6
the accused from his criminal liability, thus configuring and “apparent” or
“fraudulent” res judicata (para. 153), which constitutes the Law denial itself.
22.
Finally, the extensive and detailed Final Report of Peru´s CVR determines the
facts which configured the State criminal practice during the period at issue. The
cases of La Cantuta (1992),7 Barrios Altos (1991),8 Huilca Tecse (1992),9 among
others, are therein fully described with high degree of detail. When determining the
“legal frame of forced disappearance in Peru,” the said Final Report of the CVR
repeatedly took into account, when developing its arguments, the jurisprudence of
this Inter-American Court.”10
II.
Towards the End of Self-Amnisties: The Contribution of the
Inter-American Court to the Prevalence of the Law.
23.
In its Judgment in the Case of “The Last Temptation of Christ” (Olmedo
Bustos et al.) vs. Chile, Judgment of February 5, 2001), this Court stated that the
general duty imposed by Article 2 of the American Convention requires that each
State Party adopts all the necessary provisions so that what is established by the
Convention is effectively fulfilled within the domestic law system, which means that
the State must adapt its acting to the protection rules and regulations of the
Convention (para. 87). Seven months later, the Court remembered said obiter
dictum in its historical Judgment in the case of Barrios Altos, regarding to Peru
(Judgment Construction of September 3, 2001), in relation to the “duty of the State
to suppress, from its legal system, those rules in force which imply a violation” of the
American Convention (para. 17), and added:
"The enactment of a law expressly contrary to the obligations assumed by the
State Party of the Convention constitutes per se a violation of the latter and generates
international liability of the State. Consequently, the Court considers that, given the
nature of the violation of amnesty laws No. 26,479 and 26,492, the ruling of the
Judgment on the merits of the case in Barrios Altos has general effects (...)" (para. 18).
24.
In the case of El Amparo (Reparations, Judgment of September 14, 1996),
regarding Venezuela, I stated, in my Dissenting Opinion, that the existence of a legal
provision of domestic law itself can, per se, create a situation which directly affects
the rights protected by the American Convention, due to the risk or actual threat that
its applicability represents, without the need to expect the occurrence of detriment
(paras. 2-3 and 6). In the same case of El Amparo (Interpretation of Judgment,
Ruling of April 16, 1997), and in my subsequent Dissenting Opinion, I insisted in my
understanding in the sense that
"A State may (...) have its international liability compromised, in my opinion,
merely by approving and enacting a law in conflict with its conventional obligations of
protection, or by the lack of adaptation of its domestic law to guarantee the faithful
7
CVR, Final Report, op. cit. supra No. (3), sections 2(19), pp. 605-632, and 2(22), pp. 233-245.
8
CVR, Final Report, op. cit. supra No. (3), section 2(45), pp. 475-493.
9
CVR, Final Report, op. cit. supra No. (3), section 2(58), pp. 629-647.
10
CVR, Final Report, op. cit. supra No. (3), section 1(2)(1), pp. 59, 63, 65, 67-68, 107, 118, 131132, 143, 151, 178, 191, 212-213, 260, 380, 401, 404-406, 408, 410, 413-414, 417, 421, 436, 439,
467-468, 472-475, 480-481, 484, 498-500, 504, 510, 521 and 529.
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