79
appropriate penalties has been frustrated; to the extent that the legal consequences of the
law regarding the right to judicial guarantees are incompatible with the [A]merican
Convention [on] Human Rights.281
To summarize, the unlawfulness of an amnesty law enacted for the benefit of military and
police officials who committed [serious violations of human rights], whom enjoy impunity
during de facto regimes, has been declared by courts, of both the international community
and the States that went through similar processes experienced by Uruguay during the
same period in time. Such rulings, given the similarity with the issue under analysis and
the relevance they have had, could not be ignored in the examination of the
constitutionality of Law [No.] 15.848 and have been taken into account by the Corporation
to issue the present ruling.282
220. The Supreme Court of Justice in Honduras held that the decrees of 19987 and 87-91 of amnesty were unconstitutional and held that Section 205.16 of the
Honduran Constitution grants Congress the power to concede amnesty for political
crimes and those in relation; however, that provision does not give the authority
to grant this benefit for crimes that were aimed at “threatening the existence
and internal state of security, the system of government and citizen's rights.” For
the Supreme
Court,
the
Decree199-87 and
Decree 87-91 "serve
only to
incorporate the behavior of the military in the form of a political offense, in reality
being that the alleged crimes committed by the military were performed under the
cover that they were an act of service or because of it [...]." With this, the Honduran
Supreme Court declared
its
unconstitutionality based
on
the
merits, and
therefore, the inapplicability of Decree No. 199-87 issued on December 11, 1987,
and No. 87-91 issued on June 24, 1991 that provided for unconditional amnesty.283
221. Furthermore, the Constitutional Chamber of the Supreme Court of Justice of
El Salvador declared the legal impossibility of implementing the Law on General
Amnesty for the Consolidation of Peace in cases of gross violations of human
rights, and thus opened the possibility for criminal judges, upon hearing specific
cases of human rights violations that occurred during the internal armed conflict, to
consider the inapplicability Amnesty Law. 284
222. The Constitutional Court of Colombia, in various cases, has noted the
obligation to avoid the application of domestic amnesty provisions in cases of serious
human rights violations:
Those such as the laws of final measure that impede access to justice, the blank amnesties for
any crime, the self-amnesties (the criminal benefits which the legitimate and illegitimate holders
of power grant themselves and whom were accomplices in the crimes committed), or whichever
other form it takes so as to prevent victims from a obtaining an effective judicial remedy to
make their rights count, have been considered as being in violation of the international
285
obligation of States to promote legal remedies for the protection of human rights.
281
Supreme Court of Justice of Uruguay, Case of Nibia Sabalsagaray Curutchet, supra note 163,
Considering clause III.8, para. 11.
282
Supreme Court of Justice of Uruguay, Case of Nibia Sabalsagaray Curutchet, supra note 163,
Considering clause III.8, para. 15.
283
Supreme Court of Justice of the Republic of Hondorus, captioned orders – “RI20-99 –
Unconstituitonality of Decree Number 199-87 and of Decree Number 87-91”, June 27, 2000.
284
Constitutional Chamber of the Supreme Court of Justice of El Salvador, Judgment 24-97/21-98,
of September 26, 2000.
285
Constitutional Court of Colombia, Revision of the Law 742, of June 5, 2002, Case file No. LAT223, Judgment C-578/02, of July 30, 2002, section 4.3.2.1.7.
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