51
the promptness that the facts required (supra paras. 134 and 140). At all times, the
next-to-kin adopted an active position, informing the authorities about all they knew
and expediting the investigations. Regarding the new investigations opened as of the
year 2002, it is not possible to disassociate the hindrances and delays verified in the
prior period, which led the investigations and proceedings to last more than 15 years
since the occurrence of the facts. Such proceedings are still opened, without having
the authorities determined the fate or whereabouts of the victim, as well as
prosecuted and possible punished the responsible, which, in whole, has exceeded the
term that may be considered reasonable to such effects. Based on the foregoing, the
Court considers that the State failed to comply with the requirements of Article 8(1)
of the Convention.
C.
On the lack of adaptation of domestic legislation (Article 2 of
American Convention in relation to Articles I, II and III ICFDP)
C.1
Amnesty Laws
158. The Commission requested the Court to declare that the State failed to comply
with its obligation to adapt domestic legislation, given the fact that, according to it,
“while amnesty laws 26.492 and 26.479 remained in force, the investigations
in connection with this complaint, though provisionally closed until new
evidence should come to light, were in effect terminated, because said laws
made it impossible to proceed with the investigation or prosecute State
agents.” In this way, it alleged that those laws were a delaying factor in the
investigations and an obstacle to shed light on the circumstances of the
disappearance, while they were in force, which is attributable to the State.
159. Regarding its subsequent application, the representatives asserted that “by
virtue of the Court’s determination of incompatibility of said laws with the Convention,
those laws have not been applied and have no legal effect in Peru”; therefore, they
agreed with the Commission in that it seems unnecessary to adapt the domestic
legislation to additional measures in order to effectively guarantee the elimination of
the judicial effects of the amnesty laws. However, while they were applied and
produced effects, “the Peruvian State violated the rights to a fair trial and judicial
protection in relation to the obligation to protect and guarantee and to adapt the
domestic legislation to the international standards, to the detriment of Kenneth Ney
Anzualdo Castro.”
160.
The State did not submit allegations in this regard.
161. In relation to the general duty of each State Party to adjust its domestic law
to the provisions of the Convention, enshrined in Article 2 of the American
Convention,204 for the purposes of this debate, it is necessary to recall that the Court
has already analyzed the content and scope of the amnesty laws Nº 26.479 and Nº.
26.492 in the case of Barrios Altos vs. Perú, by which in the Judgment on the merits
of March 14, 2001, it concluded that amnesty laws "are incompatible with the
American Convention [...] and consequently, lack legal effect"205. The Court
204
Cf. Case of “The Last Temptation of Christ” (Olmedo-Bustos et al.) V. Chile. Merits, Reparations
and Costs. Judgment of February 5, 2001. Series C No. 73, para. 87; Case of Heliodoro Portugal V.
Panamá, supra note 58, para. 179; and Case of La Cantuta V. Perú, supra note 58, para. 171 and 172.
205
Cf. Case of Barrios Altos V. Peru, supra note 125, para. 41 to 44 and operative paragraph four.
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