77
217. The same Supreme Court of Justice of Chile, in the case of Lecaros
Carrasco, annulled a verdict of not guilty and invalidated the application of the
Chilean amnesty in Decree Law No. 2.191 of 1978: 268
[T]he crime of kidnapping [...] has the character of a crime against humanity, and
therefore, it is not necessary to invoke amnesty as a cause to extinguish criminal
269
responsibility.
[T]he amnesty law enacted by the de facto authority which took on the "Supreme
Command of the Nation," [...] must be interpreted in a way that conforms with the
protective covenants of fundamental rights of the individual and sanctions the serious
270
violations committed against them during the period in which said legal body is in force.
[T]he mentioned prohibition of the auto-exoneration not only concerns the obvious
situations in which those in power have used the advantageous position which they held to
extinguish responsibility, as is the case with self-given amnesty, but it also implies a
suspension of the effectiveness of preexisting institutions, such as […] the statute of
limitations for criminal proceedings, designed to operate in a state of social peace in which
they are called to serve, but not in the situations of harm to the institutions in which the
271
State was set up, and for the specific benefit of those that provoked said breakdown.
218. The Constitutional Court of Peru, in the case of Santiago Martín Rivas, in
resolving an extraordinary remedy and a remedy of violations to constitutional
rights, discussed the scope of the State’s obligations and the nullity of amnesty laws:
272
[T]he Constitutional Tribunal considers that the obligation of States to investigate the facts
and punish those responsible for the violation of human rights declared in the Judgment of
the Inter-American Court of Human Rights includes not only the nullity of those processes
where the amnesty laws […] had been applied, after the declaration that such laws had no
legal effect, but also any practice intended to prevent the investigation and punishment for
273
violations of the rights to life and personal integrity.
The obligations assumed by the Peruvian government with the ratification of treaties on
human rights include the duty to guarantee those rights, in accordance with International
Law, are irrevocable and for which the State is internationally obligated to sanction said
involvement. In response to the mandate contained in […] the Constitutional Procedural
Code, treaties are sought which have crystallized the absolute prohibition of those who
have committed unlawful acts, and pursuant to International Law can not be granted
amnesty, as this would be contrary to the standards of minimum protection to the dignity
274
of the human person.
268
Supreme Court of Justice of Chile, Case of Claudio Abdón Lecaros Carrasco for the crime of
aggravated kidnapping, Rol No. 47.205, Remedy No. 3302/2009, Resolution 16698, Appeals Judgment,
and Resolution 16699, Replacement Judgment, of May 18, 2010.
269
Supreme Court of Justice of Chile, Case of Claudio Abdón Lecaros Carrasco, Replacement
Judgment, supra note 268, Considering clause 1.
270
Supreme Court of Justice of Chile, Case of Claudio Abdón Lecaros, Replacement Judgment, supra
note 268, Considering clause 2.
271
Supreme Court of Justice of Chile, Case of Claudio Abdón Lecaros Carrasco, Replacement
Judgment, supra note 268, Considering clause 3.
272
Cf. Constitutional Tribunal of Peru, Case of Santiago Martín Rivas, Extraordinary Remedy, Case
file No. 4587-2004-AA/TC, Judgment of November 29, 2005, para. 63.
273
Constitutional Tribunal of Peru, Case of Santiago Martín Rivas, Extraordinary Remedy, supra note
272, para. 63.
274
Constitutional Tribunal of Peru, Case of Santiago Martín Rivas, Constitutional tort remedy, Case
file No. 679-2005-PA/TC, Judgment of March 2, 2007, para. 30.
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