52
interpreted the Judgment on the Merits delivered in that case in the sense that the
“enactment of a law that is manifestly incompatible with the obligations undertaken
by a State Party to the Convention is per se a violation of the Convention for which
the State incurs international responsibility [and] given the nature of the violation
that amnesty laws No. 26.479 and No. 26.492 constitute, the effects of the decision
in the judgment on the merits of the Barrios Altos Cases are general in nature”206.
This was repeated by the Court in the case of La Cantuta207.
162. In the instant case and in light of the temporal scope in which said laws were
applied, it spring that from the investigations analyzed, the only ones on which said
laws could have produced an effect were the investigations conducted before the
Office of the Fifth Provincial Prosecutor for Criminal Matters of Callao and the writ of
habeas corpus. The remaining investigations were opened as of the year 2002.
Nevertheless, from the actions taken in the proceedings mentioned, it does not spring
that the enforcement of amnesty laws would justify the omissions or negligent acts.
On the contrary, in 1999 the Office of the Fifth Prosecutor ordered expanded
measures and to continue with the investigations (supra para. 134). In this way, it is
not clear whether, in the instant case, there were specific acts to which the amnesty
laws were applied, which had a real incidence in the investigations carried out. It has
neither been alleged nor proven that, after the year 2001, the State stopped adopting
the pertinent measures to eliminate the effects that these laws could somehow
produce.
163. Without detriment to the foregoing, it is pertinent to recall that, in the context
in which the events occurred, that law constituted a general obstacle to the
investigations into serious human rights violations in Peru. In this regard, this
Tribunal has already declared in the case of La Cantuta V. Perú that during the time in
which the amnesty laws were applied, the State breached its obligation to adjust its
domestic law to the Convention, pursuant to Article 2 thereof; as a result, since they
were declared incompatible ab initio with the Convention such "laws" have not been
capable of having effects, nor will it have them in the future208.
C.2
Classification of the crime of forced disappearance
164. The representatives alleged that the State has failed to comply with its
obligation to appropriately classify the crime of forced disappearance. They based
their argument on that, in the case of Gómez Palomino, the Court ordered the State
to adopt the measures necessary to amend its criminal legislation so as to adapt it to
the international standards within a reasonable time, in spite of which, up to the date,
Article 320 of the Criminal Code has not been modified and it is still being applied by
the domestic courts, "with serious implications for the proceedings instituted against
people accused of forced disappearance in Peru.” The Commission did not present any
claim in that respect. Moreover, the State only pointed out that the Congress of the
Republic of Peru would be adopting the amendment of said law.
165. As to the forced disappearance of people, the duty to adjust the domestic
legislation to the provisions of the American Convention implies the autonomous
classification of the crime and the definition of the punishable acts that make it up. In
206
Cf. Case of Barrios Altos V. Peru. Interpretation of the Judgment on the Merits. Judgment of
September 3, 2001. Series C No. 83, para. 18 and operative paragraph two.
207
Cf. Case of La Cantuta V. Peru, supra note 58, para. 165-189.
208
Cf. Case of La Cantuta V. Peru, supra note 58, para. 189.
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