74
military personnel on active duty for crimes or offenses that, owing to their nature, violate legal
rights related to the military system. 285 Furthermore, taking into account the nature of the offense
and the legal rights violated, the military criminal jurisdiction is not the competent jurisdiction
to investigate and, if appropriate, prosecute and punish the perpetrators of human rights
violations; rather, the prosecution of those responsible always corresponds to the ordinary justice
system.
246. Furthermore, the Court points out that, at least since the judgment in the case of Durand
and Ugarte v. Peru, it has been the Court’s consistent case law that the military jurisdiction is not
the competent jurisdiction to investigate and, if appropriate, prosecute and punish the
perpetrators of alleged human rights violations. 286 The factual situation of the Durand and Ugarte
case refers to facts that occurred in 1986, 287 and therefore this Court considers that this criterion
is also applicable in the instant case, where the events occurred in July 1991. Consequently, the
involvement of the military jurisdiction in the investigation of the forced disappearance of the
fifteen victims in the instant case was an additional element that hindered the investigation.
247. Finally - and sixth - on June 28, 1995, the Peruvian Congress approved Law No. 26.492
which interpreted Article 1 of Law No. 26.479 (supra para. 120). On July 4, 1995, the Mixed
Chamber of the Superior Court of Huancavelica declared the latter law to be applicable to the
accused in the instant case, ordering that the proceedings be discontinued and permanently
archived. The application of the amnesty law met with the approval of the Supreme Court
Prosecutor for Criminal Matters and was confirmed by the First Transitional Criminal Chamber of
the Peruvian Supreme Court of Justice in a ruling dated January 14, 1997 (supra para. 121).
248. This Court has already analyzed the content and scope of Amnesty Laws Nos. 26.479 and
26.492 in the judgment on merits in the case of Barrios Altos v. Peru, of March 14, 2001, in which
it declared that these were incompatible with the American Convention and, consequently, lacked
legal effects. 288 The Court interpreted that judgment on the merits in the sense that “[t]he
promulgation of a law that is manifestly contrary to the obligations assumed by a State Party to
the Convention constitutes per se a violation of the latter and gives rise to the international
responsibility of the State [and] that, given the nature of the violation constituted by Amnesty
Laws No. 26.479 and No. 26.492, the decisions in the judgment on merits in the Barrios Altos
case have general effects.” 289
249. In view of the judgment in the case of Barrios Altos v. Peru, on June 28, 2002, the Plenary
Chamber of the Supreme Council of Military Justice declared null and void the final ruling
(ejecutoría suprema) of June 16, 1995, which had granted the benefit of an amnesty to Javier
Bendezú Vargas and others, and ordered the reopening of the case (supra para. 123). Meanwhile,
in the ordinary jurisdiction, on July 14, 2005, the Mixed Chamber of the Superior Court of Justice
of Huancavelica declared the aforementioned ruling of July 4, 1995 invalid, and ordered the
reopening of the proceedings and the joinder of the investigation that had been initiated after the
CVR’s Final Report on the same facts (supra para. 124).
250. Therefore, the Court considers that the application of Amnesty Law No. 26.479, contrary
to the Convention, meant that the investigation was archived for 10 years in the ordinary
jurisdiction, which affected the continuity of the proceedings and prevented the investigation and
punishment of those responsible for the serious human rights violations committed during that
Cf. Case of Castillo Petruzzi et al. v. Peru, supra, para. 128, and Case of Osorio Rivera v. Peru, supra, para. 187.
Cf. Case of Durand and Ugarte v. Peru. Merits, supra, paras. 117, 118, 125 and 126, and Case of Rodríguez Vera
et al. (Disappeared of the Palace of Justice) v. Colombia, supra, para. 445.
287
Cf. Case of Durand and Ugarte v. Peru. Merits. Judgment of August 16, 2000. Series C No. 68, para. 59.
288
Cf. Case of Barrios Altos v. Peru. Merits, supra, para. 44 and fourth operative paragraph.
289
Cf. Case of Barrios Altos v. Peru. Interpretation of the Judgment of Merits, para. 18 and second operative paragraph.
285
286