire dossier on merits was issued.
43
Cf. First Special Criminal Chamber of the Superior Court of Justice of Lime, Ruling of September 15,
2010 (Dossier 28-2001-1º SPE/CSJLI), page 26.
42