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98.
Based on the Judgment on the merits in the instant case (Castillo Páez Case,
supra 70, para. 90), the Commission and the victim’s next of kin requested that the
events be investigated and that those responsible for the crimes perpetrated against
Ernesto Rafael Castillo-Páez be punished. They also requested that the next of kin
be informed of the victim’s fate and that his remains be located since, for “his
parents and sister, receiving Ernesto’s remains is an essential step toward bringing
closure to the torment they suffer from the uncertainty surrounding his fate.” They
also submitted a report on the internal investigation conducted by the Office of the
Inspector General of the Police, ordered by the Ministry of the Interior, where
mention is made of vehicles and personnel who, according to the representatives of
the next of kin, were directly involved in the detention and subsequent
disappearance of Ernest Rafael Castillo-Páez. They also reported that in dossier No.
610-91, 14th Criminal Court of Lima, one Carlos Mejía-León is named as the person
who headed up the operation; according to unofficial versions, Mejía-León was
responsible for taking “Ernesto [Rafael Castillo-Páez] from the San Juan de Miraflores
police station for questioning.” During the public hearing on reparations, the
Commission and the victim’s next of kin added that “the Government seems to be
operating on the notion that the Court cannot order an investigation into the victim’s
disappearance because of the two amnesty laws in effect in Peru,” which in their
judgment constitute “an obstacle to fulfillment of the State’s international
obligations.” They therefore requested that the Court rule on the incompatibility of
the amnesty laws with the State’s international obligations, since otherwise the
crimes would go unpunished, as the Court held in the Paniagua Morales et al. Case.
99.
The State asserted that forced disappearance had been typified through
Decree Law No. 25.592, published on July 2, 1992. At the public hearing, Peru
stated that its concern was “to comply with the requirements of international
organizations; the renewed effort to normalize laws that the Peruvian State was
forced to change to save itself as a nation and as a state, demonstrates and confirms
the Peruvian Government’s concern.” Finally, in its brief of August 24, 1998, the
State pointed out that Law No. 26.926 was enacted this year, which typifies
genocide, forced disappearance and torture as crimes against humanity, and
establishes severe penalties for them. Peru also pointed out that it had signed and
ratified the Inter-American Convention to Prevent and Punish Torture.
100. At the public hearing, the Inter-American Commission argued that according
to the State’s own argument concerning the amnesty laws, Law No. 26.926 was not
applicable in the instant Case. It further argued that under Article 6 of Law No.
26,479, an amnesty was granted to all persons responsible for crimes committed as
a consequence of the fight against terrorism, whether or not they had been named,
prosecuted, tried, or investigated. The Commission pointed out that it had, on a
number of occasions, rendered findings on amnesty laws. Such laws, it argued,
violate the international obligation that States have under Article 1(1) of the
Convention and lead to impunity. The Commission pointed out that this was the
position upheld by the Court and was explained in the report presented to the United
Nations Commission on Human Rights on October 2, 1997, by the special rapporteur
of the Sub-Commission on Prevention of Discrimination and Protection of Minorities
on the question of the impunity of perpetrators of human rights violations (civil and
political rights). It pointed out that in that study, “42 principles were adopted,
calculated to protect and promote human rights through measures to combat
impunity.” The Commission argued that the applicable principle in the instant case is
No. 18, [which] concerns the “duties of States with regard to the administration of
justice.” When it elaborated, the Commission maintained that “impunity arises from