76
benefits, is contrary to clear and binding provisions of international law, and must
be effectively suppressed.
[I]n order to comply with international treaties on human rights, the suppression
of the [amnesty] laws cannot be postponed and must continue in such a way that
from them no regulatory obstacle can be derived for the prosecution of facts that
are the subject of this case. This means that those who were beneficiaries of such
laws cannot invoke the prohibition of retroactivity of the harshest criminal law nor
res judicata. [T]he subjection of the Argentine State to the Inter-American
jurisdiction prevents the principle of "non-retroactivity" of the criminal law from
being invoked to violate the obligations undertaken in regard to the prosecution
of gross violations of human rights.264
216. The Supreme Court of Justice of Chile concluded that the amnesties regarding
enforced disappearance would encompass only a specific period in time and not the
entire length of time of the enforced disappearance nor its effects: 265
[A]lthough the Decree explicitly stated in a comment that amnesty was granted for acts
committed between September 11, 1973, and March 10, 1978, the crime commenced on
January 7, 1975 […], creating the certainty that on March 10, 1978, the date of expiration
of the period laid down in Article 1º of D.L. 2191, Sandoval Rodriguez had not appeared
and there was no news of him, nor of the place where his remains could be found, in the
event of his death […], which makes the alleged amnesty inapplicable, given that the
kidnapping continued even after the expiration of the period covered by this order of
266
extinction of criminal liability.
[[T]he Chilean government imposed upon itself, in signing and ratifying [international
treaties], the obligation to ensure the safety of persons, [...] banning measures aimed at
protecting the harm committed against individuals or the impunity of the perpetrators,
considering in particular that international agreements must be fulfilled in good faith.
[That] Supreme Court, in various decisions, has recognized that the domestic sovereignty
of the State […] recognizes its limits in regard to the rights which emanate from human
nature; values that are superior to any norms that may be available to State authorities,
267
including the Constituent Power, which prevents them from being unknown.
264
Supreme Court of Justice of the Nation of Argentina. Case of Simón, Julio Héctor et al. s/illegal
deprivation of liberty, etc., supra note 223, Considering clause 31. Moreover, regarding the role of the
legislature and the judiciary in regard to the determination of unconstitutionality of the law, the Supreme
Court noted that “considering that Law 25.779 [annulled the amnesty laws], from a formalist perspective,
could be deemed unconstitutional, in that it, upon declaring it null and void, violated the division of
powers, by usurping the powers of the Judicial Branch, which is the only constitutional body deemed to
declare such laws or normative acts null with legal effectiveness.[…] the solution that the Congress
considered corresponds to the case […] in a way deprives the judges of the final decision on the matter.”
Supreme Court of Justice of the Nation of Argentina. Case of Simón, Julio Héctor et al. s/illegal deprivation
of liberty, etc., Order of June 14, 2005 Considering clause 34.
265
Cf. Supreme Court of Justice of Chile. Decision of the plenary regarding the instance that will
hear the application of the Amnesty Law in the case of the abduction of mir Miguel Ángel Sandoval, Rol
No. 517-2004, Case of 2477, of November 17, 2004, Considering clause 33.
266
Supreme Court of Justice of Chile. Case of the abduction of mir Miguel Ángel Sandoval, supra
note 265, Considering clause 33.
267
Supreme Court of Justice of Chile. Case of the abduction of mir Miguel Ángel Sandoval, supra
note 265, Considering clause 35.
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