17
effectively implement judicial investigations and adopt the measures
necessary to overcome the obstacles that generate impunity.
In this regard, even though it is true that each State has a specific
institutional design related with the implementation of orders issued by
the Inter-American bodies, the American Convention clearly states that
the Tribunal’s orders are obligatory. This implies that it is not necessary
to have a specific domestic process to declare its obligatory nature or so
that the specific order generate effects.
35.
Therefore, in the present case it was not necessary for the InterAmerican Court to refer expressly to the State’s duty to adopt a specific
measure regarding the annulment of a dismissal, since the Tribunal’s
Judgment implies the removal of any obstacle that impedes the
investigation of the facts and, if necessary, the punishment of those
responsible for the declared violations. In effect, in relation to the
dismissal in the present case, it is possible to apply the Court’s
statements regarding the different measures designed to exclude
responsibility and other procedural institutes that would prevent
continuance with the investigation.
36.
The application of international law in domestic law can be seen in
a decision adopted by the Constitutional Court of Peru in which it was
stated that the order to investigate and punish given by the InterAmerican Court in the case of Barrios Altos v. Peru “includes the
dismissal rulings issued by the instances of military jurisdiction, even
those in which the amnesty laws have not been applied.”29 Likewise, said
Constitutional Court manifested that:
37.
“the State’s obligation to investigate the facts and punish those responsible for the violation of
human rights declared in the Judgment of the Inter-American Court […,] not only includes the
nullity of those proceedings where the laws of amnesty were applied […], after having declared
that said laws do not have legal effects, but also all practices aimed at preventing the
investigation and punishment of violations to the rights to life and humane treatment, among
which we can find the orders of definitive dismissal such as those issued in favor of the
appellant.”30 (bold added)
Additionally, it is important to recall some judgments from High
Courts of the region regarding the inadmissibility of the prescription
period guarantee to prevent investigations ordered by the InterAmerican Court regarding serious violations to human rights. Thus,
38.
29
Constitutional Court of Peru, Judgment of July 16, 2008 (Dossier Nº 03938-2007-PA/TC Lima).
Considering Clause twenty-one.
30
Constitutional Court of Peru, supra note 29, Considering Clauses thirty, thirty-one, and thirty-two.